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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

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 post-qualification 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 non-traditional 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 non-members 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

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
(SC)]

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
(Bom)

14A disallowance vis-a-vis. Book profit
u/s. 115JB

   CIT vs. Sinhgad Technical Education                  Society 297 CTR 441(SC)

Assessment u/s. 153C

   CIT vs. Glenmark Pharmaceuticals Ltd. 398
ITR 439(Bom)

Interest u/s. 234B

   Maharaj Garage & Company vs. CIT 400
ITR 292 (Bombay)

Penalty u/s. 271(1)(c)

–     Sanjay Bimalchand Jain vs. Pr CIT ITA
No. 18/2017 (Bombay)w

Capital gain vs. Business income [Penny
stock]

–     Pr CIT vs. Prem Pal Gandhi ITA 95/2017
(P&H)

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

Shrikrishna (S) — Arey Arjun, I am waiting here for you since long.  You were to come at 5.  It is already 5.45.
 
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
Risk

Our
Response and results

Revenue
recognition

Refer
to page 41 (Report of the Audit Committee), page 93 (accounting policy) and
pages 94 to 95 (financial disclosures).

Revenue is measured net of
discounts, incentives and rebates earned by customers on the Group’s sales.
Within a number of the Group’s markets, the estimation of discounts,
incentives and rebates recognised based on sales made during the year is
material and considered to be complex and judgemental. Therefore, there is a
risk of revenue being misstated as a result of faulty estimations over
discounts, incentives and rebates. This is an area of significant judgement
and with varying complexity, depending on nature of arrangement.  There is also a risk that revenue may be
overstated due to fraud through manipulation of the discounts, incentives and
rebates recognised resulting from the pressure local management may feel to
achieve performance targets.

 

Revenue is recognised when
the risks and rewards of the underlying products have been transferred to the
customer. There is a risk of revenue being overstated due to fraud resulting
from the pressure local management may feel to achieve performance targets at
the reporting period end.

Our
procedures included
:

u Accounting
policies
: Assessing the appropriateness of the Group’s revenue
recognition accounting policies, including those relating to discounts,
incentives and rebates by comparing with applicable accounting standards;

u Control
testing
: Testing the effectiveness of the Group’s controls over the
calculation of discounts, incentives and rebates and correct timing of
revenue recognition;

u Tests
of details
: Obtaining supporting documentation for sales transactions
recorded either side of year end as well as credit notes issued after the
year end date to determine whether revenue was recognised in the correct
period.

u Within a number of the Group’s markets,
comparing current year rebate accruals to the prior year and, where relevant,
completing further inquiries and testing.

u Agreeing a sample of claims and rebate
accruals to supporting documentation.

u Critically assessing manual journals posted
to revenue to identify unusual or irregular items;

u Our
sector experience
: Challenging the Group’s assumptions used in estimating
rebate accruals using our experience of the industry in which it operates;

u Expectation
vs. outcome
: Developing an expectation of the current year revenue based
on trend analysis information, taking into account historical weekly sales
and returns information, and our understanding of each market. We compared
this expectation against actual revenue and, where relevant, completed
further inquiries and testing; and

u Assessing
disclosures
: Considering the adequacy of the Group’s disclosures in
respect of revenue.

u Our
results

The results of our testing
were satisfactory and we considered the estimate of the accrual relating to
discounts, incentives and rebates and the amount of revenue recognised to be
acceptable and recorded in the correct period.

Indirect
tax contingent liabilities

Refer
to page 41 (Report of the Audit Committee), page 131(accounting policy) and
page 132 (financial disclosures).

Contingent liability
disclosures for indirect tax require the directors to make judgements and
estimates in relation to the issues and exposures. In Brazil, one of the
Group’s largest markets, the complex nature of the local tax regulations and
jurisprudence make this a particular area of judgement.

Our
procedures included:

u Control
testing
: Testing the effectiveness of controls around the recording and
re assessment of indirect tax contingent liabilities;

u Our
tax expertise:
Use of our own local indirect tax specialists to assess
the value of the contingent liabilities in light of the nature of the
exposures, applicable regulations and related correspondence with the
authorities;

u Enquiry of lawyers:
Assessing relevant historical and recent judgements passed by the court
authorities in considering any legal precedent or case law, as well as
assessing legal opinions from third party lawyers and obtaining formal
confirmations from the Group’s external counsel, where appropriate; and

u Assessing disclosures:
Considering the adequacy of the Group’s disclosures made in relation to
indirect tax contingent liabilities.

u Our
results

The results of our testing
were satisfactory and we considered the indirect tax contingent liability
disclosures to be acceptable.

Direct
tax provisions

Refer
to page 41 (Report of the Audit Committee), page 105 (accounting policy) and
pages 105 to 107 (financial disclosures).

The Group has extensive
international operations and in the normal course of business the directors
make judgements and estimates in relation to transfer pricing tax issues and
exposures. This is a key judgement due to the Group operating in a number of
tax jurisdictions, the complexities of transfer pricing and other
international tax legislation.

Our
procedures included
:

u Control testing:
Testing the effectiveness of the Group’s controls around the recording and
re-assessment of transfer pricing provisions;

u Our tax expertise: Use
of our own tax specialists to perform an assessment of the Group’s related
correspondence with relevant tax authorities, to consider the valuation of
transfer pricing provisions;

u Challenging the assumptions using our own
expectations based on our knowledge of the Group, considering relevant
judgements passed by authorities, as well as assessing relevant opinions from
third parties; and

u Assessing disclosures:
Considering the adequacy of the Group’s disclosures in respect of tax and
uncertain tax positions.

Our
results

u The results of our testing were
satisfactory and we found the level of tax provisioning to be acceptable.

Business
combinations –

Carver

Refer
to page 41 (Report of the Audit Committee), page 132 (accounting policy) and
pages 132 to 135 (financial disclosures).

 

On 1st November
2017, the Group acquired approximately 98% of the share capital of Carver
Korea for €2.28 billion, recognising identifiable assets and liabilities
acquired at fair value. The measurement of the assets acquired at fair value
is inherently judgemental. In particular, judgement is required in
determining the royalty rate and discount rate to be applied in the relief from
royalty valuation of the acquired brand intangible asset. Small changes in
the royalty rate and discount rate assumptions can have  a significant impact on the valuation of
the brand.

 

Our
procedures included

u Control testing:
Testing the effectiveness of controls over the review of assumptions used in
the brand valuation;

u Assessing principles:
Assessing the principles of the relief from royalty valuation model;

u Benchmarking assumptions:
Evaluating assumptions used, in particular those relating to: i) the royalty
rate used and ii) the discount rate used; using our own valuation specialists
to compare these rates with externally derived data; and

u Assessing disclosures:
Considering the adequacy of the Group’s disclosures relating to the business
combination.

Our
results

u The results of our testing were
satisfactory and we considered the valuation of the acquired brand to be
acceptable.

Disposal
of Spreads business


presentation in the financial statements

Refer
to page 41 (Report of the Audit Committee), page 136 (accounting policy) and
page 136 (financial disclosures).

 

On 15th December
2017, Unilever announced that it had received a binding offer to sell its
Spreads business.

 

The Spreads business
continues to be reported within continuing operations. The related assets
held for sale and liabilities held for sale amount to €3,184 million and €170
million respectively.

 

The presentation of the
event in the financial statements is an area of judgement, particularly
whether the Spreads business represents a separate major line of business or
component of the Group, and therefore should be presented as a discontinued
operation.

Our
procedures included:

u Control testing:
Testing the effectiveness of the Group’s controls over the presentation of the
event;

u Tests of details:
Inspecting the terms of the Share Purchase Agreement to identify the assets
and liabilities relating to the Spreads business and assess the directors’
conclusion to present them as
held for sale;

u Agreeing the assets and liabilities
presented as held for sale to relevant supporting evidence;

u Testing application:
Assessing the directors’ judgement that the Spreads business does not
represent a separate major line of business, considering quantitative and
qualitative factors such as the financial contribution of the business to the
Group and whether discrete financial information is regularly reviewed by the
Unilever Leadership Executive (ULE); and

u Assessing disclosures:
Considering the adequacy of the Group’s disclosures.

Our
results

u The results of our testing were
satisfactory and we consider the presentation of the Spreads business within
continuing operations to be acceptable.

Investment
in subsidiaries

Unilever N.V.

Refer
to page 148 (accounting policy) and page 150 (financial disclosures).

 

Unilever PLC

 

Refer
to page 153 (accounting policy) and page 154 (financial disclosures).

 

The carrying amount of the
investments in subsidiaries held at cost less impairment represent 87% and
68% of Unilever PLC and Unilever N.V. total assets respectively.

 

We do not consider the
valuation of these investments to be at a high risk of significant
misstatement, or to be subject to a significant level of judgement. However,
due to their materiality in the context of the NV Company Accounts and PLC
Company Accounts, this is considered to be an area which had the greatest
effect on our overall audit strategy and allocation of resources in planning
and completing our audits of Unilever PLC and
Unilever N.V.

 

Our
procedures included:

u Control design:
Testing the design of controls over the review of the investment impairment
analysis;

u Tests of details:
Comparing the carrying amount of investments with the relevant subsidiaries’
draft balance sheet to identify whether their net assets, being an
approximation of their minimum recoverable amount, were in excess of their
carrying amount and assessing whether those subsidiaries have historically
been profit-making;

u Our sector experience: For
the investments where the carrying amount exceeded the net asset value,
comparing the carrying amount of the investment with the expected value of
the business based on a suitable multiple of the subsidiaries’ earnings or
discounted cash flow analysis;

u Benchmarking assumptions:
Challenging the assumptions used in the discounted cash flow analysis based
on our knowledge of the Group and the markets in which the subsidiaries
operate; and

u Assessing disclosures:
Considering the adequacy of Unilever PLC and Unilever N.V. disclosures in
respect of the investment in subsidiaries.

Our
results

u The results of our testing were
satisfactory and we found the Group’s assessment of the recoverability of the
investment in subsidiaries to be acceptable.

 

Intangible
assets

Unilever N.V.

 

Refer
to page 148 (accounting policy) and page 149 (financial disclosures).

 

The carrying amount of
intangible assets represent 4% of Unilever N.V. total assets.

 

We do not consider the
valuation of these intangible assets to be at a high risk of significant
misstatement, or to be subject to a significant level of judgement. However,
due to their materiality in the context of the NV Company Accounts this is
considered to be an area which had the greatest effect on our overall audit
strategy and allocation of resources in planning and completing our audit of
Unilever N.V.

 

Our
procedures included
:

u Control design:
Testing the design of controls over the review of the intangible assets
impairment analysis;

u Tests of details:
Assessing the directors’ triggering event review relating to the intangible
assets having regard to the performance of the related brands and trademarks;

u Our sector experience:
Evaluating assumptions used, in particular those relating to forecast revenue
growth and royalty rates;

u Benchmarking assumptions: Comparing
assumptions to externally derived data in relation to key inputs such as
royalty rates and discount rates;

u Sensitivity analysis:
Performing sensitivity analysis on the assumptions noted above; and

u Assessing disclosures:
Considering the adequacy of Unilever N.V. disclosures in respect of the
intangible assets.

Our
results

u The results of our testing were
satisfactory and we found the resulting estimate of the recoverable amount of
intangible assets to be acceptable.

 


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
matter

How our audit
addressed the key audit matter

Carrying value of
goodwill and intangible assets (group)

Refer to the Report of the Audit Committee
and note 10 –

Intangible assets

The group has goodwill of £2,723 million,
indefinite-lived brand intangibles of £8,229 million and other intangible
assets of £1,614 million as at 30 June 2017, contained within 21 cash
generating units (‘CGUs’).

 

Goodwill and
indefinite-lived intangible assets must be tested for impairment on at least
an annual basis. The determination of recoverable amount, being the higher of
value-in-use and fair value less costs to dispose, requires judgement on the
part of management in both identifying and then valuing the relevant CGUs. Recoverable
amounts are based on management’s view of variables and market conditions
such as future price and volume growth rates, the timing of future operating
expenditure, and the most appropriate discount and long-term growth rates.

 

Management has determined
that the CGUs containing the USL goodwill and the Meta brand are sensitive to
reasonably possible changes in the assumptions used, which could result in
the calculated recoverable amount being lower than the carrying value of the
CGU. Additional sensitivity disclosures have been included in the group
financial statements in respect of these CGUs.

 

We evaluated the
appropriateness of management’s identification of the group’s CGUs and tested
the operation of the group’s controls over the impairment assessment process,
which we found to be satisfactory for the purposes of our audit.

 

Our audit
procedures included challenging management on the appropriateness of the
impairment models and reasonableness of the assumptions used, focusing in
particular on USL goodwill, certain USL brands and the Meta brand, through
performing the following:

 

u Benchmarking Diageo’s key market-related
assumptions in the models, including discount rates, long term growth rates
and foreign exchange rates, against external data, using our valuation
expertise;

u Assessing the reliability of cash flow
forecasts through a review of actual past performance and comparison to
previous forecasts;

u Testing the mathematical accuracy and
performing sensitivity analyses of the models;

u Understanding the commercial prospects of
the assets, and where possible comparison of assumptions with external data
sources;

u For USL goodwill and USL brands, assessing
the reasonableness of forecasts by challenging assumptions in respect of
growth strategies in the Indian market; and

u For
USL goodwill and the USL brands, assessing the intermediary period in the
context of market conditions and forecast consumption per capita.

 

We assessed the
appropriateness and completeness of the related disclosures in note 10 of the
group financial statements, including the sensitivities provided in respect
of USL goodwill and the Meta brand, and considered them to be reasonable.

 

Based on our
procedures, we noted no material exceptions and considered management’s key
assumptions to be within reasonable ranges.

Taxation
matters (group)

Refer to the
Report of the Audit Committee, note 7 – Taxation, and note 18

– Contingent
liabilities and legal proceedings

 

The group operates
across a large number of jurisdictions and is subject to periodic challenges
by local tax authorities on a range of tax matters during the normal course
of business, including transfer pricing, direct and indirect taxes, and
transaction related tax matters. As at 30th June 2017, the group
has current taxes payable of £294 million, deferred tax assets of £134
million and deferred tax liabilities of £2,112 million.

 

Where the amount
of tax payable is uncertain, the group establishes provisions based on
management’s judgement of the probable amount of the liability.

 

We focused on the
judgements made by management in assessing the quantification and likelihood
of potentially material exposures and therefore the level of provision
required. In particular we focused on the impact of changes in local tax
regulations and ongoing inspections by local tax authorities, which could
materially impact the amounts recorded in the group financial statements.

 

This included
evaluating the recent assessment under the Diverted Profits Tax regime issued
by HM Revenue & Customs in the UK and the assessments issued by the tax
authorities in France.

 

We evaluated the
design and implementation of controls in respect of identifying uncertain tax
positions, which we found to be satisfactory for the purposes of our audit.
We also evaluated the related accounting policy for provisioning for tax
exposures and found it to be appropriate.

 

We used our tax specialists
to gain an understanding of the current status of tax assessments and
investigations and to monitor developments in ongoing disputes. We read
recent rulings and correspondence with local tax authorities, as well as
external advice received by the group where relevant, to satisfy ourselves
that the tax provisions had been appropriately recorded or adjusted to
reflect the latest developments.

 

We challenged
management’s key assumptions, in particular on cases where there had been
significant developments with tax authorities, noting no significant
deviations from our expectations.

 

This included
review of the legal advice received, supporting relevant decisions where no
provision is recorded.

 

We assessed the
appropriateness of the related disclosures in notes 7 and 18 of the group
financial statements and considered them to be reasonable.

 

Presentation of
exceptional items (group)

 

Refer to the
Report of the Audit Committee and note 4 –

 

Exceptional items

 

In the past few
years, the group has reported significant levels of exceptional items
separately within the consolidated income statement which are excluded from
management’s reporting of the underlying results of the group.

We evaluated the
design and implementation of controls in respect of exceptional items, which
we found to be satisfactory for the purposes of our audit.

 

We considered the
judgements within management’s accounting papers for the one-off transactions
and obtained corroborative evidence for the items presented as exceptional items.
We considered these to be reasonable.

 

The nature of
these exceptional items is explained within the group accounting policy and
includes gains or losses arising on acquisitions or disposals, impairment
charges or reversals, and costs resulting from non-recurring legal or
regulatory matters.

 

This year the
group has reported £42 million of net operating exceptional costs and £20
million of non-operating exceptional income before tax, which relate
primarily to:

 

u The release of liabilities recorded in the
year ended 30th June 2016 in respect of disengagement agreements
relating to United Spirits Limited (£23 million);

u A charge in respect of a customer claim in
India (£32 million);

u A charge in respect of a claim received from
the competition authorities in Turkey (£33 million); and

u A gain in respect of the finalisation of the
disposal of the group’s wine interests in the US and UK (Percy Fox) (£20
million).

Our specific are
of focus was to assess whether the items identified by management as exceptional
met the definition of the group’s accounting policy (i.e. are exceptional in
nature and value) and have been treated consistently, as the identification
of such items requires judgement by management. Consistency in the
identification and presentation of these items is important to ensure the
comparability of year on year reporting.

 

The audit
procedures pertaining to the claims in India and Turkey are summarised under
the “Provisions and contingent liabilities” section below.

 

We challenged
management’s rationale for the designation of certain items as exceptional
and assessed such items against the group’s accounting policy considering the
nature and value of the items.

 

We assessed the
appropriateness and completeness of the disclosures in note 4 and other
related notes to the group financial statements and checked that these
reflected the output of management’s accounting papers, noting no significant
deviations from our expectations.

 

We also considered
whether there were items that were recorded within underlying profit that we
determined to be exceptional in nature and should have been reported within
‘exceptional items’.

 

No such material
items were identified.

 

Provisions and
contingent liabilities (group and company)

 

Refer to the
Report of the Audit Committee, note 14(d) – Working capital (provisions) and
note 18 – Contingent liabilities and legal proceedings

 

The group faces a
number of threatened and actual legal and regulatory cases. There is a high
level of judgement required in estimating the level of provisioning and/or
the level of disclosures required.

 

We evaluated the
design and implementation of controls in respect of litigation and regulatory
matters, which we found to be satisfactory for the purposes of our audit.

 

Our procedures
included the following:

u Where
relevant, reading external legal advice obtained by management;

u Discussing open matters and developments
with the group and regional general counsel;

u Meeting
with regional and local management and reading relevant correspondence;

u Assessing and challenging management’s
conclusions through understanding precedents set in similar cases; and

u Circularising relevant third party legal
representatives, together with follow up discussions, where appropriate, on
certain cases.

 

Based on the
evidence obtained, whilst noting the inherent uncertainty with such legal and
regulatory matters, we determined that the level of provisioning at 30th
June 2017 is appropriate.

 

We assessed the
appropriateness of the related disclosures in notes 14(d) and 18 of the group
financial statements and consider them to be reasonable.

Post-employment
benefit obligations (group)

Refer to the
Report of the Audit Committee and note 13 – Post-employment benefits

 

The group has
approximately 40 defined benefit post-employment plans. The total present
value of obligations is £9,716 million at 30th June 2017, which is
significant in the context of the overall balance sheet of the group. The
group’s most significant plans are in the UK, Ireland and North America.

 

The valuation of
pension plan liabilities requires judgement in determining appropriate
assumptions such as salary increases, mortality rates, discount rates,
inflation levels and the impact of any changes in individual pension plans.
Movements in these assumptions can have a material impact on the
determination of the liability. Management uses external actuaries to assist
in determining these assumptions.

 

We evaluated the
design and implementation of controls in respect of post-employment benefit
obligations, which we found to be satisfactory for the purposes of our audit.

 

We used our
actuarial specialists to assess whether the assumptions used in calculating
the liabilities for the United Kingdom, Ireland and North America pension
plans were reasonable, by performing the following:

u Assessing
whether salary increases and mortality rate assumptions were consistent with
the specifics of each plan and, where applicable, with relevant national and
industry benchmarks;

u Verifying that the discount and inflation
rates used were consistent with our internally developed benchmarks and in
line with other companies’ recent external reporting; and

u Reviewing the calculations prepared by
external actuaries to assess the consistency of the assumptions used.

 

Based on our
procedures, we noted no exceptions and considered management’s key
assumptions to be within reasonable ranges.

 

How we tailored
the audit scope

 

We tailored the
scope of our audit to ensure that we performed enough work to be able to give
an opinion on the financial statements as a whole, taking into account the
structure of the group and the company, the accounting processes and
controls, and the industry in which the group operates.

 

The group operates
as 21 geographically based markets across five regions, together with the
supply and corporate functions. These markets report through a significant
number of individual reporting components, which are supported by the group’s
five principal shared service centres in Hungary, Kenya, Colombia, India and
the Philippines. The outputs from these shared service centres are included
in the financial information of the reporting components they service, and
therefore are not separate reporting components. In establishing the overall
approach to the group audit, we determined the type of work that needed to be
performed at reporting components by us, as the group engagement team, or
component auditors from either other PwC network firms or non-PwC firms
operating under our instruction. This included consideration of the
procedures required to be performed by our audit teams at the group’s shared
service centres to support our component auditors.

 

We identified two
reporting components which, in our view, required an audit of their complete
financial information, due to their financial significance to the group.
Those reporting components were North America and USL (India). A further 12
reporting components had an audit of their complete financial information,
either due to their size or their risk characteristics, which included six
operating and three treasury reporting components. We audited specific
balances and transactions at a further six reporting components, obtaining
reporting over the financial information of Moet Hennessy, the group’s
principal associate, from its auditor, primarily to ensure appropriate audit
coverage. The work performed at each of the five shared services centres,
including testing of transaction processing and controls, supported the
financial information of the reporting components they serve.

 

 

Certain specific
audit procedures over central corporate functions and areas of significant
judgement, including goodwill and intangible assets, taxation, and material
provisions and contingent liabilities, were performed at the group’s head
office. We also performed work centrally on systems and IT general controls,
consolidation journals and the one-off transactions undertaken by the group
during the year.

 

Together, the
central and component locations at which work was performed by the group
engagement team and component auditors accounted for 72% of consolidated net
sales, 84% of the consolidated total assets, and 64% of the consolidated
profit before tax and exceptional items, with work performed by the group
engagement team over exceptional items contributing a further 1% coverage
over the consolidated profit before tax (total of 65%). At the group level,
we also carried out analytical and other procedures on the reporting
components not covered by the procedures described above.

 

Where the work was
performed by component auditors, including by our shared service centre
auditors, we determined the level of involvement we needed to have in the
audit work at those locations to be able to conclude whether sufficient
appropriate audit evidence had been obtained as a basis for our opinion on
the group financial statements as a whole. We issued formal, written
instructions to component auditors setting out the work to be performed by
each of them and maintained regular communication throughout the audit cycle.
These interactions included attending component clearance meetings and
holding regular conference calls, as well as reviewing and assessing matters
reported.

 

Senior members of
the group engagement team also visited eleven component locations (in six
countries) in scope for an audit of their complete financial information, as
well as four of the shared centre locations and six of the component
locations (in four countries) where audits of specific balances and
transactions took place. The team also met with the Moet Hennessy audit team.
These visits included meetings with local management and with the component
auditors, as well as certain operating site tours. The group engagement
partners also attended the year-end clearance meetings for North America and
USL, and the group engagement team reviewed the audit working papers for
these components and certain other components.

 



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

17. Deemed dividend – Section 2(22)(e) – Decision of the Supreme Court in C.I.T., Delhi-II vs. Madhur Housing and Development Company (2018) 401 ITR 152 (SC)

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.


In keeping with his aim of building and reinforcing relationships with
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
Expenses

2.86

3.79

41.01

34.95

82.81

122.21

 

Change in inventories of
construction work in progress

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
Amortization expense

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
exceptional  items and
Tax (3-4)

(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
Period (7- 8)

(426.22)

(575.43)

(388.52)

(2693.28)

(666.92)

(889.52)

10

Other comprehensive income

 

 

 

 

 

 

 

Items that will not be
reclassified to profit
and loss

0.14

0.14

(0.10)

0.41

(0.31)

0.55

11

Total comprehensive income
for the period (9+10)

(426.08)

(575.29)

(388.62)

(2692.87)

(667.23)

(888.97)

12

Paid-up equity share capital
(face value of Re.1/- per share)

330.26

330.26

273.78

330.26

273.78

330.26

 

Earning per share (EPS) not
annualised

 

 

 

 

 

 

 

– 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
Revenue

 

 

 

 

 

 

 

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
Results (Profit(+) /Loss(-) before tax and interest from each 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
Un-allocable Expenses (Net of
Un-allocable income)

(6.86)

121.99

(11.98)

1235.27

(39.50)

(122.63)

 

Total
Profit/(Loss) Before Tax

(426.22)

(575.43)

(388.52)

(2693.28)

(666.92)

(889.52)

3

Segment
Assets

 

 

 

 

 

 

 

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
Liabilities

 

 

 

 

 

 

 

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
assets

 

Property,
plant & equipment

238.94

Capital
work-in-progress

2.98

Other
intangible assets

0.07

Investment
in subsidiaries

1,198.11

Financial
assets

 

   Loans

9.20

   Other non-current financial assets

1.47

Other
non-current assets

1.10

 

1,451.87

Current
assets

 

Inventories

236.65

Financial
assets

 

   Trade receivables

413.06

   Cash and cash equivalents

0.51

   Other current financial assets

76.50

Other
current assets

23.01

 

749.73

Total
(A)

2,201.60

Liabilities

 

Non-current
liabilities

 

Financial
Liabilities

 

Borrowings

562.84

Employee
benefit obligations

2.28

Deferred
tax liabilities (net)

5.75

 

570.86

Current
liabilities

 

Financial
liabilities

 

   Borrowings

228.25

   Trade payables

586.09

   Other financial liabilities

160.39

Net
employee defined benefit liabilities

1.41

 

1,064.95

Total
(B)

1,635.82

Excess
of book value of assets over the book value of liabilities (A-B)

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
crores

Excess
of book value of assets over the book value of liabilities

565.78

Adjusted
against:

 

Securities
premium

197.26

General
reserve

99.97

Surplus
in the statement of profit and loss

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
assets

 

Fixed
assets

 

   Tangible assets

2,389.36

   Intangible Assets

0.73

   Capital work-in-progress

29.81

 

2,419.90

Non-current
investments

11,981.08

Long-term
loans and advances

117.75

Other
non-current assets

4.20

 

14,522.93

Current
assets

 

Inventories

2,366.52

Trade
receivables

4,130.64

Cash
and bank balances

5.10

Short-term
loans and advances

981.05

Other
current assets

17.98

 

7,501.30

TOTAL
(A)

22,024.23

LIABILITIES

 

Non-current
liabilities

 

Long-term
borrowings

5,632.50

Deferred
tax liabilities (net)

57.50

Long-term
provisions

22.75

 

5,712.75

Current
liabilities

 

Short-term
borrowings

2,286.54

Trade
payables

5,860.98

Other
current liabilities

2,492.04

Short-term
provisions

14.12

 

10,653.68

TOTAL
(B)

16,366.43

Excess
of book value of assets over the book value of liabilities (A – B)

5,657.79

Total
consideration payable by the Company to equity share holders of STL

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

Dear Members,

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.

 

In view of the observations
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

26  Arbitration – Main agreement not registered – Arbitration clause cannot be acted upon.
[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 I
nd AS which are not applied as they are effective for periods
beginning on or after 1
st 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 (31
st March 2018)

 

From Notes to Standalone
Financial Statements

 

Recent
Indian Accounting Standards (I
nd 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. (31
st 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.

 

IRP was directed to not
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

  1. World’s most powerful passports:

  1. Online videos gaining edge in India

Source: State of Online Video 2018’ report by Limelight Networks.

  1. Foreign Exchange Reserves (in $ billion):

Source: Twitter @spectatorindex

  1. Self-employed workers as share of total workers

Source: OECD (twitted by @spectatorindex)

  1. Say media report news accurately, 2018

Source: Pew Research (twitted by @spectatorindex)

  1. 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.

 

Thus
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

  (I) Dispensation
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
downstream investment

Investee entity

Applicability of Form DI
under old FDI regulations

Applicability of Form DI
under New FDI regulations

Scenario 1

Indian LLP / Any Indian
entity (excluding Indian company)

Indian company

Not applicable

Applicable

Scenario 2

Indian company

Indian LLP / Any Indian
entity (excluding Indian company)

Not applicable

Applicable

Scenario 3

Indian company

Indian company

Applicable

Applicable

Scenario 4

Indian investment vehicle

Indian company / Any other
Indian entity

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
(in INR)

Time period of default

Paragraph 8 of Schedule 1

Allotment of shares to Non-Resident investors prior to receipt
of consideration

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
RBI

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,
AHPL which in turn made payment to Applicant

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
payment to applicant

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
Regulation

Nature of default

Amount involved (in INR)

Time period of default

Regulation 10A(b)(iii) read
with Paragraph 8 of Schedule 1

Receipt of sale
consideration by the applicant through third parties, not being a permitted
method of payment under FEMA Regulations

59,50,000

8 years & 7 months to 9
years & 8 months

Regulation 10A(b)(iii)

Receipt of sale
consideration by the applicant on deferred payment basis

34,50,000

9 years & 8 months

Regulation 10A(b)(iii)

Transfer of shares by the
applicant without filing Form FC-TRS

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
ODI under automatic route without obtaining fair valuation certificate and
without submitting APRs

Rs. 13.67 lakh

8 years &
7 months

Regulation 16(1)(v)

Disinvestment of stake in
overseas WOS even though the same was not in operation during the previous
year.

Rs. 13.67 lakh

8 years &
7 months

Regulation 15(iii)

Non-submission of APR
annually

Rs. 13.67 lakh

8 years &
7 months

 

 

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

22nd “ITF Conference 2018” held from 15th to 18th August at The Narayani Heights, Ahmedabad

 

The International Tax and Finance Conference was conducted from 15th to 18th August at The Narayani Heights, Ahmedabad with a robust attendance of 233 members from around 19 cities across India. The Conference was top lined by experts from respective fields who dealt with their subject matter with in-depth clarity. The 4-day Conference was marked with 6 technical sessions which included 3 group discussion papers, 1 presentation and 2 panel discussions.

 

President CA. Sunil Gabhawalla gave his opening remarks on “Indirect Tax Aspects of Cross Border Structuring” and also explained about BCAS activities and new initiatives.

 

The Conference was inaugurated with a keynote address by Adv. Saurabh Soparkar who dealt in a very succinct manner on “Understanding of codified GAAR in light of, as well as in comparison, to judicial GAAR, in international tax context”.

 

CA. Gautam Doshi spoke on “Business Connection and PE in the context of recent amendments and BEPS”. He dealt with case studies covering various aspects of the recent significant economic presence, principle purpose test, place of effective management and dependent agent. He explained the toughest concepts at a fundamental level and enlightened all in a very concise and enriching manner. The paper provided by him gave justice to all important areas of the topic.

 

CA. Hasnain Shroff explained “Recent Developments in Transfer Pricing”. He discussed recent developments from BEPS, attribution of profits to PE and intangible-related valuation and transactions. The case studies put forward by him brought out many new issues and the concepts yet to be tested were explained thoroughly.

 

CA. Padamchand Khincha deliberated upon “Case Studies on Cross-Border Business Structuring”, Hybrid Instruments and Entities, indirect transfer of shares, BEPS, domestic GAAR and Limitation on Interest Deduction.

 

Dr. Anup Shah’s presentation on “Raising Global Finance (Recent Trends and Indian Regulations including FEMA and other laws)” was well received and he discussed in detail, the tax, FEMA and other regulatory analysis in respect of raising finance from an international perspective.

 

Adv. Vikram Nankani’s presentation on “Interplay of Benami Properties Act, Black Money Act, Fugitive Economic Offenders Bill/Act and PMLA” also provided brief analysis to all participants.

 

The Panel Discussion was chaired by Shri Pramod Kumar, ITAT and Accountant Member with Dr. Vinay Kumar Singh, CA. Pranav Sayta and CA. T. P. Ostwal as panellists. The Panel discussed various case studies on “Interpretation of Tax Treaties against the backdrop of OECD MC 2017, MLI and GAAR”. All the panellists took up case studies which contained the latest and most important concerns including the impact of latest changes introduced as a part of the BEPS Project. It was an enriching experience to hear the stalwarts from both revenue and profession on this new topic.

 

In addition, there were quite a few non-technical but equally enriching personal development programmes such as Strategic Management from IIM-Ahmedabad by Professor Dr. Naman Desai, where delegates had the first-hand experience of strategic management lessons which was followed by the campus tour of IIM-Ahmedabad and a social visit to Swaminarayan Temple along with the water show and also entertainment by Singer Abhijeet Rao and his troupe during the Gala Night.

 

The Conference thus achieved its objective of affording the best of International Tax deliberations and learnings interspersed with useful non-technical sessions.

 

The participants were hugely enlightened from the sessions taken at the Conference.

 

Lecture Meeting on “Proposed GST Return Formats – Whether Simple enough?” held on 21st August 2018 at BCAS Conference Hall

 

BCAS conducted a lecture meeting on a technical topic “Proposed GST Return Formats – Whether Simple enough?” on Tuesday, 21st August 2018 at BCAS Conference Hall. The lecture was delivered by CA. Samir Kapadia who informed the audience regarding the challenges in the present return filing system and significant features of the proposed GST returns format and manner of processing thereof. He also explained to the audience the problems to be overcome for the proposed return filing process to achieve its desired results. The Society has created a dedicated email id:  issues_gstreturns@bcasonline.org on which public at large may consider posting the challenges and issues faced by them during the GST return filing process along with necessary screen shots wherever possible. The Society will communicate such issues to GSTN team at regular intervals and interact with them as an endeavour to assist GSTN Team in designing a hassle-free and efficient return processing platform.

 

The lecture meeting was very interactive and informative and ended with addressing few questions from the audience and vote of thanks to learned speaker.

 

TECHNOLOGY INITIATIVES STUDY CIRCLE 

 

Technology Initiative Study Circle on “Productivity Apps for Workplaces” held on 23rd August, 2018 at BCAS Conference Hall 

 

Technology Initiatives Committee conducted a Study Circle Meeting on Productivity Apps for Workplaces on 23rd August, 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.

 

In the present scenario, mobile technology plays a key role in oral and written communication within and outside the workplace, to enhance productivity in the organisations. In this context, CA. Rajesh Pabari covered important web based applications (Trello, Evernote, Wunderlist, Mightytext, GoogleDocs, Spreadsheet, Blinkist, edX, Drupe, etc), Desktop applications ( AnyDesk, PDFill, LibreOffice, Calibre, AgentRansack, Flux, XiliSoft, Foxit, Evernote) and important chrome extensions (MyWot, Trello, LastPass, Extensify, Evernote, WebClipper, Nimbus Screenshot, MailTrack, Grammarly, Loom, Mercury Reader, HoverZoom) etc., to make the participants understand the importance of these applications, to achieve the objective of go green and thereby increase efficiency and reduce costs.

 

The session was followed by Q&A session where the Speaker thoroughly addressed all the queries of the participants. The study circle was truly enthralling and the participants appreciated the in-depth insight given by the learned speaker.

 

Narayan Varma Memorial Lecture held jointly with Dharma Bharathi Mission and Public Concern for Governance Trust on 24th August, 2018 

 

The third Narayan Varma Memorial Lecture was delivered by the guest speaker Mr. Vallabh Bhansali on the topic “Rebuilding India” on 24th August 2018 at K. C. College Mumbai. In terms of rotational arrangement agreed for hosting the event, this year the main host was Bombay Chartered Accountants’ Society. Dharmabharti Mission (DBM) and Public Concern for Governance Trust (PCGT) were co-hosts.

 

The speaker recalled his memories with late Mr. Narayan Varma and informed that the topic was the most apt from the point of view of the belief system late Narayan Varma practiced. He said the word “rebuilding” connoted bringing about change in things as they stand. Changes are triggered by human beings on what bothers them based on their area of influence. While most ordinary people make attempt to change only things that fall within their area of influence, Mr. Varma – the great leader that he was, would take things that bothered him head on without bothering about his area of influence. He focused on what was needed to be done to redeem the problem believing that area of influence will enlarge. This is the context on which India could rebuild itself, the speaker advocated.

 

Explaining the context, he said that a well-known researcher has found that India had 40-45% share of world GDP for 1800 years as compared to 2.5% now. This is why it needs to rebuild itself. Countries like China and Korea which were far smaller in their share could overtake India because they believed in their vision and planned for it and auctioned it without bothering about other things. In fact, China had one hundred year plan document to pursue their goal to change their fate, overcome challenges that lay ahead. But not deterred by the uncertainties, it just went ahead and made great stride with discipline and persistence.

 

The speaker emphasised that to rebuild India what is needed is a change of our mindset. Shikayat Nahi Shuruat (No complaints, just take the initiative) is the mantra that needs to be practiced. Generally changes in the society are brought about by Government, Corporates, Charities and Individual citizens either singly or in collaboration with each other. Indian mindset is to wait for the government to do everything to bring about a required change.  However, this slows down the change and makes it inefficient. This is what has deprived India of several opportunities despite its tremendous advantages in terms of topography, demographics, largest arable land and vegetation, variety of climate and innovative mindset of its people.

 

Elaborating his argument, the speaker said that he believed transformational change could be brought about to rebuild India only through strong belief backed up by Governance, Value Education and collaboration of its constituent viz. Government, Corporates, Charities and Individuals. Governance meant creating eco system of rules, regulations, code of conduct and design model that can measure and monitor progress. Value education meant inculcating a value system to think beyond oneself and take an inclusive view to contribute towards nation building. He said that ground level progress will be visible only when residents become citizens first and transform themselves into actizens.

 

To explain his arguments, he gave example of his recent projects. He said that in a recent project, to aid drought affected area of Maharashtra, he realised how massive the challenge was. The unanimous opinion was that temporary aid will not be the solution. It needed end to end solution which meant creating an eco-system that can prevent droughts. The target was huge, resources requirements were massive and a bold thinking was must. That is when belief was developed that it could be done with meticulous design model, collaboration of corporates, individuals and government. A detailed proposal was made with comprehensive governance system and it achieved great success by more than expected response from corporates and the government. A proposal that started with just one district as model is now being extended to many affected districts. All this with extraordinary low costs as compared to what just an individual constituent would have spent.

 

Another prerequisite he mentioned was about “Value Education” which is the backbone of progress for any society. Lamenting the legacy of education system, he said that there is hardly any emphasis on the subject of civics that brings civility in the citizens. He said that he was involved with building a value education curriculum that could change the way the young students think to ultimately rebuild India as strong and vibrant country of nationalist citizens. Realising that this could be done only with support of the government, he took it up with the government of Goa and Maharashtra who were more than enthusiastic. After initial pilots, both governments are adopting the project for all the schools run by them in their state. This is the power of collaborative efforts which with right design and belief could do wonders to bring about a change. The take away of the matter is that if one feels strongly for the cause, the ability to make the change happen will follow.

 

Stating that corporate governance in current times was a critical issue, he said that corporates could think of a “Custodian” who could be the focal point for right governance. If there is a strong will to have better governance then it will be followed by needed government regulations and training.

 

Concluding his speech he said that we can certainly rebuild India provided we develop spirit like Narayan Varma to do even a small bit to change the situation that bothers us by being constructive and not critical.

 

The speech was followed by a Q&A session.

 

Next item to follow was the presentation of award by each of the three organisations to the awardees for their selfless contribution to the society. The awardees were:

 

1. Mr. Atul Doshi Awardee -BCAS
2. Mr. Achyuta Samanta Awardee – DBM
3. Mr.Anil Galgali Awardee -PCGT
A short introduction of their work in their respective field was given to the audience by short film and by narration as applicable.

 

A well-deserved vote of thanks was given by Shri Paramjeet Singh, the President of DBM. The meeting was coordinated and compered by CA. Mihir Sheth.

 

ITF STUDY CIRCLE

 

Study Circle Meeting on “Taxation of Profits from Shipping and Air Transport under DTAA” held on 27th August, 2018 at BCAS Conference Hall

 

International Taxation Committee organised ITF Study circle on 27th August, 2018 at BCAS Conference Hall which was led by CA. Sonia Agrawal, who initially began with an explanation about various operations of Shipping and Aircraft companies within India and outside India. She explained various types of vessels that Indian companies hire from foreign shipping companies and how they function commercially. Similarly, various types of aircrafts which are leased/used by the Indian residents from foreign companies and their operations with regards to cargo/passenger and mobility and use were deliberated in brief. Taxation of profits under presumptive taxation as per Section 44BB and 44 BBA with the difference in taxation and nexus with Section 172 were also explained in detail with examples.

 

The participants resolved their questions and queries with the group leader and further discussion with regards to Article 8 as per the Treaty will be taken up in the forthcoming meeting to be held on 4th October, 2018.The members of the Study Circle discussed their experiences on above mentioned issues and the participants benefitted from the discussion on the subject.

 

Intensive Study Course on “Internal Audit 101: Let’s Start at the Very Beginning” held on 30th and 31st August, 2018 

 

The Accounting and Auditing Committee organised a 2-day Foundation Course on Internal Audit 101 at Orchid Hotel, Mumbai. The course witnessed a full-house, well represented by participants from the profession as also from the industry. The entire course was conceptualised and curated by the newly formed GRC subgroup of the Accounting and Auditing Committee.

 

The course was inaugurated by a welcome address by President CA. Sunil Gabhawalla and opening remarks by Chairman CA. Himanshu Kishnadwala that set the tone for the entire event. The first session, by CA. Jyotin Mehta provided an overview of Internal Audit and the regulatory framework within which it operates. CA. Satish Shenoy unfolded the story by narrating various real life incidents that had the audience rocking with laughter – his unique style provided excellent learning with a big dose of entertainment.

 

CA. Atul Shah meticulously took the participants through the tools and tricks of the trade, by sharing audit techniques deployed at each stage of audit. His tremendous preparation and eye for detail was appreciated by one and all. CA. Nandita Parekh took everyone back to the drawing board on the basics of Risks and Controls – the simplicity of her talk along with a vivid presentation reinforced the core concepts that form the heart of internal audit.

 

The second day commenced with CA. Ashutosh Pednekar, who talked about specific cycle audit. His real life examples and interesting stories captivated the audience. CA. Deepjee Singhal’s session focused on the meeting point of Technology and Internal Audit and covered the entire gamut of areas where use of technology would be a game-changer. His session drove home the point that extensive use of technology tools is no longer a luxury for Internal Audit, it is a necessity for survival.

 

CA. Mario Nazareth, the only guest faculty, held the participants completely spellbound during his 2 hour long presentation on “The Art of telling a Good Story”, a session designed to help participants write and present compelling reports. His presentation, laced with audio visuals, pictures and graphs impressed one and all, and provided a fabulous end to the individual sessions.

 

The 2 day event ended with a panel discussion focussing on “Internal Audit should be at the forefront of an organisation, not a backroom function”. The distinguished panellists were CA. Deepjee Singhal. CA. Satish Shenoy, CA. Mrugesh Shah, CA. Sandip Joshi and CA. Mario Nazareth. The panel discussion, anchored by CA. Nandita Parekh, provided varied views and insights on key issues of internal audit and the rapid fire round brought an interesting finish to this vibrant, energetic 2 day foundation course.

 

The course lived up to its promise of delivering the sessions in a “story-telling” style with anecdotes, real life incidents and practical insights to deliver a unique and interesting experience for the participants who got invaluable insights from the sessions of speakers.

 

Full Day “Seminar on Charitable Trusts – Critical Aspects” Jointly with Chamber of Tax Consultants held on 1st September, 2018 at BCAS Conference Hall 

 

Corporate and Allied Laws Committee of the Society jointly with the Chamber of Tax Consultants organised a Full Day Seminar on Charitable Trusts on 1st September, 2018 at BCAS Conference Hall, to discuss the critical aspects and recent developments in this sector.

 

President CA. Sunil Gabhawalla in his opening remarks briefed the participants about the recent development happening in the field of Non-Profit organisation sector. He also highlighted the challenges as well as the opportunities available to the practicing chartered accountants in this sector. President of Chamber of Tax Consultants Mr. Hinesh Doshi also appreciated the initiative taken up by BCAS in organising such event and shared his views on the compliance and other related issues of charitable trusts.

 

The Seminar was inaugurated by Mr. Bharat Vyas – Deputy Charity Commissioner, Maharashtra. He also took the 1st session on Important Procedural Aspects for Trustees and Professionals wherein he shared his views on the recent changes in the Bombay Public Trust Act, FCRA etc., and various other procedural aspects relating to the formation and annual certification relating to the charitable trust.

 

The second session was addressed  by CA. Gautam Shah who enlightened the participants about various Compliances and Issues under the Maharashtra Public Trust Act. He also highlighted about duplication and other practical challenges faced by the practitioners in relation to the charitable trusts.

 

In the third session, CA. Gautam Nayak discussed various issues relating to the Taxation of the Charitable Trusts including the issues arising out of the rejection of the registration of various charitable organisations. He also briefly explained various judicial pronouncements relating to issues e.g. Depreciation on Assets, carry forward of losses etc.

 

During the fourth session, CA. Sanjay Agarwal from Delhi enlightened the participants about various issues relating to the registration and renewal of FCRA license. He also discussed the common issues relating to the separate books of accounts, issues relating to administrative expenses and other important aspects to be considered during the filing of the FCRA returns. He then deliberated on the issues arising after 2016 amendment in the definition of Foreign Source which invited lot of discussion amongst the participants. He also briefly touched upon the issues arising in CSR donations in relation to the receipt of grant vs. service contract.

 

The implication of Goods & Service Tax (GST) on the non-profit organisations has always been an area of debate since July 2017. Fifth session on this topic was taken by Mr. Shailesh Sheth who addressed the participants on various issues relating to the GST in respect of charitable trusts. He also discussed various judicial precedents which can be considered to determine the applicability and other consequential provisions of GST on the charitable organisations.

 

At the end, there was a Panel Discussion under the Moderation of CA. Gautam Shah wherein Mr. Satyanarayan Raju – Addl CIT (Exemptions), CA. Gautam Nayak and Mr. Noshir Dadrawala discussed various issues relating to the charitable trusts. The floor was opened for Q&A session where panellists answered all the queries of the participants.

 

The seminar was very interactive and full of insights into the charitable trusts and the participants were truly enriched with the presentation and the in-depth insights given by all the Speakers. The Seminar received an overwhelming response from the industry as well as practicing chartered accountants in the field of Non-Profit Organisations.

 

STUDENTS STUDY CIRCLE

 

Students Study Circle on “Recent  Amendments in GST Laws” and “New GST Return Filing Procedure” held on 4th September, 2018 at BCAS Conference Hall

 

The Students Forum under the auspices of HRD Committee organised a Students’ Study Circle on the captioned topics on 4th September, 2018 at BCAS Conference Hall.

 

The study circle was led by student group leaders Mr. Jimit Doshi and Mr. Hardik Goyani under the mentorship of CA. Raj Khona. The student co-ordinator Mr. Dhruval Shah introduced the mentor, group leaders and briefly explained the topics. CA. Rajesh Muni, Chairman of the HRD Committee addressed the students and encouraged them to actively participate in the events organised by the Students Forum. Both the group leaders thoroughly covered their respective topics in a very interactive manner. CA. Raj Khona guided the students by explaining implications and rationale behind the recent amendments in a simplified and lucid manner.

 

The group leaders and the mentor also answered various queries raised by the participants. The study circle was an insightful experience for the participating students.

 

INTERNATIONAL ECONOMICS STUDY GROUP

 

Meeting on “Trade War to Currency War to Economic War” held on 4th September, 2018 at BCAS Conference Hall 

 

International Economics Study Group held their meeting on 4th September, 2018 to discuss “Trade War to Currency War to Economic War” at BCAS Conference Hall. The Speaker, CA. Rashmin Sanghvi talked on Economic war detailing – how United States of America has been using this tool to harm other Countries. He specifically brought out case of 1992 breakup of USSR into 15 independent republics without firing a single bullet. He brought out various measures USA is taking to adversely affect economy of many nations and highlighted cases of many countries besides USSR. He also highlighted that many countries like Russia, China, Germany & France are raising voices as to why should International Transactions be carried out in Dollar using “SWIFT” even though USA is not a party to such transactions. Sanctions on Iran & Turkey are termed as “Weaponising the Dollar” whereby Dollar is used to harm countries that do not follow US diktats.

 

CA. Harshad Shah highlighted ongoing Trade War that USA unleashed against China and other nations with tariff being raised on many goods and currencies of many countries are getting hurt in the process. There appears to be a greater “Economic War” being playing out between “current Super Power” USA and its “Challenger” China. USA is employing “Trade War” and Dollar is strengthening against most of other currencies and depreciation of Indian Rupee is part of that. Many countries (China, Venezuela, Turkey, Iran, Pakistan etc.) are experiencing economic turmoil & crisis. In case of Iran, the currency has depreciated more than 100% and in case of Turkey, it is over 40%, both of whom are experiencing after effect of Trade War and Economic Sanctions.

 

CA. Milan Sangani suggested that present exercise is more of renegotiating terms of trade in typical style adopted by President Trump. There may not be any Trade War. The tensions will ease once renegotiations are carried out like in the case of USA & Mexico. The meeting was a good takeaway for the participants where the experienced and learned speakers answered their queries as well.

 

Lecture meeting on “GST Audit – A Curtain Raiser” held on 5th September, 2018 at BCAS Conference Hall

 

A lecture meeting on the topic “GST Audit – A curtain raiser” was held on 5th September, 2018 at BCAS conference hall which was addressed by CA. Parind Mehta. In the beginning of the meeting, a book on “Exports and Export Refunds under the GST Law” by CA. Chirag Mehta was released by the hands of the Speaker.

 

During his speech, CA. Parind Mehta discussed the scope of GST audit vis-a-vis recommended draft reports of ICAI and BCAS. He elaborated upon comparatives of both the drafts with positives and negatives. He discussed various reconciliations involved at different stages of GST audit.  He also made the participants aware about challenges in undertaking first GST audit and cautioned them about clarity of role of auditee and auditor and importance of auditee preparedness before undertaking the audit. CA. Parind Mehta responded to the various queries raised by the participants who benefitted a lot from the meeting.

 

FEMA STUDY CIRCLE

 

Study Circle Meeting on “Overview of FEMA” held on 6th September, 2018 at BCAS Conference Hall

 

A FEMA Study Circle Meeting was held on 6th September, 2018 at BCAS Conference Hall where CA. Natwar Thakrar led the discussion on the topic of Overview of FEMA covering Residential Status, Overall Structure, Important Definitions, Notifications and Circulars etc., amongst others. In continuation of earlier meeting on the same subject, the Group Leader deliberated upon residential status by giving examples.

 

He also brought to the notice of the participants that definition of an NRI and Person of Indian Origin have changed and one needs to be careful while advising NRI clients as to who can make investment in India in various assets. He discussed prohibited transactions under section 3 of the Act and shared a compounding order which dealt with violation under section 3.

 

The participants were delighted with the valuable insights on the subject and got their queries on various important definition and changes made in the law resolved.

 

Workshop on “Developments in Audit Reporting, etc., for Audit for 2017-18” held on 6th September, 2018 at BCAS Conference Hall

 

The Accounting & Auditing Committee organised a full day workshop on Developments in Audit Reporting, etc., for Audits for 2017-18 on 6th September, 2018 at BCAS Conference Hall. Vice President CA. Manish Sampat gave the opening remarks. Chairman of Accounting & Auditing Committee CA. Himanshu Kishnadwala then briefed on the need for such workshop & relevance of the topics selected. The following topics were taken up at the workshop by the learned Speakers:

 

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

 

CA. Rajesh Mody started the first session highlighting the important issues in revised Accounting Standards. He took various case studies to explain the important aspects of the revised standards and their impact on financial statements. He also dealt with the changes expected in next 2-3 years and how those changes are going to affect the Accounting fraternity dealing with Indian GAAP.

 

CA. Abhay Mehta took the participants briefly through critical observations made by FRRB based on the reviews conducted by the Board and published for the benefit and course correction by the C.A. fraternity, in preparing the financial statements. He also covered critical observations in the areas of Accounting Standards, Auditing Standards & Company Law compliances.

 

CA. Zubin Billimoria spoke on new Audit Reporting Requirements and the changes in reporting requirements which will be applicable for the reporting period ending 31st March, 2019. He particularly covered in detail the “Key Audit Matters” (KAM) which is going to have very wide impact on the way the Audit Report is prepared. He also covered important Audit Reporting Requirements like Emphasis of Matter (EOM) Paragraph, Modified Report, Qualified Report and Disclaimer of Opinion.

 

CA. Paresh Clerk addressed the last session of the workshop dealing with recent changes in Companies Act, 2013. He discussed at length various inconsistencies in the definition under Companies Act, 2013 & Accounting Standards. He also covered many relevant sections of the Companies Act, 2013 which are important for the Auditor for the year 2017-18.

 

The sessions were very interactive and the speakers shared their insights on the subject. The participants benefited immensely with the guidance and practical views on various issues expressed by the faculties.

 

Interactive session with Students for “Success in CA Exams” held on 8th September, 2018 at BCAS Conference Hall

 

The BCAS Students Forum, an initiative of HRD Committee, organised an Interactive session with students for success in CA Exams on 8th September, 2018 at BCAS Conference Hall.  Ms. Labdhi Shah, the student co-ordinator introduced the speakers CA. Mudit Yadav and CA. Nikunj Shah and briefly shared about BCAS and BCAS students forum. CA. Rajesh Muni, Chairman of the HRD Committee addressed the students and encouraged them to actively participate in the events organised by the Students Forum.

 

CA. Mudit Yadav, who himself was a student participating through the activities of Students forum few years back is now a life coach and a motivational speaker. He took the students through his own journey of being student to a Chartered Accountant who cracked CA final exams in first attempt.

 

CA. Nikunj Shah who has a vast experience in teaching in the past, was hands on and completely aware of the challenges faced by students. He provided practical tips and tricks to be implemented in order to qualify as a Chartered Accountant. At the end, CA. Jigar Shah, the in-charge of students’ activities briefed the participants about the forthcoming events and thanked the speakers for sharing their knowledge on the subject.

 

Both the speakers guided students on how to crack CA exams and left the audience spell bound with their invaluable insights.

 

HRD STUDY CIRCLE

 

Study Circle Meeting on “Sound Sleep and Lung Care for Good Health” held on 11th September, 2018 at BCAS Conference Hall

 

Human Resources Development Committee organised a meeting on 11th September, 2018 at BCAS Conference Hall, to discuss the topic “Sound Sleep and Lung care for Good Health” which was presented by Dr. Nimish Shah. The Speaker covered the importance of Sound Sleep and Lung Health. Basic knowledge of sleep, abnormal sleep, insomnia and consequences were discussed. He also spoke on common respiratory ailments, precautions and tests with treatment options for each.

 

Adequate Sleep and lung health are two of the most important elements for a good lifestyle. Sleep deprivation and not maintaining proper lung health leads to many health issues which sometimes turn fatal.

 

The Speaker also answered the queries of the participants who benefitted a lot from the session.

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

  1. Stupendous growth in the no. of returns e-filed by persons availing benefit of Presumptive Tax

Source: Twitter @IncomeTaxIndia

  1. Returns e-filed by salaried Individual taxpayers

Source: Twitter @IncomeTaxIndia

  1. 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

  1. 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.

 

2.      
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.

 

4.      
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.

 

Goods And Services Tax (GST)

1.  [2008-TIOL-149-AAR-GST]
Coffee Day Global Ltd dated 21st August, 2018

 

The GST rate applicable to
Restaurant Services classified under heading 996331 is 5% (CGST-2.5% and
SGST-2.5%) without availing input tax credit.

 

Facts

Applicant is in the
business of running restaurants under the name and style of Café Coffee Day
where non-alcoholic beverages and food items are served. Notification
No.46/2017 dated 14.11.2017 provides that restaurants can pay GST @5%
(CGST-2.5% and SGST-2.5%), provided they do not avail input tax credit of the
tax paid on input goods and services. Notification No.11/2017- CTR dated
28.06.2017, at Sl.No.35, provides for levy of GST @18% (CGST-9% & SGST-9%)
on supply of unclassified services and the suppliers are entitled to take input
tax credit in the circumstances where they pay output tax. The question before
the authority is whether Notification No.46/2017-CTR dated 14.11.2017 applies
in circumstances where the applicant does not avail input tax credit; that it
does not prevent a restaurateur from paying tax at 18% (CGST – 9% and SGST –
9%) and availing input tax credit.

           

Held

Services rendered by the
applicant are clearly defined under Service Code (Tariff) 996331 – restaurant
services covered under serial number 7 of the Notification 11/2017-CTR. As the
services provided are covered under a specific heading and the Notification
carves out a specific rate of tax for that heading, the same shall be
applicable. Serial number 35 would qualify for invocation only in respect
of  services that do not find
classification elsewhere, therefore, the applicant is covered by serial number
7 and not 35 (which covers heading 9997). Further right to avail input tax
credit is not an absolute right and conditions and restrictions may be
prescribed for its availment. Thus, Applicant is not entitled to pay the GST @
18% with input tax credit as the services being offered are classified under a
heading attracting GST @ 5%, without input tax credit.

 

2.      
[2018-TIOL-148-AAR-GST]
Emerge Vocational Skills Pvt. Ltd dated 13th August, 2018

 

Education Services in
affiliation with a University is exempted from payment of GST

 

Facts

Applicant is a private
limited company engaged in providing specified educational services in the
field of Hotel Management – advance ruling is sought on the question ‘whether
the services provided in affiliation to specified universities and providing
degree courses to students under related curriculums are exempt from Goods and
Services Tax vide entry no. 66 of the Notification No. 12/ 2017 – Central Tax
dated 28.06.2017.


Held

The Authority noted that
the Applicant has submitted that he proposes to obtain an affiliation with a University in the
State of Karnataka and shall thereafter be engaged in provision of education in
affiliation with the said university in the State of Karnataka. Since the
“Services provided by an educational institution to its students, faculty and
staff” is exempt from tax under the Central Goods and Services Tax Act, they
qualify as an educational institution insofar as those courses for which
affiliation has been obtained from the University in the State of Karnataka and
for which University Curriculum is prescribed and the qualifications recognised
by the law for the time being in force is given
after the conduct of examinations by such University. The applicant is exempted
from Goods and Services Tax vide entry no. 66 of the Notification No. 12/ 2017
– Central Tax (Rate) dated 28.06.2017.
 

 

 

 

Service Tax

Tribunal

 

1.  [2018-TIOL-2674-CESTAT-MUM] K B Mehta
Construction Pvt. Ltd. vs. CST-Service Tax, Ahmedabad Date of Order: 12th July, 2018

 

When the service is
inclusive of supply of goods in such case, value of goods is exempted by
Notification 12/2003-ST.

 

Facts

Appellant entered into a
consolidated contract involving service and supply of raw material wherein sale
and service value was provided separately. The department contended that the
bifurcation into goods and services is artificial  and thus the total contract value is the
gross value of provision of service liable for service tax.

 

Held

The Tribunal noted that
when the service is inclusive of supply of goods, in such case the exemption in
respect of the value of the goods involved in the provision of services is
exempted by Notification No.12/2003-ST dated 20.06.2003. According to the
Tribunal, the Revenue did not make any effort to verify as to whether despite
making different invoices in respect of services and sale of the goods, the
value of service was suppressed and transferred to the transaction of sale of
the goods. Further, it was observed that they paid VAT in respect of those
invoices where the goods were shown to have been sold. Accordingly, it was held
that if the value shown in the sale invoices was correct towards the sale of
the goods, the same would not be chargeable to service tax in terms of
Notification No. 12/2003-ST dated 20.06.2003. The demand thus was set aside and
the matter was remanded to verify the above observation.

 

2.    
[2018-TIOL-2656-CESTAT-MAD]
International Travel House Ltd vs. Commissioner of Service Tax, Chennai Date of Order: 23rd March, 2018

 

There is no service
provider – service receiver relationship between inter-divisions and both are
one and the same entity. Cost of parking charges collected are in the nature of
reimbursable expenses and are not liable for service tax.

 

Facts

On perusal of ST-3 returns,
it was noticed in audit that assessee had not paid service tax on Parking
charges which their travel desk had collected from customers who were provided
with Rent-a-Cab Services, service charges which they received from their travel
division for booking air tickets for clients staying at the hotel and
Commission received from travel division for booking air tickets on behalf of
service provider. Show Cause Notice was issued proposing demand of service tax
under “Rent a Cab Services” and “Air Travel Agency
Services”. It was argued that the travel division undertakes the booking
of air tickets and raises an invoice charging service tax on basic fare, which
is forwarded to travel desk. The bills raised include the value of
inter-division services along with service tax and service charges. Since
service tax on basic fare is being discharged by travel division of assessee
company under Air Travel Agency Services, the demand on assessee treating these
two divisions as separate entities is incorrect.

             

Held

The Tribunal noted that the
company and its travel division are the same entity and there is no service
provider or service receiver relationship between these divisions. Thus, when
service tax is already discharged by the travel division on the basic fare, the
demand of service tax is without any factual or legal basis and requires to be
set aside. In regard to parking services, it is noted that while providing the
Rent-a-Cab service, the cost of parking charges is also collected. This is in
the nature of reimbursable expenses and therefore cannot be subject to service
tax, as decided in the case of Intercontinental Consultants and Technocrats
Pvt. Ltd. [2018-TIOL-76-SC-ST].     

 

3.      
[2018] 96 taxmann.com 2
(Mumbai – CESTAT) Amby Valley City Developer Ltd. vs.
Commissioner of Central Excise, Pune-1
Date of Order: 8th June, 2018

 

The activity of allowing
complementary use of conference hall by hotel, to guests residing therein,
without charging any separate amount therefor cannot be charged on a notional
amount under “convention service”.

 

Facts

The appellant, owner of
hotel, while renting the rooms to various corporate entities, also allows use
of conference hall as complimentary and did not charge any amount separately
for said use of conference hall. The billing of rooms is done on the basis of
single occupancy or double occupancy and specifies that the additional facility
of conference hall, seating arrangements and audio visual will be provided.
Revenue alleged that such use of conference hall is liable to service tax as
provision of “convention services”. Whereas appellant submitted that they are
not separately providing “convention service” as alleged by department and the
conference hall charges are included in room tariff included in total bill i.e.
already loaded in value of taxable services on which service tax liability has
been discharged.

 

Held

The Tribunal noted that
appellant rented rooms and discharged service tax liability wherever
applicable. Further, no separate charges for Convention Center have been
charged and the use has been complementary. Therefore, the Tribunal held that
the demand is computed on notional basis and since the use of convention center
has been complementary, no service tax can be charged. Reliance was placed on
decision in Dukes Retreat Ltd. vs. C.C.Ex., [Final Order No.
M/86948-86949/17/STB, dated 13-4-2017] and Taj View Hotels vs. C.C.Ex. [2014]
47 taxmann.com 198/46 GST 601 (New Delhi – CESTAT)
. Accordingly, the demand
was set aside.

 

4.      
[2018] 96 taxmann.com 390
(Allahabad – CESTAT) Commissioner of Customs, Central Excise & Service Tax,
Noida vs. Fortune Cookie
Date of Order: 26th July, 2018

 

When assessee took
premises of golf course on rent and provided food to members of Golf Course
itself, Tribunal held that such services would be in the nature of “restaurant
services” and not “outdoor catering services”.

 

Facts

Respondent
took premises of Golf Course on rent and paid lumpsum amount to golf course.
From said premises, respondent was providing food to members of Golf Course.
Respondent treated said activity as provision of “restaurant services”, whereas
revenue contended that such activity is taxable as provision of “outdoor
catering service”.

           

Held

The Tribunal noted that the
“outdoor catering service” is to be provided at the premises of the
service recipient i.e. at his own premises or the premises taken on hire by the
service recipient, whereas in the case of “restaurant service”, the
service is to be provided by the service provider in its own premises. The
Tribunal observed that in instant case, the respondent i.e. service provider
renders services from its premises i.e. premises taken on rent from Golf
Course. It was also noted that in Tamil Nadu Kalyana Mandapam Assn. vs.
Union of India [2006] 4 STT 308 (SC)
, the Hon’ble Apex court held that the
service of restaurant and outdoor caterer are distinguishable. Further, the
Tribunal noted that the respondent maintains menu card, fixes prices for every
item and there is no personal interaction with service recipient in restaurant.
Accordingly, it was held that services provided by respondent qualify as
“restaurant services” and not “outdoor catering services” and set aside the
demand.  

 

5.      
[2018] 96 taxmann.com 28
(Bangalore – CESTAT) Hindustan Petrochemical Corporation Ltd. vs. CCE
Date of Order: 8th June, 2018

 

Undertaking certain
activities in relation to maintenance and safety of tank trucks and merely
issuing certificates to the effect that tank trucks are purged as required
under petroleum law cannot be regarded as provision of “technical inspection
and certification services”. 
    

Facts

The appellant is engaged in
the business of refining of crude and marketing of various petroleum products.
They have set up a facility to store the LPG and from there, the stored LPG is
sent to various LPG bottling plants of oil distribution companies through tank
trucks. Whenever LPG tank trucks require any repair or mandatory testing of
safety valves, the tanks are cleaned and completely degassed. For this
activity, the appellant collects cost of water, LPG and the labour charges from
the truck owners. On finding that the repairs to truck tankers had to be
conducted with the advance approval in writing and the repair work should be
conducted as per the code IS 2825/BS 5500, department alleged that the
certificates issued by appellant imply that appellant has certified purging of
truck tankers as required under petroleum law and thus, the activities
undertaken by appellant would be chargeable to service tax under “technical
inspection and certification services”. 

 

Held

Hon’ble Tribunal noted that
the appellants are not basically an agency involved with testing and
certification and the activities performed by them make the truck tanks fit to
be filled with LPG for further transportation. Thus, the Tribunal held that
though appellant performed certain activities in relation to the maintenance
and safety of tank trucks and issued certificates to the effect that the tanks
are purged/degassed, such activities of appellant would be construed only as an
activity related to safety and maintenance of the tank truck. Accordingly, the
Tribunal concluded that since appellant has not fulfilled the conditions so as
to impart the activity of purging and degassing tank trucks as ‘technical
inspection and certification service’, the demand was set aside.

 

6.      
[2018] 96 taxmann.com 323
(New Delhi – CESTAT) Ivanhoe Cambridge Investment Advisory India (P.) Ltd. vs.
Commissioner of Service Tax, Delhi
Date of Order: 27th March, 2018

 

Investment advisory
services provided by Indian service provider to foreign service recipient in
relation to investment opportunities in India, would not be chargeable to
service tax under category of “real estate agency services”.

 

When experts provided by
foreign holding company to Indian subsidiary, had employer-employee relation
with Indian subsidiary, The Tribunal set aside demand under “manpower
recruitment or supply agency services”.  

 

Facts

The appellant renders
non-binding investment advisory service to its holding company located abroad.
Scope of such services includes identification and advise on investment
opportunities to holding company in diverse sectors including real estate
sector, providing financial and economic market intelligence reports, providing
information on investment targets, structuring of investments as well as exit
options etc., and thereby, enables the foreign company to take decisions on
investment opportunities in India. Department alleged that such advisory
services are in the nature of “real estate agency services” and thus, liable to
pay service tax under reverse charge mechanism.

 

Further, the foreign
holding company of appellant provided certain expatriates to appellant who were
experts in the area of investment advisory and they were employed by appellant.
Department alleged that appellant supplied manpower to principal and thus, liable
to service tax under category of “manpower recruitment and supply agency
services”.

 

Held

As regards demand under
category of “real estate advisory services”, the Hon’ble Tribunal noted that in
terms of “Advisory Service Agreement” entered into between appellant and its
holding company, appellant was required to render investment advisory services
in connection with investment opportunities in India and such services were rendered
relating to real estate sector. Also, Tribunal categorically noted that the
scope of the agreement did not cover such advisory services in connection with
any piece of real estate. The Tribunal even observed that various judicial
decisions relied upon by appellant not only support the view canvassed by
appellant but also have held that such activities will be in the nature of
export despite the fact that the contract companies are in India.
Consequently, it was held that services provided by appellant cannot be said to
be covered within the scope of “real estate agency services”. 

 

As
regards demand under “manpower recruitment and supply agency services”, the
Tribunal noted that the terms and conditions under which the expatriates were
placed at the disposal of the appellant are governed by “employment secondment
agreement”. The Tribunal noted that the payment letters issued by appellant to
the expatriates made it clear that such expatriates would be employees of the
appellant during the period of their assignments. Also, the income tax returns
filed by expatriates show appellant as their employer and Income-Tax has also
been paid for the amounts received by the expatriates in India, under the
category of salary. Therefore, the Tribunal held that as the appellant and
expatriates enjoyed employer-employee relationship with appellant, the demand
under “manpower recruitment and supply agency services” would not sustain.

 

7.      
[2018] 96 taxmann.com 549
(New Delhi – CESTAT) Olam Agro India Ltd. vs. Commissioner of Central Excise,
Delhi-III
Date of Order: 31st July, 2018

 

The commission paid by
Indian company to its foreign parent company towards corporate guarantee
extended by such parent company in favor of Indian banks, so as to facilitate
provision of bank guarantee by such Indian banks to appellant, is liable to pay
service tax under “business auxiliary services”.

 

Facts

Appellant engaged in
agricultural business was exporting agricultural products. For obtaining loan
from various Indian banks, appellant obtained corporate guarantee from its
foreign parent company in favor of Indian banks. In lieu thereof, the appellant
paid commission amounting to 1 per cent of the value of such corporate
guarantee to their parent company. The Revenue contended this was liable for
service tax under category of “business auxiliary services” under reverse
charge mechanism as services were provided by parent company to appellant in
relation to procurement of service by Appellant. However, appellant contended
that such commission was paid to parent company towards providing guarantee for
obtaining loan by the appellant and not for procurement of any service.
Appellant relied on decision in case of Abdullabhai Abdul Kader vs.
Commissioner 2017 (4) GSTL 38 (Tri Mum.),
wherein it was held that
providing the facility of L/C through their bank to various importers cannot be
charged to service tax under the category of “Business Auxiliary Service” since
it was not in connection with procurement of goods which are inputs for the
clients. It was further submitted that as the parent company did not procure
services from bank for the appellant, there cannot be said to be provision of
business auxiliary services.


Held

Hon’ble Tribunal noted that
a corporate guarantee is used when a corporation agrees to be held responsible
for completing the duties and obligations of debtor to a lender, in case the
debtor fails to comply with the terms of the debtor- lender contract; whereas a
bank guarantee is a promise from a bank that the liability of the debtor will
be met in the event the debtor fails to favour his contractual obligations.
Therefore, the nature of corporate guarantee as well as of bank guarantee is
one and the same i.e. for facilitation of the lending facilities. The Tribunal
observed that in present case the foreign parent company executed corporate
bank guarantee in favor of appellant for facilitation of lending of funds to
the appellant and in turn, received guarantee commission by way of foreign
exchange remittance from appellant. It was found that periodic debit notes were
issued by parent company on appellant towards guarantee commission. This
indicated that the transactions were with regard to lending facilities in
India, it was held that changing name from ‘bank’ to ‘corporate’, it cannot be
said that guarantee commission paid by appellant would not get covered as
“business auxiliary services”. Demand was thus upheld.

GOODS AND SERVICES TAX (GST)

I.     
High Court

11. [2018-TIOL-162-HC-KERALA-GST] Saji S, Proprietor vs.
Commissioner State GST
department dated 12th November, 2018
                  


Tax
amount wrongly paid under SGST instead of IGST order to be transferred to the
respective head.


Facts


Petitioner, a registered
dealer, purchased goods from Chennai. While transporting the goods to Kerala,
the same were detained while in transit by the Assistant State Tax Officer.
Based on the demand made, the consignor paid tax and penalty but the remittance
was made under the head ‘SGST’. Since the remittance should have been made
under the head IGST, the authorities refused to release the goods hence this
writ petition.


Held


The High Court noted
section 77 of the GST Act dealing with refund of tax paid mistakenly under one
head instead of another. However Rule 4 of the GST Refund Rules speaks of
adjustment. Where the amount of refund is completely adjusted against any
outstanding demand under the Act, an order giving details of the adjustment is
to be issued in Part A of FORM GST RFD-07. Under these circumstances, The High
Court ordered the respondent officials to allow the petitioner’s request and
get the amount transferred from the head ‘SGST’ to ‘IGST’. It was also stated
that it is inequitable for the authorities to let the petitioner suffer on the
count that such transfer may take some time. Further second respondent directed
to release the goods forthwith along with the vehicle and, then, ensure that
the tax and penalty which already stood remitted under the ‘SGST’ is
transferred to the head ‘IGST’.


II.   
Authority for Advance Ruling

12.  [2018-TIOL-243-AAR-GST]
Premier Vigilance & Security Pvt. Ltd. dated 2nd November, 2018



GST is
payable on the entire value including toll charges.
                      


Facts


Applicant is a provider of
security services to Banks and also transports cash/coins/bullion in specially
built vehicles or customised cash vans – applicant seeks a ruling on the
chargeability of GST on the Toll taxes reimbursed by its clients or the ability
to claim it as a deduction under Rule 33 of the CGST Rules, 2017 from the value
of supply being expenditure incurred as a pure agent under the CGST Act, 2017.
         


Held


The Authority noted that
the Applicant owns vehicles. Toll is charged for providing service by way of
access to a road or bridge and applicant being the owner of vehicles is
recipient of the service provisioned on payment of Toll. Expenses so incurred
are cost of the service provided to the banks. Therefore, the same is not
incurred in the capacity of a “pure agent” of the Bank. Such charges are costs
incurred and therefore, are not liable to be excluded from the value of supply
under Rule 33 of the Rules, 2017. GST is therefore, payable at the applicable
rate on the entire value of the supply including Toll charges paid.


13. [2018] 99 taxmann.com 253 (AAR-Maharashtra) VServ Global (P.)
Ltd dated 7th July, 2018
 


Back
office administrative and accounting support services, pay-roll processing and
maintenance of employee records, rendered by applicant to overseas client, a
registered person incorporated in India, does not constitute an “export of
service”


Facts


The Applicant an Indian
Company provides back office support services to overseas companies engaged in
trading of chemicals in international trade. The Applicant comes into picture
after finalisation of purchase/sale order by the client. The activities
undertaken include, generating sales and purchase detail forms, creation of
purchase order and sales contract, liaise with the supplier for cargo
readiness, with inspection authorities etc. They also maintain records of their
employees and payroll processing.


The consideration for the
above services is fixed for a month with a variation of 10% or less depending
upon the man hours involved. The question before the authority is whether the
services provided qualify to be considered as a zero rated supply in terms of
section 16 of the Integrated Goods and Services Tax Act, 2017.


Held


The Authority after
perusing the clauses of the Agreement and the activity undertaken held that
applicant arranges or facilitates supply of goods or services or both between
the overseas clients and customers of the overseas client and therefore falls
in the definition of intermediary as defined under the IGST Act.


The place of supply for
intermediary services is covered by section 13(8) of the IGST Act. As per the
said section, the place of supply is the location of the service provider i.e.
the location of the applicant which is Maharashtra.  Thus the service does not qualify as export
of service. Further the authority also distinguished the decision in the case
of Godaddy India Web Services Private Ltd [2016] 46 STR 806 (AAR) by
stating that the facts in both the cases are different.
 

 

 

 

SERVICE TAX

I. 
Tribunal

 

17. [2018] 98 taxmann.com 85 (New Delhi – CESTAT) Executive
Engineer vs. CCE&ST
Dated of Order: 11th September, 2018


The
Tribunal held that services provided by assessee to its other division having
different service tax registration under same PAN, cannot be said to get
covered within scope of section 67(4) i.e. transaction between associated
enterprises, and therefore, not liable to service tax.


Facts


The appellant provided
telecommunication services under the name Universal Service Operator (USO) to
various telecom operators. They issued monthly debit notes to one of its own
divisions viz CMTS covered under the same PAN for providing telecom services
and booked the amount as income.


However, no service tax was
discharged on the said income as it was from its own division. The department
alleged that obtaining separate registration under service tax law make USO and
CMTS as two different concerns i.e. associated enterprises. Department
contended that even provisions of section 67(4) makes it clear that the book
adjustment qua the transaction of taxable services with any associated
enterprise are taxable.


Held:


The Hon’ble Tribunal held
that the telecom services are provided in different circles in India and
different offices/units under one circle cannot be treated as associated
enterprise as these are not intermediaries in the management of or control or
capital of the other enterprises as required for being associated enterprises
as per section 92A of the Income-tax Act, 1961. Further, the Tribunal observed
that the lower adjudicating authority has failed to appreciate that monthly
advice debit notes are nothing but transfer of expenses to its another unit and
it will not make the gross transaction accounted for between units of the
organisation. It was also noted that since both the entities have the same PAN
number as such both have same incorporation, it is clear that mandatory
requirement for service tax that is of existence of two different entities is
absolutely missing. Consequently,  the
Tribunal set aside impugned demand.


18. [2018] 98 taxmann.com 311 (New Delhi – CESTAT) Maulana Azad
National Institute of Technology vs. CCE Date of Order: 12th September, 2018


The
Tribunal held that construction services provided by Government authority to
unit of educational institute established under the Act of Parliament, cannot
be said to be provision of support service to business entity and thus, not
liable to service tax under reverse charge.


Facts


The
appellant, a central Government authority, being established under an Act of
Parliament namely the National Institute of Technology Act, 2007 is engaged in
imparting education and related technical assistance. They procured services
from Central Public Works Department (CPWD) for construction of hostel blocks,
sports complex, academic blocks, literature hall complex, canteen, hospital,
staff residential quarters etc. in their premises. Department alleged that said
services procured from CPWD are support service related to contract provided by
Government to body corporate holding the appellant as a business entity and
thus are liable to service tax under reverse charge notifications. Accordingly,
in present appeal, the moot questions before tribunal were (i) whether
appellant can be regarded as “business entity” and (ii) whether the services
received by them from CPWD, a Government department, can be regarded as
“support services”.


Held


The Hon’ble Tribunal
observed that appellant is unit of Maulana Azad National Institute of
Technology, Bhopal, which is one of the National Institutes of Technology
established by Central Government under an Act of Parliament i.e. National
Institute of Technology Act, 2007 and also referred to ratio laid down in
decisions in Asstt. Collector of Excise vs. Ramdev Tobacco Co. 1991
taxmann.com 1335
and Senairam Doongamall vs. CIT AIR 1961 SC 1579.
Accordingly, it was held that once the purpose of the parent Institute is to be
engaged in education and in creating and disseminating knowledge through
different mode as that of teaching, seminars, workshop, publications and even
technical consultancy, the unit thereof assisting in the said work becomes part
of the parent institute and stands clothed with the same status. Therefore, the
Tribunal held that appellant cannot be regarded as “business entity”. As
regards next question as to whether services provided can be regarded as
“support services”, It was observed that definition of term “support service”
u/s. 65B(49) makes it clear that for any services received to be called as
support service, the important ingredient is that the support should have
comprised of such functions that the recipient is able to carry out in ordinary
course of operations themselves, however, they have outsourced the same to
someone else. The Tribunal noted that since the appellant in instant case is
carrying out the function of imparting education and the technical
know-how/consultancy but the service received from CPWD is that of construction
of various civil structures, the services received cannot be otherwise said to
be the activity of the appellant themselves. Therefore, the Tribunal held that
availing of such construction services from CPWD will not bring the service received
under the category of “support services” and hence will not attract liability
under reverse charge.

19. [2018] 98 taxmann.com 390 (New Delhi – CESTAT) International
Metro Civil Contractors vs. CST Date of Order: 17th September, 2018


The
Tribunal held that the assessee executing contract with Metro Corporation for
design of rail-based mass rapid transport system by procuring design, execution
and completion and remedying any defects in works of civil engineering
construction, mechanical and electrical installation of station and tunnel
infrastructure and buildings etc., along with supply of materials, would be
chargeable to service tax under category of “works contract services” and not
“erection, commissioning and installation services”. 


Facts


The Delhi Metro Corporation
awarded contract for design of rail-based mass rapid transport system by
procuring the design, execution and completion and remedying any defects in the
works of civil engineering contract, mechanical and electrical installation of
the station (including tunnel ventilation and station area conditioning and
ventilation) and tunnel infrastructure and buildings. Revenue alleged that the
activities undertaken would be chargeable to service tax under category of
“erection, commissioning and installation services”. Whereas, appellant
contended that since all work other than erection, commissioning and
installation were also agreed to be executed including as that of design and
even manufacture along with supply of materials, thus, the activities would be
correctly classifiable as “works contract services”.


Held


The Hon’ble Tribunal noted
that the scope of “erection, commissioning and installation services” includes
those services which are service contract simpliciter without any other element
in them. Further, in terms of section 67 of Finance Act, 1994 the value of
taxable services is the gross amount charged by service provider for such
services rendered by them i.e. what is referred to in the charging provision is
the taxation of service contract simpliciter without having any element of
property in goods to be simultaneously transferred i.e. the provision is not
for composite work contracts. The Tribunal noted that in present case,
appellant was cast with the obligation of supplying/providing all equipments,
materials, labour and other facilities requisite for and incidental to the
successful completion of the works and in carrying out all the duties and
obligations imposed by the contract documents. The valuation of the cost of
works was agreed to be the total cost for the work carried out. It is also
noted that the nature of contract is such that erection, commissioning and
installation part cannot be severed from rest of the contractual
responsibility. Thus, the Tribunal held that the contract entered is of a
composite nature rather being the contract for service simpliciter.
Accordingly, following decision of the Hon’ble Supreme Court in Larsen and
Toubro Ltd. vs. State of Karnataka [2013] 38 taxmann.com 453
, the Tribunal
held that activities undertaken would be liable for service tax under “works
contract services” and thereby set aside impugned demand. 


20. [2018] 98 taxmann.com 121 (New Delhi – CESTAT) Commissioner of
Service Tax vs. Gourmets Food Date of Order: 11th December, 2017


The activity of providing catering services to the
members of the club in terms of catering contract entered into with the club is
not regarded as revenue sharing agreement and held as chargeable to service tax
under category of “outdoor catering services”.  


Facts


Respondent entered into an
agreement with a club for providing catering services in the premises offered
by the club. Proceedings were initiated against the respondent to demand and
recover service tax for such activities under the category of “outdoor caterer’s
service”. The original authority dropped impugned demand by holding that the
arrangement appears to be that of revenue sharing arrangement and as such there
is no service provider and service receiver relationship in such arrangement.
Being aggrieved, revenue filed present appeal.


Held


On perusal of the
agreement, the Tribunal held that various clauses of the agreement make it
clear that it is a service agreement for a consideration entered into between
the two parties. The Tribunal also held that mere fact that payment to be made
to club for various facilities like space, infrastructure is calculated as a
percentage of sales revenue of the assessee, would not per se make it a
joint venture agreement. The Tribunal noted that the agreement between respondent-assessee
and the club makes it clear that the club has no obligation or responsibility
in providing such services of catering by the respondent. There is no shared
responsibility or obligation legally enforceable against the club except the
provisions of terms and conditions inbuilt in the contract. The respondent is
appointed as caterer and is paying considerations for the premises allotted to
them. Consequently, there is no scope for interpreting the agreement as joint
venture agreement. The demand under outdoor catering services was accordingly
upheld.


Note:


Above decision of the
Hon’ble Tribunal has been affirmed by Hon’ble Supreme Court in [2018] 98
taxmann.com 122 (SC) Gourmets Food vs. Commissioner of Service Tax, wherein the
appeal filed by appellant assessee against order of the Tribunal is dismissed
for being devoid of merits. 


21. [2018-TIOL-3296-CESTAT-MUM] Tahnee Heights Co-operative
Housing Society Limited vs. Commissioner of CGST, Mumbai South Date of Order: 12th October, 2018
                 


Incorporated
association and its members being one and the same, the activities undertaken
or the services provided by the former will not be considered as a service,
exigible to service tax under the principle of mutuality.


Facts


The appellant is a co-operative
housing society. The members of the society contribute towards maintenance and
upkeep of the building and common expenses. The amount collected is spent for
the common benefits of all. During the period July 2015 to January, 2017
service tax was paid in respect of the contributions received under protest.
Subsequently refund applications were filed on the ground that there is no
service provider and service receiver relationship existing and on the
principles of mutuality, the activity should not be subjected to service tax.
Show Cause Notice was issued and appeals filed was also rejected on the ground
that in the light of Explanation 3(a) to section 65B(44) of the Finance Act,
1994, the appellant and its members are to be treated as distinct entities and
therefore, the tax is correctly paid.


Held


The Tribunal primarily
noted that for the levy of service tax there must be existence of two parties
i.e. the service provider and the service receiver. As far as the relationship
between an incorporated society or club and its members is concerned, it is an
undisputed fact that such incorporated association is a distinct legal entity.
However, since the association was formed or constituted and existed for the
exclusive purpose of catering/meeting to the requirements of its members, as
per the laid down policy in the bye law, it cannot be said that there is
involvement of two persons. Thus, the incorporated association and its member
being one and the same, the activities undertaken or the services provided by
the former will not be considered as a service, exigible to service tax under
the principle of mutuality. The Tribunal further noted that though various
decisions on principles of mutuality under service tax were delivered under the
pre-negative list but are squarely applicable in the negative list regime. It
was also held that the appellant cannot be termed as an unincorporated
association or a body of persons, for the purpose of consideration as a
“distinct person”.


Accordingly, the
explanation furnished under Clause 3(a) in section 65B of the Act will not
designate the appellant as an entity, separate from its members. Accordingly
the service tax paid was held to be refund.


22. [2018-TIOL-3370-CESTAT-MAD] United India Insurance Company Ltd
vs. CCE, ST LTU, Chennai Date of Order: 1st June, 2018
                  


Service
tax paid on bill of the authorised service station is valid input service used
to provide output service of vehicle insurance.                   


Facts


Assessee is engaged in
providing General Insurance Services. Cenvat credit was availed of service tax
paid on repair & maintenance of vehicles by Authorised Service Stations on
vehicles insured by the assessee. The department held such availment of credit
to be invalid on grounds that the same was not valid input service under Rule
2(l) of the CENVAT Credit Rules, 2004.


Held


The Tribunal noted that it
is undisputed that credit was availed only proportionately to the extent of the
amount borne by them. General Insurance Service insures the vehicle against
damages. Such service can be provided to the vehicle owner only through
reimbursement of repair charges. Hence, service tax paid on bill of the
authorised service station is valid input service used to provide output
service of vehicle insurance


Also decision of the Tribunal
in Paul Merchants Ltd. vs. CCE, Chandigarh [2012-TIOL-1877-CESTAT-DEL]
was noted to hold that the assessee becomes the recipient of the services from
the authorised service station even though the beneficiary remains the owner of
the motor vehicle. Accordingly, the demand is set aside.

 


II.    High
Court

23. 2018-TIOL-2195-HC-AHM-ST] Oil Field Warehouse and Service Ltd vs. Union of  India Date of Order: 17th October,
2018


Rule 5A
of Service Tax Rules, 1994 not saved by section 174(2) of CGST Act, 2017
therefore fresh proceedings for audit could not be initiated inexercise of
powers under the said Rule.


Facts


The petitioner has
challenged the communication issued by the Comptroller and Auditor General of
India (CAG) calling upon the petitioner to submit service tax audit at the
hands of the officers of the CAG. Provisions of Rule 5A of the Service Tax
Rules, 1994 were relied upon for exercising the powers of audit. Apart from
challenging the rule itself it was stated that with the introduction of the
Goods and Service Tax Act, the Finance Act, 1994 and the Service Tax provisions
made thereon, stand repealed.


Held


The High Court noted
section 174 of the GST Act dealing with repeal and saving and prima facie noted
that there was no saving of Rule 5A in such manner that fresh proceedings for
audit could be initiated in exercise of powers under the said rule. Under the
circumstances, High Court granted interim relief and ordered that CAG shall not
carry out any further service tax audit of the petitioner.

24. [2018-TIOL-2303-HC-MAD-ST] Ganesan  Builders Ltd vs. The Commissioner of Service Tax
Date of Order: 19th September, 2018


Service
tax paid on insurance services provided to workers is available as CENVAT
credit post 01.04.2011.   


Facts


The assessee is a builder.
A Show Cause Notice was issued denying CENVAT credit availed on the ground that
the payment of insurance premium for availing the insurance policy stands
excluded from the definition of “input services”, pursuant to the definition of
“Input Services”, after 01.04.2011. It was contended that the services consumed
by the employees in their official capacity is distinguishable from the
services which are consumed by them purely in their personal capacity.


Held


The High Court primarily
noted that it is important to peruse the nature of the policy, the beneficiary
of the policy and the Statute, under which, the policy is required to be
availed. On perusal of the policies it is evident that these are workmen
Compensation Policies. The insured is the Assessee and the policy specifies the
area where the construction works is carried out. It was further stated that
there is a statutory requirement under the Building and Other Construction
Workers (Regulation of Employment and Conditions of Service) Act, 1996. Under
the said Act, the Workmen’s Compensation Act, 1923 has been included in the
Second Schedule of the 1996 Act and the provisions of Act has been made
applicable to the building workers. The intention of the policy is to protect
the employees, who work in the site and not to drive them to various forums for
availing compensation in the event of an injury or death. Thus, the Appeal is
allowed and CENVAT credit is granted.

OECD – RECENT DEVELOPMENTS – AN UPDATE

In this issue,
we have covered major developments in the field of International Taxation from
July 2018 till date and work being done at OECD in various other related
fields. It is in continuation of our endeavour to update the readers on major
developments at OECD at regular intervals. Various news items included here are
sourced from OECD Newsletters available on its website.


In this
write-up, we have classified the developments into 5 major categories viz.:


1)    BEPS Action Plans


2)    Transfer Pricing


3)    Common Reporting Standard (CRS)


4)    Multilateral Convention on Mutual
Administrative Assistance in Tax Matters


5)    Exchange of Information

 

1)  BEPS ACTION PLANS


OECD and IGF
release first set of practice notes for developing countries on BEPS risks in
mining industries


For many
resource-rich developing countries, mineral resources present a significant
economic opportunity to increase government revenue. Tax base erosion and
profit shifting (BEPS), combined with gaps in the capabilities of tax
authorities in developing countries, threaten this prospect. The OECD’s Centre
for Tax Policy and Administration and the Intergovernmental Forum on Mining,
Minerals, Metals and Sustainable Development (IGF) are collaborating to address
some of the challenges developing countries face in raising revenue from their
mining sectors. Under this partnership, a series of practice notes and tools
are being developed for governments.


Three practice notes have now been finalised
in October 2018. In addition, interested parties were invited to provide
comments on preliminary versions of these reports. OECD has also published the
public comments submitted. Building on BEPS Action 4, this practice note guides
government policy-makers on how to strengthen their defences against excessive
interest deductions in the mining sector.

 

2)  TRANSFER PRICING (BEPS ACTIONS 8 TO 10)


i)     BEPS discussion draft on the transfer
pricing aspects of financial transactions


In July, 2018, OECD
had invited Public comments on a discussion draft on financial transactions,
which deals with follow-up work in relation to Actions 8-10 (” Aligning
transfer pricing outcomes with value creation”) of the BEPS Action Plan.


The 2015 report on
BEPS Actions 8-10 mandated follow-up work on the transfer pricing aspects of financial
transactions. Under that mandate, the discussion draft, which does not yet
represent a consensus position of the Committee on Fiscal Affairs or its
subsidiary bodies, aims to clarify the application of the principles included
in the 2017 edition of the OECD Transfer Pricing Guidelines, in particular, the
accurate delineation analysis under Chapter I, to financial transactions. The
work also addresses specific issues related to the pricing of financial
transactions such as treasury function, intra-group loans, cash pooling,
hedging, guarantees and captive insurance.


ii)    OECD releases new guidance on the
application of the approach to hard-to-value intangibles and the transactional
profit split method under BEPS Actions 8-10


The OECD released
on 21.06.2018 two reports containing Guidance for Tax Administrations on the
Application of the Approach to Hard-to-Value Intangibles
, under BEPS Action
8; and Revised Guidance on the Application of the Transactional Profit Split
Method
, under BEPS Action 10.


In October, 2015,
as part of the final BEPS package, the OECD/G20 published the report on
Aligning Transfer Pricing Outcomes with Value Creation (OECD, 2015), under BEPS
Actions 8-10. The Report contained revised guidance on key areas, such as
transfer pricing issues relating to transactions involving intangibles;
contractual arrangements, including the contractual allocation of risks and
corresponding profits, which are not supported by the activities actually
carried out; the level of return to funding provided by a capital-rich MNE
group member, where that return does not correspond to the level of activity
undertaken by the funding company; and other high-risk areas. The Report also
mandated follow-up work to develop.


Guidance for Tax
Administrations on the Application of the Approach to Hard-to-value Intangibles
(BEPS Action 8)


The new guidance
for tax administration on the application of the approach to hard-to-value
intangibles (HTVI) is aimed at reaching a common understanding and practice
among tax administrations on how to apply adjustments resulting from the
application of this approach. This guidance should improve consistency and
reduce the risk of economic double taxation by providing the principles that
should underlie the application of the HTVI approach. The guidance also
includes a number of examples to clarify the application of the HTVI approach
in different scenarios and addresses the interaction between the HTVI approach
and the access to the mutual agreement procedure under the applicable tax
treaty.


This guidance has
been formally incorporated into the Transfer Pricing Guidelines as an annex to
Chapter VI.


Revised Guidance
on the Application of the Transactional Profit Split Method (BEPS Action 10)


This report
contains revised guidance on the profit split method, developed as part of
Action 10 of the BEPS Action Plan. This guidance has been formally incorporated
into the Transfer Pricing Guidelines, replacing the previous text on the
transactional profit split method in Chapter II. The revised guidance retains
the basic premise that the profit split method should be applied where it is
found to be the most appropriate method to the case at hand, but it
significantly expands the guidance available to help determine when that may be
the case.


It also contains more guidance on how to apply the method, as well as numerous
examples.


3)   COMMON REPORTING STANDARDS


i)     OECD releases further guidance for tax
administrations and MNE Groups on Country-by-Country reporting (BEPS Action 13)


In September, 2018,
the Inclusive Framework on BEPS has released additional interpretative guidance
to give certainty to tax administrations and MNE Groups alike on the
implementation of Country-by-Country (CbC) Reporting (BEPS Action 13).


The new guidance
includes questions and answers on the treatment of dividends received and the
number of employees to be reported in cases where an MNE uses proportional
consolidation in preparing its consolidated financial statements, which apply
prospectively. The updated guidance also clarifies that shortened amounts
should not be used in completing Table 1 of a country-by-country report and
contains a table that summarises existing interpretative guidance on the
approach to be applied in cases of mergers, demergers and acquisitions.


The complete set of guidance concerning the interpretation of BEPS
Action 13 issued so far is presented in the document released in September
2018. This will continue to be updated with any further guidance that may be
agreed.


ii)    OECD clamps down on CRS avoidance through
residence and citizenship by investment schemes


Residence and
citizenship by investment (CBI/RBI) schemes, often referred to as golden
passports or visas, can create the potential for misuse as tools to hide assets
held abroad from reporting under the OECD/G20 Common Reporting Standard (CRS).


In particular,
Identity Cards, residence permits and other documentation obtained through
CBI/RBI schemes can potentially be abused to misrepresent an individual’s
jurisdiction(s) of tax residence and to endanger the proper operation of the
CRS due diligence procedures.


Therefore, and as
part of its work to preserve the integrity of the CRS, the OECD has published
the results of its analysis of over 100 CBI/RBI schemes offered by CRS-committed
jurisdictions, identifying those schemes that potentially pose a high-risk to
the integrity of CRS.


Potentially
high-risk CBI/RBI schemes are those that give access to a low personal tax rate
on income from foreign financial assets and do not require an individual to
spend a significant amount of time in the jurisdiction offering the scheme.
Such schemes are currently operated by Antigua and Barbuda, The Bahamas,
Bahrain, Barbados, Colombia, Cyprus, Dominica, Grenada, Malaysia, Malta,
Mauritius, Monaco, Montserrat, Panama, Qatar, Saint Kitts and Nevis, Saint
Lucia, Seychelles, Turks and Caicos Islands, United Arab Emirates and Vanuatu.


Together with the results of the analysis, the OECD is also publishing
practical guidance that will enable financial institutions to identify and
prevent cases of CRS avoidance through the use of such schemes. In particular,
where there are doubts regarding the tax residence(s) of a CBI/RBI user, the
OECD has recommended further questions that a financial institution may raise
with the account holder.


Moreover, a number
of jurisdictions have committed to spontaneously exchanging information
regarding users of CBI/RBI schemes with all original jurisdiction(s) of tax
residence, which reduces the attractiveness of CBI/RBI schemes as a vehicle for
CRS avoidance. Going forward, the OECD will work with CRS-committed
jurisdictions, as well as financial institutions, to ensure that the guidance
and other OECD measures remain effective in ensuring that foreign income is
reported to the actual jurisdiction of residence.


4) MULTILATERAL CONVENTION ON MUTUAL ADMINISTRATIVE ASSISTANCE IN TAX MATTERS


i) Multilateral
Convention to Implement Tax Treaty Related Measures to Prevent BEPS


In November, 2016,
over 100 jurisdictions concluded negotiations on the Multilateral Convention to
Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit
Shifting (“Multilateral Instrument” or “MLI”) that will
swiftly implement a series of tax treaty measures to update international tax rules
and lessen the opportunity for tax avoidance by multinational enterprises. The
MLI already covers over 75 jurisdictions and has entered into force on 1st
July, 2018. Signatories include jurisdictions from all continents and all
levels of development.


A number of jurisdictions have also expressed their intention to sign the MLI
as soon as possible and other jurisdictions are also actively working towards
signature.


ii)   Signatories
and Parties (MLI Positions)


The MLI offers
concrete solutions for governments to close the gaps in existing international
tax rules by transposing results from the OECD/G20 BEPS Project into bilateral
tax treaties worldwide. The MLI modifies the application of thousands of
bilateral tax treaties concluded to eliminate double taxation. It also
implements agreed minimum standards to counter treaty abuse and to improve
dispute resolution mechanisms while providing flexibility to accommodate
specific tax treaty policies.


The text of the
Multilateral Instrument (MLI) and its Explanatory Statement were developed
through a negotiation involving more than 100 countries and jurisdictions and
adopted on 24th November, 2016, under a mandate delivered by G20
Finance Ministers and Central Bank Governors at their February 2015 meeting.
The MLI and its Explanatory Statement were adopted in two equally authentic
languages, English and French.


iii)     Translation
in Other Languages


Members of the ad
hoc Group have prepared translations of the MLI in Chinese, Dutch, German,
Italian, Japanese, Serbian, Spanish and Swedish. The OECD Secretariat has
prepared a translation of the MLI in Arabic. Other MLI translations, including
translations in Greek and Russian, are being prepared by members of the ad hoc
Group and will be made available shortly and further MLI translations are
expected by year end. The translations of the MLI in other languages are
provided only for information purposes. Only the signed English and French MLI
are the authentic MLI texts applicable.


iv)     Saudi
Arabia signs landmark agreement to strengthen its tax treaties


Saudi Arabia has
signed the Multilateral Convention to Implement Tax Treaty Related Measures to
Prevent Base Erosion and Profit Shifting (the Convention) on 18.09.2018. It has
become the 84th jurisdiction to join the Convention, which now
covers over 1,400 bilateral tax treaties.


5)   EXCHANGE OF INFORMATION


i)  Major enlargement of the global network for
the automatic exchange of offshore account information as over 100
jurisdictions get ready for exchanges


The OECD has
published on 05.07.2018, a new set of bilateral exchange relationships
established under the Common Reporting Standard Multilateral Competent
Authority Agreement (CRS MCAA).

 

In total, the international legal network for
the automatic exchange of offshore financial account information under the CRS
now covers over 90 jurisdictions, with the others expected to follow suit in
due course. The network has allowed over 100 committed jurisdictions to
exchange CRS information from September 2018 under more than 3200 bilateral
relationships that are now in place.


The full list of automatic exchange relationships that are currently in
place under the CRS MCAA is available online.


There has been a
significant increase of jurisdictions participating in the multilateral
Convention on Mutual Administrative Assistance in Tax Matters, which is the
prime international instrument for all forms of exchange of information in tax
matters, including the exchange upon request, as well as the automatic exchange
of CRS information and Country-by-Country Reports. The total number of
participating jurisdictions now amount to 124. These recent developments show
that jurisdictions are completing the final steps for being able to commence
CRS exchanges from September 2018, therewith delivering on their commitment
made at the level of the G20 and the Global Forum.


ii)    Global Forum publishes compliance ratings on
tax transparency for further seven jurisdictions


The Global Forum is
the leading multilateral body mandated to ensure that jurisdictions around the
world adhere to and effectively implement both the standard of transparency and
exchange of information on request and the standard of automatic exchange of
information. This objective is achieved through a robust monitoring and peer
review process. The Global Forum also runs an extensive technical assistance
programme to provide support to its members in implementing the standards and
helping tax authorities to make the best use of cross-border information
sharing channels. The Global Forum also welcomed Oman as a new member. This
takes its membership to 154 members who have come together to cooperate in the
international fight against cross border tax evasion.


The Global Forum on
Transparency and Exchange of Information for Tax Purposes published on
15-10-2018 seven peer review reports assessing compliance with the
international standard on transparency and exchange of information on request
(EOIR).


These reports
assess jurisdictions against the updated standard which incorporates beneficial
ownership information of all relevant legal entities and arrangements, in line
with the definition used by the Financial Action Task Force Recommendations.


Two jurisdictions –
Bahrain and Singapore – received an overall rating of “Compliant”. Five others
– Austria, Aruba, Brazil, Saint Kitts and Nevis and the United Kingdom were
rated “Largely Compliant”.


The jurisdictions
have demonstrated their progress on many deficiencies identified in the first
round of reviews including improving access to information, developing broader
EOI agreement networks; and monitoring the handling of increasing incoming EOI
requests as well as taking measures to implement the strengthened standard on
the availability of beneficial ownership.


Note: The reader
may visit the OECD website and download various draft reports and Public
Comments referred to in this article for his further studies.
 

 

GLIMPSES OF SUPREME COURT RULINGS

7.  New Okhla Industrial Development Authority
and Ors. vs. Commissioner of Income Tax-Appeals and Ors. (2018) 406 ITR 209
(SC)


Deduction
of tax at source – Rent – Amounts constituting annual lease rent payable to
GNOIDA, expressed in terms of percentage (e.g. 1%) of the total premium for the
duration of the lease, are rent, and therefore subject to TDS


The
Respondent Rajesh Projects (India), a private limited company engaged in the
business of real estate activities of constructing, selling residential units
etc., entered into a long-term lease for 90 years with the Greater Noida
Industrial Development Authority for Plot No. GH-07A for development and
marketing of Group Flats. As per terms of the lease deed, the company partially
paid the consideration amount for the acquisition of the plot to Greater Noida
at the time of execution of the lease deed and is also paying the balance lease
premium annually as per the terms and conditions of the lease deed.


Notice
u/s. 201/201(A) of the Income Tax Act, 1961 was issued by the Income Tax
department inquiring regarding non-deduction of tax at source under section
194-I of the Income Tax Act from the annual lease rent paid to Greater Noida.
The Respondent-company replied to the notices. The Respondents case was that it
did not deduct tax at source as it was advised by Greater Noida that it is a
Government authority, hence the tax deduction at source provisions are not
applicable. The Assessing Officer passed the order dated 31.03.2014 for the
Financial Year 2010-2011 and 2011-2012, whereby the Respondent was held as
“assessee-in-default” for non-deduction/non-deposit of TDS on account
of payment of lease rent and interest made to Greater Noida. Consequent demand
was raised against the Respondents.

 

Aggrieved by the order, the Respondent-company
filed an appeal before the Commissioner of Income Tax-Appeals. Respondents
prayed to stay the demand which was refused and recovery proceedings were
initiated. Aggrieved by assessment and recovery proceedings emanating
therefrom, the Respondent-company filed a Writ Petition praying for various
reliefs including the relief that Respondent-company be not treated as
“assessee-in-default” under the Income Tax Act for non-deduction/depositing
the tax at source in respect of payment of rent on lease land and in respect of
other charges paid to Greater Noida. Different other entities also filed the
writ petitions in the Delhi High Court praying for more or less the same
reliefs relating to lease rent payment and for payment of interest to Greater
Noida. All the writ petitions involving common questions of law and facts were
heard together and were allowed by the Delhi High Court.


Before the High Court, Greater Noida and the Noida authorities contended
that they are local authorities within the meaning of section 10(20) of the
Income Tax Act, 1961, hence their income is exempt from the Income Tax. It was
further contended that the interest received by them is exempt u/s. 194A(3)(iii)(f)
of the Income Tax Act and they were exempted from payment of any tax on the
interest.


The
revenue refuted the contention of Greater Noida and Noida contending that
w.e.f. 01.04.2003, the Greater Noida and Noida is not a local authority within
the meaning of section 10(20) and further they are also not entitled for the
benefit of notification issued u/s. 194A(3)(iii)(f). It was further contended
that with regard to payment of rent to the Noida and Greater Noida, the
Respondent-company was liable to deduct the tax on payment of interest, no
income-tax was deducted by the Respondent-company while paying rent to Noida
and Greater Noida, hence they are “assessee-in-default”.


The Delhi
Court held as follows:


(1)
Amounts paid as part of the lease premium in terms of the time-schedule(s) to
the Lease Deeds executed between the Petitioners and GNOIDA, or bi-annual or
annual payments for a limited/specific period towards acquisition of lease hold
rights are not subject to TDS, being capital payments;


(2)
Amounts constituting annual lease rent, expressed in terms of percentage (e.g.
1%) of the total premium for the duration of the lease, are rent, and therefore
subject to TDS. Since the Petitioners could not make the deductions due to the
insistence of GNOIDA, a direction is issued to the said authority (GNOIDA) to
comply with the provisions of law and make all payments, which would have been
otherwise part of the deductions, for the periods, in question, till end of the
date of this judgment. All payments to be made to it, henceforth, shall be
subject to TDS.


(3)
Amounts which are payable towards interest on the payment of lump sum lease
premium, in terms of the Lease which are covered by Section 194-A are covered
by the exemption u/s. 194A(3)(f) and therefore, not subjected to TDS.


(4) For
the reason mentioned in (3) above, any payment of interest accrued in favour of
GNOIDA by any Petitioner who is a bank-to the GNOIDA, towards fixed deposits,
are also exempt from TDS.


Aggrieved
by the aforesaid judgment of Delhi High Court, Greater Noida, Noida as well as
Revenue has filed appeals before the Supreme Court.


The
Supreme Court held that insofar as the appeals filed by Noida/Greater Noida
were concerned, the principal submission raised by the Appellant is applicability
of section 10(20) of the Income Tax Act. In New Okhla Industrial Development
Authority vs. Commissioner of Income Tax-Appeals and Ors., (406 ITR 178)
it
had been held that Noida was not a “local authority” within the
meaning of section 10(20) of the Income Tax Act as amended by the Finance Act,
2002 w.e.f. 01.04.2003.


Insofar as
the question relating to exemption u/s. 194A(3) (iii)(f) by virtue of
notification dated 24.10.1970, i.e. the exemption of interest income of the
Noida, was concerned, in Commissioner of Income Tax (TDS) Kanpur and Anr.
vs. Canara Bank(406 ITR 161)
it had been held that Noida was covered by the
notification dated 22.10.1970, and therefore the judgment of the Delhi High
Court holding that Noida/Greater Noida was entitled for the benefit of section
194A(3)(iii)(f) had to be approved. Coming to the direction of the High Court
regarding deduction of tax at source on the payment of lease rent as per
section 194-I of the Income Tax Act, 1961, the Supreme Court held that a
perusal of the Circular dated 30.01.1995 relied by Noida/Greater Noida indicate
that circular was issued on the strength of section 10(20A) and section 10(20)
as it existed at the relevant time. Section 10(20) has been amended by Finance
Act, 2002 by adding an explanation and further section 10(20A) has been omitted
w.e.f. 01.04.2003. The very basis of the circular has been knocked out by the
amendments made by Finance Act, 2002. Thus, the Circular could not be relied by
Noida/Greater Noida to contend that there was no requirement of deduction of
tax at source u/s. 194-I. Thus, deduction at source is on payment of rent u/s.
194-I, which was clearly the statutory liability of the Respondent-company. The
High Court has adjusted the equities by recording its conclusion and issuing a
direction.


In view of
what has been stated above, the Supreme Court did not find any error in the
judgment of the High Court dated 16.02.2017. In result, all the appeals were
dismissed.


8. Commissioner
of Income Tax (TDS), Kanpur and Ors. vs. Canara Bank (2018) 406 ITR 161 (SC)


Deduction
of tax at source – Payment of interests by the banks to the State Industrial
Development Authority does not require any deduction at source in terms of
section 194A(3)(iii)(f)


The New Okhla Industrial
Development Authority (NOIDA), hereinafter referred to as “Authority”
was constituted by Notification dated 17.04.1976 issued u/s. 3 of the Uttar
Pradesh Industrial Area Development Act, 1976 hereinafter referred to as
“1976 Act”. The Canara Bank, is the banker of the Authority. The Bank
made a payment of Rupees Twenty Crore Ten Lakh as interest to Authority in form
of FDs/Deposits for the financial year 2005-06. The Canara Bank, however, did
not deduct tax at source u/s. 194A of the Income Tax Act, 1961 hereinafter
referred to as “IT Act, 1961”.


Notices
were issued by the Commissioner of Income-tax (TDS) to Canara Bank asking for
information pertaining to interest paid to the Authority on its deposits.
Notices were also issued by the Commissioner of Income-tax (TDS) to the Bank
for showing cause for not deducting tax at source. A writ petition had been
filed by the NOIDA being Writ Petition No. 1338/2005 challenging the notices
issued to the Authority as well as its bankers. Assessment proceeding could not
proceed due to certain interim directions passed by the High Court in the above
writ petition. The writ petition was ultimately dismissed by the High Court on
28.02.2011 holding that the Authority was not a local authority within the
meaning of section 10(20) of IT Act, 1961 and its income was not exempt from
tax. The Assessing Officer thereafter proceeded to pass an order u/s.
201(1)/201(1A) read with section 194A of the IT Act, 1961 dated 28.02.2013.


Income Tax
Authority held that the Bank was an Assessee in default. The default was
computed and demand notice as per section 156 of the IT Act, 1961 was issued.
Penalty proceeding was also separately initiated. The Canara Bank aggrieved by
the order of the Assessing Officer dated 28.02.2013 filed an appeal before the
Commissioner of Income Tax (Appeals). Before the Commissioner, the bank relied
on Notification dated 22.10.1970 issued u/s. 194A(3) (iii)(f) of the IT Act,
1961. The Appellate Authority vide its judgment dated 02.12.2013 allowed the
appeal setting aside the order of the Assessing Officer. The Revenue aggrieved
by the judgment of the Appellate Authority filed an appeal before the Income
Tax Appellate Tribunal. The Tribunal also held that payment of interests by the
banks to the State Industrial Development Authority did not require any
deduction at source in terms of section 194A(3)(iii)(f).


The
Revenue aggrieved by the order of the Tribunal filed an appeal u/s. 260A of the
Act before the High Court. The Division Bench of the High Court vide its
judgment dated 04.04.2016 dismissed the appeal.


The
Supreme Court noted the provisions of section 194A of the IT Act, 1961and the
Notification dated 22.10.1970 issued u/s. 194A(3)(iii)(f).


According to the Supreme Court, to decide the controversy, it was
necessary to ascertain the concept of a Corporation. The Supreme Court observed
that a Corporation is an artificial being which is a legal person. It is a
body/corporate established by an Act of Parliament or a Royal Charter. It
possesses properties and rights which are conferred by the Charter constituting
it expressly or incidentally.


The
Supreme Court noted that before it, there was no issue that the Authority was
not a Corporation. It was also not contended that Authority was not a statutory
corporation. What was contended before it was that Authority having not been
established by a Central, State or Provincial Act was not covered by
Notification dated 22.10.1970 hence, not eligible for the benefit.


The
Supreme Court observed that the Appellant on the one hand submits that the
Authority has not been established by 1976 Act rather it has been established
under the 1976 Act, hence it was not covered by Notification dated 22.10.1970
whereas the Respondent submits that Authority has been established by the 1976
Act and hence, it fulfills the condition as enumerated under Notification dated
2.10.1970. Alternatively, it was submitted that words “by and under”
have been interchangeably used in the IT Act, 1961 and there was no difference,
even if, the Authority was established under the 1976 Act.


The
Supreme Court noted that section 194A(3)(iii) clauses (b), (c) and (d) refer to
expression “established”. In sub clause (b) expression used is
“established by or under a Central, State or Provincial Act”, in sub
clause (c) the expression used is “established under the Life Insurance
Corporation Act” and in sub clause (d) expression used is
“established under the Unit Trust of India Act”. The Supreme Court
held that the section thus uses both the expressions “by or under”.
According to the Supreme Court, the expression established by or under an Act
had come for consideration before it on several occasions. In Sukhdev Singh
vs. Bhagatram Sardar Singh Raghuvanshi (1975) 45 Com Cas 285 (SC)
, the
Court had occasion to consider the status of company incorporated under the
Companies Act. The Court held that Company incorporated is not a Company
created by the Companies Act. Again in S.S. Dhanoa vs. Muncipal Corporation,
Delhi (1981) 3 SCC 431
the Court had occasion to consider a Registered
Society which was a body/corporate. The question was as to whether the State
Body/corporate is a Corporation within the meaning of Clause Twelfth of section
21 of the Indian Penal Code (Indian Penal Code). The Court again held that
expression Corporation means a Corporation created by the legislature. Another
judgment which had occasion to consider the expression established by or under
the Act was a judgment in Dalco Engineering Private Limited vs. Satish
Prabhakar Padhye and Ors. (2010) 4 SCC 378
. The Court had occasion to
examine the provision of section 2k, of the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act, 1995,
specifically expression “establishment” means a Corporation
established by or under Central, Provincial or State Act. The Court held that
the phrase established by or under the Act is a standard term used in several
enactments to denote a statutory corporation established or brought into
existence by or under the statute. On Company it was held that the company is
not established under the Companies Act and an incorporated company does not
“owe” its existence to the Companies Act.


The Supreme Court reverting back to the provisions of 1976, Act observed
that the very preamble of that Act reads “an Act to provide for the
Constitution of an Authority for the development of certain areas in the State
into industrial and urban township and for masses connected through with”.

 


According
to the Supreme Court, the Act itself provides for constitution of an authority.
Section 2(b) of the 1976 Act defines Authority as authority constituted u/s. 3
of the Act. The Supreme Court observed that when one compares the provisions of
section 3 of 1976 Act with those of The State Financial Corporations Act, 1951,
it becomes clear that the establishment of Corporation in both the enactments
is by a notification by State Government. In the present case, notification has
been issued in exercise of power of section 3, the Authority has been
constituted.


According to the Supreme Court it having already laid down in Dalco
Engineering (supra)
that establishment of various financial corporations
under State Financial Corporation Act, 1951 is establishment of a Corporation
by an Act or under an Act, the above ratio fully covers the present case and
therefore there was no doubt that the Authority have been established by the
1976 Act and it was clearly covered by the Notification dated 22.10.1970.
Further, the composition of the Authority was statutorily provided by section 3
of 1976 Act itself, hence, there was no denying that Authority had been
constituted by Act itself.


The
Supreme Court dismissed the appeal, holding that the High Court did not commit
any error in dismissing the appeal filed by the Revenue.


9. Deputy
Commissioner of Income Tax, Chennai vs. T. Jayachandran (2018) 406 ITR 1 (SC)
 


Income
–The Respondent had acted only as a broker and could not claim any ownership on
the sum of Rs. 14,73,91,000/- and that the receipt of money was only for the
purpose of taking demand drafts for the payment of the differential interest
payable by Indian Bank and that the assessee had actually handed over the said
money to the Bank itself, the said sum of Rs. 14,73,91,000/- could not be
termed as the income of the Respondent


The Respondent-an individual and the proprietor of  Chandrakala and Company, was a stock broker
registered with the Madras Stock Exchange. He was stated to be an approved
broker of the Indian Bank. During the assessment years 1991-92, 1992-93 and
1993-94 the Respondent acted as a broker to the Indian Bank in purchase of the
securities from different financial institutions.
It was
the case of the Revenue that the Indian Bank, in order to save itself from
being charged unusually high rate of interest on borrowing money from the
market, lured Public Sector Undertaking (PSUs) to make fixed term deposit with
it on higher rate of interest. The rate of interest offered to the PSUs for
making huge term deposits was to the extent of 12.75% of interest on fixed
deposits against the approved 8% rate of interest in accordance with the RBI
directions.


In order
to pay higher interest to the PSUs who made a fixed term deposit with the
Indian Bank, the bank requested the Respondent to purchase securities on its
behalf at a prescribed price which was unusually high but adequate to cover the
market price of the securities, brokerage/incidental charges to be levied by
the Respondent on these transactions, apart from covering the extra interest
payable to the PSUs. The Respondent, on the instructions of Indian Bank,
purchased securities at a particular rate quoted by the Bank and sold them to
Indian Railways Finance Corporation.


Bank of
Madura was the routing bank through which the securities were purchased and
sold to Indian Bank for which Bank of Madura charged service charges. The
Respondent was paid commission in respect of transactions done on behalf of
Indian Bank. Under instructions from Indian Bank, a portion of the amount
realised from the security transactions carried on behalf of Indian Bank was
paid by way of additional interest to certain Public Sector Undertakings (PSU)
on the deposits made with the Indian Bank and out of eight PSUs three had
confirmed the receipt of such additional interest through demand drafts.


The
Respondent filed his return of income for the Assessment Year 1991-92 declaring
his income at Rs. 4,82,83,620/-. The Assessing Officer passed assessment order
u/s. 143(3) and raised a demand for a sum of Rs. 14,73,91,000/- with regard to
the sum payable to the PSUs while holding that the Respondent has not acted as
a broker in the transactions carried out for the Indian Bank rather as an
independent dealer and that there was no overriding title in favour of the
PSU’s with regard to the additional amount earned out of the securities
transactions and it is a case of application of income after accrual and,
hence, the said amount is liable to be assessed as the income of the
Respondent.


The
Respondent, being dissatisfied with the order, preferred an Appeal before the
Commissioner for Income Tax (Appeals). Learned Commissioner of Income Tax
(Appeals), set aside the demand for additional tax while deciding the issue in
favour of the Respondent and held that the alleged additional interest payable
to the PSUs could not be considered as the income of the Respondent.


Being
aggrieved, the Revenue filed an appeal before the Income Tax Appellate Tribunal
(hereinafter referred to as ‘the Tribunal’). The Tribunal, allowed the appeal
filed by the Revenue and held that the amount received at the hands of the
Respondent which was alleged to be payable to the PSUs was the income of the
Respondent and there was no overriding title existing in favour of the PSUs so
as to cause diversion of income.


In the
meanwhile criminal proceedings were initiated with respect to the present
transactions in question against the Respondent along with others which was
decided by the CBI court.


The court,
while acquitting the Respondent had observed that the relationship between the
Indian Bank and the Respondent was that of principal-agent and with regard to
the transactions in question the Respondent acted in the capacity of a broker
and not as an individual dealer.


However, the Tribunal refused to rely on the evidence produced in the
trial court on the ground that the assessment proceedings were different from
the criminal proceedings and the evidence adduced in the trial court couldn’t
be relied to absolve the Respondent from the tax liability.


Being
aggrieved by the order of the ITAT, the Assessee filed Tax Case Appeal before
the High Court. The High Court, set aside the order of the Tribunal while
relying on the evidence given in the criminal case in this regard.

Being
aggrieved, the Revenue filed an appeal before the Supreme Court.


According
to the Supreme Court, the only point for consideration before it was whether on
the facts and circumstances of the present case the High Court was right in
holding that the alleged additional interest payable to PSUs could not be
assessed as income of the Respondent?


The
Supreme Court was of the view that the answer to the short question whether the
alleged interest payable to the PSUs could be assessed as an income of the
Respondent depended on the determination of true nature of relationship between
the Indian Bank and the Respondent with regard to the transactions in question
and the capacity in which he held the amount of Rs. 14,73,91,000/-.


 As to the question of
relationship between the Indian Bank and the Respondent, the Supreme Court
observed that the normal settlement process in Government securities is that
during transaction banks make payments and deliver the securities directly to
each other. The broker’s only function is to bring the buyer and seller
together and help them to negotiate the terms for which he earns a commission
from both the parties. He does not handle either cash or securities. In this
respect, the broker functions like the broker in the interbank foreign exchange
market. The conduct of the Respondent in the transaction in question could not
be termed to be strictly within the normal course of business and the
irregularities could be noticed from the manner in which the whole transactions
were conducted. However, the same could not be basis for holding the Respondent
liable for tax with regard to the sum in question and what was required to be
seen was whether there accrued any real income to the Respondent or not.


According to the Supreme Court, it was required to be seen in what
capacity the Respondent held the said amount-independently or on behalf of the
Indian Bank. The Assessing Officer, while passing assessment order, had held
that there existed no agreement between the Respondent and the Indian Bank
about the payment of additional interest to the PSUs and there was no
overriding title in respect of the additional interest for the PSUs. However,
in the opinion of the Supreme Court, the position in this regard was very much
settled that an agreement need not be in writing but could be oral also and the
same could be inferred from the conduct of the parties.


Further, while considering the claim of the Respondent and the view of
the Assessing Officer, how the bank itself had treated the Respondent, was a
matter of relevance. The relationship between the Indian Bank and the
Respondent was very much clear by the evidence led during the criminal
proceedings. The Executive Director of the Bank had specifically spoken about
the role of the Respondent as a broker specifically engaged by the Bank for the
purchase of securities and that the Bank had included the interest money too in
the consideration paid, for the purpose of taking demand drafts in favour of
PSUs. Further, the evidence led by other bank officials pointed out that the
price of securities itself were fixed by the bank authorities and as per their
directions the Respondent had purchased the securities at the market price and
the differential amount was directed to be used for taking demand drafts from
the bank itself for paying additional interest to the PSUs. Further, the letter
dated 25.03.1994 by the Bank wherein the Bank had acknowledged the receipt of
Demand Drafts taken by the Respondent gave an unblurred picture about the
capacity of the Respondent in holding the amount in question. Consequently, the
conduct of the parties, as recorded in the criminal proceedings showing the
receipt of amount by the broker, the purpose of receipt and the demand drafts
taken by the broker at the instance of the bank were sufficient to prove the
fact that the Respondent acted as a broker to the Bank and, hence, the additional
interest payable to the PSUs could not be held to be his property or income.


According
to the Supreme Court, the income that had actually accrued to the Respondent
was taxable. What income has really occurred to be decided, not by reference to
physical receipt of income, but by the receipt of income in reality. Given the
fact that the Respondent had acted only as a broker and could not claim any
ownership on the sum of Rs. 14,73,91,000/- and that the receipt of money was
only for the purpose of taking demand drafts for the payment of the
differential interest payable by Indian Bank and that the Respondent had
actually handed over the said money to the Bank itself, the Supreme Court held
that  the Respondent held the said amount
in trust to be paid to the public sector units on behalf of the Indian Bank
based on prior understanding reached with the bank at the time of sale of
securities and, hence, the said sum of Rs. 14,73,91,000/- could not be termed
as the income of the Respondent. According to the Supreme Court, the decision
rendered by the High Court therefore required no interference.


The Supreme Court dismissed
the appeal.


10.  New Okhla Industrial Development Authority
vs. Chief Commissioner of Income Tax and Ors.

(2018)
406 ITR 178 (SC)


Exemption
– Local Authority – After omission of section 10(20A), only provision under
which a Body or Authority can claim exemption is section 10(20) –  Local authority having been exhaustively
defined in the Explanation to section 10(20), an entity has to fall u/s. 10(20)
to claim exemption.


The
Appellant-New Okhla Industrial Development Authority (hereinafter referred to
as the “Authority”) has been constituted u/s. 3 of the U.P.
Industrial Area Development Act, 1976 (hereinafter referred to as the ‘Act,
1976’) by notification dated 17.04.1976. The Act, 1976 was enacted by State
Legislature to provide for the constitution of an Authority for the development
of certain areas in the State into industrial and urban township and for
matters connected therewith. Under the Act, 1976 various functions have been
entrusted to the Authorities. Notices u/s. 142 of the Income Tax Act dated
28.07.1998 and 08.08.1998 were issued to the Appellant. The Appellant
challenging the said notices filed writ petition contending that Appellant was
a local authority, hence, was exempted from payment of income tax u/s.10(20)
and section 10(20A) of Income Tax Act, 1961 (hereinafter referred to as
“I.T. Act, 1961).


The writ
petition was allowed by the Division Bench of the Allahabad High Court on
14.02.2000 holding that the Appellant was a local body. It was held that it is
covered by the exemption u/s. 10(20A) of I.T. Act, 1961. The Division Bench,
however, did not go into the question whether it was also exempt u/s. 10(20).


By the Constitution (74th Amendment) Act, 1992, the
Parliament had inserted Part IXA of the Constitution providing for the
constitution of Municipalities. A notification dated 24.12.2001 was issued by
the Governor in exercise of the power under the proviso to Clause (1) of
Article 243Q of the Constitution of India specifying the Appellant to be an
“industrial township” with effect from the date of the notification
in the Official Gazette. A notice dated 29.08.2005 was issued by the Assistant
Commissioner of Income Tax to the Appellant for furnishing Income Tax Return
for the assessment year 2003-2004 and 2004-2005. Notice mentioned that after
omission of section 10(20A) w.e.f. 01.04.2003 the Authority had become taxable.
Notice u/s. 142(1) was also enclosed for the above purpose.


The
Appellant vide its letter dated 20.09.2005 replied the notice dated 29.08.2005
stating that it was a local authority and exempt from Income Tax hence notice
u/s. 142 be withdrawn. The Appellant filed a writ petition praying for quashing
the notice u/s. 142 of the Income Tax Act dated 29.08.2005. The High Court in
the writ petition decided the question “whether New Okhla Industrial
Development Authority (NOIDA) is a local authority after 01.04.2003 within the
meaning of section 10(20) of the Income Tax Act, 1961”. The Division Bench
of the High Court relying on two judgments of the Supreme Court in Agricultural
Produce Market Committee, Narela, Delhi vs. Commissioner of Income Tax and Anr.
(2008) 9 SCC 434
and Adityapur Industrial Area Development Authority vs.
Union of India and Ors. (2006) 5 SCC 100
, held that after 01.03.2003 the
NOIDA is not a local authority within the meaning of section 10(20) of the I.T.
Act, 1961. The writ petition was consequently dismissed.


According
to the Supreme Court, the only issue that arose for consideration in these
appeals was as to whether the Appellant was a local authority within the
meaning of section 10(20) as amended by Finance Act, 2002 w.e.f. 01.04.2003.
According to the Supreme Court, the submissions made by the parties could be
dealt with in the following two heads:


A. The
status of the Authority by virtue of notification dated 24.12.2001 issued under
Clause (1) of Article 243Q issued by the Governor specifying New Okhla
Industrial Area to be an “industrial township”.


B. Whether
the Appellant is a local authority “within the meaning of section 10
sub-section (20) as explained in Explanation added by Finance Act, 2002.


The
Supreme Court held as under:


(A) Part
IXA of the Constitution:



The
proviso is an exception to the constitutional provisions which provide that
there shall be constituted in every State a Nagar Panchayat, a Municipal
Council and a Municipal Corporation. Exception is covered by proviso that where
an industrial township is providing municipal services the Governor having
regard to the size of the area and the municipal services either being provided
or proposed to be provided by an industrial establishment specify it to be an
industrial township.


The words
‘industrial township’ have been used in contradiction of a Nagar Panchayat, a
Municipal Council and a Municipal Corporation. The object of issuance of
notification is to relieve the mandatory requirement of constitution of a
Municipality in a State in the circumstances as mentioned in proviso but
exemption from constituting Municipality does not lead to mean that the
industrial establishment which is providing municipal services to an industrial
township is same as Municipality as defined in Article 243P(e).


Article 243P(e)
defines Municipality as an institution of self-government constituted under
Article 243Q. The word constituted used under Article 243P(e) read with Article
243Q clearly refers to the constitution in every State a Nagar Panchayat, a
Municipal Council or a Municipal Corporation. Further, the words in proviso
“a Municipality under this Clause may not be constituted” clearly
means that the words “may not be constituted” used in proviso are
clearly in contradistinction with the word constituted as used in Article
243P(e) and Article 243Q. Thus, notification under proviso to Article 243Q(1)
is not akin to constitution of Municipality. According to the Supreme Court,
industrial township as specified under notification dated 24.12.2001 is not
akin to Municipality as contemplated under Article 243Q.


B. Section
10(20) as amended by the Finance Act, 2002:


By the Finance Act, 2002 an Explanation has been added to section 10(20)
of the I.T. Act, 1961 and section 10(20A) has been omitted. Prior to Finance
Act, 2002 there being no definition of ‘local authority’ under the I.T. Act,
the provisions of section 3(31) of the General Clauses Act, 1897 were pressed
into service while interpreting the extent and meaning of local authority. The
Explanation having now contained the exhaustive definition of local authority,
the definition of local authority as contained in section 3(31) of General Clauses
Act, 1892 is no more applicable.


The
Explanatory Notes on Finance Act, 2002 clearly indicates that by Finance Act,
2002 the exemption under section 10(20) has been restricted to the Panchayats
and Municipalities as referred to in Articles 243P(d) and 243P(e). Further by
deletion of clause (20A), the income of the Housing Boards of the States and of
Development Authorities became taxable.


After
omission of section 10(20A) only provision under which a Body or Authority can
claim exemption is section 10(20). Local authority having been exhaustively
defined in the Explanation to section 10(20) an entity has to fall u/s. 10(20)
to claim exemption.


In Adityapur Industrial Area Development Authority (supra) after
considering section 10(20) as amended by the Finance Act, 2002 and consequences
of deletion of section 10(20A) it had been held that the benefit, conferred by
section 10(20-A) of the Income Tax Act, 1961 on the Assessee therein, had been
expressly taken away. Moreover, the Explanation added to section 10(20)
enumerates the “local authorities” which did not cover the Assessee
therein.


In Gujarat
Industrial Development Corporation vs. Commissioner of Income Tax, 1997 (7) SCC
17
, after considering the provisions of section 10(20A) of I.T. Act it was
held that Gujarat Industrial Development Corporation was entitled for exemption
u/s. 10(20A).


The Gujarat Industrial Development Corporation was held to be entitled
for exemption u/s. 10(20A) at the time when the provision was in existence in
the statute book and after its deletion from the statute book the exemption was
no more available
.


Further,
Explanation to section 10(20) uses the word ‘means’ and not the word
‘includes’. Hence, it was not possible to extend the definition of ‘local
authority’ as contained in the Explanation to section 10(20). It was also not
possible to refer to the definitions in other Acts, as the IT Act now
specifically defines ‘local authority’.


The
Supreme Court thus concluded that the Appellant was not covered by the definition
of local authority as contained in Explanation to section 10(20).
 

 

STATISTICALLY SPEAKING

1.    Return since 2010:

 

 

Source: Twitter@morganhousel

 

2.    Oil exports as a share of GDP, 2018

Source: Twitter @spectatorindex

 

3.    Inflation, 2018

 

 

Source: Twitter @spectatorindex

 

4.    Currency against US Dollar, past year

 

   

Source: Twitter @spectatorindex

 

 

 

 5. Direct and
Indirect Tax Collections

  

Source: Economic times

 

6.    Samsung smartphone market share in China
(based on shipments)

  

Source: IDC, Counterpoint

Society News

Technology Initiatives Study Circle

Study Circle Meeting on “How to Write Macros in Excel” held on 23rd July, 2018 at BCAS Conference Hall

Technology Initiatives Committee conducted a Study Circle Meeting on “How to Write Macros in Excel” on 23rd July, 2018 at BCAS Conference Hall which was led by CA. Nachiket Pendharkar, who is a corporate trainer for MS Excel and Excel VBA and Founder & CEO of ViN Learning Centre, a Corporate Training Institute.

  1. Nachiket Pendharkar very systematically dealt with the topic by providing step by step procedure with examples of recording macros in Excel. He gave the clear understanding of the topic and meticulously covered the importance of Macros in Excel, Excel VBA and Macro Basics.

The study circle was truly enthralling and participants appreciated the in-depth insights given by the learned speaker.

Lecture meeting on “Impact of Technology on the role of Auditors” held on 1st August, 2018 at BCAS Conference Hall

A lecture meeting on topic “Impact of Technology on the role of Auditors” was held on 1st August, 2018 at BCAS Conference Hall which was addressed by  CA. P. R. Ramesh who dealt with impact of technology on audit and future of auditing.

CA Sunil Gabhawalla, President, BCAS introduced the Speaker and gave opening remarks while explaining about BCAS activities and also touched upon the subject in brief.

During his presentation, the Speaker discussed and explained various nuances of information technology, the history of technology and its future, with various real life examples. Along with the references to various data and figures, he explained the exponential growth in  business due to the impact of technology. He also deep dived into the  future of Audit profession and changes expected in the audit procedures as well as the role of auditors due to the impact of technology on business. He highlighted the necessity for the audit professionals to invest in technology and keep abreast with the latest technology to be relevant in the demanding and everchanging landscape of the profession.

The lecture meeting also provided a hands-on guidance to the participants, many of whom were young members. The lecture was followed by Q & A session and the Speaker replied to all the queries of the participants in a very lucid manner.

Direct Tax Laws Study Circle

Study Circle Meeting on ‘Tax Implications owing to Ind-As’ held on 2nd August 2018 at BCAS Conference Hall

Taxation Committee organised a Direct Tax Laws Study Circle on the captioned subject at BCAS Conference Hall. The Convenor of the study circle CA. Nilesh Parekh gave his opening remarks. The Group leader, CA. Bhaumik Goda gave a brief overview of the applicability of Ind-AS provisions to companies in India and prevailing direct tax provisions including MAT.

Thereafter, the group leader briefly explained the tax impact on account of Ind-AS and the presentation of the financial statements. Various examples and case laws were discussed and questions were taken with respect to the relevant sections. The group leader touched upon the key areas of change in Ind-AS 16- PPE and discussed an illustration reflecting impact of ‘spare parts’ and ‘site restoration expenses’ in the books of the company. Journal entries and effects in the transition period were discussed in detail. Further, CA. Bhaumik Goda explained the impact of Ind-AS 27- Separate financial statement wherein the impact on the provisions of section 14A and Rule 8D were also discussed followed by discussion on Ind AS 102- Share based payment where deductibility of ESOP expenses was deliberated on and an illustration pertaining to group ESOP was analysed in depth. The session was concluded by discussing aspects to be considered during the transition period.

The meeting was quite participative and the participants benefitted a lot from the session.

Half Day Workshop on “Preparation of Consolidated Financial Statement Under Ind AS” held on 2nd   August, 2018 at Reliance Industries Ltd, RCP, Ghansholi

The Accounting and Auditing Committee organised a half day workshop on preparation of Consolidated Financial Statements under Ind AS on 2nd August, 2018 at RIL, RCP, Ghansoli. The event saw attendance of over 80 participants including outstation participants.

The workshop was hosted by RIL at their RCP facility and began at board room where Mr. Murthy from RIL welcomed all the participants. He then briefly introduced Reliance University and played a video presentation to make participants aware of Reliance University etc.

CA Nihar Jambusharia, Vice President, Taxation at RIL and Central Council Member and Chairman of Ind AS Implementation Group of ICAI gave his welcome speech and briefed members about the activities his committee at Central Council of ICAI is undertaking. President CA. Sunil Gabhawalla gave the opening remarks regarding the activities at BCAS. He also thanked RIL for hosting the workshop. Chairman, Accounting & Auditing Committee, CA. Himanshu Kishnadwala in his remarks briefed the members about how the idea of holding this workshop at RIL was conceptualised.

The faculty, CA. Raj Mullick in his opening remark said that RIL is able to achieve this only because of use of Technology, Systems and Discipline and Co-ordination amongst business and accounts. He said that it is a continuous process which results into such an achievement.

He then went on to present the participants through the whole process his team at RIL does on weekly basis, monthly basis and quarterly basis including meeting with the business CFO’s, functional CFO’s and how the accounts are aligned with business and how MIS are aligned to accounts. He also explained how external audit is completed up to the period of nine months  and the complete set of CFS along with all the notes and disclosures are prepared up to the period of nine months. These financials act as a trial run for the audited financials for the period of 12 months.

Lastly, he shared with  the participants the ambitious goal set before his team of providing weekly CFS to the CFO’s and every month they will come up with complete set of financials.

The session ended with the closing remark and well deserved vote of thanks given by CA. Chirag Doshi who quoted RIL founder late Shri Dhirubhai Ambani “Meeting Deadline is not enough, beating Deadline should be
the norm”.

The participants got fully mesmerised with the insights given by the Speaker.

Tree Plantation Drive 2018 – Visit to Dharampur, Valsad – Gujarat 4th – 5th August, 2018

In constant endeavour to contribute towards Grow Green Drive together with rural economic development, the Human Resource Development Committee of BCAS jointly with BCAS Foundation organised Tree Plantation Drive in the tribal areas of Dharampur District, Valsad – Gujarat on 4th and 5th August, 2018. This noble task was carried out with the help of the Sarvodaya Parivar Trust. Enthusiastic team of 37 volunteers and majority from the youth team participated to carry out this noble mission.

Sarvodaya Parivar Trust (SPT) – This NGO’s goal is to empower the tribal people, making them increasingly self-reliant by engaging in various tribal welfare activities in the field of Education, Health, Agriculture, Water management, Environment, Public Awareness programmes, etc. With help of local farmers, the team assisted in planting saplings of Custard Apple, Teak and Bamboo Trees in outskirts of Khadki village and also distributed Mango saplings to the farmers. BCAS Foundation committed to plantation of 10,000 trees and made contribution of
Rs. 3,00,000/- received through generous donations. The Team at SPT also showed the plant nursery where they have cultivated over 70-80 varieties of saplings over last five years and has assisted in developing above 47 Gram Vans over 45 acres of land.

The team of volunteers visited the Residential School run by the SPT at Pindval. The students here are trained in real life experiences and chores and are made capable to handle school maintenance like housekeeping, kitchen duties etc. by allocating them various portfolios like Health Minister, Stores Minister, Garden Minister, etc., thereby making them responsible to face challenges.

Shrimad   Rajchandra     Ashram  –    Founder      Shri      Rakeshbhai Zaveri, an ardent devotee of Shrimad Rajchandraji,
is propounding the path of Bhagwan Mahavira and actualising Ashram’s mission statement – Realise one’s True Self and serve others selflessly. Thousands of aspirants congregated here for enlightening discourses, an array of meditation retreats and workshops. More than 250 centres worldwide mould the youth and children, shaping a brighter future for them. Societal Service activities are carried out through the ten-fold Shrimad Rajchandra Love and Care programme which includes health, educational, child, woman, tribal, community, humanitarian, animal, environmental and emergency relief care. The team of volunteers was truly inspired & elevated hearing the discourses and were thrilled experiencing sanctity of the site.

ARCH (Action Research in Community Health) Foundation – This NGO was founded by Late Dr. Daxaben Patel focussing on Mother and Child Care as well as promoting awareness about basic health care and empowering people with Health Education in the tribal areas of Dharampur. ARCH currently provides primary health care services to approximately 25,000 patients mainly at Mangrol dispensary and at the Dharampur dispensary along with basic health education and preventive services such as vaccinations, prenatal care, child care, etc. BCAS Foundation contributed Rs. 51,000/- towards their noble activities.

It was truly an elevating and enlightening journey for the participants. Especially the youth members were deeply moved and felt blessed at the end of journey.

Lecture Meeting on “GSTN Portal: Experiences and Issues faced by Taxpayers” held on 8th August, 2018  

Indirect Taxation Committee organised a lecture meeting on GSTN Portal: Experiences and Issues faced by Taxpayers on 8th August, 2018 at IMC, Churchgate, which was addressed by Mr. Prakash Kumar, CEO, GSTN and Mr. Nitin Mishra, EVP Technology, GSTN. BCAS President CA. Sunil Gabhawalla in his opening remarks underlined the objective of the meeting.

The Speaker, Mr. Prakash Kumar started with various facts and data available at the back end of GSTN. The Speaker also explained the facts, that in India GST and its backbone called GSTN is settling quite fast. Both the speakers requested the participants to give suggestions on the new GST returns process and formats. Mr. Nitin Mishra explained why there are technical glitches faced by users. On this occasion, 2 BCAS Publications – “Laws and Business-A Compendium-Volume 1 and Volume 2” and “Anti Profiteering and GST – ? to !” were released.

The lecture meeting was followed by Q&A session and the speakers thoroughly answered the queries of the participants. The participants got enlightened from the insights provided by the learned speakers.

FEMA STUDY CIRCLE

Study Circle Meeting on “Overview of FEMA” held on 9th August, 2018 at BCAS Conference Hall 

International Taxation Committee organised a FEMA Study Circle Meeting on 9th August, 2018 at BCAS Conference Hall where CA. Natwar Thakrar led the discussion on the topic of “Overview of FEMA”. The Group Leader deliberated upon nuances of determining residential status of an individual and other entities including branch. The concepts such as “Intention”, “Uncertain Period” and “Resident” were explained at length. The Group Leader also pointed out the journey of the country’s foreign exchange reserves right from FERA period (1991) to FEMA (1999) and the current date scenario. He mentioned that the journey of study is still continued and in the next schedule of meeting, case studies on determining residential status of – Indian citizen coming to India, Indian citizen leaving India, Foreign citizen coming to India, Foreign Citizen leaving India , Post-marriage stay of a foreigner in India , Student etc., will be discussed. The study circle is all set for learning of FEMA through series of meetings planned ahead.

The participants found the subject very interesting and got valuable inputs from the learned Speaker.

Suburban Study Circle

Suburban Study Circle Meeting on “Auditing Tools in Tally ERP 9” held on 10th August, 2018 

The Suburban Study Circle organised a meeting on “Auditing Tools in Tally ERP 9 on 10th  August, 2018 at Bathiya & Associates LLP, Andheri (E) which was addressed by CA. Punit B. Mehta.

The speaker demonstrated directly from the software of Tally ERP various shortcuts and available auditing and compliance tools which were easy to understand and which effectively reduce the time involved by the audit team. He also explained various customised add on options available in the software which can be purchased as per Company’s need. The speaker also shared techniques for faster viewing of data and how to extract legder wise analysis along with their shortcut keys and how to get direct extracts in the revised schedule III format etc.

The participants got valuable insights from the presentation shared by the speaker.

Full day Seminar on “Tax Audit” held on 11th August 2018 at BCAS Conference Hall

The Taxation Committee organised a full day Seminar on Tax Audit on 11th August, 2018 at BCAS Conference Hall. President CA. Sunil Gabhawalla gave the opening remarks. The following topics were taken up at the Seminar by the learned Speakers:

Overview of tax audit provisions including applicability in presumptive cases and calculation of limits; reporting requirements; audit quality; documentation in light of ICDS; obtaining and relying on management representations; reliance on test checks, Issues in e-filing etc. CA. Ashutosh Pednekar
Reporting in Form 3CD – certain clauses and issues arising from them Clause 12 (presumptive income), Clause 13 (which includes ICDS), Clause 14 (inventory), Clause 17 (transfer of land building less than value adopted referred to in section 43CA or 50C), Clause 26 (section 43B) and issues arising with tax audit of companies following Ind AS. CA. Saroj Maniar
Reporting in Form 3CD – new clauses inserted regarding secondary adjustment, limitation on interest deduction, GAAR and CBCR CA. Bhaumik Goda
Reporting in Form 3CD – certain clauses and issues arising from them (Clauses 15, 16, 19, 20, 21, 22, 23, 28, 29, 29A, 29B, 32, 36, 36A). CA. Bhadresh Doshi
Reporting in Form 3CD – certain clauses and issues arising from them (Clauses 8, 9, 10, 11, 18, 24, 25, 27, 30, 31, 33, 34, 35, 37, 38, 39, 40, 41, 42, 44). CA. Jagdish Punjabi

CA Ashutosh Pednekar started the first session highlighting the audit aspects in Tax Audit. He took various examples and scenarios where one has to apply his/her audit skills while performing or documenting Tax Audit and also highlighted the evolution of Tax Audit right from year 1984 to date. He further discussed about the recent changes and the Do’s and Don’ts one should keep in mind while performing Tax Audit and also the importance of documentation in Tax Audit, citing the onerous responsibilities of a tax auditor regarding the same.

CA Saroj Maniar explained about the impact of ICDS and Ind AS on various clauses in Tax Audit Report. She also pointed out various issues arising out of accounts prepared on fair value mechanism under Ind AS and tax accounts under ICDS mechanism and then dealt with clauses dealing with presumptive taxation.

CA Bhaumik Goda spoke on new clauses inserted in Tax Audit report regarding secondary adjustment, limitation on interest deduction, GAAR and CBCR. He spoke on the various practical issues while reporting the information for the new clauses with examples and case studies. He also informed participants that now a tax auditor has to make himself aware of basic international tax and transfer pricing provisions before performing
tax audits.

CA Bhadresh Doshi spoke on clauses allotted to him and discussed the issues and the reporting requirement arising from them. His immense experience on litigation helped the participants to know the jurisprudence on various issues arising from the said clauses. He also guided participants on how one should report on such clauses.

CA Jagdish Punjabi addressed the last session of the seminar covering large number of clauses. He along with chairman CA. Anil Sathe explained how reporting under section 269 SS, section 269 ST and section 269 T needs to be done. He also discussed on clauses related to TDS and shared his views on what and how one should report in new clause related to GST and Non GST expenses breakup.

The sessions in the Seminar were interactive and the speakers shared their insights on the subject. The participants benefited immensely with the guidance and practical views on various issues by the faculties. The event garnered overwhelming response and saw an attendance by over 156 participants including 40 on the new BCAS e-learning platform and also outstation participants from 11 cities/towns.

HRD Study Circle

Study Circle Meeting on “CREAM Analytics (Measuring Governance – Return on Intangible) held on 14th August, 2018 at BCAS Conference Hall

Human Resources Development Committee organised a study circle on “CREAM Analytics (Measuring Governance – Return on Intangible)” presented by CA. Jayaraman Rajah Iyer, on 14th August, 2018 at BCAS Conference Hall.

The discussion took place emphasising the following:

  1. Measuring Corporate Governance is measuring Profits, with the derived formula for the theme ‘Measure Cost Consequence Now, Now, Now’ as a corporate theme to strengthen the Corporate Governance process measuring on the go.
  1. Return on Investment is not sufficient anymore because measuring corporate fiscal assets usage is limited in its utility without measuring corporate ethical assets usage. Return on Intangible is the only way out for corporate measuring for an optimised performance and usage of both fiscal and ethical assets and deconstructing what is valueless.
  1. By Principle #5 Emergent Property Phenomenon, the discussion took place on the three principles within: (1) Conformability with Nature, (2) Simplicity and (3) Unreasonable Effectiveness on the corporate change management similar to a yogic exercise, for a company to becoming fit without any financial burden, under the theme “You don’t add something more to get something more.”

The participants learned a lot from the session delivered by the experienced Speaker.

Indirect Tax Study Circle

Study Circle Meeting on “Input Tax Credit Provisions under GST Act. (Part -1)” held on 20th August, 2018 at BCAS Conference Hall

Indirect Taxation Committee conducted a Study Circle meeting on 20th August, 2018 at BCAS Conference Hall which was led by the Group Leader CA. Parth Shah and chaired by CA. Udyan Chokshi and CA. Ishaan Patkar.

The Speakers made an in depth analysis of provisions relating to Input Tax Credit under GST. Each sub-section of provisions contained in section 16 were deliberated by the members which ignited very healthy discussion amongst the participants. All the members actively participated in discussion and appreciated the quality of issues deliberated during the session. It was a good learning experience by the participants.

“Interactive meeting with representatives of TRACES and NSDL” held on 22nd August, 2018 at BCAS Conference Hall

The Taxation Committee organised an interactive meeting with representatives of TRACES and NSDL on 22nd August, 2018. The meeting was addressed by Mr. Deepak Wayal, Asst. Manager of NSDL, and Mr. Purshottam from TRACES, Ghaziabad to discuss issues in filing and revising eTDS statements.
After the welcome address and introductory speech by the President CA. Sunil Gabhawalla, Mr. Deepak Wayal explained the role of NSDL in eTDS processing. NSDL role is preparing the utility to be used for the preparation of the eTDS returns, and also the file validation utility. He made a short presentation on the interplay of various key processes involved beginning with payment of TDS and ending with credit in payee’s Form 26AS and issue of TDS certificates by the deductors. He discussed reasons for which demands are raised on TRACES site, due to incorrect feeding of data while filing the statements and the precautions which need to be taken while filing the same.

Thereafter, Mr. Purshottam who had travelled all the way from Ghaziabad, explained functionalities available on the TRACES website, and how the same have changed in the last decade. He also explained reasons why demands are raised on TRACES and how the same can be avoided. He also took the delegates present through the new upcoming changes both in the short term and in the long term. The long term changes also include use of block chain technology in eTDS processing. He also briefed the members present about the new proposal to apply for and issue lower / NIL TDS certificates under section 197 / 195 online, which will reduce human interface.

Both the speakers took all the questions not only from the floor, but also those raised by online participants who were viewing the event as a live webinar. The interaction was highly appreciated by one and all present, both offline and online and the participants got enlightened on the subject.

Students’ Study Circle on ‘Audit from Article’s Perspective in recent times’ and ‘Important Clauses and Recent Amendments in Tax Audit Report (Form 3CD)’ held at BCAS Conference Hall on 23rd August, 2018

The Students Forum under the auspices of HRD Committee organised a Students’ Study Circle on the abovementioned topics on 23rd August, 2018 at BCAS Conference Hall.

The study circle was led by student group leaders Mr. Vishal Manwani and Ms. Surabhi Tawade under the mentorship of CA. Chirag Doshi. CA. Rajesh Muni, Chairman of the HRD Committee gave his opening remarks and encouraged students to actively participate in the events organised by the Students Forum. Mr. Jimit Doshi, the student co-ordinator introduced the mentor, group leaders and briefly explained the topics.

The motive of the study circle was to make the students aware of the recent developments in Statutory Audit and Tax Audit from the article’s perspective and highlight the new reporting requirements in Tax Audit report (Form 3CD). Both the group leaders covered their respective topics in an interactive manner and shared their practical experience on crucial issues.

CA Chirag Doshi guided the students on the increased responsibility of auditors in the current scenario and gave them useful tips to perform an effective audit. Overall, the study circle was a perfect blend of technical depth and practical insight.

CA Raj Khona, Incharge for Students Activities then briefed the participants about the forthcoming events which will be organised by the Students Forum and encouraged them to come forward to lead study circles. Ms. Neelam Soneja, the student co-ordinator thanked the group leaders and mentor for sharing their knowledge on the subject for the benefit of the participants.

The study circle proved to be a wonderful experience for the students in attendance. The feedback from the participating students was very positive.

MISCELLANEA

1. Culture

22.  Forger programming – the best skill to teach
children is reinvention

 

The author of Sapiens reveals what
2050 has in store for humankind and in his part one it has dealt – Change is
the only constant.

 

Humankind is facing unprecedented
revolutions, all our old stories are crumbling and no new story has so far
emerged to replace them. How can we prepare ourselves and our children for a
world of such unprecedented transformations and radical uncertainties? A baby
born today will be thirty-something in 2050. If all goes well, that baby will
still be around in 2100, and might even be an active citizen of the 22nd
century. What should we teach that baby that will help him or her survive and
flourish in the world of 2050 or of the 22nd century? What kind of skills will
he or she need in order to get a job, understand what is happening around them
and navigate the maze of life?

 

Unfortunately, since nobody knows
how the world will look in 2050 – not to mention 2100 – we don’t know the
answer to these questions. Of course, humans have never been able to predict
the future with accuracy. But today it is more difficult than ever before,
because once technology enables us to engineer bodies, brains and minds, we can
no longer be certain about anything – including things that previously seemed
fixed and eternal.

 

A thousand years ago, in 1018,
there were many things people didn’t know about the future, but they were
nevertheless convinced that the basic features of human society were not going
to change. If you lived in China in 1018, you knew that by 1050 the Song Empire
might collapse, the Khitans might invade from the north, and plagues might kill
millions. However, it was clear to you that even in 1050 most people would
still work as farmers and weavers, rulers would still rely on humans to staff
their armies and bureaucracies, men would still dominate women, life expectancy
would still be about 40, and the human body would be exactly the same. Hence in
1018, poor Chinese parents taught their children how to plant rice or weave
silk, and wealthier parents taught their boys how to read the Confucian
classics, write calligraphy or fight on horseback – and taught their girls to
be modest and obedient housewives. It was obvious these skills would still be
needed in 1050.

 

In contrast, today we have no idea
how China or the rest of the world will look in 2050. We don’t know what people
will do for a living, we don’t know how armies or bureaucracies will function,
and we don’t know what gender relations will be like. Some people will probably
live much longer than today, and the human body itself might undergo an
unprecedented revolution thanks to bioengineering and direct brain-computer
interfaces. Much of what kids learn today will likely be irrelevant by 2050.

 

At present, too many schools focus
on cramming information. In the past this made sense, because information was
scarce, and even the slow trickle of existing information was repeatedly
blocked by censorship. If you lived, say, in a small provincial town in Mexico
in 1800, it was difficult for you to know much about the wider world. There was
no radio, television, daily newspapers or public libraries. Even if you were
literate and had access to a private library, there was not much to read other
than novels and religious tracts. The Spanish Empire heavily censored all texts
printed locally, and allowed only a dribble of vetted publications to be
imported from outside. Much the same was true if you lived in some provincial
town in Russia, India, Turkey or China. When modern schools came along,
teaching every child to read and write and imparting the basic facts of
geography, history and biology, they represented an immense improvement.

 

In contrast, in the 21st century we
are flooded by enormous amounts of information, and even the censors don’t try
to block it. Instead, they are busy spreading misinformation or distracting us
with irrelevancies. If you live in some provincial Mexican town and you have a
smartphone, you can spend many lifetimes just reading Wikipedia, watching TED
talks, and taking free online courses. No government can hope to conceal all
the information it doesn’t like. On the other hand, it is alarmingly easy to
inundate the public with conflicting reports and red herrings.

 

People all over the world are but a
click away from the latest accounts of the bombardment of Aleppo or of melting
ice caps in the Arctic, but there are so many contradictory accounts that it is
hard to know what to believe. Besides, countless other things are just a click
away, making it difficult to focus, and when politics or science look too
complicated it is tempting to switch to funny cat videos, celebrity gossip or
porn.

 

In such a world, the last thing a
teacher needs to give her pupils is more information. They already have far too
much of it. Instead, people need the ability to make sense of information, to
tell the difference between what is important and what is unimportant, and
above all to combine many bits of information into a broad picture of the
world.

 

In truth, this has been the ideal
of western liberal education for centuries, but up till now even many western
schools have been rather slack in fulfilling it. Teachers allowed themselves to
focus on shoving data while encouraging pupils “to think for themselves”.

 

Due to their fear of
authoritarianism, liberal schools had a particular horror of grand narratives.
They assumed that as long as we give students lots of data and a modicum of
freedom, the students will create their own picture of the world, and even if
this generation fails to synthesise all the data into a coherent and meaningful
story of the world, there will be plenty of time to construct a good synthesis
in the future. We have now run out of time. The decisions we will take in the
next few decades will shape the future of life itself, and we can take these
decisions based only on our present world view. If this generation lacks a
comprehensive view of the cosmos, the future of life will be decided at random.

 

(Source: WIRED – By Yuval Noah
Harari, 12 August 2018)

 

2. 
Technology

23.  Blockchain, machine learning, and a future
accounting

 

The inventor of bitcoin and
blockchain technology goes by the name Satoshi Nakamoto. Though Nakamoto claims
to be a Japanese man born in 1975, most experts believe Nakamoto is a
pseudonym. Some have gone so far as to theorize that Nakamoto isn’t a single
person at all, but rather a collective of people. The mystery persists to this
day, despite the efforts of many of the world’s best journalists.

 

As fascinating as this story is,
the wide-ranging application of blockchain technology is even more compelling.
In a world where disruption is a buzzword, it’s still rare for a technology to
radically alter the face of an industry. For accountants and auditors, however,
blockchain has the potential do just that, especially when combined with other
innovations such as machine learning. Because accounting records contain highly
structured sets of data, this technology is perfectly suited for our profession.
Professionals who aren’t at the forefront of learning and testing ways to adopt
these technologies risk getting left behind.

 

Blockchain: Way more than bitcoin

While blockchain was created to
facilitate bitcoin, the technology now extends far beyond the world of
cryptocurrency. An important facet of blockchain technology is that it is
decentralized, eliminating the middleman. Rather than storing data in one
location, blockchain technology shares data across a massive peer-to-peer
network. Until now, we have relied on institutions or trusted third parties,
such as banks, government registries, and other intermediaries, to be in the
middle of our transactions to create validity.

 

The way blockchain technology is
structured is said to make it nearly impossible for records to be falsified or
corrupted. This is because as transactions are permanently added to the ledger
(like blocks in a chain), information is transparently presented to all parties
involved and one block is then linked to the next in the chain. Files can also
be time-stamped and marked with a virtual fingerprint known as a “hash
string” to ensure they remain unmodified. Because hackers cannot access
data through a central point of vulnerability, blockchain networks are nearly
impenetrable.

 

How blockchain could alter accounting

Blockchain adoption is still in its
infancy, but that hasn’t stopped experts from speculating on the vast changes
the technology may bring. In a white paper published by Deloitte, the firm
hypothesizes that blockchain could “shapeshift the nature of today’s
accounting.” No wonder, then, that all of the Big Four accounting firms
are spending a great deal of time and money investigating blockchain
applications. For example, Deloitte has established a blockchain consulting business
and EY accepts bitcoin for settling invoices.

 

What might a blockchain-based
accounting system look like? Theoretically, it would allow secure, verified
information to be stored and accessed by multiple parties across multiple
locations. Because a blockchain is encrypted and consensus verified, it
essentially notarizes itself. All of this adds up to the possibility of a
replacement for the double-entry accounting method that has been commonplace
since the Renaissance.

 

“Imagine a world where
accounting was not double entry, but maintained in ledgers simultaneously
recording the same item in multiple locations on multiple computers, all
self-balancing and checking every few minutes,” wrote Tony Hobrow, CEO of
VenturesOne Asia and NexAssure Group, in a LinkedIn article. “No
middlemen, no reconciliation, no corrupt date, no need for month-end cycles, no
need to bring together all the different books and records of departments and
counter-parties.”

 

That, in short, is the promise of
blockchain accounting.

 

Combining blockchain with artificial intelligence

Blockchain may transform the
accounting world as we know it, but other technological advances are already
making waves. Chief among them are innovations from the world of artificial
intelligence (AI). A 2018 analysis by International Data Corp. predicts AI
spending will reach $46 billion by 2020.

 

Machine learning is a subfield
within AI that should be of particular interest to accounting professionals.
Arthur Samuel, who coined the term, defines machine learning as giving
“computers the ability to learn without having to be explicitly
programmed.” With machine learning, tasks that have traditionally required
human intervention can be automated. This technology increases efficiency
within the accounting profession to an unprecedented degree, which in turn will
affect our future workflow process and how we interact with clients.

 

When you combine machine learning
and blockchain, you get nothing short of a technological revolution. It’s
possible to envision a world where accounting and auditing happen in real time,
with all relevant parties being informed every step of the way — a true
continuous audit. That future may still be a ways off, but now is the time to
start assessing which processes in your firm could be amenable to AI
technology. Accounting firms and corporate accounting departments should start
not only learning how to take advantage of the technology, but also testing new
ways of working internally with their teams and externally with clients. Starting
small with expense reporting or document collection applications can be a way
to gain confidence in the benefits of utilizing technology like this before
taking on larger applications like general ledger systems.

 

Visions of the future

What does this mean for accountants
and auditors? The short answer is change is on the horizon. While even the most
forward-thinking thought leaders don’t foresee a world where accounting
processes can exist without humans, there’s no denying that roles and workflows
will look radically different in the next few years.

 

Auditors will spend much less time
performing audits, and more time designing, reviewing, and verifying how
information flows between systems. Rather than audits being performed at
regular intervals, blockchain and machine learning present the possibility of a
true continuous audit. All of this technology adds up to more time for human
connection with your internal teams, as well as your external clients, with
soft skills, analytical abilities, and advisory services becoming important in
delivering value to an organization. With continuous audit, trends and missing
data could be identified much earlier, allowing for problems to be proactively
addressed, rather than reactively reported. Continuous auditing also would give
peace of mind to businesses and their investors while also, hopefully, reducing
many of the tasks that accounting firms often have written off or not charged
for.

 

A similar shift could also occur
for accountants. Everyday data-entry tasks are poised to become much easier,
freeing up time for accountants to focus on analysis and insights. Accountants
and firms that develop these skills now will be able to differentiate
themselves as the technology becomes widespread. The days of offering value
simply through accurate data entry and calculations are numbered, so taking the
time to retool now and work on your advisory skills is an investment in the
future of our work.

 

There’s no getting around the fact
that technologies like blockchain and machine learning are no longer a tiny dot
on the horizon. The future is here, and accounting professionals must be
willing to adapt.

 

(Source: Newsletter/CPA Insider –
By Amy Vetter, CPA/CITP, CGMA – 20 August 2018)

 

3.   News –

 

24.  The Isolated error

 

BT blames human error as it reveals £500m pension deficit gaffe

 

Mistake by actuary comes after
accounting scandal last year that wiped £8bn off its value. BT has revealed
another accounting error after its pension deficit was underestimated by £500m.

 

The telecommunications company,
which had £8bn wiped off its stock market value in 2017 after admitting to an
accounting scandal at its Italian unit, blamed the latest gaffe on an “isolated
human error”.

 

The error was made by BT’s
independent actuary, Willis Towers Watson, in its calculation of the company’s
pension deficit at 31 March. The restated pension deficit stands at £3.9bn as
at the end of June.

 

Simon Lowth, BT’s chief financial
officer, said: “We have received assurances from Willis Towers Watson that
there are no other errors. As you would expect, we are undertaking further
review procedures around that calculation.

 

“We spent a lot of time with WTW
making sure we understand what created the error. It was an isolated human
error that they identified. We are also working on what they need to do to
strengthen their controls.”

 

Following the £530m Italian
accounting scandal, which cost the outgoing BT chief executive, Gavin
Patterson, £4m in bonus payouts, the company’s accountant, PWC, was eventually
fired. BT would not comment on its future relationship with WTW.

 

Lowth pointed out the error had no
impact on the company’s profits, cashflow, the triennial valuation of its
pension deficit conducted last year, or any members of the BT pension scheme.
Nevertheless, another financial error was the last thing BT needed.

 

Laith Khalaf, a senior analyst at
Hargreaves Lansdown, said: “Clearly this slip doesn’t inspire confidence.”

 

BT said the correction amounted to
less than 1% of its total pension liabilities of just over £57bn.

 

WTW said the error was due to “an
actuarial assumption not being accurately reflected in our actuarial
calculations”.

“Willis Towers Watson has stringent
controls in place to confirm the accuracy of the calculations that we provide
to clients, and the error has now been corrected,” a spokesman said. “We are
working closely with BT to support their review of the matter.”

 

Patterson, who said he would still
be in place in November to deliver the company’s half-year results, said BT had
made a good start to the year. “We are making positive progress against our
strategy,” he said.

 

In the first quarter, Patterson
said, it had made the first 900 of a planned 13,000 job cuts over the next
three years to save £1.5bn.

 

BT’s financial performance for the
second quarter was slightly ahead of forecasts, and the company reaffirmed its
guidance for full-year revenue and profit.

 

This prompted
a 4% share price rise as investors responded positively after a string of
negative news that had left its share price down more than one-quarter in the
past year.

 

Total revenue for the quarter was
down 2% to £5.7bn. Reported profit before tax was up 68% to £704m, due to the
hit the company took relating to the Italian accounting scandal. Adjusted
profit was up 3% at £816m. Net debt increased to £11.2bn from £8.8bn.

 

The company has stopped reporting
broadband and TV subscriber numbers, which fell in the past two quarters, as it
focuses on increasing average revenue per customer rather than the number of
sign-ups.

 

Paolo Pescatore, an independent
telecoms analyst, said: “All providers will be seeking to lure households with
attractive offers ahead of the new Premier League season. BT must do a better
job of signing up TV subscribers and maximise BT Sport across its base.”

 

(Source: The
Guardian (International edition) – 27 July 2018)

 

25.  PWC doing double duty as auditor and tax
lobbyist

 

PwC billed $10.74 million since
2013 as the exclusive registered lobbyist on tax reform for a coalition that
includes several audit clients.

The largest audit firm in the
world, PricewaterhouseCoopers LLP, is a registered tax lobbyist for a coalition
of some of the largest multinationals that includes a large number of its audit
clients.

 

PwC has earned $10.74 million since
2013, according to the Senate’s lobbying disclosure database, as the exclusive
registered lobbyist for the Alliance for Competitive Taxation, on a single
issue: tax reform.

 

(Source:
www.marketwatch.com, 30 July 2018)

 

Representations

1.  Dated: 8th August 2018

     To: The Finance Secretary, Govt. of
India

    Subject: CBDT directive for offering
incentives to Commissioners of Income-tax (Appeals) for passing quality orders
based on Enhancement of assessment and imposition of fresh penalty and other
issues

   Representation by: IMC Chamber of
Commerce and Industry; Bombay Chartered Accountants’ Society; Chartered
Accountants Association, Ahmedabad; Chartered Accountants Association, Surat;
Karnataka State Chartered Accountants’ Association; Lucknow Chartered
Accountants’ Society.

 

2.  Dated: 9th August 2018

    To: The Ministry of Finance, Govt. of
India

   Subject: Comments and Suggestions
with regard to framing of Income-tax rules relating to Significant Economic
Presence as per Explanation 2A to Section 9(1)(i) of the Income-tax Act, 1961
(the Act)

    Representation by: Bombay Chartered
Accountants’ Society.

 

3.  Dated: 21st August 2018

    To: Chairman, Central Board of
Direct Taxes, Govt. of India

   Subject: Revised Tax Audit Report in
Form 3CD for AY 2018-19 –recommendations soliciting immediate intervention

  Representation by: IMC Chamber of
Commerce and Industry; Bombay Chartered Accountants’ Society; Chartered
Accountants Association, Ahmedabad; Chartered Accountants Association, Surat;
Karnataka State Chartered Accountants’ Association; Lucknow Chartered
Accountants’ Society.

 

4.  Dated: 27th August 2018

    To: Securities and Exchange Board of
India (SEBI)

    Subject: Consultative paper on
proposed SEBI (Feduciaries in the securities market) (Amendment) Regulations
Representation by: Corporate and Allied Laws Committee of the Bombay Chartered
Accountants’ Society.

 

5.  Dated: 28th August 2018

     To: Chairman, Central Board of
Direct Taxes, Govt. of India

     Subject: Representation on Gratuity
Exemption Limits

     Representation by: IMC Chamber of
Commerce and Industry; Bombay Chartered Accountants’ Society. 

 

Note: For full Text of the above Representations,
visit our website www.bcasonline.org 

GOODS AND SERVICES TAX (GST)

I  High Court

 

8.  2018 (14) GSTL 164
(P&H.) Silicon
Constructions Pvt. Ltd. vs Union of India
dated 29th May, 2018

Remedy where Form GST TRAN 1 could not be filed on account
of technical glitches.

 

Facts

The Petitioner confronted
technical glitches in GSTN during filing of the return in Form GST TRAN 1. The
issue was communicated to the department immediately through an E-mail. The
department responded that they were working on the issue and would update the
same. After the due date, as the facility to file TRAN-1 was disabled, a letter
was sent requesting carry forward of credit in their Form GSTR-3B manually, but
no response was received. Also letters were submitted to the department on
which no action was taken. Petitioner therefore filed writ in nature of mandamus
directing the Respondent to reopen the online portal.

 

Held

The Hon’ble High Court by disposing the writ petition
directed the authority to take decision on the letters filed in accordance with
law by passing speaking order and after affording opportunity of hearing within
a period of one week from the date of decision of the order.

 

II.    Authority for
Advance Ruling:

 

9. 
[2018-TIOL-114-AAR-GST] Coffee Day Global Ltd. dated 26th
July, 2018

The supply of non-alcoholic beverages/ingredients to SEZ
units using coffee vending machines by the applicant do not qualify as zero
rated supply, since they are not in relation to the authorised operations.

 

Facts

Applicant is engaged in the supply of non-alcoholic beverages
to SEZ units using coffee vending machines and undertakes two types of
transactions. In the first case, beverage vending machines are installed inside
SEZ premises and beverages are prepared and supplied to SEZ units which are
consumed by their employees and SEZ units are charged based on number of cups.
Secondly, they install beverage vending machines inside SEZ premises and supply
beverage ingredients to the SEZ units and bills based on the quantity of
ingredients supplied. The question before the authority is whether supply of
non-alcoholic beverages to SEZ units using coffee vending machines is in the nature
of zero rated supply defined u/s.16 of the IGST Act 2017.

 

Held

The authority observed that the term zero rated supply u/s.
16 of the IGST Act means supply of goods or services to a SEZ developer or
unit.  Section 15(9) of the SEZ Act
requires that the SEZ Unit shall carry out only the authorised operations in
the Unit. Further, the term “authorised operations” is also defined u/s.
2(c) of the SEZ Act, 2005. The authority noted that the word “any supply” has
not been used in section 16 of the IGST Act. Accordingly, in terms of the SEZ
Act and provisions of Rule 89 of the CGST Rules, 2017 which requires that in
respect of supplies to a Special Economic Zone unit or a Special Economic Zone
developer, the application for refund shall be filed by the supplier of goods
after such goods have been admitted in full in the Special Economic Zone for authorised
operations, the services supplied to the SEZ unit shall be necessarily for authorised
operations only. Since the activity undertaken by them is not certified as an
authorised operation by the proper officer of the SEZ, the transaction shall
not be considered as a zero rated supply.  

 

Service Tax

I High Court

 

45.  [2018] 95
taxmann.com 319 (Bombay-HC)
Commissioner of Service Tax, Mumbai-VI vs. Shri Krishna Chaitanya Enterprises
Date of Order: 25th January, 2018

Since in terms of provisions of MOFA Act, 1963, the
builder/developer is statutorily obliged to assume responsibility for
maintenance and repairs of building till the process of conveyance is
completed, such activity cannot be construed as provision of “management,
maintenance and repair services”.
 

 

Facts

The assessee, being a builder and developer engaged in
construction of residential complexes, inter alia, collected certain
sums from prospective flat buyers as maintenance cost towards expenses for
maintenance and repair of building till conveyance of property to flat buyers.
Revenue alleged that said sums collected would be chargeable to service tax
under category of “management, maintenance or repair services”. During the
appellate proceedings, the Tribunal set aside impugned demand. Being aggrieved,
revenue filed present appeal raising a substantial question of law as to
whether the act of undertaking maintenance and repairs of flats till conveyance
and collecting certain charges for the same from flat buyers can be regarded as
provision of “management, repairs and maintenance services” and thereby,
whether the Hon’ble Tribunal was justified in setting aside the impugned
demand.

 

Held

The Hon’ble High Court noted that in terms of Maharashtra
Ownership Flats (Regulation of the Promotion of Construction, Sale, Management
and Transfer) Act, 1963 (hereinafter referred to as “MOFA”), the
builder/developer is regarded as promoter and that, various provisions listed
u/s. 5 to section 13 of MOFA deal with the duties and obligations to be
fulfilled by promoter so as to provide for safeguarding and protecting the
interest of flat takers and unit purchasers to ensure them a title in property.
The said Act provides for complete regulatory mechanism till conveying the
property to a legal entity namely a co-operative housing society or a company,
which is required to be formed by the promoter.

 

Accordingly, the Court observed that till the process of
conveying the property is complete, the builder/developer as a promoter is
statutorily obliged to hold on to the property and the money for complete
discharge of his eventual duties and therefore, he has to maintain, safeguard
and protect the property and look after the day-to-day wear and tear. In this
background, the Court held that when the builder/developer maintains the
structure or repairs, he is not rendering a taxable service in the sense
envisaged by the Financial Act, 1994 as such activities are performed as statutory
obligation casted upon him by MOFA. Further, the High Court held that it is not
a contract simplicitor of maintenance of immovable property, as if there is an
existing building comprising of flats, fully occupied, the maintenance and
upkeep of which is handed over under a contract.

 

It is a statutory obligation superimposed on a contract to
sell a flat/unit in a building to be constructed on a piece or parcel of land
in terms of MOFA. In other words, the maintenance of property till conveyance
is the statutory obligation of builder/developer in terms of provisions of MOFA
and thus cannot be equated with provision of taxable service. Therefore, the
High Court affirmed the decision of Tribunal and revenue’s appeal was
dismissed.

 

II.   Tribunal

 

46.  2018 (14) GSTL 254
(Tri.-ALL.) Parle Biscuits Pvt. Ltd. vs. Commissioner of Central Excise,
Allahabad
Date of Order: 4th April, 2018

CENVAT Credit on capital goods cannot be denied on grounds
that the same was availed on the basis of endorsed invoices.

 

Facts

The CENVAT credit on capital goods received two years back by
the Appellant on the basis of invoice endorsed by the original recipient was
disallowed by the department on grounds that endorsed invoices cannot be held
as valid documents for the purpose of availment of CENVAT credit.
Superintendent and Inspector of Central Excise endorsed the invoices at the
request of the original recipient in favour of Appellant.

 

Held

The Hon’ble Tribunal held that there was no dispute about
receipt of the capital goods and duty paid thereon. Substantive benefits cannot
be denied by raising grounds of procedural violation. Hence, set aside the
impugned orders and allowed the appeal

 

47.  2018 (14) GSTL 255
(Tri.-Del.) MTNL vs.
Commissioner of Service Tax, Delhi
Date of Order: 30th January, 2018

Service tax collected from customers but delayed in
depositing the same with Government account, attract charge of interest.

 

Facts

Appellant collected the
consideration for the services rendered along with the service tax thereon.
However, the service tax collected from such customers was deposited with
Government account after an estimated delay of two months. Demand to the extent
of payment was dropped, however small amount of interest was demanded and
interest was charged. Aggrieved by the order appeal was filed stating that
since the demand for service tax has been dropped, there is no justification
for demand of interest.

 

Held

The Hon’ble Tribunal held that service tax amount collected
by the Appellant has been deposited with the Government only after delay.
Hence, the charging of interest is fair and reasonable. Appeal disallowed by
upholding the demand of service tax of a small amount along with interest and
penalty.

 

48.  2018 (14) GSTL 250
(Tri.-Ahmd.) Vijay Tanks & Vessels Pvt. Ltd. vs. Commissioner of C. Ex.
& S.T., Anand 
Date of Order: 22nd December, 2017

Registration is not a pre-requisite to claim credit.

 

Facts

Assessee availed CENVAT credit on various input services that
were used to provide output services of works contract services, supply of
tangible goods services, consulting engineering services, business auxiliary
services etc., at various locations/sites. However, certain locations/sites
were not included in the centralised registration. These locations/sites were
included only after several reminders from department. Department issued a show
cause notice demanding CENVAT credit availed along with interest and proposed
penalty thereon which was later confirmed by the Adjudicating and the Appellate
Authorities. Aggrieved Appellant assessee therefore preferred appeal before
the  Hon’ble Tribunal.

           

Held

The Hon’ble Tribunal held that credit cannot be denied merely
on the ground that respective sites were not included in centralised
registration certificate issued to the Appellant. There is no dispute of the
fact that the input services were utilised in providing the output services.
Accordingly, the impugned order was set aside and appeal was allowed with
consequential relief.

 

49.  [2018] 95
taxmann.com 242 (Chennai – CESTAT) Mail Related Services vs. Commissioner of
Service Tax, Chennai
Date of Order: 20th June, 2018

The “franking charges”, as collected by assessee from its
clients and paid to post master general, being a statutory levy in terms of
Indian Post Office Act, 1898 are not includible in taxable value in terms of
section 67 of Finance Act, 1994. The rebate given by post office to assessee on
franking charges cannot be said to be consideration for promotion and marketing
of services of postal department so as to attract service tax under “business
auxiliary services”.

 

Facts

The appellants are engaged in providing mailing services
using franking machines obtained on license from the postal department. They
collect the mails from their clients, frank them as per weight and then mail
the documents/packets. For the said activity, appellant collects service
charges from customers and duly discharges service tax liability on said
service charges under category of “Mailing List Compilation and Mailing
Services”. In respect of franking cost, either the clients directly take out
demand drafts in favour of the Post Master General or in some cases, appellants
pay the franking cost on behalf of their customers and get it reimbursed from
the latter subsequently. Department alleged that as reimbursement of cost of
postage received from the clients cannot be termed as pure agent expenditure,
such franking charges are includible in value of taxable services in terms of
section 67 of Finance Act, 1994. Besides, they also receive a rebate of 3% on
the franking charges from postal department, which was treated by the
department as chargeable to service tax under category of “business auxiliary
services” for promoting or marketing of postal service.

 

Held

As regards dispute pertaining to inclusion of franking
charges in the taxable value, the Hon’ble Tribunal noted that the postage is a
“statutory duty” as defined by the Indian Post Office Act, 1898 and that this
statutory duty is permitted to be paid to the Government of India by way of
affixing physical postage stamps and by franking of the appropriate postage on
the letters by making use of the licensed franking machines. As per section 17
(2) of the Indian Post Office Act, 1898 postage franked through Franking
Machine is a statutory levy. The Tribunal held that since such charges are
either directly collected by postmaster general or paid by them to the
postmaster general on behalf of clients, said charges cannot be said to be
accrued to the appellant and thus, cannot be made part of taxable value.
Further, it was held that ratio laid down by the Hon’ble Supreme Court in Union
of India vs. Intercontinental Consultants & Technocrats (P.) Ltd. [2018] 91
taxmann.com 67/66 GST 450
is squarely applicable in the present case.
Therefore, the Tribunal held that franking cost cannot be included in
computation of value of taxable service and set aside impugned demand.  Regarding next issue of demand under
“business auxiliary services” on rebate received from postal department, it was
noted that the entire activity of dispatch is effected on behalf of the
business entities and the appellants are therefore, the users of the post office.
The transaction of franking or usage of the postal service is solely between
the appellants and the post office with the former as a customer of the latter.
Tribunal observed that the rebates are offered as an incentive for the reduced
workload on the post office staff, to encourage use of franking machines,
especially where the volumes are above a certain threshold level. Thus, such
rebates can hardly be designated as commission or remuneration for promoting
the postal services. The Tribunal referred to its own decision in United
Mailing Services, Sai Mailing Services vs. CST [Appeal No. ST/257/2011, dated
08-09-2015]
holding that rebate received from the postal department on
franking charges is not liable to be taxed. Accordingly, impugned demand rebate
received was dropped.

 

50.  [2018] 95
taxmann.com 277 (Mumbai – CESTAT) Ajit India (P.) Ltd. vs. Commissioner of
Service Tax, Mumbai-II
Date of Order: 25th May, 2018

The Tribunal held that the activity of production, supply
and installation of aluminum structural glazing, sliding doors and window to
residential buildings is a composite supply involving sale of goods as well as
provision of service and thus, chargeable to service tax under “works contract
services”.

 

Facts

The appellants were inter alia engaged in production,
supply and installation of structural glazing, sliding doors and window to
residential buildings. The contract for installation of aluminum structures was
entered into with the builders and at times with individuals. The work involved
fabrication of the required components for structural glazing/windows at their
factory and installation of the same at various sites. The contract involved
designing, supply, fabrication, erection and commissioning and there was no
separate service contract for installation work with the customers. Revenue
alleged that the activity undertaken would come under the ambit of completion
and finishing services in relation to residential complex under the category of
“construction of complex service” and not under “erection commissioning and
installation”. Appellant submitted that the contract was composite and there
was no separate element of service or sale. During the appeal proceedings, the
first appellate authority held that there is no contract for sale of goods to
the service recipient and consequently in the absence of actual sale of goods,
impugned demand was confirmed. Being aggrieved, appellant filed present appeal.

 

Held

The Tribunal held that the conclusion reached by the first
appellate authority is erroneous inasmuch as just because VAT is paid at
composite rate, it cannot be said that there is no sale of goods involved. The
Tribunal noted that the major amount charged by appellant relates to the value
of materials. Also, reliance was placed on the decisions in case of Vistar
Constructions (P.) Ltd. vs. CST [ST/53190/2014, dated 01-04-2016] and URC
Construction (P.) Ltd. vs. Commissioner of Central [ST/00284/2008, dated
14-07-2016]
, the Tribunal held that in present case the activities
undertaken by appellant constitutes composite supply involving supply of goods
as well as services and thus, would be taxable under category of “works
contract services” and the same cannot be vivisected so as to bring it under
service tax net under category of “construction of residential complex
services”. Accordingly, the Tribunal allowed present appeal by setting aside
impugned demand. 

 

51. 
[2018-TIOL-2436-CESTAT-BANG]
Commissioner of Central Excise, Cochin vs. Coconut Lagoon Kumararkom
Date of Order: 31st July, 2018

Ayurvedic treatment supervised by a doctor is therapeutic in
nature and therefore not  covered by
Health club and Fitness services. Mere fact that the Ayurvedic centres are
located in the resorts and sometimes the duration of treatment is for one or
two days, it cannot be concluded that the massages or treatments are only for
general well-being and not for any therapeutic value.

  

Facts

Assessee is engaged in running resorts and are operating an
Ayurvedic treatment center. The specialised treatments provided include
treatments for ailments such as obesity, trauma, bronchial disorders etc. All
the treatments given are as per the standard ayurvedic medical texts and the
type of treatment and duration will be decided by a qualified and registered medical
practitioner after conducting the diagnosis. The department contended that the
services provided fell under the category of health club and fitness service
and accordingly issued a show cause notice. On appeals filed, the learned
Commissioner (A) has allowed the appeals of the assessee. Accordingly, the
department is in appeal.

 

Held

The Tribunal noted the definition of health club and fitness
service which means physical well-being service such as, sauna and steam
bath, turkish bath, solarium, spas, reducing or slimming salons, gymnasium,
yoga, meditation, massage (excluding therapeutic massage) or any other like
service.
The term therapeutic massage is explained by CBEC Circular
No.B11/1/2002-TRU dated 1.8.2002 to mean a massage provided by qualified
professionals under medical supervision for curing diseases such as arthritis,
chronic low back pain and sciatica etc. The Tribunal noted that the centers
maintain case sheets, treatment files and a treatment schedule. The ayurvedic
doctors attached, supervise the treatment, prescribe food restrictions and the
type of oil that should be used. It is therefore seen that these centres
provide a holistic ayurvedic treatment, which includes massages given by
qualified professors under medical supervision for curing diseases. Thus, in
view of documentary findings produced by the respondents, it is seen that the
ayurvedic centres are providing therapeutic treatment under ayurvedic system
and therefore not covered by the definition of Health Club and Fitness Services
and therefore are not liable for service tax.

 

52. 
[2018-TIOL-2351-CESTAT-MAD] Siemens Building Technologies Pvt. Ltd vs.
Commissioner of Central Excise, Puducherry
Date of Order: 21st February, 2018

When goods are manufactured and thereafter installed in a single transaction charged compositely, the
predominant activity is manufacture and installation is only incidental to the
activity of manufacture.

 

Facts

Assessee is engaged in manufacture of Electronic Safety
System and Accessories. It receives composite orders for supply, installation
and commissioning of the system. They follow two patterns of billing depending
upon the purchase orders. In the first case, the charges for manufacture of the
system and the installation are raised compositely and excise duty is
discharged on the whole amount. Whereas, in the second case, the value of the
system manufactured is shown separately on which excise duty is discharged and
in respect of the installation charges, service tax is discharged. Department holds
a view, that service tax is required to be charged on the charges charged
compositely. It is argued that the activity of installation is only incidental
to the sale transaction in a composite transaction and not an independent
service liable for service tax.

           

Held

The Tribunal observed that when the goods are manufactured
and thereafter installed, the predominant activity is manufacture and
installation is only an incidental activity. The contention of the department
that service tax is payable on the whole amount, ignores the taxable event of
manufacture completely. Further, the contention that the service tax rate was
higher than the rate of central excise during a given period appears to be
totally unsound application of fiscal statutory provisions. Thus, the impugned
order is set aside.

 

53. 
[2018-TIOL-2349-CESTAT-ALL] ICS Food Pvt. Ltd vs. Commissioner of
Service Tax, Noida Date of Order: 12th April, 2018

Services by an outdoor caterer in relation to serving of
food and beverages in a canteen maintained by a factory under the Factories
Act, 1948 is exempt under entry 19A of the mega exemption
notification-25/2012-ST dated 20.06.2012.

 

Facts

Assessee enters into an agreement with various factories for
supply of food and beverages to the employees of the factory as per the agreed
charges. The main dispute pertains to entitlement of exemption Notification
No.25/2012-ST as amended by Notification No.14/2013-ST dated 22/10/2013 to the
services provided in relation to serving of food or beverages by a canteen
maintained in a factory, as required under the Factories Act, 1948 having the
facility of air-conditioning or central air-heating at any time during the
year. The department holds a view that the exemption is available to a canteen
run by factories themselves. It was
argued that the notification uses the phrase “canteen maintained in a factory”
and not “canteen maintained by a factory” which spells out the intent of the
exemption.

 

Held

The Tribunal noted in the negative list based service tax
regime “canteen” and “outdoor caterer” is not defined.
Therefore, it would be prudent to take recourse to definitions provided under
the Finance Act, 1994 as these were in existence till 30/06/2012. Even if such
services are considered as OUTDOOR CATERING, those have been used for providing
services in relation to serving food and beverages in a canteen.Thus, the
services provided is covered by Entry No.19A of the mega exemption notification
and exempted from payment of Service Tax.

Glimpses Of Supreme Court Rulings

16.  Business Income – Section 28(iv) of the Act
does not apply to a case where the receipt is in the nature of cash or money –
Section 41(1) of the Act does not apply in case of a waiver of loan as it does
not amount to cessation of trading liability.

                       

The Commissioner
vs. Mahindra and Mahindra Ltd.

(2018) 404
ITR 1 (SC)

 

The Respondent [assessee],
way back, decided to expand its jeep product line by including FC-150 and
FC-170 models. For this purpose, on 18.06.1964, it entered into an agreement
with Kaiser Jeep Corporation (for short ‘the KJC’) based in America wherein KJC
agreed to sell the dies, welding equipments and die models to the Assessee. The
final price of the tooling and other equipments was agreed at $6,50,000
including cost, insurance and freight (CIF). Meanwhile, the Respondent took all
the requisite approvals from the concerned Government Departments. The said
toolings and other equipments were supplied by the Kaiser Jeep Corporation
through its subsidiary Kaiser Jeep International Corporation (KJIC).

 

However, for the
procurement of the said toolings and other equipments, the KJC agreed to
provide loan to the Respondent at the rate of 6% interest repayable after 10
years in installments. For this purpose, the Respondent addressed a letter dated
07.06.1965 to the Reserve Bank of India (RBI) for the approval of the said loan
agreement. The RBI and the concerned Ministry approved the said loan agreement.

 

Later on, it was informed
to the Respondent that the American Motor Corporation (AMC) had taken over the
KJC and also agreed to waive the principal amount of loan advanced by the KJC
to the Respondent and to cancel the promissory notes as and when they got
matured. The same was communicated to the Respondent vide letter dated
17.02.1976.

On 30.06.1976 the
Respondent filed its return for the assessment year 1976-77 and shown Rs.
57,74,064/- as cessation of its liability towards the American Motor
Corporation. After perusal of the return, the Income Tax Officer (ITO)
concluded that with the waiver of the loan amount, the credit represented
income and not a liability. Accordingly, the ITO, vide order dated 03.09.1979,
held that the sum of Rs. 57,74,064/- was taxable u/s. 28 of the Act.

           

Being dissatisfied, the
Respondent preferred an appeal before the Commissioner of Income Tax (Appeals).
After perusal of the matter, learned CIT (Appeals), vide order dated
23.03.1981, dismissed the appeal and upheld the order of the ITO with certain
modifications.

           

Being aggrieved, the
Respondent as well as the Revenue preferred appeals before the Tribunal. The
Tribunal, vide order dated 16.08.1982, set aside the order passed by learned
CIT (Appeals) and decided the case in favour of the Respondent.

           

Being aggrieved, the
Revenue filed a Reference before the High Court at Bombay. In that Reference,
three applications were filed, one by the Assessee and rest two by the Revenue.
Vide impugned common judgment and order dated 29.01.2003, the High Court confirmed
certain findings of the Tribunal in favour of the Respondent.

 

On
further appeal filed by the Revenue, the Supreme Court observed that the short
point for consideration before it was whether in the present facts and
circumstances of the case the sum of Rs. 57,74,064/- due by the Respondent to
Kaiser Jeep Corporation which later on waived off by the lender constitute
taxable income of the Respondent or not?

 

According to the Supreme
Court, the term “loan” generally refers to borrowing something,
especially a sum of cash that is to be paid back along with the interest
decided mutually by the parties. In other terms, the debtor is under a
liability to pay back the principal amount along with the agreed rate of
interest within a stipulated time.

           

The Supreme Court observed
that it is a well-settled principle that creditor or his successor may exercise
their “Right of Waiver” unilaterally to absolve the debtor from his
liability to repay. After such exercise, the debtor is deemed to be absolved from
the liability of repayment of loan subject to the conditions of waiver. The
waiver may be a partly waiver i.e., waiver of part of the principal or interest
payable, or a complete waiver of both the loan as well as interest amounts.
Hence, waiver of loan by the creditor results in the debtor having extra cash
in his hand. It is receipt in the hands of the debtor/Assessee.

           

According to the Supreme
Court, the short but cogent issue in the instant case was whether waiver of
loan by the creditor is taxable as a perquisite u/s. 28 (iv) of the Act or
taxable as a remission of liability u/s. 41 (1) of the Act.

 

The Supreme Court held that
on a plain reading of section 28 (iv) of the Act, prima facie, it
appeared that for the applicability of the said provision, the income which
could be taxed should arise from the business or profession. Also, in order to
invoke the provision of section 28 (iv) of the Act, the benefit which is
received has to be in some other form rather than in the shape of money.

 

In the present case, it was
a matter of record that the amount of Rs. 57,74,064/- was a cash receipt due to
the waiver of loan. Therefore, the very first condition of section 28 (iv) of
the Act, which says any benefit or perquisite arising from the business shall
be in the form of benefit or perquisite other than in the shape of money, was
not satisfied in the present case. Hence, according to the Supreme Court, in no
circumstances, it could be said that the amount of Rs. 57,74,064/- could be
taxed under the provisions of section 28 (iv) of the Act.

           

The Supreme Court further
held that on a perusal of the provisions of section 41(1) of the Act, it was
evident that it is a sine qua non that there should be an allowance or
deduction claimed by the Assessee in any assessment for any year in respect of
loss, expenditure or trading liability incurred by the Assessee. Then,
subsequently, during any previous year, if the creditor remits or waives any such
liability, then the Assessee is liable to pay tax u/s. 41 of the Act.

 

The objective behind this
section was simple. It was made to ensure that the Assessee does not get away
with a double benefit once by way of deduction and another by not being taxed
on the benefit received by him in the later year with reference to deduction
allowed earlier in case of remission of such liability.

           

It was undisputed fact that
the Respondent had been paying interest at 6% per annum to the KJC as per the
contract, but the Assessee never claimed deduction for payment of interest u/s.
(1) (iii) of the Act. In the case at hand, learned CIT (A) relied upon section
41 (1)  of the Act and held that the
Respondent had received amortisation benefit. Amortisation is an accounting
term that refers to the process of allocating the cost of an asset over a
period of time, hence, it is nothing else than depreciation.

 

Depreciation is a reduction
in the value of an asset over time, in particular, to wear and tear. Therefore,
the deduction claimed by the Respondent in previous assessment years was due to
the deprecation of the machine and not on the interest paid by it.

           

Moreover, the purchase
effected from the Kaiser Jeep Corporation was in respect of plant, machinery
and tooling equipments which were capital assets of the Respondent. The said
purchase amount had not been debited to the trading account or to the profit or
loss account in any of the assessment years.

 

There is difference between
‘trading liability’ and ‘other liability’. Section 41 (1) of the Act
particularly deals with the remission of trading liability. Whereas in the
instant case, waiver of loan amounted to cessation of liability other than
trading liability. Hence, according to the Supreme Court, there was no force in
the argument of the Revenue that the case of the Respondent would fall u/s. 41 (1)
of the Act.

 

The Supreme Court dismissed
the appeal of the Revenue.

 

17.  Reassessment – Section 147 of the Act does
not allow the re-assessment of an income merely because of the fact that the
assessing officer has a change of opinion with regard to the interpretation of
law differently on the facts that were well within his knowledge even at the
time of assessment

 

Income Tax
Officer vs. TechSpan India Private Ltd. and Ors. (2018) 404 ITR 10 (SC).

 

TechSpan India Private Ltd.
– the Respondent, was engaged in the business of development and export of
computer softwares and human resource services. It was eligible for deduction
u/s. 10A of the Act.

 

On 25.10.2001, the
Respondent filed its return of income for the assessment year 2001-02 declaring
a loss of Rs. 3,31,301/-. The Respondent, while filing the return for the
aforementioned period, has declared its income from two sources, namely,
software development and human resource development but claimed expenses
commonly for both. It also claimed deduction under Section 10A of the IT Act
for the income from the software development. The said return was accepted and
accordingly intimated to the Respondent.

                       

The return was selected for
regular assessment under Section 143(3) of the Act and a show cause notice
dated 09.03.2004 was issued to the Respondent to show cause as to why the
expenses claimed with regard to the allocation of common expenses between the
two heads, viz., software development and human resource development do not
reveal any basis for such allocation. The issue was duly contested and decided
vide order dated 29.11.2004 and the proceedings ended with a rectification of
the Assessment Order u/s. 154 of the Act while arriving at an income of Rs. 31,63,570/-
which was fully set-off against the loss brought forward and the income was
assessed as ‘Nil’ for the assessment year 2001-2002.

           

On 10.02.2005, a Notice was
served upon the Respondent by the Revenue for re-opening the assessment u/s.
148 on the ground that the deduction u/s. 10A of the Act has been allowed in
excess and the income escaped assessment worked out to Rs. 57,36,811/- in the
original assessment. The Respondent filed a detailed reply objecting to the
re-assessment. However, by order dated 17.08.2005, the objections were rejected
and reassessment was approved by the Revenue.

           

Being aggrieved, the
Respondent challenged the above said show cause notice dated 10.02.2005 as well
as the order dated 17.08.2005 before the High Court. Vide judgement and order
dated 24.02.2006, the High Court set aside the show cause notice dated
10.02.2005 as well as the re-assessment order dated 17.08.2005.

           

Being aggrieved, the
Revenue has filed this appeal before the Supreme Court.

 

According to the Supreme Court,
the only point for consideration before it was whether the re-opening of the
completed assessment was justified in the present facts and circumstances of
the case?

           

The Supreme Court held that
the language of section 147 makes it clear that the assessing officer certainly
has the power to re-assess any income which escaped assessment for any
assessment year subject to the provisions of sections 148 to 153. However, the
use of this power is conditional upon the fact that the assessing officer has some
reason to believe that the income has escaped assessment. The use of the words
‘reason to believe’ in section 147 has to be interpreted schematically as the
liberal interpretation of the word would have the consequence of conferring
arbitrary powers on the assessing officer who may even initiate such
re-assessment proceedings merely on his change of opinion on the basis of same
facts and circumstances which has already been considered by him during the
original assessment proceedings. Such could not be the intention of the
legislature. The said provision was incorporated in the scheme of the Act so as
to empower the Assessing Authorities to re-assess any income on the ground
which was not brought on record during the original proceedings and escaped his
knowledge; and the said fact would have material bearing on the outcome of the
relevant assessment order.

           

According to the Supreme
Court, section 147 of the Act does not allow the re-assessment of an income
merely because of the fact that the assessing officer has a change of opinion
with regard to the interpretation of law differently on the facts that were
well within his knowledge even at the time of assessment. Doing so would have
the effect of giving the assessing officer the power of review and section 147
confers the power to re-assess and not the power to review.

           

To check whether it is a
case of change of opinion or not one has to see its meaning in literal as well
as legal terms. The word change of opinion implies formulation of opinion and
then a change thereof. In terms of assessment proceedings, it means formulation
of belief by an assessing officer resulting from what he thinks on a particular
question. It is a result of understanding, experience and reflection.

           

There is a conceptual difference
between power to review and power to re-assess. The Assessing Officer has no
power to review; he has the power to re-assess. But re-assessment has to be
based on fulfillment of certain pre-condition and if the concept of
“change of opinion” is removed, as contended on behalf of the
Department, then, in the garb of re-opening the assessment, review would take
place.

 

One must treat the concept
of “change of opinion” as an in-built test to check abuse of power by
the Assessing Officer. Hence, after 1st April, 1989, Assessing
Officer has power to re-open, provided there is “tangible material”
to come to the conclusion that there is escapement of income from assessment.
Reasons must have a live link with the formation of the belief.

           

Before interfering with the
proposed re-opening of the assessment on the ground that the same is based only
on a change in opinion, the court ought to verify whether the assessment
earlier made has either expressly or by necessary implication expressed an
opinion on a matter which is the basis of the alleged escapement of income that
was taxable. If the assessment order is non-speaking, cryptic or perfunctory in
nature, it may be difficult to attribute to the assessing officer any opinion
on the questions that are raised in the proposed re-assessment proceedings.

 

Every attempt to bring to
tax, income that has escaped assessment, cannot be absorbed by judicial
intervention on an assumed change of opinion even in cases where the order of
assessment does not address itself to a given aspect sought to be examined in
the re-assessment proceedings.

 

According to the Supreme
Court, the fact in controversy in this case was with regard to the deduction
u/s. 10A of the IT Act which was allegedly allowed in excess. The show cause
notice dated 10.02.2005 reflected the ground for re-assessment in the present
case, that is, the deduction allowed in excess u/s. 10A and, therefore, the
income had escaped assessment to the tune of Rs. 57,36,811. In the order in
question dated 17.08.2005, the reason purportedly given for rejecting the
objections was that the Assessee was not maintaining any separate books of
accounts for the two categories, i.e., software development and human resource
development, on which it has declared income separately.

 

However, a bare perusal of
notice dated 09.03.2004 which was issued in the original assessment proceedings u/s. 143 made it clear that
the point on which the re-assessment proceedings were initiated, was well
considered in the original proceedings. In fact, the very basis of issuing the
show cause notice dated 09.03.2004 was that the Assessee was not maintaining
any separate books of account for the said two categories and the details filed
did not reveal proportional allocation of common expenses made to these
categories. Even the said show cause notice suggested how proportional
allocation should be done.

 

All these things lead to an
unavoidable conclusion that the question as to how and to what extent deduction
should be allowed u/s. 10A of the IT Act was well considered in the original
assessment proceedings itself. Hence, initiation of the re-assessment
proceedings u/s. 147 by issuing a notice u/s. 148 merely because of the fact
that now the Assessing Officer was of the view that the deduction u/s. 10A was
allowed in excess, was based on nothing but a change of opinion on the same
facts and circumstances which were already in his knowledge even during the
original assessment proceedings.

                       

In light of the forgoing
discussion, the Supreme Court held that impugned judgement and order of the
High Court dated 24.02.2006 did not call for any interference. The appeal was
accordingly dismissed with no order as to costs.

From the President

Dear Members,

Thank you for the trust
placed on me by electing me as the President of the Society. I will try my best
to fulfil the expectations of the members. My detailed acceptance speech is
published elsewhere in the Journal and reflects the annual plan focussing on
the prioritisation of BCAS activities to align with the member expectations
from the Society.

 

The month of July, named
after the Roman General Julius Caesar, is a busy month for most chartered
accountants. Immediately after exchanging festive greetings of the CA Day, the
action begins. The month is flooded with a series of tax and compliance
deadlines. With a mandatory late filing fee for personal income tax returns
introduced for the first time, the intensity of work for tax practitioners had
increased manifold. Considering various representations, the Government did it
well to extend the due date by one month. However, do such ad hoc last minute
extensions help or do they only increase the agony of those who religiously
planned their activities and filed the returns in the stipulated time? It is
obvious that such extensions can result in cluttering of personal income tax
returns with the tax audit returns. In effect, such extensions become a ‘curse
in disguise
’.

 

At BCAS, July was a month
full of activities. The Founding Day Lecture by CA. Nilesh Shah on “India –
2019 & Beyond” was full of empirical data, wit and in-depth analysis. Two
lecture meetings, a curtain raiser event on “Internal Audit – Rising to the
Expectations”, an interactive panel discussion on “permanent establishments”,
numerous study circle and study group meetings – all of them received good attendance
and participation. The month saw release of four publications on diversified
topics. The Society was also active in making various representations under the
direct tax law, GST law, FEMA, etc. A detailed report of various activities
conducted by the Society in July is available in the Society News Feature. The momentum of activities will continue in the month of August as well, the
details whereof are available elsewhere in the Journal.

 

July was also a month where
we decided for the first time to open up the soft copy of the BCAJ to general
readers without login. This was a part of a onetime outreach program to
increase both the subscriber base and the advertisement opportunities. The
Journal Committee and the Editorial Board undertake substantial efforts, month
after month, every month to provide the readers content which is crisp,
in-depth and extremely qualitative and relevant. It is now for each of us to
make sure that the fruits of these efforts reach a much wider spectrum of users.

 

July will always be
remembered as the month when the landmark indirect tax reform called GST was
introduced. This being the first anniversary, it was all the more special!
While the reform had its own teething troubles and difficulties, some of which
continue to exist even today, what is important is the positive impact that it
has created for the industry as a whole. Many surveys were conducted last month,
including one by the BCAS. Most of them gave a ‘thumbs up’ to this extremely
controversial reform.

 

July is also a month which
brings rains in abundance. While rains bring in a respite from the hot sultry
weather and envelop Mother Nature with a lush green cover, the story in
metropolitan cities like Mumbai is very different. The rains invariably bring
to forefront the crumbling infrastructure of the city – be it the potholes on
the roads, the inadequacy of the drainage system resulting in waterlogging, the
falling bridges, miserably inadequate public transport and totally chaotic
situation of traffic, the average Mumbaikar bears it all and emerges as a
winner. While from a citizen’s perspective that is the spirit to emulate, from
the Government’s perspective, a lot of introspection and corrective action may
be required.

 

July also started with
anxiety on the face of lakhs of students who aspire to be future chartered
accountants. After all, the results for all the levels of examinations were due
this month. Ultimately, when the results were presented, the feelings of
anxiety were replaced with moments of joy or disappointment. My congratulations
to all the students who cleared the examinations. Enjoy your moments of glory
and get set for the next phase of your journey either as an article student or
as a qualified professional. After all, an examination/result is not a
destination, but merely a milestone in an eternal quest for knowledge. The
Society invites all freshly qualified professionals to become its members.
Through its time tested volunteering model, a strong ethical fabric and the
unwavering faith of its existing membership, the Society will leave no stone
unturned in grooming these young professionals into leaders of tomorrow.

 

As we move closer towards
the Independence Day, it is time perhaps to look at the attribute of
‘independence’ afresh, especially in the context of some of the recent
happenings in our profession. Each profession offers a distinct value
proposition to its stakeholders. Unlike many other professions, in my view, the
unique value proposition of the profession of chartered accountancy is the
assurance offered by the profession about the truth and fairness of the
financial statements. Any compromise on independence, either in form or in
mind, can severely compromise the quality of this assurance and therefore
independence is identified as an inextricable attribute of the audit
profession. It is for each of us to introspect and examine whether we have been
able to not only maintain the highest standards of independence but also
portray the same to all the stakeholders. We may like to defend the few
incidents as aberrations but we cannot make the mistake of disregarding them.
Think we must brainstorm, we must and then execute a proper action plan to
transform the profession. I would be keen to know your inputs on the steps that
we as individuals and the Society as a collective vehicle could take to restore
the pride towards the profession.

 

The profession also cannot
be oblivious to the rapid strides in technology and the impact that it is
likely to have on the profession. Many professions and products have vanished
since they were unable to keep pace with the changing times and technologies.
Adaptation is the key to survival and I am sure our profession will adapt to
the changes in the landscape. The Society will line up a series of events which
address this need of the profession.

 

I would be glad to receive
any feedback or suggestions on the functioning of the Society, events and
publications that you would like to witness, or any other matter concerning the profession.
Do write to me at president@bcasonline.org. 

 

Warm
Regards

 

 

CA.
Sunil Gabhawalla

President

 

Allied Laws

16. Appeal – Condonation of delay –
Mentally disturbed – Prolonged illness and hospitalisation – Sufficient cause
for condonation. [Limitation Act, 1963; Section 5]

 

Ummer vs. Pottengal Subida
and Ors. AIR 2018 Supreme Court 2025

 

There was a delay of 554
days in filing an appeal before the High Court. Hence, the Appellant filed an
application u/s. 5 of the Limitation Act praying for condonation of delay in
filing the appeal.

 

The
High Court dismissed the application for condonation of delay as well as the
appeal. In the opinion of the High Court, the Appellant failed to make out any
sufficient cause for condoning the delay in filing appeal and hence the
application seeking condonation of delay of 554 days in filing the appeal was
not liable to be condoned.

 

It was
held by the Apex Court that the delay in filing the appeal was to be condoned
because of the reasons that appellant was mentally disturbed due to disputes
going on in his family and was not able to attend to his day-to-day duties due
to his old age, prolonged ailments and hospitalisation due to heart disease.

 

17. Assignment of rights – Not a
transfer of Immovable   property.    [Indian  
Stamp   Act,       1899;

Section 2(10), 2(14), 57; Art. 62 &
23 of schedule 1 of the Indian Stamp Act]

 

Kotak Mahindra Bank Ltd.
vs. State of U.P. and Ors. AIR 2018 Allahabad 182 Full Bench

 

The
issue was whether assignment of rights in debt was transfer of immovable
property or movable property?

 

In the
present case, the Assignor in the course of its business advanced financial
facilities to various borrowers, who in turn executed agreement/instrument (s)
of mortgage in lieu thereof.

 

The
Assignee agreed to purchase and acquire the debts from the Assignor with all
rights title and interest of the Assignor and underlying financial instruments,
for a consideration agreed to by the parties.

 

The
High Court observed that debt is purely an intangible property, like,
intellectual property right or goodwill, as against documentary intangibles,
viz., bill of lading, promissory note or bill of exchange, which has to be
claimed or enforced by action and not by taking physical possession thereof, in
contrast to immovable and movable property.

 

The
Court held that the instrument is an instrument of assignment chargeable with
stamp duty under Article 62(c) of Schedule 1-B of the Stamp Act which stated
that chargeability of stamp duty would be on transfer of an interest secured by
a bond or mortgage deed and not on the stamp duty prescribed for immovable
property. 

 

18. 
Limited liability partnership – Jurisdiction – Registrar of Companies –
Only administrative – Cannot adjudicate and resolve issues. [Limited Liability
Partnership Act, 2009; Section  25, 43]

 

Neeraj Kumarpal Shah vs.
C2R Projects LLP and Ors. AIR 2018 Gujarat 80

 

In the
present case, ROC had rejected the form filed for the purpose of change in the
partnership agreement. ROC passed an impugned order, inter alia,
informing the LLP that LLP form No. 3 was examined and marked as invalid and
not taken on record mainly on the ground that the original respondent had filed
interim relief application and therefore the said matter is sub-judice and in
this regard the LLP has not submitted satisfactory reply.

 

The
High Court held that when the prescribed forms are submitted before the ROC for
examination and registration, the ROC is required to consider as to whether the
provisions of the Act of 2008 and the Rules of 2009 are complied with or not.
Thus, the duty of the ROC is of ministerial in nature and he is acting as an
administrative authority. The ROC cannot adjudicate and go into the merits of
the dispute pending between the partners. The ROC has to register the necessary
forms subject to outcome of the proceedings pending before the competent Court
between the concerned partners.

 

19. Partnership – Suit by an
unregistered firm is not maintainable. [Partnership Act, 1932; S.69(2)]

 

Arihant  Rice Industries, Tumkur vs. Shubha-laxmi Venkateswara
Traders, Gangavathi AIR 2018 (NOC) 478 (Kerala)

 

A suit
was filed by plaintiff who was a partnership firm, for recovery of money from
third party. The partnership firm was an unregistered one. The only question
which arose was whether the suit filed by the plaintiff in the Court below was
maintainable in view of section 69(2) of the Indian Partnership Act, 1932?

 

Admittedly,
the plaintiff firm was an unregistered firm, as such, the unregistered firm
cannot maintain a suit in view of section 69 of the Partnership Act. Defendant
further submitted that in order to overcome the said lacuna of non-registration
of the firm, the plaintiff has falsely projected itself as a proprietorship
concern.

 

However,
there was no evidence regarding the dissolution of the partnership firm and
neither notice nor any paper publication for dissolution of firm was carried
out. As such, the plaintiff was still a partnership firm, but not a
proprietorship concern.

 

The
Court held that, since it is held that the plaintiff had failed to prove that
it was a proprietorship concern as at the time of institution of the original
suit and that the plaintiff concern was to be taken as partnership firm, thus
the suit was not maintainable.

 

20. Power of Attorney – genuineness – No
entry is made in the Notary Registrar – Power of attorney is held to be invalid

 

Veljibhai Mavjibhai Mistry
vs. Joitiben and Ors. AIR 2018 (NOC) 479 (Gujarat)

 

The
original owner challenged the genuineness of a power of attorney on the ground
of fraud. No documents in original were produced. The Trial court came to the
conclusion that the execution of the Power of Attorney was not done
simultaneously by all parties and therefore the execution was invalid. There is
no evidence brought on record by the defendants to show as to when the Notary
actually signed and stamped the document or made entries in the Notary
Register.

 

In
light of the same, the Court held that due to various contributing factors,
individually and collectively, suggested that the exercise of execution of the
Power of Attorney apart from its manner showed that the entire transaction was
founded on fraud.

 

Having held the
Power of Attorney to be an invalid document, the consequential transaction of
sale is also bad.

 

Society News

Meetings of Intensive Study Group on GST held
on 9th , 10th , 30th , 31st March, and 20th, 21st, 27th
and 28th April, 2018 at BCAS Conference Hall.

To understand the GST law, Intensive Study Group
conducted eight meetings during the month of March and
April, 2018 at BCAS Conference Hall where the following
topics with relevant sections were discussed by the mentors:

Definitions and Levy: Sections 1, 2, 9, 10 & 11 of CGST
Act, Sections 1, 2, 5, 6, 7, 8, 9 of IGST Act : CA. Naresh
Sheth, CA. A. R. Krishnan, CA. Janak Vaghani.

Supply-1st Session: Section 7 of CGST Act, Schedule I,
II, III & IV (Excl. Sch. 1 Entry 2): CA. Naresh Sheth, CA.
Parind Mehta, CA. S. S. Gupta, CA. Jayraj Sheth.

Supply-2nd Session: Section 8, Principles of Classification-Relevant Notifications, SCH. 1 Entry 2: CA. Naresh Sheth, CA. Deepak Thakkar, CA Sushil Solanki.

Input Tax Credit: Section 16 to 21 of CGST Act: CA.
Naresh Sheth, CA. Parind Mehta, CA. Mandar Telang.

Place of Supply: Section 10 to 14 of IGST Act: CA. A. R.
Krishnan, CA. Deepak Thakkar, CA. Udayan Choksi,
CA. Rajat Talati, CA. Jayraj Sheth.

Time and Value of Supply and RCM: Section 12, 13, 14
and 15 of CGST Act and RCM Notifications: CA. Parind
Mehta, CA. Samir Kapadia, CA. Puloma Dalal.

Select Procedural Provisions: Section 22-25, 31, 34,
35, 54, 73, 74, 75, 107 and 111 of CGST Act: CA. Janak
Vaghani, CA. Udayan Choksi, CA. Rajiv Luthia.

Offences and Penalties: Sections 122-138 of CGST
Act: CA. Samir Kapadia, CA. Sushil Solanki, CA. Sunil
Gabhawalla.

There was an in-depth discussion on all the topics by the
learned and experienced mentors.
It was highly appreciated by the members. Members also
shared their practical experience during discussion which
benefited all present for the meeting.

INDIRECT TAX LAWS STUDY CIRCLE

Study Circle Meeting on GST held on 15th May,
2018 at BCAS Conference Hall

The Indirect Tax Laws Study Circle organized a meeting at
BCAS Conference Hall to discuss certain recent landmark
decisions pertaining to the Service Tax regime, relevant
to GST Law, which was chaired by Advocate Bharat
Raichandani. The Speaker discussed various judgements
quiet relevant in the day to day professional obligations of
the assessees namely Builder Association of Navi Mumbai
vs. UOI (Bom HC), Shri Krishna Chaitanya Enterprises
(Kumar Beheray) (Bom HC), Cellular Operators Association
vs. Union Of India And Another (Del HC), and Coimbatore
Corporation Contractors Welfare Assn. (Mad HC).

Advocate Raichandani provided in depth analysis of
these decisions and also explained his views on possible
implications of these decisions in the GST regime.

The meeting was well appreciated by the participants who
benefitted a lot from the session.

Full day seminar on “Assessments,
Reassessments and Appeals” held on 26th May,
2018 at BCAS Conference Hall

The Taxation Committee organised a full day Seminar
on Assessments, Reassessments and Appeals on 26th
May, 2018 at Indian Merchants Chamber, Mumbai. The
event saw attendance of over 120 participants including
outstation participants. President Narayan Pasari gave
the opening remarks.

Following topics were taken up at the Seminar by the
Speakers:

Assessment / Reassessment /
Penalty Proceedings – The Why,
What and How – Practical aspects
of the art of representation before
tax authorities: CA. Manish Shah
commenced the session with
practical and important aspects of
assessment proceedings. He cited
various examples and case studies to explain and guide the
participants in selecting best approach in a given situation.
He also provided insights on what are the recent changes
and the Do’s and Don’ts one should keep in mind while
attending assessment proceedings. The Speaker also
explained reassessment proceedings with the help of case
studies and the procedure for making an application under
RTI Act and how it can be useful.

Appeals – The art of making a
winning impression before CIT (A)
/ ITAT- Tips on drafting of appeals
and Representation: CA. Rajan
Vora explained about the appellate
mechanism under the Act and practical
aspects about appeals. He also
enlightened on what are the powers of
CIT (A) and ITAT and their limitations. He further covered a
wide range of issues on the subject right from filing fees to
the procedure of appeals before CIT (A) and ITAT.

Appeals – The view from the other
side – First-hand experience of
departmental officers – guidance
to CAs on how to improve their
representation skills: Adv. Girish
Dave (Retired CCIT) spoke on
appeals and also about command
over English language and gave tips
on how one should have effective communication with the
CIT (A) and ITAT members. He discussed on the couple
of landmark judgements and shared his insights on how to
draft grounds of appeal. He also explained the importance
of cross examination and shared his thoughts on Civil
Procedure Code and Miscellaneous Applications.

Search, Seizure and Survey – How to handle the
situation and comply with the law and precautions to
be taken while drafting replies to
the notices: CA. Dilip Lakhani took
the session on Search, Seizure and
Survey and explained how to handle
the situation, how one should comply
with the law and precautions to be
taken while drafting replies to the
notices. He shared his experience on
the subject dealing with various complex cases and issues
and gave insights on penalty, search and release of seized
assets. He also gave practical tips and Do’s and Don’ts one
should keep in mind after the search.

E–Assessments – Understanding
the nuts and bolts: – CA. Ishraq
Contractor took the session on
E-assessments. He spoke about
how the new system of conducting
assessments is grappling with
various serious issues. He discussed
the background, advantages and
challenges regarding E- Assessments and displayed various
screenshots of the interface used for E-Assessments.

ITAT Representation – Expectations
from Representatives and tips
on improving the skills:- Mr. G S
Pannu (ITAT Member) shared his
views on the expectations from the
representatives appearing before the
Appellate Tribunal. He expressed
his views and guidance on the skills
one should possess for representing before the ITAT. He
also shared his experience and his journey from being a
Chartered Accountant in practice to an ITAT member.

Experts Chat – Appeals before CIT(A), ITAT – Preparation,
Submission and Representation:- The final session was an
expert’s chat between Mr. C.S. Gulati and CA. Dilip Lakhani
moderated by CA. Ameet Patel who asked both the esteemed
faculties various questions on the law and procedural part of
assessments and appeals. Both the experts were frank and
shared their views on the questions asked.

The sessions in the Seminar were highly interactive and
the speakers shared their insights on the subjects dealt by
each one of them. The participants benefited immensely
with the guidance and practical views on various issues by
the faculties.

Lecture Meeting organised by BCAS jointly with
IIA Bombay Chapter on “Corporate Governance
– Role of Independent Directors” held on 6th
June 2018 at BCAS Conference Hall

A Lecture Meeting on the topic ‘Corporate Governance
– Role of Independent Directors’ was held at the BCAS
Conference Hall on 6th June, 2018.addressed by CA.
Nawshir Mirza.

BCAS President, CA Narayan Pasari
in his opening remarks underlined
the pivotal role played by a vibrant
corporate governance structure in
bolstering India’s economic growth.
He remarked that while over the last
decade, lawmakers in India have been
extremely cognizant of its importance,
in recent times sadly, even in the most reputed listed Indian
companies, the corporate governance practices have
raised certain concerns and questions.

IIA-BC President, CA. Burzin Dubash presented interesting
statistics relating to directors, independent directors, women
directors, age analysis of directors, etc. in Corporate India.

CA. Nawshir Mirza, in his presentation, spoke candidly on
the topic of Indian boards’ performance and independent
directors. He mentioned that Corporate India has principally
one expectation from its independent directors – to add
value to the board they sit on, and most often than not,
this is measured in terms of the difference that they can
make in furthering growth and business of the corporate. An
independent director, he said, must display wisdom while
balancing the conflict of interests of various stakeholders.

He spoke about the influences on boardroom behaviour,
more specifically, capitalism, human psychology and,
especially Indian culture and business families. He opined
that as people, Indians are highly individualistic, shy away
from openly disagreeing, are respectful of elders, while
being mindful of the need to adjust and accommodate –
all this has an undeniable influence on many boardroom
proceedings. In the Indian boardrooms, to question or offer
an opinion in contrast with that of the majority shareholder,
is often not welcomed, he said. This, he stated, is in sharp
contrast to the western world which encourages team work,
while also respecting an individual’s right to dissent without
being intimidated by elders or others in power.

As an independent director, one must possess the courage
to think, speak and act – and to do that effectively, the
triangle of thoughts, words and actions must be in sync,
he said. He offered that courage is the most important of
all virtues, because without courage you can’t practice any
other virtue consistently.

CA. Nawshir Mirza’s presentation was followed by an
engaging round of Q&A.

In answer to a question relating to performance evaluation,
he confided that an informal way of doing so had yielded
interesting answers; in this, each board member was asked
his/her opinion regarding the others on the following 3
questions –

  • What did he/she do good?
  • What could he/she do better?
  • What should he/she stop doing?

The event witnessed an impressive turnout and benefited
all present.

SUBURBAN STUDY CIRCLE

Suburban Study Circle Meeting on “Changes in
Income Tax return forms – A.Y: 2018-19” held
on 7th June, 2018.

The Suburban Study Circle organized a meeting on
Changes in Income Tax return forms for the A.Y: 2018-
19 on 7th June, 2018 at Bathiya & Associates, Andheri which
was addressed by CA. Kinjal Bhuta.

The Speaker made a detailed presentation on the following
issues concerning the ITR Forms after the new amendments
namely: a) Applicability of the ITR forms as the assessee
generally makes mistake during selection of ITR form.
b) Major changes and additional details for presumptive
scheme c) General and miscellaneous changes across all
ITR’s. The speaker also discussed how to avoid mistakes
and gave tips for filling ITRs smoothly and shared practical
examples on filling returns.

The session was a good learning experience for the
participants.

ITF STUDY CIRCLE

Study Circle Meeting on “Make Available-
Discussion and Case Laws” held on 8th June,
2018 at BCAS Conference Hall

International Taxation Committee conducted a meeting on
“Make Available concept and related Case Laws” on 8th
June, 2018 at BCAS Conference Hall. The meeting was
led by Group Leaders CA. Nilesh Lilani and CA. Siddharth
Parekh who explained the far reaching impact of Make
Available Concept as it limits the scope of Fees for Technical
Services (‘FTS’) / Fees for Included Services (‘FIS’) clause
in Double Tax Avoidance Agreements (‘DTAA’).
The Group Leaders commenced the meeting by explaining
the possible scenarios in DTAA in relation to FTS Article
along with discussion on FIS under Indo-US treaty. They
also deliberated the significance of word “which” being
relative pronoun, connecting the word “services” with “make
available”, tests for considering whether or not services
“make available”, technical knowledge, experience,
skill, know-how or processes etc, correlating the initial
expression in FTS/FIS Article such as “consideration for”
with subsequent clauses in the Article, comparison of explicit
wording in India- Singapore Treaty with other countries
treaty, implication of most favoured nation clause in protocol
of treaties etc. After deliberation on concept, various judicial
precedents on the subject matter were discussed.
The meeting was very interactive and the participants got
enormously enlightened from the discussion and insights
provided by the learned speakers.

Noble Social Cause Visit – Vadodara – on 14th &
15th June, 2018

The fortunate 14 volunteers from BCAS got an opportunity
of an uplifting and inspiring 2 day visit to two NGOs:
Muni Seva Ashram at Goraj and Ashaktashram Society
at Dakor, both located in Vadodara District. This noble
social visit was organised by the HDTI Committee of BCAS
jointly with BCAS Foundation.

Muni Seva Ashram at Goraj, Dist. Vadodara

This more than 3 decade old Ashram , generates 70%
of its resources in-house and is an impressive model for
sustainable use of technology generating bio-gas, solar
energy besides also into organic farming. The huge campus
of 300 acres operates programs focussed on agriculture,
education and medicine – a nationally renowned Cancer
Hospital, a big Senior Citizen Centre, school from
Kindergarten to Grade 12, Bhagini mandir for the mentally
challenged, huge Gaushala (cow-shed) and many more.
The Ashram has evolved from a small hut set up by founder
Late Anuben Thakkar to a fairly large campus with selfless
efforts of Dr. Vikram Patel who gave up his budding medical
career for a noble cause considering this ashram as his
place of worship. The most striking feature of this institute
is that nothing is free but every service is on pay-what-youcan
basis! The deficits are made up by generous donations
from well-wishers.

Ashaktashram Society at Dakor, Dist. Vadodara

In the year 1982, the protagonist Late Shri Keshavlal R.
Shah was inspired to build a place where elders can live together till their life. They all live here in complete harmony
like an extended family. Special care is been taken to
meet the medical needs of these elderly by having an inhouse
dispensary and physio care centre. The elderly here
joyfully celebrate all the festivals and also go together for an
annual vacation.

The present President of the Trust, Shri Chandravadan
Shantilal Shah is immensely contributing by giving his
valuable time for the upkeep of this institution.
All the volunteers were deeply moved by hospitality of the
Ashramwasis & serene blissful atmosphere of both the
Ashrams. It was indeed an elevating journey for all the
volunteers who were touched by the caretaker’s love &
warmth for the Ashramwasis, as all the girls at the school
for mentally challenged were referred to as Dikri (daughter
in Gujarati) and the elderly were respectfully addressed as
Maa and Dada.

The generous donation collected by the volunteers through
BCAS Foundation were donated in form of 2100 notebooks
to the Muniseva Ashram Schools, 100 bedsheets to
Ashaktashram and balance contribution to the general fund
of these Ashrams.

All the volunteers returned inspired with fond memories of
the soulful trip and a determination to devote more time for
such noble causes.

Representation

5th
June, 2018

 

 

To

 

Mr.
Sushil Chandra

The
Chairman,

Central
Board of Direct Taxes,

Ministry
of Finance,

Government
of India,

North
Block,

New Delhi
110 001.

 

Dear Sir,

 

Sub: Notification No. 23/2018 dated 24th
May, 2018 amending Rule 11UA of the Income-tax Rules, 1962

We are voluntary bodies of Chartered
Accountants with membership from across India with a combined membership of
more than 14,000 CAs. We would like to place before you a representation on
behalf of our members in connection with the recent notification issued by the
CBDT amending Rule 11UA of the Income-tax Rules, 1962.

 

As per the said amendment, the term
“Accountant” has been omitted from clause (c) of sub rule (2) of Rule 11UA.
Thereby, effectively, valuation of unlisted shares and securities can now be
done only by registered merchant bankers.

 

This amendment is not in the interest of the
tax payers of the country. It is a known fact that the number of registered
merchant bankers (for the purpose of Rule 11UA) is very small. Tax payers have
generally been approaching Chartered Accountants for this purpose. The
Institute of Chartered Accountants of India (ICAI) has taken several
initiatives in the recent past to encourage its members to learn and attain
expertise in the field of valuation. Valuation Standards have been prescribed
by the ICAI to help Chartered Accountants in discharging their duty as valuers.

 

Apart from this, even under the Companies
Act, 2013, Chartered Accountants have been recognised as being eligible for
registration as valuers as laid down in section 247 of the said Act.

 

Further, in the various regulations issued
under the Foreign Exchange Management Act, 1999 also, valuation (including
valuation as per DCF method) by Chartered Accountants has been recognised for
long.

 

The Wealth-tax Rules too recognise Chartered
Accountants as being eligible for providing valuation reports.

 

In light of the above, it is indeed shocking
for us to note the sudden amendment in Rule 11UA derecognising Chartered
Accountants as valuers. No reasons are forthcoming for this amendment.

 

Therefore, on behalf of the tax paying
community of India, and on behalf of the tax professionals who assist the tax
payers in honestly complying with the tax laws of the country, we strongly urge
you to withdraw the amendment to Rule 11UA of the Income-tax Rules, 1962 and to
reinstate the position as it existed prior to the amendment.

 

Assuring you and the Government of India our
fullest support in the massive nation building exercise that is in progress,

 

We remain,

 

Yours sincerely

 

Sd/- 

Narayan Pasari                                                           Chintan
Doshi

President                                                                        President

Bombay
Chartered Accountants’ Society             Ahmedabad Chartered
Accountants’ Association

 

 

Sd/-                                                                            
                                       Sd/-

Raghavendra
T.N.                                                        Gyanesh Verma

President                                                                    
                                       President

Karnataka
State Chartered Accountants’                     Lucknow
Chartered Accountants’

Association                                                              
Society

 

Miscellanea

1. Economy

 

As a countermeasure, India hikes import duty on 29 US
products

 

A
Finance Ministry notification said the duty hike would come into effect
immediately for 28 products, while for the marine product, artemia, the
increased duty would be effective from August 4.

 

In a
retaliatory move against the recent US import duty hikes, India on 21 June 2018
raised customs duty on 29 products, including on iron and steel products
imported from the US.

 

In
March, US President Donald Trump slapped import tariffs of 25 per cent on steel
and 10 per cent on aluminium, unfolding the prospect of an all-out global trade
war. China retaliated in April, imposing tariffs as high as 25 per cent on 128
American products.

 

India
has sought an exemption from the US tariffs along the lines the US has allowed
to the European Union, Argentina, Australia, Brazil, Canada, Mexico and South
Korea.

 

In
Thursday’s hike by India, duty on flat rolled products on iron has been raised
to 27.50 per cent from 15 per cent earlier, while certain flat rolled products
on stainless steel will now attract 22.50 per cent duty as against 15 per cent
earlier.

 

Import
duty on chickpeas, Bengal gram (chana) and masur dal has been increased to 70
per cent, from 30 per cent earlier, while that on lentils has been raised to 40
per cent from 30 per cent.

 

Shelled
almonds from the US will now attract import duty at Rs 120 per kg, as compared
to Rs 100 earlier. Almonds in shell will now be levied import duty at Rs 42 per
kg as against Rs 35 earlier.

Shelled
walnut will now attract customs duty at the rate of 120 per cent, as against 30
per cent earlier.

 

Apples
will attract import duty of 75 per cent as compared to 50 per cent earlier.

 

Import
duty on American phosphoric acid has been raised to 20 per cent, from 10 per
cent each earlier, while the duty on diagnostic reagents has also been doubled
to 20 per cent.

 

Customs
duty on artemia, a type of shrimp, has been hiked to 30 per cent with effect
from August 4.

 

For
automobiles and earth moving equipment, SIM sockets and other metallic
mechanical items for use in manufacture of mobile phones, the duty has been
hiked to 25 per cent, from 15 per cent previously.

 

During
his official visit to Washington last week, Commerce Minister Suresh Prabhu
said that India and the US had agreed to hold official talks soon to address
the trade and economic irritants between both nations.

 

This
decision was taken during a series of meetings Prabhu had with US Commerce
Secretary Wilbur Ross and US Trade Representative Robert Lighthizer in
Washington during the Indian Minister’s visit from June 10 to 12.

 

(Source: International Business Times dated 21.06.2018)

 

Sistema exits Reliance Communications; sells its 10
percent stake

 

Russia’s
Sistema JSFC has become the latest foreign operator to exit the troubled Indian
telecom market, by selling its 10 percent stake in Reliance Communications in
multiple tranches over the past few months. The Russian conglomerate has
reportedly lost $ 4 billion on its investments.

Sistema
JSFC is believed to have decided against the idea of buying RCom’s remaining
telecom assets, comprising subsea cables, enterprise business and data centres,
following the divergence of opinion with the Anil Ambani-led telco.

 

Sistema
JSFC decided to exit RCom after the struggling telco recently got entrapped in
insolvency proceedings. It decided against making ambitious investments in
India’s brutally competitive and fast consolidating telecom market, having
already burnt its fingers.

 

In
October 2017, Sistema Shyam Teleservices (SSTL) was sold to Reliance
Communications in return for a 10 percent stake. RCom has also since closed
down its wireless business amid plunging revenue and mounting losses due to
intense competition, and operates only an enterprise business, besides running
data centres and sub-sea cables.

 

At the
time of the merger of RCom-SSTL, RCom shares were hovering at Rs 80 apiece in
early November 2015 but collapsed to around Rs 17 when the deal was finally
completed in late October 2017.

 

On
Wednesday, it gained over 4.8 percent over the previous close to end at Rs
15.30 apiece on the Bombay Stock Exchange. In past months, Sistema has
gradually reduced its stake in RCom. It lowered its stake to 7.09 percent by
letting minority shareholders swap their shares with those of RCom in March.

 

In
April and May, it sold off a further 2.1 percent and 0.55 percent respectively
in the open market, lowering its equity holding in RCom to 4.43 percent. The
development was seen on the expected lines as the telecom sector in the country
is witnessing a huge consolidation and stiff competition.

 

The
entry of Reliance Jio by offering attractive discounts on calls and data has
violently disrupted the entire telecom markets. The competition is expected to
become stiffer in the upcoming days.

 

(Source: International Business Times dated 21.06.2018)

 

2. 
Regulation

 

Auditor Exodus: When the regulator does its job, it
cleans the system!

Even
as investment experts are busy totting up the number of auditors that have
resigned this financial year (37 at latest count, according to Prime Database),
the big audit firm that triggered such an exodus, is facing the whiplash of
regulatory action around the world. On 13th June this year,
PricewaterhouseCoopers (PwC) was fined £6.5 million and severely reprimanded
for admitted misconduct, by the Financial Reporting Council (FRC), UK’s (United
Kingdom’s) accounting regulator.

 

PwC’s
audit partner, Steven Denison, was fined £325,000 and was banned from audit
work for 15 years. This was over the audit of BHS, a department store chain,
which collapsed a year after the PwC signed off on the audit in 2016. PwC, on
its website, accepts and apologises for “serious shortcomings with this audit
work,” but says that its “failings did not contribute to the collapse of BHS
over one year later…” The regulator has also asked PwC to ensure that all
audits of non-listed or high-profile companies are subject to ‘engagement
quality control review’.

 

PwC,
as expected, has contested the order and its global chairman, Robert E Moritz,
has complained to the media about our slow legal processes, and how the firm
has moved on after the Satyam scam and made amends. But, it is in for another
long battle, while the damage to its business is immediate. The SEBI action has
been a body blow, because it has come at a time when all major consulting firms
have seen their business boom in the past four years. The impact of SEBI’s
order is so huge that industry sources say some senior partners are looking to
exit the firm. No wonder, getting rid of shady accounts is clearly the first step, for PwC as well as other accounting
firms.  

 

The
lesson from this widespread reaction to SEBI’s action is not unique. It is a
well-accepted principle of law that exemplary financial punishment has a
salutary impact on the entire system. The effect of SEBI’s action across
corporate India only proves this. On the other hand, reputational damage
doesn’t bother large companies as much. They have become adept at countering it
through image and media management. Their large advertising and PR budgets and
ability to sponsor media events makes this a cakewalk. If SEBI sticks to its
tough stand, chairman Ajay Tyagi would have triggered the biggest clean-up of
corporate balance sheets in decades. If he succeeds in his fight to get banks
to report corporate defaults immediately to stock exchanges, he would create
history in terms of improving corporate governance and accounts.

 

Ironically,
the Ministry of Corporate Affairs (MCA) has, finally, woken up to its own role
in regulating audit firms and has constituted an inquiry into the reasons for
the flood of resignations in June. Meanwhile, media reports attribute the exits
of auditors to three other factors apart from the SEBI’s order against PwC.
They are: 1) the possibility of forensic audits being ordered under the
Insolvency and Bankruptcy Code; 2) auditors having to explain exits following
recommendations of the Kotak Committee on Corporate Governance; and 3) the fear
that the National Financial Authority of India (NFAI), as a brand new
independent auditor, will be much tougher than the Institute of Chartered
Accountants of India (ICAI).

 

But
these reasons are too vague to even trigger a renunciation of business by any
audit firm. My own feedback from industry experts is that the SEBI order
against PwC is the single biggest reason for the so many auditors ditching
companies that they are not comfortable with. Ameet Patel, a well-known chartered
accountant, points out that many audits were taken up without proper due
diligence and the companies have now started waking up to the risks involved.

 

R.
Balakrishnan, former fund manager, investment analyst and Moneylife columnist,
also agrees that fear is the key. “Finally there is punishment. Auditors who
were friends with companies and signed first and read the accounts later have
turned cautions,” he says. Nikhil Vadia, another reputed tax expert, has an
additional point. He says, “Rule 9 of the Companies Audit and Auditors Rules
2014 has been dropped on 7 May 2018. Under this rule, the liability for an
audit (including criminal liability) would devolve only on the specific partner
who acted in a fraudulent manner. After the rule has been dropped, the
liability devolves on the entire firm and all partners are liable.” This, along
with the SEBI action in PwC, had triggered the auditor exits.

 

Top
Auditor Exits: 37 and Counting in 2017-18

 

Price
Waterhouse & Company (PwC) resigned from Vakrangee Limited citing
inadequate information on several matters provided by management.

 

Deloitte Haskins & Sells resigned as auditor of Manpasand Beverages also
saying ‘significant information’ sought by it was not provided.

 

PwC
resigned  from Atlanta Ltd, a
construction and infrastructure company.

 

Sai
Kanwar and Associates resigned from Fourth Dimension Solutions citing health
reasons.

 

V.
Shivkumar and Associates were disqualified by ICAI.

 

Ravindra Sharma and Associates quit Hanung Toys due to “preoccupation with
other assignments”.

 

Patankar & Associates quit as auditors of Inox Wind on 9 June saying it was
‘logistically difficult’ to continue
the audit.

 

A top
international consultant says, after SEBI’s action, most big audit firms have
begun to believe that it is best to resign even if there is a whiff of an issue
with a company. He also points out how this is bad for companies because if the
auditor resigns they are “presumed guilty and have to prove their innocence.”
In fact, there is another lesson here.

 

SEBI’s
order in the PwC-Satyam case has had a bigger impact than all the mindless
red-tape and form-filling that it has introduced after three corporate
governance committee reports that it commissioned over the past two decades. In
fact, SEBI’s corporate governance rules have placed such onerous
responsibilities on independent directors and audit committees (although it is
a open secret that they have no real truck with the actual working and
management of a company) that it has only created more business for more audit
and compliance experts that the board relies on. This imposes additional costs
on listed companies.

 

Finally,
there is the issue of timing. A new round of discussions on corporate
governance, action against PwC in India and UK, and the changed regulatory
oversight on Indian auditors — all have come in the space of a few months,
leading to a significant impact. It could well be the beginning of a
much-needed strong oversight on companies that statutory auditors get paid to
perform on behalf of shareholders, but have rarely done. 
 

 

(Source:
Moneylife News & Views dated 15.06.2018)

Statistically Speaking

Vital  statistics 
pertaining  to  the 
“Report  of the  Comptroller and Auditor General of India for
the year ended March 2017” published in 2018 are covered below:

 

1.   
Gross Expenditure by sectors of
General, Social and Economic Services and their autonomous bodies/corporations

 

S.no

Name of Ministry

2014-15

2015-16

2016-17

1.

Agriculture

26,572.32

22,778.34

48,997.61

2.

Ayurveda,
Yoga & Naturopathy, Unani, Siddha and Homoeopathy

685.19

1,112.14

1,292.60

3.

Chemicals
and Fertilizers

75,411.37

77,966.79

70,604.54

4.

Civil
Aviation

6,626.28

4,168.10

3,405.79

5.

Coal

1,572.50

1,669.72

1,338.04

6.

Commerce
and Industry

7,438.02

7,400.47

6,507.48

7.

Consumer
Affairs, Food and Public Distribution

1,29,663.57

1,62,384.89

1,47,333.84

8.

Corporate
Affairs

226.23

404.48

397.28

9.

Culture

2,069.19

2,011.83

2,302.55

10.

Development
of North Eastern Region

1,761.01

2,036.68

2,543.61

 

2.    Delays in submission of
accounts by central autonomous bodies

 

 

 

 

2.   
Status of laying of the audited
accounts in the Parliament

 

Year of account

Total number of bodies for which audited accounts
were issued but not presented to Parliament

Total number of audited accounts presented after
due date

2013-14

01

Nil

2014-15

01

04

2015-16

39

62

 

 

 

 

4.    Utilisation Certificates
Outstanding as on 31 March 2017

 

As per the General Financial Rules,
certificates of utilisation in respect of grants released to statutory
bodies/organisations are required to be furnished within 12 months from the
closure of the financial year by the bodies/organisations concerned. The
position of outstanding utilisation certificates with significant money value
relating to 10 Ministries/Departments as of March 2017 is given in the table
below:

 

5.    Flow of funds held in
Central Fund during 2012-13 to 2016-17

 

Audit examination of Central Fund of EIC at
EIA, Kolkata revealed that huge funds were lying idle for years together in the
savings bank account without any effort to ensure their prudent utilisation.
The year-wise position of inflow and outflow of funds held in the Central Fund
during the last five years ended 2016-17 is shown in Graph below:

 

From Published Accounts

Assumption
of ‘Going Concern’ basis for preparation of financial statements for the year
ended 31
st March
2018 and reporting thereon in independent auditor’s report for SEBI LODR
regulations

 

Jet Airways (India)
Ltd.

From Notes to financial results

The
Company has incurred a loss during the year and has negative net worth as at 31st
March, 2018 that may create uncertainties. However, various initiatives
undertaken by the Company in relation to saving cost, optimise revenue
management opportunities and enhance ancillary revenues is expected to result
in improved operating performance. Further, our continued thrust to improve
operational efficiency and initiatives to raise funds are expected to result in
sustainable cash flows addressing any uncertainties, accordingly, the statement
of financial results continues to be prepared on a going concern basis, which
contemplates realisation of assets and settlement of liabilities in the normal
course of business including financial support to its subsidiaries.

 

From auditor’s report

Emphasis of Matter

We
draw attention to Note 13 of the annual standalone financial results regarding
preparation of the annual standalone financial results on going concern basis
for the reasons stated therein. The appropriateness of assumption of going
concern is dependent upon realisation of the various initiatives undertaken by
the Company and/or the Company’s ability to raise requisite finance/generate
cash flows in future to meet its obligations, including financial support to
its subsidiary companies. Our opinion is not modified in respect of this
matter.

 

Reliance
Communications Ltd.

From Notes to financial results

The
Company was engaged with Joint Lenders’ Forum (JLF), constituted on June 2,
2017 and under standstill period till December 2017 pursuant to the Strategic
Debt Restructuring Scheme (SDR Scheme) of Reserve Bank of India (RBI).
Consequent to circular of 1 February, 2018 of RBI, the Company continued to
work closely with the Lenders to finalise an overall debt resolution plan.
Pursuant to strategic transformation programme, as a part of debt resolution
plan of the Company under consideration, inter alia of the Lenders, the
Company and its subsidiaries; Reliance Telecom Limited (RTL) and Reliance
lnfratel Limited (RITL), with the permission of and on the basis of suggestions
of the Lenders, had for monetisation of some specified Assets, entered into
definitive binding agreements with Reliance Jio lnfocomm Limited (RJio) on
December 28, 2017 for sale of Wireless Spectrum, Towers, Fiber and Media
Convergence Nodes (MCNs). Further, the Company has also entered into a
definitive binding agreement with Pantel Technologies Private Limited and
Veecon Media and Television Limited for sale of its subsidiary company having
DTH Business. The Company and its said subsidiaries expected to close these
transactions in a phased manner. In the meanwhile, Hon’ble National Company Law
Tribunal (NCLT), Mumbai has, overruling the objections of the Company as also
its lenders represented by State Bank of India, the lead member, vide its order
dated May 15, 2018 admitted applications filed by an operational creditor for
its claims against the Company and its subsidiaries; RTL and RITL and thereby
admitted the companies to debt resolution process under the Insolvency and
Bankruptcy Code, 2016 (IBC). As a consequence, Interim Resolution Professionals
(IRPs) were appointed vide NCLT’s order dated May 18, 2018. The Company along
with the support of the lenders filed an appeal with Hon’ble National Company
Law Appellate Tribunal (NCLAT) challenging the order of NCLT admitting the Company
to IBC proceedings. The Hon’ble NCLAT, vide its order dated May 30, 2018,
stayed the order passed by NCLT and consequently, the Board stands reinstated.
Further, Minority Shareholders holding 4.26% stake in RITL had accused the
management of RITL of “Oppression of minority shareholders and
mismanagement” and filed a petition in NCLT. Based on an amendment to the
Petition, the NCLT stayed RITL’s proposed asset sale (Tower and Fibre). The
parties have subsequently settled the dispute and the restriction on sale
stands vacated pursuant to order admitting RITL to the IBC proceeding is
vacated. The Company is confident that a suitable debt resolution plan would be
formulated along with its lenders as per the strategic transformation
programme. Considering these developments, the financial results continue to be
prepared on going concern basis. This matter has been referred to by the
Auditors in their Audit Report.

 

From auditor’s report

We
draw attention to Note 7 of the standalone Ind AS financial results, regarding
the Definitive Binding Agreement for monetisation of assets of the company
& its two subsidiaries and National Company Law Appellate Tribunal (NCLAT)
order dated 30th May 2018 staying the NCLT order dated 15th
May 2018 admitting the Company under Insolvency and Bankruptcy Code (IBC),
2016. The Company is confident that a suitable resolution plan would be
formulated by lenders in view of order admitting the Company under IBC
proceedings is vacated/stayed, accordingly financial results of the Company have
been prepared on going concern basis. Our opinion is not modified in respect of
the above matters.

 

Tata Teleservices
(Maharashtra) Ltd

From Notes to financial results

The
accumulated losses of the company as of March 31, 2018 have exceeded its
paid-up capital and reserves. The company has incurred net loss during the year
ended March 31, 2018 and the company’s current liabilities exceeded its current
assets as on that date. The company is in discussion for monetisation of
certain assets, proceeds of which will be used to meet its financial
obligations as and when they fall due. Further, the company has obtained a
support letter from its promoter indicating that the promoter will take
necessary actions to organise for any shortfall in liquidity in the company
that may arise to meet its financial obligations   and  
timely   repayment  of  
debt   during  the 12 months from balance sheet date.

 

From auditor’s report

No
remarks

 

Sri Adhikari
Brothers Television Network Ltd.

From Notes to financial results

During
the year ended 31st March 2018, the company’s loan facilities from
banks has turned Non performing. Management of the company has submitted its
resolution plan, which is under consideration with the banks. The management of
the company is focussing on growth in cash flow and is quite confident to reach
some workable solution to resolve the financial position of the company.

 

From auditor’s report

We
draw attention to Note 6 regarding preparation of results on going concern
basis notwithstanding the fact that loans have been recalled back by secured
lenders, current liabilities are substantially higher than the current assets
and substantial losses incurred by the company during the financial year ending
31st March 2018. The appropriateness of assumption of going concern
is mainly dependent on approval of company’s resolution plan with the secured
lenders, company’s ability to generate growth in cash flows in future, to meet
its obligations.

 

Our
opinion is not modified in respect of the matter stated in the above paragraph.

 

Spice Jet Ltd.

From Notes to financial results

The
Company has been consistently profitable for the last three financial years, as
a result of which the negative net worth of Rs. 14,852 million as on March 31,
2015 has substantially improved, and is only Rs. 429.7 million as on March 31,
2018. The Company’s net current liabilities have also reduced by similar
amounts. The earlier position of negative net worth and net current liabilities
was the result of historical market factors.

 

As a
result of various operational, commercial and financial measures implemented
over the last three years, the Company has significantly improved its liquidity
position, and generated operating cash flows during that period.

 

In
view of the foregoing and having regard to industry outlook in the markets in
which the Company operates, management is of the view that the Company will be
able to maintain profitable operations and raise funds as necessary, in order
to meet its liabilities as they fall due. Accordingly, these financial results
have been prepared on the basis that the Company will continue as a going
concern for the foreseeable future.

 

From auditor’s report

No remarks

OECD – Recent Developments – An Update

In this issue, we have
covered major developments in the field of International Taxation in the
Calendar year 2018 till date and work being done at OECD in various other
related fields. It is in continuation of our endeavour to update the readers on
major developments at OECD at regular intervals. Various news items included
here are sourced from various OECD Newsletters as available on its website.

 

In this write-up, we have
classified the developments into 6 major categories viz.:

 

1)   Tax Treaties

2)   BEPS Action Plans

3)   Transfer Pricing 

4)   Common Reporting Standard (CRS)

5)   Multilateral Convention on Mutual
Administrative Assistance in Tax Matters

6)   Others

 

1) Tax Treaties

 

(i) Major step forward in international tax
co-operation as additional countries sign landmark agreement to strengthen tax
treaties

 

24/01/2018 – Ministers and
high-level officials from Barbados, Jamaica, Malaysia, Panama and Tunisia have
today signed the BEPS Multilateral Convention bringing the total number
of signatories to 78.

 

In addition to those
signing today, Algeria, Kazakhstan, Oman and Swaziland have expressed their
intent to sign the Convention, and a number of other jurisdictions are actively
working towards signature by June 2018. So far, four jurisdictions – Austria,
the Isle of Man, Jersey and Poland – have ratified the Convention, which will
enter into force three months after a fifth jurisdiction deposits its
instrument of ratification.

 

The text of the Convention,
the explanatory statement, background information, database, and position of
each signatory are available at http://oe.cd/mli.

 

2) 
BEPS Action Plans

 

(i) OECD releases decisions on 11 preferential
regimes of BEPS Inclusive Framework Members

 

17/05/2018 – Governments
are continuing to make swift progress in bringing their preferential tax
regimes in compliance with the OECD/G20 BEPS standards to improve the
international tax framework.

 

Today, the Inclusive
Framework released the updates to the results for preferential regime reviews
conducted by the Forum on Harmful Tax Practices (FHTP) in connection with BEPS
Action 5
:

 


–  Four new regimes were
designed to comply with FHTP standards, meeting all aspects of
transparency, exchange of information, ring fencing and
substantial activities and are found to be not harmful (Lithuania, Luxembourg,
Singapore, Slovak Republic).

 

Four regimes were abolished or amended to remove harmful features
(Chile, Malaysia, Turkey and Uruguay).

–  A further three regimes do not relate to geographically mobile
income and/or are not concerned with business taxation, as such posing no BEPS
Action 5 risks and have therefore been found to be out of scope (Kenya and two
Viet Nam regimes).

 

Eleven new preferential
regimes are identified since the last update, bringing the total to 175 regimes
in over 50 jurisdictions considered by the FHTP since the creation of the
Inclusive Framework. Of the 175, 31 regimes have been changed; 81 regimes
require legislative changes which are in progress; 47 regimes have been
determined to not pose a BEPS risk; 4 have harmful or potentially harmful
features and 12 regimes are still under review.

 

This update shows the
determination of the Inclusive Framework to comply with the international
standards. For the updated table of regime results, see www.oecd.org/tax/beps/update-harmful-tax-practices-2017-progress-report-on-preferential-regimes.pdf.

 

(ii) The United Arab Emirates and Bahrain joins the
Inclusive Framework on BEPS.

 

(iii) OECD releases additional guidance on the
attribution of profits to a permanent establishment under BEPS Action 7

 

22/03/2018 – Today, the
OECD released the report Additional Guidance on the Attribution of
Profits to Permanent Establishments
(BEPS Action 7).

 

In October 2015, as part of
the final BEPS package, the OECD/G20 published the report on Preventing
the Artificial Avoidance of Permanent Establishment Status.
The Report
recommended changes to the definition of permanent establishment (PE) in
Article 5 of the OECD Model Tax Convention, which is crucial in determining whether
a non-resident enterprise must pay income tax in another State. In particular,
the Report recommended changes aimed at preventing the use of certain common
tax avoidance strategies that have been used to circumvent the existing PE
definition.

 

(iv) OECD and IGF invite comments on a draft
practice note that will help developing countries address profit shifting from
their mining sectors via excessive interest deductions

18/04/2018 – For many
resource-rich developing countries, mineral resources present an unparalleled
economic opportunity to increase government revenue. Tax base erosion and
profit shifting (BEPS), combined with gaps in the capabilities of tax
authorities in developing countries, threaten this prospect. One of the avenues
for international profit shifting by multinational enterprises is the use of
excessive interest deductions.

 

Building on BEPS Action
4
, this practice note has been prepared by the OECD Centre for Tax
Policy and Administration under a programme of co-operation with the
Intergovernmental Forum on Mining, Minerals, Metals and Sustainable Development
(IGF), to help guide tax officials on how to strengthen their defences against
BEPS.

 

It is part of wider efforts
to address some of the challenges developing countries are facing in raising
revenue from their mining sectors. This work also complements action by the Platform
for Collaboration on Tax
and others to produce toolkits on top priority tax
issues facing developing countries.

 

(v) OECD releases third round of peer reviews on
implementation of BEPS minimum standards on improving tax dispute resolution
mechanisms and calls for taxpayer input for the fifth round

 

12/03/2018 – As the BEPS
Action 14 continues its efforts to make dispute resolution more timely,
effective and efficient, eight more peer review reports have been released
today. These eight reports highlight how well jurisdictions are implementing
the Action 14 minimum standard as agreed to in the OECD/G20 BEPS Project.

 

The third round reports
released today relate to implementation by the Czech Republic, Denmark,
Finland, Korea, Norway, Poland, Singapore and Spain.
A document addressing
the implementation of best practices is also available on each jurisdiction
that chose to opt to have such best practices assessed. These eight reports
contain over 215 specific recommendations relating to the minimum standard. In
stage 2 of the peer review process, each jurisdiction’s effort to address the
recommendations identified in its stage 1 peer review report will be assessed.

3) Transfer Pricing 

 

(i)      OECD
and Brazil launch project to examine differences in cross-border tax rules

 

 28/02/2018 – The OECD and Brazil today
launched a joint project to examine the similarities and gaps between the
Brazilian and OECD approaches to valuing cross-border transactions between
associated firms for tax purposes. The project will also assess the potential
for Brazil to move closer to the OECD’s transfer pricing rules, which are a
critical benchmark for OECD member countries and followed by countries around
the world.

 

(ii) OECD invites public comments on the scope of
the future revision of Chapter IV (administrative approaches) and Chapter VII
(intra-group services) of the Transfer Pricing Guidelines

 

09/05/2018 – The OECD is
considering starting two new projects to revise the guidance in Chapter IV
(administrative approaches) and Chapter VII (intra-group services) of the
Transfer Pricing Guidelines.

 

Public comments are invited
on:

 

the future revision of Chapter IV, “Administrative Approaches to
Avoiding and Resolving Transfer Pricing Disputes” of the Transfer Pricing
Guidelines, and

 

the future revision of Chapter VII, “Special Considerations for
Intra-Group Services”, of the Transfer Pricing Guidelines.

 

(iii) OECD releases 14 additional country profiles
containing key aspects of transfer pricing legislation

 

09/04/2018 – The OECD has published
new transfer pricing country profiles for Australia, China (People’s
Republic of), Estonia, France, Georgia, Hungary, India, Israel, Liechtenstein,
Norway, Poland, Portugal, Sweden and Uruguay
respectively. These new
profiles reflect the current transfer pricing legislation and practices of each
country. The profiles of Belgium and the Russian Federation have also been
updated. The country profiles are now available for 45 countries.

 

4) Common Reporting Standard (CRS)

 

(i) OECD addresses the misuse of
residence/citizenship by investment schemes

 

19/04/2018 – Today’s
revelations from the “Daphne Project” on the Maltese residence and
citizenship by investment schemes underline the crucial importance of the
OECD’s work to ensure that the integrity of the OECD/G20 Common Reporting
Standard (CRS) is preserved and that any circumvention is detected and
addressed.

 

Over the last months, the
OECD has been taking a set of actions to ensure that all taxpayers maintaining
financial assets abroad are effectively reported under the CRS, including by:

 

–  issuing new model disclosure rules that require lawyers,
accountants, financial advisors, banks and other service providers to inform
tax authorities of any schemes they put in place for their clients to avoid
reporting under the CRS. The adoption of such model mandatory disclosure rules
will have a deterrent effect on the promotion of CBI/RBI schemes for
circumventing the CRS and provide tax authorities with intelligence on the
misuse of such schemes as CRS avoidance arrangements. The EU Member States have
already agreed to implement these rules as part of a wider directive on
mandatory disclosures;

 

–  reaching out to individual jurisdictions, including Malta, to
make them aware of the risk of abuse of their CBI/RBI schemes and offer
assistance in adopting mitigating measures; and

 

–  establishing a list of high risk schemes in order to further
raise awareness amongst stakeholders of the potential of such schemes to
undermine the CRS due diligence and reporting requirements.

 

In addition, on 19th
February 2018, the OECD issued a consultation document, outlining potential
situations where the misuse of CBI/RBI schemes poses a high risk to accurate
CRS reporting and seeking public input both to obtain evidence on the misuse of
CBI/RBI schemes and on effective ways for preventing such abuse.

 

The substantial amount of
input received in response to the consultation further underlines the
importance of the OECD’s actions in this field. It also contains a wide range
of proposals for further addressing the misuse of RBI/CBI schemes, including:
1) comprehensive due diligence checks to be carried out as part of the RBI/CBI
application process, 2) the spontaneous exchange of information about
individuals that have obtained residence/citizenship through such a CBI/RBI
scheme with their original jurisdiction(s) of tax residence; and 3)
strengthened CRS due diligence procedures on financial institutions with
respect to high risk accounts. 

 

(ii)     Global
network for the automatic exchange of offshore account information continues to
grow; OECD releases new edition of the CRS Implementation Handbook

 

05/04/2018 – Today, the
OECD published a new set of bilateral exchange relationships established under
the Common Reporting Standard Multilateral Competent Authority Agreement (CRS
MCAA) which for the first time includes activations by Panama.

 

In total, there are now
over 2700 bilateral relationships for the automatic exchange of offshore
financial account information under the CRS in place across the globe. The full
list of automatic exchange relationships that are currently in place under the CRS
MCAA is available online.

 

The OECD today also
released the second edition of the Common Reporting Standard Implementation
Handbook.

 

The Handbook provides
practical guidance to assist government officials and financial institutions in
the implementation of the CRS and to provide a practical overview of the CRS to
both the financial sector and the public at-large.

 

(iii)    Game
over for CRS avoidance! OECD adopts tax disclosure rules for advisors

 

09/03/2018 – Responding to
a request of the G7, today, the OECD has issued new model disclosure rules
that require lawyers, accountants, financial advisors, banks and other service
providers to inform tax authorities of any schemes they put in place for their
clients to avoid reporting under the OECD/G20 Common Reporting Standard (CRS)
or prevent the identification of the beneficial owners of entities or trusts.

As the reporting and
automatic exchange on offshore financial accounts pursuant to the CRS becomes a
reality in over 100 jurisdictions this year, many taxpayers that held
undeclared financial assets offshore have come clean to their tax authorities
in recent years, which has already led to over 85 billion of additional tax
revenue.

 

At the same time, there are
still persons that, often with the help of advisors and financial
intermediaries, continue to try hiding their offshore assets and fly under the
radar of CRS reporting. The new rules released today target these persons and
their advisers, by introducing an obligation on a wide range of intermediaries
to disclose the schemes to circumvent CRS reporting to the tax authorities. The
new rules also require the reporting of structures that hide beneficial owners
of offshore assets, companies and trusts.

 

These model disclosure
rules will be submitted to the G7 presidency and are part of a wider strategy
of the OECD to monitor and act upon tendencies in the market that try to avoid
CRS reporting and hide assets offshore. As part of this work the OECD is also
addressing cases of abuse of golden visas and similar schemes to circumvent CRS
reporting.

 

(iv) OECD releases consultation document on misuse
of residence by investment schemes to circumvent the Common Reporting Standard

 

19/02/2018 – More and more
jurisdictions are offering “residence by investment(RBI)
or “citizenship by investment(CBI) schemes, which
allow foreign individuals to obtain citizenship or temporary or permanent
residence rights in exchange for local investments or against a flat fee.
Individuals may be interested in these schemes for a number of legitimate
reasons, including greater mobility thanks to visa-free travel, better
education and job opportunities for children, or the right to live in a country
with political stability. At the same time, information released in the market
place and obtained through the OECD’s CRS public disclosure facility,
highlights the misuse of RBI and CBI schemes to circumvent reporting under the
Common Reporting Standard (CRS).

 

 As part of its CRS loophole strategy, the OECD
is releasing a consultation document that (1) assesses how these schemes are
used in an attempt to circumvent the CRS; (2) identifies the types of schemes
that present a high risk of abuse; (3) reminds stakeholders of the importance
of correctly applying relevant CRS due diligence procedures in order to help
prevent such abuse; and (4) explains next steps the OECD will undertake to
further address the issue, assisted by public input.

 

(v) Panama joins international tax co-operation
efforts to end bank secrecy

 

15/01/2018 – Today, at the
OECD Headquarters in Paris, the Director-General of Revenue and the delegated
Competent Authority of Panama, Publio Ricardo Cortés, has signed the CRS Multilateral Competent Authority Agreement?
(CRS MCAA), in presence of OECD Deputy Secretary-General Masamichi Kono. Panama
is the 98th jurisdiction to join the CRS MCAA, which is the prime
international agreement for implementing the automatic exchange of financial
account information under the Multilateral Convention on Mutual Administrative
Assistance. 

 

5) Convention on Mutual Administrative
Assistance in Tax Matters

 

The Convention on Mutual
Administrative Assistance in Tax Matters (“the Convention”) was
developed jointly by the OECD and the Council of Europe in 1988 and amended by
Protocol in 2010. The Convention is the most comprehensive multilateral
instrument available for all forms of tax co-operation to tackle tax evasion
and avoidance, a top priority for all countries.

 

The Convention was amended
to respond to the call of the G20 at its 2009 London Summit to align it to the
international standard on exchange of information on request and to open it to
all countries, in particular to ensure that developing countries could benefit
from the new more transparent environment. The amended Convention was opened
for signature on 1st June 2011.

 

122 jurisdictions currently
participate in the Convention, including 17 jurisdictions covered by territorial
extension*. This represents a wide range of countries including all G20
countries, all BRIICS, all OECD countries, major financial centres and an
increasing number of developing countries.

 

* In May 2018, the People’s
Republic of China extended the territorial scope of the Convention to the Hong
Kong and Macau Special Administrative Regions pursuant to Article 29. As such,
The Convention will enter into force for  
both   Hong Kong (China)   and  
Macau  (China)  on 1st September
2018.

 

6) Others

 

(i) Global Forum issues tax transparency compliance
ratings for nine jurisdictions as membership rises to 150

 

04/04/2018 – The Global
Forum on Transparency and Exchange of Information for Tax Purposes (the Global
Forum) published today nine peer review reports assessing compliance with international
standards on tax transparency.

 

Eight of these reports
assess countries against the updated standards which incorporate beneficial
ownership information of all legal entities and arrangements, in line with the
Financial Action Task Force international definition.

 

Four jurisdictions – Estonia,
France, Monaco and New Zealand
– received an overall rating of “Compliant.”
Three others – The Bahamas, Belgium and Hungary were rated “Largely
Compliant.” Ghana was rated “Partially Compliant.”

 

Progress for Jamaica
were recognised through a Supplementary Report
which attributes a “Largely Compliant” rating.

 

The Global Forum now
includes 150 members on an equal footing as Montenegro has just joined the
international fight against tax evasion. Members of the Global Forum already
include all G20 and OECD countries, all international financial centres and
many developing countries.

 

The Global Forum also runs
an extensive technical assistance programme to provide support to its members
in implementing the standards and helping tax authorities to make the best use
of cross-border information sharing channels.

 

(ii) Governments should make better use of energy
taxation to address climate change

 

14/02/2018 – Taxing
Energy Use 2018
describes patterns of energy taxation in 42 OECD and G20
countries (representing approximately 80% of global energy use), by fuels and
sectors over the 2012-2015 period.

 

New data shows that energy
taxes remain poorly aligned with the negative side effects of energy use. Taxes
provide only limited incentives to reduce energy use, improve energy efficiency
and drive a shift towards less harmful forms of energy. Emissions trading
systems, which are not discussed in this publication, but are included in the
OECD’s Effective Carbon Rates, are having little impact on this broad picture.

 

Meaningful tax rate
increases have largely been limited to the road sector. Fuel tax reforms in
some large low-to-middle income economies have increased the share of emissions
taxed above climate costs from 46% in 2012 to 50% in 2015. Encouragingly, some
countries are removing lower tax rates on diesel compared to gasoline. However,
fuel tax rates remain well below the levels needed to cover non-climate
external costs in nearly all countries.

 

Coal, characterised by high
levels of harmful emissions and accounting for almost half of carbon emissions
from energy use in the 42 countries, is taxed at the lowest rates or fully
untaxed in almost all countries.

 

While
the intense debate on carbon taxation has sparked action in some countries,
actual carbon tax rates remain low. Carbon tax coverage increased from 1% to 6%
in 2015, but carbon taxes reflect climate costs for just 0.3% of emissions.
Excise taxes dominate overall tax rates by far.

 

Note:
The reader may visit the OECD website and download various reports referred to
in this article for his further studies.
 

 

Service Tax

i Supreme
Court

 

26.  2018 (10) GSTL 118 (SC)
Commissioner  of

Service Tax vs. Bhayana Builders Pvt. Ltd.

Date of Order: 19th February, 2018

 

Value of materials
supplied free of cost by service recipient would not be includible in the value
of taxable services.

 

Facts

Respondent assessee was
engaged in the business of construction and was providing “Commercial or
Industrial Construction Service”. Revenue demanded to include value of goods
supplied by service recipient free while calculating “gross amount charged” and
33% thereof be treated as value for levying service tax vide Notification No.
15/2004-ST dated September 10, 2004. Later, Notification was amended vide
another Notification No. 4/2005-ST dated March 01, 2005 adding an explanation
stating that the “gross amount charged” shall include the value of goods and
material supplied and provided or used by the provider of construction services
for providing such service. The Larger Bench decided that value of free
goods/materials supplied by service recipient cannot be added for valuation of
service provided by service provider. Correctness of the said Larger Bench
decision was challenged in present appeals. Revenue argued that Explanation (c)
to section 67 (4) of Finance Act, 1994 provided that payment received in “any
form” and “any amount credited or debited’ was to be included in gross amount
charged. Department also argued that 33% rate was prescribed by Government
keeping in view the entire construction project which roughly comprises of 67%
of cost of material and 33% is value of services.

 

Held

Hon’ble Supreme Court noted
that the Phrase “gross amount” in section 67 only referred to the entire
contract value without deduction of any expenses. Further, the word ‘charged’
used in section 67 referred to the amount billed by service provider to service
receiver. By using further words “for such service provided”, the Act required
a nexus between the amount charged and services provided. Therefore, amount
having no nexus with taxable service cannot be part of taxable value u/s. 67.
Though section 67 (4) states that the value shall be determined in such manner
as may be prescribed, however, it is subject to the provisions of sub-sections
(1), (2) and (3).  Moreover, no such
manner was prescribed which included the value of free goods/ material supplied
by the service recipient for determination of the gross value. Explanation (c)
to section 67 only provided for mode of payment or book adjustment and did not
expand the meaning of the term “gross amount charged”. Further it was held that
value of taxable services cannot be dependent on value of goods supplied free
of cost by service recipient since service recipient can use any quality of
material and value of such goods can vary significantly. Firstly, no material
was produced before Hon’ble Supreme Court to justify the basis of formula
adopted while issuing notification. Secondly, the language of notification also
provided for “33% of gross amount charged for providing taxable services”.
Further, even vide section 93 of the Finance Act, 1994, exemption from levy of
service tax leviable on “taxable service” only can be provided by Government.
Therefore, since value of goods provided by service provider free of cost was
not specifically included by legislature, the same cannot form part of taxable
value of services.

 

27.  2018 (10) GSTL 401 (SC)
Union of India vs. Intercontinental Consultants and Technocrats Pvt. Ltd.  Date of Order: 07th March, 2018

 

No Service Tax is leviable
on reimbursement of expenses prior to May 14, 2015.

 

Facts

Respondents were receiving
reimbursement of expenses incurred such as air travel, hotel stay, etc.
Writ petition was filed by assessees challenging the vires of Rule 5 of
Service Tax (Determination of Value) Rules, 2005 as unconstitutional and ultra
vires
section 66 and 67 of the Finance Act, 1994. Contention of the
assessee was that section 67 was amended from May 14, 2015 to include
reimbursement of expenses through insertion of an explanation. Prior to such
amendment, ‘consideration’ in respect of taxable services provided or to be
provided was only leviable to service tax. Assessee relied on
Circular/Instruction F. No. B-43/5/97-TRU dated June 06, 1997. Section 67
provided for gross amount charged for providing ‘such’ taxable service and
therefore, any amount collected which was not for providing such taxable
service cannot be covered within tax net.

 

Held

Hon’ble
Supreme Court observed that the expression ‘such’ used in section 67 provided
for charging service tax only on gross amount charged for providing ‘such’
taxable services and value cannot be more or less than consideration paid as quid
pro quo
for rendering such service. Therefore, any other amount cannot form
part of value of services. Though section 67 (4) was provided for making rules
to lay down manner of valuation, the same was subject to section 67 (1) and
therefore, cannot travel beyond section 67 (1). Consequently, noting the
amendment to section 67 vide the Finance Act, 2015,  it was held that reimbursable expenditure or
cost will not form part of value of taxable services prior to May 14, 2015.

 

28.  2018 (9)   GSTL 337  
(SC)   Commissioner  of

Central Excise and S.T. vs. Ultra Tech Cement Ltd. Date of Order :
01st February, 2018

 

No Cenvat Credit
admissible on outward transportation services from factory to buyer’s premises.

 

Facts

Assessee availed Cenvat
credit of service tax paid on outward transportation of goods through a
transport agency from their premises to the customer’s premises from January,
2010 to June, 2010. Revenue alleged that such transfer cannot be considered to
be used directly or indirectly in relation to clearance of goods from the
factory viz. place of removal and therefore, disallowed Cenvat credit
considering it not to be an input service within the ambit of Rule 2(l)(ii) of
the CENVAT Credit Rules, 2004. Considering the provisions of the Rules,
adjudicating authority held that post clearance transportation services cannot
be considered to be “input services”. Further, in absence of any documentary
evidence relating to prove conditions provided in Circular 97/8/2007-Service
Tax dated August 23, 2007 clarifying the definition of “place of removal”, OIO
was passed confirming demand. After rounds of litigation, Revenue filed an
appeal to Hon’ble Supreme Court.

 

Held

As per the definition of
“input service” contained in Rule 2(l) of Cenvat Credit Rules, 2004, Hon’ble
Supreme Court observed that such outward transportation is not covered under
Rule 2 (l)(i). Further, Rule 2 (l) (ii) covers only those services, which are
used by the manufacturer, whether directly or indirectly, in or in relation to
the manufacture of final products and clearance of final products upto the place of removal. The two clauses in
the definition should be read harmoniously and there should not be any
conflict, which defeats the scheme of the Law. Therefore, after the amendment
made from 01 March, 2008, wherein the word ‘from’ was replaced by the word
‘upto’, goods transport agency service used for the purpose of outward
transportation from place of removal i.e. factory to customer’s premises,
cannot be considered as “input service” for availment of Cenvat credit.
Circular was held to be inapplicable in the present case since it was issued
prior to the amendment in the definition of “input service”. If said circular
is made applicable even in respect of post amendment cases, it would be
violative of Rule 2(l) of the CENVAT Credit Rules.

 

II   
High Court

 

29.  2018 (11) GSTL 341
(All.) Astt.. Commr. of
Central Excise vs. Advance Steel Tubes Ltd. Date of Order: 06th
March, 2018

 

Doctrine of unjust
enrichment not applicable in case of pre-deposit of duty by the assessee at the
time of filing of appeal.


Facts

The officers of Central
Excise visited the factory premises of the assessee and found variation in the
finished good as compared to the balance shown in RG-1. The stock of finished
products was also found short. The stock of inputs was found excess as compared
to the stock register. An investigation was made and the party debited an
amount of 18.75 lakh under protest on account of the said discrepancies. The
assessee made pre-deposit of INR 18.75 lakh before filing of appeal. On account
of conclusion of proceedings before Tribunal and the Settlement  Commission, 
amount  of  INR 10,34,000 was claimed as refund out of
the pre-deposit made.

 

The refund claim was
rejected by the Adjudicating Officer by holding that the party had accounted
for the duty paid under protest as expenditure in the balance sheet and costing
of the products were finalised by taking into account the cost of raw materials
along with manufacturing and other expenses and hence, the presumption was that
the same has been passed on to the buyer in the form of incurred/enhanced
costing for current and further supplies of the party’s products. The assessee
filed an appeal with the Commissioner (Appeals) which was rejected. Appeal was
filed before the Tribunal.

 

Tribunal was of the view
that this was not the case of the unjust enrichment because the duty involved
in refund was not paid at the time of clearance of goods but subsequently
during the course of investigation for the past period. The goods had already
been cleared earlier. It was emphasised that the confirmed duty was adjusted
from the pre-deposit by treating it as a sanctioned refund. In so far as the
amount which had been taken by the department during investigation that is a
sum of Rs.8,40,120/-, the same had also been taken without considering the cost
structure of the goods and despite that the department was invoking the bar of
unjust enrichment to the balance amount for which the refund has been claimed
and this would not be tenable. Accordingly, order passed by the Hon’ble Tribunal
was in favour of assessee. The Revenue went on to file an appeal with the High
Court.

 

Held

The Hon’ble High Court has
accepted the final decision taken by Tribunal and held that that the bar of
section 11B of the Act did not apply in the present case, is correct and
justified.

 

30. [2018-TIOL-1058-HC-DEL-ST] Santani Sales Organization vs.
CESTAT, Delhi and Others Date of Order: 31st May, 2018

 

Pre-deposit of 10% while
filing second Appeal u/s. 35F of the Central Excise  Act, 1944 is inclusive of 7.5% deposit made
for the first appeal.

 

Facts

The question before the
Court is whether as per section 35F of the Central Excise Act, 1944, the
petitioner is required to make an additional pre-deposit of 10% of the
duty  and penalty in dispute over and
above 7.5% deposit made for filing of first appeal before the Commissioner
(Appeals) while filing second appeal before the Tribunal. Circular No.
984/08/2014-CX dated 16th September, 2014 clarifies that “in the
event of appeal against the order of Commissioner (Appeal) before the Tribunal,
10% is to be paid on the amount of duty demanded or penalty imposed by the
Commissioner (Appeal).

 

Held

The Court noted that the
section should not be construed by adding or substituting words. The intent is
that the assessee should pre-deposit 10% of the total tax or penalty, which is
the subject matter of the Appeal. It is not to ignore the pre-deposit of 7.5%
already made to file first appeal. There is logic in increasing pre-deposit by
2.5% when second appeal is filed, but adding words to the plain and unambiguous
provision  that 10% pre-deposit will be
over and above 7.5% pre-deposit made at the time of the first appeal is
uncalled for. Therefore the writ petition is allowed and it is directed that
the petitioners and others on filing second appeal is required to deposit 10%
of the amount of duty/penalty as 
confirmed by the first appellate authority inclusive of 7.5% pre-deposit
made for the first appeal.

 

III   
Tribunal

 

31. [2018] 93 taxmann.com 338 (Mumbai-CESTAT) Ipca Laboratories
Ltd. vs. CCE & ST

Date of Order: 26th April, 2018

 

Tribunal held that
reimbursements of salaries paid by distributors to sales representatives
appointed by them in foreign countries would not be taxed under “business auxiliary
services”.  Service tax demand under
“scientific and technical consultancy services” was held to be unsustainable in
respect of payments made to foreign regulatory authorities for
registration/approval of products. Tribunal held that in absence of online
access, data storage services provided by foreign service provider would not be
liable to service tax under “online database access and retrieval services”

 

Facts

Appellant manufacturer of
medicaments engaged various distributors for distribution of medicaments in
various countries. These distributors appointed sale representatives for
promotion of products supplied by appellant and salaries of such sales
representatives are reimbursed by appellant to the distributors under a cover
of debit note. Revenue demanded service tax on such reimbursements under
category of “business auxiliary services.” As regards appellant receiving
services of registration of its therapeutic products in foreign company,
revenue alleged that such services are liable to service tax as “scientific and
technical consultancy services”. Further, service tax was demanded under
category of “online access and database retrieval services” in respect of
invoices raised by foreign company for alert storage charges, internet charges
etc.

 

Held

As regards demand under
category of “business auxiliary services”, Hon’ble Tribunal noted that the
agreement between appellant and distributors provides that promotional
activities will be directly under supervision of the appellant. The invoices
raised by distributors for such expenses describe the same as ‘”amounts towards
marketing survey and promotional expenses”/ “marketing expenses” etc. and
neither the invoices nor the debit notes contain any breakup of expenses.
Tribunal held that demand under “business auxiliary services” would not sustain
on reimbursements made by appellant. For this purpose, it relied on the
decision in case of Genom Biotech (P) Ltd. vs. CCE&C [2016] 71
taxmann.com 123
(Mum.-CESTAT), wherein Tribunal categorically held that
services rendered in connection with business and commerce outside India were
not intended to be taxed in India in terms of erstwhile service tax rules. As
regards next issue of demand under “scientific and technical consultancy
services”, Tribunal noted that such services are in the nature of regulatory
services obtained for registration/approval of appellant’s products in other
countries. Reference was made to the decision in Administrative Staff
College of India vs. CC & CE [2009] 18 STT 78 (Bang. – CESTAT)
, also
affirmed by Hon’ble Supreme Court in 2010 (20) STR J117, wherein it was
held that in order to assert that an organisation is providing scientific or
technical consultancy, two basic ingredients have to be established. The
organisation must be a science or technology institution and the consultancy
must relate to one or more disciplines of science or technology. In present
case Tribunal noted that the service provider merely executes registration
process without rendering any advise, consultancy or technical assistance in
the science. Also, the said service provider is not a scientist or a technocrat
or any science or technology institutions or organisations. Thus, Tribunal held
that as these regulatory services are not in the nature of “Scientific and
Technical Consultancy Services”, impugned demand is liable to be set
aside. Further, as regards demand under “online database and access retrieval
services”, it was observed that the services were used by appellant for data
storage. The foreign service provider neither has website where data can be
accessed nor any information is accessed by appellant from any database of said foreign company. Since no
online service is provided and also, there is no online service provider,
Tribunal set aside impugned demand.

 

32. [2018] 93 taxmann.com 482 (New Delhi-CESTAT) Deputy
Conservator of Forest and Deputy Field Director vs. CCE.

Date of Order: 11th April, 2018

 

Tribunal held that fees
collected by state forest department for making available vehicles on rent for
safari tour into forests, are fees for discharge of statutory functions and
hence cannot be said to be taxable as consideration for supplying “tour operator
services”.  

 

Facts

Appellant comes under
Department of Forests, Govt. of Rajasthan and exercised the jurisdiction and
control over the Tiger Projects in Rajasthan. The Revenue noticed that the
appellant was collecting certain amounts from the tourists and making available
vehicles on rent for safari tour into the Ranthambore Park. Out of the amounts
so collected, a certain portion was paid to the vehicle owners towards rent of
the vehicle and the balance was retained and deposited with the State Government
in appropriate head of account. Revenue alleged that State Forest Department
had made arrangements for supply of vehicles to tourists for going around the
National Park and has recovered amounts towards the same, thereby liable to pay
service tax under “tour operator services”.  

 

Held

Hon’ble Tribunal noted that
the Forest Department performs the sovereign function of protecting and
improving the environment and to safeguard the forests and wild life of the
country as mandated under Article 48A of the Constitution of India. The Wild
Life (Protection) Act, 1972, which provides for Notification and Management of
National Parks for conservation of wild life, empowers the State Government, to
notify the forests as National Park as well as to restrict the entry of
visitors as well as vehicles into the National Park. Tribunal noted that the
primary objective of such restriction is to protect wild life and tourism is
permitted only to the extent circumscribed by the above objectives. It was also
observed that the amount recovered from the tourists are credited to the
account of the State Government after reimbursing the vehicle owners towards
the rent payable for such vehicles. Tribunal noted that the Forest Department
has the mandatory duty to protect the environment and to safeguard forests and
wild life. Therefore, it was held that amounts recovered by appellant towards
issue of entry permits as well as vehicles which have also been credited to the
State Treasury are to be considered in the nature of fee or amount collected as
per the provisions of relevant statute for performance of statutory functions
and cannot be considered as consideration for purposes of organizing tour.
Accordingly, present appeal was allowed by setting aside impugned demand. 

 

33. [2018] 93 taxmann.com 162 (New Delhi-CESTAT) Vijay Kumar
Kataria vs. CCE.

Date of Order: 30th January, 2018

 

Activities of replacing
old damaged water line, improvement of water supply in various villages etc.
falls under category of “commercial and industrial construction service” and as
the said services were provided to Government organisation, which is
non-commercial, no service tax liability would arise.   

 

Facts

Appellant executed
contracts with Delhi Jal Board, in which nature of work involved replacing of
old damaged water line, for improvement of water supply in various villages as
well as replacement of badly silted and damaged sewer lines. Revenue alleged
that services provided by appellant are classifiable under Management,
Maintenance or Repair Service as such services are provided under maintenance
contract. On the other hand, appellant contends that services in question are
more appropriately classifiable under “commercial and industrial construction
services”. Appellant further submitted that since the services have been
rendered to Delhi Jal Board, such services are not indented for Commerce or
Industry and accordingly, no service tax would be liable to be paid.

 

Held

Hon’ble Tribunal noted that
contracts between appellant and Delhi Jal Board are for replacement of
pipelines in specified segments. It is neither in the nature of an ongoing
maintenance contract nor in the nature of construction or laying of
pipelines/conduit. Accordingly, Tribunal concurred with appellant’s submission
that the service in question is more specifically covered under the category of
Commercial and Industrial Construction. It was held that classification under
Management, Maintenance or Repair would not cover the activities of the
appellant since these are not in the nature of Maintenance Contract.  Further, recording a finding that Delhi Jal
Board is not a commercial organisation, Tribunal held that appellant would not
be liable to pay any service tax demand and thereby, set aside impugned order.

 

34. 2018 (11) GSTL 104 (Tri. – Chennai) Prasad Corporation Ltd.
vs. Commissioner of Service Tax, Chennai. 
Date of Order: 30th Oct., 2017

 

Statutory provisions
relating to taxation to be construed literally without engraving any additional
meaning thereto.

 

Facts

Appellant assessee offered
services like Computer graphics, digital restoration and reverse telecine to
customers abroad, seeking to cover the services under Business Auxiliary
Services. Department initiated proceedings alleging that the services provided
are in the nature of “Video Tape Production Services” defined u/s. 65 (105)
(zi), hence falling within the ambit of Rule 3 (1) (ii) of Export of services
Rules, 2005, therefore will not be treated as export of service. Later,
confirmed the allegation and service tax liability along with interest and
penalty. Appellant appealed to Tribunal against the impugned order stating that
services provided by Appellant are post-production film activities rendered for
services to recipients outside India as per their requirements and for which it
received payment in free convertible foreign exchange. Whereas Respondent
department contested that Video Tape Production services include the services
relating to editing, cutting, colouring, imparting special effects, processing,
adding etc. Appellant thus performs such services of addition, modifying etc.
in respect of the work undertaken by them; hence their services should
justifiably fall within “Video Tape Production Services”.

 

Held

Hon’ble CESTAT held that
services performed by Appellant definitely do not involve recording of any
programme, event or function. In fact services of Computer Graphics, Digital
Restoration, and Reverse Telecine, all involving activities on old feature
films are post-production film activities rendered for service recipients’ as
per their requirements. The definitions have to be read in totality and part
thereof cannot be picked up to justify that the activities performed in the
instant case will come under “Video Tape Production Services”. The
statutory provisions relating to taxation have to be construed literally
without engraving any additional meaning thereto except in very rare cases
where, the maxim of casus omissus would apply. Thus, services of restoration,
giving special effects etc. in respect of old films would not be covered under
Video Tape Production service. Appeal allowed setting aside the Impugned Order.

 

35. 2018 (11) GSTL 427 (Tri. – Del.) Sir Ganga Ram Hospital,
Versus Commissioner of Central Excise Delhi-I. Date of Order:06th December,
2017

 

Collection
charges/facilitation fees paid to doctors is not consideration for business
support services. It is exempt by virtue of Notification No. 25/ 2012 – ST
dated 20th June 2012.

 

Facts

The appellants are engaged
in providing health care services to the patients. The appellants have engaged
professionals and doctors on contractual basis. The doctors are provided space
in the hospitals with required facilities to attend to the patients coming to
the hospitals, run by the appellants. These doctors engaged on contract basis
are paid professional fee on a predetermined ratio on the amount received by
the appellants from the patients. The Revenue contended that doctors are in
business and the “collection charges/facilitation fee” retained by the
appellants are liable to service tax under the category of Business Support
Service for the period prior to 01.07.2012 and are a taxable service post
negative list also. The Revenue held a view that such charges/fee retained by
the appellants formed a taxable consideration for the service of
infrastructural support provided by the appellants to the doctors to enable the
doctors to carry out their work in the hospital.

 

Held

Hon’ble Tribunal held that
for providing healthcare services, the appellants entered into agreements with
various consulting doctors and that it does not find any business support
services in such arrangement. Further, reliance is placed on Dr. Devender
Surtis AIR 1962 SC 63
and it has been held that the doctors are not in
business or commerce but are engaged in medical profession. Further,
Notification No. 25/2011-ST exempted levy of service tax on health care
services rendered by clinical establishments. Hon’ble Tribunal held that the
view of the Revenue that in spite of such exemption available to health care
services, a part of the consideration received for such health care services
from the patients shall be taxed as business support service/taxable service is
not tenable. Accordingly, it was held that the impugned orders against which
appellants’ hospital filed appeal are devoid of merit, the same were set–aside.

 

36. 2018 (11) GSTL 309 (Tri. – Bang) Sundaram Finance Limited vs.
Commissioner of C. EX. & S.T., LTU Chennai.

Date of Order: 14th September, 2017

 

Charges levied by on
account of Fleet Card issued by the assessee to the customers who availed
vehicle loan facilities from them is for facilitating the customers to procure
is not in the nature of interest on loans – Chargeable to service tax.

 

Facts

The assessee is engaged in
finance operations as a Non-Banking Financial Company. During the verification
of accounts maintained by appellant-assessee, the officers noted that service
tax has not been paid on income shown under the heading “Fleet Card Income”
from their customers. The Fleet Card issued by the assessee to the customer,
who availed vehicle loan facilities from them is for facilitating the customers
to procure fuel from the outlets of petroleum companies, with whom the assessee
had prior arrangement. These cards carry pre-paid facility as well as credit
facility. The creditworthiness of the customers was verified and cards were
issued by the appellant in their trademark as well as that of oil companies.
The cards provide credit facilities for purchasing fuel for the vehicle of the
customer.

 

The Revenue entertained a
view that the assessee is liable to tax under the head “Banking and Other
Financial Services”, Credit Card Services” in respect of fleet card
income. The assessee contended that the “additional finance charge”
is nothing but interest. Circular issued by CBEC dated 17th
September 2004 clearly specifies that interest on loans is excluded for payment
of service tax. Notification No. 12/2006-ST, dated 19th April 2006
stipulates that Interest on Loans is not to be included in the assessable
value. Further, as per Black’s Dictionary, “finance charge” is
nothing but an additional payment in the form of interest paid by a retail
buyer with the privilege of purchasing goods or services in instalments.

 

Held

Hon’ble CESTAT relying on
the findings of original authority held that the arrangement of fleet card
cannot be treated as repayment of loan but only a payment against credit card
utilisation. A loan is a prearranged specific amount given at one-time or in
instalments. However, in “Fleet Card System”, the same credit limit
is extended every fortnight and sometimes even remains unutilised. Fleet Card
function cannot therefore, be treated at par with a loan transaction. Further,
the amount charged by the assessee is exclusive of interest and other charges.
Interest for the month is also shown separately. Hence, the claim that
“finance charge” and “additional finance charge” are
interest is not correct.

 

37. [2018-TIOL-1888-CESTAT-MUM] Holtech Asia P. Ltd  vs. Commissioner of Central Excise,
GST-Pune-I. Date of Order: 20th April, 2018

                       

Registration
of Project office of a foreign company in India is not sufficient to conclude
that the services provided to the foreign company  are 
received  in   India, unless  the project office is concerned with the
services provided

 

Facts

The Appellant rendered
services to its parent company in USA. A refund claim was filed under Rule 5 of
the CENVAT Credit Rules, 2004 read with Rule 6A of the Service Tax Rules, 1994
towards CENVAT credit paid on input services used in providing output services.
The refund was rejected on the ground that the parent company has a project
office which is registered in India. Therefore as the service provider and
service receiver are in India, Rule 8 of the Place of Provision of Service
Rules, 2012 is applicable and accordingly condition (b) i.e. recipient located
outside India and (d) i.e. place of provision outside India of Rule 6A is not
satisfied and therefore there is no export. It was argued that the person who
has contracted is the company in USA and payment is also received  in foreign exchange.

 

Held

The Tribunal noted that it
is undisputed that the services are received by the parent company in USA and
the amount is received in foreign exchange. Further, the project office in
India was set up with an intention to provide services to the customer in
India. Accordingly, such office in India had no connection with the services
rendered by the Appellants. Accordingly, it was held that the project office
registered in India, having no connection with the services rendered cannot be
considered as a recipient. Further in terms of Explanation 3 to section 65B
(44) different  establishment  located 
in non-taxable  territory and
taxable territory are to be treated as establishment of different persons thus
clear that the office outside India is different establishment from its project
office in India. Thus, the recipient being outside India, place of supply being
outside India, refund is admissible.

 

38. [2018-TIOL-1700-CESTAT-MUM] Suzlon Energy Limited vs.
Commissioner of Central Excise & Service Tax, Pune-III. Date of Order: 02nd
May, 2018. Period: June 2007 to September 2010

           

Taxation of Goods and that
of services are mutually and explicitly conceived levies

                       

Facts

The Appellant entered into
an agreement with three subsidiary companies situated in Germany and Netherland
with whom product development and purchase agreement had been entered into. In
terms thereof, subsidiaries provided technical know-how used by the appellant
for manufacture of wind turbine generators. The technical know-how/engineering
designs and drawings were imported against the bill of entry. The supply was an
outright sale with full ownership vested with the appellant. The Revenue raised
a demand to bring such imports within the framework of design service and
confirmed the service tax demand. It was argued that outright transfer or
purchase of technical know-how being excluded from the definition of intellectual
property in service, it is not legal to bring in the coverage of design
service.

 

Held

The Tribunal relying on
several judgments noted that taxation of goods and that of  services are mutually and explicitly
conceived levies, it is clear that the same activity cannot be  taxed as goods and as services.

 

Corporate Law Corner

10.  JAK
Builders (P.) Ltd., In re

[2018] 93 taxmann.com 467 (NCLAT)                        

Date of Order: 24th April, 2018

 

Section 419 read with 232 of Companies Act,
2013 – Transferor and Transferee companies effecting an amalgamation belonged
to two separate territorial jurisdictions of two NCLTs– Application under
sections 230-232 were filed before both the benches of NCLT – President of NCLT
has the power to transfer the case from either one of the jurisdictions to the
other where the matter was pending

 

FACTS

JBPL and JIPL (together referred to as
“transferors”) intended to amalgamate with JGPL (“transferee”). The transferors
had their registered office at Gurgaon, Haryana and transferee had its
registered office at Nehru Place, New Delhi. As they intended to get their
scheme approved for merger, they filed two separate applications both under
sections 230-232 of the Companies Act, 2013, one before the National Company
Law Tribunal, New Delhi Bench (‘NCLT, New Delhi’) and another before the
National Company Law Tribunal, Chandigarh Bench, Chandigarh (‘NCLT,
Chandigarh’).

 

The NCLT, New Delhi Bench by order dated 17th
November, 2017 dismissed the application as not maintainable in view of
the lack of territorial jurisdiction. Other matter was pending before the NCLT,
Chandigarh.

 

The question before NCLAT was where an
application under sections 230 to 232 could be filed if the registered office
of two companies are situated within the territorial jurisdiction of two
different NCLT Benches.

 

HELD

NCLAT considered the facts of the case and
examined the provisions of Rule 16 of National Company Law Tribunal Rules, 2016
(“the Rules”) which lays down the powers and functions of the President of
Tribunal.

 

It was observed that President of the NCLT
had power to transfer any case from one Bench to other Bench when the
circumstances are so warranted. In view of such provision, and considering the
facts of the case, it was held that circumstances warranted that the President
exercises his power under Rule 16(d) to transfer one of the case from one Bench
to other Bench where other matter is pending including the cases where
transferor and transferee companies are at different places of the country.

 

Order passed by NCLT Delhi was set aside and
NCLAT held that parties had liberty to file application before the Hon’ble
President of the NCLT to transfer one of the case either to Chandigarh Bench or
the Bench at New Delhi for hearing of both the cases by one of the Benches.

 

11. Quantum Limited vs. Indus Finance
Corporation Limited

[2018] 144 CLA 157 (NCLAT)                                      

Date of Order: 20th February, 2018

 

Section 12(2) of the Insolvency and
Bankruptcy Code, 2016 – Application for extension of Corporate Insolvency
Resolution Process can be filed even after the period of 180 days is over as
long as the resolution permitting the extension has been duly approved by the
Committee of Creditors within the time frame of 180 days (including the last
day)

 

FACTS

Time to complete the Corporate Insolvency
Resolution Process (“CIRP”) of 180 days on Q Limited was over on 25.11.2017. On
24.11.2017, Committee of Creditors (“COC”) passed a resolution seeking
extension of time. The Resolution Professional filed the application under
section 12(2) of the Insolvency and Bankruptcy Code, 2016 (“Code”) before the
National Company Law Tribunal (“NCLT”) on 30.11.2017.

 

NCLT dismissed the said petition on the
grounds that there was no provision to file such application after expiry of
180 days of CIRP.  

 

Aggrieved by the order of NCLT, Corporate
debtor preferred an appeal to the NCLAT.

 

HELD

NCLAT examined the provisions of section
12(2) of the Code. It was observed that as per provision of section 12(2),
resolution professional can file an application for extension of the period of
the CIRP, only if instructed to do so by a resolution passed at a meeting of
the COC by a vote of 75% of the voting shares. The provision does not stipulate
that such application is to be filed before the Adjudicating Authority within
180 days.

 

It was further held that If within 180 days
including the last day i.e. 180th day, a resolution is passed by the
COC by a majority vote of 75% of the voting shares, instructing the resolution
professional to file an application for extension of period in such case, in
the interest of justice and to ensure that the resolution process is completed
following all the procedures time should be allowed by the Adjudicating
Authority who is empowered to extend such period up to 90 days beyond 180th
day.

 

The NCLAT accordingly, set aside the order
of NCLT and ordered for extension of the period by 90 days from the date of
passing of the order. It was further held that period from 181st day to the
date of passing this order would not be counted for any purpose.

 

12. 
Three Star Properties Private Limited vs. ROC

[2018] 144 CLA 80 (NCLT – New Del)                         

Date of Order: 25th April, 2018

 

Section 252 of the Companies Act, 2013 –
Name of the company was struck off the register of companies due to non-filing
of returns – NCLT may restore the name of company which has been struck-off
from the register of companies for a “just” cause – Non-filing of returns owing
to existence of ongoing litigation in respect of immovable property proposed to
be acquired  by the company constituted a
“just” cause

 

FACTS

TCo was a private company incorporated on
08.10.2010 with the objective of acquiring and dealing with immovable
properties. In pursuance of the said object, it commenced acquisition of a
valuable property at New Okhla Industrial Development Authority (‘NOIDA’). In
order to facilitate the purchase, TCo entered into an agreement to sell with
the owners of the said property on 15.11.2010 and even paid a part of the sale
consideration towards purchase of the property. Subsequently, TCO learned that
the said property is subject matter of dispute before Civil Judge, Gautam Buddh
Nagar, Uttar Pradesh.

 

In the intervening period, due to the
pendency of litigation in respect of the property being acquired, operations of
TCo came to a standstill. It however, regularly held the AGM, finalized its
accounts and filed its income-tax returns even though there were no business
operations.

 

Name of TCo was however, struck off from the
register of companies by the ROC due to alleged non-filing of financial
statements or annual returns for a continuous period of three financial years.
TCo filed an appeal with NCLT for the restoration of the name consequent to the
directions by the Hon’ble High Court of Delhi issued in Writ Petition(C) No.
9933 of 2017 titled “Kanwar Pal Singh v. Union of India and Others“.

 

TCo submitted
that it has been regular in filing returns with income-tax authorities,
regularly held the AGM since its inception. It was further submitted that TCo
continued to be in operation of business and the agreement dated 15.11.2010 was
still in force, although the same was subject matter of dispute, the outcome of
which was pending.

 

ROC contended that TCo should be declared a
dormant company owing to inactivity in the operations. Income-tax department
confirmed that there were no pending proceedings against TCo and it had no
objections if the name of the company was to be restored.

 

HELD

NCLT observed that section 252(3) of the
Companies Act, 2013 (“the Act”) empowered it to restore the name of the company
which had no business operations if the circumstances justify the existence of
“just” cause.

 

The Tribunal relying on decision of Delhi
High Court in CP No. 174/2013 [M.A. Panjwani ] observed that use of the word
“just” in section 252(3) of the Act has to be understood in the background of
the specific language of the sub-section and not on the basis of the principle
of ejusdem generis. Further, it was observed that where litigations were
pending and where immovable property rights were involved [as held in CP No.
406 of 2009 by the Hon’ble Delhi High Court] it was only proper that the name
of the company be restored to the register.

 

In the facts of the present case, land
proposed to be acquired by TCo was subject matter of civil dispute.

NCLT, in light of the ratio of the decisions
and facts of the present case, thus held that there existed a ‘just’ ground for
the restoration of the name of the TCo in the register of RoC. It order for
restoration of the name to the register of ROC but, however, the restoration
would be subject to certain terms and conditions with respect to payment of
fees, costs, non-disposal of valuable assets, restoration of names of
disqualified directors to be in accordance with law and power to ROC being
available for conduct of proceedings for late-filing, etc.
 

 

SOCIETY NEWS

“Long Duration Course on Goods and Services Tax Act” held on 5th, 6th, 12th, 13th, 19th and 20th October, 2018 at BCAS Conference Hall

BCAS, as a NACIN accredited training partner has been at the forefront of creating awareness about GST and supported the Government in ushering this reform by organising various lecture meetings, seminars and workshops related to GST. As a part of this endeavour, Indirect Taxation Committee of BCAS organised a Long Duration Course on Goods and Services Tax Act at BCAS Conference Hall, spread over 4 weeks in the month of October, 2018 on Fridays and Saturdays. The course consisted of 36 sessions of 1hr 15 min each. It was conducted by 34 domain experts in GST who covered various theoretical as well as practical aspects of the GST law.

The Course was attended by 97 participants including outstation participants as under:

The profile of participants consisted of practising chartered accountants, chartered accounts in employment as well as accounts and finance staff of various entities. The course was interactive and participants discussed various issues such as deemed supply, cross charge/ISD, ineligible ITC under the Act, issues concerning valuations, place of supply including zero rated supplies/deemed exports and imports related provisions, computational provisions, penal provisions, assessment provisions and procedural provisions like accounts and documents, payments, E-way bill, returns and Audit.

With the backup of excellent faculties, participants enriched their knowledge and experience in this collective learning process. The course facilitated GST learning of 45 hours per participants.

Students Study Circle on ‘’Benchmarking under Transfer Pricing” held on 23rd October, 2018 at BCAS Conference Hall

The Students Forum under the auspices of HRD Committee organised a Students’ Study Circle on the topic “Benchmarking under Transfer Pricing” on Tuesday, 23rd October, 2018 BCAS Conference Hall which was led by group leaders Mr. Rishabh Jain and Mr. Piyush Randad under the mentorship of CA. Jitendra Gupta. Ms. Neelam Soneja, the student co-ordinator introduced the mentor and group leaders. CA. Jitendra Gupta, the mentor for the session gave his opening remarks and briefly explained the topic.

Both the group leaders discussed the topic with the help of case studies and shared their practical experience in conducting transfer pricing audit. The study circle was very interactive. Overall, it gave a brief insight on various aspects that should be kept in mind while conducting transfer pricing audit.

The mentor CA. Jitendra Gupta then presented the certificates to the Group Leaders and appreciated the meticulous presentation made by them. Mr. Jason Joseph, the student co-ordinator thanked the group leaders and mentor for sharing their knowledge on the subject and briefed the participants about the forthcoming events which will be organised by the Students Forum.

The participants benefitted a lot from the session.

INTERNATIONAL ECONOMICS STUDY GROUP

Meeting on “21 Lessons for the 21st Century & Clean Disruption” held on 24th October, 2018 at BCAS Conference Hall

International Economics Study Group conducted a meeting on 24th October, 2018 at BCAS Conference Hall to discuss the topic “21 Lessons for the 21st Century & Clean Disruption” which was addressed by CA. Abhay Bhagat.

The Speaker presented the findings from the books: (1) Prof. Yuval Noah Harari’s bestselling books: Sapiens- A Brief History of Humankind (2) Homo Deus- A Brief History of Tomorrow and (3) 21 Lessons for the 21st Century. The book 21 Lessons from the 21st Century brings out that in a world deluged by irrelevant information, clarity is power. The Speaker explained that 21 Lessons for the 21st Century cuts through the muddy waters and confronts some of the most urgent questions on today’s global agenda. Some of the main learnings are: Whoever owns the data wins, which is why everyone struggles for it. Education must show us how to navigate information and not give us more of it.

CA. Abhay Bhagat also presented his findings on Tony Saba’s book – Clean Disruption Technology, Mega Trends Disrupting Public & Private transportation wherein the author brings out Technology based disruption – A disruption happens when a new product or service helps create a new market and significantly weakens, transforms or destroys existing market.

The author explains that the key technologies that are disrupting transportation are Self Driving vehicles, Electric Vehicles, Energy Storage, Mobile Internet/Cloud, Sensors /IoT & Big Data. The self-driving cars are disruptive as these would be 5 times more efficient than existing cars, cheaper fuel (10 times), life cycle of car (from currently 1.5 lakh km to 5.0 lakh km), present car has 2000 moving parts and EV has 18 to 20 moving parts and EV is computer tablet on wheel.

The author brings out the case for Self-driving vehicles because (1) Millions of people die from road accident and main cause of the accident is driver’s mistake 2) No parking space required as these Self-driving cars can run 24 hours (3) all cars will talk to one another and decide fastest route and giving direction to nearest car.
The meeting was quite interactive and had a huge takeaway for the participants.

A D Shroff Memorial Lecture on “The Importance of Independent Regulatory Institution The Case of Central Bank” held jointly by Forum of Free Enterprise, A. D. Shroff Memorial Trust, Bombay Chartered Accountants’ Society and Indian Merchants’ Chamber on 26th October, 2018

The A D Shroff Memorial lecture meeting on The Importance of Independent Regulatory Institution ‘The Case of Central Bank’ was held jointly by Forum of Free Enterprise, A. D. Shroff Memorial Trust, BCAS and Indian Merchants’ Chamber on 26th October, 2018 at IMC Hall. The meeting was addressed by Dr Viral V. Acharya, Deputy Governor, Reserve Bank of India.

The Speaker explained that a central bank performs several important functions for the economy. It controls the money supply, sets the rate of interest on borrowing and lending money, manages the external sector including the exchange rate, supervises and regulates the financial sector notably banks, often regulates credit and foreign exchange markets and seeks to ensure financial stability, domestic as well as on the external front.

He also elaborated as to why is the central bank separate from the Government? He mentioned that the world over, the central bank is set up as an institution separate from the Government. Its powers are enshrined as being separate through relevant legislation. Its tasks being somewhat complex and technical, Central Banks are ideally headed and manned by technocrats or field experts–typically economists, academics, commercial bankers and occasionally private sector representatives, appointed by the Government but not elected to the office and they exercise their powers independently.

He also elucidated the role of Reserve Bank in regulating Monetary Policy, Debt Management and Exchange Rate Management and ongoing challenges in maintaining independence of Reserve Bank i.e. regulation of Public Sector Banks, RBI’s Balance Sheet strength and Regulatory Scope.

In his concluding remarks, the Speaker thanked Mr. Malegam for inviting him to address the lecture meeting and extended his warm gratitudes to late A. D. Shroff for his contribution to the economy and in co-founding of Free Forum Enterprise Think Tank in the year 1954. The meeting was a huge takeaway for the participants who got enlightened from the lecture delivered by the learned Speaker.

DIRECT TAX LAWS STUDY CIRCLE

Meeting on ‘E-Assessments” held on 30th October 2018 at BCAS Conference Hall

Direct Tax Laws Study Circle conducted a meeting on E-Assessments Proceedings under the Income Tax Act on 30th October, 2018 at BCAS Conference Hall. The Chairman of the session, CA. Ameet Patel gave his opening remarks and pointed out to various initiatives taken by the Government and Income Tax Department regarding digitalisation and e-governance of various compliances, reporting and proceedings.

The Group leader CA. Romil Jain gave a brief background regarding the rationale of introduction of e-proceedings which has been a part of E-governance initiative, to facilitate ease of communication between the taxpayer and the Tax Authorities through electronic means. He educated as to how the concept of e-assessments was inserted and integrated in the provisions of the Income tax Act. He pointed that currently there are 3 branches of e-proceedings which are in operation – (1) E-return processing (2) E-assessment and (3) E-issue of refund.

CA. Romil Jain also took the group through step-by-step method for making submissions though e-assessment tab available on the income tax website. He pointed out to certain key points which one needs to keep in mind:

  • Considering the auto-closure of e-filing window 7 days before the time barring date, assessee must act vigilantly and avoid keeping submissions till the last date.
  • Considering the fact that e-filing portal has idle session time of 15 minutes, assessee should be ready till all the attachments to be uploaded in 1 folder, before login to e-filing website.
  • Retain exclusive email address and mobile number of the authorised person for communication with Tax authorities.
  • Any proceedings conducted manually (in case of exceptions, as listed in CBDT Instructions) shall be kept on record by way of mentioning about the same in subsequent online submission.
  • In the absence of personal hearing, legal issues and commercial rationale should be drafted very clearly and concisely, to avoid any incorrect interpretation.

The meeting was very fruitful for the participants experiencing rich knowledge sharing by the learned Speaker.

BEPS STUDY GROUP

Meeting on “Continuation of Action Plans 8 to 10 – Aligning Transfer Pricing Outcomes with Value Creation” held on 2nd November, 2018 at BCAS Conference Hall.

BEPS Study Group organised the captioned meeting on 2nd November, 2018 at BCAS Conference Hall wherein CA. Ganesh Rajgopalan and CA. Shreyas Shah led the discussion. The Speakers put forth several examples and case studies and explained concepts relating to intangibles and their ownership and also to whom returns from intangibles to be allocated. A short presentation on the concept of risk, the principles of control over risk and capacity to assume risk were also deliberated. Some aspects of hard to value intangibles were explained by the group leaders.

The meeting was very interactive and the participants benefitted a lot from the sessions.

HUMAN RESOURCE DEVELOPMENT STUDY CIRCLE

Meeting on “Eye Health and Eye Vision” held on 13th November, 2018 at BCAS Conference Hall by Presenter: Viram Agrawal of Vision Yoga

Human Resource Development Study Circle organised a meeting on the captioned subject at BCAS Conference Hall which was presented by Mr. Viram Agrawal of Vision Yoga who is working to spread awareness about “better eyesight at any age”.

The Speaker provided some useful insights on the subject as listed below:

(1) Preservation of good eyesight is almost impossible without proper eye education and mental relaxation (2) Keep your eyelids half closed, while reading or watching a distant object (3) Shift your glance constantly from one point to another (4) All errors of refraction are functional and therefore curable (5) Mental strain creates an error of refraction and mental relaxation can cure it (6) Eyewash tones up the eye muscles (7) Vision Yoga is a holistic method of treating eye disorders which is a part of the Vedic tradition as given in the Chakshushopanishad and Netra Dwayam – Upanishads of the eyes (8) This Yoga course benefits all eye disorders like myopia, hypermetropia, presbyopia, squint, cataract, nystagmus, etc.

The Speaker believes that exercises can help to avoid Glasses, Lasik Surgery and improve eye vision and also explained some eye treatments for eye ailments.

The participants were hugely benefitted from the presentation by the learned Speaker.

Intensive Study Course on “Data Analytics for Internal Audit” held on 16th and 17th November, 2018

The GRC subgroup of the Accounting and Auditing Committee organised a 2-day hands-on workshop on “Data Analytics for Internal Audit – using Microsoft Excel at Hotel Parle International, Parle East. The Speaker for the entire 2-day workshop was CA. Nikunj Shah.

This workshop was an immersive learning experience that enabled participants to understand, appreciate and experience the power of MS Excel for performing data analytics for Internal Audit. CA. Nikunj Shah captivated the audiences in his multi-lingual style, narrating anecdotes and stories, spinning a magical web for the spell-bound audiences. The case study based teaching method adopted by the Speaker with real data, enabled the participants to gain a first-hand experience of using data analytics with confidence.

His depth of knowledge, his mastery of MS Excel and his love for teaching together made for a workshop that was insightful, entertaining and educating. Nikunj successfully ignited the fire in the participants to explore and integrate Data Analytics to deliver superior internal audits. The meeting was quite participative and was a huge takeaway for the participants.

FEMA STUDY CIRCLE

Meeting on “Current and Capital Account Transactions” held on 22nd November, 2018 at BCAS Conference Hall

A FEMA Study Circle Meeting was held on 22nd Novemeber, 2018 where CA. Manoj Shah led the discussion on the topic of “Current and Capital Account Transactions”. He deliberated upon the concept of current and capital account transaction which draws its importance from “Balance of Payment”. The members present discussed the definition of the Capital Account Transactions at length and raised various issues arising out of inbound and outbound contingent liabilities. The group leader and members discussed at length an issue as to whether indemnity given by Resident to Non Resident can be treated same as guarantee? The group leader also discussed implications under FEMA in relation to the gift of money, foreign security and immovable property by resident to the non-resident and vice-versa. The discussion also took place on setting up of a Trust where beneficiaries are non-resident Indians. The discussion also took place about trade payable outstanding for more than six months and few compounding orders on the same subject were discussed. The members appreciated the efforts put in by the group leader and requested him to take up the balance slides in the next study circle meeting.

HERITAGE WALK 2018 AT LONAVALA

Heritage Walk 2018 jointly with NGO “SAMPARC (Social Action for Manpower Creation)” held on 25th November, 2018 at Lonavala

A heritage walk was organised by the HRD Committee in association with NGO SAMPARC (Social Action for Manpower Creation) with a vision of enlisting heritage monuments – Bhaje, Karla, Bedse Caves and Visapur & Lohagad Fort in UNESCO heritage list.

Apart from supporting a cause, the walk gave all the participants an opportunity to meet new people from different walks of life and interact with them. The walk was enhanced by folk culture such as cultural events and traditional cuisines.

The aim and vision of SAMPARC Heritage Walk 2018 enshrined:

(1) Spreading awareness about the cleanliness and care requirements of heritage monuments. (2) Enabling citizens and tourists to relate to our varied culture and mesmerising history. (3) Attracting tourists and people from urban areas towards a historical heritage of our country. (4) Encouraging and inspiring people to preserve the precious heritage and help enlist Bhaje, Karla, Bedse Caves and Lohagad, Visapur fort in UNESCO Heritage list. (5) Motivating people from different communities to come together for protecting and supporting underprivileged children.

The walk commenced from footsteps of Bhaje Caves up to Lohagad Fort, which is 3,389 feet above the sea level. Total climb uphill and the same route downhill was approx. 7.2 kms. Along the walk the participants savoured the traditional Maharashtrian delicacies such as pithala-bhakari, thecha, vada pav, corn, etc., and enjoyed the undiscovered panoramic views. They also got an opportunity to feel traditional elegance and view various cultural performances including lavani, bhajan, potraj, tulsi vrundavan, Mallakhamb, etc.

The Heritage Walk was indeed a very pleasant and inspiring experience for the participants to preserve the beauty and identity of our ancient heritage.

INTERNATIONAL ECONOMICS STUDY GROUP

Meeting on “Fear: Trump in the White House” and Current Economic Developments held on 28th November, 2018 at BCAS Conference Hall

International Economics Study Group organised the captioned meeting on 28th November, 2018 at BCAS Conference Hall, to discuss Bob Woodward’s book “Fear: Trump in the White House” and Current Economic Developments. CA Harshad Shah led the discussion and presented his findings of the book. He explained that Bob Woodward is an American journalist and author who reported on the Watergate scandal for The Washington Post which led to Nixon’s resignation. The book chronicles initial years of Trump’s presidency and portrays the Trump White House as chaotic and disloyal to the president. The book’s title is derived from a remark that then-candidate Trump made in an interview with Woodward in 2016, “Real power is Fear”. Woodward has a reputation for meticulous note-taking and interviewing, combined with recording nearly all of his interviews.

The main focus of the book is national security, economic policy, North Korea, Trade, Afghanistan, Syria & the Mueller investigation. Probably the most significant and worrying claims are about Trump’s foreign policy impulses and his not understanding the way the US government debt cycle & balance sheet worked, confused of the federal debt and US monetary policy and trade. The Book brings out that Trump was clueless that orders were removed from his desk. Trump ran a campaign and promised to eliminate the entire federal debt during his presidency and offered a solution “Just run the presses – print money” which would be detrimental to the fiscal and economic health of the US.

The Group also discussed 32 % slide in oil prices over past two months in which Brent crude dropped from $86.70 a barrel to a low of $58.41, lowest levels in over a year (Since October 2017) and this decline happened due to increased supply, lower demand forecast, dilution of American sanctions against Iran, Trump`s prompting to Saudi Arabia & massive unwinding of positions by hedge funds. This would bring relief to India in terms of lower energy prices, inflation, current account deficit & currency.
The Group also deliberated on emerging geo political situations in our neighbourhood such as Pakistan & Afghanistan which might have long term impact on our security concerns.

The meeting was a good learning experience and participants benefitted a lot from the session.

CORPORATE LAW CORNER

 7. 
Transmission Corporation of Andhra Pradesh Ltd. vs. Equipment Conductors
& Cables Ltd.
[2018] 98 taxmann.com 375 (SC) Date of Order: 23rd October, 2018


Section 9 of Insolvency and Bankruptcy
Code, 2016 – Existence of an undisputed debt is essential to initiate the
Corporate Insolvency Resolution Process – IBC is not intended to substitute
recovery forum – IBC proceedings cannot be initiated if there exists a dispute
with respect to the claim


FACTS


A Co is in the activities relating to
transmission of electricity. It had awarded certain contracts to E Co for
supply of goods and services. Some disputes arose and E Co initiated
arbitration proceedings. 82 claims were filed by E Co and Arbitral Council held
that 57 of those claims were barred by law of limitation and the rest were
awarded in favour of E Co.


E Co challenged
the said part of the award of the Arbitral Council, but was not successful. On
the basis of certain observations made by the High Court of Punjab and Haryana
in its appeal decision dated 29th January, 2016, E Co further
attempted to recover the amount by filing execution petition before the Civil
Court, Hyderabad. However, that attempt of E Co was also unsuccessful inasmuch
as the High Court of Judicature at Hyderabad categorically held that since that
particular amount was not payable under the award, execution was not
maintainable.


After failing
to recover the amount in the aforesaid manner, E Co issued notice to A Co u/s.
8 of the Insolvency and Bankruptcy Code, 2016 (“IBC”) treating itself as the
operational creditor and A Co as the corporate debtor. Although A Co refuted
this claim, E Co proceeded to file an application u/s. 9 of the IBC which was
dismissed by the NCLT. An appeal was filed before the NCLAT and it passed an
interim order directing the parties to settle the “claim”. A Co filed an appeal
before the Supreme Court against the said order of NCLAT.


HELD


The Supreme Court examined the facts in case
and observed that the NCLAT perceived that A Co owes money to E Co and for this
reason a chance was given to A Co to settle the claim of E Co, failing which
order would be passed for initiation of Corporate Insolvency Resolution Process
(“CIRP”).


Supreme Court reading the provisions of
section 9 of the IBC observed that existence of an undisputed debt is sine qua
non of initiating CIRP. It also follows that the adjudicating authority shall
satisfy itself that there is a debt payable and there is operational debt and
the corporate debtor has not repaid the same.


The Court relying on its own judgment in the
case of Mobilox Innovations Private Limited vs. Kirusa Software Private
Limited [2018] 1 SCC 353
observed that IBC was not intended to be
substitute to a recovery forum. Whenever there was existence of real dispute,
the IBC provisions could not be invoked.   


The Appeal was allowed by the Supreme Court
and the order of NCLAT was set aside. After examination of facts, Supreme Court
held that order of NCLT was justified and that no purpose would be served by
remanding the matter back to NCLAT. It accordingly quashed appeal filed by E Co
as also the miscellaneous applications filed by it before the NCLAT.


8.  Radius Infratel Pvt. Ltd. vs. Union Bank of
India
Company Appeal
(AT) (Insolvency) No. 535 of 2018
Date of Order: 13th
November, 2018


Section 7 of the insolvency and
bankruptcy code, 2016 – appeal filed by corporate debtor is not maintainable
after order of moratorium is passed and interim resolution professional has
been appointed
facts


UBI filed an application for initiating corporate
insolvency resolution process (“CIRP”) u/s. 7 of the Insolvency and Bankruptcy
Code, 2016 (“IBC”) against R Co with National Company Law Tribunal (“NCLT”).
NCLT admitted the said petition; ordered moratorium and appointed the Interim
Resolution Professional.


R Co preferred an appeal against the order
of NCLT. 


HELD


NCLAT relied on the decision of Supreme
Court in the case of Innoventive Industries Ltd. vs. ICICI Bank and Ors
(2018)1 SCC 407
and passed an order on 14.09.2018 to hold that an appeal at
the instance of corporate debtor was not maintainable in law. R Co prayed that
one of the shareholders of R Co be made the applicant and transpose R Co
through ‘Resolution Professional’ as the second respondent. NCLAT further
directed that R Co may file an affidavit to show that there was no ‘debt due’
or there was no ‘default’ as on the date of filing of the petition u/s. 7 of
the IBC.


As no affidavit was filed and neither was a
substitution application made, NCLAT on 09.10.2018 passed an order allowing for
extension of time which was prayed by R Co. However, as no one appeared from R
Co on the said date, the appeal filed was dismissed by NCLAT.


It was held that shareholder / director of R
Co could move an appeal in accordance with the law if the same was not barred
by limitation.
 

 

ALLIED LAWS

10. Binding Precedent – Lower authorities to
follow the precedent – Contempt action may be taken.
 

Mangala Ispat (Jaipur) Pvt. Ltd. vs. Union
of India 2018 (15)  G.S.T.L. 487 (Raj.)


A matter was remanded back to the Assistant
Commissioner with a direction to pass a fresh order regarding excise duty
liability in the light of the direction given by the Supreme Court. Order of
the Division Bench of this court was not challenged by the Department.
Assistant Commissioner and the commissioner had allowed the credit relying on
the Supreme Court judgment. However, the Commissioner of Excise Department and
the Tribunal made observations against the High Court and the Supreme Court
decisions.


It was held that it was a well settled
principle of law that the law declared by the Supreme Court is binding on all
and when the Division Bench of this Court has held that the judgment is
applicable against which no SLP was preferred, any lower authority in rank
observing that the High Court was not sure about the similarity of the issue in
both the cases otherwise the Bench could have decided the case, in our
considered opinion, these observations by Commissioner (Appeals) in Appeal Memo
is not only objectionable but it is not permissible under law. We were inclined
to grant even the prayer for contempt but to avoid any delay since the sufferer
is the petitioner, we have restrained ourselves from issuing any contempt
notice against the officers.


Even the Tribunal while setting aside the
order of the First two Authorities has not given any reasons and simply
accepted the appeal memo and has allowed the appeal without reversing the
finding arrived at by both the authorities and observed that the Supreme Court
judgment is not binding. In our considered opinion, the first two authorities
rightly observed and allowed the proceedings in favour of petitioner/assessee
and the Tribunal as well as two Commissioners of Excise department exceeded the
jurisdiction and committed an error in making observations against the High
Court and the Supreme Court decisions.


11. Coparcenary Property – Daughter can
become a coparcenor only when the father is alive. [Hindu Succession Act, 1956;
Section 6]
Anjalai and Ors. vs. K. Rathina and Ors.
AIR 2018 (NOC) 797 (Mad.)


It was held that the Central Amendment to
section 6 of the Hindu Succession Act, came into force with effect from
09.09.2005. As per the said amendment, from that date onwards, daughters will
be the coparceners along with the sons from their birth. The daughters can
become coparceners only when the father is alive and when the father is not
alive, they cannot become coparceners along with the brother.


12.
Family Arrangement – Document recording division of properties amongst Muslim family may not be registered. [Muslim
Law]


Ajambi vs. Roshanbi and Ors. (2017) 11
Supreme Court Cases 544


Deceased had made arrangements with regard
to his property during his lifetime and the said arrangements had been
subsequently recorded in that document, which had been duly acted upon by the
revenue authorities by dividing the suit property into two different parts. The
property which had been divided by deceased was in occupation of the respective
parties and the said fact has also been recorded in the revenue record.

The question
arose as to whether the High Court erred in agreeing with view expressed by
lower Appellate Court mainly on ground that document had not been registered as
it ought to have been registered as it was compulsorily registrable.


It was held that the said document was not
compulsorily registrable since it was a mere arrangement i.e. The arrangement
so made was duly accepted by the family members and it was also acted upon.
Only thereafter a formal record of the said fact. There is no concept of joint
family in Muslims but it was open to deceased to give his property to his
children in a particular manner during his lifetime, which he rightly did, so
as to avoid any dispute which could have arisen after his death. The
arrangement so made was duly accepted by the family members and it was also
acted upon. Only thereafter a formal record of the said fact was made by late
deceased in the document.


13. Post Office – Delay in delivery –
Liability. [Indian Post Office Act, 1898; Section 6]


Post Master,
Main Post Office, Jagdalpur and Ors. vs. Rajesh Nag and Ors. AIR 2018
Chhattisgarh 156


The short
question involved in the writ petition was whether Permanent Lok Adalat, Public
Utility Services is justified in granting damages to the extent of Rs. 25,000/-
to respondent No. 1 in light of the provisions contained u/s. 6 of the Indian
Post Office Act, 1898 which grant exemption from liability for loss,
misdelivery, delay or damage?


The respondent No. 1 made an application for
a post to the Bastar University, for which he sent an application by speed post
on 22.12.2012 and paid the necessary postal charges, as the last date for
submission of the application was 24.12.2012, but the application reached the
Bastar University on 26.12.2012 and since the application was not received well
in time, respondent No. 1 was not called for interview, leading to filing of
claim before the Permanent Lok Adalat claiming damages to the extent of Rs.
20,00,000/- with interest at the rate of 18% and cost.


It was argued that since the delay was not
caused fraudulently or willingly, the petitioner/Union of India was not
responsible for the damages, if any, in light of section 6 of the Act of 1898.


It was observed that the Post Office which
is run by the Government shall not be liable for delay caused in delivery of
the postal articles either by ordinary or registered post, except the liability
which may be expressed in terms undertaken by the Central Government.


It was held that, the order of the Permanent
Lok Adalat granting damages to the extent of Rs. 25,000/-, along with interest,
cost and Advocate fee deserves to be and was thereby set aside being contrary
to section 6 of the Indian Post Office Act and Rules made thereunder and
consequently, it was thereby quashed.


14. Will – Probate Court – Should have original jurisdiction-Probate is conclusive. [Code of Civil Procedure; Sections 151, 10] Rai Sharwan Kumar vs. Rai Bharat Kumar AIR
2018 Allahabad 257


A question came up before the Court with
respect to deciding the validity of the Will, which was objected to on the
ground that the Civil Court will have no jurisdiction on the original side to
go into the question for validity of the Will, but a competent Court would have
such jurisdiction.


It was argued that a court has inherent
powers to make such orders as may be necessary for the ends of the justice or
to prevent abuse of the process of the court as provided u/s. 151 of the Code
of Civil Procedure.


However the counter-argument taken was based
on section 10 of the Code of Civil Procedure which provides the rule with
regard to stay of suits where things are under consideration or pending
adjudication by a court.


It was observed by the honourable court that
the probate granted by the Competent Court is conclusive of the validity of the
Will until it is revoked and no evidence can be admitted to impeach it except in
a proceeding taken for revoking the probate.


When a probate was granted, it operates upon
the whole estate and establishes the Will from the death of the testator.
Probate is conclusive evidence not only of the factum, but also of the validity
of the Will and after the probate has been granted, in is incumbent on a person
who wants to have the Will declared null and void, to have the probate revoked
before proceeding further. That could be done only before the Probate Court.


It was held that that the Court of Probate
alone has jurisdiction and is competent to grant probate to the Will annexed to
the petition in the manner prescribed under the Succession Act, and that such a
declaration by the Probate Court binds not only the defendants but
everyone else.

FROM PUBLISHED ACCOUNTS

Illustration of Qualified
Opinion on account of alleged improper transactions with related parties

Fortis Healthcare Ltd (31st March 2018) From Auditors’ Report on Standalone Ind AS Financial Statements


Basis for Qualified Opinion


1. As explained in Note 30 of the Standalone Ind
AS Financial Statements, pursuant to certain events/transactions, the erstwhile
Audit and Risk Management Committee (the ‘ARMC’) of the Company decided to
carry out an independent investigation by an external legal firm on certain
matters more fully described in the said Note. The terms of reference for the
investigation, the significant findings of the external legal firm (including
identification of certain systemic lapses and override of internal controls),
which are subject to the limitations on the information available to the
external legal firm and their qualifications and disclaimers as described in
their Investigation Report, are summarised in the said Note.


Also, as
explained in the said note:


a) As per the assessment of the Board, based on
the investigation carried out through the external legal firm, and the
information available at this stage, all identified / required
adjustments/disclosures arising from the findings in the Investigation Report,
have been made in these Standalone Ind AS Financial Statements.


b) With respect to the other matters identified in
the Investigation Report, the Board intends to appoint an external agency of
repute to undertake a scrutiny of the internal controls and compliance
framework in order to strengthen processes and build a robust governance
framework. They will also assess the additional requisite steps to be taken in
relation to the significant matters identified in the Investigation Report
including, inter alia, initiating an internal enquiry.


c) At this juncture the Board is unable to make a
determination on whether a fraud has occurred on the Company in respect of the
matters covered in the investigation by the external legal firm, considering
the limitations on the information available to the external legal firm and
their qualifications and disclaimers as described in their Investigation
Report.


d) Various regulatory authorities are currently
undertaking their own investigation (refer Note 31 of the Standalone Ind AS
Financial Statements), and it is likely that they may make a determination on
whether any fraud or any other non-compliance/ illegalities have occurred in
relation to the matters addressed in the Investigation Report.


e) Any further
adjustments/disclosures, if required, would be made in the books of account
pursuant to the above actions to be taken by the Board / regulatory
investigations, as and when the outcome of the above is known.


In view of
the above, we are unable to comment on the regulatory non-compliances, if any,
and the adjustments / disclosures which may become necessary as a result of
further findings of the ongoing or future regulatory / internal investigations
and the consequential impact, if any, on these Standalone Ind AS Financial
Statements.


2. As explained in Note 12 of the Standalone Ind
AS Financial Statements, a Civil Suit has been filed by a third party (to whom
the ICDs granted by Fortis Hospitals Limited, a subsidiary of the Company, were
assigned – refer Note 30 of the Standalone Ind AS Financial Statements)
(‘Assignee’ or ‘Claimant’) against various entities including the Company
(together “the Defendants”), before the District Court, Delhi and have, inter
alia
, claimed implied ownership of brands “Fortis”, “SRL” and “La-Femme” in
addition to certain financial claims and for passing a decree that consequent
to a Term Sheet dated 6th December, 2017 (‘Term Sheet’) with a
certain party, the Company is liable for claims owed by the Claimant to the
certain party. 


The
Company has filed written statement denying all allegations made against it and
prayed for dismissal of the Civil Suit on various legal and factual grounds.
The Company has in its written statement also stated that it has not signed the
alleged binding Term Sheet with the said certain party.


Whilst
this matter was included as part of the investigation carried out by the
external legal firm referred to in paragraph 1 above, the external legal firm
did not report on the merits of the case since the matter was sub judice.


In
addition to the above, the Company has also received four notices from the
Claimant claiming (i)  Rs. 1,800.00 lacs
as per notices dated 31st May, 2018 and 1st June, 2018
(ii)  Rs. 21,582.00 lakh as per notice
dated 4th June, 2018; and (iii) and Rs 1,962.00 lakh as per notice
dated 4th June, 2018. All these notices have been responded to by
the Company denying any liability whatsoever.


Separately,
the certain party has also alleged rights to invest in the Company. It has also
alleged failure on part of the Company to abide by the aforementioned Term
Sheet and has claimed ownership over the brands as well.


Since the
Civil Suit is sub-judice, the outcome of which is not determinable at this
stage, we are unable to comment on the consequential impact, if any, of the
above matters on these Standalone Ind AS Financial Statements.


3. As explained in Note 6(5) of the Standalone Ind
AS Financial Statements, related party relationships as required under Ind AS
24 – Related Party Disclosures and the Companies Act, 2013 are as identified by
the Management taking into account the findings and limitations in the
Investigation Report (Refer Notes 30 (d) (iv), (ix) and (x) of the Standalone
Ind AS Financial Statements) and the information available with the Management.
In this regard, in the absence of specific declarations from the erstwhile
directors on their compliance with disclosures of related parties, especially
considering the substance of the relationship rather than the legal form, the
related parties have been identified based on the declarations by the erstwhile
directors and the information available through the known shareholding pattern
in the entities. Therefore, there may be additional related parties whose
relationship may not have been disclosed to the Company and, hence, not known
to the Management. 


In the
absence of all required information, we are unable to comment on the
completeness/accuracy of the related party disclosures/details in these
Standalone Ind AS Financial Statements and the compliance with the applicable
regulations and the consequential impact, if any, of the same on these
Standalone Ind AS Financial Statements.


4. As explained in Note 35 of the Standalone Ind
AS Financial Statements, the Company having considered all necessary facts and
taking into account external legal advice, has decided to treat as non-Est the
Letter of Appointment dated 27th September, 2016, as amended,
(“LoA”) issued to the erstwhile Executive Chairman in relation to his role as
‘Lead: Strategic Initiatives’ in the Strategy
Function. The external legal counsel has also advised that the payments made to
him under this LOA would be considered to be covered under the limits of
section 197 of the Companies Act, 2013. The Company is in the process of taking
suitable legal measures to recover the payments made to him under the LoA as
also to recover all the Company’s assets in his possession. The Company has
sent a letter to the erstwhile Executive Chairman seeking refund of the excess
amounts paid
to him.


In view of
the above, the amounts paid to him under the aforesaid LoA and certain
additional amounts reimbursed in relation to expenses incurred (in excess of
the amounts approved by the Central Government u/s. 197 of the Companies Act,
2013 for remuneration & other reimbursements), aggregating to Rs. 2,002.39
lakh is shown as recoverable in the Standalone Ind AS Financial Statements of
the Company for the year ended 31st March, 2018.
 


However,
considering the uncertainty involved on recoverability of the said amounts a
provision of Rs. 2,002.39 lakh has been made which has been shown as an exceptional item.
 


As stated
above, due to the nature of dispute and uncertainty involved, we are unable to
comment on the tenability of the refund claim, the provision made for the
uncertainty in recovery of the amounts, the recovery of the assets in
possession of the erstwhile Director and other non-compliances, if any, with
the applicable regulations and the consequential impact, if any, of the same on
these Standalone Ind AS Financial Statements.


Qualified Opinion


In our
opinion and to the best of our information and according to the explanations
given to us, except for the effects / possible effects of the matters described
in the Basis for Qualified Opinion paragraphs above, the aforesaid Standalone
Ind AS 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 Ind AS
and other accounting principles generally accepted in India, of the state of
affairs of the Company as at 31st March, 2018, and its loss, total
comprehensive loss, its cash flows and statement of changes in equity for the
year ended on that date.


Emphasis of Matter


We draw
attention to Note 33 of the Standalone Ind AS Financial Statements wherein it
has been explained that the Standalone Ind AS Financial Statements have been
prepared on a going concern basis for the reasons stated in the said Note.


Our
opinion is not modified in respect of this matter.


Report on
Other Legal and Regulatory Requirements


1. As required by section 143(3) of the Act, based
on our audit we report, to the extent applicable that:


a) We have sought and except for the matters
described in the Basis for Qualified Opinion paragraphs above, obtained all the
information and explanations which to the best of our knowledge and belief were
necessary for the purposes of our audit of the aforesaid Standalone Ind AS
Financial Statements.


b) Except for the effects / possible effects of
the matters described in the Basis for Qualified Opinion paragraphs above, in
our opinion proper books of account as required by law relating to preparation
of the aforesaid Standalone Ind AS Financial Statements have been kept so far
as it appears from our examination of those books.


c) The Standalone Balance Sheet, the Standalone
……….


d) Except for the effects/ possible effects of the
matters described in the Basis for Qualified Opinion paragraphs above, in our
opinion the aforesaid Standalone Ind AS Financial Statements comply with the
Indian Accounting Standards prescribed u/s. 133 of the Act


e) The matters described in the Basis for
Qualified Opinion paragraphs and the Emphasis of Matter paragraph above, in our
opinion, may have an adverse effect on the functioning of the Company.


f)   On the basis of the written representations
………..


g) The qualification relating to maintenance of
accounts and other matters connected therewith are as stated in the Basis for
Qualified Opinion paragraph above.


h) With respect to the adequacy of the Internal
Financial Controls over Financial Reporting of the Company and the operating
effectiveness of such controls, refer to our separate Report in “Annexure A”.
Our report expresses an adverse opinion on the Internal Financial Controls over
Financial Reporting of the Company, for the reasons stated therein.


i)   With respect to the other matters to be
included in the Auditor’s Report in accordance with Rule 11 of the Companies
(Audit and Auditor’s) Rules, 2014, as amended, in our opinion and to the best
of our information and according to the explanations given to us:


a. Except for the possible effects of the matters
described in paragraph 2 of the Basis for Qualified Opinion above, the
Standalone Ind AS Financial Statements disclose the impact of pending
litigations on the financial position of the Company. Refer Note 11 and 12 of
the Standalone Financial Statements

 b.  Except
for the possible effects of the matters described in paragraph 4 of the Basis
for Qualified Opinion above, the Company did not have any long-term contracts
including derivative contracts for which there were any material foreseeable
losses. Refer Note 9(e) of the Standalone Ind AS Financial Statements


c. There were no amounts which were …………….


2. As required by the Companies (Auditor’s Report)
Order, 2016 (“the Order”) issued by the Central Government in terms of section
143(11) of the Act, we give in “Annexure B” a statement on the matters
specified in paragraphs 3 and 4 of the Order which is subject to the possible
effect of the matters described in the Basis for Qualified Opinion paragraphs
of our Audit Report and the material weakness described in Basis of Adverse
Opinion in our separate Report on the Internal Financial Controls over
Financial Reporting.


From Report on Internal Financial Controls over Financial Reporting


Basis for Adverse opinion


The
matters described in the Basis for Qualified Opinion paragraphs of our Audit
Report on the Standalone Ind AS Financial Statements for the year ended 31st
March, 2018, and the control weaknesses observed in the Company’s
financial closing and reporting process in regard to assessment of the
impairment of goodwill and investments, where the Company did not have adequate
internal controls for identifying impairment indicators, selection and
application of various inputs to be used in testing, review and maintaining
documentation for workings used in testing and concluding whether there is any
impairment, have resulted in material weaknesses in the internal financial
controls over financial reporting as the Company have not (a) adhered to their
internal control policies (b) safeguarded their assets (c) prevented and
detected possible frauds and errors (d) ensured the accuracy and completeness of the accounting records, and (e) prepared
reliable financial information on a timely basis.


A
‘material weakness’ is a deficiency, or a combination of deficiencies, in
internal financial control over financial reporting, such that there is a
reasonable possibility that a material misstatement of the company’s annual or
interim financial statements will not be prevented or detected on a timely
basis.


Adverse Opinion


In our
opinion, to the best of our information and according to the explanations given
to us, because of the effect/possible effect of the material weaknesses
described in the Basis for Adverse Opinion paragraph above on the achievement
of the objectives of the control criteria, the Company, has not maintained
adequate internal financial controls over financial reporting and the internal
controls were also not operating effectively as of 31st March, 2018
based on the internal financial control over financial reporting criteria
established by the Company considering the essential components of internal
control stated in the Guidance Note on Audit of Internal Financial Controls
Over Financial Reporting issued by the Institute of Chartered Accountants of
India.


We have
considered the material weaknesses identified and reported above in determining
the nature, timing, and extent of audit tests applied in our audit of the
Standalone Ind AS Financial Statements of the Company for the year ended 31st
March, 2018 and these material weaknesses have, inter alia,
affected our opinion on the said Standalone Ind AS Financial Statements and we
have issued a qualified opinion on the said Standalone Ind AS Financial
Statements.


From Notes
to Standalone Financial Statements


30)    Investigation
initiated by the erstwhile Audit and Risk Management Committee


(a)   There were reports in
the media and enquiries from, inter alia, the stock exchanges received
by the Company about certain inter-corporate loans (“ICDs”) given by a wholly
owned subsidiary of the Company. The erstwhile Audit and Risk Management
Committee of the Company in its meeting on 13th February, 2018
decided to carry out an independent investigation through an external legal
firm.


(b)  The terms of reference of the
investigation, inter alia, comprised: (i) ICDs amounting to a total
of Rs. 49,414.00 lakh (principal), placed by the Company’s wholly-owned
subsidiary, Fortis Hospitals Ltd (FHsL), with three borrowing companies as on 1st
July, 2017; (ii) the assignment of these ICDs to a third party and the
subsequent cancellation thereof as well as evaluation of legal notice (now a
civil suit) received from such third party (refer Notes 12 above); (iii) review
of intra-group transactions for the period commencing FY 2014-15 and ending on
31st December, 2017 (refer Note 27 above); (iv) investments made in
certain overseas funds by the overseas subsidiaries of the Company (i.e. Fortis
Asia Healthcare Pte. Ltd, Singapore and Fortis Global Healthcare (Mauritius)
Limited); (v) certain other transactions involving acquisition of Fortis
Healthstaff Limited (“Fortis Healthstaff”) from a promoter group company, and
subsequent repayment of loan by said subsidiary to the promoter group company.


(c) The investigation report (“Investigation
Report”) was submitted to the re-constituted Board on 8th June,
2018.


(d)  The re-constituted Board discussed and
considered the Investigation Report and noted certain significant findings of
the external legal firm, which are subject to the limitations on the
information available to the external legal firm and their qualifications and
disclaimers as described in their investigation report, as follows:


(i) The Investigation Report, on the basis of
documents / emails reviewed and interviews conducted, revealed that the ICDs
were not given under the normal treasury operations of the Company/ FHsL
including under the treasury policy and the mandate of the Treasury Committee;
and were not specifically authorised by the Board of FHsL. All ICDs from
December 2011 were repaid until 31st March, 2016. However, from the
first quarter of the financial year 2016-17, it has been observed that a
roll-over mechanism was devised whereby, the ICDs were repaid by cheque by the
borrower companies at the end of each quarter and fresh ICDs were released at
the start of succeeding quarter under separately executed ICD agreements.
Further, in respect of the roll-overs of ICDs placed on 1st July,
2017 with the borrower companies, FHsL utilised the funds received from the
Company for the purposes of effecting roll-over.


(ii) In respect of ICDs granted, the Investigation
Report revealed that there were certain systemic lapses and override of
controls including shortcomings in executing documents and creating a security
charge. To clarify, the charge was later created in February, 2018 for the ICDs
granted on 1st July, 2017, while the Company/ FHsL was under
financial stress.


(iii) While the Investigation Report did not
conclude on utilisation of funds by the borrower companies, there are findings
in the report to suggest that the ICDs were utilised by the borrower companies
for granting/ repayment of loans to certain additional entities including those
whose current and/ or past promoters/ directors are known to/ connected with
the promoters of the Company.


(iv) In terms of the relationship with the
borrower companies, there was no direct relationship between the borrower
companies and the Company and / or its subsidiaries during the period December
2011 till 14th December, 2017 (these borrower companies became
related parties from 15th December, 2017). The Investigation Report
has made observations where promoters were evaluating certain transactions
concerning certain assets owned by them for the settlement of ICDs thereby
indirectly implying some sort of affiliation with the borrower companies. The
Investigation Report has observed that the borrower companies could possibly
qualify as related parties of the Company and/ or FHsL, given the substance of
the relationship. In this regard, reference was made to Indian accounting
Standards dealing with related party disclosures, which states that for
considering each possible related party relationship, attention is to be
directed to the substance of the relationship and not merely the legal form.


(v) Objections on record indicate that management
personnel and other persons involved were forced into undertaking the ICD
transactions under the repeated assurance of due repayment and it could not be
said that the management was in collusion with the promoters to give ICDs to
the borrower companies. Relevant documents/information and interviews also
indicate that the management’s objections were overruled. However, the former
Executive Chairman of the Company, in his written responses, has denied any
wrongdoing, including override of controls in connection with grant of the
ICDs.


(vi) There were certain systemic lapses in respect
to the assignment of the ICDs from FHsL to a third party in September 2017 (and
subsequent termination of the arrangement in January 2018), viz., no diligence
was undertaken in relation to the assignment, it was not approved by the
Treasury Committee and was antedated. The Board of FHsL took note of the same
only in February 2018.


(vii) Separately, it was also noted in the
Investigation Report that the aforesaid third party to whom the ICDs were
assigned has also initiated legal action against the Company. Whilst the matter
was included as part of the terms of reference of the investigation, the merits
of the case cannot be reported since the matter was sub-judice.

(viii)
During the year, the Company through its subsidiary (i.e. Escorts Heart
Institute and Research Centre Limited (“EHIRCL”)), acquired 71% equity interest
in Fortis Healthstaff Limited at an aggregate consideration of `3.46 lacs. Subsequently,
EHIRCL advanced a loan to Fortis Healthstaff Limited, which was used to repay
the outstanding unsecured loan amount of Rs 794.50 lakh to a promoter group
company. Certain documents suggest that the loan repayment by Fortis
Healthstaff Limited and some other payments to the promoter group company may
have been ultimately routed through various intermediary companies and used for
repayment of the ICDs /vendor advance to FHsL / Company.


(ix) The investigation did not cover all
related party transactions during the period under investigation and focused on
identifying undisclosed parties having direct/indirect relationship with the
promoter group, if any. In this regard, it was observed in internal
correspondence within the Company that transactions with certain other entities
have been referred to as related party transactions. However, no further
conclusions have been made in this regard.


(x) Additionally, it was observed in the
Investigation Report that there were significant fluctuations in the NAV of the
investments in overseas funds by the overseas subsidiaries during a short span
of time. Further, similar to the paragraph above, in the internal
correspondence within the Company, investments in the overseas funds have been
referred to as related party transactions. The investment was realsed in April
2018 with no loss in the principal value of investments.


(e) Other Matters:


In the
backdrop of the investigation, the Management has reviewed some of the past
information/ documents in connection with transactions undertaken by the
Company and certain subsidiaries. It has been noted that the Company through
its subsidiary (i.e. Fortis Hospitals Limited (“FHsL”)) acquired equity
interest in Fortis Emergency Services Limited from a promoter group company. On
the day of the share purchase transaction, FHsL advanced a loan to Fortis
Emergency Services Limited, which was used to repay an outstanding unsecured
loan amount to the said promoter group company. It may be possible that the
loan repayment by Fortis Emergency Services Limited to the said promoter group
company was ultimately routed through various intermediary companies and was
used for repayment of the ICDs /vendor advance to FHsL.


(f) Related party relationships as required under
Ind AS 24 – Related Party Disclosures and the Companies Act, 2013 are as
identified by the Management taking into account the findings and limitations
in the Investigation Report (Refer Notes 30 (d) (iv), (ix) and (x) above) and
the information available with the Management. In this regard, in the absence
of specific declarations from the erstwhile directors on their compliance with
disclosures of related parties, especially considering the substance of the
relationship rather than the legal form, the related parties have been
identified based on the declarations by the erstwhile directors and the
information available through the known shareholding pattern in the entities.
Therefore, there may be additional related parties whose relationship may not
have been disclosed to the Group and, hence, not known to the Management.


(g)  As per the assessment of the Board, based
on the investigation carried out through the external legal firm, and the
information available at this stage, all identified/required
adjustments/disclosures arising from the findings in the Investigation Report,
have been made in these Consolidated Ind AS Financial Statements.


(h)  With respect to the
other matters identified in the Investigation Report, the Board will appoint an
external agency of repute to undertake a scrutiny of the internal controls and
compliance framework in order to strengthen processes and build a robust
governance framework. Towards this end, they will also evaluate internal
organisational structure and reporting lines, the delegation of powers of the
Board or any committee thereof, the roles of authorised representatives and
terms of reference of executive committees and their functional role. We will
also assess the additional requisite steps to be taken in relation to the
significant matters identified in the Investigation Report, including inter
alia
, initiating an internal enquiry.


(i)  The regulatory authorities are currently
undertaking their own investigation (refer Note 31 below), and it is likely
that they may make a determination on whether any fraud or any other
non-compliance/ illegalities have occurred in relation to the matters addressed
in the Investigation Report on the basis of facts, including those facts that
the independent investigator would not have had access to, given their limited
role and limitations stated in the Investigation Report. Accordingly, in light
of the foregoing, the Board of Directors at this juncture is unable to make a
determination on whether a fraud has occurred. That said, the Board of Directors
is committed to fully co-operating with the relevant regulatory authorities to
enable them to make a final determination on these matters and to undertake the
remedial action, as required under, and to ensure compliance with, applicable
law and regulations.


Except for
the findings of the Investigation Report, including matters on internal control
described above, and inability of the Board of Directors to, at this juncture
(as stated above), make a determination on whether a fraud has occurred on the
Company considering the limitations on the information available to the
external legal firm and their qualifications and disclaimers as described in
their Investigation Report, proper and sufficient care has been taken for the
maintenance of adequate accounting records in accordance with the provisions of
the Act for safeguarding the assets of the Company and for preventing and
detecting fraud and other irregularities.


In the
event other exposures were to come to light, the Company / FHsL are committed
to appropriately addressing the same, including making additional provisions
where required.


(j) Any further adjustments/disclosures, if
required, would be made in the books of account pursuant to the above actions
to be taken by the Board / regulatory investigations, as and when the outcome
of the above is known.


31) Investigation by Various Regulatory Authorities


(a)   The Company received a communication
dated 16th February, 2018 from the Securities and Exchange Board of
India (SEBI), confirming that an investigation has been instituted by SEBI in
the matter of the Company. In the aforesaid letter, SEBI has summoned the
Company u/s. 11C (3) of the SEBI Act, 1992 to furnish by 26th February
26, 2018 certain information and documents relating to the short-term
investments of  Rs. 473 crore reported in
the media. Failure to produce the information required for investigation could
result in penalties as provided u/s. 15A and criminal proceedings under section
11C(6) of the SEBI Act, 1992. SEBI has also appointed forensic auditors to
conduct a forensic audit, who are also in the process of collating information
from the Company and certain of its subsidiaries. The Company / its
subsidiaries are in the process of furnishing all the requisite information and
documents requested by SEBI and its forensic auditors.


(b)   The Registrar of Companies (ROC) u/s.
206(1) of the Companies Act, 2013, inter alia, had also sought information
in relation to the Company. All requisite information in this regard has been
duly shared by the Company with the ROC.


(c) The
Company has also received a letter from the Serious Fraud Investigation Office
(SFIO), Ministry of Corporate Affairs, u/s. 217(1)(a) of the Companies Act,
2013, inter alia, initiating an investigation and seeking information in
relation to the Company, its material subsidiaries, joint ventures and
associates. The Company in the process of submitting all requisite information
in this regard with SFIO and has in this regard requested SFIO for additional
time to submit the information.


(d)  The Investigation Report of the external
legal firm has been submitted by the Company to the Securities and Exchange
Board of India, the Serious Frauds Investigation Office (“SFIO”) on 12th June,
2018.


The Company is fully co-operating with
the regulators in relation to the ongoing investigations to enable them to make
their determination on these matters. Any further adjustments/disclosures, if required,
would be made in the books of accounts as and when the outcome of the above
investigations is known.


 

 

GLIMPSES OF SUPREME COURT RULINGS

18.  Tapan Kumar Dutta vs. Commissioner of Income
Tax, West Bengal (24.04.2018) (2018) 404 ITR 28 (SC)

 

Search and seizure – Assessment of third person – A notice u/s.
158BD could be issued to a person with respect to whom search was not conducted
but undisclosed income was found as belonging to such person from the material
seized from the residence or business premises of the person with respect to
whom search was made u/s. 132 – Notice issued u/s. 158BC together with notice
issued on the person searched not valid – Subsequent notice u/s. 158BD was
valid

 

The Appellant was a partner in a
Partnership Firm by name “Nityakali Rice Mill” (in short ‘the Firm’).
On 06.11.1998, a search was conducted at the business premises of the Firm by
the Income Tax Department and several documents/books including a sum of Rs. 34
lakh were seized.

 

Thereafter, on 09.09.1999, a notice
was issued to the Appellant by the Assessing Officer u/s. 158BC of the Income
Tax Act, 1961 (in short ‘the IT Act’) to prepare and file a true and correct
return of his total income including the undisclosed income in respect of which
he was assessed for the block period 1989-90 to 1999-2000. On the very same
day, a separate notice u/s. 158BC was issued in the name of the said Firm by
the very same Assessing Officer. Pursuant to the same, the Appellant filed his
block return for the aforesaid period on 08.11.1999 declaring his aggregate
undisclosed income at Rs. 14 lakh.

 

Meanwhile, an application was filed
by the Appellant before the Additional Commissioner of Income Tax, Asansol,
praying for his intervention and issue of necessary direction to the Assessing
Officer u/s. 144A of the IT Act. On 14.08.2000, the Additional Commissioner
perused the records and directed the Assessing Officer to take appropriate
steps in order to determine the income of the Assessee. The Additional
Commissioner issued separate directions u/s. 144A of the IT Act in the cases of
Nitya Kali Rice Mill, Kartick Dutta, Shambhu Mondal and Tamal Mondal and the
Draft Assessment Order u/s. 158BC of the IT Act was sent to the Joint
Commissioner of Income Tax, Burdwan, Range-2 for approval which was returned by
the Joint Commissioner on 16.11.2000 stating that no warrant for authorisation
was issued in the names of the persons mentioned in the Draft Assessment Order.

 

On 20.11.2000, Block Assessment
Order was passed by the Deputy Commissioner of Income Tax stating that the
return filed in the case of the Firm should be accepted as ‘Nil’ income and
also directed to initiate proceedings against the Appellant for the assessment
of undisclosed income for the block period u/s. 158BD of the IT Act. Pursuant
to the order dated 20.11.2000, a fresh notice u/s. 158BC read with section
158BD of the IT Act was issued to the Appellant to file the block return for
the period 1989-90 to 1999-2000. Consequently, the Appellant intimated the
Assessing Officer through a letter dated 21.10.2002 that the block return has
already been filed for the aforesaid period on 08.11.1999. Further, the issue
of fresh notice does not extend the time allowed for completion of the
assessment under Chapter XIV of the IT Act.

 

On 29.11.2002, the Assessing
Officer passed the assessment order while assessing the undisclosed income of
the Appellant to the tune of Rs. 3,48,56,430/. Being aggrieved, the Appellant
preferred an appeal before the Commissioner of Income Tax (Appeals). Vide order
dated 18.09.2003, the Commissioner of Income Tax (Appeals) held that the
undisclosed income of the block period in the instant case should be taken in
the aggregate sum of Rs. 66,55,911/- as against Rs. 3,48,56,430/- as assessed
by the Assessing Officer.

 

Being aggrieved, the Appellant
preferred an Appeal before the Tribunal. At the same time, the Revenue also
went in appeal before the Tribunal. The Tribunal, vide order dated 29.04.2005,
dismissed the appeal filed by the Appellant while partly allowing the appeal
filed by the Revenue. Being aggrieved, the Appellant filed an appeal before the
High Court. Vide judgment and order dated 17.11.2005, the Division Bench had
dismissed the appeal filed by the Assessee.

 

Being aggrieved by the judgment and
order dated 17.11.2005, the Appellant has preferred this appeal before the
Supreme Court.

 

According to the Supreme Court, the
only point for consideration before it was whether in the facts and
circumstances of the present case, the issue of second (fresh) notice u/s.
158BD of the IT Act was valid or not?

 

The Supreme Court noted that in the
instant case, it was a matter of dispute that second notice issued on
20.11.2000 was not valid and competent since the first notice issued by the
same Assessing Officer dated 09.09.1999 u/s. 158BC was valid and the assessment
ought to be made in pursuance of that notice and, therefore, the Assessing
Officer had no authority to issue the second notice.

 

The Supreme Court considered the
provisions of section 158BD and observed that a notice u/s. 158BD could be
issued to a person with respect to whom search was not conducted but
undisclosed income was found as belonging to such person from the material
seized from the residence or business premises of the person with respect to
whom search was made u/s. 132.

 

Section 158BD speaks of the
condition that “where the Assessing Officer is satisfied that any
undisclosed income belongs to any person other than the searched person”,
which means that the Assessing Officer must have to be satisfied that any
undisclosed income belongs to any person other than the searched person.

 

According to the Supreme Court, in
the present case, it was not in dispute that the Assessing Officer, who was
assessing the Firm as well as the Appellant, was the same person. In other
words, the same Assessing Officer having jurisdiction over the searched person
could proceed against the present Appellant. Therefore, the present Assessing
Officer had jurisdiction to proceed against the present Appellant to make a
block assessment under Chapter XIV-B of the IT Act, in case the Assessing
Officer was prima facie satisfied that any undisclosed income belonged
to the present Appellant.

 

The Supreme Court held that at the
time when notice u/s. 158BC was issued by the Assessing Officer to Nitya Kali
Rice Mill, it was not necessary for the Assessing Officer to arrive at a
satisfaction that any undisclosed income belongs to Nitya Kali Rice Mill. A
search was conducted against Nitya Kali Rice Mill under section 132 of the Act.
Since the notice u/s. 158BC issued to Nitya Kali Rice Mill and the notice u/s.
158BC issued to the Appellant were on the same day i.e., on 09.09.1999, the
question of coming to a satisfaction that any undisclosed income based on
seized books of accounts or documents or assets belonged to the present
Appellant did or could not arise inasmuch as no reasonable or prudent man can
come to such satisfaction unless the seized books of accounts or documents or
assets are perused, examined and verified.

 

Therefore, the Assessing Officer
was right in arriving at a decision that the notice u/s. 158BC issued to the
present Appellant on 09.09.1999 did not satisfy the requirement of section
158BD of the Act. He, therefore, rightly proceeded to issue fresh notice
(second Notice) u/s. 158BD on 20.11.2000 after recording a satisfaction that
any undisclosed income based on seized books of account or document or assets
or other materials may belong to the Appellant. In fact, in the present case,
the AO had himself come to a conclusion that the notice issued u/s. 158BC on
09.09.1999 to the Assessee was not in conformity with the requirement of
section 158BD of the Act. The Assessing Officer had proceeded u/s. 158BD of the
Act not in pursuance of any direction by the Joint Commissioner but after being
satisfied that the case squarely fell within the ambit of section 158BD of the
Act.

 

The Supreme Court, therefore,
dismissed the appeal concluding that the High Court was right in passing the
judgment and order dated 17.11.2005.

 

19.  Addl. Commissioner of Income Tax vs. Bharat
V. Patel (24.04.2018) (2018) 404 ITR 37 (SC)

 

Perquisite – The Respondent got the Stock Appreciation Rights
(SARs) and, eventually received an amount on account of its redemption prior to
01.04.2000 on which date the amendment of Finance Act, 1999 (27 of 1999) came
into force – In the absence of any express statutory provision regarding the
applicability of such amendment from retrospective effect, the said amount was
not liable to pay tax

 

The Respondent was employed as the
Chairman-cum-Managing Director of the (P&G) India Ltd., at the relevant
time and the said company is the subsidiary of (P&G) USA through Richardson
Vicks Inc. USA and that (P&G) USA owned controlling equity. The Respondent
was working as a salaried employee. The (P&G) USA was the company who had
issued the Stock Appreciation Rights (SARs.) to the Respondent without any
consideration from 1991 to 1996. The said SARs were redeemed on 15.10.1997 and
in lieu of that the Respondent received an amount of Rs. 6,80,40,724/- from
(P&G) USA. However, when the Respondent filed his return for the Assessment
Year:1998-99, he claimed this amount as an exemption from the ambit of Income
Tax.

 

The Tribunal was of the view that
the stock options are capital assets and such assets in the instant case
acquired for consideration, hence, gain arising therefrom is liable to capital
gain tax. However, the stand of the Revenue before the Tribunal was that the
amount in question is taxable as perquisite u/s. 17(2)(iii) of the Act or in
alternatively u/s. 28(iv) of the Act instead of capital gains. The High Court
also upheld the view of the Tribunal but the High Court disagreed that such
capital gains arose to the Respondent on redemption of Stock Appreciation
Rights since there was no cost of acquisition involved from the side of the
Respondent.

 

The Supreme Court, before examining
the case at hand, considered the meaning of the words “Perquisite”
and “Capital Gains”. According to the Supreme Court, the word “Perquisite”
in common parlance may be defined as any perk or benefit attached to an
employee or position besides salary or remuneration. Broadly speaking, these
are usually non-cash benefits given by an employer to an employee in addition
to entitled salary or remuneration. It may be said that these benefits are
generally provided by the employers in order to retain the talented employees
in the organisation. There are various instances of perquisite such as
concessional rent accommodation provided by the employer, any sum paid by an
employer in respect of an obligation which was actually payable by the employee
etc. Section 17(2) of the Act was enacted by the legislature to give the broad
view of term perquisite. On the other hand, the word ‘Capital Gains’ means a
profit from the sale of property or an investment. It may be short term or long
term depending upon the facts and circumstances of each case. This gain or
profit is charged to tax in the year in which transfer of the capital assets
takes place.

 

According to the Supreme Court, in
the instant case, the fundamental question which arose for its consideration
was with regard to the taxability of the amount received by the Respondent on
redemption of Stock Appreciation Rights (SARs.).

 

The Supreme Court noted that,
particularly, in order to bring the perquisite transferred by the employer to
the employees within the ambit of tax, legislature brought an amendment u/s. 17
of the Act by inserting clause (iiia) in section 17(2) of the Act through the
Finance Act, 1999 (27 of 1999) with effect from 01.04.2000, which was later on
omitted by the Finance Act, 2000.

 

According to the Supreme Court, the
intention behind the said amendment brought by the legislature was to bring the
benefits transferred by the employer to the employees as in the instant case,
within the ambit of the Income Tax Act, 1961. It was the first time when the
legislature specified the meaning of the cost for acquiring specific
securities. Only by this amendment, legislature determined what would
constitute the specific securities. By this amendment, legislature clearly
covered the direct or indirect transfer of specified securities from the
employer to the employees during or after the employment. On a perusal of the
said clause, it was evident that the case of the Respondent fell under such
clause. However, since the transaction in the instant case pertained to period
prior to 01.04.2000, hence, such transaction could not be covered under the
said Clause in the absence of an express provision of retrospective effect.

 

The Supreme Court did not find any
force in the argument of the Revenue that the case of the Respondent would fall
under the ambit of section 17(2)(iii) of the Act instead of section 17(2)(iiia)
of the Act. The Supreme Court held that it is a fundamental principle of law
that a receipt under the Act must be made taxable before it can be treated as
income. Courts cannot construe the law in such a way that brings an individual
within the ambit of Income Tax Act to pay tax who otherwise is not liable to
pay. In the absence of any such specific provision, if an individual is
subjected to pay tax, it would amount to the violation of his Constitutional
Right.

 

The Supreme Court observed that on
the point of applicability of clause (iiia) of section 17(2) of the Act, it had
settled the position in Infosys Technologies Ltd. (297 ITR 167).

 

The Supreme Court further held that
the High Court had rightly rejected the stand of the Revenue that the amendment
brought in by section 17(2) of the Act was clarificatory, hence, retrospective
in nature.

 

Further, according to the Supreme
Court Circular No. 710 dated 24.07.1995 prima facie dealt with the cases
where the employer issued shares to the employees at less than the market
price. In the instant case, the Respondent was allotted Stock Appreciation
Rights (SARs.) by the (P&G) USA which was different from the allotment of
shares. Hence, such Circular had no applicability on the instant case.
Moreover, a Circular could not be used to introduce a new tax provision in a
Statute which was otherwise absent.

 

On the alternate contention of the
Revenue that the case of the Respondent would come within the ambit of the
28(iv) of the IT Act, the Supreme Court held that such benefit or perquisite
should have arisen from the business activities or profession whereas in the
instant case there was nothing as such. The applicability of section 28(iv) was
confined only to the case where there was any business or profession related
transaction involved. Hence, the instant case could not be covered u/s. 28(iv)
of the Act for the purpose of tax liability.

 

The Supreme Court summed up by
holding that, the Respondent got the Stock Appreciation Rights (SARs) and,
eventually received an amount on account of its redemption prior to 01.04.2000
on which date the amendment of Finance Act, 1999 (27 of 1999) came into force.
In the absence of any express statutory provision regarding the applicability
of such amendment from retrospective effect, it did not find any force in the
argument of the Revenue that such amendment came into force retrospectively. It
is well established Rule of interpretation that taxing provisions shall be
construed strictly so that no person who is otherwise not liable to pay tax, be
made liable to pay tax.

 

20.  Commissioner of Income Tax vs. Container
Corporation of India Ltd. (2018) 404 ITR 
397 (SC)

 

Infrastructure facility – Inland Container Depots (ICDs) are
Inland Ports and subject to the provisions of the section 80IA and deduction
could be claimed for the income earned out of these Depots

 

Container Corporation of India Ltd.
(CONCOR)-the Respondent herein, a government Company, was engaged in the
business of handling and transportation of containerised cargo and was under
the direct administrative control of Ministry of Railways. Its operating
activities were mainly carried out at its Inland Container Depots (ICDs),
Container Freight Stations (CFSs) and Port Side Container Terminals (PSCTs)
spread all over the country.

 

The Respondent herein filed its
returns of income for the assessment years 2003-04 to 2005-06 claiming
deduction under various heads including deduction u/s. 80-IA of the Act.

 

This issue is with regard to the
deduction claimed u/s. 80-IA on the profits earned from the Inland Container
Depots (ICDs) and on rolling stocks. The claim for deduction on the profits
earned from the ICDs and further the deduction on account of rolling stocks had
been rejected by the Assessing Officer.

 

The Respondent herein, being aggrieved with the aforesaid order,
filed an appeal to the Commissioner of Income Tax (Appeals). Learned CIT
(Appeals), partly allowed the appeal while rejecting the deduction claimed u/s.
80-IA of the Act. Being aggrieved, the Respondent herein further preferred
appeal before the Tribunal. The Tribunal, partly allowed the appeal and held
that the deduction u/s. 80-IA could be claimed with regard to the rolling stocks
of the company but not with regard to the ICDs.



Being aggrieved, the Respondent herein challenged the same before
the High Court. The Division Bench of the High Court, allowed the appeals and
held that the Respondent herein was entitled to claim deduction on the income
earned from the ICDs for the relevant period under consideration u/s. 80-IA of
the IT Act.



Being aggrieved by the judgment and
order of the High Court, the Revenue has preferred this appeal before the
Supreme Court.

 

According to the Supreme Court, the
only point for consideration before it was whether in the facts and
circumstances of the case the Inland Container Depots (ICDs) under the control
of the Respondent, during the relevant period, qualified for deduction u/s.
80-IA(4) of the Act or not.

 

The Supreme Court noted that the
ICDs function for the benefit of exporters and importers located in industrial
centers which are situated at distance from sea ports. The purpose of
introducing them was to promote the export and import in the country as these
depots acts as a facilitator and reduce inconvenience to the person who wishes
to export or import but place of his business is situated in a land locked area
i.e., away from the sea. These depots reduce the inconvenience in import and export
in the sense that it reduces the bottlenecks that are arising out of handling
and customs formalities that are required to be done at the sea ports by
allowing the same to be done at these depots only that are situated near to
them. The term ICDs was inserted in 1983 u/s. 2(12) of the Customs Act, 1962
which defines ‘customs port’ and by the provisions of section 7(1)(aa) of the
Customs Act, 1962 power has been given to the Central Board of Excise and
Custom(CBEC) to notify which place alone to be considered as Inland Container
Depots for the unloading of imported goods and the loading of export goods by
Notification in the official Gazette.

 

With the purpose of boosting
country’s infrastructure and specially the transport infrastructure, the
Finance Act, 1995 which came into effect from 01.04.1996 brought an amendment
to the provisions of section 80-IA of the Act. Section 80-IA of the Act talks
about deduction in respect of profits and gains from industrial undertaking or
enterprises engaged in the infrastructure development etc. The said amendment
for the first time brought a provision under which a percentage of profits
derived from the operation of infrastructure facility was allowed a deduction
while computing the income of the Assessee. A ten years tax concession was
allowed to the enterprises in accordance with the provisions of the section
subject to fulfillment of conditions given therein, which develops, maintains
and operates any new infrastructure facility such as roads, highways,
expressways, bridges, airports, ports and rail system or any other public
facility of similar nature as notified.

 

The said provision gives the power
to the Board to notify certain other enterprises which can avail the benefit of
section 80-IA of the Act, which do not fall within any of the specified
categories but carries out activities of similar nature.

 

Further, Central Board of Direct
Taxes (CBDT), in exercise of its power u/s. 80-IA(12)(ca), vide Notification
dated 01.09.1998 notified ICDs and CFSs as infrastructure facility.

 

In addition to the above, the
Finance Act, 1998, which came into effect on 01.04.1999, made a change in the
definition of ‘Infrastructure facility’ as is relevant to the present case. The
words ‘Inland water ways and inland ports’ were added in the definition of
infrastructure facility. A noticeable change was further
brought by the Finance Act, 2001, which came into effect from 01.04.2002, in
the terms that the power of the Board to extend the benefit of the said
provisions to any infrastructure facility of similar nature by issuing a Notification
was taken away. The new explanation to section 80-IA(4) of the Act was
substituted by the Finance Act, 2001 which defined “infrastructure
facility”.

 

It was contended on behalf of the
Appellant that the High Court erred in relying on the Notification issued by
CBDT to hold that the enterprises holding ICDs are allowed to claim deductions
u/s. 80-IA of the Act. As the said power of the Board was specifically taken
away by the amendment made by Finance Act, 2001, in light of the said
amendment, the Notifications which were issued by the CBDT would cease to
operate after the Assessment Year 2002-03.

 

The Supreme Court held that the
aforesaid argument did not have much force as the said amendment was silent
with regard to any effect it would have upon the Notifications issued earlier
by the Board in due exercise of its power. Had it been the intention of the
legislature that the Notifications issued by the Board earlier were of no
effect after 2002-03, it would have had found a place in the said amendment. In
the absence of the same, the Supreme Court was unable to concur with learned
Senior Counsel that the Notifications which were issued in legitimate exercise
of the power conferred on the Board would cease to have effect after the
Assessment Year 2002-03.

 

It was also contended on behalf of
the Appellant that the High Court committed a grave error in holding ICDs as
Inland Ports. It was further contended that the ICDs were never understood to
fall in the category of ‘Inland Port’ under the scheme of the Act. The argument
in support of this contention was that if the word ‘Inland Port’, as used in
the Explanation attached to section 80-IA(4) of the Act defining
‘infrastructure facility’ included ICDs, there would have been no need for the
CBDT to separately exercise its power given. The Supreme Court held that the
Notification which was issued by the CBDT came into effect on 01.09.1998 i.e.,
the time when the term ‘Inland Port’ was not in itself inserted in the
provisions of Explanation attached to section 80-IA(4) of the Act defining the
term ‘infrastructure facility’. It was inserted through Finance Act, 1998 which
came into effect from 01.04.1999. So there seems to be no conflict within the
Notification issued by the Board and the fact that the ICDs are Inland Ports or
not.

 

The Supreme Court further held that
the Respondent has been held entitled for the benefit of section 80IA of the
Act much before the Finance Act, 2001 which came into force on 01.04.2002 and
exemption for the period of 10 years could not be curtailed or denied by any
subsequent amendment regarding the eligibility conditions under the period is
modified or specific provision is made that the benefit from 01.04.2002 onwards
shall only be claimed by the existing eligible units if they fulfill the new
conditions.

 

The Supreme Court thereafter dealt
with the issue as to whether the ICDs could be termed as Inland Ports so as to
entitle it for deduction u/s. 80-IA of the Act. The Supreme Court observed that
term port, in commercial terms, is a place where vessels are in a habit of
loading and unloading goods. The term ‘Port’ as is used in the Explanation
attached to section 80-IA(4) seems to have maritime connotation perhaps that is
the reason why the word airport is found separately in the Explanation.
Considering the nature of work that is performed at ICDs, they cannot be termed
as Ports. However, taking into consideration the fact that a part of activities
that are carried out at ports such as custom clearance are also carried out at
these ICDs, the claim of the Respondent herein could be considered within the
term ‘Inland port’ as is used in the Explanation.

 

The Supreme Court noted that the
term ‘Inland Port’ has been defined nowhere. But the Notification that has been
issued by the Central Board of Excise & Customs (CBEC) dated 24.04.2007 in
terms holds that considering the nature of work carried out at these ICDs they
can be termed as Inland Ports. Further, the communication dated 25.05.2009
issued on behalf of the Ministry of Commerce and Industry confirming that the
ICDs are Inland Ports, fortified the claim of the Respondent herein. The
Supreme Court held that though both the Notification and communication are not
binding on CBDT to decide whether ICDs can be termed as Inland Ports within the
meaning of section 80-IA of the Act, the Appellant herein was unable to put
forward any reasonable explanation as to why these notifications and
communication should not be relied to hold ICDs as Inland Ports. Unless shown
otherwise, it could not be held that the term ‘Inland Ports’ is used
differently u/s. 80-IA of the Act. All these facts taken together clear the
position beyond any doubt that the ICDs are Inland Ports and subject to the
provisions of the section and deduction could be claimed for the income earned
out of these Depots. However, the actual computation is to be made in
accordance with the different Notifications issued by the Customs department
with regard to different ICDs located at different places.

 

The Supreme Court, in view of
foregoing held that the judgment of the High Court did not call for any
interference and, hence, the appeal was accordingly dismissed.

 

___________________________________________________________________________________________________

 

Corrigendum

 

Namaskaar printed
on Page 5 of August, 2018 Journal was contributed by K C Narang, Chartered
Accountant and not by Mukesh Trivedi, Chartered Accountant. This inadvertent
error is regretted.

From the President

Dear Members,

The month of August, named after
Augustus, the first Roman Emperor is also celebrated as the “Happiness Happens
Month”. Even though it may sound trivial, it does have a very important
purpose. The month reminds us that happiness happens one small moment at a time
and it is our job to recognise those moments when they happen. It reminds us
that sometimes a small action boosts our happiness. It reminds us that
happiness is a personal experience and it is also contagious! So, step back and
reflect, what were your happy moments during the last month? When did you make
someone else happy?

 

Happiness was what a team of 37
volunteers witnessed when they visited the tribal areas of Dharampur as a part
of the social initiative of BCAS Foundation. Members and students were thrilled
to spend two days together with lots of fun during the journey to visit various
social and religious projects coupled with the environmental initiative of tree
plantation.

 

The BCAS Foundation also had the
privilege of jointly hosting the 3rd Narayan Varma Memorial Lecture
Series, where Mr. Vallabh Bhansali spoke on an interesting topic of
“Re-building India”. In a thought-provoking session, he highlighted that the
key stakeholders of this re-building exercise would be the Government, private
enterprise, charities and individuals and that each of these stakeholders
should work in close co-ordination for optimal results. As the Hon’ble Prime
Minister rightly said in his Independence Day Speech, “When 125 crore
countrymen become partners, then each and every citizen joins us in the
progress of the country.”

 

The recent natural disaster in Kerala requires necessarily this
type of co-operative effort. While the immediate work of rescue and relief is
more or less taken care of, experience suggests that rehabilitation is perhaps
something which is frequently neglected. BCAS Foundation is in the process of
identifying a suitable rehabilitation project in the field of education and
would endeavour to create a visible long term impact by direct or assisted
intervention. I request the members to contribute generously to this noble
cause.



Technology was the flavour of the
month at the Society. While delivering an insightful talk on the “Impact of
Technology on the Role of Auditors”, Mr. P. R. Ramesh minced no words while
pointing out that only those CA firms would survive who would accept change and
flow with the flood of technology impacting every aspect of human life. A week
later, the talk on “GSTN Portal – Experiences” by the GSTN CEO Mr. Prakash Kumar,
showcased the benefits of technology in improving data analytics. This was soon
followed by an interactive session with Mr. Purushottam, from TRACES and Mr.
Deepak Wayal from NSDL. A common thread across all the three meetings was that
technology will play a larger disruptive role than ever, especially in the
manner in which the profession conducts its activities.

 

The 22nd International
Tax and Finance Conference, 2018 held at Ahmedabad was a grand success with a
record number of participants. Residential course not only provide the members
with the specialised technical knowledge on the respective domains but also
foster networking amongst the members, presenting further opportunities of
growth, all in a relaxed and luxurious environment. The Seminar and Membership
Development Committee is in the advanced stage of finalisation of the 52nd
Residential Refresher Course and the members can expect the announcement very
soon. Some innovative ideas are being implemented at this RRC and I would urge
the members not to miss this event.

 

There were many more activities at
the Society – a visit to Reliance Industries Limited to understand their
consolidation process, a two day event on “Internal Audit – Let’s start at the
very beginning”, a full day seminar on “Tax audit including new amendments
therein”, lecture meeting on “Proposed GST Returns Formats”. A common thread
across all these events was the huge turnout. In fact, for four of the paid
workshops, we had to close enrolments and turn down last minute requests. I
would earnestly request all the members to enrol early to avoid disappointment.
The Committees curate the best of the programs for our members and early
enrolment helps them in planning the events better.

 

I would be glad to receive any
feedback or suggestions on the functioning of the Society, events and
publications that you would like to witness, or any other matter concerning the
profession. Do write to me at president@bcasonline.org. 

 

 Warm Regards

 

 

 

CA. Sunil
Gabhawalla

President

 

FORTHCOMING
EVENTS

COMMITTEE

EVENT NAME

SPEAKER

DATE

VENUE

NATURE OF EVENT

September, 2018

Human Resource
Development
Committee

Success in CA Exams

CA. Nikunj Shah and
CA. Mudit Yadav

Saturday,
8th September, 2018

 

BCAS Conference Hall,
7, Jolly Bhavan No. 2,
New Marine Lines,
Mumbai- 400020

Student Programme

October, 2018

Indirect Taxation
Committee

Long Duration Course on
Goods and Services Tax

 

Various Speakers

October 5th, 6th,
12th, 13th, 19th, 20th October,
2018 Fridays and
Saturdays)

BCAS Conference Hall,
7, Jolly Bhavan No. 2,
New Marine Lines,
Mumbai- 400020

Course

STUDY CIRCLE

Indirect Taxation
Committee

Intensive Study Group on
GST Batch ll

Only For ISG Members

20th & 21st
July/

24th & 25th
August, / 26th & 27th October/ 16th &
17th
November / 7th
December,  2018

BCAS Conference Hall,
7, Jolly Bhavan No. 2,
New Marine Lines,
Mumbai- 400020

Study Group

From Published Accounts

Accounting and disclosure regarding Ind AS 115 by companies in Real
Estate sector for the quarter ended 30th June 2018

 

Compilers’ Note: Ind AS 115 ‘Revenue from contracts with Customers’ is effective 1st
April 2018 and replaces Ind AS 11 ‘Construction Contracts’ and Ind AS
‘Revenue’. Ind AS 115 follows a 5-step approach for recognition of revenue and
is likely to have a major impact on companies in various sectors on recognition
of revenue and disclosures. Given below are the disclosures in unaudited
results of Q1 2018-19 by companies in the real estate sector where the impact
of Ind AS 115 is likely to be material.

 

Oberoi Realty Ltd

From Notes
to Unaudited Consolidated Financial Results

Ind AS 115 ‘Revenue from Contracts with
Customers’, is a new accounting standard effective from April 1, 2018, which
replaces existing revenue recognition requirements. In accordance with the new
standard, and basis the Company’s contracts with customers, its performance
obligations are satisfied over time. The Company has opted to apply the
modified retrospective approach, and in respect of the contracts not complete
as of April 1, 2018 (being the transition date), has made adjustments to
retained earnings, recognising revenue of Rs 49,324 lakh, only to the extent of
costs incurred, as the relevant projects were in early stages of development.
Consequently, there is no impact on retained earnings as at the transition
date.

 

While recognising revenue, the cost of land
has been allocated in proportion to the construction cost incurred as compared
to the accounting treatment hitherto of recognising revenue in proportion to
the actual cost incurred (including land cost).

 

Consequently, in respect of the quarter
ended June 30, 2018, revenue is lower by Rs 1,12,820 lakh, operating cost is
lower by Rs 95,113 lakh, tax expense is lower by Rs 5,156 lakh and profit after
tax lower by Rs 12,551 lakh. The basic and diluted EPS for the period is Rs.
9.04 per share, instead of Rs 12.71 per share.

 

Under modified retrospective approach, the
comparatives for the previous period figures are not required to be restated
and hence are not comparable.

 

Mahindra
Lifespace Developers Ltd

From Notes
to consolidated Unaudited Financial Results

The consolidated financial results of the
Company have been prepared in accordance with the Indian Accounting Standards
(Ind AS) as prescribed u/s. 133 of the Companies Act, 2013 read with the relevant
rules issued thereunder and the other accounting principles generally accepted
in India.

 

a)  The Ministry of Corporate Affairs vide
notification dated 28th March 2018 has made Ind AS 115 “Revenue
from Contracts with Customers” (Ind AS 115) w.e.f. 1st April, 2018. The
Company has applied the modified retrospective approach as per para C3(b) of
Ind AS 115 to contracts that were not completed as on 1st April 2018
and the cumulative effect of applying this standard is recognised at the date
of initial application i.e. 1st April, 2018 in accordance with para
C7 of Ind AS 115 as an adjustment to the opening balance of Retained Earnings,
only to contracts that were not completed as at 1st April, 2018. The
transitional adjustment of Rs. 13,534 lakh (net of deferred tax) has been
adjusted against opening retained earnings based on the requirements of the Ind
AS 115 pertaining to recognition of revenue based on satisfaction of
performance obligation (at a point in time);

 

b)  Due to the application of Ind AS 115 for the
quarter ended June 30, 2018 Revenue from Operations is higher by Rs. 6,458
lakh, cost of sales is higher by Rs. 4,351 lakh, Profit before Share of Profit
of Joint Ventures is higher by Rs. 2,107 lakh, Share of Profit of Joint
Ventures is higher by Rs.151 lakh, Profit before Tax is higher by Rs. 2,260
lakh, Tax expense is higher by Rs. 593 lakh and Profit after tax is higher by
Rs. 1,666 lakh. The Basic and Diluted EPS for the quarter ended June 30, 2018
is Rs.5.20 per share and Rs.5.19 per share respectively instead of Rs.1.98 per
share.

 

These changes are
due to recognition of revenue based on satisfaction of performance obligation
(at a point in time), as opposed to the previously permitted percentage of
completion method. Accordingly, the comparatives have not been restated and
hence not comparable with previous period figures.

 

Larsen & Toubro Ltd

From Notes
to Standalone Unaudited Financial Results

The Company has aligned its policy of
revenue recognition with Ind AS 115 ‘Revenue from Contracts with
Customers” which is effective from April 1, 2018. Accordingly, revenue in
realty business is recognised on delivery of units to customers as against
recognition based on percentage completion method hitherto in accordance with
the guidance note issued by ICAI.

 

Further, the provision for expected credit
loss on contract assets is made on the same basis as financial assets in
accordance with Ind AS 109. The cumulative effect of initial application of Ind
AS 115 upto March 31, 2018 has been adjusted in opening retained earnings as
permitted by the standard. Similar impact on the financial results for the
quarter ended June 30, 2018 is not material.

 

Prestige Estates Projects Ltd

From Notes
to Consolidated Unaudited Financial Results

Ind AS 115 Revenue from Contracts with
Customers, mandatory for reporting periods beginning on or after April 1, 2018,
replaces existing revenue recognition requirements. The application of Ind AS
115 has impacted the Group’s accounting for recognition of revenue from real
estate projects.

 

The Group has applied the modified
retrospective approach to contracts that were not completed as of April 1, 2013
and has given impact of Ind AS 115 application by debit to retained earnings as
at the said date by Rs.10.119 million (net of tax). Accordingly, the
comparatives have not been restated and hence not comparable with previous
period figures. Due to the application of Ind AS 115 for the period ended June
30, 2018, revenue from operations is lower by Rs. 1,726 million and Net profit
after tax (before non-controlling interests) is higher by Rs 23 million,
vis-à-vis the amounts, if replaced standards were applicable. The basic and
diluted EPS for the period is Rs 3.18 instead of Rs. 3.14 per share.

 

Sobha Ltd

From Notes
to Consolidated Unaudited Financial Results

(5) Ind AS 115 Revenue from contracts with
customers has been notified by Ministry of Corporate Affairs (MCA) on 28 March,
2018 and as effective from accounting period beginning on as after 1 April,
2018, replaces existing revenue recognition standard. The application of Ind AS
115 has impacted the Group’s accounting for recognition of revenue from real
estate residential projects. There has been no significant impact on the
contractual and manufacturing business of the group.

 

The Group has applied the modified
retrospective approach to its real estate residential contracts that were not
completed as of 1 April, 2018 and has given impact of adoption of Ind AS 115 by
debiting retained as act the said date by Rs 
7,570 million (net of tax). 
Accordingly, the comparatives have not been restated and hence the
current period figures are not comparable to the previous period figures. 

 

Due to the application of Ind AS 115 in the
current period, revenue from operations is lower by Rs 2,029 million and net
profit after tax is lower by Rs  171
million, then what it would have been if the replaced standards were
applicable. Similarly, the basic and diluted EPS for the period is Rs  5.55 instead of Rs  7.34 per share.

 

Godrej Properties Ltd

From Notes
to Consolidated Unaudited Financial Results

3. 
Ind AS 115 – Revenue from Contracts with Customers has been notified by
Ministry of Corporate Affairs (MCA) on March 28, 2018 and is effective from
accounting period beginning on or after April 01, 2018.  The Company has applied full retrospective
approach in adopting the new standard (for all the contracts other than
completed contracts) and accordingly restated the previous period numbers as
per point in time (Project Completion Method) of revenue recognition.

 

The following table summarises the impact
(net of taxes) of adopting Ind AS 115 on the Group’s Financial Results:

 

(INR in Crore)

Particulars

Quarter ended 31.03.2018

Quarter ended 30.06.2017

Year

ended 31.03.2018

Total Comprehensive Income as reported

138.93

23.29

232.15

Change on adoption of Ind AS 115 (net of taxes)

(99.23)

75.80

(148.05)

Total Comprehensive Income on adoption of Ind AS 115

39.70

99.09

84.10

 

 

The following table summarises the impact,
net of taxes, of transition to Ind AS 115 on net worth as at
March 31, 2018:

(INR in Crore)

Particulars

As at 31.03.2018

Net Worth (as reported)

Change in the net worth on adoption of Ind AS 115 (net of
taxes)

Net Worth on adoption of Ind AS 115

2,240.29


(744.11)

1,496.18

 

 

DLF Ltd

From Notes
to Consolidated Unaudited Financial Results

6. Ind AS 115 Revenue from Contracts with
Customers, mandatory for reporting periods beginning on or after April 1, 2018,
replaces existing revenue recognition requirements.  The application of Ind AS 115 has impacted the
Group’s accounting for recognition of revenue from real estate projects.

 

The Group along with its partnership firms,
joint ventures and associates have applied the modified retrospective approach
to contracts that were not completed as of April 1, 2018 and has given impact
of Ind AS 115 application by debit to retained earnings as at the said date by
Rs  5,382.82 crore (net of tax)
pertaining to recognition of revenue based on satisfaction of performance
obligations at a point in time. 
Accordingly, the figures for the comparative previous periods have not
been restated and hence the current period figures are not comparable with
previous period figures. Due to the application of Ind AS 115 for the period
ended June 30, 2018, revenue from operations is higher by Rs 188.88 crore and
net profit after tax is higher by Rs 111.34 crore, than what it would have
been, if replaced standards were applicable. Similarly, the basic EPS for the
current period is higher by Rs  0.63 per
share and diluted EPS for the period is higher by Rs  0.51 per share.

 

NBCC (India) Ltd

From Notes
to Consolidated Unaudited Financial Results

The Company has aligned its policy of
revenue recognition with lnd AS 115 “Revenue from Contracts with
Customers” which is effective from April 1, 2018. Consequent upon the
withdrawal of Guidance Note on Accounting for Real Estate Transactions (for
entities to whom lnd AS is applicable), issued in May 2016 in Real Estate
Segment and restructuring of performance obligations in PMC segment, the net
cumulative impact of initial application of lnd AS 115 upto March 31, 2018
aggregating to~ 49886.20 lakh has been appropriated against the retained
earnings as at the initial adoption date, as permitted by the standard. Profit
for the quarter ending June 30, 2018 would have been lower by~ 1940.87 lakh if
the company would have recognised the revenue based upon lnd AS 11 and lnd AS
18. The comparative information is not restated in the financial results.
 

Book Review

Title: Bond to Baba – Successful
Strategies

Author: Ninad Karpe, Chartered Accountant


James Bond, Formula 1 racing, Alexander the Great and Baba Ramdev – what do
these have in common? If I were asked this question two weeks ago, I would
admit that I don’t see anything in common. If, however, I were asked this
question today, I would say ‘Strategy lessons for business’. Bond to Baba is
the latest book on business strategy by Ninad Karpe, who is a Chartered
Accountant and has led Aptech, one of India’s largest education
companies.

 

Before you frown on the subject of ‘business
strategy’ due to its perception as a subject meant exclusively for thinkers,
senior executives and management gurus; Bond to Baba is one book that has
simplified strategy to make sense to a 12 year – old while exploring enough
depth to add value to a seasoned business executive. The book addresses success
stories from films, sports, history and politics; explores the causes of
success in each of these stories, bridges it to what businesses can learn from
them and summarises them into timeless lessons for business.

 

Bond to Baba has been published in 2018 by Popular
Prakashan
, one of India’s leading publication houses, and retails at INR
250. It is also available on Amazon in paperback and Kindle editions. As of
August 2018, this book has been rated 4.5 out of 5 stars by more than 66
reviewers and has swiftly made its way to the list of ‘Memorable business books
of 2018’ by Amazon.

 

The book begins with exploring the James
Bond movies and the factors that have caused the franchise to appeal to
generation after generation. If you think you are a Bond fanatic, think twice!
Ninad has picked up a surgeon’s knife to analyse scenes from Bond movies in
minute detail and linked them to lessons for business. He addresses how the
James Bond brand has been reinvented and represented through the past decades
to keep it updated to evolving expectations of the audience. I am browsing
through Netflix archives as I type this to watch Spectre and Skyfall once again
to experience Ninad’s observations.

 

The book then moves on to explore what
businesses can learn from Formula 1 races. Ninad is a Formula 1 enthusiast for
more that 20 years and amalgamates his depth in the sport as well as business
to produce business lessons. He explains that businesses can learn about
agility, efficiency and exploiting data from Formula 1. “If it takes less than
two seconds for a (pit stop) crew to change four tyres, can we justify a delay
beyond 24 hours in responding to an email?” This is a statement in the book
which is worth pasting on the walls of every office in the world.

 

The book has also elucidated lessons from
history which can be applied even in a contemporary business scenario. The
description of the Battle of Gaugamela, where Alexander’s forces go head to
head with King Darius, was so picturesque that I was transported to that
battlefield in 331 BC and forgot that I was reading a book on business
strategy. In this section, the reader learns that the right strategy, agility
and understanding the opponent can help win the war even with a deficiency in
resources.

 

Ninad has sought inspiration for this book
not just in James Bond, but also in movies like Bahubali and Sairat. In fact,
the lessons that this book presents from these moves are analogous but yet, in
sync. Bahubali can teach businesses to think big, quite literally; while Sairat
can teach businesses to think local. A large vision and local thinking are both
sine-qua-non for any business to flourish in the long run.

 

The book educates the reader about the art
of brand extension by exploring the story of none other than Baba Ramdev. He
maintains that companies must be clear about and enhance their core competency
which is yoga for Baba Ramdev while high quality beverages is the core
competency of Starbucks. This section deliberates on other tools like high
visibility and brand extension that helped Baba Ramdev and his pet company,
Patanjali touch revenues of INR 105,610 million.

 

After business lessons from movies, sports,
food, history, and godmen; perhaps the only gamut remaining untouched was
business lessons from politics. The readers will not be disappointed to find
that the book also dwells on the political stints of Hardik Patel and Arvind
Kejriwal. Ninad explains how Hardik did not evolve his strategy as he gained
more political mileage and hence faded into oblivion not soon after he rose.
Through Arvind Kejriwal’s rapid rise to popularity, he explains the important
and forgotten essence of simplicity. By focussing on something as simple and
relatable as ‘corruption’, Kejriwal could swing the masses in his favour and go
on to become the Chief Minister of Delhi.

 

I enjoyed the classic and contemporary
examples and every section provoked me to think how it is linked to business
lessons and strategy. As a reader, I was also looking forward to the author’s
experience in applying these business lessons in his professional life owing to
his rich experience of running an international company. I am hopeful that the
readers will have the opportunity to read about them in one of his future
books. This book, meanwhile, can be described as a fun to read, informative
document which will leave you thinking long after you have devoured it and
parked it on your shelf.

 

Today, books don’t command the monopoly they
once did for being the only sources of knowledge. They face competition for
attention from videos, audiobooks, podcasts and high quality blogs. Bond to
Baba delivers content in bite sized capsules with the right blend of stories
and analysis. It avoids unnecessary management jargon or excess beating around
the bush. In these aspects, it is one of the easiest to read books I have come
across and the kind of book we need today.
 

 

Allied Laws

26. 
Appellate Tribunal – Bias – Adjudicating authority subsequently became a
Technical Member – Matter remanded for fresh adjudication. [CESTAT]

Sify Technologies Ltd. vs. Commissioner of
C. Ex. and S.T., LTU, Chennai 2018 (12) G.S.T.L. 245 (Mad.)

 

In the present case, there were two grounds
pleaded before the High Court with respect to the authority who has issued the
show cause notice, thereafter became a Technical Member of the CESTAT and he
was also part of the Bench, which passed the Final Order. The bench of the
CESTAT had decided the issue against the appellant. Though likelihood of bias
has not been pleaded before the Tribunal, but a ground has been raised in the
instant appeals. On such ground and without going into the merits of the case,
we are of the view that impugned orders are liable to be set aside and
accordingly, set aside.

 

27. Benami – Joint family property – Benami
Transaction – Section 4 cannot be applicable to the facts of the case. [Benami
transactions (Prohibition) Act, 1988; Section 4]

K.Krishna Palani vs. Santhakumari and
others AIR 2018 (NOC) 154 (MAD.)

 

The question for determination before the
honourable bench was whether the provisions of section 4 of the Benami
transactions (Prohibition) Act, 1988 was attracted to the facts of the case.

 

It was contended that section 4 of the
Benami Act would be attracted since schedule property stood in the name of the
mother i.e. the 2nd defendant (since deceased). Therefore, the
property would be treated as self-acquired property of the 2nd
defendant.

 

It was observed that the properties
belonging to the Joint family were settled in favour of the 2nd
defendant, where it was clearly stated that the properties could not be sold by
herself but only along with the other members of the family including the
settlor. The courts below had clearly held that the father of the appellant had
purchased the property for his wife i.e. the 2nd defendant. From
evidence available on record, the schedule property was held to be joint family
property.

 

It was held by the court that since the
property is a joint family property and the claim only seeks to proclaim the
property as joint family property and not to claim the property to be their own
property, the rigor of section 4 of the Benami Act cannot have any application
to the facts of the case.

 

28. Noise Pollution – Right to Life will
include an atmosphere free from noise pollution. [Constitution of India;
Article 21]

Ajay Marathe and Ors. vs. UOI and Ors.
(01.09.2017 – BOMHC) AIR 2018 (Bombay) 117 (FB)

 

If anyone increases his volume of speech and
that too with the assistance of artificial devices so as to compulsorily expose
unwilling persons to hear a noise raised to unpleasant or obnoxious levels then
the person speaking is violating the right of others to a peaceful, comfortable
and pollution-free life guaranteed by Article 21. The right to live in an
atmosphere free from noise pollution is a part of Article 21.

 

29.  Registration – Memorandum of Understanding –
No immovable property getting transferred – Registration not required.
[Registration Act, 1908; Section 17; Maharashtra Stamp Act, 1958; Section 3,
33]

Yuvraj
Developers and Ors. vs. Gavtya Dhondu Mhatre and Ors. AIR 2018 (NOC) 717 (BPM.)

 

The facts of
the case are that a ‘Memorandum of Understanding’ for agreement to lease was
not registered and, therefore, the bar of section 49 of the Registration Act is
attracted i.e. no effect would be given to the immovable property mentioned in
the unregistered document and, secondly, also on the ground that, in order to
fix the valuation, the document needs to be sent for impounding, u/s. 33 of the
Maharashtra Stamp Act, 1958, for payment of proper stamp-duty.

 

It was held
that documents mentioned under the Maharashtra Stamp Act, 1958 can be
chargeable with the stamp-duty and the said provision refers to the instruments
mentioned in ‘Schedule-1’, which are chargeable under the Act. It is submitted
that, ‘Schedule-1’ does not refer to the ‘Memorandum of Understanding’, which,
ultimately, is leading to the ‘Agreement of Lease’ and hence, according to him,
if the instrument is not chargeable with the stamp-duty, under the provisions
of section 3 of the Maharashtra Stamp Act, 1958, then, in no case, it can be
impounded. As the impounding of the MOU was sought on the basis that, under the
said MOU, the possession was delivered and, therefore, the ‘Explanation’ to
Article 25 was invoked. However, as that analogy cannot be accepted,
considering the provisions of Articles 3 and 36 of the Maharashtra Stamp Act,
1958, the impugned order passed by the Trial Court does not call for any
interference.

 

30. Transfer of
Property – Unregistered gift deed – Substance over form – Valid if compliant
with law. [Transfer of Property Act, 1882; S.122, 123]

Topden Pintso
Bhutia vs. Sonam Plazor Bhutia (17.08.2017 – SIHC) AIR 2018 SIKKIM 1

 

The Plaintiff
and the Defendant are blood brothers, the Defendant being the Plaintiff’s elder
brother. The Plaintiff laid claim to the suit land alleging that his mother had
verbally gifted him the property in the year 1980. His mother passed away in
the year 2008. The Plaintiff claims possession of the suit land since 1980, to
the exclusion of his other siblings. After his mother’s demise, he approached
the Office of the Sub-Divisional Magistrate, Ravangla, South Sikkim, for
mutation of the suit property in his name. This was objected to by the
Defendant, inter alia, on the ground that, vide a document dated
21-12-2001, executed by his Late father, allegedly in the presence of the
Defendant and his brothers, the suit property was in fact gifted to him. It is
this document, that the Defendant seeks to validate on the basis of the
aforesaid Notification which clearly provides that, an unregistered document
may, however, be validated and admitted in Court to prove title or other
matters contained in the document, on payment of penalty up to fifty times the
usual registration fee.

 

The Court held
that the document sought to be validated, being bereft only of registration,
ought in substance, to be compliant of the provisions of section 122 and
section 123 of the Transfer of Property Act, 1882. It further held that it is
not every document that has not been registered which can be validated by the
order of the Court, but only those documents which bear compliance to the legal
provisions.