Year: 2018
Society News
The “5th Youth Residential Refresher Course”
held from 9thMarch to 11th March 2018 at the
Upper Deck Resort, Lonavala
The 5th YRRC was organized by Bombay Chartered
Accountants’ Society under the Membership and Public
Relations Committee from 9th to 11th March 2018 at the
Upper Deck Resort, Lonavala.
“Are you Future Ready”, the theme of the event was to
prepare the participants for the challenges of the future –
whether that be the fast-changing technology, or technical
aspects relating to the profession or the soft skills. The
participants were grouped in four houses; United People
of Saturn, Neptune Residents, Citizens of Mercury and
Pluto Refugees, competing each other for earning points
for their house to win the Best House trophy.
Enthusiastic to be future ready, all the participants turned
up in their suits and ties, adding the perfect professional
touch at the excellent venue. A perfect blend of learning
through technical as well as non-technical sessions and
educative extracurricular activities, the YRRC provided a
great opportunity to all the participants to polish both, their
knowledge and personality.
Volume II of the “New Youth Times,” the daily news
quotient, kept the participants abreast with the happenings
of the YRRC at all times while also providing a dose of
entertainment.
Covering a wide range, the topics included Blockchain
Technology, Cryptocurrencies, Impact of Blockchain
Technology on Audit, Recent Developments in
International Taxation, Corporate Laws, Indirect Tax as
well as Direct Tax, Walk to the Boardroom and even a
Life Skills Workshop. The speakers shared various insights based on their experiences with the participants.
The youth discussion was a surprise session, where
each group was required to brainstorm and come up
with five ideas that could transform the country, while
also thinking how CAs could contribute. It was very
productive, with some wonderful ideas thrown up by the
future of the profession, evoking appreciation even from
the past president of ICAI Mr. Nilesh Vikamsey. Not to
forget, the chance to earn points did turn the discussions
quite intense.
The content covered and presentations made by all the
Speakers were a class apart, delivering their points and
ideas with great clarity. None of the speakers returned
home without a standing ovation from the enthusiastic
crowd. The illustrious speakers who took up the various
sessions were –
Despite continuous sessions, the participants did not call
it a day and thoroughly enjoyed the post-session games
on day 1, earning brownie points for themselves as well
as the group. The youth quotient was upped with the
impromptu but energetic DJ session at the end of a long
and tiring day 2, followed by an early morning trek the
next day.
An event which was truly “By the Youth, Of the Youth
and For the Youth” concluded with the now enriched and
happy participants bidding farewell until the next YRRC.
Post the event, the advance inquiries for the next YRRC
and the joyous feedback received from the speakers
and their sheer experience of the wonderful novelty
and energy of the event marked a beautiful end to the
5th YRRC.
HRD STUDY CIRCLE
Programme on “Heal without Medicines – A
Family Health Program on Raw Food Cures”
held on 10th March, 2018
Human Development and Technology Initiatives
Committee organized a programme on Heal without
Medicines – A Family Health Program on Raw Food Cures
on 10th March, 2018 at Direct-I=Plex, Andheri addressed
by Mr. Atul Shah, an active propagator of Natural diet. The
theme was “to die young and as late as possible”, i.e.
to live long, live young and always vibrant and bubbling
with energy and reverse the ageing process.”
The Speaker emphasized on How to Have Good Health
without Medicines. He explained how Raw Food Diet can
help Maintain a Natural, Healthy Life Style and how one
feels at ease, calm and cool by eating the right foods.
He further mentioned that little changes in one’s daily
diet can act as medicine and thus make one free from all
diseases and discomforts like joint pain, diabetes, blood
pressure, acidity, migraine, asthma, kidney disease, heart
problems, skin diseases etc.
True to the spirit of the programme, participants were
served the Raw Food Lunch. They appreciated and found
the programme very interesting and close to their heart as
it shared the learnings and lessons of leading a healthy
and active life style.
HRD STUDY CIRCLE
Meeting on “Career Progression for a Finance
Professional” held on 13th March, 2018 at
BCAS Conference Hall
HDTI Committee organized a meeting on the above
subject on 13th March, 2018 at BCAS Conference
Hall which was addressed by Mr. V. Shankar, MD, Rallis
India Ltd.
The Speaker explained that the role of finance
professionals, in value creation for stakeholders, needs
to be properly understood in the backdrop of much
expectations from them by the stakeholders. He further
mentioned that finance function revolves around four
dimensions:
1) Controller’s Role: It is vital for Finance Professional to
monitor and take action to ensure that assets are not only
protected but are put to use efficiently in the organisation.
This encompasses enterprise risk management and
ensures that there is no leakage in value.
2) Governance or Regulatory role: Finance professional
is the conscience keeper to ensure that the enterprise
abides by all regulations and value is preserved and
generated.
3) Business Partner: A professional needs to get involved
in an active value creation and is a part of the process
in driving value delivery. These are the areas around the
customer, operations, M&A, new ventures, innovation,
Digital etc. where contribution to the change will result in
added value generation for the business.
4) Leadership Dimension: This dimension is about
various critical aspects of the business e.g., controls and
risk management etc. In today’s world of stakeholder
activism, communication has become most critical.
Communicating with the external world and social
media in particular has become a critical element of the
finance function.
At the end, the Speaker responded to the queries
raised by the participants and the participants found the
subject very relevant and interesting and learnt a lot from
the session.
“Four Days Orientation Course on Foreign
Exchange Management Act (FEMA)” held on
16th, 17th, 23rd and 24th March, 2018 at BCAS
Conference Hall
International Taxation Committee organized a Four
Days Orientation Course on FEMA at BCAS Conference
Hall on 16th, 17th, 23rd and 24th March 2018 wherein
14 sessions and a Panel Discussion were conducted
by eminent speakers from CA fraternity. A Total of 90
participants enrolled for the Course including from
outside Mumbai.
The learned speakers had an in-depth discussion on the
topics mentioned hereunder:
(1) Understanding FEMA – CA. Mayur Nayak, (2) Current
& Capital Account and Change of Residential Status – CA.
Manoj Shah, (3) Facilities for Non-Resident Indians – CA.
Rutvik Sanghvi, (4) FDI in Real Estate Sector and buying
and selling of Immovable Property in India & Outside India
– CA. Rajesh P. Shah, (5) Export and Import of Goods &
Services – CA. Gaurang Gandhi, (6) Setting up of a Liaison
Office, Branch Office & Project Office in India – CA. Natwar
Thakrar, (7) Overview of FDI – CA. Anil Doshi, (8) Sector
Specific FDI Regulations – CA. Naziya Siddiqui, (9) FDI in
Financial Sectors – CA. Harshal Kamdar, (10) Investment
on non-repatriation basis & FDI in Limited Liability
Partnership – CA. Niki Shah, (11) External Commercial
Borrowing (ECB) and Rupee Denominated Borrowing –
CA. Shabbir Motorwala (12) Setting up a Branch outside
India & Overseas Investment – CA. Paresh P. Shah, (13)
Compounding under FEMA – CA. Naresh Ajwani, (14)
Prevention of Money Laundering Act (PMLA) and FEMA
issues of dealing in Crypto Currency – CA. Dhishat Mehta,
(15) Brain Storming & Panel Discussion – Shri Dilip J.
Thakkar, Shri D. T. Khilnani, CA. Vishal Gada.
At the end, there was a brain storming session where
participants shared their thoughts with great zeal and
enthusiasm. The course was concluded with a Panel
Discussion under the chairmanship of CA. Shri Dilip
Thakkar where the participants exchanged their views
and raised queries which were thoroughly addressed
by panellists. Eminent faculties shared knowledge and
personal experience generously. The Course was very
well received and appreciated by the participants. The
sessions were very interactive and participants were
enlightened with the knowledge imparted by the speakers.
HRD STUDY CIRCLE
“Crash Course on Information Systems
Control and Audit (ISCA) and Law for CA Final
Students” held on 31st March, 2018 and 1st
April, 2018 at BCAS Conference Hall
The Human Development and Technology Initiatives
Committee organized a two-day crash course on
Information Systems Control and Audit (ISCA) and Law for
CA Students appearing in May 2018 final Exams on 31st
March, 2018 and 1st April, 2018 at BCAS Conference Hall.
The purpose of this crash course was to guide students
on ISCA and Law subjects and also cover important
topics and amendments to educate and prepare them for
May 2018 exams.
CA. Narayan Pasari, President BCAS,
in his opening remarks spoke about the
objective behind organising this crash
course. He encouraged the students to
actively participate in the activities of
the Students Forum. CA. Raj Khona,
the Course Co-ordinator introduced the
young faculty CA. Kartik Iyer and addressed the
participating students.
The Speaker excellently covered the important topics
namely Insolvency & Bankruptcy Code, Compromise,
Arrangements & Amalgamations, Overview of important
topics for May 2018 CA Final Exams along with Exam
Day Schedule and the key amendments applicable
thereof. He further gave useful tips to the students on how
to revise the subjects and suggested a model exam day
schedule to follow for achieving better results in Exams.
The feedback from participating students was very
positive and they learnt a lot from the sessions to equip
themselves to succeed in the exams with flying colours.
“8th Intensive Study Course on Advanced
Transfer Pricing” held from 5th to 7th April,
2018 at BCAS Conference Hall
International Taxation Committee organized the 8th
Intensive Study Course on Adv. Transfer Pricing on 5th , 6th
and 7th April, 2018 at BCAS Conference Hall. The course
was aimed at imparting advanced knowledge on the
practical aspects of understanding and implementing the benchmarking study. The sessions began with theoretical
aspect of benchmarking and thereafter deep-dived
into the aspects of identifying the functions performed,
assets utilised and risks assumed by the comparable
companies. It also touched upon the significance of
designing an efficient and effective transfer pricing system
with the importance as to when and how to apply various
transfer pricing adjustments that is defensible before tax
authorities and in court.
The sessions for 3 days
were conducted by Eminent
Faculties namely CA.
Vispi Patel, CA. Bhavesh
Dedhia, CA. Anjul Mota,
CA. Vaishali Mane, CA.
Darpan Mehta, CA. Gaurav
Shah, CA. Paresh Parekh, Ms. Archana Choudhary, Adv.
Sunil Lala and CA. Tushar Hathiramani. The sessions
focused on data mining for fact determination and correct
application of adjustments, wherever applicable. The
topics were explained along with presentations, practical
examples and case studies. Additionally, international
and Indian court rulings were also discussed.
The faculty members generously shared their knowledge and experience with the participants. The Course was
very well received and appreciated by the participants.
The participants were provided hands-on and thoughtprovoking
approach for determining right set of
comparables and for making right economic adjustments
to arrive at arm’s length margin.”
Total 55 participants enrolled for the Course including 10
from outstation.
HRD STUDY CIRCLE
Meeting on “Palmistry, Numerology and Tarot”
held on 10th April, 2018 at BCAS Conference Hall
Human Development and Technology Initiatives
Committee (HDTI Committee) organized a meeting
on Palmistry, Numerology and Tarot addressed by Ms
Vaishali Khemani. She started with the introduction on
Palmistry and importance of lines on palms and hands and
explained that Palmistry is a Beautiful Science. The hand
is a mirror of an Individual’s Personality. “Lakkeeren”.
The lines on the palm or rather on hand speak of the
direction the life can take. It speaks of the characteristics
of the person. She mentioned that the right time to see the
hand is after sunrise and before sunset and that lines in
the hand change every seven years. She also described
the importance of fingers, nails and symbols on hand
followed by finance, money, marriage and career etc. in
life. The different types of lines were explained in detail
and Tarot mechanism was also displayed.
It was overall a very interesting session for the participants
and also imparted awareness of some beautiful truths of
palmistry numerology and tarot. The participants enjoyed
and benefitted a lot from the session.
INDIRECT TAX STUDY CIRCLE
Meeting on “Goods and Services Tax – Clause
by Clause Analysis of E-way Bill Provisions
and related FAQs – Part II” held on 12th April,
2018 at BCAS Conference Hall
In continuation of the meeting on GST-Clause by Clause
Analysis of E-Way Bill Provisions -Part 1 held on 26th
February, 2018, Indirect Taxation Committee conducted
the 2nd part of the meeting on 12th April, 2018 at BCAS
Conference Hall where Group Leaders CA. Samir Kapadia
and CA. Samir Kasvala addressed the participants under
the chairmanship of CA. Janak Vaghani. The Speakers
dealt with the clause by clause analysis of E-Way Bill
Provisions-Part II in detail and responded to the queries
raised by the participants.
The meeting was very interactive and the participants
shared their practical experience and appreciated the indepth
analysis done and explained by the speakers on the
subject. The participants had a good learning experience
from the constructive discussions during the sessions and
benefitted a lot.
Workshop on “Triggers for Leadership
Transformation” held on 14th April, 2018 at
BCAS Conference Hall
Human Development and Technology
Initiatives Committee conducted a One
Day Workshop on “Triggers for Leadership
Transformation” on 14th April, 2018 at BCAS
Conference Hall which was addressed
by a world-renowned and professional
Trainer/Consultant & Leadership Coach,
Mr. Gopal Sehjpal.
The theme of the workshop revolved around, “If you know
what you want to become, then why don’t you become
that!” To explain that, Gopalji (as he is affectionately
known) described what triggers are, how they operate
and why one cannot sense them, etc.
The Speaker very lucidly explained the 20 ineffective habits
that most human beings have and also the 15 delusions
which usually people carry in minds to pressurize them
to think differently due to which they tend to ignore the
triggers that may help to take the leap forward towards
progress and advancement. The presentation overall
covered the concept of Triggers, practical tools and
integrated approach to planning to achieve the personal
goals and improve the lives.
The participants thoroughly enjoyed the program and
learnt a lot about the practical aspects of life.
Society News


Society News
CHARTERED ACCOUNTANTS’ PROGRAM IN
MANAGEMENT, BUSINESS & ACCOUNTING
ORGANIZED BY MPR & HDTI COMMITTEES
OF BCAS AT ISME CAMPUS
To hone the Management, Leadership and Technical skills
of Chartered Accountants to achieve growth, whether in
practice or in industry, Membership & Public Relations
Committee (MPR Committee) and Human Development
and Technology Initiatives Committee (HDTI Committee)
jointly organized Chartered Accountants’ Program in
Management, Business and Accounting (CAMBA) at the
ISME Campus, Lower Parel, which is equipped with the
latest facilities for a conducive learning environment. The
CAMBA Course was designed by BCAS along with the
Management Institute of ISME. The 1st batch of the course
started in May, 2017 and concluded in December, 2017.
.
With an eligibility criteria of minimum 2 years of postqualification
experience, the first batch saw participation
from 16 CAs in practice as well as those working with
Big 4s or in the industry. The participants shared their
experiences and ideas, problems faced in their respective
work environments and best practices employed.
The course, designed to conduct 120 hours of classroom
training of which 102 hours were dedicated to various
emerging aspects of Entrepreneurship, Management,
Human Resources, Strategy, Soft Skills and Marketing
was conducted by highly experienced faculty from ISME.
The subjects were taken up with a variety of interactive
pedagogical techniques including discussing case
studies, role playing, movies, model building and team
work by learned and experienced faculties like Prof.
David Wittenberg, Dr. Amarpreet Singh Ghura, Dr. A.
Doris Greenwood, Prof. Anjana Vinod, Dr. Ramkishen Y,
Prof. Omkar Pandharkame, Ms. Anubhuti Gupta,
Mr. Moksh Juneja and CA. Nikhil Srinivas.
The remaining 18 hours of the course included sessions
designed by the BCAS team on subjects relevant to the
professionals. The speakers and the topics discussed
during these well-conceived sessions in the 1st batch are
enumerated hereunder:
The participants thoroughly enjoyed their journey of
this long course, experiencing a transformation in their
perspective towards their profession.
It was indeed a very enlightening experience for the
participants who benefitted a lot from the sessions.
“Motivational Talk for Young Chartered
Accountants & Felicitation of CA’s cleared in
Nov’2017” held on 19th February, 2018 at BCAS
Conference Hall.
The Membership & Public Relations Committee organized
a motivational talk for Young Chartered Accountants on the
topic of “How to become an Extraordinary Professional?”.
The talk was addressed by CA. Mudit Yadav, a TEDx
Speaker and Success Coach.
The session began with the
opening remarks by CA. Chetan
Shah, Chairman, MPR Committee
who briefed the audience about
BCAS and its initiatives. He also
encouraged new CAs to become
members of BCAS. Few rank
holders of Nov’ 2017 were felicitated and they shared
their views on success in CA exams.
The Speaker CA. Mudit took up the following major issues
faced by young professionals:
How to choose the ideal career path for oneself?
Difference between an average and a star professional.
Habits of the most extraordinary professionals.
How to develop the mind-set of a true professional?
How to develop a sharper executive presence?
How can you be a pioneer of the future of CA profession?
CA. Mudit Yadav also shared his experiences and the
challenges he faced while carving out his career as
a motivational speaker, in unconventional and nontraditional
field.
The talk was attended by more than 150 young Chartered
Accountants and the participants benefited from the
experience shared by the Speaker.
“8th Residential Study Course on IndAS” held
from 22nd February to 24th February, 2018
Accounting & Auditing Committee organized its 8th IndAS
Residential Study Course (RSC) from 22nd to 24th February,
2018 at Hotel Gateway, Pune. The Course was conducted
to address the Ind AS implementation challenges being
faced as well as to impart knowledge of its execution to the
professionals. This would enable a smooth transition for
the corporate sector and also appraise them of impending
changes which are applicable in future. The Course was
attended by 110 participants from all across India.
This year’s RSC was structured with three sessions
based on Case Studies which involved group discussions.
The RSC also had four more papers for presentation by
eminent faculties.
RSC started with group discussion on First case study
paper by CA. Jayesh Gandhi on “Case Studies on Business
Combinations and Consolidated Financial Statements”.
The case studies highlighted the
complexities involved in carrying
out accounting for business
combinations and consolidation
as well as the evaluation of the
relevant consolidation standard
in specific circumstances.
The session commenced with the inaugural address by
CA. Narayan Pasari, President, BCAS. He urged nonmembers
enrolled for this course to become members of
BCAS and enumerated various activities/initiations being
undertaken by BCAS for the benefits of profession and
industry. The Chairman of the Committee CA. Himanshu
Kishnadwala gave introductory remarks on the design
and structure of the course and the purpose of selection
of the topics for group discussion and presentation.
Inaugural session was followed
by presentation paper on Revised
Audit Report Requirements by
CA. Vijay Maniar which covered
SA 701 on Key Audit Matters to
be applicable from FY 2018-19.
CA. Jayesh Gandhi analysed and
replied to the issues raised on the
Case Studies during the group discussion.
The 2nd day started with group
discussion on the paper by
CA. Arvind Daga on “Case
Studies on PPE and Financial
Instruments” that highlighted the
intricate issues on measurement,
recognition and impairment
under relevant standards. He
also made a presentation on his paper explaining finer
points of the standards as
well as dealing with the
issues which came up for
deliberation. CA. Raghu
Iyer presented the paper
on “Derivative and Hedge
Accounting” and explained
what is ‘derivative’, types
of hedges, its purpose and
importance in the commercial world.
There was another group
discussion on the paper by
CA. Archana Bhutani on
“Case Studies on Revenue
Recognition IndAS 115”. The
case studies dealt with typical
situations in various sectors
including real estate, bundled
services, FMCG and retail
distribution and also some other related issues. She
further made the presentation on her paper explaining
finer points and concepts and principles of revised IndAS
115 which is likely to be applicable from 1st April 2018.
The last day began with the
presentation on “IndAS 116
– Leases” by CA. Srinath
Rajanna who came all the
way from Dubai to address
the participants. It is for the
first time that an international
faculty has addressed an
IndAS RSC. He explained the
major differences in the revised
standard as compared to IAS 17 as also the thought
process for the same at IASB. Thereafter, CA. Himanshu
Kishnadwala gave presentation on “Global Developments
in IFRS” and made the participants aware about the projects
in pipeline at IFRS for the next five years and the way it will
impact industry as well as the profession. He also explained
the process of development of standards at IFRS as also
how as a stakeholder everybody can participate in the
said process.
The concluding session was presided over by the
Chairman CA. Himanshu Kishnadwala who acknowledged
the contribution of the faculty, group leaders and other
participants for the success of the RSC.
Participants were satisfied with the level of discussion
and the value imparted through the RSC.
Workshop on “Transfer Pricing – CBCR and
Master File” held on 27th February 2018 at
BCAS Conference Hall
“The Workshop on Transfer Pricing – CBCR and Master
File was conducted on 27th February 2018 at BCAS
Conference Hall which was attended by over 110
participants from profession and industry.
The speakers CA. Hasnain Shroff
and CA. Anjul Mota provided a
comprehensive insight on the
conceptual understanding and
interpretation of legal provisions
and other key issues surrounding
the CBCR and Master File. This
was followed by case studies
touching upon intricacies in filing
the CBCR and Master File. The
speakers also outlined some
practical suggestions in dealing
with inherent issues.
The Workshop was well received
by the participants who benefitted
a lot from the sessions.
Interactive Fire Side Chat on “Strengthening
the Profession” held on 28th February, 2018 at
IMC, Churchgate
The CA profession is passing through tectonic shifts which
have posed various challenges for the professionals. To
address the issues of profession and challenges faced
by the CA firms, review the regulatory impediments, learn
the possible changes in this regard for strengthening
and developing the capacity of Indian CA firms, enhance
the competence and improve the visibility amongst the
business community, BCAS organised a Fire Side Chat
with the experts from the profession and industry.
The Panelists for the discussion were:
1. Mr. M. Damodaran, Former Chairman, SEBI
2. CA. Mukund Chitale, Former President, ICAI
3. CA. T. N. Manoharan, Former President, ICAI
The Fire Side Chat was moderated by CA. Himanshu
Kishnadwala, Past President, BCAS.
President CA. Narayan Pasari in his opening remarks
stated that presently the Chartered Accountancy profession
is in a constant state of flux on account of profound changes
in the sphere of economy, regulation, technology & society
that throw many challenges resulting in higher complexity.
CA. Himanshu Kishnadwala while opening the chat
referred to the Prime Minister’s address to the CA
community on the CA foundation day on 1st July, 2017 and
threw light on the various statistics about the members and
the firms. He also mentioned as to what can be done to
improve the profession and counter the challenges of the
bigger multinationals. CA. Himanshu also talked about the
SEBI Order in Satyam Case, RECO Scam, PNB Scam and
Supreme Court Order on multinational firms etc.
The Fire Side Chat commenced with the expert opinions
of the panelists:
CA. Mukund Chitale started with a comment of Nani
Palkhivala “The time has come to see as to who will shave
the barber”, which was citing Institute’s motto given by
Yogi Anand “Ya esa suptesu jagarti”. He expressed that
strengthening the profession doesn’t come automatically
and for that there has to be an introspection as to what to
do with failures individually & in a communicative manner
because any profession which is rendering service exists
as long as society expects it to exist. Quality of our
work should match the Society’s expectations at the
highest level.
Mr. M. Damodaran was of the view that professionalism
is not derived just from academic qualification.
Professionalism is to contribute to the informed discussion
and debate where professionals should set the agenda
and plan in the direction of strengthening the profession.
He emphasized that Chartered Accountancy Course is
enhancing the quantity but must also ensure that quality
shall not be compromised.
CA. T. N. Manoharan’s remarks were amply supported with
hardcore statistics of the CA profession. He stated that
CA firms lack playing the role of knowledge partner. Each
CA firm should ensure that any new article who comes to
the office be given an open idea that they are welcome to
the firm and can grow to the level of employee, manager,
director or even can become partner of the firm. Every firm
should have partners in different age groups that is how
succession happens and the seniors will have smooth
exit after handholding and guiding. The focus should not
be only on tangibles like top line, bottom line, physical
infrastructure etc. but also on the quality & integrity aspects.
One of the issues of Indian firms is reluctance to invest
in Infrastructure and growth projects. He said that we can
follow principles having eternal utility for humanity and we
can adopt values which will hold good forever.
Later on CA. Himanshu Kishnadwala posed some
pertinent issues faced by the profession, for the response
of the panelists, which were deliberated in great depth.
Participants were provided fair insights as to the current
state of affairs in the profession, how the society perceives
the profession and what should be the measures initiated
to shore up the image of the profession.
The participants got extremely enlightened with the
invaluable insights from discussion by the expert panelists.
ITF STUDY CIRCLE
Meeting on “Proposed Amendments to
International Taxation Provisions in Budget,
2018” held on 15th March 2018 at BCAS
Conference Hall
The International Taxation Committee organized a panel
discussion on 15th March, 2018 at BCAS Conference Hall,
to analyze the impact of the amendments to International
Taxation provisions, proposed in the Union Budget, 2018.
The meeting was kicked-off with a discussion on the
proposed amendment in the Explanation 2 (a) to section
9 (1) (i) where if a non-resident appoints a person who
will negotiate but not conclude contracts on his behalf, it
may still constitute a Business Connection in India. It was
discussed how the OECD had reviewed the definition of
a Permanent Establishment in Action Plan 7 to prevent
avoidance of tax by fragmentation of business and to align
with the modified definition of MLI. The discussion was then
turned to the newly introduced Explanation 2A in section
9 (1) (i) which clarifies meaning of a significant economic
presence. It was also discussed that there was a need for
proposing this amendment as a result of digital economy,
whether physical presence of a person in a country is
no longer the only measure of an economic connection,
challenges in implementing such an amendment, impacts
of such amendments on taxation, etc.
The session was very interactive and the participants
benefitted a lot from the panel discussion.
INDIRECT TAX STUDY CIRCLE
Meeting on “GST E-Way Bill Provisions –
Analysis and Demo of Online Preparation”
held on 17th March, 2018
The Suburban Study Circle organized a meeting on GST
E-way Bill Provisions on 17th March, 2018 which was
addressed by CA. Manish Gadia & CA. Jignesh Kansara.
Speaker CA. Manish Gadia discussed the revised
provisions and rules regarding the E-Way Bills Under
GST and its applicability wef 1st April, 2018. He made
detailed presentation on the following issues:
a) Procedure for generation of e-way bill, b) Multiple
Consignments, c) Exemptions, d) Cancellation, e) Validity,
f) Acceptance or Rejection, g) Verification of documents,
h) Case Studies etc.
Speaker CA. Jignesh Kansara made a step-by-step online
demonstration of the process regarding various aspects
of E-Way bill through the GSTN portal. He covered the
following activities in relation to the e-way bills:
a) Registration as dealer and transporter, b) Creation of
masters for clients, products and godowns, c) Generation
of Part A and Part B of E Way Bills, d) Generation of
Consolidated E-way bill, e) Cancellation / Modifications in
E-way Bills generated earlier, f) MIS reports.
He also threw light on the various technical and statutory
glitches faced by the dealers and gave suggestions for
corrective actions.
The participants benefited from the sessions and
experience shared by the learned speakers.
Society News
Indirect Tax Laws Study
Circle
Meeting on “Goods and Services
Tax–Discussion on various issues on Composite Supply / Mixed Supply, WCT and
Valuation- II” held on 16th January, 2018 at BCAS Conference Hall
In continuation of the last meeting,
Indirect Taxation Committee conducted a Study Circle Meeting on “Goods and
Services Tax–Discussion on various issues on Composite Supply / Mixed Supply,
WCT and Valuation- II” at BCAS Conference Hall which was addressed by CA. Bijal
Doshi. The Speaker discussed upon the balance case studies which could not be
covered in the previous meeting and completed the discussions on the subject.
The meeting was quite interactive and highly
appreciated by the participants. Participants shared their practical experience
during discussion and benefited a lot from the session.
Special Joint Study Circle Meeting on “US
Tax Reforms- Impact of Domestic and International Provisions” held on 22nd
January, 2018 at BCAS Conference Hall
International Taxation Committee organised a
Special Joint Study Circle Meeting on 22nd January, 2018 at BCAS
Conference Hall which was addressed by Mr. Shishir Lagu, Mr. Atul Deshmukh and
Mr. Kavit Sanghvi. All the Study Circles and Groups which operate under the
Committee were part of this meeting which had a common interesting topic. The
speakers covered the latest US tax reforms in detail. They also explained the
nuances of the differences in US tax laws due to these reforms and the impact
they can have on the Indian entities which have invested in USA and doing
business there.
The meeting was very interactive and the
speakers answered all the queries raised by the participants. The participants
benefitted a lot from the rich experience of the learned speakers.
Lecture Meeting on “Implementation &
Issues on E-way Bill-Way Forward” held on 24th January, 2018 at BCAS
Conference Hall
Mr. Pramod Bargaje
Dy. Commissioner-LTU4, Mumbai
Mr. Chandrashekhar Thakur,
Dy. Commissioner
Indirect Taxation Committee organised the
captioned Lecture Meeting at BCAS Conference Hall where the eminent faculty
from the GST Department, Govt. of Maharashtra – Shri Pramod Bargaje, Dy.
Commissioner-LTU4, Mumbai, Shri Chandrashekhar Thakur, Dy. Commissioner and
Shri Mukund S. Panhalkar, Asst. Commissioner were invited to address the
members. The objective of the meeting was to spread awareness about the
‘Implementation & Issues on E-way Bill – Way Forward’ and equip the
businesses and professionals with the knowledge, to keep themselves well
prepared for its compliance. The Goods and Services Tax Act was implemented
earlier this year. The Act contains several features, one key anti-evasion
measure amongst these is the E-Way bill reporting system. Recently, the Goods
and Services Tax Council decided to roll out E-way bills for interstate
movement of goods from 1st February 2018 and hence, importance of
this meeting.
The speakers enlightened the participants
about the salient constituents of E-Way Bill, issues likely to be encountered
by assessees going forward and the process and procedure to be followed, to
overcome any hindrance in successful implementation of the bill. The faculty
also explained the legal aspects of E-Way Bill and conducted a mock trial of
the actual filing process, to impart practical training to the members.
The meeting was also live streamed for the
participants who could not attend in person. Around 425 participants attended
the meeting including online viewers. It was indeed a very enriching experience
for the participants who benefitted a lot from the meeting.
ITF STUDY CIRCLE
Meeting on “Select Decisions on
International Tax” held on 30th January, 2018 at BCAS Conference
Hall
ITF Study Circle organised a meeting on the
subject which was addressed by CA. Deepak Kanabar. The Speaker briefly gave an
overview of the importance of recent judicial precedents and the ever
increasing controversies over the concept of Permanent Establishment and
Business Connection in India. He took the Group through the following decisions
discussed at length.
– Martrade
Gulf Logistics FZCO-UAE [2017] 88 taxmann.com 102 (Rajkot – ITAT)
–
Formula One World
Championship Ltd 2017 – 394 ITR 80 (SC)
– Production
Resource Group – 2018–89 Taxmann.com 219-AAR
There was active participation from the
members present with various nuances of the concept of PE and business
connection being brought out. The attendees benefitted a lot from the session.
“GST Summit” at
“Finbridge Expo” held on 3rd and 4th February, 2018.
As a part of its ‘Networking’ initiative,
Bombay Chartered Accountants’ Society joined as the “Knowledge Partner for GST
Summit” at the “Finbridge Expo” held on 3rd and 4th February,
2018 at Nehru Centre, Worli. Finbridge Expo is an exhibition and conferences
platform which caters specifically to Financial Services & Technology
industry. They requested the Society to share its expertise on GST with their
participants.
On 3rd February 2018, at the
“Finbridge GST Summit”, three of our eminent speakers represented our Society.
Our panel of GST experts addressed on the subjects given below:
CA. Shreyas Sangoi shared his expertise on
‘GST on Stock Brokers.’
CA. Samir Kapadia gave valuable insights on
‘GST on Financial Services (Excluding Stock Brokers & Banks).’
CA. Mandar Telang shared knowledge about
‘GST on Software / Technology Services.‘
The Summit received an overwhelming response
from the participants and the visitors with knowledge sharing and enriching
experience gained by them on these GST topics.
“Public Lecture Meeting on Direct Tax
Provisions of the Finance Bill 2018” held on 6th February, 2018
Adv. S. E. Dastur
The Public Lecture Meeting of the Society on
the Direct Tax Provisions of the Finance Bill 2018 by Senior Advocate Mr S.E.
Dastur was held at Yogi Sabhagruha on 6th February, 2018. This was
the 30th lecture meeting by him and the 53rd of the
Society.
The lecture meeting was live streamed and
witnessed by more than 12,000 persons including online viewers. The meeting
commenced with the singing of National Anthem. CA. Narayan Pasari, President,
BCAS welcomed and introduced the speaker Mr. S. E. Dastur citing his
intellectual charm that makes this meeting more special. He also touched upon
the Government initiatives on Agricultural Sector, Rural India and Health
Coverage etc. in the Budget Proposals announced by the Finance Minister.
CA. Narayan Pasari, commended the
contribution of Mr. S.E.Dastur in making the Budget Lecture Meetings of BCAS so
special, through his insightful analysis year after year. He informed the
gathering that this will be Mr. Dastur’s last budget lecture meeting at BCAS.
The Society also felicitated Mr. Dastur on this occasion. This was followed by
display of a small film on the journey of Lecture Meetings by Mr. S. E. Dastur
over the years and his association with BCAS, which was sheer nostalgia.
Mr. Dastur started his speech by detailing
the historical memories of the previous budgets of various FMs since 1948-49.
He talked about the Finance Minister’s speech having emphasis on the various
measures announced in the budget. He also discussed on the various new
insertions/amendments in areas of Long Term Capital Gains, Definition of
Accumulated Profits, Financial Transactions and changes in Assessment &
Reassessment procedures etc. The talk also covered other aspects of the Direct
Tax Provisions i.e. Income from Business and Profession, Amalgamation, Change
in Shareholding, Exemption from Tax under Sec 10 (23C) and Sec 54EE (LTCG),
application for Charitable Purposes, Rationalisation and Transparency etc. which
were part of Finance Minister’s speech.
Mr. Dastur gave his explicit views on every
important tax proposal notified under the Finance Bill 2018.
The audience were mesmerised by his speech
and benefitted a lot. The meeting ended with a huge round of applause and
appreciation by the participants.
HDTI Study Circle
Meeting on “Positive Ageing & Geriatric
Medicine” held on 13th February, 2018 at BCAS Conference Hall
HDTI Study Circle organised a meeting on
“Positive Ageing & Geriatric Medicine” on 13th February, 2018 at
BCAS Conference Hall which was addressed by Dr. Arvind Pednekar. Dr. Pednekar
gave the presentation on Ageing and Geriatric problems being faced by the old
people with advancing age, be it physical, mental or spiritual. He explained
the causes and effects of old age problems and preventive steps i.e. Exercise,
Yoga and Meditation amongst others to overcome such life threatening
hindrances.
Majority of the participants in the meeting
belonged to the middle and old age group. At the end, there was Q&A session
where the Speaker responded to all the queries raised by the participants.
The meeting was very interactive and the
participants benefitted a lot from the session.
“Analysis of Economic Survey & Budget
2018” held on 15th February, 2018 at BCAS Conference Hall
International Economics Study Group under
the aegis of International Taxation Committee conducted a meeting on Analysis
of Economic Survey & Budget 2018 on 15th February, 2018 at
BCAS Conference Hall. The group discussions were led by Group Leaders CA. Kapil
Sanghvi, CA. Harshad Shah, CA. Rashmin Sanghvi & CA. Milan Sangani, who
brought out very interesting perspective on Global and Indian economy and the
challenges facing Indian Economy.
The speakers presented their views and findings
on Analysis of Economic Survey & Budget 2018. Some key points of discussion
were: (i) State of Indian Economy-Sweet spot to sudden fall (ii) GDP Growth
trends (iii) Rupee appreciation (iv) India`s decoupling (v) Twin Balance Sheet
challenges (vi) Inflation trend (vii) Oil Price increase (viii) Investment and
saving slowdown (ix) 4 headwinds (hyper globalisation repudiation, pre mature
de industrialisation, human capital regression & agriculture stress).
Adverse impact of climate change on agriculture and concept of export of water
was also explained. The group also deliberated on Modi Care (World`s largest
national health protection scheme), health export trend, agriculture and rural
economy and health & education.
The meeting was very informative and the
participants went enriched from the session.
Direct Tax Laws Study
Circle
Meeting on “Recent Judgements under Direct
Tax laws” held on 22nd February 2018 at BCAS Conference Hall
Direct Tax Study Circle organized a meeting
on ‘Recent Judgements under Direct Tax laws’
at BCAS Conference Hall addressed
by the Group Leader for the session Adv. Dharan Gandhi.
The Speaker mentioned that being tax
professionals, it is utmost important to keep pace with the important decisions
pronounced recently by various judicial authorities and thus briefly gave an
overview of the recent important rulings and decisions as enumerated below:
Decision |
Issue relating to |
– National Travel Service vs. CIT [CA No. 2068-2071/2012 |
Deemed Dividend [Section 2(22)(e)] |
– IL and FS Energy Development Co. Ltd. 399 ITR 483(Del) |
14A disallowance |
– H T Media Ltd. vs. PCIT 399 ITR 576(Del) |
14A disallowance |
– PCIT vs. Ramniwas Ramjivan Kasat 248 Taxman 484(Guj) |
Cap Gain vs Business Income |
– CIT vs. Modipon Limited 299 CTR 306(SC) |
Allowability of deduction u/s. 43B |
– Rajat B Mehta vs. ITO ITA No. 19/Ahd/2016 (Ahd) |
Deduction u/s. 54 |
– Paradise Inland Shipping Pvt. Ltd. 400 ITR 439 (Bombay) |
Addition u/s. 68 |
– Bengal Finance & Investments Pvt. Ltd. ITA 337/2013 |
14A disallowance vis-a-vis. Book profit |
– CIT vs. Sinhgad Technical Education Society 297 CTR 441(SC) |
Assessment u/s. 153C |
– CIT vs. Glenmark Pharmaceuticals Ltd. 398 |
Interest u/s. 234B |
– Maharaj Garage & Company vs. CIT 400 |
Penalty u/s. 271(1)(c) |
– Sanjay Bimalchand Jain vs. Pr CIT ITA |
Capital gain vs. Business income [Penny |
– Pr CIT vs. Prem Pal Gandhi ITA 95/2017 |
Penny stock |
The meeting was quite interactive and the
participants raised many queries which were thoroughly answered by the learned
Speaker.
16th Residential Leadership
Retreat held on 23rd and 24th February, 2018
HDTI Committee organized its Sixteenth
Residential Retreat on 23rd and 24th February 2018, at
Rambhau Mhalgi Prabodhini (Training Centre) on the theme of ‘Saptapadi of
Happiness in family’ (Seven vows of happiness in family) which was addressed by
Mr. Mahendra Garodiya.
Past President
CA. Mayur Nayak in his key note inaugural address remembered Late Shri
Pradeepbhai Shah, the architect of such retreats. He complimented the Chairmen
of the Committee, all these years for this course. Appreciating significance of
such residential workshop for shaping the better values in life, he touched
upon Family and Happiness. Life coach Mahendra Garodiya, an avid reader and
strong follower of philosophy propounded by Chanakya, was ably assisted by
Deepa Garodiya in guiding the participants through important concepts and vows
to be taken by the family. In his study material, following key points were
covered:
– Always
communicate your expectations on core important values of life viz:
Security, adventure, importance, love, growth and contributions. While,
communicating with the spouse and members of the family, it is always better to
be respectful than to be right. The most important to keep in mind is never to
give unsolicited advice.
– Build
a culture of values appreciating interdependence. Always put others
first. Understand before being understood. Be honest and truthful in each
relation. Involve each and every member of the family while taking important
decision.
– Define
Common Goal covering self, spouse and family.
– Dharma
Nishtha: Dharma is not religious ritualism. Understand the core
personality of the self, spouse and family members on parameters of three Gunas
i.e. Rajas, Tamas and Sattva. Understand and appreciate that dharma is root
of happiness, artha is root of dharma, rajya is root of artha, Victory is the
root of rajya, respect is root of victory, therefore one ought to respect
elders and offer service to them.
– Family
Legacy: Understand and appreciate that money is only a means to an end
and not an end in itself. Money can facilitate security, status, enjoyment,
control, opportunity and growth. By giving money for welfare, you get better
rewards
– Growth:
Saptang (Holistic): There are seven dimensions of growth and happiness, Swamy
(Head of the family), Janpad (children and Family members), Dand (Family rules
and behaviours), Mitra (family coach), Kosha (family wealth and culture),
Amatya (supporter to the head of the family) & Durga (family name, fame and
brand). When all these aspects are correctly balanced, they bring in happiness.
In the evening on the first day one of the
participants presented nice details of Maharashtra’s folk art Warli painting.
It was followed by audio visual film titled “Down the Memory Lane” featuring
photographs and glimpses of earlier HDTI RRC. It was a tribute to Late Shri
Pradeepbhai Shah and many others who actively participated and encouraged
Leadership retreats.
In a concluding session on second day, each
participant exchanged rose with other participant expressing gratitude and
appreciation and carried home beautiful memories of joy and happiness.
Interactive session with Students for
“Success in CA Exams” held on 25th February, 2018
HDTI Committee jointly with RVG Educational
Foundation organised an Interactive session with Students called “Success in CA
Exams” on 25th February, 2018 at RVG Hostel, Andheri which was
addressed by the speakers CA Mangesh Kinnare and CA. Kartik Iyer.
President CA. Narayan Pasari welcomed the
students and inspired them to work sincerely, diligently as CA Students during articleship
and also while preparing or appearing for CA exams. He exhorted that Youth is
the future of our country for the Nation building.
In the first session CA. Karthik Iyer shared
his experience and the technique of macro and micro planning as to how to
prepare a time table and study at a time as per one’s own biorhythm. How to
balance between studies of various subjects and avoid distractions. He
suggested to appear for at-least two mock test papers for each subjects before
the exams. This enables the student to evaluate his limitation, speed, and
ensure that he attempts a full paper.
In the second session, Mr. Mangesh Kinare,
Member of Central Council of ICAI and Ex-Vice Chairman of Board of Studies and
Ex-Member, Examination Committee shared his views from the perspective of the
Institute. He clarified many doubts of the students and advised them to read
study material and practice manuals of ICAI. He mentioned that the website and
monthly Students Journal of the Institute cover very interesting study material
for the benefit of the students.
Mr. Phaneesh Reddy from Vijayawada who
scored 4th rank in the Final exam of ICAI in November 2017 shared
his views through a video recorded message.
The session was very interactive and
speakers gave very useful insights to the students to prepare and excel in the
CA exams
Indirect Tax Laws Study
Circle
Meeting on “Goods and Service Tax – Clause
by Clause Analysis of E-way Bill Provisions and related FAQs” held on 26th
February, 2018 at BCAS Conference Hall
Indirect Tax Laws Circle conducted another
meeting on 26th February, 2018 on the subject “Goods and Service Tax
– Clause by Clause Analysis of E-way Bill Provisions and related FAQs” at BCAS
Conference Hall. The discussions were led by group leaders CA. Saumil Kapadia
and CA. Samir Kasvala under the chairmanship of CA. Janak Vaghani. The speakers
dealt with the clause wise analysis of E-Way Bill provisions and related
queries in depth. Members also shared their practical experience which was
beneficial for one and all present in the meeting.
The meeting was highly appreciated by the
members for the valuable insights given by the speakers. _
Society News
Indirect
Tax Laws Study Circle
Study Circle
Meeting on “Goods and Services Tax – Composite Supply, Mixed Supply, Works
Contract and Valuation” held on 21st December, 2017 at BCAS
Conference Hall
Indirect Tax
Laws Study Circle convened a meeting on 21st December, 2017 at BCAS
Conference Hall which was addressed by Group Leader CA. Bijal Doshi. The
Speaker discussed various issues post GST roll out such as Composite Supply,
Mixed Supply, Works Contract and Valuation etc. with relevant case
studies. Participants also shared their practical experience in dealing with
the above issues. The meeting was quite interactive and participants benefitted
a lot from the meeting.
Non
Residential Study Course on Ind AS held on 21st & 22nd
December 2017.
Accounting
& Auditing Committee organised a 2 days’ Non-Residential Study Course
(NRSC) on Ind AS on 21st and 22nd December, 2017 at Hotel
Novotel, Juhu. The NRSC was structured into 2 Case studies, 3 Presentation
papers and a Panel Discussion which dealt with important aspects of Financial
Instruments Standards (Ind AS 32, 107 and 109) perspective for Banks, NBFCs and Other Financial Institutions.
CA. Narayan
Pasari, President, BCAS in his inaugural speech, gave a glimpse of the
activities being carried out by BCAS and its contribution to the CA Profession
and also invited the non-member participants to become members of BCAS.
CA. Himanshu
Kishnadwala, Chairman of Accounting and Auditing Committee outlined the theme
of the 2 day NRSC, which focused on Ind
AS related to financial instruments including classification, measurement,
impairment, disclosures and first time adoption issues.
The 1st
group discussion was held on the paper of CA. Rukshad Daruvala on Financial
Instruments-Classification (Business Model) and Measurement. CA. Rukshad
Daruvala while addressing the participants gave replies to all the queries
raised at the group discussion. It was followed by CA. K. G. Pasupathi’s paper
on Derivatives and Hedge accounting. Thereafter, CA. Ajith Vishwanathan
presented his paper on Ind AS 101 on First Time adoption issues for financial
instruments.
CA. Rukshad N.
Daruvala
On the 2nd
day, group discussion was held on the paper of CA. Charanjit Attra carrying
case studies on Financial Instruments on Impairment and the ECL Model. CA.
Charanjit Attra then addressed the participants on his paper and answered the
questions raised by them. After this, CA. Manan Lakhani presented his paper on
Disclosure requirement-Instrument and other related disclosures and explained
the same in detail.
CA. K.G. Pasupathi
CA. Ajith Vishwanathan
The last
session included the Panel discussion with CA. Pinky Mehta, CFO of Aditya Birla
Capital Ltd. and Mr. Gobind Jain, EVP of Kotak Bank, as the panellists for
discussion on Implementation Issues of IndAS for Financial Institutions, Banks
and NBFCs. The discussion was moderated by CA. Drushti Desai and the Chairman
of the Committee CA. Himanshu Kishnadwala, and various issues raised by the
moderators and participants were debated and replied by the panellists.
CA. Charanjit Attra
CA. Manan Lakhani
Panel Discussion: L to R – CA. Gobind Jain, CA. Himanshu Kishnadwala, CA. Pinky
Mehta, and CA. Drushti Desai
The program
was attended by 66 participants including many from Banks and NBFCs. It
was indeed an enriching experience for the participants and they benefitted a
lot from the deliberations at the NRSC.
“Data
Analytics for Audit and Business Decision Making-Hands on Training Work-shop”
held on 22nd December, 2017 at BCAS Conference Hall
CA. Nikunj S. Shah
CA. Saran Kumar
HDTI Committee
organised a meeting on “Data Analytics for Audit and Business Decision
Making-Hands on Training Workshop” on 22nd December, 2017 at BCAS
Conference Hall, to discuss the advance techniques of data analytics for Audit
and Business decision making.
The faculties,
CA. Nikunj Shah from Mumbai and CA. Saran Kumar from Hyderabad took on the
interactive and knowledge sessions where participants received hands-on
training on real life data from business and audit world. While CA. Nikunj Shah
focussed on how analytics can be used for business decision making, CA. Saran
Kumar shared his experience of implementing analytics in audit scenarios. The
focus of both the sessions included reading and interpreting results of
analytics followed by brain storming on how these interpretations can be used
in the decision making process.
The
participants found the sessions very enriching and benefitted a lot.
Direct
Tax Laws Study Circle
Meeting on
“Important Income Tax Rulings of 2017” held on 4th January 2018 at
BCAS Conference Hall
Direct Tax
Laws Study Circle of the Taxation Committee conducted a meeting on ‘Important
Income Tax Rulings of 2017’ at BCAS Conference Hall. The Chairman of the
session CA. Saroj Maniar gave the opening remarks and referred to the
importance of judicial precedents. The group leader CA. Priyanka Jain briefly
gave an overview of a
few important rulings and discussed the following decisions at length:
– CIT
vs. M/s. Spice Enfotainment Ltd.: Civil Appeal No. 285 of 2014 – Assessment
framed on a non-existent amalgamating company is void ab initio.
– Godrej
& Boyce Manufacturing Company Ltd. vs. DCIT [2017] 394 ITR 449 (SC) –
Applicability of section 14A to dividend income which is subject to DDT.
– Siemens
Public Communication Network (P.) Ltd. vs. CIT : [2017] 390 ITR 1 (SC) –
Subvention received by a loss making subsidiary from its parent company
– CIT
vs. Madhur Housing and Development Company Civil Appeal No. 3961 of 2013
(SC) – Deemed dividend income u/s. 2(22)(e).
– CIT
vs. M/s. Vodafone Mobile Services Ltd. –
I.T.A. Nos. 331 of 2017 (AP&TS HC) – Automatic stay vacation in view
of third proviso to section 254(2A) of the Act.
– Claris
Life Sciences Ltd. v. DCIT [2017] 59 ITR(T) 450 (Ahmedabad – Trib.) (SB) –
Penal liability under section 221(1) in case of non payment of advance tax at
time of filing original return.
– ACIT
vs. Vireet Investments [2017] 58 ITR(T) 313 Del- Trib (SB) – Non-
applicability of methodology of computing disallowance under Rule 8D to MAT.
– B.
A. Mohota Textiles Traders Pvt. Ltd. vs. DCIT : ITA No. 73 OF 2002 (Bom HC)
– Non-lifting of corporate veil in case of family settlement involving a
corporate entity.
– Palam Gas Service vs. CIT [2017] 394 ITR
300 – Disallowance u/s. 40(a)(ia) would get triggered on non-deduction of
TDS not only on amount which is payable as on the last day of the year, but
also on amount already paid during the year.
– ACIT
vs. Shri Dilip Ranjrekar ITA No.858/Bang/2016 (Bangalore ITAT) – EPF
interest exemption only upto retirement date – subsequent interest till
withdrawal is taxable
– Late
Shantidevi Bimalchand Jain vs. PCIT : ITA No. 18/2017 (Bombay) – Bogus Long
Term Capital Gains from Penny Stocks.
– DCIT
vs. M/s Narayani Ispat Pvt. Ltd. : ITA No.2127/Kol/2014 –
Interest paid on delayed payment of TDS is allowable as deduction.
The meeting
was very interactive and participants benefitted a lot from the session.
HRD
Study Circle
Human
Development Study Circle Meeting on “Live Stress Free” held on 9th January,
2018 at BCAS Conference Hall.
HRD Study
Circle of Human Development and Technology Initiatives Committee convened a
meeting on ‘Live Stress Free’ at BCAS Conference Hall which was addressed by
Ms. Zenobia Khodaiji who deliberated on the various Aspects of Living Stress
Free Life. She explained the mantra of stress free mind to lead a happy,
peaceful and successful life i.e. how to overcome stress by confidence,
self-esteem, focussed and proactive approach etc. to accomplish the
desired outcomes and objectives. She also deliberated on many other ways of
destressing e.g. talking, exercising, breathing, meditation etc. to gain
much peace and energy for a satisfying and fulfilling life.
The
participants appreciated the insights given by the Speaker and benefitted a lot
from the meeting.
Student
Study Circle
Meeting on
“Computation of ALP and issues in TP Scrutiny” held on 12th January
2018 at BCAS Conference Hall.
Students Forum
under the auspices of HDTI Committee of the Society organised a Students’ Study
Circle on ‘Computation of ALP and issues in TP Scrutiny’ on 12th January,
2018 at BCAS Conference Hall which was led by student speaker Mr. Vismay Tolia
under the chairmanship CA. Janvi Vakil. The objective of the study circle was
to provide a blend of conceptual clarity on Arm’s Length Price and practical
intricacies and issues in computation of the same.
Mr. Vismay
Tolia covered the topic on Arm’s Length Price using comparables with examples
in a lucid manner and also practically demonstrated the methodology applied in
arriving at the price.
The Study
Circle meeting proved to be a great value additive experience for students
especially for those who were not aware of the practicalities of Transfer
Pricing. It also proved to be a wonderful experience for the student members
and a platform to resolve their various doubts regarding Transfer Pricing.
The convenors
of the Students Study Circle Mr. Parth Patani & Mr. Prathamesh Mhatre urged
the students to stay connected with Students Forum through social media and
send their feedback and suggestions about the study circle, whilst encouraging
them to be a part of the Student Forum.
The meeting
was quite interactive and the participants benefitted a lot from the meeting.
Lecture
Meeting on “Future of Oil & Gas Industry” held on 19th
January, 2018 at BCAS Conference Hall.
The captioned
lecture meeting, organised at BCAS Conference Hall, was addressed by Padma Shri
Dr. Rabi Bastia, a renowned persona in the Hydrocarbon Industry who put India
into international Oil & Gas map in a short span of time. The meeting
commenced with the opening remarks by CA. Narayan Pasari, President, BCAS who
briefly touched upon the subject, followed by introduction of the Guest Speaker
by CA. Rashmin Sanghvi. The meeting was also live streamed for the participants
who could not attend the lecture in person.
Padma Shri
Dr. Rabi Bastia
The Speaker
explained about the unprecedented volatility observed in oil prices in recent
times from a high of $145/b in June, 2008 to a low of $27/b in Jan, 2016 mainly
due to Global unrest, OPEC production controls & Forex Volatility in
Dollar. He also brought out evolution of Electric Car & “transportation as
a service (TaaS)” business model and mentioned that there would be generation
of newer employment opportunities. The shift to clean energy could also bring
Environmental, health and social benefits and there could be barriers to
electric vehicles in terms of time line and storage issues besides grid related
issues.
Dr. Bastia
also talked about India’s long-term solar potential which could be unparalleled
in the world since it has the ideal combination of both high solar insolation
and a big potential consumer base density. When solar & wind energy is
unavailable, alternatives will be needed to provide more power to the grid. As
a result, there is no unique solution, no either/or to our energy demands.
According to him, the ultimate solution is a balanced mix of Oil, EVs
and Renewables.
Finally, the
Speaker brought out the theme “Man has evolved… so has Technology” by
highlighting changes brought in by Cell Phone Revolution, Uber`s Model and if
the same can be replicated in energy & transportation, we would have some
respite from Global Warming. The Speaker ended his talk with a theme “Man
has overpowered crises in the past; The
future will be no different.”
At the end,
the floor was opened for Q&A session wherein the Speaker addressed all the
queries of the audience to their utmost satisfaction.
The meeting
was very interactive and the participants benefitted a lot from the insights
given by the
learned Speaker. _
Society News
FEMA Study Circle
Study Circle Meeting on
“Bitcoins – Tax and Regulatory Implications” held on 19th April,
2018 at BCAS Conference Hall
International Taxation
Committee organized the meeting at BCAS Conference Hall which was led by Group
Leader CA. Isha Sekhri.
The Group Leader explained the concept and modalities of crypto currency
and also discussed tax implications on dealing in Bitcoins. She also discussed
the risks, including the financial, operational, legal, customer protection and
security related risks that the users, holders and traders of Virtual
Currencies (VCs) are exposed to. The members also deliberated upon the
acceptability of crypto currency in India and about its status around the
globe.
The Speaker further shared
her knowledge and experience on various related issues which was a valuable
takeaway for the participants.
Suburban Study Circle
Study Circle Meeting on
“Practice Management for Small and Mid-size CA Firms” held on 21st April, 2018
Suburban Study Circle
organized a meeting on Practice Management for Small and Mid-size CA Firms on
21st April, 2018 at Bathia & Associates LLP, Andheri which was
addressed by CA. Atul Bheda.
The speaker made detailed
presentation on the issues faced by small and mid-size Chartered Accountancy
firms such as: a) Billing, b) Recovery of Fees, c) Staff recruitment and
training, d) Time management, e) Delegation of work to staff, f) Practice
development and g) Infrastructure and organisation. The speaker also emphasised
the importance of creative thinking, work life balance, physical fitness and
health etc. and shared lot of anecdotes and personal experiences and struggles
in his career as a practicing chartered accountant.
The participants benefited
from the presentation and practical examples given by the speaker.
Release of BCA Referencer
2018-19 on 30th April, 2018 at BCAS Conference Hall
CA. Uday Karve
Membership & Public
Relations Committee organised the BCA Referencer Release Function at BCAS
Conference Hall. The Referencer was released by the hands of CA. Uday Karve,
Chairman of DNS Bank Ltd., Chief Guest on the occasion. Since the central theme
of BCAS Referencer is Collective Enterprise –
India’s Co-operatives, Mr. Karve while addressing the gathering, spoke
about his experience in the Co-operative sector.
He also spoke highly about
the BCAS Referencer which is considered as an outstanding publication by tax and
accounting professionals both in practice and industry and pressed upon that
every practicing CA must read.
About cooperative
movement, he mentioned that it is approximately 115 years since the
Co-operative Movement formally started
in the country. In Indian culture, we believe in collectivism over recognition
of an individual and that is the Central theme of Cooperative movement.
In today’s world, CAs are
leading Cooperative movements. It brings inclusiveness whereas private
organisations do not. Voting Power in Co-operative Societies do not depend on
amount of capital held by Shareholders. In fact it is, “One person, one
vote.”
Referencer Release: L to R : CA. Sunil Gabhawalla, CA. Chetan Shah, CA. Uday
Karve (Speaker), CA. Narayan Pasari (President), and CA. Pranay Marfatia
He further explained that
majority of the Cooperative Banks in Gujarat and Maharashtra are non-scheduled
banks catering to the services of the common man. Of total of approximately
1,500 Co-operative banks taken together, Gross NPAs of Co-operative banks are
less than 7% of their lending, which is lower than the bench mark of 7% set by
Reserve Bank of India. Further, capital adequacy ratio of most of the
co-operative banks is more than 12%, which is considered as a healthy sign.
He also made an appeal to
all the CAs to get associated with banking & co-operative movement and
suggested BCAS to start a Co-operative Clinic to educate its members.
Meeting concluded with a
formal release of Referencer for the year 2018-19 followed by entertainment
programme and dinner.
DIRECT TAX LAWS STUDY
CIRCLE
Direct Tax Laws Study
Circle Meeting on ‘Presumptive Taxation’ held on 7th May, 2018 at
BCAS Conference Hall
Direct Taxation Committee
organised the Study Circle Meeting on 7th May, 2018 at BCAS
Conference Hall, which was chaired by CA. Devendra Jain who gave the opening
remarks followed by the Group leader, CA. Chirag Wadhwa who administered an
overview of the presumptive taxation scheme as per the Income-Tax Act, 1961
(Act). The group leader also briefly explained the constitutional validity of
the presumptive taxation scheme. Various examples and case laws were discussed
and questions were taken from the group with respect to the budget amendments
in the relevant sections.
CA . Chirag Wadhwa further
touched upon the determination of ‘gross receipts’ and the ICAI guidance note.
All the relevant sections relating to presumptive tax and the analysis on what
could be considered as ‘profession’ and ‘business’ were taken up and views from
the group were considered. The group leader also briefly explained the
applicability of section 68 and section 69 of the Act in such cases. The interplay
between presumptive provisions and tax audit was discussed with illustrations.
The session was concluded by discussing aspects to be considered while filing
the ITR under the presumptive scheme.
The meeting was
interactive and the participants were enriched with the knowledge of
presumptive taxation.
HRD Study Circle
Study Circle Meeting on
“Discover Your Burning Desire – The Why of Your Life” held on 8th
May, 2018 at BCAS Conference Hall
HDTI Committee organized a
meeting on “Discover Your Burning Desire – The Why of Your Life” on 8th
May, 2018 at BCAS Conference Hall which was addressed by CA Siddharth Shah. The
discussion was based on the Book by Napolean Hill titled “Think and Grow Rich”.
The Speaker mentioned that the title suggests various different things for
different individuals and that just reading this book is not enough and one
really needs to introspect and contemplate to practice it to achieve.
The best-selling book
teaches how to get guidance to plan road map of one’s life without Trial and
Error. Whatever the mind can conceive and believe, it can achieve.
The discussion revolved
around how to convert ordinary desire to burning desire which drives a person
to be successful in achieving all round growth and prosperity.
The participants found the
session very interesting as it imparted the invaluable insights about attaining
success and achievements in life.
ITF Study Circle
ITF Study Circle Meeting
on “Case Laws related to Fees for Technical Services” held on 10th
May, 2018 at BCAS Conference Hall
International Taxation
Committee conducted a meeting on ‘Case Laws related to Fees for Technical
Services’ on 10th May, 2018 at BCAS Conference Hall. The meeting was
led by Group Leader CA. Divya Jokhakar who explained that the taxability of
Fees for Technical Services (FTS) has been a subject matter of huge litigation
and a significant number of judicial decisions, advance rulings and judgements
have been pronounced and continues to be delivered in this regard.
The Group Leader commenced
the meeting by discussing the facts of case laws along with the provisions of sections 9(1)(vii) of the Income Tax Act and various treaty provisions relating
to FTS. During the course of the meeting, the Speaker deliberated on the case
laws and went on to cover inclusions, exclusions and exemptions from the scope
of the definition of FTS, meaning of managerial, technical and consultancy,
disallowance due to non-deduction of taxes at source under section
40(a)(i)/(ia), source rule, exploring the impact of performance guarantee fee,
distinguishing business with India and business in India, ascertainment of debt
claim, determining taxability on basis of utilisation, rendering and payment
for services, assessing divisibility of contract, ascertaining satisfaction of
benefit test and enduring benefit.
The participants also
shared their practical experiences on above issues and benefitted enormously
from the discussion and valuable insights provided by the learned Speaker.
International Economic
Study Group
Meeting on “Current
global economic issues-Trade & Currency War, North Korea Resolution, Oil
price flare up” held on 17th May, 2018 at BCAS Conference Hall
International Economics
Study Group under the patronage of International Taxation Committee organized a
meeting on 17th May, 2018 at BCAS Conference Hall, to discuss
“Current global economic issues-Trade & Currency War, North Korea
Resolution, Oil flare up.” where the members participated in person as well as
through Skype i.e. from Nasik, Jamnagar & USA etc.
CA. Rashmin Sanghvi led
the discussion and set the tone of the meeting bringing out past Trade &
Currency Wars and philosophy behind that. Members discussed Trade war initiated
by US President Trump against China by announcing steep duty hike on imports of
steel, aluminium & other goods and
threatening China to stop forcing American companies to hand over their prized
intellectual property in lieu of doing business in China. The Group also
discussed implications of this move and counter move by China on their
respective economy as well as Global and Indian economy and impending Currency
War spilling out from the Trade War. The Group also deliberated upon the impact
of launch of China’s Gold Backed Petro-Yuan which appears to challenge US
Dollar Hegemony with China aiming to develop a currency that could be worthy of
a global superpower. Members also discussed recent turmoil in Forex market
where in Indian rupee has depreciated from Rs. 64 to Rs.68. This could turn in
to an Economic War which would have serious implications for global and Indian
economy. This was followed by a discussion on North Korea Standoff, Oil Price
flare up, Demand Supply mismatch, Geopolitical tensions in Middle East, Iran
& Venezuela sanctions and USA turning in to net exporter besides Hedge
Funds thus playing active role in oil price flare up.
The meeting was very
participative and members got enormously enlightened with a fruitful
interaction on the subject.
Indirect Tax Study Circle
Study Circle Meeting on “Interplay of GST with Account
Finalisation & ITR” held on 19th May, 2018
The above meeting,
addressed by CA. Gaurav Save, was held on 19th May, 2018 at Bathiya
& Associates LLP, Andheri.
The Speaker made a
detailed presentation on the following issues concerning the Accounts
Finalization and ITR Forms under GST regime a) Basis of Maintaining Books of
Accounts, b) Accounts & Records under GST, c) Turnover v/s. Aggregate
Turnover, d) Accounting Entries for GST, e) Reporting in ITR, f) Compliance
with Sec. 145A of IT Act and g) Reconciliation of accounts with GST returns.
CA. Gaurav Save also deliberated on conflicts that might arise between the
accounting principles to be followed under Accounting Standards and GST and
shared practical case studies on the subject.
The session was quite
interactive and the participants benefited a lot from the presentation shared
by the speaker.
Miscellanea
1. Spiritual
1.
When You Are Aware, Life Is a
Movement of Joy
Someone met me recently and said, “I find it
difficult to listen to my spouse; he speaks so much, most of the time, I don’t
understand what he is saying.” I told her, “Listening to your spouse is like
reading the terms and conditions of a freeware you want to download from the
internet. It is long, and you don’t understand much, but still you click on
agree.” In the same way, to build a rapport with your spouse, just agree, and
when he calms down, try to discuss. Next time, when you find your spouse giving
a long lecture, and you need to convince him, do not be in a hurry. Wait for an
opportunity to explain your point of view.
We should learn the art of handling
difficulties gracefully. There is no one way. We have to be alert and let the
purity of alertness and goodness to guide you in handling difficult situations.
Our past knowledge is trapping us often. At the same time, we have to transform
gracefully. Our past should be a point of reference for increased awareness,
rather than a block.
Our past knowledge, conclusions, opinions,
hurts; they influence our listening and thinking. Our unconscious is leading
our life mechanically. When we are alert, we become conscious of our
unconscious and that enables us to lead a better life instead of bitter life.
Are you conscious of the fact that one is
unconscious to oneself? You say this is mine or that is mine. But, if you are
alert and conscious, you will realise that all that you have said as ‘mine’ is
not yours. You are riding a dream.
What you think is mine is not in the true
sense yours. You are using them for your need in a remarkably subtle sense. You
say your son is yours, for you have a dream that he will do this and that to
you. But, your son also has a dream and he feels this or that will make him
complete. So, one is using the other for fulfilling one’s dream, and in that
sense wants others to serve him.
All things and persons can be snatched away
from you, and what is capable of being snatched away is not yours. What cannot
be snatched away from you is your consciousness. Your body is given to you by
your parents. Your knowledge is given to you by books and other sources. These
can be snatched away from you.
Only our consciousness is intrinsically
ours, and in the true sense, we are not unaware what this consciousness is. We
are unconscious of our consciousness. When we are dependent on the things that
can be snatched away, and when it is snatched away by time, we feel cheated and
betrayed. It is our error in understanding.
If one understands that all things are
capable of being snatched one will not depend on it emotionally. Hence emotions
will have clarity and is free. You will be a giver of life, and not a beggar of
life. You will put your energy in understanding yourself, and when you
understand yourself as conscious, you will realise this consciousness, which is
your nature, is fullness and completeness. With fullness when you live life,
your life will be a movement of joy and not wanting joy.
(Source: Times of India dt 14.03.2017)
2.
Social
2.
Hawking won the world’s respect
– and gave disabled people like me hope – Frances Ryan
Growing up disabled, I had few role models.
But this brilliant, witty scientist helped shift the negative stereotypes many
face. As with most of the famous figures whose passing now hits us via a news
alert on our phones, I never met Stephen Hawking. In the vastness of the entire
universe, you could say I was one speck and he was another. And yet I thought
of him as a continual presence in my life, who – perhaps paradoxically, in the
light of his illness, not to mention of his work on time – would always be
there, somehow.
Growing up disabled in Britain, I didn’t
have many role models. There are hardly any statues of disabled leaders, no
great lives with chronic disability documented in the history books. As a
child, it’s easy to believe that disabled people have never really existed, and
that when they did, it was as cripples to be pitied or burdens on society. In
Hawking, we had a figure – brilliant, witty, kind – who confounded the negative stereotypes and the low expectations
so often forced on those of us with a disability.
He wasn’t without faults (accusations of
sexism were notable). He was also afforded opportunities – from wealth to
healthcare to being non-disabled throughout school – that clearly enabled his
success, opportunities too few young disabled people, facing cuts to multiple
strands of support, enjoy today. But his groundbreaking research, as well as
tireless commitment to the NHS and concern over Brexit, established him as
someone who, though physically stripped of his voice, should be listened to.
In the rush to eulogise a figure such as
Hawking the risk is that the media coverage either fails to acknowledge his
disability – and to ignore him being a disabled person is as regressive as a
white person saying they “don’t see colour” – or falls into condescending
cliches and objectification. Within hours of the news of his death breaking, I
saw headlines that reflected the (often well-intentioned) negative attitudes
that so often plague discussions of disabled people: ones of “inspiration”,
“overcoming disability” and references to “tragedy”. BBC Radio 5 Live asked
listeners if Hawking had “inspired” them – a question unlikely to be posed
about non-disabled academics. The Daily Mail referred to his “total disability”
while at the other end of the spectrum, John Humphrys used Radio 4’s tribute
segment to ask: “Did the science community cut him a lot of slack because he
was so desperately disabled?”
Even the Guardian’s obituary mentioned how
“despite his terrible physical circumstance, he almost always remained positive
about life”, as if it was a surprise that a world-renowned scientist with a
loving family could ever find happiness. Cartoonists illustrated him in heaven
– a place Hawking did not believe existed – standing up, as if finally free
from his wheelchair (an invention, much like his voice synthesiser, that
actually empowered him to engage with society). Even sentiments such as “He
didn’t let his disability define him” – as Marsha de Cordova, shadow
disabilities minister (and herself disabled) tweeted – verge on repeating the
ingrained belief that disability is an inherently negative thing: a part of
identity that, unlike race or sexuality, should be played down.
This is not to say that Hawking’s disability
didn’t help shape him. The thought that he had a sharply limited life
expectancy – it was originally believed he would die within two years of his
motor neurone disease diagnosis – by all accounts inspired Hawking to enjoy the
present, and spurred on his hunger for scientific discovery. But to reduce a
world-famous academic’s existence to one of tragedy and pluck respects neither
the reality of a disabled life nor the love, success, humour and fulfilment
that clearly marked Hawking’s. It is reminiscent of the countless “inspirational”
memes and posters that throughout his life featured Hawking’s image – often
using his body as inspiration for non-disabled people (“If he can succeed, so
can you!”) or criticising “lesser” disabled people (“The only disability is a
bad attitude”). Hawking, like all of us, deserves more than lazy, ableist
tropes.
Amid all the tributes to Hawking’s
contribution to scientific discovery, I would like to remember what he
contributed – perhaps unknowingly – to many disabled people: a sense of pride,
encouragement and hope. This was a genius who gained the world’s respect from
his wheelchair. Hawking’s achievements alone will not have begun to overturn
deep-seated prejudice, but he has played a significant part in shifting the
misconceptions that still routinely mark too many disabled people’s lives.
Hawking’s lesser-known lesson is one I hope others growing up disabled will be
left with: we can all reach for the stars.
(Source: www.theguardian.com)
3. World News
3.
Plastic particles found in
bottled water
Tests on major brands of bottled water have
found that nearly all of them contained tiny particles of plastic. In the
largest investigation of its kind, 250 bottles bought in nine different
countries were examined. Research led by journalism organisation Orb Media
discovered an average of 10 plastic particles per litre, each larger than the
width of a human hair.
Companies whose brands were tested told the
BBC that their bottling plants were operated to the highest standards. The
tests were conducted at the State University of New York in Fredonia.
Commenting on the results, Prof Mason said:
“It’s not catastrophic, the numbers that we’re seeing, but it is
concerning.” Currently, there is no evidence that ingesting very small
pieces of plastic (microplastics) can cause harm, but understanding the
potential implications is an active area of science.
(Source: bbc.com)
4.
A cheap Chinese TV threatens to
topple LG, Samsung & Sony’s India apple cart
Can Xiaomi replicate its smartphone success
in televisions? Its entry into the segment with TVs priced at as much as half
that of the top three —LG, Samsung and Sony — has taken the market by surprise
over the past few weeks. The leaders don’t yet have a strategy to counter the
Chinese company’s disruptive pricing, four senior industry executives said,
asking not to be named.
“While it’s a wait-and-watch scenario right
now, we have been asked to keep our ears to the ground to closely track
Xiaomi,” said a senior executive with one of the largest television makers.
“The scope to react right now is also limited for they are selling models at
almost throwaway prices which, if we have to match, it will completely disrupt
the pricing strategy.”
In less than a month of its foray into
televisions, Xiaomi has launched 32-inch, 43-inch and 55-inch models — sizes
that together account for 80% of the total television market by volume.
Its 32-inch set is sold at Rs.13,999
compared with a starting price of Rs. 24,000 for a similar specification model
from one of the three top brands. The 43-inch set is priced at Rs. 22,999
compared with Rs. 36,000-plus for a rival model while in the 53-inch segment,
Xiaomi’s model is tagged at Rs. 39,999, about half that of one from the top
three. The executives cited above said the top three brands are hoping that the
Chinese company won’t be as successful in TVs as the business calls for sales
and servicing strategies that differ from those for handsets.
(Source: gadgetsnow.com)
5.
Wipro chairman unveils 3D metal
printing facility in Bengaluru
Global software major Wipro’s three
dimensional (3D) metal printing facility was unveiled by its Chairman Azim
Premji in this tech hub on 14 March. “The 12,000 sq.ft. centre has various
capabilities that include building up technology, post-processing, research,
characterisation and validation facilities,” said the city-based IT major
in a statement here. The company, however, did not disclose the cost of this
high-tech facility.
The software major’s 3D printing business
unit, Wipro3D, has been providing services to aerospace, space, industrial,
automotive, healthcare, oil and gas and heavy engineering sectors in the
country. Wipro3D was set up in 2012 here under the Wipro Infrastructure
Engineering, a hydraulic cylinder manufacturing unit of the software major. The
company soon plans to take its 3D printing services across the world, said the
statement, although no details were specified of its expansion plans.
(Source: firstpost.com)
Ethics And U
Arjun (A) — Very sorry, Bhagwan. Got held up in income tax office.
S — Why? Now all scrutiny assessments must be over. April is a relaxing month. Isn’t it?
A — For CAs, there is no relaxation at all. We have to work like donkeys. There is so much harassment for recovery of tax.Clients’ accounts are attached, prosecution notices are being issued like a child’s play.
.
S — Is it? Why prosecution?
A — The less said the better. I.T. authorities have innovative brains. They are always searching for new avenues to harass the assessees. And the entire burden falls on CAs – with no fees!
S — Anyway! That’s a permanent headache of our country.
A — I feel, bureaucracy does not want transparency. They don’t want discipline and digitalisation.
S — Why? That will reduce their workload.
A — But they may be having vested interests in allowing the state of confusion to continue. They may be interested in manual intervention, for reasons best known to them!
S — That’s an endless subject. Last time, we discussed the preliminaries of NFRA.
A — Yes. I remember. Now I am worried about bank audits. Days are very bad for CAs.
S — I agree. CAs are projected to be main culprits in all financial frauds. That’s unfortunate. But sometimes, you CAs also behave very loosely.
A — What do you mean? We work round the clock – with no family life. And we are the most underpaid profession.
S — May be! But you don’t follow even simple systems. First and foremost is the time discipline. You people are never on time!
A — It is partly true. But we are always at the mercy of others!
S — You have made yourselves vulnerable; always a soft target. You have allowed yourselves to be taken for granted.
A — What to do? Business community is so dominant! We can’t afford to say ‘no’ to them. They simply go away and catch hold of another CA.
S — That’s the pity. You lack unity. You come together for academic discussions; but never for collective action! And you have developed a habit of ‘managing’ everything.
A — Yes. Even CPE hours we try to ‘manage’. But the recent episode of bank frauds has caused turmoil in the profession. I wonder whether I should do any bank audit at all!
S — If you act methodically, you should have nothing to fear from.
A — But they don’t allow us to work systematically. There are strict timelines. A big branch to be audited in barely 3 to 4 days. And no one co-operates. Poor branch manager alone has to face the music.
S — But what prevents you from keeping your own papers right? Tell me, do you write to previous auditor?
A — Why should we write? Appointment is made by RBI or the Board of a nationalised bank.
S — My dear, Arjun. There is no exception to clause (8). Whosever appoints you, whatever be the organisation, and whatever be the type of audit, writing to previous auditor is a must.
A — But then how can we meet the deadline if we wait for his reply?
S — In this particular context, you need not wait; but writing you cannot avoid.
A — I must keep this in mind.
S — Moreover, you don’t keep working papers. You know that the work should not only be done; but it should be seen to be done. And while doing audit, you should always have professional skepticism.
A — What is that? You mean we should suspect everything?
S — No. Not that way. But you cannot afford to accept everything in good faith and at face value.
A — But when reputed organisations produce documents before us, how can we disbelieve that?
S — But you should learn to verify independently the truth of every statement of a client. He should get a feeling that you verify every document, it has a psychological impact. And when there is slightest of suspicion, you should take it to its logical end.
A — What you say is right. Very often, we just leave it like that. We avoid to escalate the matter.
S — Do you ensure that your assistants are properly trained? Tell me, have you ever read the Standards on Auditing?
A — You mean SAs?
S— Yes. I believe, most of you carry out the audit just by common sense, without studying the relevant material properly. You never make efforts to upgrade yourselves. Do read SA 200 and SA 240 before you do any audit now.
A — But we really slog. We do the work sincerely. And there is no time for documentation and correspondence.
S — That is precisely where you lack. Documentation is a must.
A — I know. There are many big firms. They do not really do much indepth audit; but merely compile thick files of working papers.They command fat fees. All these laws and ethics, I feel, apply only to small people like us. After all, might is right.
S — Don’t say so.
A — I have a few friends who have affiliations with some foreign firms and they enjoy the brand, they do advertising under the corporate shield, they do anything they like. Nobody is going to ask them in our country.
S — Arjun, I understand your grievance. But don’t worry. Now Supreme Court has taken serious cognizance of all these activities of Multinational firms.
A — Oh! When was that? Good, Good. Tell me some details.
S — Supreme Court delivered its decision on 23rd February, 2018. Very detailed discussion. I suggest you read it yourself. But don’t read it just for fun. Learn something from it and try to implement the basic principles of ethics.
A — O Lord! I always obey your commands!
!!OM Shanti!!
Note:
This dialogue is in the context of recent scandal of PNB, ensuing bank audits and also the Hon’ble Supreme Court decision in respect of Multinational Accounting Firms (MAFs). – Civil Appeal No. 2422 of 2018 [Arising out of Special Leave Petition (civil) no. 1808 of 2016].
Corporate Law Corner
1. Yenugu Krishna Murthy vs. UOI
W.P. Nos. 7819, 7820/2018 and 7821/2018 (GM-RES)
Date of Order: 26th February, 2018
Section 164(2) read with section 167 of the
Companies Act, 2013 – The said section is constitutionally valid – Validity of
provision of law cannot be questioned merely because it operates a little
harshly on the directors of defaulting company
FACTS
Y was a director under the
Companies Act, 2013. His DIN status appeared as “disqualified” on the website
of Ministry of Corporate Affairs. The reason for the same in brief was
“Violated Section 164(2)(a)”. Y admittedly, did not seek a copy of
the order from the Registrar Of Companies (“ROC”). Further neither had he approached
ROC nor was he served any show cause notice or adjudication order u/s. 164(2)
of Companies Act, 2013 (“the Act”).
Before the High Court, it
was urged that directors were put in a very piquant and irreparable situation
and even if, disqualification on account of non-filing of financial statements
and Annual Returns in one company does take place for which they may not be
personally liable, they incur the ‘disqualification’ u/s. 164(2)(a) of the Act
and they are deemed to have vacated the office of the director in other such
companies also as per section 167 of the Act.
HELD
The High Court held that
the writ petitions in the instant case were premature as the directors did not
even try to approach the appropriate authority under the Act, namely, the ROC,
seeking even a copy of the order u/s.164(2)(a) of the Act, which might have
been passed by it. In absence of adequate facts the High Court could not
conclude whether Y was at fault or not; whether he had brought the relevant
facts to the notice of the ROC or not.
If Y had approached the ROC
with the relevant facts, it would be duty bound to pass a reasoned and speaking
order. ROC has the quasi-judicial powers and an obligation under the Act to
pass such appropriate orders in the matter.
As far as constitutional
validity of sections were concerned, the High Court observed that provisions
could not be held to be illegal, unconstitutional or ultra vires merely
because they may operate harshly against the Directors of the defaulting
company. It observed that the academic questions or the legislative wisdom is
not the subject matter to be decided by the Courts of law unless such questions
are raised in properly instituted cases, based on proper factual foundation of
the case.
Accordingly, the writ
petitions were dismissed by the Court.
2. Dr. Reddy’s Research Foundation vs. Ministry of Corporate
Affairs
[2018] 142 CLA 351 (AP HC)
Date of Order: 6th October, 2017
Rule 14 of the Companies (Appointment and Qualification of
Directors) Rules, 2014 – There is a lacuna in the procedure that is required to
be followed by the Companies, which are defaulted in filing their annual
returns and the consequent disqualification of the Directors to rectify the
defect.
FACTS
D Co had failed to furnish
annual returns for the years 2011-12 to 2015-16 and financial statements for
the years 2012-13 to 2015-16. Consequently, the directors of the company were
disqualified to act as directors under the provisions of Companies Act, 2013.
Rule 14 of the Companies (Appointment
and Qualification of Directors) Rules, 2014, prima facie provides for
rectifying the defect by enabling the defaulting companies to file their
returns. The company will have to act through its Directors in order to do so.
However, as the directors are disqualified, they are not able to file these
returns because the e-platform through which this is required to be done cannot
be accessed owing to the disqualification.
D Co thus, approached the
High Court seeking remedy for the inherent inconsistency.
HELD
The High Court observed
that there is a lacuna in the procedure that is required to be followed by the
Companies, which are defaulted in filing their annual returns and the
consequent disqualification of the Directors to rectify the defect.
Taking a note of the
anomalous situation, the High Court directed that the DIN of the directors be
restored in respect of D Co so that they are able to submit the returns in
accordance with Rule 14.
3. Power Grid Corporation of India Ltd. vs. Jyoti Structures Ltd.
[2018] 142 CLA 285 (Del HC)
Date of Order: 11th December, 2017
Section 14 of the Insolvency & Bankruptcy Code, 2016 read with
section 34 of Arbitration And Conciliation Act, 1996 – Proceedings u/s. 34 of
Arbitration Act which are in favour of corporate debtor would not be stayed
even though a moratorium has been granted to such corporate debtor.
FACTS
Arbitral tribunal had given
an award dated 20.05.2016 which was in the nature of pure money decree in
favour of J Co. Counter claim of P Co had been rejected by the Arbitrator and
claim of J Co was upheld. During the pendency of these proceedings u/s. 34 of
the Arbitration And Conciliation Act, 1996, (“Arbitration Act”) an application
u/s. 7 of the Insolvency and Bankruptcy Code, 2016 (“the Code”) was filed by a
financial creditor against J Co. Through an order dated 04.07.2017 the National
Company Law Tribunal (“NCLT”) admitted the application and declared a
moratorium in terms of section 14 of the Code.
P Co filed a petition u/s.
34 of the Arbitration Act claiming that proceedings under said section be kept
in abeyance in terms of embargo contained under section 14(1)(a) of the Code.
HELD
The High Court having read
the provisions of section 14(1) of the Code observed that the term ‘proceedings’
as is mentioned in section 14(1)(a) of the Code is not preceded by the word
‘all’ to indicate the moratorium provisions would apply to all the proceedings
against the corporate debtor. The High Court relied on the report of the
Bankruptcy Law Reforms Committee which demonstrated that moratorium is to apply
to recovery actions and filing of new claims against the corporate debtor and
the purpose behind moratorium is that there should be no additional stress on
the assets of the corporate debtor.
It was argued that once the
moratorium comes into effect, no proceedings against the corporate debtor may
continue. However, the High Court held that it was important to consider the
nature of these proceedings. Stay of
proceedings against an award in favour of the corporate debtor would rather be
stalking the debtor’s effort to recover its money and hence would not fall in
the embargo of section 14(1)(a) of the Code.
It was held that
proceedings would not be hit by section 14 of the Code due to following
reasons:
(a) “ ‘proceedings’ do not mean ‘all proceedings’;
(b) moratorium under section 14(1)(a) of the Code
is intended to prohibit debt recovery actions against the assets of corporate
debtor;
(c) continuation of proceedings under section 34
of the Arbitration Act which do not result in endangering, diminishing,
dissipating or adversely impacting the assets of corporate debtor are not
prohibited under section 14(1)(a) of the Code;
(d) the term ‘including’ is clarificatory of the
scope and ambit of the term ‘proceedings’;
(e) the term ‘proceeding’ would be restricted to
the nature of action that follows it i.e. debt recovery action against assets
of the corporate debtor;
(f) the use of narrower term “against the
corporate debtor” in section 14(1)(a) as opposed to the wider phase
“by or against the corporate debtor” used in section 33(5) of the
Code further makes it evident that section 14(1)(a) is intended to have
restrictive meaning and applicability;
(g) the Arbitration Act draws a distinction
between proceedings under section 34 (i.e. objections to the award) and under
section 36 (i.e. the enforceability and execution of the award). The
proceedings under section 34 are a step prior to the execution of an award.
Only after determination of objections under section 34, the party may move a
step forward to execute such award and in case the objections are settled
against the corporate debtor, its enforceability against the corporate debtor
then certainly shall be covered by moratorium of section 14(1)(a).”
Once the
moratorium is declared the decision to continue with the objections need to be
taken only by the Resolution Professional. The High Court observed that in the
peculiar circumstances of this case where a counter claims was preferred by the
objector, though rejected, it would be appropriate if the interim resolution
profession be made aware of the proceedings and he consents to its
continuation.
Allied Laws
1.
Naina Kala Sharma and Ors. vs.
Deepak Kumar Rai AIR 2018 (NOC) 4 (SIK.)
Hindu Law – Coparcenary – Suit for
Partition – Cannot demand share in Father’s property when self acquired. [Hindu
Succession Act, 1956 S.6]
The case of the Appellants is that the
Appellant No. 1 was married to the Respondent in the year 1993 and Appellants
No. 2 and 3 were born from the wedlock. A property(suit land) was gifted to
Appellant no. 1 by her father.
The issue was whether the Appellants no. 2
and 3 have any right, title or interest over the Suit land and the building
constructed thereon?
It was argued that the Mitakshara concept of
coparcenary is based on the notion of the birthright of son, son’s son and
son’s son’s son.
It was observed by the Court that the
daughter has also been made coparcener by virtue of Hindu Succession
(Amendment) Act, 2005.
It was held that the Law laid down in
Mitakshara in regard to father’s right of disposition of his self acquired
property, held that the father of a joint Hindu family governed by Mitakshara
law has full and uncontrolled powers of disposition over his self-acquired immovable
property and his male issue could not interfere with these rights in any way.
Hence, no rights were conferred to
Appellants No. 2 and 3 for partition, in view of the property being the self
acquired property of the Respondent.
2.
Naveen Kumar vs. Vijay Kumar
And Ors Civil Appeal No. 1427 of 2018 (Arising out of SLP (C) No.18943 of 2016)
(SC)
Owner – As appearing on records – Liable to
pay compensation. [Motor Vehicles Act, 1988, S.2(30)]
In the present case, an accident had taken
place where the Tribunal had granted an award holding the first
respondent(original owner/first owner) responsible together with the driver. It
was contended that there were a series of transfers which took place, however,
the name in the records were not changed/altered.
It was observed by the apex court that the
expression ‘Owner’ in section 2(30), it is the person in whose name the motor
vehicle stands registered who, for the purposes of the Act, would be treated as
the ‘owner’. However, where a person is a minor, the guardian of the minor
would be treated as the owner. In a situation such as the present where the
registered owner has purported to transfer the vehicle but continues to be
reflected in the records of the registering authority as the owner of the
vehicle, he would not stand absolved of liability.
The principle underlying the provisions of
section 2(30) is that the victim of a motor accident or, in the case of a
death, the legal heirs of the deceased victim should not be left in a state of
uncertainty. A claimant for compensation ought not to be burdened with
following a trail of successive transfers, which are not registered with the
registering authority. To hold otherwise would be to defeat the salutary object
and purpose of the Act. Hence, the interpretation to be placed must facilitate
the fulfilment of the object of the law.
It was held that since in the present case,
the First respondent was the ‘owner’ of the vehicle involved in the accident
within the meaning of section 2(30), the liability to pay compensation stands
fastened upon him.
3.
Gurbax Singh vs. Harminderjit
Singh AIR 2018 (NOC) 136 (P. & H.)
Registration – Period of Lease –
Admissibility. [Transfer Of Property Act, 1882, S.106, 107]
It was contended that since the lease
agreement was not specifically shown to be for a period of more than one year,
it was therefore not required to be compulsorily registered.
It was observed that a perusal of section
107 of the T. P. Act shows that any instrument by which a lease of immovable
property is created, either from year to year, or for any term exceeding one
year, or by which a yearly rent is reserved, must only be a registered
instrument.
Any other lease may either be by way of a
registered instrument or even by oral agreement accompanied by delivery of
possession. The proviso to section 107 does stipulate that the State Government
may by notification in the official gazette direct that leases of immovable
property other than leases from year to year or even for any term exceeding one
year or reserving an yearly rent, may be made by unregistered instrument, or
orally, even without delivery of possession. However, no notification issued by
the Government of Punjab has been brought to the notice of this Court by
learned counsel for the appellant, by which any lease as is required to be
registered u/s. 107, is exempted from being so registered.
In the facts of the case, since there was a
rent increase every 15 years by 3%, it was deemed that the lease agreement was
executed for a term exceeding 1 year and hence was supposed to be compulsorily
registered.
4.
The State of Jharkhand and Ors.
vs. Lalita Devi Kejriwal and Ors. AIR 2018 JHARKHAND 7
Registration – Where properties are
situated. [Registration Act, 1908 (S.30)]
It was held that the registration of
properties in Mumbai, which were situated in Ranchi, was in utter violation of
section 30 of the Indian Registration Act 1908 as amended by Bihar Amended Act,
1991. By virtue of this amendment in Indian Registration Act, 1908, the
documents of sale or transfer of the properties must be registered at the place
where the immovable property is situated.
5.
The State of Jharkhand and Ors.
vs. Lalita Devi Kejriwal and Ors. AIR 2018 JHARKHAND 7
Sale – Late mutation of name – Non-joinder
of co-sharer – Unregistered Letter – Invalid [Transfer of Property Act, 1882, S.47]
It was observed that mutation of the names
after registration did not take place for as long as a period of 5 years.
Further, a letter written by the owner of the plots in question was also relied
upon, of which no evidence was provided. Neither the co-sharers joined as
parties to the suit. After taking into consideration the factual matrix as
above, it was held that the sale deed was not valid.
From Published Accounts
Audit Reporting as per revised
Standard on Auditing (SA 701)
Compilers’ Note
The
International Auditing and Assurance Standards Board (IAASB) has issued revised
and new International Standards on Auditing (ISAs) for audit reporting. These
audit reporting ISAs are applicable for all reports issued after 15th
December 2016 onwards.
With a view
to align the Standards on Auditing (SAs) in India, ICAI has also issued revised
reporting standards which are effective for audits of financial statements for
periods beginning on or after April 1, 2017. The said date was subsequently
deferred by 1 year to now become effective for audits of financial statements
for periods beginning on or after April 1, 2017. ICAI has also, in March 2018,
issued an implementation guide to SA 701.
One of the
key features of the revised audit reports is the inclusion of a paragraph
called “Key Audit Matters” (KAM). KAM are defined as those matters that, in the
auditor’s professional judgement, were of most significance in the audit of the
financial statements of the current period. KAM are selected from matters communicated
with TCWG.
Given below
are 2 illustrations of the KAM paragraph included in the audit reports for the
year 2017 of two entities listed overseas.
Unilever N.V. / PLC
Key Audit
Matters – Consolidated Financial
Statements
Recurring risks Revenue recognition
Indirect
tax contingent liabilities
Direct
tax provisions
Event driven Business combinations –
Carver
Disposal
of Spreads business –
presentation
in the financial statements
KEY AUDIT
MATTERS: OUR ASSESSMENT OF RISKS OF MATERIAL MISSTATEMENT
Key audit
matters are those matters that, in our professional judgement, were of most
significance in the audit of the Financial Statements and include the most
significant assessed risks of material misstatement (whether or not due to
fraud) identified by us, including those which had the greatest effect on: the
overall audit strategy; the allocation of resources in the audit; and directing
the efforts of the engagement team.
We summarise
below the key audit matters, in decreasing order of audit significance, in
arriving at our audit opinions above, together with our key audit procedures to
address those matters and, as required, where relevant, by law for public
interest entities, our results from those procedures.
These
matters were addressed, and our results are based on procedures undertaken, in
the context of, and solely for the purpose of, our audit of the Financial
Statements as a whole, and in forming our opinion thereon, and consequently are
incidental to that opinion, and we do not provide a separate opinion on these
matters.
|
The |
Our |
Revenue Refer |
Revenue is measured net of
Revenue is recognised when |
Our u Accounting u Control u Tests u Within a number of the Group’s markets, u Agreeing a sample of claims and rebate u Critically assessing manual journals posted u Our u Expectation u Assessing u Our The results of our testing |
Indirect Refer |
Contingent liability |
Our u Control u Our u Enquiry of lawyers: u Assessing disclosures: u Our The results of our testing |
Direct Refer |
The Group has extensive |
Our u Control testing: u Our tax expertise: Use u Challenging the assumptions using our own u Assessing disclosures: Our u The results of our testing were |
Business Carver Refer
|
On 1st November
|
Our u Control testing: u Assessing principles: u Benchmarking assumptions: u Assessing disclosures: Our u The results of our testing were |
Disposal – Refer
|
On 15th December
The Spreads business
The presentation of the |
Our u Control testing: u Tests of details: u Agreeing the assets and liabilities u Testing application: u Assessing disclosures: Our u The results of our testing were |
Investment Unilever N.V. Refer
Unilever PLC
Refer
|
The carrying amount of the
We do not consider the
|
Our u Control design: u Tests of details: u Our sector experience: For u Benchmarking assumptions: u Assessing disclosures: Our u The results of our testing were
|
Intangible Unilever N.V.
Refer
|
The carrying amount of
We do not consider the
|
Our u Control design: u Tests of details: u Our sector experience: u Benchmarking assumptions: Comparing u Sensitivity analysis: u Assessing disclosures: Our u The results of our testing were
|
Diageo
PLC
Key audit matters
Key audit matters are those matters that, in
the auditors’ professional judgement, were of most significance in the audit of
the financial statements of the current period and include the most significant
assessed risks of material misstatement (whether or not due to fraud)
identified by the auditors, including those which had the greatest effect on:
the overall audit strategy; the allocation of resources in the audit; and
directing the efforts of the engagement team. These matters, and any comments we
make on the results of our procedures thereon, were addressed in the context of
our audit of the financial statements as a whole, and in forming our opinion
thereon, and we do not provide a separate opinion on these matters. This is not
a complete list of all risks identified by our audit.
Key audit |
How our audit |
Carrying value of Refer to the Report of the Audit Committee Intangible assets The group has goodwill of £2,723 million,
Goodwill and
Management has determined
|
We evaluated the
Our audit
u Benchmarking Diageo’s key market-related u Assessing the reliability of cash flow u Testing the mathematical accuracy and u Understanding the commercial prospects of u For USL goodwill and USL brands, assessing u For
We assessed the
Based on our |
Taxation Refer to the – Contingent
The group operates
Where the amount
We focused on the
This included
|
We evaluated the
We used our tax specialists
We challenged
This included
We assessed the
|
Presentation of
Refer to the
Exceptional items
In the past few |
We evaluated the
We considered the
|
The nature of
This year the
u The release of liabilities recorded in the u A charge in respect of a customer claim in u A charge in respect of a claim received from u A gain in respect of the finalisation of the Our specific are
|
The audit
We challenged
We assessed the
We also considered
No such material
|
Provisions and
Refer to the
The group faces a
|
We evaluated the
Our procedures u Where u Discussing open matters and developments u Meeting u Assessing and challenging management’s u Circularising relevant third party legal
Based on the
We assessed the |
Post-employment Refer to the
The group has
The valuation of
|
We evaluated the
We used our u Assessing u Verifying that the discount and inflation u Reviewing the calculations prepared by
Based on our
|
How we tailored
We tailored the
The group operates
We identified two
|
Certain specific
Together, the
Where the work was
Senior members of
|
From Published Accounts
Accounting Policy for Revenue Recognition as per Ind AS for different industries (year ended 31st March 2017)
TATA CONSULTANCY SERVICES LIMITED
The Company earns revenue primarily from providing information technology and consultancy services, including services under contracts for software development, implementation and other related services, licensing and sale of its own software, business process services and maintenance of equipment.
The Company recognises revenue as follows:
Revenue from bundled contracts that involve supplying computer equipment, licensing software and providing services is allocated separately for each element based on their fair values.
Revenue from contracts priced on a time and material basis is recognised as services are rendered and as related costs are incurred.
Revenue from software development contracts, which are generally time bound fixed price contracts, is recognised over the life of the contract using the percentage-of-completion method, with contract costs determining the degree of completion. Losses on such contracts are recognised when probable. Revenue in excess of billings is recognised as unbilled revenue in the Balance Sheet; to the extent billings are in excess of revenue recognised, the excess is reported as unearned and deferred revenue in the Balance Sheet.
Revenue from Business Process Services contracts priced on the basis of time and material or nit of delivery is recognised as services are rendered or the related obligation is performed.
Revenue from the sale of internally developed and manufactured systems and third party products which do not require significant modification is recognised upon delivery, which is when the absolute right to use passes to the customer and the Company does not have any material remaining service obligations.
Revenue from maintenance contracts is recognised on a pro-rata basis over the period of the contract.
Revenue is recognised only when evidence of an arrangement is obtained and other criteria to support revenue recognition are met, including the price is fixed or determinable, services have been rendered and collectability of the resulting receivables is reasonably assured.
Revenue is reported net of discounts, indirect and service taxes.
WIPRO LIMITED
The Company derives revenue primarily from software development, maintenance of software/hardware and related services, business process services, sale of IT and other products.
a) Services
The Company recognizes revenue when the significant terms of the arrangement are enforceable, services have been delivered and the collectability is reasonably assured. The method for recognising revenues and costs depends on the nature of the services rendered:
A. Time and materials contracts
Revenues and costs relating to time and materials contracts are recognised as the related services are rendered.
B. Fixed-price contracts
Revenues from fixed-price contracts, including systems development and integration contracts are recognized using the “percentage-of completion” method. Percentage of completion is determined based on project costs incurred to date as a percentage of total estimated project costs required to complete the project. The cost expended (or input) method has been used to measure progress towards completion as there is a direct relationship between input and productivity. If the Company does not have a sufficient basis to measure the progress of completion or to estimate the total contract revenues and costs, revenue is recognized only to the extent of contract cost incurred for which recoverability is probable. When total cost estimates exceed revenues in an arrangement, the estimated losses are recognized in the statement of profit and loss in the period in which such losses become probable based on the current contract estimates.
‘Unbilled revenues’ represent cost and earnings in excess of billings as at the end of the reporting period. ‘Unearned revenues’ represent billing in excess of revenue recognised. Advance payments received from customers for which no services have been rendered are presented as ‘Advance from customers’.
C. Maintenance contracts
Revenue from maintenance contracts is recogniswed ratably over the period of the contract using the percentage of completion method. When services are performed through an indefinite number of repetitive acts over a specified period of time, revenue is recognized on a straight-line basis over the specified period unless some other method better represents the stage of completion.
In certain projects, a fixed quantum of service or output units is agreed at a fixed price for a fixed term. In such contracts, revenue is recognised with respect to the actual output achieved till date as a percentage of total contractual output. Any residual service unutilised by the customer is recognised as revenue on completion of the term.
b) Products
Revenue from products are recognised when the significant risks and rewards of ownership have been transferred to the buyer, continuing managerial involvement usually associated with ownership and effective control have ceased, the amount of revenue can be measured reliably, it is probable that economic benefits associated with the transaction will flow to the Company and the costs incurred or to be incurred in respect of the transaction can be measured reliably.
c) Multiple element arrangements
Revenue from contracts with multiple-element arrangements are recognised using the guidance in Ind AS 18, Revenue. The Company allocates the arrangement consideration to separately identifiable components based on their relative fair values or on the residual method. Fair values are determined based on sale prices for the components when it is regularly sold separately, third-party prices for similar components or cost plus an appropriate business-specific profit margin related to the relevant component.
d) Others
? The Company accounts for volume discounts and pricing incentives to customers by reducing the amount of revenue recognized at the time of sale.
? Revenues are shown net of sales tax, value added tax, service tax and applicable discounts and allowances.
? The Company accrues the estimated cost of warranties at the time when the revenue is recognised. The accruals are based on the Company’s historical experience of material usage and service delivery costs.
? Costs that relate directly to a contract and incurred in securing a contract are recognised as an asset and amortised over the contract term as reduction in revenue
? Contract expenses are recognised as expenses by reference to the stage of completion of contract activity at the end of the reporting period.
BHARTI AIRTEL LIMITED
Revenue is recognised when it is probable that the entity will receive the economic benefits associated with the transaction and the related revenue can be measured reliably. Revenue is recognised at the fair value of the consideration received or receivable, which is generally the transaction price, net of any taxes / duties, discounts and process waivers.
In order to determine if it is acting as a principal or as an agent, the Company assesses whether it has exposure to the significant risks and rewards associated with the sale of goods or the rendering of services.
a. Service revenues
Service revenues mainly pertain to usage subscription and activation charges for voice, data, messaging and value-added services. It also includes revenue towards interconnection charges for usage of the Company’s network by other operators for voice, data, messaging and signaling services.
Usage charges are recognised based on actual usage. Subscription charges are recognised over the estimated customer relationship period or subscription pack validity period, whichever is lower. Activation revenue and related activation costs are amortised over the estimated customer relationship period. However, any excess of activation costs over activation revenue are expensed as incurred.
The billing/ collection in excess of revenue recognised is presented as deferred revenue in the balance sheet whereas unbilled revenue is recognised within other current financial assets.
Revenues from long distance operations comprise of voice services and bandwidth services (including installation), which are recognised on provision of services and over the period of arrangement respectively.
b. Multiple element arrangements
The Company has entered into certain multiple element revenue arrangements which involve the delivery or performance of multiple products, services or rights to use assets. At the inception of the arrangement, all the deliverables therein are evaluated to determine whether they represent separately identifiable component basis. It is perceived from the customer perspective to have value on standalone basis.
Total consideration related to the multiple element arrangements is allocated among the different components based on their relative fair values (i.e., ratio of the fair value of each element to the aggregated fair value of the bundled deliverables).
c. Equipment sales
Equipment sales mainly pertain to sale of telecommunication equipment and related accessories. Such transactions are recognised when the significant risks and rewards of ownership are transferred to the customer. However, in case of equipment sale forming part of multiple-element revenue arrangements which is not separately identifiable component, revenue is recognised over the customer relationship period.
d. Capacity Swaps
The exchange of network capacity is recognised at fair value unless the transaction lacks commercial substance or the fair value of neither the capacity received nor the capacity given is reliably measurable.
e. Interest income
The interest income is recognised using the EIR method. For further details, refer Note 2.9.
f. Dividend income
Dividend income is recognised when the Company’s right to receive the payment is established.
DR. REDDY’S LABORATORIES LIMITED
Sale of goods
Revenue is recognised when the significant risks and rewards of ownership have been transferred to the buyer, recovery of the consideration is probable, the associated costs and possible return of goods can be estimated reliably, there is no continuing management involvement with the goods and the amount of revenue can be measured reliably. Revenue from the sale of goods includes excise duty and is measured at the fair value of the consideration received or receivable, net of returns, sales tax and applicable trade discounts and allowances. Revenue includes shipping and handling costs billed to the customer.
Revenue from sales of generic products in India is recognised upon delivery of products to distributors by clearing and forwarding agents of the Company. Significant risks and rewards in respect of ownership of generic products are transferred by the Company when the goods are delivered to distributors from clearing and forwarding agents. Clearing and forwarding agents are generally compensated on a commission basis as a percentage of sales made by them. Revenue from sales of active pharmaceutical ingredients and intermediates in India is recognised on delivery of products to customers (generally formulation manufacturers), from the factories of the Company.
Revenue from export sales and other sales outside of India is recognised when the significant risks and rewards of ownership of products are transferred to the customers, which occurs upon delivery of the products to the customers unless the terms of the applicable contract provide for specific revenue generating activities to be completed, in which case revenue is recognised once all such activities are completed.
Profit share revenues
The Company from time to time enters into marketing arrangements with certain business partners for the sale of its products in certain markets. Under such arrangements, the Company sells its products to the business partners at a non-refundable base purchase price agreed upon in the arrangement and is also entitled to a profit share which is over and above the base purchase price. The profit share is typically dependent on the business partner’s ultimate net sale proceeds or net profits, subject to any reductions or adjustments that are required by the terms of the arrangement. Such arrangements typically require the business partner to provide confirmation of units sold and net sales or net profit computations for the products covered under the arrangement.
Revenue in an amount equal to the base purchase price is recognised in these transactions upon delivery of products to the business partners. An additional amount representing the profit share component is recognised as revenue in the period which corresponds to the ultimate sales of the products made by business partners only when the collectability of the profit share becomes probable and a reliable measurement of the profit share is available. Otherwise, recognition is deferred to a subsequent period pending satisfaction of such collectability and measurability requirements. In measuring the amount of profit share revenue to be recognised for each period, the Company uses all available information and evidence, including any confirmations from the business partner of the profit share amount owed to the Company, to the extent made available before the date the Company’s Board of Directors authorises the issuance of its financial statements for the applicable period.
Milestone payments and out licensing arrangements
Revenues include amounts derived from product out-licensing agreements. These arrangements typically consist of an initial up-front payment on inception of the license and subsequent payments dependent on achieving certain milestones in accordance with the terms prescribed in the agreement. Non-refundable up-front license fees received in connection with product out-licensing agreements are deferred and recognised over the period in which the Company has continuing performance obligations. Milestone payments which are contingent on achieving certain clinical milestones are recognised as revenues either on achievement of such milestones, if the milestones are considered substantive, or over the period the Company has continuing performance obligations, if the milestones are not considered substantive. If milestone payments are creditable against future royalty payments, the milestones are deferred and released over the period in which the royalties are anticipated to be paid.
Sales Returns
The Company accounts for sales returns accrual by recording an allowance for sales returns concurrent with the recognition of revenue at the time of a product sale. This allowance is based on the Company’s estimate of expected sales returns. The Company deals in various products and operates in various markets. Accordingly, the estimate of sales returns is determined primarily by the Company’s historical experience in the markets in which the Company operates. With respect to established products, the Company considers its historical experience of sales returns, levels of inventory in the distribution channel, estimated shelf life, product discontinuances, price changes of competitive products, and the introduction of competitive new products, to the extent each of these factors impact the Company’s business and markets. With respect to new products introduced by the Company, such products have historically been either extensions of an existing line of product where the Company has historical experience or in therapeutic categories where established products exist and are sold either by the Company or the Company’s competitors.
Services
Revenue from services rendered, which primarily relate to contract research, is recognised in the statement of profit and loss as the underlying services are performed. Upfront non-refundable payments received under these arrangements are deferred and recognised as revenue over the expected period over which the related services are expected to be performed.
License fee
The Company enters into certain dossier sales, licensing and supply arrangements with various parties. Income from licensing arrangements is generally recognised over the term of the contract. Some of these arrangements include certain performance obligations by the Company. Revenue from such arrangements is recognised in the period in which the Company completes all its performance obligations.
ALLCARGO LOGISTICS LIMITED
Revenue is recognised to the extent that it is probable that the economic benefits will flow to the Group and the revenue can be reliably measured, regardless of when the payment is being made. The Group has concluded that it is the principal in all of its revenue arrangements since it is the primary obligor in all the revenue arrangements as it has pricing latitude and is also exposed to credit risks. Since service tax is tax collected on value added to the service provided by the service provider, on behalf of the government, the same is excluded from revenue. The specific recognition criteria described below must also be met before revenue is recognised.
Multimodal transport income
Export revenue is recognised on sailing of vessel and import revenue is recognised upon rendering of related services.
Container freight station income
Income from Container Handling is recognised as and when related services are performed. Income from Ground Rent is recognised for the period the container is lying in the Container Freight Station. However, in case of long standing containers, the income is accounted on accrual basis to the extent of its recoverability.
Contract logistic income
Contract logistic service charges and management fees are recognised as and when the services are performed as per the contractual terms.
Project and equipment income
Revenue for project related services includes rendering of end to end logistics services comprising of activities related to consolidation of cargo, transportation, freight forwarding and customs clearance services. Income and fees are recognized on percentage of completion method. Percentage of completion is arrived at on the basis of proportionate costs incurred to date of total estimated costs, milestones agreed or any other suitable basis, provided there is a reasonable completion of activity and provision of services.
Income from hiring of equipments including trailers cranes etc. is recognised on the basis of actual usage of the equipments as per the contractual terms.
Vessel operating business
In case of vessel operating business, freight and demurrage earnings are recognised on percentage of completion. Charter hire earnings are accrued on time basis.
Others
Reimbursement of cost is netted off with the relevant expenses incurred, since the same are incurred on behalf of the customers.
Interest income is recognised on time proportion basis. Interest income is included in finance income in the Statement of Profit and Loss.
Dividend income is recognised when the Group’s right to receive the payment is established, which is generally when shareholders approve the dividend.
Rental income arising from operating leases on investment properties is accounted for on a straightline basis over the lease terms and is included in revenue in the Statement of profit and loss due to its operating nature.
BIOCON LIMITED
i. Sale of goods
Revenue is recognised when the significant risks and rewards of ownership have been transferred to the buyer, recovery of the consideration is probable, the associated costs and possible return of goods can be estimate reliably, there is no continuing management involvement with the goods and the amount of revenue can be measured reliably. The timing of transfers of risks and rewards varies depending on the individual terms of sale. Revenue from the sale of goods includes excise duty and is measured at the fair value of the consideration received or receivable, net of returns, sales tax and applicable trade discounts and allowances.
ii. Milestone payments and out licensing arrangements
The Company enters into certain dossier sales, licensing and supply arrangements that, in certain instances, include certain performance obligations. Based on an evaluation of whether or not these obligations are inconsequential or perfunctory, we recognise or defer the upfront payments received under these arrangements. The deferred revenue is recognised in the consolidated statement of operations in the period in which we complete our remaining performance obligations.
These arrangements typically also consist of subsequent payments dependent on achieving certain milestones in accordance with the terms prescribed in the agreement. Milestone payments which are contingent on achieving certain clinical milestones are recognized as revenues either on achievement of such milestones, if the milestones are considered substantive, or over the period we have continuing performance obligations, if the milestones are not considered substantive. If milestone payments are creditable against future royalty payments, the milestones are deferred and released over the period in which the royalties are anticipated to be paid.
iii. Contract research and manufacturing services income
In respect of contracts involving research services, in case of ‘time and materials’ contracts, contract research fee are recognised as services are rendered, in accordance with the terms of the contracts. Revenues relating to fixed price contracts are recognised based on the percentage of completion method determined based on efforts expended as a proportion to total estimated efforts. The Group monitors estimates of total contract revenue and cost on a routine basis throughout the contract period. The cumulative impact of any change in estimates of the contract revenue or costs is reflected in the period in which the changes become known. In the event that a loss is anticipated on a particular contract, provision is made for the estimated loss.
In respect of contracts involving sale of compounds arising out of contract research services for which separate invoices are raised, revenue is recognised when the significant risks and rewards of ownership of the compounds have passed to the buyer, and comprise amounts invoiced for compounds sold. In respect of services, the Group collects service tax as applicable, on behalf of the government and, therefore, it is not an economic benefit flowing to the Group. Hence, it is excluded from revenue.
iv. Sales Return Allowances
The Group accounts for sales return by recording an allowance for sales return concurrent with the recognition of revenue at the time of a product sale. The allowance is based on Group’s estimate of expected sales returns. The estimate of sales return is determined primarily by the Group’s historical experience in the markets in which the Group operates.
v. Dividends
Dividend is recognised when the Group’s right to receive the payment is established, which is generally when shareholders approve the dividend.
vi. Rental income
Rental income from investment property is recognised in statement of profit and loss on a straight-line basis over the term of the lease except where the rentals are structured to increase in line with expected general inflation. Lease incentives granted are recognised as an integral part of the total rental income, over the term of the lease.
vii. Contribution received from customers/co-development partners towards plant and equipment
Contributions received from customers/co-development partners towards items of property, plant and equipment which require an obligation to supply goods to the customer in the future, are recognised as a credit to deferred revenue. The contribution received is recognised as revenue from operations over the useful life of the assets. The Group capitalises the gross cost of these assets as the Group controls these assets.
LARSEN & TOUBRO LIMITED
Revenue is recognised based on nature of activity when consideration can be reasonably measured and recovered with reasonable certainty. Revenue is measured at the fair value of the consideration received or receivable and is reduced for estimated customer returns, rebates and other similar allowances.
(i) Revenue from operations
Revenue includes excise duty and adjustments made towards liquidated damages and price variation wherever applicable. Escalation and other claims, which are not ascertainable/acknowledged by customers are not taken into account.
A. Sale of goods
Revenue from sale of manufactured and traded goods is recognised when the goods are delivered and titles have passed, provided all the following conditions are satisfied:
1. significant risks and rewards of ownership of the goods are transferred to the buyer;
2. the Group retains neither continuing managerial involvement to the degree usually associated with ownership nor effective control over the good sold;
3. the amount of revenue can be measured reliably;
4. it is probable that the economic benefits associated with the transaction will flow to the Group; and
5. the costs incurred or to be incurred in respect of the transaction can be measured reliably
B. Revenue from construction/project related activity and contracts for supply/commissioning of complex plant and equipment is recognised as follows:
1. Cost plus contracts: Revenue from cost plus contracts is recognised by reference to the recoverable costs incurred during the period plus the margin as agreed with the customer.
2. Fixed price contracts: Contract revenue is recognised only to the extent of cost incurred till such time the outcome of the job cannot be ascertained reliably subject to the condition that it is probable such cost will be recoverable.
When the outcome of the contract is ascertained reliably, contract revenue is recognised at cost of work performed on the contract plus proportionate margin, using the percentage of completion method. Percentage of completion is the proportion of cost of work performed to-date, to the total estimated contract costs.
The estimated outcome of a contract is considered reliable when all the following conditions are satisfied:
i. the amount of revenue can be measured reliably;
ii. it is probable that the economic benefits associated with the contract will flow to the Group;
iii. the stage of completion of the contract at the end of the reporting period can be measured reliably; and
iv. the costs incurred or to be incurred in respect of the contract can be measured reliably
Expected loss, if any, on a contract is recognised as expense in the period in which it is foreseen, irrespective of the stage of completion of the contract.
For contracts where progress billing exceeds the aggregate of contract costs incurred to date plus recognised profits (or recognised losses as the case may be), the surplus is shown as the amount due to customers. Amounts received before the related work is performed are included in the consolidated Balance Sheet, as a liability towards advance received. Amount billed for work performed but yet to be paid by the customer are disclosed in the consolidated Balance Sheet as trade receivables. The amount of retention money held by the customers is disclosed as part of other current assets and is reclassified as trade receivables when it becomes due for payment.
C. Revenue from construction/project related activity and contracts executed in joint arrangements under work-sharing arrangement [being joint operations, in terms of Ind AS 111 “Joint Arrangements”], is recognised on the same basis as adopted in respect of contracts independently executed by the Group.
D. Revenue from property development activity which are in substance similar to delivery of goods is recognised when all significant risks and rewards of ownership in the land and/or building are transferred to the customer and a reasonable expectation of collection of the sale consideration from the customer exists.
Revenue from those property development activities in the nature of a construction contract is recognised based on the ‘Percentage of completion method’ (POC) when the outcome of the contract can be estimated reliably upon fulfillment of all the following conditions:
1. all critical approvals necessary for commencement of the project have been obtained;
2. contract costs for work performed (excluding cost of land/developmental rights and borrowing cost) constitute atleast 25% of the estimated total contract costs representing a reasonable level of development;
3. at least 25% of the saleable project area is secured by contracts or agreements with buyers; and
4. at least 10% of the total revenue as per the agreements of sale or any other legally enforceable documents is realised at the reporting date, in respect of each of the contracts and the parties to such contracts can be reasonably expected to comply with the contractual payment terms.
The costs incurred on property development activities are carried as “Inventories” till such time the outcome of the project cannot be estimated reliably and all the aforesaid conditions are fulfilled. When the outcome of the project can be ascertained reliably and all the aforesaid conditions are fulfilled, revenue from property development activity is recognised at cost incurred plus proportionate margin, using percentage of completion method. Percentage of completion is determined based on the proportion of actual cost incurred to the total estimated cost of the project. For the purpose of computing percentage of construction, cost of land, developmental rights and borrowing costs are excluded.
Expected loss, if any, on the project is recognised as an expense in the period in which it is foreseen, irrespective of the stage of completion of the contract.
In the case of the developmental project business and the realty business, revenue includes profit on sale of stake in the subsidiary and/or joint venture companies as the divestments are inherent in the business model.
E. Rendering of services
Revenue from rendering services is recognised when the outcome of a transaction can be estimated reliably by reference to the stage of completion of the transaction. The outcome of a transaction can be estimated reliably when all the following conditions are satisfied:
1. the amount of revenue can be measured reliably;
2. it is probable that the economic benefits associated with the transaction will flow to the Group;
3. the stage of completion of the transaction at the end of the reporting period can be measured reliably; and
4. the costs incurred or to be incurred in respect of the transaction can be measured reliably
Stage of completion is determined by the proportion of actual costs incurred to date to the estimated total costs of the transaction. Unbilled revenue represents value of services performed in accordance with the contract terms but not billed. In respect of information technology (IT) business and technology services business, revenue from contracts awarded on time and material basis is recognised when services are rendered and related costs are incurred. Revenue from fixed price contracts is recognised using the proportionate completion method.
F. Revenue from contracts for rendering of engineering design services and other services which are directly related to the construction of an asset is recognised on similar basis as stated in (i) B above.
G. Income from hire purchase and lease transactions is accounted on accrual basis, pro-rata for the period, at the rates implicit in the transaction. Income from bill discounting, advisory and syndication services and other financing activities is accounted on accrual basis. Income from interest-bearing assets is recognised on accrual basis over the life of the asset based on the constant effective yield.
H. Revenue on account of construction services rendered in connection with Build-Operate-Transfer (BOT) projects undertaken by the Group is recognised during the period of construction using percentage of completion method. After the completion of construction period, revenue relatable to toll collections of such projects from users of facilities are accounted when the amount is due and recovery is certain. License fees for way-side amenities are accounted on accrual basis.
I. Commission income is recognised as and when the terms of the contract are fulfilled.
J. Income from investment management fees is recognised in accordance with the contractual terms and the SEBI regulations based on average Assets Under Management (AUM) of mutual fund schemes over the period of the agreement in terms of which services are performed. Portfolio management fees are recognised in accordance with the related contracts entered with the clients over the period of the agreement. Trusteeship fees are accounted on accrual basis.
K. Revenue from port operation services is recognised on completion of respective services or as per terms agreed with the port operator, wherever applicable.
L. Revenue from charter hire is recognised based on the terms of the time charter agreement.
M. Revenue from operation and maintenance services of power plant receivable under the Power Purchase Agreement is recognised on accrual basis.
N. Other operational revenue:
Other operational revenue represents income earned from the activities incidental to the business and is recognized when the right to receive the income is established as per the terms of the contract.
(ii) Other income
A. Interest income is accrued on a time basis by reference to the principal outstanding and the effective interest rate.
B. Dividend income is accounted in the period in which the right to receive the same is established.
C. Other Government grants, which are revenue in nature and are towards compensation for the qualifying costs, incurred by the Group, are recognised as income in the Statement of Profit and Loss in the period in which such costs are incurred.
D. Other items of income are accounted as and when the right to receive arises and it is probable that the economic benefits will flow to the group and the amount of income can be measured reliably.
MAHINDRA LIFESPACE DEVELOPERS LIMITED
Revenue is measured at the fair value of the consideration received or receivable. Revenue is reduced for estimated customer returns, rebates and other similar allowances.
Income from projects
Income from real estate sales is recognised on the transfer of all significant risks and rewards of ownership to the buyers and it is not unreasonable to expect ultimate collection and no significant uncertainty exists regarding the amount of consideration. However, if at the time of transfer substantial acts are yet to be performed under the contract, revenue is recognised on proportionate basis as the acts are performed, i.e. on the percentage of completion basis.
When the outcome of a construction contract can be estimated reliably, revenue and costs are recognised by reference to the stage of completion of the contract activity at the end of the reporting period, measured based on the proportion of contract costs incurred for work performed to date relative to the estimated total contract costs, except where this would not be representative of the stage of completion. Variations in contract work, claims and incentive payments are included to the extent that the amount can be measured reliably and its receipt is considered probable.
When the outcome of a construction contract cannot be estimated reliably, contract revenue is recognised to the extent of contract costs incurred that it is probable will be recoverable. Contract costs are recognised as expenses in the period in which they are incurred.
When it is probable that total contract costs will exceed total contract revenue, the expected loss is recognised as an expense immediately.
When contract costs incurred to date plus recognised profits less recognised losses exceed progress billings, the surplus is shown as amounts due from customers for contract work. For contracts where progress billings exceed contract costs incurred to date plus recognised profits less recognised losses, the surplus is shown as the amounts due to customers for contract work. Amounts received before the related work is performed are included in the balance sheet, as a liability, as advances received. Amounts billed for work performed but not yet paid by the customer are included in the consolidated balance sheet under trade receivables, whereas amounts not billed for work performed are included as unbilled revenue under other current assets. Further, in accordance with the Guidance Note on Accounting for Real Estate Transactions (for entities to whom Ind AS is applicable) issued by the Institute of Chartered Accountants of India, revenues will be recognized from these real estate projects only when
i. All critical approvals necessary for commencement of the project have been obtained and
ii. the actual construction and development cost incurred is at least 25% of the total construction and development cost (without considering land cost) and
iii. when at least 10% of the sales consideration is realised and
iv. where 25% of the total saleable area of the project is secured by contracts of agreement with buyers.
Income from sale of land and other rights
Revenue from sale of land and other rights are considered upon transfer of all significant risks and rewards of ownership of such real estate/property as per the terms of the contract entered into with the buyers, which generally with the firmity of the sale contracts/agreements.
Income from Project Management
Project Management Fees receivable on fixed period contracts is accounted over the tenure of the contract/agreement. Where the fee is linked to the input costs, revenue is recognised as a proportion of the work completed based on progress claims submitted. Where the management fee is linked to the revenue generation from the project, revenue is recognised on the percentage of completion basis.
Land Lease Premium
Land lease premium is recognized as income upon creation of leasehold rights in favour of the lessee or upon an agreement to create leasehold rights with handing over of possession. Property lease rentals, income from operation & maintenance charges and water charges are recognized on an accrual basis as per terms of the agreement with the lessees.
Dividend and interest income
Dividend income from investment in mutual funds is recognised when the unit holder’s right to receive payment has been established (provided that it is probable that the economic benefits will flow to the company and the amount of income can be measured reliably).
Interest income from a financial asset is recognised when it is probable that the economic benefits will flow to the Company and the amount of income can be measured reliably. Interest income is accrued on a time basis, by reference to the principal outstanding and at the effective interest rate applicable, which is the rate that exactly discounts estimated future cash receipts through the expected life of the financial asset to that asset’s net carrying amount on initial recognition.
SHOPPERS STOP LIMITED
Revenue is recognised when it is probable that the economic benefits will flow to the Group and the amount of income can be measured reliably.
Retail Sale of Products
Revenue from Retail sales is measured at the fair value of the consideration received or receivable. Revenue is reduced for discounts and rebates, and, value added tax and sales tax. Retail sales are recognised on delivery of the merchandise to the customer, when the property in goods and significant risks and rewards are transferred for a price and no effective ownership control is retained. Where the Group is the principal in the transaction the Sales are recorded at their gross values. Where the Group is effectively the agent in the transaction, the cost of the merchandise is disclosed as a deduction from the gross value. (Refer Note 19)
Point award schemes
The fair value of the consideration received or receivable on sale of goods that result in award credits for customers, under the Group’s point award schemes, is allocated between the goods supplied and the award credits granted. The consideration allocated to the award credits is measured by reference to their fair value from the standpoint of the holder and is recognised as revenue on redemption and/or expected redemption after breakage.
Property option revenue
The Group has acquired the rights to sell flats in a property being constructed by a third party (termed Property Options), which are initially recognized at cost and at each reporting date valued at lower of cost and net realisable value. Sale of option inventory is recognised when there is a transfer of significant risks and rewards in accordance with the terms of the sale contracts. To the extent the transactions contain a significant financing component, it is adjusted from the total consideration using the appropriate discount rate and recognized in profit or loss over the credit period.
Gift vouchers
The amount collected on sale of a gift voucher is recognized as a liability and transferred to revenue (sales) when redeemed or to revenue (other retail operating revenue) on expiry.
Other retail operating revenue
Revenue from store displays and sponsorships are recognised based on the period for which the products or the sponsors’ advertisements are promoted / displayed. Facility management fees are recognized pro-rata over the period of the contract.
Interest income
Interest income is accrued on a time basis, by reference to the principal outstanding and at the effective interest rate applicable.
THE INDIAN HOTELS COMPANY LIMITED
Income from operation
Revenue is measured at the fair value of the consideration received or receivable. Revenue comprises sale of rooms, food and beverages and allied services relating to hotel operations, including management fees for the management of the hotels. Revenue is recognised upon rendering of the service, provided pervasive evidence of an arrangement exists, tariff / rates are fixed or are determinable and collectability is reasonably certain. Revenue from sale of goods or rendering of services is net of Indirect taxes, returns and discounts.
The Group operates loyalty programme, which allows its eligible customers to earn points based on their spending at the hotels. The points so earned by such customers are accumulated. The revenue related to award points is deferred and on redemption of the award points, the revenue is recognised. Membership fees received from the loyalty program is recognised as revenue on time-proportion basis.
Management fees earned from hotels managed by the Group are usually under long-term contracts with the hotel owner and is recognised when earned in accordance with the terms of the contract.
Interest
Interest income is accrued on a time proportion basis using the effective interest rate method.
Dividend
Dividend income is recognised when the Group’s right to receive the amount is established.
Critical accounting estimates and judgements
Loyalty programme
The Group estimates the fair value of points awarded under the Loyalty programme by applying statistical techniques. Inputs include making assumptions about expected breakages, the mix of products that will be available for redemption in the future and customer preferences, redemption at own hotels and other participating hotels.
VEDANTA LIMITED
Revenues are measured at the fair value of the consideration received or receivable, net of discounts, volume rebates, outgoing sales taxes and other indirect taxes excluding excise duty.
Excise duty is a liability of the manufacturer which forms part of the cost of production, irrespective of whether the goods are sold or not. Since the recovery of excise duty flows to the Group on its own account, revenue includes excise duty.
Sale of goods
Revenues from sales of goods are recognised when all significant risks and rewards of ownership of the goods sold are transferred to the customer which usually is on delivery of the goods to the shipping agent. Revenues from sale of by-products are included in revenue.
Certain of the Group’s sales contracts provide for provisional pricing based on the price on The London Metal Exchange (“LME”), as specified in the contract, when shipped. Final settlement of the price is based on the applicable price for a specified future period. The Group’s provisionally priced sales are marked to market using the relevant forward prices for the future period specified in the contract and is adjusted in revenue.
Revenue from oil, gas and condensate sales represents the Group’s share (net of Government’s share of profit petroleum) of oil, gas and condensate production, recognized on a direct entitlement basis, when significant risks and rewards of ownership are transferred to the buyers. Government’s share of profit petroleum is accounted for when the obligation (legal or constructive), in respect of the same arises.
Revenue from sale of power is recognised when delivered and measured based on rates as per bilateral contractual agreements with buyers and at rate arrived at based on the principles laid down under the relevant Tariff Regulations as notified by the regulatory bodies, as applicable.
Where the Group acts as a port operator, revenues and costs relating to each construction contract of service concession arrangements are recognised over the period of each arrangement only to the extent of costs incurred that are probable of recovery. Revenues and costs relating to operating phase of the port contract are measured at the fair value of the consideration received or receivable for the services provided.
Revenue from rendering of services is recognised on the basis of work performed.
Interest income
Interest income from debt instruments is recognised using the effective interest rate method. The effective interest rate is the rate that exactly discounts estimated future cash receipts through the expected life of the financial asset to the gross carrying amount of a financial asset. When calculating the effective interest rate, the Group estimates the expected cash flows by considering all the contractual terms of the financial instrument (for example, prepayment, extension, call and similar options) but does not consider the expected credit losses.
Dividends
Dividend income is recognised in the consolidated statement of profit and loss only when the right to receive payment is established, provided it is probable that the economic benefits associated with the dividend will flow to the Group, and the amount of the dividend can be measured reliably.
INTERGLOBE AVIATION LIMITED
Revenue is recognised to the extent that it is probable that the economic benefits will flow to the Group and the revenue can be reliably measured, regardless of when the payment is being made. Revenue is measured at the fair value of the consideration received or receivable, net of discounts. Revenue is recorded, provided the recovery of consideration is probable and determinable.
Passenger and cargo revenue
Passenger revenue is recognised on flown basis i.e. when the service is rendered, net of discounts given to the passengers, applicable taxes and airport levies such as passenger service fee, user development fee, etc., if any. Cargo revenue is recognised when service is rendered i.e. goods are transported, net of airport levies and applicable taxes.
The sale of tickets not yet flown is credited to unearned revenue i.e. ‘Forward Sales’ disclosed under other current liabilities. Fees charged for modification and cancelation of flight tickets and towards special service request are recognised as revenue on rendering of the service.
The unutilised balance in Forward Sales for more than a year is recognised as revenue based on historical statistics, data and management estimates and considering the Group’s cancellation policy.
In flight sales
Revenue from sale of merchandise is recognised on transfer of all significant risks and rewards to the passenger. Revenue from sale of food and beverages is recognised on sale of goods to the passenger, net of applicable taxes.
Tour and packages
Income and related expense from sale of tours and packages are recognised upon services being rendered and where applicable, are stated net of discounts and applicable taxes. The income and expense are stated on gross basis.
The sale of tours and packages not yet serviced is credited to unearned revenue, i.e. ‘Forward Sales’ disclosed under other current liabilities.
Interest income
Interest income on financial assets (including deposits with banks) is recognised using the effective interest rate method on a time proportionate basis.
Claims and other credits – non-refundable
Claims relate to reimbursement towards operational expenses such as operating lease rentals, aircraft repair and maintenance, etc., are adjusted against such expenses over the estimated period for which these reimbursements pertain. When credits are used against purchase of goods and services such as operating lease rentals, aircraft repair and maintenance, etc., these are adjusted against such expenses on utilization basis. The claims and credits are netted of against related expense arising on the same transaction as it reflects the substance of transaction. Moreover, any claim or credit not related to reimbursement towards operational expenses or used for purchase of goods and services are recognised as income in the Consolidated Statement of Profit and Loss when a contractual entitlement exists, the amount can be reliably measured and receipt is virtually certain.
Glimpses Of Supreme Court Rulings
5. (2018) 400 ITR 9 (SC)
DIT
vs. S.R.M.B. Dairy Farming (P.) Ltd.
Dated:
23.11.2017
Appeal to
the High Court – Monetary Limits for Litigation by Department – Circular would
apply even to the pending matters but subject to two caveats provided in Surya
Herbal case
The
Supreme Court was concerned with the implementation of Instruction No.3 of
2011, dated February 9, 2011, providing for appeals not to be filed before the
High Court(s) where the tax impact was less than Rs.10 lakh which was issued in
supersession of the earlier Instruction No. 1979 of 2000, dated March 27, 2000.
The instruction/circular in
question was stated to have a prospective effect as per the revenue and, thus,
cases which were pending in the High Court and had been filed prior to the
instruction in question (Instruction No.3) but had tax effect of less than
Rs.10 lakh were, thus, required to be determined on their merits and not be
dismissed by applying the circular/instruction.
The Supreme Court noted
that there had been a divergence of legal opinion on this aspect amongst the
High Courts.
The Madras High Court,
Kerala High Court, Chhattisgarh High Court and the Punjab and Haryana High Court
had taken a view that the existing circular/instruction prevailing at the
relevant time when the appeal/reference was made would apply and there would be
no retrospective application of the circular.
On the other hand, the line
of reasoning adopted by the Bombay High Court, Madhya Pradesh High Court, Delhi
High Court and the Karnataka High Court was, that as the value of money went
down and the cases of the Revenue increased, the choking docket required such
an endeavour and there was no reason why the same policy should not be applied
to old matters to achieve the objective of the policy laid down by the Central
Board of Direct Taxes (“CBDT”). An earlier circular dated June 5, 2007 issued
by the Central Board of Direct Taxes was also taken note of which required all
the appeals pending before the court to be examined, with a direction to
withdraw the cases wherein the criteria for monetary limit as per the
prevailing instructions was not satisfied unless the question of law involved
or raised in the appeal referred to the High Court was of recurring nature, and
therefore, required to be settled by a higher court.
The Supreme Court noted
that the view adopted by the Delhi Court making the Circular applicable to pending matters came
up before a three-Judges Bench of the Supreme Court in SLP(C) No.CC 13694 of
2011 titled CIT vs. Surya Herbal Ltd. (2013) 350 ITR 300 (SC).
According to the Supreme
Court, the aforesaid order, should have laid the controversy to rest. The
retrospective applicability of the Circular dated February 9, 2011 was not
interfered with, but with two caveats – (i) Circular should not be applied by
the High Courts ipso facto when the matter had a cascading effect; (ii)
where common principles may be involved in subsequent group of matters or a
large number of matters. In that matter it was opined that in such cases, the
attention of the High Court would be drawn and the Department was even given
liberty to move the High Court in two weeks.
The Supreme Court was of
the view that this order held the field and should continue to hold the field.
According to the Supreme Court therefore, the Circular would apply even to the
pending matters but subject to two caveats provided in Surya Herbal case (supra).
6. (2018) 400 ITR 26 (SC)
Mathur
Marketing Pvt. Ltd. vs. CIT
Dated:
12.09.2017
Appeal to
High Court – If an issue is raised specifically before the High Court and it
has not been taken into consideration by the High Court in passing the order,
the appropriate remedy for the aggrieved party would be to file an application
for review of the said order
Vide order dated August 10,
2017, the Supreme Court had permitted the appellant to examine as to whether
the oral arguments were advanced on substantial question No.3 raised in the
memo of appeal filed before the High Court u/s. 260A of the Income-tax Act,
1961.
An affidavit had been filed
on behalf of the appellant in which it had been stated that the issue of powers
of the Commissioner (Appeals) had come in appeal under Rule 46A and were
specifically raised before the High Court.
In that view of the matter,
the Supreme Court was of the opinion that, if indeed such issue was raised
specifically before the High Court and it had not been taken into consideration
by the High Court in passing the impugned order dated January 17, 2006, the
appropriate remedy for the appellant would be to file an application for review
of the said order.
7. (2018) 400 ITR 23 (SC)
CIT
vs. Chet Ram (HUF)
Dated:
12.09.2017
Capital
Gains – Compulsory Acquisition – Enhancement of Compensation
In the appeals before the
Supreme Court, the only question that arose for consideration was as to whether
the respondents-assessees who had received some amount of enhanced compensation
as also interest thereon under an interim order passed by the High Court in
pending appeals relating to land acquisition matter were liable to be assessed for
income-tax in the year in which it has been received or not.
The Supreme Court noted
that in the case of CIT vs. Ghanshyam (HUF) (2009) 315 ITR 1 (SC), it
had considered the provisions of section 45(5) of the Act and had held that in
view of the amendment in the Act, the person who has received enhanced
compensation and interest thereon even by an interim order passed by the court
would be assessed to tax for that enhanced compensation.
Following the above
decision, the Supreme Court allowed the appeals setting aside the orders of the
High Court as also for the Tribunal and held that the Respondents were liable
to pay tax on enhanced amount of compensation and interest received by them
during the year in question.
8. (2018) 400 ITR 141 (SC)
DCIT
vs. ACE Multi Axes Systems Ltd.
A.Y.: 2005-06 Dated: 05.12.2017
Section
80IB – Deduction in respect of SSI – The scheme of the statute does not in any
manner indicate that the incentive provided has to continue for 10 consecutive
years irrespective of continuation of eligibility conditions. Applicability of
incentive is directly related to the eligibility and not de hors the same. If
an industrial undertaking does not remain small scale undertaking or if it does
not earn profits, it cannot claim the incentive
The
respondent-assessee was engaged in manufacture and sale of components/parts of
CNC lathes and similar machines. Its income was assessed for the assessment
year 2005-2006 at Rs. 1,79,82,653/-. However, the Commissioner of Income Tax,
interfered with the assessment u/s. 263 to the extent it allowed deduction u/s.
80IB(3) of the Act and directed fresh decision on the said issue vide order
dated 16th January, 2009. Thereafter, the Assessing authority on 14th
December, 2009 disallowed the claim of Rs. 75,81,910/- towards deduction u/s.
80IB(3). The same was upheld by the Commissioner in appeal and the Income Tax
Appellate Tribunal in second appeal. However, the High Court had reversed the
said orders and upheld the claim.
The issue before Supreme
Court was when once the eligible business of an assessee is granted the benefit
of deduction u/s. 80-IB on satisfaction of requisite conditions (including the
condition of being small-scale industry) in the initial assessment years,
whether such benefit can be denied for subsequent years [during the qualifying
period of ten consecutive years] when it ceases to be a small-scale industry.
The Supreme Court observed
that the scheme of the statute does not in any manner indicate that the
incentive provided has to continue for 10 consecutive years irrespective of
continuation of eligibility conditions. Applicability of incentive is directly
related to the eligibility and not de hors the same. If an industrial
undertaking does not remain small scale undertaking or if it does not earn
profits, it cannot claim the incentive. No doubt, certain qualifications are
required only in the initial assessment year, e.g. requirements of initial
constitution of the undertaking. Clause 2 limits eligibility only to those
undertakings as are not formed by splitting up of existing business, transfer
to a new business of machinery or plant previously used. Certain other
qualifications have to continue to exist for claiming the incentive such as
employment of particular number of workers as per sub-clause 4(i) of Clause 2
in an assessment year. For industrial undertakings other than small scale
industrial undertakings, not manufacturing or producing an Article or things
specified in 8th Schedule is a requirement of continuing nature.
The Supreme Court on
examination of the scheme of the provision held that there is no manner of
doubt that incentive meant for small scale industrial undertakings cannot be
availed by industrial undertakings which do not continue as small scale
industrial undertakings during the relevant period. Each assessment year is a
different assessment year, except for block assessment.
The Supreme Court was
unable to appreciate the logic of the observations made by the High Court that
the object of legislature is to encourage industrial expansion which implies
that incentive should remain applicable even where on account of industrial
expansion small scale industrial undertakings ceases to be small scale
industrial undertakings. According to the Supreme Court, incentive is given to
a particular category of industry for a specified purpose. An incentive meant
for small scale industrial undertaking cannot be availed by an Assessee which
is not such an undertaking. It does not, in any manner, mean that the object of
permitting industrial expansion is defeated, if benefit is not allowed to other
undertakings.
9. (2018) 400 ITR 279 (SC)
CIT
vs. Chaphalkar Brothers
Dated:
07.12.2017
Capital or
revenue receipt – Subsidy – The object of the grant of the subsidy was in order
that persons come forward to construct Multiplex Theatre Complexes, the idea
being that exemption from entertainment duty for a period of three years and
partial remission for a period of two years should go towards helping the
industry to set up such highly capital intensive entertainment centres – The
fact that the subsidy took a particular form and the fact that it was granted
only after commencement of production would make no difference – The subsidy
was capital in nature
The Supreme Court was
concerned with a batch of appeals arising from the judgements dealing with
cases came from Maharashtra and West Bengal.
The Civil Appeals relating
to Maharashtra were concerned with the subsidy scheme of the State Government
which took the form of an exemption of entertainment duty in Multiplex Theatre
Complexes newly set up, for a period of three years, and thereafter payment of
entertainment duty @ 25% for the subsequent two years. The necessary amendment
in the Bombay Entertainments Duty Act to effectuate the aforesaid subsidy
scheme was first done by way of an ordinance before 4th December,
2001, which ultimately became part of an Amendment Act.
For the sake of
convenience, the Supreme Court took the facts of one of the matters before it,
namely, Civil Appeal Nos. 6513-6514 of 2012, the assessment order in that case
(dated 21.01.2006) found that the aforesaid scheme was really to support the
on-going activities of the multiplex and not for its construction. Since the
scheme took the form of a charge on the gross value of the ticket and
contributed towards the day to-day running expenses, the Assessing Officer held
that it was in the nature of a revenue receipt. The appeal filed before the
Commissioner met with the same fate and was dismissed substantially on the same
reasoning. However, the Income-Tax Appellate Tribunal by its judgment dated
30.06.2009, went into the matter in some detail, and after setting out the
object of the aforesaid scheme allowed the appeal of the assessee. The appeal
before the High Court was dismissed.
The Supreme Court applying
the tests contained in both Sahney Steel and Press Works Ltd. vs. CIT (228
ITR 253 (SC) as well as CIT vs. Ponni Sugars and Chemicals Ltd. (2008)
306 ITR 392 (SC), was of the view that the object, as stated in the
statement of objects and reasons, of the amendment ordinance was that since the
average occupancy in cinema theatres has fallen considerably and hardly any new
theatres have been started in the recent past, the concept of a Complete Family
Entertainment Centre, more popularly known as Multiplex Theatre Complex, has
emerged. These complexes offer various entertainment facilities for the entire
family as a whole. It was noticed that these complexes are highly capital
intensive and their gestation period is quite long and therefore, they need
Government support in the form of incentives qua entertainment duty. It
was also added that government with a view to commemorate the birth centenary
of late Shri V. Shantaram decided to grant concession in entertainment duty to
Multiplex Theatre Complexes to promote construction of new cinema houses in the
State. According to the Supreme Court the aforesaid object was clear and
unequivocal. The object of the grant of the subsidy was in order that persons
come forward to construct Multiplex Theatre Complexes, the idea being that
exemption from entertainment duty for a period of three years and partial
remission for a period of two years should go towards helping the industry to
set up such highly capital intensive entertainment centres. This being the
case, it was difficult to accept Revenue’s argument that it is only the
immediate object and not the larger object which must be kept in mind in that
the subsidy scheme kicks in only post construction, that is when cinema tickets
are actually sold. The Supreme Court opined that the object of the scheme is
only one-there was no larger or immediate object. According to the Supreme
Court the fact that object was carried out in a particular manner was
irrelevant, as had been held in both Ponni Sugar and Sahney Steel.
The Supreme Court therefore
had no hesitation in holding that the finding of the Jammu and Kashmir High
Court in Shree Balaji Alloys vs. CIT (2011) 333 ITR 335 (J&K) on the
facts of the incentive subsidy contained in that case was absolutely correct.
Once the object of the subsidy was to industrialise the State and to generate
employment in the State, the fact that the subsidy took a particular form and
the fact that it was granted only after commencement of production would make
no difference.
The Supreme Court further held that
since the subsidy scheme in the West Bengal case was similar to the scheme in
the Maharashtra case, being to encourage development of Multiplex Theatre
Complexes which are capital intensive in nature, and since the subsidy scheme
in that case was also similar to the Maharashtra cases, in that the amount of
entertainment tax collected was to be retained by the new Multiplex Theatre
Complexes for a period not exceeding four years, the West Bengal cases must
follow the judgement that had been delivered in the Maharashtra case.
Glimpses Of Supreme Court Rulings
National Travel Services vs. CIT (2018) 401 ITR 154 (SC)
The Assessee, a partnership firm consisted of three partners, namely, Mr. Naresh Goyal, Mr. Surinder Goyal and M/s. Jet Enterprises Private Limited having a profit sharing ratio of 35%, 15% and 50% respectively. The Assessee firm had taken a loan of Rs. 28,52,41,516/- from M/s Jetair Private Limited, New Delhi. In this Company, the Assessee subscribed to the equity capital of the aforesaid Company in the name of two of its partners, namely, Mr. Naresh Goyal and Mr. Surinder Goyal totaling 48.19 per cent of the total shareholding. Thus, Mr. Naresh Goyal and Mr. Surinder Goyal were shareholders on the Company’s register as members of the Company. They held the aforesaid shares for and on behalf of the firm, which happened to be the beneficial shareholder.
The question that arose before the Supreme Court in this appeal was, as to whether section 2(22)(e) of the Act was attracted inasmuch as a loan had been made to a shareholder, who was a person who was the beneficial owner of shares holding not less than 10% of the voting power in the Company, and whether the loan was made to any concern in which such shareholder was a partner and in which he had a substantial interest, which is defined as being an interest of 20% or more of the share of the profits of the firm.
Before the Supreme Court, the assessee relied upon the judgement of the Delhi High Court in CIT vs. Ankitech Private Limited (2012) 340 ITR 14 (Del) in which it was held that the expression “shareholder” would mean a registered shareholder and also placed on an order dated 05.10.2017 passed by the Supreme Court in Civil Appeal No. 3961 of 2013 [C.I.T., Delhi-II vs. Madhur Housing and Development Company] in which the Supreme Court had expressly affirmed the reasoning of the Delhi High Court and contended that it was clear that the firm, not being a registered shareholder, could not possibly be a person to whom section 2(22)(e) would apply.
The Supreme Court, after hearing the parties was of the view that Ankitech’s case was wrongly decided. According to the Supreme Court, “shareholder”, post amendment, had only to be a person who is the beneficial owner of shares. One cannot be a registered owner and beneficial owner in the sense of a beneficiary of a trust or otherwise at the same time. It was clear therefore that the moment there is a shareholder, who need not necessarily be a member of the Company on its register, who is the beneficial owner of shares, the section gets attracted without more. To state, therefore, that two conditions have to be satisfied, namely, that the shareholder must first be a registered shareholder and thereafter, also be a beneficial owner was not only mutually contradictory but was plainly incorrect.
The Supreme Court was prima facie of the view that the Ankitech judgement (supra) required to be reconsidered, and therefore, directed that the matter be placed before the Hon’ble Chief Justice of India in order to constitute an appropriate Bench of three learned Judges in order to have a relook at the entire question.
Note: This issue had been discussed in Closements in the BCAJ published in December, 2017 and January, 2018.
18. Wealth-tax – Valuation of asset – Section 7(2)(a) is discretionary and enabling provision to Wealth Tax Officer to adopt the method as laid down in section 7(2)(a) for a running business, but the above enabling power cannot be held as obligation or shackles on right of Assessing Officer to adopt an appropriate method
Bimal Kishore Paliwal and Ors. vs. Commissioner of Wealth Tax (2017) 398 ITR 553 (SC)
G.D. & Sons of which firm the Appellants were partners, purchased land and building in semi-constructed condition on 04.06.1965 for a sum of Rs. 8,00,000/-. The construction was completed and Cinema Theatre, Alpana started running in the premises. The Alpana Cinema property was valued by assessment books of accounts. On pending assessment of Wealth Tax of one of the partners, the Wealth Tax Officer made a reference for valuation of the Alpana Cinema to Department Valuation Officer, New Delhi by Reference dated 29.04.1976. Valuation Officer after inspecting the site submitted its report dated 26.04.1977 valuing the property for assessment year 1970-71, 1971-72, 1972-73, 1973-74 and 1974-75. Notices u/s. 17 of the Wealth Tax Act, 1957 were issued to the Appellants on 30.03.1979. Assessees got the property valued by an approved Valuer adopting income capitalisation method. The assessment order was passed by the Wealth Tax Officer in March, 1983 making assessment for the period from 1970-71 to 1974-75. The assessment was completed as per percentage of the right of different Assessees which they had in the Firm. The Assessing Officer relied on the Valuation Report submitted by the Departmental Valuer. The Assessee, aggrieved by the assessment order, filed appeal before the Appellate Assistant Commissioner of Wealth Tax. The Appellate Authority by its detailed order dated 23.01.1986 affirmed the assessment made by the Assessing Officer on the basis of valuation by land and building method. The income capitalisation method as was relied on by the Assessee was not approved.
Being aggrieved by the different assessment orders the Assessees filed Wealth Tax Appeal before the Income Tax Appellate Tribunal (ITAT), Delhi Bench, Delhi. The ITAT accepted the case of the Assessee to the effect that the proper basis for valuing the Cinema building would be capitalisation of the income. The ITAT held that since the building could be used only for film exhibition and it cannot be used for any other purpose, the method of its valuation has to be necessarily different from the one normally adopted in the case of buildings which are capable of being used as commercial buildings. The Revenue, aggrieved by the Tribunal’s order filed reference application through Department. Although, initially the same was rejected by the Tribunal, on the direction of the High Court two questions were referred to the High Court for decision.
The High Court vide its judgment and order dated 21.10.2005 answered the questions in favour of Revenue and against the Assessee. The High Court held that Wealth Tax Officer was justified in adopting the land and building method. The High Court held that yield/rent capitalisation method would not be correct method of valuation of the property in question.
The Supreme Court noted that sub-section (2) of section 7 begins with non obstante Clause which enables the Wealth Tax Officer to determine the net value of the assets of the business as a whole instead of determining separately the value of each asset held by the Assessee in such business. The language of s/s. (2) provides overriding power to the Wealth Tax Officer to adopt and determine the net value of the business having regard to the balance-sheet of such business. The enabling power has been given to Wealth Tax Officer to override the normal Rule of valuation of the properties, that is the value which it may fetch in open market, Wealth Tax Officer can adopt in a case where he may think it fit to adopt such methodology.
The Supreme Court noted that the Appellants’ submission was that the provision of section 7(2)(a) is a stand alone provision and is to be applied in all cases where Assessee is carrying on a business.
The Supreme Court however, did agree with the above submission.
The Supreme Court held that overriding power has been provided to override the normal method of valuation of property as given by s/s. 7(1) to arm the Wealth Tax Officer to adopt the method of valuation as given in s/s. (2)(a). The purpose and object of giving overriding power is not to fetter the discretion. The Wealth Tax Officer is not obliged to mandatorily adopt the method provided in section 7(2)(a) in all cases where Assessee is carrying on a business. The language of s/s. (2)(a) does not indicate that the provisions mandate the Wealth Tax Officer to adopt the method in all cases of running business.
The Supreme Court pointed out in Juggilal Kamlapat Bankers vs. ITO (1984) 145 ITR 485 (SC), it had categorically laid down that resort to section 7(2)(a) is discretionary and enabling provision to Wealth Tax Officer to adopt the method as laid down in section 7(2)(a) for a running business, but the above enabling power cannot be held as obligation or shackles on right of Assessing Officer to adopt an appropriate method.
According to the Supreme Court, in the present case reference was made to the Departmental Valuer by Assessing Officer u/s. 7(3). Thus, there was a conscious decision of the Assessing Officer to obtain the report from the Departmental Valuer. The above conscious decision itself contained the decision of Assessing Officer not to resort to section 7(2)(a). The Valuation report of Departmental Valuer had been received, which has been relied on by the Assessing Officer for assessing the Assessee in the relevant year. The Supreme Court therefore did not find any error in the order of the Assessing Officer in adopting the land and building method by making a reference to Departmental Valuer to value the property on the said method.
The Supreme Court further held that the proposition that if two reasonable constructions of taxing statute are possible, that construction which favours the assessee must be adopted, could not be read to mean that under two methods of valuation the value which is favourable to the assessee should be adopted.
19. Industrial Undertaking – Deduction u/s. 80IA – The quantum of deduction allowable u/s. 80-IA of the Act has to be determined by computing the gross total income from business, after taking into consideration all the deductions allowable Under sections 30 to 43D of the Act irrespective of the fact as to whether the Assessee has claimed the deductions allowable under sections 30 to 43D of the Act or not
Plastiblends India Limited vs. Addl. Commissioner of Income Tax, Mumbai and Ors. (2017) 398 ITR 568 (SC)
The Assessment Years involved in the appeals before the Supreme Court were 1997-98 to 2000-01. The Assessee was engaged in the business of manufacture of master batches and compounds. For this purpose, it had manufacturing undertakings at Daman Units I and II. Units I and II began to manufacture Article or things in the previous years relevant to Assessment Years 1994-95 and 1995-96 respectively. Accordingly, for the year under consideration i.e. Assessment Year 1997-98, profits of the business of both the undertakings were eligible for 100% deduction u/s. 80-IA of the Act. The Assessee did not claim depreciation while computing its income under the head profits and gains of business. Consequently, deduction u/s. 80-IA was also claimed on the basis of such profits i.e. without reducing the same by depreciation allowance. This position was accepted by the Assessing Officer (AO) in an intimation made u/s. 143(1)(a) of the Act. Likewise, for the Assessment Year 1996-97, the Assessee did not claim deduction on account of depreciation. Though this position was not accepted by the AO, the claim of the Assessee was upheld by the Tribunal.
In the Assessment Year 1997-98, from which Assessment Year the dispute had arisen, the annual accounts prepared by the Assessee for the year disclosed that it earned a net profit of Rs. 1,80,85,409/-. This was arrived at after charging depreciation of Rs. 64,98,968/- in accordance with the Companies Act, 1956. The Assessee filed its return of income for Assessment Year 1997-98 determining the gross total income at Rs. 2,46,04,962/-. The gross total income included profits and gains derived from business of undertakings I and II at Daman aggregating to Rs. 2,46,04,962/-, which profits were eligible for deduction u/s. 80-IA of the Act. After reducing the gross total income by the deductions available u/s. 80-IA, the total income was computed at Rs. Nil. The AO initiated reassessment proceedings and passed an assessment order u/s.143(3) read with section 147 computing the gross total income at Rs. 34,15,583/. Though the Assessee had disclaimed deduction in respect of depreciation, the AO allowed deduction on this account as well in respect of the same in the sum of Rs. 2,13,89,379/- while computing the profit and gains of business. After reducing the gross total income by the brought forward loss of Rs. 98,47,170/-, he determined the business loss to be carried forward to Assessment Year 1998-99 at Rs. 66,25,587/-.
Aggrieved by the said assessment order, the Assessee filed the appeal before the Commissioner of Income Tax (Appeals) {CIT(A)} urging that the AO erred in not considering the Tribunal’s decision in the Assessee’s own case for the Assessment Year 1996-97 wherein it had been held that depreciation could not be thrust on it. The CIT(A) upheld the Assessee’s submission that claim for depreciation was optional, based on the Tribunal’s order in its own case for Assessment Year 1996-97 and hence, allowed the appeal.
Aggrieved by the appellate order of the CIT(A), the AO filed an appeal before the Tribunal with the plea that CIT(A) erred in directing him to work out business profit and deduction u/s. 80-IA of the Act without taking into account the corresponding depreciation amount. The Tribunal reversed the appellate order of the CIT(A) following the decision of the High Court of Bombay in Scoop Industries P. Ltd. vs. Income-Tax Officer (2007) 289 ITR 195. Aggrieved by the Tribunal’s order, the Assessee filed the appeal thereagainst before the High Court of Bombay u/s. 260A of the Act on the basis that a substantial question of law arose for consideration. The High Court was pleased to admit the appeal.
The Division Bench of the High Court at Bombay in the Assessee’s case noticed that there was a conflict of opinion in two earlier decisions viz. Grasim Industries Ltd. vs. Assistant Commissioner of Income-Tax and Ors. (2000) 245 ITR 677, wherein it was held that the profits and gains eligible for deduction under Chapter VI-A shall be the same as profits and gains computed in accordance with the provisions of the Act and included in the gross total income and the decision in Scoop Industries P. Ltd., where it was held that depreciation whether claimed or not has to be reduced for arriving at the profits eligible for deduction under Chapter VI-A. Noticing this conflict of opinion, the matter was referred to the Full Bench, to resolve the conflict.
The Full Bench of the High Court of Bombay has upheld the stand of the Revenue, that, whilst computing a deduction under Chapter VI-A, it was mandatory to grant deduction by way of depreciation. The High Court proceeded on the basis that the computation of profits and gains for the purposes of Chapter VI-A is different from computation of profits under the head ‘profits and gains of business’. It has, therefore, concluded that, even assuming that the Assessee had an option to disclaim current depreciation in computing the business income, depreciation had to be reduced for computing the profits eligible for deduction u/s. 80-IA of the Act. The High Court concluded that section 80-IA provides for a special deduction linked with profits and is a code by itself and in so doing relied on the decisions of this Court in the case of Liberty India vs. Commissioner of Income Tax (2009) 317 ITR 218, Commissioner of Income Tax vs. Williamson Financial Services and Ors. (2008) 297 ITR 17 and Commissioner of Income Tax, Dibrugarh vs. Doom Dooma India Ltd. (2009) 310 ITR 392. The High Court proceeded on the basis that this Court in the aforementioned decisions has held that for computing such special deduction, any device adopted by an Assessee to reduce or inflate the profits of such eligible business has to be rejected. The High Court ultimately held that the quantum of deduction eligible u/s. 80-IA has to be determined by computing the gross total income from business after taking into consideration all the deductions allowable under Sections 30 to 43D including depreciation u/s. 32.
After the Full Bench answered the reference in the aforesaid manner, the appeal of the Assessee was disposed of by the Division Bench vide order dated November 03, 2009 following the aforesaid opinion of the Full Bench.
According to the Supreme Court, the singular issue which was required to be considered in these appeals pertained to claim of depreciation while allowing deduction u/s. 80-IA.
The Supreme Court noted that interpreting the provisions of section 32 of the Act (which prevailed in the relevant Assessment Years) it had in CIT vs. Mahendra Mills (2000) 243 ITR 56, held that it is a choice of an Assessee whether to claim or not to claim depreciation.
The Supreme Court observed that section 32 deals with depreciation and allows the deductions enumerated therein from the profits and gains of business or profession. Section 80-IA of the Act, on the other hand, contains a special provision for assessment of industrial undertakings or enterprises which are engaged in infrastructure development etc. The issue was as to whether claim for deduction on account of depreciation u/s. 80-IA is the choice of the Assessees or it has to be necessarily taken into consideration while computing the income under this provision.
The Supreme Court held that firstly, the Apex Court decision in the case of Mahendra Mills (supra) could not be construed to mean that by disclaiming depreciation, the Assessee can claim enhanced quantum of deduction u/s. 80IA. Secondly, the Apex Court in the case of Distributors (Baroda) P. Ltd. (supra) and in the case of Liberty India (supra) had clearly held that the special deduction under Chapter VIA has to be computed on the gross total income determined after deducting all deductions allowable under sections 30 to 43D of the Act and any device adopted to reduce or inflate the profits of eligible business has got to be rejected.
Thirdly, the Apex Court in the case of Albright Morarji and Pandit Ltd. (supra), Grasim Industries Ltd. (supra) and Asian Cable Corporation Ltd. (supra) had only followed the decisions of the Apex Court in the case of Distributors Baroda (supra). According to the Supreme Court, the quantum of deduction allowable u/s. 80-IA of the Act has to be determined by computing the gross total income from business, after taking into consideration all the deductions allowable under sections 30 to 43D of the Act.
Therefore, whether the Assessee has claimed the deductions allowable under sections 30 to 43D of the Act or not, the quantum of deduction u/s. 80IA has to be determined on the total income computed after deducting all deductions allowable under sections 30 to 43D of the Act. _
GOODS AND SERVICES TAX (GST)
Authority for Advance Ruling
6. [2018-TIOL-33-AAR-GST] Maharashtra State
Power Generation Company Ltd. dated
8th May, 2018
Liquidated damages liable for
GST.
Facts
Whether liquidated damages
levied in case of delay on the part of the contractor to provide services and
construction of the power plant is leviable to GST was the question before the
authority.
Held
The authority held that
liquidated damages will be liable for GST and the time of supply would be when
the delay in successful completion of the trial operation is established on the
part of the contractor and decision to impose liquidated damages is taken.
Further taxability in respect of liquidated damages for the period prior to GST
and after GST roll out will be as per section 14 of the CGST Act, 2017 i.e.
change in rate of tax in respect of supply of goods or services. Further, no
decision was taken on the availability of input tax credit to the contractor on
the liquidated damages imposed on him, as the same should be raised by the
contractor and not the Appellant.
7. [2018-TIOL-09-AAR-GST] Kansai Nerolac Paints
Limited dated 5th April, 2018
Krishi Kalyan Cess is not
considered as admissible input tax credit under the GST law.
Facts
Assessee is a manufacturer as
well as a service provider rendering works contract services. They are also
registered as an input service distributor for distribution of eligible credit
to its factories and Head office. They received CENVAT credit including Krishi Kalyan
Cess (KKC). Since KKC credit could be utilised only against KKC liability, it
could not be distributed to the factories and therefore, there was accumulation
of KKC credit. In accordance with section 140(1) of the CGST Act, 2017, the KKC
credit was carried forward in the ISD return but was not utilised.
The question before the
authority is whether KKC levied under section 161 of the Finance Act, 2016 as
“service tax” will be considered as admissible input tax credit under the GST
law.
Held
The Authority noted that Rule
3 of the CENVAT Credit Rules, 2004 made it clear that KKC would be
utilised towards payment of KKC only. Under the GST Law, there is no levy of
KKC. Reliance was placed on the decision
of the Delhi High Court in the case of Cellular Operators Association of
India [2018-TIOL-310-HC-DEL-ST] wherein it was held that it is improper to
treat the two cessess i.e. Education Cess and Secondary and Higher Education
Cess as duty of excise or service tax and therefore, cannot be cross utilised.
Accordingly, it was held that KKC cannot be treated as excise duty or service
tax and thus section 140(1) of the CGST Act, 2017 would not include KKC credit
and the same cannot be carried forward in the Electronic Credit Ledger.
From the President
Dear Members,
April was a remarkable month with a golden
lining. At BCAS, we celebrated the golden anniversary of our monthly journal –
BCAJ. And India celebrated a sporting victory as it struck gold 26 times at the
21st Commonwealth Games in Australia. After a dismal performance at
Rio, India showed its true mettle by winning 66 medals and surged to the third
place behind Australia and UK. The 200 strong Indian contingent fought hard and
performed brilliantly, ensuring a steady stream of good news in the media. In
addition to many veterans, there were many first timers that did India proud.
BCAS extends its congratulations to all the sports people, coaches and
officials who kept the Indian flag flying high!
It has been a dream for millions of Indians
in lakhs of villages. A dream that was shared by Prime Minister Modi too! On 28th
April, that dream became a reality with Manipur’s Leisang village getting
connected to India’s mainline power supply network. Now all of India’s approx.
6 lakhs inhabited villages scattered across the length and breadth of the
nation have access to power. Taking to Twitter, the Prime Minister proudly
revealed, with a sense of satisfaction and achievement that, “we fulfilled a
commitment due to which the lives of several Indians will be transformed
forever.” Overcoming numerous obstacles and defying tremendous odds, the
Government left no stone unturned in ensuring all villages get electricity in
1000 days, starting 15th August 2015. The next step is providing
connections to all households and ensuring adequate supply to the villages.
Last year the world was on the edge, as North
Korean leader Kim Jong-un defiantly tested nuclear devices and missiles. The
geopolitical tensions had stock indices plummeting, erasing trillions in equity
markets. The recently concluded Inter-Korean Summit seems to have dissolved a
lot of those tensions. North Korea’s Kim has declared to President Moon of
South Korea that he will abandon nuclear weapons, if the US would formally end
the Korean war and agree not to invade his country. Last week, Kim and Moon
signed a joint declaration recognising “a nuclear free Korean peninsula and
complete denuclearisation” as a common goal of both Koreas.
However, Kim has a long way to go in winning
the world’s confidence. Critics have discounted the genuineness of Kim’s
actions and are sceptical of Kim’s sugary overtures – underlining that he never
publicly renounced his nuclear weapons. It is hoped that Kim will be sincere in
his actions and help his impoverished country to progress as the region enjoys
greater stability.
There are many reasons why India’s justice
delivery is becoming rigid and unresponsive — there are over 3.2 crore cases
pending across courts, of which over a quarter are pending for over five years
at the district courts and the high courts. Judicial-strength gaps are one. The
Government clogging the courts with mindless litigation are another. The fact
that 46% of all pending cases have been filed by the Centre and State
governments makes the “State” the most prolific litigant in the country.
Noting how frivolous and prolific litigation
by the Government has clogged justice delivery, the SC advised the Union
Government to be mindful of the burden on ordinary litigants who have to fork
out “a small fortune” to get justice, thanks to long drawn trials. To be sure,
fixing the government’s ‘fondness’ for litigation needs a raft of policy
changes.
The National Litigation Policy 2010—which
talked of making the Government an “efficient and responsible” litigant—is
hanging fire. The 2015 review was supposed to remove the anomalies of the 2010
proposal, by including provisions such as fines for officers engaged in drawing
the Government into needless litigation. But with the policy itself pending,
there seems to be no template with which the flow of government litigation can
be fixed.
On the economic front too, India has been
inching upwards! The International Monetary Fund (IMF) in its latest “World
Economic Outlook” has projected that India will grow at 7.4% in 2018 and ascend
to 7.8% in 2019. IMF acknowledges that India’s growth is the direct result of
the continued implementation of structural reforms that will raise productivity
and incentivise private investment.
India’s biggest challenge in the months ahead
is to broaden inclusiveness. Efforts have also to be directed towards achieving
fiscal consolidation and budget deficit targets. Key to sustained growth will
also revolve around the Government’s ability to ease labour market rigidities
and reduce infrastructural bottlenecks. Clearly the best is yet to come!
Data is the ‘new gold’. This surprising
revelation has surfaced in the aftermath of the data privacy scandal that has
sent shock waves across the world, even India. The crux of the matter revolves
around the unethical compilation and analysis of personal data from Facebook,
without the permission of the users. Applying complex algorithms, data
scientists were able to unlock the psychographics of the targeted people, who
were then bombarded with appropriate content to alter their preferences. This
process of personality profiling is extremely subtle and has been used to
manipulate minds during elections.
Clearly the need of the
hour is stringent regulation that will ensure that data privacy is
uncompromisingly safeguarded and not viciously employed to manipulate
commercial or political success.
countries across the world, Prime Minister Modi made his second trip to the UK
this year. PM Modi had bilateral meeting with British PM, Theresa May where
India and the UK signed multiple agreements and MoUs. Both countries decided to
deepen ties, especially in the areas of technology, trade and investment. The
PM also attended the Commonwealth Summit – making him the first Indian PM to
attend in a decade. As UK gets ready to exit the EU, the summit is seen as an
opportunity for Britain to boost its trade and increase its diplomatic clout
with all Commonwealth countries.
For India, visa liberalisation was on top of
the agenda. New Delhi has been pushing for many years an increase in the number
of student visas and the simplification of the process. India’s participation
at the summit was also useful as it gives it the chance to talk to other Asian
countries without China ‘being in the room’. Britain is keen on signing a trade
agreement with India, as it has to aggressively explore new markets once it
leaves the EU.
By the time this edition of the Journal
reaches you the exams for the CA IPC and Finals must have resumed. I take this
opportunity to request you to convey my best wishes to all the students
connected with you for these exams.
Please feel free to
write to me at president@bcasonline.org
With kind regards
CA. Narayan Pasari
President
Allied Laws
11. Delay in filing objections – Period of
Limitation only applicable to the initial filing of objections and not to
re-filing. [Arbitration and Conciliation Act, 1996; Section 34]
Northern Railway vs. Pioneer Publicity
Corporation Pvt. Ltd. (2017) 11 Supreme Court Cases 234
There
was a refusal to condone the delay of 65 days in re-filing the objections u/s.
34 of the Arbitration and Conciliation Act, 1996 (Act). Admittedly, the
objections originally were filed within the time stipulated u/s. 34 of the Act.
However, since there were objections, time was granted by the Deputy Registrar
of the High Court to remove the objections within a period of 7 days. This was not
done. Eventually, the appellant re-filed the matter where there was a delay of
65 days.
The
Court held that section has no Application in re-filing the Petition but only
applies to the initial filing of the objections u/s. 34 of the Act.
12. Hindu Law
– Joint Hindu
Family – Family Settlement
– Outsider can be a party to such family settlement. [Transfer of Property Act,
1882; Section5]
Thimma Reddy vs.
Chandrashekara Reddy and Ors. AIR 2018 KARNATAKA 54
The
plaintiffs 1 – 3(sons of first defendant) and plaintiffs 4 – 5 (sons of second
defendant) pleaded that their grandfather owned a number of immovable
properties. He died intestate. No partition had taken place during his
lifetime. On 8.9.1986 there took place a partition among defendants 1 to 3 and
in this partition, properties described in schedule ‘C’ properties fell to the
share of third defendant. But, the third defendant was a stranger to the
family. Since he was not a member of the joint family, he was not entitled to
share. The defendants 1 and 2 colluded with the third defendant and entered
into a partition and thus the schedule ‘C’ property was allotted to him. This
allotment of ‘C’ schedule property to third defendant was alleged to be
illegal.
Reliance
was placed on the Supreme Court’s decision of Kale and others vs. Deputy
Director of Consolidation and others AIR 1976 SC 807, wherein it was
observed that it is absolutely clear that the word ‘family’ cannot be construed
in a narrow sense so as to confine the parties to the family arrangement only
to persons who have a legal title to the property.
It was
held by the High Court that it is clear that a family settlement or arrangement
need not be necessarily among the members of joint family having a right of
succession, but even an outsider to the family can be given a share.
Requirement is that such an arrangement must be fair and bona fide.
13.
Mesne Profits –Property not renovated by lessee – Damages to be paid to lessor
on service of notice.
[Transfer of Property Act, 1882; Sec. 108]
The General Manager, Bharat Sanchar Nigam
Limited (BSNL) vs. Radhika Chettri AIR 2018 (NOC) 285 (SIK.)
Respondent,
the lessor, is the absolute owner of the flat. The said property was leased out
to the Appellant, the lessee, for a monthly rent for a period of 5 years. A
Clause existed in the Lease Deed that the lessee shall have the option of
renewing the lease of the said premises for further periods, on giving notice
of such intention, to the lessor at least three months prior to expiration of
the lease. The lessee, however, failed to take necessary steps as provided,
hence on expiry of the lease period, the respondent’s husband vide letter, and
requested the appellant to either increase the house rent by 30% or to vacate
the occupied premises. The appellant, vide letter intimated the respondent that
the suit property would be handed over and the said letter be treated as
“Notice” of three months. That, on checking the suit premises it was
found to be in a dilapidated condition which the appellant was bound to repair
before handing over.
In view
of sections108(h) & (m), the court held that T.P. Act requires that damages
caused to the suit property be made good within three months, which was not
complied with in the instant case. The term “mesne profit” includes
not only the profits which the person in wrongful possession actually received,
but also those which he might have received with ordinary diligence, but does
not include profits due to improvements made by person in wrongful possession.
Given a wider connotation it would mean that which the Appellant has lost on
account of the wrongful act of the Respondent, in other words the amount the
Respondent might reasonably be expected to have made, had he been in
possession. Hence, the Respondent is entitled to mesne profits.
14. Property – Right of a Female – Scope and
Object of Section14(1). [Hindu
Succession Act, 1956; Section
14(1)]
Daulatarao Ramachandra Jadhav and Ors. vs.
Janabai Anandarao Jadhav and Ors. AIR 2018 KARNATAKA 62
It was
observed by the High Court in regard to section 14(1) that under the Hindu
Succession Act, it is clear that section 14(1) has a very wide and extensive
application and has to be read in a comprehensive manner as the Act overrides
old law governing the properties of the female. The Act confers full heritable
capacity and absolute ownership on the female heir. This section dispenses with
the traditional limitations of conferring limited estate on the female Hindu to
hold and transmit the property. It should be borne in mind that under Hindu Law
which in operation prior to the coming into force of this Act, a woman’s
ownership of property was hedged in by certain delimitations on her right of
disposal and also on her testamentary power in respect of that property and
also with reference to her absolute ownership. By virtue of interpretation of
the provision u/s. 14 of the Hindu Succession Act, in the enactment, the above
said barricades have been completely removed and the Act presupposes if any
property possessed by a female Hindu whether acquired before or after
commencement of the Act becomes absolute property of the said lady, if the said
property was given in recognition of her pre-existing right.
15.
Will – Attestation – Two witnesses mandatory – May not be present at the same
time. [Evidence Act, 1872; Section 68]
Sanjeev Juneja vs. State
and Ors. AIR 2018 DELHI 79
The Hon’ble High Court held
that the law requires attestation by minimum two witnesses, it is not mandatory
that both must have been present at the time when the testator executed the
document, the presence of the testator being more important when the witnesses
attest and further that, for proof of such execution and attestation, the
testimony of only one of such witnesses is enough, that also only if such
witness is alive and available.
Miscellanea
1. Economy
6. Salesforce Is Getting Into Blockchain. Here’s
Why That Matters
Salesforce.com (NYSE:CRM)
CEO Marc Benioff often talks about having a beginner’s mind — trying to view
the world like it’s a new place you’ve never experienced before. That thinking
is leading the company toward developing a blockchain and cryptocurrency
solution that Benioff hopes will be ready for the company’s Dreamforce 2018
software conference this September. For investors, that means Salesforce could
be the latest way to take advantage of the cryptocurrency boom … without
having to buy any bitcoin.
7. Cryptography and
blockchain and cryptocurrency, oh
my!
Cryptocurrencies are
virtual currencies, and there are lots of them — more than 1,500 as of this
writing. In some ways, they are no different than any other form of currency,
like the dollar or the euro. People agree they are worth something and they can
be exchanged for things of value.
Where cryptocurrencies
differ is that they’re completely digital and decentralized — not controlled
by a central bank or backed by a government. Instead, the currency exists in a
type of public ledger called a blockchain, and that ledger can only be altered
if certain conditions are met. Alterations are made using cryptography, the
science of encoding data to keep it safe from theft or other manipulation.
Cryptocurrencies and the
blockchain technology making them possible have garnered lots of interest and
it’s not surprising Salesforce is looking to create a product for this market.
And Salesforce has had great success starting and quickly growing new business
segments over the years, so the thought of Salesforce becoming a major player
in blockchain technology and cryptocurrency isn’t far-fetched
(Source:
International Business Times dated 19.04.2018)
2. Technology
8. One plus 6 to launch in Mumbai on May 17
OnePlus has confirmed the
launch of the OnePlus 6 for the Indian market. The company says it will be
hosting the product launch event at the Dome at NSCI, Mumbai on May 17.
OnePlus has confirmed the
launch of the OnePlus 6 for the Indian market. The company says it will be
hosting the product launch event at the Dome at NSCI, Mumbai on May 17. The
launch event will begin at 15:00 and will be live streamed across its official
social channels. OnePlus 6 will start selling in India via Amazon India
starting 12:00 IST on 21 May 2018. However, users should keep in mind that the
sale will be limited to Amazon Prime members.
OnePlus is also giving its
fans a chance to attend the launch event. The entry vouchers to attend the
event will be available via oneplus.in from 10:00 IST on Tuesday, 8 May 2018.
In addition, those who will attend the launch event will get a gift hamper full
of super add-ons and exclusive Marvel Avengers merchandise.
(Source:
The Indian Express dated 26.04.2018)
9. Why we need to have regulation and
legislation on AI (Artificial Intelligence) and quick
Our laws will eventually
need to be amended or new laws for artificial intelligence technologies and
processes will need to be adopted to fill up existing lacunae.
Artificial Intelligence
(AI) is a global technological wave and there’s no disputing the fact that it
has entered the Indian market. India has not advanced as far as giving
citizenship rights to a robot (case in point –Sophia from Saudi Arabia), but
personalised chatbots have flooded the market, AI has forayed into the medical
stream and it is also being used to protect the cyberspace.
With greater explorations
into the space of AI, the world is moving towards a goal of near-complete
automation of services. The element of end-to-end ‘human involvement’ has been
insisted upon by most AI advanced countries such as Canada, in order to ensure
accountability and security of AI systems. AI is wholly based on data generated
and gathered from various sources. Hence, a biased data set could evidently
lead to a biased decision by the system or an incorrect response by a chatbot.
Pratik Jain, co-founder of
Morph.ai, a Gurgaon-based AI startup, says if the chatbot does not respond
correctly once deployed by the business, a human fallback is provided to
correct the error based on the data generated and provided by the business.
(Source:
The Indian Express dated 26.04.2018)
10. Amazon Teases Fire TV Cube, A Set-Top Box
Powered By Alexa
Amazon has confirmed the
existence of a new product called “Fire TV Cube.” It’s being speculated that
the upcoming device will be a new high-end Fire TV set-top box that comes with
Amazon’s Alexa voice assistant.
Amazon has set up a new
teaser page that asks visitors “what is Fire TV Cube?” The webpage says that
details about the device will become available soon and visitors will be able
to sign up to receive an update on the upcoming product. Amazon’s new teaser
page was first discovered by AFTVNews, which appears to have already leaked the
device way back in September.
Last fall, AFTVNews posted
a leaked image of a new Fire TV dongle and a cube-shaped Fire TV set-top box.
The dongle turned out to be the 2017 Fire TV, which Amazon officially launched
in October. As for the set-top box, it wasn’t released alongside the new Fire
TV because its release date may have been pushed back to 2018. It’s now being
speculated that the set-top box will be the Fire TV Cube that Amazon is
currently teasing about.
Amazon has not confirmed
anything yet about the Fire TV Cube, but it was previously rumored to arrive
with voice recognition technology, specifically Amazon’s Alexa voice assistant.
The leaked image from last year appears to show the device as having far-field microphones,
a built-in speaker and an LED light indicator. On top, it features buttons for
volume controls, turning off the microphones and a trigger for Alexa. The
device is said to feature an IR (infrared) emitter, which suggests that users
will be able to control it with other IR remote controllers. The device looks a
lot like a cube-shaped Amazon Echo speaker.
It’s being speculated that
the Fire TV Cube will let users have hands-free interaction with Alexa to
search and play video content. Alexa might also be able to provide hands-free
playback control for music and videos. The device is also expected to arrive
with its own voice remote, which features a microphone button to trigger and
interact with Alexa.
One of Engadget’s readers
sent the site scans of a user manual for his Amazon Ethernet adapter. One of
the pages appears to show an illustration of the Fire TV Cube, and it suggests
that the new device will have an HDMI port, a power port and a port simply
marked as “Infrared.” The device also appears to have a microUSB port, which
can only be used for the Amazon Ethernet Adapter.
Amazon didn’t say when
exactly it will unveil the Fire TV Cube. But based on the teaser page and the
device’s appearance in a recent user manual, it seems like the Fire TV Cube
might launch very soon.
(Source: International Business
Times dated 25.04.2018)
Corporate Law Corner
4.
(2018) 142 CLA 78 (NCLT – New Delhi)
Axis Bank Ltd. vs. Edu Smart Services Pvt.
Ltd.
Date of Order: 27th October, 2017
Regulations 12 and 13 of Insolvency and
Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons)
Regulations, 2016 – Corporate guarantee provided by Corporate debtor matured
after the commencement of insolvency resolution process – claim to accept the
invocation could not be accepted as the insolvency resolution process had
commenced prior to crystallization of liability
FACTS
E Ltd. had
provided A Ltd. a
corporate guarantee of Rs. 396.76 crore in respect of loan
advanced by A Ltd. to group concern of E Ltd. A Ltd. filed a claim before the
Insolvency Resolution Professional (“IRP”) which was turned down by it. A Ltd.
filed an application before the National Company Law Tribunal (“NCLT” or the
“Tribunal”) in order to invoke a corporate guarantee after the date of
commencement of Corporate Insolvency Resolution Process (“CIRP”). The date of
commencement of the insolvency process was 27.06.2017 whereas the corporate
guarantee was invoked on 21.07.2017. E Ltd. sent a letter stating that
corporate guarantee could not be invoked as CIRP had been initiated and
moratorium was in force.
The loan agreement provides that in the
event of default by the Borrower the guarantor shall be liable to pay the
amounts payable by the Borrower. Accordingly, A Ltd. invoked the guarantee
which was not accepted by the IRP owing to the fact that date of invocation of
guarantee was much after the date of commencement of CIRP.
IRP argued that Regulations 12 and 13 of
Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for
Corporate Persons) Regulations, 2016 (“the Regulations”) which deal with
submission of proof of claims and verification of claims clearly postulate that
IRP is required to verify only those claims which are existing as on the
insolvency commencement date. Accordingly, any claims which have not matured as
on the date of commencement of CIRP cannot be accepted.
IRP further pointed out that A Ltd. had
separately filed for recovery against the Borrower in a separate insolvency
proceeding and which claim has been accepted in the application filed before
NCLT.
HELD
The limited issue before the Tribunal was
whether A Ltd. was entitled to make a claim against E Ltd. by invoking the
corporate guarantee after the date of commencement of the insolvency process.
The Tribunal perused the terms of the loan
documents, as well as Regulations 12 and 13. It held that in order to qualify
as a ‘debt’, the provisions of the corporate guarantee must be satisfied by
raising a demand which is expressed by invoking the corporate guarantee and the
date of its invocation has to precede the insolvency commencement date. In the
present case, although CIRP commenced on 27.06.2017, the corporate guarantee
was only invoked on 21.07.2017. IRP would not be in a position to verify the
claim as it will not be reflected in the books of accounts which are supposed
to be updated as on 27.06.2017. In the absence of any record to verify the
claim, it would be impossible for the IRP to accept any such claim which became
a debt after 27.06.2017.
The Tribunal further examined the provisions
of section 3(6), 3(8), 3(10), 3(11) and 3(12) of Insolvency and Bankruptcy
Code, 2016 which defined the terms claim, corporate debtor, creditor, debt and
default in order to conclude that a debt did not exist on the date insolvency
process commenced.
A Ltd. argued that liability of guarantor
under the Indian Contract Act, 1872 is joint and several and accordingly it had
a right to enforce the liability against E Ltd. However, Tribunal held that
liability only crystallised after the commencement of CIRP and the argument put
forth had no merit. A Ltd. further urged that there is no provision in the Code
declaring the insolvency commencement date as the date to determine the claims
of the parties. The Tribunal however observed that invocation of corporate
guarantee against E Ltd. would result in enforcing of security interest and it
would thus, be in violation of the moratorium provision of section 14(1)(c) of
the Code.
The Tribunal also observed that A Ltd. had
already filed separate proceedings against the borrower and its claim was
accepted in such separate proceedings.
The Tribunal therefore, dismissed the
application filed by A Ltd.
5.
(2018) 1 CompLJ 36 (NCLAT – Kol)
Surojit Kumar vs. ROC
Date of Order: 08th March, 2017
Section 128(6) of Companies Act, 2013 – The
provision comes into effect from 01.04.2014 – Accordingly, penalty stipulated
therein cannot apply to offences committed up to 31.03.2014
FACTS
S and 2 other directors (for sake of brevity
referred to as S) filed an application u/s. 621A of the Companies Act, 1956
(“1956 Act”) for compounding offence for violating section 209 of the Companies
Act, 1956 during the year ending between 31.03.2011 to 31.03.2014 (“Petition
1”).
Another application was filed u/s. 621A of
1956 Act for compounding of offence for violation of section 217(2) of
Companies Act, 1956 during the year ending between 31.03.2011 to 31.03.2014
(“Petition 2”).
Petition 1 was admitted and NCLT compounded
the offence by levying a fee of Rs. 5,000 whereas Petition 2 was admitted by
NCLT and the compounding fees levied were Rs. 10,000.
S had no objections under both the petitions
in respect of financial years ending on 31.03.2011 to 31.03.2013. However, in
so far as financial year 31.03.2014 was concerned, NCLT levied the penalty
taking into consideration provisions of section 128(6) of the Companies Act,
2013. S thus, filed the present appeal to challenge the application of
Companies Act, 2013 in respect of financial year ended on 31.03.2014 by the
NCLT.
HELD
ROC before the Appellate Tribunal (NCLAT)
submitted that company regularised the mistake in the financial year ended
31.03.2015. However, NCLAT proceeded to hold that prospective regularisation
cannot be used as an excuse to apply the provisions of Companies Act, 2013
retrospectively in respect of offences which were committed prior to its coming
into force.
NCLAT held that 128(6) could not be applied
in respect of violation of section 209 committed during the financial year ended
31.03.2014. It thus set aside the order of NCLT to that extent and imposed a
fee similar to what had been laid down in respect of earlier years.
The appeal filed by S was thus accepted.
Order in matter of Insider Trading in the
Scrip Of Deep Industries Limited in respect of Rupeshbhai Kantilal Savla; Sujay
Ajitkumar Hamlai and V-Techweb India Private Limited
6.
SEBI/WTM/MPB/IVD/ID–6/162/2018
Date of Order: 16th April, 2018
SEBI (Prohibition of Insider Trading)
Regulations, 2015 – Persons who are friends on Facebook can be regarded as
connected persons – Likes and other activity on the social media platform can
be looked into for the purpose of determining whether such persons are
“connected persons” or not
FACTS
D Ltd was engaged in the business of oil
exploration and allied activities and its shares were listed on National Stock
Exchange (NSE) as well as Bombay Stock Exchange (BSE). Between 17.07.2015 to
14.10.2015 (“Investigation period”) D Ltd. was awarded three contracts from
ONGC for hiring of mobile drilling rigs spanning across a period of several
months.
Some details in respect of these contracts
are as follows:
First contract: The bid for the same was
opened on 17.07.2015 and D Ltd. was declared as L1 bidder.
Second contract: The bid for the same was
opened on 01.07.2015. However, D Ltd. was not declared to be L1 bidder. ONGC
subsequently requested D Ltd. to match the evaluated day rate of L1 bidder on
17.08.2015. D ltd. submitted this bid on 18.08.2015.
Third contract: The bid for the same was
opened on 27.07.2015 and D Ltd. was declared as L1 bidder.
The stage at which the company was declared
as L1 bidder was the stage at which process of tendering got completed and what
remained pending was merely award of contract.
The receipt of these contracts was notified
to the stock exchanges after D Ltd. received the notification of award of
contract. The dates were 03.09.2015 for first and second contract and
14.10.2015 for third contract. Pursuant to these corporate announcements, there
was a rise in the price at which these scrips were being traded on the
exchanges.
HELD
Issues before SEBI and their disposal is as
follows:
SEBI observed that value of the two
contracts for which the announcement was made on 03.09.2015, constituted a substantial
52.47% of the annual turnover of the company for the FY 2015-16 and 87.65% of
the annual turnover for the FY 2014-15 i.e. immediately preceding financial
year. Similarly, the value of the single contract for which announcement was
made on 14.10.2015 constituted 53.40% of the annual turnover of the company for
the FY 2015-16 and 89.21% of the annual turnover for the FY 2014-15 i.e.
immediately preceding financial year. Considering the magnitude of the value of
the three contracts, the information relating to bagging of these orders by D
Ltd. constituted price sensitive information and the same was likely to
materially affect the share price of the company, once published.
UPSI periods were the periods where the
information was available with company regarding receipt of contracts and
ceased to exist on the day the same was notified to the exchanges. Accordingly, period between 17.07.2015 and
14.10.2015 was determined as the UPSI period.
On the basis of the investigations conducted
by SEBI, R, V Ltd. and A were identified as insiders for the Investigation
period as per the Regulations.
R being the Managing director of D Ltd. was
held to be an insider as well as a connected person.
S and directors of V Ltd. were regarded as
connected persons on the basis of their being friends on social media platform
“Facebook” with R and his wife. Wife of S was also friends with wife of R. SEBI
also observed instances where they had “liked” each other’s pictures posted on
the platform. Thus, S and V Ltd. were held to be insiders and connected persons
owing to their social relationship.
SEBI observed that insiders had traded in or
brought shares of D Ltd. during the Investigation period and SEBI proceeded to
compute the gains and ordered that such gains be impounded from the insiders.
Allied Laws
6. Union of
India and Ors. vs. Manju Lata Tiwari AIR 2018 PATNA 28
Adhaar Card –
Sufficient identity proof. [Government Savings Bank Act, 1873, S.4-A]
A widow wanted
a refund of the money deposited in the savings account with the post office
deposited by her late husband who had not made it either a joint account or
declare the wife as the nominee. When a demand or claim was made by the wife,
it was rejected after quoting various rules.
It was
contended that the Post Office Savings Bank Manual Volume-I stated that in
absence of a nomination there was no occasion to release any amount up to Rs.
one lakh or above without production of a succession certificate or a probate
of a Will or letter of administration, and hence the widow was not entitled to
the refund.
The Court
observed that there were enough official evidences available including the
so-called Aadhar Card, which is being used for large number of Government
dealings for measure of identification. Aadhar Card is also being used for the
purposes of disbursement of funds by the Central Government to the so-called
beneficiaries, then why a hapless widow has to go through the rigmarole of
litigation, spend time, money and energy for years together by moving a civil
Court before she can beget her rightful claim of her deposit left behind by her
husband on this technicality is not appreciated by this Court.
In view of the
above, the Hon’ble Supreme Court held that the guidelines mentioned in the Post
Office Savings Bank Manual Volume-I, are only directive and the same cannot be
used for unnecessary harassment of a bona fide depositor or a legal heir.
7. Danamma
alias Suman Surpur and another vs. Amar and Ors. AIR 2018 SUPREME COURT 721
Hindu Law –
Coparcenary – Daughter – Suit for Partition – Entitled to share in property
since birth – Even though amendment came into effect after such birth. [Hindu
Succession Act, 1956 S.6]
A suit was
filed for partition for a share in the property, by the daughters of the
deceased. However, this suit was filed in the year 2002 i.e. 1 year after the
death.
It was observed
that, S.6, as amended, stipulates that on and from the commencement of the
amended Act, 2005, the daughter of a coparcener shall by birth become a
coparcener in her own right in the same manner as the son. It is apparent that
the status conferred upon sons under the old Section and the old Hindu Law was
to treat them as coparceners since birth. The amended provision now statutorily
recognises the rights of coparceners of daughters as well since birth. The
section uses the words in the same manner as the son. It should therefore be
apparent that both the sons and the daughters of a coparcener have been
conferred the right of becoming coparceners by birth. It is the very factum of
birth in a coparcenary that creates the coparcenary, and therefore the sons and
daughters of a coparcener become coparceners by virtue of birth. Devolution of
coparcenary property is the later stage of and a consequence of death of a
coparcener. The first stage of a coparcenary is obviously its creation as
explained above, and as is well recognised. One of the incidents of coparcenary
is the right of a coparcener to seek a severance of status. Hence, the rights
of coparceners emanate and flow from birth (now including daughters) as is
evident from sub-s (1)(a) and (b) of S.6.
In light of the
observation made, the Hon’ble Court held that, in the present case, the rights
of the appellants i.e. the daughters had crystalised when the amendment came
into effect. Hence, even the daughters would be entitled to 1/5th
share in the property.
8. Jayant Verma
and Ors. vs. Union of India (UOI) and Ors. AIR 2018 SUPREME COURT 1079
Precedent –
Exparte judgment without discussion is Per incurium hence not binding.
The issue was
whether one of the judgements relied upon were binding on the Court.
It was observed
that where such a matter is not argued at all by the Respondent, and the
judgement is one of reversal, it would be hazardous to state that the law can
be declared on an ex parte appraisal of the facts and the law, as
demonstrated before the Court by the Appellant’s counsel alone. That apart,
where there is a detailed judgement of the High Court dealing with several
authorities, and it is reversed in a cryptic fashion without dealing with any
of them, the per incuriam doctrine kicks in, and the judgement loses
binding force, because of the manner in which it deals with the proposition of
law in question. Also, the ratio decidendi of a judgement is the
principle of law adopted, having regard to the line of reasoning of the Judge
which alone binds in future cases. Such principle can only be laid down after a
discussion of the relevant provisions and the case law on the subject. If only
one side is heard and a judgement is reversed, without any line of reasoning,
and certain conclusions alone are arrived at, without any reference to any case
law, it would be difficult to hold that such a judgement would be binding and
the same has to be followed.
In view of the
same, it was held by the Hon’ble court that such judgment was not binding on
them.
9. SRD Nutrients Private Limited vs. Commissioner
of Central Excise, Guwahati (2018) 1 Supreme Court Cases 105
Precedent –
Judicial Discipline – Reference to Larger Bench in case of contradicting views.
It was observed
by the Hon’ble Court that when a view was taken by one bench of the CESTAT Tribunal
on one issue then another view or a contrary view cannot be taken by the
co-ordinate bench of the CESTAT Tribunal. Judicial discipline warranted
reference of the matter to the Larger Bench.
In view of the
same, the Hon’ble Court held that it is also trite that when two views are
possible, one which favours the Assessees has to be adopted.
10. B. Sunitha vs. The State of Telengana
and Ors. (2018) 1 Supreme Court Cases 638
Professional Misconduct – Advocate –
Percentage of decretal amount. [Contract Act, 1872; S.23]
The proceedings
were initiated by the Respondent who is an advocate in whose favour the
Appellant executed a cheque allegedly towards his fee. The cheque was
dishonoured. The stand of the Appellant is that section 138 of the Act is not
attracted as there was no legally enforceable debt, as fee claimed was
exorbitant and against law. The Appellant having already paid a part of the
fee, stated that fee could not be demanded on percentage of amount awarded as
compensation to the Appellant which was in violation of the Advocate Fee Rules
and Ethics.
It was argued
that charging percentage of decretal amount by an advocate is hit by section 23
of the Contract Act being against professional ethics and public policy and
hence the cheque issued by the Appellant could not be treated as being in
discharge of any liability by the Appellant.
It was observed
that mere issuance of cheque by the client may not debar him from contesting
the liability. If liability is disputed, the advocate has to independently
prove the contract. Claim based on percentage of subject matter in litigation
cannot be the basis of a complaint u/s. 138 of the Act. Having committed a
serious professional misconduct, the Respondent i.e. the Advocate, could not be
allowed to avoid the adverse consequences which he may suffer for his
professional misconduct. The issue of professional misconduct may be dealt with at appropriate forum.
It was held by
the Hon’ble Court that the claim of the Respondent advocate being against
public policy and being an act of professional misconduct, proceedings in the
complaint filed by him have to be held to be abuse of the process of law and
have to be quashed.
From Published Accounts
Illustrative Limited
Review Report for a company where Interim Resolution Professional (IRP)
has been appointed under the Corporate Insolvency Resolution Process (CIRP)
Lanco Infratech
Ltd (From Notes to Unaudited Standalone Financial
Results for the quarter ended December 31, 2017)
STATEMENT
OF STANDALONE RESULTS FOR THE QUARTER AND NINE MONTHS ENDED DECEMBER 31, 2017
Rs. Cr |
|||||||
PARTICULARS |
Quarter Ended |
Nine Months Ended |
Year Ended |
||||
31.12.2017 |
30.09.2017 |
31.12.2016 |
31.12.2017 |
31.12.2016 |
31.03.2017 |
||
(Unaudited) |
(Unaudited) |
(Unaudited) |
(Unaudited) |
(Unaudited) |
(Audited) |
||
1 |
Revenue from operations |
10.96 |
12.64 |
226.64 |
266.65 |
1049.07 |
1634.90 |
2 |
Other income |
6.86 |
8.57 |
11.98 |
27.12 |
39.50 |
122.63 |
3 |
Total Income (1 + 2) |
17.82 |
21.21 |
238.62 |
293.77 |
1088.57 |
1757.53 |
4 |
Expenses |
|
|
|
|
|
|
|
Cost of Materials Consumed |
14.34 |
8.87 |
167.19 |
80.33 |
589.09 |
750.10 |
|
Purchase of stock-in-trade |
– |
– |
– |
– |
– |
49.37 |
|
Subcontract Cost |
10.05 |
14.57 |
63.33 |
107.87 |
229.13 |
388.20 |
|
Construction and Site |
2.86 |
3.79 |
41.01 |
34.95 |
82.81 |
122.21 |
|
Change in inventories of |
73.91 |
57.18 |
(5.40) |
403.16 |
(180.84) |
(82.81) |
|
Employee benefits expenses |
21.00 |
34.30 |
46.06 |
99.13 |
150.07 |
186.49 |
|
Finance cost |
292.75 |
287.78 |
267.68 |
846.53 |
755.25 |
1032.13 |
|
Depreciation and |
13.01 |
13.86 |
23.53 |
41.93 |
70.31 |
87.78 |
|
Other expenses |
16.12 |
45.73 |
23.54 |
110.76 |
59.67 |
133.58 |
|
Total Expenses (4) |
444.04 |
466.08 |
627.14 |
1724.66 |
1755.49 |
2647.05 |
5 |
Profit / (Loss) before |
(426.22) |
(444.87) |
(388.52) |
(1430.89) |
(666.92) |
(889.52) |
6 |
Exceptional items |
– |
(130.56) |
– |
(1262.39) |
– |
– |
7 |
Profit / (Loss) before Tax (5 + 6) |
(426.22) |
(575.43) |
(388.52) |
(2693.28) |
(666.92) |
(889.52) |
8 |
Tax Expense |
– |
– |
– |
– |
– |
– |
9 |
Profit/ (Loss) for the |
(426.22) |
(575.43) |
(388.52) |
(2693.28) |
(666.92) |
(889.52) |
10 |
Other comprehensive income |
|
|
|
|
|
|
|
Items that will not be |
0.14 |
0.14 |
(0.10) |
0.41 |
(0.31) |
0.55 |
11 |
Total comprehensive income |
(426.08) |
(575.29) |
(388.62) |
(2692.87) |
(667.23) |
(888.97) |
12 |
Paid-up equity share capital |
330.26 |
330.26 |
273.78 |
330.26 |
273.78 |
330.26 |
|
Earning per share (EPS) not |
|
|
|
|
|
|
|
– Basic |
(1.30) |
(1.76) |
(1.44) |
(8.24) |
(2.47) |
(3.25) |
|
– Diluted |
(1.30) |
(1.76) |
(1.44) |
(8.24) |
(2.47) |
(3.25) |
STATEMENT
WISE REVENUE, RESULTS, ASSETS AND LIABILITIES FOR THE QUARTER AND NINE MONTHS
ENDED DECEMBER 31, 2017 – STANDALONE
Rs. Cr |
||||||||
PARTICULARS |
Quarter Ended |
Nine Months Ended |
Year Ended |
|||||
31.12.2017 |
30.09.2017 |
31.12.2016 |
31.12.2017 |
31.12.2016 |
31.03.2017 |
|||
(Unaudited) |
(Unaudited) |
(Unaudited) |
(Unaudited) |
(Unaudited) |
(Audited) |
|||
1 |
Segment |
|
|
|
|
|
|
|
|
a) |
EPC & Construction |
2.30 |
4.77 |
199.63 |
240.80 |
964.33 |
1533.39 |
|
b) |
Power |
1.55 |
1.36 |
19.57 |
5.72 |
55.17 |
63.63 |
|
c) |
Infrastructure |
7.11 |
6.51 |
7.44 |
20.13 |
29.57 |
37.88 |
|
|
Net Sales/Income from Operations |
10.96 |
12.64 |
226.64 |
266.65 |
1049.07 |
1634.90 |
2 |
Segment |
|
|
|
|
|
|
|
|
a) |
EPC& Construction |
(141.21) |
(166.20) |
(145.13) |
(613.28) |
5.22 |
(24.58) |
|
b) |
Power |
(0.19) |
(0.43) |
9.39 |
0.32 |
24.12 |
27.93 |
|
c) |
Infrastructure |
1.07 |
0.97 |
1.12 |
3.02 |
4.44 |
5.68 |
|
d) |
Unallocated |
– |
– |
2.00 |
(1.54) |
15.05 |
10.95 |
|
Total |
(140.33) |
(165.66) |
(132.62) |
(611.48) |
48.83 |
19.98 |
|
|
Less: |
|
|
|
|
|
|
|
|
i) |
Interest |
292.75 |
287.78 |
267.88 |
846.53 |
755.25 |
1032.13 |
|
ii) |
Other |
(6.86) |
121.99 |
(11.98) |
1235.27 |
(39.50) |
(122.63) |
|
Total |
(426.22) |
(575.43) |
(388.52) |
(2693.28) |
(666.92) |
(889.52) |
|
3 |
Segment |
|
|
|
|
|
|
|
|
a) |
EPC& Construction |
5136.63 |
5118.20 |
5615.99 |
5136.63 |
5615.99 |
5247.78 |
|
b) |
Power |
63.80 |
64.76 |
456.49 |
63.80 |
456.49 |
69.94 |
|
c) |
Infrastructure |
10697.80 |
10693.96 |
11486.63 |
10697.80 |
11486.63 |
11336.42 |
|
d) |
Unallocated |
838.96 |
836.54 |
1313.36 |
838.96 |
1313.36 |
1413.82 |
|
|
16737.19 |
16713.46 |
18872.47 |
16737.19 |
18872.47 |
18067.96 |
|
4 |
Segment |
|
|
|
|
|
|
|
|
a) |
EPC& Construction |
8521.27 |
8741.06 |
9144.93 |
8521.27 |
9144.93 |
8876.80 |
|
b) |
Power |
6.29 |
5.96 |
5.25 |
6.29 |
5.25 |
6.45 |
|
c) |
Infrastructure |
3.08 |
3.08 |
182.14 |
3.08 |
182.14 |
3.08 |
|
d) |
Unallocated |
9844.77 |
9183.28 |
8321.89 |
9844.77 |
8321.89 |
8143.97 |
|
|
18375.41 |
17933.38 |
17654.21 |
18375.41 |
17654.21 |
17030.30 |
1. Hon’ble National Company Law Tribunal
(NCLT), Hyderabad Bench vide order dated August 07, 2017, has initiated
Corporate Insolvency Resolution Process (CIRP) in the Company under Section 7
of the Insolvency and Bankruptcy Code, 2016 (IBC), based on the application
filed by IDBI Bank Limited, Financial Creditor of the Company. Mr. Savan
Godiawala (IP Registration No.IBBI.IPA-001/IP-P00239/2017-18/10468) was
appointed as Interim Resolution Professional (IRP) with effect from August 07,
2017 under the provisions of IBC. In the first Committee of Creditors meeting
dated September 12, 2017, Mr. Savan Godiawala has been confirmed as Resolution
Professional. The Resolution Professional has relied upon assistance provided
by members of the Audit Committee in review of the aforesaid unaudited
financial results and representations, clarifications and explanations provided
by the Managing Director & Chief Executive Officer, Chief Financial
Officer, other directors and Key Managerial Personnel of the Company in
relation to such financial results in the meetings called by the Resolution
Professional. The reviewed financial results have been examined by the
directors of the Company constituting the Board of Directors of the company
(powers of whom stand suspended in accordance with IBC) and accordingly, the
Resolution Professional, in reliance of such examination by the directors of
the Company and the aforesaid representations, clarifications and explanations,
has approved the same. It is clarified however, that the Resolution Professional
has not conducted an independent verification of these unaudited financial
results and has not certified on the truthfulness, fairness, accuracy or
completeness of these results, in so far as it pertains to the period prior to
commencement of the CIRP and his appointment. The Resolution Professional has
approved the financial results only to the limited extent of discharging the
power of the board of directors of the company which has been conferred upon
him inter alia in terms of provisions of section 17 of Insolvency and
Bankruptcy Code, 2016.
2. Exceptional item includes:
a)
The company acquired Griffin Coal Mining Company Pty Limited and
Carpenter Mine Management Pty Limited referred as Griffin Coal Mine Operations
through its erstwhile wholly owned subsidiary Lanco Resources International Pte
Limited (LRIPL) to further invest in expansion to enhance the capacity.
Post-acquisition, many approvals were obtained for mine expansion and other
infrastructure related facilities. LRIPL along with its subsidiary companies
(Griffin Coal Mine Operations) has been incurring losses from acquisition
onwards. Due to circumstances beyond the control of company, the mine expansion
got delayed, resultantly anticipated incremental EBIDTA could not be earned,
thus increasing the loans from the lenders to meet the interest obligations.
Due to default in debt servicing, as per the Security Agreement entered by
LRIPL with lenders, lenders appointed the Receivers and Managers on April 27,
2017 and transferred the pledged shares to the nominee of the Security Agent of
the lenders. Consequent to this, during the quarter ended June 30, 2017,
impairment provision has been created against the receivables in respect of
said share transfer at carrying value of Rs.534.16 cr, Loans receivable along
with interest Rs.567.27 cr, and charged off the balance existing in the Foreign
Currency Monetary item Translation Difference account of Rs.9.83 cr pertaining to the said loans
receivable.
b) A
provision of Rs.20.57 cr is created in the quarter ended June 30, 2017 for
diminution in the value of investment of Lanco Wind Power Private Limited, a
subsidiary of the company.
c) A
provision of Rs.130.56 cr is created in the previous quarter ended September
30, 2017, for possible diminution in the
value of investment of Lanco Power Limited (LPL), a subsidiary of the company
which is holding the shares of Lanco Mandakini Hydro Energy Private Limited
(LMHEPL) directly and indirectly, on account of lenders proposal to invoke
change in management (outside SDR) by exercising the pledged shares of the
LMHEPL.
3. Mahatamil Mining and Thermal Energy
Limited (MMTEL), a subsidiary of the company had entered into Coal Mining
Services Agreement (CMSA) with Mahatamil Collieries Limited (MCl) for
developing and mining of Gare Pelma Sector II Coal block located in Raigarh
district in the state of Chhattisgarh. The allocation of said coal block was
cancelled by the Hon’ble Supreme Court’s order dated September 24, 2014. As per
CMSA, MMTEL has incurred an amount of Rs.204.66 cr till March 31, 2015 towards
exploration, infrastructure and performance security deposit. The amount
incurred has been claimed by MMTEL as per terms of the Coal Mines (Special
Provisions) Ordinance, 2014. The company’s investment of Rs.90.42 cr and other
advances amounting to Rs.80.84 cr made in MMTEL as on December 31, 2017, is
considered recoverable from MCL by the management based on the said claim. This
is an emphasis of matter in the auditor’s limited review report.
4. Lanco Hoskote Highways Limited (LHHL) and
Lanco Devihalli Highways Limited (LDHL), subsidiaries of the company, have been incurring losses since commencement
of operations and also due to de-recognition of Capital Grant from Reserves as
per the requirement of Ind AS 11 Appendix – A on Service Concession
Arrangement, the Net Worth has eroded significantly as at December 31, 2017.
The Management is taking necessary steps to improve the profitability in future
and is of the view that the carrying value of Investment of the company along
with its subsidiaries aggregating to Rs.805.66 cr in LHHL & LDHL is
realisable at the value stated therein. Accordingly, no adjustments have been
made in these financials results. This is an emphasis of matter in the
auditor’s limited review report.
5. Lanco Hills Technology Park Private
Limited (LHTPPL), a subsidiary of the company has been incurring losses and the
Net Worth has eroded significantly as at December 31, 2017. The Management is
taking various initiatives to improve the profitability, and completion of
certain project components through development partners and is of the view that
the carrying value of the Investment Rs.1,332.08 cr in LHTPPL is realisable at
the value stated therein. Accordingly, no adjustments have been made in these
financials results. This is an emphasis of matter in the auditor’s limited
review report.
6. Lanco Kanpur Highways Limited (LKHL), a
subsidiary of the company, had entered into concession agreement with NHAI for
developing a road project in Uttar Pradesh state under BOOT mechanism. The
construction work is delayed due to right of way to be arranged by NHAI. During
the FY 2015-16, LKHL had received notice of termination of concession agreement
from NHAI, and LKHL issued a notice of termination of concession agreement to
NHAI. Arbitration proceedings have been initiated to settle the claims and the
counter claims associated with the termination as per the Concession Agreement.
Based on the expert legal opinion, the management is confident on the
recoverability of its claims submitted and is not expecting any liability on
counter claims filed by NHAI. The company invested in LKHL Rs.196.50 cr, other
advances receivable Rs.0.23 cr and received EPC contract mobilisation advance
of Rs.143.54 cr as on December 31, 2017. This is an emphasis of matter in the
auditor’s limited review report.
7. Diwakar Solar Projects Limited (DSPL), a
subsidiary of the Company engaged in setting up solar thermal power plant (100
MW); is affected on account of various factors beyond the control of the
management. DSPL has filed petition with Central Electricity Regulatory Commission
(CERC) for extension of Commercial Operation Date (COD) and to revise the Power
Purchase Agreement (PPA) Tariff for viability of the project on the ground that
the bid Direct Normal Irradiation (DNI) was different from the actual DNI. The
Management is confident upon tariff revision and extension of COD for executing
the project. In view of this, the company does not foresee any requirement for
adjustment in carrying value of investment of Rs.219.59 cr as at December 31,
2017. This is an emphasis of matter in the auditor’s limited review
report.
8. During/the previous quarter ended
September 30, 2017, one of the lenders has recalled its loans given to the
Lanco Teesta Hydro Power Limited (LTHPL), an associate of the company and
invoked the pledged shares issued by LTHPL as security towards the loan
facility amounting to Rs.296.63 cr. Vide share purchase agreement dated March
30, 2012, shares held by the company in LTHPL were transferred to Lanco Hydro
Power Limited, a subsidiary of the company. The eventual financial obligation
on the company is yet to be determined and hence, no adjustments have been made
in these financial results. This is an emphasis of matter in the auditor’s
limited review report.
9. During the previous quarter ended
September 30, 2017, one of the lenders has recalled its loans given to the
group companies and invoked the Corporate Guarantees issued by the company in
favour of those group companies amounting to Rs.7,266.17 cr. The eventual
financial obligation on the company is yet to be determined, hence, no
adjustments have been made in these financial results including changes that
may be warranted due to exchange fluctuations.
This is a matter of qualification in the auditor’s limited review report.
10. During the nine months period ended
December 31, 2017, certain customers of the Company encashed Bank Guarantees
(BG) provided by the Company towards
advances received and performance security. In the opinion of the
management against the encashed BGs, value amounting to Rs.519.69 cr is
recoverable from the customers and necessary steps are being initiated.
Consequently, no adjustments have been made in these financial results. This is
a matter of qualification in the auditor’s limited review report.
11. The Company had been referred to NCLT by
one of its lenders and consequently CIRP has been initiated, as detailed in
Note 1. During the quarter ended June 30, 2017, the Company’s Net worth has
been fully eroded. The Company’s ability to meet its contractual obligations
involving EPC Contracts, financial obligations to its lenders and investment
commitments to group companies is dependent on resolution of the matters as
part of CIRP. Currently, the Company is in the process of identifying the
resolution alternatives, and accordingly, the financial results are prepared on
a going concern basis. This is a matter of qualification in the auditor’s
limited review report.
12.
As reported in the previous periods, during the quarter the lenders of
Lanco Kondapalli Power Limited (LKPL) converted portion of their debt into
equity shares of LKPL under Strategic Debt Restructuring Scheme (SDR), RBI
guidelines. On account of SDR, the effective shareholding of the company in
LKPL reduced to 28.15% from 58.91% and ceased to be subsidiary with effect from
November 22, 2017.
From
Independent Auditors’ Review Report on Standalone Unaudited Financial Results
1. The Hon’ble National Company Law Tribunal
(“NCLT”), Hyderabad Bench, admitted the Corporate Insolvency
Resolution Process (“CIRP”) application filed by a Financial Creditor
of Lanco Infratech Limited (“the Company”), and appointed an
Interim Resolution Professional (“IRP”), in terms of the Insolvency
and Bankruptcy Code, 2016 (“the Code”) to manage the affairs of the
Company as per the provisions of the Code. The Committee of Creditors of the
Company, in its meeting dated September 12, 2017, confirmed the IRP as the
Resolution Professional (“RP”) for the Company. In view of pendency
of the CIRP, and in view of suspension of powers of Board of Directors and as
explained to us, the powers of adoption of this standalone financial results
vests with the RP.
2. Not reproduced
3. Not reproduced
4. Without qualifying our review conclusion,
attention is invited to
a)
Note 3 to the financial results, dealing with cancellation of coal
blocks by the Hon’ble Supreme Court, which included coal mine jointly allotted
to Tamil Nadu Electricity Board and Maharashtra State Mining Corporation
Limited (“the Allottees”). Mahatamil Mining and Thermal Energy
Limited (MMTEL), a subsidiary of the Company, entered into Coal Mining Services
Agreement with the Allottees of the mine, pursuant to which, the amount
invested and advances provided aggregating to Rs.171.26 crore, the
realisability of which is dependent on the compensation to be awarded under the
Ordinance issued by the Government of India. The Company obtained a legal
opinion in this regard, based on which, the investment is considered to be
recoverable, notwithstanding the denial of obligation by the Allottees in
regard to certain cost components, and no adjustments have been made in these
financial results, pending the final outcome of claims by MMTEL.
b) Note 4 to the financial results, in
relation to the carrying value of investments in Lanco Hoskote Highway Limited
(LHHL) and Lanco Devihalli Highways Limited (LDHL), subsidiaries of the
Company, which have been incurring losses ever since the commencement of
commercial operation and accumulated losses incurred so far eroded the net
worth significantly. Taking into consideration the management’s assessment of
the situation including its efforts towards seeking further concessions from
grantors, the management of the Company is of the view that the carrying value
of the investment is realizable at the value stated therein. Accordingly, no
adjustments have been made in these financial results.
c) Note 5 to the financial results, in
relation to the carrying value of investment in Lanco Hills Technology Park
Private Limited (LHTPPL), a subsidiary of the Company, where the accumulated
losses incurred so far eroded the net worth significantly. Taking into
consideration the management’s assessment of the situation including its
efforts to complete certain project components through development partners,
the management of the Company is of the view that the carrying value of the
investment is realisable at the value stated therein. Accordingly, no
adjustments have been made in these financial results.
d) Note 6 to the financial results, in
relation to Lanco Kanpur Highways Limited (LKHL), a subsidiary of the Company,
which has received a notice of termination to the Concession Agreement from
National Highways Authority of India (NHAl) and simultaneously, LKHL has also
issued a notice of termination to NHAI. Arbitration proceedings have been
initiated to settle the claims and the counter claims associated with the
termination as per the Concession Agreement. LKHL has incurred certain costs
towards the project during the period when the concession was in force and
subsequently, aggregating to Rs.53.19 crore, the reliability of these amounts
is dependent on the outcome of the arbitration proceedings. Accordingly, no adjustments
have been made in these financial results.
e) Note 7 to the financial results, in
relation to the carrying value of investment
amounting to Rs.219.59 crore in Diwakar Solar Projects Ltd (DSPL), a
subsidiary of the Company, which explains the management’s efforts in obtaining
the extension of revised COD and revision in tariff. In the opinion of the
management, the execution of the project with the extended timelines for
bringing the assets to its intended use with revised tariff being considered
favourably, is still viable even after considering low implementation
activities and significant time and cost overruns. Accordingly, in the opinion
of the management, no provision is required for any diminution in the carrying
value of the investment. Pending the final outcome in the matters relating to
extension of revised COD and revision of tariff, no adjustments have been
carried out to the carrying value of the investment.
f) Note 8 to the financial results, In
regard to invocation of pledged shares of Lanco Teesta Hydro Power Limited
(LTHPL), an associate of the Company, issued by the Company in favour of the
lender of LTHPL, amounting to Rs.296.63 crore. One of the lenders of LTHPL, has
filed a petition in NCLT in terms of Section 7 of the Code, which is pending
admittance by the NCLT. In view of the factors
detailed in the said note and pending determination of the eventual
financial obligation on the Company, no adjustments have been made to these
financial results.
Our conclusion is not qualified in respect
of the matters reported in paragraph
5.
Attention is invited to
a) Note 9 to the financial results, in
regard to the various Corporate Guarantees extended by the Company in favour of
one of the lenders of Group Companies. The lender has invoked these guarantees
amounting to Rs.7,266.17 crore and is pursuing recovery actions against the
Company. In view of the factors detailed in the said note and pending
determination of the eventual financial obligation on the Company, the impact
on the financial results is also not quantifiable, accordingly no adjustments
have been made to these financial results.
b)
Note 10 to the financial results, regarding encashment of Bank Guarantee
by customers of the Company amounting to Rs.949.35 crore. The management is of
the opinion that the encashment is not in accordance with the conditions
specified in the Engineering, Procurement and Construction (EPC) contract and
is of the opinion that the encashed value of Bank Guarantee, net of advances,
is fully recoverable and no adjustments have been made in these financial
results. Pending initiatives by the management against the invocation of Bank
Guarantee, had the impact been factored in these financial results, the Loss
for the Quarter would have been higher by Rs.519.69 crore with a consequential
impact on reserves, to the same extent.
c)
Note 11 to the financial results, regarding application by the Financial
Creditor, initiating the insolvency provisions under the Insolvency and
Bankruptcy Code, 2016 (the Code) and the consequential appointment of RP under
the Code, and adequacy of disclosure concerning the Company’s ability to meet
its contractual obligation in respect of EPC Contracts including management’s
technical estimates in regard to estimated cost to completion, realisation of
value of inventories and other financial assets, financial obligations
including repayment of various loans including invoked guarantees both by
lenders and customers, unpaid interest and the ability to fund various obligations
pertaining to operations including unpaid/overdue creditors, for
ensuring/commencing normal operations and further investments required towards
ongoing projects under construction. These matters essentially require the
Company to resolve the situations specified therein within the framework
specified through the CIRP. Under these circumstances, the possible erosion in
the carrying value of Investments is also not ascertainable at this point in
time. In the absence of any specific guidance or direction that can be assessed
out of CIRP, material uncertainties exist that may cause significant doubt on
the Company’s ability to continue as a going concern. However, the
appropriateness of preparation of financial results on a going concern basis is
subject to the Company’s ability to resolve the matters through the CIRP or
such other forum or manner as specified in the said Note.
6. Based on our review conducted as stated
above, except for possible effects of the matters specified in Paragraph 5
above, nothing has come to our attention that causes us to believe that the
accompanying statement of unaudited financial results prepared in accordance
with aforesaid Indian Accounting Standards and other accounting principles
generally accepted in India, has not disclosed the information required to be
disclosed in terms of Regulation 33 of the SEBI (Listing Obligations &
Disclosure Requirements) Regulations, 2015 as modified by Circular No.
CIR/CFD/FAC/62/2016 dated July 5, 2016, including the manner in which it is to
be disclosed, or that it contains any material misstatement.
Goods And Services Tax (GST)
I
High Court
1. [2018-TIOL-24-HC-MUM-GST]
Builders Association of Navi Mumbai vs. Union of India.
Writ Petition No. 12194 of
2017 dated 28th March, 2018
One time lease premium is
liable for GST
Facts
The Appellants are
builders/developers, constructing residential and commercial properties. The
projects are undertaken after the City Industrial and Development Corporation
of Maharashtra Ltd. (CIDCO) exercises the statutory function of town planning etc.
under the MRTP Act, 1966. CIDCO invites offers from entities to acquire on
lease residential cum-commercial plots allotted on long-term lease of 60 years.
One such plot of land was allotted to the Appellants and in addition to the
one-time lease premium, GST on the said amount was demanded separately and the
same is challenged. It was argued that the long-term lease of 60 years
tantamounts to sale of the immovable property, since the lessor is deprived of
the right to use, enjoy and possess the property and therefore section 7 of the
CGST Act has no application. Further, CIDCO discharges a Government/statutory
function and therefore should not be liable for GST. On the other hand, the
department argued that the law does not make any distinction between governmental
and non-governmental agencies and CIDCO cannot be treated as Government.
Held
The Hon’ble High Court
referred to section 7 of the CGST Act defining the term ‘supply’ and noted that
the definition includes activities specified in Schedule I made or agreed to be
made without consideration and activities to be treated as supply of goods or
services specified in Schedule II would be included in the definition of
supply. Section 7(1) of the Act includes all forms of supply of goods or
services or both such as sale, transfer, barter, exchange, license, rental,
lease or disposal made or agreed to be made for a consideration by a person in
the course or furtherance of business. It was observed that CIDCO is a person and in the course
or in furtherance of its business, it disposes of lands by leasing them out for
a consideration styled as one-time premium. Therefore, considering Schedule II,
section 7, Item No. 2 styled as land
and building and any lease,
tenancy, license to occupy land is a supply of service. It is a settled law
that the provisions have to be read together and harmoniously to understand the
nature of levy. It was noted that once the law and the schedule treats the
activity as supply of goods or supply of services, particularly in relation to
land and building and includes a lease, then, the consideration therefor as a
premium/one-time premium is a measure on which the tax is levied, assessed and
recovered. Accordingly, GST on one time premium is upheld.
2. [2018-TIOL-23-HC-MUM-GST]
JCB India Ltd. vs. Union of India dated March 19 & 20, 2018
Clause (iv) of section
140(3) prescribing a time limit of twelve months on stocks prior to which
credit cannot be availed is not arbitrary or unreasonable
Facts
The petitioner challenges
the validity of the time period mentioned in clause (iv) of section 140(3) of
the CGST Act. The said section allows a registered dealer to avail input tax
credit of goods held in stock as on 01.07.2017 and clause(iv) of the said
section provides that such credit can be availed only when goods are purchased
after 30.06.2016. It was argued that a person who is not in possession of a
duty paying document e.g. a trader is also eligible to avail input tax credit
on a presumptive basis, but the petitioner who is in possession of all the duty
paid documents is barred from availing CENVAT credit where the invoice is
issued on or prior to 30.06.2016. This is unreasonable and results in
inequality. The ineligibility of such credit results in cascading effect of tax
and violates the mandate of Article 14 of the Constitution of India. On the
basis thereof, the present petition is filed.
Held
The Court noted that CENVAT
credit is a mere concession and it cannot be claimed as a matter of right.
Under the existing law as well there are conditions stipulated in Rule 4(7) of
the CENVAT Credit Rules, 2004 for availment of CENVAT credit. if right to
availment of CENVAT credit itself is conditional and not restricted or
absolute, then, the right to pass on that credit cannot be claimed in absolute
terms. Thus, there is no promise which was absolute and unconditional which was
breached by the executive or the State. Therefore, the impugned condition
mentioned in the transition provision does not defeat any accrued or vested
right and is accordingly not arbitrary or unreasonable. Accordingly, the
petition is dismissed.
3. [2018] 91 taxmann.com
282 (Kerala) Ascics Trading Company vs. Assistant State Tax Officer
Detention on the ground
that the transportation of goods in the course of inter-state trade was not
accompanied by the prescribed documents under IGST Act / CGST Act / CGST Rules
could not be sustained in view of the fact that the power to prescribe documents
is conferred on the Central Government and no documents were prescribed by the
Central Government on that date
Facts
The goods belonging to the
petitioner and the vehicle carrying the goods were detained by the State
Authorities on the ground that the transportation was not accompanied by the
documents prescribed under CGST Act / IGST Act / CGST Rules. The issue for
consideration was whether the State Government was empowered to detain goods
for non-compliance with the requirement of carrying the prescribed documents
under the IGST Act.
Held
The Hon’ble High Court held
that the detention on sole reason that the transportation was not accompanied
by prescribed documents under IGST Act / CGST Act / CGST Rules cannot be
legally sustained on the ground that the power to prescribe documents that are
to accompany the transportation is conferred on the Central Government and not
on the State Government and the Central Government as on that date had not
prescribed such documents.
The Court noted that having
regard to sections 4 and 20 of IGST Act and sections 6, 129 read with Rule 138
of CGST Rules, neither the State Legislature nor the State Government would
have the power to prescribe documents to accompany transportation in the course
of inter-state trade.
4. [2018] 91 taxmann.com
210 (Allahabad) R. R. Agro Industries vs. State of U.P.
Where the power of seizure
is clearly traceable under the relevant Act, the order for seizure cannot be
held bad in law merely because wrong provision of Act had been mentioned while
passing the same
Facts
The petitioner was engaged
in manufacturing and sale of an agriculture implement, “Tasla”. The goods and
the conveyance were detained and seized u/s. 129(1) of the Uttar Pradesh Goods
and Services Tax Act, 2017. It was submitted that since the transportation was
in the course of inter-state trade, the goods and the conveyance were not
liable to be seized under the
State Act.
Held
The Hon’ble High Court held
that the impugned order of seizure could not be held to be bad in law merely by
reason that wrong provision of the Act was mentioned in the said order as
similar provisions for power of seizure exist in CGST Act and as per section 20
of the IGST Act, in respect of matters of inspection, seizure, search and
arrest, the provisions of CGST Act shall apply mutatis mutandis. Accordingly,
the Court held that the impugned order shall be treated to have been passed
under IGST Act read with section 129 of the CGST Act.
II. Authority
for Advance Ruling
5. [2018-TIOL-01-AAR-GST]
Caltech Polymers Pvt. Ltd.
Recovery of canteen
expense from employees liable for GST.
Facts
The Applicant preferred an
application for Advance Ruling on whether recovery of food expenses from
employees for the canteen service provided by them comes under the definition
of outward supplies and are taxable under Goods & Service Tax Act. It was
submitted that the expenditure incurred by them in preparing the food is recovered
without any profit margin as a deduction from their monthly salary. The
facility is provided as mandatorily provided under the Factories Act, 1948. It
was contended that the activity does not fall within the scope of ‘supply’, as
the same is not in the course or furtherance of its business. They are only
facilitating the supply of food to the employees, which is a statutory
requirement, and is recovering only the actual expenditure incurred in
connection with the food supply, without making any profit. The Mega Exemption
Notification under the Finance Act, 1994 providing an exemption to food and
beverages supplied in a factory was also referred.
Held
The Authority noted that
there is no similar exemption provision under the GST law as under the Finance
Act. Further, the definition of business was analyzed and it was concluded that
the supply of food by the applicant to its employees would definitely come
under clause (b) of section 2(17) as a transaction incidental or ancillary to
the main business. It was further noted that under Schedule II to the GST Act,
supply by way of or as a part of service of goods being food is a declared
supply of service. Though there is no profit on the supply of food, the
transaction is considered to be a supply within the meaning of section 7(1) of
the CGST Act and is therefore taxable as a supply of service under GST.
Glimpses Of Supreme Court Rulings
14. Search and seizure – Assessment of third
person – It is an essential condition precedent that any money, bullion or
jewellery or other valuable articles or thing or books of accounts or documents
seized or requisitioned should belong to a person other than the person
referred to in section 153A of the Act.
Appeal – Power
to admit additional ground – As per the provisions of section 153C of the Act,
incriminating material which is seized has to pertain to the Assessment Years
in question and when it is undisputed that the documents which are seized do
not establish any co-relation, document-wise, essential requirement u/s. 153C of
the Act for assessment under that provision is not fulfilled, it becomes a
jurisdictional fact – Tribunal was justified in admitting the additional ground
Commissioner
of Income Tax-III, Pune vs. Sinhgad Technical Education Society (2017) 397 ITR
344 (SC)
A search and
seizure operation was carried out under section 132 of the Act on one Mr. M. N.
Navale, President of the Sinhgad Technical Education Society (the
assessee-society), and his wife on July 20, 2005 from where certain documents
were seized. On the basis of these documents, which according to the Revenue
contained notings of cash entries pertaining to capitation fees received by
various institutions run by the Assessee, a notice u/s.153C of the Act was
issued on April 18, 2007.
In the order of
assessment, the Assessee was treated as an Association of Person (AOP). Having
regard to the complexity involved in the accounts and the changes to be
effected on account of the change in the status of the Assessee to that of AOP,
a special audit u/s. 142(2A) of the Act was conducted. On the basis of special
audit report, taxable incomes for the Assessment Years 1999-2000 to 2006-07 had
been worked out.
Assessment Year
1999-2000 was covered u/s.147 of the Act, Assessment Year 2006-07 was covered
u/s.143(3) of the Act and Assessment Years 2000-01 to 2005-06 were covered
u/s.153C read with section143(3) of the Act.
The Assessee
filed appeal there against, which was partially allowed by the Commissioner of
Income Tax (Appeals) {CIT(A)}. He, however, upheld the order of the AO, holding
that the Assessee was not eligible for exemption u/s.11 of the Act and,
therefore, donations received were rightly treated as income. Against the
aforesaid part of the order, which was against the Assessee, it preferred further
appeal to the ITAT. In the appeal before the ITAT, the Assessee raised
additional ground questioning the validity of the notice u/s.153C of the Act on
the ground that satisfaction was not properly recorded and also that the notice
u/s.153C was time barred in respect of Assessment Years 2000-01 to 2003-04. The
ITAT allowed the Assessee to raise the additional ground and decided the same
in favour of the Assessee thereby quashing the notice in respect of the
aforesaid Assessment Years. Challenging this order, the Revenue filed appeals
before the High Court. However, the High Court dismissed these appeals.
The objection
of the Revenue before the Supreme Court was that it was improper on the part of
the ITAT to allow additional ground to be raised, when the Assessee had not
objected to the jurisdiction u/s.153C of the Act before
the AO.
The Supreme
Court noted that the ITAT permitted this additional ground by giving a reason
that it was a jurisdictional issue taken up on the basis of facts already on
the record and, therefore, could be raised. The ITAT had held that as per the
provisions of section 153C of the Act, incriminating material which was seized
had to pertain to the Assessment Years in question and it was an undisputed
fact that the documents which were seized did not establish any co-relation,
document-wise, with the aforesaid four Assessment Years. Since this requirement
u/s. 153C of the Act was essential for assessment under that provision, it
became a jurisdictional fact. The Supreme Court found this reasoning of the
ITAT to be logical and valid, having regard to the provisions of section 153C
of the Act. According to the Supreme Court, para 9 of the order of the ITAT
revealed that the ITAT had scanned through the Satisfaction Note and the material
which was disclosed therein was culled out and it showed that the same belonged
to Assessment Year 2004-05 or thereafter. After taking note of the material in
para 9 of the order, the position that emerged therefrom was discussed in para
10. It was specifically recorded that the counsel for the Department could not
point out to the contrary. It was for this reason the High Court had also given
its imprimatur to the aforesaid approach of the Tribunal. The Supreme
Court further noted that the learned senior Counsel appearing for the
Respondent, had argued that notices in
respect of Assessment Years 2000-01 and 2001-02 were even time-barred.
The Supreme
Court held that the ITAT rightly permitted this additional ground to be raised
and correctly dealt with the same ground on merits as well. Order of the High
Court affirming this view of the Tribunal was, therefore, without any blemish.
In view of the aforementioned findings, the Supreme Court was of the view that
it was not necessary to enter into the controversy as to whether the notice in
respect of the Assessment Years 2000-01 and 2001-02 was time-barred.
The Supreme
Court observed that the Gujarat High Court in Kamleshbhai Dharamshibhai
Patel vs. CIT (2013) 31 taxmann.com 50 had categorically held that it was
an essential condition precedent that any money, bullion or jewellery or other
valuable articles or thing or books of accounts or documents seized or
requisitioned should belong to a person other than the person referred to in
section153A of the Act. According to the Supreme Court, this proposition of law
laid down by the High Court was correct, which was also stated by the Bombay
High Court in the impugned judgement as well. The Supreme Court noted that
judgement of the Gujarat High Court in the said case went in favour of the
Revenue when it was found on facts that the documents seized, in fact, pertain
to third party, i.e. the Assessee, and, therefore, the said condition precedent
for taking action u/s.153C of the Act had been satisfied.
The Supreme
Court also held that likewise, the Delhi High Court in SSP Aviation Limited
vs. DCIT (2012) 346 ITR 177 (Delhi) had also decided the case on altogether
different facts which had no bearing once the matter was examined in the
aforesaid hue on the facts of this case. The Bombay High Court has rightly
distinguished the said judgement as not applicable.
According to
the Supreme Court, there was no merit in these appeals.
The Supreme
Court however, clarified that it had not dealt with the matter on merits
insofar as incriminating material found against the Assessee or Mr. Navale was
concerned.
The Supreme
Court dismissed the appeals with the aforesaid observations.
15. Search and
seizure – In view of the amendment made in section 132A of the IT Act, 1961 by
Finance Act of 2017, namely, that the ‘reason to believe’ or ‘reason to
suspect’, as the case may be, shall not be disclosed to any person or any
authority or the appellate Tribunal as recorded by IT authority u/s.132 or section
132A, the Supreme Court could not go into that question of validity of the
search at all
N. K.
Jewellers and Ors. vs. Commissioner of Income Tax
(398 ITR 116
(SC).
On 27th
May, 2000, an employee of the Appellant was returning from Amritsar by train No.
2030, Swarn Shatabdi Express and he was found in the possession of Rs. 30 lakh
cash in a search by Railway Police. The SHO, GRP Station, Jalandhar after
making enquiries from the concerned employee registered a case under sections
411/414 of the Indian Penal Code on 27th May, 2000.
The said
information was received by the Investigation Unit, Jalandhar from SHO, GRP
Station Jalandhar on 29th May, 2000. Warrant of authorisation
u/s.132A of the IT Act, 1961 (the Act), was obtained from the Director of IT,
Ludhiana and the cash of Rs. 30 lakh was requisitioned on 3rd June,
2000 and seized. Proceeding for assessment for the block period from 1st
April, 1991 to 3rd June, 2000 u/s. 158BD of the Act was initiated.
The explanation
of the Appellant before the assessing authority was that his employee had gone
to Amritsar to make some purchases of gold but the transaction did not
materialise. The AO was of the view that the amount represented sales of gold
made by the Appellant on earlier occasions and the sale proceeds were being
carried back to Delhi. After considering the statements of various persons and
other material on record, the authorities came to the conclusion that it was
concealed income and accordingly, the Appellant was assessed to tax. As such, the
explanation of the Appellant was not accepted and the High Court also took the
view that the Appellant was disbelieved for adequate reasons and hence, no
substantial question of law arises for its consideration.
Before the
Supreme Court, the learned Counsel for the Appellant submitted that the
proceedings initiated u/s.132 of the Act were invalid for the reason that it
could not be based on a search conducted on a train by the police authorities
and, therefore, the proceedings initiated for block assessment period 1st
April, 1991 to 3rd June, 2000 were without jurisdiction.
The Supreme
Court noted that this plea was not raised by the Appellant before any of the
authorities. Further, it noted the amendment made in section 132A of the IT
Act, 1961 by Finance Act of 2017, namely, that the ‘reason to believe’ or
‘reason to suspect’, as the case may be, shall not be disclosed to any person
or any authority or the appellate Tribunal as recorded by IT authority u/s.132
or Section132A. According to the Supreme Court, it therefore, could not go into
that question at all. Even otherwise, the Supreme Court found that the
explanation given by the Appellant regarding the amount of cash of Rs. 30 lakh
found by the GRP and seized by the authorities had been disbelieved and had
been treated as income not recorded in the books of account maintained by it.
In view of the above, according to the Supreme Court there was no infirmity in
the order passed by the High Court.
Accordingly,
the civil appeal was dismissed.
16. Appeal to
the High Court – In order to admit the second appeal, what is required to be
made out by the Appellant being sine qua non for exercise of powers u/s.
100 of the Code, is existence of “substantial question of law”
arising in the case so as to empower the High Court to admit the appeal for
final hearing by formulating such question
Maharaja
Amrinder Singh vs. The Commissioner of Wealth Tax (2017) 397 ITR 752 (SC)
The issue
involved in the wealth tax appeals for the three assessment years 1981-82,
1982-83 and 1983-84 was decided by the Tribunal in favour of the Appellant
(assessee) which gave rise to filing of the appeals before the High Court by
the Revenue u/s. 27-A of the Act questioning therein the legality and
correctness of the orders of the Tribunal. The High Court allowed the appeals
filed by the Revenue setting aside the order dated 05.07.2011 passed by the
Income Tax Appellate Tribunal and restoring the order of assessment passed by
the Assessing Officer for levying penalty for the entire period of delay in
respect of the said Assessment Years, which gave rise to filing of these
appeals by way of special leave before the Supreme Court by the Assessee.
The short
question, which arose for consideration before the Supreme Court in these
appeals, was whether the High Court was justified in allowing the appeals filed
by the Revenue and thereby was justified in setting aside the orders passed by
the Tribunal.
The Supreme
Court observed that in Santosh Hazari vs. Purushottam Tiwari (Deceased) by
L.Rs., (2001) 3 SCC 179, it had held that in order to admit the second
appeal, what is required to be made out by the Appellant being sine qua non for
exercise of powers u/s. 100 of the Code of Civil Procedure, 1908, is existence
of “substantial question of law” arising in the case, so as to
empower the High Court to admit the appeal for final hearing by formulating
such question. In the absence of any substantial question of law arising in
appeal, the same merits dismissal in limine on the ground that the
appeal does not involve any substantial question of law within the meaning of
section100 of the Code.
According to
the Supreme Court, the interpretation made by it of section 100 in Santosh
Hazari’s Case (supra), would equally apply to section27-A of the Act
because firstly, both sections provide a remedy of appeal to the High Court;
secondly, both sections are identically worded and in pari materia; thirdly,
section27-A is enacted by following the principle of “legislation by
incorporation”; fourthly, section 100 is bodily lifted from the Code and
incorporated as Section27-A in the Act; and lastly, since both sections are
akin to each other in all respects, the appeal filed u/s. 27-A of the Act has
to be decided like a second appeal u/s.100 of the Code.
The Supreme
Court on the facts of the case, found that the High Court had proceeded to
decide the appeals without formulating the substantial question(s) of law. The
High Court did not make any effort to find out as to whether the appeals
involved any substantial question(s) of law and, if so, which was/were that
question(s), nor it formulated such question(s), if in its opinion, really
arose in the appeals. The High Court failed to see that it had jurisdiction to
decide the appeals only on the question(s) so formulated and not beyond it.
[Section27(5)].
In the light
of foregoing and keeping in view the law laid down in the case of Santosh
Hazari (supra), the Supreme Court held that the impugned orders were not
legally sustainable and thus were liable to be set aside. As a result, the
appeals succeed and were allowed. Impugned orders were set aside. Both the
cases were remanded to the High Court for deciding the appeals afresh in
accordance with the observations made above. _
Miscellanea
1. Economy
10. U.S., Japan Express Concern Over China’s Interest in Saudi Oil Giant Amarco
A plan to list Saudi Aramco in 2018 is on
track. Prince Mohammad has said the IPO, which could be the world’s biggest,
will value Aramco at a minimum of $2 trillion and could raise as much as $100
billion.
U.S. and Japan have urged Saudi Arabia to
pursue an international listing for oil giant Aramco, fearing the possible sale
of a stake to China would give Beijing too much sway in the Middle East.
Recently Donald Trump has publicly pleaded
with Saudi Arabia to sell shares in its national oil company, Aramco, on the
New York Stock Exchange via tweet. “Would very much appreciate Saudi
Arabia doing their IPO of Aramco with the New York Stock Exchange. Important to
the United States!” It would be interesting to see if the Aramco will give pre
listing stake to China or not. Only year 2018 will give you answer.
(Source : Returns and Wall Street
Journal)
11.
Fortune 500 Companies presence in Tax Heaven
Tax havens help MNCs in evading the taxes by
different ways and by different means .One of the major companies uses the tax
havens is for corporate tax avoidance; which has enormous impact both on
developing and developed countries. It is difficult for the tax authorities to
track the global companies who are evading taxes in their countries due to lack
of transparency.
Multinational firms can artificially shift
profits from high tax to low tax jurisdictions using a variety of techniques ,
such as shifting debt to high tax jurisdictions ,because tax on the income of
foreign subsidiaries (except for certain passive income) is deferred until
income is repatriated (paid to the US parent as a dividend).
Interesting facts
More than two thirds of the companies
registered in the US (Surface area: nearly 4 million square miles) appear to be
located in the tiny state of Delaware (Surface area: less than 2000 square
miles).
Most of America’s largest corporations
maintain subsidiaries in offshore Tax havens. At least 358 companies, nearly 72
percent of the fortune 500 operate subsidiaries in tax haven jurisdictions. All
told these 358 companies maintain at least 7,622 tax havens’ subsidiaries. The
thirty companies with the most money officially booked offshore for tax
purposes collectively operate 1,225 tax haven subsidiaries.
Fortune 500 companies currently hold more
than 2.1 trillion in accumulated profits offshore for tax purposes. Just thirty
fortune 500 companies account for 65 percent of these offshore profits. These
thirty companies with the most money offshore have booked 1.4 trillion overseas
for tax purposes. Only fifty seven fortune 500 companies disclose what they
would except to pay US taxes if these profits were not officially booked
offshore. In total these seven corporations public disclosures, the average
rate they have collectively paid to foreign countries on these profits is a
mere six percent indicating that a large portion of this offshore money has
been booked in tax havens.
If we apply that average tax rate of six
percent to the entirety of fortune 500 companies they would collectively owe
620 billion in additional federal taxes.
(Source: Black Money and Tax Heavens
Book)
2. Social
12.
India’s blind people struggle to recognise new banknotes
The government move to change the currency
bills last year has affected the visually impaired. Unlike the previous rupee
bills, the new banknotes are indistinguishable from one another based on their
texture and dimensions. The old 50, 100, 500 and 1,000 rupee banknotes, there
was a discernible size difference of 10mm or more either by length or width, a
distinction that helped most of India’s blind population transact with cash.
Imagine a Rs. 500 Note of a pale grey 150 by 66mm piece of paper and 20-rupee
note a 147mm by 63mm, how the blind person is going to differentiate? There are
more than 4 Million Blind population in India.
The Blind Graduates Forum of India, has been
in touch with the Reserve Bank of India (RBI),
finance minister and prime ministers’ offices, for the past few months
to make representation.
India’s Finance Minister Arun Jaitley in his
2014 budget speech had promised more schemes and measures to assist those with
disabilities. The Right of Persons with Disabilities Act passed in 2016
stipulates that various facilities, infrastructure and services be provided in
an accessible fashion. But implementation has so far been uneven. There is
online petition in chage.org, which has got more than 5000 signatures.
(Source: TRT World)
3. Technology
13.
Investors are Selling Gold to Invest in Bitcoin
According to ACG Analytics US macro strategy
head Larry McDonald, investors have begun to sell gold to invest in bitcoin
through the newly launched bitcoin futures exchange of the Chicago Board
Options Exchange (CBOE)
Since September, the value of gold miners
ETF (GDX), the largest gold exchange-traded fund (ETF) in the market, has
fallen by nearly 15 percent. In the past, McDonald noted that the value of gold
ETFs were correlated to the price trend of bond yields. But, this week,
McDonald explained that the decline in the price of gold ETFs was triggered by
the rapid increase in demand for bitcoin.
Given bitcoin’s decentralized nature,
transportability, fixed supply, and divisibility, in the long-term, bitcoin
will be able to compete with traditional stores of value such as gold.
(Source : newsbtc)
14.
2017 rewind: achievements,
major milestone, political and other events in India
January
– 2
January – Nuclear-Capable Agni-IV Missile Tested Successfully.
– 7
January -Heavy snowfall in Kashmir, Himachal Pradesh and Uttrakhand disrupt
normal life. Heaviest snowfall recorded of two decades at most of the places.
– 25
January – UAE delegation led by Shaikh Mohammad Bin Zayed Al Nahyan, Crown
Prince Abu Dhabi visited India to sign 14 agreements including strategic
partnership, defense industries, transport, cyber security and shipping.
February
– 1
February – Union budget for 2017 – 18 is presented by Arun Jaitley in Lok
Sabha.[7] 92 year old Railway Budget is merged in this budget.
– 15
February – ISRO launched PSLV-C37 rocket which put into orbit a record 104
satellites from seven countries.
March
– 6
March – Indian Navy’s oldest serving aircraft carrier INS Viraat decommissioned
after 30 years of its service.
– 11
March – Election result of Legislative election in five states declared by
Election Commission.
– 14
March – Manohar Parrikar took oath as the new Chief Minister of Goa.
– 15
March – Biren Singh took oath as the new Chief Minister of Manipur.
– 16
March – Amarinder Singh took oath as the new Chief Minister of Punjab.
– 18
March – Adityanath Yogi took oath as the new Chief Minister of Uttar Pradesh.
April
– 27
April – Vinod Khanna death, 70, Veteran Actor, Former Minister of State (born
1946), Bladder Cancer.
May
– 26
May – K. P. S. Gill dead, 82, IPS officer.
June
– 9
June – India along with archrival Pakistan became full members of Shanghai
Cooperation Organisation.
– 17
June – Kochi Metro inaugurated.
– 19
June – BJP announced Ram Nath Kovind as its Presidential Candidate for
Presidential Election.
– 23
June – ISRO puts 31 satellites including 29 satellites from other countries
through PSLV C-38 successfully.
July
– 1
July – Goods and Services Tax (India) launched in India. The India’s biggest
tax reform in 70 years of independence, was launched at midnight of 30 June
2017.
– 11
July – Major landslide occurred in Arunachal Pradesh. 14 people died while many
injured.
– 17
July – Indian presidential elections were held.
– 17
July – BJP led NDA declared Venkaiah Naidu as their candidate for Vice –
President election.
– 18
July – Congress protests against Madhur Bhandarkar’s film Indu Sarkar based on
1975 Emergency in India.
– 20
July – Ram Nath Kovind won the 2017 Indian presidential election with 65.65%
votes against Meira Kumar, the presidential candidate of the opposition.
– 25
July – Ram Nath Kovind took oath as 14th President of India.
– 26
July – Nitish Kumar (JDU) resigns as Chief Minister of Bihar, breaking the
coalition with RJD & Indian National Congress.
– 27
July – NDA (JDU + BJP) led government comes in Bihar. Nitish Kumar and Sushil
Modi took oath as Chief Minister and Dy. Chief Minister of Bihar respectively.
August
– 5
August – Venkaiah Naidu won the Indian vice-presidential election with 67.89%
votes against Gopalkrishna Gandhi, the opposition candidate.
– 9
August – Maratha Kranti Morcha starts in Mumbai for the demand for reservation
for the Maratha Community in the state of Maharashtra.
– 11
August – Venkaiah Naidu took oath as 13th Vice President of India.
– 22
August – Supreme Court bans instant triple talaq calling it unconstitutional.
Instructed Central Government to pass law in parliament for triple talaq.
– 28
August – Dipak Misra sworn in as 45th Chief Justice of India.
– 30
August – Switzerland president Doris Leuthard visited India for bilateral talk.
September
– 3
September- Nirmala Sitharaman became Defence Minister of India.
– 5
September – Narendra Modi on visit of China for 9th BRICS Summit and
Myanmar for bilateral talk and Lucknow Metro inaugurated.
– 11–12
September – Belarus President Alexander Lukashenko visited India for bilateral
talk, signed 10 agreements including defense.
– 13–14
September – Japan Prime Minister Shinzo Abe visited Ahmedabad for bilateral
talk, signed many agreements including Bullet Train project in India.
October
– 6
October – FIFA U-17 World Cup kickoff in India
– 16
October – 6 Corporaters in Mumbai joined Shivsena leaving Raj’s MNS.
November
– 1
November – Ashish Nehra retired from International Cricket.
– 18
November – Manushi Chhillar won the 6th Miss World crown for India
in Sanya, China.
– 29
November – Inauguration of Hyderabad Metro.
December
– 2
December – Cyclone Ockhi hits Tamil Nadu and Kerala causing 13 deaths.
– 4
December – Shashi Kapoor’s death, 79, Indian Veteran Actor.
– 7
December – Mani Shankar Aiyar removed from Congress.
– 13
December – Rohit Sharma scored third double century in ODIs against Sri
Lanka.[58].
– 18
December – Election commission declared result of Himachal Pradesh and Gujarat
legislative assembly election.
(Source: https://en.wikipedia.org) _
Letter To The Editor
Dear Sir/Madam
I, Mr. Samirkumar Kasvala (Membership :
O-30946), really appreciate the opportunity given to me to provide the feedback
on BCA Journal.
Further I would like to mention that BCA Journal is
publishing articles on ‘’PRACTICE MANAGEMENT‘’.
This is very useful at all levels. So this
should be made a regular article every month. This is just a good and positive
thought I shared with you.
Corporate Law Corner
10. Kediya Ceramics, In re
[2017] 86 taxmann.com 166 (NCLT – Ahd.)
Date of Order: 22nd September, 2017
Sections 230 to 232 of Companies Act, 2013 – Partnership firm
which is not registered under the provisions of Companies Act, 2013 is a body
corporate but not a company – The firm cannot participate in the amalgamation
proceedings under sections 230 to 232 of the Companies Act, 2013.
FACTS
K Co
(the applicant) was a partnership firm, registered under the Indian Partnership
Act, 1932 and was formed on 05.02.2015. The Applicant along with six other
companies sought to amalgamate with a company under a scheme of amalgamation
filed before the NCLT.
The
primary issue before the Tribunal was whether a registered partnership firm,
being a body corporate, could be treated as a “company” for the
purpose of sections 230-232 of the Companies Act, 2013.
The
Applicant put forth the following contentions before the Tribunal:
1. Section 2(11) read with section 2(95) of
Companies Act, 2013 (the Act) indicates that a firm is a body corporate and
therefore, entitled to proceed u/s. 232 of the Act for an amalgamation.
2. Section 366 of the Act which deals with
entities authorised to register as a “company” includes any
partnership firm. It was also stated that Explanation (b) to section 375(4)
stipulates that the expression “unregistered company” shall include
any partnership firm consisting of more than seven members.
3. Reference was drawn to section 394(4)(b) of
Companies Act, 1956 which stipulates that transferee company does not include
any company other than a company within the meaning of the Act, whereas a
transferor company includes any body corporate within the meaning of the said
Act or not.
4. It was further contended that section 234(2)
of the Companies Act, 2013 provides for merger of a foreign company (whether a
company or a body corporate) into a company registered under the Act or vice-versa.
5. Reliance was placed on judgments of Bombay
High Court in Philip J. vs. Ashapura Minechem Ltd. [2016] 66 taxmann.com
328/134 SCL 416, Kerala High Court in Co. Pet. No. 30/2014 in the matter of
Manjilas Agro Foods (P.) Ltd. and High Court of Calcutta in the matter of
Rossell Industries Ltd., In re [1995] 6 SCL 79 (Cal.)
HELD
The
Tribunal examined the various arguments that were put forth by the Applicant.
It was observed that section 2(20) defines a company as a company incorporated
under the provisions of the Act or under any previous company law. The
Applicant is not a company incorporated under the Companies Act, 2013 or under
any other previous Companies Act that was in force on the date of the
registration of the firm; and consequently not a “company” as defined under section
2(20) of the Act.
It was
held that the Applicant, being a partnership firm was “body corporate” within
the meaning of section 2(11) of the Act. Regarding the first two contentions,
the Tribunal observed that section 2(95) applied only when the phrase used has
not been defined under the Act. Since the word company has been defined,
recourse cannot be taken to provisions of section 2(95). Further, section 366
only contemplates which entities are authorised to be registered as a company
under the Companies Act. Thus, the Tribunal was of the view that a partnership
firm unless registered under the Companies Act by making use of section 366 of
the Companies Act cannot be included as a company.
The
Tribunal examined the provisions of section 394(4)(b) of Companies Act, 1956
which permitted a scheme of amalgamation between a transferor company
registered as a partnership firm and a transferee company, but not vice-versa.
It was held that there was no similar provision in sections 230 and 232 of the
Act. In the absence of such specific provision in the Companies Act, 2013
relating to amalgamation, it could not be said that even a body corporate can
participate in the scheme of amalgamation.
The
Tribunal further observed that section 234 had no application in the case of a
body corporate incorporated in India.
Lastly,
the Tribunal distinguished the cases relied upon by the Applicant and proceeded
to hold that the applicant, being a registered partnership firm and a body
corporate, is not a company within the meaning of the Companies Act, 2013 and,
therefore, it cannot participate in the amalgamation proceedings that are
initiated under the provisions of sections 230 to 232 of the Act.
11. India Awake for Transparency vs. UOI
[2017] 88 taxmann.com 101 (Delhi)
Date of Order: 5th December, 2017
Section 124(6) – Section 124(6) does not contemplate a statutory
vesting of property in shares the dividends of which have not been claimed for
more than seven years – Such shares merely stand transmitted to the Investor
education and protection fund that continues to hold them as a custodian –
Companies are required to comply with requirement of giving 3 months’ notice to
the shareholders before giving effect to such transfer of shares.
FACTS
I Co
is a non-profit company and filed a public interest litigation for strict
enforcement of Investor Education and Protection Fund Authority (Accounting,
Audit, Transfer and Refund) Rules, 2016 (“the 2016 Rules”) by every
company transferring shares to the Investor Education and Protection Fund (“the
Fund”). Companies Act, 2013 (the Act) provides that unpaid dividends accruing
in a company are to be transferred to an Unpaid dividend account (UDA). The Act
also provides for transfer of funds from UDA to the Fund, if no payout were
made for seven years. New section 124(6) has been introduced which further
provides that shares which yield dividends that remain unpaid for over seven
(7) years, would be transferred to the Fund.
The
petition describes the scheme of the Rules framed on 05.07.2016. It was
submitted that an impractical procedure was devised, which the authorities
realised and therefore, amended the Rules on 28.02.2017 (“first
amendment”) and later, on 13.10.2017 (“second amendment”). Rule
6.
It was
argued that there was complete lack of clarity with respect to the three month
period to be given to shareholders for the purpose of applying to claim their
shares from the respective companies before their vesting to the Fund.
HELD
The
High Court observed that the crux of controversy was operationalisation of
section 124(6) which statutorily transfers shares to the Fund in the
eventuality of dividends lying unclaimed for over seven years. Such shares are
merely transferred for safekeeping by the Fund and do not become the property
nor do they vest in the Central Government. Thus, the shareholder continues to
retain title but loses agency.
The
Court held that the sum and substance of the Rules was that the companies were
mandated to follow two crucial steps – one, inform the shareholders about the
manner of vesting of shares and in that regard provide three clear months
before the date of statutory transfer and two, ensure that the further
conditions and changes introduced by the first and second amendments, granting
relief to certain classes of shareholders who might have either in the interim
encashed dividends or approached them to reclaim the shares, were protected.
The
due date of transfer was an unclear concept under the old Rules – originally
notified on 05.09.2016, the Rules were modified and the date of transfer
shifted to 31.10.2017. However, several instances of non-compliance of three
months notice period were highlighted by the Applicant. The Court, however,
held that it could not go into specific violations and non-compliances in this
PIL.
The
Court held that section 124(6) did not result in a statutory vesting of any
property; it merely transferred (through transmission of) shares in companies
which have yielded dividends for seven years that have not been claimed to the
Fund which then holds them as a custodian. The Court directed the Central
Government to devise appropriate procedures to enable shareholders to reclaim
their property in the shares, by an appropriate procedure.
For
the duration of transfer of the shares, the companies could not
issue bonus shares or add
anything prohibited u/s.126.
The Rules, especially the first and second amendments, had the effect of giving
companies adequate time to notify and comply with the three month public notice
period to their shareholders about the event of transfer. The Court also
observed that the transfer of such shares is not a one-time measure but an
ongoing event given the obligation of each company to identity such shares
after the holding of every Annual General Meeting.
12.
Mobilox Innovations Pvt. Ltd. vs. Kirusa Software Pvt. Ltd. CIVIL APPEAL
NO. 9405 OF 2017
Section 8 of the Insolvency and Bankruptcy Code, 2016 – Definition
of ‘dispute’ is an inclusive definition – Word ‘bonafide’ cannot be
imported before the word ‘dispute’ – Adjudicating Authority is only required to
ascertain if the dispute in fact exists and is not a patently feeble legal
argument or an assertion of fact unsupported by evidence – Meaning of ‘dispute’
and ‘existence’ decoded.
FACTS
K Co
rendered certain services to M Co, the payment for which was to be made by M
Co. There was a non-disclosure agreement signed between K Co and M Co in
respect of these services; the terms of which were allegedly breached by K Co.
Since the services were rendered, K Co raised the invoices to M Co. M Co
refused to make these payments as there was a breach of terms contained in the
NDA K Co filed a petition in NCLT Mumbai initiating insolvency resolution
process against M Co. The Tribunal dismissed the application citing that there
existed a dispute and the case was hit by section 9(5)(ii)(d) of the Insolvency
and Bankruptcy Code, 2016 (the Act).
K Co
filed an appeal before the NCLAT Mumbai which held that NCLT should have
considered what constituted ‘dispute’ and in the facts of this case, defence
claiming dispute was not a bonafide one. Accordingly, it directed NCLT to
consider the application if it was a complete one.
M Co
filed a statutory appeal before the Supreme Court against the order of
Appellate Tribunal.
HELD
The
Supreme Court examined the history of the legislation as also the existing
framework of the legislation. The Supreme Court also went on to observe the
evolution in language of definition of the word ‘dispute’ as used in draft of
the Insolvency and Bankruptcy Code submitted by the Bankruptcy Law Reform
Committee in November 2015 (the “BLRC Draft”) vis-a-vis the definition
placed on record of the statute. The original definition of “dispute” has now
become an inclusive definition and the word “bona fide” before “suit or
arbitration proceedings” stands deleted.
The
Supreme Court examined the scheme of Act. Under section 8(1) of the Act, an
operational creditor, may, on the occurrence of a default (i.e., on non-payment
of a debt, any part whereof has become due and payable and has not been
repaid), deliver a demand notice of such unpaid operational debt or deliver the
copy of an invoice demanding payment of such amount to the corporate debtor in
certain specified form. Under section 8(2)(a), the corporate debtor, within a
period of 10 days of the aforesaid receipt must bring to the notice of the
operational creditor the existence of a dispute and/or the record of the
pendency of a suit or arbitration proceeding filed before the receipt of such
notice or invoice in relation to such dispute. It was observed that the
existence of the dispute and/or the suit or arbitration proceeding must be
pre-existing – i.e. it must exist before the receipt of the demand notice or
invoice, as the case may be.
The
Supreme Court, taking into account the importance of the term ‘existence’
occurring before the word ‘dispute’ under sections 8(2)(a) and 9(5)(ii)(d) of
the Act, laid down a checklist for the adjudicating authority to consider
admission or rejection of application u/s. 9 of the Act for initiating the
insolvency resolution process. It proceeded to state that the word ‘and’ used
in section 8(2) was to be read as ‘or’.
The
Court held that word ‘bonafide’ could not be read into the present framework.
All that the adjudicating authority is to consider is whether there is a
plausible contention which requires further investigation and that the
“dispute” is not a patently feeble legal argument or an assertion of fact
unsupported by evidence. Principles laid down in Madhusudan Gordhandas vs.
Madhu Woollen Industries Pvt. Ltd. [(1972) 2 SCR 201] are inapplicable to
the Act.
Examining
the contentions raised by the counsels, the Supreme Court came to a conclusion
that the dispute in relation to the NDA did in fact exist and therefore,
Appellate Tribunal was incorrect in characterising the defense as vague, got-up
and motivated to evade liability.
The order
passed by NCLAT was thus set aside. _
Allied Laws
16.
Foreign Decree – Execution in India. [Code of Civil Procedure, 1908,
Sections 13, 44].
In the present
case, the primary contention raised is that the parties are foreign nationals
and the direction by the Canada Court can only be executed at Canada and not in
India.
Hanifa
Kalangattu vs. Shaista Khan AIR 2017 KERALA 217
It was contended that, as per section 44A of
the Code of Civil Procedure, a decree of the foreign Court can be executed only
if the certified copy of decree of any of the Superior Courts of any
reciprocating territory has been filed before the District Court. However,
there was no material to indicate that Canada is a reciprocating territory which
would enable the said foreign judgment to be enforced and executed by this
Court.
It was held by the High Court of Kerela that
since no materials were produced either before the Family Court or before this
Court to indicate that Canada is a reciprocating territory as far as Government
of India is concerned, in the absence of any such material, there is a clear
bar of jurisdiction for entertaining the execution petition which has been
totally ignored by the Court below.
17. Hindu female dying intestate – Inheritance
after death of her second husband – Devolution of Property – To go back to
husband’s heirs when not self acquired [Hindu Succession Act, 1956; Sections
14, 15, 16]
Suldeep (Through Legal heir) vs. Hira Lal
and Ors. AIR 2017 CHHATTISGARH 164
The only issue which was to be adjudicated
here was whether the property in question would devolve upon the heirs of the
deceased second wife or upon the heirs of the deceased husband, who was the
owner of the property.
The facts of the case are that the plaintiff
instituted a suit for declaration of title and vacant possession of the suit
property (house and hotel) by submitting, inter alia, that his father
was the owner of it and after his death, it was inherited by him. It is pleaded
that defendant No.1, the second wife of the deceased father (since deceased,
now represented by her legal representatives) was his father’s servant as she
was working as such in his hotel business and used to take care of him whenever
he fell ill. It was pleaded in the plaint that defendant was put in possession over the suit property only for
its proper care where she was
residing with her son, the defendant No. 2, who has thrown his bag and baggage from the suit property.
Therefore, the plaintiff has been constrained in filing the suit in the instant
nature.
The Supreme
Court held that the Source of acquisition of such property was supposed to be
seen before the general rules of succession would apply. Since in the present
case, the defendant no.2(Son) was outside the wedlock of the defendant no.1 and
the deceased father, in such a situation, the interest of defendant
no.1(deceased wife), who expired intestate, shall be reverted to her deceased
husband’s heirs by virtue of clause (b) of sub-section (2) of section 15 of the
Act of 1956. The property in question is admittedly not the self-acquired
property of the said defendant no.1(deceased wife), and therefore, the general
rules of succession defined in sub-section (1) of section 15 of the Act of 1956
would not be attracted. Consequently, her interest would be devolved upon her
deceased husband’s heirs, i.e., the plaintiff and his sister and, not from
heirs of the deceased wife’s first husband, i.e., the present appellant
Son(Defendant No.1), as per the provisions prescribed u/s. 15(2)(b) of the Act
of 1956.
18. Land – Valuation of part of the building can
be made without the land attached to such building. [Land Acquisition Act,
1894; Sections 3, 23, 49]
State of Maharashtra and Ors. vs.
Reliance Industries Ltd. and Ors. AIR 2017 SUPREME COURT 4490
The question which arose for consideration
was whether, under the Land Acquisition Act, 1894 (the ‘Act’), acquisition of
Part of the building can be made without acquiring land underneath such
building.
The Supreme Court, while deciding the issue
of whether acquisition of any building or part thereof de hors the
underlying land or not, held that when land and building once married becomes
one unit, neither land nor building can thereafter be valued separately. The
expression “land” includes benefits to arise out of land and, things
attached to the earth or permanently fastened to anything attached to the
earth. But this would not come in the way of determining the valuation of a
particular floor, all the aspects of the owner’s interest and the bundle of
other rights can be taken into consideration including support provided by the
land and value of the land in the locality etc. Value of the part of the
building can also be accordingly assessed.
19. Tenancy – Tenancy not to automatically get
terminated even though the property is forfeited [Smugglers And Foreign
Exchange Manipulators (Forfeiture Of Property) Act, 1976; Section 3]
Domnic Alex Fernandes (D) through L.Rs.
and Ors. vs. Union of India (UOI) and Ors. AIR 2017 SUPREME COURT 4007
The question for consideration was whether
tenancy of a property, ownership of which is acquired by a person to whom the
Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976
(SAFEMA) applied, would be treated as “illegally acquired property”
within the meaning of section 3(1)(c) of SAFEMA and can be subjected to
forfeiture under the provisions thereof, due to which the said tenancy would be
terminated.
The Supreme Court held that rights of a bona
fide tenant, not having any relation with the person to whom the provisions
of SAFEMA apply, will not stand automatically terminated by forfeiture of
property and vesting thereof in the Central Government. Such forfeiture will
extinguish the rights of the person to whom the Act applies i.e. the owner of
the property or his/her relative or associate having nexus with him/her in
relation to the said property.
20. Will – Licence cannot be granted merely on
the basis of will, without being legal heir of manufacturer or partner in firm
– Legal Successor – Construed to be read in a restricted sense [Succession Act,
(39 of 1925) Section 63 ]
Dharam Chand vs. Dharam Paul and Ors. AIR
2017 JAMMU AND KASHMIR 138
The issue in the appeal was whether a
person’s name can be incorporated as a co-licensee since the person had
acquired the status of a legal successor-in-interest of the deceased licensee,
based on a will followed by a Probate and letter of administration, as granted
in his favour by a competent Court.
It was observed that a subsequent Circular,
dated 27.03.1971, provided that in case of an existing manufacturer or a
surviving partner of a licenced unit, besides his son(s), wife or wives may
also be admitted as additional partners. It was further decided that where a
manufacturer or a partner of the firm has no son(s) or wife, only his legal
successor(s) would be entitled to be admitted as partner(s) or additional
partner(s), as the case may be.
The Supreme Court held that the subsequent
Circular was to regulate the entry of other persons in the existing licensed
units so as to safeguard the legitimate interest of the successor-members of
the family of the existing manufacturers and to prevent mala fide
trading in such licences or their transfer to outsiders.
On the basis of the principle of ejusdem
generi, the word ‘legal successor’ had to be given a restricted meaning
bearing in mind the objective/basic policy behind issuance of the subsequent
communication to safeguard the legitimate interest of the successor-members of
the family of the existing manufacturer and to prevent mala fide trading in
such licences or their transfer to outsiders through backdoor methods, to mean
that person who is in some way related to the licensee and would succeed in the
absence of wife or son. _
From Published Accounts
Accounting
for Demerger in the books of demerged company and resulting company (both
companies following Ind AS)
Sterlite Technologies Ltd. (31-3-2017) (demerged company)
From
Notes to Accounts
54G Demerger
of Power Business
The
Board of directors of the Company on 18th May 2015 approved the
Scheme of Arrangement under sections 391 – 394 of the Companies Act, 1956 (“the
Scheme’) between Sterlite Technologies Limited (‘STL’ of Demerged company),
Sterlite Power Transmission Limited (‘SPTL’ or Resulting company’) and their respective
shareholders and creditors for the demerger of power products and solutions
business (including the investments of STL in power transmission infrastructure
subsidiaries i.e. Sterlite Power Grid Ventures Limited and East North
interconnection Company Limited into SPTL with the appointed date of 1st
April 2015. The Scheme was approved by the Hon’ble Bombay High Court vide
Order dated 22nd April 2016 and it became effective from 23rd
May 2016 (being the date of filing with Registrar of Companies).
As
a result of the demerger, the opening balance sheet as at 1st April 2015 and the financial statements of the Company as at and for the
year ended 31st March 2016, do not include the operations of the
demerged undertaking.
As per the Scheme, STL shall reduce the book
values of assets and liabilities pertaining to the demerged undertaking (i.e.
Power Business) as on the appointed date from its books of account.
Accordingly, the following assets and liabilities pertaining to Power Business
have been reduced from the books of account of STL as on April 1st
2015.
Particulars |
( Rs in crores) |
Assets |
|
Non-current |
|
Property, |
238.94 |
Capital |
2.98 |
Other |
0.07 |
Investment |
1,198.11 |
Financial |
|
Loans |
9.20 |
Other non-current financial assets |
1.47 |
Other |
1.10 |
|
1,451.87 |
Current |
|
Inventories |
236.65 |
Financial |
|
Trade receivables |
413.06 |
Cash and cash equivalents |
0.51 |
Other current financial assets |
76.50 |
Other |
23.01 |
|
749.73 |
Total |
2,201.60 |
Liabilities |
|
Non-current |
|
Financial |
|
Borrowings |
562.84 |
Employee |
2.28 |
Deferred |
5.75 |
|
570.86 |
Current |
|
Financial |
|
Borrowings |
228.25 |
Trade payables |
586.09 |
Other financial liabilities |
160.39 |
Net |
1.41 |
|
1,064.95 |
Total |
1,635.82 |
Excess |
565.78 |
Further, as per the Scheme,
the excess of book value of assets over the book value of liabilities of the
demerged undertaking shall be adjusted against the securities premium account
and balance, if any, shall be first adjusted against the general reserve account
and thereafter against profit and loss account of the demerged company. Also,
the investment of STL in SPTL of Rs. 0.05 crore has been cancelled and adjusted
against surplus in the statement of profit and loss as per the Scheme,
Accordingly, the following adjustments have been made in the opening reserves
as at 1st April 2015:
Particulars |
Rs. in |
Excess |
565.78 |
Adjusted |
|
Securities |
197.26 |
General |
99.97 |
Surplus |
268.55 |
Total |
565.78 |
The resulting company shall
reimburse the demerged company for all liabilities incurred by the demerged
company in so far as such liabilities relate to period prior to the appointed
date i.e. 1st April 2015 in respect of the demerged undertaking as
per the Scheme.
Sterlite Power Transmission Ltd. (31-3-2017) (resulting company)
From
Notes to Accounts
NOTE 45:
DEMERGER OF POWER BUSINESS FROM STERLITE TECHNOLOGIES LIMITED
A. The
Board of directors of the Sterlite Technologies Limited on 18th May,
2015 approved the Scheme of Arrangement under sections 391 – 394 of the
Companies Act, 1956 (‘the Scheme’) between Sterlite Technologies Limited (‘STL’
or ‘Demerged company’), Sterlite Power Transmission Limited (‘SPTL’ or
‘Resulting company’ or ‘Company’) and their respective shareholders &
creditors for the demerger of power products and solutions business (including
the investments of STL in power transmission infrastructure subsidiaries i.e.
Sterlite Power Grid Ventures Limited and East North Interconnection Company
Limited) into the Company with the appointed date of 1st April,
2015. The Scheme was approved by the Hon’ble Bombay High Court vide
Order dated 22nd April, 2016 and it became effective from 23rd
May, 2016 (being the date of filing with Registrar of Companies).
The
Company was incorporated on 5th May, 2015 with the object of
carrying out business of power products and solutions under the name Sterlite
Power Transmission Limited. As per the Scheme, power products and solutions
business (including the investments of STL in power transmission infrastructure
subsidiaries i.e. Sterlite Power Grid Ventures Limited and East North
Interconnection Company Limited) has been transferred into the Company with the
appointed date of 1st April, 2015.
B. The
Scheme inter alia provides for issue by SPTL, at the option of the
shareholder of STL, of either one equity share of face value of INR 2 or one
redeemable preference share of face value of INR 2 issued at a premium of INR
110.30 per share for every 5 fully paid up equity shares of INR 2 each of the
Demerged company and redeemable on expiry of eighteen months from the date of
allotment at a premium of INR 123.55 per share for eligible members other than
non-residents. In case of non-residents, one equity share of face value of INR
2 for every 5 fully paid up equity shares of INR 2 each of the Demerged company
and all such equity shares shall be purchased by the promoters of the Demerged
Company and/or their affiliates or any other person and/or entity identified by
them, in accordance with the scheme.
C. As
per the option exercised by the shareholders of STL 61.18 million equity shares
and 17.09 million redeemable preference shares were issued on 22nd
August, 2016.
D. Further,
as per the Scheme, the investment of STL in SPTL of INR 0.05 crore has been
cancelled w.e.f. 1st April, 2015.
E. As
per the Scheme, the following assets and liabilities pertaining to Power Business
were transferred from STL to SPTL w.e.f. 1st April, 2015:
Particulars |
INR in millions* |
ASSETS |
|
Non-current |
|
Fixed |
|
Tangible assets |
2,389.36 |
Intangible Assets |
0.73 |
Capital work-in-progress |
29.81 |
|
2,419.90 |
Non-current |
11,981.08 |
Long-term |
117.75 |
Other |
4.20 |
|
14,522.93 |
Current |
|
Inventories |
2,366.52 |
Trade |
4,130.64 |
Cash |
5.10 |
Short-term |
981.05 |
Other |
17.98 |
|
7,501.30 |
TOTAL |
22,024.23 |
LIABILITIES |
|
Non-current |
|
Long-term |
5,632.50 |
Deferred |
57.50 |
Long-term |
22.75 |
|
5,712.75 |
Current |
|
Short-term |
2,286.54 |
Trade |
5,860.98 |
Other |
2,492.04 |
Short-term |
14.12 |
|
10,653.68 |
TOTAL |
16,366.43 |
Excess |
5,657.79 |
Total |
8,880.92 |
Goodwill |
3,223.09 |
*These figures are as per Indian GAAP.
As
per the Scheme, difference between total consideration payable by the Company
to equity share holders of Sterlite Technologies Limited and excess of book
value of assets over the book value of liabilities transferred from Sterlite
Technologies Limited is recognised as Goodwill and amortised over a period of
five years as required under the Scheme.
F. As
per the Scheme, the resulting company shall reimburse the demerged company for
all liabilities incurred by the demerged company in so far as such liabilities
relate to period prior to the appointed date i.e. 1st April, 2015 in
respect of the demerged undertaking. The management does not expect any cash
outflow in respect of the above.
From
Auditors’ Report
Emphasis
of Matter
We
draw attention to Note 45 to the standalone Ind AS financial statements which
describes the accounting for merger which has been done as per the Scheme of
arrangement approved by the High Court. Our opinion is not qualified in respect
of this matter. _
Glimpses Of Supreme Court Rulings
1. Sedco Forex International Inc. vs. Commissioner of
Income Tax, Meerut and Ors. (2017) 399 ITR 1 (SC). A. Ys.: 1986-87, 1987-88, 2000-2001.
Non-resident
– Prospecting for, or extra production of mineral ore – All amounts pertaining
to the aforesaid activity which are received on account of provisions of
services and facilities in connection with the said facility are treated as
profits and gains of the business under section 44BB – The fixed amount which
was paid to the Assessees in respect of the contract which was indivisible was
towards mobilisation fee and the same was not for reimbursement of expenses as
the same was payable irrespective of the amount of expenditure incurred and
thus was covered by the provisions of section 44BB.
In the group of appeals
that came up for hearing before the Supreme Court, the appeals filed by Sedco
Forex International Inc., M/s. Transocean Offshore Inc., M/s. Sedco Forex
International Drilling Inc. respectively were taken up as lead matters and,
therefore, for the sake of brevity, the factual matrix from the said appeals,
was considered for answering the question involved.
During the years under
consideration, the Assessees were engaged in executing the contracts all over
the world including India in connection with exploration and production of
mineral oil. The Assessees were companies incorporated outside India and,
therefore, non-resident within the meaning of section 6 of the Act. The
Assessees entered into agreements with ONGC, Enron Oil and Gas India Ltd. The
aforesaid agreements provided for the scope of work along with separate
consideration for the work undertaken. Since the dispute was about mobilisation
charges, the Supreme Court noted clauses in respect thereof which read as
under:
“Operating
Rate-Receipts for undertaking drilling operations computed by per day rates
provided in the contract. The operating rates shall be payable from the time
the drilling unit is jacked-up and ready at the location to spud the first
well.
Mobilisation-charges
for the transport of the drilling unit from a location outside India to a
location in India as may be designated by ONGC”.
In addition to the above,
Assessees also received amounts from the operator towards reimbursement of
expenses like catering, boarding/lodging, fuel, customs duty, the supply of
material etc., with which the Supreme Court was not concerned.
The Assessees filed their
return of income declaring income from charter hire of the rig. The same was
offered to tax u/s. 44BB of the Act. In the case of Sedco Forex International
Inc., the Assessee did not include the amount received as mobilisation charges
to the gross revenue for the purpose of computation u/s. 44BB of the Act. In
the case of Transocean Offshore Inc., the Assessee included 1% of the
mobilisation fees. The mobilisation fees were offered to tax on a 1% deemed
profit basis on the ratio of the CBDT Instruction No. 1767 dated July 1, 1987.
The AO
included the amounts received for mobilisation/demobilisation to the gross
revenue to arrive at the “profits and gains” for the purpose of
computing TAX u/s. 44BB of the Act. The Commissioner of Income Tax (Appeals)
confirmed the action of the AO. The Income Tax Appellate Tribunal in the case
of Sedco Forex International Inc. dismissed the appeal of the Assessee and the
action of the AO was upheld insofar as the mobilisation charges were concerned.
In the case of Transocean Offshore Inc., the ITAT upheld the view taken by the
Assessee and directed the AO to assess the profits on mobilisation charges at
1% of the amount received. This was done following the Circular of CBDT
Instruction No. 1767 dated July 1, 1987 and decision of the third Member in the
case of Saipem S.P.A. vs. Deputy Commissioner of Income Tax 88 ITD 213 (Del).
The High Court held that the mobilization charges reimbursed inter alia
even for the services rendered outside India were taxable u/s. 44BB of the Act
as the same were not governed by the charging provisions of sections 5 and 9 of
the Act. Even on the issue of reimbursement in M/s. Sedco Forex International
Drilling Inc., the High Court followed its earlier judgments dated September
20, 2007 and May 22, 2009 to hold that reimbursement of expenses incurred by
the Assessee was to be included in the gross receipts, and taxable u/s. 44BB of
the Act.
According to the Supreme
Court the issue that needed examination
was as to whether mobilisation charges received by the Assessees could be
treated as ‘income’ u/s. 5 of the Act and would fall within the four corners of
section 9, namely, whether it could be attributed as having arisen or deemed to
arise in India.
The Supreme Court noted
that the argument of the learned Counsel appearing for the Assessees was that
the amount was received by way of reimbursement of expenses for the operation
carried outside India and the payment was also received outside India. It was
on this premise, entire edifice was built to argue that it was not an
“income” and, in any case, not taxable in India at the hands of the
Assessees which were foreign entities.
The Supreme Court noted
Clause 3.2 of the Agreement dated September 3, 1985 and Clause 4.2 of the
Agreement dated July 12, 1986. Clause 3.2 of the Agreement dated September 3,
1985 pertained to providing the Shallow Dash Water Jack Up Rig against which
payment was made to the Assessees. This Clause said that the Assessees shall be
paid ‘mobilisation fee’ for the mobilisation of drilling unit from its present
location in Portugal to the well location designated by ONGC, offshore Mumbai,
India. Fixed amount was agreed to be paid which was mentioned in the said
Clause. The aforesaid mobilisation fee was payable to the Assessees after the
jacking up of the drilling at the designated location and ready to spud the
well. After the aforesaid operation, Assessees were required to raise invoice
and ONGC was supposed to make the payment within 30 days of the receipt of this
invoice. Insofar as Clause 4.2 of Agreement dated July 12, 1986 was concerned,
it related to mobilisation of drilling unit. Here again, ‘mobilisation fee’ was
payable for the mobilisation of the drilling unit from the place of its origin
to the port of entry (Kandla Port, Mumbai). Hence, a fixed amount of
mobilisation fee was payable under the aforesaid contracts as
“compensation”. Contracts specifically described the aforesaid
amounts as ‘fee’. According to the Supreme Court it was in this hue, it had to
consider as to whether it would be treated as “income” u/s. 5 of the
Act and could be attributed as income earned in India as per section 9 of the
Act. For this purpose, section 44BB(2) had to be invoked.
The Supreme Court noted that
section 44BB starts with non-obstante clause, and the formula contained
therein for computation of income is to be applied irrespective of the
provisions of sections 28 to 41 and sections 43 and 43A of the Act. It was not
in dispute that Assessees were assessed under the said provision which was
applicable in the instant case. For assessment under this provision, a sum
equal to 10% of the aggregate of the amounts specified in sub-section (2) shall
be deemed to be the profits and gains of such business chargeable to tax under
the head ‘profits and gains of the business or profession’. Sub-section (2)
mentions two kinds of amounts which shall be deemed as profits and gains of the
business chargeable to tax in India. Sub-clause (a) thereof relates to amount
paid or payable to the Assessee or any person on his behalf on account of
provision of services and facilities in connection with, or supply of plant and
machinery on hire used, or to be used in the prospecting for, or extraction or
production of, mineral oils in India. Thus, according to the Supreme Court all
amounts pertaining to the aforesaid activity which are received on account of
provisions of services and facilities in connection with the said facility are
treated as profits and gains of the business.
This Clause clarifies that
the amount so paid shall be taxable whether these are received in India or
outside India. Clause (b) deals with amount received or deemed to be received
in India in connection with such services and facilities as stipulated therein.
Thus, whereas Clause (a) mentions the amount which is paid or payable, Clause
(b) deals with the amounts which are received or deemed to be received in
India. The Supreme Court therefore was of the opinion that in respect of amount
paid or payable under Clause (a) of sub-section (2), it was immaterial whether
these were paid in India or outside India. On the other hand, amount received
or deemed to be received have to be in India.
The Supreme Court held that
from the bare reading of the clauses, amount paid under the aforesaid contracts
as mobilisation fee on account of provision of services and facilities in
connection with the extraction etc. of mineral oil in India and against the
supply of plant and machinery on hire used for such extraction, Clause (a)
stood attracted. Thus, this provision contained in Section 44BB had to be read
in conjunction with sections 5 and 9 of the Act and sections 5 and 9 of the Act
could not be read in isolation.
The aforesaid amount paid
to the Assessees as mobilisation fee had to be treated as profits and gains of
business and, therefore, would be
“income” as per section 5. This provision also treats this income as
earned in India, fictionally, thereby satisfying the test of section 9 of the
Act as well.
The Supreme Court
reiterated that the amount which was paid to the Assessees was towards
mobilisation fee. It did not mention that the same was for reimbursement of
expenses. In fact, it was a fixed amount paid which could be less or more than
the expenses incurred. Incurring of expenses, therefore, would be immaterial.
According to the Supreme Court, it was also to be borne in mind that the
contract in question was indivisible. Having regard to these facts in the
present case as per which the case of the Assessees got covered under the
aforesaid provisions, the Supreme Court did not find any merit in any of the
contentions raised by the Assessees.
In the batch of appeals,
before the Supreme Court there was a solitary appeal which was preferred by the
Director of Income Tax, New Delhi (Revenue) against the judgment of the High
Court of Uttarakhand. The computation of income of the Assessee was done u/s.
44BB of the Act.
However, the amount which
was sought to be taxed was reimbursement of cost of tools lost in hole by ONGC.
The Supreme Court held that it was thus, clear that this was not the amount
which was covered by sub-section (2) of section 44BB of the Act as ONGC had
lost certain tools belonging to the Assessee, and had compensated for the said
loss by paying the amount in question. On these facts, conclusion of the High
Court was correct. Even otherwise, the tax effect is Rs. 15,12,344/-.
Therefore, that Civil Appeal filed by the Revenue was dismissed.
2. K. Lakshmanya and Company vs. Commissioner of
Income Tax and Ors. (2017) 399 ITR 657 (SC) A.Y.s:
1993-94, 1994-95.
Refund –
Interest on refund – Section 244A is even wider than section 244 and is not
restricted to refund being issued to the Assessee in pursuance to an order
referred to in section 240. Under this section, it is enough that the refund
becomes due under the Income-tax Act, in which case the Assessee shall, subject
to the provisions of this section, be entitled to receive simple interest.
The Assessee, being a
partnership firm, filed a return for assessment years 1993-94 and 1994-95 and
once the order of assessment was completed, interest under sections 234(A) to
(C) was levied.
Aggrieved by this levy of
interest, the Assessee filed an application before the Settlement Commission,
requesting the Commission to waive the interest on the ground that it caused
hardship to it. The Settlement Commission, by its order dated 22.03.2000,
referred to a circular of the CBDT which gave it the power to waive such interest;
and by the aforesaid order, interest was partially waived for the assessment
years in question. On an application made by the Assessee, the Assessing
Officer, by his order dated 25.04.2000 refused to grant interest on the refund
that was payable, and was not paid, within three months from the specified
date. This was done on two grounds, namely, that the provisions of section
244A do not provide for payment of
interest on refund due on account of waiver of interest that is charged under
sections 234(A)-(C) of the Act and second, that the power assumed by the
Settlement Commission for waiver of interest, by following the CBDT circular
referred to, does not enable the Commission to provide for payment of interest
u/s. 244A.
An appeal that was filed
before the C.I.T. (Appeals) was allowed. This was done by referring to a
judgment of the Madras High Court in Commissioner of Income-Tax vs. Needle
Industries Pvt. Ltd. 233 ITR 370 and with reference to the CBDT circular
which enabled the Settlement Commission to waive interest. An appeal by the
Revenue to the Income-Tax Appellate Tribunal was dismissed. However, in appeal
to the High Court, by the judgment dated 09.12.2009, the High Court of
Karnataka held that, since waiver of interest was within the discretion of the
Settlement Commission, no right flowed to the Assessee to claim refund as a
matter of right under law. In the aforesaid circumstances, the judgements of
the Tribunal and C.I.T. (Appeals) were set aside and the Assessing Officer’s
order was restored.
The question that arose
before the Supreme Court therefore was whether the High Court of Karnataka at
Bangalore was correct in holding that the Assessee in the present case was not
entitled to interest u/s. 244A of the Income-Tax, 1961 Act, when refund arose
to it on account of interest that was partially waived by an order of the
Settlement Commission.
According to the Supreme
Court, a reading of the section 240 showed that refund may become due to the
Assessee, either as a result of an order passed in appeal or other proceedings
under this Act. It was clear that refund that arises as a result of an order
passed u/s. 245(D)(4) was an order passed in “other proceedings under this
Act”. Thus, it was clear that the Assessee in the present case was covered
by section 240 of the Act.
The Supreme Court noted
that when it comes to interest on refund, section 244, which applied to
assessment years up to and including assessment year 1989-90, makes it clear
that it would apply where a refund is due to the Assessee in pursuance of an
order referred to in section 240. It is only if the Assessing Officer does not
grant the refund within three months from the end of the month in which such
order is passed, that the Central Government shall pay to the assesses simple
interest on the amount of refund due.
According to the Supreme
Court, section 244A is even wider than section 244 and is not restricted to
refund being issued to the Assessee in pursuance to an order referred to in
section 240. Under this section, it is enough that the refund becomes due under
the Income-tax Act, in which case the Assessee shall, subject to the provisions
of this section, be entitled to receive simple interest.
The Supreme Court was of
the view that the present case would fall outside sub-clauses (a) and (aa) of
this provision and, therefore, fall within the residuary clause, namely
sub-clause (b) of section 244A.
The Supreme Court held that
the Madras High Court in Needle Industries Pvt. Ltd. (supra) concerned
itself with the position prior to the advent of section 244A. It found that the
expression “refund of any amount” used by section 240 and 244 would
include not only tax and penalty but interest also. It was, therefore, held
that the clear intention of Parliament is that the right to interest will
compensate the Assessee for the excess payment during the intervening period
when the Assessee did not have the benefit of use of such money paid in
whatsoever character. The Supreme Court further noted that in Sandvik Asia
Ltd. vs. CIT (2006) 280ITR 643 (SC), it had expressly approved the decision
of the Madras High Court.
The Supreme Court also
referred to its decision in CIT vs. HEG Ltd. (2010) 324 (331) (SC) which
considered the meaning of the expression “where refund of any amount become due
to the assessee” in section 244A(1).
The Supreme Court referred
to its decision in UOI vs. Tata Chemicals Ltd. (2014) 363 ITR 658 (SC)
and observed that it clearly showed that a corresponding right exists, to
refund to individuals any sum paid by them as taxes which are found to have
been wrongfully existed or believed to be, for any reason, inequitable.
The statutory obligation to
refund, being non discretionary, carries with it the right to interest, also
making it clear that the right to interest is parasitical. The right to claim
refund is automatic once the statutory provisions have been complied with.
The Supreme Court held that
of the view that the expression “due” only means that a refund
becomes due if there is an order under the Act which either reduces or waives
tax or interest. It is of no matter that the interest that is waived is
discretionary in nature, for the moment that discretion is exercised, a concomitant
right springs into being in favour of the Assessee. According to the Supreme
Court the C.I.T. (Appeals) and the ITAT were therefore correct in their view
and that consequently, the High Court was incorrect in its view that since a
discretionary power has been exercised, no concomitant right was found for
refund of interest to the Assessee.
The appeals were
accordingly allowed by the Supreme Court.
3. Commissioner of Income Tax vs. Modipon Ltd.
(2018) 400 ITR 1 (SC)A.Y.:1993-94,
1996-97,1998-99
Business
expenditure – The advance deposit of central excise duty constitutes actual
payment of duty within the meaning of Section 43B and, therefore, the Assessee
is entitled to the benefit of deduction of the said amount.
The question that was
involved in the appeals before the Supreme Court was formulated as under:
“Whether the Assessee is
entitled to claim deduction under 43B of the Income Tax Act, 1961 in respect of
the excise duty paid in advance in the Personal Ledger Account (“PLA”
for short)?”
The Revenue urged that
though levy of excise is on manufacture of excisable goods, actual payment of
duty is at the stage of removal. The advance duty paid in the PLA is
adjusted/debited from time to time, against clearances/removal made by the
Assessee. Unless such clearances/removal are made and excise duty is debited
from the advance deposit there is no actual payment of duty so as to entitle an
Assessee to the benefit of deduction u/s. 43B of the Income-tax Act which
contemplates deduction only against actual payment as distinguished from
accrual of liability. It was urged on behalf of the Revenue that the amount in
deposit was akin to a loan and under the provisions of Central Excise Rules,
part or whole of the said amount could be refunded to the Assessee. It was
further submitted that Under Rule 21 of the Central Excise Rules, 1944, at any
time before removal, the Commissioner or the other authorities prescribed
therein may remit duty in respect of manufactured goods lost or damaged or
otherwise unfit for consumption or marketing. The amount of advance deposit,
therefore, did not represent actual payment of duty so as to entitle an
Assessee to the benefit of deduction under section 43B. Accordingly the orders
of the High Courts challenged in the appeals were liable to interference.
In reply, the learned
senior Counsel appearing for the Assessee has submitted that u/s. 3 of the
Central Excise Act, the event for levy of excise duty is the manufacture of
goods though the duty is to be paid at the stage of removal of the goods.
Pointing out the provisions of Rule 173G of the Central Excise Rules, 1944 it
was submitted that the advance deposit of central excise duty in a current
account is a mandatory requirement from which adjustments are made, from time to
time, against clearances effected. Though, Sub-rule (1)(A) contemplates refund
from the current account, such refund could be granted only on reasons being
recorded by the concerned authority i.e., the Commissioner on the application
filed by the Assessee. Refund is not a matter of right. The amount deposited in
the PLA is irretrievably lost to the Assessee. Payment of central excise duty
takes place at the time of deposit in the PLA, though the deposit is on the
basis of an approximation and the precise amount of duty qua the goods removed
is ascertained at the stage of removal/clearances. The said facts, according to
the learned Counsel, would not make the deposit anything less than actual
payment of duty.
The Supreme Court noted
that deposit of Central Excise Duty in the PLA is a statutory requirement. The
Central Excise Rules, 1944, specify a distinct procedure for payment of excise
duty leviable on manufactured goods. It is a procedure designed to bring in
orderly conduct in the matter of levy and collection of excise duty when both
manufacture and clearances are a continuous process. Debits against the advance
deposit in the PLA have to be made of amounts of excise duty payable on
excisable goods cleared during the previous fortnight. The deposit once made is
adjusted against the duty payable on removal and the balance is kept in the
account for future clearances/removal. No withdrawal from the account is
permissible except on an application to be filed before the Commissioner who is
required to record reasons for permitting an Assessee to withdraw any amount
from the PLA. Sub-rules (3), (4), (5) and (6) of Rule 173G indicates a strict
and vigorous scrutiny to be exercised by the central excise authorities with
regard to manufacture and removal of excisable goods by an Assessee. According
to the Supreme Court, the self removal scheme and payment of duty under the Act
and the Rules clearly showed that upon deposit in the PLA the amount of such
deposit stood credited to the Revenue with the Assessee having no domain over
the amount(s) deposited.
The Supreme Court was of
the view that the analogy of decisions in C.I.T. vs. Pandavapura Sahakara
Sakkare Karkhane Ltd. 198 ITR 690 (Kar.) and C.I.T. vs. Nizam Sugar
Factory Ltd. 253 ITR 68 (AP) would apply to the case in hand, in which, it
was held that where Assessee had no control over the amounts received, the same
could not be taxed in its hands.
The Supreme Court observed
that the Delhi High Court in the appeals arising from the orders passed by it
had also taken the view that the purpose of introduction of section 43B was to
plug a loophole in the statute which permitted deductions on an accrual basis
without the requisite obligation to deposit the tax with the State.
Resultantly, on the basis of mere book entries an Assessee was entitled to
claim deduction without actually paying the tax to the State. Having regard to
the object behind the enactment of section 43B and the preceding discussions,
the Supreme Court held that the legislative intent would be achieved by giving
benefit of deduction to an Assessee upon advance deposit of central excise duty
notwithstanding the fact that adjustments from such deposit are made on
subsequent clearances/removal effected from time to time.
The Supreme Court concluded
that the High Courts were justified in taking the view that the advance deposit
of central excise duty constitutes actual payment of duty within the meaning of
section 43B and, therefore, the Assessee is entitled to the benefit of deduction
of the said amount.
The Supreme Court dismissed
the appeals and affirmed the orders of the High Courts of Delhi and Calcutta
impugned in these appeals.
4. ITO
vs. Venkatesh Premises Co-op. Society Ltd. (Civil Appeal No. 2708 of 2018 dated
12.3.2018 arising from SLP(C) No. 30194/2010)
Principle
of mutuality – Certain receipts by cooperative societies, from its members i.e.
non-occupancy charges, transfer charges, common amenity fund charges and
certain other charges, are exempt from income tax based on the doctrine of
mutuality.
A common question of law
that arose for consideration in a batch of appeals before the Supreme Court was
as to whether certain receipts by cooperative societies, from its members i.e.
non-occupancy charges, transfer charges, common amenity fund charges and
certain other charges, are exempt from income tax based on the doctrine of
mutuality.
The challenge was based on
the premise that such receipts were in the nature of business income,
generating profits and surplus, having an element of commerciality and
therefore exigible to tax.
The assessee in one of the
appeals (Civil Appeal No.1180 of 2015 – Sea Face Park Co.Op. Housing Society
Ltd. vs. Income Tax Officer) assailed the finding that such receipts, to
the extent they were beyond the limits specified in the Government notification
dated 09.08.2001 issued u/s. 79A of the Maharashtra Cooperative Societies Act,
1960 (hereinafter referred to as ‘the Act’) was exigible to tax falling beyond
the mutuality doctrine.
The Supreme Court noted the
primary facts, for better appreciation from SLP (C) No.30194 of 2010 (ITO
vs. Venkatesh Premises Co-op. Society Ltd.). The assessing officer held
that receipt of non-occupancy charges by the society from its members, to the
extent that it was beyond 10% of the service charges/maintenance charges
permissible under the notification dated 09.08.2001, stands excluded from the
principle of mutuality and was taxable. The order was upheld by the
Commissioner of Income Tax (Appeals). The Income Tax Appellate Tribunal held
that the notification dated 09.08.2001 was applicable to cooperative housing
societies only and did not apply to a premises society. It further held that
the transfer fee paid by the transferee member was exigible to tax as the transferee
did not have the status of a member at the time of such payment and, therefore,
the principles of mutuality did not apply. The High Court set aside the finding
that payment by the transferee member was taxable while upholding taxability of
the receipt beyond that specified in the government notification.
The Supreme Court held that
the doctrine of mutuality, based on common law principles, is premised on the
theory that a person cannot make a profit from himself. An amount received from
oneself, therefore, cannot be regarded as income and taxable. Section 2(24) of
the Income-tax Act defines taxable income. The income of a cooperative society
from business is taxable u/s. 2(24)(vii) and will stand excluded from the
principle of mutuality. The essence of the principle of mutuality lies in the
commonality of the contributors and the participants who are also the
beneficiaries. The contributors to the common fund must be entitled to
participate in the surplus and the participators in the surplus are contributors
to the common fund. The law envisages a complete identity between the
contributors and the participants in this sense. The principle postulates that
what is returned is contributed by a member. Any surplus in the common fund
shall therefore not constitute income but will only be an increase in the
common fund meant to meet sudden eventualities. A common feature of mutual
organisations in general can be stated to be that the participants usually do
not have property rights to their share in the common fund, nor can they sell
their share. Cessation from membership would result in the loss of right to
participate without receiving a financial benefit from the cessation of the
membership.
The Supreme Court noted
that in the appeals before it, transfer charges were payable by the outgoing
member. The Supreme Court held that if for convenience, part of it was paid by
the transferee, it would not partake the nature of profit or commerciality as
the amount is appropriated only after the transferee is inducted as a member.
In the event of non-admission, the amount is returned. The moment the
transferee is inducted as a member the principles of mutuality apply. Likewise,
non-occupancy charges are levied by the society and is payable by a member who
does not himself occupy the premises but lets it out to a third person. The
charges are again utilised only for the common benefit of facilities and
amenities to the members. Contribution to the common amenity fund taken from a
member disposing property is similarly utilised for meeting sudden and regular
heavy repairs to ensure continuous and proper hazard free maintenance of the
properties of the society which ultimately enures to the enjoyment, benefit and
safety of the members. These charges are levied on the basis of resolutions
passed by the society and in consonance with its byelaws. The receipts in the
present cases are indisputably been used for mutual benefit towards maintenance
of the premises, repairs, infrastructure and provision of common amenities.
The Supreme Court further
held that any difference in the contributions payable by old members and fresh
inductees cannot fall foul of the law as sufficient classification exists.
Membership forming a class, the identity of the individual member not being
relevant, induction into membership automatically attracts the doctrine of
mutuality. If a Society has surplus FSI available, it is entitled to utilise
the same by making fresh construction in accordance with law. Naturally such
additional construction would entail extra charges towards maintenance,
infrastructure, common facilities and amenities. If the society first inducts
new members who are required to contribute to the common fund for availing
common facilities, and then grants only occupancy rights to them by draw of
lots, the ownership remaining with the society, the receipts cannot be
bifurcated into two segments of receipt and costs, so as to hold the former to
be outside the purview of mutuality classifying it as income of the society
with commerciality.
The Supreme Court with
reference to decision in The New India Cooperative Housing Society vs. State
of Maharashtra 2013 (2) MLJ 666 relied upon by the Revenue to contend that
any receipt by the society beyond that permissible in law under the
notification was not only illegal but also amounted to rendering of services
for profit attracting an element of commerciality and thus was taxable held
that the challenge by the aggrieved was to the transfer fee levied by the
society in excess of that specified in the notification, which was a completely
different cause of action having no relevance to the present controversy.
According to the Supreme
Court, it was not the case of the Revenue that such receipts has not been
utilized for the common benefit of those who have contributed to the funds.
Also, there was no reason
to take a view different from that taken by the High Court, that the notification
dated 09.08.2001 is applicable only to cooperative housing societies and has no
application to a premises society which consists of non-residential premises.
In the result, all appeals
preferred by the Revenue were dismissed by the Supreme Court and Civil Appeal
No.1180 of 2015 preferred by the assessee society was allowed.
From the President
Dear Members,
Surfing the net one evening, I found an interesting quote:
Contentment is the highest gain, Good
Company the highest course, Enquiry the highest wisdom, and Peace the highest
enjoyment
How true, how true… but I realised
it’s even more relevant if you are a highly respected and eagerly awaited
Journal and now on its way to celebrate the fiftieth anniversary of the
prestigious BCA Journal starting this April.
It has been very exciting and eventful
five decades that have gone by; and BCAJ has captured the essence of a growing
India as it oscillated between turbulence and smooth sailing. I see BCAJ as a
tireless marathon runner striding effortlessly as it straddles time, with well
researched and incisive articles for tax and accounting professionals, both in
practice and industry.
BCAJ has also been in a way like a
compass, pointing us all in the right direction with its vast spectrum of
analytical articles and updates, on diverse subjects such as Direct Tax,
Indirect Tax, International Tax, Accounting & Auditing and Information
Technology. Keeping pace with the requirements of the ‘digi-gen’, E-journal
access has been made available with the added advantage of a repository
spanning 17 years.
I would like to extend hearty
congratulations to the entire team behind the Journal – past and present on
behalf of all its readers. It is their long hours of painstaking efforts that
have made the BCAJ a solid foundation and a beacon of inspiration to all! I
wish the team all the very best in the years ahead in taking the journal to the
next level.
Last week around thirty thousand
farmers marched to Mumbai to press for their various demands to the Government.
What was remarkable is that these farmers protested with dignity and discipline.
On the last lap of their journey they walked almost 15 hours to avoid
disrupting the students from taking their final exams. What’s commendable was
the pain the farmers took to ensure no pain to the citizens of Mumbai. The
farmers dispersed as quietly as they came, but not before getting written
assurances.
When one looks at the statistics, the
enormity of the problem dawns with tremendous clarity. We have 90 million
families or around 54% of Indians engaged in agriculture, who after toiling
relentlessly day after day, generate a mere 14% of the nation’s GDP. Worse
still, the farmers seem to be on a lose-lose treadmill. If their crops fail,
they have little to sell and no profit. And in case of a bumper crop, the price
gets depressed, curtailing any serious profit. I believe some serious thinking
is required to go far beyond merely providing remedial aid. Innovative
solutions need to be chalked out in tandem with modern technology to transform
their lives and raise their living standards.
Grappling with the challenge of
employment generation, the government has focused on giving an impetus to the
services sector. Accounting for over 55% of the nation’s GDP, the service
sector has the possibility of stimulating domestic growth as well as winning
lucrative export opportunities. In this direction, twelve Champion Sectors in
services have been identified and a fund of Rs. 5,000 crore has been proposed
to accelerate support initiatives.
Accounting & Finance Services is
one of the 12 identified Champion Sectors where the Government is promoting
development to realize their true potential, increased productivity and
competitiveness which will further boost exports of diverse services from
India. However, experts feel that “there are miles to go…” before this sector
can harness the global opportunity. Being a regulated profession with a
licensing regime globally; there is a need to enter into many more MoUs with
foreign accounting institutes and mutually recognise each other’s
qualifications. The Indian accounting education system needs to be revamped to
match the challenges of globalisation. And lastly the curriculum is outdated
and needs to be in sync with market realities. Technology and new economy will
impact our profession immensely. Probably curriculum needs to capture that
impact in coming times. In fact curricula need to be futuristically and not
reactively structured if the profession has to meet these challenges. These
impediments need to be sorted if Indian accounting firms are to transit from
back end transactional processing work to big ticket contracts.
Related to this, the Hon. Supreme
Court recently in a case ordered the Government to set up a panel to suggest
changes in laws to regulate multi-national accounting firms. The Bench ruled
that the panel to also look into the framework needed to enforce Sections 25
and 29 of the CA Act and the statutory Code of Conduct for Chartered
Accountants needs to be revisited appropriately. The Panel will also look into
the need of an exclusive oversight body for the auditors’ profession because of
conflict of interest of auditors with consultants.
The PNB scam has opened quite a can of
worms and has been in the news right from the day it broke. The general public
is outraged at the audacity and arrogance of the key accused. They are furious
with the bank officials who colluded or were scapegoats in the racket. They are
upset with RBI and market regulators for not unearthing the fraud…and the
politicians who allegedly allowed the swindlers to scoot with the loot. The
auditors too are being investigated and castigated for not raising a red flag.
Action and measures have been initiated by the government and RBI to prevent a
recurrence. Even ICAI has demonstrated its commitment to discipline errant CAs.
Representations to the Government on
key issues have always been taken up by the Society and it is regular in
interacting with the regulators. Recently BCAS along with the CA Associations
of Lucknow, Karnataka and Ahmedabad made an appeal to make statutory branch
audits of PSB banks more stringent. In a joint representation to RBI it has
listed several important issues/recommendations that need to be urgently
addressed by RBI and others for an effective audit coming up for the year ended
March 2018.
The World Bank in its bi-annual India
Development Update has been mildly critical of GST, calling it one of the most
complex with the second highest tax rate in the world. Comparing 115 countries,
the report says as many as 49 have a single slab; while 28 use two slabs and
five (including India) use four non-zero slabs. The Update also points out to
the positive impulse expected from India’s novel GST system which, is likely to
improve the domestic flow of goods and services, contribute to the
formalization of the economy and sustainably enhance growth.
Despite the recent momentum, attaining
a growth rate of 8 percent and higher on a sustained basis will require
addressing several structural challenges. India needs to durably recover its
two lagging engines of growth – private investments and exports – while
maintaining its hard-won macroeconomic stability. Crucial steps in this process
include cleaning up banks’ balance sheets, realizing the expected growth and
fiscal dividend from the GST, and continuing the integration into the global
economy.
As we start the new fiscal year each
member has jotted new ideas, new goals and new budgets and will be translating
them into action points. What is important to note is that the digital
revolution is cascading across every sphere of practice causing widespread
disruption besides redefining clients’ expectations. For the professionals of
the future, the ability to adapt their skills to the changing needs will be
critical. The time it will take for skills to become irrelevant will shrink.
There will be work for people with growth mindsets, but those with fixed
mindsets will be replaced with machines. The skills of yesterday will be
obsolete tomorrow. The future workforce need to align its skillsets to keep
pace with time.
As sunshine energy and a green
environment become increasingly the priority of our lives and nation, we at
BCAS have decided to discontinue our hard copy version of the monthly
Newsletter. Its content is being majorly covered in the BCAJ and regular
updates regarding upcoming programmes are accessible on our website and through
email. The VP Communique and a snapshot of programs of the Society will be sent
as a e-copy each month. We do hope our members will understand our
responsibility to practice green initiatives, instead of merely talking about
them.
With the start of the new fiscal year,
I look forward to getting more feedback from all of you about the opportunities
and challenges we should tackle in the months ahead.
Feel free to write to me on
president@bcasonline.org
With kind regards
CA.
Narayan Pasari
President
Book Review
Title : ?Emerging Issues in International Taxation‘
Author : H. Padamchand Khincha
International tax law is recognised as a
critical pillar in supporting the growth of the global economy. In an
increasingly connected world driven by the forces of globalisation and
technology, governments are finding the old structure of international tax laws
to be inadequate to cope with increasing legal arbitrage opportunities and
aggressive tax planning. This has resulted in a coordinated and comprehensive
action plan thereby triggering a flurry of developments in the field of
international tax. This book endeavours to deliberate upon critical
international tax aspects under the following six topics.
1. Cross-Border Outsourcing
In respect to cross-border
outsourcing, the discussion is restricted to generic issues arising in the
service sector and seeks to provide a tertiary view of both inbound and
outbound outsourcing.
2. Structuring of EPC Contracts
EPC contracts are in trend
and newness in its operation has been the integration of multiple fields making
it an (in) divisible complex, matrix. These aspects have been articulated in the
backdrop of tax, commercial and statutory aspects. The nuances in tax treaty
applications and tax withholding have been discussed along with some case
studies.
3. Inbound and Outbound
Investment Structuring – Impact of specific anti
avoidance rules including indirect transfer and Place of Effective Management
(POEM)
The book focuses on two amendments, mainly
indirect transfer as introduced in Finance Act, 2012 and POEM amendment brought
out by Finance Act, 2015 to determine the residential status.
This chapter is more of a ‘return to basics’
and deals with certain important and relevant terms such as through, transfer,
value, directly and indirectly.
The second part of this chapter dives into
the realm of POEM theorem with a lucid explanation of its intent. The author
discusses that a meeting that typically involves discussion, debate, approval,
supervision and execution can have a significant impact in reckoning the
residence of the company itself. The segment closes by demonstrating the
transition of the residence rule from ‘control and management’ to ‘POEM’ and
the interplay (nay friction) with the tax treaties.
A flashback to the ‘Direct Tax Code’ that
sought to bring in this concept helps to understand the Indian perspective for
the purpose of residence determination.
4. Equalisation levy
This chapter provides a
detailed commentary on various provisions governing the equalisation levy,
certain nitty-gritty and finer aspects that remain unanswered. The author
highlights that such legislation has raised more questions than answers. It
ends with a tertiary view of digital economy taxation across the globe and
covers flavours of 21 countries.
5. Inbound Investment, General
Anti Avoidance Rule (GAAR) & Treaty Anti-Abuse Provisions
This chapter has dealt
with the intent behind the legislation of GAAR that gives statutory recognition
to the philosophy of ‘Substance over Form’. It is divided into (i)
applicability, (ii) consequences, (iii) power of the statute; and (iv)
compliance and other aspects.
6. Permanent Establishment
(PE) & Attribution of Profits – Issues & Recent Developments
In this chapter, the
author has focussed on the Hon’ble Supreme Court’s decision in the case of
Formula One. The impermanence in a Permanent Establishment is the highlight of
this ruling. In the second part, the author discusses the interplay of
bilateral tax treaties, the multilateral instruments and a brief perspective on
PE in digital commerce.
By drawing on contributions from a range of
regimes, the book aims to provide a more balanced international approach. The
book gives elaborate illustrations by providing a diagrammatic flow of
transaction and tax implications thereof in India and outside with updated
judicial precedents.
Further, the issues arising in each of the
above chapters have been elucidated comprehensibly which in turn can help
professionals with practical analysis of real-world situations. However, the
content of the book could have been improvised by providing suitable options
for implementation on the issues raised. Further, the book may not sustain
readers’ interest as tax treaties are given as Annexures between chapters.
In a nutshell, the range of topics in the
book reflect extensively for international tax academics and practitioners. The
book covers more traditional international treaty topics, including chapters on
a static interpretation of treaties. One of the most exciting contributions is
the use of historical materials in interpreting tax treaties. _
Miscellanea
1. Economy
19. India’s richest one percent corner 73
percent of wealth generation: Survey
The richest 1 percent in India cornered 73
percent of the wealth generated in the country last year, a new survey showed
today, presenting a worrying picture of rising income inequality.
Besides,
67 crore Indians comprising the population’s poorest half saw their wealth rise
by just 1 percent, as per the survey released by the international rights group
Oxfam hours before the start of the annual congregation of the rich and
powerful from across the world in this resort town. The situation appears even
grimmer globally, where 82 percent of the wealth generated last year worldwide
went to the 1 percent, while 3.7 billion people that account for the poorest
half of population saw no increase in their wealth.
The annual Oxfam survey is keenly watched
and is discussed in detail at the World Economic Forum Annual Meeting where
rising income and gender inequality is among the key talking points for the
world leaders. Last year’s survey had showed that India’s richest 1 percent
held a huge 58 percent of the country’s total wealth — higher than the global
figure of about 50 percent. This year’s survey also showed that the wealth of
India’s richest 1 percent increased by over Rs 20.9 lakh crore during 2017 —
an amount equivalent to the total budget of the central government in 2017-18,
Oxfam India said.
The report titled ‘Reward Work, Not Wealth’,
Oxfam said, reveals how the global economy enables wealthy elite to accumulate
vast wealth even as hundreds of millions of people struggle to survive on
poverty pay. “2017 saw an unprecedented increase in the number of
billionaires, at a rate of one every two days. Billionaire wealth has risen by
an average of 13 percent a year since 2010 — six times faster than the wages
of ordinary workers, which have risen by a yearly average of just 2
percent,” it said.
In India,
it will take 941 years for a minimum wage worker in rural India to earn what
the top paid executive at a leading Indian garment firm earns in a year, the
study found. In the US, it takes slightly over one working day for a CEO to
earn what an ordinary worker makes in a year, it added.
Citing results of the global survey of
120,000 people surveyed in 10 countries, Oxfam said it demonstrates a
groundswell of support for action on inequality and nearly two-thirds of all
respondents think the gap between the rich and the poor needs to be urgently
addressed. With Prime Minister Narendra Modi attending the WEF meeting in
Davos, Oxfam India urged the Indian government to ensure that the country’s
economy works for everyone and not just the fortunate few.
It also said India’s top 10 percent of
population holds 73 per cent of the wealth and 37 per cent of India’s
billionaires have inherited family wealth. They control 51 per cent of the
total wealth of billionaires in the country.
Oxfam India CEO Nisha Agrawal said it is
alarming that the benefits of economic growth in India continue to concentrate
in fewer hands.
“The billionaire boom is not a sign of
a thriving economy but a symptom of a failing economic system. Those working
hard, growing food for the country, building infrastructure, working in
factories are struggling to fund their child’s education, buy medicines for
family members and manage two meals a day. The growing divide undermines
democracy and promotes corruption and cronyism,” she said.
The survey also showed that women workers
often find themselves at the bottom of the heap and nine out of 10 billionaires
are men. In India, there are only four women billionaires and three of them
inherited family wealth. “It would take around 17.5 days for the best-paid
executive at a top Indian garment company to earn what a minimum wage worker in
rural India will earn in their lifetime (presuming 50 years at work),”
Oxfam said.
(Source: newindianexpress.com dated
22.01.2018)
20. Reward Work, Not Wealth
The annual Oxfam survey is keenly watched
and is discussed in detail at the World Economic Forum Annual Meeting where
rising income and gender inequality is among the key talking points for the
world leaders.
Last year’s survey had showed that India’s
richest 1 per cent held a huge 58 per cent of the country’s total wealth—higher
than the global figure of about 50 per cent. This year’s survey also showed
that the wealth of India’s richest 1 per cent increased by over Rs 20.9 lakh
crore during 2017, an amount equivalent to total budget of the central government
in 2017–18, Oxfam India said.
The report titled ‘Reward Work, Not Wealth’,
Oxfam said, reveals how the global economy enables wealthy elite to accumulate
vast wealth even as hundreds of millions of people struggle to survive on
poverty pay.
“2017 saw an unprecedented increase in the
number of billionaires, at a rate of one every two days. Billionaire wealth has
risen by an average of 13 per cent a year since 2010—six times faster than the
wages of ordinary workers, which have risen by a yearly average of just 2 per
cent,” it said.
In India, it
will take 941 years for a minimum wage worker in rural India to earn what the
top paid executive at a leading Indian garment firm earns in a year, the study
found. In the US, it takes slightly over one working day for a CEO to earn what
an ordinary worker makes in a year, it added.
Citing results of the global survey of
70,000 people surveyed in 10 countries, Oxfam said it demonstrates a
groundswell of support for action on inequality and nearly two-thirds of all
respondents think the gap between the rich and the poor needs to be urgently
addressed.
(Source: newindianexpress.com dated
22.01.2018)
2. Technology
21. BSNL,
NTT AT sign pact for future tech, 5G test
The agreement is in line with the vision of
the Prime Minister Narendra Modi and Japanese Prime Minister Shinzo Abe to
collaborate on the next generation technologies.
(Source: Economic Times dated 20.02.2018)
22. Internet
users in India expected to reach 500 million by June: IAMAI
Rural India, with an estimated population of
918 million as per 2011 census, has only 186 million internet users leaving out
potential 732 million users in rural India.
(Source: Economic Times dated 20.02.2018)
23. Blockchain
tech can reduce transaction Costs: FICCI – PWC
The next generation blockchain technology
can help in reducing cost of transactions in various government schemes, a
joint report by industry chamber FICCI and consultant firm PwC.
“By removing the need for third parties
to manage transactions and keep records, blockchain technology can massively
reduce transaction costs… Leveraging blockchain technology for social benefit
schemes will support the government’s wider policy objectives of
sustainability, thus reducing poverty and generating value for money in public
expenditure,”
Blockchain is a digital, decentralised
(distributed) ledger that keeps a record of all transactions that take place
across a peer-to-peer network.
In the blockchain technology, the data can
be captured at various location or blocks and all the information captured at
various block can be connected with help of a common link or signature in one
set of information.
Additionally, each ‘block’ is uniquely
connected to the previous blocks via a digital signature which means that
making a change to a record without disturbing the previous records in the
chain is not possible, thus rendering the information tamper-proof.
Blockchain solutions, if implemented, may
lead to the elimination of intermediaries or middlemen, thereby leading to
improved pricing, decreased transaction fees, thus eliminate issues of
hoarding.
(Source: Economic Times dated 20.2.2018)
24. A Store of Future – Amazon Go
The technology inside Amazon’s new
convenience store, enables a shopping experience like no other — including
no checkout lines. The first clue that there’s something unusual about
Amazon’s store of the future hits you right at the front door. It feels as if
you are entering a subway station. A row of gates guard the entrance to the
store, known as Amazon Go, allowing in only people with the store’s smartphone
app.
Inside is an 1,800-square foot mini-market
packed with shelves of food that you can find in a lot of other convenience
stores — soda, potato chips, ketchup. It also has some food usually found at
Whole Foods, the supermarket chain that Amazon owns. But the technology that is
also inside, mostly tucked away out of sight, enables a shopping experience
like no other. There are no cashiers or registers anywhere. Shoppers leave the
store through those same gates, without pausing to pull out a credit card.
Their Amazon account automatically gets charged for what they take out the
door.
There are no shopping carts or baskets
inside Amazon Go. Since the checkout process is automated, what would be the
point of them anyway? Instead, customers put items directly into the shopping
bag they’ll walk out with. Every time customers grab an item off a shelf, Amazon
says the product is automatically put into the shopping cart of their online
account. If customers put the item back on the shelf, Amazon removes it from
their virtual basket.
The only sign of the technology that makes
this possible floats above the store shelves — arrays of small cameras,
hundreds of them throughout the store. Amazon won’t say much about how the
system works, other than to say it involves sophisticated computer vision and
machine learning software. Translation: Amazon’s technology can see and
identify every item in the store, without attaching a special chip to every can
of soup and bag of trail mix.
There were a little over 3.5 million
cashiers in the United States in 2016 — and some of their jobs may be in
jeopardy if the technology behind Amazon Go eventually spreads. For now, Amazon
says its technology simply changes the role of employees — the same way it
describes the impact of automation on its warehouse workers.
Most people who spend any time in a
supermarket understand how vexing the checkout process can be, with clogged
lines for cashiers and customers who fumble with self-checkout kiosks. At
Amazon Go, checking out feels like — there’s no other way to put it —
shoplifting. It is only a few minutes after walking out of the store, when
Amazon sends an electronic receipt for purchases, that the feeling goes away.
For now, visitors to Amazon Go may want to watch their purchases: Without a
register staring them in the face at checkout, it’s easy to overspend.
(Source: nytimes.com dated 21.01.2018)
3. World news
25. Future shocks: 10 emerging risks that
threaten our world
In the wake of the 2008 financial crisis, we
asked ourselves one question over and over again: why didn’t we see it coming?
It rocked the global economy and threatened to destroy the financial systems
that we rely on. Ten years on, some countries are still picking up the pieces.
The World Economic Forum’s Global Risks Report 2018 says that, in our
increasingly complex and interconnected world, this type of shock may become
more likely. The report explores 10 potential future shocks, including food
scarcity, the extinction of fish, technological breakdowns and another
financial crisis.
The report explores 10 potential future
shocks, including food scarcity, the extinction of fish, technological
breakdowns and another financial crisis.
26. Not enough food to go around
Extreme weather events are becoming an
all-too-familiar sight. Drought, hurricanes and floods have a major impact on
the global food supply chain. Lower yields in crops lead to rising food prices,
hitting those already struggling to feed themselves.
The report argues that, if an extreme
weather event were to coincide with existing political instability or crop
disease, we could see a major food crisis happen overnight.
This is a
scenario exacerbated by the inherent “choke points” within the global supply
chain. These are the sections within the chain where a large volume of trade
passes through. Disruption to any one of these could cause immediate global
shortages and price hikes, in turn causing political and economic crises, and
ultimately, conflict.
27. The end of trade as we know it
Brexit, Trump, protectionist policies, these
are all undermining globalization as we know it. Institutions designed to
resolve trade disputes have become weaker as a result.
The report argues that the continued march
against globalization could lead to multilateral rules being openly breached.
Those further along the value chain could
then retaliate, and before we know it the world will be grappling with rapidly
spreading trade disputes.
Economic activity, output and employment
could all be adversely affected. But these effects will have a far greater
impact on some people, fuelling further discontent.
“Whatever the settled position on global
trade is to be,” argues the report, “more deliberation and consensus-building
would bolster its legitimacy.”
28. War without rules
21st century warfare will not involve guns
or bombs, but rather cyber-attacks on a massive scale, posits the report.
If a country’s critical infrastructure
systems are compromised by a cyber-attack, leading to disruption of essential
services and loss of life, there would be massive pressure for a government to
retaliate. What if they target the wrong culprit? There is no telling where
this retaliation might lead.
Governments need to establish agreed norms
and protocols for cyber warfare, much like those that exist for conventional
warfare today. This would help to prevent conflict erupting by mistake.
29. The break-up of the internet
If cyberattacks become more likely they
could end up breaking the internet.
Nations might build digital walls as they
seek to protect themselves. But this might not be the only reason. Governments
might also choose to do this on the basis of economic protectionism, regulatory
divergence, or censorship and repression. If governments felt they were losing
power relative to global online companies they might also seek to control the
internet.
There would be a barrier to the flow of
content and transactions. Technological advancements would slow. While some
might welcome this, others would not. It’s likely that there would be plenty of
illegal workarounds.
Perhaps most worryingly, human rights abuses
would likely increase as advances in international monitoring are rolled back.
Ongoing dialogue between governments and
technology companies would help to ensure that internet-based technologies
develop in a politically sustainable context of shared values and agreed
responsibilities, suggests the report.
(Source: weforum.org)
4. Sports
30. Roger
Federer becomes oldest world no.1 in history
Roger Federer added yet another record to
his vast collection when he officially returned to world number one as the latest
ATP rankings were released on 19 February. The 36-year-old beat Andre Agassis
record as the most senior player to reach the summit of the sport.
(Source:
International Business Times dated 20.02.2018)
_
Glimpses Of Supreme Court Rulings
10. Co-operative Society – Deduction u/s. 80P –
If the income of a society is falling within any one head of exemption, it has
to be exempted from tax notwithstanding that the condition of other heads of
exemption are not satisfied – A deduction would however not be admissible to a
co-operative bank – Also, where the activities of the society are in violation
of the Co-operative Societies Act, deduction cannot be allowed.
The Citizen
Co-operative Society Limited vs. ACIT (2017) 397 ITR 1 (SC)
The Assessee as
Co-operative Society had filed return of income for the Assessment Year
2009-10, for the year ending March 31, 2009 on September 30, 2009 declaring NIL
income. In the return filed, the Assessee claimed a sum of Rs. 4,26,37,081/- as
deduction u/s. 80P of the Act.
The Assessing
Officer held that deduction in respect of income of co-operative societies u/s.
80P of the Act was not admissible to the Appellant as the benefit of deduction,
as contemplated under the said provision was, inter alia, admissible to
those co-operative societies which carried on business of banking or providing
credit facilities to its members. On the contrary, the Appellant society was
carrying on the banking business for public at large and for all practical
purposes, it was acting like a co-operative bank governed by the Banking
Regulation Act, 1949, and its operation was not confined to its members but
outsiders as well.
Insofar as
disallowance of deduction claimed u/s. 80P of the Act was concerned, the CIT
(A) rejected the claim for deduction thereby upheld the order of the Assessing
Officer. While doing so, the CIT (A) followed the order of the Income Tax
Appellate Tribunal (ITAT) in the case of the Appellant itself in respect of
Assessment Years 2007-08 and 2008-09.
Further, appeal
to the ITAT met the same fate as ITAT also referred to its aforesaid order and
dismissed the appeal of the Appellant.
Undeterred, the
Appellant approached the High Court in the form of appeal u/s. 260A of the Act.
This appeal was dismissed by the High Court with the observations that there
was no illegality or infirmity in the order passed by the ITAT.
The Supreme
Court noted that section 80P of the Act provides for certain deduction in
respect of incomes of the co-operative societies. A co-operative society is
defined by section 2(19) of the Act. Where the gross total income of such
co-operative societies includes any income referred to in sub-section (2) of
section 80P, the sums specified in s/s. (2) are allowed as deduction in
accordance with and subject to the provisions of the said section, while
computing the total income of the Assessee. The profit exempted is the net
profit included in the total income and not the gross profit of the business.
Sub-section (2) enlists those sums which are allowed as deductions. Clause (a)
of s/s. (2) includes seven kinds of co-operative societies which are entitled
to this benefit, and in respect of the co-operative societies engaged in the
activities mentioned in those seven classes, the whole of the amount of profits
and gains of business attributable to anyone or more of such activities is
exempted from income by allowing the said income as deduction.
The Supreme
Court observed that in the present petition it was concerned with sub-clause
(i) of Clause (a) of sub-section (2) of section 80P, which enlisted a
co-operative society engaged in carrying on the business of banking or
providing credit facilities to its members.
The Supreme
Court observed that there could not be any dispute to the proposition that
section 80P of the Act was a benevolent provision which was enacted by the
Parliament in order to encourage and promote growth of co-operative sector in
the economic life of the country. It was done pursuant to declared policy of
the Government. Therefore, such a provision had to be read liberally,
reasonably and in favour of the Assessee (See-Bajaj Tempo Limited, Bombay
vs. Commissioner of Income Tax, Bombay City-III, Bombay (1992) 3 SCC 78).
It was also trite that such a provision had to be construed as to effectuate
the object of the Legislature and not to defeat it (See-Commissioner of
Income Tax, Bombay and Ors. vs. Mahindra and Mahindra Limited and Ors.
(1983) 4 SCC 392). Therefore, all those co-operative societies which fall
within the purview of section 80P of the Act are entitled to deduction in
respect of any income referred to in s/s. (2) thereof. Clause (a) of s/s. (2)
gives exemption of whole of the amount of profits and gains of business
attributable to anyone or more of such activities which are mentioned in s/s.
(2).
The Supreme
Court held that sub-section (i) of Clause (a) of sub-section (2), with which it
was concerned, recognised two kinds of co-operative societies, namely: (i)
those carrying on the business of banking and; (ii) those providing credit
facilities to its members.
The Supreme
Court referring to its decisions in the case of Kerala State Cooperative
Marketing Federation Limited and Ors. vs. Commissioner of Income Tax (1998)
5 SCC 48, and of the Punjab and Haryana High Court in the case of Commissioner
of Income Tax vs. Punjab State Co-operative Bank Ltd. (2008) 300 ITR 24
(Punjab & Haryana H.C.), observed that if the income of a society is
falling within any one head of exemption, it has to be exempted from tax
notwithstanding that the condition of other heads of exemption are not
satisfied.
The Supreme
Court noted that with the insertion of s/s. (4) by the Finance Act, 2006, which
was in the nature of a proviso to the aforesaid provision, it was made clear
that such a deduction would not be admissible to a co-operative bank. However,
if it was a primary agriculture credit society or a primary co-operative
agriculture and rural development bank, the deduction would still be provided.
Thus, co-operative banks were specifically excluded from the ambit of section
80P of the Act.
According to
the Supreme Court, if one had to go by the aforesaid definition of
‘co-operative bank’, the Appellant did not get covered thereby. It was also a
matter of common knowledge that in order to do the business of a co-operative
bank, it was imperative to have a licence from the Reserve Bank of India, which
the Appellant did not possess. The Reserve Bank of India itself had clarified
that the business of the Appellant did not amount to that of a co-operative
bank. The Appellant, therefore, would not come within the mischief of
sub-section (4) of section 80P.
However,
according to the Supreme Court, the main reason for disentitling the Appellant
from getting the deduction provided u/s. 80P of the Act was not s/s. (4)
thereof. What has been noticed by the Assessing Officer, after discussing in
detail the activities of the Appellant, was that the activities of the
Appellant were in violations of the provisions of the Mutually Aided Co-op
Societies Act, 1995 (MACSA) under which it is registered. It was pointed out by
the Assessing Officer that the Assessee was catering to two distinct categories
of people. The first category was that of resident members or ordinary members.
In the opinion of the Supreme Court, there may not be any difficulty as far as
this category was concerned. However, the Assessee had carved out another
category of ‘nominal members’. These were those members who were making
deposits with the Assessee for the purpose of obtaining loans, etc. and,
in fact, they are not members in real sense. Most of the business of the
Appellant was with this second category of persons who had given deposits which
were kept in Fixed Deposits with a motive to earn maximum returns. A portion of
these deposits was utilised to advance gold loans, etc. to the members
of the first category. It was found, as a matter of fact, that the depositors
and borrowers were quiet distinct. In reality, such activity of the Appellant
was that of finance business and could not be termed as co-operative society.
It was also found that the Appellant was engaged in the activity of granting
loans to general public as well. All this was done without any approval from
the Registrar of the Societies. With indulgence in such kind of activity by the
Appellant, it was remarked by the Assessing Officer that the activity of the
Appellant was in violation of the Co-operative Societies Act. Moreover, it was
a co-operative credit society which was not entitled to deduction u/s. 80P
(2)(a)(i) of the Act.
The Supreme
Court noted that a specific finding was also rendered that the principle of
mutuality was missing in the instant case.
According to
the Supreme Court, these were the findings of fact which had remained unshaken
till the stage of the High Court. Once the aforesaid aspects were taken into
consideration, the conclusion was obvious, namely, the Appellant could not be
treated as a co-operative society meant only for its members and providing
credit facilities to its members.
The Supreme
Court held that such a society could not claim the benefit of section 80P of
the Act. The appeal, therefore, was dismissed with costs.
11. Offences and Prosecution – If there is an
attempt to evade tax of the amount less than the monetary limit prescribed in
the Circular, no prosecution should be launched.
Suresh
Sholapurmath and Ors. vs. Income Tax Department and Ors. (2017) 397 ITR 145
(SC)
The assessee
was liable to pay Rs.1465. Rs. 465 was paid but, the document was tampered with
by showing it as Rs.1465.
The Karnataka
High Court refused to quash the prosecution proceedings against the Appellants.
The High Court declined to follow the Circular which provided that if there is
an attempt to evade tax of less than Rs.25,000, no prosecution could be
launched. According to the High Court, this was not a case of evasion of tax
but of furnishing of false declaration and hence circular would not be of any
assistance to the assessee.
The Supreme
Court noted that the amount involved is small, and was paid with interest long
ago. According to the Supreme Court, the Circular dated February 7, 1992
squarely applied and, therefore, no proceedings should have been filed as the
amount was below Rs. 25,000. In view of this, the Supreme Court set aside the
judgement of the High Court and quashed the proceeding against the appellants.
12. Interest on Refund – Whether an assessee is
entitled to interest u/s. 244A of the Income-tax Act, 1961 on excess self
assessment tax – The High Court could not have disagreed with the decision of a
co-ordinate Bench – Appropriate course of action would have been to refer the
matter to a larger Bench
Engineers
India Ltd. vs. Commissioner of Income Tax (2017) 397 ITR 16 (SC)
The issue
before the Supreme Court pertained to grant of interest u/s. 244A of the
Income-tax Act, 1961 for the Assessment Year 2006-07.
The impugned
judgment of the High Court revealed that another judgment of the Co-ordinate
Bench of the same High Court in the case of CIT vs. Sutlej Industries Ltd.
[2010] 325 ITR 331 (Delhi) was cited wherein the view taken was that in such
circumstances the Assessee would be entitled to interest u/s. 244A of the Income-tax
Act on the refund of the self-assessment tax. The High Court however did not
agree with the aforesaid view and made the following observation:
“Having
found the position of law as indicated above, we express, with respect, our
inability to subscribe to, or follow, the view taken by the other Division
Bench of this Court in the case of CIT vs. Sutlej Industries Ltd.”
The Supreme
Court held that in the impugned judgment, the Bench had differed with the
earlier view expressed by the Co-ordinate Bench. In the circumstances,
according to the Supreme Court, the appropriate course of action would have
been to refer the matter to the larger Bench.
The Supreme
Court noted that subsequently in the case of Sutlej Industries Ltd. vs. CIT
(I.T.A. Nos. 493 of 2003 and 120 of 2004) [2005] 272 ITR 180 (Delhi) pending
before the High Court, the High Court had referred the matter to a larger
Bench. In these circumstances, the Supreme Court set aside the impugned
judgment of the High Court and remanded the appeal to the High Court for its
decision afresh along with I.T.A. Nos. 493 of 2003 and 120 of 2004 by a larger
Bench.
The appeal was
disposed of accordingly.
13. Non-resident – Permanent Establishment – No
part of the main business and revenue earning activity of the two American
companies was carried on through a fixed business place in India put at their
disposal – The Indian company only rendered support services which enabled the
assessees in turn to render services to their clients abroad – This outsourcing
of work to India would not give rise to a fixed place or service PE
ADIT vs.
E-Funds IT Solution Inc. (2017) 399 ITR 34 (SC)
The assesses,
e-Funds Corporation, USA [e-Funds Corp] and e-Funds IT Solutions Group Inc.,
USA [e-Funds Inc] were companies incorporated in United States of America [USA]
and were residents of the said country. They were assessed and had paid taxes
on their global income in USA. e-Funds Corp was the holding company having
almost 100% shares in IDLX Corporation, another company incorporated in USA.
IDLX Corporation held almost 100% shares in IDLX International BV, incorporated
in Netherlands and later in turn held almost 100% shares in IDLX Holding BV,
which was a subsidiary again incorporated in Netherlands. IDLX Holding BV was almost
a 100% shareholder of e-Funds International India Private Limited, a company
incorporated and resident of India [e-Funds India] IDLX International BV was
also the parent/holding company having almost 100% shares in e-Funds Inc.,
which, as noticed above, was a company incorporated in USA.
Both e-Funds
Inc. and e-Funds Corp. had entered into international transactions with e-Funds
India. e-Funds India being a domestic company and resident in India was taxed
on the income earned in India as well as its global income in accordance with
the provisions of the Income–tax Act. The international transactions between
the assessees and e-Funds India and the income of e-Funds India, it was
accepted, were made subject matter of arms length pricing adjudication by the
Transfer Pricing Officer [TPO] and the Assessing Officer [AO] in the returns of
income filed by e-Funds India.
The assessing
authority for assessment years 2000-01 to 2002-03 and 2004-05 to 2007- 08 in
the case of e-Funds Corporation, USA and for assessment years 2000-01 to
2002-03 and 2005-06 to 2007- 08 in the case of e-Funds IT Solutions Group Inc.,
USA decided that the assessees had a permanent establishment [PE] as they had a
fixed place where they carried on their own business in Delhi, and that,
consequently, Article 5 of the India U.S. Double Taxation Avoidance Agreement
of 1990 [DTAA] was attracted. Consequently, the assessees were liable to pay
tax in respect of what they earned from the aforesaid fixed place PE in India.
The CIT
(Appeals) dismissed the appeals of the assessees holding that Article 5 was
attracted, not only because there was a fixed place where the assessees carried
on their business, but also because they were having “service PEs” and “agency
PEs” under Article 5.
In an appeal to
the ITAT, the ITAT held that the CIT (Appeals) was right in holding that a case
of “fixed place PE” and “service PE” had been made out under Article 5, but
said nothing about the “agency PE” as that was not argued by the Revenue before
the ITAT. However, the ITAT, on a calculation formula different from that of
the CIT (Appeals), arrived at a nil figure of income for all the relevant
assessment years.
The appeal of
the assessees to the Delhi High Court proved successful [(2014) 364 ITR 256
(Delhi)] and the High Court, by an elaborate judgment, has set aside the
findings of all the authorities referred to above, and further dismissed the
cross-appeals of the Revenue.
Consequently,
the Revenue was in appeal before the Supreme Court.
The Supreme
Court observed that the Income-tax Act, in particular section 90 thereof, does
not speak of the concept of a PE. This is a creation only of the DTAA. By
virtue of Article 7(1) of the DTAA, the business income of companies which are
incorporated in the US will be taxable only in the US, unless it is found that
they were having PEs in India, in which event their business income, to the
extent to which it is attributable to such PEs, would be taxable in India. The
Supreme Court noted that Article 5 of the DTAA provides for three distinct
types of PEs with which it was concerned in the present case: fixed place of
business PE under Articles 5(1) and 5(2); service PE under Article 5(2) (l) and
agency PE under Article 5(4). According to the Supreme Court, specific and
detailed criteria are set out in the aforesaid provisions in order to fulfill
the conditions of these PEs existing in India. The burden of proving the fact
that a foreign assessee has a PE in India and must, therefore, suffer tax from
the business generated from such PE is initially on the Revenue.
In the context
of fixed place PE, on the behalf of the Revenue, it was argued that under
Article 5(1) of the DTAA, on the facts of these cases, a case of fixed place PE
has been made out. In support of this, it was, inter-alia, pointed out
that: Most of the employees are in India (In fact, the High Court records that
40% of the employees of the entire group are in India). e-Funds Corp has call
centers and software development centers only in India. e-Funds Corp is
essentially doing marketing work only and its contracts with clients are
assigned, or sub-contracted to e-Funds India. The master services agreement
between the American and the Indian entity gives complete control to the
American entity in regard to personnel employed by the Indian entity. It is
only through the proprietary database and software of e-Funds Corp, that
e-Funds India carries out its functions for e-Funds Corp. The High Court
records that the software, intangible data etc. is provided free of cost
and then states that this is irrelevant. The Corporate office of e-Funds India
houses an ‘International Division’ comprising the President’s office and a
sales team servicing e-Funds India and eFunds group entities in the United
Kingdom, South East Asia, Australia and Venezuela. The President’s office
primarily oversees operations of e-Funds India and eFunds group entities
overseas. The sales team undertakes marketing efforts for affiliate entities
also. The Transfer Pricing [TP] Report says that e-Funds India provides
management support and marketing support services to eFunds Corp group
companies outside India. Regarding supervision of personnel rendering the
services, the TP Report states that “The President’s office manages the
operations of eFunds India and eFunds group entities in UK and Australia and
accordingly, employees of these entities report to the President. The
President’s overall reporting is to EFC. Though the personnel rendering
marketing services are employees of EFI, they report to overseas group entities
to the extent that they are engaged in rendering services to such entities.”
Heavy reliance was also placed upon the Form 10 K report dtd. 31/3/2003 filed
by the e-Fund Corp for the group with the United States Securities and Exchange
Commission.
The Revenue’s
counsel had further submitted that on these facts, the assessees satisfy the
requirements of fixed place PE. For this, reliance was also placed on the judgment
of the Apex Court in the case of Formula One World Championship Ltd. [(2017)
394 ITR 80 (SC)] [Formula One] and contented that physically located premises
are at the disposal of the assessees with the degree of permanence required,
viz., the entire year. It was also contended that the High Court was not right
in holding that the place of management PE under Article 5(2)(a) was prima
facie made out, but since the said provision had not been invoked and requires
factual determination, the Revenue’s argument is dismissed on this score. Heavy
reliance was also placed on the MAP settlement made for the Asst. Years 2003-04
and 2004-05 by the assessees to contend that the assessees have admitted for
those years that some income is attributable to their Indian PEs and this
admission would continue to bind the assessees in all subsequent years.
On the other
hand, on behalf of the assessees, it was, inter-alia, contended that the
tests for determining the existence of fixed place PE have now been settled by
the Apex Court in the case Formula One (supra). These require that the
fixed place must be at the disposal of assessees, which means that the
assessees must have a right to use the premises for the purpose of his own
business and that has not been made out in the facts of this case. The TPO has
specifically held that whatever is paid under various agreements between the
assessees and the Indian company are at arm’s length pricing and this being the
case, even if fixed place PE is found, once arm’s length price is paid, the US
companies go out of the net of Indian taxation. Referring to Article 5(6) of
the DTAA, it was further contended that mere fact that a 100 per cent
subsidiary is carrying on the business in India does not by itself means that
the holding company would have a PE in India. It was also further pointed out
that ultimately there are four businesses that the assessees are engaged in
viz., ATM Management Services, Electronic Payment Management, Decision Support
and Risk Management and Global Outsourcing and Professional Services. All these
businesses are carried on outside India and the property through they are
carried out viz., ATM networks, software solutions and other hardware networks
and information technology infrastructure were all located outside India. The
activities of e-Funds India are independent business activities on which, as
has been noticed by the High Court, independent profits are made and income is
assessed to tax in India. For this, a specific reference was also made to the report
of Deloitte Haskins and Sells dated 13/3/2009, which was produced before the
CIT (A). It was further contended that MAP settlement made for the Asst Years
2003-04 and 2004-05 cannot be considered as precedent to hold that there is a
PE in subsequent years. In fact, this settlement was without prejudice to the
assessees contention that they have no PE in India and it is also clarified in
the follow-up letters that the same is not binding on subsequent years.
Since the
Revenue originally relied on fixed place of business PE, the Supreme Court
tackled it first. The Supreme Court observed that under Article 5(1), a PE
means a fixed place of business through which the business of an enterprise is
wholly or partly carried on. According to the Supreme Court, what is a “fixed
place of business” was no longer res integra. In Formula One’s case (supra),
it had after setting out Article 5 of the DTAA, held that the principal test,
in order to ascertain as to whether an establishment has a fixed place of
business or not, is that such physically located premises have to be ‘at the
disposal’ of the enterprise. For this purpose, it is not necessary that the
premises are owned or even rented by the enterprise. It will be sufficient if
the premises are put at the disposal of the enterprise. However, merely giving
access to such a place to the enterprise for the purposes of the project would
not suffice. The place would be treated as ‘at the disposal’ of the enterprise
when the enterprise has right to use the said place and has control thereupon.
Thus, it was
clear that there must exist a fixed place of business in India, which was at
the disposal of the US companies, through which they carry on their own
business. There was, in fact, no specific finding in the assessment order or
the appellate orders that applying the aforesaid tests, any fixed place of
business had been put at the disposal of these companies. The assessing
officer, CIT (Appeals) and the ITAT had essentially adopted a fundamentally
erroneous approach in saying that they were contracting with a 100% subsidiary
and were outsourcing business to such subsidiary, which resulted in the
creation of a PE. The High Court has dealt with this aspect in some detail and
the Supreme Court agreed with the findings of the High Court in this regard.
The Supreme
Court further held that the reliance placed by the Revenue on the United States
Securities and Exchange Commission Form 10K Report, as had been correctly
pointed out by the High Court, is also misplaced. It is clear that this report
evidently speaks of the e- Funds group of companies worldwide as a whole.
According to
the Supreme Court, the Deloitte’s report dated 31/03/2009 [which was produced
before the CIT(Appeals)] showed that no part of the main business and revenue
earning activity of the two American companies was carried on through a fixed
business place in India which had been put at their disposal. It was clear from
the report that the Indian company only rendered support services which enabled
the assessees in turn to render services to their clients abroad. This
outsourcing of work to India would not give rise to a fixed place PE and the
High Court judgment was, therefore, correct on this score.
In the context
of existence of service PE under Article 5(2)(l) of the DTAA, in addition to
some of the facts pointed for fixed place PE [including the fact of TP report
regarding supervision of personnel rendering service], it was, inter-alia,
further pointed out by Revenue’s counsel that: The Master sub-contractor
agreement between e-Funds Corp and e-Funds India discussed in the CIT(A)’s
order provides in clause 1.1(a) that : “Subcontractors personnel assigned to
work with eFunds IT or Customers located in the United States shall be directed
by eFunds IT or by Subcontractors supervisor acting at the direction of eFunds
IT. In the event Subcontractors personnel are assigned to perform such services
in India, the Subcontractor shall supervise such work, acting at the direction
of eFunds IT. eFunds IT shall be the sole judge of performance and capability
of each of subcontractors personnel and may request the removal of one or more
of Subcontractors personnel from a project covered by any statement of work as
follows.” It is submitted that the personnel engaged in providing these
services were ostensibly the employees of e-Funds India but were de facto
working under the control and supervision of eFunds Corp. In this regard,
reference was made to relevant part of the judgement in DIT vs. Morgan
Stanley and Company Inc. [(2007) 292 ITR 416 (SC)]. Furthermore, the AO in
the Assessment Order has observed that e-Funds Corp has seconded two employees
to e-Funds India and these employees worked as Sr. Director Technical Services and Country
Head-Business Development. The activities of the seconded employees go beyond
mere ‘stewardship activities’ in terms of Morgan Stanley’s case [supra].
The term ‘Other Personnel’ has to be seen in the context of the facts of this
case which show that e-Funds India was not an independent subsidiary.
In the context
of service PE, in addition to some of the points made out in connection with
non-existence of fixed place PE, the
assessee’s counsel, inter alia, further contended that under Article
5(2)(l) of the DTAA, it is necessary that the foreign enterprises must provide
services to customers who are in India, which is not Revenue’s case as all
their customers exist only outside India. It was also pointed out that the
entire personnel engaged only by the Indian company and the facts that the US
companies may indirectly control such employees is only for the purpose of
protecting their own interest. The reliance was also placed on the judgment of
the Supreme Court in Morgan Stanley’s case (supra).
Insofar as a
service PE was concerned, the Supreme Court noted that the requirement of
Article 5(2)(l) of the DTAA was that an enterprise must furnish services
“within India” through employees or other personnel. In this regard, the
Supreme Court referred to its judgment in Morgan Stanley’s case (supra)
and noted that none of the customers of the assessees were located in India or
have received any services in India. This being the case, it was clear that the
very first ingredient contained in Article 5(2)(l) was not satisfied.
However, the
learned Attorney General, relying upon paragraph 42.31 of the OECD Commentary,
had argued that services have to be furnished within India, which does not mean
that they have to be furnished to customers in India. Para 42.31 of the OECD
Commentary states that “Whether or not the relevant services are furnished to a
resident of a state does not matter: what matters is that the services are
performed in the State through an individual present in that State.”
Based upon the
said paragraph, it was argued that in assessment year 2005-06, two employees of
the American company were seconded in India and that, therefore, it was clear
that management of the American company through these employees had obviously
taken place. The High Court, in dealing with this contention, had found it was
not known as to what functions they performed and to whom they reported and it
was also not known whether the services were performed related to services
provided to an associated enterprise in which case clause 5(2)(l)(ii) would be
applicable. According to the High Court, whether the seconded employees were
performing stewardship services or were directly involved with the working
operations was relevant. It was the case of the assessee that they were deputed
to look towards development of domestic work in India and cost of such
personnel was fully borne e-Funds India. They were working under the control
and supervision of e-Funds India. This factual assertion was not negated or
questioned by the AO.
The Supreme
Court agreed with the approach of the High Court in this regard. It held that
para 42.31 of the OECD Commentary does not mean that services need not be
rendered by the foreign assessees in India. If any customer is rendered a
service in India, whether resident in India or outside India, a “service PE”
would be established in India. As noticed hereinabove, no customer, resident or
otherwise, received any service in India from the assessees. All its customers
received services only in locations outside India. Only auxiliary operations
that facilitated such services were carried out in India. This being so, it was
not necessary to advert to the other ground namely, that “other personnel”
would cover personnel employed by the Indian company as well, and that the US
companies through such personnel were furnishing services in India. This being
the case, it was clear that as the very first part of Article 5(2)(l) was not
attracted, the question of going to any other part of the said Article did not
arise. It was perhaps for this reason that the AO did not give any finding on
this score.
The Supreme
Court agreed with the assessee’s counsel that the “agency PE” aspect of the
case need not be gone into as it was given up before the ITAT. However, the
Supreme Court was of the view that for the sake of completeness, it was
necessary to agree with the High Court, that it had never been the case of
Revenue that e-Funds India was authorised to or exercised any authority to
conclude contracts on behalf of the US company, nor was any factual foundation
laid to attract any of the said clauses contained in Article 5(4) of the DTAA.
Dealing with
the issue of effect of MAP settlement for the Asst. Years 2003-04 and 2004-05,
the Supreme Court referred to the relevant paras of OECD Manual on MAP and, in
particular, Best Practice No.3, relied on by the Revenue’s counsel and noted
that this would show that a competent authority should engage in discussion
with the other competent authority in a principled, fair and objective manner,
with each case being decided on its own merits. It is also specifically
observed that, where an agreement is not otherwise achievable, then both
parties should look for appropriate opportunities for compromise in order to
eliminate double taxation on the facts of the case, even though a principled
approach is important. The learned Attorney General also relied upon Best
Practice No. 1 of the said OECD Manual, which requires the publication of
mutual agreements reached that may apply to a general category of taxpayers
which would then improve guidance for the future. According to the Supreme
Court, the Best Practice No. 1 has no application on the facts of the present
case, as the agreement reached applies only to the respondent companies, and not
to any general category of taxpayers. It is clear, therefore, that the
assessee’s counsel Shri Ganesh is right in replying upon para 3.6 of the OECD
Manual, which deals with settlements which are often case and time specific and
they are not considered as precedents for the tax-payers or the tax
administration. It is very clear, therefore, that such agreement cannot be
considered as a precedent for subsequent year, and the High Court’s conclusion
on this aspect is also correct.
Note: In the above case, in the context of fixed place PE, the Court has followed internationally accepted tests confirmed by the Supreme Court in the case of Formula One (supra) and applied the same to the facts found by the High Court in this case. The judgement in Formula One’s case is digested in this column in the last month and since this case, in this respect, follows the same, it is thought fit to consider in this column in this month, which is now also reported in ITR. In the context of service PE, primarily it has relied on its earlier judgment in the case of Morgan Stanley (supra), which has been analysed in greater detail by us in this journal in the column Closements in the months of September/October, 2007. The above judgement is also primarily based on the factual findings of the High Court and also based on certain lack of findings of facts at the lower level. As such, this judgement should be read, understood and applied accordingly. For the purpose of deciding the issues raised in this case, the Court has also referred to and considered the relevant part of OECD commentaries on OECD Model as well as by learned authors Klaus Vogel & Arvind A. Skaar (on PE) and also the OECD Manual on MAP etc. _
From The President
Dear Members,
You can start over as many times as you want...seems to me one of the most simplest, yet
sensible mantras with which to leap into the New Year. The key word being
‘start’, for all too often we stay in a rut of complacency or indifference,
severely harming our well being. So let’s start making our dreams happen, by
changing the old ways that keep pulling us down. Let’s make resolutions…and
even if we break them…let’s start again! Let’s fly higher on the wings of our
intuition and imagination…and should we falter, we can always start again!
As we work for a better New India, let us all try to be part of the
solution. Let’s earnestly remove the blinkers of prejudice and hate and start
building bridges with people of all strata, religion and region. Let us
cultivate a sense of integrity and responsibility that we may enhance the world
around us. In doing this, I truly believe that we will be better equipped to
work together and grow our economy much faster. And more importantly, we will
be able to enjoy the fruits of the economic growth, much better. Can we start
now…and start again…and again?
GST was successfully launched this year but now is facing some
implementation hiccups. It was basically designed to streamline the tax
systems, while raising revenue, but now after five months it appears to be
falling short on the revenue side. GST tax returns filed for the July to
September 2017 period by around six lakh assessees under the ‘composition’
scheme show a meagre tax payment of around Rs. 250 crore thereby hinting at a
massive tax evasion by these smaller taxpayers. The composition scheme is a
special one to make GST filing easier for small firms; apart from simpler tax
procedures, the returns have to be filed once a quarter. To that extent, the
government’s plan to bring in the e-way bill and other ways to plug tax theft
are quite justified.
The focus of the Council is clearly now on boosting revenue collection.
The Council has already decided to do a nation-wide roll-out of the electronic
way bill from June 1 to enhance enforcement and eliminate any leakages. The
roll-out of the bill for inter-state movement of goods is being advanced to
February 1. Only after revenue collections stabilise and compliance increases,
will the Council consider any further streamlining of rates or merging of
slabs.
During the entire year 2017, BCAS also played a significant role in GST
by educating its members and the public through its various lectures, seminars,
workshops and conferences. More than 5K people benefited from these initiatives
of the Society.
The year is on its last legs but there’s plenty of enthusiasm in the
stock markets, with the Sensex crossing the 34K mark. The Nifty on the NSE too
spiralled up closing at a record high of 10K plus. The buoyancy reflects the
widespread optimism that prevails in the markets. With SEBI paving the way for
Universal Exchanges, investors will soon be able to trade both securities and
commodities on a single platform, which will further catalyse growth.
And there’s more good news in the making…the Centre for Economics and
Business Research in its recent report has said that India is set to become the
fifth largest economy in the World in 2018, overtaking France and UK. The 9th
edition of the World Economic League table that tracks economies and forecasts
changes, believes that India will witness robust growth having got over the
effects of demonetisation and GST roll-out issues. The IMF too re-echoes this
projection, estimating a growth of 7.2% this year and 7.7% in 2018-19.
2017 was a year filled with some notable achievements for Indian Space
Research Organisation (ISRO). Our scientists set a world record with the launch
of the largest number of satellites in a single launch, and a rocket launch
(GSLV Mark III) with the heaviest payload. Providing a reliable, low cost
option, it launched a whopping 130 customer satellites in this year alone! And
not just the numbers, ISRO launched satellites ranging from 3136 kg to a meagre
4g! ISRO has now recognized its ability to launch satellites on a commercial
scale with multiple multi-satellite launches. Continuing with its tradition to
encourage student participation, ISRO also launched another student satellite
this year.
Today India is the toast and envy of many nations. One of its biggest
assets is its youth which is estimated to be around 968 million (people above
15 years). According to a survey conducted by BSE-CMIE, the number of employed
people in the country is around 405 million. Every year around 26 million join
the workforce, but only about 1.5 million get employment. A leading newspaper
put it very appropriately saying, “… if the pace of job creation is not
accelerated, the demographic bonus could become a demographic onus”.
Niti Aayog, the government’s premier think-tank is clearly on the job.
Its Vice Chairman Rajiv Kumar, who is working on the vision document of New
India@2022 says the new focus is on agricultural transformation, malnutrition,
higher education and employment generation. One of the priorities for 2018 is
to push India’s exports as out-bound shipments play a critical role in creating
high quality jobs.
The Society’s various Committees are putting in lots of efforts to
organise quality programs for the benefit of its members. However, it is really
alarming that many of these programs are not finding the right number of member
audience planned to make them effective both in terms of costs and also
inviting top notch speakers. The organisers get disheartened when these are
curtailed or even at times cancelled. I sincerely appeal to all members to take
benefit and enrol themselves to such top-quality programs for which BCAS is
known for across the country.
I would like to end with an inspiring quote delivered recently by
Mukesh Ambani to the Reliance Family, “…achieving your potential is the quest
of the ordinary…conquering the impossible is your destiny.” The new year is
here…let’s make the best of it…even if we have to keep starting again…and
again! All the very best, Dear Members!
Wishing you a happy Makar Sankranti, Pongal and of course our 68th
Republic Day!!
Feel free to write to me on president@bcasonline.org
With kind regards
CA. Narayan Pasari
President
From The President
By the time you read this, India must have enjoyed and celebrated its most awaited colourful festival of Holi. This year I would like to extend my Holi Greetings, with a prayer for the entire country…that as winter turns into spring, we may all be rejuvenated and allow good to triumph over evil in our lives and the world around us. I also hope that as we splash and frolic in multiple colours, may we accept the diversity of all people and grow together.
Let’s dive into the month that was…beginning with the Budget 2018. It was a witty person who once said, “A budget is what you stay within if you go without.” Our FM Shri Jaitley had to walk a delicate tightrope in allocating adequate resources to only the most compelling issues. The media had a field day in reporting the Budget and all the views and criticism that was generated, but I believe this year’s Budget is an effective and very viable stepping-stone for the economy. It has a very judicious mix of populist initiatives and disciplinary measures that will continue to spur growth in the years ahead. Agriculture, rural development, MSME and the world’s largest healthcare program were the key features of the budget.
With a total expenditure of Rs.24.4 trillion, the fiscal deficit is set to escalate marginally to 3.3% of the GDP in the year ahead. But that was not the big dampener that sent the stock exchanges spiralling downwards. It was the much-anticipated Long Term Capital Gains Tax of 10% without the benefit of indexation. Both individual and institutional investors dumped stocks causing the Sensex to crash over 1100 points wiping around 9.6 lakh crore in just three market days.
This was coincidentally the start of the global mayhem. The US Dow collapsed unexpectedly and dramatically sending ripples across the world. This situation was inexplicable as the World Economic Forum at Davos reported optimism in the growth of the global economy. Trump’s tax reforms were seeing results as corporate earnings and jobs were growing. So, what was spooking the markets? Was it the hardening of US interest rates? Or the expected $1 trillion deficit compounded by dropping tax revenues?
However, a positive aspect was the unanimous agreement of top global leaders at the ET Global Business Summit that India is poised to be a $10 trillion economy by 2030 – that’s four times the current GDP. India could tap into the tailwinds generated by the world economy that’s currently growing at 3.9% to surge ahead at 9% in the years ahead. E-Commerce could also be a key driving force of India’s growth story. With higher internet penetration, e-commerce sales could balloon to $150 billion in 10 years.
India’s meteoric growth will also propel innovation, which will in turn accelerate growth. To achieve all this, India will need to streamline its tax structure, improve digitisation and infrastructure as well as skill its workforce. With international confidence running high, we need to seize the opportunity and reclaim our position as a leading economy in the world.
The talk of the country for the past few weeks has been the PNB scam of Rs. 114 million and growing. This perfectly orchestrated scam has devastated PNB’s share value by 25% and has dragged down several other public-sector banks. In the wake of the PNB scam, some more frauds have been unearthed; raising some very pertinent questions.
Hon. PM Shri Modi expressed his displeasure as he declared, “the system will not tolerate loot of public money”. He also took the regulatory institutions to task saying that they need to discharge their responsibility with utmost sincerity and integrity. FM Jaitley too found fault with RBI, management of PNB and the auditors for being unable to detect the scam. He said that, “If you periodically have frauds of this kind the entire effort of ease-of-doing business goes into the background”. He has asked the supervisory agencies to introspect and deploy additional systems to prevent any further recurrence.
The government has made it clear that CAs cannot get away just by citing red flags. It is exploring measures to fix auditor responsibility in frauds. In response to the alleged lapses on part of auditors, ICAI has been proactive. It has served show-cause notices to the auditors. It has requested RBI to share a list of corporate borrowers with over Rs. 2,000 crore loan outstanding in PSBs so that their accounts can be examined for any violation. It has also requested SEBI and CBI to share their findings to enable it to act against any chartered accountant involved in fraud.
After this spell of not-so-good news…here’s a rainbow. Schools in Delhi are soon to have ‘Happiness Classes’. Experts debate on whether it’s a subject that can be taught, but a Good Life course in Yale on similar lines has achieved unexpected popularity. Here are some details that could help us spark some happiness in our lives too!
The course underlines that a pivotal factor of our happiness is our intentional effort – especially practising gratitude and kind behaviours. It cites research which suggests that changing life circumstances won’t make us happy…to be happy we need to consciously work on it. Students are taught that in making others happy, you can make yourself happy. Students use tools from psychology to live their happiness goals. In addition to readings and assessments, the students are encouraged to ‘rewire’ through a series of exercises that make them happier, healthier and resilient. It’s still a new concept, but I hope it catches on and spreads to schools and colleges across India.
This year, Mr. S. E. Dastur, Senior Advocate addressed his last & the 30th BCAS Public Lecture Meeting on ‘Direct Tax Provisions of the Finance Bill, 2018’. Three decades is a long time in any organisation’s time span. We at BCAS, were fortunate enough all these years to avail of his masterly analysis year after year. This year apart from the 1,000+ personally present, we had more than 11K viewers from 13 different countries who joined us through Live Screening.
As the Society enters its 69th year of existence, we continue to acknowledge your affiliation with us and value the same. Hope you find this platform adding value and nurturing you to groom yourself in the profession. I request to please renew your Membership & Subscription for the coming financial year 2018-19 to avoid any disruption of BCAS membership benefits. Kindly note, the renewal notice along with the form has been sent to your addresses.
The Society has lined up number of programs in the months of March and April. I request members to take benefit of the same.
Wishing you a Happy Gudi Padwa, Ram Navami, Mahavir Jayanti & Good Friday!
Feel free to write to me on president@bcasonline.org
From the President
“Come to India if you want
wealth and wellness. Come to India if you want health and wholeness. Come to
India if you want prosperity with peace…You will always be welcome,” Prime
Minister Modi spread a lot of hope and sunshine in snow-blanketed Davos while
addressing the World Economic Forum Annual Summit last month. Being the first
Indian PM going to Davos in 20 years, Mr. Modi was determined to make a strong
impact by hard-selling the “New India”. In his stirring speech, interspersed
with shlokas and quotes by Mahatma Gandhi and Rabindranath Tagore; PM Modi made
a convincing case for investors to touch base with India. Citing recent data
and surveys, he explained that India was open for business, emphasising that
his government had streamlined the way with revamped policies and fast-tracked
clearances and “Red tape is out, red carpet is in.” He rightly asserted that
“New India” will be a $5 trillion economy by 2025, where Indian innovators will
become ‘job givers’ and just not remain ‘job seekers’.
The PM also pitched hard
against protectionism that has become increasingly visible in recent years. He
slammed this trend saying, “Countries are becoming inward focused,
globalisation is shrinking…this is no less a risk than terrorism and climate
change”. He even chided the international community for only talking about
lower carbon emissions, but not providing any resources or technology to deal
with the challenge. Similarly, he also vented his disappointment with countries
who are openly supporting terrorists…and splitting hair by talking of good and
bad terrorism. PM Modi has delivered – both in India and now in Davos, now only
time will tell if it’s working.
The Annual Economic Survey
presented by the finance ministry’s economists, projects that the Indian
economy will expand between 7% to 7.5% in 2018-19, a number not very different
from that estimated by the World Bank and the IMF. History will likely
recognise the implementation of the GST and the introduction of a Bankruptcy
Code as fundamental structural reforms, and the survey acknowledges both. Apart
from this the effort to recapitalise banks, addresses what is popularly called
the ‘twin balance sheet’ problem (bad loans on the books of banks, and debt on
the books of borrowers). The survey also points out that there is an increase
in the number of enterprises that pay indirect taxes. The big picture presented
by the survey is of an economy that is becoming increasingly tax compliant, and
is poised for growth, although, as the document admits, there are still
challenges when it comes to both consumption-driven growth and increasing
private investment.
The
major issues faced by the Modi Government are employment and the ongoing crisis
in agriculture. The survey picks both as issues that need to be addressed
immediately. Worryingly, it points out that “climate change might reduce farm
incomes by 20-25% in medium term”. The solution will involve more science, but
it should also involve more markets. For employment, the survey is right in
listing “private investment and exports” as the only two “truly sustainable
engines”. India would do well to focus its efforts on creating an environment
conducive to private investment and on increasing its export competitiveness.
That might well hold the key to creating jobs, although doing so against the
countervailing forces of increasing automation and rapid strides in all will be
difficult to achieve.
The World Economic Outlook
Update from the IMF estimates that the Indian economy would perform well and
will be the fastest growing economy in 2018 and 2019. China on the other hand
notched 6.8% last year but is expected to decelerate to 6.6% in 2018 and slip
further to 6.4% in 2019. Adding to the good news is the PwC Global CEOs survey
which has seen India rising one place to become the fifth best investment
destination in the world, overtaking Japan. This has been the result of
concerted and committed implementation of structural reforms. The government
has demonstrated strong dedication for upgrading infrastructure and upskilling
the people, in addition to opening up several key sectors.
There’s a lot looking good
for India but there are also some issues that need to be tackled on a war
footing for India to truly be an outstanding and model country. One of them is
the horrific fact from an Oxfam survey which declares that 1% of India has 73%
of its wealth. This inequitable distribution of wealth could pave the way for
many problems in the near future. The government is already looking at an ‘Ease
of Living’ index and should actively explore some initiative to make India’s
prosperity more inclusive.
It was something of a coup
to get all the ten heads of state and government of the Association of South
East Asian Nations (ASEAN) to congregate in Delhi. They were all invited as
Chief Guests of the Republic Day parade and to attend the Indo-ASEAN
Commemorative Summit that marks 25 years of their dialogue partnership. With
America looking inward and withdrawing from the world, China has been flexing
its economic and military might. Currently most of the ASEAN countries are
heavily dependent on China to keep their economies going. But they are alarmed
with the high-handed attitude of China in handling territorial disputes.
The ASEAN countries are now
eagerly looking at India in being the counterweight in the region. Many of the
countries are keen on boosting investments and economic ties with India. This
is significant as India and the ASEAN countries have a combined population of
1.8 billion which is a quarter of the world population. The combined GDP is
around $4.5 trillion and Indo-ASEAN trade has climbed to over $58 billion in
2016. There is much scope for developing tourism cooperation and more
importantly maritime security among the member countries. With a lot in common
like young populations, growing internet user bases and surging middle-class
households there are tremendous opportunities for all countries. In fact, the next big idea could even be about Indian membership in ASEAN!
Students’ activities are
core to BCAS and the Society takes several initiatives to promote them. The
results of Final CA and IPCC examinations held in November 2017 were announced
recently. On behalf of the Society, I take this opportunity to congratulate the
new entrants to the profession and to those taking first steps in their quest
to become CAs.
In order to encourage the
young students passing CA to become members of BCAS, even this year the Society
will be felicitating them with various benefits which has already been
announced. If your articled clerk has secured a rank or you know about a rank
holder in CA Finals, BCAS offers one-year membership free. Till date, I am
happy that 22 rank holders have already become members of BCAS. I request all
the members to encourage their students who have successfully qualified to
become members of the BCAS and those serving articleship to become student
members of BCAS.
At the Society, the
flagship program – the 51st RRC at Mahabaleshwar held in January 2018 was a
grand success. As a boost to the “Yuva Shakti”, 3 paper writers at the RRC were
youth members and the participants applauded their presentations. The other
highlight was the 3 hours Panel Discussion where the 4 panellists drawn from
diverse backgrounds expressed their thoughts on variety of subjects on the
profession. The participants immensely benefitted from the panel discussion.
The Society has lined up a number of programs in the months of February and
March. I request members to take benefit of the same.
Wishing you a Happy Budget,
Happy Maha Shivaratri & a Colourful Holi ahead!
Feel free to write to me on
president@bcasonline.org
With kind regards
CA. Narayan Pasari
President
Miscellanea
1. Economy
14.
Why is this Indian online portal and wholesale market listed in
Notorious Markets List by US?
IndiaMart.com and Delhi’s
wholesale market Tank Road have figured in the annual American notorious
markets list.
The US Trade Representative
(USTR) has released the Notorious Markets List that highlights online and
physical markets all over the world that are allegedly engaged in trading
pirated or counterfeit products and services.
China tops the Notorious
Markets List. Indian e-commerce company IndiaMart.com and Delhi’s wholesale
market Tank Road have figured in the list. These platforms are reported to be
engaging in and facilitating substantial copyright piracy and trademark
counterfeiting.
Popular online marketplace
IndiaMart has 1.5 million suppliers and more than 10 million buyers. The USTR
states that, among its legitimate listings, the firm allegedly facilitates
global trade in counterfeit and illegal pharmaceuticals. The IndiaMart
disclaims all liability, delays responses and does not facilitate right holder
attempts to remove listings, the USTR alleged.
The stakeholders confirm
that Tank Road remains a market selling counterfeit products, including apparel
and footwear, noted USTR. The fake products from Tank Road are also reportedly
found in other Indian markets, including Gaffar Market and Ajmal Khan Road.
The USTR list urged India
to take sustained and coordinated action against these marketplaces, including
Tank Road market, previously-listed markets, and numerous other non-listed
markets in its territory.
Taobao, which is owned and
created by Alibaba group, is also listed in Notorious Markets List 2017. It is
China’s largest mobile commerce site and its third-most popular website.
(Source:
International Business Times dated 13.01.2018)
15.
DELAYED IT Refunds Cost CBDT 58k Cr in 9yrs CAG
The central board of direct
tax has incurred an expenditure of over Rs. 58,500 crore in the last nine years
only on interest paid to individuals and corporates for delayed refunds of
excess income tax paid to the department. The comptroller and auditor general
in its, report taxable in parliament on Tuesday has criticised the CBDT and the
revenue department in the finance ministry for not making budgetary provisions
for the interest to be paid on delayed refunds and incurring such expenditure
without the approval of parliament.
As in the past no budget
provision for interest on refunds was made in the budget estimates for the
financial year 2016-17 and expenditure on interest on refunds amounting to rs
2,598 crore was incurred by the department in contravention of provisions of
the constitution and in disregard of the recommendations of the public accounts
committee CAG observed.
It said an expenditure of Rs. 58,537 crore on interest payments had
been incurred over a period of last nine years without obtaining approval of
the parliament through necessary appropriation.
The CBDT, however, informed
the CAG that on the basis of opinion of the attorney general holding the
current practice of treating interest on refund as reduction of revenue and
with the approval of the ministry of finance recommendations of the PAC were
not accepted.
The CBDT classifies
interest on refunds of excess tax as reduction in revenue. However successive
CAG’s audit reports have commented on
this incorrect practice and observed that the department has failed to take any
corrective action.
(Source :
Times of India dated 20 December 2017)
2. Technology
16.
Indians consuming over 20x more data than three years ago: IT Minister
It’s no doubt that Reliance
Jio’s entry has changed the internet habits of Indians in a significant way,
and the country is already consuming the highest amount of mobile data. On that
note, Union Electronics and Information Technology Minister Ravi Shankar Prasad
told Lok Sabha that the average data usage per subscriber has grown
exponentially over the last three years.
Significant growth of
India’s subscriber base combined with affordable 4G and 3G data packs and
affordable smartphones have contributed to the massive data consumption habits
among Indians. According to Prasad, Indians were consuming 70MB on an average
in June 2014 and it spiked to a whopping 1.6GB in September 2017.
As a result of this, the
minister noted that a significant growth is recorded in the adoption of digital
payments and electronic delivery of services. The number of e-transactions, as
per e-Taal (Electronic Transaction Aggregation and Analysis Layer) portal, grew
from 241 crore in 2013 to more than 3,013 crore e-transactions in 2017.
“The number of digital
payment transactions per month has increased from 60.7 crore in December 2015
to 153 crore in October 2017,” he noted in his reply to Lok Sabha, PTI
reported.
The rural areas in India
have also benefitted from this growth. The Common Services Centres or CSCs
bring digital services to various corners of India. Out of 2.71 lakh CSCs that
are active across the country, 1.73 lakh are at Gram Panchayat level, the
report added.
Finally, Prasad also
mentioned that the total internet subscriber base increased from 259.14 million
in June 2014 to 429.23 million in September 2017, which includes users in rural
areas as well. Based on TRAI data, the total wireless subscriber base reached
to 1.18 billion, and 498.28 million of those users are from rural India.
(Source: International Business Times dated
4.1.2018)
17.
Where does Google stand on net neutrality front after blocking YouTube
on Amazon devices?
Google blocks YouTube
access on Amazon devices, and the consumers stand to lose the most.
Google and Amazon are among
the world’s biggest tech companies, but things don’t seem particulary right
between the two tech-giants at the moment. The latest feud in Silicon Valley
became more obvious and public on December 5 when Google said that it would
block its popular video-streaming app YouTube from two Amazon streaming
devices, criticising Amazon for not selling Google’s products on its platform.
Google said that it will no
longer offer YouTube app support on Amazon’s screen-based Echo Show smart
speaker and Amazon Fire TV in response to Amazon’s reluctance to sell Google’s
products.
In its statement Google
said: “We’ve been trying to reach agreement with Amazon to give consumers
access to each other’s products and services. But Amazon doesn’t carry Google
products like Chromecast and Google Home, doesn’t make its Prime Video
available for Google Cast users, and last month stopped selling some of Nest’s
latest products.”
“Given this lack of
reciprocity, we are no longer supporting YouTube on Echo Show and FireTV. We hope
we can reach an agreement to resolve these issues soon,” the world’s
largest internet search titan added.
Meanwhile, Amazon had
previously stopped selling many of Google’s hardware products on its e-commerce
platform and since 2015 Amazon has refused to sell Google’s Chromecast video
and audio-streaming dongles.
Amazon seems to refrain
from selling Google products that compete directly with its own, such as Amazon
Echo range (which compete with Google Home) and Fire TV (which compete with
Google’s Chromecast).
Both Google and Amazon
compete with each other in many areas including cloud computing and selling
voice-controlled smart speakers like the Google Home and Amazon Echo Show. But
both companies are also advocates of net neutrality. Google’s decision to block
YouTube access might be completely based on a business and more importantly a
“product” perspective, but it does raise questions about its position
in the net neutrality debate.
In September this year,
Google removed YouTube access from the new Echo Show for “violating terms
of service.” Google had said that Amazon’s implementation of YouTube
blocked what Google considered critical features. This shows that Google wants
to impose its own rules on how YouTube is rendered on Amazon’s devices, but
that doesn’t seem to imply that Google is seeking control. However, by
selectively blocking customer access to open a website, it does bring in net
neutrality into the picture.
Amazon said in a statement:
“Echo Show and Fire TV now display a standard web view of YouTube.com and
point customers directly to YouTube’s existing website. Google is setting a
disappointing precedent by selectively blocking customer access to an open
website. We hope to resolve this with Google as soon as possible.”
Meanwhile, Google clearly
states that it supports net-neutrality in one of its “Take Action”
blog posts.
“Internet companies,
innovative startups, and millions of internet users depend on these
common-sense protections that prevent blocking or throttling of internet
traffic, segmenting the internet into paid fast lanes and slow lanes and other
discriminatory practices,” a blog post by the company reads.
“Thanks in part to net
neutrality, the open internet has grown to become an unrivaled source of
choice, competition, innovation, free expression and opportunity. And it should
stay that way.”
(Source:
International Business Times dated 4.1.2018)
3. Science
18. Lava tubes near moon’s north pole
with hidden tunnels may provide access to water. NASA scientists discover small pits near the lunar north pole that could provide
access to the underground network of lava tubes.
A new study suggests that
astronauts may be able to access water hidden under the moon’s surface. NASA
scientists have discovered small pits near the lunar north pole and believe it
could provide passageways to a huge underground network of lava tubes that
could even provide shelter to astronauts and lead them to the water supply.
Also Read:
Scientists believe massive ice sheets on Mars could create oxygen for humans
The SETI Institute and the
Mars Institute made the announcement about the new discovery after analysing
data NASA’s Lunar Reconnaissance Orbiter (LRO). According to SETI, these pits
could help astronauts find underground water on the moon. These pits are
“sky-lit” entrances to a network leading to huge underground caves
formed millions of years ago.
The news pits were
identified on the Philolaus Crater, which is close to the lunar North Pole.
These pits appear as “small rimless depressions, typically 50 to 100 feet
across (15 to 30 meters), with completely shadowed interiors.”
“The highest
resolution images available for Philolaus Crater do not allow the pits to be
identified as lava tube skylights with 100 percent certainty, but we are
looking at good candidates considering simultaneously their size, shape,
lighting conditions and geologic setting” said Dr Pascal Lee, planetary
scientist at the SETI Institute and the Mars Institute.
The pits are located along
lunar sinuous rilles, which are believed to be lava tubes that were once
underground tunnels filled with streams of flowing lava.
Earlier, researchers had
discovered 200 pits on the moon with several identified as skylights, but the
recent discovery is the first published report of possible lava tube skylights
near the lunar north pole.
“Our next step should
be further exploration, to verify whether these pits are truly lava tube
skylights and if they are, whether the lava tubes actually contain ice. This is
an exciting possibility that a new generation of caving astronauts or robotic
spelunkers could help address,” Dr. Lee said.
“Exploring lava tubes
on the Moon will also prepare us for the exploration of lava tubes on Mars.
There, we will face the prospect of expanding our search for life into the
deeper underground of Mars where we might find environments that are warmer,
wetter, and more sheltered than at the surface.”
“This discovery is
exciting and timely as we prepare to return to the Moon with humans” Bill
Diamond, president and CEO of the SETI Institute, said in a statement. “It
also reminds us that our exploration of planetary worlds is not limited to
their surface, and must extend into their mysterious interiors.”
(Source:
International Business Times dated 16.1.2018) _
Ethics and You
Section 132 of the Companies Act, 2013 – NFRA provisions
Arjun
(A) — (talking on phone to some CA friend).
Oh! So you mean to say, all power’s of our Institute for disciplinary
matters have gone away? That means, it will be handled by Government officials?
(waits for response from that friend).
Baap re! Mar gaye! We are already tired of facing the revenue
authorities ………… (again a response from the other person)
Oh My God! You also don’t know much? Don’t worry. I will understand from Bhagwan Shrikrishna
right now! HE is here.
Shrikrishna
(S) — Cool down, Arjun. Don’t get hyper. You are a professional.
A — As usual, Bhagwan,
You came at the right time! I thought of You and You arrived.
S — You are my most favourite
friend and devotee! What are you worried about?
A — I don’t understand these new
NFRA rules. I feel like closing down the practice.
S — So much panic? And that too
without understanding the so called new Rules! It is unbecoming of a
professional.
A — What else can we do? My
friend says – now our misconduct cases will be handled by NFRA. Our Institute
has lost control over disciplinary cases!
S — NFRA?
A — Yeah! That National
Financial Reporting Authority! The name NFRA sounds like Nafrat!
S — Oh, you are talking about
Section 132 of Companies Act! Have your read it?
A — No! Who has time to read
such things? Here, we are simply fire-fighting with compliances and scrutiny
hearings!
S — Then do read it. Most of
your fear will go away.
A — How do you say so? Somebody
told me that at present, our Council Members in the Disciplinary Committee
understand the practical difficulties of our profession. We don’t know what
these Government guys will do! They will simply harass us; and I don’t know
what they will expect!
S — But why don’t you think of
not committing any misconduct in the first place? Prevention is better than
cure.
A — I agree. But you are aware
how our CAs are unnecessarily dragged into the disciplinary cases. There are
disputes between two parties and CAs are made scapegoats.
S — That I know. But do you know
the new Rules? How is ‘misconduct’ defined in those rules?
A — No. I am totally in the dark.
S — My dear Arjun, there is no
change in the definition of ‘misconduct’. It is the same thing as before. Same
two schedules. No changes at all. Only the jurisdiction has changed.
A — So all these small items of
misconduct will be seen by NFRA?
S — Yes. But not in all cases.
A — What do you mean?.
S — Relax Arjun. NFRA will deal
with only large firms. For small and medium firms like yours, the jurisdiction
is still with your Institute.
A — What do you mean by large
firms?
S — Large means those firms who
are auditing more than 200 companies; or more that 20 listed companies, or
those who are auditing the companies listed abroad.
A — Oh! I won’t have such big audits in this birth.
Next birth, I will surely not be a CA! Please help me in my next birth; and
keep me away from this profession.
.S — Don’t be so negative and
skeptical. You need to do the profession properly.
A — Anyway! Good news is that an
average CA will not have to face NFRA. Right? What relief to all small and
medium firms like ours! Lord, you are very kind!
S — But do read and understand
what is NFRA about.
A — Leave it. Bhagwan,
for the time being, explain it to me next time we meet. Now I have to complete
VAT audits and understand the Union Budget.
S — I know all of you CAs! You
will study it only when it pinches you. You will be sleeping until a thing
starts biting you! That always keeps you
under some fear or the other. Learn to update your knowledge constantly. Not by
merely managing your CPE hours.
A — I agree. Our BCAS motto is ‘Na
bhayam Chaasti Jaagratah’. He who is awake and alert has nothing to be
afraid of! Next time, please tell me about NFRA in more detail.
S — Sure, dear.
A — Bhagwan, Pranaam to
you!
!!OM Shanti!!
Note: The above dialogue discusses about the proposed NFRA
provisions (section 132 of the Companies Act, 2013) and gives a glimpse on its
applicability. _
Corporate Law Corner
13.
Jotun India Private Limited vs. PSL Limited
Company Application N. 572 of 2017 [Bom HC]
Date of Order: 5th January, 2018
Insolvency and Bankruptcy Code, 2016 – NCLT
continues to retain its jurisdiction for petition filed by any creditor even
where the winding-up petition has already been admitted by the jurisdictional
High Court.
FACTS
On 10.03.2015, J Co supplied goods to P Co
worth Rs. 7.25 crores. Upon failure of P Co to pay the stipulated amount, it
filed a company petition under sections 433 and 435 of the Companies Act, 1956
seeking winding up of P Co.
On 19.06.2015, J Co filed a petition with
Board of Industrial and Financial Reconstruction (“BIFR”) under Sick Industrial
Companies (Special Provisions) Act, 1985 (“SICA”) which was admitted on
09.03.2017 although Official Liquidator was not appointed.
Insolvency and Bankruptcy Code, 2016 (“IBC”)
was enacted which resulted in repeal of SICA and all matters pending before
BIFR stood abated. However, companies were granted a window of 180 days to file
fresh applications before National Company Law Tribunal (“NCLT”) under the IBC
regime. Thus, on 29.05.2017, J Co filed an application before the NCLT within
the 180 day period granted under the IBC.
Subsequently, P Co filed an application
before the Hon’ble Bombay High Court for appointment of provisional liquidator.
An order was passed by the High Court on 19.07.2017, restraining the NCLT from
continuing with the application filed before it. Present application was filed by J Co
requesting the High Court to recall the order dated 19.07.2017 which imposed a
stay on the IBC proceedings.
Parties and Intervenors made extensive
arguments before the High Court.
HELD
The matter which arose before the High Court
was whether it had the jurisdiction to grant a stay on the proceedings filed by
a Corporate Debtor before the NCLT, although a previously instituted
Company Petition had been admitted, but
where a Provisional Liquidator had not been appointed.
The High Court observed that the most
fundamental distinction between the provisions of Companies Act and IBC is that
winding up of companies is for the Court to decide and under IBC there is a
paradigm shift in as much as it displaces the management and Insolvency
Resolution Professional is appointed and Creditors committee is left to decide
the fate of the company.
High Court placed reliance on the Supreme
Court in the case of Madura Coats Limited [2016] 7 SCC 603 where it was held
that even during the regime of SICA, SICA was to have primacy over the
provisions of Companies Act, 1956. It was held that since SICA is repealed and
replaced by IBC, the provisions of IBC should prevail over the provisions of
the Companies Act, 2013.
J Co had filed a reference which was pending
before the BIFR when SICA was not repealed.
It had also made an application to NCLT within the stipulated period of
180 days. Further, placing reliance on Supreme Court’s decision in the case of
Bank of New York Mellon [2017] 5 SCC 1, it was held that in terms of section
252 of the IBC even in the case of a company where a winding up order has been
passed, it is open to such a company, whose reference was deemed to be pending
with BIFR, to seek remedies under IBC before NCLT. Also, there was no express
provision under Companies Act which stated that a post notice winding up
petition which is governed by the Companies Act, 1956 against the same company
(and which is retained by the Company Court), cannot be entertained by NCLT and
if entertained will be nullified.
It was held that admission of the winding up
petition by the jurisdictional High Court would not mean that NCLT either loses
jurisdiction or cannot exercise jurisdiction in case of a petition which is
filed by another creditor. It was observed that provisions of section 64(2) of
IBC indicated that the legislature did not intend that the Company Court would
have the power to injunct proceedings before NCLT.
High Court held that a new petition filed
under the IBC could still apply to the post notice winding up cases that
continue to be governed by the Companies Act, 1956. The mere fact that post
notice winding up proceedings are to be “dealt with” in accordance with the
provisions of the Companies Act, 1956 does not bar the applicability of the
provisions of IBC in general to proceedings validly instituted under IBC, nor
does it mean that such proceeding can be suspended.
The High Court went on to state that NCLT is
not a court subordinate to the High Court and hence as prohibited by the
provisions of section 41 (b) of the Specific Relief Act, 1963 no injunction
could be granted by the High Court against a corporate debtor from institution
of proceedings in NCLT.
Reading section 141 of the Code of Civil
Procedure, 1908, along with Rule 9 of the Companies (Court) Rules, 1959 it was
held that High Court had sufficient power to recall any order previously passed
by it.
The order dated 19.07.2017 was thus recalled
by the High Court.
14.
Ind-Swift Ltd., In re
[2018] 89 taxmann.com 149 (NCLT-Chd)
Date of Order: 8th December, 2017
Section 73 of Companies Act, 2013 – Company
facing liquidity problems approached NCLT for extension of time in repaying its
fixed deposits – Extension was denied in view of the fact that Company Law
Board had already granted a huge extension in 2013 – There was no reason to
grant any further extension.
FACTS
I Co was incorporated on 06.06.1986 and was
listed on the stock exchange. I Co had been accepting deposits from the public
since the year 2002 and regularly and punctually paid back the fixed deposits
up to 28.02.2013. In the financial year ending on 31.03.2013, it started facing
liquidity problems and incurred losses. It filed a petition before the Company
Law Board (“the Board”) pleading for extension of time in repayment of deposits
which was sanctioned by the Board on 30.09.2013 with certain directions. It was
also clarified that non-compliance with order of the Board would result in
penalty u/s. 58A (10) and section 274 (1) (g) of Companies Act, 1956 (“1956
Act”).
As a result of ongoing financial and
liquidity crunch, I Co filed a fresh application with the NCLT on 27.09.2016
seeking further extension of time for repayment of deposits u/s. 74 of the
Companies Act, 2013 (“2013 Act”) read with Rule 11, 15 and 73 of the National
Company Law Tribunal Rules, 2016 read with section 58AA of 1956 Act.
I Co was directed to publish notice of the
hearing by advertisement in two newspapers which was duly complied by it. I Co
pointed out that out of the total number of 5575 depositors, the company
received 45 objections seeking speedy payment of their deposits. Registrar Of
Companies (“ROC”) jointly with Regional Director filed a statement before the
NCLT that it regularly received complaints against the company for repayment of
fixed deposits, all of which were forwarded to the company for necessary
action.
HELD
I Co filed a fresh scheme of repayment
detailing the manner in which payments would be made to the deposit holders.
The Tribunal noted that I Co had not made any payment to the fixed deposit
holders since the institution of the application.
Tribunal held that once the company had
sought the sanction of the scheme from the Board by bringing its financial
position to its notice at the relevant time in the year 2013 and got the relief
of huge extension, there was no reason to accept the plea for further extension.
Tribunal noted that it in coming to a decision of whether or not to grant an
extension it would not only have to consider the financial position of the
company but also safeguard the interest of the fixed deposit holders. The
legislature had laid down severe punishment in case of failure by the company
to make the payments to the deposit holders within the extended time and this
provision will have to be implemented in letter and spirit.
In view of the extension already granted by
the Board and lack of sincere efforts on part of I Co to repay the deposits,
Tribunal rejected the application seeking further grant of extension in
repayment of fixed deposits. I Co was directed to abide by the terms of order
of the Board and any non-compliance would entail penalties as listed out in the
2013 Act.
15.
Sree Gayathri Leisure India (P.) Ltd. vs. ROC
[2018] 89 taxmann.com 34 (NCLT – Hyd.)
Date of Order: 29th December, 2017
Section 252 of Companies Act, 2013 –
Company was carrying out regular business and there was a delay in filing
statutory returns – Name of company which was struck-off for the non-filing was
ordered to be restored upon payment of additional fees.
FACTS
S Co was a private company incorporated on
29.04.2013 in the state of Andhra Pradesh. The main objects of the Company were
to act as commission agent for referring and enrolling members into any
resorts, clubs, hotels, family parks and other related activities etc. S
Co did not file annual accounts and annual returns for the Financial Years 2013-2014
to 2015-2016. It was the claim of S Co that it had been carrying out normal
business activities in the said period and the non-filing was wholly
inadvertent. ROC vide notice dated 21.07.2017 read with grounds mentioned in
public notice dated 05.05.2017 struck off the name of S Co.
S Co contended that company had been
regularly carrying out its business and was under the impression that all the
returns are being regularly filed. While filing of pending return on MCA portal
for pending period did the company realise that its name has been struck off.
It was pleaded that action of striking off of the Company would adversely
affect not only the company but its customers and various stake holders etc
alike. S Co submitted that it was ready to comply by filing annual returns in
question within the stipulated time as granted by the Tribunal, along with
required fees.
HELD
Tribunal examined the provisions of section
248 to 252 of the Companies Act, 2013 which deal with striking off the name of
the company. It was observed that before taking final action to strike off a
company u/s. 248(5), the ROC, is under duty to follow section 248, which
mandates the ROC to satisfy itself that sufficient provisions have been made
for realization of all amounts due to the company and for payment or discharge
of its liabilities and obligations etc. In the case of S Co, company had
ongoing business and there were people who depended on the company.
Considering the interest of company, its
employees and public employment, the Tribunal allowed the application of S Co
and directed the Registrar to restore its name in the Register of Companies
subject to filing of all the pending returns and payment of prescribed
additional fees. The Tribunal also imposed a cost of Rs. 30,000. _
Allied Laws
21. Condonation of Delay – Delay of 3671 days – No reason to decline
benefit merely due to delay in filing of appeal when in similar cases benefit
was derived by similar concerns [Land Acquisition Act, 1894; Sections 4, 5, 18,
54]
K.
Subbarayudu and Ors. vs. The Special Deputy Collector (Land Acquisition) (2017)
12 Supreme Court Cases 840
The issue was
whether the lower authority could decline the benefit available to the
appellant only due to the reason of delay of 3,671 days in filing an appeal.
It was observed
by the Court that, when the concerned court has exercised its discretion either
condoning or declining to condone the delay, normally the superior court will
not interfere in exercise of such discretion. The true guide is whether the
litigant has acted with due diligence. Since the Appellants/claimants are the
agriculturists whose lands were acquired and when similarly situated
agriculturists were given a higher rate of compensation, there is no reason to
decline the same to the Appellants. Merely on the ground of delay, such benefit
cannot be denied to the Appellants. Accordingly, the delay was condoned.
22. Family Settlement Limitation – Suit challenging the deed of family
settlement after period of 9 years of deed of family settlement was held to be
barred by limitation. [Limitation Act (36 of 1963, Art. 157)]
Jose
Floriano Cristovam Pinto and Ors. vs. Michelle N. Pinto Souza and Ors. AIR 2017
BOMBAY 263
One of the
issues to be decided was whether a suit filed for repudiation of the deed of
family settlement after a gap of 9 years be allowed?
It was held
that there was substantial delay and laches on part of Respondents to
approach Court in seeking the repudiation of the Deed of Family Settlement of
2005 in a suit of 2014 and on that premise, could not have secured the
plaintiffs with the relief of injunction and also that the appellants could
well have disposed off other properties between this period of filing the suit
and the deed of settlement and in that context of apathy and inaction of the
plaintiffs did not entitle them to the relief of injunction, hence deed of
family arrangement cannot be held to be invalid.
23. Interpretation – Deed and documents – The terms of the contract will
have to be understood in the way the parties wanted and intended them to be.
[Arbitration and Conciliation Act, 1996, Section 34]
Bharat
Aluminium Company vs. Kaiser Aluminium Technical Services Inc. (2016) 4 Supreme
Court Cases 126
The only issue
was whether the parties, by agreement, express or implied, have excluded wholly
or partly, Part I of the Arbitration Act, where Art. 17 mentions that English
law would be applicable and Art. 20 mentions that Indian Law would be
applicable.
In the facts of
the present case, disputes arose out of an agreement which was executed. The
same were referred to arbitration in England where the arbitral Tribunal made
two awards in favour of the Respondent. The Appellant filed applications, u/s.
34 of the Arbitration Act before the District Judge, Bilaspur, which were
dismissed. Aggrieved, the Appellant filed appeal before the High Court of
Chhattisgarh. The High Court dismissed the appeal.
It was observed
by the Supreme Court that the parties have agreed in expressed terms that the
law of arbitration would be English Arbitration Law. In the case before us,
being a contract executed between the two parties, the court cannot adopt an
approach for interpreting a statute. The terms of the contract will have to be
understood in the way the parties wanted and intended them to be. In that
context, particularly in agreements of arbitration, where party autonomy is the
grundnorm, how the parties worked out the agreement, is one of the
indicators to decipher the intention, apart from the plain or grammatical
meaning of the expressions and the use of the expressions at the proper places
in the agreement. Contextually, it may be noted that in the present case, the
Respondent had invoked the provisions of English law for the purpose of the
initiation of the unsettled disputes. In view of the above, the Supreme Court
held that the arbitration agreement was not governed by the Indian Law.
24. Jurisdiction – on jurisdiction is mandatory – At any stage of the
proceeding, issue of jurisdiction which goes to the root of the matter has to
be tried once it is brought to the notice of the court– Remanded. [CODE OF
CIVIL PROCEDURE, 1908; ORDER I, RULE 8]
S.N.D.P.
Sakhayogam vs. Kerala Atmavidya Sangham (2017) 8 Supreme Court Cases 830
One of the
issues were whether the Plaintiff, who is a juristic person, i.e.,
“Society” is entitled to invoke the provisions of Order 1 Rule 8 of
the Code for filing a suit in a “representative capacity” i.e.
whether the Lower authority had the jurisdiction to try such a suit.
The facts of
the present case deal with the fact that the Plaintiff treated their suit to be
in the nature of a “representative suit” within the meaning of Order
1 Rule 8 and, therefore, applied to the Trial Court under Rule 8 of the Code
seeking permission to prosecute the suit in the representative capacity. This
permission appears to have been granted to the Plaintiff by the Trial Court
without any objection from the side of the Defendants and, therefore, Issue No.
1 was answered in Plaintiff’s favour.
The Court held
that the Trial Court was expected to decide several material questions, namely,
whether the Plaintiff, who is a juristic person, i.e., “Society” is
entitled to invoke the provisions of Order 1 Rule 8 of the Code for filing a
suit in a “representative capacity”. In other words, the Trial Court
should have examined the question as to whether the expression
“person” occurring in Rule 8 also includes “juristic
person”. Secondly, if the Plaintiff is held entitled to file such suit,
whether the facts pleaded and the reliefs claimed in the plaint can be said to
be in the nature of representative character so as to satisfy the ingredients
of Order 1 Rule 8 of the Code which are meant essentially for the benefit of public
at large for grant of any relief and lastly, if the facts pleaded and the
reliefs claimed in the plaint do not satisfy the requirements of Order 1 Rule 8
of the Code for grant of relief to the public at large then whether such suit
is capable of being tried as a regular suit on behalf of the Plaintiff for
granting reliefs in their personal capacity, because the suit relates to
ownership of land, namely, who is the owner of the suit land. Since there was
neither any discussion much less finding on any of the aforesaid issues by any
of the Courts below, though these questions directly and substantially arose in
the case, we are of the considered opinion that it would be just and proper and
in the interest of justice to remand the case to the Trial Court to answer
these issues and then decide the suit depending upon the answer in accordance
with law.
The Hon’ble
Court observed that the issue of jurisdiction which goes to the root of the
case if found involved has to be tried at any stage if the proceedings once
brought to the notice of the Court.
25. Nominee – Not entitled to withdraw from bank especially when dispute
raised by another legal heir [Banking Regulation Act, 1949, Section 45ZA]
Vishwanath
Yadav and Ors. vs. Kashinath Yadav and Ors. AIR 2017 BOMBAY 258
The questions
for consideration was whether a nominee can recover the amounts from the Bank
on behalf of all the legal representatives when the legal representatives
themselves have put up a claim to recover such amount from the concerned Bank and
whether such amounts can be claimed only after the Inventory Proceedings are
initiated.
It was observed
by the Court that it is clear that whenever a depositor appoints his nominee
and the depositor dies before the maturity of the fixed deposit for release,
the nominee so appointed would certainly be entitled to collect the amount
payable on such fixed deposit amount on its maturity for release. However, that
would not take away the right of the legal heirs of the deceased depositor from
claiming right to the amount standing to the credit of the deceased depositor
in accordance with the provisions of law of succession in force. This is so
because a nominee is merely a representative of the lawful successor of the
deceased depositor to receive the payment on the maturity of the deposit for
release. The nominee does not step in the shoes of the legal heirs merely on
account of nomination by a depositor.
made, it was held that merely relying upon section 45ZA of the Banking Regulations
Act, it cannot be contended that he is entitled to withdraw the amounts
specially when the Appellants have raised a dispute in the present case. It was
also held, taking into account the second issue, that the amounts can be
withdrawn only after Inventory Proceedings.
Corporate Law Corner
16.
Vivek Vijay Gupta vs. Steel Konnect (India) (P.) Ltd.
[2018] 90 taxmann.com 78 (NCLT – Ahd.)
Date of Order: 15th January, 2018
Section 31 read with section 30 and 25 of
the Insolvency and Bankruptcy Code, 2016 – NCLT does not have any power or
authority to interfere with the decision of committee of creditors in rejecting
a resolution plan submitted for its consideration.
FACTS
Financial Creditor instituted Insolvency
proceedings against S Co u/s. 7 of the Insolvency and Bankruptcy Code, 2016
(“the Code”). The appeals filed by SCo were dismissed by the National Company
Law Tribunal (“NCLT”) and subsequently by the Supreme Court. Resolution
Professional (“IRP”) was appointed and a valuation report was finalised by him
on 10.11.2017 which pegged the value of S Co at Rs. 39 crore. Promoters of S Co
submitted a resolution plan for Rs. 85 crore on 25.11.2017. In view of the
Ordinance passed by the Central Government amending section 29 of the Code, the
resolution plan submitted by the Promoters was rejected as they were not
eligible to submit a resolution plan and the Committee of Creditors (“COC”) did
not accept the same. Pursuant to an advertisement filed by the IRP an Asset
Reconstruction Company (“ARC”) filed a resolution plan for Rs. 93.42 crore
which was also rejected by the IRP. ARC filed a modified plan which was placed
before the COC and the same was also rejected by the COC.
Present application was filed by the
Promoter / Director of S Co alleging that the plan submitted by the ARC was in
compliance with the provisions of the Code and that COC had simply rejected the
plan with a remark that the same was not in compliance with the Code without
assigning any reasons even though the plan was in the interest of S Co and its
stakeholders. It was prayed that NCLT should intervene and overturn the
decision of COC which rejected the resolution plan.
HELD
NCLT observed that it has two fold powers
granted to it u/s. 31 of the Code, namely:
(i) accept the plan which is
approved by the COC; or
(ii) reject the plan which
though approved by the COC does not meet the requirements of the Code.
In case if no resolution plan is placed before
NCLT before the expiry of the Insolvency Resolution Process period or the
extended period, then NCLT is bound to pass an order for liquidation. Section
33(1)(b) of the Code gives authority to the NCLT to order liquidation in case
it rejects the resolution plan u/s. 31(2) for non-compliance of the
requirements specified therein. Therefore, even at the stage of ordering
liquidation, NCLT has no authority to consider a resolution plan that was
rejected by the COC.
It was observed that NCLT does not have any
power to sit over the judgment on resolution of COC in the rejecting the
resolution plan. The Tribunal held that it had no power to or authority to
interfere with the decision of the COC in rejecting the resolution plan.
When the information is there before the COC
regarding the non-compliance of the requirements of the Code and Regulations,
COC is perfectly justified in rejecting the resolution plan. It was held that
there were no facts and circumstances that warrant interference by NCLT in the
rejection of the resolution plan.
The IRP, in carrying out its duties,
submitted the plan which it received from the ARC before the COC. It also
brought out the fact that the same was not in accordance with the provisions
contained in the Code. The NCLT further observed that in light of the fact
pattern of this case, there was no lapse on part of the IRP in carrying out its
duties enumerated under the Code.
There was a contention raised that the
Promoters and directors of S Co (who filed the application) are persons
aggrieved or not. Since the resolution plan was in the interest of S Co and its
stakeholders, it could be said that its promoters and directors were also
aggrieved persons. However, NCLT observed that although promoters and directors
were invited to be a part of the meeting of COC they did not choose to attend
the same. Without demonstrating how the plan was beneficial to S Co and its
stakeholders it could not be held that the Promoters / directors were aggrieved
persons.
The NCLT, thus rejected the application
filed before it.
17. Bengal Chemists and Druggists Association
vs. Kalyan Chowdhury
[2018] 90 taxmann.com 112 (SC)
Date of Order: 02nd February, 2018
Section 421 read with section 433 of the
Companies Act, 2013 – Proviso to section 421(3) is peremptory in nature – Any
appeal filed after the period specified therein becomes time barred – Delay
cannot then be condoned by resorting to the provisions of Limitation Act, 1963.
FACTS
B Co being aggrieved by an order passed by
National Company Law Tribunal filed an appeal before the National Company Law
Appellate Tribunal (“NCLAT”). NCLAT dismissed the appeal on the grounds that
the same was filed 9 days after the expiry of period of limitation of 45 days
as well as further period of another 45 days. NCLAT held that the appeals were
not maintainable in lines with section 421(3) of the Companies Act, 2013 (“the
Act”).
B Co filed an application before the Supreme
Court against the order of NCLAT dismissing the appeal.
It was argued before the Supreme Court that
section 421(3) of the Act does not contain the language of section 34(3)
proviso of the Arbitration Act, 1996 which contains the words “but not
thereafter”. It was further argued that in terms of section 433 of the Act,
provisions of the Limitation Act, 1963 shall, as far as may be, apply to
Appeals before the Appellate Tribunal. Section 5 would therefore be applicable
to condone the delay beyond the period of 90 days.
HELD
The Supreme Court considered the provisions
of sections 421 and 433 of the Act. It observed that a cursory reading of
section 421(3) made it clear that the proviso provides a period of limitation
different from that provided in the Limitation Act, and also provides a further
period not exceeding 45 days only if it is satisfied that the appellant was
prevented by sufficient cause from filing the appeal within that period.
It was observed that section 433 cannot
apply because the provisions of the Limitation Act only apply “as far as may
be”. There is a special provision contained in proviso to section 421(3) and as
a corollary, section 5 of the Limitation Act cannot apply.
The Supreme
Court held that 45 days is the period of limitation, and a further period not
exceeding 45 days is provided only if sufficient cause is made out for filing
the appeal within the extended period. If the Court was to accept the argument
put forth by the Applicant, it would mean that notwithstanding that the further
period of 45 days had elapsed, the NCLAT may, if the facts so warrant, condone
the delay. This would be to render otiose the second time limit of 45 days,
which is peremptory in nature.
In coming to this conclusion, the Supreme
Court relied on its own decision in the case of Chhattisgarh SEB vs. Central
Electricity Regulatory Commission, 2010 (5) SCC 23. The Supreme Court also
distinguished the decisions which were relied upon by the counsel for B Co.
The appeal filed by B Co was thus dismissed
by the Supreme Court.
18. Prem Prakash Sethi vs. Union of India
[2018] 89 taxmann.com 234 (Delhi)
Date of Order: 10th January, 2018
Section 252 of Companies Act, 2013 read
with Condonation of Delays Scheme, 2018 – Name of company was struck-off from
the Register of Companies owing to non-compliances – Petition filed u/s. 252 was still pending before the NCLT – Directors of the
company could avail the benefit of Condonation of Delays Scheme, 2018
FACTS
S Co was in an active business and it
defaulted in making certain statutory compliances under Companies Act, 2013
(“the Act”) and requisite returns were not filed by them. Registrar of
Companies (“ROC”) believed that directors of S Co were disqualified u/s.
164(2)(a) of the Act and that S Co was disqualified u/s. 248(1) of the Act.
ROC
therefore, issued a show cause notice in March 2017 requiring S Co to show
cause as to why it was not liable to be removed from the Register of Companies.
S Co failed to respond to this notice, resulting in passing of an order of
removal of the company from the Register of Companies. S Co then invoked remedy
available u/s. 252(3) of the Act by filing a petition with the National Company
Law Tribunal (“NCLT”) praying for revival of
the company.
Director of S Co filed the present writ
petition before the High Court expressing that it was desirous of availing the
Condonation of Delays Scheme, 2018 (“CODS-2018”) but was unable to do so
because name of S Co had been struck off from the Register of Companies. It was
prayed before the High Court that they be permitted to avail the benefit of
CODS-2018, subject to the outcome of the proceedings initiated u/s. 252 of the
Act.
S Co also conceded that non-filing of
returns was a bonafide mistake on part of the company and it was stated that it
was ready to submit all the relevant documents which were required by the ROC.
HELD
The High
Court observed that S Co deserves to be fairly given an opportunity to avail
the benefit of CODS-2018 given that order striking off its name from the
Register of Companies was itself pending consideration before the NCLT.
The High Court therefore, directed S Co to
file all the requisite returns in relation to the company and submit necessary
application along with requisite charges to the ROC in order to enable it to
avail the benefits provided under the CODS-2018.
The High Court also directed NCLT to dispose
the application expeditiously given that benefit under CODS-2018 is available
only up to 31.03.2018. In the event the NCLT is unable to dispose of the appeal
within the time as requested for the reasons that are not attributable to S Co,
it was directed that the ROC shall ensure that the Scheme under CODS-2018 is
extended in respect of the directors of S Co.
The High Court held that directors of S Co
would not be deprived of the opportunity to avail the CODS-2018 only on account
of pendency of the petition before NCLT.
It was also clarified that if directors of S
Co did not avail of the CODS-2018 or file necessary documents then, in addition
to other consequences, they would also be liable for prosecution for Contempt
of Court.
Petition filed by S Co was thus allowed.
19.
Real time Interactive Media Pvt. Ltd. vs. Metro Mumbai Infradeveloper Pvt. Ltd.
[2018] 90 taxmann.com 89 (Bombay)
Date of Order: 12th January, 2018
Section 271 read with section 248 of
Companies Act, 2013 – High Court has the power to order winding up of company
although its name has been struck off from the Register of Companies.
FACTS
R Co was engaged in the business of
publishing and managing advertisements on BEST TV LED screens in the BEST buses
(BEST TV) running in Mumbai. R Co was the sole agent of BEST in respect of
airing such advertisements on BEST TV. M Co engaged R Co for displaying
advertisements on BEST TV in 1300 Non AC buses and 250 AC buses for a period of
3 months from 07.10.2011 till 07.01.2012 for a consideration of Rs. 15 lakhs
plus taxes. In terms of the agreement, R Co aired those advertisements and
raised invoices of Rs. 5,16,665 in respect of each of the months for which the
service was provided. Invoices raised also mentioned that interest would be
charged if the same were not paid on or before the due date.
M Co paid in installments a total amount of
Rs. 5 lakhs and as on 16th April, 2012 after adjusting this Rs. 5
lakhs from the total invoice of Rs. 15,49,995 there was a balance outstanding
of Rs. 10,49,995. As no payments came forth, R Co issued a statutory notice
dated 27.05.2014 to M Co. M Co did not file any reply to the statutory notice
issued to it.
R Co urged before the Court that the
registered address shown in the Company Master Data is the same address to
which notice under Rule 28 of the Companies Court (Rules), 1959 (“the Rules”)
has been sent and that is the same address which reflected even in the cause
title to which statutory notice was also sent. As on date, recent MCA website
extract indicates the status of M Co as “Strike Off”.
The Court was approached to decide whether
winding up proceedings can be initiated against a company which has been struck
off the Register of Companies.
HELD
The High Court observed that in light of the
facts it was possible to hold that the statutory notice was duly served as
required under Rule 28 of the Rules.
The High Court after examining the
provisions of section 248 of Companies Act, 2013 (“the Act”) observed that
there was nothing in section 248 which shall affect the power of the Court to
wind up a company the name of which has been struck off from the register of
companies. The effect of company notified as dissolved was that the company
shall on and from the date mentioned in the notice u/s. 248(5) of the Act cease
to operate as a company and the Certificate of Incorporation issued to it shall
be deemed to have been cancelled from such date except for the purpose of
realising the amount due to the company and for the payment or discharge of the
liabilities or obligations of the company.
The High Court held that just because the
name of the company was struck off the register u/s. 248 of the Act, the same
will not come in the way of the Court to pass an order of winding up of
company.
It was further observed that M Co neither
filed any affidavit opposing the petition nor did it reply to the statutory notice
that was duly served. The High Court had the power to order winding up on the
presumption of inability to pay the amounts claimed and not denied. The High
Court held that where no response has been made to the statutory notice, the
company runs a risk of winding up petition being allowed. By virtue of section
434 of the Companies Act, 1956 a presumption of the indebtedness could be
legitimately drawn by the court where no reply to the statutory notice was
forthcoming.
The High Court thus, ordered winding up of
M Co and proceeded to appoint Official Liquidator who would take charge of the
winding up proceedings to be carried out against M Co. _
Allied Laws
[Arbitration and Conciliation Act, 1996 Section 7, 11, 37, 38]
Ansal Properties and Infrastructure Limited vs. Jhamru Chandaram and Ors. AIR 2017 RAJASTHAN 52
An application was filed before the court u/s. 11 of the Arbitration and
Conciliation Act, 1996, praying for appointment of the sole Arbitrator
to adjudicate its dispute with the respondents. Applicant signed two
MOUs. However, it was contested that the MOU had been annulled.
It was argued that an arbitral agreement within the MoU/agreement to sale, even if an unregistered document, can be used as evidence for collateral purpose as provided in proviso to section 49 of the Registration Act and is severable from the main contract.
The question which arose was whether any unstamped or insufficiently stamped agreement/MoU for sale containing clause can be acted upon.
It was held that the question as to insufficiency of stamp duty in view of section 16 of the Act should be left to be decided by the Arbitrator, cannot be countenanced and has to be rejected in view of clear law laid down by the Supreme Court in SMS Tea Estates Pvt. Ltd. which mandates that such a issue has to be decided in the application u/s. 11 of the Act itself.
27 Interrogation – Presence of Counsel – Only to avoid coercion, if any. [Customs Act, 1962, Section 108]
Sangit Agarwal vs. The Director General, Directorate of Revenue Intelligence and Ors . 2017 (356) E.L.T. 518 (Del.)
A prayer as to permit the interrogation in presence of the interrogatee’s Advocate who would sit at a visible distance not at audible range, was made by the petitioner.
It was observed that a lawyer has no role to play whatsoever during the interrogation, except to be at a distance beyond hearing range to ensure that no coercive methods were used during the interrogation.
It was accordingly directed that the petitioners’ advocate should be allowed to be present during the interrogation of the petitioners. He/they should be made to sit at a distance beyond hearing range, but within visible distance and the lawyer must be prepared to be present whenever the petitioners are called upon to attend such interrogation.
28 Power of Attorney – Intimation not given after death – Not valid to act as power of attorney. [Mines and Minerals Act, 1957 (Section 13, R.25A)]
State of Odisha vs. Government of India and Ors. AIR 2017 (NOC) 1023 (ORI.)
The question for consideration was whether the intimation of the death of the grantee was given to the State Government immediately after his death, but there was no document to support the said contention, there could be grant of additional time for fulfillment of statutory compliance, to the power of attorney holder, as the period of lease had already expired.
It was observed that Rule 25-A of the Mineral Concession Rules, 1960 provides that where an applicant for grant or renewal of mining lease dies before the order granting him mining lease, the application for grant of mining lease shall be deemed to have been made by his legal representatives. The question of the power of attorney acting on behalf of the grantee as legal representative would arise only when intimation of the death of the grantee is given to the State Government. Without such intimation having been given, it would be presumed that the power of attorney continued to act as power of attorney on behalf of a deceased person. A power of attorney can act on behalf of a living person, be it a natural person or juristic person. Once a person, who has given power of attorney, is no more there, the question of power of attorney continuing to act on behalf of such deceased person, would not arise. Had it been a case of the legal representative of the grantee having informed the State Government of the death of the grantee, and then proceeded with the matter as legal representative of the grantee, then the position would have been different. Such is not the case in hand.
In view of the above, it was held that there was no merit in the case of legal heir of the grantee for grant of additional time for fulfillment of statutory compliance.
29 Nominee – No beneficial ownership over persons entitled to inheritance [Companies Act, 1956, Section 109A]
Shakti Yezdani and Another vs. Jayanand Jayant Salgaonkar and Ors. (2017) 200 Comp case 143
(Bom) (HC)
The questions for consideration was whether a nominee of a holder of shares or securities is entitled to the beneficial ownership of such shares or securities to the exclusion of the other persons entitled to inherit the estate of the holder as per the law of succession.
It was observed by the Court that as per the consistent view taken by the Apex Court under various provisions held that the nominee does not get an absolute title to the property subject matter of the nomination. The reason is by its very nature when a share holder or a deposit holder or other, makes a nomination during his lifetime, he does not transfer his interest in favour of the nominee. It is always held that the nomination does not override the law in relation to testamentary or intestate succession. The provisions regarding nomination are made with a view to ensure that the estate or the rights of the deceased, subject matter of nomination are protected till the legal representatives of the deceased take appropriate steps. The object of the provisions of the Companies act is not to either provide a mode of succession or to deal with succession. The object of section109A is to ensure that the deceased shareholder is represented by someone.
In view of the same, it was held that the so called vesting u/s.109A does not create a third mode of succession and the nominee does not get a beneficial ownership of such shares or securities to the exclusion of the other persons entitled to inherit the estate.
30 Recovery of tax arrears – No charge on defaulter’s property – Hence no liability of the purchaser of such defaulter’s property. [Tamil Nadu Sales Tax, 1959, Section 24(2)]
Noor M. Saied vs. Commercial Tax Officer, Chennai. 2018 (9) G.S.T.L (Mad.)
A Sale was effected in a public auction, where the petitioner was a successful bidder. Admittedly, there was no charge on the property in question for the alleged sale tax arrears. At a later point in time, the respondent sent a notice to the petitioner that the sales tax arrears was to be paid by the petitioner, which was earlier payable by the Seller or the defaulter.
The issue to be decided was whether the petitioner can be proceeded against for Sales tax arrears payable by the defaulter.
It was held that, since there was no charge on the property and there was no doubt about the purchase made by the Petitioner being bonafide, hence the petitioner cannot be proceeded against for the recovery of the sales tax arrears payable by the defaulter. The court is of the firm view that the writ petition is allowed and that the impugned notice is unsustainable in law and is set aside. _
From Published Accounts
Accounting Policy and disclosures for Leases of
land and other assets as per Ind AS (year ended 31st
March 2017)
ATUL LTD.
Consolidated financial statements
Significant Accounting Policies
As a lessee
Leases in which a significant portion of the risks and
rewards of ownership are not transferred to the Company
as lessee are classified as operating leases. Payments
made under operating leases (net of any incentives
received from the lessor) are charged to profit or loss
on a straight-line basis over the period of the lease
unless the payments are structured to increase in line
with expected general inflation to compensate expected
inflationary cost increases for the lessor.
As a lessor
Lease income from operating leases where the Company
is a lessor is recognised as income on a straightline
basis over the lease term, unless the receipts are
structured to increase in line with expected general
inflation to compensate for the expected inflationary
cost increases. The respective leased assets
are included in the Balance Sheet based on
their nature. Leases of property, plant and
equipment where the Company as a lessor
has substantially transferred all the risks
and rewards are classified as finance lease.
Finance leases are capitalised at the inception
of the lease at the fair value of the leased
property or, if lower, the present value of the
minimum lease payments. The corresponding
rent receivables, net of interest income,
are included in other financial assets. Each
lease receipt is allocated between the asset
and interest income. The interest income
is recognised in the Statement of Profit and
Loss over the lease period so as to produce
a constant periodic rate of interest on the remaining balance of the asset for each period.
Under combined lease agreements, land and building
are assessed individually. Lease rental attributable to the
operating lease are charged to Statement of Profit and
Loss as lease income, whereas lease income attributable
to finance lease is recognised as finance lease receivable
and recognised on the basis of effective interest rate.
Disclosures
Operating lease
The Company has taken various residential and office
premises under operating lease or leave and licence
Agreements. These are generally cancellable, having
a term between 11 months and 3 years and have no
specific obligation for renewal. Payments are recognised
in the Statement of Profit and Loss under ‘Rent’.
Finance lease
The Company has given a building on finance lease for a
term of 30 years.
Future minimum lease payments receivable under finance
leases together with the present value of the net minimum
lease payments (MLP) are as under:
Particulars | As at March 31, 2017 | As at March 31, 2016 | As at April 1, 2015 | |||
Minimum lease payments | Present value of MLP | Minimum lease payments | Present value of MLP | Minimum lease payments | Present value of MLP | |
Not later than one year | 0.20 | 0.20 | – | – | 0.20 | 0.20 |
Later than one year and not later than five years | 0.40 | 0.34 | 0.40 | 0.35 | 0.40 | 0.33 |
Later than five
years |
2.00 | 0.84 | 2.20 | 0.94 | 2.20 | 0.88 |
Total minimum lease payments receivable | 2.60 | 1.38 | 2.60 | 1.29 | 2.80 | – |
Less: Unearned
finance Income |
1.22 | – | 1.31 | – | 1.38 | – |
Particulars | As at March 31, 2017 | As at March 31, 2016 | As at April 1, 2015 | |||
Minimum lease payments | Present value of MLP | Minimum lease payments | Present value of MLP | Minimum lease payments | Present value of MLP | |
Present value of minimum lease payments receivable | 1.38 | 1.38 | 1.29 | 1.29 | 1.42 | – |
Less: Allowance for uncollectible lease payments | – | – | – | – | – | – |
1.38 | 1.38 | 1.29 | 1.29 | 1.42 | – |
The Company has taken on lease a parcel of land from
Gujarat Industrial Development Corporation for a period
of 99 years with an option to extend the lease by another
99 years on expiry of lease at a rental that is 100% higher
than the current rental. However, the Company has no
specific obligation for renewal. The Company believes
and has considered that such a lease of land transfers
substantially all of the risks and rewards incidental to
ownership of land, and has thus accounted for the same
as finance lease.
IDEA CELLULAR LTD.
Consolidated Financial Statements
Significant Accounting Policies
Leases
The Company evaluates whether an arrangement is
(or contains) a lease based on the substance of the
arrangement at the inception of the lease. An arrangement
which is dependent on the use of a specific asset or
assets and conveys a right to use the asset or assets,
even if it is not explicitly specified in an arrangement is (or
contains) a lease.
Leases are classified as finance lease whenever the
terms of the lease transfer substantially all the risks and
rewards of ownership to the lessee. All other leases are
classified as operating leases.
Company as a lessee Finance lease
Assets held under finance leases are initially recognised
as assets at the commencement of the lease at their fair
value or, if lower, at the present value of the minimum lease
payments. Lease payments are apportioned between
finance charges and reduction of the lease liability so as to achieve a constant rate of interest on
the remaining balance of the liability. Finance
charges are recognised in the Statement
of Profit and Loss, unless they are directly
attributable to qualifying assets, in which case
they are capitalised in accordance with the
Company’s general policy on borrowing costs.
Such assets are depreciated/amortised over
the period of lease or estimated useful life
of the assets whichever is less. Contingent
rentals are recognised as expenses in the
periods in which they are incurred.
Operating lease
Operating lease payments are recognised as an expense
in the statement of profit and loss on a straight-line basis
unless payments to the lessor are structured to increase
in line with expected general inflation to compensate for
the lessor’s expected inflationary cost increase; such
increases are recognised in the year in which such
benefits accrue. Contingent rentals arising, if any, under
operating leases are recognised as an expense in the
period in which they are incurred.
In the event that lease incentives are received to enter
into operating leases, such incentives are recognised
as a liability. The aggregate benefit of incentives is
recognised as a reduction of rental expense on a straightline
basis, except where another systematic basis is more
representative of the time pattern in which economic
benefits from the leased asset are consumed.
Company as a lessor Finance lease
Amounts due from lessees under finance leases are
recognised as receivables at the amount of the Company’s
net investment in the leases. Finance lease income is
allocated to accounting period so as to reflect a constant
periodic rate of return on the net investment outstanding
in respect of the lease.
Operating lease
Rental income from operating lease is recognised on a
straight-line basis over the lease term unless payments
to the Company are structured to increase in line
with expected general inflation to compensate for the
Company’s expected inflationary cost increase; such
increases are recognised in the year in which such
benefits accrue. Initial direct costs incurred in negotiating
and arranging an operating lease are added to the
carrying amount of the leased asset and recognised on
a straight-line basis over the lease term. Contingent rents are recognised as revenue in the period in which they are
earned.
Estimates and Judgments
Operating lease commitments – Company as lessee
The Company has entered into lease agreements for
properties and cell sites, where it has, on the basis of
evaluation of the terms and conditions of the arrangement
determined that the significant risks and rewards related
to the assets and properties are retained with the lessors.
Accordingly, such lease agreements are accounted for as
operating leases. Further details about operating lease
are given in Note 45.
Disclosures
Operating Lease
Company as lessee
The Company has entered into non-cancellable operating
leases for offices, switches and cell sites for periods
ranging from 36 months to 240 months.
Lease payments amounting to ₹52,522.45 million
(Previous year: ₹44,973.69 million) are included in rental
and passive infrastructure expenses in the statement of
profit and loss during the current year.
Future minimum lease rentals payable under noncancellable
operating leases are as follows:
Particulars | As at March 31, 2017 | As at March 31, 2016 | As at April 1, 2015 |
Within one year | 48,254.95 | 42,264.91 | 36,965.54 |
After one year but not more than five years | 140,612.85 | 122,015.51 | 120,216.08 |
More than five
years |
75,755.79 | 48,364.15 | 47,163.75 |
Company as lessor
The Company has leased certain Optical Fibre Cables
pairs (OFC) on Indefeasible Rights of Use (“IRU”) basis
and certain cell sites under operating lease arrangements.
The gross block, accumulated depreciation and
depreciation expense of the assets given on lease are
not separately identifiable and hence not disclosed.
Future minimum lease rentals receivable under
non-cancellable operating leases are as follows:
₹million | |||
Particulars | As at March 31, 2017 | As at March 31, 2016 | As at April 1, 2015 |
Within one year | 402.76 | 1,404.54 | 757.18 |
After one year but not more than five years | – | 5,257.19 | 2,108.17 |
More than five
years |
– | 5,140.92 | 2,136.62 |
The Company has composite IT outsourcing agreements
where in property, plant and equipment, computer
software and services related to IT has been supplied
by the vendor. Such property, plant and equipment
received have been accounted for as finance lease.
Correspondingly, such assets are recorded at fair value
at the time of receipt and depreciated on the stated useful
life applicable to similar IT assets of the company.
PVR LTD.
Consolidated financial statements
Significant accounting policies
The determination of whether an arrangement is
(or contains) a lease is based on the substance of
the arrangement at the inception of the lease. The
arrangement is, or contains, a lease if fulfilment of the
arrangement is dependent on the use of a specific asset
or assets and the arrangement conveys a right to use the
asset or assets, even if that right is not explicitly specified
in an arrangement.
Where the Company is the lessee Finance leases, which
effectively transfer to the Company substantially all the
risks and benefits incidental to ownership of the leased
item, are capitalised at the inception of the lease term at the
lower of the fair value of the leased property and present
value of minimum lease payments. Lease payments are
apportioned between the finance charges and reduction
of the lease liability so as to achieve a constant rate of
interest on the remaining balance of the liability. Finance
charges are recognised as finance costs in the Statement
of Profit and Loss. A leased asset is depreciated on a
straight-line basis over the useful life of the asset.
Leases where the lessor effectively retains substantially
all the risks and benefits of ownership of the leased
items are classified as operating leases. Operating lease
payments are recognised as an expense in the statement
of profit and loss on an ongoing basis.
Where the Company is the lessor
Leases in which the Company does not transfer
substantially all risks and benefits of ownership of the
assets are classified as operating lease.
Assets subject to operating leases are included in fixed
assets. Lease income is recognised in the Statement
of Profit and Loss on ongoing basis. Costs, including
depreciation are recognised as an expense in the
Statement of Profit and Loss. Initial direct costs such
as legal costs, brokerage costs, etc. are recognised
immediately in the Statement of Profit and Loss.
Disclosures
i. Rental expenses in respect of operating leases are
recognised as an expense in the Statement of Profit
and Loss and pre-operative expenditure (pending
allocation), as the case may be.
Operating Lease (for assets taken on lease)
Disclosure for assets taken under non-cancellable leases,
where the Company is presently carrying commercial
operations is as under, which reflects the outstanding
amount for non-cancellable period:
(₹ in crore) | ||
Particulars | 2016-17 | 2015-16 |
Lease payments for the year recognised in Statement of Profit and Loss (including deferred rent portion) | 38,312 | 32,626 |
Lease payments for the year included in Capital work-in-progress | 71 | 227 |
Minimum lease payments: | ||
Within one year | 23,106 | 19,162 |
After one year but not more than five
years |
67,950 | 54,163 |
More than five years | 40,560 | 24,690 |
ii. Rental income/Sub-Lease income in respect of
operating leases are recognised as an income in the
Statement of Profit and Loss or netted off from rent
expense, as the case may be.
Operating Lease (for assets given on lease)
The Company has given various spaces under operating
lease agreements. These are generally cancellable on
mutual consent and the lessee can vacate the rented
property at any time. There is no escalation clause in the
lease agreement. There are no restrictions imposed by
lease arrangements.
(₹ in crore) | ||
Particulars | 2016-17 | 2015-16 |
Sub-lease rent receipts | 1,015 | 1,061 |
The Company has given spaces of cinemas/food courts
under operating lease arrangements taken on lease or
being operated under revenue sharing arrangements.
The Company has common fixed assets for operating
multiplex/giving on rent. Hence, separate figures for the
fixed assets given on rent are not ascertainable.
iii. Finance lease: Company as lessee
The Company has finance leases contracts for plant and
machinery (Projectors). These leases involve significant
upfront lease payment, have terms of renewal and bargain
purchase option. However, there is no escalation clause.
Each renewal is at the option of lessee. Future minimum
lease payments (MLP) under finance leases together with
the present value of the net MLP are as follows:
₹ In lakhs | ||||
Particulars | March 31, 2017 | March 31, 2016 | ||
Minimum payments | Present value of MLP | Minimum payments | Present value of MLP | |
Within one year | 899 | 524 | 813 | 433 |
After one year but not more than five years | 3,259 | 2,537 | 3,145 | 2,282 |
More than five
years |
352 | 332 | 642 | 599 |
Total minimum lease payments | 4,510 | 3,393 | 4,600 | 3,314 |
Less: amounts representing finance charges | (1,117) | – | (1,286) | – |
Present value of minimum lease payments | 3,393 | 3,393 | 3,314 | 3,314 |
There was no finance lease arrangement for the year
ended March 31, 2015.
THE INDIAN HOTELS COMPANY LTD.
Consolidated Financial statements
Significant accounting policies
Operating Lease
A Lease in which a significant portion of the risks and rewards of ownership are not transferred to the Company
is classified as operating lease. Payments made under
operating lease are charged to the Statement of Profit
and Loss on a straight line basis over the period of the
lease, unless the payments are structured to increase in
line with the expected general inflation to compensate for
the lessor’s expected inflationary cost increases.
For leases which include both land and building elements,
basis of classification of each element is assessed on the
date of transition, April 1, 2015, in accordance with Ind AS
101 First-time Adoption of Indian Accounting Standard.
Disclosures
In respect of a plot of land provided to the Company
under a licence agreement, on which the Company has
constructed a hotel, the licensor has made a claim of
₹ 344.50 crore to date, (13 times the previous annual
rental) for increase in the rentals with effect from 2006-
07. The Company believes these claims to be untenable.
The Company has contested the claim based upon
legal advice, by filing a suit in the Hon’ble High Court
of Judicature at Bombay on grounds of the licensor’s
inconsistent stand on automatic renewal of lease, levy
of lease rentals and method of computing such lease
rent, within the terms of the existing license agreement
as also a Supreme Court judgement on related matters.
Even taking recent enactments into consideration, in the
opinion of the Company, the computation cannot stretch
more than ₹ 86.36 crore (excluding interest/penalty), and
this too is being contested by the Company on merit.
Further, a “Notice of Motion” has been issued by the
Hon’ble High Court of Judicature at Bombay, inter alia,
for a stay against any further proceedings by the licensor,
pending a resolution of this dispute by the Hon’ble Bombay
High Court. In view of this, and based on legal advice,
the Company regards the likelihood of sustainability of
the lessor’s claim to be remote and the amount of any
potential liability, if at all, is indeterminate.
Note 32: Operating lease
The Company has taken certain vehicles, land and
immovable properties on operating lease. The leases of
hotel properties are generally long-term in nature with
varying terms and renewal rights expiring within five
years to one hundred & ninety eight years. On renewal,
the terms of the leases are renegotiated. The total lease
rent paid on the same is included under Rent and Licence
Fees forming part of Other Expenses (Refer Note No. 26,
Footnote (iv), Page 144).
The minimum future lease rentals payable in respect of
non-cancellable leases entered into by the Company to
the extent of minimum guarantee amount are as follows:—
Particulars | March 31,
2017 |
March 31,
2016 |
April 1,
2015 |
₹ crore | ₹ crore | ₹ crore | |
Not later than one year | 54.69 | 54.84 | 48.22 |
Later than one year but not later than five years | 201.18 | 213.30 | 204.10 |
Later than five years | 1,178.37 | 1,215.02 | 1,221.50 |
1,434.24 | 1,483.16 | 1,473.82 |
In addition, in certain circumstances, the Company is
committed to making additional lease payments that
are contingent on the performance viz. gross operating
profits, revenues etc. of the hotels that are being leased.
Expenses Recognised in the statement of profit and loss:
Particulars | March 31,
2017 |
March 31,
2016 |
₹ crore | ₹ crore | |
Minimum Lease Payments/ Fixed Rentals | 39.19 | 37.14 |
Contingent rents * | 88.69 | 89.50 |
127.88 | 126.64 | |
* contingent on the performance viz. gross operating profits, revenues
etc. of the hotels that are being leased. |
WIPRO LTD.
Consolidated financial statements
Significant accounting policies
The determination of whether an arrangement is, or
contains, a lease is based on the substance of the
arrangement at the inception date. The arrangement
is, or contains a lease if, fulfilment of the arrangement
is dependent on the use of a specific asset or assets
or the arrangement conveys a right to use the asset or
assets, even if that right is not explicitly specified in an
arrangement.
Arrangements where the Company is the
lessee
Leases of property, plant and equipment, where the
Company assumes substantially all the risks and rewards
of ownership are classified as finance leases. Finance
leases are capitalised at lower of the fair value of the
leased property and the present value of the minimum lease payments. Lease payments are apportioned
between the finance charge and the outstanding liability.
The finance charge is allocated to periods during the
lease term at a constant periodic rate of interest on the
remaining balance of the liability.
Leases where the lessor retains substantially all the risks
and rewards of ownership are classified as operating
leases. Payments made under operating leases are
recognised in the Statement of Profit and Loss on a
straight-line basis over the lease term.
Arrangements where the Company is the lessor
In certain arrangements, the Company recognises
revenue from the sale of products given under finance
leases. The Company records gross finance receivables,
unearned income and the estimated residual value of
the leased equipment on consummation of such leases.
Unearned income represents the excess of the gross
finance lease receivable plus the estimated residual value
over the sales price of the equipment. The Company
recognises unearned income as finance income over the
lease term using the effective interest method.
Disclosures
Finance lease receivables
Finance lease receivables consist of assets that are
leased to customers for a contract term ranging from 1 to
7 years, with lease payments due in monthly or quarterly
installments. Details of finance lease receivables are
given below:
March 31,
2017 |
March 31,
2016 |
April 1,
2015 |
|
Gross investment in lease | |||
Not later than one year | ₹2,060 | ₹2,222 | ₹3,685 |
Later than one year and not
later than five years |
2,725 | 3,127 | 3,108 |
Later than five years | – | – | 73 |
Unguaranteed residual
values |
62 | 62 | 63 |
Unearned finance income | 4,847
(319) |
5,411
(413) |
6,929
(569) |
Net investment in finance
receivable |
₹4,528 | ₹4,998 | ₹6,360 |
Present value of minimum lease receivables are as
follows:
March 31,
2017 |
March 31,
2016 |
April 1,
2015 |
|
Present value of investment in lease | |||
Payments
receivables |
₹ 4,528 | ₹ 4,998 | ₹ 6,360 |
Not later than one year | 1,854 | 2,034 | 3,419 |
Later than one year and not later than five years | 2,616 | 2,906 | 2,826 |
Later than five
years |
– | – | 57 |
Unguaranteed
residual values |
58 | 58 | 58 |
Included in the consolidated balance sheet as follows:
March 31,
2017 |
March 31,
2016 |
April 1,
2015 |
|
Non-current | ₹ 1,854 | ₹ 2,034 | ₹ 3,461 |
Current | ₹ 2,674 | ₹ 2,964 | ₹ 2,899 |
Assets taken on lease
Finance leases:
The following is a schedule of present
value of minimum lease payments under finance leases,
together with the value of the future minimum lease
payments as of March 31, 2017, March 31, 2016 and April
1, 2015.
March 31,
2017 |
March 31,
2016 |
April 1,
2015 |
|
Present value of minimum lease payments | |||
Not later than one year | ₹ 3,623 | ₹ 3,133 | ₹ 1,660 |
Later than one year and
not later than five years |
4,657 | 5,830 | 3,218 |
Total present value of
minimum lease payments |
8,280 | 8,963 | 4,878 |
Add: Amount representing interest | 437 | 578 | 345 |
Total value of minimum
lease payments |
₹ 8,717 | ₹ 9,541 | ₹ 5,223 |
Operating leases
The Company has taken office, vehicle and IT equipment
under cancellable and non-cancellable operating lease
agreements that are renewable on a periodic basis at the
option of both the lessor and the lessee. The operating
lease agreements extend up a maximum of fifteen years
from their respective dates of inception and some of these
lease agreements have price escalation clause. Rental
payments under such leases were ₹5,953, ₹5,184 and
₹4,727 during the years ended March 31, 2017, March
31, 2016 and April 1, 2015.
Details of contractual payments under non-cancellable
leases are given below:
March 31,
2017 |
March 31,
2016 |
April 1,
2015 |
|
Not later than one year | ₹ 5,040 | ₹ 4,246 | ₹ 3,351 |
Later than one year and
not later than five years |
12,976 | 9,900 | 6,385 |
Later than five years | 2,760 | 2,713 | 2,206 |
Total | ₹ 20,776 | ₹ 16,859 | ₹11,942 |
Finance lease receivables
Leasing arrangements
Finance lease receivables consist of assets that are
leased to customers for contract terms ranging from 1 to
7 years, with lease payments due in monthly or quarterly
installments.
Finance leases
Obligation under finance lease is secured by underlying
assets leased. The legal title of these assets vests with
the lessors. These obligations are repayable in monthly,
quarterly and yearly installments up to year ending March
31, 2021. The interest rate for these obligations ranges
from 1.82% to 17.19%.
Operating leases
The Company leases office and residential facilities
under cancellable and non-cancellable operating lease
agreements that are renewable on a periodic basis at the
option of both the lessor and the lessee. Rental payments
under such leases are ₹2,878, ₹2,905 and ₹2,682 during
the years ended March 31, 2017, March 31, 2016 and
April 1, 2015.
Light Elements
Mr. Optimist and Mr. Skeptic were good friends. Optimist was very happy
with the policies of the new Government. He felt that now the things would be
better. The new Government has promised clean governance, minimum intervention
of administration, healthy external policies, ease of doing business,
transparency, financial inclusion, and what not! He started day dreaming for a
happy and peaceful life for the common man.
One day after the Union Budget, Mr.
Optimist met Mr. Skeptic.
Optimist : Hello. What do you feel about the budget?
Skeptic : Well. It is same as every year’s. Nothing
new!
Optimist : Are you not happy with the policies announced
by the FM?
Skeptic : Practically all FMs so far have been
promising the same thing.
Optimist : But the implementation was bad. Bureaucrats
were not allowing good things to happen.
There was corruption.
Skeptic : Do you think bureaucracy has changed? Do you
think corruption will stop?
Optimist : Well; we should always hope for the better.
They are taking good steps in that direction. Everything is becoming ‘on-line’.
Skeptic : So, what you feel will happen now?
Optimist : I am sure, there will be stability and
growth!
Skeptic : Ha! Ha! Ha! I will tell you a story.
There was a very poor country. It was faced with the menace from rats.
All fields and other places were infested with rats. They were causing lot of
damage to the crop, to the properties and everything. The Government was
helpless. People didn’t know how to tackle this problem.
Once, they convened a conference in which international experts were
invited to solve this monstrous problem. They made their presentations which
were very impressive.
A few experts suggested electronic
devices; but the host country said – “we are too poor to afford such expensive
gadgets”. A few others came out with chemical solutions. Again there was
helplessness due to cost factor.
Chemicals would also spoil the fertility of the soil. It seemed the conference
would be futile. Nothing was working out.
Finally, one Indian expert stood up. He said –‘I can suggest a simple
remedy’. All listened to him very intently.
“Look here”, he said; “Take a knife and keep it horizontal on the floor;
or on the table. Take two small plates and keep one on each end of the knife.
Put some gud (Jaggery) in one plate and some kopra (coconut) in
the other.
“How will it
help?” – People wondered.
“Rat will come;
stand before the knife and have a dilemma. What to eat first? ‘Gud’ or ‘kopra’.
He will move his neck violently. In the process, his neck will get cut! And
your jaggery and coconut will remain intact”!
People applauded
very loudly. They were all extremely happy. Same night, there was a cabinet
meeting of the ministers. The mood was very joyous. Suddenly, somebody pointed
out – The remedy is alright. But how can we afford so much gud and kopra?
We are so poor! There was a long and deep silence. Finally, they rang up the
expert again and explained to him the problem.
“Don’t worry”,
assured the expert. I will think of a solution. Let’s meet tomorrow morning.
Next day, there
was again an assembly of selected persons. The expert said, “ I have found the
solution. Keep the same arrangement, horizontal knife and two dishes; but let
them be empty’.
People got
puzzled. “How will it help?”
Expert – “See,
the rat will come, look at both the dishes; and will wonder “Arey! Gud bhi
nahi aur kopra bhi nahi! (Neither jaggery nor coconut). He will again shake
his neck in despair! Result, you know. Cutting of his neck!”
Optimist
realised the fate of ‘stability’ and ‘growth’! And also that the citizens of
our country are like rats._
FROM PUBLISHED ACCOUNTS
Disclosure
related to new and amendments to Ind AS which are not applied as they are effective for periods
beginning on or after 1st April
2018
Compilers’ Note
Paragraph 30 of Ind AS 8
‘Accounting Policies, Changes in Accounting Estimates and Errors’, states as
follows: “When an entity has not applied a new Ind AS that has been issued but
is not yet effective, the entity shall disclose:
(a) this fact; and
(b) known or reasonably estimable
information relevant to assessing the possible impact that application of the
new Ind AS will have on the entity’s financial statements in the period of
initial application.”
Given below are disclosures by 2
companies as per the above requirement.
Tata
Consultancy Services Ltd (31st March 2018)
From Notes to Standalone
Financial Statements
Recent
Indian Accounting Standards (Ind AS)
Ministry of Corporate Affairs
(“MCA”) through Companies (Indian Accounting Standards) Amendment
Rules, 2018 has notified the following new and amendments to Ind ASs which the
Company has not applied as they are effective for annual periods beginning on
or after April 1, 2018:
u Ind AS 115 Revenue from
Contracts with Customers.
u Ind AS 21 The effect of changes in Foreign Exchange
rates.
Ind AS 115 – Revenue from
Contracts with Customers
Ind AS 115 establishes a single
comprehensive model for entities to use in accounting for revenue arising from
contracts with customers. Ind AS 115 will supersede the current revenue
recognition standard Ind AS 18 Revenue, Ind AS 11 Construction Contracts when
it becomes effective.
The core principle of Ind AS 115 is
that an entity should recognise revenue to depict the transfer of promised
goods or services to customers in an amount that reflects the consideration to
which the entity expects to be entitled in exchange for those goods or
services. Specifically, the standard introduces a 5-step approach to revenue
recognition:
u Step 1: Identify the
contract(s) with a customer
u Step 2: Identify the
performance obligation in contract
u Step 3: Determine the
transaction price
u Step 4: Allocate the
transaction price to the performance obligations in the contract
u Step 5: Recognise revenue
when (or as) the entity satisfies a performance obligation
Under Ind AS 115, an entity
recognises revenue when (or as) a performance obligation is satisfied, i.e.
when ‘control’ of the goods or services underlying the particular performance
obligation is transferred to the customer.
The Company has completed its
evaluation of the possible impact of Ind AS 115 and will adopt the standard
with all related amendments to all contracts with customers retrospectively
with the cumulative effect of initially applying the standard recognised at the
date of initial application. Under this transition method, cumulative effect of
initially applying IND AS 115 is recognised as an adjustment to the opening
balance of retained earnings of the annual reporting period. The standard is
applied retrospectively only to contracts that are not completed contracts at
the date of initial application. The Company does not expect the impact of the
adoption of the new standard to be material on its retained earnings and to its
net income on an ongoing basis.
Ind AS 21 – The effect of
changes in Foreign Exchange rates
The amendment clarifies on the
accounting of transactions that include the receipt or payment of advance
consideration in a foreign currency. The appendix explains that the date of the
transaction, for the purpose of determining the exchange rate, is the date of initial
recognition of the non-monetary prepayment asset or deferred income liability.
If there are multiple payments or receipts in advance, a date of transaction is
established for each payment or receipt. TCS Limited is evaluating the impact
of this amendment on its financial statements.
Infosys
Ltd. (31st March 2018)
From Notes to Standalone
Financial Statements
Recent
accounting pronouncements
Appendix B to Ind AS 21, Foreign
currency transactions and advance consideration:
On March 28, 2018, Ministry of
Corporate Affairs (“MCA”) has notified the Companies (Indian
Accounting Standards) Amendment Rules, 2018 containing Appendix B to Ind AS 21,
Foreign currency transactions and advance consideration which clarifies the
date of the transaction for the purpose of determining the exchange rate to use
on initial recognition of the related asset, expense or income, when an entity
has received or paid advance consideration in a foreign currency. The amendment
will come into force from April 1, 2018. The Company has evaluated the effect
of this on the financial statements and the impact is not material.
Ind AS 115- Revenue from
Contract with Customers:
On March 28, 2018, Ministry of
Corporate Affairs (“MCA”) has notified the Ind AS 115, Revenue from
Contract with Customers. The core principle of the new standard is that an
entity should recognise revenue to depict the transfer of promised goods or
services to customers in an amount that reflects the consideration to which the
entity expects to be entitled in exchange for those goods or services. Further,
the new standard requires enhanced disclosures about the nature, amount, timing
and uncertainty of revenue and cash flows arising from the entity’s contracts
with customers.
The standard permits two possible
methods of transition:
Retrospective approach – Under this
approach the standard will be applied retrospectively to each prior reporting
period presented in accordance with Ind AS 8- Accounting Policies, Changes in
Accounting Estimates and Errors
Retrospectively
with cumulative effect of initially applying the standard recognised at the
date of initial application (Cumulative catch – up approach) –
The effective date for adoption of
Ind AS 115 is financial periods beginning on or after April 1, 2018.
The Company will adopt the standard
on April 1, 2018 by using the cumulative catch-up transition method and
accordingly comparatives for the year ending or ended March 31, 2018 will not
be retrospectively adjusted. The effect on adoption of Ind AS 115 is expected
to be insignificant.
Miscellanea
1. Technology
11. China opens its first bank without bankers
A state-owned
Chinese bank has opened an automated branch equipped with facial-scanning
software, a virtual reality room, a hologram machine, talking robots and touch
screens for paying utility bills, among other functions. The branch opened last
week in central Shanghai’s Huangpu district and is being hyped as China’s first
“unmanned bank.”
Beijing-based China Construction
Bank says the high-tech branch is meant to make banking more convenient,
personalized and efficient. It also reflects growing competition from cashless
payment systems that are giving the banks a run for their money. A robot greets
customers at the entrance and answers questions using voice recognition
software. Clients can swipe their national identification cards to enter the
bank or scan their faces using the bank’s facial recognition device. Machines
inside allow visitors to buy gold, change currency, or scout real estate
investments using virtual reality googles.
The bank isn’t totally unstaffed.
Guards still stand sentry, and a room equipped with teleconference software
allows VIP clients to request help from human employees based elsewhere.
“Through the use of facial recognition, even without a human in the loop, the
system can ensure uniqueness of the individual at the time of enrollment and
can verify each time the person conducts a transaction,” said Joseph Atick, a
biometrics expert and chairman of Identity International.
(Source:
timesofindia.indiatimes.com)
12. Competition Commission fines Google Rs 136
crore for search bias
India’s antitrust watchdog
Competition Commission of India (CCI) imposed a 1.36 billion rupees ($21.17 million)
fine on Google for “search bias” and abuse of its dominant position,
in the latest regulatory setback for the world’s most popular internet search
engine. CCI said Google, the core unit of U.S. firm Alphabet Inc, was abusing
its dominance in online web search and online search advertising markets.
“Google was found to be
indulging in practices of search bias and by doing so, it causes harm to its
competitors as well as to users,” the CCI said in a 190-page order.
“Google was leveraging its dominance in the market for online general web
search, to strengthen its position in the market for online syndicate search
services,” the CCI said. However, the CCI said it did not find any
contravention in respect of Google’s specialised search design, AdWords and
online distribution agreements.
A Google spokesman said the company
was reviewing the “narrow concerns” identified by the Commission and
will assess its next steps. “We have always focused on innovating to
support the evolving needs of our users. The Competition Commission of India
has confirmed that, on the majority of issues it examined, our conduct complies
with Indian competition laws,” he said. The Indian watchdog’s order is the
latest antitrust setback for Google. Last year, The European Commission imposed
a record 2.4 billion euro ($3 billion) fine on the company for favouring its
shopping service and demoting rival offerings. Google has appealed against the
order.
Source: (www.businesstoday.in)
13. Tech billionaires
parenting
Melinda Gates’ children don’t have
Smartphone and only use a computer in the kitchen. Her husband Bill spends
hours in his office reading books while everyone else is refreshing their home
page. The most sought after private school in Silicon Valley, the Waldorf
school of the peninsula, bans electronic
devices for the under -11s and teaches the children of eBay, Apple, Uber and
Google staff to make go karts, knit and cook. Mark Zuckerberg wants his
daughter to read Dr Seuss and play outside rather than use Messenger kids.
Steve Jobs strictly limited his children’s use of technology at home. It is
astonishing if you think about it: the more money you make out of the tech
industry, the more you appear to shield your family from its effects.
(Source: Alice Thomson in The
Times)
14. Twitter urges all users to
change passwords after glitch
Twitter urged its more than 330
million users to change their passwords after a glitch caused some to be stored
in readable text on its internal computer system rather than disguised by a
process known as “hashing”.
The social network disclosed the
issue in a blog saying it had resolved the problem and an internal
investigation had found no indication passwords were stolen or misused by
insiders. Still, it urged all users to consider changing their passwords.
“We fixed the bug and have no
indication of a breach or misuse by anyone,” chief executive Jack Dorsey said
in a Tweet. “As a precaution, consider changing your password on all services
where you’ve used this password.” The blog did not say how many passwords were
affected. A person familiar with the company’s response said the number was
“substantial” and that they were exposed for “several months”.
The glitch was related to Twitter’s
use of “hashing” and caused passwords to be written on an internal computer log
before the scrambling process was completed, the blog said. “We are very sorry
this happened,” the Twitter blog said.
(Source: Times of India)
15. Facebook to hit e-commerce
market with B2C offering
After making inroads into India’s
payments sector via WhatsApp, Facebook is eyeing a larger piece of the
country’s fast-growing ecommerce market where the world’s largest retailers
Amazon and Walmart are gearing up for a direct faceoff.
The social media giant is in talks
with several brands and businesses to list on Facebook Marketplace. It will
begin testing business-to-consumer transactions on the marketplace ahead of a
soft launch planned for June, one of them said. Facebook “will build more tools
(on its marketplace) for businesses to upload products and manage inventory and
orders, and will also add payments to it by the end of this year”, the other
person said. “For now, Facebook will start with directing consumers to sellers’
(Facebook) pages or websites.”
Facebook launched its marketplace
as a consumer-to-consumer interface in India about six months ago only to
receive a lukewarm response to its attempt at creating a domestic Craigslist,
competing with startups such as Quikr and OLX.
India’s online retail sector is
expected to grow to $27 billion this year after registering sales worth $19.6
billion in 2017, estimates Forrester Research. Global retailers are betting
more on the massive growth potential for the fledgling market, which Morgan
Stanley estimates will be worth $200 billion by 2026. Facebook Marketplace is
available in 70 countries and has more than 800 million people visiting each
month to buy and sell goods.
(Source: Economic Times)
2. Inspirational
16. Writing with thumb and
little finger, boy scores 90.33% in ICSE
Liron is a student of Lady Ratanbai
and Sir Mathuradas Vissanji Academy in Andheri East where his mother works in
the administration department. Born with constriction band syndrome,
16-year-old Liron D’Silva had amniotic bands resulting in partially formed fingers
with only two fully developed fingers on the right hand, his thumb and little
finger. However, this congenital defect did not deter Liron from taking his
Class X ICSE examinations without the help of a writer and he secured an
overall percentage of 90.33 with a score of 99 in Maths and 97 in Social
Studies.
“It was difficult, but I managed,”
said Liron explaining that he wanted to write his papers himself because it is
often hard to explain to a writer what he is thinking. “I also wanted to get a
good score on my own merit.” His mother Linet D’Silva wrote to the board
explaining Liron’s condition and they granted him extra time, 30 minutes for
every hour. “Liron has never let his disability get in the way,” she said. “He
has 100 per cent attendance in school and even plays sports like lawn tennis
and taekwondo.”
Liron is a student of Lady Ratanbai
and Sir Mathuradas Vissanji Academy in Andheri East where his mother works in
the administration department. “He adamantly refused to let anyone else write his
papers for him and has been consistently appearing for his own exams, barring
one time in the ninth standard when a recent surgery had left him in too much
pain to do so,” she said.
Growing up with a normal twin
brother, Rion, Liron has found life especially challenging. “But I choose to
view difficulties as opportunities. I want to inspire other people like me to
live life to the fullest,” he says.
(Source Indianexpress.com)
17. When Sachin Tendulkar helped Indian
wheelchair cricket team realise its dream
Life can be harsh and test
someone’s willpower with all its severity. But if there is perseverance, it can
force open the doors also. Ask Somjeet Singh or Squadron Leader Abhay Partab
Singh.
They are part of an Indian cricket
team – the Indian wheelchair cricket team, which successfully completed its
first international tour of Bangladesh. It was their dream to wear the national
jersey but they also needed a
dream merchant.
A month back,
36-year-old Pradeep Raj, who is the secretary of the Wheelchair Cricket India
(WCI), was trying to raise funds to the tune of Rs 6.5 lakh so that the Indian
team could travel to Bangladesh for a bilateral series. It was then the idea of
writing to Tendulkar crossed his mind. “Despite my best efforts, I could only
get only one sponsor, who gave Rs 2 lakh. I had knocked many doors for our
wheelchair team but to no avail. I had Sachin sir’s email address as during my
days as a para-athlete (he was a cricketer and then a para TT player), I had
e-mailed him. This time also I mailed Sachin sir asking for help,” Raj
said.
“To my pleasant surprise, his
office got in touch with me within three days and in next few days, he donated
the outstanding Rs 4.5 lakh. Without his help, the Indian Wheelchair cricket
team would have had to cancel their trip to Bangladesh. The financial help
provided by him went a long way in booking air tickets for the 19-member
team,” Raj said.
“Some political party and
Actor too donated small amount to play players fees. So for the first time, Indian
players got Rs 20,000 each for playing a tournament,” Raj said. The Indian
team beat Bangladesh 2-0 in the three match series.
In wheelchair cricket, the matches
are held in T20 format. They are trying to use lighter balls (used for women’s
cricket). If the wheelchair is used by batsman to obstruct a delivery, then he
is adjudged lbw. The boundaries are at 45 yards.
“In the Indian team, there are
different stories. There are players, who have had their legs amputated because
of road accidents. We have players, who are paralysed waist down. There are a
few who have been affected by polio. They have come from all parts of the
country, appeared for trials and got selected. We organised a national
tournament last year and champions were rewarded with cash prize of Rs
50,000,” the secretary said.
(Source: Times of India)
18. You will be always loved
If you want to be loved then you
have to kill your expectations because expectations are that one thing which
prevents us to holding on to a relationship. Expect from your own self that
what you can do and what you can give to your family, friends and to society.
Without giving, you will get nothing. Make a habit of giving and sharing.
Believe me;
giving love is the best feeling in the world. You feel like a complete person.
Nowadays people are so upset because they give nothing and expect everything.
This is wrong thinking. First put then receive. You have to love first then you
will be loved. There is a lack of love around the world. People are so sad because
everybody needs love and people don’t know how to love? Stop searching for
love, be a loving person so that everybody itself attracts towards you. Spread
love, if you want to be loved.
Now the question arises how we can
love. For love, you first need forgiveness. How you forgive and forget your
mistakes easily learn to do so with others. In love, you can be with a person
during his bad times. Encouraging someone, listen to someone’s heart. If you
still can’t do so then never discourage anyone.
Listening is an excellent habit.
Giving your time and attention. Believe me if adopt these habits you will be
loved by everybody. Everybody has a lot to speak, more to share but there is
nobody to listen. The more you listen, the more you will come to know the best
out of the person. When you start listening believe me you will be flooded with
friends.
Love everybody, every little things
around you i.e Love your bed, pillow, clothes, doors, windows, etc love all
animals, birds, fishes etc. When you fill yourself with love for others, others
will also full of love for you and you will be delighted.
Have you noticed one thing that we
usually love children than to adults, puppy instead of dogs, kittens instead of
cats. You know why? Because kids are innocent, free from jealousy and full of
love. Nobody teaches them how to love, smile, laugh etc. Kids don’t even know
the word hatred. Let’s be like a child for being loved.
Put smile on your face and be
positive. Now ask one question to yourself that what kind of person do you like
the most? Mine answer is I like those who always smile, polite, truthful,
honest, decent etc. So be the person you want to be with than how can people
ignore you. You will always be loved.
Be yourself, be polite and
generous. These are some qualities which attract Almighty as well. Why to only
being loved by world. Why not by Almighty as well. God’s love is true love. He
expects nothing and gives everything we need. So you can also be God for
others. Fulfill people’s need if you can and share gifts. We feel so delighted
when we are gifted so the people feel. Make a habit of giving gifts to your
loved one. I wish all of you to be loved throughout your life.
(Source: sunnyskyz.com)
Ethics and You
Arjun (A) — Oh
Lord, why have you created this kaliyug?
Shrikrishna
(S) — I didn’t create it. It was the idea of the Creator – Brahmadev! I
have been entrusted only with the job of maintenance.
A — Don’t just pass the blame on him. I know, you only must be giving
ideas to him. I have seen you in Mahabharata, doing some mischief and then
watching the fun!
.
S — (smiles) – Arjun, what is your grievance? I have always supported
you in all the difficulties and brought you out of your problems.
A — Tell me, why in kaliyug people are always quarrelling with each
other?
Why can’t they stay together with love and affection? They have so many
comforts due to technology.
S — (laughs). Arey Arjun. You are saying so? What did you do in
Mahabharata? Didn’t you fight with kauravas?
A — But we were demanding only 5 small villages from them. Nothing more.
But they wanted to grab everything. They cheated us.
S — Anyway, forget that. Why are you so tensed up today? The kaliyug was
there all these years. What makes
you blame it today?
A — These disputes between other parties are causing great risk to our
profession. Two brothers, two partners, two directors, rather any two persons
coming together finally end-up in a dispute and just to settle their score on
one another they blame their CA. They expect that the CA would exert influence
on the other party. In this process CA alone suffers. He is made a scape goat.
S — Did you have any dispute with any person? See, both of us are
together for thousands of years right since Mahabharata but we have never
quarreled.
A —You are a God and I am only your devotee. By relation we are cousins
but it is your goodness that you treat me like a friend. But nowadays, I see
that even the relationship between the spouses is not permanent. I told you an
incident that where husband and wife both were CAs, the wife did a small audit
for two years; the husband did the audit for next two years.
S — Then what is wrong about it?
A —There was a divorce petition between them and the wife filed a
complaint that the husband accepted audit work without communicating with her!
S — My wife Satyabhama does get angry with me every now and then. Now I
should be more careful in kaliyug lest she leaves me.
A —(Laughs) Last month there was a similar incident. The daughter of
CA’s client came to him and asked for attested copies of the IT Returns of her
husband and mother-in-law. She said she wanted it for VISA application.
S — Then?
A — My friend verified it in the computer and gave the attested copies
to her.
S — Good.
A — What “good”? The daughter’s husband filed a complaint as to why the
CA delivered the copies of his returns to his wife without his authorisation.
S — Oh. That means there must be some dispute between them.
A — Yes. In fact she had filed a case of domestic violence against him.
She used the ITRs in that law suit.
S — That is why I always caution you not to do anything in good faith.
Never take any relationships for granted. I agree that this incident is an
extreme one!
A — But even in this case, the fact remains that there was no error or
negligence in the certification as such. What was certified was true. I don’t
understand as to how such work should have been tackled.
S — Your institute has issued detailed guidelines for the work of
issuing certificates. One should get a written request in which the purpose for
the certificate should be stated. Further, the purpose should be stated on the
certificate as well. So that, it cannot be used for any other purpose.
A — I am aware of that but I just wanted to point out the vulnerability
of our profession and how careful one should be in even small piece of work.
!!OM Shanti!!
Conclusion:
The above dialogue
emphasises the fact that anything done in a good faith in our profession may
backfire at a time when it is least expected. A CA needs to be very careful and
alert while doing even the smallest work. It underlines the importance of
professional skepticism.
From the President
Dear Members,
Four years ago, the Modi
Government was voted into power with a stupendous majority that shocked its
critics. Vowing to transform India and accelerate it on the path to progress
and prosperity, the government rolled up its sleeves and got on the job with
diligence. Today many of the results are visible in concrete and steel; and
well researched figures to back up its track record of nation building. Clearly
the promises of yesterday are now the springboard of today’s growth and global
success.
Apart from the ruling party, major
publications and media houses have put together a report card for the
Government. There is a consensus on the capability of the NDA government to
deliver solid results to very difficult deadlines. Perhaps its most spectacular
achievement is the slew of tough economic reforms it launched and faithfully
carried them through. Global institutions and rating organisations have
acknowledged these efforts and upgraded India’s credit rating.
With numerous reforms under
implementation, India shot up on the rankings of ‘Ease of Doing Business’. This
ranking opened the floodgates for considerable investment in India. The stock
exchanges too reflected the buoyant nature of the improved economy touching new
highs. GDP growth has climbed up and so have exports. The government, however,
is facing criticism for low domestic investment and job growth. The ballooning
NPAs and losses of the nationalised banks are another cause of concern that
have to be addressed.
The countdown for the FIFA World
Cup to be held in June-July in Russia has started. 32 teams will play over 30
days to decide the world champions. But PM Modi’s informal summit with
President Putin at Sochi didn’t happen to talk football. The two leaders are
believed to have had “extremely productive” discussions during which they
reviewed the complete range of Indo-Russian relations as well as various global
issues.
The informal summit was the
stepping stone to give an impetus to bilateral ties and to cement strategic
defence partnerships. The timing is particularly significant as the US is
imposing sanctions on Russia and is slowly escalating a trade war with India.
The ‘agenda less’ summit has raised many eyebrows and fuelled much speculation,
as there was no joint statement by the leaders at the end. Traditionally Russia
has been the cornerstone of Indian foreign policy. Today, however the situation
has changed with China becoming a mega trade partner and the warming of
relations with Washington. New Delhi today is treading the tightrope very
carefully not to upset the delicate balance between these global giants.
The world’s largest retailer
Walmart this month bought 77% of India’s largest e-commerce marketplace
Flipkart because this is the only way it can tap the retail market in India as
for now. The Indian market is worth $672 billion currently and set to cross the
$1 trillion mark by 2020. It provides Flipkart, which needed money and prevents
it from worrying about working towards a public share sale. The deal will also
create jobs, directly and indirectly, and help create much-needed supply chain
and cold chain infrastructure — something that could improve India’s appalling
farm-to-fork efficiency, thereby benefiting farmers.
Besides, the transaction is a
milestone for India’s internet industry. Although a handful of internet
start-ups have achieved multibillion-dollar valuations on paper, this is the
first time that any of them have cashed out in a big way.
The rivulets of sweat coursing
down our faces every time we step out to brave the sweltering summer, focuses
my attention on water. It’s a resource India desperately needs, yet water gets
blatantly wasted across India. To understand the gravity of the situation,
let’s look at some figures. Groundwater accounts for 40% of our supply but it
is getting depleted faster than it is being replenished. Rain water is another
vital source, and here again, we manage to capture only a dismal 8% of it.
Water infrastructure is plagued by leaks causing losses of 40% of piped water
in urban areas. And to top it all we recycle only 15% of used water.
Droughts are becoming a frequent
reality, as farmers become increasingly dependent on the monsoon. India
desperately needs a concerted water management and conservation policy to save
it from an economic disaster. It is believed
that if we continue with status quo, the demand will soon outstrip supply which
will result not only in GDP tumbling but also in a civil war!
Change is essential on four fronts
to prevent this problem from snowballing! Firstly, policy needs to be revamped
making water a national resource with the government as the ultimate owner.
Secondly, extensive water infrastructure needs to be built and maintained to
optimally distribute water to all sectors and corners of India. Thirdly,
behaviour needs to change so that we respect water as a blessing and not waste
it frivolously. Finally, we need to collect and build a water data system that
will enable the government to allocate and price water efficiently. All in all,
the mantra is to conserve water effectively. At the Society we need to salute
the efforts of Late CA. Pradeepbhai Shah and CA. Rashminbhai Sanghvi under
whose leadership, BCAS got the opportunity to support check dam projects in
Gujarat which is now a boon for those villages.
The Southwest Monsoon hit Kerala
as predicted marking the arrival of the rainy season in the country. As per
forecast, the monsoon is set to have a normal advance over the subcontinent.
Two consecutively good monsoons have played a key role in reviving demand for
consumer goods in rural India which led to better crop yields.
Equally-distributed rain usually sees a healthy uptick in demand for products
from rural areas and results in an increase in rural citizens’ purchasing
power. Hopefully this year also we should get adequate rains in all parts of
the country.
Reading the papers today has
become such as arduous and torturous task. The reason being the high quantum of
‘bad’ news in the media. By bad, I refer to the callous and cold-blooded
perversions being inflicted on humanity. Even the marginalised are being
ruthlessly exploited and heaped with such indignities that it causes one to
shudder with shame. And sadly, a lot of these atrocities are now becoming so
commonplace in India; it does not even elicit a reaction.
What happened to India, considered
one of the greatest civilizations of the world? India, the birthplace of some
of the most profound religions, influential philosophers and apostles of peace;
now seems to be sliding downhill. The bankruptcy of ethics is visible in the
hopelessness, weak morals, lack of empathy and low willpower that’s rampant in
society. Perhaps it is time to confront the situation more aggressively, with a
greater emphasis on ethics in education.
There is already a provision to
learn moral science and religion in schools, but I fear most schools and
teachers don’t feel this is an important facet of education. Students
well-grounded in ethics will choose compliance, construction and inclusion and
not promote defiance, destruction and exclusion. Students should understand the
importance of acting responsibly and respectfully even when they are using
forums, social media, or mobile devices. Ethics and value-based education needs
to be ‘hardwired’ into students so that as adults they rediscover their soul
and infuse hope into an otherwise bleak future.
Value education is rooted in Indian philosophy and ingrained in every tradition
of Indian culture. After all, educational institutions play a significant role
in the promotion of ethics.
Feel free to write to me on president@bcasonline.org
With kind
regards
CA. Narayan Pasari
President
Corporate Law Corner
7. [2018] 143 CLA 421 (SC)
Mackintosh Burn Limited vs. Sarkar and
Chowdhury Enterprises Private Limited
Date of Order: 27th March,
2018
Sections 58(2) and 58(4)
of Companies Act, 2013 – Refusal to record registration of shares is a mixed
question of law and facts – “Sufficient cause” as appearing in section 58(4) is
not restrictive to mean that only illegal or impermissible transfers can be
refused – A refusal to transfer shares for conflict of interest in a given
situation can also be a cause – Each case will have to be examined for facts to
determine what constitutes “sufficient cause”
FACTS
M Co is a public company
with majority of shares held by the Government of West Bengal. S Co held 28.54%
of the shares of M Co and further acquired 100 shares, which together would
make its holding 39.77%. M Co refused to register the transfer of shares on the
contention that S Co was controlled by a competitor in business, and hence, it
would not be in the interest of a Government Company to permit such transfer.
Company Law Board (“CLB”), vide order dated 16.09.2015 rejected the contentions
and directed registration of shares in favour of S Co.
The order of CLB was
challenged before the High Court of Calcutta u/s. 10F of the Companies Act,
1956. The appeal was dismissed by the High Court. After several rounds of
litigation, review petition was filed before the High Court, which was also
dismissed by the High Court. High Court, in the order dated 15.09.2017 held
that there was no mistake capable of correction and that correction could be
done only by a superior forum.
Present application was
filed before the Supreme Court challenging the orders.
HELD
Refusal of registration of
the transfer of shares and the appellate remedy are provided u/s. 58 of the
Companies Act, 2013. This provision had come into force at the relevant time.
Supreme Court went through provisions of section 58(2) and 58(4) of the
Companies Act, 2013. It observed that the securities or interest of any member
in a public company are freely transferable. However, u/s. 58(4), it is open to
the public company to refuse registration of the transfer of the securities for
a sufficient cause. To that extent, section 58(4) has to be read as a limited
restriction on the free transfer permitted u/s. 58(2).
Supreme Court held that
section 10F of the Companies Act, 1956, provides that an appeal against an
order passed by the Company Law Board can be filed before the High Court on
questions of law. Right to refuse registration of transfer on sufficient cause
is a question of law and whether the cause shown for refusal is sufficient or
not in a given case, can be a mixed question of law and fact.
The Supreme Court held
that High Court should have considered various aspects arising through the
order of CLB and not restricted itself in adjudicating on the grounds of
limitation only.
The Supreme Court observed
that meaning of the words “without sufficient cause” as used in section 58(4)
cannot be interpreted to mean that transfer of shares can be permitted only if
the transfer is otherwise illegal or impermissible under any law. Refusal can
be on the ground of violation of law or any other sufficient cause. Conflict of
interest in a given situation can also be a cause. It observed that whether the
reason for refusal of registration is sufficient in the facts and circumstances
of a given case is for the Company Law Board to decide.
Without going into any
further merits of the case, Supreme Court set – aside the orders of CLB and
High Court and remitted the matter back to NCLT for afresh consideration
without being influenced by any findings recorded in the orders of CLB, High
Court or the Supreme Court.
8. (2018) 91 taxmann.com 123 (NCLAT)
Achintya Kumar Barua vs.
Ranjit Barthkur
Date of Order: 08th
February, 2018
Section 173(2) of
Companies Act, 2013 – A company is bound to provide video-conferencing or
participation through other audio visual means to a director who intends to
avail the same for attending the meetings of Board of Directors – Secretarial
Standards which make provision of this facility optional for the company would
not override the law contained in Act and Rules
FACTS
‘R’ had filed an
application in order to enforce its right to participate in the Board meetings
of the company through video conferencing. The matter had earlier come-up
before the Company Law Board (‘CLB’) and being aggrieved by certain observations,
the same was carried to the High Court of Guwahati. The Hon’ble High Court
found that the appeal did not raise any question of law and sent back the
matter. The same came up before the National Company Law Tribunal (“NCLT”) and
hearing both sides, the NCLT allowed the application directing that the
facility u/s. 173(2) of the Companies Act, 2013 should be made available. It
further observed that company had necessary infrastructure to provide such a
facility. ‘A’ and other directors filed an appeal before National Company Law
Appellate Tribunal (“NCLAT”) against the order of the NCLT.
‘A’ put forth two
contentions before the NCLAT. Firstly, it was urged that provisions of section
173(2) are not mandatory and that it is not compulsory for the company to
provide facility for video-conferencing. Secondly, Rule 3(2)(e) of the
Companies (Meetings of Board and its Powers) Rules, 2014 (“Rules”) casts
responsibility on the Chairperson to ensure that no person other than the
concerned Director is attending or having access to the proceedings of the
meeting through video-conferencing mode or other audio-visual means. It was
submitted that Chairman may not be able to ensure the same as he would have no
means to know as to who else is sitting in the room or place concerned.
HELD
NCLAT perused the
provisions of section 173(2) as well as Rule 3. It held that use of the word
“may” in the section only gave an option to the Director to choose whether he
would be participating in person or through video-conferencing or other
audio-visual means. The word “may” did not give an option to the company to
deny this right given to the Directors for participation through
video-conferencing or other audio-visual means, if they so desire.
NCLAT held that Rules,
read as a whole, were a complete scheme. While Rule 3(2)(e) casts a
responsibility on the Chairman, Rule 3(4) casts a responsibility on the
participating director as well. The Chairperson will ensure compliance of Rule
3(2)(e) and the director will need to satisfy the Chairperson that Rule 3(4)(d)
is being complied.
‘A’ further submitted that
Secretarial Standard on Meetings of the Board of Directors provide that
participation through video conferencing or other audio-visual means can be
done only “if the Company provides such facility”. NCLAT however held that the
said guidelines would not override the provisions contained under the Act and
Rules.
NCLAT thus held that
provisions of section 173(2) were mandatory and the companies cannot be
permitted to make any deviations therefrom and dismissed the appeal filed
before it by ‘A’.
[Author’s note: An analysis
of this judgement has been carried in May 2018 issue of the Journal on page 93]
9. I.A. No. 594 of 2018 in Company Appeal (AT)
(Insolvency) No. 188 of 2018 – NCLAT (New Del) Rajputana Properties Pvt. Ltd.
vs. Ultra Tech Cement Ltd.
Date of Order: 15th
May, 2018
Sections 24, 29 and 30 of
Insolvency and Bankruptcy Code, 2016 – Resolution professional does not have
power to take comments on the resolution plan submitted by any of the
Resolution Applicant(s) – Procedure to be followed by the IRP and CoC explained
in light of provisions of law
FACTS
National Company Law
Appellate Tribunal (“NCLAT”) had vide an interim order dated 04.05.2018 ordered
that Committee of Creditors (“CoC”) and Adjudicating Authority would approve
one or the other resolution plans which would be subject to the decision of the
appeal.
Insolvency resolution professional
(“IRP”) gave a notice to all the parties concerned that he would decide about
the eligibility of one or more resolution applicant (“RA”).
CoC argued that it is
required to consider all the resolution plans and all the aspects of every plan
in order to approve one of the plans.
It was submitted that IRP
is required to decide whether resolution plan(s) are in accordance with
existing provisions of law and fulfil other conditions as prescribed u/s. 30(2)
of the Insolvency and Bankruptcy Code, 2016 (“the Code”) and therefore, it was
within the domain of the IRP to decide such issue.
IRP submitted that he did
not intimate RAs that he will decide eligibility of one or other RA and that he
merely called for comments of all the RAs.
HELD
The NCLAT examined the
provisions of sections 29 and 30 in order to determine the duties of the IRP.
It observed
the following:
(a) IRP is required to prepare an ‘Information
Memorandum’ for formulating a resolution plan. The IRP is required to provide
RA all the relevant information in physical and electronic form.
(b) IRP is required to examine each resolution plan
received by him to confirm that the resolution plan provides for payment of
Insolvency Resolution Process costs, payment of debts of Operational Creditor(s),
management of the affairs of the corporate debtor, implementation and
supervision of the resolution plan, other requirements as may be specified by
the Board and does not contravene any of the provisions of law for the time
being in force.
(c) In absence of any information through any
source while scrutinising the resolution plan u/s. 30(2) of the Code, IRP
cannot decide upon eligibility of the RA u/s. 29A.
(d) There is no provision in the Code conferring
power upon the IRP to decide upon the eligibility or otherwise of the RA.
(e) IRP is only required to examine whether the
plan conforms to provisions of section 30(2). He cannot disclose it to any
other person including the RA(s) who has submitted the plan.
(f) The resolution plan
submitted by a RA being confidential cannot be disclosed to any competitor RA
nor any opinion can be taken or objection can be called for from other RAs with
regard to one or other resolution plan.
(g) Joint reading of
sections 24 and 30 suggests that following persons are to take part in the
meeting of CoC at the time of approval of one or other resolution plan:
? Members of CoC
? Members of the (suspended) Board of Directors
or the partners of the corporate persons;
? Operational Creditors or their
representatives if the amount of their aggregate dues is not less than ten per
cent of the debt
? RAs
(h) CoC while approving or
rejecting one or other resolution plan should follow such procedure which is
transparent. Persons who do not have a right to vote can certainly express
their views to the CoC.
(i) CoC should record
reasons (in short) while approving or rejecting one or the other resolution
plan.
(j) Views expressed by
persons not entitled to vote have to be taken in to consideration by the CoC
before approving or rejecting a resolution plan.
(k) RAs may, in the
meeting before CoC, point out whether one or the other person (Resolution
Applicant) is ineligible in terms of section 29A or not.
(l) IRP is required to
communicate the final decision of the CoC to the Adjudicating Authority.
(m) The Adjudicating
Authority who is required to take decision as per section 31 of the Code, can
go through the reasoning to accept or reject one or other objection or
suggestion and may express its own opinion/decision.
NCLAT thus, laid down the
procedures to be followed by the IRP and the manner in which meetings of the
CoC would
be conducted.
take any comments from any of the RA(s).
Service Tax
I. Tribunal
8. 2018-TIOL-3086-CESTAT-BANG]
Commissioner of Central Excise, Customs and
Service Tax, Kerala vs. Askar Timbers
Date of Order: 18th July, 2018
Reimbursement of Expenses not liable for service tax.
Facts
The Assessee is a clearing and
forwarding agent who receives the goods, warehouses the goods, receives
dispatch order and prepares invoices on behalf of the principal. Show Cause
Notice was issued for non-payment of service tax on amount reimbursed for services
rendered.
It was contended that charges like
loading/unloading, coolie, cartage, handling/portage and lorry freight charges,
electricity, telephone, godown rent, salary to staff etc., did not attract
service tax and service tax can be levied only on commission and other
reimbursed expenses cannot be added to commission.
Held
The Tribunal noted that as per
section 67, value of taxable service is the gross amount charged for providing
“such” taxable services. Any other amount, which is calculated not for
providing such taxable service, cannot be a part of valuation as that amount is
not attributable to such services.
Accordingly, relying on the
decision of the Apex Court in the case of UOI vs. Intercontinental
Consultants – [2018-TIOL-76-SC-ST] the demand was set aside.
9. [2018-TIOL-3152-CESTAT-MUM] Sairaj
Labour
Services vs. CCE and ST, Aurangabad Date of Order: 28th June, 2018
Amount contributed towards EPF in relation to Manpower Recruitment
& Supply Agency service is includible in the value of the services
rendered.
Facts
Appellant was providing services
taxable under manpower recruitment and supply agency service. A Show Cause
Notice was issued demanding service tax on the amounts paid to ESIC and EPF on
the contention that such amount paid is includible in the gross taxable value.
Held
The Tribunal relied on the decision
in the case of Neelav Jaiswal [2014] 34 STR 225 (Tri.-Del) wherein the
Tribunal held that the liability to remit provident fund to provident fund
authorities is a statutory liability on the Appellant, employer of persons who
are deployed to serve the needs of their client. The consideration for such
services not only includes the amounts agreed between the parties but also
their statutory obligation towards PF and ESIC. Both the amounts therefore are
considered as the gross taxable value. The Appeal was accordingly dismissed.
10. [2018-TIOL-3150-CESTAT-MUM]
Kalyani Hayes Lemmerez Ltd. vs. CCE, Pune-III
Date of Order: 4th August, 2017
CENVAT credit on outdoor catering and Rent-a-Cab service is
allowable as CENVAT credit.
Facts
The issue relates to entitlement of
CENVAT credit on transport and outdoor catering services during 2011 to 2013.
It was argued by the department that goods and services used primarily for
personal use or consumption of employees are not eligible for CENVAT credit.
Held
The Tribunal relying on the
decision in the case of Hindustan Coca-Cola Beverages Pvt. Ltd. vs.
Commissioner of Central Excise [2014-TIOL-2460-CESTAT-MUM] held that what
is excluded is only services used primarily for personal use. Since the service
is used in relation to business, the credit is allowable. Further,
relying on the decision in the case of Marvel Vinyls Ltd. vs. CCEx, Indore
[2016-TIOL-3071-CESTAT-DEL] it was held that credit on Rent-a-cab services
is also allowable.
Note: Readers may
note a similar decision on allowability of CENVAT credit on rent-a-cab in the
case of Nihilent Technologies Pvt. Ltd [2017-TIOL-2696-CESTAT-MUM]
digest provided in August, 2017 issue of BCAJ.
11. 2018 (14) GSTL
367 (Tri.-Del.) Accent Overseas P. Ltd. vs. Commissioner of Service Tax, New
Delhi
Date of Order: 2nd March, 2017
Receipt of indirect foreign currency sufficient to determine
services are exported.
Facts
Appellant assessee was engaged in providing
services of promotion of sales of products in India for the principals located
outside India. Department alleged the said activity was business auxiliary
services and demanded the service tax.
Held
It appeared to the Hon’ble Tribunal
that consideration was received in foreign currency for the export of services.
An identical issue came up before the Tribunal in the case of National
Engineering and Industries Ltd. vs. CCE, Jaipur 2016 (42) STR 537 (Tri. Del.),
wherein it was held that in case when the commission is received from foreign
supplier for procuring orders from the Indian buyers to whom the goods were
directly supplied by the foreign supplier, the service rendered clearly
satisfies the requirement of the provisions relating to export of service.
The Tribunal by relying on the said
case set aside the order and allowed the appeal of Appellant.
12. 2018 (14) GSTL 373 (Tri.-Mumbai)
Commissioner
of Service Tax, Mumbai vs. Wall Street Finance Ltd.
Date of Order 18th November, 2016.
Services of advertising and promoting activities of foreign entity
done in India, benefit of the same received abroad, hence activity amounts to
export of services.
Facts
The Revenue aggrieved by the order
of the Adjudicating Authority filed an appeal before Tribunal alleging that
demand of service tax on advertising and promotion services rendered by the
Respondent Assessee was incorrectly dropped by relying on Board’s circular
dated 24/02/2009 on “Export of services Rules, 2005” Further, it was alleged
that penalty u/s. 76 of the Finance Act, 1994 was not imposed correctly despite
various violations. The entire dispute in the matter was of determining the
place of provision of services when agents in India were recruited by overseas
entity to transfer money from abroad to persons situated in India. The
department contested that beneficiary was situated in India and therefore
services were taxable in India.
Held
The Hon’ble Tribunal held that since the
recipient of the service was located outside India and the consideration was
received in foreign exchange, the service undertaken by the Indian provider
amounted to export of service and therefore not taxable.
13. [2018]
97 taxmann.com 421 (New Delhi – CESTAT) H. N. Coal Transports (P) Ltd. vs. CCE
&ST
Date
of Order: 23rd July, 2018
When service provider rendered two separate services under two
separate agreements to a single person, the Tribunal held that merely because
such services are provided to single person
in the same premises, the same cannot be said to be naturally bundled u/s. 66F
and regarded as provision of single service.
Facts
The appellant entered into two
separate contracts with their client SECL for providing services of loading and
transportation/movement of coal in their mining area. Under the loading
agreement, operations of loading of coal at coal face (i.e. a place where the
coal is mined) and the coal which is mined was required to be loaded into
tipper/trucks was carried out. Under the transportation agreement, appellant
was required to transport the coal from coal face to the railway
siding/dump/stock yards within the mining area. As regards consideration
received under transportation agreement, it was that it was provision of “goods
transport agency services” and accordingly, the service recipient i.e. SECL
paid service tax under reverse charge mechanism. The Department alleged that
the activities carried out under loading agreement as well as transportation
agreement are to be considered as a “bundled service” u/s. 66F of
Finance Act, 1994. It was alleged that the contracts have been artificially
vivisected even though the activity comprised is nothing but different aspects
of mining and as both the activities are performed within mining area, it
constitutes a single bundled service with the essential character of mining.
Accordingly, appellant was required
to discharge service tax liability in respect of consideration received under
transportation agreement. The decision of the Hon’ble Supreme Court in CCE
& ST, Raipur vs. Singh Transporters [2017] 84 taxmann.com 39/63 GST 340,
wherein it was held that the activity of transportation of coal from the
pit-heads to railway sidings within the mining area is to be classified under
GTA and not under mining was relied upon.
Held
The Hon’ble Tribunal noted that the
appellant has carried out the activity in terms of each contract under its own
terms and the two contracts have been executed irrespective of each other.
These contracts indicate the rates separately for the respective activities.
The machinery used for the two activities are independent and unconnected with
each other. Further, it was noted that the total quantum of coal loaded at the
coal face has no co-relation with the total quantum of coal transported from
the coal face to the railway siding.
Therefore, the Tribunal held that
simply because both the activities are to be performed within the mining area,
that is no reason to bundle the two together and to take the view that
provision of one service is combined with an element of provision of the other
service. The difference in the quantity of coal loaded and the quantity being
transported clearly show that the appellant is not doing transportation of
loaded coal as a continuous activity. It was observed that perusal of the terms
of the contract clearly indicate that the two are independent contracts.
Consequently,
The Tribunal held that the services
provided under transportation agreement will continue to enjoy the benefit
available to goods transport agency and cannot be bundled into a single service
u/s. 66F along with lifting of coal at the coal face into the activity of
mining and thereby allowed present appeals by setting aside impugned demand.
14. [2018]
97 taxmann.com 532 (Rajasthan HC) CCE vs. Rambagh Palace Hotels (P.) Ltd.
Date
of Order: 8th November, 2017
When the assessee hotel entered into composite contract for
renting of premises for holding functions of marriage etc. and renting of rooms
for temporary stay in hotel, the amounts charged for such temporary stay in
hotel rooms and billed separately, are not chargeable to service tax under
“Mandap Keeper Services”.
Facts
The respondent hotel entered into
composite contracts with customers wherein they provided the banquet/conference
halls and gardens to hold the functions of marriage, conference & meetings
along with the rooms for stay of the persons who participated in such
functions. Revenue demanded service tax on amount charged towards renting of
rooms as such activity is part and parcel of the service provided in relation
to holding of the functions of marriage/meetings/conference and as such are
covered under the Mandap Keeper Service. The lower authorities held that when
the booking is composite and stay of the participants is in the same place as
the mandap, then such rooms are an extension/integral part of the mandap. It
was alleged that separate billing does not take away the fact of such services
being integral part of the overall service provided in relation to holding of
marriage/meeting/conference. The order of lower adjudicating authorities was
confirmed by first appellate authority and subsequently, in appeal before the
Tribunal, the impugned demand was set aside. Being aggrieved, revenue filed the
present appeal. Accordingly, in present appeal, the substantial question of law
before the Hon’ble High Court was whether the Tribunal is correct in holding
that no service tax is leviable/payable on the charges collected in the name of
booking of the rooms which were integrally used in connection with the
functions organised by the organisers in the adjacent gardens and the payment
for the entire premises was made by the organisers under a composite contract
whereas the service tax is leviable on the gross amount charged from the
customers under the category of Mandap Keeper Services in terms of the
provisions of section 67 of the Act, 1994?
Held
The Hon’ble High Court noted that
the Tribunal had relied upon decision in the case of Merwara Estate vs. C.C.
E., Jaipur (16) STR 268 (Tri-Del), wherein it was held that renting of
halls of hotel rooms cannot be held to be covered by the definition of “Mandap
Keeper” inasmuch as the hotel has an identity, personality and function quite
distinguishable from that of a mandap. In present case, the Tribunal had
observed that the activity of the appellant is entirely different from the
mandap keeper activity. The definition of mandap keeper nowhere covers the
temporary occupation of hotel rooms for the purpose of boarding, temporary
residence. It is not disputed that no function is held in the hotel room, which
is used for the purpose of staying. Therefore, the Tribunal held that the order
of the lower authorities holding inclusion of the hotel rooms rent into the
value of Mandap Keeper Service is not sustainable. Observing the same, the
Hon’ble High Court held that since the definition of mandap keeper does not
include the service in question, the Tribunal has rightly distinguished the
mandap service and the room rents received. Accordingly, present appeal was
dismissed.
II. High Court
15. Commissioner of Service Tax VI vs. Shreenath Motors Pvt. Ltd [2018-TIOL-2051-HC-MUM-ST] Date of Order: 19th
September, 2018
Confirmation of demand would ipso facto not lead to
penalty. Divergent views, reasonable cause for non-levy of penalty
Facts
The Respondent is a car dealer and
also a selling agent of banking and financial institutions. They receive
commission from the banks granting loans to the purchasers of the vehicle. Out
of abundant compliance of law, they discharged service tax on the said income
under business auxiliary service. A show cause notice was issued invoking
extended period of limitation demanding service tax, interest and penalties.
The Tribunal relying on the decision of South City Motors Ltd vs.
Commissioner of Service Tax, Delhi [2012 (25) STR 483 (Tri.-Del)] held
that service tax is payable, however in view of contrary decisions, no malafide
intent or suppression can be present and therefore penalties were dropped.
Accordingly, the revenue is in appeal.
Held
The Court appreciated the fact that
there was divergence of views. It was held that in these facts, there was
reasonable cause for non-payment of service tax making section 80 of the Act
applicable. Thus, the department’s appeal was set aside.
Note: Readers may
also note the decision in the case of Concept Motors Pvt. Ltd vs. CST &
ST Ahmedabad [2018-TIOL-2972-CESTAT-AHM] where the demand itself was set
aside as the extended period was held to be not invokable.
16. Team Global Logistics Pvt. Ltd vs.
Commissioner of Service Tax-V
[2018-TIOL-2068-HC-MUM-ST]
Date of Order: 26th September, 2018
A party who prosecutes a Writ Petition bonafide expecting
to succeed cannot be expected to keep preparing for an alternate remedy even
before his Petition is rejected. Accordingly the time spent in prosecuting the
petition before the High Court is required to be excluded for computing the
period of limitation in filing Appeal before the Tribunal.
Facts
The Assessee filed a writ petition
challenging the order of the Commissioner confirming the demand on the ground
that the order passed was without jurisdiction under Article 226 of the
Constitution of India. However, the Court refused to entertain the Appeal on
the ground that there is an
efficacious alternate remedy available by way of Appeal to the Tribunal.
Accordingly, appeal was filed before the Tribunal. The Tribunal dismissed the
condonation application on the ground that the provisions of section 14 of the
Limitation Act, 1963 and/or the principle thereof is not applicable to the
statutory Appeals filed under the Finance Act, 1994 read with Central Excise
Act, 1944. Further it was also stated that the delay is unreasonable on the
ground that the Appellant was agitating the issue before the High Court for over
a year, therefore, they should have kept its Appeal to the Tribunal ready and
filed it with the Tribunal no sooner the High Court dismissed its Writ
Petition. Accordingly, the present Appeal is filed before the High Court.
Held
The Court noted that a party who
prosecutes a Writ Petition bonafide expecting to succeed cannot be
expected to keep preparing for an alternate remedy even before his Petition is
rejected. The principle of section 14 of the Limitation Act, 1963 is applicable
even when in respect of statutory Appeals filed before the Tribunal from the
orders passed by the Collector of Customs (Appeals) under the Customs Act,
1962.
Thus, the period of time spent in prosecuting the Petition against
the order of the Commissioner of Service Tax has to be excluded while computing
the period of limitation in filing an Appeal before the Tribunal. In the
present case, after excluding the said period it is clear that the Appeal is
with a delay of merely 28 days. Therefore, the Court held that the delay is
sufficiently explained and therefore we condone the delay and direct the
Tribunal to consider the submissions on merits.
SOCIETY NEWS
Technology Initiatives Study Circle
Technology Initiatives Study Circle on “Productivity Apps
for Workplaces Part 2” held on 21st September, 2018 at BCAS
Conference Hall
Technology Initiatives Committee conducted a Study Circle
Meeting on Productivity Apps for Workplaces Part 2 on 21st
September, 2018 at BCAS Conference Hall which was ably led by CA. Rajesh Pabari
who is an HR Consultant by Profession and aspiring management consultant by
Passion.
It was the second session on Productivity Apps for Workplaces
which was in continuation of the first
session held on 23rd August 2018. CA Rajesh Pabari covered effective
use of Gmail and important chrome extensions. He also covered various
productivity apps like Trello, Evernote, MightyText, Wunderlist, Anydesk,
PDFill, LibreOffice, Calibre, Agent Ransack, Xilisoft Video Downloader, Flux,
etc.
As the session was Productivity Apps for Workplaces, this
time Technology Initiatives Committee tried to experiment zoom application for
participants to attend the session online through their Desktop and
Smartphones. The Committee received wonderful response from the participants
and more than 15 participants attended session online through zoom application.
The session was followed by Q&A session where the Speaker
thoroughly addressed all the queries of the participants.
The study circle was truly captivating and the participants
got hugely enlightened from the insight given by the learned speaker.
Meeting on “Action Plans 8 to 10 – Aligning Transfer Pricing
Outcomes with Value Creation” held on 1st October, 2018
The BEPS Study Circle organised a discussion on 1st October,
2018 at Khilachand Hall, IMC to understand Action Plans 8 to 10 of BEPS in
order to ensure compliance with value addition. In the meeting the discussion
was led by CA. Ganesh Rajgopalan and CA. Shreyas Shah. The speakers discussed
the final report on Action Plan 8 to 10 of the OECD-G20 Base Erosion and Profit
Shifting Project. The discussion was about the changes to the OECD Transfer
Pricing Guidelines brought about after the adoption of the final Report on
Action 8-10. The concepts of location savings, local market features, assembled
workforce and MNE group synergies were analysed. The new chapter on Intangibles
in the TP Guidelines defining and identifying intangibles, identifying the
parties which perform the significant functions of development, enhancement,
maintenance, protection, exploitation were discussed by the Group. Guidance in
the Report relating to hard to value intangibles including the use of ex post
results by the tax authorities were also discussed.
The session was very interactive and the participants got
enlightened a lot from the discussion.
Lecture Meeting on “GST Audit Report – Clause Wise Analysis”
held on 1st October, 2018 at BCAS Conference Hall
Indirect Taxation Committee organised a lecture meeting on
“GST Audit Report – Clause by Clause Analysis” on 1st October 2018
at BCAS Conference Hall which was addressed by CA. Sunil Gabhawalla, President,
BCAS. He briefed the audience about the steps initiated by the Society in
making recommendations on the audit report to the GST Council from time to
time. He further explained the significant provisions under GST Audit and
various issues concerning the same. Referring to the contents of the
Certification format, he enlightened the audience about the expectations from a
professional and his roles and responsibilities as an Auditor. He subsequently
deliberated on scope of GST audit, documentation prescribed by the Government,
key features of audit report, clause by clause analysis, various contents of
the Annual Reconciliation Statement in Form GSTR-9C and the level of
preparedness required by both the assessees as well as professionals, for
carrying out the GST audits. He also touched upon some of the areas which may
be tricky to comply with and involve significant time and efforts. Some of the
prominent issues in GSTR-9C prone to multiple interpretations and warranting
representation to the government were also discussed.
The meeting got an overwhelming response with more than 150
participants in attendance who got extremely enriched with the knowledge shared
by the learned Speaker having immense expertise on the subject.
Experts Chat @ BCAS on “Criminal Law System, Prosecution,
Economic Offences & Cheque Bouncing” held on 4th October, 2018
at BCAS Congerence Hall
Bombay Chartered Accountants’ Society organised this unique
experts chat on the offbeat topic such as Criminal Law System and Economic
offences on 4th October 2018 at the BCAS Conference Hall. This
stimulating chat was well attended by the members with Adv. Niranjan Mundargi
and Adv. Yogesh Israni on the panel and Dr. Anup P. Shah as moderator.
Dr. Anup Shah started with questions relating to care and due
diligence that needs to be ensured by the Chartered Accountants while
discharging their attest function and issuing certification. Adv. Niranjan
Mundargi emphasised on the importance of documentation and record keeping for
Chartered Accountants with a caveat that they are prone to questioning by
authorities and regulators more frequently in the present dynamic economic
scenario.
Adv. Yogesh Israni explained
the members on laws around cheque bouncing and economic offences. He detailed
the procedure for registering a NC with Police Station and difference between a
bailable and a non-bailable warrant. He also spoke on the hierarchy of various
courts in the judicial system along with monetary limits for filing the suits
and important aspects of Criminal Procedure Code.
The participants found the seminar to be very useful since
with changing scenario, practising Chartered Accountants are also required to
get themselves acquainted with the knowledge of criminal laws and economic
offences.The meeting was interactive and participants enriched themselves with
the knowledge shared on the subject.
HDTI Study Circle
Study Circle Meeting on “Relationship Management” held on 9th
October, 2018 at BCAS Conference Hall
Human Development and Technology Initiatives Committee
organised a Study Circle meeting on 9th October, 2018 at BCAS
Conference Hall on the topic “Relationship Management” which was addressed by
Ms. Carissa Gudino.
The focus of the
discussion was to study all aspects of interpersonal relationships. Broad
points taken up for discussion included (1) Understanding ourselves (2) How to
communicate effectively and (3) How to manage conflict. Briefly, all facets of communication,
relationship building and conflict management were explained by the Speaker.
Overall, this discussion helped participants understand themselves in order to
manage and build better relationships on the personal as well as professional front.
International Economics Study Group
Study Circle Meeting on “Current Economic Issues” held on 9th
October, 2018 at BCAS Conference Hall
International Economics Study Group conducted a meeting on 9th
October, 2018 at BCAS Conference Hall to discuss “Current Economic Issues”. CA.
Rashmin Sanghvi, CA. K. K. Jhunjhunwala & CA. Harshad Shah led the
discussion with their thoughts on current turbulent times with disturbing
trends in Debt & Financial Markets, episodes like IL&FS & few NBFCs,
rising oil prices, depreciating Rupee and Emerging Economic War creating ripple
effects in global economy. This was followed by group interactions.
The group felt that Asset Liability mismatch (ALM) wherein
many NBFCs have used short term borrowings for lending towards long term assets
and issues in regulatory matters and corporate governance have resulted in
current turmoil in financial markets. Oil prices have seen 55% increase in last
1 year on account of OPEC controlling supplies, Saudi – Russia “Secret Deal” (despite
US President Trump`s harsh words) and supply constraints from Libya, Venezuela
& Iran (overhang of sanctions). Indian Rupee also saw sudden depreciation
due to Strong Dollar, Increased Oil prices and outflow of dollars due to sell
off in Debt & Equity market. US 10 & 30 Years Treasury yield has seen
spike to 7 year high resulting in massive outflow from Debt Markets and high
bond yields in India`s debt markets. Trade war between America & China is
escalating and is having ripple effect on global economies which if it spills
to geopolitics, could have adverse impact in economies globally.
The participants
benefitted enormously from the knowledge shared by the experienced and learned
speakers.
ITF Study Circle
Meeting on “Impact of Ind AS on International Taxation”
held on 11th October 2018 at BCAS Conference Hall
ITF Study Circle
organised a meeting on the Impact of Ind AS on International Taxation on 11th
October, 2018 at BCAS Conference Hall which was led by Group Leader CA. Bhaumik
Goda. Ind AS introduces significant differences from the requirements of
existing Indian Generally Accepted Accounting Principles (IGAAP) in areas such
as revenue recognition, property, plant and equipment, financial instruments,
business combinations, consolidation etc.
In addition to changes in the requirements of the standards
themselves, there are several areas where Ind AS requires application of
judgement and financial reporting would be based on estimates made by the
management. Certainly, fundamental shift to Ind AS from IGAAP will not bring
any solace in tax computation of domestic and international tax.
The Group Leader commenced the meeting by discussing the
roadmap to Ind AS for Companies and Banking sector entities. During the course
of the meeting, the speaker made successful attempt for deliberating the issues
with regards to corporate guarantee, principal vs. agent, thin capitalisation,
compounded instruments, redeemable preference shares, impact on CBCR and impact
on comparability. He also discussed case studies, jurisprudence, OECD
commentary, India’s position with various reporting aspects and their criteria
for implementation, consolidation and comparison. The members of the Study
Circle shared their experience on above mentioned issues and it was a huge take
away for all the participants through the insights provided during the meeting.
MISCELLANEA
1. Economic
8. These Are the Best Countries to Live and Work in—And to
Boost Your Salary
Moving abroad boosts the average worker’s income by $21,000,
with the best-paid staff found in Switzerland, the U.S. and Hong Kong. That’s
the conclusion in a survey showing that 45 percent of expats said their
existing job paid more internationally and 28 percent changed locations for a
promotion. In Switzerland, famous for both sky-high mountains and prices, the
annual income boost totaled $61,000. Expat salaries there averaged $203,000 per
year — twice the global level.
In HSBC’s annual Expat Explorer, Singapore topped the ranking
as best place to live and work for a fourth straight year, beating New Zealand,
Germany and Canada. Switzerland ranked only eighth, with the high cost of
raising children and difficulty making friends going against it. “Singapore
packs everything a budding expat could want into one of the world’s smallest territories,”
said John Goddard, head of HSBC Expat. Sweden, one of the world’s most
gender-equal countries, got top billing for family, while New Zealand, Spain
and Taiwan led the way in the experience category.
Despite the cultural, financial and professional advantages
of moving abroad, the survey of 22,318 people uncovered that women trailed on a
variety of metrics.
While relocating boosted women’s income by roughly 27 percent
— topping the increase experienced by men — only about a quarter moved to develop
their careers, compared with 47 percent of their male counterparts. Just half
worked full time, and the overall level of education was somewhat lower.
Women’s average annual salary was also $42,000 lower than men’s.
(Source: Bloomberg – By
Catherine Bosley, 11 October 2018)
9. Rupee has slipped way too much and needs to be reined in
The oldest trick in the high school debater’s book is to make
the opponents’ propositions appear so risible that the judges are left
wondering whether the debate should be taking place at all. Some of the
defenders of unchecked depreciation of the rupee have adopted this tack. They
claim, for instance, that the case for a more managed currency is based on the
perception that the rupee is a symbol of ‘national pride’. I am, however, yet
to find any evidence of this uber-nationalism among economists who ask for
closer currency control.
Others have defended depreciation as a process of the
currency ‘finding its own level’ and cautioned against meddling too much in the
natural order of things. To me, this dogma in its most extreme could involve
gross oversimplification and misreading of the forces and mechanisms that drive
the rupee. The public debate on the rupee is not a high school competition, and
the arguments for and against a more active management have to rise above
adolescent tactics of point-scoring. So, let’s have a more meaningful
conversation.
Time for Practicals
Of the myriad things that make a currency market different
from an elementary textbook model (where demand and supply curves dutifully
intersect and price finds its own level), the one that needs to be emphasised
is the role of expectations in influencing market participant behaviour.
Throw in active speculation on the rupee in the offshore
non-deliverable forwards (NDF) market (any forex trader would corroborate its
massive influence on local rates), and you have a situation where bets on the
future hold the key to the rupee’s trajectory. So, any meaningful debate on a
‘hands-off ’ strategy must address the following questions. Does the free play
of forces in such a complex market bring the rupee close to a ‘desirable’
level? Or does it instead breed expectations that can take the currency further
and further away from it?
Should we try instead to manage these expectations to bring
the currency closer to this desirable level? What happens to the cost of
servicing external debt with this large depreciation? What is the future of the
nascent corporate debt market if overseas investors sense that policymakers are
indifferent to the future of the currency even in the throes of acrisis? Is our
domestic financial system with its problems of stressed assets and capital
shortage adequate to fund our growth needs? Let me add a couple of more
queries. How quickly can the current account compress on the back of rapid
depreciation?
Let’s take a recent
example from our neighbourhood. In the first bout of depreciation of emerging
market currencies that started in March this year, the Philippines Central Bank
chose to let the market guide its currency, the peso.
The result: high inflation without any noticeable rise in
exports that ultimately forced four policy rate hikes in quick succession. Are
we letting ourselves into the same trap by ignoring strong input price
inflation led by oil prices simply because food prices are soft?
The issue of the current account brings me to the point that
the ‘free depreciators’ champion: the overvaluation of the rupee. Yes, going by
simple real effective exchange rate (REER) measures, the rupee would have to
fall to around 72 or 73 to the dollar to correct for overvaluation. But is the
simple REER — which focuses entirely on trade competitiveness — necessarily be
the best measure of fair value?
REERing its Head
Let’s face the fact. We will continue to have a current
account deficit (CAD) if we have an economy where domestic demand is the
principal driver. That’s not necessarily a bad thing, but it means that we need
to get foreign capital to fund it.
If the capital account does matter, should the fairness
metric focus on trade alone? Don’t we, in the process of chasing trade
competitiveness, risk the possibility of chasing capital away? Instead,
shouldn’t the valuation measure bring balance trade (or current) account
competitiveness with capital account ‘attractiveness’? Fortunately, we don’t
really need a Nobel Prize-winning research breakthrough for this.
The textbook prescription of adjusting REER by productivity
differentials (usually proxied by per-capita GDP) does the trick. It partly
reduces the impact of higher inflation in India more than its trading partners
do by factoring in India’s growth advantage over its trading partners or
competitors. It might be good to remind ourselves that higher growth (usually
associated with higher interest rates) remains somewhat the strongest magnet
for capital. The adjusted REER would show a fair value of a little less than
Rs. 70 to the dollar. Going by this, the rupee has indeed slipped excessively
much and needs to be reined in.
I lay no claim to have the correct answers to the many
questions I have raised here. Perhaps a freer float for the rupee is the best
way forward. However, I am sanguine about a couple of things. Money will get
even tighter in the global financial system.
There is a vicious trade war between two global superpowers,
and the oil market is in the fragile balance. So, it would be risky to assume
that the recent respite in the rupee’s fall will last. Secondly, I need
convincing answers to some of my queries to switch sides. That, I hope, is a
fair demand
(Source: Economic Times, 24 October 2018)
2. Business
10. Facebook News: After Oculus Co-Founder Departs, Company
Says New Oculus Rift Still Coming
Facebook drew headlines on 22 October 2018 when Brian Iribe,
the co-founder and former CEO of Oculus VR, announced his departure from the
social media giant. The news was also accompanied by reports that Iribe left
because Facebook canceled an upcoming successor to the Oculus Rift headset,
which Facebook has denied, according to TechCrunch.
Iribe’s exit was announced in a Facebook post, which included
his intent to “recharge, reflect and be creative.” However, TechCrunch reported
that Facebook’s cancelation of the so-called Oculus Rift 2 may have played a
part in his decision. In response, Facebook told TechCrunch that there will be
another version of the Rift headset.
“While we can’t comment on our product roadmap specifics, we
do have future plans, and can confirm that we are planning for a future version
of Rift,” Facebook’s statement said.
Oculus makes a few different VR headsets. Rift was the
original, and is still the most expensive, as it must be wired to a high-end
gaming PC to function. In return, it can play the widest variety of VR
experiences. Oculus Go and the recently announced Oculus Quest are wireless and
cheaper, but do not support as many applications.It is possible the specific
Rift follow-up Iribe worked on was indeed canceled, but Facebook still plans to
support the higher end of the Oculus lineup down the road.
Iribe would not be the first founder of an acquired property
to leave Facebook after reports of internal tension. Instagram co-founders Mike
Krieger and Kevin Systrom left Facebook at the end of September, and reports
indicated there were disagreements between them and Facebook executives about
the future of Instagram.
WhatsApp co-founders Brian Acton and Jan Koum also left the
company in 2017 and 2018, respectively. Acton recently admitted to
disagreements with Facebook about the monetisation of WhatsApp.
(Source: International Business Times – By Alex Perry, 23
October 2018)
STATISTICALLY SPEAKING
- World’s most powerful passports:
- Online videos gaining edge in India
Source: State of Online Video 2018’ report by Limelight Networks.
- Foreign Exchange Reserves (in $ billion):
Source: Twitter @spectatorindex
- Self-employed workers as share of total workers
Source: OECD (twitted by @spectatorindex)
- Say media report news accurately, 2018
Source: Pew Research (twitted by @spectatorindex)
- Research and Development, 2018 (in $ billion)
Research and Development, 2018 ( in billion)
Source: UNESCO (twitted by @spectatorindex)
ETHICS AND YOU
Members in Industry
Arjun
(A) — Hey Bhagwan, today I want to ask you a very important
question. It is perplexing my mind for a long time.
Shrikrishna
— Arjun, what then prevents you from asking?
A — No, all this time, we have been discussing about the ethics to be
followed by members in practice. What
about those who are working in Industry?
S — you think they are above all the rules of ethics?
A — I feel, they are enjoying life without bothering of ethics. Only us who are slogging in practice are
constantly under fear of disciplinary action.
S — You are mistaken. Why do you
say so?
A — See all these scams –right from Harshad Mehta, Ketan Parikh, Satyam,
PNB, MCX, upto IL & FS – I have never heard any of their employees being
hooked for misconduct.
S — Achchha?
A — Yes. Only our practicing CAs
are taken to task. These corporate
executives who are the real
beneficiaries of scams are enjoying life merrily! Their pay packages are also thick. And on the top of it, there are allowances
and perks!
They
are minting money.
.
S — Arjun, grass is always greener on the other side. Have you seen their lives closely?
A — They only pretend to be busy. Whole day long they relax, do chatting
and also spend time in share market.
They start working in the evening, claim all late-sitting benefits and
show that they are under stress!
S — If that is so, why didn’t you take up such corporate job? Anyway, today let us talk only about the Code
of Ethics applicable to them.
.A — Haan! Yes, tell me.
S — See, in part II of First Schedule, they can neither share a part of
their emoluments with anyone; nor can they accept anything in part in the
payments made to the other persons engaged by the employer company.
.
A — Aah! What is so great about it? How can bribery be
tolerated? It’s a crime.
S — I agree.
A — See, how many stringent clauses apply to us – Due diligence,
Gross negligence, Contravention of laws ………………………
S — Part III and Part IV of First Schedule apply to all
members. Like, they cannot misrepresent
themselves as fellow members if they are really not FCAs or its a misconduct if
they do not supply information required by the Institute or solicit
professional work.
A — Oh! I hadn’t noticed it. What next?
S — And if they are held criminally guilty or if they bring disrepute to
the profession. All these clauses are very much applicable to them.
A — But what about those cumbersome compliances with Accounting Standards,
Guidance Notes; other directives of the Institute? They seem to be free from all those!
S — How can you say so? You as an
auditor are supposed to see whether they on behalf of the company have complied
with all those directives. That’s your
very job. You have to report those non
compliances without fear or favor. Then
they will be exposed.
A — See, company’s management is never bothered about such compliances.
They say it is auditor’s botheration.
They create such a situation where the auditor is really helpless. The last moment rush! We also don’t get enough time to
discuss
and apply our mind.
S —Then, why don’t you give an adverse report; or a disclaimer?
A — Bhagwan, that is not so easy. We can’t afford to qualify our report like
this.
S — Why? It is your duty.
A — Agreed. But where do we have so much independence?
S — To that extent, I appreciate your limitations.
A —Actually it is helplessness. ‘majboori’
The foundation of the audit profession itself becomes shaky because of this.
S — The reason is you lack unity and courage to say ‘No’
A — But tell me how further they are bound by ethics?
S — See. Again in Part II of Second Schedule, very first clause, if any
member including the one in service, contravenes any of the provisions of CA
Act or regulations or guidelines issued by the Institute, he is held guilty.
They also
cannot
divulge the secret information with any person, make any false or untrue
statement or defalcate or embezzle moneys. All these clauses apply to all the
members.
A — Yes. I agree that I was
under a mistaken belief. In short,
ethics are all-pervasive. All of us need to follow them religiously.
S — You said it! Even I
am not above ethics!
Om Shanti.
Note:
The above dialogue
explains various clauses of Code of Ethics which are applicable to members in
service.
CORPORATE LAW CORNER
4. B.
K. Educational Services (P). Ltd. vs. Parag Gupta & Associates [2018] 98
taxmann.com
213 (SC)
Date
of Order: 11th October, 2018
Section 238A of the Insolvency and Bankruptcy Code, 2016 –
Provisions of Limitation Act, 1963 are applicable to applications filed under
Insolvency and Bankruptcy Code – Applications under the Code cannot be filed
where the default has occurred more than three years prior to the date of
filing of application, except in cases where delay is condoned in terms of
section 5 of the Limitation Act
FACTS
National Company Law Appellate
Tribunal (“NCLAT”) in a batch of appeals held that Limitation Act, 1963 did not
apply to applications made u/s. 7 and 9 of Insolvency and Bankruptcy Code, 2016
(“Code”) from the date of its commencement of which was 01.12.2016 till the
date on which the Code was amended to incorporate section 238A which was
06.06.2018. The matter was taken up before the Supreme Court to determine
whether section 238A of the Code applied retrospectively or was prospective in
nature. Section 238A was inserted on 06.06.2018 and reads as follows:
The provisions of the Limitation
Act, 1963 (36 of 1963) shall, as far as may be, apply to the proceedings or
appeals before the Adjudicating Authority, the National Company Law Appellate
Tribunal, the Debt Recovery Tribunal or the Debt Recovery Appellate Tribunal,
as the case may be.
Section 238 A has the same language
as section 433 of the Companies Act, 2013.
HELD
The Supreme Court referred to the
Report of the Insolvency Law Committee of March, 2018 and perused the
provisions of Companies Act as well as the Code and observed that the Code
cannot be used as a tool to revive debt which is no longer due as the same was
time barred. It was held that amendment of section 238A would not serve its
object unless it is construed as being retrospective, as otherwise,
applications seeking to resurrect time-barred claims would have to be allowed,
not being governed by the law of limitation.
Supreme Court further referred to
its decision in Innoventive Industries Ltd. vs. ICICI Bank & Anr.,
(2018) 1 SCC 407 in order to conclude that expression “debt due” in the
definition sections of the Code would only refer to debts that are “due and
payable” in law, i.e., the debts that are not time-barred.
It was observed that the Insolvency
Law Committee Report of March, 2018 made it very clear that the object of the
Code from the very beginning was not to allow dead or stale claims to be resuscitated.
The intention of the Legislature from the very beginning was to apply the
Limitation Act to the NCLT and the NCLAT while deciding applications filed u/s.
7 and 9 of the Code and appeals therefrom. Section 433 of the Companies Act,
2013 which applies to the NCLT and the NCLAT, expressly applies the Limitation
Act to the NCLAT, as well. Both, section 433 of the Companies Act as well as
section 238A of the Code, applied the provisions of the Limitation Act “as far
as may be”. Where periods of limitation were laid down in the Code, these
periods would apply notwithstanding anything to the contrary contained in the
Limitation Act.
It was held that since the
Limitation Act is applicable to applications filed u/s. 7 and 9 of the Code
from the inception of the Code, Article 137 of the Limitation Act would get
attracted. Article 137 of the Limitation Act provides the period of limitation
in case of “any other application for which no period of limitation is
provided elsewhere” to be three years from the time when the right to
apply accrues. “The right to sue”, therefore, accrues when a default occurs. If
the default had occurred over three years prior to the date of filing of the
application, the application would be barred under Article 137 of the Limitation
Act, save and except in those cases where, in the facts of the case, section 5
of the Limitation Act may be applied to condone the delay in filing such
application.
5. Nikhil Mehta & Sons (HUF) vs. AMR
Infrastructure Ltd. [2018] 98 taxmann.com 8 (NCLT – New Delhi)
Date
of Order: 29th September, 2018
Section 22(2) of the Insolvency and Bankruptcy Code, 2016 –
Threshold voting share for decision of the Committee of Creditor (“CoC”) by 66%
would be directory and not mandatory in the cases of class of creditors where
the prospective buyers of Real Estate (Commercial & Residential) alone
constitute the CoC.
FACTS
CP No. (IB)-02(PB)/2017 (Nikhil
Mehta& sons (HUF) &Ors. vs. M/s. AMR Infrastructure Ltd.) was
admitted for initiating Corporate Insolvency Resolution Process (“CIRP”) on
10.05.2018 by the National Company Law Tribunal (“NCLT”). Mr. Vikram Bajaj was
appointed as Interim Resolution Professional (“IRP”). IRP took various steps in
discharge of his duties as required under law.
A new class of financial creditors
was introduced in the Insolvency and Bankruptcy Code, 2016 (“Code”) by
Amendment Act of 2018 with effect from 06.06.2018 being Real Estate
(Commercial) and Real Estate (Residential). Two representatives were appointed
to represent the aforesaid new classes through order dated 14.08.2018. The
representatives were given a list of 906 financial creditors, full details of
meeting, the electronic Id of the creditors for electronic communication etc.
The electronic window was kept opened for 48 hours for easy facilitation of
voting and understanding the agenda with clarifications.
236 financial creditors in the Real
Estate (Residential) forming 16.36% of voting share and 227 financial creditors
of Real Estate (Commercial) constituting 36.4% voted in the meeting of
Committee of Creditors (“CoC”). Overall, 463 financial creditors consisting of
52.78% voted up to 10.00 AM on 25.08.2018. Majority of the financial creditors
gave voting instructions to their authorised representative in favour of the
resolution proposed by the IRP. None of the resolutions proposed could meet the
voting threshold of 66% prescribed under the Code and none of the resolution
has been approved as per the existing provisions.
IRP therefore approached NCLT to
resolve the deadlock created by the low percentage of votes cast by a new
category of financial creditor. The NCLT was to decide if the threshold of
voting shares’ in respect of the class of financial creditors Real Estate
(Commercial) and Real Estate (Residential) as provided in various provisions of
the Code (e.g. section 22(2) provides threshold of 66%) was mandatory or not.
HELD
The Tribunal observed that
different thresholds have been provided for various provisions under the Code.
Having read section 22(2), it was observed that the expression ‘may’ in section
22(2) was associated with the phrase ‘either resolve to appoint the interim
resolution professional as a resolution profession or to replace the interim
resolution professional by another resolution professional’ and would not have
any bearing on the expression ‘by a majority vote of not less than sixty six
percent of the voting shares of the financial creditors’.
The threshold for the purposes of
seeking extension of a period of CIRP, appointing IRP as RP etc. is 66% for all
the financial creditors irrespective of class to which they belong.
NCLT relied on Supreme Court ruling
in case of Delhi Transport Corporation vs. D.T.C Mazdoor Congress and Ors.
(1991) Supp (1)SCC 600 and Tinsukhia Electrical Supply Co. Limited vs.
State of Assam [1989] 3 SCC 709 to apply the principle that interpretation
which need to be adopted has to be such that sustains the constitutional
validity of a statute rather than leaning in favour of interpretation which
results in its declaration as ultra vires.
Applying the purposive
interpretation above, it was held that threshold voting share for decision of
the committee of creditor by sixty six percent would not be mandatory in the
cases of class of creditors where the prospective buyers of Real Estate
(Commercial & Residential) alone constitute the CoC. In case of deadlock
the preference can be given to the decisions taken by the highest percentage in
the CoC and section 22(2) must be regarded as directory in nature in case CoC
is comprised 100% of class of creditors Real Estate (Commercial &
Residential).
The resolutions polled for in the
said case were held to be passed.
6. Loyz Oil PTE Ltd. vs. Interlink Petroleum
Ltd.
[2018]
97 taxmann.com 627 (NCLT – New Delhi)
Date
of Order: 7th September, 2018
Ss. 5(2), 5(8) and 7, of the Insolvency and Bankruptcy Code, 2016
–Mere waiver of interest by the Financial creditor on the request of corporate
debtor would not alter the commercial nature of loan advanced – Contention that
amounts would be paid in future would not be sufficient and the financial
creditor continued to hold the right to proceed and seek remedy provided for in
the Code
FACTS
I Co obtained loan from L Co as
External Commercial Borrowing (“ECB”) after obtaining due permission from
Reserve Bank of India (“RBI”) in this regard. I Co entered in to two loan
agreements with L Co on 26.12.2012 and 23.05.2014 respectively for USD
12,50,000 and USD 90,00,000. On 30.06.2016 I Co requested L Co to waive of the
interest from the loan amount. L Co agreed to claim only the principal amount
and reversed the interest charged.
On 18.04.2018, L Co vide an e-mail
demanded the repayment of ECB of USD 1,02,50,000. I Co was unable to clear the
requested amounts. I Co in its reply dated 10.08.2018 acknowledged that it was
in receipt of the aforesaid e-mail. It stated that it made huge investment in
exploration activity but due to failure in commercial discovery and adverse
business conditions for the past few years the company was facing financial
difficulties. I Co proceeded to state that amounts due would be repaid once
steps taken for discovery of oil became fruitful.
All loans given by L Co are duly
reflected in the audited financial statements of I Co for the financial year
2016-17.
L Co filed for Corporate Insolvency
Resolution Process (“CIRP”) against I Co by filing an application u/s. 7 of the
Code and proposed the appointment of Shri Atul Mittal as Interim Resolution
Professional (“IRP”).
HELD
National Company Law Tribunal
(“NCLT”) examined the provisions of sections 5(7) and 5(8) of the Code which
define the terms “financial creditor” and “financial debt”.
In the facts of the present case, L
Co had indeed disbursed the loan to I Co which was recoverable with interest
pursuant to validly executed loan agreements. Merely because there was a
subsequent waiver of interest pursuant to the request made by I Co, would not
alter the commercial nature of the transaction. It was held that the claim
would continue to qualify as a “financial debt” and L Co would be regarded as a
“financial creditor” eligible to file the application u/s. 7 of the Code.
It was observed that financial
creditor could file a claim as long as the following conditions were satisfied:
(a) Default
has occurred.
(b) Application
is complete, and
(c) No
disciplinary proceeding against the proposed IRP is pending
In the facts of the present case,
application u/s. 7 was maintainable as the records showed the advancement of
loan, occurrence of existence of default and the amount of default in excess of
Rs. 1 lakh. Merely because I Co contended that it would repay the debt in
future would not alter the fact there was a default on its part.
petition was admitted and appointment of IRP was confirmed by the NCLT as well
as necessary directions for further steps were given by the NCLT.
ALLIED LAWS
5. Hindu Law – Alienation by Karta
– Co-parcenor son has no right to challenge the sale made.
Kehar Singh (D) thr. L.Rs. and Ors. vs. Nachittar Kaur and
Ors. AIR 2018 Supreme Court 3907
The suit filed by the son of the defendant which was founded
on the premise that the suit property i.e. the property based on which the suit
is filed, was and still continues to be ancestral property.
In the facts of the case, the Karta (defendant) has sold a
property, which was alleged to be without authority and without consent of the
other members of the Hindu Undivided Family. The plaintiff alleged that his
father (defendant) had no right to sell the suit land without obtaining the
Plaintiff’s consent, which he never gave to his father for sale of the suit
land, that there was no legal necessity of the family which could permit the
defendant to sell the suit land. The only question which was left for
adjudication was that the said sale made by the defendant was not valid since
the approval of the other co-parcenors was not acquired.
The Court observed that a Hindu father as such has special
powers of alienating coparcenary property, which no other coparcener has. Such
father could sell or mortgage ancestral property, whether movable or immovable,
including the interest of his sons, grandsons and great-grandsons therein, for
the payment of his own debt, provided the debt was an antecedent debt, and was
not incurred for immoral or illegal purposes.
In substance, there should exist a legal necessity due to
which the said property was sold. The legal necessity was defined.
It was held that since the said sale was done within the
purview of the powers available to a father to sell ancestral property for the
purposes specified and not for immoral or illegal purposes, hence the said sale
done by the father (karta) was valid.
6. Legal Representative –
Remarried widow – Can be a claimant. [Motor Vehicles Act, 1988; Section2(11)]
National Insurance Company Ltd. and Ors. vs. Nidhi Goel and
Ors. AIR (2018) Punjab And Haryana 161
In this case the legal representatives of the deceased
petitioner died to the rash and negligent driving of the respondents. The
Learned Tribunal awarded a compensation of Rs. 12,89,500 to the claimants along
with interest @ 9% p.a. to the claimants.
It was contended that no compensation is payable to the widow
as she got re-married within about three months of the death of her husband. It
was the case that once the widow had remarried, she ceased to be dependent upon
the deceased. Moreover, after her remarriage she became dependent upon the
person who married her and, therefore, there was no question of paying
compensation for her maintenance during her life-time.
The Court observed that a
reference, however, can be made to section 2(11) of the Code of Civil
Procedure, 1908, for its definition where said term means a person who in law
represents the estate of a deceased person, and includes any person who
intermeddles with the estate of deceased and where a party sues or is sued in a
representative character the person on whom the estate devolves on the death of
the party so suing or sued. After the death of her husband, the widow continues
to represent his estate irrespective of her re-marriage because she inherits
part of the estate of her deceased husband. Thus, such widow is included in the
definition of “legal representative” as reproduced above and, thus,
can maintain a petition u/s. 166 of the Act even after her re-marriage.
It was held by the Hon’ble Court that the widow of the
deceased person is also entitled to claim compensation. It is beyond the pale
of doubt that the Act is a social welfare legislation and should be interpreted
so as to fulfill the objective with which it was enacted. If the proposition
put forward that a remarried widow is not entitled to get any compensation, it
would militate against the right of a widow to re-marry. This would not be in
public interest or in the interest of the society at large.
7.
Natural Justice – Specific request for a date – AO ought to have giving
such opportunity of personal hearing.
Vetrivel Constructions vs. Commercial Tax Officer, Perambur
Assessment Circle 2018 (15) G.S.T.L. 527 (Mad.)
The main contention was that the impugned assessment orders
were passed in violation of the principles of natural justice as the respondent
failed to provide an opportunity of personal hearing, inspite of asking for the
same.
The petitioner submitted that the respondent having informed
the petitioner that they can avail the opportunity of personal hearing through
their show cause notice dated 29.12.2015, ought to have given such hearing to
the petitioner, especially when the petitioner has specifically requested for
giving such opportunity through their letters dated 31.12.2016 and 11.01.2017.
He further contended that the conclusion arrived by the respondent based on web
report is again in violation of principles of natural justice as the petitioner
was not furnished with those details of the report.
The respondent submitted that the petitioner was given an
opportunity of hearing by giving a show cause notice and the impugned orders of
assessment were passed after considering the reply given by the petitioner.
Therefore, he contended that there is no violation of principles of natural
justice warranting interference by this court.
The Court set aside the matter to the AO for fresh
consideration on the premise that the department circular mentioned as under;
“Fair opportunity is to be given to the assessee and
judicial consideration given to the representations, evidences and materials
furnished by him. But personal hearing need not be given unless the status
requires it (e.g. Section 22(2) or the assessee asks for it.”
The Court, while setting aside the matter, also relied upon
the decision reported in (2010) 33 VST 333 (Mad), it has been observed
as follows;
“the provision of section 16(1)(a) of the said Act has to
be construed in accordance with the said circular which is by way of
contemporanea expositio. So when a specific demand is made for personal hearing
the reasonable opportunity of showing cause should include the same in the
interest of fairness in procedure.”
8. Release Deed – Inadequate stamp
duty paid – Objection to admissibility to be decided when objection raised.
[Evidence Act, 1872; Section 61; Stamp Act, 1899; Section 35]
Sudhanshu Shekhar Shukla
vs. Meenakshi Trivedi and Ors. AIR (2018) Chattisgarh 139
There was a consent letter whereby rights in a property were
relinquished by few of the sharers in favour of the plaintiff. However, this
consent letter, when brought into evidence, was objected to with respect to its
admissibility under the Evidence Act.
An application u/s. 35 of the Stamp Act was filed reiterating
the pleading of the plaintiff of relinquishment deed dated 20.06.1996 and it
was stated that the said relinquishment deed was executed only on Rs. 10/-
Stamp which is an unregistered document. It was also pleaded that the value of
the property for which the relinquishment deed operates is more than Rs. 100/-,
therefore, as per the Article 55 Schedule 1 A of the Act, 1899 of the Stamp
Act, the stamp duty would be attracted over the value of the property. It was
further pleaded that since the document was insufficiently stamped as such it
could not be admitted u/s.35 of the Act, 1899.
Further it was also pleaded that the document is also unregistered one,
therefore, is inadmissible by virtue of section 17 (1) of the Indian
Registration Act, 1908 (hereinafter referred to as ‘the Act, 1908).
The lower authority held that whether it is registered or
not, the admissibility of the same would be decided at the time of final
hearing of the case.
The only question before the Hon’ble Court was whether the
document dated 20.06.1996 i.e. the deed of relinquishment is admissible in
evidence or not for want of proper stamp duty and registration.
The Court held that the trial Court was directed to decide
the admissibility of the document sought to be exhibited by the plaintiff in
terms of the observation made in this order at the time of taking evidence and
cannot be postponed. If the trial Court finds that the document is
insufficiently stamped and is tendered in evidence then the Court is duty bound
to impound the same and in order to decide the levy of stamp, the document is
required to be sent to the Collector as per sections 33, 35, 38 & 40 of the
Indian Stamp Act, 1899.
9.
Will – No proof of execution and attestation – Natural Succession.
[Succession Act, 1925, Section 63(c)]
Didar Singh vs. Gram Panchayat of Village, Meghowal and Ors.
AIR 2018 Punjab And Haryana 172
A Will was executed which was disputed by the respondent.
The Will propounded by the plaintiff was stated to be forged
and fabricated.
The Court observed that the provisions of the Act envisaged
three situations: one Will has to be attested by two or more witnesses and each
of them had seen the testator to either append his signatures or thumb
impressions or mark or has seen the other person sign the Will in the presence
and by the direction of the testator, or has received from the testator a
personal acknowledgment of his signature or mark, or the signature of such
other person; and third situation, each of the witnesses signed in the presence
of the testator.
The Court further observed that the trial Court had discarded
the Will but the Lower Appellate Court reversed the finding by holding that
Will had been proved. However, the aforementioned finding may not be
sustainable as the witnesses of the Will did not depose in terms of provisions
of section 63(c) of Indian Succession Act. There is not a single iota of
statement that he appended the signature on the Will on the instructions of
deceased Chanan Singh. In the impugned Will, no reasons were assigned as to why
Chanan Singh had dis-inherited his line of natural succession, i.e., brother,
Class-II heir or with regard to previous Will.
The Court held that since Will set up by the defendants has
been disbelieved by this Court as a necessary corollary, suit property would
devolve upon appellant(s) by natural succession being Class II heir.
FEMA FOCUS
with requirement to file Form ARF within 30 days of receipt of funds pertaining
to share capital from foreign investor
Earlier all Indian companies
receiving share capital from foreign investor were required to file Form ARF
within 30 days of receipt of share capital from foreign investor. The said Form
ARF has been merged with Form FC-GPR with effect from 1st September,
2018 and is required to be filed online through filing of Single Master Form
(Form SMF) on the FIRMS database.
RBI has now amended the FDI
Regulations governed by FEMA 20 (R)/2017-RB dated 7th November,
2017 and omitted the requirement to file ARF within 30 days of receipt of
funds towards share capital. Hence, going forward, with respect to receipt of
funds relating to share capital from foreign investor, Form ARF will not be
required to be filed separately and its details would be included in Form
FC-GPR.
(II) Downstream investment
Erstwhile FDI regulations
- Under earlier FDI
Regulations governed by FEMA 20(R), Form DI was required to be filed by
Investor Indian company within 30 days of making downstream investment when
following conditions were satisfied:
i) Investor
Indian company makes investment in another Indian company; and
ii) Such
Investment qualifies as indirect foreign investment;
- ‘Indirect Foreign
Investment’ has been defined to mean downstream investment received by an
Indian entity from:
(a)
Indian entities (excluding investment vehicle) provided:
• Such Indian entity (Investor IE) has
received foreign investment and
• the investor IE is not owned and not
controlled by resident Indian citizens or is owned or controlled by persons
resident outside India;
(b) Investment
vehicle
- by resident Indian
citizens or is owned or controlled by persons resident outside India
- It may be noted that Form
DI was required to be filed within 30 days of investment even when capital
instruments were not allotted by recipient Indian company.
- However, Form DI was not
required to be filed when either the investor entity or investee entity was not
an Indian company.
Amended FDI regulations w.e.f. from 1st
September 2018
Under the amended FDI Regulations,
Form DI is now required to be filed by investor entity in all situations where
downstream investment is being made by an Indian entity having FDI investment
irrespective of whether investor or investee entity are Indian companies or
not. Further, Form DI is now required to be filed within 30 days of allotment
of capital instruments and not within 30 days of making investment.
Thus, care needs to be taken to
ensure that Form DI is appropriately filed by Indian investor entities in all
cases of indirect foreign investment being made into investee Indian entities.
Comparison between applicability of filing of Form DI under different scenarios
under old FDI regulations and new FDI regulations are as under:
Scenario |
Investor entity making |
Investee entity |
Applicability of Form DI |
Applicability of Form DI |
Scenario 1 |
Indian LLP / Any Indian |
Indian company |
Not applicable |
Applicable |
Scenario 2 |
Indian company |
Indian LLP / Any Indian |
Not applicable |
Applicable |
Scenario 3 |
Indian company |
Indian company |
Applicable |
Applicable |
Scenario 4 |
Indian investment vehicle |
Indian company / Any other |
Not applicable |
Applicable |
As per revised reporting format,
Form DI needs to be filed online as part SMF. Form DI is yet to be notified.
Till notified, Indian investor will have to take care of aforesaid
changes.
Analysis of Recent Compounding Orders
An analysis of some interesting
compounding orders passed by Reserve Bank of India in recent months of June and
July, 2018 and uploaded on the website1 are given below. Article
refers to regulatory provisions as existing at the time of offence. Changes in
regulatory provisions are noted in comments section.
Foreign Direct Investment (FDI)
compounding orders
A. Phoenix Managed
Services (India) Private Limited
Date of order: 19th June
2018
Regulation: FEMA 20/2000-RB Foreign
Exchange Management (Transfer or Issue of Security by a Person Resident Outside
India) Regulations, 2000 (FEMA 20).
Issue:
(i) Allotment of shares to Non-Resident
investors under its Memorandum & Article of Association, prior to receipt
of consideration.
(ii) Delay in reporting receipt of foreign
inward remittance towards share capital;
(iii) Delay in submission of Form
FC-GPR relating to allotment of shares and;
(iv) Delay in filing ‘Annual Return on Foreign
Liabilities and Assets’ (FLA Return).
_______________________________________-
1
https://www.rbi.org.in/scripts/Compoundingorders.aspx
Facts:
- Applicant is engaged in
the business of software designing and developing and dealing in computer
software and solutions etc.
- Applicant allotted shares
to Non-Resident investors under its Memorandum & Article of Association,
prior to receipt of consideration.
- Applicant reported receipt
of remittances to RBI with a delay ranging from 3 months to 3 years
- Applicant filed form
FC-GPRs with a delay of 4.5 years. Applicant did not file FLA return for FY
2012-13 to FY 2014-15. Whereas for FY 2015-16 and 2016-17, Applicant filled FLA
returns with delay.
Regulatory provisions:
- Paragraph 8 of Schedule 1
to Notification No. FEMA 20 requires issue of shares within 180 days from the
date of receipt of the inward remittance.
- Paragraph 9(1)(A) of
Schedule 1 to Notification No. FEMA 20 – requires reporting of inward remittance
for FDI investment within 30 days from receipt of such remittance
- Paragraph 9(1)(B) of
Schedule 1 to notification No. FEMA 20 requires filing of Form FC-GPR within 30
days from the date of issue of shares.
- Paragraph 9(2) of
Schedule 1 to Notification No. FEMA 20 read with A. P. (DIR Series) Circular
No. 29 dated 2nd February, 2017, requires filing of FLA return on or
before the 15th day of July each year.
Contravention:
Relevant Para of FEMA 20 Regulation |
Nature of default |
Amount involved |
Time period of default |
Paragraph 8 of Schedule 1 |
Allotment of shares to Non-Resident investors prior to receipt |
10,06,069 |
1 year 6 months to 3 years 10 months |
Paragraph 9(1)(A) of Schedule 1 |
Delay in reporting of inward remittances for share capital to |
10,06,069 |
3 months to 2 years & 8 months |
Paragraph 9(1)(B) of Schedule 1 |
Delay in filing of Form FC-GPR |
10,00,000 |
4 years & 6 months |
Paragraph 9(2) of Schedule 1 |
Non-filing / delayed filing of FLA return. |
– |
5 financial years |
Compounding penalty:
Compounding penalty of Rs.1,14,732
was levied.
B. Strides Shasun
Limited
Date of Order: 28th June
2018
Regulation: FEMA 20
Issue:
Issuance of Employee Stock Options
(ESOPs) to the person resident outside India in the brownfield pharmaceutical
company without obtaining necessary prior approval at a time when the foreign
investment
in brownfield pharmaceutical sector was under the approval route.
Facts:
- Applicant is engaged in
pharmaceutical industry, as manufacturer, producer, processor and formulator of
proprietary medicine, drugs etc.
- In February, 2014,
Applicant issued 50,000 ESOPs exercisable/ convertible into 50,000 equity
shares to a non-resident employee at an exercise price of Rs.322.30 per share.
- In March, 2015, the
non-resident employee exercised 10,000 Options and accordingly, 10,000 shares
were allotted by the Applicant to the said non-resident employee.
- FDI upto 100% under the
Automatic route was permitted in the pharmaceuticals sector till November 2011.
- Subsequently, with effect
from 3rd November 2011, above FDI policy was amended. Different
criteria was prescribed depending upon whether investment in pharmaceutical
sector was greenfield (i.e. investments in new companies) or brownfield (investment
in existing companies). FDI upto 100%
under the automatic route was permitted only for greenfield investments in
pharmceuticals sector. However, for investment in existing Indian pharma
companies (i.e. brownfield investments), FDI upto 100% was brought under the
government route.
- Hence, as issuance of
ESOPs and allotment of shares to non-resident employees in March 2015 was in
violation of FDI regulations as amended in November 2011, SSL applied to
Department of Pharmaceuticals, Ministry of Chemicals & Fertilizers
(pursuant to abolishment of FIPB) in January 2017.
- Department of
Pharmaceuticals, Ministry of Chemicals & Fertilizers granted its approval,
advising the Applicant to approach RBI for compounding the contravention
committed by issuing abovementioned ESOPs, as brownfield investment in
pharmaceutical sector was under approval route at the time of issuance of
ESOPs, thus requiring prior FIPB approval.
- In the compounding
application, SSL submitted that ED had asked it to furnish certain information
and documents in relation to export / import transactions. Hence, RBI sought
comments from ED as to whether offence being compounded by RBI, i.e. issuance
of ESOP was being investigated by ED and if it had any objection in compounding
the said offence.
- ED replied to RBI that its
investigation did not pertain to the offence being compounded by RBI and hence,
RBI proceeded with this compounding application.
Regulatory
Provisions:
- FEMA 20 as amended from
time to time read with Notification No.FEMA.242/2012-RB dated 19th
October 2012.
Contravention:
- Issuance of ESOPs without
prior approval from erstwhile FIPB.
- Period of Contravention is
approx. 3.9 years.
- Amount of Contravention is
approx. Rs.1.61 crore.
Compounding
penalty
Compounding
penalty of Rs.1,54,748 was levied.
Comments:
- W.e.f. 3rd
November 2011 and until December 2016, FDI in existing Indian companies (i.e.
brownfield investment) engaged in pharmaceutical sector was permitted upto 100%
only under FIPB approval route.
- W.e.f. 7th December
2016, FDI in brownfield pharmaceutical sector upto 74% is permitted under the
Automatic Route and upto 100 % under Approval Route.
- Further, existing compounding regulations provide that compounding
proceedings can be undertaken only when same offence is not under investigation
by ED. Hence, if any applicant is under investigation by ED for specific
offence being committed under FEMA regulations, compounding application cannot
be filed for same offence but it can be filed for a different offence.
- This case demonstrates need for ESOPs plans to be in compliant
with extant FEMA regulations.
C. Rajasthan Hospitals
Limited
Date of Order: 19th July
2018
Regulation: FEMA 4 /2000-RB Foreign
Exchange Management (Borrowing or Lending in Rupees) Regulations, 2000
Issue:
Availing of loan from NRI without
issue of Non-Convertible Debentures (NCDs) made by public offer.
Facts:
- Applicant borrowed Rs.
49.80 lakh from NRI, Dr. Jawahar Lal Taunk, a US resident through wire transfer
from USA in March 2017.
- This transaction was
reversed on 4th April, 2018 when the above amount was refunded to
the lender.
Regulatory Provisions:
- Regulation 5 (i) of
Notification No. FEMA 4/2000-RB permits Indian Company to borrow in rupees on
repatriation or non- repatriation basis from an NRI only by way of issue of
NCDs through public offer.
Contravention:
- Borrowing from NRI was not
through issuance of NCDs made by public offer.
- Period of Contravention is
approx. one year.
- Amount of Contravention is
Rs.49.80 lakh
Compounding penalty:
Compounding penalty of Rs.77,400
was levied.
Comments:
Raising debt by Indian Companies
from NRIs is highly truncated under extant FEMA regulations.
NCD Route: Indian
companies may avail loan by way of issuing NCD through a public offer.
ECB Route: Indian Company may borrow from NRI, who are its shareholders
subject to compliance of ECB regulations viz Indian Company being eligible borrower,
end-use restrictions, all-in-cost ceilings etc., and NRI lender being eligible
lender.
D. Vigno Prasath
Date of Order: 10th July
2018
Regulation:
- Notification No. FEMA
20/2000-RB FEMA (Transfer or Issue of Security by a Person Resident Outside
India) Regulations, 2000.
Issue:
- Transfer of shares of an Indian company to
a person resident outside India without filing form FC-TRS.
- Receipt of sale
consideration for transfer of shares on deferred payment basis.
- Receipt of sale consideration
through third parties.
Facts:
- Applicant is a resident
individual being one of the shareholders holding equity shares of Sathya Auto
Private Limited (SAPL) an unlisted private Indian company;
- Applicant transferred
shares held by it in SAPL to a non-resident Indian (NRI);
- Sale consideration was
paid by NRI as follows
Sr No |
Date of payment |
Mode of payment |
Amount (INR) |
1. |
17th March 2007 |
NRI transferred funds from his NRE A/c to its Indian company, |
12,50,000 |
2. |
4th April 2007 |
12,50,000 |
|
3. |
16th October 2007 |
33,50,000 |
|
4. |
23rd April 2008 |
Funds transferred from AHPL to SAPL, which in turn made the |
182,329 |
- As can be seen from above,
whilst shares of SAPL were sold to NRI consideration was received through the
third parties namely, AHPL and SAPL.
- Also, part of sale
consideration was received by the Applicant on a deferred payment basis over a
period of one year without obtaining RBI approval.
- Form FC-TRS relating to
transfer of shares was filed with delay of around 4 years.
Regulatory Provisions:
- Para 8 of schedule 1 to
FEMA 20 – Lays down 2 permitted modes of payment of sale consideration: (1)
inward remittance through normal banking channels or (2) debit to NRE / FCNR
account of the person concerned;
- Regulation 10A(b)(iii) of
FEMA 20 – Requires submission of declaration in Form FC-TRS at the time of
transfer of shares.
- Regulation 10A(b)(iii) of
FEMA 20 (as it stood at the time of transfer) – Requires prior approval of RBI
for receipt of deferred consideration.
Contravention:
Relevant Para of FEMA 20 |
Nature of default |
Amount involved (in INR) |
Time period of default |
Regulation 10A(b)(iii) read |
Receipt of sale |
59,50,000 |
8 years & 7 months to 9 |
Regulation 10A(b)(iii) |
Receipt of sale |
34,50,000 |
9 years & 8 months |
Regulation 10A(b)(iii) |
Transfer of shares by the |
59,50,000 |
Approx. 4 years |
Compounding penalty:
Compounding penalty of Rs. 1,59,175
was levied.
Comments:
Share transfer by a resident buyer
to a non-resident seller on a deferred payment basis was not allowed under the
extant FDI Regulations and therefore required prior RBI approval.
However, RBI vide Notification No.
FEMA 386/2016 dated 20th May, 2016 FEMA (Transfer or Issue of
Security by a Person Resident Outside India) (Seventh Amendment) Regulations,
2016, permitted transfer of shares between resident buyer and non-resident
seller on deferred payment basis subject to the following conditions:
i. Not
more than 25% of the total consideration can be paid by the buyer on a deferred
basis
ii. Consideration
can be deferred for not more than 18 months from the date of the transfer
agreement
iii. Consideration can be settled through an Escrow Arrangement between
the Buyer and Seller for a period not exceeding 18 months from the date of
transfer agreement
If total consideration has been
paid by the buyer to the seller, sale consideration can be indemnified by the
seller for a period not exceeding eighteen months from the date of payment of
full consideration.
Further, apart from Applicant, i.e.
Mr. Vigno Parsath, there were three other shareholders of SAPL who had also
sold their shares to non-resident and wherein all above contraventions had
taken place.
As facts were similar, RBI levied
similar penalty of Rs. 1.59 lakh in all other cases.
Overseas Direct Investment (ODI)
compounding orders
E. PC Jeweller Limited
Date of Order: 12th
July, 2018
Regulation:
FEMA 120/2004-RB Foreign Exchange
Management (Transfer or Issue of any Foreign Security) Regulations, 2004 (FEMA
120)
Issue:
- Making outward
remittances to the overseas entity without submission of Form ODI.
- Making outward
remittances to the overseas entity under the automatic route when the same was
permitted only with prior approval.
Facts:
- The applicant set up a
wholly-owned subsidiary (WOS) viz. P. C. Jeweller Global DMCC in UAE in June,
2016 and made remittances amounting to USD 2,00,00,500 to the overseas WOS.
- The remittances were
reported in form ODI-Part-I within the prescribed time except in one instance
of USD 500 wherein applicant reported the remittance with delay beyond the
prescribed time.
- Applicant had to remit
USD 500 to compensate for shortfall in first remittance on account of deduction
of bank charges.
- Applicant was under
investigation by Directorate of Revenue Intelligence (DRI) which was concluded
in July 2014 and a show cause notice (SCN) dated 8th July, 2014 was
issued to the applicant. Applicant had filed an appeal against the SCN to
Commissioner (customs) Imports in January 2015 which is pending till date.
- Accordingly, as DRI’s
investigations were pending, Applicant was not eligible to undertake overseas
direct investment (ODI), under automatic route pending disposal of the appeal.
Hence, prior approval of RBI was required before making ODI.
- Further, RBI had asked ED
to submit whether contravention sought to be compounded was under ED’s
investigation or not. However, as ED did not reply, RBI proceeded with the
compounding process
Regulatory Provisions:
- Regulation 6(2)(vi) of
FEMA 120 requires an Indian Party making direct investment in a JV)/WOS outside
India to submit Form ODI Part-I, the Authorised Dealer within 30 days of making
such investment
- Regulation 6(2)(iii) of
FEMA 120 – Indian Party may make direct investment in a JV/WOS outside India
subject to the condition that the Indian Party is not on the Reserve Bank’s
exporters’ caution list / list of defaulters to the banking system circulated
by the Reserve Bank and/or is not under investigation by any investigation /
enforcement agency or regulatory body.
Contravention:
- Delay in filing of Form
ODI beyond the prescribed period of 30 days from the date of making investment.
- Period of contravention
is 1.4 years and amount of contravention is INR 33,745.
- Making ODI investment
pending investigation by Directorate of Revenue Intelligence.
- Period of contravention
is approx. 1.6 years and amount of contravention is approx Rs.133.86 crore.
Compounding penalty
Compounding penalty of Rs.
74,13,478 was levied.
Comments:
Indian Entities to be careful
during pending any investigation by any regulatory body and refrain from making
any ODI Investments without prior approval during the pendency of such
investigation
F. Endurance Technologies
Limited
Date of Order: 21st June
2018
Regulation:
- FEMA 120/2004-RB – Foreign
Exchange Management (Transfer or Issue of any Foreign Security) Regulations,
2004
Issue:
- Delay in filing Form
ODI beyond the stipulated time period.
- Funding of overseas
investment through a mode other than the permitted modes.
- Non-submission of
Annual Performance Reports (APR) within stipulated time period.
Facts:
- Applicant is engaged in
the manufacturing of the automotive components, suspension products,
transmission products and brake systems.
- Overseas investment was
made by Applicant under the automatic route in an Italian SPV in May 2007.
- Form ODI in relation to the
said investment was filed with a delay.
- Initial share capital
amounting to Euro 10,000 and the incorporation expenses amounting to Euro 500
were paid by Applicant’s German subsidiary namely, Endurance Amann GmbH which
were reimbursed by the Applicant in 2017
- Applicant had extended
loans to its Italian SPV and the interest accrued on the loans was capitalised.
There was a delay in reporting such capitalisation of interest
- The APRs for two years
i.e. from the year ended 31st March, 2015 to the year ended 31st
March, 2016 were submitted with delay.
Regulatory provisions:
- Regulation 6(2)(vi) of
FEMA 120 – requires filing of Form ODI in case of overseas investment by Indian
Entities
- Regulation 6(3) of FEMA
120, provides the list of permitted methods of funding of overseas investment.
- Regulation15 (iii) of FEMA
120, requires annual filing of an Annual performance Report (APR) on or before
a specified date in respect of each JV or WOS outside India.
Contravention:
- The overseas investment
made by Applicant in the Italy SPV was reported with delay in Form ODI-Part-1.
- Period of contravention is approx. 9 years
and 9 months and amount of contravention is approx. Rs 3.35 lakh.
- Funding of the overseas
investment was done through a mode other than that permitted under regulation
6(3) of FEMA 120. Period of contravention is approx. 10 years and amount of
contravention is approx. Rs 8 lakh.
- APRs for two years i.e.
year ended 31st March, 2015 and 31st March, 2016 were
submitted with delay.
Compounding penalty:
Compounding penalty of Rs. 6,74,942
was levied.
Comments:
Indian
entities to ensure that funding of overseas investments is done only via
permitted modes under FEMA. Further, in case of conversion of loan into equity
it is necessary that due process prescribed by law is followed. This involves
intimation to AD banker by filing prescribed form, obtaining share certificate
within prescribed time lines, etc.
In a similar case of CI Global
Technologies Pvt Limited2, Indian Company made payment for ODI
Investment by way of Travellers Cheque, which is not a permitted mode of
funding. Compounding Penalty was levied in this case as well. ____________________________________
2 CA
No 4634 / 2018 dated 8th June 2018
G. Anand Rathi Wealth
Services Limited
Date of Order: 24th
April, 2018
Regulation: FEMA 120 / RB-2004 Foreign
Exchange Management (Transfer or Issue of any Foreign Security) Regulations,
2004
Issue:
- Non-submission of Annual
Performance Reports (APRs) for the period 2006 to 2009.
- Write off of entire amount
of ODI under automatic route without obtaining fair valuation certificate and
without submitting APRs.
Facts:
- Applicant is engaged in
the business of funds management and venture capital, financial advisor, wealth
management etc., in India.
- Applicant invested USD
30,000 in October, 2005 in an overseas WOS viz. Anand Rathi India Realty Fund
in Mauritius. The overseas WOS was unable to commence operations and therefore
Applicant decided to close the overseas WOS in May, 2008.
- The name of the Overseas
WOS company was removed from the Registrar of Companies in Mauritius w.e.f. 6th
August, 2009.
- Applicant did not submit
annual performance reports (APRs) for the period 2006 to 2009.
- The applicant had written
off entire amount of ODI under automatic route without obtaining fair valuation
certificate and without submitting APRs.
Regulatory Provisions:
- Regulation 16(1)(iii) of
FEMA 120 – Shares of an unlisted company held by any Indian Party in a JV or
WOS outside India may be transferred, by way of sale to another Indian Party
only after obtaining a Valuation Certificate from Chartered Accountant /
Certified Public Accountant determining the fair value of such shares.
- Regulation 16(1)(v) of
FEMA 120 – Shares of an Overseas entity may be sold only if such overseas
concern has been in operation for at least one full year and APR together with
the audited accounts for that year has been submitted to RBI.
- Regulation 15(iii) of FEMA
120 – Indian Party making ODI Investments to submit to RBI, every year on or
before a specified date, an Annual Performance Report (APR) in respect of each
JV or WOS outside India.
Contravention:
Relevant Para of FEMA 120 Regulation |
Nature of default |
Amount involved (in INR) |
Time period of default |
Regulation 16(1)(iii) |
Write off of the amount of |
Rs. 13.67 lakh |
8 years & |
Regulation 16(1)(v) |
Disinvestment of stake in |
Rs. 13.67 lakh |
8 years & |
Regulation 15(iii) |
Non-submission of APR |
Rs. 13.67 lakh |
8 years & |
Compounding penalty
Compounding penalty of Rs. 2,10,510
was levied.
Comments:
Indian entities need to take care of various
FEMA compliances before closing down or disinvesting stake in their overseas
WOS as non-compliance of the same would invite compounding penalty.
FROM PUBLISHED ACCOUNTS
Illustration of Disclosures and Audit
Opinion in case of company under Corporate Insolvency Resolution Process (“CIRP
Process”)
Bhushan Steel Limited
(Year ended 31st March 2018)
From Notes to
Financial Statements
28.
Exceptional items (Rs. in Lakh)
Year
ended Year ended
31st
March, 2018 31st March, 2017
(i) …
(ii) ….
(iii) Other exceptional items 234,732.49 –
Note:
(iii) Other exceptional
items for the year ended 31st March,
2018 include prior period items of Rs. 201,909.65 Lakh comprising of the
following:
a) Amortisation of leasehold land accounted as
operating lease – The Company has taken land properties on operating lease in
earlier years, which earlier were accounted as finance lease. Upon change in
their classification as operating lease, the cumulative effect of amortisation
from inception until previous year ended 31st March, 2017 has
been recognised in current year’s profit or loss in ‘exceptional items’.
Further, these leasehold land properties were recognised at fair value on
transition to Ind AS as on 1st April 2015 and such fair valuation
adjustment has also been reversed in current year’s profit or loss in
‘exceptional items’.
b) Accounting effect of oxygen plant accounted as
finance lease – The Company entered into sale and leaseback arrangement for
oxygen plant in earlier years which was accounted as operating lease. However,
the terms of the lease require such arrangement to be classified as finance
lease. Consequently, the asset has been recognised with corresponding finance
lease obligation. Cumulative effect of reversal of operating lease rentals and
booking of depreciation and finance cost from inception until previous year ended
31st March, 2017 has been recognised in current year’s profit or
loss in ‘exceptional items’.
42. A corporate insolvency
resolution process (“CIRP”) under the Insolvency and Bankruptcy Code, 2016 was
initiated against the Company vide an order of the Principal Bench of the
National Company Law Tribunal (“NCLT”) dated 26th July, 2017.
Subsequent to the year-end, on 15th May, 2018, the NCLT has approved
the terms of the Resolution Plan submitted by Tata Steel Limited (“TSL”), which
provides, inter alia, the acquisition of the Company by TSL, through its
wholly owned subsidiary Bamnipal Steel Limited. The approval of the Resolution
Plan subsequent to 31st March, 2018 has been considered as a
non-adjusting event for the purpose of financial statements for the year ended
31st March, 2018. Pursuant to such approval of the Resolution Plan,
the financial statements for the year ended 31st March, 2018 have
been prepared on a going concern basis.
44. The Company has
defaulted in repayment of debts, redemption of debentures and pay interest
thereon, the Directors of the Company were disqualified from being appointed as
Directors in terms of section 164(2) of the Companies Act. Subsequent to the
year end, pursuant to the NCLT order dated 15th May, 2018, the
erstwhile Directors of the Company are deemed to have resigned/vacated the
office. Hence, none of the erstwhile Directors continue as Members of the
Board.
From Auditors’ Report
Basis for Qualified
Opinion
8. As explained in Note
28(iii) to the standalone financial statements, the Company has accounted for
certain prior period errors in the financial statements for the year ended 31st
March 2018. Under Ind AS 8, “Accounting policies, changes in accounting
estimates and errors”, errors that occurred prior to 1st April 2016
should have been retrospectively corrected by restating the balances of
respective assets and liabilities and equity as at 1st April 2016
and errors that occurred in year ended 31st March 2017 should have
been retrospectively corrected by restating the comparative amounts as at 31st
March 2017 and for the year then ended.
Had the prior period
errors been appropriately accounted for in accordance with Ind AS 8:
- Other non-current assets, non-current
borrowings and other financial liabilities as at 1st April 2016
would have increased by Rs. 18,814.00 lakh, Rs. 89,645.86 lakh and Rs. 2,962.18
lakh, respectively and property, plant and equipment, deferred tax liabilities
and equity as at that date would have decreased by Rs. 121,349.09 lakh,
Rs. 2,775.54 lakh and Rs. 192,367.59 lakh respectively;
- Depreciation, finance costs and deferred tax
credit for the year ended 31st March 2017 would have increased by
Rs. 9,486.52 lakh, Rs. 12,277.82 lakh and Rs. 2,257.94 lakh respectively and
other expenses for the year then ended would have decreased by Rs. 14,997.82
lakh respectively. Accordingly, the loss after tax for the year ended 31st
March 2017 would have increased by Rs. 4,508.58 lakh;
- Other non-current assets, non-current
borrowings and other financial liabilities as at 31st March 2017
would have increased by Rs. 18,571.82 lakh, Rs. 86,074.90 lakh and Rs. 3,570.96
lakh, respectively and property, plant and equipment, deferred tax liabilities
and equity as at that date would have decreased by Rs. 130,835.61 lakh, Rs.
5,033.48 lakh and Rs. 196,876.17 lakh respectively; and
- Exceptional items in the statement of profit
and loss for the year ended 31st March 2018 would have decreased by
Rs. 201,909.65 lakh and accordingly, loss after tax would have decreased by Rs.
196,876.17 lakh.
Further, as at 31st
March 2017, the Company had classified certain financial liabilities as
non-current liabilities even though the Company was in breach of material
provisions of certain long-term loan arrangements and the lenders had not
agreed, before the date of approval of the financial statements for the year
then ended, to not demand payment as a consequence of the breach. Accordingly,
the liabilities towards such lenders had become payable on demand, and in
accordance with the requirements of Ind AS 1, ‘Presentation of financial
statements’, should have been classified as current liabilities. In the absence
of the requisite information, the impact of such misstatement on the balance
sheet as at 31st March 2017 cannot be ascertained.
Qualified Opinion
9. In our opinion and to
the best of our information and according to the explanations given to us,
except for the effects (to the extent ascertained) of the matter described in
the Basis for Qualified Opinion paragraph above, the aforesaid standalone
financial statements give the information required by the Act in the manner so
required and give a true and fair view in conformity with the accounting
principles generally accepted in India including Ind AS specified u/s. 133 of
the Act, of the state of affairs (financial position) of the Company as at 31st
March 2018, and its loss (financial performance including other comprehensive
income), its cash flows and the changes in equity for the year ended on that
date.
Emphasis of Matter
10. We draw attention to
Note 42 to the standalone financial statements which describes the status of
Corporate Insolvency Resolution Process that the Company underwent, which was
subsequently concluded on 15th May 2018. We also draw attention to
Note 28 to the standalone financial statements which describes certain related
exceptional items (other than the prior period errors dealt with above)
recognised during the year ended 31st March 2018.
Our opinion is not
modified in respect of these matters.
From Directors Report
Auditors
…. has audited the book of
accounts of the Company for the financial year ended 31st March,
2018 and has issued a qualified auditors’ report thereon. The qualifications in
the auditor’s report are as given hereunder:
a) The statutory auditors of the Company have
expressed a qualified opinion on the standalone and consolidated financial
results of the Company for the year ended 31st March, 2018. The
cumulative impact of the same on turnover, total expenditure, profit or loss
and earning per share of the Company for the year ended is Rs. Nil, Rs.
2,019.11 crore, Rs. 1,968.76 crore and decrease of Rs. 86.92 per share
respectively. As the qualification pertains to the prior period adjustments in
the financial results for the year ended 31st March, 2018, there is
no cumulative impact thereof on the balance sheet of the Company as of that
date.
b) ….
c) …..
From the President
Dear Members
It’s that
time of the year when the Nation celebrates the “Festival of Lights”. On
occasions like this, it is also time to revisit our ancient scriptures of
wisdom and apply them in the current context of our profession. To my mind, of
the many incidents in the “Ramayana”, a few specific incidents clearly charted
the story.
One such
incident is that of King Dasarath granting three boons to Kaikeyi since she
saved his life. Kaikeyi deferred the exercise of these ‘boons’ to a later point
of time, much to the peril of the entire generation. As accountants, we can
easily correlate this with the concepts of ‘contingent liabilities’ and
‘unforeseen risk’. As assurance professionals, do we somewhere ‘grant’ or
‘communicate’ an assurance without fully realizing or foreseeing the possible
consequences thereof? While the statutorily prescribed GST Audit Report
primarily anchors itself around reconciliation, the Technical Guide suggests a
much larger involvement / expectations from the GST Auditors. As auditors we
understand that the Technical Guide does not bind the members. Will all
stakeholders clearly understand this? Is any purpose served by suggesting open
ended assurances? Let us hope and pray that more deliberations are undertaken
before the Technical Guide transitions itself into a Guidance Note.
The eventual
exercise of the boons, the principle one being the preference of Prince Bharat
over Prince Rama as a successor to the throne really brings to the fore the
complex and conflicting interplays in succession, especially to positions of
leadership. As the Central and Regional Council Elections come nearer, the
incident would remind our members of the implications of prioritizing any
parameter other than merit in the selection process of an able leader to
represent the profession.
The “Golden
Deer” episode clearly suggests the need for professional skeptism especially in
situations where things appear too good to be true. Be it investment or
professional services, if the returns or compensation exceed the value
proposition, it is likely that we are entering the “Golden Deer” trap.
The
“Sanjeevani” episode is one more interesting example. The inability of Hanuman
to identify the correct herb resulted in the entire mountain being mythically
transported. When we train our juniors, do we make mistakes of not clearly
communicating our expectations and thereby resulting in getting general answers
from which we have to sift the specific answers that we want?
The last
incident that I would like to touch upon is that of the washerman, whose
comments resulted in the exile of Seetaji. One can also couple this incident
with the Manthara incident and can clearly make out the need to drive decisions
based on inherent and coherent substance rather than mere external narratives.
While debates and alternative arguments (including social media and internet
sources) help mould the opinion, they may not always be the right approaches.
For many
professionals, October marked the end of a very busy season. It is now time to
relax and spend time with your families and enjoy the festivities. Such
periodic breaks help a person to re-energise and strategise for the future. At
the Society, a series of events have been planned in the next few months to
help the members develop relevant technical skills and reflect on the future
course of their careers.
One
such innovative programme is the 52nd Residential Refresher Course.
While the time for early bird incentive has already expired, it is better to
enrol late than never. This time, the RRC is at a luxurious venue of ITC Mughal
in the historic city of Agra. Packed with innovative formats, relevant topics
and best faculties, this RRC promises to be an experience of a lifetime. It has
a full day devoted to practice management sessions where members can
collectively reflect on the future of the profession. The detailed announcement
is available on the website and I would urge the members to enrol at the
earliest to avoid disappointment.
On
31st October, the Prime Minister dedicated the “Statue of Unity” as
a tribute to Sardar Vallabhbhai Patel. At 182 metres, the Statue is the tallest
in the world and was constructed in a very short time frame of 33 months. Many
of us see our house renovation projects span across more than 6-8 months! It is
perhaps this efficiency and many more structural reforms like this which
prompted the World Bank to improve the ease of doing business rankings from 100
in 2017 to 77 in 2018.
These
are indeed times of confusion. On one hand we see such massive improvements in
rankings and periodic revalidations from international agencies of the
correctness and the decisiveness of the reforms, while on the other, we see
murmurs of hazy implementation and biased approaches. What is the correct way
forward? As highlighted in the earlier anecdote of the washerman and Manthara,
each of us will have to find the answers from within.
Well,
in the meantime, do celebrate the festivals. Wish you a very happy Diwali and a
prosperous New Year.
Yours
truly
Sunil Gabhawalla
From the President
Dear Members,
As I sit to write this
communication on the 2nd October, the Nation celebrates the birth
anniversaries of two great leaders – Mahatma Gandhi and Lal Bahadur Shastri. Born in 1869, Mahatma Gandhi steered the
country into independence with his weapons of “truth” and “non-violence”. Born
in 1904, his disciple Lal Bahadur Shastri went on to become the 2nd
Prime Minister of Independent India and made a marked difference in the lives
of citizens with “the White Revolution” and “the Green Revolution”.
For such principle-centred
leaders, independence did not mean just transferring colonial era British power
brokering system, favours-driven, bureaucratic, class exploitative structure
and mindset into Indian hands. In fact, Gandhiji had warned that such a
transfer would still be English rule, just without the Englishman. Seven
decades post-independence, as we (as professionals and as citizens) inch closer
towards the Council Elections and the General Elections and cast our votes to
choose the leaders, it is time to take stock and identify leaders whose birth
anniversaries our next generations would be inspired to celebrate.
The GST Audit Report was
notified recently. The Society is pleased to note that most of the suggestions
made by it towards simplification of the report and alignment of the same with
the objectives of audit sought by the Act have been accepted. While the Society
is in active dialogue with the Government for certain clarifications and
ironing some gaps in the audit report, it is now time for the professionals to
step up the technical capabilities and live up to the trust placed by the
Government. The Society was invited by the CIT (CPC TDS) to provide inputs about
Phase 2.0 of TRACES Project. This phase will use latest technologies and would
totally transform the TDS Administration in the country and promote the ease of
doing business.
For professionals,
September was a very busy month. As members struggled to complete their
obligations and sought extension of due date, the initial reactions were not
very positive resulting in a panic situation. Ultimately, the much-needed
extension was announced. Is the 15-day extension sufficient? Is it fair for the
Government to expect interest in such cases? The social media was abuzz with
various news, views and information in this regard. I would believe that rather
than spending time on such questions, it would be gainful for the members to
concentrate their energies on work, make the most of this extension and
complete the balance work before the extended due date. After completing the
pending work at hand, it may also be a time to strategise the way forward for
better time and work flow management in the coming years.
The enrolments for the 52nd
Residential Refresher Course have already gained momentum. This time, the RRC
is at a luxurious venue of ITC Mughal in the historic city of Agra. Packed with
innovative formats, relevant topics and best faculties, this RRC promises to be
an experience of a lifetime. It has a full day devoted to practice management
sessions where members can collectively reflect on the future of the
profession. The detailed announcement is available on the website and I would
urge the members to enrol at the earliest to avail the early bird benefits.
Many other interesting
programs have been announced – the long duration study course on GST, full day
panel discussion on burning issues in real estate sector (jointly with IMC),
panel discussion and case studies on GAAR, a specially designed workshop for
senior citizens on using mobile apps. I would request the members to attend
these events and encourage the organisers to innovate and provide you relevant
and best events.
During the last quarter,
the Society could release a series of publications on diverse topics and most
of them were sold out within a fortnight. As a matter of convenience, the
Society has a publication imprest scheme whereby books are couriered to members
immediately on their release and the amount is debited to the imprest. Those
who are interested can enrol for the said Scheme.
I also take this
opportunity to wish all the members a great festive season ahead. Do take
periodic breaks from your busy schedule and energise yourself with your family and
friends.
Warm Regards
CA.
Sunil Gabhawalla
President
Society News
1. | Mr. Atul Doshi | Awardee -BCAS |
2. | Mr. Achyuta Samanta | Awardee – DBM |
3. | Mr.Anil Galgali | Awardee -PCGT |
Developments & Issues in Accounting Standards | CA. Rajesh Mody |
Critical FRRB observations on financial statements | CA. Abhay Mehta |
Audit Reporting Requirements | CA. Zubin Billimoria |
Developments in Companies Act, 2013 | CA. Paresh Clerk |
Miscellanea
1. Technology
1.
When will ultrafast internet
5G come to your phone?
A surge in mobile-data
demand worldwide has more and more people asking when they will get that speedy
next-generation 5G mobile service. Companies are wondering, too, since 5G has
the potential to revolutionise everything from self-driving cars to robotic
surgery. Mobile providers are racing to patent technologies that will form the
industry standards and build working networks. Yet not all nations are
embracing the push with equal vigor. And concerns about China’s ability to use
5G equipment to spy on other nations may limit its manufacturers’ ability to
profit from the world’s next mobile upgrade.
5G simply stands for
fifth-generation mobile networks or fifth-generation wireless systems. It will
be the successor to 4G, the current top-of-the-line network technology first
introduced commercially in 2009. 5G could end up being 100 times faster than
4G, with speeds that could reach 10 gigabits per second.
South Korea showed off the
world’s first commercial use of 5G at the Pyeongchang Winter Olympics in February.
China started trials in more than a dozen major cities this year. In the U.S.,
Verizon Communications Inc., will offer the first 5G internet and TV service in
five cities — Houston, Indianapolis, Los Angeles, and Sacramento, California —
beginning Oct. 1. Verizon will provide the service via portable hot spots
called pucks.
These are not standard 5G
gear, though Verizon says it will switch to standardised equipment when it
becomes available. AT&T Inc., says it will be the first with a standards-based
service; later this year it will test 5G devices in Atlanta, Dallas, Waco,
Texas, and two North Carolina cities, Charlotte and Raleigh.
5G mobile tests also need
special handsets, transmission hardware and software and a system design that
does not interfere with 4G and 3G networks. And governments need to set aside
mobile spectrum space for 5G. The equipment is being built. China’s Huawei
Technologies Co. Ltd., says it has about 50 contracts with wireless carriers to
test its equipment. Nokia and Ericsson AB each have $3.5 billion contracts with
T-Mobile US Inc. Some telecommunication companies are looking to join forces to
provide more money and reach to develop 5G networks.
T-Mobile has promised to
invest $40 billion in a 5G network that will reach 90 percent of the U.S.
population by 2024. But claims are easy to make and trials are easy to pull
off. The real test will be the first field deployment serving large numbers of
customers in a technically challenging urban area. No provider has yet implemented
that kind
of network.
(Source
www.financialexpress.com)
2.
Facebook is hiring human
rights policy director to promote peace and prevent conflict.
In the recent years,
Facebook has faced severe criticism for its failure to take greater
responsibility for the spread of hate speech and fake news on its platform.
Despite knowing the fall outs of the impact of its platform, the company has
failed to take substantial measures to solve the problem and minimise the
damage. But things are changing and in one of the many measures aimed to
improve the present situation, Facebook has decided to hire a Director of Human
Rights Policy to promote peace and build strong communities. “We are looking
for a Director of Human Rights Policy to coordinate our company-wide effort to
address human rights abuses, including by both state and non-state
actors,” the company wrote in a job listing on its page.
The human rights policy
director will hold a critical position at Facebook and will be expected to
perform a number of tasks including- ‘coordinating and advising the company’s
teams working on human rights, conflict prevention, peace-building, and related
projects’; ‘working with Product, Public Policy, Community Operations, and
Security teams to identify and work to disrupt actors that seek to misuse its
platforms and target its users and support those using our platforms to foster
peace-building and enable transitional justice’; ‘working within Facebook’s
Product Policy team to formulate policies that govern user, advertiser, and
developer behavior on its platform’; and ‘representing the company in meetings
with politicians, policymakers, NGOs and civil society groups’ among other
things.
In the recent times,
Facebook-owned WhatsApp has been criticised for spreading misinformation which
in turn has led to mob lynchings across the country and death of over a dozen
people. In Myanmar, the social media giant has been accused of ethnic cleansing
of Rohingya Muslims. The company’s role in spreading hate speech against the
Muslim minority in Myanmar had also been cited by the UN investigators.
Meanwhile, in the Philippines, the company stands accused of playing an
important role in the election of President Rodrigo Duterte, who is accused of
covering up at least 12,000 extrajudicial state-sponsored killings since he
assumed the office. The platform has also been used by “keyboard warriors”
in Libya to hunt and kill their enemies.
These are some of many incidents
where Facebook’s platform has been used for violence. At a time when Facebook
is struggling to keep its head above the water and prevent its platform from
being misused, the appointment of a human rights policy director shows is one
of the many steps that the company is taking to fix its platform. More
importantly, it represents a serious effort on part of the company in fixing
everything that is wrong with its platform.
(Source:
www.indiatoday.in)
3.
Can health services handle
the Apple Watch?
When Apple announced two
major new healthcare features this week, it billed them both as terrific
innovations that may well keep us alive. Later this year, Apple Watch will be
able to automatically call emergency services if it detects you have suffered a
fall and are no longer moving. And it will also let you know if you have heart
problems and should perhaps visit your doctor as soon as possible. Other
devices have offered similar functions in the past, albeit in less elegantly
presented gadgets. But with an estimated 50 million Apple Watches out there
already, there are concerns about the pressures it may bring to
already-strained healthcare systems.
The result may be even more
calls to emergency services and, according to one of Britain’s leading
surgeons, a new wave of technology-driven hypochondria. “Medical
professionals will also need to be vigilant to the risk of misdiagnosis and
overtreatment that this proliferation of personalised health information could
bring,” said Richard Kerr, chairman of the Royal College of Surgeons’
commission on the future of surgery.
(Source:
www.bbc.com)
2. World News
4.
Tax haven link to rainforest
destruction and illegal fishing
Some 68% of the investments
tracked in the Amazon came from companies based in countries where no tax is
paid. The analysis shows that of the almost $27bn of foreign capital that was
transferred to key companies involved in beef and soy production in the Amazon
between 2000 and 2011, more than $18bn was transferred from tax haven
jurisdictions. The biggest provider for these activities was the Cayman
Islands. “It is not illegal!” said Victor Galaz, the study’s lead
author, from the Stockholm Resilience Centre. “This is part of the
internal financing of companies, but we need a better assessment of the
environmental consequences of the uses of tax havens both legal and
illegal.” “What we can see in the data, in these sectors there are
subsidiaries placed in tax havens that are providing loans to activities in
Brazil and the Amazon. That you can see.”
When it comes to illegal
fishing, around 70% of known vessels are registered in tax havens. Illegal,
unreported and unregulated fishing is also a major blight on the oceans of the
world but according to this paper, the vast majority of the boats involved are or have been flagged under a tax haven
jurisdiction, in particular Belize and Panama.
There is a bit of a double
whammy going on when it comes to illegal fishing as these tax havens are often
what are known as ‘flag of convenience’ states – meaning essentially that the
governments in these countries do not prosecute if the ships on their register
are involved in illegal activities.
“The global nature of
fisheries value chains, complex ownership structures and limited governance
capacities of many coastal nations, make the sector susceptible to the use of
tax havens,” says co-author Henrik Österblom, also from the Stockholm
Resilience Centre.
While the Paradise Papers
and the Panama Papers exposed how wealthy individuals and companies dodged
personal and corporate taxes, this new study claims to be the first to show
that tax havens have a significant environmental impact as well.
(Source:
www.bbc.com)
5.
Amazon chief Jeff Bezos
gives $2bn to help the homeless
Jeff Bezos, the founder and
chief executive of Amazon, is well on his way to becoming the richest person in
the world, with a net worth of more than $80 billion. What’s less certain is
what he plans to do with his fortune, and how he could reinvent philanthropy.
After
questions from The New York Times about the level of his giving, Mr. Bezos
posted on Twitter a “request for ideas” for philanthropy. “I’m thinking about a
philanthropy strategy that is the opposite of how I mostly spend my time —
working on the long term,” he wrote. “For philanthropy, I find I’m drawn to the
other end of the spectrum: the right now.”
Citing a homeless program
in Seattle, Amazon’s hometown, that the company is working with, he said he was
seeking to help people “at the intersection of urgent need and lasting impact,”
adding, “If you have any ideas, just reply to this tweet…”
Mr. Bezos, who owns about
17 percent of Amazon, has enjoyed what could be the most rapid personal-wealth
surge in history. As Amazon’s share price has more than tripled since 2015, its
leader has added more than $50 billion to his net worth, bringing his current
total to nearly $83 billion, according to the Bloomberg Billionaires Index. He
is now less than $7 billion shy of taking the title of the world’s richest
person from Bill Gates, who has held the crown for 18 of the past 23 years.
(Source:
nytimes.com)
3. Survey
6.
Indian demi-billionaires to
rise by 70% by 2022
The analysis highlights
that in five years time the number of demi-billionaires in Asia will overtake
those in North America for the first time. As the list of wealthy Indians with
over USD 500 million or more in assets grows, the number of demi-billionaires
is poised to grow by 70 per cent by 2022. According to a report by Knight
Frank, India, which had 200 demi-billionaires in 2017, this number is slated to
increase to 340 in 2022. “Prime residential markets in cities such as
Mumbai and Delhi have remained largely stable in the last five years, which
creates a good entry opportunity for buyers. The increase in number of
demi-billionaires clearly underscores the potential for demand and price growth
going forward,” the report said.
The analysis highlights
that in five years’ time the number of demi-billionaires in Asia will overtake
those in North America for the first time. Wealth data specialists Wealth-X
predict that there will be almost 3,000 people based in Asia who have more than
USD 500 million in assets by 2022.
“Strong global
economic growth, as well as rising asset prices as key drivers behind the
growth in the world’s demi-billionaire population. By 2022, Wealth-X
anticipates that there will be 9,570 demi-billionaires worldwide, up from 6,900
at the end of 2017,” it said.
(Source:
Moneycontrol.com)
7.
More Indians plan to take
time off from work and take vacation in 2018
A survey conducted by Ipos
showed that a majority of Indians polled (83 per cent) said they will be
spending at least one week away from home on vacation in 2018. This is three
points higher than the previous year. “Companies are encouraging employees to
take a break and return rejuvenated,” said Parijat Chakraborty, executive
director, Ipsos Public Affairs.
Some other markets seeing a
significant increase over 2017 in those planning to go on vacation include
Turkey (74 per cent, up nine points), China (62 per cent, up eight points), and
Sweden (72 per cent, up six points). Some other markets experiencing a similar
upsurge compared to the previous year include Australia (53 per cent, up seven
points), France (66 per cent, up five points), and Saudi Arabia (81 per cent,
up five points).
Most Indians plan to use up
their entire entitled vacation days in a year. More Indians plan to use up
their entire quota of leave (72 per cent, up five points), compared to 2017,
the survey said. Those saying no to work emails and messages during vacation
has also seen a significant jump in 2018. More Indians are choosing to unplug
from work emails and messages (54 per cent, up five points), as against 2017.
Indians learning to switch
off from work while on vacation is a welcome change. With support from their
teams, it is becoming easier to disconnect as its business as usual,
otherwise,” Chakraborty added.
(Source:
www.business-standard.com)
Statistically Speaking
1. Tax return filing before due date:
Source: Live Mint
- Stupendous growth in the no. of returns e-filed by persons availing benefit of Presumptive Tax
Source: Twitter @IncomeTaxIndia
- Returns e-filed by salaried Individual taxpayers
Source: Twitter @IncomeTaxIndia
- The 4G play
Global 4G availability trends
Circle | 4G availability score |
Singapore | 86.6% |
Hong Kong | 90.4% |
Taipei | 89.8% |
Kuala Lumpur | 80.8% |
Yangon | 82.8% |
India’s top 5 circles on 4G LTE availability
Circle | 4G availability score |
Kolkata | 90.7% |
Punjab | 89.8% |
Bihar | 89.2% |
MP | 89.1% |
Odisha | 89.0% |
Source: OpenSignal, UK
- ITAT Litigation Snapshot for August 2018
Source: Taxsutra
Book Review
Title: Bean Counters – The Triumph of the
Accountants and How They Broke Capitalism
Author: Richard Brooks
A well-researched book that starts with tracing the history of double entry
booking keeping and its growth, need and usefulness to the industry from 1200
AD to its present state. It vividly traces the growth in stature of the “bean
counters” in the US, UK and European countries. A reader will find interesting
history of formation and merger and consolidation of firms leading to the Big 4
firms in its current avatar.
Interesting observations on the political
influence across countries of the Big 4 will be both a delight and an eye
opener for any serious reader and observer on the stature and influence of the
Big 4, while the same firms (in spite of rotation) controlling 99% of the
market. The styling of Big 4 in US and UK makes interesting reading which the
author details out in the book.
A view pre and post 1980 on the defined role
of Auditors by the author cannot but be missed by the reader where he observes
that “for generations members of these huge influential practices considered
themselves who happened to be in business but beginning 1980 they saw
themselves as businessmen who happened to be in profession.”
The author observing that the displaced key
performance indicators of Big4, being revenue growth and improved profit
margins followed by measures of staff and customer satisfaction while exposing
false accounting, fraud, tax evasion and risks to economies’, (everything that
the society might want from accountants) not featuring at all as a performance indicator of the firms, raises a basic question on the
very model that the firms have now become.
The observation on devising of legal
structure of the firms for worldwide domination while escaping the
responsibility away from home by the HQ by distancing itself from local
misdeeds elsewhere in the world, while profitably exploiting the name, brand
and commercial networks spills the beans of the operation of the Big 4. For the
few past decades all the firm’s global growth coming from selling more
consultancy services while its talent of turning any change into fee earning
opportunity discloses the growth strategy. In the digital age, cyber security is
the latest major growth engine for the firm’s consultants and now audit fees
worldwide account for 39% while it is 21% in UK making them consultancy firms
with auditing sidelines, rather than the other way around.
The author’s observations on the manner in
which the British Accountancy firms converted to LLP by stating it as “a shabby
episode in accountancy history” will not be missed by a reader. When the
Companies Act 1989 allowed accountants to operate as limited liability
companies, the partners were more wedded to the partnership for the tax
advantage that came with being self-employed rather than company directors.
The ease of sending money across borders in
the age of financial liberalisation allowed the multinational companies to
break up businesses and park more profitable parts where they would be lightly
taxed and the “bean counters showing them (the companies) how to do it by
exploiting their expertise thereby siphoning billions of euros from hard
pressed economies” shows the bean counters in poor light. It is interesting to
note that the users of such services are leading multinational multibillion
dollar companies, goes to showcase the inter dependency of the multinational
and the Big 4.
A list of hundreds of active tax products
under various acronyms by the bean counters makes the author opine that “in
simple truth these were little more than shams.”
The author’s bold statement on the mastered
art of “revolving door” of senior personnel brings closeness that breeds
uniform market oriented view of the public and provides an insight into the
prevalent practice. “So smoothly and frequently the revolving door is spun that
it creates a realistic hope amongst ministers and mandarins that subject to
keeping them happy the Big 4 will present career opportunities to supplement
their pensions.”
The 2008 financial crisis proved to the
contrary the assertions of President Bush that “era of false profits are over”
just six years earlier, speaks volumes about the unreformed and unrepentant
approach and influence of the Big 4. The author clearly links a clear nexus
during the period in the US towards lobbying donations to senators and
Congressmen through political action committee by the Big 4 employees hitting
record levels and the reforms being blocked fairly easily.
The author has very pertinent and far
reaching suggestions that cover separation of accounting and consultancies,
having strong independent regulations, bring in transparency, suggesting public
auditing of major institutions of the government, ending the “quadropoly” which
brings accountability demands an immediate detailed relook.
The book published this year by
AtlanticBooks, UK comes in at the most appropriate time for India when read in
the backdrop of recent Hon. Supreme court judgement of February 2018 and the
vision of the Hon. Prime Minister of India, on Indian Audit firms becoming
world leaders. Any serious reader and well-wisher of audit profession of our
country will find that this book serves a road map towards establishing a new structure
of the audit profession by learning from the mistakes of the West so very well
documented in book.
Ethics and You
Arjun
(A) — (alone, chanting prayers)
Hare Ram Hare Ram Ram Ram Hare Hare
Hare Krishna Hare Krishna Krishna Krishna Hare Hare
He Bhagwan ! I can’t see
you anywhere. There is a deep darkness all around; and you are also dark
(Krishna) in complexion!
Hare Ram Hare Ram Ram Ram Hare Hare
Hare Krishna Hare Krishna Krishna Krishna Hare Hare
Shreekrishna enters – (smiling at the sight of Arjun)
S — Re
Arjun, What’s the matter? Can’t you see me? I am omnipresent. I am there in
your heart.
A —
You are right; but I have lost my heart. I have lost everything! I have lost my
senses!
S — Cool down, Arjun. I had told you in Geeta that one has to be “sthitapradnya”
– always cool and collected. Never lose your balance. Tell me what happened.
A — Nothing is happening!
Clients
are not coming in time. Accounts are not ready. Audits are pending. Articled
trainees are on exam leave. So many difficulties! And Government is not
extending the date.
S — That’s your annual grumbling. Why don’t you improve your ways
and become pro-active?
A — It is very easy to say so. But our profession is essentially
reactive. Government, regulators and clients do something and we are expected
only to react and also act! We can do audits only after the clients’ accounts
are finalised. Government keeps on changing the forms, regulators introduce new
systems; new requirements without understanding practical realities.
S — But now with computerisation everything is digitised.
How is it that the work is
not completed on time.
A — Many clients are not tech-savvy. They rely on us. Small
businessmen, senior citizens, charitable organisations, housing societies and
such other people are not used to the `digital environment’.
S — So you mean, you alone have to take care of 1000 such small
clients!
A — Precisely! And further, in case non-audit assessees the date
was extended from 31st July to 31st August. So, the July
load was carried forward to August 2018. Further GST requirements are keeping
us busy round the year! – It is a big volume.
S — Why don’t you represent to the Government?
A — We are doing it repeatedly; but it is falling on deaf ears. We
are helpless. Our Institute had made an excellently drafted convincing
representation – and it was rejected on 3 occasions! Actually, there is
something structurally wrong in the present statutory deadlines.
S — Relax. You will get extra time.
A — But when? On 29th September? – when we have
virtually, somehow pushed the returns!
S — That means, somehow or the other you can do it!
A — No. Really speaking, it is humanly impossible. And quality
suffers; let alone the stress that affects health.
S — But you have to stick to your discipline and ethics. You can’t
afford to compromise on quality. That will defeat the very purpose of audit.
A — Yes. Everybody expects that CAs should maintain discipline,
give quick results and at the same time ensure quality! Further we have to
ensure many compliances on day-to-day basis. Hence, we don’t have time for
creative and meaningful work.
S — You say there is no room for creativity; but in all scams
Government feels that it was the ingenuity of CAs.
A — That’s the pity. Real thieves are different; but everywhere CAs
are blamed. CAs are expected to perform the role of fraud-detectors even in the
normal audit! No one realizes that there is difference between audit and
investigation. I at times wonder why I became a CA!
S — Don’t be so nervous. Things will improve.
A — I don’t see any chance of that. We are facing humiliation
everywhere. Everybody is taking us for a ride. – Government, regulators,
clients, bankers, staff, even our articled trainees!
Everybody is deviating from
ethics.
S — That is Kaliyug. But you should never compromise on
ethics. You need to be more firm and assertive.
A — I am aware of all this philosophy. Unfortunately though we are
not a part of unethical acts, we are expected to certify the reporting is
correct and `true and fair’.
S — It seems, your grievances are unbearable today.
A — Yes. We have no choice. By nature, we are not rebellious. But
sometime, our feelings are going to explode. Hell with this compliance
practice! They are thrusting everything on us; and on the top of it, Government
is not even listening to our genuine requests.
S — So, what to do now?
A — Arey Bhagwan, when I am helpless, I approach you with
this question. And today you are yourself asking me this question? So, you also
don’t have the solution, it seems!
S — Go to the Courts.
A — Ah! I am skeptical about it. And even if Court intervenes,
Government will not understand the spirit of the verdict. There is no savior
for us.
S — Hmmm!
A — And in this birth, becoming and practicing as a CA appears to
be a sin! So I don’t know what is going to
happen in next birth.
S — We will see of next
birth. But what are you going to do now?
A — Beg to FM, wait, watch and chant bhajan –
Hare Ram
Hare Ram Ram Ram Hare Hare
Hare
Krishna Hare Krishna Krishna Krishna Hare Hare
Note: The above dialogue only shows how various stakeholders have taken
our fraternity for granted. It’s high time we put our foot down and unite
together. Though, preaching on Code of Ethics seems old school, this is the
only thing that will help us.
Corporate Law Corner
1.
Bhagavan Das Dhananjaya Das vs. Union of India [2018] 96 taxmann.com 189
(Madras)
W.P. NOS. 25455 OF 2017 AND 25456, 25729,
26654, 16903, 16970, 16995, 16999, 17151, 17161 of 2018 & Oths.
Date of Order: 3rd August, 2018
Section 164(2) of the Companies Act, 2013 –
Disqualification of directors – The provision which came into effect on
01.04.2014 cannot be given a retrospective effect especially when the
disqualification clause did not trigger in the previous regime
FACTS
B was a
director of B Co a private limited company incorporated under the Companies
Act, 1956 (“1956 Act”). He was also a director in other company S Co which was
also a private limited company incorporated under the 1956 Act. B Co had no
operations and was lying dormant till the year 2012.
In the year
2012, the directors planned to revive the company and there was infusion of
additional share capital as well as introduction of three new members to the
Board of B Co (one of them being Mr. B). The revival plan did not fructify and
B Co continued to remain a dormant company. B Co did not file its annual
returns from financial year 2012-13. The last annual return filed was in
respect of financial year 2011-12.
Registrar Of Companies (“ROC”) on 18.03.2017
issued a show cause notice for striking off the name of B Co. There being no
plans to revive the company, B Co issued a no objection letter to the ROC for
striking off. On 08.09.2017 ROC issued a list of directors disqualified u/s.
164(2)(a) of Companies Act, 2013 (“2013 Act”) which included name of B as well.
Accordingly, B would be prohibited from acting as a director in any other
company for a period of 5 years.
Aggrieved, B filed a writ petition before
the Hon’ble Madras High Court. B contended that provisions of section 164(2)(a)
came into effect from 01.04.2014. Applicability of the section would commence
in respect of financial years commencing from 01.04.2014 and should not apply
in respect of offences committed prior to that date.
HELD
The High Court examined the provisions of
section 274(1)(g) of 1956 Act and section 164 (2)(a) of the 2013 Act. The
former section only disqualified a director from being appointed as a director
in any “public” company for a period of 5 years which was broadened under the
2013 Act to any company. The High Court observed that section 164(2)(a) was
made effective from 1.4.2014, as per section 2(41) of the 2013 Act, the first
financial year for the purpose of section 164 of the 2013 Act would be
31.3.2015 i.e., from 1.4.2014 to 31.3.2015. ROC thus wrongly applied section
164(2)(a) from financial year 01.04.2013.
The High Court further held that the
disqualification of directors of a private company could get triggered only on
or after 30.10.2017, hence, the list of disqualified directors published on the
website of the first respondent in September, 2017 had no legal legs to stand
up to the scrutiny of the Court under Article 226 of the Constitution of India.
It was observed that General Circular
No.08/14 dated 4.4.2014 also has made it clear that in respect of the financial
year commencing on or after 01.04.2014, the provisions of the new Act shall
apply, the first financial year for the purpose of section 164(2)(a) shall be
1.4.2014 to 31.3.2015 and the second and third financial years would be from
1.4.2015 to 31.3.2016 and from 1.4.2016 to 31.3.2017 respectively.
The High Court observed that by virtue of
the first proviso to section 96(1) of the 2013 Act, Annual General Meeting for the
year ending on 31.3.2017 can be held within six months from the closing of
financial year i.e., 30.9.2017, additionally in the light of section 164(2)(a)
referring to “annual return” and “financial statement”, the
time limit to file annual return u/s. 92(4) of 2013 Act is sixty days from
Annual General Meeting or the last date on which Annual General Meeting ought
to have been held, hence, the time limit to file balance sheet u/s. 137(1) of
the 2013 Act is again thirty days from Annual General Meeting. The
disqualification could get triggered off only on or after 30.10.2017 only, if
any company fails to file annual forms for three financial years. Even beyond
that time limit, additional time limit of 270 days was available by virtue of
the then first proviso to Section 403.
The High Court observed that ROC although
sent a show cause notice to B Co before striking off its name, it did not give
any such notice to B before disqualifying him as a director.
A company can be struck off if that company
has not been carrying on any business for a period of two financial years and
if their directors had not filed the financial statements or annual returns for
any continuous period of three financial years, they shall be, no doubt,
disqualified to be reappointed as a director of that company for a period of
five years from the date on which the said company fails to do so, whereas for
disqualification of the directors u/s. 164(2)(a), there must be a default for
not filing the financial statement or annual return for a continuous period of
three financial years.
The ROC should have sent a notice to B
before taking any action, as it affects its right to continue as directors in
other companies which are complying with the provisions of law.
The High Court however clarified that the
mischief of removal of the names of the companies by the Registrar of Companies
and the disqualification of the directors in the defaulting company will go
together, as it is inseparable, and the ROC need not give fresh notice to the directors
for their disqualification from the dormant company, if there is a failure to
file the financial statement or annual return for any continuous period of
three financial years as per section 164(2)(a).
The High Court thus set aside the order and
allowed the writ petitions filed before it.
2.
Dinesh Kumar Bhasin vs. Batliboi Impex Ltd.[2018] 96 taxmann.com 94
(NCL-AT)
COMPANY APPEAL (AT) (INSOLVENCY) NO. 318 of
2018
Date of Order: 29th June, 2018
Section 9 of Insolvency and Bankruptcy
Code, 2016 – NCLT admitted the petition against the corporate debtor which was
filed by the operational creditor for default in payment of certain sum – A
shareholder of the corporate debtor challenged the admission on the ground that
the same was passed without hearing the corporate debtor – The order of the
NCLT was set aside – The dispute was already settled and hence, the same was
not remanded back to NCLT
FACTS
B Co filed an application u/s. 9 of the
Insolvency and Bankruptcy Code, 2016 (“the Code”) for initiating corporate
insolvency resolution process against T Co (“Corporate debtor”). National
Company Law Tribunal (“NCLT”) admitted the application, passed order of
‘Moratorium’ and pursuant to proceeding, an ‘Interim Resolution Professional’
was appointed.
Mr. D, a shareholder of T Co, objected to
the order of the NCLT on the grounds that an opportunity of being heard was not
afforded to B Co. Had B Co been heard, it could have pointed out the grounds
for rejection and in case of non-acceptance, it could have settled the dispute.
It was submitted to the NCLAT that T Co and
B Co had arrived at a settlement.
HELD
NCLAT held that the order of the NCLT was
passed without giving the corporate debtor an opportunity of being heard.
Accordingly, the same was liable to be set aside.
However, as the parties had already come to
a settlement, the same could not be remanded back to NCLT.
B Co was further ordered to bear the cost of
resolution professional appointed through the order of NCLT.
3.
[2018] 96 taxmann.com 271 (SC)
State Bank of India vs. V. Ramakrishnan
CIVIL APPEAL NOS. 3595 & 4553 of 2018
Date of Order: 14th August, 2018
Section 14 of the Insolvency and Bankruptcy
Code, 2016 – Moratorium for limited period mentioned in the Code would not
apply to personal guarantor of a corporate debtor – Amendment to section 14(3)
was clarificatory in nature and accordingly would have a retrospective
application
FACTS
V was the Managing Director of corporate
debtor and also its personal guarantor in respect of credit facilities availed
from State Bank of India (“SBI”). The guarantee agreement is dated 22.02.2014.
Owing to non-payment of debt, account of the corporate debtor was classified as
a non-performing asset on 26.07.2015 and proceedings under SARFAESI Act were
initiated.
On 20.05.2017 corporate debtor filed a
petition to initiate corporate insolvency resolution process against itself
which was admitted on 19.06.2017 and moratorium was statutorily imposed in
terms of section 14 of the Insolvency and Bankruptcy Code, 2016 (“the Code”).
V took up a plea that moratorium would apply
to the personal guarantor as well and as a consequence the proceedings against
personal guarantor ought to be stayed. National Company Law Tribunal (“NCLT”)
admitted the plea and restrained SBI from moving against V.
An appeal filed by SBI against the order of
NCLT before the NCLAT was also dismissed. The reasoning was that since the
personal guarantor can also be proceeded against, and forms part of a
Resolution Plan which is binding on him, he is very much part of the insolvency
process against the corporate debtor, and that, therefore, the moratorium
imposed u/s. 14 should apply to the personal guarantor as well.
HELD
Supreme Court examined various provisions of
the Code.
Section 2(e) as substituted by the Amendment Act, 2018 which came into effect
from 23.11.2017 specifically provides that provisions of the Code shall apply
to personal guarantors to corporate debtors. It was observed that Part III of
the Code titled “Insolvency Resolution and Bankruptcy for Individuals and
Partnership Firms” was not yet been brought into force. The repealing
provision, namely section 243, which repeals the Presidency Towns Insolvency
Act, 1909 and the Provincial Insolvency Act, 1920, was also not been brought
into force. Section 249, which amends the Recovery of Debts Due to Banks and
Financial Institutions Act, 1993, so that the Debt Recovery Tribunals under
that Act can exercise the jurisdiction of the Adjudicating Authority conferred
by the Code, was also not been brought into force.
Supreme Court observed that on a plain
reading, moratorium referred to in section 14 can have no manner of application
to personal guarantors of a corporate debtor. It was observed that so far as
personal guarantors were concerned, Part III has not been brought into force,
and neither has section 243, which repeals the Presidency-Towns Insolvency Act,
1909 and the Provincial Insolvency Act, 1920. The net result of this was that
so far as individual personal guarantors were concerned, they will continue to
be proceeded against under the aforesaid two Insolvency Acts and not under the
Code. It was further observed that use of the word “bankruptcy” in section
60(2) of the Code would not include SARFAESI proceedings but only to the two
Insolvency Acts referred to above.
It was observed that the scheme of section
60(2) and (3) was thus clear – the moment there was a proceeding against the
corporate debtor pending under the Code, any bankruptcy proceeding against the
individual personal guarantor would, if already initiated before the proceeding
against the corporate debtor, be transferred to the NCLT or, if initiated after
such proceedings had been commenced against the corporate debtor, be filed only
in the NCLT. However, NCLT would decide such proceedings only in accordance
with the Presidency-Towns Insolvency Act, 1909 or the Provincial Insolvency
Act, 1920, as the case may be.
Section 31 which was relied upon by V, only
stated that once a Resolution Plan, as approved by the Committee of Creditors,
takes effect, it shall be binding on the corporate debtor as well as the
guarantor. Supreme Court observed that this was for the reason that otherwise,
u/s. 133 of the Indian Contract Act, 1872, any change made to the debt owed by
the corporate debtor, without the surety’s consent, would relieve the guarantor
from payment. Section 31(1), in fact, makes it clear that the guarantor cannot
escape payment as the Resolution Plan, which has been approved, may well
include provisions as to payments to be made by such guarantor.
It was further observed that sections 96 and
101, when contrasted with section 14, would show that section 14 cannot
possibly apply to a personal guarantor. It was open for the Supreme Court to
mark the difference in language between sections 14 and 96 and 101, even though
sections 96 and 101 were not yet been brought into force. This was for the
reason that a law ‘made’ by the Legislature is a law on the statute book even
though it may not have been brought into force.
Upon examining the history of the Code and
previous enactments, the Court observed that Parliament, specifically did not
provide for any moratorium along the lines of section 22 of the Sick Industrial
Companies (Special Provisions) Act, 1985 in section 14 of the Code.
It was observed that Amendment of 2018,
which makes it clear that section 14(3), is now substituted to read that the
provisions of section 14(1) shall not apply to a surety in a contract of
guarantee for corporate debtor. It was held that object of the Amendment was to
clarify an overbroad interpretation of section 14 and such the same was a
clarificatory amendment which would be retrospective in nature.
The order of the NCLT was thus set aside.
Allied Laws
1. Evidence – Admissibility of electronic
evidence without certification as required under the provision of the
Act–Valid. [Evidence Act, 1872; Section 64B]
Shafhi Mohammad vs. The State of Himachal
Pradesh SLP (CRL.) No. 2302 of 2017 dt. 30/1/2018 (SC)
An apprehension was expressed on the
question of applicability of conditions u/s.
65B(4) of the Evidence Act to the effect that if a statement was given
in evidence, a certificate was required in terms of the said provision from a
person occupying a responsible position in relation to operation of the
relevant device or the management of relevant activities.
It was argued
that if the electronic evidence was relevant and produced by a person who was
not in custody of the device from which the electronic document was generated,
requirement of such certificate could not be mandatory, since if this is not so
permitted, it will be denial of justice to the person who is in possession of
authentic evidence/witness but on account of manner of proving, such document
is kept out of consideration by the court in absence of the certificate.
The Court
clarified the legal position on the subject of the admissibility of the electronic
evidence, especially by a party who is not in possession of device from which
the document is produced. It held that such party cannot be required to produce
certificate u/s. 65B(4) of the Evidence Act. The applicability of requirement
of certificate being procedural can be relaxed by Court wherever interest of
justice so justifies.
Co-Operative Housing Societies
– Voluntary Donation by members of Housing Societies at the time of sale – Even
though voluntary – Can be read as voluntarily with pressure – Illegal.
[Maharashtra Co-operative Societies Act]
Alankar Sahkari Griha Rachana Sanstha
Maryadit, through Chairman S.K. vs. Atul Mahadev Bhagat and Anr. Writ Petition
No. 4457 of 2014 dt. 31/08/2018 (Bom.)(HC). www.itatonline.org
The facts of
the case are that a donation of Rs. 5,00,000/- was made by the respondents to
the Petitioner society. It was alleged by the Respondent that the amount
of Rs. 5,00,000/- was paid for the
purpose of regularising the transfer of plot to a third party by the respondents.
The Petitioner
pointed out that there has been admission on the part of the Respondents with
respect to the amount of Rs. 5,00,000/- being a donation.
It was held
that, after the completion of construction of the bungalow, the Respondents
were in need of money and therefore they decided to sell the plot. On the
background of such facts, a person facing financial difficulties will not
donate an amount of Rs.5,00,000/- to the housing Society. Even though in the
present case, the Respondents have given admission that they paid Rs.5,00,000/-
towards donation to the Petitioner-society, it cannot be further read that it
was paid voluntarily without any pressure.
Hence, it was
concluded that the amount paid was not donation but money was a transfer fee paid
out of compulsion and it was not a voluntary payment.
3.
Natural Justice – Additional
Evidence – Chance for rebuttal. [CPC, 1908; O.41, R. 27]
Akhilesh Singh vs. Lal Babu Singh and Ors.
(2018)4 SCC659
A suit seeking
partition of their share in joint family properties was filed by the sons of
the grandfather of the Appellant. The suit was decreed and the Respondents
aggrieved, preferred an appeal. Various applications were filed for accepting
additional evidence. Since, nobody had appeared on behalf of the Appellant, the
High Court proceeded with the hearing of the appeal and relying on additional
evidence set aside the judgment and decree of the Trial Court. Aggrieved by
such order, the present appeal was preferred. It was held by the Court that the
Appellate Court before which any statement in sale deeds was relied ought to
have given an opportunity to lead evidence in rebuttal or to explain the
admission. Opportunity to explain the admission contained in the sale deeds was
necessary to be given to the contesting party. Accordingly, the High Court
order was set aside.
Precedent – Matter pending
before the Supreme Court – No stay granted neither set aside – Law laid down by
the co-ordinate Bench to be followed.
Industrial Mineral Co. (IMC) vs. Commissioner
of Custom. 2018 (15) G.S.T.L. 249 (Mad.) (HC)
In the present
case, the adjudicating authority had mentioned that the case on hand is similar
to another case, passed by the Customs, Excise & Service Tax Appellate
Tribunal, where the said case has been questioned by the Department, before the
Hon’ble Supreme Court and that the issue is yet to reach a finality.
The Court was
of the view that when the order passed by the Tribunal has not been stayed or
set aside by the Hon’ble Supreme Court, it is the bounden duty of the
adjudicating authority to follow the law laid down by the Tribunal. Since a
binding decision has not been followed by the adjudicating authority in this
case, this Court can interfere straightaway without relegating the assessee to
file an appeal. Accordingly, the order
passed by the Tribunal was quashed.