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Miscellanea

1. BUSINESS

#Indian space start-up Pixxel bags NASA contract to support Earth science research

Indian space start-up Pixxel has bagged a NASA contract to support Earth science research using the hyperspectral technology.

The Bengaluru-based company has become a part of NASA’s $476-million commercial small-sat data acquisition program — a first for an Indian start-up after the space sector was opened to private companies in 2020.

Co-founder and CEO Awais Ahmed called the award a “monumental achievement for Pixxel”.

He said the contract, valid till November 2028, “validates that hyperspectral imaging will be integral to the future of space-based Earth observation and enable us to truly build a health monitor for the planet”.

As per the contract, Pixxel will provide NASA and its US government and academic partners with hyperspectral Earth observation data. This will help empower the administration’s Earth science research and application activities.

Pixxel hyperspectral can capture data across hundreds of narrow wavelengths. Its datasets can also unravel granular insights on climate change, agriculture, biodiversity, and resource management, among others.

Building on this momentum, Pixxel is also making significant strides toward launching six satellites shortly. Fireflies — its 5-metre resolution hyperspectral satellites — will be the highest-resolution hyperspectral satellites ever launched.

These satellites will capture data across over 250 spectral bands, offering more comprehensive coverage with a 40km swath width and a 24-hour revisit frequency anywhere on the planet.

In addition, Pixxel also plans to expand its constellation to 24 satellites to make hyperspectral data commercially. This will make it more broadly available and accessible to stakeholders across industries and governments.

Pixxel has a constellation of the world’s highest-resolution hyperspectral imaging satellites that are designed for
24-hour revisits anywhere on Earth.

The satellites can help detect, monitor, and predict critical global phenomena across agriculture, oil and gas, mining, environment, and other sectors in up to 50 times richer detail.

Pixxel has also launched its in-house Earth Observation Studio, Aurora, to make satellite imagery analysis easily accessible.

The company has also raised over $70 million from Google, Lightspeed, Radical Ventures, Relativity’s Jordan Noone, Seraphim Capital, Ryan Johnson, Blume Ventures, Sparta LLC, Accenture, and others.

(Source: International Business Times –— ByIBT Business Desk — 10th September, 2024)

 

2. TECHNOLOGY

#Unlocking Success with AI-Powered CRMs: A New Era in Customer Relationship Management

AI-powered CRMs provide a crucial advantage by automating routine tasks like data entry, lead qualification, and follow-up communications, allowing employees to focus on strategic initiatives.

Integrating Artificial Intelligence (AI) into customer relationship management (CRM) systems is revolutionizing how businesses engage with customers. Vikas Reddy Penubelli highlights how AI-powered CRMs utilize machine learning, predictive analytics, and automation to enhance customer experiences, streamline operations, and drive business growth. By harnessing data insights, companies can personalize engagement, optimize resources, and remain competitive in the fast-paced, data-driven marketplace.

A Paradigm Shift in CRM

The integration of AI into CRM systems marks a significant shift in how businesses engage with their customers. AI-powered CRMs leverage machine learning, predictive analytics, and automation to deliver enhanced customer experiences. These systems enable companies to analyze vast amounts of data to predict customer behavior, personalize engagement, and optimize operations.

Enhanced Customer Understanding and Personalization

AI-powered CRMs analyze customer data from sources like transaction history, social media, and support interactions using advanced techniques such as clustering and sentiment analysis. These insights enable businesses to tailor products, services, and communications for personalized experiences. For example, retail companies can offer personalized product recommendations based on purchase history and browsing behavior, leading to increased engagement, higher conversion rates, and improved customer satisfaction.

Automation and Efficiency Gains

AI-powered CRMs provide a crucial advantage by automating routine tasks like data entry, lead qualification, and follow-up communications, allowing employees to focus on strategic initiatives. For instance, a software company can automatically classify and prioritize support tickets, addressing high-priority issues quickly. Automation optimizes resource allocation and boosts operational efficiency. Additionally, the productivity gains from AI-powered CRMs directly enhance profitability, as faster data processing and intelligent task prioritization enable sales teams to close more deals and drive revenue growth.

Predictive Capabilities and Market Trends

One of the most powerful features of AI-powered CRMs is their predictive capabilities. These systems can forecast customer behaviour, churn risk, and future market trends by analyzing complex data patterns. Vikas Reddy Penubelli highlights how businesses can leverage these insights to stay ahead of the curve and proactively address customer needs.

For example, a telecommunications company using an AI-powered CRM can predict which customers will likely churn due to poor network coverage in certain areas. By offering targeted retention incentives, the company can reduce churn and enhance customer lifetime value.

Predictive insights empower businesses to make informed decisions, optimize their strategies, and drive sustainable growth.

Challenges and Considerations

While AI-powered CRMs offer numerous benefits, their implementation comes with challenges. Businesses must address hurdles related to data privacy, employee adaptation, and technological integration. As companies collect and analyze large amounts of customer data, ensuring compliance with regulations like GDPR and the CCPA becomes essential for maintaining trust and security.

Moreover, successfully integrating AI into existing workflows requires significant employee training and adaptation. Sales teams, for example, must learn to trust AI-driven insights while applying their own expertise and judgment. Businesses that invest in upskilling their workforce and fostering a data-driven culture are better positioned to maximize the value of AI-powered CRMs.

The Future of AI-Powered CRMs

Looking ahead, the future of AI-powered CRMs looks promising, with advancements in technologies like edge computing, 5G networks, and blockchain set to enhance CRM capabilities. These innovations will enable real-time data processing and secure data sharing. As AI evolves, businesses can expect more advanced predictive modeling, natural language understanding, and autonomous decision-making, driving further growth and efficiency.

In conclusion, AI-powered CRMs represent a significant shift in customer engagement and business growth. By harnessing the power of AI, companies can gain deep insights into customer behavior, personalize experiences at scale, and automate repetitive tasks. Businesses that adopt AI-powered CRMs will be well-positioned to succeed in the increasingly competitive, data-driven marketplace.

(Source: International Business Times — By Alexander Maxwell — 18th September, 2024)

 

3. HEALTH

#India’s Health Coverage for Seniors Over 70

The Indian government has announced its decision to provide health coverage to all senior citizens aged 70 and above. This decision, approved by the Union Cabinet under the chairmanship of Prime Minister Narendra Modi, in the country’s approach towards elder care. The health coverage will be provided under the flagship scheme Ayushman Bharat Pradhan Mantri Jan Arogya Yojana (AB-PMJAY), also known as AA. This scheme will offer free treatment up to ₹5 lakh to the senior citizens, irrespective of their income.

Abhay Soi, President of NATHEALTH, has lauded this move, calling it a historic shift in the way the country approaches elder care. He emphasized that this segment of the population, which carries a high disease burden, is in urgent need of social protection. He further stated that this initiative will strengthen India’s position as a leader in inclusive healthcare”. So I also highlighted the need for the benefit package to be tailored to the population segment so that it encompasses the entire continuum of care. He assured that NATHEALTH is ready to support the government with the rollout of this scheme.

Under the new provisions, senior citizens aged 70 years and above, who belong to families already covered under the scheme, will receive an additional top-up cover up to ₹5 lakh per year. This amount will not have to be shared with the other members of the family who are below the age of 70 years. All other senior citizens of the age 70 years and above will get a cover up to ₹5 lakh per year on a family basis. The eligible senior citizens will also be issued a new distinct card under the scheme.

Dr. Sudhir Kumar, a renowned neurologist from Indraprastha Apollo Hospitals, Hyderabad, took to social media to express his approval of the government’s decision. He wrote, “Excellent move by the Govt of India to provide health coverage for all people aged 70 and above irrespective of income.” He also urged the government to extend this health coverage to citizens of other age categories. Dr. Kumar pointed out that there are about 9 crore people in the age group of 60 to 70 years. He expressed hope that they could be included in this scheme before 2029 and that by 2034, every Indian citizen would be provided health coverage.

This move by the Indian government is reminiscent of similar initiatives taken by other countries to provide comprehensive health coverage to their senior citizens. For instance, the United States has the Medicare program, which provides health insurance to people aged 65 or older. Similarly, the United Kingdom has the National Health Service, which provides free healthcare to all residents, including senior citizens

(Source: International Business Times — By Sheezan Naseer — 12th September, 2024)

 

4. SPORTS

#”Khelo India” goes global: South Africa hosts first international sports event

The inaugural international edition of the ‘Khelo India’ program, an initiative spearheaded by Prime Minister Narendra Modi, has been successfully hosted in South Africa. The event, which concluded after two weeks of competitions, was a massive success.

In a significant milestone for India’s global sports outreach, the first phase of the Khelo India initiative was held outside the country and concluded successfully in South Africa. The two-week-long event united South African and Indian expatriates through competitions in volleyball, badminton, table tennis, and chess.

Prime Minister Narendra Modi’s vision for Khelo India, which was launched in 2017 to promote sports across India, has now taken an international leap. The event in South Africa is seen as a testament to sports diplomacy, with the initiative aiming to bring people together through athletic engagement.

“Prime Minister Modi is the driving force behind this initiative,” said South African table tennis player Revaldo Wilson. “Sports is powerful, and we enjoyed playing with our Indian brothers.”

The Khelo India event was co-hosted by the India Club and the Consulate General of India in Johannesburg. Manish Gupta, Chairman of the India Club, highlighted the collaboration between local South African associations and various Indian organizations.

“We gladly accepted Consul General Mahesh Kumar’s request to coordinate the event. We brought in a number of Indian expatriate organizations, ensuring inclusivity across the board,” Gupta said.

The tournament saw the South African Tamil Association managing the volleyball competition, while the Gauteng Malayalee Association oversaw badminton. Chess and table tennis were coordinated with local bodies like Chess South Africa and the South African Table Tennis Board. Gupta added that the chess event had international grading, while the table tennis competition was a national championship-level event, attracting top-tier players, including South Africa’s six-time national champion.

Consul General Mahesh Kumar praised the spirit of the event, emphasizing that Khelo India transcends national borders. “Sport unites people in ways that nothing else can. By hosting the first Khelo India games abroad in South Africa, we are building on the special relationship between our two nations. The support from both the Indian diaspora and local South Africans has been overwhelming,” Kumar said.

Kumar also mentioned that participants travelled from neighbouring countries such as Lesotho and Zimbabwe, further highlighting the unifying power of sports.

“This event brings non-mainstream sports into the limelight. We hope it grows into an international movement, perhaps even evolving into an event similar to the Commonwealth or Asian Games,” Kumar added.

While the first phase of the event has concluded, more traditional Indian games such as kabaddi, Kho-Kho, Carrom, and Satoliya/ Lagori will be featured in the second phase, scheduled for December 2024 to January 2025. These games aim to introduce Indian cultural sports to a wider audience in South Africa.

The event not only created a platform for Indian expatriates but also strengthened bonds with the local South African community. Gupta noted that each sport was organized in collaboration with local partners, ensuring a strong foundation for future events. For example, the volleyball competition was supported by the South African Masters’ Volleyball Association and the chess tournament by Chess South Africa and the Johannesburg Metro Chess bodies.

(Source: International Business Times – By Steven Klien – 17th September, 2024)

Letters to the Editor

Sir,

Re: Your Editorial in the September 2024 issue of the BCAJ

You have made a great effort to communicate the taxpayers’ sufferings under Direct and Indirect taxes. In fact, it is your duty to sum up the real problems taxpayers are facing. It is because an editor has a great influence on the policymakers. Whatever suggestions you make, as an editor, they are considered by the Finance Ministry as well as the Finance Minister.

Faceless proceedings give tremendous opportunity to the authorities to take fair and reasonable decisions. It is because no one can make allegations of any corruption, as the proceedings are faceless. However, the desired change in the mindset of the authorities have not taken place. At times, High Courts have to levy costs on the authorities for taking obvious unreasonable decisions.

In the end, I must appreciate your tireless effort to bring in the existing ground realities in very lucid and clear terms, in your editorial.

Regards,

Adv. R. K. Sinha

Ex – DIT and IRS


Dear Sir,

Hats off to CA Raman Jokhakar for his candid and thought-provoking article in “Chatting up about India: When a $10 Trillion Economy Won’t Make a Difference”, published in the August 2024 issue of the BCAJ. It is very well written, detailing what is mentioned in the title, in a very systematic and analytical manner. It is worth sharing, going through a number of times and deliberating on it. We sincerely hope that many, especially those who matter, do take some cues out of it and amplify further on the contents thereof to take our motherland and country to greater heights.

Once again congratulations to Ramanji and our appreciation and accolades for the excellent article.

With Best Regards,

Rakesh Parikh


Dear Editor,

I have been studying (not reading) the BCAJ for more than three decades. The articles are well-researched and thought-provoking. The BCAJ is a professional life-line for me. I do not find such kind of articles in any of the professional magazines which I read. I always ensure that all my colleagues subscribe to the BCAJ and study it.

I am highly impressed and absorbed with the INSPIRING QUOTES given in the August Journal. I am sure this will help the younger generation to know about the infinite knowledge that Bharat possessed and has in every field of mankind.

Again, there are no words to express the high quality of the BCAJ, which the Team has been maintaining for over seven decades and the future to come.

Regards,

R.S. Balasubramanyam

FCA, FCS, LLB and IP

Introspection

Once a few Indians were discussing with some friends from Western countries about the difference between the Indian culture vis-à-vis the Western culture. Indians were as usual boasting of their spiritual heritage to which the Westerners agreed. But they said, ‘We agree that spiritual principles are deeply rooted in the mind of even illiterate common man of India’. They have less greed. They are contented with small things and have no craze for hifi living. They are pious and God-fearing. These principles of detachment are not understood by even the highly educated people in Western countries.

However, they added, that even an illiterate common man from Western countries understands the importance of cleanliness. He knows disciplined behaviour and has a good civic sense of not throwing garbage anywhere in an indiscreet manner and not spitting anywhere he likes.
This understanding is not found even among the moneyed and so-called educated people in India! Indians had to keep quiet.

There is a very interesting true story about this. One Australian lady had come to watch the Asian Games held in India in the year 1982. From there, she went to Kolkata to stay with some close acquaintances. One day she was invited to a function. The Indian audience asked her as to what she felt about Kolkata city, whether she liked it etc. She said she liked it. Still, they insisted that she should express her opinion frankly. So, she said, everything is alright, but there is a lot of filth around. There is a total lack of cleanliness.

The people tried to argue and pointed out to her – “Madam, are you aware that there are as many as one crore people staying in Kolkata? They wanted, perhaps, to justify the lack of cleanliness.”

She retorted- “How many more people do you need to keep the city clean?”

This is really an eye-opener, and it underlines the fact that it is everybody’s responsibility to have civic sense and keep the surroundings clean!

I heard another very interesting story which is the height of honesty. In a village, there was a small boy who was very poor. But he had a habit that whatever little he got, he used to offer half of it to the Lord Krishna in a particular temple. Once he stole a banana from a shop; offered half of it to the God and ate the remaining half. The shopkeeper was watching all this with interest. He caught him and said, I saw you stealing the banana and also that you kept half of it in the temple. I know, you are poor but a good and innocent boy. At the same time, the theft has to be punished. So, have 3 rounds (pradakshina) around the temple. The boy started the ‘pradakshina’. The shopkeeper was amazed to notice that Bhagwan Krishna was also walking along with the boy. When he came closer, he told the shopkeeper – “haven’t I eaten the half banana? So, I also should share the punishment”.

This is our concept of God, friends. We should try to emulate all the good things stated in this short article.

Regulatory Referencer

I. DIRECT TAX: SPOTLIGHT

1. CBDT issues circular revising the monetary threshold for filing of appeals — Circular No. 09/2024 dated
17th September, 2024

Circular 5 of 2024 dated 15th March, 2024 had prescribed monetary limits for filing income tax appeals by the Income tax department. The limits are revised to ₹5 crore, ₹2 crore, and ₹60 lakhs respectively for filing appeals before the Supreme Court, High Court, and Income Tax Appellate tribunal respectively. CBDT has further clarified that the Department should not file an appeal merely because the tax effect exceeds the monetary limit but filing of an appeal should be decided based on the merits of each case.

II. COMPANIES ACT, 2013

1. C-PACE to facilitate voluntary LLP closures under new rules effective 27th August, 2024: The Hon’ble Finance Minister, in her budget speech, announced that the services of the Centre for Processing Accelerated Corporate Exit (C-PACE) would be extended to facilitate the voluntary closure of LLPs. Accordingly, the Ministry of Corporate Affairs (MCA) has notified the Limited Liability Partnership (Amendment) Rules, 2024. Under these amended rules, the application for voluntary closure of LLPs will now be approved by C-PACE instead of the ROC effective from the 27th August, 2024, [MCA Notification G.S.R. 475(E), dated 5th August, 2024]

2. Foreign Companies must now file Form FC-1 with CRC within 30 days of setting up business in India: MCA has notified the Companies (Registration of Foreign Companies) (Amendment) Rules, 2024. Pursuant to the amendment to Rule 3(3), a foreign company must now file Form FC-1 with the Registrar, Central Registration Centre (CRC), within thirty days of establishing its place of business in India. Further, documents for registration by a foreign company must also be delivered in Form FC-1 to the Registrar, Central Registration Centre. These rules are effective from 9th September, 2024. [Notification No. G.S.R 491(E), dated 12th August, 2024]

3. MCA introduces ‘Ind AS 117’ on Insurance Contracts: MCA has notified Companies (Indian Accounting Standards) Amendment Rules, 2024. As per the amended norms, a new Ind AS 117 relating to ‘Insurance Contracts’ has been inserted. Ind AS 117 establishes principles for recognizing, measuring, presenting, and disclosing insurance contracts. The objective is to ensure that an entity provides relevant information that faithfully represents those contracts. An entity is expected to apply Ind AS 117 to insurance, reinsurance, and investment contracts. [Notification No. G.S.R 492(E), Dated 12th August, 2024]

III. SEBI

1. SEBI launches chatbot “SEVA” for investors: SEBI has launched its Virtual Assistant (SEVA) – an Artificial Intelligence (AI) based conversation platform for investors. The Beta version of the chatbot includes features like citations for generated responses, speech-to-text and text-to-speech functionality for accessibility, etc. The chatbot is presently enabled to answer questions regarding general information on the securities market, grievance redressal process, etc. The beta version is available on SEBI’s investor website and the SAARTHI mobile app. [PR NO. 14/2024, dated 29th July, 2024]

2. Stock exchanges and clearing corporations must now disclose shareholding patterns in the format as per LODR norms: SEBI has notified an amendment to the Securities Contracts (Regulation) (Stock Exchanges and Clearing Corporations) Regulations, 2018. As per the amended norms, stock exchanges and clearing corporations are now required to disclose their shareholding pattern on their respective websites every quarter as per the requirements and format specified for listed companies under LODR Regulations. [Notification No. SEBI/LAD-NRO/GN/2024/196, dated 29th July, 2024]

3. AMCs must have surveillance, controls, and escalation processes to detect and prevent potential market abuse: Earlier, SEBI carried out a public consultation on the proposal of putting in place a structured institutional mechanism at the end of AMCs, which can proactively identify and deter instances of such market abuse. Accordingly, the SEBI (Mutual Funds) Regulations, 1996 was amended. Now, SEBI has directed that this mechanism shall consist of enhanced surveillance systems, internal control procedures, & escalation processes to effectively identify, monitor & address misconduct. [Circular No. SEBI/HO/IMD/IMD-POD-1/P/CIR/2024/107, dated 5th August, 2024]

4. SEBI issues guidelines for borrowings by Category I and Category II Alternative Investment Funds: SEBI has issued guidelines for borrowing by Category I and II Alternative Investment Funds (AIFs). As per the new norms, Category I and II AIFs are allowed to borrow to meet a temporary shortfall in the amount called from investors for making investments in investee companies (‘drawdown amount’). Further, all Category I and II AIFs must maintain a 30-day cooling-off period between two periods of borrowing as permissible under AIF Regulations. The circular shall be effective immediately. [Circular No. SEBI/HO/AFD/AFD-POD-1/P/CIR/2024/112, dated 19th August, 2024]

5. Research Analysts must be entitled to charge fees for providing research services to Clients: SEBI has notified an amendment to the SEBI (Research Analysts) Regulations, 2014. As per the newly inserted norms, a Research Analyst must be entitled to charge fees for providing research services from a client, including an accredited investor, in the manner specified by the Board. These amended norms shall come into force from the date of their publication in the Official Gazette i.e., 19th August, 2024. [Notification No. SEBI/LAD-NRO/GN/2024/199, dated 19th August, 2024]

IV. FEMA:

1. Important amendments in Non-debt Instruments Rules:

NDI Rules under FEMA have been liberalised and the following are the amendments in brief. A swap of shares leading to an ODI transaction as well as an FDI transaction is called an “ODI-FDI swap” in general parlance. While Overseas Direct Investment (ODI) has been permitted through the swap of shares of any entity vide the new Overseas Investment regime notified in August 2022, FDI through the swap of shares of a foreign entity was still under the Approval route. Hence, the FDI leg of an ODI-FDI swap required prior approval. The Foreign Exchange Management (Non-debt Instruments) Rules, 2019 have been amended to permit FDI through the swap of shares. This has enabled full ODI-FDI swap under the automatic route. This has eased out several transactions and arrangements.

The other amendments in NDI Rules include an updation in the definition of control and start-up; clarity in the calculation of indirect foreign investment by excluding the investment made on a non-repatriation basis from the same; increase in limit on foreign portfolio investment under the automatic route from 49 per cent to the respective sectoral cap prescribed; and liberalization of norms for FDI in White Label ATM operations. Please refer to the NDI Rules for complete information.

[Foreign Exchange Management (Non-Debt Instruments) (Fourth Amendment) Rules,
2024 – Notification S.O. 3492(E) [F. NO. 1/8/2024-EM], dated 16th August, 2024]

2. Scheme notified for trading and settlement of Sovereign Green Bonds in IFSC

The FEM (Debt Regulations), 2019 were amended in August 2024 permitting persons resident outside India to purchase or sell Sovereign Green Bonds issued by the Government of India in IFSC. Now, the scheme for trading and settlement of sovereign green bonds in IFSC has been notified by the IFSCA. The operational guidelines for participation in the Scheme by entities in the IFSC shall be further issued by the IFSC Authority.

[Circular No. CO.FMRD.FMIA.NO.S242/11-01-051/2024–25, dated 29th August, 2024]

3. Listing Regulations notified in IFSC:

The IFSCA (Listing) Regulations, 2024 have been notified for IPOs, debt securities, and secondary listings in IFSC exchanges. There have already been amendments in the Companies Act and FEMA enabling provisions for Indian companies to list in IFSC exchanges. These regulations provide a comprehensive framework for the same.

[International Financial Services Centres Authority (Listing) Regulations, 2024 – Notification No. IFSCA/GN/2024/006, dated 20th August, 2024]

4. Discontinuation of monthly LRS returns to be submitted by Banks

AD Category-I banks were required to furnish information on the number of applications received and the total amount remitted under LRS on a monthly basis in the Centralised Information Management System (CIMS). This requirement has been discontinued from the reporting month of September 2024. The banks will be required to upload only transaction-wise information under LRS daily return at the close of business of the next working day. The Master Direction — Reporting under the Foreign Exchange Management Act, 1999 has also been updated to reflect this change.

[A.P. (DIR SERIES 2024–25) Circular No. 16, dated 6th September, 2024]

5. New rules notified for compounding under FEMA:

The Central Government has notified Foreign Exchange (Compounding Proceedings) Rules, 2024 in supersession of the Foreign Exchange (Compounding Proceedings) Rules, 2000. There has been an increase in the amount of fees to be paid while submitting the compounding application from INR 5,000 to 10,000 and the pecuniary limits with respect to which the powers have been delegated to the officers to compound the contravention. The non-compoundable offenses have been specifically listed and multiple forms which were required to be submitted along with the compounding application have been merged into a single form.

[Foreign Exchange (Compounding Proceedings) Rules, 2024 — Notification No. G.S.R. 566(E) [F. NO. 1/10/2023-EM], dated 12th September, 2024]

Part A | Company Law

8 In the Matter of:

M/S Lions Co-Ordination of Committee of India Association

Registrar of Companies, Chennai

Adjudication Order No. ROC/CHN/ADJ/LIONS CO/S.134(3)(b)24

Date of Order: 25th June, 2024

Adjudication Order on Company and its Directors for Non-disclosure of details of the Number of Board Meetings conducted and the Dates of Board Meetings held during the financial years 2018–19 and 2019–20. This amounts to violation of the provisions of Section 134(3) (b) with Secretarial Standard-4 of the Companies Act, 2013, and hence, penalty was imposed under Section 134(8) of the Companies Act, 2013.

FACTS

An inquiry was conducted in the matter of M/s LCCIA by officer authorised by Central Government (CG), wherein it was observed that:

M/s LCCIA had not disclosed number of Board meetings conducted and dates of Board meetings in its Director’s Report for the Financial Year (FY) 2018–19.

Further, it was observed that in the Director’s Report for the FY 2019–20, the Company had disclosed that the maximum interval between any two meetings was well within the maximum period of 120 days. However, as per provisions of Section 134(3)(b) of the Companies Act, 2013 (CA 2013), “Number of Board Meetings conducted” should be disclosed and as per Secretarial Standard-4, the company should disclose “Dates of Board Meetings” conducted by the Company during the year.

Thereafter, the officer submitted his Inspection Report to the Regional Director (RD) of Chennai, and the office of RD had directed to initiate necessary action against the defaulters.

Thereafter, the Adjudicating Authority / Officer issued a Show Cause Notice (SCN) on 8th September, 2023 to M/s LCCIA and its directors. Mr Shri VPN was the only Director of M/s LCCIA who had filed a suo-moto Adjudication application in form GNL-1 dated 25th November, 2023. Therefore, on the basis of such application received from Mr Shri VPN, the AO imposed penalty on him for violation of Section 134(3)(b) of CA 2013.

Since no reply / information was received from M/s LCCIA and its other directors, the AO decided to fix a final hearing on 8th April, 2024 to complete the adjudication proceedings and issue notice to M/s LCCIA and all its Directors except Mr Shri VPN.

Pursuant to the notice, Mr PPK, Company Secretary appeared on behalf of the directors Mr VKL, Mr JPS, Mr NJKM and Mr RS before Adjudicating Authority and submitted that violation may be adjudicated.

RELEVANT PROVISIONS OF CA 2013:

134. Financial statement, Board’s Report, etc.

(3) There shall be attached to statement laid before a company in general meeting, a report by its Board of Directors, which shall include-

(a) the web address, if any, where annual return referred to in sub-section (3) Section 92 has been placed

(b) number of meetings of the Board;

(8) If a company is in default in complying with the provisions of this section, the Company shall be liable to a penalty of three lakh rupees and every officer of the company who is in default shall be liable to a penalty of fifty thousand rupees

Part I- SS-4: Secretarial Standard on the Report of Board of Directors: Board Meetings:

The number and dates of meetings of the Board held during the year shall be disclosed in the Report.

ORDER

After considering the facts and circumstances of the case, the AO concluded that M/s LCCIA and its directors had violated Section 134(3)(b) of CA 2013 and were liable for penalty as prescribed under Section 134(8) of CA 2013 for the FYs 2018–19 and 2019–20.

AO, accordingly, imposed penalty on the Company and its Officers in default aggregating to ₹ 24 lakhs. The said amount of penalty was to be paid through online mode by using the website www.mca.gov.in (Misc. head) within 90 days of receipt of this order, and intimate with proof of penalty paid.

Contingent Features and SPPI Test

IASB has amended IFRS 9 and IFRS 7 with respect to contingent features, which will take effect from reporting periods beginning on or after 1st January, 2026. We can expect similar amendments in Ind AS in the near term, probably taking effect from 1st April, 2026. The amendments provide some leeway, such that the SPPI test will be considered met even if there are contingent features in an instrument, that alter the contractual cash flows. The amendments were introduced to provide some relief in situations where contractual cash flows are altered because of reduction in carbon emissions. The amendments will apply to all contingent features including those relating to carbon emissions. In this article, the author has provided the existing requirements and the amendments in a very simplified question and answer format.

FINANCIAL ASSETS AND AMORTISED COST

Which are the financial assets that can be classified under the ‘amortised cost’ category?

A ‘debt instrument’ can be measured at the amortised cost if both the following conditions are met:

(a) The asset is held within a business model whose objective is to hold assets for collecting contractual cash flows, and

(b) Contractual terms of the asset give rise on specified dates to cash flows that are solely payments of principal and interest (SPPI) on the principal amount outstanding.

Financial assets included within this category are initially recognised at fair value plus transaction costs that are directly attributable to the acquisition of the financial asset and subsequently measured at amortised cost. The following diagram explains the classification requirements.

FVTOCI is Fair Value through Other Comprehensive Income.

FVTPL is Fair Value through Profit and Loss.

CONTRACTUAL CASH FLOWS

ANALYSIS — SPPI TEST

After assessing the business model, the entity should assess whether the asset’s contractual cash flows represent solely payments of principal and interest (SPPI). This test is also referred to as the ‘SPPI’ test.

What is the relevance of SPPI test for deciding classification of financial assets?

SPPI test is required to decide whether an instrument structured as ‘debt instrument’ actually has the ‘basic loan features’. Ind AS 109 allows amortisation or FVTOCI measurement categories only for the debt instruments which satisfy the SPPI test. All other debt instruments need to be classified as at FVTPL, irrespective of the business model.

The SPPI is designed to weed out financial assets on which the application of the effective interest rate (EIR) method either is not viable from a pure mechanical standpoint or does not provide decision useful information. Since the EIR is a mechanism to allocate interest over time, Ind AS 109 allows measurements requiring the use of this methodology only for the instruments having low variability such as traditional unleveraged loans and receivables and ‘plain vanilla’ debt instruments. Thus, the SPPI test is based on the premise that contractual cash flows should give the holder a return which is in line with a ‘basic lending arrangement’.

Are the terms ‘principal’ and ‘interest’ defined for SPPI test?

Ind AS 109 provides the following definitions to help management in making a preliminary assessment of whether contractual cash flows represent SPPI:

Principal: is the fair value of the financial asset at initial recognition. However, that principal amount may change over the life of the financial asset, e.g., if there are repayments of principal.

Interest: Is typically the compensation for the time value of money and credit risk. However, interest can also include consideration for other basic lending risks (for example, liquidity risk) and costs (for example, servicing or administrative costs) associated with holding the financial asset for a period of time, as well as a profit margin.

Consider that contractual provisions of a debt instrument contain clauses which may modify the cash flows of an instrument. How should an entity assess the impact of modifications? Does it mean that SPPI test will not be met?

Ind AS 109 requires that if contractual provisions of an instrument contain elements that modify the time value of money, the entity should compare the financial asset under assessment to a standard/ benchmark instrument without any modification in the time value of money. If cash flows of the two instruments are significantly different, the instrument under assessment fails the SPPI test. If the cash flows of the two instruments are not significantly different, the instrument with modified cash flows will also meet the SPPI test.

The standard clarifies that it will be not necessary for an entity to perform a detailed quantitative assessment if it is clear with little or no analysis that cash flows of the instrument under assessment and those of the benchmark instrument are or are not significantly different.

The standard does not provide any specific guidance or bright-lines to be used for deciding whether cash flows of two instruments are ‘significantly different’. This will require entities to exercise judgment. For example, less than 5 per cent difference in cash flows in each reporting period as well as cumulatively over the life of the asset may not be significant. However, 20 per cent difference either in a reporting period or cumulatively over the life of the asset is likely to be significant.

Is an entity required to consider all features of the instruments while performing SPPI test?

In performing SPPI test, an entity can ignore de minimis features and non-genuine features.

The de minimis threshold is about magnitude of modification. To be considered de minimis, the impact of feature on the cash flows needs to be de minimis in each reporting period as well as cumulatively over the life of the asset. For example, a feature will not be considered de minimis if it could lead to a significant increase in cash flows in one period and a significant decrease in another period and the amounts offset each other on a cumulative basis. Similarly, if the impact of the feature on the cash flows of each individual period is always de minimis but its cumulative effect over time is more than de minimis; such a feature cannot be considered de minimis.

Ind AS 109 does not specify whether an entity should perform qualitative or quantitative analysis to determine whether a feature is de minimis. The author believes that in most cases, an entity should be able to conclude this without a quantitative analysis.

If a ₹10 million loan contains an early repayment clause which, if exercised, requires repayment of outstanding principal and interest plus ₹100, the additional ₹100 would have only a de minimis impact to cash flows in all circumstances. It is clearly trivial and negligible.

When assessing if a feature is de minimis an entity is not permitted to take into account the probability that the future event will occur, unless the contingent feature is not genuine. De minimis must be assessed at the individual financial asset level and not at some higher level, for example at a portfolio or entity level, because what is not de minimis at the financial instrument level may be de minimis at the portfolio level. Additionally, the assessment should be made by reference to all the cash flows of an instrument (principal and interest).

Non-genuine features are contingent features. A contingent feature is not genuine if it affects the instrument’s contractual cash flows only on the occurrence of an event that is extremely rare, highly abnormal and very unlikely to occur. This implies that although a non-genuine feature can potentially lead to cash flows to significant changes in cash flows, its existence in the contract provisions will not fail the SPPI test. Disregarding non-genuine features also means that classification requirements cannot be overridden by introducing a contractual non-genuine cash flow characteristic to achieve a specific accounting outcome. A clause should not be considered ‘not genuine’ just because historically the relevant event has not occurred. If a clause is ‘not genuine’ the fair value and pricing of the instrument would also be expected to be the same regardless of whether or not the clause is included.

A contract issued at par permits the issuer to repay the debt instrument, or the holder to put the debt instrument back to the issuer before maturity at par, when the BSE 100 index reaches a specific level. When the contingent event takes place, it results in a pre-payment that represents unpaid amounts of principal and interest on the principal amount outstanding. Does this always pass the SPPI test?

Yes. The contingent event (the BSE100 index reaching a specific level) changes the timing of the cash flows, but it still results in the redemption of the debt for an amount equal to par plus accrued interest. Therefore, it will always pass the SPPI test, because the cash flows still represent solely payments of principal and interest on the principal amount outstanding. If, on the other hand, the debt instrument was issued at a discount, but it is repayable at par, this may represent compensation to the issuer for the BSE 100 achieving the target level, which is inconsistent with SPPI.

Ve Co borrows ₹100 million from a bank. The borrowing agreement permits the bank to demand early repayment if Ve’s credit rating falls by more than two notches compared with the credit rating at origination. Is the SPPI test met in this case?

The contingent feature within the early repayment term is consistent with a return of principal and interest on the principal outstanding because the contingent event is directly linked to the credit risk of the borrower, i.e. the prepayment option is designed to provide the lender with the protection from the adverse changes in credit quality of the borrower. The credit risk of the borrower is a risk that is reflected in a basic lending arrangement. Therefore, SPPI test is met.

IFRS 9 AND IFRS 7 AMENDMENTS

The amendments introduce an additional test for financial assets with contingent features to meet SPPI test if contingent feature does not change in basic lending risks or costs, e.g. the interest rate on a loan is adjusted by a specified amount if the borrower achieves a contractually specified reduction in carbon emissions. Under this example, returns have changed due to a contingent event and credit risks (lending risk) of borrower will remain unchanged.

While the amendments may allow certain financial assets with contingent features to meet the SPPI criterion, companies may need to perform additional work to prove this. Judgement will be required in determining whether the new test is met.

IASB has introduced following additional SPPI test:

IASB has prescribed corresponding additional disclosures for financial instruments with a contingent feature that is not measured at fair value through profit and loss:

  • a qualitative description of the nature of the contingent event
  • quantitative information about the range of possible changes to contractual cash flows that could result from those contractual terms
  • the gross carrying amount of financial assets and the amortised cost of financial liabilities subject to those contractual terms.

Ind AS 117 – Insurance Contracts

INTRODUCTION

We have got used to the Ministry of Corporate Affairs (MCA) introducing new Accounting Standards at the end of a financial year. Both Ind AS 115 — Revenue from Contracts with Customers and Ind AS 116 — Leases were announced in the end of March. One would have thought that the same pattern would play out for the implementation of Ind AS 117 — Insurance Contracts. However, the MCA pulled a surprise on 12th August, 2024 by not only announcing the Standard but also making it applicable for the Financial Year 2024–25. Ind AS 117 is a much more detailed and comprehensive standard than Ind AS 104 – Insurance Contracts. Ind AS 117 takes into account that the insurance and banking industries provide services that complement each other. Ind AS 117 acknowledges this and takes us back to Ind AS 109 wherever there is a trace of a financial instrument in an insurance contract. Ind AS 117 is a detailed standard: the standard has 132 main paragraphs, 154 paragraphs of application guidance, 22 definitions and 57 paragraphs on transition provisions.

SCOPE

Ind AS 117 defines an insurance contract as “A contract under which one party (the issuer) accepts significant insurance risk from another party (the policyholder) by agreeing to compensate the policyholder if a specified uncertain future event (the insured event) adversely affects the policyholder”. By definition, it is clear that Ind AS 117 would apply to plain-vanilla insurance contracts such as fire, life, theft, damage, product liability, professional liability, life-contingent annuities or pensions and medical costs, etc. However, by interpretation of the definition, Ind AS 117 would also apply to product warranties issued by another party on behalf of the manufacturer, surety, fidelity and catastrophe bonds and insurance swaps. (Para B 26 of Ind AS 117).

GROUPING OF CONTRACTS

IND AS 117 requires entities to identify portfolios of insurance contracts, which comprises contracts that are subject to similar risks and managed together. Contracts within a product line would be expected to have similar risks and hence would be expected to be in the same portfolio if they are managed together. Each portfolio of insurance contracts issues shall be divided into a minimum of three cohorts: onerous contracts, contracts that could not turn onerous and a residuary category. An entity is not permitted to include contracts issued more than one year apart in the same group.

RECOGNITION

An entity shall recognise a group of insurance contracts it issues from the earliest beginning of the coverage period, the date when the first payment from a policyholder in the group becomes due or for a group of onerous contracts, when the group becomes onerous.

MEASUREMENT

Ind AS 117 provides three methods to measure insurance contracts:

1. General Measurement Model or Building Block Approach: the default method

2. Premium Allocation Approach: an optional method for certain specific type of contracts

3. Variable fee approach: a specific method for direct participating contracts.

BUILDING BLOCK APPROACH

Ind AS 117 mandates that on initial recognition, an entity shall measure a group of insurance contracts at the total of the fulfilment cash flows (FCF) and a contractual service margin (CSM). FCFs are an explicit, unbiased and probability-weighted estimate (i.e., expected value) of the present value of the future cash outflows minus the present value of the future cash inflows that will arise as the entity fulfils insurance contracts, including a risk adjustment for non-financial risk.

Risk adjustment for non-financial risk

The estimate of the present value of the future cash flows is adjusted to reflect the compensation that the entity requires for bearing the uncertainty about the amount and timing of future cash flows that arises from non-financial risk.

Contractual service margin

The CSM represents the unearned profit of the group of insurance contracts that the entity will recognise as it provides services in the future. This is measured on initial recognition of a group of insurance contracts at an amount that, unless the group of contracts is onerous, results in no income or expenses arising from:

(a) the initial recognition of an amount for the FCF,

(b) the derecognition at that date of any asset or liability recognised for insurance acquisition cash flows, and

(c) any cash flows arising from the contracts in the group at that date.

As a simple mathematical example, assume that over a three-year insurance contract, an insurance company estimates discounted cash inflows to be ₹1,000, discounted outflows to be ₹200, risk adjustment for non-financial risk to be ₹150 and the CSM to be ₹100, the value of the insurance contract at initial measurement would be ₹1,050.

Subsequent measurement

On subsequent measurement, the carrying amount of a group of insurance contracts at the end of each reporting period shall be the sum of:

(a) the liability for remaining coverage comprising:

(i) the FCF related to future services, and

(ii) the CSM of the group at that date;

(b) the liability for incurred claims, comprising the FCF related to past service allocated to the group at that date.

Onerous contracts

Taking a cue from Ind AS 37, Ind AS 117 states that an insurance contract is onerous at initial recognition if the total of the FCF, any previously recognised acquisition cash flows and any cash flows arising from the contract at that date are a net outflow. An entity shall recognise a loss in profit or loss for the net outflow, resulting in the carrying amount of the liability for the group being equal to the FCF and the CSM of the group being zero. On subsequent measurement, if a group of insurance contracts becomes onerous (or more onerous), that excess shall be recognised in profit or loss.

As a simple mathematical example, assume that over a three-year insurance contract, an insurance company estimates discounted cash inflows to be ₹1,000, discounted outflows to be ₹1,200 and risk adjustment for non-financial risk to be ₹150. The net outflow of ₹350 would be recognised in the profit or loss account. CSM would always be Nil for onerous contracts.

PREMIUM ALLOCATION APPROACH

An entity may simplify the measurement of the liability for remaining coverage of a group of insurance contracts using the Premium Allocation Approach (PAA) on the condition that at the inception of the group:

(a) the entity reasonably expects that this will be a reasonable approximation of the general model, or

(b) the coverage period of each contract in the group is one year or less.

Where, at the inception of the group, an entity expects significant variances in the FCF during the period before a claim is incurred, such contracts are not eligible to apply the PAA.

Using the PAA, the liability for remaining coverage shall be initially recognised as the premiums, if any, received at initial recognition, minus any insurance acquisition cash flows. Subsequently, the carrying amount of the liability is the carrying amount at the start of the reporting period plus the premiums received in the period, minus insurance acquisition cash flows, plus amortisation of acquisition cash flows, minus the amount recognised as insurance revenue for coverage provided in that period, and minus any investment component paid or transferred to the liability for incurred claims.

VARIABLE FEE APPROACH

The Variable Fee Approach (VFA) is a modified model for insurance contracts with direct participation features. The VFA defines a variable fee as the entity’s share of the underlying items as a fee for the services it provides. The value of the variable fee changes based on the value of the assets.

REINSURANCE CONTRACTS HELD

The requirements of the standard are modified for reinsurance contracts held.

In estimating the present value of future expected cash flows for reinsurance contracts, entities use assumptions consistent with those used for related direct insurance contracts. Additionally, estimates include the risk of reinsurer’s non-performance.

The risk adjustment for non-financial risk is estimated to represent the transfer of risk from the holder of the reinsurance contract to the reinsurer.

On initial recognition, the CSM is determined similarly to that of direct insurance contracts issued, except that the CSM represents net gain or loss on purchasing reinsurance. On initial recognition, this net gain or loss is deferred, unless the net loss relates to events that occurred before purchasing a reinsurance contract (in which case, it is expensed immediately).

Subsequently, reinsurance contracts held are accounted similarly to insurance contracts under the general model. Changes in reinsurer’s risk of non-performance are reflected in profit or loss, and do not adjust the CSM.

MODIFICATION OF AN INSURANCE CONTRACT

If the terms of an insurance contract are modified, an entity shall derecognise the original contract and recognise the modified contract as a new contract if there is a substantive modification, based on meeting any of the specified criteria.

The modification is substantive if any of the following conditions are satisfied:

(a) if, had the modified terms been included at contract’s inception, this would have led to:

(i) exclusion from the Standard’s scope;

(ii) unbundling of different embedded derivatives;

(iii) redefinition of the contract boundary; or

(iv) the reallocation to a different group of contracts; or

(b) if the original contract met the definition of direct par insurance contracts, but the modified contract no longer meets that definition, or vice versa; or

(c) the entity originally applied the PAA, but the contract’s modifications made it no longer eligible for it.

DERECOGNITION

An entity shall derecognise an insurance contract when it is extinguished, or if any of the conditions of a substantive modification of an insurance contract are met.

Presentation in the statement of financial position

An entity shall present separately in the statement of financial position the carrying amount of groups of:

(a) insurance contracts issued that are assets;

(b) insurance contracts issued that are liabilities;

(c) reinsurance contracts held that are assets; and

(d) reinsurance contracts held that are liabilities.

Recognition and presentation in the statement(s) of financial performance

An entity shall disaggregate the amounts recognised in the statement(s) of financial performance into:

(a) an insurance service result, comprising insurance revenue and insurance service expenses; and

(b) insurance finance income or expenses.

Income or expenses from reinsurance contracts held shall be presented separately from the expenses or income from insurance contracts issued.

Insurance service result

An entity shall present in profit or loss revenue arising from the groups of insurance contracts issued, and insurance service expenses arising from a group of insurance contracts it issues, comprising incurred claims and other incurred insurance service expenses. Revenue and insurance service expenses shall exclude any investment components. An entity shall not present premiums in the profit or loss if that information is inconsistent with revenue presented

Insurance finance income or expenses

Insurance finance income or expenses comprises the change in the carrying amount of the group of insurance contracts arising from:

(a) the effect of the time value of money and changes in the time value of money; and

(b) the effect of changes in assumptions that relate to financial risk; but

(c) excluding any such changes for groups of insurance contracts with direct participating insurance contracts that would instead adjust the CSM.

An entity has an accounting policy choice between including all of insurance finance income or expense for the period in profit or loss or disaggregating it between an amount presented in profit or loss and an amount presented in other comprehensive income (OCI).

Under the general model, disaggregating means presenting in profit or loss an amount determined by a systematic allocation of the expected total insurance finance income or expenses over the duration of the group of contracts. On derecognition of the groups, amounts remaining in OCI are reclassified to profit or loss.

Under the VFA, for direct par insurance contracts, only where the entity holds the underlying items, disaggregating means presenting in profit or loss as insurance finance income or expenses an amount that eliminates the accounting mismatches with the finance income or expenses arising on the underlying items. On derecognition of the groups, the amounts previously recognised in OCI remain there.

DISCLOSURES

An entity shall disclose qualitative and quantitative information about:

(a) the amounts recognised in its financial statements that arise from insurance contracts;

(b) the significant judgements, and changes in those judgements, made when applying IND AS 117; and

(c) the nature and extent of the risks that arise from insurance contracts.

IRDAI

Now that Ind AS 117 has been issued, insurance companies would be looking forward to final formats and instructions from their regulator, Insurance Regulatory and Development Authority of India (IRDAI). In the past, IRDAI has had committees to suggest formats and guidelines for the implementation of Ind AS. A report of an erstwhile Committee was received in 2018 but since there were a few revisions made to IFRS 17, a new committee was formed in early 2024. IRDAI would need to implement the suggestions made by the Committee when its report is received.

IMPLEMENTATION ISSUES

Given the short time provided to insurance companies to implement the standard, they could face a few implementation issues. The fact that most of these companies have also not implemented Ind AS 109 – Financial Instruments further adds to their implementation issues since Ind AS 117 refers to Ind AS 109 quite frequently. The European Insurance and Occupational Pensions Authority (EIOPA) has published a report on the impact of IFRS – 17 and the challenges in implementation of the standard. The challenges were divided into four categories: understanding the standard, getting the data, interpreting the financial statements and building the systems. In India, there could be a further challenge in terms of impact on GST and income tax. GST laws would not recognise concepts such as CSM and risk adjustments while the Income Computation and Disclosure Standards (ICDS) have still not been upgraded to deal with any of the Ind AS accounting standards. Skilling the finance and accounts team on the nuances of the Standard through training programs would probably be the first priority for insurance companies.

Bank Accounts and Repatriation Facilities for Non-Residents

In this article, we have discussed the rules and regulations related to NRO, NRE, FCNR and other accounts pertaining to Non-residents under Foreign Exchange Management Act, 1999 (FEMA).

BANK ACCOUNTS

Opening, holding and maintaining accounts in India by a person resident outside India is regulated in terms of 6 section 6(3) of the FEMA, 1999 read with Foreign Exchange Management (Deposit) Regulations, 2016 (‘Deposit Regulations’) issued vide Notification No. FEMA 5(R)/2016-RB dated 1st April, 2016, Master Direction – Deposits and Accounts FED Master Direction No. 14/2015-16 dated 1st January, 2016 and FAQs on Accounts in India by Non-residents, updated from time to time, provides further guidance on the same.

An Authorised Dealer (AD) bank is permitted to open in India the following types of accounts for persons resident outside India:

i) Non-Resident (External) Account Scheme (NRE account) for a non-resident Indian (NRI) – Schedule 1 of the Deposit Regulations;

ii) Foreign Currency (Non-Resident) Account Banks Scheme, (FCNR(B) account) for a non-resident Indian – Schedule 2 of the Deposit Regulations;

iii) Non-Resident (Ordinary) Account Scheme (NRO account) for any person resident outside India – Schedule 3 of the Deposit Regulations;

iv) Special Non-Resident Rupee Account (SNRR account) for any person resident outside India having a business interest in India – Schedule 4 of the Deposit Regulations;

v) Escrow Account for resident or non-resident acquirers – Schedule 5 of the Deposit Regulations.

Currently, a company or a body corporate, a proprietary concern or a firm in India may accept deposits from an NRI or PIO on a non-repatriation basis only1 – Other conditions that apply to such deposits include:

  • Deposit should be for a maximum maturity period of three years.
  • Deposit can be received from NRO account only.
  • Rate of interest should not exceed the ceiling rate prescribed under the Companies (Acceptance of Deposit) Rules, 2014 / NBFC guidelines / directions issued by RBI.
  • Deposit shall not be utilised for relending (other than NBFC) or for undertaking agricultural/plantation activities or real estate business.
  • The amount of deposits accepted shall not be allowed to be repatriated outside India.

Under the current regulations, a company or a body corporate is not permitted to accept any fresh deposits on repatriation basis from an NRI or PIO. However, it is only permitted to renew the deposits which had already been accepted under the erstwhile Notification.


1 Refer Schedule 7 of the Deposit Regulations

KEY FEATURES OF NRE, FCNR (B) AND NRO ACCOUNTS

NRIs usually have majority of their earnings in foreign currency and thus their financial and investment objectives differ from residents. NRIs and PIOs are permitted to open and maintain accounts with authorised dealers and banks (including co-operative banks) authorised by the Reserve Bank to maintain such accounts. The major types of accounts that can be opened by an NRI2 or PIO3 in India include NRE, NRO and FCNR accounts. The key features of these accounts are as under:

NRE ACCOUNT

  • This account is denominated in Indian rupees, wherein proceeds of remittances to India can be deposited in any permitted currency;
  • The monies held in this account can be freely repatriated outside India;
  • Current income in India like rent, dividend, pension, interest, etc. can be deposited subject to payment of income taxes;
  • This account is subject to exchange rate fluctuations since the foreign currency earnings deposited into this account are converted into INR using the current exchange rate of the receiving bank;
  • Interest income earned from the NRE account is tax-free.

NRO ACCOUNT

  • A resident account needs to be redesignated as a NRO account when a person becomes non-resident. For this, the person becoming non-resident needs to submit the documentary evidences to prove his intentions to leave India for the purpose of employment, business or vocation or an uncertain period. Additionally, NRO account can be opened by a non-resident for any bonafide transactions. For further details, refer to the table below.
  • This account allows you to receive remittances in any permitted currency from outside India through banking channels or permitted currency tendered by the account holder during his temporary visit to India or transfers from rupee accounts of non-resident banks;
  • Repatriation from the NRO account can be done to the extent of USD 1 million for every financial year;
  • Income earned in India in the form of interest, dividend, rent, etc. can be deposited into this account;
  • This account is also subject to exchange rate fluctuations since the foreign currency deposited into this account are converted into INR using the current exchange rate of the receiving bank;
  • Interest income earned from the NRO account is not tax-free.

2 A ‘Non-resident Indian’ (NRI) is a person resident outside India who is a citizen of India.
3 ‘Person of Indian Origin (PIO)’ is a person resident outside India who is a citizen of any country other than Bangladesh or Pakistan, or such other country as may be specified by the Central Government, satisfying the following conditions: [PIO will include an OCI cardholder]
a) Who was a citizen of India by virtue of the Constitution of India or the Citizenship Act, 1955 (57 of 1955); or
b) Who belonged to a territory that became part of India after the 15th day of August, 1947; or
c) Who is a child or a grandchild or a great grandchild of a citizen of India or of a person referred to in clause (a) or (b); or
d) Who is a spouse of foreign origin of a citizen of India or spouse of foreign origin of a person referred to in clause (a) or (b) or (c)

ACCOUNT OPENED BY FOREIGN TOURISTS VISITING INDIA

In case of a current / savings account opened by a foreign tourist visiting India with funds remitted from outside India in a specified manner or by sale of foreign exchange brought by him into India, the balance in the NRO account may be paid to the account holder at the time of his departure from India provided the account has been maintained for a period not exceeding six months and the account has not been credited with any local funds, other than interest accrued thereon.

FCNR ACCOUNT

  • This is a term deposit account and not a savings account;
  • Monies can be deposited in any currency permitted by RBI i.e., a foreign currency which is freely convertible;
  • The deposits can range from a period of one to five years;
  • The principal amount and interest earned from the deposits are fully repatriable;
  • This account is not subject to exchange rate fluctuations since deposits and withdrawals are in foreign currency.
  • Income earned from FCNR account is tax-free.

A tabulated comparison of the three accounts is provided below for your reference:

Particulars NRE Account FCNR (B) Account NRO Account
NRIs and PIOs (Individuals / entities of Pakistan and Bangladesh require prior RBI approval) Any person resident outside India for putting through bonafide transactions in rupees.

Individuals / entities of Pakistan nationality / origin and entities of Bangladesh origin require prior RBI approval.

A Citizen of Bangladesh / Pakistan belonging to minority communities in those countries i.e., Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians residing in India and who has been granted LTV* or whose application for LTV is under consideration, can open only one NRO account with an AD bank.

* Long Term Visa

Type of Account Savings, Current, Recurring, Fixed Deposit Term Deposit only Savings, Current, Recurring, Fixed Deposit
  From one to three years. However, banks are allowed to accept NRE deposits for a longer period i.e., above three years from their Asset-Liability point of view. For terms not less than 1 year and not more than 5 years. As applicable to resident accounts.
Permissible Credits i. Inward remittance from outside India.

ii. Proceeds of foreign currency/ bank notes tendered by account holder during his temporary visit to India.

iii. Interest accruing on the account

iv. Transfer from other NRE / FCNR(B) accounts.

v. Maturity or sale proceeds of investments (if such investments were made from this account or through inward remittance).

vi. Current income in India like rent, dividend, pension, interest, etc. is permissible subject to payment of taxes in India.

i. Inward remittances from outside India.

ii. Legitimate dues in India.

iii. Transfers from other NRO accounts.

iv. Rupee gift / loan made by a resident to an NRI / PIO relative within the limits prescribed under LRS may be credited to the latter’s NRO account.

As a benchmark, credits to NRE / FCNR(B) account should be repatriable in nature.
Permissible Debits

 

i. Local disbursements.

ii. Remittance outside India.

iii. Transfer to NRE / FCNR (B) accounts of the account holder or any other person eligible to maintain such account.

iv. Permissible investments in India in shares / securities / commercial paper of an Indian company or for purchase of immovable property.

i. Local payments in rupees.

ii. Transfers to other NRO accounts.

iii. Remittance of current income abroad.

iv. Settlement of charges on International Credit Cards.

v. Repatriation under USD 1 million scheme is available only to NRIs and PIOs.

vi. Funds can be transferred to NRE account within this USD 1 million facility.

Permitted Joint Holding May be held jointly in the names of two or more NRIs / PIOs.

NRIs / PIOs can hold jointly with a resident relative on ‘former or survivor’ basis. The resident relative can operate the account as a PoA holder during the lifetime of the NRI / PIO account holder.

May be held jointly in the names of two or more NRIs / PIOs.

May be held jointly with residents on ‘former or survivor’ basis.

Loans in India AD can sanction loans in India to the account holder / third parties without any limit, subject to the usual margin requirements.

The loan amount cannot be used for re-lending, carrying on agricultural / plantation activities or investment in real estate.

In case of loan to account holder the loan can be used for personal purposes or for carrying on business activities or for making direct investments in India on non-repatriation or for acquiring a flat / house in India for his own residential use.

In case of loan to third parties, loans can be given to resident individuals / firms / companies in India against the collateral

of fixed deposits held in NRE account.

The loan should be utilised for personal purposes or for carrying out business activities. Also, there should be no direct or indirect foreign exchange consideration for the non-resident depositor agreeing to pledge his deposits to enable the resident individual / firm / company to obtain such facilities.

These loans cannot be repatriated outside India and can be used in India only for the purposes specified in the regulations.

The facility for premature withdrawal of deposits will not be available where loans against such deposits are availed of.

Loans against the deposits can be granted in India to the account holder or third party subject to usual norms and margin requirement.

The loan amount cannot be used for relending, carrying on agricultural / plantation activities or investment in real estate.

The term “loan” shall include all types of fund based / non-fund-based facilities.

  Loans outsid AD may allow their branches / correspondents outside India to grant loans to or in favour of non-resident depositor or to third parties at the request of depositor for bona fide purpose against the security of funds held in the NRE / FCNR (B) accounts in India.

The term “loan” shall include all types of fund-based/ non-fund-based facilities.

 

Not permitted

 

Rate of Interest There is no restriction on the rate of interest. It varies across banks and is generally based on the repo rate of RBI.
Operations by Power of Attorney in favour of a resident Operations in the account in terms of PoA is restricted to withdrawals for permissible local payments or remittances to the account holder himself through normal banking channels.

The PoA holder cannot repatriate outside India funds held in the account under any circumstances other than to the account holder himself, nor to make payment by way of gift to a resident on behalf of the account holder nor to transfer funds from the account to another NRE or FCNR(B) account.

Operations in the account in terms of PoA is restricted to withdrawals for permissible local payments in rupees, remittance of current income to the account holder outside India or remittance to the account holder himself through normal banking channels. While making remittances, the limits and conditions of repatriability will apply.

The PoA holder cannot repatriate outside India funds held in the account under any circumstances other than to the account holder himself, nor to make payment by way of gift to a resident on behalf of the account holder nor to transfer funds from the account to another NRO account.

IMPACT OF CHANGE IN RESIDENTIAL STATUS

  • All non-resident accounts i.e., NRE / NRO (wherein, you are the primary account holder) need to be converted / re-designated as resident accounts immediately upon the return of the account holder to India for taking up employment or return of the account holder to India for any purpose indicating his intention to stay in India for an uncertain period or upon change in the residential status. The account holder should provide appropriate documentation to the bank for conversion of NRE / NRO account into resident account.
  • FCNR (B) deposits may be allowed to continue till maturity at the contracted rate of interest, if so desired by the account holder. Authorised Dealers should convert the FCNR(B) deposits on maturity into resident rupee deposit accounts or RFC accounts (if the depositor is eligible to open RFC account), at the option of the account holder.

With respect to the above, it would be relevant to refer to the compounding order C.A. No. 4578 /2017 dated 30th January, 2018 in the matter of Mr. Gaurav Bamania for compounding of contravention of the provisions of the Foreign Exchange Management Act, 1999 (the FEMA) and the Regulations issued thereunder. The compounding was on account of violation on two grounds viz; payment of consideration towards investment in an Indian company by an NRI through a resident account and the applicant had not re-designated his existing account as a NRO account on becoming NRI. As per the RBI, there was a contravention of the provisions of Para 8(a) of Schedule 3 of FEMA 5 and Para 3 of Schedule 4 of FEMA 20, and applicant was required to apply for regularis ation of the contraventions subject to compounding. The RBI has quoted Para 8(a) of Schedule 3 of FEMA 5 in the compounding order which states as under:

“When a person resident in India leaves India for a country (other than Nepal or Bhutan) for taking up employment, or for carrying on business or vocation outside India or for any other purpose indicating his intention to stay outside India for an uncertain period, his existing account should be designated as a Non-Resident (Ordinary) account.”

The matter was compounded in terms of the Foreign Exchange (Compounding Proceedings) Rules, 2000 and a sum of ₹26,530/- was levied as compounding fees by RBI as the amount of contravention involved was ₹56,850/-.

Further, it would also be useful to note the compounding order C.A. No. 85 /2019 dated 18th March, 2019 in the matter of Mr. Thakorbhai Dahyabhai Patel wherein the contravention sought to be compounded related to transfer of funds from NRE account to ordinary savings account thereby resulting in contravention of the provisions under Regulation 4(C) of Schedule 1 to Notification No. FEMA.5/2000-RB dated May 3, 2000, as amended from time to time. While the contravention was with respect to transfer of funds from NRE account to ordinary savings account, the same could have been mitigated if the applicant had converted / re-designated his ordinary savings account into NRE / NRO account after becoming a non-resident since the applicant, being a non-resident, is not eligible to open or maintain an ordinary savings account as per extant FEMA guidelines.

It would also be pertinent to note that the decision of the Hon’ble High Court of Delhi in the case of Basant Kumar Sharma vs. Government of India [2013] 33 taxmann.com 282 (Delhi), which has been rendered in the context of Section 2(p)(ii)(c) of the Foreign Exchange Regulations Act, 1973 (‘FERA’). In this case, the petitioner was an NRI who had returned to India for exploratory purposes and the petitioner had approached State Bank of India (‘SBI’) to convert his subsisting NRE account into NRO account and also to obtain necessary approval from RBI for sale of his investments. The SBI informed him that after becoming a resident, he was not allowed to keep a NRE account and his NRE account would have to be re-designated as a ‘Resident Account’ under Section 2(p)(ii)(c) read with Regulation A.15 of the Foreign Exchange Manual. The Petitioner did not agree with the stand adopted by SBI that he was a ‘Resident’ since he had come to India for exploring possibilities of resettlement but had also kept the doors open for overseas relocation in case, he would find a job outside India. The Petitioner wrote to various authorities, which included RBI, and requested their intercession in this matter and after a series of communications with various authorities, the Petitioner filed a writ petition with the Hon’ble Delhi High Court. The Hon’ble Delhi High Court affirmed the view adopted by SBI that the Petitioner had attained the status of a Resident in India within the meaning of Section 2(p)(ii)(c) of the FERA since his stay in India was for an uncertain period and thus his NRE account was required to be re-designated as a Resident Account due to change in residential status.

The provisions of residential status under FEMA and key differences vis a vis the Income-tax Act, 1961 (ITA) is covered in detail in earlier issue of this series titled Residential Status of Individuals — Interplay With Tax Treaty published in January 2024.

A person can be Resident or Non-Resident under both ITA and FEMA or a person can be Resident under one Act and Non-Resident under the other Act. In such a scenario, it would be pertinent to analyse the impact of taxability of an individual under the ITA where his / her residential status is different under ITA and FEMA.

The interplay of residential status under ITA and FEMA comes into light at the time of claiming income tax exemption under Section 10(4)(ii) of the ITA for a person earning interest from his NRE account in India. As per Section 10(4)(ii) of the ITA, interest received on NRE account is exempt from tax in India, if the account holder is a Person Resident Outside India as defined under Section 2(w) of the FEMA or is a person who has been permitted by the Reserve Bank of India to maintain such account. Thus, the residential status under the ITA is not required to be looked into for claiming such exemption.

Say, an individual having NRE account in India when he was a Person Resident Outside India as per FEMA and a Non-Resident as per the ITA comes to India for good during December 2023. It would be important to dwell into the change in residential status under each Act to determine eligibility for exemption u/s 10(4)(ii) of the ITA with respect to interest received from NRE account. The individual becomes a person resident in India as per FEMA from December 2023 onwards, however, he would be regarded as a Non-Resident under the ITA during Financial Year 2023-24 (assuming his stay in India was below the threshold as required under ITA). In order to claim exemption from tax u/s 10(4)(ii) of the ITA, a person has to be resident outside India under FEMA. Thus, even though the individual is a Non-Resident under the ITA, he would be entitled to claim exemption under Section 10(4)(ii) of the ITA only up to December 2023 (i.e till he was a Person Resident Outside India as per FEMA), as he would become resident of India under FEMA from the date of his return for good. Further, such individual shall be required to redesignate his NRE account to resident account on account of change in his residential status under FEMA.

On the contrary, interest earned on FCNR account by a Non-Resident or Resident but Not Ordinarily Resident (‘RNOR’) under the ITA is exempt from tax under Section 10(15)(iv)(fa) of the ITA. Thus, the exemption from tax in this case is determined by a person’s residential status under the ITA and not under FEMA. If a Non-Resident holding FCNR account in India returns to India on a permanent basis in a particular financial year, he would become a Person Resident in India under FEMA immediately upon his return, but may continue to be a Non-Resident or RNOR under ITA for that particular year. Accordingly, such person can continue to claim exemption of tax for interest earned from FCNR account since the residential status under FEMA shall not impact his eligibility to claim exemption. The exemption can continue to be claimed till the residential status is RNOR and the deposit has not matured.

With respect to the above, we would like to draw your attention to the decision of the Hon’ble Chennai Tribunal in case of Baba Shankar Rajesh vs. ACIT 180 ITD 160 (Chennai ITAT) [2019] wherein Assessee was denied exemption under Section 10(4)(ii) of the ITA by the Hon’ble Tribunal on the ground that the Assessee was a ‘Person Resident in India’ under Section 2(v) of the FEMA as he was a Non-Resident who had come to India for taking up employment in India.

Another important decision was rendered by the Hon’ble Supreme Court of India in the case of K. Ramullan vs. CIT 245 ITR 417 (SC) [2000] in the context of Section 2(p) & (q) of the Foreign Exchange Regulation Act, 1973 (‘FERA’) which was in favour of the Assessee. The Assessee was earlier denied exemption under Section 10(4A) of the ITA by the High Court with respect to interest earned from NRE account and the Supreme Court set aside the order of the Hon’ble High Court holding that under erstwhile clause (c) casual stay with spouse should not be included and hence unless the stay was for uncertain period or with some permanence the Assessee was a ‘Person Resident Outside India’ under Section 2(q) of the FERA and was thus entitled to claim exemption under Section 10(4A) [erstwhile section] of the ITA.

Of course, determination of residential status under FEMA depends upon facts and circumstances of each case.

Furthermore, the following two types of accounts are also permitted to be opened by persons resident outside India for specific purposes as explained:

i) Special Non-Resident Rupee Account (SNRR Account)

Any PROI having a business interest in India may open, hold and maintain with an Authorised Dealer (AD Banks) in India, a SNRR account for the purpose of putting through bona fide transactions in rupees. SNRR accounts shall not earn any interest.

For the purpose of SNRR account, business interest, apart from generic business interest, shall include INR transactions relating to investments permitted under FEM (NDI Rules), 2019 and FEM (DI Regulations) 2019, import and export of goods and services, trade credit and ECB and business-related transactions outside International Financial Service Centre (IFSC) by IFSC units.

AD bank may maintain a separate SNRR account for each category of transactions or a single SNRR Account as per their discretion.

The tenure of the SNRR account should be concurrent to the tenure of the contract / period of operation / the business of the account holder and in no case should exceed seven years in case of generic business transactions.

SNRR account is often used by foreign entities to obtain income tax refunds on account of earning passive income from India or foreign entities undertaking turnkey projects in India. Earlier foreign entities were required to establish project offices (as regulated by RBI) in India to execute turnkey projects awarded to joint ventures between Indian entity and foreign entity also known as unincorporated joint venture. Now, with the introduction of the SNRR account, foreign companies can execute projects without establishing a project office in India.

ii) Escrow Account

Resident or non-resident acquirers may open, hold and maintain Escrow Account with ADs in India as permitted under Notification No. FEMA 5(R)/2016-RB. The account can be opened for acquisition/transfer of capital instruments / convertible notes in accordance with Foreign Exchange Management (Non-Debt Instrument) Rules, 2019.

The accounts shall be non-interest bearing. No fund / non-fund-based facility would be permitted against the balances in the account.

PPF AND SSY ACCOUNT FOR NRIS

The Ministry of Finance has issued updated guidelines for Public Provident Fund (PPF), Sukanya Samriddhi Yojana (SSY), and other small savings schemes, effective from 1st October, 2024. One of the key changes under the new guidelines in relation to PPF accounts of NRIs are as under:

  • For NRIs, PPF accounts which were opened under the Public Provident Fund Account Scheme, 1968 where Form H did not require the residency details of the account holder and the account holder became an NRI during the account’s tenure, the Post Office Savings Account (‘POSA’) interest rate shall be granted to the account holder until 30th September, 2024. However, after this date, the interest on these accounts will drop to 0 per cent.

Further, it is pertinent to note that an NRI cannot open a new PPF account. If an account was opened by an individual while he / she was a resident who subsequently became an NRI, the account can continue until maturity. This rule has been there from quite some time, however, there have been cases where NRIs have even continued holding PPF accounts for another 5 years after completion of 15 years. In such cases, banks have denied interest in such accounts.

PPF interest is tax-free in India under Section 10(11) of the ITA for both residents and non-residents. However, the said PPF interest might be taxed in the residence country of the NRIs if it taxes its citizens / residents on their worldwide income.

Further, NRIs are not eligible to open and operate a Sukanya Samriddhi Yojana Account under the erstwhile Guidelines. There has been no change in this respect under the updated guidelines as well.

REMITTANCE FACILITIES UNDER FEMA

We have further discussed below the options available for persons resident outside in India to remit funds outside India under the Foreign Exchange Management (Remittance of Assets) Regulations, 2016 [Notification No. FEMA 13(R)/2016-RB dated 1st April, 2016]. As explained, current income in NRE and FCNR(B) account is freely repatriable outside India. For other balances and accounts pertaining to capital account transactions which are not repatriable in nature, the RBI has provided the following options:

i) Remittances by NRIs / PIOs:

Popularly known as USD 1 Million scheme / facility which covers only capital account transactions. ADs may allow NRIs / PIOs to remit up to USD one million per financial year:

  • out of balances in their NRO accounts / sale proceeds of assets / assets acquired in India by way of inheritance / legacy;
  • in respect of assets acquired under a deed of settlement made by either of his / her parents or a relative as defined in the Companies Act, 2013. The settlement should take effect on the death of the settler;
  • in case settlement is done without retaining any life interest in the property i.e., during the lifetime of the owner / parent, it would be as remittance of balance in the NRO account;

The NRI or PIO should make such remittances out of balances held in the account arising from his / her legitimate receivables in India and not by borrowing from any other person or a transfer from any other NRO account.

Further, gift by a resident individual to an NRI / PIO after turning non-resident in a particular year may not be permitted under the Liberalised Remittance Scheme (‘LRS’) since such remittances under LRS are only permissible for resident individuals. However, such remittance can be made under the 1 million Dollar scheme by the residential individual after turning non-resident.

The prescribed limit of USD 1 million is not allowed to be exceeded. In case a higher amount is required to be remitted, approval shall be required from RBI. In our experience such approvals are given in very few / rare cases based on facts.

ii) Remittances by individuals not being NRIs/ PIOs:

ADs may allow remittance of assets by a foreign national where:

  • the person has retired from employment in India (upto USD 1 million per financial year);
  • the person has inherited from a person referred to in section 6(5) of the Act4 (up to USD 1 million per financial year);
  • the person is a non-resident widow / widower and has inherited assets from her / his deceased spouse, who was an Indian national resident in India (up to USD 1 million per financial year);
  • the remittance is in respect of balances held in a bank account by a foreign student who has completed his / her studies (balance represents proceeds of remittances received from abroad through normal banking channels or out of stipend / scholarship received from the Government or any organisation in India).
  • Salary income earned in India by individuals who do not permanently reside in India5.

However, these facilities are not available for citizens of Nepal or Bhutan or a PIO.

iii) Repatriation of sale proceeds of immovable property:

A PIO/ NRI / OCI, in the event of sale of immovable property other than agricultural land / farmhouse / plantation property in India, may be allowed repatriation of the sale proceeds outside India provided:

  • the immovable property was acquired by the seller in accordance with the provisions of the foreign exchange law in force at the time of acquisition;
  • the amount for acquisition of the immovable property was paid in foreign exchange received through banking channels or out of funds held in FCNR(B) account or NRE account.

4 “person resident in India” means 
(i) a person residing in India for more than one hundred and eighty-two days during the course of the preceding financial year but does not include— 
(A) a person who has gone out of India or who stays outside India, in either case— 
   (a) for or on taking up employment outside India, or 
   (b) for carrying on outside India a business or vocation outside India, or (c) for any other purpose, in such circumstances as would indicate his intention to stay outside India for an uncertain period; 
(B) a person who has come to or stays in India, in either case, otherwise than— 
   (a) for or on taking up employment in India, or 
   (b) for carrying on in India a business or vocation in India, or (c) for any other purpose, in such circumstances as would indicate his intention to stay in India for an uncertain period; 
(ii) any person or body corporate registered or incorporated in India, 
(iii) an office, branch or agency in India owned or controlled by a person resident outside India, 
(iv) an office, branch or agency outside India owned or controlled by a person resident in India;
5 “ As per Explanation to Regulation 5 of the Remittance of Asset Regulations, 2016, ‘not permanently resident’ means a person resident in India for employment of a specified duration (irrespective of length thereof) or for a specific job or assignment, the duration of which does not exceed three years.

In the case of residential property, the repatriation of sale proceeds is restricted to a maximum of two such properties in the lifetime of the NRI / PIO. The non-resident seller shall be liable to TDS @ 20 per cent under Section 195 of the ITA on the sale consideration of the property. In such cases, non-resident sellers may apply for a Lower Deduction or Nil Deduction Certificate from the tax authorities under Section 197 of the ITA in order to minimise their tax liability and retain a higher portion of the sale proceeds. If the non-resident seller does not obtain a lower / nil deduction certificate, he / she can claim a refund by filing a return of income, in case the actual tax liability works out to be lower than the tax withheld by the buyer.

Further, the seller repatriating sale proceeds outside India may be required to obtain Form 15CB from the Chartered Account for repatriation of sale proceeds outside India.

Foreign Remittance by NRIs / OCIs — Compliances under ITA

The relevant provisions governing taxability of foreign remittances and the compliance requirements with respect to the same are provided under Section 195 of the ITA and Rule 37BB of the Income-tax Rules, 1962.

Section 195 of the ITA states that any person responsible for paying to a resident, not being a company or foreign company, any interest (excluding certain kinds of specified interest) or any other sum chargeable under the provisions of the ITA (not being the income under salaries) shall at the time of credit of such income to the payee in any specified mode, deduct income-tax thereon at the rates in force. The provisions of Section 195 of the ITA are applicable only if the payment to non-residents is chargeable to tax in India.

Further, Section 195(6) of the ITA requires reporting of any payment to a non-resident in Form 15CA / 15CB irrespective of whether such payments are chargeable to tax in India. Rule 37BB defines the manner to furnish information in Form 15CB and making declaration in Form 15CA. In terms of Rule 37BB, the information for payment to a non-resident is required to be provided in Form 15CA in four parts as under:

  • Part A – For payment or aggregate of payments during the FY not exceeding ₹5,00,000.
  • Part B – When a certificate from Assessing Officer is obtained u/s 197, or an order from an Assessing Officer is obtained u/s 195(2) or 195(3) of the ITA.
  • Part C – For other payments chargeable under the provisions of the ITA – To be filed after obtaining a certificate in Form 15CB from a practicing Chartered Accountant.
  • Part D – For payment of any sum which is not chargeable under the provisions of the ITA.

Form 15CA is a declaration by the remitter that contains all the information in respect of payments made to non-residents and Form 15CB is a Tax Determination Certificate in which the Chartered Accountant (‘CA’) examines a remittance with regard to chargeability provisions. These forms can be submitted both online and offline (bulk mode) through the e-filing portal. A CA who is registered on the e-filing portal and one who has been assigned Form 15CA, Part-C by the person responsible for making the payment is entitled to certify details in Form 15CB. The CA should also possess a Digital Signature Certificate (DSC) registered with the e-filing portal for e-verification of the submitted form.

Form 15CB has six sections to be filled before submitting the form which are as under:

  1. Certificate
  2. Remittee (Recipient) Details
  3. Remittance (Fund Transfer) Details
  4. Taxability under the Income-tax Act (without DTAA)
  5. Taxability under the Income-tax act (with DTAA relief)
  6. Accountant Details (CA’s details)

The foreign remittances by NRI / OCI would generally comprise of payments to NRIs / foreign companies / OCIs / PIOs towards royalty, consultancy fees, business payments, etc., where the payment contains an income element or transfer from one’s NRO bank account to NRE / foreign bank account i.e., transfer to own account. Sub-rule (3) of Rule 37BB of the Income-tax Rules, 1962 provides a specific exclusion for certain remittances under Current Account Transaction Rules, 2000 or remittances falling under the Specified List provided thereunder6.


6. https://incometaxindia.gov.in/pages/rules/income-tax-rules-1962.aspx

The transfer from NRO to NRE / foreign bank account may fall within one of the purposes under the category of remittances which may not contain an income element and thus would not be chargeable to tax in India. Thus, there should not be any requirement of obtaining Form 15CB and reporting would only be required in Part D of Form 15CA. However, certain Authorised Dealer banks insist on furnishing Form 15CA along with Form 15CB for source of funds from which remittance is sought to be made in order to process the remittance. In such case, reporting would be required in Part C of Form 15 CA and the CA would be required to report the taxability of such remittance under Section 4 (which deals with taxability under ITA without DTAA) or Part D, Point No. 11 under Section 5 (which deals with taxability under the ITA with DTAA relief).

It may be noted that furnishing of inaccurate information or non-furnishing of Form 15CA can trigger penalty of sum of Rupees 1 lakh under section 271-I of the ITA. Thus, in order to avoid any future litigation and to be compliant from an income-tax perspective, it would be advisable to comply with the reporting obligation under Part C of Form 15CA and obtain Form 15CB from a CA at the time of making remittance from NRO account to NRE / foreign bank account.

When dealing with certification on taxability of funds from which remittance is sourced, a CA may need to bifurcate into separate certificates and also travel back several years. A CA must analyse the following aspects before issuing certificate for remittances from one’s own NRO bank account to NRE account:

  • Find out the source of funds lying in the NRO account by tracing them back to the incomes comprised therein which may trace back to several years;
  • Income-tax returns filed by the NRI in India for the period concerned;
  • Relevant year’s Form 26AS and TDS certificates;
  • Documents and issues pertaining to each type of income.

Third parties transferring money to NRE / NRO accounts of NRIs (for e.g., payment of rent or a sale consideration of an immovable property), may ask for certain documents from NRI before making transfers, such as a certificate under section 197 of the ITA from the Assessing Office (AO) of NRI, undertaking/ bond from NRI, certificate from the CA in case of certain controversial issues. Further, such third-party payers shall be required to obtain Form 15CA / Form 15CB at the time of remittance to the NRI. NRIs should pre-empt such documentation requirements of tax authorities at the time of receiving remittances from third parties in their NRI / NRO account and thus obtain such documents in advance and keep them on their records, in case required to be furnished before tax authorities at the time of remittances / transfers by NRI’s between their own accounts i.e., NRO to NRE.

Such documentation may also be helpful to CA issuing Form 15CA / CB to the NRI in future for remittance between own accounts.

It is not possible nor intended to cover all aspects of the important topic of Bank Accounts in India by non residents and Repatriation of Funds. In view of the dynamic nature of FEMA and other laws, readers are well advised to get an updated information at the time of advising their clients and / or undertaking transactions relating to bank accounts or repatriation of funds outside India.

Cross-Charge vs. Input Service Distributor (ISD)

INTRODUCTION

Notification 16/2024-CT has notified 1st April, 2025 as the date from which the proposed amendments to the provisions relating to ‘input service distributor’ will come into effect. In view of the far-reaching implications of the said amendment, this article decodes the provisions relating to ‘input service distributor’, and the interplay the said concept has with the concept of ‘cross charge’ as propounded in view of the provisions of entry 2 of Schedule I of the CGST Act, 2017.

BACKGROUND OF EARLIER LAWS

Prior to the imposition of GST, a central excise duty was imposed on the manufacture of excisable goods. The central excise law required separate registration for each of the premises from where the manufacturing activity was carried out. While the CENVAT Credit Rules as amended from time to time provided for claim of credit of inputs and capital goods used in the manufacture of final products, there was substantial emphasis laid on receipt of the goods in the registered premises and documentary evidence in the form of tax compliant invoices reflecting the said address of the registered premises.

In the said backdrop, when the said Rules were expanded to also permit the credit of input services used in the manufacture of the final products, a need was felt for implementing the existing procedural framework in a realistic manner. In the case of services, it was very common for the said services to be centrally procured at the corporate office. To enable a free flow of credit to the manufacturing locations, the concept of ‘input service distributor’ was introduced under the erstwhile CENVAT Credit Rules, 2004. The said concept permitted an office of the manufacturer to receive invoices towards the receipt of services (either by the said office or by the respective manufacturing units) and distribute the credit embedded in such invoices to the respective manufacturing units. Based on the said concept and registration, the corporate office of a manufacturer could pay for a customs house agent from the office receive an invoice in this regard, and distribute the credit to the concerned manufacturing unit. Similarly, it could pay for corporate services like statutory audits and distribute the credit proportionately to all manufacturing units (since the definition of input service was wide enough to cover services directly or indirectly used in the manufacture of the final product and included various activities related to business and the law also did not require the receipt of input services at the registered premises, such statutory audit services were eligible for credit at the manufacturing locations). The concept of input service distributor was therefore a blessing under the said regime permitting a free flow of credits from the corporate office to the duty-discharging manufacturing locations.

It may be noted that the definition of ‘input service distributor’ under the CENVAT Credit Rules, 2004 laid emphasis on the office receiving an invoice and laid no emphasis on whether the services were received by the office or the manufacturing location and whether the invoice or the services were received by the office on its’ own account or ‘for or on behalf of’ the manufacturing location. This is evident on a plain reading of the definition of input service distributor as provided under 2(m) of the erstwhile CENVAT Credit Rules, 2004, which is reproduced below for ready reference.

“input service distributor” means an office of the manufacturer or producer of final products or provider of output service, which receives invoices issued under rule 4A of the Service Tax Rules, 1994 towards purchases of input services and issues invoice, bill or, as the case may be, challan for the purposes of distributing the credit of service tax paid on the said services to such manufacturer or producer or provider, [or an outsourced manufacturing unit] as the case may be

— Emphasis supplied

The concept of ‘input service distributor’ under the CENVAT Credit Rules, 2004 applied to service providers as well. However, in view of the facility for centralized registration available under the service tax law, the said concept had limited applicability except in the case of taxpayers who had obtained decentralized registrations.

WELCOME GST

GST was introduced as a comprehensive indirect tax modeled on the principle of destination-based consumption tax. However, in view of the federal structure and the Constitutional mandate, the law required distinct registration in each of the States from which the taxpayer supplied taxable goods or services. This need for distinct state-level registration triggered a fundamental challenge of imbalance in input tax credits and output taxes in cases where the inward procurements are effected in one State and the outward supplies are effected from another State. Perhaps to address the said situation, Entry 2 was inserted in Schedule I to deem the supply of goods or services or both between distinct persons as liable for payment of GST even if the said supplies are made without consideration. Accordingly, an office warehouse, or factory in the State procuring the inward supplies could raise a tax invoice on a branch warehouse, or factory located in another State for effecting the deemed outward supplies to the said branch warehouse, or factory (even though there is no monetary consideration and the supply is between two units of the same legal entity). Such discharge of output tax by the first state would be eligible as input tax credit to the other state resulting in no revenue loss to the taxpayer but at the same time permitting free flow of credits from the input procuring locations to the output supplying locations. In trade parlance, such raising of internal tax invoice is referred to as ‘branch transfer’ in case of deemed supply of goods and ‘cross charge’ in case of deemed supply of services.

Despite having introduced the above deeming fiction to address the issue of imbalance in input tax credits and output taxes, the Legislature, in its wisdom deemed it fit to continue with the provisions of ‘input service distributor’ existing in the erstwhile CENVAT Credit Rules, 2004. The definition was amended mutatis mutandis, permitting the input service distributor to receive a tax invoice and issue an ISD Invoice for distribution of the said credit without any specific emphasis on whether the services were received by the said office or the other unit and whether the invoice or the services were received by the said office on its’ own account or ‘for or on behalf of’ the other unit. The relevant definition of ‘input service distributor’ under section 2(61) at the time of the introduction of GST is reproduced below for ready reference.

“input service distributor” means an office of the supplier of goods or services or both, which receives tax invoices issued under section 31 towards the receipt of input services and issues a prescribed document for the purposes of distributing the credit of central tax, state tax, integrated tax or Union territory tax paid on the said services to a supplier of taxable goods or services or both having the same PAN as that of the said office.

— Emphasis supplied for suitable comparison with the erstwhile definition under CCR, 2004

On a comparison of the above definition with the erstwhile definition under CCR, 2004, it is evident that both definitions are pari materia with no substantial change in the scope of the said provisions.

CONTROVERSIES GALORE!

The co-existence of Schedule I, Entry 2 (‘cross charge provision’), and Section 20 (‘input service distributor’) presented substantial confusion since apparently, both the provisions appeared to address a similar problem of ‘imbalance in input tax credit and output taxes’ in different ways. In view of the proviso to Rule 28(1) permitting flexibility in the valuation of the cross charge in case the recipient is eligible for full input tax credit and FAQ issued by the CBIC clarifying that registration as an input service distributor is optional, there was a view that a taxpayer may implement either of the two provisions to address the problem, whereas certain advance rulings canvassed a view that both the provisions operate in different set of situations and as such, both the provisions need independent implementation.

The matter was taken up by the GST Council in its’ 50th Meeting held in July 2023, wherein it was clarified that the provisions of ‘input service distributor’ are indeed optional. Further clarifications were also provided relaxing the rigors of the applicability of ‘cross charge’ provisions. At the same time, the GST Council suggested that the provisions of ‘input service distributor’ be made mandatory prospectively from a date to be notified in the future. Accordingly, suitable changes have been proposed in the CGST Act, 2017 and the CGST Rules, 2017, and the said changes are proposed to be made effective from 1st April, 2025.

KEY AMENDMENT

As stated above, there are amendments to various sections and rules. However, the fundamental amendment pertains to the definition of ‘input service distributor’ and the amended definition u/s 2(61) needs detailed scrutiny to understand the impact of the change being proposed in the correct perspective. The amended definition (as proposed to be effective from 1st April, 2025) is reproduced below for ready reference:

“Input Service Distributor” means an office of the supplier of goods or services or both that receives tax invoices towards the receipt of input services, including invoices in respect of services liable to tax under sub-section (3) or sub-section (4) of section 9, for or on behalf of distinct persons referred to in section 25, and liable to distribute the input tax credit in respect of such invoices in the manner provided in section 20

— Emphasis supplied for suitable comparison with the erstwhile definition under CCR, 2004, and the pre-amended definition under section 2(61) of the CGST Act, 2017

On a perusal of the above-amended definition, it is evident that there are two substantial amendments being carried out as compared to the erstwhile definition under CCR, 2004 and the pre-amended definition under section 2(61) of the CGST Act, 2017:

1. The phrase ‘for or on behalf of distinct persons’ is being introduced for the first time in the definition of ‘input service distributor’

2. The ‘input service distributor’ is made ‘liable’ to distribute the input tax credit, thus making the provisions of the input service distributor mandatory.

The judicial interpretation of the phrase ‘on behalf of’ is fairly settled. The said phrase connotes the existence of an agency relationship between the two parties (State of Mysore vs. Gangamma AIR 1965 Mysore 235). In the context of property, it was held that the holder of the property was only a representative of the real owner (Kripashankar vs. Commissioner of Wealth Tax AIR 1966 Patna 371). Even in the context of intermediary services under GST, the concept of agency vs. principal and the implications of the phrase ‘on behalf of’ has been exhaustively explained.

Extending the said interpretation of the phrase to the current context, it can be understood that the provisions of ‘input service distributor’ are triggered in a situation where an ISD office receives tax invoices towards the receipt of input services for or on behalf of distinct persons. As compared to the erstwhile definition under the CCR, 2004, and the pre-amended definition under the GST Law, clearly the introduction of this phrase reduces the scope of coverage under ISD post amendment. Effective from 1st April, 2025, it would therefore be important to distinguish between a situation where an input service is received by an office on behalf of a distinct person and an input service that is received by an office on its’ own account.

A few examples may illustrate the implications of this interpretation:

1. The head office in Maharashtra appoints and pays for security services procured at the factory located in Gujarat. Since the security services are received by the factory located in Gujarat, the tax invoice for the said service is received by the head office ‘for or on behalf of’ the factory in Gujarat, thus triggering the mandate of registration as an input service distribution and the consequent distribution of credit to Gujarat. Incidentally, a similar example was explained in a draft circular recommended by the Law Committee and placed before the GST Council in its’ 35th Meeting. However, the said Circular never saw the light of the day.

2. The head office in Maharashtra appoints and pays for goods transportation services procured at the factory located in Gujarat. It also pays the GST under reverse charge mechanism on such GTA services. Since the GTA services are received by the factory located in Gujarat, the tax invoice for the said service is received by the head office ‘for or on behalf of’ the factory in Gujarat, thus triggering the mandate of registration as an input service distribution and the consequent distribution of credit to Gujarat.

3. The head office in Maharashtra enters into a contract with an insurance company for insurance of assets located across the country. There are assets located in Maharashtra and also in the state of Gujarat. To the extent of assets located at the Gujarat factory, the insurance service of coverage of risk is received by the factory located in Gujarat, and the tax invoice for the said service is received by the head office ‘for or on behalf of’ the factory in Gujarat, thus triggering the mandate of registration as an input service distribution and the consequent distribution of credit to Gujarat.

While the above specific examples may look simplistic, where would one draw the line to say that the instance is that of service received ‘on behalf of’ a distinct person or a service received on ‘own account’. Let us understand this through a couple of more examples:

1. The head office in Maharashtra imports certain raw materials at the Mumbai port and transports the said goods to a warehouse in Bhiwandi. It appoints and pays for goods transportation services for the movement from Mumbai port to Bhiwandi. After some time, the said raw materials are further supplied to the factory located in Gujarat at a value prescribed under rule 28. It is obvious that in this scenario, the transportation and warehousing services are not received by the factory located in Gujarat, but are received by the head office on its’ own account. In fact, the cost of such transportation and warehousing services would become components of the cost calculation for arriving at a valuation under rule 28. Therefore, such services would not be a subject matter of input service distributor (but indirectly become a part of Schedule I, Entry 2 by way of the value of goods being ‘branch transferred’)

2. The head office in Maharashtra houses a centralized Human Relations Team. The said Team is responsible for addressing comprehensively all the HR requirements of the company including the employees at the factory located in Gujarat. If the HR Team places an advertisement in the newspaper inviting applications from prospective candidates, can it be said that the said advertisement service is received for and on behalf of the Gujarat factory? The draft circular referred to earlier suggests that through the HR Team, the head office internally generates a support service for the Gujarat factory, albeit through another circular, a relaxation in valuation has been provided to the extent of salary costs of the HR Team. If the Head Office is providing a support service to the Gujarat factory, is the advertisement service not received and consumed by the Head Office on its’ own account for further rendition of the ‘cross-charged support service’?

Based on the above examples, one may conclude that the provisions of input service distributors will get triggered only when the tax invoices for the services are received for or on behalf of distinct persons. Receipt would mean actual receipt of service and not an imaginary receipt in the form of perceived benefit. In cases where a service is received and consumed by the HO, the provisions of the input service distributor will not get triggered. It may also be possible that the service is received for self-consumption by the head office and the consumption of the said service may result in the generation of another supply of goods or service for the branch. The two examples mentioned above drive home this interpretation.

There may also be situations where the service may be self-consumed by the head office with no further supply of goods or services to the branch. For example, a research service procured by the head office may not immediately result in a further supply of support services to the branches. At the same time, in many cases, it cannot be said that the research is undertaken for or on behalf of the branches. At some future point in time, an indirect benefit of the service may be derived by the branch, but merely a derivation of some indirect benefit cannot result in the presumption that the head office procured the service on behalf of the branch.

NEXT STEPS TOWARDS IMPLEMENTATION

– Registration

With ISD becoming mandatory w.e.f. 01.04.2025, the first step towards preparing for ISD would be identifying the number of such offices that qualify as ISD. All offices that undertake centralized procurement of services / procurement of services consumed by more than one registration will have to apply for registration. Wherever possible, organizations will have to move towards decentralized procurement of services, if current procurement is centralized. Similarly, if more than one offices are engaged in centralized procurement, wherever possible, organizations should move towards a single procurement office. Once such offices are identified, the next step would be to apply for registration as an ISD.

– Vendor Communication

Though ISD is mandatory from 01.04.2025, taxpayers will have to apply beforehand for registration and communicate the ISD GSTIN to all the vendors/suppliers for existing as well as new contracts.

In case the vendor communication is not done, the vendors may continue to raise invoices under the regular GSTIN which may delay the taxpayer’s ITC claim. This is because the ITC may not be available for claim in regular GSTIN and the taxpayer will not be able to distribute the ITC under ISD in view of section 16 (2) (aa) of the CGST Act, 2017. It is therefore imperative that all the suppliers for services procured centrally are intimated to the ISD GSTIN in advance.

Vendor communication needs to be done, irrespective of whether the taxpayer is entitled to claim ITC or not. This is because the ultimate objective of making ISD mandatory is to ensure that the taxes flow to the states where the consumption takes place. Therefore, the taxpayer cannot exclude considering supplies not eligible for ITC from the purview of the ISD mechanism.

– Invoicing and Accounting

Taxpayers will also have to adapt their systems to separate accounts & identify the invoices received under ISD registration. More importantly, while accounting for such supplier invoices, care should be taken to ensure that the invoices are accounted / plotted against the ISD GSTIN and not the regular GSTIN to avoid any mismatches. If any invoice pertains to specific GSTINs, a mechanism to identify such transactions should be introduced to ensure that the ITC is distributed only to such GSTINs and not all GSTINs, as it would otherwise amount to erroneous distribution of ITC and may result in recovery proceedings at the recipient GSTIN end.

Similarly, systems will also have to be geared up to account for the ISD invoices issued to the regular GSTIN. This would be crucial in case ISD and regular GSTIN are of the same state. In such cases, the systems may not be geared up for accepting all three taxes, i.e., IGST, CGST & SGST against the same invoice/ document.

– Filing of GSTR6 based on GSTR6A

The ISD compliances lay between the accounting of the vendor invoices and the distribution of the ITC to the regular GSTIN. On the 12th of every month, based on the disclosure by the supplier, invoices will be communicated to the ISD in Form GSTR-6A.

A matching of transactions reflected in GSTR-6A (irrespective of whether ITC is eligible or not) with the corresponding invoices received by the ISD shall be undertaken and after adding, correcting, or deleting the auto-populated details, the ITC available for distribution shall be determined. The ITC so available for distribution shall then be distributed in the following manner:

a) If any ITC pertains only to a particular GSTIN, such ITC shall be distributed only to that GSTIN.

b) Similarly, any ITC that pertains to more than one GSTINs shall be distributed to such GSTINs in the ratio of turnover during the relevant period.

Separate ISD invoices are to be prepared for distribution of eligible & ineligible ITC.

– Compliances & recovery at the recipient’s end

The various compliances that apply to a claim of ITC, such as receipt of goods / services, payment of tax by the supplier, payment of consideration to the supplier, etc., in case of ISD shall apply to the receiving GSTIN. Therefore, the taxpayers will have to specifically keep track of payment to suppliers to ensure compliance u/r 37 & classification of the invoice for Rule 42 purposes and the said compliance will have to be done by the GSTIN receiving the ITC.

If the ISD receives any credit note for an invoice that has already been considered in the earlier period distribution, the ISD will have to ensure that the reduction in the distribution of the ITC on account of the credit note follows the same ratio applied for distribution of the ITC on the invoice.

Lastly, if any excess distribution by ISD is determined, the recovery shall be done at the recipient end and not at the ISD end. Therefore, an officer of the recipient GSTIN can very well demand to verify the compliances of ISD and may result in potentially multiple and in some cases, conflicting proceedings.

Disputes surrounding the applicability of ISD vs. cross-charge

The examples explained above suggest that the line of divide between ISD and cross charge is very thin. In the absence of authoritative objective guidelines in this regard, it is likely that there can be disputes on the applicability of the said provisions.

In case the taxpayer considers a particular transaction as a subject matter of ISD and the same is ultimately held to be not a subject matter of distribution but that of cross charge, there could be a risk of denial of input tax credit at the recipient’s end on account of excess distribution of credit by the input service distributor. Independently, there could be an action against the head office for undervaluation of cross charge (the action could survive only if the recipient is not eligible for full input tax credit)

In a reverse scenario where the taxpayer has considered a particular transaction as a subject matter of the cross charge, but the same is ultimately held to be a subject matter of input service distribution, the credit claimed by the head office can be denied on the grounds of non-receipt of input service (since the allegation would be that the service is received on behalf of the branches). Further, at the branch level, there could be a risk of denial of credit embedded in the cross-charge invoice by the head office to the branch again on the ground of the non-existence of a ‘cross-chargeable service’

Conclusion:

While both the concepts of ‘cross charge’ and ‘input service distributor’ attempt to address the same problem of non-alignment of input tax credits and output taxes, in terms of implementation, both of them differ significantly. With the concept of ‘input service distributor’ becoming mandatory, it will be important for taxpayers to implement the said concept with full precaution. It may also be appropriate for the Government to provide a detailed guideline on the extent of coverage of the provisions of input service distributors.

Assessment — Eligible assessee — Draft assessment order — Assessee filing its objections thereto before DRP but failing to communicate this to AO — AO unaware of pending application before DRP — Final assessment order passed during pendency of assessee’s objections to draft assessment order — Order set aside and AO directed to pass fresh order in accordance with directions of DRP.

44 Sulzer Pumps India Pvt. Ltd. vs. Dy. CIT

[2024] 465 ITR 619 (Bom)

A.Y.: 2017-18

Date of order: 27th October, 2021

Ss. 143(3), 144B, 144C(2), 144C(3), 144C(4), 156 and 270A of ITA 1961

Assessment — Eligible assessee — Draft assessment order — Assessee filing its objections thereto before DRP but failing to communicate this to AO — AO unaware of pending application before DRP — Final assessment order passed during pendency of assessee’s objections to draft assessment order — Order set aside and AO directed to pass fresh order in accordance with directions of DRP.

The assessee, under the belief that with the assessments being faceless and completely electronic, the application filed by it u/s. 144C(2) of the Income-tax Act, 1961 against the draft assessment order for the A. Y. 2017-18 before the Dispute Resolution Panel(DRP) would automatically be communicated to the Assessing Officer by the DRP, failed to directly communicate to the Assessing Officer. While the application was pending the Assessing Officer passed an order u/s. 143(3) read with sections 144C(3) and 144B of the Income-tax Act, 1961, issued a demand notice u/s. 156 and a penalty notice u/s. 270A.

The assessee filed a writ petition. The Bombay High Court allowed the writ petition and held as under:

“The Assessing Officer could not be faulted for passing the order in question. However, since the assessee had already filed application raising its objections before the Dispute Resolution Panel and section 144C(4) required the Assessing Officer to pass the final order according to the directions that would be issued by the Dispute Resolution Panel, the order passed u/s. 143(3) read with sections 144C(3) and 144B, the notice of demand u/s. 156 and the notice of penalty u/s. 270A were set aside. The Assessing Officer could pass a fresh order in accordance with the directions of the Dispute Resolution Panel in the pending application.”

Long-term capital loss arising from sale of quoted equity shares with STT paid was eligible to be set-off against long-term capital gain earned from sale of unquoted shares, in view of specific provisions of sections 2(14), 10(38), 45, 47 and 48.

50 Riya Gupta vs. DCIT

[2024] 113 ITR(T) 1 (Kol – Trib.)

ITA NO. 46 (KOL.) OF 2024

A.Y.: 2014-15

DATED: 6th June, 2024

Sec. 70

Long-term capital loss arising from sale of quoted equity shares with STT paid was eligible to be set-off against long-term capital gain earned from sale of unquoted shares, in view of specific provisions of sections 2(14), 10(38), 45, 47 and 48.

FACTS

The assessee filed return of income on 31st July, 2014 declaring total income of ₹18,31,980/. -During the assessment proceedings, the AO called for various information from the assessee which were supplied and replied by the assessee. The AO passed the order making various additions including the addition of ₹47,90,616/- resulting on non-allowance of set off of loss from sale of equity shares on recognised stock exchange with STT paid against the profit on sale of unquoted equity shares. The AO rejected the said action on the ground that the long-term capital gain on sale of quoted shares is exempt u/s 10(38) of the Act and similarly the loss incurred was also not liable to be set off against the other taxable income.

Aggrieved by the assessment order, the assessee filed an appeal before CIT(A). The CIT(A) dismissed the appeal of the assessee by upholding the order of the AO on this issue on the same reasoning. Aggrieved by the order, the assessee filed an appeal before the ITAT.

HELD

The undisputed facts were that during the year, the assessee had earned long term capital gain of ₹50,00,000/- from sale of unquoted shares of M/s IRC Infra and Reality Pvt. Ltd. and also incurred long term capital loss of ₹47,90,616/- from sale of quoted equity shares which was executed on the recognized stock exchange and STT was duly paid. The issue for adjudication was whether the long term capital loss suffered on sale of equity shares can be set off against the long term capital gain earned by the assessee on sale of unquoted equity shares or not.

The ITAT, after perusing provisions of section 2(14), 45, 47 and 48, observed that nowhere any exclusion or exception has been provided to the long-term capital gain resulting from sale of equity shares. The ITAT observed that it’s only the long term capital gain resulting from sale of shares / securities which was granted exemption u/s 10(38) subject to the fulfillment of certain conditions and not the entire source which was excluded from the aforesaid sections.
The ITAT relied on the following Judgments –

  • Hon’ble Kolkata High Court in the case of Royal Calcutta Turf Club vs. CIT [1983] 144 ITR 709/12 Taxman 133
  • United Investments vs. ACIT TS-379-ITAT- 2019 —Kolkata Tribunal
  • Raptakos Brett & Co. Ltd. vs. DCIT (69 SOT 383) —Kolkata Tribunal

In the result, the appeal of the assessee was allowed for the above-mentioned issue.

EDITORIAL COMMENT

The decision of Hon’ble Apex Court in the case of CIT vs. Harprasad& Co. (P.) Ltd.[1975] 99 ITR 118 is distinguished on the ground that the principle laid down by the Hon’ble Apex Court that income includes negative income can be applied only when the entire source of income falls within the charging provision of Act but where the source of income is otherwise chargeable to tax but only a specific kind of income derived from such source is granted exemption, then in such case, the proposition that the term income includes loss would not be applicable. In other words, where only one of the streams of income from a source is granted exemption by the legislature upon fulfillment of specified conditions then the concept of income includes loss would not be applicable.

Commissioner (Appeals) has to decide appeal on merits by passing a speaking order and does not have any power to dismiss appeal for non-prosecution.

49 Meda Raja KishorRaghuramy Reddy

[2024] 113ITR(T)258 (Panaji – Trib.)

ITA NO. 127 (PANJ.) OF 2022

A.Y.: 2014-14

DATE: 28th February, 2024

Commissioner (Appeals) has to decide appeal on merits by passing a speaking order and does not have any power to dismiss appeal for non-prosecution.

FACTS

The assessee had filed return of income electronically on 29th November, 2014 declaring total income of ₹37,60,840/-.The assessee’s case was selected for scrutiny proceedings. The assessee had failed to comply with the notices issued by the AO. The AO passed an ex-parte assessment order making the following additions:

  • ₹6,22,72,638/- under section 68 of the Act as unproved creditors
  • ₹39,62,472/- under section 69 of the Act
  • ₹5,78,850/- on account of difference in Form 26AS and return of income.

On appeal before CIT(A), the CIT(A) in a cryptic manner dismissed the appeal of the assessee.

Aggrieved by the Order, the assessee preferred an appeal before the ITAT.

HELD

DELAY IN FILING APPEAL

There was a delay of 1330 days in filing the appeal which included the period of Covid Pandemic.

Considering the principle of substantial justice, respectfully following the Hon’ble Supreme Court in the case of Gupta Emerald Mines (P.) Ltd. vs. Pr. CIT [2023] 156 taxmann.com 198 (SC) [25-09-2023] and Hon’ble Jurisdictional High Court in the case of Hindalco Industries Ltd vs. Pr. CIT Writ Petition No. 569 of 2023/ [2024] 158 taxmann.com 485, the ITAT condoned the delay in filling the appeal.

MERITS OF THE CASE

The ITAT observed that the assessee had filed written submission dated 14th August, 2017 containing following documents — Copy of confirmation of Accounts, Copy of Ledgers, Identity and Address proof of Creditors, cash books, bills, vouchers, bank statements, affidavits etc. The ITAT further observed that Form 35 which is form of appeal for filing appeal before CIT(A) was enclosed with application for admission of additional evidence under rule 46A.

The ITAT further observed the following fall outs in the assessment proceedings —

  • It was possible for AO to collect information directly from renowned companies — Jaypee cement Bangalore & JSW Steel [Sundry creditors of the assessee] u/s 133(6) or 131 of the Act.
  • Some of the creditors appeared in the balance sheet from earlier years – under section 68 the amount which was credited during the year only can be added.
  • Assessee had shown Interest income on FD of ₹1,98,487/- and the AO had merely added ₹40,063/- without discussing what was total interest as per Form 26AS statement
  • Fixed Deposit in Ratnakar Bank Account Number 3158 appeared in the balance sheet of the Assessee — the AO had worked out corresponding FD in the Ratnakar Bank at ₹507,087/- without actually calling the details from the Ratnakar Bank.
  • The AO made an addition of ₹31,700/- as receipt from Gammon India Ltd based on 26AS statement — exact amount and exact name appeared in the Balance Sheet – the AO could have called for information u/s 133(6) of the Act from Gammon India Ltd.

The ITAT held that though the assessee had failed to comply with the notices issued by AO, the AO also failed to carry out necessary investigations and to understand the facts in totality.

The ITAT held that the CIT(A) has discretion to admit the Additional evidence, if there was sufficient cause which prevented the assessee from filling the documents during the assessment proceedings. The discretion had to be used in judicious manner and one must be able to reason out. In this case the CIT(A) had not passed a speaking order for rejecting the additional evidence. The CIT(A) had failed to follow the procedure laid down in Rule 46A.

The ITAT also held that the CIT(A) had not adjudicated each and every ground raised by the Assessee on merits. The ITAT followed the Hon’ble Jurisdictional High Court in the case of Pr. CIT (Central) vs. Premkumar Arjundas Luthra (HUF) [2016] 69 taxmann.com 407 wherein it was held that CIT(A) has to decide the appeal on merits and CIT(A) does not have any power to dismiss appeal for non-prosecution.

The ITAT set aside the order of the CIT(A) for de novo adjudication after giving opportunity to the assessee. In the result, the appeal of the assessee was allowed for statistical purpose.

Where the view taken by the AO that the assessee was eligible for deduction under section 80G for CSR expenses was approved by various decisions of Tribunal, PCIT could not invoke revisional jurisdiction under section 263 on the ground that the order of AO was erroneous.

48 American Express (India) P. Ltd. vs. PCIT

(2024) 165 taxmann.com 91 (Del Trib)

ITA No.: 2468(Delhi) of 2023

A.Y.: 2016-17

Dated: 30th August, 2024

Ss. 263, 80G

Where the view taken by the AO that the assessee was eligible for deduction under section 80G for CSR expenses was approved by various decisions of Tribunal, PCIT could not invoke revisional jurisdiction under section 263 on the ground that the order of AO was erroneous.

FACTS

The assessee had incurred expenditure amounting to ₹5,20,00,000 under section 135 of the Companies Act 2013 dealing with Corporate Social Responsibility (CSR). It voluntarily disallowed the same in the computation of income; however, it claimed benefit of deduction under section 80G to the extent of ₹3,21,43,427.

During the assessment proceedings, after examining the assessee’s claim of deduction under section 80G, the Assessing Officer allowed the said deduction. PCIT initiated revision proceedings under section 263 on the ground that claim of deduction under section 80G for CSR expenses was not allowable to the assessee.

Aggrieved by order of PCIT, the assessee filed an appeal before ITAT.

HELD

The Tribunal observed that:

(a) In the past, the Tribunal has considered this issue in various cases and consistently held that though CSR expenses which are mandatory under section 135 of the Companies Act are not allowable as deduction under section 37(1), if any part of CSR contribution is otherwise eligible for deduction under Chapter VI-A, there is no bar on the companies to claim the same as deduction under section 80G.

(b) Merely because the PCIT does not agree with the view taken by the AO, the assessment order does not become erroneous. The view taken by the AO in allowing deduction under section 80G for CSR expenses was approved by various decisions of the Tribunal.

(c) The satisfaction of twin conditions set out in section 263, namely, the order is (i) erroneous; and (ii) prejudicial to the interest of Revenue is sine qua non for exercising revisional jurisdiction. If any of the said conditions are not satisfied, the revisional jurisdictional under section 263 cannot be invoked.

It noted that this view was also supported by coordinate bench in JMS Mining P Ltd. v. PCIT, (2021) 130 taxmann.com 118 (KolTrib).

Accordingly, the Tribunal allowed the appeal of the assessee and quashed the revisional order passed by PCIT.

S. 12AB –Registration under section 12AB could be denied to a trust if it had not complied with the applicable State public trusts law.

47 Gurukul Shikshan Sansthan vs. CIT

(2024) 165 taxmann.com 369(JaipurTrib)

ITA No.: 482(Jpr) of 2024

A.Ys.: 2022-23 to 2024-25

Dated: 3rd July, 2024

S. 12AB –Registration under section 12AB could be denied to a trust if it had not complied with the applicable State public trusts law.

FACTS

CIT(E) rejected the assessee-trust’s application for registration under section 12AB dated 26th September, 2023 on the ground that it was not registered under the Rajasthan Public Trusts Act, 1959, genuineness of the activities of the assessee could not be verified due to non-compliance, and that the assessee had filed incomplete Form No. 10AB.

Aggrieved, the assessee filed an appeal before ITAT.

HELD

Before the Tribunal, the assessee filed a request for adjournment stating that the assessee-trust had applied for a certificate under the Rajasthan Public Trusts Act, 1959 and was awaiting such certificate.

Rejecting the adjournment request, the Tribunal, vide an ex-parte order, observed that:

(a) As admitted in the adjournment request, as on the date of application for registration, that is, 26th September, 2023, the assessee was not registered under the Rajasthan Public Trusts Act although such registration was mandated under section 17 of the said Act.

(b) Section 12AB(1) mandates that all the applicable laws shall be followed and if any applicable law is not followed by the assessee, then it is not eligible for registration.

Following the decision of Supreme Court in New Noble Educational Society vs. CCIT, (2022) 448 ITR 594 (SC), the Tribunal held that since the assessee had not followed provisions of Rajasthan Public Trusts Act, it was not eligible for registration under section 12AB.

Additionally, the Tribunal observed that since the assessee had neither submitted the details called by CIT nor filed any document before the Tribunal to prove genuineness of its activities, it was not eligible for registration under section 12AB also on this ground.

A determinate trust with sole beneficiary was liable to be taxed at same rate as applicable to its beneficiary.

46 ITO vs. Petroleum Trust

(2024) 165 taxmann.com 504 (MumTrib)

ITA No.: 2694(Mum) of 2024; C.O. No. 133 (Mum) of 2024

A.Y.: 2021-22

Dated: 2nd August, 2024

S. 161

A determinate trust with sole beneficiary was liable to be taxed at same rate as applicable to its beneficiary.

FACTS

The assessee was a discretionary trust, which held investments mainly for its beneficiary, RIIHL. RIIHL, being a limited company, opted to be taxed under the new tax regime under section 115BAA by filing Form 10-IC claiming to be taxed @ 22 per cent (+surcharge / cess). The assessee-trust, being a representative assessee under section 161, claimed to be taxed at same rate applicable to its beneficiary in its return of income. The tax department disagreed with this position.

CIT(A) accepted the status of the assessee as a representative assessee under section 161 and held that since the assessee is a determinate trust with RIIHL as its sole and 100 per cent beneficiary and settlor and since RIIHL has opted to be taxed under the new tax regime @22 per cent, the assessee-trust was also liable to be taxed at the same rate.

Aggrieved, the tax department filed an appeal before the ITAT. The assessee also filed cross objections in support of order of CIT(A).

HELD

Noting language of section 161(1) and following the decision of Bombay High Court in Mrs. Amy F. Cama vs. CIT,(1999) 237 ITR 82 (Bom), the Tribunal held that the tax shall be levied upon and recovered from a representative assessee in like manner and to the same extent as it would be leviable upon and recoverable from the person represented by him, which meant that the assessee-trust will be subject to same rate of tax as applicable to the person represented by it, that is, RIIHL which was taxed @ 22 per cent under section 115BAA.

 

I : Capital gains is taxable in the year in which possession of constructed premises was received by the assessee and not in the earlier year when occupancy certificate was granted. II : The cost of construction given by the developer which is not supported by any particulars cannot be taken as full value of consideration. Section 50D of the Act, would be applicable and accordingly, the full value of consideration should be computed on the basis of guideline value of land or building that is transferred / received on development.

45 AlagappaMuthiah HUF vs. DCIT

ITA No. 775/Bang./2024&954/Bang./2024

AY: 2017-18

Date of Order: 12th August, 2024

Sections: 45, 48

I : Capital gains is taxable in the year in which possession of constructed premises was received by the assessee and not in the earlier year when occupancy certificate was granted.

II : The cost of construction given by the developer which is not supported by any particulars cannot be taken as full value of consideration. Section 50D of the Act, would be applicable and accordingly, the full value of consideration should be computed on the basis of guideline value of land or building that is transferred / received on development.

FACTS I

The assessee HUF along with Alagappa Annamalai HUF were co-owners of land in respect of which they entered into two development agreements dated 10th February, 2011. Under these Development agreements the properties belonging to these two persons were being developed into both residential as well as commercial units. These two persons were allotted the entire commercial unit and 6 apartment units in the residential units.

In the course of a search conducted in the case of Sri Alagappa Annamalai on 4th July, 2019, a sworn statement was recorded from Sri Alagappa Annamalai as to why the capital gain in respect of transaction of entering into development agreement has not been offered for tax in AY 2017-18. In response, it was submitted that capital gain has been offered in the year in which possession of constructed premises has been received. This was done in absence of information about occupancy certificate and cost of construction. Similar statement was recorded in the case of assessee on 5th July, 2019 under section 131. Thereafter, both the assessee and Alagappa Annamalai retracted their respective statements and stated that the possession of the properties was received by them after development on 8th May, 2017 and accordingly the liability to capital gains arose for the assessment year 2018-19 and not for the assessment year 2017-18 as admitted in their earlier statements. Accordingly, they stated that they would be offering capital gains for the assessment year 2018-19 on the above basis in course of assessment proceedings after receipt of notice.

The assessee, accordingly, filed returns in response to notice u/s.153C of the Act offering capital gains by adopting the value determined by the registered valuer. In the assessment proceedings, the A.O. held that the liability to capital gains arises for the assessment year 2017-18 as occupancy certificate was received on 1st February, 2017 for commercial portion and 17th March, 2017 for residential portion. On the other-hand both these persons contended that the liability to capital gains arose for the assessment year 2018-19 on receipt of possession vide letter dated 8th May, 2017 when simultaneous with receiving possession they have returned the deposits. The AO was of the view that the letter of possession was manipulated in collusion with the builder.

HELD I

The Tribunal observed that reason for taxing the capital gain as income of assessment year 2017-18 is that the occupancy certificate was received on 17th March, 2017. On behalf of the assessee,it was contended that section 45(5A) has been introduced w.e.f. 1.4.2018 and therefore the same does not apply to the present case. Section 45(5A) applies w.e.f. AY 2018-19 and not AY 2017-18. The Tribunal noted that section 45(5A) cannot be applied retrospectively and also that the possession has been received vide letter dated 8th May, 2017. It held that the parties to the transfer of impugned property mutually agreed to hand over the delivery of the possession vide the said letter and it is to be accepted as true unless it is proved otherwise.There is no basis for the allegation made by the AO that the letter of possession is manipulated in collusion with the builder.The Tribunal, relying upon the decision of the co-ordinate bench in the case of N A Haris in ITA No.988/Bang/2018 dated 15th February, 2021 held that the capital gain arising pursuant to development agreement dated 10th February, 2011 is to be taxed in AY 2018-19 and not AY 2017-18 as held by the AO.

FACTS II

The assessee in the retraction letter had informed the AO that it had engaged a registered Valuer to determine the value of the property received by it after development and the said value was –

Commercial portion: ₹82,26,36,541

Residential portion: ₹6,89,11,624

—————————————————————————

                        Total: ₹89,15,48,165

===========================================

The assessee computed the capital gains by adopting the above stated value. In the assessment order, the A.O. varied the computation of capital gains by adopting the full value of consideration at ₹120,03,46,357/- based on the details furnished by the Developer vide letter dated 7th January, 2022. While doing so the A.O. has taken the cost of construction reported by the Developer of ₹4,597 per sft for the commercial portion and ₹3,750 per sft. for the residential portion.

The assessee disputed the cost of construction before the CIT(A). The CIT(A) observed that except for one unsigned sheet, the Developer had not furnished any bills or documents in support of the cost claimed to be incurred by the Developer. The DVO had without giving any reasons stated that the valuation as done by the Registered Valuer is understated.

Before CIT(A), reliance was placed on the decision of the Hon’ble Karnataka High Court in the case of Shankar Vittal Motor Company in ITA 653/2016 dated 1st December, 2021 as well as the decision of the jurisdictional High Court in the case of Smt. Sarojini M. Kushe in ITA 475/2016 dated 1st December, 2021. In the aforesaid cases it has been held that the cost of construction given by the developer which is not supported by any particulars cannot be taken as full value of consideration. The Hon’ble High Court has held that section 50D of the Act, would be applicable and accordingly, the full value of consideration should be computed on the basis of guideline value of land or building that is transferred / received on development.

The CIT(A) determined the full value of consideration for transfer of the undivided interest land to the developer at ₹93,80,19,968/- as against ₹120,03,46,357/- taken by the Assessing Officer. The CIT [A] has noticed that the appellant has transferred 1,94,368sft. of land to the developer. The said land has been valued at ₹4,826 per sft. after deriving the same by reducing the guideline value of the building from the guideline value of the super built-up area. This is because the super built-up area includes both undivided interest in land as well as the built-up area. In this manner the learned CIT[A] has held that the deemed value of consideration for the transfer of the undivided share of land in the project pertaining to the developer share was ₹93,80,19,968/-

HELD II

The method adopted by AO for determining the consideration of the impugned transfer of property is not correct. There is no basis for inclusion of cost of land, finance cost and administrative cost for determining the consideration received by the landlord. The Tribunal held that the most appropriate judgment to be followed is the decision of Karnataka High Court in Shankar Vittal Motor Company in ITA 653/2016 dated 1st December, 2021. It held that no fault can be found with the decision of the CIT(A) which has been rendered by following the ratio of the decision of the Karnataka High Court Shankar Vittal Motor Company in ITA 653/2016 dated 1st December, 2021 as also the decision of the Smt. Sarojini M. Kushe in ITA No.475 of 2016 dated 15th December, 2021. The Tribunal dismissed this ground of appeal of the revenue.

Section 143(1) mandates only processing the return of income to vouch for the arithmetical error, detect the incorrect claim of expenses, losses, verify and cross check the claim made in the audit report, claim of deductions, cross verify the income declared in form 26AS or form 16A etc. and the Revenue is not allowed to go beyond that. Claim not made in the return of income, which has been processed, and time for filing revised return has expired can be made only before the administrative officers or the Board and not in an appeal.

44 PasupatiAcrylon Ltd. vs. ACIT

TS-696-ITAT-2024(DEL)

ITA No. 1773/Delhi/2024

AY: 2019-20

Date of Order: 19th September, 2024

Sections: 37, 143(1)

Section 143(1) mandates only processing the return of income to vouch for the arithmetical error, detect the incorrect claim of expenses, losses, verify and cross check the claim made in the audit report, claim of deductions, cross verify the income declared in form 26AS or form 16A etc. and the Revenue is not allowed to go beyond that.

Claim not made in the return of income, which has been processed, and time for filing revised return has expired can be made only before the administrative officers or the Board and not in an appeal.

FACTS

For the year under consideration, the assessee filed its return of income declaring therein a total income of ₹28,98,24,424. The CPC processed the return of income and passed an intimation accepting the return of income as filed by the assessee.

Assessee filed an appeal to the CIT(A) raising a ground that the assessee failed to make a claim of certain business expenditures in the return filed by it, which was duly processed u/s 143(1) of the Act. The CIT(A) held that the claim of business expenses u/s 37 after processing the return of income seems an afterthought. He opined that the assessee can easily file the revised return of income if there is any discrepancy in the original return of income before the due date, which the assessee failed to do so. The due date for filing the revised return of income was 30th November, 2020. The contention of the assessee cannot be accepted by simply writing a letter to the concerned authority for allowing the business expenses which was not claimed in the return of income. The CIT(A) relied on the decision of Supreme Court in the case of Goetze (India) Ltd, wherein the issue was well-settled, any deduction stating that the assessee can revise the return of income within due date for raising any new claim which was not claimed in the original return of income. Accordingly, he dismissed the appeal.

Aggrieved, the assessee preferred an appeal to the Tribunal.

HELD

All the case law relied by the assessee are relating the fresh claim made by the assessee in the regular assessment proceedings, not in the case of preliminary assessment u/s 143(1) of the Act. The mandate of the preliminary assessment u/s 143(1) of the Act is different, it is only to process the return of income to vouch for the arithmetical error, detect the incorrect claim of expenses, losses, verify and cross check the claim made in the audit report, claim of deductions, cross verify the income declared in form 26AS or form 16A etc. The AO is not allowed to go beyond the above mandate given under section 143(1) of the Act.

The Tribunal noted that the asssessee filed the return of income in which it did not make certain claims which, according to the assessee, are genuine. The return was processed accepting the return of income as filed. The time allowed for filing revised return of income having elapsed the assessee found filing an appeal to be an easy option.

The Tribunal considered the possibilities available to make the fresh claim in case the assessee fails to make the claim in the original return of income. These, according to the Tribunal, are:

i. By filing revised return of income (not possible in this case as the limitation period already elapsed);

ii. Claim in the regular assessment, in case the return is selected for scrutiny. (in this case, not selected, the avenue to go in appeal also ruled out);

iii. The assessee can proceed by filing revision application u/s 264 of the Act before the jurisdictional commissioner. The application has to be filed within one year from the date of passing of the relevant impugned order;

iv. The assessee may file an application u/s 119(2)(b) of the Act before the Board. The board may find it desirable or expedient so to do for avoiding genuine hardship to admit an application or claim for any exemption, deduction, refund or any other relief under the Act. The important thing is that there is no limitation period attached to it. The assessee can approach any time when it has genuine claim.

The Tribunal was of the view that the assessee filed the present appeal before it without there being any grievance in preliminary or intimation order in which the Assessing Officer accepted the return of income filed by the assessee. It held that, the assessee may have two types of fresh claim, which may be genuine claim which is traceable from the return filed by the assessee, which can be claimed by the assessee, the other type is debatable issues which may be claimed only upon making proper verification and assessment, this will lead to discretion of the relevant authorities including the Board. It held that the remedy for the fresh claim is not with any appellate authority and the remedy lies only with the administrative officers or with the board. In case the board rejects the application, the remedy available only in the writ proceedings. The Tribunal dismissed the appeal filed by the assessee.

For failure on the part of the payer to deduct TDS, the assessee cannot be penalised by levy of interest under section 234C.

43 Standard Chartered Bank (Singapore) Limited vs. DCIT

TS-615-ITAT-2024(Mum)

Assessment Year: 2021-22

Date of Order: 14th August, 2024

Sections: 234B, 234C

For failure on the part of the payer to deduct TDS, the assessee cannot be penalised by levy of interest under section 234C.

FACTS

The assessee, a company incorporated in Singapore, registered as a Category I Foreign Portfolio Investor (FPI) with SEBI made investments in debt securities and equity shares in India. The assessee filed return of income for the year under consideration on 15th March, declaring a total income of ₹75,66,62,391. The return of income filed by the assessee was processed under section 143(1) and a demand of ₹47,13,33,940 was raised as a result of TDS credit not been granted and interest under section 234B and 234C being levied.

During the year under consideration, the assessee had received interest on commercial papers and non-convertible debentures amounting to ₹62,10,11,200 and ₹13,68,16,712 respectively which was subject to deduction of tax at source @ 20 per cent. The Assessee had also received interest on government securities which was subject to deduction of tax at source @ 5 per cent. On some part of income received from commercial papers, non-convertible debentures and government securities the payers did not deduct tax at source, though they were liable to deduct tax at source under section 196D and 194LD of the Act. Pursuant to the failure of the payer to deduct tax at source the assessee was required to discharge tax liability by way of advance tax at the time of receipt of such interest income from commercial papers, NCDs and government securities. The assessee did pay the full tax on interest receipts as advance tax.

Levy of interest under section 234B was subsequently rectified but the levy of interest under section 234C at ₹51,75,514 stood.

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

Aggrieved, the assessee preferred an appeal to the Tribunal where, on behalf of the assessee, reliance was placed on following decisions –

i) Goldman Sachs Investment (Mauritius) Ltd. vs. DCIT [(2021) 187 ITD 184 (Mum.-Trib.)];

ii) CIT vs. Madras Fertilisers Ltd. [149 ITR 703 (Mad. HC)].

HELD

The Tribunal observed that it is an undisputed fact that on some part of interest received by the assessee on commercial papers, NCDs and Government Securities, payers have faulted in not deducting tax at source. It was observed that for the fault of the payer, the assessee cannot be held responsible. The Tribunal held that in its understanding of the law, for failure on the part of the assessee to deduct tax at source under sections 196D and 194LD of the Act, the assessee cannot be penalised by levy of interest under section 234C. The Tribunal observed that the assessee has diligently discharged its full tax liability by paying entire advance tax on interest income.

Having examined the provisions of section 234C of the Act, the Tribunal held that it can be seen that advance tax is reduced by any tax deductible or collectible which means that the legislators have taken care of liability of the payer to deduct tax at source on payments and to that extent, assessee is not required to pay any advance tax. In the present case, since the payers faulted in deducting tax at source and assessee discharged its liability by paying full tax, the assessee cannot be levied with interest under section 234C of the Act for the fault of the payers. For this proposition, the Tribunal drew support from the decision of the Bombay High Court in Director of Income-tax (International Tax) v. Ngc Network Asia LLC [(2009) 313 ITR 187 (Bom. HC)] where the court held that when a duty is cast on the payer to deduct and pay tax at source, on payer’s default to do so, no interest under section 234B can be imposed on the payee assessee.

The Tribunal held that it is not a case of deferment of advance tax on income as envisaged in section 234C of the Act. The Tribunal directed the AO to delete the interest levied under section 234C.

The Tribunal allowed the appeal filed by the assessee.

Deduction under Sections 54 and 54F can be claimed simultaneously qua investment in the same new asset. The covenants in the sale deed executed and registered are conclusive in the absence of any evidence to the contrary. The crucial date for the purpose of determination of date of purchase for the purpose of section 54 is the date when the possession and control of the property is given to the purchaser’s hands.

42 RamdasSitaramPatil vs. ACIT

TS-618-ITAT-2024(PUN)

ITA No. 621/Pune/2022

AY: 2016-17

Date of Order: 7th August, 2024

Sections: 54 and 54F

Deduction under Sections 54 and 54F can be claimed simultaneously qua investment in the same new asset.

The covenants in the sale deed executed and registered are conclusive in the absence of any evidence to the contrary.

The crucial date for the purpose of determination of date of purchase for the purpose of section 54 is the date when the possession and control of the property is given to the purchaser’s hands.

FACTS

The appellant, an individual, filed his Return of Income for the A.Y. 2016-17 on 7th March, 2017 declaring a total income of ₹96,55,810/-. The assessment was completed by the Assessing Officer (AO) vide order dated 28th December, 2018 passed u/s.143(3) of the Act at a total income of ₹2,59,13,610/-. While doing so, the AO disallowed the claim for deduction of income u/s.54F of ₹98,97,654/- and deduction u/s.54 of ₹63,60,146/-.

During the year under consideration, on 9th February, 2016, the assessee entered into a joint development agreement for a consideration of ₹25,00,000 and 7 constructed flats. On 1st November, 2015, he entered into an unregistered agreement to sell a residential flat in Kolhapur for a consideration of ₹80,00,000. The assessee purchased a bungalow at Kolhapur, whose possession was taken on  31st March, 2015, for a consideration of ₹3,06,00,000, of which ₹1,30,00,000 was paid during the period from 20th May, 2014 to 2nd December, 2014 and ₹90,00,000 was paid in cash in 2014 as per MOU dated 19th May, 2014.

In view of the fact that the possession of the bungalow purchased was received on 31st March, 2015, the assessee claimed deduction under sections 54 and 54F against the long term capital gains arising on two transfers effected by him. The said claim was denied by the AO by holding that (1) deduction u/s.54/54F cannot be claimed simultaneously in respect of the same asset; and (2) payment for purchase of new house was made prior to one year before the sale of the original asset.

Aggrieved, the assessee preferred an appeal to the CIT(A) who vide impugned order confirmed the action of the AO in disallowing the claim for deduction u/s.54/54F by holding that the possession agreement dated 31st March, 2015 is a fabricated document in view of the statement made by him u/s.132(4) of the Act on 19th December, 2014 that the new residential property is in his possession.

Aggrieved, the assessee preferred an appeal to the Tribunal.

HELD

The Tribunal observed that the solitary issue in the present appeal revolves around the entitlement of assessee for deduction u/s.54/54F of the Act. It noted that admittedly, the sale consideration was paid prior to the one year before the sale of original asset. The Tribunal held that there is no bar under law to claim deduction simultaneously u/s. 54 and u/s.54F in respect of the same asset. It observed that the crucial fact which needs to be determined in the present case is the date of purchase of the new residential property.

The Tribunal held that it is settled position of law that the crucial date for the purpose of determination is when the property is purchased for the purpose of section 54 and the date when the possession and control of the property is given to the purchaser’s hands.

The Tribunal applying the principle laid down by the Andhra Pradesh High Court in case of CIT vs. Shahzada Begum [(1988) 173 ITR 397] and also the decision of Hon’ble Bombay High Court in the case of CIT vs. Dr. Laxmichand Narpal Nagda (deceased) [211 ITR 804] and observing that in the present case, the recital of the sale deed clearly says that possession of the property was taken on 31st March, 2015 which is within the period of one year before the date of sale of the original asset. The Tribunal held that the covenants in the sale deed executed and registered are conclusive in the absence of any evidence to the contrary; the finding of the CIT(A) that it is a fabricated document is a mere bald allegation and cannot be sustained in the eyes of law; the appellant is entitled for deduction us/.54/54F as claimed.

Whether The Gift Of A Capital Asset By A Corporate Entity Be Subjected To Income Tax?

BACKGROUND

  • Capital gains were charged for the first time via the Income Tax and Excess Profit Tax (Amendment) Act, 1947, which inserted section 12B under the Indian Income Tax Act, 1922. Indian Finance Act, of 1949, virtually abolished this levy. The levy of capital gains was revived vide Finance (No. 3) Act, 1956 w.e.f. 1st April, 1957. Whether at the time of the introduction of capital gains in 1947 or at the stage of the revival of capital gains tax in 1956, the transaction of transfer of a capital asset by way of gift or transfer under irrevocable trust was not considered a transfer for the purpose of capital gains. In other words, the transfer of capital assets by way of gift or under an irrevocable trust was exempt. Such exemption was available to all classes of taxpayers, whether individual, HUF, firm, company, etc.
  •  Even under the Income-tax Act, 1961 (ITA), section 47(iii) of ITA provided exemption from capital gains on the transfer of capital assets by way of gift or under an irrevocable transfer. Such exemption was available to all classes of taxpayers. However, vide Finance (No. 2) Act, 2024, w.e.f. 1st April, 2025 (AY 2025–26 and onwards), section 47(iii) of ITA is substituted to provide that exemption on the transfer of a capital asset by way of gift or under an irrevocable transfer available only to individuals, and HUF.
  •  Explanatory Memorandum to Finance (No. 2) Bill, 2024 provides that amendment is carried out to (a) widen the tax base and act as an anti-avoidance measure, (b) section 50CA and section 50D of ITA are on statute book providing deeming consideration aiming to bolster anti-avoidance provisions, (c) taxpayers have argued in multiple judicial precedents that transaction of gift of shares by company is exempt under section 47(iii) of ITA (d) and (iv) to target tax avoidance and erosion of India tax base.
  •  Though the Explanatory Memorandum to Finance (No. 2) Bill 2024 provides that amendment is carried out to widen the tax base and target tax avoidance, there is no express mention that a transaction of gift by taxpayers other than individual and HUF will result in capital gains taxation.

WHETHER CORPORATE ENTITY CAN MAKE A VALID GIFT?

  •  Before delving into the tax implications arising from the transfer of capital assets by way of gift by a corporate entity, it may be of utmost importance to understand the legality of the corporate entity making a gift.
  •  Section 122 of the Transfer of Property Act, 1882 (TOPA) defines gift to mean a transfer of certain existing moveable or immoveable property made voluntarily and without consideration by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee. Section 5 of TOPA provides that the transfer of property shall be carried out by a living person, and the living person includes the company. Accordingly, a corporate entity is also a person who can make a gift.
  •  In following judicial precedents, it has been held that the corporate entity can make a valid gift.

 

  • DP World (P) Ltd [2012] 103 DTR 166 (Delhi Trib.) — There is no restriction on a company to make a gift. As long as a donor company is permitted by its Articles of Association to make a ‘gift’, it can do so.
  • Nerka Chemicals [2014] 103 DTR 249 (Bombay HC) — Relied on DP World (supra). Bombay HC held that a corporate gift is a valid transaction.
  • KDA Enterprises Private Ltd [ITA No. 2662/Mum/2013] (Mumbai Trib.) — Corporates are competent to make and receive gifts, and natural love and affection are not necessary requirements for making gifts. The only requirement for a company to make gifts is to have the requisite authorization in the Memorandum of Association or Article of Association.
  • PCIT vs. Redington (India) Ltd [2021] 430 ITR 298 (Madras):
  • It seems that there is no express denial under the law for a corporate entity making the gift of its assets. So long as the Memorandum of Association and/or Article of Association authorizes the gift of its assets, a company can make the gift.

ESSENTIAL ELEMENTS FOR COMPUTATION OF CAPITAL GAINS AND ABSENCE OF ANY ELEMENT, THE CHARGE FAILS

  •  Section 45(1) of ITA is a principal charging provision for taxing capital gains income. Section 45(1) of ITA provides that any profits and gains arising from the transfer of capital assets effected in the previous year be chargeable to income-tax under the head ‘capital gains’ and shall be deemed to be income of the previous year in which the transfer took place.
  •  Section 48 of ITA provides for a mode of computation of capital gains income. Section 48 of ITA requires a reduction of expenditure in relation to the transfer of capital assets, cost of acquisition, and cost of improvement from the full value of consideration.
  •  Judicially, it is well settled that charging provision and computation provision form integrated code. In order to create an effective charge for capital gains income, the transaction shall be covered by a charging provision as well as a computation provision. Where a transaction is not covered by computation provision, the transaction falls outside the scope of the charging provision itself.

 

  •  Reference may be made to the SC ruling in the case of CIT vs. B C SrinivasaSetty [1981] 128 ITR 294. In this case, SC was concerned with the computation of gains arising on the transfer of goodwill of business. In the absence of the cost of acquisition of goodwill, SC held such asset is not covered within the fold of section 45 of ITA. Relevant observations from SC rulings are as under:

“8. Section 45 charges the profits or gains arising from the transfer of a capital asset to income tax. The asset must be one which falls within the contemplation of the section. It must bear that quality which brings section 45 into play. To determine whether the goodwill of a new business is such an asset, it is permissible, as we shall presently show, to refer to certain other section of the head “Capital gains”. Section 45 is a charging section. For the purpose of imposing the charge, Parliament has enacted detailed provisions in order to compute the profits or gains under that head. No existing principle or provision at variance with them can be applied for determining the chargeable profits and gains. All transactions encompassed by section 45 must fall under the governance of its computation provisions. A transaction to which those provisions cannot be applied must be regarded as never intended by section 45 to be the subject of the charge. This inference flows from the general arrangement of the provisions in the Income-tax Act, where under each head of income the charging provision is accompanied by a set of provisions for computing the income subject to that charge. The character of the computation provisions in each case bears a relationship to the nature of the charge. Thus, the charging section and the computation provisions together constitute an integrated code. When there is a case to which the computation provisions cannot apply at all, it is evident that such a case was not intended to fall within the charging section. Otherwise, one would be driven to conclude that while a certain income seems to fall within the charging section, there is no scheme of computation for quantifying it. The legislative pattern discernible in the Act is against such a conclusion. It must be borne in mind that the legislative intent is presumed to run uniformly through the entire conspectus of provisions pertaining to each head of income. No doubt there is a qualitative difference between a charging provision and a computation provision. Ordinarily, the operation of the charging provision cannot be affected by the construction of a particular computation provision. But the question here is whether it is possible to apply the computation provision at all if a certain interpretation is pressed on the charging provision. That pertains to the fundamental integrity of the statutory scheme provided for each head.”

  •  Reference may also be made to the SC ruling in the case of Sunil Siddharthbhai vs. CIT [1985] 156 ITR 509. In this case, SC was concerned with the determination of the full value of consideration accruing or received by a partner on the contribution of the personal asset to the firm. In the absence of a determination of consideration on the transfer of capital assets, SC held that the case of a contribution of capital assets into the firm is outside the scope of the capital gains chapter. Relevant observations from the ruling are as under:

“In CIT vs. B.C. SrinivasaSetty [1981] 128 ITR 294 this Court observed that the charging section and the computation provisions under each head of income constitute an integrated code, and when there is a case to which the computation provisions cannot apply at all, it is evident that such a case was not intended to fall within the charging section. On the basis of that proposition, the learned counsel for the assessee has urged that section 45 is not attracted in the present case because to compute the profits or gains under section 48, the value of the consideration received by the assessee or accruing to him as a result of the transfer of the capital asset must be capable of ascertainment in monetary terms. The consideration for the transfer of the personal assets is the right that arises or accrues to the partner during the subsistence of the partnership to get his share of the profits from time to time and after the dissolution of the partnership or with his retirement from the partnership, to get the value of a share in the net partnership assets as on the date of the dissolution or retirement after a deduction of liabilities and prior charges. The credit entry made in the partner’s capital account in the books of the partnership firm does not represent the true value of the consideration. It is a notional value only, intended to be taken into account at the time of determining the value of the partner’s share in the net partnership assets on the date of dissolution or on his retirement, a share which will depend upon a deduction of the liabilities and prior charges existing on the date of dissolution or retirement. It is not possible to predicate beforehand what will be the position in terms of monetary value of a partner’s share on that date. At the time when the partner transfers his personal assets to the partnership firm, there can be no reckoning of the liabilities and losses that the firm may suffer in the years to come. All that lies within the womb of the future. It is impossible to conceive of evaluating the consideration acquired by the partner when he brings his personal asset into the partnership firm when neither the date of dissolution or retirement can be envisaged nor can there be any ascertainment of liabilities and prior charges which may not have even arisen yet. In the circumstances, we are unable to hold that the consideration which a partner acquires on making over his personal asset to the partnership firm as his contribution to its capital can fall within the terms of section 48. And as that provision is fundamental to the computation machinery incorporated in the scheme relating to the determination of the charge provided in section 45, such a case must be regarded as falling outside the scope of capital gains taxation altogether.”

  •  It may also be observed that in the context of the capital gains Chapter, SC, in the case of PNB Finance Ltd vs. CIT [2008] 307 ITR 75, held that in the absence of the determination of the cost of undertaking, the amount received on compulsory acquisition of undertaking cannot fall within the scope of section 45 of ITA.
  •  Reference may also be made to the SC ruling in the case of Govind Saran Ganga Saran vs. CST [1985] 155 ITR 144 rendered under the Bengal Finance (Sales Tax) Act, 1941 (‘Sales Tax Act’) as applied to the Union Territory of Delhi. The case revolved around the interpretation of Sections 14 and 15 of the Sales Tax Act. Cotton yarn was classified as one of the goods of special importance in inter-state trade or commerce as envisaged by Section 14 of the Sales Tax Act. Section 15 of the Sales Tax Act provided that sales tax on goods of special importance should not exceed a specified rate and further that they should not be taxed at more than one stage. The issue arose because the stage itself had not been clearly specified, and accordingly, it was not clear at what stage the sales tax would be levied. The Financial Commissioner held that in the absence of any stage, there was a lacuna in the law and consequently, cotton yarn could not be taxed under the sales tax regime. The Delhi High Court reversed the decision of the Financial Commissioner. However, SC held that the single point at which the tax may be imposed must be a definite ascertainable point, and in the absence of the same, tax shall not be levied. While rendering the ruling, SC has made the following observations which are worth quoting:

“The components which enter into the concept of a tax are well known. The first is the character of the imposition known by its nature which prescribes the taxable event attracting the levy, the second is a clear indication of the person on whom the levy is imposed and who is obliged to pay the tax, the third is the rate at which the tax is imposed, and the fourth is the measure or value to which the rate will be applied for computing the tax liability. If those components are not clearly and definitely ascertainable, it is difficult to say that the levy exists in point of law. Any uncertainty or vagueness in the legislative scheme defining any of those components of the levy will be fatal to its validity.”

SC ruling in the case of Govind Saran Ganga Saran (supra) has been quoted with approval by the Constitution Bench of SC in the case of CIT vs. Vatika Township (P.) Ltd. [2014] 367 ITR 466.

  •  From the above, it is clear that, in order to create an effective charge, there shall be the presence of all the elements that go into the computation of capital gains income. The absence of any element that goes into the computation of capital gains will be fatal to the levy itself.

WHETHER THE TRANSACTION OF THE GIFT INVOLVE ANY CONSIDERATION?

  •  The term ‘gift’ is not defined under ITA. Section 122 of the Transfer of Property Act, of 1882 defines ‘gift’ as under:

“Gift” is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee

  •  Reference may be made to the SC ruling in the case of Sonia Bhatia vs. the State of U.P., [AIR 1981 SC 1274]. Section 5(6) of U.P. Imposition of Ceiling on Land Holdings Act, 1960 (UP Act) as it stood at the relevant time provided that in determining the ceiling area any transfer of land made after  24th January, 1971 should be ignored and not taken into account. Clause (b) of the proviso to section 5(6) of the UP Act carves out an exception and states that section 5(6) of the UP Act shall not apply to a transfer proved to the satisfaction of the Prescribed Authority to be in good faith and for adequate consideration under an irrevocable instrument. Explanation II to said proviso places the burden of proof that a case fell within clause (b) of the proviso on the party claiming its benefit. On 28th January, 1972, the donor gifted away certain lands in favor of his granddaughter, the appellant, daughter of a pre-deceased son. The gift having been made after the prescribed date; the Prescribed Authority ignored the gift for purposes of section 5(6) of the UP Act. On behalf of the appellant, it was contended that a gift could not be said to be a transfer without consideration because even love and affection may provide sufficient consideration and hence the condition regarding adequate consideration would not apply to a gift. SC held that the gift does not involve adequate consideration and hence case does not fall within the carve-out in the said proviso. The relevant extracts from the ruling are as under:

“To begin with, it may be necessary to dwell on the concept of gift as contemplated by the Transfer of Property Act and as defined in various legal dictionaries and books. To start with, Black’s Law Dictionary (Fourth Edition) defines gift thus:

A voluntary transfer of personal property without consideration.A parting by the owner with property without pecuniary consideration. A voluntary conveyance of land, or transfer of goods, from one person to another made gratuitously, and not upon any consideration of blood or money”.

A similar definition has been given in Webster’s Third New International Dictionary (Unabridged) where the author defines gift thus:

“Something that is voluntarily transferred by one person to another without compensation; a voluntary transfer of real or personal property without any consideration or without a valuable consideration- distinguished from sale.”

Volume 18 of Words & Phrases (Permanent Edition) defines gift thus:

A ‘gift’ is a voluntary transfer of property without compensation or any consideration. A ‘gift’ means a voluntary transfer of property from one person to another without consideration or compensation.”

In Halsbury’s Laws of England (Third Edition-Volume 18) while detailing the nature and kinds of gifts, the following statement is made.

“A gift inter vivos (a) may be defined shortly as the  transfer of any property from one person to another gratuitously. Gifts then, or grants, which are the eighth method of transferring personal property, are thus to be distinguished from each other, that gifts are always gratuitous, grants are upon some consideration or equivalent.

Thus, according to Lord Halsbury’s statement the essential distinction between a gift and a grant is that whereas a gift is absolutely gratuitous, a grant is based on some consideration or equivalent. Similarly in Volume 38 of Corpus Juris Secundum, it has been clearly stated that a gift is a transfer without consideration, and in this connection, while defining the nature and character of a gift the author states as follows:

A gift is commonly defined as a voluntary transfer of property by one to another, without any consideration or compensation therefor. Any piece of property which is voluntarily transferred by one person to another without compensation or consideration. A gift is a gratuity, and an act of generosity, and not only does not require a consideration but there can be none; if there is a consideration for the transaction it is not a gift.”

It is, therefore, clear from the statement made in this book that the concept of gift is diametrically opposed to the presence of any consideration or compensation. A gift has aptly been described as a gratuity and an act of generosity and stress has been laid on the fact that if there is any consideration then the transaction ceases to be a gift.

Under section 122 of the Transfer of Property Act, the gift is defined thus:

“‘Gift’ is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee. Such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void.”

Thus, s. 122 of the Transfer of Property Act clearly postulates that a gift must have two essential characteristics-(1) that it must be made voluntarily, and (2) that it should be without consideration. This is apart from the other ingredients like acceptance, etc. Against the background of these facts and the undisputed position of law, the words, ’transfer for adequate consideration’ used in clause (b) of the proviso clearly and expressly exclude a transaction that is in the nature of a gift and which is without consideration. Love and affection, etc., may be motive for making a gift but is not a consideration in the legal sense of the term.”

  •  Reference may also be made to Shakuntala vs. the State of Haryana, [AIR 1979 SC 843] wherein the transaction of gift is explained as under:

It is, therefore, one of the essential requirements of a gift that it should be made by the donor ‘without consideration’. The word ‘consideration’ has not been defined in the Transfer of Property Act, but we have no doubt that it has been used in that Act in the same sense as in the Indian Contract Act and excludes natural love and affection…. It would thus appear that it is of the essence of a gift as defined in the Transfer of Property Act that it should be without ‘consideration’ of the nature defined in Section 2 (d) of the Contract Act”

  •  Reference may be made to the Madras HC ruling in the case of CIT vs. ParmanandUttamchand [1984] 146 ITR 430. In this case, the taxpayer was carrying on the business of money lending. On the event of grahapravesham, taxpayer received gifts from relatives, friends, and well-wishers which included some of the borrowers of the taxpayer. Tax authorities brought this amount to tax as income. In this regard, refer following observations from the HC ruling dealing with the meaning of gift.

Under the general law of gifts, a voluntary or gratuitous payment is a gift. The absence of quid pro quo is regarded as an essential element of a gift. For purposes of taxation on income, however, it was said that these characteristics of gifts were to be regarded as indecisive and treated with indifference. It was said that the receipt of gifts should be considered from the point of view of the recipient, more especially in the context of the recipient’s walk of life. If the recipient, it was argued, receives the so-called gift by virtue of his employment or by virtue of his vocation, profession, or calling, then the gift, it was said, must be seen in a totally different light. In such cases, it was said, the receipts cannot escape being regarded as income, even though the person who made the payments did so voluntarily and intended it to be taken as a mere bounty.”

  •  Reference may be made to the Bombay HC ruling in the case of CED vs. NarayandasGattani [1982] 138 ITR 670. In this case, there was some dispute between the deceased and two of his sons regarding the earnings and the ownership of certain properties. To end the controversy, the deceased, out of his sweet will, gave ₹31,000 to one of his sons and ₹51,000 to the other, with the condition attached that the sons would relinquish all their rights over disputed properties. The sons, on receiving the said amounts, executed relinquishment deeds in respect of the said properties. Thereafter, the deceased and his sons entered into a partnership and the sons invested the above mentioned amounts as their capital in the firm. On the deceased’s death, the Assistant Controller included the said amounts in the deceased’s estate under section 10 of the Estate Duty Act, 1953 on the ground that the deceased had gifted the money and was not entirely excluded from its enjoyment because it had been invested in the partnership firm in which the deceased was also a partner. The Appellate Controller sustained the Assistant Controller’s order. On the second appeal, the Tribunal set aside the Appellate Controller’s order on the ground that the impugned transaction was not a “gift” at all. Bombay HC held that the impugned transaction was not without consideration and hence not a gift. Relevant observations from the HC ruling are as under:

The concept of gift is that it has to be without consideration whatsoever except the consideration of love and affection in certain cases. The moment it is demonstrated that there was some consideration for the transfer, the transaction will be anything but a gift. The consideration can be the settling of a future probable dispute or even getting an admission from the party which will preclude the raising of a dispute. In the instant case, the Tribunal had concluded that there was a certain amount of mutuality in the impugned transaction and that it was not without consideration, the consideration being to put the affairs beyond the pale of controversy by obtaining the deed of relinquishment and giving the sons funds so as to enable them to start their own business, keeping in view the circumstances of the case and the recitals contained in the two relinquishment deeds executed by the sons, the impugned transactions were not gifts.”

  •  Reference may be made to Madras HC ruling in the case of PCIT vs. Redington Ltd [2021] 430 ITR 298 dealing with a gift by a company to a step-down subsidiary the concept of gift has been explained by HC as under:

“40. As noticed above, the Tribunal in the impugned order from paragraphs 72 to 79 examined the aspect as to whether a company/corporate body can execute a valid gift and concluded that a company is a person both for the purposes of the TP Act and the Gift Tax Act, 1958 and can make a gift to another company which is valid in law and accepted the contention of the assessee that it was entitled to gift its shares in RG to RC. Having held so, the Tribunal failed to examine whether the ingredients of section 122 of the TP Act have been fulfilled to qualify as a valid gift. Section 122 of the TP Act defines “gift” to be a transfer of certain existing movable or immovable property made voluntarily and without consideration by one person called the donor to another called the donee and accepted by or on behalf of the donee. The essential elements of a gift are (i) absence of consideration; (ii) the donor; (iii) the donee; (iv) to be voluntary; (v) the subject matter; (vi) transfer; and (vii) the acceptance. The concept of gift is diametrically opposed to any person’s consideration or compensation. It cannot be disputed that there can be transactions that may not amount to a gift within the meaning of section 122 of the TP Act but would qualify as a gift for the purpose of levy of tax under the Gift Tax Act owing to the definition contained in section 2(iii) read with section 4 of the Gift Tax Act. Block Stone states that “gifts” are always gratuitous, grants or upon some consideration or equivalent. In several decisions, it has been held that for proving a document of the gift was executed with the free and voluntary consent of the donor, it must be proved that the physical act of signing the deed coincides with the mental act viz., the intention to execute the gift. The principles laid down in the Indian Contract Act relating to free consent would apply in determining whether the gift is voluntary.”

  •  Reference may be made to the recent ruling of Bombay HC in the case of Jai Trust vs. Union of India [Writ Petition No. 71 of 2016, order dated 8th March 2024]. In this case, the taxpayer gifted shares of the listed company to a private limited company and claimed exemption under section 47(iii) of ITA. There was a reassessment proceeding initiated against the taxpayer. The taxpayer challenged reassessment proceedings by filing a Writ Petition. Bombay HC held that (a) transfer of capital asset under a gift is not a transfer for the purpose of section 45 of ITA (b) reading of section 48 of ITA bears out that profits or gains can be measured only when the consideration is involved (c) section 50CA is not applicable as it was inserted w.e.f. 1st April 2017 and in any case, section 50CA applies only where consideration is received on transfer of capital asset being unquoted shares and does not apply when there is no consideration (d) section 50D is not applicable as it was inserted w.e.f. 1st April, 2013 and in any case, it applies only where consideration is received on the transfer of capital asset and does not apply when there is no consideration (e) A gift is commonly known as a voluntary transfer of property by one to another without any consideration. A gift does not require a consideration and if there is a consideration for the transaction, it is not a gift. In view of the above Bombay HC quashed the notice of reassessment. Relevant observations from the ruling are as under:

“18. Mr. Sharma’s reliance on Section 50CA of the Act in this regard has to be rejected because (a) Section 50CA of the Act was inserted with effect from 1st April, 2018 by the Finance Act, 2017 and (b) it applies to a capital asset being share of a company other than a quoted share (in this case shares transferred were quoted shares) and also applies only where the consideration received or accruing as a result of such transfer. Mr. Sharma’s reliance on Section 50D of the Act also has to be rejected because (a) it was inserted by the Finance Act, 2012 with effect from 1st April, 2013 and (b) there also the Section postulates receiving consideration and not a situation where admittedly no consideration has been received.

19. A gift is commonly known as a voluntary transfer of property by one to another without any consideration. A gift does not require a consideration and if there is a consideration for the transaction, it is not a gift. Since the reason to believe it is admitted that shares were transferred by the assessee to NCPL without consideration, certainly, it is a gift. In fact, it is not even the respondents’ case that is it not a gift. Mr. Sharma submitted, as an afterthought, that the assessee being a Trust it can be reasonably presumed that the transfer was for a consideration because anything a Trust does is for the benefit of its beneficiaries. It is not the case of the Revenue in the reasons to believe or in the order disposing objections or even in the affidavit in reply. Therefore, this submission of Mr. Sharma cannot be even considered. We cannot proceed on the hypothesis and deal with such a presumptuous argument. Moreover, if the transfer is not valid, the property still remains with the Trust and in such a situation, there can be no capital gain.”

  •  Reference may also be made to the AAR ruling in the case of Deere & Co., In re [2011] 337 ITR 277. In this case, the taxpayer company incorporated in the USA gifted the shares of the Indian company to the Singapore group company. The transaction was finished by way of a gift. The taxpayer company claimed that it was not liable to pay capital gains. AAR held that the taxpayer company was not liable to pay capital gains in view of the exemption under section 47(iii) of ITA. Relevant extracts from the ruling are as under:

“4. The learned counsel for the applicant on the other hand has argued that there is no element of love and affection attached to the gift. According to the ordinary meaning, “gift” means a thing given willingly to someone without payment. The learned counsel further brought to our notice the definition of “gift” given in section 122 of the Transfer Property Act 1882, “Gift” is the transfer of certain existing movable or immovable property made voluntarily and without consideration by one person called the donor to another called donee and accepted by or on behalf of the donee. The meaning of gift supra reflects no element of love and affection and therefore the contention of the Departmental representative in this regard is without substance. The gift of shares by the applicant to John Deere Asia (Singapore) is made without any consideration and therefore the transfer has to be held to be a gift.”

  •  The above rulings including SC rulings are an authority that the transaction of gift does not involve consideration. If a transaction involves consideration (whether direct or indirect), such cannot qualify as a gift. The absence of consideration is an essential characteristic of a valid gift.
  •  In the case where a corporate entity has made a valid gift, there is no involvement of consideration or the transaction can be said to be without consideration. In the absence of consideration, one of the essential elements for the computation of capital gains is not present and accordingly, there is no trigger of capital gains provision.

REFERENCE MAY BE MADE TO THE PROVISO TO ERSTWHILE SECTION 47(III) AND THE SIXTH PROVISO TO SECTION 48 OF ITA TO SUGGEST THAT ABSENT CONSIDERATION, THERE CANNOT BE AN EFFECTIVE CHARGE

  •  The erstwhile proviso to section 47(iii) of ITA provided that exemption under section 47(iii) of ITA shall not be available for transfer of capital asset by way of gift or irrevocable trust of capital asset being shares, debenture or warrants allotted under ESOP to employees. In order to back up the charge and deny exemption, a sixth proviso to section 48 of ITA was inserted to provide that market value as on the date of transfer of capital asset under a gift or irrevocable trust shall be considered as the full value of consideration.
  •  It may be noted that when the exemption was denied under section 47 of ITA, there was a backup provision under section 48 of ITA providing for deemed full value of consideration. In the present case, though the transfer under a gift or irrevocable trust by any person other than individual or HUF is not provided for exemption under section 47(iii), there is no provision providing for the full value of consideration. In the absence of full value of consideration, there is no effective charge under the capital gains chapter.

ABSENT CONSIDERATION, THERE IS NO RELEVANCE OF SECTIONS 50C, 50CA, AND SECTION 50D OF ITA

  • Section 50C of ITA provides that where the consideration received or accruing as a result of the transfer of capital asset being land or building is less than the value adopted or assessed or assessable for stamp duty purposes, the value considered for stamp duty purposes shall be deemed to be the full value of consideration. Section 50CA of ITA provides that where the consideration received or accruing as a result of the transfer of capital asset  being unquoted shares is less than Rule 11UAA value, such Rule 11UAA value shall be deemed to be the full value of consideration. Section 50D of ITA provides that where the consideration received or accruing as a result of the transfer of the capital asset is not ascertainable or cannot be determined, the fair market value of a capital asset on the date of  transfer shall be deemed to be the full value of consideration.
  •  The common thread that runs through sections 50C, 50CA, and 50D of ITA is accrual or receipt of consideration on the transfer of capital assets. In order to trigger these sections, it is the sine qua non that there shall be the presence of consideration. By definition, the transaction of a gift is without consideration, and accordingly, in the case of the transaction of a gift, there is no accrual or receipt of consideration. This proposition has been dealt with by Bombay HC ruling in the case of Jai Trust (supra) wherein HC observed that section 50CA and section 50D of ITA postulates receipt of consideration and in the case of gift transaction, there is no consideration involved.
  •  Accordingly, in absence of consideration, provisions of sections 50C, 50CA and 50D of ITA cannot be triggered.

THE ABSENCE OF AN EXEMPTION DOES NOT RESULT IN THE CREATION OF A CHARGE

  •  In order to bring the transaction within the tax net, the transaction shall be covered by the charging provision and shall be a backup computational provision. Where the transaction is not covered within the charging provision, the mere absence of exemption will not create an effective charge. In the case where the transaction is not covered by a charging provision and a specific exemption is provided, it may be construed as a draftsman’s anxiety to make the law clear beyond any doubt.
  •  In this regard, reference may be made to the SC ruling in the case of CIT vs. Madurai Mills Ltd [1973] 89 ITR 45. In this case, SC was concerned with capital gains liability in the hands of shareholders in case of liquidation of the company. It may be noted that SC held that in the absence of a charge under the India Income-tax Act, 1922, the absence of exemption does not result in the creation of a charge. Relevant extracts from the SC ruling are as under:

“If the language of sub-section (1) of section 12B of the Act is clear and does not warrant the inference that distribution of assets on liquidation of a company constitutes sale, transfer or exchange, the said transaction of distribution of assets would not, in our opinion, change its character and acquire the attributes of sale, transfer or exchange, because of the omission of a clarification in the first proviso to sub-section (1) of section 12B of the Act, even though such clarification was there in the third proviso of the section inserted by the earlier Act (Act 22 of 1947). It is well settled that considerations stemming from legislative history must not be allowed to override the plain words of a statute (see Maxwell on the Interpretation of Statutes, twelfth edition, page 65). A proviso cannot be construed as enlarging the scope of an enactment when it can be  fairly and properly construed without attributing  to it that effect. Further, if the language of the enacting part of the statute is plain and unambiguous and does not contain the provisions which are said to occur in it, one cannot derive those provisions by implication from a proviso (see page 217 of Crates on Statute Law, sixth edition)”

  •  Reference may also be made to the Privy Council1 ruling in the case of CIT vs. Shaw Wallace [AIR 1932 PC 138]. In this case, the taxpayer received compensation for cessation of the agency. Privy Council held that such an amount received cannot be considered as income of the taxpayer. Privy Council held that even where the amount received was covered by the exemption provision, such was never income of the taxpayer. Refer following extracts from the Privy Council ruling.

“Some reliance has been placed in argument upon Sec. 4(3)(v ) which appears to suggest that the word ‘income’ in this Act may have a wider significance than would ordinarily be attributed to it. The sub-section says that the Act ‘shall not apply to the following classes of income’ and in the category that follows, clause (v) runs: ‘Any capital sum received in commutation of the whole or a portion of a pension, or in the nature of consolidated compensation for death or injuries, or in payment of any insurance policy, or as the accumulated balance at the credit of subscriber or to any such Provident Fund.’ Their Lordships do not think that any of those sums, apart from their exemption, could be regarded in any scheme of taxation as income, and they think that the clause must be due to the over-anxiety of the draftsman to make this clear beyond the possibility of doubt. They cannot construe it as enlarging the word ‘income’ so as to include receipts of any kind which are not specially exempted”


1   Rulings rendered by Privy Council are binding on all Courts except SC – refer ShrinivasKrishnarao Kango vs Narayan Devji Kango and others [1954 AIR SC 379], Delhi Judicial Service Association v State of Gujarat [1991 AIR SC 2176].
  •  Reference may also be made to International Instruments (P) Ltd vs. CIT [1982] 133 ITR 283 (Karnataka) wherein the following observations are made:

“As observed by the Privy Council in CIT vs. Shaw Wallace & Co. AIR 1932 PC 138, just because an amount was exempted from tax under section 4(3) of the Indian Income-tax Act, 1922, it was not to be treated as income when such amount could not be regarded as income under any scheme of taxation and such exemptions only indicated the over anxiety of the draftsmen to place the matter beyond any possible controversy. [See also the Full Bench judgment of the Allahabad High Court in Rani AmritKunwar vs. CIT (supra)].

On the above reasoning, with which we respectfully agree, a receipt that is income does not cease to be income even if exempted from income tax, and a receipt that is not income does not become income just because it is included as one of the items exempted from income-tax”

  •  Accordingly, in the absence of a specific exemption provision, it may be incorrect to contend that there is a charge of capital gains income.

AUTHOR’S VIEW

Considering that (a) for creation of effective charge, all elements of computation provisions have to be present, (b) the transaction of gift does not involve any consideration, (c) absent consideration, there is no trigger of deemed consideration provisions under
ITA, (d) absence of exemption does not result in creation of charge, (e) absent consideration, there cannot be computation of capital gains income, in view of the author, the taxpayer stands on a firm footing to urge that there cannot be capital gains
income in the hands of corporate entity on gift of a capital asset.

However, it may be noted that where the transaction involves some direct or indirect consideration, the transaction may itself lose the status of a gift as it involves consideration. Consequently, it may be difficult to claim non-taxability. Further, once the transaction involves consideration, sections 50C, 50CA, and 50D
of ITA, which provide for deemed consideration, may also apply.

Interview – CA Rajeev Thakkar

“WHEN YOU ARE BUYING EQUITIES, HAVE THE BUSINESS OWNER’S MINDSET, RATHER THAN TRYING TO FLIP IT EVERY NOW AND THEN”

BCAS and the CA profession have completed their 75 years of existence. In order to commemorate this special occasion, the BCAJ brings a series of interviews with people of eminence from different walks of life, the distinct ones whom we can look up to, as professionals. Readers will have an opportunity to learn from their expertise and experience, as well as get inspired by their personal stories.

Here is the text (with reasonable edits to put it into a text format) of an interview with Rajeev Thakkar.

Rajeev Thakkar is the Chief Investment Officer & Director, PPFAS Asset Management Private Limited, the asset manager of PPFAS Mutual Fund. As of March 2024, the Company has an asset under management of over ₹64,000 crores.

Rajeev Thakkar possesses over 30 years of experience in various segments of the Capital Markets such as investment banking, corporate finance, securities broking and managing clients’ investments in equities. Rajeev strongly believes in the school of “value-investing” and is heavily influenced by Warren Buffett and Charlie Munger’s approach. His keen eye for ferreting out undervalued companies by employing a diligent and disciplined approach has been instrumental in the scheme’s stellar performance ever since he assumed the mantle.

He resists the temptation of entering speculative stocks during extremely bullish times as he believes that it is not appropriate to wager on clients’ funds and faith by chasing companies that one does not have any conviction in. He strongly believes that only stocks purchased at the right valuations will provide long-term returns and is unperturbed by short-term underperformance. He is a Chartered Accountant, Cost Accountant, CFA Charter holder, and a CFP Certificant.

In this interview, Rajeev Thakkar talks to BCAJ Editor MayurNayak, past editor Raman Jokhakar and Journal Committee member Preeti Cherian about his winning equation, investor behaviour, his advice to investors, company management, auditors, directors, gold as an asset class, de-dollarisation, speculation, the regulatory framework in India, great investor habits and routines and much more…

Q. (Mayur Nayak): Welcome, CA Rajeev Thakkar. On behalf of the Bombay Chartered Accountants’ Society and the Journal Committee of BCAS, I, together with CA Raman Jokhakar and CA Preeti Cherian, thank you for this opportunity to interact with you.

A. (Rajeev Thakkar): Thank you. I have not been part of the profession formally since 1994 when I moved to the financial markets, but my formative years were spent doing my CA articleship and my interactions with Chartered Accountants started since then.

Q. (Raman Jokhakar): Thank you, Rajeev. Morgan Housel has famously said that average returns for an above-average period equals extreme outperformance; he believes this is the most obvious secret in investing. What is your winning equation when you measure performance as a fund manager who is stepping into the shoes of the investors?

A. (Rajeev Thakkar): We studied this one formula in high school, which, unfortunately, a lot of people do not remember in their grown-up years; that formula is the compound interest formula, A = P (1 + R/N)nt; where “A” is the final amount, “P” is the principal amount, “R” is the annual interest rate (decimal), “n” is the number of times interest is compounded per year (12 for monthly) and “t” is the time in years.

If we look at the formula, there is only one term which is exponential in the formula, and that is, the number of years. Addition, multiplication move slowly, but the exponential term moves very rapidly after a certain period. So, if you invest long enough, the number of years “t” is a bigger factor driving the returns. Something which will give you 25–35 per cent for six months will not be that meaningful of a return driver as compared to something which will, let’s say, give you 15–16 per cent over 30–40 years. That is what he means — invest for an above-average period.
In our case, we do what is commonly referred to as ‘active investing’, where instead of putting all the client’s money into stocks which are part of the indices, we identify those companies (that) we believe will outperform the index, and we invest in them. Sometimes, we succeed in this, sometimes we don’t. Our journey has been satisfactory. On average, we have managed to do better; but again, more than the return, the longevity matters. I completely agree that one should look at long-term compounding; but, if in the process, you can do better than the index, you will be even more successful.

Q. (Mayur Nayak): When you talk about the long-term, what is the horizon you look at? Is it 5, 10 or 15 years?

A. (Rajeev Thakkar): Look at the behaviour of our family or our friends or even our behaviour. Typically, in an Indian household, jewellery is passed from one generation to another. We add to the existing jewellery stock; very rarely do people sell jewellery which has been inherited. People buy a home and stay in the same home for 20–30 years. Even if they change the home, they sell that and buy something even more expensive by, typically, putting in some more money. An employee joining the workforce at the age of, let’s say, 25, will regularly put money in the Employees Provident Fund for 35 years till retirement. We buy LIC policies for 20–30–40 years. Yet when it comes to equity investing, the moment we buy the stock, we put it in Google Finance, Yahoo Finance, Money Control, some app or the other, and the TV channels will show you tick-by-tick price data. There is this urge to do something — sell something, buy something else. And we do not have a long-term outlook for it.

At PPFAS, we look at equity as, ‘effectively owning a part of the business’ when we buy shares of the company. When you buy TCS shares, you are partnering with the House of Tata in providing IT services. When you buy Bharti Airtel shares, you are partnering with the company in providing telecom services. Now businesses go through their ups and downs in terms of demand cycles, competition, environment-related matters, etc. Sometimes, the market sentiment will cause share prices to go up and down. We have had long periods of time where equity did nothing; we have also had periods where equities gave supernormal returns — these returns have come only to those who have had the patience to hold through the long up-and-down cycles. The mistake that people make while driving their investment vehicle is that they only look in the rear-view mirror. If the past five years have been good, they will come and invest heavily. If the past five years were bad, they will withdraw or not add money, which is precisely the wrong way to look at it.

To answer the question, “How long is long-term?” you should look at it like you look at your Employees’ Provident Fund or your insurance policies. Equity is the longest asset class; so, when you buy equity, there is no maturity date. As all Chartered Accountants know, it is the permanent capital of the company. Now, on the other hand, a bond will have a maturity date. So, when you are buying equities, have the business owner’s mindset, rather than trying to flip it every now and then.

Q. (Raman Jokhakar): Managing risk is a key part of investing. Some say that even more important than return is the management of risk. What strategies do you employ to mitigate the risk of losses or the risk of permanent loss of capital during market crashes or economic downturns or, you know, black swan events like COVID, etc?

A. (Rajeev Thakkar): So, one thing which is not very widely appreciated about losses and risk is that people generally tend to equate the upside and downside in their minds. If you make 10 per cent and then, you lose 10 per cent, people think they are more or less quits. Well, let me give you some vivid examples.

If you lose 50 per cent, to come back to where you started, you do not need a plus 50 per cent, you need to double your money — you need plus 100 per cent returns. Say, from 100 you go down to 50. Now, from 50 to go back to 100, you require a 100 per cent return. Then again, if you fall from 100 to 25, that is minus 75 per cent; you need to take your money up by 4X to go from 25 to reach 100.

If your return in year 1 is 25, year 2 is 15 and year 3 is 20, you cannot add the three numbers and divide by three to get the average return — you need to multiply the returns. So, in a scenario, where returns are multiplicative, if any one number is 0–100% (investment goes to 0), you get checked out. And similarly, if any one number is a big negative, coming back to par becomes very, very difficult.

Permanent loss of capital needs to be distinguished from what Warren Buffett calls ‘quotationalloss’. After you buy your share, the price could either go up or down. It is almost a 50–50 per cent probability in the near term. Market prices keep bouncing around all the time, so the permanent loss of capital comes only when the mistake is so bad that chances of recovery are either zero or the time taken to recover will be so long that effectively all capital will be gone. This can happen in a situation where the company you buy shares in goes bankrupt. That is one very clear example of permanent loss of capital. This can also happen on account of fraud, excessive leverage or very, very severe business downturns.

If you invest in debt-free businesses or minimal debt or cash-rich companies where the management has a good track record over decades, the chances of fraud are less. That is one thing to look out for while managing risk; buy into businesses which are not that prone to disruption hits. If the business environment changes every six months, then what is a very successful business model today may not work in a year. So, buying into stable businesses helps.

The second reason for permanent loss of capital could be if you have severely overpaid — where the drawdowns are 80–90 per cent. This happened in the late 1990s with what was called New Age or New Tech businesses: technology, media, telecom or internet, communication, and entertainment — the ‘new economy stocks’ as they were called. Those fell significantly after the crash, and people took almost a decade to come back to par and, in some cases, the money was completely lost. Similarly, we saw a cycle in 2007 where people were valuing companies on potential land banks and how they could get monetised. If we avoid these mistakes, the other smaller mistakes get evened out. In a portfolio where let’s say, there are 20 stocks, 10 could do reasonably well, 5 could do exceptionally well, and the other 5 may not do well at all; so, on average, you tend to do reasonably ok.

So, one, guard against fraud, excessive leverage, or disruption, and two, avoid paying very, very excessive valuations to avoid permanent loss of capital.

Q. (Mayur Nayak): Very well answered. Just to take a cue from that, say in a case like Satyam, where there is a sudden or permanent loss, in that situation, how would you react because there is total uncertainty as to whether the company will revive? So, should one stop loss?

A. (Rajeev Thakkar): Let’s say you have invested in 20 businesses, and you have, on average, 5 per cent in each business. Any one stock going to 0 will affect your portfolio value by 5 per cent. 100 will go to 95 if a particular stock goes to 0. Now if the stock market, on average, is giving you a 12–15 per cent return, then you would have to wait for the remaining stocks to give that return to make up for the loss (that) you have suffered. What to do in a specific scenario requires (1) knowledge, (2) skill set, (3) temperament and (4) a certain amount of luck.

There have been people who have invested in downturns where they saw that whatever has happened is not fatal for the company, and they could make huge returns from buying into such a scenario. Then again, there have been scenarios where one should have sold off in that environment. Warren Buffett famously put 40 per cent of his partnership assets into American Express after a scandal broke out, and that worked out very well for him. In India, we have had banks which have gone completely bankrupt, like the Global Trust Bank, or something like Jet Airways. If something is going bankrupt, you will lose all your money. So, after a crisis hits, should you exit that stock or should one buy more? The answer depends on your understanding of the balance sheet, your understanding of the business and how you see the future playing out.

Q. (Mayur Nayak): I think you gave a very important answer, that one should diversify their portfolio as much as possible. To quote Morgan Housel again, “Things that never happened before happen all the time.” Can you share your experience of navigating previous market crises such as the 2008 financial crisis and COVID?

A. (Rajeev Thakkar): Both were very, very interesting in terms of that they happened during my career as a professional investment manager. An individual can choose to do what he or she wants. But a professional investment manager is answerable to a whole set of people. Luckily, we were able to navigate reasonably well during both these crises. COVID was different from the global financial crisis; the proximate causes were different. However, one common theme across both crises was that stock prices came off significantly. So, in COVID, at the lows, you saw something like a 40 per cent drop from peak levels; during the global financial crisis, it was a 60 per cent drop — this is at the index level. Individual stocks would have fallen even more.

The common theme across both these crises is that initially, a few years were / will be difficult for the business environment, economic growth could be slow and there could be losses due to hitherto unseen situations. So, in the case of the virus outbreak in China, the hospitality sector was badly affected, airlines could not operate and hotels could not operate. Or for example, the subprime crisis in the US affected the inter-bank liquidity in India. One does not know what impacts will be there, and what 2nd / 3rd / 4th order effects will be there in a crisis kind of a situation.

My advice is to firstly, go through your existing list of companies where you have invested. The key criteria to look at is, will this company survive over the next three to four years on its own without government support, without anything else? If the answer is yes, you can hold. If the company has too much leverage, if interest payments and principal payments are due, if they are going to be facing issues servicing their loans, then their assets will most likely get sold off, and as a shareholder, you will end up with nothing.

Secondly, let’s say, the next three years’ earnings are 0, but if the stock price is down 50 per cent, in most cases, it results in a ‘buy’ kind of scenario, as long as the business is going to survive because, in the life of a business, three years is a relatively short period. The inherent assets do not go away; the inherent business value does not go away. From the intrinsic value perspective, it does not have that big of an impact, maybe a 10–15–20 per cent value reduction; if the discount you are getting is much larger, it mostly results in a ‘buy’ kind of scenario.

Q. (Raman Jokhakar): In the coming years, the crisis may be different, or may be of a mixed nature. For example, we had this pandemic, a financial crisis. With impending war and the volatile geopolitical situations in some areas, all these could get enmeshed and create a new form of crisis. How do you see such kind of crisis affecting us as investors?

A. (Rajeev Thakkar): Sure. So, several things could go wrong: you could have a meteor strike the earth, you could have a nuclear war break out, you could have cyber-attacks and/or ransomware attacks, you could have political instability or you could have a civil war kind of situation. Various things can happen in the realm of possibilities. If you are investing in equities, there must be a certain amount of optimism that the world will continue to do well. Otherwise, one gets into too much of a defensive nature. We jokingly tell people that if something strikes the earth and all the life as we know it is wiped out, will it then matter whether you invested in gold or bonds or equities? No one will be around to see the asset values decimate.

Coming to asset allocation, how much emergency money / liquid money to keep, how much to put in gold, how much to put in asset classes like REITS (Real Estate Investment Trusts) for regular cash flow, how much to put in growth assets like equity all depends on personal circumstances — personal risk tolerances, age, financial goals, all these things. But once you decide on asset allocation, it helps to tune out worrying about all the things that could go wrong. Occasionally, things will go wrong. But on average, things even out. If people were equity investors in pre-Nazi Germany, most likely, their portfolios would have been wiped out. Or if someone was an equity investor in China or Russia before communism, their holdings would be zero, but so would be everything else, including their large homes, which would be taken over by the state. There are some things you cannot do anything about, except for maybe global diversification; at the end of the day, you should not worry too much about those things.

Q. (Raman Jokhakar): How do you manage customer / investor expectations and show it through your performance, because people do expect some kind of outcome from their investment?

A. (Rajeev Thakkar): We see a very strange kind of investor behaviour. At one end, investors will be very, very comfortable buying insurance plus mixed investment products, where they will get maybe 5–6 per cent return over the long-term, or they will be happy with their bank fixed deposit rates; but when it comes to equity, immediately the expectations go to 20–25–30–35 per cent, the higher, the better. Our job is to communicate to the investors that equity in the short run is a risky asset class. There are periods where returns can be negative. There can be long periods where returns are subdued, and only if you hold it through a longer term, can you expect moderately good returns — ‘moderately good’ meaning something better than fixed income securities and better than inflation. We portray the different kinds of rolling returns that have been achieved over the index level in the past, so that gives some grounding to our communication. We try and explain both these factors: (1) the requirement for long-term investing and (2) we tone down the return expectations whenever we can.

Q. (Mayur Nayak): That takes me to the next important aspect from the investors’ perspective — re-balancing and re-checking the portfolio. What should an investor consider as triggers to undertake this? And the period to review the portfolio — whether it is under a mutual fund or a mix of equity, debt and mutual fund and other asset classes?

A. (Rajeev Thakkar): People have different approaches to this aspect. Some people typically think of re-balancing as a tactical move, and many times, they mix it with upcoming events or their outlook on what is going to happen. I think this is where people go significantly wrong. To give you an example, people try to bet on political outcomes, and they invest accordingly, and invariably get it wrong. They end up losing not only in India but globally as well. People read the Brexit Referendum wrong, they read the Trump and Clinton elections wrong and they read the 2004 Indian elections wrong. This year, on the exit poll day, the markets were significantly up; on result day, markets were down. Again, we are up to all-time highs. People tend to swing between greed and fear and end up losing a lot of money — that is not the reason to re-balance.

The other reason for re-balancing could be because of their asset allocation. Let us say, someone’s asset allocation is 60 per cent equity, 40 per cent bonds. Now if equity does very well, the temptation would be to sell equity and buy more bonds. One could do that if that is the appetite. People should follow a disciplined approach and maybe review it once a year. Re-balancing once a year is reasonably ok. In my opinion, typically, people fall into two categories: either people are saving for retirement or people are consuming in retirement. If you are a saver, my recommendation is rather than selling one asset class and buying the other asset class, you can divert your incremental savings to the asset class which is underweighted. For example, say, the allocation is 70:30 between equity and bonds, and you put the year’s savings only in bonds so  that the weightage of bonds starts going up. Each time you switch between asset classes, that is tax-inefficient; you end up paying tax without benefiting from that cash flow.

Similarly, if you are in retirement and you want to re-balance, withdraw from the asset class which is heavier than your target weight rather than trying to sell one and buying the other frequently. Buying–selling creates unnecessary transactions. If it is too lopsided, then sure, one can sell one (asset) and buy the other (asset).

Q. (Raman Jokhakar): Today we are in a slightly tricky situation – we are facing high interest rates and markets also keep going up, not only in India but also, say, in the US. What do you read into this? What are the causes and consequences? How should investors look at this? How do you look at it?

A. (Rajeev Thakkar): All Chartered Accountants know that the technically correct formula to value any financial asset is the discounted cash flow of any asset, be it a bond, aircraft lease, equity shares, real estate, etc. This formula helps you decide whether the asset is worth buying or not. One of the factors which affect this discounted cash flow is the discount rate you use. Logically, at higher interest rates, the discounting rate would be higher and at lower rates, the discounting rate is lower. So, when rates go down, the intrinsic value goes up.

The linkage between the federal funds rate, RBI repo rate to bonds has been very clearly established. In the case of government bonds, the cash flow is very certain — you know the exact amount you will get and the exact date on which you will get it. In equity shares, neither is the amount nor is the date certain. So, while interest rates do factor in terms of equity valuations, the linkage is not that very strong. The movement of stock prices is better determined by the growth prospects that people see in cash flows and the business environment. This partly explains the fact you mentioned — when interest rates were going up, we saw stock prices also go up. However, when interest rates come down, stock prices may or may not go up — as the linkage is not that very strong, rather it is a weak linkage.

Today, in terms of the environment, we have factored in a lot of positives that are there in India and globally — so, valuations are looking stretched. In one-off companies and sectors, you find opportunities. But if one looks at the overall market levels, I believe it is time to be cautious in equities.

Q. (Raman Jokhakar): Picking information at the right time and analysing it rightly is critical to investing. But like we CAs use the word ‘professional judgment’, how do you stay informed of what action to take? There is way too much information from various sources, such as regulatory changes, market developments, geopolitical risks, etc. How do you sift through all this information to arrive at your investment decision?

A. (Rajeev Thakkar): Firstly, when you are looking at a company, it helps to look at the market cap and  total profits, rather than other parameters. Let’s assume you have enough money in your bank account to write a cheque and buy the entire company at the current market price. Once you buy it, you are the business owner and now the stock ceases to be listed on the exchange. Would you be happy being a business owner at the current offered price? That kind of thinking really clarifies matters a lot.

I believe most of your readers / listeners are Chartered Accountants. Let’s say you are in practice and some other Chartered Accountant is retiring and offers their professional practice to you for a fee. Would you buy that professional practice at the price offered, basis the same factors you would consider to evaluate a listed business? Chartered Accountants in practice would know what a professional practice is. Similarly, you should be aware of what the business of the listed company is. If you are analysing a telecom company, but you do not know anything about telecom, it is difficult to arrive at a business value. Each analyst and each manager is familiar with a certain number of sectors such that they can arrive at a reasonable judgement; do not stray beyond that, that is my first recommendation; if you do stray, then the chances of making a mistake go up.

You mentioned regulatory changes and other changes too. Typically, the chances of making a mistake in such businesses (where regulations change very frequently) are very high. Jeff Bezos once famously said that he frequently gets asked, “What’s going to change in the next 10 years?” And that he rarely gets asked the question, “What’s not going to change in the next 10 years?” The second question is the more important of the two because one can build a business strategy around the things that are stable in time. In the retail business, customers will always want lower prices, faster delivery and bigger selection. It is impossible to imagine a future 10 years from now when a customer will come up and ask for higher prices, slower deliveries or lesser selection. When one has something that one knows is true, even over the long term, one can afford to put a lot of energy into it.

Similarly, as investors, we need to focus on businesses which will look largely similar 5, 10 or 15 years from now. The basic needs of humans — buying consumer goods, soaps, shampoos, biscuits, basic banking, basic insurance — all these have not changed too much. Whereas if you are in some niche technology space or some biotech space where some regulatory approval could either come or not come, then your entire valuation hinges on that one event happening or not happening; that’s when things become very difficult. Stick to things that you understand and things that are relatively slow-moving. Of course, changes are there everywhere. Even in consumer goods, for example, Gillette which offers shaving products faced competition from a direct-to-consumer brand in the US-based Dollar Shave Club. Be on top of the change; focus on things that are slow moving and then take your time. Opportunities will come your way.

Again, in the late 1990s, all tech companies were overvalued. So, if you bought Infosys or Wipro in the late 1990s, you would have lost money or you would have not broken even for seven to eight years. Ironically, after seven years, if in 2007 you bought these tech companies, you would have done well despite the global financial crisis. So, at what valuation you buy matters, apart from all your business analysis, quality checks and all that and much more. Many times, things are obvious. It’s just that you need patience to wait for the right opportunity to come your way and when it does, you should have the courage to act.

Q. (Mayur Nayak): So, Rajeev, you made a very profound statement that one should focus on things that are not going to change. And one of the things which people expect to continue is the governance structure of the investing company. Broadly speaking, what is your broad governance evaluation mechanism?

A. (Rajeev Thakkar): I think more than the technical aspects, past behaviour matters. Sometimes people try to use too much of a checklist kind of approach: How many board meetings did this director attend / not attend? How many other boards is this director present on? I agree there is some importance in that, but are these the people running the company? Are they fair to the minority shareholders or not? Do they have a personal interest in the well-being of the company? Let’s say the promoter group has just a 3 per cent to 4 per cent stake in the company. Then they are not going to be so bothered about minority shareholders. They may be interested in building their empire or paying themselves excessive remuneration. So, essentially, are they being fair to the minority shareholders? Do they have the competence to run the business? Are they energetic? All these things matter.

Seen in the photo from left to right: CA Raman Jokhakar, CA Rajeev Thakkar, Dr CA Mayur Nayak and CA Preeti Cherian

Warren Buffett listed three things. Firstly, you want integrity. Without integrity, nothing will work, no matter how good the business is. Secondly, you want competence. Someone may have integrity but does not know how to run the business; then it will not work out. Thirdly, you want energy. You want commitment in terms of time and effort. If someone has integrity and competence but spends all the time on the golf course, then again, it won’t work. So, you need a combination of these three; but largely, you need integrity and competence.

Q. (Mayur Nayak): Excellent answer! Moving on, how do you see the role of auditors as one of the lines of defence? There are many auditors who have been involved in fraud across the world. How do you see the role of auditors in this governance structure?

A. (Rajeev Thakkar): As investors, we have access to the annual accounts where the auditor puts theirs and the firm’s names behind the assurance that is being given. And that matters a lot. While studying auditing, we were told that we are watchdogs and not bloodhounds. So, if the fraud is too convoluted, there is a limitation on what the auditor can do and cannot do.

The one interesting change in recent times has been in the format of the audit reports. Earlier, you just stated whether these statements were true and fair. Now you have to make additional qualitative disclosures. So, when you read key audit matters and things like that, as an investor, you can decide that this business is too complicated. Then no matter what the published statements say, if there are these significant uncertainties, maybe it’s better to stay away from the company.

Let’s say, one company has a simple standalone balance sheet in India — big promoter stake, long track record, understandable business, not too many issues in terms of inventory valuation, depreciation estimate, impairment, etc., — you can go with the financial statements and invest in it. Now, let’s say, there is another company with 200 subsidiaries in multiple geographies, 20 acquisitions, a huge amount of goodwill lying on the balance sheet and huge paragraphs upon paragraphs of key audit matters. Now in such a case, the reported financials are just these numbers, meaning you can’t nail them down with any precision. Again, if the nature of business is such that it involves a lot of estimates, what is the chance of completing these projects? In the famous case of Enron, the whole structure was so complicated that people could not understand what was going on inside. It’s better to avoid such companies, I think.

When you look at the audit report, irrespective of who the auditor is, the description generally gives you enough information as to what to stay away from. And interestingly, there is a lot of data disclosure these days, apart from whatever is there in the auditor report. There are a lot of data points which are put out by the government and regulatory authorities; there are subscriptions that investors can take and look at. For example, you can do a case search on all the litigations where the company is a party either as a plaintiff or as a respondent, you can look at whether they are filing GST returns on time or not, whether they are paying PF dues on time or not, how many employees do they have, so on so forth; various checks can be done in that manner.

Q. (Mayur Nayak): Today, auditors are regarded as conscience-keepers for the stakeholders. Do you believe that auditors have discharged their duties ably or have they failed in some areas? What more can be done by various regulatory authorities like NFRA and ICAI to make the system more robust?

A. (Rajeev Thakkar): While I am not part of the audit profession as such, I regard myself as a little bit of both an insider and an outsider. As someone with a Chartered Accountancy qualification but one who is a consumer of the accounts rather than someone who writes an audit opinion, I think we are expecting far too much from auditors. Even the way the financials are reported these days — I am slightly old school in terms of preference — things such as historical cost accounting, the adjustments would be done by the end investor or the users of the financial reports. Nowadays, with this fair value concept, making comparisons across time has become difficult because earlier statements would be under one accounting regime and the later statements are under a different accounting regime. So, in our mind, we must redo the numbers and try and compare again. It is not so much of a challenge in the kind of businesses that we invest in because they are simpler businesses, and we don’t place too much importance on a particular quarter’s result or a particular year’s result — when you look at it over 5 years, 10 years, these things even out. So, it is not so much of a hassle.

Q. (Mayur Nayak): Do you use any risk management tools or instruments to hedge against potential losses? Anything from the AI space?

A. (Rajeev Thakkar): Ask the saying goes, artificial intelligence has not prevented natural stupidity. The market cycles are still what they are. If you look at the US markets, for example, you have these meme stocks where the companies are almost bankrupt but because some people are pumping them up on social media, the stock price keeps going up. And then when it goes up very, very dramatically, the company says, oh, this is a golden opportunity, let’s issue more shares and raise actual cash, and then the stock price collapses, and the capital gets misallocated because the business is inherently bad.

Most of the work we do is old school. AI helps in terms of doing certain activities to speed up things. For example, if you want AI to go through all the conference call transcripts and go to a particular term which was used, let’s say, ‘cloud computing’, then you could do that. You could use AI to scan social media posts for a new car brand that has been launched and do sentiment analysis of the reviews — positive or negative. Those kinds of things could be done. You could use AI to summarise stuff but do not outsource the decision-making to AI. We do use things like derivatives for hedging and so on, but these are firstly not for speculation at all. My advice to the investor, especially the retail investor, is to stay completely away. We are the counterparty to them — whenever the retail investor does something foolish, we benefit from their actions.

A matchbox can be used both to light a fire in the kitchen and to burn down the building. Let me give you a simple example. A biscuit company will want to buy wheat, and a farmer will want to sell it. Now, the farmer may not want to take the price risk since the crop is standing; he may want to lock into a fixed price. On the other hand, the biscuit manufacturer may want to lock in the purchase price. So, they may partly enter a wheat futures contract and de-risk both their operations — this is a case of hedging. Now, there could be a commodity speculator who wants to speculate on the price of wheat. He will pay ₹10 as margin and take a position of 100 or 200 and when the price moves, he either makes a lot of money or loses the entire capital. So, it depends on what a person is using those instruments for.

Q. (Raman Jokhakar): Can you walk us through your decision-making process? This is surely the most important work that people count on you for. How do you decide when to buy, and of course, to sell?

A. (Rajeev Thakkar): Before deciding to buy a particular company or not a few things need to be checked out. First is the promoter quality that we spoke about, the integrity, competence and energy of the promoter, and the manager group. Second are good industry characteristics. Now the same business house may be very successful in running an IT services company and yet may fail very miserably in running an airline company because the businesses are different.

Today, anyone can walk into a bank and make a fixed deposit at 7.5 per cent p.a. If the business is going to generate a return on capital employed of 6 per cent p.a., why would you even invest in such a business? There are certain industries and businesses we rule out; if they do not have a track record of a decent return on capital employed, we simply do not invest in them. Third, we discussed leverage or borrowings. Borrowings increase the riskiness of our business. There are certain exceptions — utilities and banks typically are in the business of borrowing money but otherwise we stay away from leveraged businesses. The business should be understandable — if it’s a biotech company dependent on one approval coming for a particular medicine, I’m not competent to judge that company. It should be a business that we can understand. After all these criteria are met, I want a valuation that is reasonable. This is the decision-making process for a company per se.

We have a team of analysts covering different sectors. They track all the companies under their coverage on a regular basis. Periodically, an opportunity comes, and they pitch it to the fund management team, the investment team. How much to buy depends on the upper limits at the regulation level. We cannot own more than 10 per cent of a company across schemes. So, if the company has an outstanding paid-up capital of 100 shares, we cannot own more than 10 shares in the company across all our schemes. This is the first restriction. Also, as a per cent of our assets, we cannot own more than 10 per cent in a company. The company may be very large, let’s say, TCS, I cannot put 20 per cent of my clients’ money in TCS; I am restricted to 10 per cent. So, this is the second restriction. We also do not want to overextend in a particular sector; so, there are sectoral limits in place.

The weightage also depends on the relative attractiveness of different things. If I have five equally good opportunities, then it would be spread over all five. Of these five, if there are three better opportunities, then the weightage would be slightly higher in those three. Of some of the stocks that we currently own, if we get fresh client money, we would buy more of those companies if they are still attractively valued. If there is redemption, obviously we will sell to pay money to the unit holders.

Another reason to sell is when either the promoter and / or management integrity comes into question. Then the exit is relatively quick. If the business worsens significantly and that too on a permanent basis, then the exit is also very quick. Further, if the valuation keeps going up, we generally trim the position over a period. Then it is not a one-shot exit because there is no precise answer as to when something is overvalued; we would end up reducing the weight over a period.

Q. (Raman Jokhakar): These days, when money sort of keeps getting pumped in, with everyone investing in the market through mutual funds, what happens when there is so much inflow?

A. (Rajeev Thakkar): We are clear that we will not buy something which is overvalued just because money is coming in. The money will go to money market instruments which, in the current environment, give around 7.5 per cent p.a. Just because inflows are coming, we will not buy just anything.

Q. (Mayur Nayak): Investing in US securities – PPFAS MF’s well-acclaimed Flexi Cap Fund has exposure to US equity as well. What has been the experience of your fund to US exposure?

A. (Rajeev Thakkar): I’ll split the question into two parts. One is only currency and the second is investing abroad, especially in US markets.

One interesting thing about US markets is the opportunity to invest in larger companies — when you are buying into those larger companies, you are participating in the world economy. These companies don’t just operate in the US, they have global operations. Look at Microsoft, Amazon, Google and Meta (earlier called Facebook), these operate globally. In India, when people buy a new cell phone, among the first apps that they download are WhatsApp, YouTube, Google, Amazon, and things like that. So, when you are buying into US companies, you are buying their Asia business, you are buying their European business, their North American business, their South American business — everything comes to you together.

We do not have any view on the US$ as such. We are saying these are businesses on the right side of the business trends that are there — the business trends being the shift from traditional advertising to digital advertising, the shift from on-premises computing to cloud computing, from linear TV to streaming services like Amazon Prime Video or YouTube or Netflix, shift towards AI where again these companies are at the forefront – so these businesses are growing in terms of revenue now.

The US$ could weaken against other currencies, sometimes it could strengthen, which is ok. We are partnering in that business which is global. When we buy into a global business, what this does is that the India-specific ups and downs get muted on the portfolio level. Let’s say, there is a surprise demonetisation in India, there’s uncertainty around GST introduction or there’s border tension with China. All these things get muted in the portfolio — both positive and negative. Like, we had a surprise tax cut, Indian stocks went up, and global stocks obviously did not follow — so, the journey for the investors is smoother to that extent. Also, some opportunities are not available in India. We have a good corporate sector across various industry segments, but some segments are missing. For example, we do not have big EV players. So, if you want a very strong EV player, you must either buy something like a Tesla or BYD globally. If you want device manufacturers, you want to buy Apple or Samsung globally. Look at software and operating systems, we do not have the equivalent of Microsoft kind of companies in India, Google kind of companies in India or innovator pharma companies. Most of our companies are generic companies. A Johnson & Johnson kind of company is not there in India. So, you must look at overseas investing.

I do not have a view on currency; whatever the currency, if the business is valuable, people will pay for that business and the companies will earn a profit. About the central bank’s de-dollarising — clearly, I think the West has overplayed its hand in the Russia–Ukraine war. If a country has balances with you and you say, because I don’t politically agree with you, I’ll freeze or seize your assets, then people will move away. Even people who are not directly involved will say who knows if 5 years, 10 years from now I could be in a similar situation, I don’t want to be taking that risk now. Recently, we have had India bringing back gold to our shores; why keep our gold in foreign countries? Central banks have been buying gold as opposed to US treasury securities. I think that trend could continue. People could create strategic reserves of oil, industrial metals and rare earths, rather than just keep assets in the reserves, in paper money. Then it does not matter what currency you use as a medium of exchange. You could continue to use US$ because it is a temporary thing. If the balance is not too much, you could use $, €, ¥ or whatever.

Q. (Mayur Nayak): How do you see gold as an asset class? Because today we find both equity and gold going up seamlessly, silver is also going up. How do you look at them as an asset class?

A. (Rajeev Thakkar): Historically, gold has been able to protect purchasing power reasonably well, especially in India, against rupee depreciation or inflation and things like that. But it’s not my favourite asset class. Let’s say, you buy 10 grams of gold. Those 10 grams of gold after 10 years will remain 10 grams of gold. Instead of that, if you buy a business making cars, tractors or manufacturing mobile phones, they could set up new factories, increase turnover and increase profits. It’s productive — putting money in equities or lending money to businesses to generate employment. So as a country, it would be better if we put money in productive assets rather than buying metal, which will go into lockers.

Q. (Raman Jokhakar): There are alternative or competitive investment philosophies which state that the word “long-term” is like a cushion because, in the long term, everything anyways goes up. Instead, they propose to see the long-term view but also try and make money with a higher turnover of their holdings by calling it as being more dynamic.

A. (Rajeev Thakkar): Firstly, let us distinguish between two things — and I am not passing any moral judgment here — let us distinguish between investing and speculation. Let us say all of us sitting in this room took out a pack of cards and said let’s gamble, right? Can all of us be profitable at the end of the session? No. So if you win, I would have lost money to you. When we add up all the winnings and losses, the total will be zero, right? This is what is called a zero-sum game. In the market, speculation is a zero-sum game minus taxes minus brokerage. It’s a negative sum game; it doesn’t mean everyone will lose money. In fact, some people are very, very successful at this — case in point, Jim Simons, founder of the quant fund, Renaissance Technologies in the West. The fund has earned annual returns of around 60 per cent before fees and has one of the best track records. Overall, it adds nothing to the marketplace — there would be counter parties who would have lost money to that extent.

In investing, if all of us put money and, let’s say, start a restaurant and if that restaurant does well, can all of us make a profit? The answer is yes, because we are partners, and the business is doing well — that is investing — we are in the investing camp. Does it mean that you should sell businesses which are not doing well and buy more of things which are doing well? Periodically, you should eliminate companies that are deteriorating and put money to better use. But this continuous need to try and find the next big theme that will work well goes into the realm of speculation. Some people are successful at that. That is not our style. We are in the investing space where the management quality, the balance sheet quality and understanding the business and values are all that matters. Renaissance Technologies that I spoke about? They did not even know what the companies were doing or what the tickers were doing for them. It was a symbol and price. They would analyse price, volume, data and some other indicators and they would keep buying and selling all the time. They did not care about related party transactions, whether it was a qualified annual report or a clean audit report.

Q. (Raman Jokhakar): SEBI has been regulating the mutual fund industry now for almost 30 years. What do you have to tell mutual fund investors about the regulatory protection they have today compared to earlier?

A. (Rajeev Thakkar): I think with each passing day, investor protection gets stronger, and today, if you ask people working in the field, they sometimes feel, oh, is this necessary? We are already so well-regulated. So, of course, anyone in the industry will keep complaining all the time. But, net-net, everything that is required has been done. We are having this conversation after market hours because, during market hours, there are restrictions on what we can speak about, as while trades are going on, the information should not go out. Everything is audio recorded; there are video cameras in the dealing room recording people’s actions. All the securities are held with the custodian bank, so the fund house does not handle the pay-in / pay-out of the securities. There’s a panel of brokers. There are mutual fund custodians. There are registrar and transfer agent companies who provide services to investors on behalf of mutual fund houses. Portfolio disclosures are very detailed. The expenses that the managers can charge the investors are very tightly regulated and are brought down all the time. It is a phenomenal activity where the interest of the unit holder is kept paramount; the entire activity is overseen by a trustee company where two-thirds of the directors are independent — these are people not associated with the company.

So, a lot of measures have been taken, which is seen in the results. Anyone can just look at the number of investors flocking into mutual funds and the size of the assets. People, in this day of social media, immediately turn against you if the experience has not been good. The experience of the people who have been investing with us for a while has been good, and that strong word-of-mouth is helping — we have now reached roughly 4.60 crore unique investors in mutual funds. Till very recently, it used to be less than 2 crores; so, the numbers are growing and more people are coming in.

The one thing that SEBI cannot do anything about to protect investors is the tendency of the investors to invest by looking at returns from the recent past. One thing I think as an industry we could do better is this practice of launching thematic funds. In the late 1990s, mutual funds launched tech funds. In 2007, they launched real estate and infra funds. These are not great instruments for retail investors. Diversified equity funds are a good product. Diversified equity funds, index funds, fixed-income security funds — these are hybrid funds. These are good categories. In very niche industry-specific funds, typically, the end investor sometimes ends up getting a bad experience, so I think that is something that we could collectively do better by not launching thematic and sectoral funds, but otherwise, it is a very well-regulated product, and people are getting a good experience.

Q. (Raman Jokhakar): Compared to markets outside India, in your experience, do you feel there is something that could fall through the cracks as it is not being done and is not yet happening?

A. (Rajeev Thakkar): I think we are far ahead of other markets. Some of the things we have are not prevalent in other markets; for example, on boarding customers — typically, it is completely digitalised and centralised; once you have done a KYC, you can invest in any of the funds. Partly, the pain point right now is the frequent changes in the way KYC is done. Hopefully, we will resolve this very soon. I do not think too much is left now to be done, but otherwise what happens is someone who has done KYC six or twelve months back gets these SMS notifications saying to do this one more thing, else they will not be able to do XYZ, so that has caused some anxiety, but I think that will get resolved soon.

So, again, just to put things in perspective, globally, it’s not as easy, because here we have Aadhaar, mobile linkage, DigiLocker – all these things are seamless here. So, although there are some pain points, we are still better off than the rest of the world.

Q. (Mayur Nayak): We would like to now ask a few quick questions: if you had to list out three worst investor behaviours, what would they be?

A. (Rajeev Thakkar): Falling prey to greed and fear, panicking when markets are crashing and just rushing in when your neighbour is making a lot of money — that is one big mistake. The second big mistake is that people invest in fixed-income products and do not allocate enough to equities. Indians, in general, love physical assets like gold or bank fixed deposits and small savings instruments, but not equity. Another is looking at the rear-view mirror or as it is called, a sunk cost fallacy. Say, you have bought something at 100 and it’s fallen to 50, you know it is going to 0, but still, you do not get the courage to exit at 50 because you think it should go up to 200 for you to exit.

Q. (Raman Jokhakar): What are the great habits and routines of investors, meaning what should they cultivate?

A. (Rajeev Thakkar): I think curiosity is right up there — one must be a constant learning machine. Read all the time, talk to industry people as to what are the drivers of their business, what are the developments happening. Today, the challenge is not access to information; today, the challenge is filtering information. So, how to filter out the noise? How to filter out the useless stuff? Do focused work on what is important.

Q. (Mayur Nayak): Which are your all-time top five books or courses on investing that you would recommend to investors? Also, any blogs that you follow particularly?

A. (Rajeev Thakkar): My vote goes to some accessible writing where one doesn’t need (to have) too much of a background. I believe Peter Lynch’s books are accessible in that sense — One Up on Wall Street and Beating the Street. Peter Lynch is the famous mutual fund manager of Fidelity Investments in the US, where he has a reasonably long track record.

Warren Buffett’s open letters to Berkshire Hathaway shareholders and the videos which are on CNBC’s website are easily accessible to all — these are very, very interesting. Unfortunately, he hasn’t written a book himself. But there are books written on him, on his investing style, so you could pick up one of those, apart from the letters – Buffett:The Making of an American Capitalist is one such book.

For understanding the qualitative aspects, you could read Common Stocks and Uncommon Profits by Philip Fisher where he looks at buying quality companies for a very long period. Then there are a lot of books on behavioural finance. Our company’s founder, Parag Parikh, has authored two books; look up those. One is Value Investing and Behavioural Finance and the other is Stocks to Riches. You mentioned Morgan Housel. His blog and his books are also interesting.

Q. (Mayur Nayak): One more personal question. How do you relax and unwind?

A. (Rajeev Thakkar): So, the organisation has been good in the sense that culturally, we have never subscribed to working long hours or working weekends and things like that. Typically, once we leave the office, we leave work behind in the office. Spending time with the family, listening to music, watching some content on streaming services or reading a book — that is what I like to do.

Q. (Mayur Nayak): Any favourite non-investing or non-fiction books you would want to recommend?

A. (Rajeev Thakkar):Deep Work: Rules for Focused Success in a Distracted World is something I would highly recommend. The 7 Habits of Highly Effective People is again a must-read.

Q. (Mayur Nayak): If you were to write a book, what would be the title?

A. (Rajeev Thakkar): I am not someone who will give something very, very original. In that sense, it would be more on the lived experience part of my journey in the investment process, but it would be something like experiential investing. Charlie Munger was a big fan of vicarious learning. So, instead of making the mistakes yourself, learn from someone else’s mistakes or learn from other people’s experiences.

Q. (Mayur Nayak): Is there any last advice you would like to give to our readers or investors?

A. (Rajeev Thakkar): I think people spend far too much time picking individual stocks and individual mutual fund schemes, tracking it all the time, and spend very little time in terms of the basic asset allocation. Whether you bought company A or company B will have less of an impact on your personal finances than how much money you put in equity versus bonds. People will put maybe 5 per cent of their net worth in equities and then expect that 5 per cent to make them billionaires; it doesn’t work that way. Having a meaningful allocation to a diversified portfolio and holding it for the long term is what will create wealth.

Q. (Preeti Cherian): Mr Thakkar, when I look at you, there’s a Zen-like quality around you. So, my question to you is, does anything ruffle you?

A. (Rajeev Thakkar): Do things upset me? Of course, they do. Things upset any human being. It is not that there is a global financial crisis, but no impact; there is COVID, but no impact. Obviously, there are concerns and there is anxiety. It is not just about markets going up or down. During COVID, it was personal health, being locked up at a place, not even being able to go out for a walk in the initial days — those things ruffled people, I think. One should have a meditation practice, to help oneself calm down. I’ve done vipassana for 10 days and occasionally practise it.

Q. (Preeti Cherian): In your role as CIO, do you exercise a casting vote when it comes to you and your team taking critical decisions?

A. (Rajeev Thakkar): Our investment team has four individuals, so three individuals and myself. Four of us make the fund management team and, more or less, the decisions we arrive at are on a consensus basis. Typically, if there are concerns which we are not able to address, we do not go ahead with that investment. If there is a clear buy-in from the team, then we go ahead with the investment. I am first among equals in that sense, and there would be a casting vote if there ever arose a need to vote, but we do not work like that.

Q. (Preeti Cherian): Before investing in a company, do you and your team analyse who the independent directors are, on which other boards they sit? Does that carry any weight? Similarly, with auditors — do you look at them — which firm and / or which partner? Does that influence your decision-making?

A. (Rajeev Thakkar): One of our team members has created something like a social graph of independent directors and auditors, just like you have a social graph on LinkedIn or Facebook. These directors are associated with this kind of companies, this auditor is associated with these companies. If there is a particular auditor who has also been associated with two or three bad companies, that would be a red flag; similarly for directors. It’s not a very big percentage of how we go about deciding, but it is definitely something we look at, apart from other things.

Q. (Preeti Cherian): Do you get an opportunity to interact with the investee companies?

A. (Rajeev Thakkar): Yeah. So various kinds of interactions happen. Every quarter, there is an analyst call. This is typically on the phone rather than in person. Various brokers have these broker conferences where a lot of companies come over — those are face-to-face meetings. Once in a while, we seek out meetings, go across to the company and meet them. Sometimes, the company management comes to our office, and we meet them. They inaugurate a new plant or R&D facility where they take a group of analysts and investment managers to visit the plant — there are interactions there. When interacting with the company management, we want to make sure that we do not cross the line, we do not ask nor do we get anything which is not in the public domain; but anything that enhances our understanding of the business or increases the knowledge-base of how this sector operates is more than welcome and we seek that out. Typically, this happens after the results are declared, so there is not much to disclose in terms of what is not already known.

Apart from the companies, what our team does is they also interact with other people in the field. So, let’s say we are invested in company A or tracking company A. Company B may be an unlisted company operating in the same space but they would have insights into the strategies of various companies. Sometimes, we  may interact with the channel — where we interact  with the stockists and dealers or we interact with customers. Sometimes, we may interact with suppliers. We could be looking at trade publications or industry exhibitions.

 (Mayur Nayak): This has been an extremely engaging interaction with you, Mr Rajeev Thakkar. I am sure our readers will benefit greatly from your experience. On behalf of the Bombay Chartered Accountants’ Society and my colleagues, I thank you for taking time out of your schedule to talk to us.

(Rajeev Thakkar): Many thanks.

From The President

Dear Members,

  •  More than 17.76 lakh applications were received for 17,471 police constable posts.1
  •  India needs to create an additional 60 to 148 million jobs by 2030.2
  •  India, on average, grew 6.6 per cent a year in the decade starting in 2010, but the employment growth rate was below 2 per cent, which was below its G20 peers.3

The single largest challenge that stands between present-day India and a developed nation is our capacity to create sufficient employment opportunities and, thereby, leverage our demographic dividend. The Indian economy must generate approximately 7.85 million jobs ‘annually’ in the non-agricultural sector until 2030 to accommodate the increasing workforce; currently, we fall short of this target. Empirical evidence suggests that jobless growth can lead to unintended consequences of income inequality, economic stagnation, lower productivity, strain on public finances, unrest, etc.

While the broader issue of ‘oversupply’ is a significant challenge for our nation, within our community and profession, the situation seems to be more balanced or even tipping in the opposite direction. Converse to the national phenomenon:

-The second-most critical challenge facing our profession was considered that of ‘Attracting and Retaining Talent’;4

– We need more than 30 lakh Chartered Accountants by 2047.5

– In 2023–24, the highest number of jobs were created in ‘services’, of which ‘financial services’ is a major contributor. This trend is expected to continue.6


1 Maharashtra police recruitment drive outcome.
2 Gita Gopinath, first deputy managing director of International Monetary Fund
in conversation with 15th Finance Commission chairman N K Singh.
3 Economic Survey – 2024-25
4 BCAS Membership Survey 2024
5 ICAI president at a press conference in New Delhi on 21st February, 2024
6 Study report by Bank of Baroda.

As our profession and organisations expand, we have a genuine opportunity to bridge this dichotomy by creating significant direct and indirect employment, thus remaining true to our purpose of Partners in Nation-building. Globally, the worrisome trend of a declining number of CPAs entering the profession and a fragile student pipeline — alongside over 75 per cent of current CPAs retiring over the next 12 years — creates a unique opportunity for Indian Chartered Accountants to become the key enablers to the business world.

While external factors can offer support, they are not sufficient by themselves to address the challenge of Attracting and Retaining Talent. A vital aspect of fostering growth and excellence in our profession lies in reflecting on our mindset, approach and strategies to attract and, more importantly, retain talent. During the recent BCAS Lecture meeting on Profession @ 2047, Shri Shailesh Haribhakti highlighted the profound effect of small but meaningful adjustments and their overall contribution to our cause. From my observations, a few recurring themes emerge among successful professionals who excel in attracting and retaining talent:

i. Purpose-driven practices: The cultural fabric of purpose-led ethical organisations contrasts sharply with that of short-term, opportunistic entities. Individuals with integrity seek to affiliate with reputable organisations and align with a clear organisational purpose, substantially contributing to team unity. As professional entities, adhering to our core values of ethics, professionalism and knowledge serves as the most effective method for attracting and retaining top-tier talent. Purpose-driven organisations also embody genuine leadership that emanates from the highest levels.

ii. People over profits: While a business aims for ‘maximisation’, a profession strives for ‘satisfaction’. The line between professions and businesses is becoming less clear, and as professionals, an excessive focus on profits is inappropriate. Incidents where health and lives are compromised due to extreme work pressure and toxic environments cause irreparable harm to organisations, their employees and their families. The culture of prioritising ‘profits over people’ requires a complete reversal, placing the well-being of team members at the forefront. The practice of paying 1.3x and demanding 1.5x effort does not support sustainable well-being in the long run. Evaluating our progress on the axis of good > better > best is more meaningful than focusing on being big > bigger > biggest.

iii. Investing in the future: As managers or owners, we also have the responsibility of acting as trustees for the future of our teams. The position of influence we hold should be directed towards genuinely caring for and improving our team’s prospects. Adopting the perspective of your subordinates often leads to a more balanced approach to important issues. Organisations designed for longevity positively affect thousands of lives over time.

iv. Collaborate with scale: The scalability and security of an expanding organisation inherently attract and retain talent. As teams’ ambitions rise, it becomes essential for organisations to grow and provide long-term career opportunities. Scaling also introduces challenges that test and enhance the capabilities of teams, offering them a chance to reach their full potential.

Fostering an environment where we regard our teams with attention, care and respect, rather than merely as ‘resources’, is crucial in tackling the issue of attracting and retaining talent.

Whilst learning events continued throughout the September month, at your Society, four sub-groups have been constituted with specific terms of reference:

i. SA 600 Working Group: The newly released exposure draft on SA 600 by the National Financial Reporting Authority carries significant implications. At BCAS, a working group comprising distinguished accounting professionals has been formed to examine these proposed changes thoroughly and provide meaningful recommendations.

ii. Direct Tax Simplification Working Group: In her Budget speech, the Finance Minister announced plans to undertake a comprehensive simplification of the current Income-tax Act, 1961. As a leading voice in the accounting and tax field, the BCAS has formed a working group with the aims to (i) propose potential simplification strategies, (ii) assess the drafted simplification initiatives once they are available, and (iii) address the educational needs of our members concerning changes brought about by the proposed simplification measures.

iii. Sherpa Steering Group: The BCAS has members spread over 350 cities and towns throughout India. Last year, we launched the Sherpa initiative with the goal of connecting with our community and enhancing engagement. This initiative enables various BCAS projects to extend their reach to different regions, thus magnifying the benefits of the BCAS nationwide. To support the development of this crucial initiative, a dedicated steering group has been established.

iv. IIM-M + BCAS Joint Steering Group: As you know, the BCAS and IIM Mumbai signed a research-focused MoU last month. To advance this initiative, a joint steering committee featuring leading members from both the BCAS and IIM-M has been established. A list of potential research topics has been finalised, and more developments will follow soon.

Separately, the International Tax Committee submitted its representation to the Reserve Bank of India on draft FEM (Export and Import of Goods and Services) Regulations, 2024. The same can be accessed on the Society’s website.

I would like to take this moment to thank our members for their incredible participation in all the BCAS events during the busy September month, as well as for fully consuming the entire stock of BCAS Referencer publications. The dedication and effort from BCAS volunteers in planning, preparing and executing these initiatives are immense, and the enthusiastic response from our community motivates us to continue striving for excellence.

Greetings and best wishes for the upcoming festive seasons.

Thank you.

 

CA Anand Bathiya

President

Work–Life Balance & SA 600

There is a famous quote by Dolly Parton: “Never get so busy making a living that you forget to make a life.”

The age-old debate on work–life balance is back at the centre of discussion, with the deaths of a young chartered accountant and a banker on account of alleged work-related stress.

It is well known that work-related stress is at an all-time high in modern times across every segment of society in India, be it industry, profession, government departments, or even homemakers. One assessing officer confided years ago that after every assessment season, many officers develop a variety of diseases, such as hypertension, diabetes, etc., due to sheer work pressure.

Some professions or occupations are more exposed to pressures and stress, whereas at some places we find toxic work culture due to aggressive work atmosphere.

There are multiple factors leading to toxic or work-related stress. Unrealistic expectations and targets, tight deadlines, intense competition, peer pressure, etc., are some of the factors leading to stress. These factors are man-made and, therefore, can easily be controlled with proper planning and orientation.

Unfortunately, “work from home” has its own set of problems, such as extended working hours, depression, posture problems, loneliness, emotional imbalances and so on.

Whole Life Balance

The problem of balancing “work” and “life” aggravates as we consider them apart and separate from one another. Work is an integral part of our life and therefore, it is not a separate thing. To quote Sadhguru: “There is no such thing as work–life balance. It is all life. The balance has to be within you.”

Unfortunately, our education system teaches us how to make a living but not how to live a life. Systematic training / teaching is required on how to handle pressures and failures in life and live a balanced life.

People who have no work face different kinds of problems, stress and trauma. Work keeps our minds occupied and healthy. Therefore, work, per se, is not bad; it is how we do it that matters. If one has a congenial work atmosphere, with good camaraderie with colleagues, one does not feel the pressures of long hours of work. Here, we also carry the responsibility of making our workplaces healthy, productive and better without too much of pressure. India, being a developing country, needs to put in extra hours of work to catch up with the rest of the world. As Swami Vivekananda said, “There is no substitute for hard work.”

However, when we don’t like our work, situation, people or environment, we feel more stressed. More than physical exertion, mental stress kills a person. If we love our work, then we don’t get stressed even by working for long hours and work itself rejuvenates us. Many of us spend more of our awake time at the office than at our homes, and therefore, everything and anything that happens at the workplace does shape our lives or is part of our lives. We should, therefore, be more careful of how we spend time at our workplaces.

Having said that, we must remember that anything in excess is bad. Therefore, we need to achieve a life balance by a proper mix of official work and personal work.

Proposed revision of Standard of Auditing (SA) 600

Another talk of the profession is about the proposed revision of SA 600 by the National Financial Reporting Authority (NFRA). The existing SA 600 on “Using the Work of Another Auditor” essentially deals with guidance on group audits. Its objective is to establish standards in situations where an auditor (referred to herein as the ‘principal auditor’), reporting on the financial information of an entity, uses the work of another auditor (referred to herein as the ‘component auditor’) with respect to the financial information of one or more components included in the financial statements of the entity. “Component” means a division, branch, subsidiary, joint venture, associated enterprise or other entity whose financial information is included in the financial information audited by the principal auditor.

Paragraph 24 of the SA 600 deals with “Division of Responsibility”, whereby it provides that “the principal auditor would not be responsible in respect of the work entrusted to the other auditors, except in circumstances which should have aroused his suspicion about the reliability of the work performed by the other auditors.”

Corresponding to SA 600, the International Standard on Auditing 600 (revised) (ISA 600) addresses issues related to group audits. ISA 600 states that “the group engagement partner remains ultimately responsible, and therefore accountable, for compliance with the requirements of this ISA”.

It may be noted that SA 600 was issued by the ICAI in 1995 and revised in September 2002. The revised version is stated to be generally consistent with the ISA 600 in all material respects but with a significant difference with respect to the degree of responsibility of the Principal Auditor vis-à-vis the Component Auditor. Thus, fundamentally, SA 600 provides for shared responsibility between a principal auditor and component auditors, whereas ISA 600 provides for singular responsibility of the principal auditor for the quality of audit, including the work of component auditors.

NFRA proposed the revision of SA 600 on the lines of ISA 600, primarily with respect to the degree of responsibility and has issued the draft of the proposed SA 600 (Revised) for public consultation and comments by 30th October, 2024. The revisions proposed are to be applied to audits of Public Interest Entities (PIEs)1 except Public Sector Enterprises, Public Sector Banks, Public Sector Insurance Entities and their respective branches.


1 Only those PIEs which fall under Rule 3 of NFRA Rules 2018

As per newspaper reports, the ICAI has raised concerns and requested to put the proposal on hold2. ICAI has a detailed procedure to set or revise any auditing standard, and therefore its opinion does matter. We hope that NFRA will address various concerns raised by the ICAI, and both will work in tandem to improve the quality of audit.


2 The Economic Times, dated 20th September, 2024

The consultation paper on the proposed SA 600 (Revised) by NFRA gives detailed reasoning of the necessity for change and explanations to some of the apprehensions pertaining to the concentration of audits, impact on small and medium accounting and auditing firms, etc. Readers are well advised to go through this paper and give their valuable suggestions to NFRA / ICAI on the proposed revision.

One thing is certain: auditing, per se, has become sophisticated and demanding, and the proposed change will cast a huge responsibility on the Principal Auditor, who needs to be well-equipped to handle such risks. Component auditors can also benefit by adopting best practices and by participating actively from the planning to closing of audits of the entire group.

A day is not far when the Principal Auditor and Component Auditors may require additional qualifications to do audits of large groups, as is prevalent in some countries. ICAI can play a pivotal role in training and upgrading the skills of its members who wish to do audits of large groups / conglomerates.

Well, to sum up on the work–life balance, we need to put more life in our work than work in our life. Take regular breaks and vacations, find out our de-stress buttons and press them often to relax and rejuvenate.

Let the upcoming Deepawali fill your life with brightness and joy.

Best Regards,

 

Dr CA Mayur Nayak

Editor

 

मौनं सर्वार्थसाधनम्

This saying is often used as a proverb. मौनं Mauna means silence, keeping mum. The shloka is from Panchatantra (4.46). The full text is as follows:

आत्मनोमुखदोषेणबध्यन्तेशुकसारिका:!

बकास्तत्र न बध्यन्तेमौनंसर्वार्थसाधनम्!!

Literal meaning

आत्मनोमुखदोषेण: Due to their own fault of ‘talking’

बध्यन्तेशुकसारिका: Parrots and mynas get trapped

बकास्तत्र न बध्यन्ते: Egrets do not get trapped (since they don’t talk like parrots)

मौनंसर्वार्थसाधनम्: By remaining silent, one can achieve everything.

There was a story in Panchatantra of a monkey who wanted to cross a river. One crocodile, using a sweet language, offered to carry him on its back. The monkey trusted the crocodile. Once they reached the middle of the river, the crocodile told the monkey that actually, it intended to eat him once they reach a particular spot. The monkey became frightened but cautious. In between, they passed by a small island where there were tall trees. As soon as they reached the island, the monkey jumped and rescued himself by climbing up a tall tree. The crocodile repented for having disclosed its plans to the monkey.

It is a common experience that people who are intelligent, wise and mature do not talk much. On the other hand, people who lack wisdom and maturity keep on talking incessantly. In that process, they are caught in their own words and people thrust on them many tasks which they are not able to perform. They get entangled and, in a way, trapped.

Actually, this line Maunam Sarvartha Saadhnamis used in another context as well. Those people who are either of scheming nature or shrewd do not talk about their true intentions and plans. It is not necessary that their intentions are bad. Sometimes, they maintain secrecy even with pious intentions and plans, e.g., a country may not talk about its military strength or certain secret research programmes. India carried out the nuclear explosion at Pokhran and did the surgical strike without talking about it.

Even in court proceedings, your trump cards are opened only at an appropriate stage and not in the beginning.

There are people around with negative attitude who may create obstacles in your plans. They will do something which may cause damage or harm to your tasks on hand.

Therefore, it is rightly said मौनं सर्वार्थसाधनम्!!

Important Amendments By The Finance (No. 2) Act, 2024 – Other Important Amendments

The Hon’ble Finance Minister, during the Union Budget presentation, repeatedly emphasised the government’s endeavour to simplify taxation. This series of articles on the Finance (No. 2) Act of 2024 has thoroughly analysed various amendments to the Income-tax Act, 1961 (“the Act”) in five earlier parts, bringing out various nuances of these amendments and helping readers assess whether this promise of simplification has been realised.

In this Article, we continue this analysis, examining a few other significant amendments made to the Act.

(A) AMENDMENTS RELATING TO TDS AND TCS:

Reduction in TDS rates:

A series of welcome amendments in the following sections of the Act has been made, reducing the rates of TDS w.e.f. 1st October, 2024 as under:

It may be pointed out that in addition to the above, the Memorandum explaining the provisions of the Finance Bill (“Memorandum”) also contained a proposal to reduce the rate of TDS applicable to payments of insurance commissions u/s 194D of the Act from 5 per cent to 2 per cent in case of a person other than company. However, this proposal did not find place in the actual Finance Bill and consequently, this amendment has not been made in the Finance Act, 2024.

Accordingly, the rate of TDS u/s 194D applicable to payments of insurance commission, continues to be 5 per cent in case of persons other than a company.

TDS on payment to contractors – Section 194C

Section 194C of the Act provides for withholding of tax on payments made to contractors for carrying out “work” as defined therein.

For the purpose of section 194C, “work” has been defined as under:

“work” shall include:

(a) advertising;

(b) broadcasting and telecasting including production of programmes for such broadcasting or telecasting;

(c) carriage of goods or passengers by any mode of transport other than by railways;

(d) catering;

(e) manufacturing or supplying a product according to the requirement or specification of a customer by using material purchased from such customer or its associate, being a person placed similarly in relation to such customer as is the person placed in relation to the assessee under the provisions contained in clause (b) of sub-section (2) of section 40A

But does not include manufacturing or supplying a product according to the requirement or specification of a customer by using material purchased from a person, other than such customer or associate of such customer.
The above exclusion is now expanded w.e.f. 1st October, 2024 to cover:

a. Manufacturing or supplying a product according to the requirement or specification of a customer by using material purchased from a person, other than such customer or associate of such customer; or

b. any sum referred to in sub-section (1) of section 194J.

The reason for specifically excluding sums referred to u/s 194J(1) from the definition of “work”, as stated in the Memorandum, is that some deductors have been deducting tax under section 194C of the Act when in fact they should be deducting tax under section 194J of the Act.

Therefore, w.e.f. 1st October, 2024, if any sum paid or payable falls within the scope of “fees for professional services”, “fees for technical services” or others sums specified under section 194J of the Act, tax would have to be deducted under section 194J and not under section 194C even if the same are paid in pursuance of a work contract.

Interpretation of the terms “fees for technical services”, “royalty” and “fees for professional services” as used in section 194J(1) r.w.s. 44AA r.w. CBDT notification pertaining to professional services, itself has been a subject matter of extensive litigation over the years. Now the amendment in section 194C is likely to complicate the issues even further.

An interesting point to note in this context is that the definition of “work”, as per the Explanation to section 194C of the Act specifically includes “advertising”. The proviso to the said Explanation however excludes the sums referred to in section 194J(1) of the Act. Section 194J(1) includes “professional services”, which, as defined in the Explanation to section 194J, covers within its ambit, inter alia, “advertising”. Therefore, the amendment results in a contradiction whereby, “advertising” is specifically included in the definition of “work” but is again excluded by virtue of the carve out to the said definition. This contradiction could likely trigger litigation in regard to payments made under contracts for “advertising.”

One may wonder as to when, on one hand, TDS rates have been reduced for certain categories of payments for the sake of promoting simplification as seen in the foregoing section, whether such amendment in section 194C, which is likely to result in unsettling of accepted propositions, was necessary at all.

Insertion of new section 194T requiring TDS on payment of salary, remuneration etc. to partners of a firm

Section 194T has been inserted w.e.f. 1st April, 2025 which provides that tax shall be deducted at source by a firm on payment to its partners of any sum in the nature of salary, remuneration, commission, bonus or interest. The rate of TDS prescribed is 10% of these sums, deductible at the time of credit or payment, whichever is earlier.

A threshold limit of ₹20,000 has been provided and no tax is required to be deducted if, aggregate of the above sums likely to be credited or paid to a partner does not exceed ₹20,000.

The provision is applicable to sums in the nature of salary, remuneration, commission, bonus or interest only and therefore, it may be concluded that credit or payment of share of profit to a partner is not covered within the ambit of this provision. Further, though no clarity has been provided in the Memorandum in this regard, it would be reasonable to take a view that withdrawals out of opening balance of the capital account of a partner as on 1st April, 2025 would not require deduction of tax at source under section 194T of the Act.

This amendment is likely to result in various practical issues for the firms, as often the bifurcation between allowable remuneration and profit share can only be determined at the end of the year when firm’s books of accounts have been finalized and “book profit” is determined. Further, whether a particular payment has been made to a partner during the year is out of the opening balance as on 1st April, 2025 or out of the sums credited to capital account during the year, can also be an issue for deliberation and maintaining a track of such payments may become a task in itself.

Again, when the partners of a firm would normally be required to pay advance tax, the intention behind this amendment is not clear and would seem contrary to the object of ‘simplification’ of TDS regime.

TDS on sale of immovable property – section 194-IA

Under section 194-IA(1), any person being a transferee, paying any sum by way of consideration for transfer of any immovable property, is required to deduct tax at source at the rate of 1 percent of such sum (or Stamp duty value-SDV, whichever is higher) at the time of credit or payment thereof, whichever is earlier.

Section 194-IA(2) provides that tax is not required to be deducted if the “consideration” for transfer of immovable property and SDV, both, are less than ₹50 lakhs.

Some taxpayers were taking a view that “consideration” for the purpose of the threshold limit as above is qua-buyer rather than qua-property.

Therefore, to clarify the position, a proviso to section 194-IA(2) has been enacted to provide that where there are multiple transferors or transferees, the consideration shall be the aggregate of amounts payable by all transferees to all transferors for transfer of the immovable property, i.e., aggregate consideration has to be considered for the purpose of determining the limit of R50 lakhs under sub-section (2).

Though this provision is made applicable with effect from 1st October, 2024, since it is only a clarificatory amendment, even for the period prior to the said date, it would be prudent to take the same view considering the legislative intent.

TDS on Floating Rate Savings (Taxable) Bonds (FRSB) 2020 under section 193

Presently, under section 193, tax is required to be deducted by the payer at the time of credit or payment of any income to a resident by way of interest on securities.

However, the TDS provision does not apply to any interest payable on any security of the central or state government except interest in excess of ₹10,000 payable on 8 per cent Savings (Taxable) Bonds 2003 or 7.75 per cent Savings (Taxable) Bonds 2018.

W.e.f. 1st October, 2024, interest in excess of ₹10,000 payable on Floating Rate Savings Bonds 2020 (Taxable) (FRSB) or any other security of the central or state government, as may be notified, will also be covered in this exclusion. Consequently, tax shall be required to be deducted from interest in excess of ₹10,000 on FRSB or any other notified security of central or state government.

TCS on notified goods – section 206C(1F)

Presently, tax at the rate of 1 per cent is required to be collected by a seller on consideration for sale of a motor vehicle exceeding in value of ₹10 lakhs.

W.e.f. 1st January 2025, section 206C(1F) of the Act shall also include within its ambit, any amount of consideration for sale of any other goods as may be notified, exceeding in value of ₹10 lakhs.

As clarified by the Memorandum, this amendment is intended to facilitate tracking of expenditure of luxury goods, as there has been an increase in expenditure on luxury goods by high-net-worth persons and accordingly, the goods to be notified under the section would be in the nature of “luxury goods”.

Therefore, one will have to wait and see as to which goods are notified by the CBDT as “luxury goods” requiring collection of tax at source under this provision.

As practically witnessed by the tax professionals and taxpayers so far, often the tax authorities lose sight of the intent behind the TDS/TCS provisions and adopt a hyper technical approach to make additions to income on the basis of TDS/TCS without verifying correctness of such deduction/collection of tax. While TCS provisions are an acknowledged tool for gathering information aimed at reducing revenue leakage, the continuous expansion of their scope raises concerns about the government’s commitment to simplifying the tax system.

Time limit to file correction statements in respect of TDS/ TCS returns

So far, there was no time limit to file correction statements in respect of TDS/TCS statements, to rectify any mistake or to add, delete or update the information furnished in TDS / TCS statements. Section 200(3) and Section 206C(3) of the Act are now amended w.e.f. 1st April, 2025 to provide that correction statements cannot be filed after the expiry of 6 years from the end of the financial year in which TDS/TCS were required to filed under those sections.

Extending the scope for lower deduction / collection certificate of tax at source

Section 194Q of the Act requires a buyer to deduct tax at source at the rate of 0.1 per cent from consideration payable to a resident seller, if aggregate consideration for purchase of goods is in excess of R50 lakhs in a previous year. Corresponding provisions are there in section 206C(1H) of the Act to require the seller to collect tax at source on purchase of goods as specified.

Recognising the grievance of the taxpayers that in case of lower margins or losses, funds get blocked on account of TDS/TCS which are ultimately required to be refunded, Section 197 is amended w.e.f. 1st October, 2024 to include section 194Q within its scope to enable granting of a lower deduction certificate. Corresponding amendments have been made in section 206C(9) as well to enable granting of a lower deduction certificate in respect of tax collectible under section 206C(1H) of the Act.

Tax deducted outside India deemed to be income received

Section 198 provides that tax deducted in accordance with the provisions of Chapter XVII-B i.e., shall be deemed to be income received.

As stated in the memorandum, some taxpayers were not including the taxes deducted outside India declaring only net income in India but were claiming credit for taxes deducted outside India which resulted in double deduction.

Section 198 is amended with effect from 1st April, 2025 to provide that in addition to TDS under Chapter XVII-B, income tax paid outside India by way of deduction, in respect of which an assessee is allowed a credit against the tax payable under the Act, will also be deemed to be income of the assessee in India.

Alignment of interest rates for late payment of TCS

Section 206C(7) of the Act has been amended w.e.f. 1st April, 2025 to provide that where a person responsible for collecting tax does not collect the tax or after collecting the tax fails to pay it, interest at the rate of 1 per cent p.m. or part thereof is chargeable on the amount of tax from the date on which such tax was collectible to the date on which the tax is collected. Interest shall be chargeable at the rate of 1.5 per cent p.m. or part thereof on the amount of such tax from the date on which such tax was collected to the date on which the tax is actually paid.

Before the amendment, a flat rate of 1 per cent per month or part of the month was applicable on the amount of tax from the date on which it was collectible till the date on which it was paid to the government. To bring parity between TDS and TCS provisions, a differential rate of 1.5 per cent has been made applicable for the period from collection of tax till it is actually paid to the government.

Reduction in extended period allowed for furnishing TDS / TCS statements to avoid penalty

Section 271H of the Act imposes penalty for failure to file TDS / TCS statements within prescribed time. A relief is available presently, that no penalty shall be levied if, after paying TDS / TCS along with fees and interest thereon, TDS / TCS statements are filed before the expiry of one year from the time prescribed for furnishing such statements. This period of one year is now reduced to one month, w.e.f.
1st April, 2025.

It may be pointed out that even if the TDS/TCS returns are filed beyond a period of one month on account of a “reasonable cause” within the meaning of section 273B of the Act, no penalty shall be leviable.

Claim of TDS/TCS by salaried employees

While deducting tax from salaries, any income under the other heads of income (excluding loss) and loss under the head of income from house property along with tax deducted thereon can be considered by the employer under section 192(2B).

However, credit for TCS was not being considered by the employers in absence of a specific provision to that effect. Maximum rate of TCS being as high as 20 per cent in certain cases, non-consideration of TCS by the employers while deducting tax from salary resulted in cashflow issues for the employee.

To address this issue, section 192(2B) is amended w.e.f. 1st October, 2024 to provide that TCS shall also be considered by the employer while deducting tax from salaries.

This is a welcome amendment providing much needed relief to the salaried taxpayers.

(B) INCREASED LIMITS OF ALLOWABLE REMUNERATION TO PARTNERS

Presently, as per section 40(b) of the Act, the maximum allowable remuneration to any working partner of a firm is restricted to the following limits:

(a) On first ₹3,00,000 of the book-profit or in case of a loss ₹1,50,000 or at the rate of 90 per cent of the book-profit, whichever is more
(b) On the balance of the book-profit At the rate of 60 per cent

 

The above limits were last revised in A.Y. 2010–11 vide Finance Act (No. 2) of 2009.

Now these limits of allowable remuneration to a working partner under section 40(b)(v) are revised w.e.f. A.Y. 2025–26 as under:

(c) On first ₹6,00,000 of the book-profit or in case of a loss 3,00,000 or at the rate of 90 per cent of the book-profit, whichever is more
(d) On the balance of the book-profit At the rate of 60 per cent

However, after a lapse of 15 years, this revision still seems inadequate, and not in line with the effort directed towards granting reduced individual tax rates to small taxpayers. This limit needs to be significantly increased, if any real benefit is intended out of it.

It is important to note in this context that remuneration clause in partnership deeds is often drafted on the basis of the limits prescribed under section 40(b) of the Act. Therefore, it needs to be examined by persons concerned whether any amendments are required to be made in existing partnership deeds, on account of the above change.

(C) ANGEL TAX ABOLISHMENT

Though often referred to as “Angel Tax”, section 56(2)(viib) is, in fact, not just applicable to angel investors but the provision is applicable to all companies in which the public are not substantially interested. As per the pre-amendment provision, where a company (other than a company in which public are substantially interested) received any consideration for issue of shares in excess of fair market value (FMV) of shares, the excess premium was deemed as income in hands of the company.
Section 56(2) (viib) of the Act was inserted vide Finance Act, 2012 “to prevent generation and circulation of unaccounted money” through share premium received from resident investors in a closely held company in excess of its fair market value.

This provision resulted in extensive litigation as the valuation of shares was a crucial factor and the tax officers often disregarded the valuation made by the companies.

Up-to 31st March, 2024, the provision was restricted to consideration received from a “resident” person. W.e.f. 1st April, 2024, it was made applicable to consideration received from non-residents as well.

After having caused significant controversy and litigation for a long period of time, and specifically after having the scope of the provision expanded in immediately preceding year vide Finance Act 2023, now the provision has been abruptly abolished w.e.f. 1st April, 2025. There is no explanation in the Memorandum to help the taxpayers understand the rationale behind such abrupt abolishment of the provision. The lack of a detailed explanation in the Memorandum only adds to the speculation that the provision could be reinstated in future, creating uncertainty in the mind of a taxpayer.

(D) EXPANSION OF POWERS OF CIT(A)

Over the past two-three years, tax professionals have been experiencing significant delays in disposal of appeals at the first appellate level. Particularly, where the issue is decided by the assessing officer ex-parte and requires calling for a remand report for adjudication by the Commissioner of Income Tax (Appeals) [CIT(A)], delays in such cases are excessive and often unreasonable.

Existing powers of CIT(A) did not contain a power to set aside the matter to the file of the assessing officer. During the pendency of the appeal, the taxpayers are required to pay at least a partial outstanding demand, thereby blocking the funds for a long period of time till disposal of the appeal.

Considering the huge pendency of appeals and disputed tax demands at CIT(A) stage, in cases where assessment order was passed as best judgement case under section 144 of the Act, CIT(A) has now been empowered w.e.f. 1st October, 2024 to set aside the assessment and refer the case back to the Assessing Officer for making a fresh assessment.

This would mean that the demand raised in the ex-parte assessments would be quashed and would no longer be enforceable.

In the present faceless regime, it is commonly observed that often the notices issued by the assessing officer are sent to an incorrect email address even after the correct address has been notified by the taxpayer. In such cases, on account of the notices remaining un-responded, orders are passed ex-parte and additions made are often deleted subsequently in appeal. However, during the pendency of appeal, taxpayer is unnecessarily required to pay a part of the demand. Practically, obtaining a refund from the department of this payment after disposal of appeal is often a task in itself.

Therefore, this amendment would grant a huge relief in cases of best judgement assessments.

(E) TAX CLEARANCE CERTIFICATE

Section 230(1A) of the Act presently provides that no person who is domiciled in India, shall leave India, unless he obtains a certificate from the income-tax authorities stating that he has no liabilities under Income-tax Act, 1961, or the Wealth-tax Act, 1957, or the Gift-tax Act, 1958, or the Expenditure-tax Act, 1987; or he makes satisfactory arrangements for the payment of all or any of such taxes, which are or may become payable by that person. Such certificate is required to be obtained where circumstances exist which, in the opinion of an income-tax authority render it necessary for such person to obtain the same.
However, we do not see this provision being actually enforced by the income tax authorities.

Now, w.e.f. 1st October, 2024, a reference to the liabilities under Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015 (BMA) is also included in section 230(1A) in addition to the liabilities under other laws as stated therein.

As section 230(1A), was rarely enforced even pre-amendment, one can safely assume that the practical implication of the amendment would be restricted to a very limited extent. The CBDT has already addressed the fears of taxpayers.

A corresponding amendment has also been made in section 132B of the Act, to insert a reference to BMA to allow recovery of existing liabilities under BMA out of the seized assets under section 132.

CONCLUSION

Overall, while some of the amendments in this budget are a step in the right direction, others seem to diverge from the promise of simplifying the tax system. These changes could potentially introduce additional complexities rather than streamlining the process.

In light of the Hon’ble Finance Minister’s information that a holistic review of the Income-tax Act is underway, let us hope that the goal of genuine simplification of tax system would guide future reforms!

Important Amendments by The Finance (No. 2) Act, 2024 – Block Assessment

INTRODUCTION

Chapter XIV-B of the Act was earlier inserted in 1995 to provide for the special procedure for assessment of search cases which was commonly referred to as the ‘block assessment’. Under this erstwhile scheme of block assessment, in addition to the assessments which were to be conducted in a regular manner, a special assessment was required to be made assessing only the ‘undisclosed income’ relating to the block period in a case where the search has been conducted.

The Finance Act, 2003 made these provisions dealing with block assessment in search cases inapplicable to the searches initiated after 31st May, 2003 for the reason that the scheme of block assessment had failed in its objective of early resolution of search assessments. It had provided for two parallel assessments, i.e., one regular assessment and the other block assessment covering the same period, i.e., the block period which had resulted into several controversies centering around the treatment of a particular income as ‘undisclosed’ and whether it is relatable to the material found during the course of search etc. Therefore, the new Sections 153A, 153B and 153C were introduced wherein it was provided that the assessments pending as on the date of initiation of search would abate and only one assessment would be made wherein the total income of the assessee was required to be assessed. Further, separate assessment was required to be made for every year involved unlike the single assessment for the entire block period as provided under Chapter XIV-B.

The Finance Act, 2021 further altered the procedure for making the assessment in search cases on the ground that the provisions of Section 153A, 153B & 153C have also resulted in a number of litigations and the experience with the revised procedure of assessment had been the same as the earlier one. On that basis, the provisions of Sections 153A, 153B & 153C were made inapplicable to the search initiated after 31st March, 2021. No special provisions were made to deal with the assessment in search cases. Instead, the provisions dealing with the reassessment i.e., Section 147, 148, etc. which were also altered substantially by the Finance Act, 2021 were made applicable also to the cases in which search has been conducted with suitable modifications.

Now, the Finance Act (No.2), 2024 has once again restored the scheme of ‘block assessment’ as provided in Chapter XIV-B but in a revised form. Unlike the erstwhile scheme of block assessment which had provided for making parallel assessment of only undisclosed income of the block period, the revised scheme of block assessment provides for making only one assessment of the block period including the undisclosed income as well as the other incomes.

The objective of making this amendment as stated in the Memorandum explaining the provisions of the Finance Bill is that, under the existing provisions not providing for consolidated assessment, every year only the time-barring year was reopened in the case of the searched assessee. It has resulted in staggered search assessments for the same search and consequentially, the search assessment process takes time for almost up to ten years. Therefore, with the objective of making the search assessment procedure cost-effective, efficient and meaningful, the provisions of block assessment have been reintroduced.

THE CASES IN WHICH THE BLOCK ASSESSMENT CAN BE MADE

The new procedure for making the block assessment is applicable in a case where a search is initiated under Section 132 or requisition is made under Section 132A (referred to as search cases in this article) on or after 1st September, 2024. In respect of the search initiated or requisition made prior to 1st September, 2024, the provisions of Section 147 to 151 shall apply as they were in existence prior to their amendments by the Finance (No. 2) Act, 2024.

Section 158BA provides for the assessment in the case in which search has been conducted or requisition has been made. Section 158BD provides for the assessment of the other person other than the one in whose case the search was conducted if any undisclosed income belonging to or pertaining to or relating to that other person is found as a result of search.

BLOCK PERIOD

For the purpose of the assessment under these provisions, the block period is defined as consisting of the following periods:

  • Six years preceding the year in which the search was initiated; and
  • Period starting from 1st April of the previous year in which the search was initiated and ending on the date of the execution of the last of the authorisation for such search.

There is no provision allowing the Assessing Officer to make the assessment of income pertaining to any year beyond the period of six years prior to the year of search. Further, the part of the year in which the search is conducted till the conclusion of the search has also been included in the block period.

However, Section 158BA(6) provides that the total income other than undisclosed income of the year in which the last of the authorisation for the search was executed shall be assessed separately in accordance with the other provisions of the Act dealing with the assessment.

ISSUING NOTICE UNDER SECTION 158BC(1)

For the purpose of making the assessment, the Assessing Officer is required to issue a notice to the assessee under Section 158BC(1) requiring him to furnish his return of income within the time specified in the notice which cannot be more than 60 days. The assessee is required to declare his total income, including the undisclosed income in respect of the entire block period.

The return so required to be submitted shall be considered as if it was a return furnished under Section 139 and the Assessing Officer is required to issue the notice under Section 143(2) thereafter. However, if the assessee furnishes his return of income beyond the time period allowed in the notice, then such return shall not be deemed to be a return under Section 139.

The return of income filed in response to the notice issued under Section 158BC(1) is not allowed to be revised thereafter.

SCOPE OF ASSESSMENT

As mentioned earlier, the Assessing Officer is required to make an assessment of the total income and not just the undisclosed income relating to the block period under the new block assessment procedure. Further, the period which is required to be covered is the entire block period and, therefore, there would be only one order of assessment covering the entire block period.

The total income of the block period assessable under this Chater shall be the aggregate of the followings:

i. total income disclosed in the return furnished under section 158BC;

ii. total income assessed under section 143(3) or 144 or 147 or 153A or 153C prior to the date of initiation of search;

iii. total income declared in the return of income filed under section 139 or in response to a notice under section 142(1) or 148 and not covered by (i) or (ii) above;

iv. total income determined where the previous year has not ended, on the basis of entries relating to such income or transactions as recorded in the books of account and other documents maintained in the normal course on or before the date of last of the authorisations for the search or requisition relating to such previous year;

v. undisclosed income determined by the Assessing Officer under section 158BB(2).

Here, it may be noted that Section 158BC(1) requires the assessee to declare his total income, including the undisclosed income, for the block period. Therefore, the total income required to be declared should be inclusive of the total income which has otherwise been declared individually for all the years comprising within the block period while filing the return of income under the other provisions. There is no provision allowing the assessee to exclude the total income which has been already included in the returns filed earlier. Therefore, it is not clear as to when does the case envisaged by clause (iii) above can arise i.e., the total income declared in the return filed under Section 139 etc. but not included in the return filed in response to the notice issued under Section 158BC(1).

Further, a similar issue arises where the income has already been assessed under any of the provisions dealing with the assessment (other than search assessment) prior to the date of initiation of the search. The income so assessed should ideally be included in the total income of the block period which the assessee needs to declare in the return to be filed in response to the notice under Section 158BC(1). Therefore, this component of income gets included twice in the above computation; first under clause (i) if it has been included in the total income declared in the return filed under Section 158BC and second under clause (ii). Similarly, in respect of the previous year, which did not end as on the date on which the search was initiated, the income pertaining to that period would also get included twice; first under clause (i) and second under clause (iv). Had the requirement under Section 158BC been to include only the undisclosed income which the assessee wants to declare voluntarily in the return of income, then the manner of computing the total income of the block period would have worked properly.

The ‘undisclosed income’ includes any money, bullion, jewellery or other valuable article or thing or any expenditure or any income based on any entry in the books of account or other documents or transactions, where such money, bullion, jewellery, valuable article, thing, entry in the books of account or other document or transaction represents wholly or partly income or property which has not been or would not have been disclosed for the purposes of this Act, or any exemption, expense, deduction or allowance claimed under this Act which is found to be incorrect, in respect of the block period.

Such undisclosed income shall be computed in accordance with the provisions of the Act on the basis of evidence found as a result of search or survey or requisition of books of account or other documents and any other materials or information as are either available with the Assessing Officer or come to his notice during the course of proceedings under this Chapter.

It can be observed that the power of the Assessing Officer to make the addition to the total income is limited only to the ‘undisclosed income’ which is defined for this purpose. Therefore, the issues might arise as they have arisen in past as to whether the Assessing Officer is permitted to make the additions which are unconnected with the incriminating materials found during the course of the search. This would be more relevant in the cases in which the assessment under the other provisions of the Act were pending and they have abated as discussed below.

If the income as mentioned at (i), (ii), (iii) or (iv) above is a loss then it shall be ignored. Further, the losses brought forward or unabsorbed depreciation of any earlier years (prior to the first year of block period) is not allowed to be set off against the undisclosed income but may be carried forward further for the remaining period left after taking into consideration the block period.

ABATEMENT OF ASSESSMENT

Since the Assessing Officer is required to assess the ‘total income’ of the block period, it has been provided that any assessment in respect of any assessment year falling in the said block period pending on the date of initiation of search or making the requisition shall abate. Further, if a reference has been made under section 92CA(1) or an order has been passed under section 92CA(3), then also such assessment along with such reference or the order as the case may be, shall abate.

If the proceeding initiated under this Chapter or the consequential assessment order passed has been annulled in appeal or any other legal proceeding, then such abated assessment shall get revived. However, such revival shall cease to have effect if the order of annulment is set aside.

Further, assessment pending under this Chapter itself (consequent to search earlier conducted in the same case) shall not abate and it shall be duly completed before initiating the assessment in respect of the subsequent search or requisition.

LEVY OF TAX, INTEREST AND PENALTY

The total income relating to the block period shall be charged to tax at the rate of 60 per cent as specified in section 113 irrespective of the previous year or years to which such income relates. Such tax shall be charged on the total income determined as above and reduced by the total income referred to in (ii), (iii) and (iv) as listed above. Further, the tax so charged shall be increased by a surcharge, if any, levied by any Central Act. However, presently, no surcharge has been provided for income chargeable to tax for the block period.

There is no specific provision dealing with the rate of tax at which the total income referred to in (ii), (iii) and (iv) will get charged. However, Section 158BH provides that all other provisions of the Act shall apply to assessment made under this Chapter unless otherwise provided.

The interest under section 234A, 234B or 234C or penalty under section 270A shall not be levied in respect of the undisclosed income assessed or reassessed for the block period.

The assessee shall be charged the interest at the rate of 1.5 per cent of the tax on undisclosed income if he has not furnished the return of income within the time specified in the notice issued under section 158BC or he has not furnished the return of income at all. The interest shall be charged for the period commencing from the expiry of the time specified in the notice and ending on the date of completion of assessment.

The Assessing Officer or the CIT(A) may levy the penalty equivalent to fifty per cent of tax leviable in respect of the undisclosed income. No such penalty or penalty under section 271AAD or 271D or 271DA shall be imposed for the block period if the following conditions are satisfied:

i. The assessee has filed a return in response to the notice issued under section 158BC.

ii. The tax payable on the basis of such return has been paid or if the assets seized consist of money, the assessee offers the money so seized to be adjusted against the tax payable.

iii. No appeal has been filed against the assessment of that part of income which is shown in the return.

If the undisclosed income determined by the Assessing Officer is higher than the income shown in the return, then the penalty shall be imposed on that portion of undisclosed income determined which is in excess of the amount of income shown in the return.

TIME LIMIT TO COMPLETE THE ASSESSMENT

The assessment order is required to be passed within twelve months from the end of the month in which the last authorisation for search was executed or requisition was made. If any reference has been made under section 92CA(1), then period available for making the assessment shall be extended by 12 months.

The provisions of section 144C have been made inapplicable to the assessment to be made under this Chapter. Therefore, the Assessing Officer is not required to provide the draft order to the eligible assessee so as to enable him to file the objections before the DRP if he wishes.

The period commencing from the date on which the search was initiated and ending on the date on which the books of account or documents or money or bullion or jewellery or other valuable article or thing seized are handed over to the Assessing Officer having jurisdiction over the assessee is required to be excluded from the period of limitation.

Several other periods are also required to be excluded from the period of limitation which are similar to the exclusions which have assessment in Section 153 providing for the time limit to complete the other types of the assessment.

ASSESSMENT OF OTHER PERSONS

If the Assessing Officer is satisfied that any undisclosed income belongs to any person other than the person in whose case the search was conducted or requisition was made, then the money, bullion, jewellery or other valuable article or thing, or assets, or expenditure, or books of account, other documents, or any information contained therein, seized or requisitioned shall be handed over to the Assessing Officer having jurisdiction over such other person. Thereafter, that Assessing Officer shall proceed under section 158BC against such other person for the purpose of making his assessment under this Chapter. For this purpose, the block period shall be the same as that determined in respect of the person in whose case the search was conducted, or requisition was made. The time limit for completing the assessment of such person is twelve months from the end of the month in which the notice under section 158BC was issued to him. Further, this time period shall be extended by twelve months if any reference has been made under section 92CA(1).

Important Amendments by The Finance (No. 2) Act, 2024 – Re-Assessment Procedures

1 This Article deals with the amendments made by the Finance (No. 2) Act, 2024 to the provisions of the Income-tax Act, 1961 dealing with reassessment provisions. The Finance (No. 2) Act, 2024 is referred to as “the Amending Act”, the Income-tax Act, 1961 is referred to as “the Act”. The provisions of the Act as they stood immediately before their amendment by the Amending Act are referred to as “the erstwhile provisions”, the amended provisions are referred to as “the amended provisions” / “the present provisions” and the provisions as they stood immediately before their amendment by the Finance Act, 2021 are referred to as “the old provisions”. In this Article, the effect of the amendments carried out by the Amending Act to the provisions of sections 148, 148A, 149, 151 and 152 of the Act have been analysed.

2 Introduction / Background: The Finance Act, 2021 amended the procedure for assessment or reassessment of income escaping assessment w.e.f. 1st April, 2021. The Finance Act, 2021 modified inter alia the provisions of sections 147, 148, 149 and also introduced section 148A. These provisions led to widespread litigation. The Explanatory Memorandum to the Finance (No. 2) Bill, 2024 recognises this and states that “multiple suggestions have been received regarding the considerable litigation at various fora arising from the multiple interpretations of the provisions of aforementioned sections. Further, representations have been received to reduce the time-limit for issuance of notice for the relevant assessment year in proceedings of assessment, reassessment or recomputation.” The Amending Act has amended the reassessment provisions with a view to rationalise the reassessment provisions and with an expectation that the new system would provide ease of doing business to the taxpayers since there is a reduction in time limit by which a notice for assessment or reassessment can be issued.

3 Provisions of the Act dealing with reassessment which have been amended and the effective date from which the amended provisions apply: The Amending Act has amended the provisions of Sections 148, 148A, 149, 151 and 152. Sections 148, 148A, 149 and 151 have been substituted and amendments have been carried out to Section 152. The substituted provisions as also the amendments are effective from 1.9.2024. Section-wise amendments carried out and their impact is explained in subsequent paragraphs.

4 Amendments to Section 148: The Amending Act has substituted a new Section 148 in place of the erstwhile Section 148. The effect of the amended Section 148 is as follows:

4.1 Section 148 requires “issuance of notice” as against “service of notice” earlier: The amended section 148 now provides that the Assessing Officer (AO) shall before making the assessment, reassessment or recomputation under section 147 “issue” a notice to the assessee. The erstwhile section 148 provided for “service” of a notice. Therefore, now the limitation period to file the return of income under section 147 will be with reference to date of “issue” of notice as against the date of “service” of notice under the erstwhile provision. While it is true that in the electronic era, since the notices are generated online the same are dispatched instantly and therefore there would normally be no significant difference between the date of issue of the notice and service thereof. However, at times, it is noticed that due to notices being sent to an incorrect email address, there could be a significant difference between the date of issue of notice and service thereof. In such cases, the time available to the assessee to file return of income will be lower to the extent of time period between the date of issuance of notice and the date of service thereof. To illustrate, if the notice is issued on 25th March, 2025 and it provides that the return be furnished by 30th April, 2025, if such a notice is served on 5th April, 2025, then the time available with the assessee to furnish the return of income is shortened by 10 days, since the assessee will come to know of the notice having been issued only when it is served upon him.

4.2 While Section 148 now provides for “issuance” of notice instead of “service” thereof, the service of notice will still be relevant since, as has been mentioned above, unless the notice is served upon the assessee, the assessee will not be in a position to know about its issuance and comply with the same. Also, since section 153(2) has not been amended the limitation period mentioned in section 153(2) for passing of order of assessment, the time limit for reassessment or re-computation made under section 147 continues to be with reference to date of service of notice under section 148.

4.3 When can notice be said to have been “issued”? Since section 148 provides for issuance of notice by Assessing Officer who is an income-tax authority, in terms of section 282A, it will need to be signed in terms of sub-section (1) of section 282A. Such notice has to be signed and issued in paper form or communicated in electronic form by that authority in accordance with procedure prescribed. Rule 127A prescribes procedure for this purpose.

The Allahabad High Court has, in Daujee Abhushan Bhandar (P.) Ltd. vs. Union of India [(2022) 136 taxmann.com 246 (All. HC)], after considering the various provisions, dictionary meanings and the case laws on the subject, held that the words `issue’ or `issuance of notice’ have not been defined in the Act. However, the point of time of issuance of notice may be gathered from the provisions of the 1961 Act, Income-tax Rules, 1962 and the Information Technology Act, 2000. Similar would be the position if the meaning of the word `issue’ may be gathered in common parlance or as per dictionary meaning. Merely digitally signing the notice is not issuance of notice. Issuance of notice will take place when the email is issued from the designated email address of the concerned income-tax authority.

4.4 Notice under section 148 to be accompanied by copy of order passed under section 148A(3) : Section 148 as amended by the Amending Act provides that the notice shall be issued along with a copy of the order passed under section 148A(3) of the Act. The erstwhile provision required that the notice shall be served along with a copy of the order passed, if required, under section 148A(d). The absence of the words “if required” in the amended provisions makes it mandatory for the notice to be accompanied by an order under section 148A(3). This mandate will not be possible to be complied with in a case where information has been received by the AO under the scheme notified under section 135A. This is because section 148A(4) provides that the provisions of section 148A shall not apply to a case where the AO has received information under the scheme notified under section 135A. If the assessee challenges a notice which has been issued pursuant to information received under the scheme notified under section 135A of the Act on the ground that it is not accompanied by an order under section 148A(3), the court will hold that the provisions of section 148 are subject to the provisions of section 148A and therefore since an order u/s 148A(3) is not required to be passed in a case where information is pursuant to a scheme notified u/s 148 being accompanied by an order u/s 148A(3) would not apply to such a case. Also, the court may invoke the doctrines explained by the maxims Impossibilium Nulla Obligato Est; Lex Non Cogitad Impossiblia; Impossibiliumnulla Obligatio Est and hold that the revenue is not expected to perform the impossible. These maxims have been followed by the courts in several cases e.g. Standard Chartered Bank vs. Directorate of Enforcement [(2005) 275 ITR 81 (SC)]; IFCI vs. The Cannanore Spinning & Weaving Mills Ltd. [(2002) 5 SCC 54 (SC)]; Poona Electric Supply Co. Ltd. vs. State [AIR 1967 Bom 27]; Engineering Analysis Centre of Excellence Pvt. Ltd. vs. CIT [(2021(3) TMI 138 – SC] and Dalmia Power Ltd. vs. ACIT [(2012) 112 taxmann.com 252 (SC)]. However, it would have certainly been advisable that the words “if required” were retained in the amended provisions.

4.5 Time limit for filing return of income now at the discretion of the AO subject to outer limit provided in Section 148: Section 148, as amended by the Amending Act, provides that the notice issued shall specify the period within which the assessee is to furnish a return of income. It is also, however, provided that the time period specified in the notice cannot exceed 3 months from the end of the month in which the notice is issued. The erstwhile provisions of section 148 provided that the notice shall call upon the assessee to furnish a return of income within a period of three months from the end of the month in which such notice is issued or such further period as may be allowed by the AO on the basis of an application made in this regard by the assessee.

The time limit available to furnish the return of income will now be at the discretion of the AO. Failure to furnish the return of income within the period specified in the notice will mean that the return of income so furnished will not be regarded as a return furnished under section 139 and all the consequences thereof will follow e.g. the assessee will not be able to file an updated return under section 139(8A); in terms of the decision of the Supreme Court in Auto & Metal Engineers vs. Union of India [(1998) 229 ITR 399 (SC)] there will be no requirement to issue a notice under section 143(2) and the assessment would commence once return of income is filed.

Earlier, under the erstwhile provisions, when the time period of three months from the end of the month in which the notice is served was provided, an assessee could, if the facts of the case so demanded, file a writ petition and the outcome of the Writ Petition could be known before the date by which the return of income was required to be furnished. Now, possibly, pending the decision in the Writ Petition, an assessee will be required to furnish the return of income, unless a stay is granted by the High Court.

4.6 Express power to the AO to grant extension of time to file return of income on the basis of an application made by the assessee now not there: The erstwhile section 148 empowered the AO to grant, on the basis of an application made by an assessee, an extension of time to furnish return of income in response to notice under section 148. Such a power is not there in section 148 as has been introduced by the Amending Act. Further, in view of the outer limit of the period which may be granted to furnish return of income, it is quite possible to take a view that the AO does not have power to grant an extension of time to furnish the return of income. This view can be supported by the contention that there was an express power to grant extension in the erstwhile provisions, which has not been conferred under the amended provisions. Therefore, legislative intent is not to confer such a power on the AO. Non-furnishing of the return of income by the period specified in the return would render such a return to be a return which has not been furnished under section 139 and all consequences thereof will follow.

4.7 Definition of the expression “the information with the Assessing Officer which suggests that income chargeable to tax has escaped assessment” expanded: A notice under section 148 can be issued only if the AO has information which suggests that the income chargeable to tax has escaped assessment in the case of the assessee for the relevant assessment year. The expression “the information with the Assessing Officer which suggests that income chargeable to tax has escaped assessment” was exhaustively defined in the erstwhile regime in Explanation 1 to the erstwhile section 148 whereas, under the amended provisions, this expression is defined exhaustively in Section 148(3).
On a comparison of the definition of this expression under the erstwhile provisions and under the amended provisions, one finds that earlier the definition had five clauses whereas now it has six clauses. The five clauses which were there in the erstwhile regime and which continue in the present provisions are:

(i) information received in accordance with risk management strategy;

(ii) any audit objection to the effect that assessment has not been made in accordance with the provisions of the Act;

(iii) any information received under agreements referred to in section 90 or 90A;

(iv) any information made available pursuant to a scheme notified under section 135A;

(v) any information which requires action in consequence of the order of a Tribunal or a Court.

Clause (vi) which has now been added in the definition of the said expression reads “any information in the case of an assessee emanating from survey conducted under section 133A, other than under sub-section (2A) of the said section, on or after the 1st day of September, 2024”.

The scope of the expression prima facie appears to have been widened whereas actually it is not so, since the information pursuant to survey conducted on assessee constituted deemed information under the erstwhile regime.

Earlier, under the erstwhile regime, if a survey was conducted under section 133A [other than under section 133A(2A)] and if such a survey was conducted on or after 1.4.2021 and it was conducted on the assessee, then it was deemed that AO had information which suggests that income chargeable to tax has escaped assessment. Therefore, an action of survey on the assessee which, under the erstwhile regime, constituted deemed information, now results into an information suggesting that income chargeable to tax has escaped assessment, with the difference being that the present provisions could even cover a case where information has emanated from a survey under section 133A conducted on some other person and not necessarily on the assessee.

Under the provisions as amended by the Amending Act, what is necessary is that the information in the case of an assessee should emanate from a survey conducted under section 133A [other than under section 133A(2A)]. Based on the language, it is possible to take a view that the survey need not be on the assessee, but the information should emanate as a result of the survey under section 133A [other than under section 133A(2A)].

4.8 Amended provisions do not provide for any situation / circumstance in which the AO shall be deemed to have information with the Assessing Officer which suggests that income chargeable to tax has escaped assessment:

Explanation 2 to erstwhile Section 148 provided for situations / circumstances in which the AO was deemed to have information which suggests that income chargeable to tax has escaped assessment. These were cases related to search initiated / books of accounts or documents pertaining to the assessee found in the course of search on some other person / any money, bullion, jewellery or other valuable article or thing belonging to the assessee and seized in the course of search of any other person / survey being conducted in the case of an assessee under section 133(A).

Now, under the provisions as amended by the Amending Act, since the assessment in search cases is covered by Chapter XIV-B, this provision is not necessary and therefore is not there. As regards information emanating from survey under section 133A, the same has been included in the definition of the expression “information which suggests that income chargeable to tax has escaped assessment”. This has been analysed in earlier paragraph.

4.9 Requirement to obtain prior approval of Specified Authority before issuing notice under section 148 done away with, except in cases where information is pursuant to scheme notified under section 135A: Under the erstwhile Section 148, up to 31st March, 2022 the AO was required to obtain prior approval of Specified Authority before issuing notice under section 148. This approval was in addition to the approval to be obtained by him for passing an order under section 148A(d) of the Act. The Finance Act, 2022 has w.e.f. 1st April, 2022 done away with this requirement in cases where an order under section 148A(d) was passed with prior approval of Specified Authority that it is a fit case for issuance of notice under section 148.

Under the provisions of Section 148 as amended by the Amending Act, there is no requirement of obtaining prior approval of Specified Authority before issuance of notice under section 148, except in a case where the AO has received information pursuant to a scheme notified under section 135A of the Act [second proviso to section 148].

4.9 Change in Specified Authority: For the purpose of section 148 and 148A, the Specified Authority is as defined in Section 151. Section 151 has been substituted w.e.f. 1st September, 2024. The Specified Authority as defined in present provisions of section 151 is stated hereafter in para 6.2.

4.10 Role of Specified Authority in case information is received pursuant to scheme notified under section 135A: In a case where information is received by the AO pursuant to the scheme notified under section 135A, then the provisions of Section 148A do not apply and a notice under section 148 can be issued by the AO after obtaining prior approval of Specified Authority. In such a case a question arises as to what is the role of Specified Authority? Is the information received under a scheme notified sacrosanct so that no further inquiry / response is to be called for even in a case where assessee challenges the correctness of the information received by the AO? If the information so received is to be regarded as sacrosanct, then the legislature would not have provided the requirement for obtaining prior approval of Specified Authority before issuing a notice under section 148, as that would then be a mere empty formality.

Under the erstwhile provisions as well, the provisions of section 148A did not apply to information received pursuant to scheme notified under section 135A. In that context, in Benaifer Vispi Patel vs. ITO [(2024) 165 taxmann.com 5 (Bombay)], an assessee in whose case there was a discrepancy in the information received pursuant to the scheme notified under section 135A, challenged the notice issued to her under section 148 before the Bombay High Court. The court held:

i) it cannot be conceived that at all material times, the information available in the electronic mechanism / system, would be free from errors and defects, in as much as the basic information which is being fed into the system would certainly be filed by the manual method and thereafter such information is converted and disseminated as an electronic data.

ii) since assessee had informed Assessing Officer that interest income disclosed in return was correct, such remarks or explanation as offered by assessee necessarily was required to be considered before Assessing Officer could proceed with issuance of notice under section 148.

Amendments to Section 148A: The Amending Act has substituted a new Section 148A in place of the erstwhile Section 148A. The effect of the amended Section 148A is as follows:

4.10 Conducting an enquiry before issuance of notice under section 148A done away with: Section 148A(a) of the erstwhile provisions empowered the AO to conduct an enquiry, if required, with respect to the information which suggests that income chargeable to tax has escaped assessment. This enquiry could be conducted with prior approval of Specified Authority. Results of the enquiry were to be shared with the assessee. As a result of this power, the AO was reasonably assured of the correctness of the information before he could issue a show cause notice under section 148A(b) of the Act.

Under the amended section 148A, there is no express power to the AO to conduct an enquiry before issuance of show cause notice. This will result in notices being issued without verification of the correctness of the information, and in cases where enquiry is conducted after issuance of the show cause notice under section 148A(1), to verify the correctness of the contentions of the assessee, then the AO will be under pressure of time to pass an order under section 148A(4).

4.11 Prior approval of Specified Authority not required for issuing notice under section 148A(1): Section 148A(1) of the amended provisions is akin to section 148A(b) of the erstwhile provisions. Like in the erstwhile regime, there is no requirement to obtain prior approval of Specified Authority for issuing notice under section 148A(1). Where AO has information suggesting that income chargeable to tax has escaped assessment, the AO is mandated to serve upon the assessee a notice under section 148A(1), before issuing a notice under section 148, asking him to show cause why a notice under section 148 should not be issued in his case for the relevant assessment year. An opportunity of hearing has to be provided to the assessee.

4.12 Statutory mandate to provide information which suggests that income chargeable to tax has escaped assessment along with the notice under section 148A: Under the amended provisions of section 148A(2), it is mandatory for the AO to give information which suggests that income chargeable to tax has escaped assessment in his case for the relevant assessment year along with the show cause notice. It is the entire information and material which the AO has, which should accompany the notice issued under section 148A(2). Not giving information along with the notice will be a jurisdictional defect rendering the notice bad in law and liable to be quashed. Furnishing the information subsequently upon the assessee asking for the same, may not meet the requirements of the provision. Opportunity of being heard has to be necessarily provided to the assessee. Not granting opportunity of being heard, apart from being a violation of the principles of natural justice, will be contrary to the statutory mandate of section 148A(1) of the Act. Furnishing / giving partial information or portions of information considered relevant by the AO will not be compliance of the mandate of this provision.

It is not necessary that the AO must merely have information but the ‘information’ must prima facie, satisfy the requirement of enabling a suggestion of escapement from tax – Divya Capital One (P) LTD. vs. Assistant Commissioner of Income Tax & Anr [(2022) 445 ITR 436 (Del)]; Dr. Mathew Cherian & Ors. vs. ACIT [(2022) 329 CTR 809 (Mad.)] and Excel Commodity & Derivative (P) Ltd. vs. UOI [(2022) 328 CTR 710 (Cal.)].

4.13 No statutory time limit for furnishing response to show cause notice issued under section 148A(1): Section 148A(2) of the amended provisions provides that an assessee, on receiving the notice under section148A(1), may furnish his reply within such period as is mentioned in the notice.

Under the erstwhile provisions, it was provided that the AO had to grant a minimum time period of seven days and a maximum time period of 30 days to the assessee to furnish his reply. Also, it was provided that the AO may, on an application made by the assessee, extend the time granted for furnishing a reply. However, the amended provisions do not provide for any minimum or maximum period which needs to be granted. Therefore, the time to be granted to furnish a response to the show cause notice will now be at the discretion of the AO. However, principles of natural justice will demand that a reasonable time be granted to the assessee to furnish his response. There could be a debate as to what constitutes reasonable time. One may contend that a time period of two weeks would be reasonable time period and for this one may place reliance on the circulars of CBDT in the form of SOPs for Assessment Unit under Faceless Assessment Scheme, 2019 being Circular dated 19th November, 2020 and also SOP for Assessment Unit dated 3rd August, 2022, where for the purposes of furnishing response to notices under faceless assessment schemes it is stated that a time period of 15 days be granted. The courts in various contexts have held a time period of 15 days to be reasonable time period. At the worst, the time period of seven days provided in erstwhile provisions could be taken to be a reasonable yardstick.

4.14 Section 148A does not apply to cases where information is received pursuant to scheme notified under section 135A: Like in the erstwhile regime, even the amended provisions provide that where information is received pursuant to the scheme notified under section 135A of the Act, then the provisions of section 148A are not applicable to such information. In such a case, the AO can directly issue a notice under section 148 with prior approval of Specified Authority [Section 148A(4)]

4.15 Express power not available to grant extension of time for furnishing reply to the show cause notice issued under section 148A(1) : The erstwhile provisions of section 148A(b) clearly empowered the AO to grant on the basis of an application by the assessee, further time to furnish response to show cause notice issued by the AO. Such an express power is now missing in the amended provisions of section 148A(1) of the Act. Consequently, the AO having granted time (which he considers to be reasonable) mentioned in the notice issued by him, may refuse to grant extension of time on the ground that the section does not provide so. However, it is possible to contend that the AO has an inherent power to grant extension. In the event, the AO issues notice under section 148A(1) when the issuance of notice under section 148 is getting time barred soon, then the AO will be reluctant to grant extension of time and this may result in avoidable litigation.

4.16 Statutory obligation to provide opportunity of being heard continues: Like in the erstwhile regime, even the amended provisions provide for granting an opportunity of being heard. Opportunity of being heard would mean an opportunity of a personal hearing as well. Not granting an opportunity of being heard would be a fatal defect which may lead to the proceedings being quashed.

4.17 Order under section 148A(3) is to be passed on the basis of material available on record and taking into account reply of the assessee. Does material available on record mean only information available with the AO on the basis of which a notice under section 148A(1) has been issued? The amended provisions in Section 148A(3) provide that an order shall be passed by the AO determining whether or not it is a fit case to issue notice under section 148. This order shall be passed on the basis of material available on record and taking into account the reply of the assessee furnished under section 148A(2).

A question which arises for consideration is as to whether, when the provision refers to material available on record, is it merely the information which the AO has which suggests that income chargeable to tax has escaped assessment in the case of an assessee or is it any other material as well. The AO, on the basis of information which he has, issues a show cause notice, and the assessee furnishes the response thereto. To verify the correctness of the response furnished by the assessee, the AO may make enquiry by exercising powers vested in him under the Act and the results of such enquiry may also be the basis of determining whether or not it is a fit case for issuance of notice under section 148. However, the results of such enquiry will need to be shared with the assessee and the assessee granted an opportunity of furnishing his response thereto.

This view also gets support from the provisions of section 149, which provide that if three years but not more than five years have elapsed from the end of relevant assessment year, then a notice under section 148A can be issued only if, as per information with the AO, the income chargeable to tax which has escaped assessment amounts to or is likely to amount to ₹50 lakh or more. However, when it comes to issuance of notice under section 148, the requisite condition inter alia is that the AO has in his possession books of account or other documents or evidence related to any asset or expenditure or transaction or entries which show that the income chargeable to tax which has escaped assessment amounts to or is likely to amount to ₹50 lakh or more.

On a comparison of the two, it is clear that at the stage of issuance of notice under section 148A, what the legislature envisages is merely information with the AO whereas when it comes to issuance of notice under section 148, the requisite condition is AO having in his possession books of account, documents or evidence. It appears that these books of accounts, documents or evidence can come into possession of the AO in the course of proceedings under section 148A as a result of enquiries or otherwise.

4.18 Passing of an order under section 148A(3) requires prior approval of Specified Authority: The amended provisions of section 148A(3) provide that an order can be passed under section 148A(3), determining whether or not it is a fit case for issuance of notice under section 148, only with the prior approval of Specified Authority. For this purpose, Specified Authority is defined in section 151 to mean Additional Commissioner or Additional Director or Joint Commissioner or the Joint Director, as the case may be. Under the erstwhile provisions as well prior sanction of the Specified Authority was necessary. However, the Specified Authority under the erstwhile provisions was as stated in Para 6.2.

4.19 No outer time limit to pass an order under section 148A(3): Section 148A(d) of the erstwhile provisions provided that an order under section 148A(d) was required to be passed within one month from the end of the month in which the reply of the assessee was received and, where no reply was furnished, within one month from the end of the month in which the time or extended time allowed to furnish a reply expired.

Under the amended provisions, there is no outer limit for passing an order under section 148A(3), but the time limit provided in section 149 for issuance of notice under section 148 will indirectly work as an outer time limit for passing an order under section 148A. The AO will need to ensure that he has sufficient time to issue notice under section 148, which has to be accompanied by an order passed under section 148A(3).

5 Amendments to Section 149: The Amending Act, with effect from 1st September, 2024, has substituted a new Section 149 in place of the erstwhile Section 149. Section 149 provides for limitation period beyond which notice under section 148 / 148A cannot be issued.

5.1 Under the erstwhile provisions of section 149 it was only time limit for issuance of notice under section 148 which was provided. The amended provisions of section 149 provide for separate time limits for issuance of notice under section 148A and also for section 148. The time limits and the conditions for issuance of notice are as under:

Time which has elapsed from the end of the relevant assessment year Conditions, if any / Observations
For issuance of notice under section 148A
Not more than three years

 

[Section 149(2)(a)]

AO should have information which suggests that income chargeable to tax has escaped assessment.

 

There is no de minimis as far as quantum of income which has escaped assessment is concerned. It could be a miniscule sum or it could be an amount in excess of ₹50 lakh or much more than that too.

More than three years but not more than five years

 

[Section 149(2)(b)]

AO should have information which suggests that income chargeable to tax has escaped assessment; and

 

Income chargeable to tax which has escaped assessment, as per the information with the AO, amounts to or is likely to amount to ₹50 lakh or more

For issuance of notice under section 148
Not more than three years and three months

 

[Section 149(1)(a)]

AO should have information which suggests that income chargeable to tax has escaped assessment.

 

There is no de minimis as far as quantum of income which has escaped assessment is concerned. It could be a miniscule sum or it could be an amount in excess of ₹50 lakh or much more than that too.

More than three years and three months but not more than five years and three months

 

[Section 149(1)(b)]

AO should have information which suggests that income chargeable to tax has escaped assessment; and

 

AO has in his possession books of account or other documents or evidence related to any asset or expenditure or transaction or entries which show that the income chargeable to tax, which has escaped assessment, amounts to or is likely to amount to ₹50 lakh or more.

The limitation under section 149 is for issuance of notice under section 148A and not for passing of an order under section 148A(3).

5.2 Illustrations:

i) For A.Y. 2023–24: A notice under section 148A for A.Y. 2023–24 can be issued at any time up to 31st March, 2027 and a notice under section 148 for A.Y. 2023–24 can be issued at any time up to 30th June, 2027, irrespective of the quantum of income which is alleged to have escaped assessment. After 31st March, 2027, notice under section 148A can be issued up to 31st March, 2029 only if the income escaping assessment as per the information with the AO amounts to or is likely to amount to ₹50 lakh or more. After 30th June, 2027, notice under section 148 can be issued up to 30th June, 2029 only if AO has in possession books of account or other documents or evidence related to any asset or expenditure or transaction or entries which show that the income chargeable to tax which has escaped assessment amounts to or is likely to amount to ₹50 lakh or more. After 30th June, 2029, notice under section 148 cannot be issued for A.Y. 2023–24.

ii) For A.Y. 2019–20: A notice under section 148A for A.Y. 2019–20 can be issued up to 31st March, 2025 only if income chargeable to tax which is alleged to have escaped assessment as per information with the AO is R50 lakh or more and a notice under section 148 can be issued up to 30th June, 2025 if the AO has in his possession books of account or other documents or evidence related to any asset or expenditure or transaction or entries which show that the income chargeable to tax, which has escaped assessment, amounts to or is likely to amount to ₹50 lakh or more.

5.3 Under the erstwhile provisions, Explanation to section 149 defined “asset”, whereas the amended provisions do not have definition of “asset”. Therefore, the term “asset” in section 149 would have to be understood in its normal sense as is explained by the dictionaries. The following are some of the meanings of “asset”:

(i) As per Black’s Law Dictionary (Eighth edition), the word “asset” means, an item that is owned and has value; the entries on a balance sheet showing the items of property owned, including cash, inventory, equipment, real estate, accounts receivable and goodwill; all the property of a person available for paying debts or for distribution;

(ii) In Velchand Chhaganlal vs. Mussan 14 Bom.L.R. 633, it was held that the word “assets” means, a man’s property of whatever kind which may be used to satisfy debts or demands existing against him;

(iii) In Funk & Wag-nail’s Standard Dictionary, “asset” has been defined as meaning, in accounting, the entries in a balance-sheet showing the properties or resources of a person or business as accounts receivable, inventory, deferred charges and plant as opposed to liability. The assets also signify everything which can be made available for the payment of debts. [UOI vs. Triveni Engg. Works Ltd., (1982) 52 Comp. Cas 109 (Del)];

(iv) “Asset” is a word of wide import. In its common acceptation the term means property, real and personal, property owned, property rights. It represents something over which a man has domain and can transfer with or without consideration, and which may be reached by execution process – Oudh Sugar Mills Ltd. vs. CIT [(1996) 222 ITR 726 (Bom)].

5.4 Under the erstwhile provision, the sum of ₹50 lakh alleged to be income chargeable to tax which has escaped assessment was to be computed with reference to aggregate of investment in asset or expenditure incurred in various years in which such investment was made or expenditure incurred, whereas under the amended provisions, the limit of ₹50 lakh is qua each assessment year.

5.5 The time limit for reopening the assessments has been reduced from ten years under the erstwhile provisions to five years under the amended provisions.

6 Amendments to Section 151: The Amending Act has, with effect from 1st September, 2024, substituted a new Section 151 in place of the erstwhile Section 151.

6.1 Under the erstwhile provisions, the Specified Authority for granting approval for the purposes of section 148 and 148A depended upon the time period which has elapsed after the end of the relevant assessment year till the date of issuance of the notice / passing of an order for which approval was being granted. Under the present provisions, irrespective of the number of years which have elapsed from the end of the relevant assessment year, the Specified Authority is the same.

6.2 The Specified Authority under the erstwhile provisions and under the amended provisions is as mentioned in the Table below:

Number of years which have elapsed from the end of the relevant assessment year Specified Authority under the erstwhile provisions Specified Authority under the amended provisions
Three years or less PCIT or PDIT or CIT or DIT The Additional Commissioner or the Additional Director or the Joint Commissioner or the Joint Director
More than three years PCCIT or PDGIT or CC or CDG

6.3 The expression “Assessing Officer” is defined in section 2(7A) inter alia to mean Additional Commissioner or Additional Director or Joint Commissioner or Joint Director who is directed under 120(4)(b) to exercise or perform all or any of the powers and functions conferred on, or assigned to, an Assessing Officer under the Act. Therefore, if an Additional Commissioner or Joint Commissioner has done an assessment of income of the relevant assessment year which is sought to be reopened, can the very same authority be regarded as Specified Authority authorised to grant approval for the purposes of section 148 and 148A? It would be fallacious to contend that same authority which has framed assessment order can grant approval for issuance of notice for reassessment. It is understood that, presently, in practice, Additional Commissioner or Joint Commissioner does not frame assessments and therefore this question is academic.

7 Amendments to Section 152: The Amending Act has, with effect from 1st September, 2024, inserted sub-sections (3) and (4) in Section 152.

7.1 Sub-sections (3) and (4) of section 152 provide that the provisions of sections 147 to 151, as they stood prior to their amendment by the Amending Act shall continue to apply in the following cases:

(i) where on or after 1st April, 2021 but before
1st September, 2024:

(a) a search has been initiated under section 132; or

(b) requisition is made under section 132A; or

(c) a survey is conducted under section 133A [other than under section 133(2A)]; or

(ii) where a case is not covered by (i) above and prior to 1st September, 2024:

(a) a notice under section 148 has been issued; or

(b) an order has been passed under section 148A(d).

7.2 In view of the above, the erstwhile provisions of sections 147 to 151 shall continue to apply to all cases where, up to 31st August, 2024, a notice under section 148 is issued or an order is passed under section 148A(d) of the Act. It is relevant to note that issuance of notice under section 148 up to 31st August, 2024 or passing of an order (and not necessarily its service) under section 148A(d) is sufficient to have the case covered by the erstwhile provisions of sections 147 to 151.

7.3 In respect of a search which has been initiated up to 31st August, 2024, the provisions of erstwhile sections will apply to the assessee in whose case search is initiated. However, if in such a search, any money, bullion, jewellery or other valuable article or thing belonging to any other person is seized, then whether, to such other person, the provisions of erstwhile sections 147 to 151 will apply or will the provisions as amended by the Amending Act apply? It appears that it will be the provisions as amended by the Amending Act which will apply. However, the matter is not free from doubt.

8 Consequence of reduction in time limit for reopening from six years to five years:

8.1 As a result of reduction in time period for re-opening of assessments from six years to five years, on 1st September, 2024, i.e., upon the coming into force of the amended provisions, issuance of notice under section 148 / 148A for assessment year 2018–19 will be time barred. However, if for A.Y. 2018–19, a notice under section 148 is issued up to 31st August, 2024 or an order under section 148A(d) is passed up to 31st August, 2024, then the provisions of erstwhile sections 147 to 151 shall apply. The Department is presently trying to issue notices for A.Y. 2018–19, in all cases where the AO has information that suggests that income chargeable to tax has escaped assessment.

9 Sanctions to be obtained: Under the erstwhile provisions, as were in force immediately before their amendment by the Amending Act, subject to certain exceptions, approval was required for:

(i) conducting an enquiry before issuance of notice under section 148A(b);

(ii) passing of an order under section 148A(d) determining whether or not it is a fit case for issuance of notice under section 148;

(iii) up to 31st March, 2022, issuance of notice under section 148 in all cases;

(iv) from 1st April, 2022, for issuance of notice under section 148 in cases where an order under section 148A(d) was not required to be passed.

Important Amendments by The Finance (No. 2) Act, 2024 – Buy-Back of Shares

BACKGROUND

The tax treatment of buy-back of shares has been a focal point of legislative intervention since the concept’s inception. In a buy-back, a company purchases its own shares for cancellation and pays consideration to the shareholders. From a shareholder’s perspective, this transaction resembles the sale of shares, with the company itself acting as the buyer. However, from the standpoint of the Companies Act, a company purchasing its own shares cannot hold them as treasury stock, and the quantum of the buy-back is partially linked to reserves, aligning its treatment more closely with dividends. This distinction has significantly influenced the legislative framework governing the taxation of buy-backs.

Prior to the Finance Act of 2013, the law provided that any consideration received by a shareholder on a buy-back was not treated as ‘dividend’ due to a specific exemption under section 2(22)(iv). Such buy-back considerations were instead taxed as ‘capital gains’ under section 46A in the hands of shareholders. In the case of shareholders residing in Mauritius or Singapore, India did not have the right to tax capital gains, allowing the entire buy-back proceeds to be repatriated tax-free. Consequently, companies increasingly used buy-backs as an alternative to dividend payments, thereby avoiding the Dividend Distribution Tax (DDT).

This tax arbitrage was addressed by the Finance Act of 2013 through the introduction of section 115QA, which shifted the tax liability to the company executing the buy-back. The Memorandum to the Finance Bill 2013 highlighted the issue:

“Unlisted Companies, as part of tax avoidance schemes, are resorting to buy-backs of shares instead of paying dividends to avoid the payment of tax by way of DDT, particularly where the capital gains arising to the shareholders are either not chargeable to tax or are taxable at a lower rate.”

Following the amendment, the regime for buy-backs became analogous to that of dividends, with the company paying the tax, and the income being exempt in the hands of shareholders under section 10(34A). The Finance Act 2020 abolished DDT (i.e., section 115-O) and reverted to the classical method of taxation, wherein dividends are taxed in the hands of the shareholders. This change led to a shift from a flat DDT rate to variable tax rates for shareholders — 36 per cent for residents and 20 per cent for non-residents (potentially reduced under DTAA rates). However, section 115QA remained intact, with companies continuing to pay tax at a flat rate of 23.296 per cent (inclusive of surcharge and cess), while the shareholders’ income remained exempt under section 10(34A). This discrepancy once again created an opportunity for tax arbitrage. For resident individual shareholders, dividends were taxed at 36 per cent, whereas buy-backs were taxed at 23.296 per cent. Moreover, since the tax was borne by the company, a larger distributable amount remained with the shareholders, prompting unlisted companies to favour buy-backs over dividend declarations to exploit the tax advantage.

This practice was curtailed by the Finance Act (No. 2) of 2024, which introduced a classical, albeit unconventional, split in the tax treatment. The new law proposes to treat the consideration received on a buy-back as a dividend, while the extinguishment of shares by shareholders is treated as a capital gain. This hybrid treatment is the focus of the article’s analysis.

LAW PRIOR TO AMENDMENT

Section 115QA mandated a flat rate of taxation at 23.296 per cent on the company executing the buy-back, while the consideration received by the shareholder was exempt under section 10(34A). The law, as it stood, had several unique features:

  • Tax Liability on the Company: The obligation to pay tax was placed on the company, allowing it to distribute the entire amount computed under section 68 of the Companies Act, 2013, to shareholders. The tax paid on the buy-back did not count towards the limits set by the law, enabling a higher payout to shareholders. Consequently, the effective tax rate, on a derivative basis, reduced to 18.89 per cent (calculated as 23.296/123.926*100).
  • Tax on Distributed Income (DI): The tax was levied on the distributed income, which was defined as the amount received by the company upon the issuance of shares, minus the consideration paid on the buy-back. This definition excluded the cost to the shareholder in cases where shares were purchased through secondary transfers, resulting in tax being paid on a higher amount than the actual income generated.
  • Challenges for Non-Resident Shareholders: Since the tax was paid by the company in addition to the corporate tax, non-resident shareholders faced difficulties in claiming tax credits in their home countries. This scenario often led to the possibility of double taxation.
  • Exemption for Shareholders: With the income being exempt in the hands of shareholders and the tax borne by the company, listed companies frequently offered buy-back prices above market value to incentivize participation. Shareholders, seeing significant value appreciation, were thus motivated to tender their shares in the buy-back.

This tax arbitrage was addressed by the Finance Act (No. 2) of 2024, which introduced significant changes to the tax regime governing buy-backs.

AMENDMENT BY FINANCE (NO. 2) ACT 2024

Finance (No. 2) Act 2024 introduced series of amendment introducing novel method to tax buy back. Following are list of amendments:

i) Introduction of section 2(22)(f) in the ‘Act’ to state that any payment by a company on purchase of its own shares from a shareholder in accordance with the provisions of section 68 of the Companies Act, 2013 is taxable as dividend. (Clause 3 of the Bill)

ii) Insertion of proviso to section 10(34A) of the Act to provide that this clause shall not apply with respect to any buy-back of shares by a company on or after the 1st October, 2024. (Clause 4 of the Bill).

iii) Insertion of a proviso to section 46A of the Act w.e.f. 1st October, 2024 to provide that where a shareholder receives any consideration of the nature referred to in sub-clause (f) of section 2(22) from any company, in respect of any buy-back of shares, then the value of consideration received by the shareholder shall be deemed to be “nil’. (Clause 18 of the Bill)

iv) Insertion of a new proviso to section 57 to provide that that no deduction shall be allowed in case of dividend income of the nature referred to in sub-clause (f) of clause (22) of section 2. (Clause 24 of the Bill)

v) Insertion of a further proviso to sub-section 115QA(1) of the Act whereby it would not apply in respect of any buy-back of shares that takes place on or after 1st October, 2024. (Clause 39 of the Bill)

vi) Amendment to section 194 of the Act on deduction of taxes at source @10 percent on payments of dividend, to make it applicable to sub-clause (f) of clause (22) of section 2. (Clause 52 of the Bill)

Provisions are effective from 1st October, 2024. In other words, buy back before cut-off date will be governed by section 115QA. It is advisable that buy back scheme is complete in all respects (including filing with ROC), to avoid transitionary issues.

IMPLICATIONS IN HANDS OF COMPANY

Previously, companies were required to pay buy-back tax under section 115QA. With the recent legislative changes, the law now treats the payment of consideration by the company as a dividend, making it taxable in the hands of the shareholder. Consequently, the company assumes the role of a tax deductor. It will be required to deduct tax under section 194 or section 195 of the Income Tax Act, depending on the specific circumstances. Following the deduction, the company must remit the tax and comply with the filing requirements for TDS (Tax Deducted at Source) and SFT (Statement of Financial Transactions) returns.

The treatment of buy-back proceeds as dividends remains consistent even in scenarios where the company does not have accumulated profits. The deliberate omission of the phrase “to the extent of accumulated profits,” which is present in other provisions of Section 2(22), underscores the intent to classify buy-back transactions as dividends irrespective of the company’s profit status. This is particularly relevant in cases where the buy-back is funded from the securities premium account. However, from an equity perspective, securities premium fundamentally represents a repayment of capital, and therefore, its characterization as a dividend raises questions. The underlying principle is that securities premium should not be treated as a dividend, as it does not constitute income in the traditional sense but rather a return of capital to shareholders.

An intriguing question arises regarding buy-backs conducted under sections 230 to 232 of the Companies Act, which require approval from the National Company Law Tribunal (NCLT). The query is whether such buy-backs will be treated as dividends. This ambiguity exists because section 2(22)(f) of the Income Tax Act specifically refers to the purchase of shares in accordance with the provisions of section 68 of the Companies Act, 2013. A similar situation emerged concerning section 115QA, where the definition of buy-back initially referred only to section 77A of the Companies Act, 1956. This definition was subsequently broadened by the Finance Act of 2016 to include the purchase of shares in accordance with the provisions of any law in force relating to companies. However, this amendment was applied prospectively.

In the absence of a similar broadening of the language in the current context, it can be argued that only buy-backs conducted in accordance with section 68 of the Companies Act, 2013, fall within the scope of the new definition of dividend. At the same time, care and caution needs to be exercised as Court / Tribunal in undernoted decision1 have recharacterised buy back as dividend.

On similar lines, redemption of preference shares is governed by section 55 of Companies Act 2013 and should be outside the purview of provisions.

TAX IMPLICATIONS IN THE HANDS OF RESIDENT SHAREHOLDERS

CHARACTERISATION OF BUY-BACK CONSIDERATION

Section 2(22) of the Income-tax Act defines “dividend,” and clause (f) within this section specifically includes payments made by a company for purchasing its own shares as dividends. This definition of dividend is applied consistently across the entire Act, meaning that the consideration received by shareholders during a buy-back transaction will be treated as dividend income. Consequently, this income must be reported under the head “Income from Other Sources” and taxed accordingly.


1 Cognizant Technology-Solutions India Pvt. Ltd., vs. ACIT [2023] 154 taxmann.com 309 (Chennai - Trib.); Capgemini India (P.) Ltd., In re [2016] 67 taxmann.com 1 (Bombay HC)

Section 57 of the Act prohibits any deductions against this income, implying that the entire buy-back consideration will be taxed on a gross basis, without allowing any deduction for the original cost of the shares. Shareholders must also account for this dividend income when calculating their advance tax obligations. However, interest obligations under Section 234C will only commence from the quarter in which the dividend is actually received.

The Act allows this dividend income to be set off only against losses under the heads “House Property” or “Business Loss.” The fiction of treating buy-back consideration as dividend is intended to be applied uniformly throughout the provisions of the Act. For shareholders that are domestic companies, the benefit of Section 80M should be available. In essence, buy-back consideration deemed as dividend can be considered by the company if it further declares dividends to its shareholders or engages in additional buy-backs, allowing the company to claim a deduction under Section 80M. As a result, tax will only be paid on the income exceeding the relief available under Section 80M. Additionally, an Indian company can claim a capital loss for the shares bought back and set it off against future capital gains, effectively allowing for a double benefit under the new regime.

TAX RATE ON DIVIDEND INCOME

Dividend income, classified as “Income from Other Sources,” is taxed according to the applicable income tax slab rates. The highest tax rate for a resident individual taxpayer is 36 per cent. It’s important to note that the surcharge on Buy-Back Tax (BBT) is capped at 12 per cent, compared to a 15 per cent surcharge on dividend income, potentially resulting in a higher overall tax burden on dividend income. On the other hand, if a shareholder’s income falls below the taxable slab limits, the entire dividend income may be tax-free, allowing the shareholder to carry forward the cost of acquisition as a capital loss.

SHARES HELD AS STOCK IN TRADE

The new scheme of taxation primarily addresses cases where shares are held as capital assets. However, an important issue arises when shares are held as stock-in-trade, which is particularly relevant because dividend income is generally required to be offered for tax under the head “Income from Other Sources” without any deductions.

In the author’s view, since these shares are held as business assets, the appropriate head of income for dividend income should be “Business Income” under Section 28 of the Income-tax Act2. This approach would allow for a more accurate reflection of the economic reality of holding shares as part of the business inventory. Accordingly, the cost of shares should be allowed as a deduction when computing the business income, ensuring that the income is taxed in a manner consistent with its treatment as part of the business operations3. This interpretation aligns with the principle of matching income with related expenses, thereby providing a fair and logical tax outcome for shares held as stock-in-trade.


2 Refer CIT v Coconada Radhaswami Bank Ltd (1965) 57 ITR 306 (SC)
3 Badridas Daga v CIT (1958) 34 ITR 10 (SC); Dr TA Quereshi v CIT (2006) 287 ITR 547 (SC)

COST OF ACQUISITION OF SHARES

From the shareholder’s perspective, the buy-back results in the extinguishment of shares. Under the law, the cost of acquisition of these shares is treated as a capital loss, which can then be set off against other capital gains. This treatment is facilitated by an amendment to Section 46A, a special provision introduced by the Finance Act of 1999. This section states that, subject to the provisions of Section 48, the difference between the consideration received on buy-back and the cost of acquisition is deemed to be capital gains for the shareholder.

The Finance Act (No. 2) 2024 adds a proviso to Section 46A, deeming the value of the consideration received by the shareholder as Nil. Since the consideration is deemed Nil, the cost of acquisition becomes a capital loss, which can be carried forward according to the provisions of the capital gains chapter. The law’s intention is to allow shareholders to offset this loss against future gains, thereby economically maintaining the status quo. The Memorandum to the Finance Bill provides detailed numerical examples illustrating this tax neutrality.

Because the consideration is deemed Nil, this treatment applies uniformly across all provisions of the Act. Notably, the provisions of Section 50D or Section 50CA cannot be used to notionally increase the consideration. This fiction of Nil consideration will also hold true in the context of transfer pricing provisions involving non-resident Associated Enterprises (AEs).

An interesting question arises regarding the determination of the cost of acquisition for the purposes of Section 46A. Shareholders may acquire shares through direct purchase, various modes specified in Section 47 read with Section 49, or by acquiring shares before 31st January, 2018, which would qualify for the grandfathering benefit under Section 55(2)(ac). Section 46A references the cost of acquisition and explicitly makes its provisions subject to Section 48, which outlines the mode of computation but does not define the cost of acquisition itself.

While Section 49 provides the cost of acquisition for specific modes of acquisition, Section 46A does not directly reference this section, nor does it explicitly refer to Section 55, which defines the cost of acquisition for the purposes of Sections 48 and 49. This creates ambiguity, as Section 46A does not provide a clear fallback to Sections 49 and 55 for determining the cost of acquisition.

There are two possible interpretations of this issue:

1. Strict Interpretation (Recourse Not Permissible): Some may argue that Section 46A, being a special provision, is intended to override the general provisions of Sections 45 and 47. If this interpretation is followed, it would imply that recourse to other provisions, such as those allowing for a step-up in cost under Sections 49 and 55, may not be permissible. This view treats Section 46A as a self-contained code, limiting the ability to refer to other sections for determining the cost of acquisition.

2. Contextual Interpretation (Recourse Permissible): On the other hand, it can be argued that this interpretation is too extreme. Section 46A is explicitly made subject to Section 48, and Section 55 provides the cost of acquisition for the purposes of Section 48. Therefore, it stands to reason that the cost step-up provisions, including those under the grandfathering rules in Section 55(2)(ac), should be available to shareholders. Additionally, the headnotes of Section 49 state that it pertains to the “cost with reference to certain modes of acquisition,” which suggests that it should be interpreted in a manner similar to Section 55. This interpretation aligns with the legislative intent to preserve the cost base for shareholders, ensuring that they are not disadvantaged by the lack of explicit reference in Section 46A.

In conclusion, while there is room for debate, the contextual interpretation that allows recourse to Sections 49 and 55 seems more consistent with the broader legislative intent and the structure of the Income-tax Act. This approach ensures that shareholders can benefit from the cost step-up provisions, thereby maintaining their cost base and achieving a fairer tax outcome.

The grandfathering provisions under Section 55(2)(ac) require a comparison of three key values: the cost of acquisition, the fair market value of the asset as on 31st January, 2018, and the full value of consideration received or accruing as a result of the transfer. Among these, the lowest value must be adopted as the cost base for computing capital gains.

However, the proviso to Section 46A introduces a significant twist by deeming the third limb—the full value of consideration received — to be Nil in the context of buy-back transactions. As a result, the benefit of the grandfathering provisions effectively becomes unavailable in these cases. Since the deemed consideration is Nil, the computed capital gains could potentially be much higher, negating the protective intent of the grandfathering rules.

Given this scenario, shareholders might find themselves better off by selling their shares in the open market and paying tax on the resultant long-term capital gains, rather than opting for a buy-back. This approach would allow them to fully utilise the grandfathering benefit, thereby reducing their tax liability. Consequently, this provision makes buy-back transactions less attractive compared to a straightforward market sale, especially for shares that have appreciated significantly since 31st January, 2018.

TREATMENT OF CAPITAL LOSS

The cost of acquisition treated as a capital loss in the hands of the shareholder falls under the head “Capital Gains” and is governed by Section 74. A short-term capital loss can be set off against either short-term or long-term capital gains, while a long-term capital loss can only be set off against long-term gains. Overall, capital losses can be carried forward for a period of eight years.

Capital loss from a buy-back may arise from both listed and unlisted shares and can be set off against capital gains from the sale of shares, immovable property, or any other capital asset. This broad spectrum of gains available for set-off provides flexibility to shareholders. There may be instances where capital loss may not be available for set off:

  • If no future gains arise within the eight-year period, the capital loss becomes a dead cost.
  • In cases where the transfer is exempt under the Income-tax Act, such as transfers between a holding company and its subsidiary, the capital loss from a buy-back may not be allowable for set-off. Although the buy-back would be fully taxed, the exemption on the transfer prevents the recognition of the capital loss, leading to double jeopardy for the holding company, which faces taxation without the benefit of loss offset.
  • If shares were converted into stock-in-trade prior to 1st October, 2024, and the buy-back occurs after this date, the entire proceeds would be taxed as dividend income. Simultaneously, the suspended capital gains tax on the conversion would become taxable under Section 45(2) of the Income-tax Act. This situation again results in double jeopardy, as the shareholder faces dual taxation. However, in such cases, the fair market value of the stock-in-trade as on the date of conversion should be allowed as a business loss at the time of the buy-back, providing some relief to the tax payer. From an equity perspective, the consideration is taxed as a dividend at a rate of 36 per cent, while the set-off of capital loss is available against long-term gains taxed at 12.5 per cent or short-term gains at 20 per cent. This discrepancy results in higher taxable income, reducing the real gain in the hands of the shareholder. Additionally, shareholders must file a return of income to carry forward the loss in accordance with Section 80, even if they have no other income chargeable to tax.

For the company, capital loss is attached to the company itself. In cases of merger or demerger, there are no transitional provisions since Section 72A only addresses the transfer of business loss. Furthermore, shareholders of unlisted companies cannot carry forward and set off capital losses if there is a change in shareholding that triggers Section 79.

TAX IMPLICATIONS IN HANDS OF NON-RESIDENT SHAREHOLDER

TAX RATE

For non-resident shareholders, dividend income is taxed under Section 115A of the Income-tax Act at a flat rate of 20 per cent (plus applicable cess and surcharge). However, this rate can be reduced under the provisions of the Double Taxation Avoidance Agreement (DTAA) between India and the shareholder’s country of residence. Depending on the specific treaty, the tax rate may be reduced to 5 per cent4 or 10 per cent5 or 15 per cent6, provided the non-resident shareholder meets the treaty eligibility criteria, such as the Principal Purpose Test (PPT) or the Limitation of Benefits (LOB) clause.


4 Hongkong, Malaysia, Mauritius if shareholding in India Company is at least 15%
5 UK, Norway, Ireland, France
6 USA, Singapore

Regarding the cost of shares, it will be treated as a capital loss, which can be set off in the manner prescribed earlier. However, this brings into focus a potential tax disadvantage for Foreign Direct Investment (FDI) shareholders who do not have any other investments in India. The capital loss arising from the buy-back of shares can typically only be set off against capital gains from the sale of shares in the FDI company. In such cases, the conventional route of declaring dividends might be more tax-efficient for the non-resident shareholder, as it would allow for a more immediate and potentially beneficial tax treatment compared to the deferral and potential loss of the capital loss offset in the buy-back scenario.

DIVIDEND CHARACTERISATION UNDER DTAA

Shareholders have the option to choose between the provisions of the Double Taxation Avoidance Agreement (DTAA) and domestic law, depending on which is more beneficial to them. The Dividend Article under most DTAAs offers a concessional rate of taxation. However, an important consideration is whether the dividend defined under Section 2(22)(f) of the Income-tax Act qualifies as a dividend under the DTAA.

One approach is the “pick and choose” method, where the shareholder adopts the domestic law definition of “dividend” for characterisation purposes and then opts for the concessional DTAA rate. This approach has been supported by courts and tribunals in various cases7, allowing shareholders to leverage the more favourable aspects of both the domestic and treaty provisions.


7 ACIT vs. J. P. Morgan India Investment Company Mauritius Ltd [2022] 143 taxmann.com 82 (Mumbai - Trib.)

Alternatively, one might argue that the dividend under Section 2(22)(f) does not fall within the Dividend Article of the DTAA. If successful, this argument would imply that the consideration received during the buy-back is not taxable as a dividend under the DTAA. Instead, it would fall under the Capital Gains Article, with its computation governed by domestic law. Under Section 46A, the consideration is deemed to be Nil, and this fiction remains absolute, irrespective of the taxability of the consideration in the hands of the shareholder. The “Other Income” Article in the DTAA would only apply if the income is not addressed by any other specific Article.

For this discussion, let’s consider the Dividend Article as defined in the OECD Model Convention (MC) and the UN Model Convention (MC). The definition of “dividend” under these conventions comprises three parts:

1. Income from shares;

2. Income from other rights, not being debt-claims, participating in profits; and

3. Income from other corporate rights which is subjected to the same taxation treatment as income from shares by the laws of the Contracting State of which the company making the distribution is a resident.

These parts are interconnected, particularly through the use of “other” in the second and third parts, which serves as a linking element. While the first two parts are intended to be autonomous, the third part is complementary, including income from other corporate rights, provided it is subject to the same tax treatment as income from shares under the laws of the source State. However, this does not automatically imply that all income treated domestically as dividend would fall within this definition.

Arguments Supporting that Dividend under Section 2(22)(f) Does Not Fall Within the Definition of Dividend under the DTAA:

  • For income to fall under any of the three limbs of the Dividend definition, it must originate “from” shares, other rights, participation in profits, or corporate rights. The term “from” implies a direct relationship between the income and the asset. The asset must exist at the time the income arises, which is a crucial aspect of the definition.
  • All three limbs require the asset to continue existing after the income is realised. This is consistent with the Supreme Court’s decision in Vania Silk Mills, where it was held that the charge under the capital gains article fails if the asset no longer exists after the transaction.
  • The Dividend Article should be interpreted from the shareholder’s perspective, not the company’s. Section 2(22)(f) is specific to the company, as indicated by the words “any payment by a company on purchase of its own shares from a shareholder.” From the shareholder’s perspective, this payment is the consideration received for selling shares, and the tax consequences should not differ merely because the shares are purchased by the company itself.
  • In cases involving buy-backs, there is a conflict between the Capital Gains Article and the Dividend Article. From the shareholder’s perspective, the transaction results in the extinguishment of rights in the company. This is acknowledged by the Memorandum to the Finance Bill, and the amendment to Section 46A, which deems the consideration to be Nil, indicates that the transaction is governed by capital gains provisions. The characterization of the transaction under the treaty should remain consistent, even if domestic law prescribes a different method of taxing the consideration.
  • The first limb of the Dividend definition deals with “income from shares.” If this were interpreted to include income from the alienation of shares, it would render the Capital Gains Article redundant.
  • The references to “other rights” or “other corporate rights” should be understood as rights arising from shareholding, not from the sale of shares. Klaus Vogel supports this interpretation, noting that “corporate rights” are meant to distinguish from “contractual rights” and should stem from a member’s rights within the company, not from a creditor’s right based on a contract or statute.

““With respect to the second element, income will stem from ‘corporate rights’ if it flows to the recipient because of a right held in the company, rather than against the company which implies a direct deviation from a member right as opposed to the right of a creditor based on any other contractual or statutory relationship.”

  • The OECD Commentary on Articles 10 also suggests that payments reducing membership rights, such as buy-backs, do not fall within the definition of dividends. Following are relevant extracts:

“The reliefs provided in the Article apply so long as the State of which the paying company is a resident taxes such benefits as dividends. It is immaterial whether any such benefits are paid out of current profits made by the company or are derived, for example, from reserves, i.e., profits of previous financial years. Normally, distributions by a company which have the effect of reducing the membership rights, for instance, payments constituting a reimbursement of capital in any form whatever, are not regarded as dividends.”

Arguments Supporting that Dividend under Section 2(22)(f) Does Fall Within the Definition of Dividend under the DTAA:

  • The DTAA does not exhaustively define “dividend,” leaving it to the contracting states to provide definitions. As such, Section 2(22)(f) could fall within the scope of the DTAA’s definition.
  • Characterising capital gains transactions as dividends is not unprecedented. For instance, Section 2(22)(c), which deals with capital reduction, treats payments as deemed dividends to the extent of accumulated profits.
  • The Mumbai Tribunal in KIIC Investment Company vs. DCIT8 sdealt with whether deemed dividends under Section 2(22)(e) fall within the Dividend Article of the India-Mauritius DTAA. The Tribunal held that, given the explicit reference to domestic law in the third limb of the definition, deemed dividends under Section 2(22)(e) should be considered dividends under the DTAA. Following are relevant extract:

“We have considered the aforesaid plea of the assessee, but do not find it acceptable. The India-Mauritius Tax Treaty prescribes that dividend paid by a company which is resident of a contracting state to a resident of other contracting state may be taxed in that other state. Article 10(4) of the Treaty explains the term “dividend” as used in the Article. Essentially, the expression ‘dividend’ seeks to cover three different facets of income; firstly, income from shares, i.e., dividend per se; secondly, income from other rights, not being debt claims, participating in profits; and, thirdly, income from corporate rights which is subjected to same taxation treatment as income from shares by the laws of contracting state of which the company making the distribution is a resident. In the context of the controversy before us, i.e., ‘deemed dividend’ under Section 2(22)(e) of the Act, obviously the same is not covered by the first two facets of the expression ‘dividend’ in Article 10(4) of the Treaty. So, however, the third facet stated in Article 10(4) of the Treaty, in our view, clearly suggests that even ‘deemed dividend’ as per Sec. 2(22)(e) of the Act is to be understood to be a ‘dividend’ for the purpose of the Treaty. The presence of the expression “same taxation treatment as income from shares” in the country of distributor of dividend in Article 10(4) of the Treaty in the context of the third facet clearly leads to the inference that so long as the Indian tax laws consider ‘deemed dividend’ also as ‘dividend’, then the same is also to be understood as ‘dividend’ for the purpose of the Treaty.”


8 [2019] 101 taxmann.com 19 (Mumbai - Trib.)
  • The OECD Commentary on Article 13 supports the idea that domestic law treatment can be decisive in determining whether a transaction falls within the Dividend Article, even when the transaction involves the alienation of shares.

“If shares are alienated by a shareholder in connection with the liquidation of the issuing company or the redemption of shares or reduction of paid-up capital of that company, the difference between the proceeds obtained by the shareholder and the par value of the shares may be treated in the State of which the company is a resident as a distribution of accumulated profits and not as a capital gain. The Article does not prevent the State of residence of the company from taxing such distributions at the rates provided for in Article 10: such taxation is permitted because such difference is covered by the definition of the term “dividends” contained in paragraph 3 of Article 10 and interpreted in paragraph 28 of the Commentary relating thereto, to the extent that the domestic law of that State treats that difference as income from shares.”

  • Klaus Vogel’s Commentary (5th Edition, Page 939) also emphasises that domestic law treatment should prevail when determining whether a payment is considered a dividend, thereby supporting the inclusion of Section 2(22)(f) within the DTAA’s Dividend Article.

“Sale proceeds of shares and other corporate rights generally fall under Article 13 and not under Article 10 ODCD and UN MC, as such income is not derived from shares within the meaning of the OECD MC but stems from the alienation of shares. If one considered sale proceeds to come within the meaning of ‘income from shares’, Article 13 OECD and UN MC would still prevail, however, by virtue of its more specialised nature regarding such transactions. Problems may arise, however, in either case, to the extent that such proceeds may represent undistributed profits of the paying company, as it would open up an easy way to avoid source taxation, in particularly by way of share repurchase in lieu of dividend distribution. Thus, the OECD MC Comm. Acknowledges that Article 13(5) does not prevent source State from taxing ‘the difference between the selling price and the par value of the shares’ as dividend in accordance with Article 10 OECD and UN MC where the shares are sold to the issuing company.
……… (Page 981)

Moreover, nothing in the provision requires income to be derived from an ‘equity investment’: a mere recharacterisation of the income (rather than the underlying right) under domestic law is sufficient to trigger the application of Article 10.”

In the author’s view, the reference to domestic law is broad enough to encompass payments falling within the scope of Section 2(22)(f), allowing them to be treated as dividends under the DTAA. This interpretation aligns with the intention to provide clarity and consistency in the application of tax treaties.

TRANSFER PRICING IMPLICATIONS

Under the Buy-Back Tax (BBT) regime, it was possible to argue that in cases involving Associated Enterprises (AEs), the amount of consideration paid by the company needed to be benchmarked against the Arm’s Length Price (ALP) criteria. Shareholders were largely indifferent to this aspect since the income from the buy-back was exempt in their hands. However, the new taxation regime introduces an intriguing dimension to this issue.

Transfer pricing regulations focus on the substance of the transaction. While the transaction is still treated as a dividend in the hands of the company, it will now require benchmarking as if the buy-back were a transfer, meaning the company must determine the ALP of the consideration paid. Theoretically, there should not be any adverse implications if the consideration paid does not align with the ALP, since buy-back payments are not deductible expenses for the company. The company’s primary responsibility remains the withholding of tax.

A plausible interpretation is that the withholding tax obligation applies to the transaction value rather than the ALP value. In hands of shareholder Section 46A deems the consideration to be Nil for tax purposes. This fiction is absolute and is not affected by the ALP price. Thus, benchmarking needs to be done for compliance purposes without any impact on tax computation.

INTERPLAY WITH SECTION 56(2)(X)

Buybacks often involve a company using its free cash flow to purchase its own shares, leading to an increase in the remaining shareholders’ stakes without them having to dip into their own cash reserves. This tactic has become a popular method for realigning shareholding structures, particularly in the context of family arrangements or the elimination of cross holdings. However, when buy-backs are executed at prices below the Rule 11UA value, questions inevitably arise regarding the applicability of Section 56(2)(x).

At first glance, Section 56(2)(x) applies to the “receipt” of property, a term that has been interpreted to mean the receipt that benefits the recipient. In the case of a buy-back, the shares are technically received by the company solely for the purpose of cancellation, with no economic enrichment resulting from this transaction. This lack of enrichment leads to the failure of the charge under Section 56(2)(x). This line of reasoning has found favour in various judicial decisions9.


9. Vora Financial Services (P.) Ltd. v ACIT [2018] 96 taxmann.com 88 (Mumbai); DCIT v Venture Lighting India Ltd [2023] 150 taxmann.com 523 (Chennai - Trib.); VITP (P.) Ltd v DCIT [2022] 143 taxmann.com 304 (Hyderabad - Trib.);

Section 115QA adds another layer of defence. By shifting the liability to pay Buy-Back Tax (BBT) onto the company, Section 115QA acts as a special provision and a self-contained code. According to the principles of statutory interpretation, a special provision like Section 115QA should override more general provisions such as Section 56(2)(x).

However, the new taxation regime introduces a fresh angle to the interplay with Section 56(2)(x). Section 2(22)(f) deems the payment by a company on the purchase of its own shares as a dividend. Sections 194 and 195 impose an obligation on the company to withhold tax on such payments. Following the fiction created by Section 2(22)(f) to its logical conclusion, this payment should be treated as a dividend for all purposes under the Act, effectively preventing the application of Section 56(2)(x) from the outset.

In the absence of any anti-abuse provision requiring the company to pay dividends at fair market value, it is arguable that considerations below the Rule 11UA value should not be taxed under Section 56(2)(x).

COMPARISON WITH CAPITAL GAIN

Under the new regime, long-term capital gains are taxed at a rate of 12.5 per cent, and short-term capital gains are taxed at 20 per cent on net gains (i.e., consideration minus the cost of acquisition). For non-resident shareholders, dividend income is taxed according to the provisions of the applicable DTAA, with most DTAAs providing a concessional rate of 10 per cent for dividend taxation.

Shareholders, particularly those holding stakes in startups or joint ventures, will need to carefully evaluate buy-back as an alternative to conventional exit strategies. In cases where shares have significantly appreciated, opting for buy-back could result in the gains being taxed as dividends, potentially reducing the overall cash tax outflow. Additionally, the cost of acquisition can be offset against other capital gains, thereby improving overall tax efficiency.

This scenario presents an opportunity to structure transactions more efficiently. Instead of providing an exit through secondary sales, shareholders might consider infusing equity into the company, followed by a buy-back. This approach could optimize the tax implications and enhance the financial outcome of the transaction.

BUY-BACK AND INDIRECT TRANSFER

Explanation 5 to Section 9(1)(i) of the Income-tax Act provides that the shares of a company are deemed to be situated in India if they derive their value substantially from assets located in India. Circular No. 4 of 2015, dated 26th March, 2015, clarified that the declaration of dividends by a foreign company does not trigger the provisions of indirect transfer under Indian tax law. The term “dividend” in this context, as stated in the Circular, derives its meaning from Section 2(22)(f) of the Income-tax Act, which includes payments made by a company on the purchase of its own shares from a shareholder in accordance with the provisions of Section 68 of the Companies Act, 2013.

A pertinent issue arises when considering buy-backs by foreign companies, which are not conducted in accordance with Section 68 of the Companies Act, 2013. This raises the question of whether a buy-back under the corporate law of a foreign jurisdiction falls within the scope of the indirect transfer provisions.

Non-resident shareholders may consider invoking the Non-Discrimination Article under the applicable DTAA to address this issue. Article 24(1) of many DTAAs provides that nationals of one contracting state shall not be subjected in the other contracting state to any taxation or related requirements that are more burdensome than those imposed on nationals of the other state under similar circumstances.

An argument can be made that the reference to Section 68 should be interpreted as indicative of a buy-back governed by corporate law in general, rather than being limited to Indian law. Non-resident shareholders should not be expected to comply with Section 68 of the Companies Act, 2013, as it applies exclusively to Indian companies. The argument of discrimination has been accepted by the Tribunal in the context of Section 79 in the case of Daimler Chrysler India (P.) Ltd. vs. DCIT10, where similar principles were considered.


10 [2009] 29 SOT 202 (Pune)

CONCLUDING REMARKS

There’s no denying that Income Tax is fundamentally a tax on real income — at least, that’s the theory. However, with the numerous fictions introduced over the years — each one merrily overriding the last —the Income-tax Act has started to resemble a novel with more plot twists than logic. It’s like watching a thriller where the protagonist, just when you think you understand the story, wakes up to find themselves in an entirely different movie.

As we navigate these convolutions, it’s worth remembering that all of this complexity is supposed to bring us closer to fairness and clarity. But in reality, it’s a bit like trying to assemble flat-pack furniture without the instructions — there’s always one piece that doesn’t seem to fit, and you’re never quite sure if that extra screw was supposed to go somewhere.

With the introduction of a new Income-tax Act on the horizon, one can’t help but feel a mix of hope and trepidation. Will this new Act finally streamline these fictions, or will it just add a few new chapters to the saga? Either way, as tax professionals, we’ll be here — armed with our calculators and a good sense of humour — ready to decipher the next instalment of this ever-evolving tax code.

Important Amendments by The Finance (No. 2) Act, 2024 – Capital Gains

The maiden Budget of the Government in their third innings promises simplification and rationalisation of Capital Gains tax regime under the Income-tax Act, 1961 (“the Act”). With the said purpose, the Finance (No. 2) Act, 2024 (“FA (No. 2) 2024”) provides for standardisation of tax rates for the majority of short-term and long-term capital gains tax as well as period of holding of the majority of listed and unlisted capital assets. However, simultaneously, the Capital Gains Chapter of the Act has been amended at various other places making those provisions more complex and litigious thereby clearly contradicting the intention propagated by the Government.

This Article discusses the various amendments brought in by the FA (No. 2) 2024 under the said Chapter1 and the issues arising therefrom.

PERIOD OF HOLDING

Section 2(42A) of the Act determines “Period of Holding” relevant for the purpose of classifying an asset as short-term or long-term. Earlier, there were three holding periods, namely, 12 months, 24 months and 36 months. The period of 12 months was applicable for selected assets such as listed shares, listed equity oriented funds and zero coupon bonds. Further, the period of 24 months was applicable to unlisted shares and immovable properties, being land or building or both.

The said section has now been amended with effect from 23rd July, 2024 so that now, all listed securities shall be regarded as long-term capital asset if held for more than twelve months and all other capital assets shall be regarded as long-term capital asset if held for more than 24 months.

The same is summarised as under:

Nature of Capital Asset Short term Long term
Listed securities =< 12 months > 12 months
Other Assets =< 24 months > 24 months

The said amendment shall apply to any “transfer” of capital asset undertaken on or after 23rd July, 2024. The word “transfer” would need to be understood as used under the Act in the context of capital assets. Hence, where a capital asset was converted before 23rd July, 2024, the same would be considered to be transferred prior to 23rd July, 2024 due to the specific provisions of section 45(2) and accordingly, the old period of holding shall apply even if the converted asset is sold on or after
23rd July, 2024.

Though the intention of the Legislature is to cover all assets within this purview, the said standard rule would still not apply in case of transfer of an undertaking by way of a slump sale which is governed by the provisions of section 50B of the Act. The proviso to sub-section (1) therein specifically provides that any profits or gains arising from the transfer under the slump sale of any capital asset being one or more undertakings owned and held by an assessee for not more than thirty-six months immediately preceding the date of its transfer shall be deemed to be the capital gains arising from the transfer of short-term capital assets. Hence, a case of slump sale shall be an exception to the general rule as provided through the FA (No. 2) 2024.

Further, listed securities for the purpose of section 2(42A) means the securities as listed on the recognised stock exchanges of India. Accordingly, for foreign listed securities, the relevant period of holding shall still be 24 months and not 12 months.

The impact of said amendment on various types of capital assets is tabulated in attached Annexure.

RATE OF TAX

Section 112 and section 112A of the Act provides for specific rates of income tax on long-term capital gains in respect of various categories of assets.

Further, section 111A of the Act provides for a specific rate of income tax on short-term capital gains arising from transfer of equity share in a company or a unit of an equity oriented fund or a unit of a business trust (REIT and InVit), subject to the conditions as provided therein.

The rate of tax under the said sections prior to the amendment are tabulated hereunder:

Section Nature of Asset Nature of Capital Gain Rate of Tax
112A Eligible Listed securities* LT 10%
112 Any other long term Capital asset except those covered u/s. 50AA LT 20%**
112(1)(c)(iii)  Unlisted securities transferred by a non-resident/foreign company LT 10% without indexation
111A Eligible Listed securities* ST 15%

* i.e., equity shares, units of equity-oriented funds and business trusts, on which STT is paid at the time of transfer.

** In case of listed securities (other than units) and zero-coupon bonds, option of tax at 10% without indexation is available.

For cases not falling under these provisions, the capital gains are taxable as per the normal applicable rate as provided in the relevant Finance Act.

Further, an exemption up to ₹1 lakh is available from long term capital gain covered u/s. 112A.

Pursuant to various amendments vide FA (No. 2) 2024, the rate of tax applicable w.e.f. 23rd July, 2024 would be as under:

Long-term capital gains: FA (No. 2) 2024 provides a universal tax rate of 12.5 per cent without indexation for all types of long-term capital gains, irrespective of whether the asset is listed or unlisted, STT paid or not, Indian or foreign, held by resident or non-resident, subject to certain exceptions, which are as under:

  • Capital gains arising from assets covered u/s. 50AA is deemed to be short-term capital gains irrespective of period of holding;
  • Capital gains arising from transfer of depreciable assets also continue to be taxed as short-term capital gains u/s. 50A of the Act;
  • In case of immovable property acquired before 23rd July, 2024 by resident individuals or HUFs, the assessee shall have an option to adopt tax rate at 12.5 per cent without indexation or 20 per cent with indexation, whichever is lower. However, loss based on indexed cost would not be allowed to be set-off or carried forward.
  • For non-resident assessees, the benefit of adjustment of foreign exchange fluctuation under first proviso to section 48 on transfer of shares/debentures of Indian Companies continues.
  • Lastly, capital gains up to ₹1.25 Lakhs (aggregate) would not be subject to tax u/s. 112A of the Act. The said limit of ₹1.25 Lakhs would apply to the entire capital gains, whether relating to transfer before or after 23rd July, 2024. Hence, for AY 2025-26, Assessee may choose to set-off this limit against the eligible capital gains u/s. 112A earned pursuant to transfers before 23rd July, 2024, the same being more beneficial to them. For the said purpose, reliance may be placed on the CBDT Circular No. 26(LXXVI-3) [F. No. 4(53)-IT/54], dated 7th July, 1955, wherein the CBDT has clarified that in the absence of any indication on the manner of set-off, the general rule to be followed in all fiscal enactments is that where words used are neutral in import, a construction most beneficial to the assessee should be adopted. Further, it is also settled rule of interpretation that the interpretation, which is more favourable to the taxpayer should prevail, as has been held in the under-noted cases:
  • CIT vs. Vegetable Products Ltd. (88 ITR 192) (SC);
  • CIT vs. Kulu Valley Transport Co. Pvt. Ltd. (77 ITR 518, 530) (SC);
  • CIT vs. Madho Prasad Jatia (105 ITR 179) (SC);
  • CIT vs. Naga Hills Tea (89 ITR 236, 240) (SC);
  • CIT vs. Shahzada Nand (60 ITR 392, 400) (SC).

To give effect to the above, various sections viz. sections 112, 112A, Section 115AD, 115AB, 115AC, 115ACA, 115E, 196B and 196C have been amended to change the rate mentioned therein from 20 per cent to 12.5 per cent in case of long-term capital gains.

The said amendments would apply to transfers undertaken on or after 23rd July, 2024.

SHORT-TERM CAPITAL GAINS

In case of short-term capital gains arising from transfer of equity shares, units of equity-oriented funds and business trusts, on which STT is paid at the time of their transfer, the rate of tax has been increased from 15 per cent to 20 per cent for transfers affected on or after 23rd July, 2024.

Corresponding amendment is made in section 115AD of the Act, which provides rates of taxes for FIIs.

The rate of tax on short-term capital gains for other assets, shall continue to be governed by the rates as applicable to the assessee as per the relevant Finance Act.

These amendments will take effect from 23rd July, 2024 and will accordingly apply in relation to the transfer taking place on or after the said date.

The impact of said amendment on various types of capital assets is tabulated in attached Annexure.

DEEMED SHORT-TERM CAPITAL GAINS U/S. 50AA

FA, 2023 inserted a new provision, Section 50AA which provides for treating the capital gain arising from transfer, redemption or maturity of ‘Market Linked Debentures’ and unit of a ‘Specified Mutual Fund’ as short-term capital gain irrespective of the period of holding.

‘Specified Mutual Fund’ was defined to mean a ‘Mutual Fund by whatever name called, where not more than 35% of its total proceeds is invested in the equity shares of domestic companies’.

The said provision was not applicable to any gain arising from transfer of unlisted bonds and unlisted debentures and accordingly, the same was taxed at the rate of 20 per cent without indexation (in case of LTCG) or at applicable rates (in case of STCG).

Section 50AA has been amended vide FA (No. 2) 2024 redefining the term ‘Specified Mutual Fund’ with effect from AY 2026-27 as under:

  • a Mutual Fund by whatever name called, where more than 65 per centof its total proceeds is invested in debt and money market instruments.
  • a fund which invests at least 65 per cent of its total proceeds in units of a fund referred above (FOFs).

As would be observed, under the new definition, the language has been replaced from earlier negative condition of ‘not’ holding more than 35 per cent in equity shares to a positive condition of holding at least 65% of the total proceeds in debt and money market instruments. As a result, funds other than equity-oriented funds which were covered under the earlier definition, such as on the ETFs, Gold Mutual Fund, Gold ETFs, etc. now stand excluded as such funds do not invest 65 per cent or more of their proceeds in debt instruments.

The said amendment in the definition of ‘Specified Mutual Funds’ is effective only from AY 2026-27 i.e., AY 2026-27 applicable to FY 2025-26 and therefore, capital gain arising from transfer, redemption or maturity of unit of funds like ETFs, Gold Mutual Fund, Gold ETFs acquired after 1st April, 2023 and transferred till 31st March, 2025 will still be covered by the existing provisions of Section 50AA.

Further, the scope of section 50AA has been expanded to tax the capital gain arising from transfer, redemption or maturity of unlisted bonds and unlisted debentures as short-term capital gain irrespective of the holding period. The said amendment is effective from 23rd July, 2024 and will accordingly apply in relation to the transfer taking place on or after the said date.

The impact of said amendment on various types of capital assets is tabulated in attached Annexure.

INCREASE IN RATES OF STT (SECTION 98 (CHAPTER VII) OF FINANCE ACT (NO. 2), 2004)

Section 98 of the Finance Act, 2004 provides a list of various taxable securities along with STT levied on their sale and purchase transactions.

As per the said section, the rate of levy of STT on sale of an option in securities is 0.0625 per cent of the option premium and on sale of a future in securities is 0.0125 per cent of the price at which such futures are traded.

The FA (No. 2) 2024 has increased the said rates on sale of an option and a future in securities. The table below enumerates the same:-

Type of Transaction Old rates New rates
Sale of an option in securities 0.0625% of the option premium 0.1 % of the option premium
Sale of a future in securities 0.0125 % of the price at which such “futures” are traded. 0.02% of the price at which such “futures” are traded

The above amendments will take effect from 1st October, 2024.

As per the explanatory memorandum, the trading in derivatives (F&O) is now accounting for a large proportion of trading in stock exchanges. The said amendment has been made keeping in mind the exponential growth of derivative markets in recent times.

GRANDFATHERING OF CAPITAL GAINS IN CASE OF SHARES OFFERED FOR SALE UNDER AN IPO/FPO

Section 112A of the Act provides for a concessional rate of 12.5 per cent (w.e.f. 23rd July, 2024) on long-term capital gains on transfer of, inter alia, equity shares subject to payment of Securities Transaction Tax (STT) at the time of acquisition and on transfer.

Shares which are transferred under Offer for Sale (OFS) at the time of initial public offering are subject to STT as per S. 97(13)(aa) of Chapter VII of the Finance (No. 2) Act, 2004. Further, such shares are exempt from the requirement of STT at the time of acquisition to avail the benefit of section 112A as per CBDT Notification no. 60 of 2018. Hence, gains on transfer of such shares qualify for concessional tax rates u/s. 112A.

The gains chargeable under said section are allowed grandfathering of gains accrued till 31st January, 2018.

Accordingly, S. 55(2)(ac) of the Act provides that the cost of acquisition in case of long-term equity shares acquired before 1st February 2018 shall be grandfathered as under –

Higher of –

a. The cost of acquisition of such asset; and

b. Lower of:

i. The FMV of such asset as on 31st January, 2018; and

ii. The full value of consideration received

Explanation(a)(iii) to S. 55(2)(ac) defines what is FMV in case of an equity share in a company. The said section presently does not cover cases where unlisted shares are subject to STT and accordingly fall under the ambit of section 112A. As a consequence, there is ambiguity with respect to determining COA of the shares transferred under OFS.

With a view to clarify the ambiguity with regards to determining COA of the shares transferred under OFS, Explanation(a)(iii) to S. 55(2)(ac) has been amended with retrospective effect from AY 2018-19 so as to include within its ambit even transfers in respect of sale of unlisted equity shares under an OFS to the public included in an IPO.

In such cases, FMV shall be an amount which bears to the COA the same proportion as CII for the FY 2017-18 bears to the CII for the first year in which the asset was held by the assessee or for the year beginning on the first day of April, 2001, whichever is later.

This amendment is deemed to have been inserted with effect from the 1st day of April, 2018 and shall accordingly apply retrospectively from AY 2018-19 onwards.

CORPORATE GIFTING

Section 47 provides exclusions to certain transactions not regarded as “transfer” for the purposes of Section 45 of the Act. Clause (iii) of section 47 specifies that any transfer of a capital asset under gift, will or an irrevocable trust would not be regarded as transfer. The said provision hitherto applied to all assessees.

The FA (No. 2) 2024 has amended the said clause (iii) of Section 47 with retroactive effect from AY 2025-26 (i.e., for gifts effected on 1st April, 2024 and onwards) to restrict its application only in case of Individuals and HUFs.

As per the Memorandum Explaining the Provisions of the Finance (No. 2) Bill, 2024, even though the Act contains certain anti-avoidance provisions, such as sections 50D and 50CA, in multiple cases taxpayers have argued before judicial fora that transaction of gift of shares by company is not liable to capital gains tax in view of provisions of section 47(iii) of the Act, which has resulted in tax avoidance and erosion of tax base. However, as per the Memorandum, gift can be given only out of natural love and affection and therefore, provisions of section 47(iii) has been restricted to gifts given by individuals and HUFs.

Hence, apparently, the intention of the Legislature is to bring transactions of gift by assessees other than individuals and HUFs within the ambit of provisions such as section 50CA, 50D, etc. However, the question remains as to whether the said provisions can at all apply where there is no consideration involved, irrespective of whether the transaction itself is specifically exempted or not.

Now, the opening words of the provisions such as sections 50CA, 50C, 43CA as well as 50D are identical namely:

“Where the consideration received or accruing as a result of the transfer of ….”

As would be observed, the said provisions apply only where the transfer results in ‘receipt’ or ‘accrual’ of ‘any consideration’. Hence, the moot question which needs consideration is as to whether the said provisions can at all apply where a transfer does not result in receipt or accrual of any consideration.

Now, a transaction involving ‘gift’ essentially means a transaction where no consideration is contemplated at all. The said term is defined u/s. 122 of the Transfer of Property Act, 1882 as under:

“”Gift” is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee.”

As is clear, a transaction of ‘gift’ is always without consideration. Now, as per the Explanatory Memorandum, section 47(iii) has been restricted only to Individuals and HUFs since as per the Legislature other entities such as corporate bodies cannot give a valid gift in absence of possibility of any natural love or affection.

However, as is clear from the foregoing definition of ‘gift’, there is no condition of natural gift or affection attached to a gift transaction.

In fact, considering the said definition, various Courts have held in the past that even corporate bodies can give a gift as long as the same is permitted in their charter documents such as memorandum of association since there is no requirement in the Transfer Of Property Act that a ‘gift’ can be made only between natural persons out of natural love and affection. See, for example:

  • PCIT vs. Redington (India) Ltd. [2020] 122 taxmann.com 136 (Madras)
  • Prakriya Pharmacem vs. ITO[2016](66 taxmann.com 149)(Guj)
  • DP World (P) Ltd. vs. DCIT (140 ITD 694)(MumT);
  • DCIT vs. KDA Enterprises Pvt. Ltd. (68 SOT 349) (MumT);
  • Deere & Co. Deere & Co. [2011] 337 ITR 277 (AAR).
  • Jayneer infrapower & Multiventures (P.) Ltd. vs. DCIT [2019] 103 taxmann.com 118 (Mumbai – Trib.)

In Redington’s case (supra), the Madras High Court laid down the essentials of a ‘gift’ as under:

(i) absence of consideration;

(ii) the donor;

(iii) the donee;

(iv) to be voluntary;

(v) the subject matter;

(vi) transfer; and

(vii) the acceptance.

The High Court accordingly held that even a corporate body can make a valid gift, however, on the facts of that case, it held the transaction to not be a valid gift.

Now, after the amendment in section 47(iii), the foregoing decisions may not be relevant for the purpose of applying the provisions of section 47(iii) to corporate gifting. However, the following ratios laid down in these decisions are still relevant, namely:

  • Corporate gifting which satisfies the foregoing essential components is a legally valid transaction, and
  • In such transactions, there can never be any element of consideration.

This brings us back to the question as to whether in absence of any ‘receipt’ or ‘accrual’ of ‘any consideration’ in case of a corporate gifting, can the provisions like section 50CA, 50D, etc. at all trigger even if there is no specific exemption for such gifting, considering that existence of ‘consideration’ is a sine qua non under these provisions.

Recently, the Bombay High Court in the case of Jai Trust vs. UOI [2024] 160 taxmann.com 690 (Bombay) had an occasion to examine taxability of shares gifted by a trust and in that context, also examined the provisions of sections 50CA and 50D. The High Court considering the language used in the said sections, held that, these provisions can apply only where any consideration is received or accruing as a result of the transfer. It held that these sections postulates receiving consideration and not a situation where admittedly no consideration has been received.

Hence, even after amendment in section 47(iii), it is possible to argue that unless any consideration can be demonstrated, the deeming provisions of sections 50D, 50CA and the like cannot be applied to a corporate gifting. Indeed, it is settled law the deeming provisions should be construed strictly2 and therefore, to expand the scope of such deeming provisions than what is specifically mentioned in these sections is not permissible. Besides, if all cases of corporate gifting becomes subject to capital gains, then even CSR donations by corporates would be impacted, which certainly cannot be the intention of the Legislature.

Nevertheless, considering the rationale for the amendment provided in the Memorandum, the tax department is likely to more rigorously scrutinise the transactions corporate gifting and try to apply the said deeming provisions to such transactions.

It is also important to note that such corporate gifting of ‘property’ could now be subject to double whammy, one at the end of the donor under the likes of sections 50CA, etc. and second at the end of the donee under the provisions of section 56(2)(x). This would lead to double taxation of same income, which should not be condoned.

From the magnitude of amendments brought in the capital gains taxation, it is clear that the issues thereunder are far from becoming simple and rationale. Amendments in provisions such as section 2(22)(f) and 47(iii) have raised various unanswered questions, which would be settled only in the due course of time as the law develops before the judicial forums.

Annexure

Name of Capital Asset Nature of Capital Gain Relevant provision Period of Holding Rate of Tax
Old provisions

i.e., before 23rd July, 2024

New provisions

i.e., after 23rd July, 2024

Old provisions

i.e., before 23rd July, 2024

New provisions

i.e., after 23rd July, 2024

Listed Equity Shares (STT paid)* LT 112A > 12 months > 12 months 10% (without indexation) 12.5% (without indexation)
ST 111A ≤ 12 months ≤ 12 months 15.00% 20.00%
Listed Equity Shares (STT not paid) LT 112 > 12 months > 12 months 10% (without indexation) 12.5% (without indexation)
20% (with indexation) 12.5% (without indexation)
ST Rates as per First Schedule of FA (No. 2) 2024 ≤ 12 months ≤ 12 months applicable rate applicable rate
Unlisted Equity shares LT 112 > 24 months > 24 months 20% (with indexation) 12.5% (without indexation)
ST Rates as per First Schedule of FA (No. 2) 2024 ≤ 24 months ≤ 24 months applicable rate applicable rate
Units of Equity Oriented MFs (Listed)* LT 112A > 12 months > 12 months 10% (without indexation) 12.5% (without indexation)
ST 111A ≤ 12 months ≤ 12 months 15.00% 20.00%
Units of Debt Oriented MFs**

(> 65% in debt or

fund of such  funds)

Always ST 50AA (Rates as per First Schedule of FA (No. 2) 2024) > 36 months > 24 months applicable rate applicable rate
Listed Bonds/Debentures (other than Capital index bonds and Sovereign Gold Bonds) LT 112 (without indexation) > 12 months > 12 months 20%3 (without indexation) 12.5% (without indexation)
ST Rates as per First Schedule of FA (No. 2) 2024 ≤ 12 months ≤ 12 months applicable rate applicable rate
Unlisted Bonds/Debentures/Debt-Oriented FOFs LT 50AA (Rates as per First Schedule of FA (No. 2) 2024) > 36 months NA 20% (without indexation) applicable rate
ST 50AA (Rates as per First Schedule of FA, (No. 2) 2024) ≤ 36 months NA applicable rate applicable rate
Market Linked Debentures ST 50AA (Rates as per First Schedule of FA, (No. 2) 2024) NA NA applicable rate applicable rate
Listed Capital Indexed Bonds and Sovereign Gold Bonds LT 112 > 12 months > 12 months 10% (without indexation) 12.5% (without indexation)
20% (with indexation) 12.5% (without indexation)
ST Rates as per First Schedule of FA (No. 2) 2024 ≤ 12 months ≤ 12 months applicable rate applicable rate
Unlisted Capital Indexed Bonds LT 112 > 36 months > 24 months 20% (with indexation) 12.5% (without indexation)
ST Rates as per First Schedule of FA (No. 2) 2024 ≤ 36 months ≤ 24 months applicable rate applicable rate
Zero Coupon Bonds LT 112 > 12 months > 12 months 10% (without indexation) 12.5% (without indexation)
20% (with indexation) 12.5% (without indexation)
ST Rates as per First Schedule of FA (No. 2)  2024 ≤ 12 months ≤ 12 months applicable rate applicable rate
Listed Units of Business Trust (InVITs and REITs)* LT 112A > 36 months > 12 months 10% (without indexation) 12.5% (without indexation)
ST 111A ≤ 36 months ≤ 12 months 15.00% 20.00%
Listed Preference Shares LT 112 > 12 months > 12 months 10% (without indexation) 12.5% (without indexation)
20% (with indexation) 12.5% (without indexation)
ST Rates as per First Schedule of FA (No. 2) 2024 ≤ 12 months ≤ 12 months applicable rate applicable rate
Unlisted Preference Shares LT 112 > 24 months > 24 months 20% (with indexation) 12.5% (without indexation)
ST Rates as per First Schedule of FA (No. 2) 2024 ≤ 24 months ≤ 24 months applicable rate applicable rate
Immovable Properties LT 112 > 24 months > 24 months 20% (with indexation) 12.5% (without indexation)
ST Rates as per First Schedule of FA (No. 2)2024 ≤ 24 months ≤ 24 months applicable rate applicable rate
Physical Gold LT 112 > 36 months > 24 months 20% (with indexation) 12.5% (without indexation)
ST Rates as per First Schedule of FA (No. 2)2024 ≤ 36 months ≤ 24 months applicable rate applicable rate
Foreign Equity LT 112 > 24 months > 24 months 20% (with indexation) 12.5% (without indexation)
ST Rates as per First Schedule of FA (No. 2) 2024 ≤ 24 months ≤ 24 months applicable rate applicable rate

* The limit of exemption from long term capital gain covered u/s. 112A is proposed to be increased from ₹1 Lakh to ₹1.25 lakhs (aggregate).

** For funds purchased before 1st April, 2023, the gains will be LTCG or STCG depending upon its period of holding. Further, this covered even other non-equity funds such as Gold, ETF, Gold funds, etc. purchased on or after 1st April, 2023 and transferred before 1st April, 2025. From 1st April, 2025, these other non-equity bonds / MFs will be taxed as per normal provisions of CG.

Important Amendments by The Finance (No. 2) Act, 2024 – Charitable Trusts

Important Amendments by the Finance (No.2) Act, 2024 are covered in six different Articles. It is not possible to cover all amendments at length and hence the focus is only on important amendments but with a detailed analysis of their impacts. These in-depth analysis will serve as a future guide to know the existing provisions, current amendments and their rationale, and the revised provisions. We hope the readers will enrich by the detailed analysis. – Editor

 

For the past several years, charitable institutions have awaited the Finance Bill of each year with dread and trepidation, as to what further compliance, burden and complexity would be imposed upon them. Since 2009, many new provisions for charitable institutions have been introduced, making the requirement of claiming exemption increasingly difficult.

Fortunately, some of this year’s amendments have sought to alleviate some of the difficulties being faced by charitable institutions. However, there have been no amendments in respect of many other complex and pressing problems faced by charitable institutions (such as the applicability of the proviso to section 2(15) as to what activity constitutes a business, applicability of tax on accreted income under certain circumstances, the low reporting requirement of a cumulative ₹50,000 for substantial contributors, etc).

The amendments made are analysed below:

MERGER OF SECTION 10(23C) EXEMPTION REGIME WITH SECTION 11 EXEMPTION REGIME

Currently, there are two major schemes of exemption for charitable institutions – one contained in various sub-clauses of section 10(23C) available for educational and medical institutions and certain other specific types of institutions. In particular, exemption under the following sub-clauses requires approval of the CIT – these are applicable to:

(iv) charitable institutions important throughout India or a State;

(v) public religious institutions;

(vi) university or other educational institution existing solely for educational purposes and not for purposes of profit, not wholly or substantially financed by the Government and whose gross receipts exceed ₹5 crore;

(vii) hospital or other institution for the reception and treatment of persons suffering from illness or mental defectiveness or for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation, existing solely for philanthropic purposes and not for purposes of profit, not wholly or substantially financed by the Government and whose gross receipts exceed ₹5 crore.

The conditions for exemption under these 4 sub-clauses of section 10(23C) are contained in the 23 provisos to section 10(23C), and by the Finance Act, 2022, these conditions were almost fully aligned with the requirements contained in section 11 for claim of exemption. Only a few minor differences remained, such as option to spend in subsequent year and exemption for capital gains on reinvestment in capital asset, which are available under section 11 but not available under section 10(23C). Given this alignment, it was expected that the exemption under these 4 sub-clauses would finally be merged with the exemption under section 11.

The Finance (No 2) Act 2024 now begins the process of merger of these two exemption regimes. The first and second provisos to section 10(23C) have now been amended to provide that application for approval or renewal of approval under sub-clauses (iv), (v), (vi) and (via) of section 10(23C) can only be made before 1st October, 2024, and that the Commissioner shall only process such applications made before 1st October, 2024. A 24th proviso has been added to section 10(23C) stating that no approvals shall be granted for applications made on or after 1st October, 2024. Simultaneously, amendments have been made to section 12A(1)(ac) with effect from 1st October 2024, requiring such charitable entities to make an application for registration under that section.

This effectively means that charitable entities whose approval expires on 31st March, 2025, can still apply for renewal up to 30th September 2024 since the application for renewal has to be made six months prior to the expiry of approval. Such applications would be processed, and approvals continued to be granted under section 10(23C). Given that the approval would normally be valid for 5 years, they can therefore continue to claim exemption under sub-clauses (iv), (v), (vi) or (via) till 31st March, 2030 (AY 2030-31). Thereafter, they will have to switch to registration under section 12A, and would then be entitled to exemption under section 11 post registration with effect from A.Y. 2031-32.

In case such entities are late in making an application for approval (beyond 30th September, 2024), they will then have to apply for registration under section 12A, and post registration which would be granted with effect from
1st April, 2025, their claim for exemption would then be under section 11 with effect from A.Y. 2026-27.

In case of other entities whose approval under any of the above 4 sub-clauses of section 10(23C) expires after 31st March 2025, if such approval is expiring shortly after March 2025, such entities may choose to make an application before 1st October, 2024 or thereafter, since there is only a minimum prior period for application (since the application has to be made at least 6 months prior to the expiry of approval), and there is no specification as to the maximum prior period within which one can make such an application. Depending on whether the application for renewal is made before 1st October, 2024 or thereafter, the application would have to be made either under any of the above 4 sub-clauses of section 10(23C) or under section 12A, respectively.

All entities whose approval under any of these 4 sub-clauses of section 10(23C) is in force can continue to claim exemption under section 10(23C) till the expiry of that approval.

Effectively therefore, over the next 5 years, all approvals under section 10(23C) will cease to have effect, and entities would migrate to registration under section 12A and consequent claim of exemption under section 11.

Further, exemption for charitable entities under the various other sub-clauses of section 10(23C) and other clauses of section 10 are not being phased out and would continue. These include:

  • Educational or medical institutions wholly or substantially financed by the Government or having gross receipts of less than ₹5 crore – 10(23C)(iiiab), (iiiac),(iiiad) and (iiiae),
  • Research associations – 10(21),
  • Professional regulatory bodies – 10(23A),
  • Khadi and village industries development institutions – 10(23B),
  • Regulatory bodies for charitable or religious trusts – 10(23BBA),
  • Investor Protection Funds of stock exchanges, commodity exchanges and depositories – 10(23EA), 10(23EC) and 10(23ED),
  • Core Settlement Guarantee Fund of clearing corporation – 10(23EE),
  • Notified bodies set up by the Government – 10(46),
  • Housing Boards, Planning & Development Authorities, and other regulatory bodies set up under a State or Central Act – 10(46A), etc.

While no amendment is made to section 11(5) regarding permitted investments, the provisions of section 13(1)(d) have been amended, by adding one more exception in the proviso to section 13(1)(d). The following assets have now been also excluded from the purview of section 13(1)(d):

a. Any asset held as part of the corpus of the trust as on 1st June, 1973;

b. Equity shares of a public company held by the trust as part of the corpus as on 1st June, 1998;

c. Any accretion to such shares held as part of corpus (bonus shares, etc);

d. Debentures issued by a company/corporation acquired by the trust before 1st March, 1983;

e. Jewellery, furniture or other notified article received by way of voluntary contribution. No other article seems to have been notified so far.

AMENDMENT OF SECTION 11(7)

Section 11(7) of the Income Tax Act provides that a trust granted registration under section 12AB cannot claim exemption under section 10, except under certain clauses of section 10. These clauses were:

  • agricultural income – clause (1),
  • educational, medical and other institutions – clause (23C),
  • Investor Protection Fund of Commodity Exchanges – clause (23EC),
  • notified bodies set up by the Government – clause (46), and
  • Housing Boards, Planning & Development Authorities, and other regulatory bodies set up under a State or Central Act – clause (46A).

In some of these cases, once they are approved or notified under the respective clauses, their section 12AB registration becomes inoperative, and can be made operative only by making an application to the Commissioner for doing so. Once section 12AB registration becomes operative, the approval or notification under the respective clause ceases to have effect, and thereafter no claim for exemption can be made under those respective clauses of section 10.

The Finance (No 2) Act, 2024 has added clauses (23EA) – Investor Protection Fund of a stock exchange, (23ED) – Investor Protection Fund of a depository, and (46B) – National Credit Guarantee Trustee Company and trusts managed by it, to these alternative clauses of exemption.

CONDONATION OF DELAY IN MAKING APPLICATION FOR REGISTRATION/RENEWAL OF REGISTRATION U/S 12A

Section 12A(1)(ac) of the Income Tax Act provides that a trust would be entitled to exemption under sections 11 and 12 if it makes an application for registration to the Commissioner/Principal Commissioner and application for renewal within the specified timelines. Given the complex provisions specifying the timelines, with six alternative clauses, many charitable organisations mistakenly filed applications for registration/renewal of registration late. Their applications for registration/renewal of registration were rejected by the Commissioner on the ground that the application was made beyond the prescribed time.

Given the fact that such rejection had severe consequences of applicability of the provisions of tax on accreted income under section 115TD, such trusts filed appeals to the Tribunal against such rejection as well as made applications to the CBDT seeking condonation of delay in filing such applications. Almost all the appeals to the tribunal were decided in favour of the trusts, with the matters being sent back to the Commissioner for processing the application on the merits of each case. The CBDT granted condonations from time to time, the latest condonation being vide CBDT circular No. 7/2024 dated 25th April, 2024, whereunder belated/rectified applications could be made till 30th June, 2024.

The Finance (No. 2) Act, 2024 has now inserted a proviso to section 12A(1)(ac) with effect from 1st October, 2024, giving powers to the Commissioner/Principal Commissioner to condone any delay in making of such applications if he considers that there is a reasonable cause for delay in filing the application. On condonation of delay, the application shall be deemed to have been filed within time.

By this amendment, on or after 1st October, 2024 the Commissioner can consider condonation of any genuine delays in making of such applications which may be noticed during the course of processing such applications, irrespective of whether the delay was before or after 1st October, 2024. This is a much-needed amendment, so that trusts now need not have their applications rejected merely on account of delay in filing the application due to the Commissioner not having the powers to condone any delay.

MODIFICATION OF TIME LIMITS FOR PROCESSING APPLICATIONS UNDER SECTION 12A(1)(ac)

The applications for registration/renewal of registration under section 12A(1)(ac) are required to be processed by the Commissioner/Principal Commissioner within the timelines specified in section 12AB(3), which requires the order under section 12AB(1) to be passed within such timelines. These timelines have now been amended as under with effect from 1st October 2024:

Sub-clause of s.12A(1)(ac) Type of Application Earlier Time Limit Amended Time Limit
(i) Trusts registered u/s 12A/12AA on 31st March, 2021 for registration u/s 12AB to be made by 30th June, 2021 3 months from the end of the month in which the application was received 3 months from the end of the month in which the application was received
(ii) Trusts registered u/s 12AB for renewal 6 months from the end of the month in which the application was received 6 months from the end of the quarter in which the application was received
(iii) Trusts provisionally registered u/s 12AB for renewal
(iv) Trusts whose registration has become inoperative u/s 11(7) to make operative
(v) Trusts which have modified objects not conforming to conditions of registration
(vi)(B) Trusts which have commenced their activities and not claimed exemption u/s 11 and 12 for any year ending before the date of application
(vi)(A) Trusts which have not commenced their activities for provisional registration 1 month from the end of the month in which the application was received 1 month from the end of the month in which the application was received

This amendment is stated to be for better processing and monitoring.

This being a procedural amendment, the revised timeline of 6 months from the end of the quarter may apply even to applications made prior to 1st October, 2024, where the original timeline for processing has not lapsed before 1st October, 2024. Therefore, in case of applications received in April 2024, where the orders could have been passed till October 2024, the orders can now be passed till December 2024.

APPROVAL U/S 80G

A trust which had commenced its activities could have applied for approval under section 80G only if it had not claimed exemption under clause (iv), (v), (vi) or (via) of section 10(23C) or exemption under section 11 for any year ending prior to the date of its application. Therefore, an existing trust having activities for many years claiming exemption under section 11 but not having opted to obtain approval under section 80G earlier, could never have applied for approval. This restriction of not having claimed exemption earlier, has been deleted with effect from 1st October 2024, permitting such existing trusts to seek approval.

Just as in the case of processing of applications under section 12AB, in case of applications for renewal of approval under section 80G or for fresh application under section 80G where activities of the trust have commenced, the timeline for passing the order granting approval or rejecting the application has been amended to a period of 6 months of the end of the quarter in which the application was made, from the period of 6 months from the end of the month in which the application was made.

No amendment has been made to delegate powers to the Commissioner to condone delays in filing applications for approval under section 80G. Perhaps this is on account of the fact that a trust can now make an application at any time after the commencement of its activities. Therefore, even if its earlier application was rejected on account of delay in filing the application, it can make a fresh application again subsequently. However, this will result in it not being approved for the interim period. It would have been better had the power been delegated to the Commissioner in such cases as well.

MERGER OF TRUSTS — SECTION 12AC

A new section, section 12AC, has been inserted with effect from 1st April, 2025. This provides that if a trust approved under clauses (iv), (v), (vi) or (via) of section 10(23C) or registered under section 12AB merges with another trust, the provisions of Chapter XII-EB (Tax on Accreted Income) shall not apply if:

(a) The other trust has similar objects;

(b) The other trust is registered u/s 12AB or under clause (iv), (v), (vi) or (via) of section 10(23C); and

(c) The merger fulfils such conditions as may be prescribed.

The Explanatory Memorandum to the Finance Bill explains the rationale behind this amendment as under:

“Merger of trusts under the exemption regime with other trusts

1. When a trust or institution which is approved / registered under the first or second regime, as the case may be merges with another approved / registered entity under either regime, it may attract the provisions of Chapter XII-EB, relating to tax on accreted income in certain circumstances.

2. It is proposed that conditions under which the said merger shall not attract provisions of Chapter XII-EB, may be prescribed, to provide greater clarity and certainty to taxpayers. A new section 12AC is proposed to be inserted for this purpose.

3. These amendments will take effect from the 1st day of April, 2025.”

While one understands the need to provide clarity on various exemption provisions in the event of merger of an approved/registered trust with another approved/registered trust (e.g., treatment of accumulation, spending out of corpus, loans, etc), the language of the amendment as well as the Explanatory Memorandum explaining the amendment are a little baffling. This is on account of the fact that as the law stands today, tax on accreted income under section 115TD applies to a merger only when an approved/registered trust merges with a trust which is not approved / registered, or which does not have similar objects. Section 115TD(1)(b) does not apply at all when both the trusts involved in the merger are registered trusts having similar objects. There was therefore no need for such a provision at all.

The further interesting aspect is that since section 115TD has not been amended at all, even if conditions are prescribed for the purposes of section 12AC, these conditions cannot create a charge under section 115TD, which excludes a case where both trusts are approved/registered and have similar objects.

One will have to await the rules that will be prescribed, to fully understand the impact of this amendment.

Financial Reporting Dossier

A. KEY GLOBAL UPDATES

1. IASB: ILLUSTRATIVE EXAMPLES TO IMPROVE REPORTING OF CLIMATE-RELATED AND OTHER UNCERTAINTIES IN FINANCIAL STATEMENTS

  • On 31st July, 2024, the International Accounting Standards Board (IASB) published a consultation document, proposing eight examples to illustrate how companies apply IFRS Accounting Standards when reporting the effects of climate-related and other uncertainties in their financial statements.
  • These examples are developed based on feedback received from the investors wherein the investors had expressed concerns that information about climate-related uncertainties in financial statements was sometimes insufficient or appeared to be inconsistent with information provided outside the financial statements.
  • The eight illustrative examples focus on areas such as materiality judgments, disclosures about assumptions and estimation uncertainties, and disaggregation of information. These illustrative examples do not add to or change the requirements of IFRS Accounting Standards.
  • Key highlights of these eight examples are as follows:

  • The IASB will consider stakeholders’ feedback and decide whether to proceed with the proposed illustrative examples to accompany IFRS Accounting Standards.

2. IASB: PROPOSE AMENDMENTS FOR TRANSLATING FINANCIAL INFORMATION INTO HYPERINFLATIONARY CURRENCIES

  • On 25th July, 2024, the International Accounting Standards Board (IASB) published proposals in an Exposure Draft to address accounting issues that affect companies that translate financial information from a non-hyperinflationary currency to a hyperinflationary currency
  • In the situations considered, the reporting entity or the reporting entity’s foreign operation has a functional currency that is the currency of a non-hyperinflationary economy. And in both situations, the reporting entity’s presentation currency is the currency of a hyperinflationary economy. Applying the requirements in IAS 21, the entity translates income, expenses and comparative amounts at historical exchange rates. The IASB observed that in a hyperinflationary economy, money loses purchasing power at such a rapid rate that information is generally useful only if amounts are expressed in terms of a measuring unit current at the end of the most recent reporting period.
  • The IASB is seeking feedback on the proposed amendments from interested or affected stakeholders.

3. IASB: ISSUES ANNUAL IMPROVEMENTS TO IFRS ACCOUNTING STANDARDS

  • On 18th July, 2024, the International Accounting Standards Board (IASB) issued narrow amendments to IFRS Accounting Standards and accompanying guidance as part of its regular maintenance of the Standards.
  • These amendments, published in a single document Annual Improvements to IFRS Accounting Standards—Volume 11, include clarifications, simplifications, corrections and changes aimed at improving the consistency of several IFRS Accounting Standards.
  • The amended Standards are:

– IFRS 1 First-time Adoption of International Financial Reporting Standards;

– IFRS 7 Financial Instruments: Disclosures and its accompanying Guidance on implementing IFRS 7;

– IFRS 9 Financial Instruments;

– IFRS 10 Consolidated Financial Statements; and

– IAS 7 Statement of Cash Flows.

  • The amendments are effective for annual periods beginning on or after 1st January, 2026, with earlier application permitted.

4. IASB: REVIEW OF IMPAIRMENT REQUIREMENTS RELATING TO FINANCIAL INSTRUMENTS

  • On 4th July, 2024, the International Accounting Standards Board (IASB) concluded and published its Post-implementation Review (PIR) of the impairment requirements in IFRS 9 Financial Instruments—Impairment.
  • The overall feedback shows that the impairment requirements in IFRS 9 are working as intended and provide useful information to users of financial instruments. In particular, the IASB concluded that:

♦ there are no fundamental questions (fatal flaws) about the clarity or suitability of the core objectives or principles in the requirements.

♦ in general, the requirements can be applied consistently. However, further clarification and application guidance is needed in some areas to support greater consistency in application.

♦the benefits to users of financial statements from the information arising from applying the impairment requirements in IFRS 9 are not significantly lower than expected. However, targeted improvements to the disclosure requirements about credit risk are needed to enhance the usefulness of information for users.

♦the costs of applying the impairment requirements and auditing and enforcing their application are not significantly greater than expected.

  • Based on the above feedback, the IASB decided the following:
Matters to be added to the research pipeline Improvement to Credit risk disclosures:

 

  • Post-model adjustments or management overlays,

 

  • sensitivity analysis,

 

  • significant increases in credit risk forward-looking information; and

 

  • the reconciliation of the expected credit loss allowance and changes in gross carrying amounts
Matters to be considered at the next agenda consultation Financial guarantee contracts:

 

  • mainly on the inclusion of financial guarantee contracts under the ECL model
Matters on which no further action is required
  • Requirements for recognising expected credit losses on loan commitments
  • Intersection between the impairment requirements in IFRS 9 and other IFRS Accounting Standards

5. IASB: AMENDMENTS TO CLASSIFICATION & MEASUREMENT REQUIREMENTS FOR FINANCIAL INSTRUMENTS

  • On 30th May, 2024, the International Accounting Standards Board (IASB) issued amendments to the classification and measurement requirements of IFRS 9 Financial Instruments and IFRS 7 Financial Instruments: Disclosures. The amendments will address diversity in accounting practice by making the requirements more understandable and consistent.
  • These amendments are done to address the following concerns raised earlier:
Clarifying the classification of financial assets with environmental, social, and corporate governance (ESG) and similar features
  • ESG-linked features in loans could affect whether the loans are measured at amortized cost or fair value. The concern was how such loans should be measured based on the characteristics of the contractual cash flows. To resolve any potential diversity in practice, the amendments clarify how the contractual cash flows on such loans should be assessed.
Settlement of liabilities through electronic payment systems
  • The challenge was on the derecognition of a financial asset or financial liability in IFRS 9 on settlement via electronic cash transfers. The amendments clarify the date on which a financial asset or financial liability is derecognised. The IASB also decided to develop an accounting policy option to allow a company to derecognise a financial liability before it delivers cash on the settlement date if specified criteria are met.
  • With these amendments, the IASB has also introduced additional disclosure requirements to enhance transparency for investors regarding investments in equity instruments designated at fair value through other comprehensive income and financial instruments with contingent features, for example, features tied to ESG-inked targets.
  • The amendments are effective for annual reporting periods beginning on or after 1st January, 2026.

6. PCAOB: STRENGTHENING ACCOUNTABILITY FOR CONTRIBUTING TO FIRM VIOLATIONS

  • On 12th June, 2024, the PCAOB approved the adoption of an amendment to PCAOB Rule 3502, previously titled Responsibility Not to knowingly or Recklessly Contribute to Violations. The rule, originally enacted in 2005, governs the liability of an associated person of a registered public accounting firm who contributes to that firm’s violations of the laws, rules, and standards that the PCAOB enforces.
  •  An associated person is “any individual proprietor, partner, shareholder, principal, accountant, or professional employee of a public accounting firm, or any independent contractor or entity that, in connection with the preparation or issuance of any audit report (1) shares in the profits of, or receives compensation in any other form from, that firm; or (2) participates as agent or otherwise on behalf of such accounting firm in any activity of that firm.
  • For decades under PCAOB and predecessor auditing standards, auditors have been required to exercise reasonable care any time they perform an audit, and the failure to do so constitutes “negligence”.
  • Previously, however, Rule 3502 allowed the PCAOB to hold associated persons liable for contributing to a registered firm’s violation only when they did so “recklessly” — which represents a greater departure from the standard of care than negligence. This means even when a firm commits a violation negligently, an associated person of that firm who directly and substantially contributed to the firm’s violation could be sanctioned by the PCAOB only if the PCAOB were to show that the associated person acted recklessly.
  • As adopted, the updated rule changes Rule 3502’s liability standard from recklessness to negligence, aligning it with the same standard of reasonable care auditors are already required to exercise anytime they are executing their professional duties. Similarly, the U.S. Securities and Exchange Commission already has the ability to bring enforcement actions against associated persons when they negligently cause firm violations.
  • The amendment to Rule 3502 is subject to approval by the U.S. Securities and Exchange Commission (SEC). If approved by the SEC, the amended rule will become effective 60 days after such approval.

7. PCAOB: PROPOSAL ON SUBSTANTIVE ANALYTICAL PROCEDURE

  • On 12th June, 2024, the PCAOB issued a proposal to replace its existing auditing standard related to an auditor’s use of substantive analytical procedures with a new standard: AS 2305, Designing and Performing Substantive Analytical Procedures. If adopted, the new standard would strengthen and clarify the auditor’s responsibilities when designing and performing substantive analytical procedures, increasing the likelihood that the auditor will obtain relevant and reliable audit evidence — ultimately improving overall audit quality and leaving investors better protected.
  • A substantive analytical procedure involves comparing a recorded amount (by the company) or an amount derived from the recorded amount (the “company’s amount”) to an expectation of that amount developed by the auditor to determine whether there is a misstatement.
  • The proposed standard would do the following:

♦ Strengthen and clarify the requirements for determining whether the relationship(s) to be used in the substantive analytical procedure is sufficiently plausible and predictable;

♦ Specify that the auditor develops their own expectation and not use the company’s amount or information that is based on the company’s amount (so-called circular auditing);

♦ Strengthen and clarify existing requirements for determining when the difference between the auditor’s expectation and the company’s amount requires further evaluation;

♦ Strengthen and clarify existing requirements for evaluating the difference between the auditor’s expectation and the company’s amount. This includes determining if a misstatement exists as well as specifying requirements for certain situations the auditor may encounter when evaluating a difference;

♦ Clarify the factors that affect the persuasiveness of audit evidence obtained from a substantive analytical procedure;

♦ Clarify the elements of a substantive analytical procedure, including the distinction between substantive analytical procedures and other types of analytical procedures; and

♦ Modernise the standard by reorganising the requirements and more explicitly integrating the standard with other Board-issued standards — ultimately making it easier for auditors to follow.

  •  Along with proposed AS 2305, the proposal also includes amendments to AS 1105, Audit Evidence, and AS 2301, The Auditor’s Responses to the Risks of Material Misstatement.

8. PCAOB: AUDITOR’S RESPONSIBILITIES WHEN USING TECHNOLOGY-ASSISTED ANALYSIS

  •  On 12th June, 2024, the PCAOB adopted amendments to two PCAOB auditing standards, AS 1105, Audit Evidence, and AS 2301, The Auditor’s Responses to the Risks of Material Misstatement, addressing aspects of audit procedures that involve technology-assisted analysis of information in electronic form.
  • These changes, which grew out of the Board’s ongoing research project on the use of data and technology, are designed to provide additional detail and clarity around the responsibilities auditors have when performing procedures using technology-assisted analysis. The detail and clarity provided by these amendments should serve to reduce the risk that auditors who use technology-assisted analysis in the audit may issue an opinion without obtaining sufficient appropriate audit evidence. The additional clarity also should address some auditors’ reluctance, which the PCAOB has observed, to use technology-assisted analysis at all under existing standards.
  • The changes adopted today bring greater clarity to auditor responsibilities in the following areas:

Using reliable information in audit procedures: Technology-assisted analysis often involves analysing vast amounts of information in electronic form. The adopting release emphasises auditors’ responsibilities when evaluating the reliability of such information used as audit evidence.

Using audit evidence for multiple purposes: Technology-assisted analysis can be used to provide audit evidence for various purposes in an audit.

Performing tests of details: When performing tests of details, auditors may use technology-assisted analysis to identify transactions and balances that meet certain criteria and warrant further investigation.

9. PCAOB: QUALITY CONTROL STANDARD

  • On 13th May, 2024, the PCAOB adopted a new standard designed to lead registered public accounting firms to significantly improve their quality control (QC) systems. The new standard would require all PCAOB-registered firms to identify their specific risks and design a QC system that includes policies and procedures to guard against those risks.
  • The new standard strikes a balance between a risk-based approach to QC (which should drive firms to proactively identify and manage the specific risks associated with their practice) and a set of mandates (which should assure that the QC system is designed, implemented and operated with an appropriate level of rigour).
  • All PCAOB-registered firms would be required to design a QC system that complies with the new standard. Firms that perform audits of public companies or SEC-registered brokers and dealers would be required to implement and operate the QC system they design, monitor the system, and take remedial actions where policies and procedures are not operating effectively, creating a continuous feedback loop for improvement.
  • Those firms would be required to annually evaluate their QC system and report the results of their evaluation to the PCAOB on new Form QC, which would be certified by key firm personnel to reinforce individual accountability.
  • Firms that audit more than 100 issuers annually would be required to establish an external oversight function for the QC system, referred to as an External QC Function (EQCF), composed of one or more persons who can exercise independent judgment related to the firm’s QC system. In response to comments, the new standard clarifies that the EQCF’s responsibilities should include, at a minimum, evaluating the significant judgments made and the related conclusions reached by the firm when evaluating and reporting on the effectiveness of its QC system.
  • The new standard and related amendments will take effect on 15th December, 2025.

10. FASB: PROPOSED DERIVATIVES SCOPE REFINEMENTS

  •  On 23rd July, 2024, the Financial Accounting Standards Board (FASB) today published a proposed Accounting Standards Update (ASU) to address stakeholder feedback related to:

the application of derivative accounting to contracts with features based on the operations or activities of one of the parties to the contract; and

the diversity in accounting for a share-based payment from a customer that is considered for the transfer of goods or services.

  • For Derivative accounting, the amendments in this proposed Update would expand the scope exception for certain contracts not traded on an exchange to include contracts for which settlement is based on operations or activities specific to one of the parties to the contract. This improvement is expected to result in more contracts and embedded features being excluded from the scope of Topic 815 Derivatives and Hedging.
  • For Share-Based Payment, the amendments in this proposed Update would clarify that an entity should apply the guidance in Topic 606, including the guidance on noncash consideration in paragraphs 606-10-32-21 through 32-24, to a contract with a share-based payment (for example, shares, share options, or other equity instruments) from a customer that is consideration for the transfer of goods or services. Accordingly, under Topic 606, the share-based payment should be recognised as an asset measured at the estimated fair value at contract inception under Topic 606 when the entity’s right to receive or retain the share-based payment from a customer is no longer contingent on the satisfaction of a performance obligation.

B. GLOBAL REGULATORS- ENFORCEMENT ACTIONS AND INSPECTION REPORTS

I. THE FINANCIAL REPORTING COUNCIL, UK

a) Sanctions against MacIntyre Hudson LLP, Deborah Weston, and Geeta Morgan (9th July, 2024)

  • The Company was incorporated on 3rd May, 2018 in order to issue bonds to raise finance for its parent company, a business focused on natural resources with interests in agribusiness, logistics and technology.
  • MHA and Ms Weston (in relation to the FP2018 Audit) and MHA and Ms Morgan (in relation to the FY2019 Audit) have admitted that there were numerous breaches of Relevant Requirements in the audit work completed.
  • The primary breach in each audit year was the failure during the audit acceptance and continuance processes to ultimately identify (and so conduct the audits on the basis) that the Company was a Public Interest Entity because although it had not listed its shares, it had listed the bonds on the London Stock Exchange debt market. The failure to gain an adequate understanding of the Company, and the regulatory framework applicable to it, led directly to further breaches of Relevant Requirements, including, in both years, the provision of prohibited non-audit services and a failure to ensure that an Engagement Quality Control Review was performed before the Audit Report was signed.
  • The FRC’s investigation also identified additional breaches of Relevant Requirements concerning the application of the correct accounting standards and documentation, audit work on confirmation of bank balances, a loan to the parent company, and the going concern assumption.
  • The sanctions were imposed against all.

II. THE PUBLIC COMPANY ACCOUNTING OVERSIGHT BOARD (PCAOB)

a) Sanctions against three auditors for failures relating to audit evidence, skepticism and other violations (7th May, 2024)

  • The PCAOB announced three settled disciplinary orders sanctioning two former Liggett & Webb, P.A. (“Liggett & Webb”) partners, Jessica Etania, CPA and Arpita Joshi, CPA, and engagement quality reviewer Robert Garick, CPA (collectively, “Respondents”).
  • The PCAOB found the following:

♦ Etania and Joshi, the engagement partners on the Innovative Food audits, (1) failed to obtain sufficient appropriate audit evidence to support the issuance of Liggett & Webb’s Innovative Food opinions, and (2) failed to evaluate whether Innovative Food’s revenue was properly valued and presented fairly in Innovative Food’s financial statements.

♦ Etania, the engagement partner on the Luvu audits, failed to evaluate whether Luvu’s revenue was presented fairly in Luvu’s financial statements.

♦ Joshi and Garick – while serving as engagement quality reviewers on the 2020 Luvu audit and 2020 Innovative Food audit, respectively — failed to exercise due professional care and professional skepticism, and therefore, lacked an appropriate basis to provide their concurring approvals of issuance of Liggett & Webb’s audit reports.

  • PCAOB bars engagement partners, impose practice limitations on engagement quality review partners, and imposes $130,000 in total fines

b) Deficiencies in Firm Inspection Reports:

  • Deloitte Touche Tohmatsu CPA LLP (23rd May, 2024)

 Deficiency: In an inspection carried out by PCAOB, it has identified deficiencies in the financial statements and ICFR audits related to Revenue and Related Accounts, Variable Interest Entities, and Short-Term Investments.

♦ Revenue and Related Accounts: The firm did not identify and test any controls over the satisfaction of a performance obligation, accuracy and completeness of system-generated data, etc.

♦ Variable Interest Entities: The firm did not identify and test any controls over the issuer’s review of the legal opinion prepared by the company’s specialist, which described uncertainties regarding the interpretation and application of current laws and regulations related to the structure of the VIE, and evaluation of the effect of such uncertainties on its ability to consolidate the VIE.

♦ Short-Term Investment: The firm selected for testing a control over short-term investments that consisted of the issuer’s review of the fair value calculation of the investments, including the expected rate of return. The firm did not evaluate the review procedures that the controlling owner performed, including the procedures to identify items for follow-up and the procedures to determine whether those items were appropriately resolved.

  •  Ernst & Young Hua Ming LLP (23rd May, 2024)

Deficiency: In an inspection carried out by PCAOB, it has identified deficiencies in the financial statements and ICFR audits related to Goodwill and Variable Interest Entities.

  • Goodwill: The firm selected for testing a control that consisted of the issuer’s review of the determination of the reporting units. The firm did not test an aspect of this control that addressed the considerations for the aggregation of the two components into one reporting unit, including the similarity of the economic characteristics of the components and various qualitative factors, as required by FASB ASC Topic 350, Intangibles – Goodwill and Other, etc.
  • Variable Interest Entities: The firm did not sufficiently evaluate the relevance and reliability of the work performed by the company’s specialist and whether the specialist’s findings support or contradict the issuer’s rights and obligations related to the consolidation of the VIEs.

III. THE SECURITIES EXCHANGE COMMISSION (SEC)

a) Charges for misleading investors about the Compliance Program (1st July, 2024)

  •  The Securities and Exchange Commission charged Silvergate Capital Corporation, its former CEO Alan Lane, and former Chief Risk Officer (CRO) Kathleen Fraher with misleading investors about the strength of the Bank Secrecy Act / Anti-Money Laundering (BSA/AML) compliance program and the monitoring of crypto customers, including FTX, by Silvergate’s wholly owned subsidiary, Silvergate Bank. The SEC also charged Silvergate and its former Chief Financial Officer, Antonio Martino, with misleading investors about the company’s losses from expected securities sales following FTX’s collapse.
  • According to the SEC’s complaint, from November 2022 to January 2023, Silvergate, Lane, and Fraher misled investors by stating that Silvergate had an effective BSA/AML compliance program and conducted ongoing monitoring of its high-risk crypto customers, including FTX, in part to rebut public speculation that FTX had used its accounts at Silvergate to facilitate FTX’s misconduct. In reality, Silvergate’s automated transaction monitoring system failed to monitor more than $1 trillion of transactions by its customers on the bank’s payments platform, the Silvergate Exchange Network.
  • Without admitting or denying the allegations, Silvergate agreed to a final judgment, ordering it to pay a $50 million civil penalty and imposing a permanent injunction to settle the charges

b) Cybersecurity Related Control Violations (18th June, 2024)

  • The Securities and Exchange Commission announced that R.R. Donnelley & Sons Company (RRD), a global provider of business communication and marketing services, agreed to pay over $2.1 million to settle disclosure and internal control failure charges relating to cybersecurity incidents and alerts in late 2021.
  • Data integrity and confidentiality were critically important to RRD’s business. Because client data was stored on RRD’s network, its information security personnel and the third-party service provider RRD hired were responsible for monitoring the network’s security. However, according to the order, RRD failed to design effective disclosure controls and procedures to report relevant cybersecurity information to management with the responsibility for making disclosure decisions and failed to carefully assess and respond to alerts of unusual activity in a timely manner. The order further finds that RRD failed to devise and maintain a system of cybersecurity-related internal accounting controls sufficient to provide reasonable assurances that access to RRD’s assets — its information technology systems and networks — was permitted only with management’s authorisation.
  • RRD agreed to cease and desist from committing violations of these provisions and to pay a $2,125,000 civil penalty.

c) Fraud: Charges against raising more than $184 million through Pre-IPO Fraud Schemes

  • The Securities and Exchange Commission charged three individuals with fraud for selling unregistered membership interests in LLCs that purported to invest in shares of pre-IPO companies, first on behalf of StraightPath Venture Partners LLC, the subject of the Commission’s emergency action in May 2022, and, later, on behalf of Legend Venture Partners LLC, the subject of the Commission’s emergency action in June 2023.
  • In this new action, the SEC alleges that New York residents Mario Gogliormella, Steven Lacaj, and Karim Ibrahim directed an unregistered sales force of more than 50 callers in boiler rooms to pressure investors into making investments without telling them that the shares had been substantially marked up — between approximately 19 and 105 per cent on average above the prices that StraightPath or Legend had paid for the underlying shares. As a result of these tactics, the defendants and their sales force allegedly pocketed more than $45 million in fees from unsuspecting investors from 2019 to 2022. Charges were imposed.

From Published Accounts

COMPILERS’ NOTE

Accounting for business combinations (mergers, amalgamations, etc.) is governed by Ind AS 103, including the Appendix thereof which governs mergers under Common Control. As per the Companies Act, 2013, the schemes also require approval from the National Company Law Tribunal (NCLT). Given below are illustrations of disclosures in a few large companies.

ASIAN PAINTS LIMITED (31ST MARCH 2024)

From Notes to Consolidated Financial Statements Mergers, Acquisitions, and Incorporations

a) Equity infusion in Weatherseal Fenestration Private Limited (Weatherseal):

During the previous year on 14th June, 2022, the Parent Company subscribed to 51 per cent of the equity share capital of Weatherseal for a cash consideration of ₹18.84 crores. Accordingly, Weatherseal became a subsidiary of the Parent Company. Weatherseal is engaged in the business of interior decoration / furnishing, including manufacturing PVC windows and door systems. The acquisition will enable the Group to widen its offerings in the home decor space and is a step forward in the foray of being a complete home decor solution provider.

In accordance with the Shareholders Agreement and Share Subscription Agreement, the Parent Company has agreed to acquire a further stake of 23.9 per cent in Weatherseal from its promoter shareholders, in a staggered manner. The Parent Company has also entered into a put contract for the acquisition of a 25.1 per cent stake in Weatherseal. Accordingly, on the day of acquisition, a gross obligation towards acquisition is and recognized for the same, initially measured at ₹18.08 crores. On 31st March, 2024, the fair value of such gross obligation is ₹9.53 crores (on 31st March, 2023 — ₹21.46 crores). A fair valuation gain of ₹11.93 crores is recognized in the Consolidated Statement of Profit and Loss for the year ended 31st March, 2024 (Previous Year — fair valuation loss of ₹3.38 crores).

b) Acquisition of stake in Obgenix Software Private Limited

The Parent Company entered into a Share Purchase Agreement and other definitive documents (agreement) with the shareholders of Obgenix Software Private Limited (popularly known by the brand name of ‘White Teak’) on 1st April, 2022. White Teak is engaged in designing, trading, or otherwise dealing in all types and descriptions of decorative lighting products and fans, etc. The acquisition will enable the Group to widen its offerings in the home decor space and is a step forward in the foray of being a complete home decor solution provider.

During the previous year, on 2nd April, 2022, the Parent Company acquired 49 per cent of the equity share capital of White Teak for a cash consideration of ₹180 crores along with an earn-out, payable after a year, subject to achievement of mutually agreed financial milestones. Accordingly, White Teak became an associate of the Group. On 31st March, 2023, the fair value of the earn-out was ₹58.97 crores.

During the year, on 23rd June, 2023, the Parent Company further acquired 11 per cent of the equity share capital of White Teak from the existing shareholders of White Teak for a consideration of ₹53.77 crores. The Parent Company holds 60 per cent of the equity share capital of White Teak, by virtue of which White Teak has become a subsidiary of the Parent Company. On such date, the fair value of earn out stood at ₹59.45 crores which was paid to the promoters of White Teak. Fair valuation loss towards earn out paid of ₹0.48 crores has been recognized in the Consolidated Statement of Profit & Loss (Previous Year — ₹5.17 crores).

In accordance with the agreement, the remaining 40 per cent of the equity share capital would be acquired in FY 2025–26. Accordingly, on the day of acquisition, gross obligation towards further stake acquisition is recognized for the same, initially measured at ₹225.92 crores. On 31st March, 2024, the fair value of such gross obligation is ₹186.22 crores. A fair valuation gain of ₹39.70 crores is recognized in the Consolidated Statement of Profit and Loss for the year ended 31st March, 2024.

(₹in crores)
Assets acquired and liabilities assumed on acquisition date: 30th June, 2023
Property, plant, and equipment 9.13
Intangible Assets 220.06
Right-of-Use Assets 34.06
Income Tax Assets (Net) 0.01
Deferred Tax Assets 2.21
Inventories 24.54
Financial Assets
Trade Receivables 7.47
Cash and bank balances 0.72
Other Financial Assets 4.43
Other Current Assets 4.03
Total Assets 306.66
Provisions 1.63
Deferred Tax Liabilities 1.09
Financial Liabilities
Borrowings 13.86
Lease Liabilities 35.11
Trade payables and other liabilities 7.92
Other payables 2.35
Total Liabilities 61.96
Net assets acquired 244.70

Trade receivables of ₹7.47 crores represent the gross contractual amounts. There are no contractual cash flows expected to be collected on the acquisition date.

(₹in crores)
Goodwill arising on the acquisition of a stake in White Teak 30th June, 2023
Cash consideration transferred (i) 53.77
Net Fair Value of Derivative Asset and Liability (ii) 2.27
Fair Value of 49 per cent stake in White Teak, as

one of the acquisition dates (iii)

256.11
Total consideration transferred [(iv) = (i)+(ii)+(iii) 312.15
Fair Value of identified assets acquired (v) 244.70
Group share of Fair Value of identified assets acquired (vi) 146.82
Group share of Goodwill arising on acquisition White Teak [(iv)-(vi)] 165.33

The goodwill of ₹165.33 crores comprises the value of the acquired workforce, revenue growth, future market developments, and expected synergies arising from the business combination.

A gain of ₹33.96 crores on re-measurement of the fair value of 49 per cent stake held in White Teak is recognized under Other Income in the Consolidated Statement of Profit and Loss.

(₹in crores)
Net cash outflow on acquisition 30th June, 2023
Cash consideration transferred 53.77
Less: Cash and cash equivalent acquired (including overdraft) (7.92)
Net cash and cash equivalent outflow 61.69

The amount of non-controlling interest recognised at the acquisition date was ₹97.88 crores, measured at no controlling interest’s proportionate share in the recognised amounts of White Teak’s identifiable net assets.

Impact of acquisition on the results of the Group:

Revenue from operations of ₹107.46 crores and Profit after tax of ₹1.22 crores of White Teak has been included in the current year’s Consolidated Statement of Profit and Loss. If the acquisition had occurred on 1st April, 2023, the consolidated revenue of the Group would have been higher by ₹25.96 crores, and the consolidated profit of the Group for the year would have been higher by ₹0.59 crores.

No material acquisition costs were charged to the Consolidated Statement of Profit and Loss for the year ended 31st March, 2024.
.
e) Acquisition of stake in Harind Chemicals and Pharmaceuticals Private Limited:

On 20th October, 2022, the Parent Company entered into Share Purchase Agreements and other definitive documents with shareholders of Harind Chemicals and Pharmaceuticals Private Limited (‘Harind’), for the acquisition of a majority stake in Harind, in a staggered manner, subject to fulfilment of certain conditions precedent. Harind is a specialty Chemicals Company engaged in the business of nanotechnology-based research, manufacturing, and sale of a range of additives and specialized coatings. Nanotechnology has the potential to be the next frontier in the world of coatings, and the acquisition will enable the Group to manufacture commercially viable high–performance coatings and additives with this technology.

Upon fulfilment of the conditions precedent for acquisition of the first tranche, the Parent Company has acquired 51 per cent of the equity share capital of Harind for consideration of ₹14.28 crores on 14th February, 2024. Accordingly, Harind and Nova Surface-Care Centre Private Limited, a wholly owned subsidiary of Harind, have become subsidiaries of the Parent Company. Further, the Parent Company has agreed to acquire a further 39 per cent stake in Harind in a staggered manner, over the next 3 years period. Accordingly, gross obligation towards acquisition is recognized at ₹48.88 crores as of 31st March, 2024.

(₹in crores)
Assets acquired and liabilities assumed on acquisition date: 31st Jan, 2024
Property, plant, and equipment 1.47
Right-of-Use Assets 0.34
Deferred Tax Assets (Net) 0.11
Inventories 3.18
Financial Assets
Trade Receivables 6.72
Cash and bank balances 0.97
Other Balances with Banks 9.12
Other Financial Assets 0.24
Other Current Assets 0.18
Total Assets 22.33
Financial Liabilities
Lease Liabilities 0.37
Trade payables 3.68
Other Financial Liabilities 0.37
Other Current Liabilities 0.55
Provisions 0.42
Income Tax liabilities 0.65
Total Liabilities 6.04
Net assets acquired 16.29

Trade receivable with a fair value of ₹6.72 crores had gross contractual amounts of ₹6.74 crores. The best estimate on the acquisition date of the contractual cash flows not expected to be collected is ₹0.02 crores.

Goodwill arising on the acquisition of a stake in White Teak 31st Jan, 2024
Cash consideration transferred (i) 14.28
Fair Value of Derivative liability (ii) 11.90
Total consideration transferred [(iii) = (i)+(ii)] 26.18
Fair Value of identified assets acquired (iv) 16.29
Group share of fair value of identified assets acquired (v) 8.31
Group share of Goodwill arising on the acquisition of Harind [(iii)-(v)] 17.87

The goodwill of ₹17.87 crores comprises the value of the acquired workforce, revenue growth, future market developments, and expected synergies arising from the business combination.

(₹in crores)
Net cash outflow on acquisition 31st Jan, 2024
Cash consideration transferred 14.28
Cash and cash equivalents acquired 0.97
Net cash and cash equivalent outflow 13.31

The amount of non-controlling interest recognized at the acquisition date was ₹7.98 crores, measured at non-controlling interest’s proportionate share in the recognized amounts of Harind’s identifiable net assets.

Impact of acquisition on the results of the Group:

Revenue from operations of ₹6.49 crores and Profit after tax of ₹1.60 crores of Harind has been included in the current year’s Consolidated Statement of Profit and Loss. If the acquisition had occurred on 1st April, 2023, the consolidated revenue of the Group would have been higher by ₹28.50 crores, and the consolidated profit of the Group for the year would have been higher by ₹4.00 crores.

No material acquisition costs were charged to the Consolidated Statement of Profit and Loss for the year ended 31st March, 2024.

f) Amalgamation of Sleek International Private Limited and Maxbhumi Developers Limited:

The Board of Directors at their meeting held on 28th March, 2024 had approved the Scheme of Amalgamation (‘the Scheme’) of Maxbhumi Developers Limited and Sleek International Private Limited, wholly owned subsidiaries of Asian Paints Limited
(Parent Company) with the Parent Company in accordance with the provisions of the Companies Act, 2013 and other applicable laws with the appointed date of 1st April 2024. The Scheme is subject to necessary statutory and regulatory approvals, including approval of the Hon’ble National Company Law Tribunal, Mumbai. There is no impact of the Scheme on the Consolidated Financial Statements

CRISIL LIMITED (31ST MARCH 2024)

From Notes to Consolidated Financial Statements

Business Combinations

Business combinations are accounted for using the acquisition accounting method as at the date of the acquisition, which is the date at which control is transferred to the Group. The consideration transferred in the acquisition and the identifiable assets acquired and liabilities assumed are recognised at fair values on their acquisition date. Goodwill is initially measured at cost, being the excess of the aggregate of the consideration transferred over the net identifiable assets acquired and liabilities assumed.

Merger of CRISIL Irevna US LLC and Greenwich Associates LLC

The Board of Directors of CRISIL Irevna US LLC and Greenwich Associates LLC vide board resolution dated 21st October, 2022 had approved a scheme of amalgamation. The scheme has received approval from the competent authorities and accordingly, Greenwich Associates LLC has been merged with CRISIL Irevna US LLC with effect from 1st April, 2023. The merger has no impact on the consolidated financial results of the Group. In accordance with Appendix C to Ind AS 103 ‘Business Combination’, the financial information of CRISIL Irevna US LLC in the consolidated financial statements in respect of the prior period has been restated as if the business combination had occurred from the beginning of the preceding period.

The merger of CRISIL Risk and Infrastructure Solutions Limited (CRIS) and Pragmatix Services Private Limited (PSPL)

i) The Board of Directors of the Company has approved the arrangement for the amalgamation of two wholly owned subsidiaries (CRISIL Risk and Infrastructure Solutions Limited and Pragmatix Services Private Limited — Transferor Company) with the Company in its Board meeting held on 13th December, 2021. The Company filed necessary applications to the National Company Law Tribunal (NCLT) on 27th December, 2021. The Scheme has been sanctioned by the National Company Law Tribunal (NCLT) with the appointed date as 1st April 1, 2022 and the Scheme became effective on 1st September, 2022. The merger has no impact on the consolidated financial results of the Group.

ii) The authorized equity share capital of the Company has been increased by the authorized equity share capital of the former CRIS and PSPL in accordance with the Scheme of Merger vide Board resolution dated 13th December, 2022.

Acquisition of Bridge To India Energy Private Limited

The Company completed the acquisition of a 100 per cent stake in ‘Bridge To India Energy Private Limited’ (Bridge To India) on 30th September, 2023. Bridge To India is a renewable energy (RE) consulting & knowledge services provider to financial and corporate clients in India. The acquisition will augment CRISIL’s existing offerings and bolster our market positioning in the renewable energy space. The transaction is at a total consideration of R721 lakh. Accordingly, Bridge To India became a wholly owned subsidiary of the Company with effect from the said date.

Assets acquired, and liabilities assumed are as under:

Particulars ( In lakhs)
Total identifiable assets (A) 550
Total identifiable liabilities (B) 293
Goodwill (C) 464
Total net assets (A-B+C) 721

Acquisition of Peter Lee Associates Pty. Limited

CRISIL Limited, through its subsidiary, CRISIL Irevna Australia Pty Limited has completed the acquisition of a 100 per cent stake in Peter Lee Associates Pty. Limited (Peter Lee) on 17th March, 2023.

Peter Lee is an Australian research and consulting firm providing benchmarking research programs to the financial services sector. Peter Lee conducts annual research programs across Australia and New Zealand in various areas of banking, markets, and investment management. The acquisition will complement CRISIL’s existing portfolio of products and expand offerings to new geographies and segments across financial services including commercial banks and investment management. The deal will accelerate CRISIL’s strategy in the APAC region to be the foremost player in the growing market.

The total consideration is ₹3,421 lakh (AUD 6.18 million), which includes upfront and deferred consideration.

Assets acquired, and liabilities assumed are as under:

Particulars ( In lakhs)
Total identifiable assets (A) 2,746
Total identifiable liabilities (B) 1,019
Goodwill (C) 1,694
Total net assets (A-B+C) 3,421

 

HINDUSTAN UNILEVER LIMITED

(31ST MARCH 2024)

From Notes to Consolidated Financial Statements

Business Combinations

As per Ind AS 103, Business combinations are accounted for using the acquisition accounting method as at the date of the acquisition, which is the date at which control is transferred to the Group. The consideration transferred in the acquisition and the identifiable assets acquired and liabilities assumed are recognised at fair values on their acquisition date. Goodwill is initially measured at cost, being the excess of the aggregate of the consideration transferred and the amount recognised for non-controlling interests, and any previous interest held, over the net identifiable assets acquired and liabilities assumed. The Group recognizes any non-controlling interest in the acquired entity on an acquisition-by-acquisition basis either at fair value or at the non-controlling interest’s proportionate share of the acquired entity’s net identifiable assets. The consideration transferred does not include amounts related to the settlement of pre-existing relationships. Such amounts are recognised in the consolidated statement of profit and loss.

Transaction costs are expensed in the consolidated statement of profit and loss as incurred, other than those incurred in relation to the issue of debt or equity securities which are directly adjusted in other equity. Any contingent consideration payable is measured at fair value at the acquisition date. Subsequent changes in the fair value of contingent consideration are recognized in the consolidated statement of profit and loss.

Business combinations under common control entities

Business combinations involving companies in which all the combining companies are ultimately controlled by the same holding party, both prior to and after the business combination are treated as per the pooling of interest method.

The pooling of interest method involves the following:

(i) The assets and liabilities of the combining entities are reflected in their carrying amounts.

(ii) No adjustments are made to reflect fair values or recognize any new assets or liabilities.

(iii) The financial information in the financial statements in respect of prior periods is restated as if the business combination had occurred from the beginning of the preceding period in the financial statements, irrespective of the actual date of the combination.

The identity of the reserves is preserved, and they appear in the financial statements of the transferee company in the same form in which they appeared in the financial statements of the transferor company. The difference, if any, between the consideration and the amount of share capital of the transferor company is transferred to capital reserve.

The merger of Ponds Exports Limited (‘PEL’) and Jamnagar Properties Private Limited (“JPPL’’) with Unilever India Exports Limited (‘UIEL’)

Pursuant to a scheme of arrangement, the below entities were merged with Unilever India Exports Limited (‘UIEL’), a wholly owned subsidiary of HUL w.e.f. 13th February, 2024:

i. Pond’s Export Limited (‘PEL’), a subsidiary of HUL, where HUL held 90 per cent and UIEL held 10 per cent of share capital;

ii. Jamnagar Properties Private Limited, a wholly-owned subsidiary of HUL.

PEL and JPPL had no business activity.

As part of the ‘Merger Order’ from NCLT vide order dated 16th January, 2024, the consideration to each equity shareholder of PEL and JPPL is:

a) 1 equity share of the merged entity of ₹10 each, against 1,99,00,147 paid-up equity shares of ₹1 each of PEL

b) 1 equity share of the merged entity of ₹10 each, against 50,00,000 paid-up equity shares of ₹10 each of JPPL

Since the merger is of entities under common control, it is accounted for using the pooling of interest method as per Ind AS 103.

In the current financial year, ₹7 crores have been transferred from retained earnings to capital reserves, on account of the merger of PEL and JPPL with UIEL under common control as per IND AS 103.

Acquisition of Zywie Ventures Private Limited

On 10th January, 2023, the Holding Company acquired a 53.34 per cent stake (51.00 per cent on a fully diluted basis) in ZVPL, an unlisted company incorporated in India and engaged in the business of Health and well-being products under the brand name of ‘OZiva’.

As part of the Shareholders Agreement (‘SHA’), Holding Company has acquired substantive rights that give control over relevant activities of the business and the right to variable returns through inter alia composition of Board, decision-making rights, management control, and hence ZVPL is treated as a subsidiary.

A) Purchase consideration transferred

The amount of consideration transferred on acquisition is ₹264 crores in cash.

B) Financial liability on the acquisition

On the acquisition date, the Holding Company acquired a stake in ZVPL through equity shares and compulsorily convertible preference shares (‘CCPS’), and forward rights on the non-controlling interests (‘NCI’) by way of Share Subscription and Share Purchase Agreement (‘SSSPA’). In respect of this, the Group has recognized a financial liability for the forward rights on the non-controlling interests at its estimated present value. The said financial liability was recognized through a corresponding impact to Other Equity of ₹375 crores. Subsequent measurement of this liability is at Fair value through Profit and Loss and currently stands at ₹265 crores.

C) Assets acquired, and liabilities assumed are as under:

Amount
Total identifiable assets (A) 605
Total identifiable liabilities (B) 225
Total identifiable net assets acquired [(A) – (B)] 380

D) Acquisition of brand OZiva

The Holding Company also acquired the OZiva brand, as part of the acquisition deal. The brand was valued at ₹361 crores using the multi-period excess earnings method.

E) Goodwill

Amount
Upfront cash consideration transferred 264
Non-controlling interest on the date of acquisition 185
Less: Total identifiable net assets acquired (380)
Goodwill 69

Goodwill of ₹69 crores was recognized on account of synergies expected from the acquisition of ZVPL.

Amalgamation of GlaxoSmithKline Consumer Healthcare Limited

On 1st April, 2020, the Holding Company completed the merger of GlaxoSmithKline Consumer Healthcare Limited [‘GSK CH’] via an all-equity merger under which 4.39 shares of HUL (the Holding Company) were allotted for every share of GSK CH. With this merger, the Holding Company acquired the business of GSK CH including the Right to Use assets of brand Horlicks and Intellectual Property Rights of brands like Boost, Maltova, and Viva. The Holding Company also acquired the Horlicks intellectual property rights, being the legal rights to the Horlicks brand for India from GlaxoSmithKline Plc.

The scheme of merger (‘scheme’) submitted by the Holding Company was approved by the Hon’ble National Company Law Tribunal by its order dated 24th September, 2019 (Mumbai bench) and 12th March, 2020 (Chandigarh bench). The Board of Directors approved the scheme between the Holding Company and GSK CH, on 1st April, 2020. The scheme was filed with the Registrar of Companies on the same date. Accordingly, 1st April, 2020 was considered as the acquisition date, i.e., the date at which control is transferred to the Holding Company.

The merger had been accounted for using the acquisition accounting method under Ind AS 103 – Business Combinations. All identified assets acquired and liabilities assumed on the date of the merger were recorded at their fair value.

A) Purchase consideration transferred:

The total consideration paid was ₹40,242 crores which comprised of shares of the Holding Company, valued based on the share price of the Holding Company on the completion date. Refer to the details below:

As per the scheme, the Holding Company issued its shares in favour of existing shareholders of GSK CH such that 4.39 of the Holding Company’s shares were allotted for every share of GSK CH as below.

Amount
Total number of GSK CH shares outstanding 4,20,55,538
Total number of Holding Company’s shares issued to GSK CH shareholders i.e.,4.39 of Company’s shares per share of GSK CH 18,46,23,812
Value of the Holding Company share (closing price of the Company share on NSE as of 1st April, 2020) 2,179.65
Total consideration paid to acquire GSK CH ( crores) 40,242

(a) Total costs relating to the issuance of shares amounting to ₹44 crores as recognized against equity.

(b) Transaction cost of ₹146 crores that were not directly attributable to the issue of shares was included under exceptional items in the consolidated statement of profit and loss.

B) Assets acquired, and liabilities assumed is as under:

Amount
Total number of GSK CH shares outstanding 4,20,55,538
Total number of Holding Company’s shares issued to GSK CH shareholders i.e.,4.39 of Company’s shares per share of GSK CH 18,46,23,812
Value of the Holding Company share (closing price of the Company share on NSE as of 1st April, 2020) 2,179.65
Total consideration paid to acquire GSK CH ( crores) 40,242

The main assets acquired were Right to use Horlicks and Boost brand which were valued using the income approach model by estimating future and cash flows generated by these assets and discounting them to present value using rates in line with a market participant expectation.

In addition, as applicable, Property plant & equipment have been valued using the market comparison technique and replacement cost method.

C) Acquisition of Horlicks Brand:

The Holding Company also acquired the Horlicks Intellectual Property Rights (IPR), being the legal rights to the Horlicks brand for India from GlaxoSmithKline Plc for a consideration of ₹3,045 crores. The transaction has been accounted as an asset acquisition in line with Ind AS 38 (Intangible assets).

The Holding Company incurred a transaction cost of ₹91 crores for the above asset acquisition which was capitalised along with Horlicks IPR. A total value of ₹3,136 crores is recognised under Intangible assets in the consolidated financial statements.

 

TECH MAHINDRA LIMITED

(31ST MARCH, 2024)

Notes forming part of the Consolidated Financial Statement for the year ended 31st March, 2024

Business Combinations

Acquisition during the year ended 31st March, 2024

Pursuant to a share purchase agreement on 19th February, 2024 the Company through its wholly owned subsidiary, V Customer Phillippines Inc., acquired100 per cent stake in Orchid Cybertech Services Inc. (OCSI) for a consideration of AUD 5 million (₹296 Million) of which AUD 5 million (₹290 million) was paid upfront. Contractual obligation as of 31st March, 2024 AUD 0.1 million (₹6 Million).

OSCI is primarily engaged in Information Technology call center operations.

Particulars OCSI
AUD in million in million
Fair value of net assets / (liabilities) as of the date of acquisition 3 153
Customer Relationship 3 143
The fair value of net assets / (liabilities) 5 296
Purchase Consideration 5 296

For the one month ended 31st March, 2024 Orchid Cybertech Services Incorporated contributed revenue of ₹379 million and profit of ₹83 million to the Group’s results. If the acquisition had occurred on 1st April, 2023, management estimates that the consolidated revenue of the Group would have been ₹521,607 million, and the consolidated profit of the Group for the year would have been ₹24,098 million. The pro forma amounts are not necessarily indicative of the results that would have occurred if the acquisition had occurred on the date indicated or that may result in the future.

Details of acquisition during the year ended 31st March, 2024

Pursuant to a share purchase agreement, the Company acquired a 100 per cent stake in Thirdware Solution Limited and its subsidiaries, on 3rd June, 2022, for a consideration of ₹7,838 million out of which ₹6,708 million was paid upfront. The agreement also provides for contingent consideration linked to the financial performance of the financial year ending 2022 to 2024. As of 31st March, 2023, contractual obligation towards the said acquisition amounts to ₹735 million (31st March, 2024 ₹150 million)

Thirdware Solution Limited offers consulting, design, implementation, and support of enterprise applications services with a focus on the Automotive industry.

The summary of PPA is:

Particulars Thirdware Solutions Limited
Fair value of net assets / (liabilities)as of the date of acquisition 5,397
Customer Relationship 1,005
Goodwill 1,436
Fair value of net assets / (liabilities)including Goodwill 7,838
Purchase Consideration 7,838

The aforesaid said purchase price allocation was determined provisionally and has been finalized in the current year.

For the ten months ended 31st March, 2023, Thirdware Solution Limited contributed revenue of ₹2,838 million and profit of ₹564 million to the Group’s results. If the acquisition had occurred on 1st April, 2022, management estimates that the consolidated revenue of the Group would have been ₹533,366 Million, and the consolidated profit of the Group for the year would have been ₹48,749 million. The pro-forma amounts are not necessarily indicative of the results that would have occurred if the acquisition had occurred on the date indicated or that may result in the future.

ULTRATECH CEMENT LIMITED

(31ST MARCH, 2024)

Notes to Consolidated Financial Statements

Acquisition of the Cement Business of Kesoram Industries

The Board of Directors has approved a Composite Scheme of Arrangement between Kesoram Industries Limited (“Kesoram”), the Company, and their respective shareholders and creditors, in compliance with sections 230 to 232 and other applicable provisions of the Companies Act, 2013 (“Scheme”). The Scheme, inter alia, provides for:

(a) Demerger of the Cement Business of Kesoram into the Company; and

(b) Reduction and cancellation of the preference share capital of Kesoram.

The Appointed Date for the Scheme is 1st April, 2024. The Cement Business of Kesoram consists of 2 integrated cement units at Sedam (Karnataka) and Basantnagar (Telangana) with a total installed capacity of 10.75 mtpa and a 0.66 mtpa packing plant at Solapur, Maharashtra. The Company will issue 1 (one) equity share of the Company of face value ₹10 each for every 52 (fifty-two) equity shares of Kesoram of face value ₹10 each to the shareholders of Kesoram as on the record date defined in the Scheme.

The Competition Commission of India has by its letter dated 19th March, 2024 approved the proposed combination under Section 31(1) of the Competition Act, 2002. The Scheme is, inter alia, subject to receipt of requisite approvals from statutory and regulatory authorities, including from the stock exchanges, the Securities and Exchange Board of India (SEBI), the National Company Law Tribunals, and the shareholders and creditors of the Company.

The merger of UltraTech Nathdwara Cement Limited (UNCL) (a wholly-owned subsidiary of the Company) and its wholly-owned subsidiaries viz. Swiss Merchandise Infrastructure Limited and Merit Plaza Limited (Ind AS 103).

The National Company Law Tribunal (“NCLT”), Mumbai and Kolkata Benches have by their order dated 18th December, 2023 and 3rd April, 2024 approved the Scheme of Amalgamation (“Scheme”) of UltraTech Nathdwara Cement Limited (UNCL)(a wholly-owned subsidiary of the Company) and its wholly-owned subsidiaries viz. Swiss Merchandise Infrastructure Limited (“Swiss”) and Merit Plaza Limited (“Merit”) with the Company. The Appointed date of the Scheme is 1st April, 2023. The said scheme has been made effective from 20th April, 2024. Consequently, the above-mentioned wholly owned subsidiaries of the Company stand dissolved without winding up.

Since the amalgamated entities are under common control, the accounting of the said amalgamation in the Standalone Financials has been done applying the Pooling of Interest method as prescribed in Appendix C of Ind AS 103 ‘Business Combinations’. While applying the Pooling of Interest method, the Company has recorded all assets, liabilities, and reserves attributable to the wholly owned subsidiaries at their carrying values as appearing in the consolidated financial statements of the Company.

The aforesaid scheme has no impact on the Consolidated Financial Statements of the Group since the scheme of amalgamation was within the parent company and wholly owned subsidiaries.

Consequent to the amalgamation of the wholly owned subsidiaries into the Company, the Company has not recognized Deferred Tax Assets on the unabsorbed Depreciation, business losses, and other temporary differences since the scheme was made effective from 20th April, 2024. Costs related to amalgamation (including stamp duty on assets transferred) have been charged to Statement of Profit and Loss, shown under exceptional item during the year.

Business Combination (Ind AS 103)

A) During the previous year, the Company had entered into a Share Sale and Purchase Agreement on 29th January, 2023 with Seven Seas Company LLC and His Highness Al-Sayyid Shihab Tariq Taimur Al Said for the acquisition of 70 per cent equity share of Duqm Cement project International LLC Located in Oman. The Company is mainly in the business of mining and extracting limestone. The acquisition allows the Company to secure raw materials for the growing requirements of India Operations and create value for shareholders.

B) Fair value of the consideration transferred

As per Ind AS 103 — Business combinations, purchase consideration has been allocated on the basis of fair valuation determined by an independent value. Total enterprise value works out to ₹159.47 crores. The effective purchase consideration of ₹111.62 crores. The Fair value of identifiable assets acquired, and liabilities assumed as of the acquisition date are as under:

Particulars R in crores
Capital Work in Progress 11.30
Mining Reserve 148.16
Cash and Bank 0.04
Total Assets 159.50
Other Current liabilities 0.04
Fair Value of Assets 159.46

C) Fair value of the consideration transferred

Particulars R in crores
Fair value of the consideration (70 per cent) 111.62
Total Enterprise Value 159.47
Less: Fair value of net assets acquired 159.46
Goodwill 0.01

Recent Developments in GST

A. NOTIFICATIONS

i) Notification No.10/2024-Central Tax dated 29th May, 2024 & Notification No.11/2024-Central Tax dated 30th May, 2024

The above notifications seek to amend the Notification no. 02/2017-CT dated 19th June, 2017, which is regarding Territorial Jurisdiction of Principal Commissioner / Commissioner of Central Tax, etc. There are substitutions for changes in jurisdiction.

ii) Notification No.12/2024-Central Tax dated 10th July, 2024

The above notification seeks to make amendments in CGST Rules, 2017. Amongst other, there are amendments in Rules relating to returns, ISD, refund and appeal to Tribunal, etc.

iii) Notification No.13/2024-Central Tax dated 10th July, 2024

The above notification seeks to rescind Notification no. 27/2022-Central Tax dated 26th December, 2022, which was regarding applicability of Rule 8(4A) of CGST Rules.

iv) Notification No.14/2024-Central Tax dated 10th July, 2024

The above notification seeks to exempt the registered person, whose aggregate turnover in FY 2023–24 is upto ₹2 crores, from filing annual return for the said financial year.

v) Notification No.15/2024-Central Tax dated 10th July, 2024

The above notification seeks to amend Notification No. 52/2018-Central Tax, dated 20th September, 2018, whereby the amount to be collected by electronic commerce operator is reduced from half per cent to 0.25 per cent, effective from 10th July, 2024.

B. NOTIFICATIONS RELATING TO RATE OF TAX

i) Notification No.2/2024-Central Tax (Rate) dated 12th July, 2024

The above notification seeks to amend Notification No 01/2017- Central Tax (Rate) dated 28th June, 2017 for changes in rates of taxes on some commodities like cartons, boxes, milk cans made of iron, steel, aluminium and solar cookers, etc.

ii) Notification No.3/2024-Central Tax (Rate) dated 12th July, 2024

The above notification seeks to amend Notification No. 02/2017- Central Tax (Rate) dated 28th June, 2017, which is regarding tax in relation to “pre-packaged and labelled” goods. The proviso is added in relation to agricultural farm produce.

iii) Notification No.4/2024-Central Tax (Rate) dated 12th July, 2024

The above notification seeks to amend Notification No 12/2017- Central Tax (Rate) dated 28th June, 2017, which is regarding exempt services. Certain more services are added as well as other changes are made in the said notification.

C. CIRCULARS

Following circulars are issued by CBIC.

(i) Clarification about administrative changes – Circular no.223/17/2024-GST dated 10th July, 2024.

By above circular, administrative changes are made in relation to functions of proper officers under various sections of CGST Act like relating to Registration, etc.

(ii) Guidelines about recovery – Circular no.224/18/2024-GST dated 11th July, 2024.

By above circular, guidelines are given about recovery of outstanding dues during the period from disposal of first appeal till Appellate Tribunal comes into operation.

(iii) Clarification about Corporate Guarantee – Circular no.225/19/2024-GST dated 11th July, 2024.

By above circular, clarifications are given about issues relating to taxability and valuation of supply of services of providing corporate guarantee between related persons.

(iv) Clarification about additional refund – Circular no.226/20/2024-GST dated 11th July, 2024.

By above circular, mechanism for refund of additional IGST paid on account of upward revision in price of goods, subsequent to Export, is clarified.

(v) Clarification – Refund to CSD – Circular no.227/21/2024-GST dated 11th July, 2024.

By above circular, clarifications are given about processing of refund applications by Canteen Stores Department.

(vi) Clarification – GST on certain Services – Circular no.228/22/2024-GST dated 15th July, 2024.

By above circular, clarifications are given regarding applicability of GST on certain services like Indian Railway, RERA, BHIM-UPI transactions, General Life Insurance Schemes, Retrocession services and certain accommodation services, etc.

(vii) Clarification about Classification – Circular no.229/23/2024-GST dated 15th July, 2024.

By above circular, clarifications are given regarding GST rates and classification of goods based on recommendation of GST council in 53rd Meeting.

D. ADVANCE RULINGS

24. Health Care Services – Scope

M/s. Spandana Pharma (AR Order No.KAR ADRG-05/2024 dt. 29th January, 2024 (KAR)

The applicant is a Proprietorship Concern and engaged in the activity of providing health care services. The applicant also runs a hospital in the name of Spandana Pharma. Applicant sought to know ruling on following questions:

“i. Whether the supply of medicines, drugs and consumables used in the course of providing health care services to in-patients during the course of diagnosis and treatment during the patients admission in hospital would be considered as “Composite Supply” qualifying for exemption under the category of “health care services” as per Services Exempt Notification No.12/2017-Central Tax (Rate) dated: 28-06-2017 read with Section 8(a) of the CGST Act, 2017 / KGST Act, 2017?

ii. Whether the supply of food to in-patients would be considered as “Composite Supply” of health care services under CGST Act, 2017 & KGST Act, 2017 and consequently, can exemption under Services Exempt Notification No. 12/2017-Central Tax (Rate) dated: 28-06- 2017 read with Section 8(a) of GST be claimed?

iii. Retention Money: Whether GST is applicable on money retained by the applicant?

iv. Whether GST is exempt on Fees collected from nurses and psychologists for imparting practical training?”

Applicant explained that they are engaged in providing treatment to in-patients and outpatients suffering from psychic disorder, substance use disorder (addiction of drugs), neurology and other specialties.

The steps taken for curing the diseases were also explained.

The applicant referred to entry at sl.no.74 of Services Exemption Notification No.12/2017 Central Tax (Rate) dated 28th June, 2017, which reads as under:

“Sl.

No.

Chapter Description of Services Rate Condition
74 Heading 9993 Services by way of:

(a) healthcare services by a clinical establishment, an authorised medical practitioner or paramedics:

(b) services provided by way of transportation of a patient in an ambulance, other

than those specified

in (a) above.

NIL NIL

The applicant also referred to the term “healthcare services” which is defined in Para 2 (zg) of Services Exemption Notification No. 12/2017 Central Tax (Rate) dated 28th June, 2017.

The applicant submitted that it fulfils condition of being a clinical establishment as per definition of said term in para 2(zg) of Notification no.12/2017 dt. 28th June, 2017. The different SAC applicable to its services were stated as under:

SCS 9993 – Human Health and Social Care Services

SCS 99931 – Human Health Services

SCS 999311 – Inpatient services

The applicant submitted on its nature of services as under:

“The primary purpose of the hospital is to provide treatment to the patients approaching them. The basic Intention of the patients visiting the hospital is to get treatment for their ailment mainly mental disorder. Depending upon the severity of the illness the patient may require immediate medical attention, continuous monitoring etc. Therefore, according to their health condition they will be admitted in hospital as inpatient. The patients admitted to a hospital are treated with proper diagnosis of the disease / illness and treatment including appropriate medicines, surgical procedures if necessary, consumables required along with proper diet is administered to them in the most efficient manner so that they can regain their health within the shortest possible time and resume their activities. Therefore, the medicines, consumables and foods supplied in the course of providing treatment to the patients admitted in the hospital is an integral part of the health care service extended to the patients. Hence the room, medicines, consumables and food supplied in the course of providing treatment to the patients admitted in the hospital is undoubtedly naturally bundled in the ordinary course of business and the principal supply is health care service which is the predominant element of the composite supply and the other supplies such as room, medicines, consumables and food are incidental or ancillary to the predominant supply.”

The applicant also placed reliance on various Advance Rulings on similar facts like, in case of Malankar Orthodox Syrian Church Medical Mission Hospital reported in 2021 (53) G.S.T.L. 434 (A.A.R.-GST-Ker) and others.

Regarding question (B), applicant submitted that entry 74 of Services Exemption Notification No. 12/2017 Central Tax (Rate) dated 28th June, 2017 exempts healthcare service from payment of GST and healthcare services will be the predominant element of his composite supply, whereas medicines, surgical items, implants, stents and other consumables used in the course of providing such health care services to the inpatients are ancillary to it and does not itself become principal supply. In this respect, reliance was placed on definition of “composite supply” given in section 2(30) and “principal supply” given in section 2(90) of CGST Act. It was stressed that the tax liability on a composite supply shall be the rate of tax applicable on principal supply and since in its case, the principal supply of health care services is exempt from payment of tax, the supplies of other items ancillary to the principal supply of health care services are also exempt from payment of tax.

Accordingly, it was also submitted that supply of food to in-patients admitted to the hospital for medical treatment is a component of the composite supply and exempt along with the principal supply of healthcare services.

Regarding question (C), the applicant submitted that the term “Retention Money / charges” means those charges that are deducted by the hospitals while making payment to consultant doctors & technicians. It was explained that applicant invites consultant doctors with specialisation in mental health for diagnosing mental illness of patients and to suggest medicine, tests, rehabilitation, etc.

Based on para (5) in Circular No. 32/06/2018-GST dated 12th February, 2018, issued by Government of India, it was stated that the entire amount charged from the patient for payment to doctors and technicians towards health care services provided by the hospital is exempt from tax and hence, retention money is also exempt.

Regarding question (D), the applicant submitted that they provide practical training to nursing students and psychologists who are on the verge of completing course in recognised educational institutions. Nursing students and psychologists study theory in educational institutions, and applicant provides practical training to gain knowledge.

It was submitted that fees collected towards such training should be considered as exempt under entry no.74 of Notification no.12/2017-Central Tax (R) dated 28th June, 2017.

After considering above elaborate submission, the ld. AAR observed that the primary purpose of the hospital is to provide treatment to the patients approaching it, and the intention of the patients visiting the hospital is to get treatment for their ailment. Depending upon the severity of the illness and according to the health condition of the patient, they will be admitted to hospital as in-patient, observed the ld. AAR. The ld. AAR observed that different services are provided to the in-patients so that they can regain their health within the shortest possible time and resume their activities and therefore, the medicines, consumables and foods supplied in the course of providing treatment to the patients admitted in the hospital is an integral part of the health care service extended to the patients. All above are composite supply in relation to health care services and hence fall in exempted category, held the ld. AAR.

Regarding retention money, ld. AAR, following para (5) of Circular No. 32/06/2018-GST dated: 12th February, 2018, observed that entire amount charged by the hospital from the patients including the retention money and the fee / payments made to the doctors, etc., is towards the health care services provided by the hospital to the patients and accordingly exempt.

Regarding question (D), the ld. AAR observed that as per the meaning of “health care service” in definition of said term, it should be a service by way of diagnosis or treatment or care for illness, injury, deformity, abnormality or pregnancy. The ld. AAR held that the applicant is providing practical training to nursing students and psychologists, and hence, it is not covered under health care services. The ld. AAR determined the questions as under:

“i. The supply of medicines, drugs and consumables used in the course of providing health care services to in-patients during the course of diagnosis and treatment would be considered as ‘Composite Supply’ of health care services qualifying for exemption as per entry No. 74(a) of Notification No. 12/2017-Central Tax (Rate) dated: 28.06.2017 subjected to the condition mentioned therein.

ii. The supply of food to in-patients would be considered as ‘Composite Supply’ of health care services qualifying for exemption as per entry No. 74(a) of Notification No. 12/2017-Central Tax (Rate) dated: 28.06.2017 subjected to the condition mentioned therein.

iii. GST is not applicable on money retained by the applicant.

iv. GST is not exempted on the fees collected from nurses and psychologists for imparting practical training.”


25. Work without Civil Work vis-à-vis Works Contract

M/s. IDMC Limited (AR Order No. GUJ/ GAAAR/APPEAL/2023/08 (In App.No. Advance Ruling/SGST&CGST/2022/AR/02) dt. 7th December, 2023 (Guj)

The appellant has sought Advance Ruling on the following
questions:

“1. Whether contract involving supply of equipment/ machinery & erection, installation & commissioning services without civil work thereof would be contemplated as composite supply of cattle feed plant under GST regime. If the supplies would qualify as composite supply, what would be the classification of this bundle and applicable tax rate thereon in accordance with Notification No. 01/2017 – CT(Rate) dated June 28, 2017 (as amended).

2. Whether contract involving supply of equipment/ machinery & erection, installation & commissioning services with civil work thereof would be contemplated as works contract service or not. If the supplies would qualify as composite supply of works contract, what would be the classification and applicable tax rate thereon in accordance with Notification No.11/2017 – CT(Rate) dated June, 28, 2017 (as amended).?”

The ld. AAR decided the application vide Ruling No. GUJ/ GAAR/R/ 2022/14 dated 14th March, 2022 – 2022-VIL-92- AAR. This appeal is against above AR order.

The main contention of appellant was that they supply cattle feed plant, which includes equipment and machinery as well as erection and installation services thereof with or without civil work. The intention of the agreement in the present case is the supply and installation of cattle feed plant, and this arrangement does not include any civil work / services. It was further case of appellant that it qualifies to be composite supply; but not “works contract service”; since, as per the definition of works contract, erection, fitting out, etc. should be carried out for an immovable property. Appellant cited AR in their own case having similar facts, bearing no. GUJ/GAAR/ REFERENCE /2017-18/1, where it is held that contract without civil work would not be contemplated as works contract. Other rulings also relied upon.

It was contended that the Contract was thus for supply of cattle feed plant along with services and would qualify as composite supply and would be classifiable under the heading 8436 attracting GST @12 per cent. The ld. AAR had ruled as under:

“Supply of a functional Cattle Feed Plant, inclusive of its Erection, Installation and Commissioning and related works involved for both the question 1 & 2, is Works Contract Service Supply, falling at SAC 998732 attracting GST at 18%.”

The appellant reiterated its contentions and also cited further authorities before the ld. AAAR.

The ld. AAAR observed that due to Clause 6 of Schedule II of CGST Act 2017, Works Contract is a composite supply and same is treated as supply of services.

The ld. AAAR also referred to term “works contract” defined in Section 2(119) of CGST Act,2017 as below:

“‘works contract’ means a contract for building, construction, fabrication, completion, erection installation, fitting out, improvement, modification, repair, maintenance, renovation, alteration or commissioning of any immovable property wherein transfer of property in goods (whether as goods or in some other form) is involved in the execution of such contract.”

The ld. AAAR further observed that the term “immovable property” is not defined under GST law, but Section 3(26) of the General Clauses Act says “immovable property” shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth.

The ld. AAAR referred to photographs submitted by appellant and reproduced the same in the appeal order.

The ld. AAAR observed that as per appellant, they have following responsibilities with respect to plant execution:

“(i) Supply of cattle feed equipment such as pellet mill, hammer mill, etc.

(ii) Supply of other ancillary equipment / goods such as MS Structural, MS Chequered plates, Conveyors for transporting raw material in the plant, Electrical switch boards and cables etc.

(iii) Services relating to commission, installation and erection of equipment.

(iv) Undertaking trial runs on the machinery installed and testing of output received.”

The ld. AAAR further observed that, from the photographs and details, of supplies made, the various equipments assembled by the appellant at the customer’s premises are either fitted with foundation / structures or fitted on foundation / structures, and the said cattle feed plant set up at customer’s premises cannot be shifted from one place to another without dismantling of all the equipments, machine parts and accessories and electrical systems. Therefore, the ld. AAAR observed that the cattle feed plant supplied involves supply of goods as well as services like installation, erection and commissioning of the plant, and it fulfils the criteria of an “immovable property” as it is attached to the earth or permanently fastened to anything attached to the earth.

The ld. AAAR referred to various case laws on subject and also peculiar facts noted by ld. AAR in its order. Considering the above, the ld. AAAR dismissed the appeal confirming order of ld. AAR.


26. Classification – “Tree Pruners”

M/s. Global Marketing (AR Order No. KAR ADRG-02/2024 dt. 29th January, 2024 (Kar)

The applicant is a Partnership firm and engaged in the business activity of buying and selling of product called “Tree Pruners”. The product essentially consists of a pole which can be extendable in length and fitted with a knife, which is used in agricultural activities such as harvesting the crops of areca, pepper and coconut and also in spraying pesticide.

The appellant has sought advance ruling in respect of the
following questions:

“a) Whether the tree pruners covered by HSN Code 82016000 relates to Agricultural implements manually operated or animal driven i.e. hand tools, such as spades, shovels, mattocks, picks, hoes, forks and rakes, axes, bill hooks and similar hewing tools; secateurs and ‘pruners of any kind’; scythes, sickles, hay knives, hedge shears, timber wedges and other tools of a kind used in agriculture, horticulture or forestry other than Ghamella.

b) Whether the supply of Agriculture Hand Tools i.e., Tree Pruners to farmer is exempt from the CGST/ SGST/IGST Act.”

The applicant explained that the said product is made, predominantly, out of raw material “aluminium”, and hence, the probable classifications would be either based on the usage or based on the raw material, i.e., articles of aluminium. The contention of the applicant was that since it has a knife, it cannot be used for any general purpose, but it can be used by farmers for harvesting the crops of areca, pepper and coconut and used in spraying pesticide.

The other aspects like, it is seasonal and entitled for a subsidy from the Horticulture Department, was also brought to the notice of ld. AAR.

It was submitted that “Tree Pruners” are agricultural implements and hence in common parlance, it can be regarded as a tool, which is used in agriculture, specifically in relation to harvesting coconut, areca and pepper. Hence, the product merits classification as an “agricultural implements / tool used in agriculture” under Tariff Heading 8201 9000 and accordingly exempt.

The ld. AAR referred to Chapter 82 of the Customs Tariff and further Tariff Heading 8201 60 00 which covers “Hedge shears, two-handed pruning shears and similar two-handed shears Products.”

The ld. AAR observed that the product in question, i.e., “Tree Pruner” is a manually operated agricultural implement and hence qualified to be a tool of a kind used in agriculture. The ld. AAR further observed that “pruners of any kind” finds specific mention in the description of entry at Sl. no. 137 and, therefore, the aforesaid exemption is squarely applicable to the product under consideration.

Accordingly, AAR passed order, holding that the supply of Tree Pruners is exempted vide Entry No. 137 of Notification No. 2/2017 – Central Tax (Rate) dated 28th June, 2017.


27. Renting of Residential dwelling – Scope

Ms. Deeksha Sanjay, proprietrix, M/s. Deeksha Sanjay (AR Order No. KAR ADRG-34/2023 dt. 16th November, 2023 (Kar)

The applicant is a proprietary concern, registered under the GST Act, engaged in the business of renting of residential dwelling, situated at #14, 2nd Cross, Thimmappa Reddy Layout, Bengaluru-560076. Being the owner of the said property, applicant pays property tax to the BBMP, and the said building is suitable for residential purposes, and it is sanctioned for usage as residential building.

The applicant has sought advance ruling in respect of the following questions:

“a. Whether renting of residential dwelling to the students and working women for residential purpose along with amenities and facilities such as food, furniture, appliance, cleaning, security, pest control etc., on monthly rental basis, is exempt under entry No. 12 of Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017 or not?

b. If applicant transaction is not exempt, then what is the GST rate?

c. If applicant transaction is taxable, whether applicant can claim ITC on input used for providing taxable service?”

Amongst others, applicant provides services like cot with mattress, table with chair and cupboard with locking facility, one light and one fan per room and attached bathroom, breakfast, lunch, dinner and evening tea / snacks, laundry, power backup, house-keeping, security and RO drinking water.

The applicant explained that it provides residential dwelling to the students and working women on monthly rental basis; the services involve basic residential facilities required for staying and study which include well- maintained furnished residence, light, water, etc.,

Applicant provides the following three types of renting services on monthly rental basis according to the option of the students / women:

“a) Single Occupancy: A unit in residential dwelling which contains single bed in a room for single person, having facilities of electricity, food, furnishing, fan, lighting etc.,

b) Double Occupancy: A unit in residential dwelling that contains two beds in a room for two persons, having facilities of electricity, food, furnishing, fan, lighting etc., dual occupancy is a great way to save money, normally this option is chosen by one or more friends/relatives who are familiar with each in study. If empty units available then from dual occupancy to occupancy can be opted by residents.

c) Triple Occupancy: A unit in residential dwelling that contains three beds in a room for three persons, having facilities of electricity, food, furnishing, fan, lightings etc., Student who generally wish to study in a group will choose this option.”

Citing relevant provisions of law, the submission of applicant was that the services by way of renting of residential dwelling for use as residence are covered under SAC 9963 or 9972 and exempted by entry 12 of Notification 12/2017-Central Tax (Rate) dated 28th June, 2017 read with Notification 04/2022-Central Tax (Rate) dated 13th July, 2022. It was tried to impress that contract for renting of residential dwelling along with facilities is a composite supply of renting service, the Principal Supply is renting of residential dwelling, other facilities are incidental to the renting of dwelling unit, and hence exempt as above. Meanings of “residential”, “dwelling”, etc., were cited.

In this regards, the ld. AAR referred to relevant entries of Notification No. 12/2017-Central Tax (Rate) dated 28th June, 2017 and reproduced as under:

“Sl.

No.

Chapter, Section, Heading, Group or Service Code (Tariff) Description of Services Rate (per cent) Condition
(1) (2) (3) (4) (5)
12 Heading 9963

or Heading 9972

Services by way of renting of residential dwelling for use as residence [except where the residential dwelling is rented to a registered person]. NIL NIL
[Explanation. – For the purpose of exemption under this entry, this entry shall cover services by way of renting of residential dwelling to a registered person where:
(i) the registered person is proprietor of a proprietorship concern

and rents the residential dwelling in his personal capacity for use as

his own residence; and Heading 9963 or Heading 9972

(ii) such renting is
(1) (2) (3) (4) (5)
on his own account and not that of the

proprietorship concern.]

14 Heading 9963 Services by a hotel, inn, guest house, club or campsite, by whatever name called, for residential or lodging purposes, having declared tariff of a unit of accommodation below one thousand rupees per day or equivalent.” NIL NIL

The ld. AAR also observed that entry at Sl. No. 14 is omitted vide Notification No.4/2022 dated 13th July, 2022 and thus in effect, only services by way of renting of residential dwelling for use as residence are exempted from GST. Services by a hotel, an inn, a guest house, a club or a campsite by whatever name called, for residential or lodging purposes, even when below ₹1,000 are liable to GST w.e.f. 18th July, 2022.

Referring to terms about rent, unit and offer of accommodation in service agreement, the ld. AAR observed as under:

“From the above it is evident that the resident/inhabitants are offered a unit i.e. a portion of a room with a cot on monthly rental basis. Further, monthly rent also is charged and collected for the unit only but not for the residential dwelling. Thus, the impugned accommodation being provided does not qualify to be a residential dwelling. Further it is seen that units are shared by one or more unrelated inhabitants. Applicant charges all the inhabitants of a room individually and not for a room as a whole. It is apparent from the above that the accommodation provided to each of the inhabitant is not a residential dwelling but a cot / a unit in the room; un-related people share the said room and invoices are raised per bed on monthly basis are not characteristic of a residential dwelling.

Further, it is also an admitted fact that the accommodation being provided by the applicant, out of the immovable property claimed as residential dwelling, does not have individual kitchen facility to each of the inhabitant and also cooking of food by inhabitants is not allowed, which are an essential characteristic for any permanent stay. On this count as well, the impugned accommodation being provided does not qualify to be a residential dwelling and thus the question of using the same as residence does not arise.”

The reliance of the applicant on judgment of Hon’ble High Court of Karnataka in the case of Taghar Vasudeva Ambarish (WP No.14891 of 2020 (T-Res) dated 7th February, 2022) – 2022-VIL-110-KAR was differed by the ld. AAR on the grounds that it is appealed before Hon. Supreme Court as well as on grounds that facts are different. The ld. AAR held the activity taxable and determined rate @ 12 per cent in terms of entry number 7(1) of Notification no.11/2017-Central Tax (Rate) dated 28th June, 2017, as amended. The ld. AAR also held that applicant is entitled to ITC as per law.


28. GST Liability on Canteen recovery

M/s. Tube Investment of India Ltd. (AR Order No.12(A)/2023-24 in App. No.07/2022-23 dt. 22nd December, 2023 (Uttarakhand)

The background facts are that originally, appellant applied for ruling on certain questions.

The ld. AAR vide its order in 12/2022-23 dt. 24th November, 2022 ruled as under:

“a. Whether the nominal amount of recoveries made by the Applicant from the employees who are provided food in the factory canteen would be considered as a ‘Supply’ by the applicant under the precisions of Section 7 of Central Goods and Service Tax Act, 2017 – Yes, it is a supply.

b. Whether GST is applicable on the amount recovered from the employees for the food provided in the factory canteen or on the amount paid by the Applicant to the Canteen Service Provider – GST is applicable on both the amount i.e. amount paid to the canteen service provider and also on the nominal amount recovered from the employees.

c. Whether input tax credit (ITC) is available on GST charged by the Canteen Service Providers for providing the catering services at the factory where it is obligatory for the Applicant to provide the same to its employees as mandated under the Factories Act, 1948, even if the answer to question (a) is ‘No’? – Benefit of ITC is not admissible on the GST on the amount paid to the canteen service providers and also on the amount recovered from the employees.

d. Whether input tax credit (ITC) can be availed on GST charged by the Canteen service providers, the answer to the question (b) is ‘Yes’? – No, ITC is not admissible on the GST on the amount paid to the canteen service providers.”

Not satisfied with the ruling of the advance ruling, an appeal was filed before the Appellate Authority for Advance Ruling, Goods & Service Tax, Uttarakhand. The ld. AAAR decided appeal vide Order No. 05/2022-23 dated 13th March, 2023.

The ld. AAAR remanded matter back to ld. AAR to determine application afresh taking cognisance of CBIC Circular No.172/04/2022-GST dated 6th July, 2022. Therefore, this fresh ruling.

The ld. AAR observed that the applicant is a leading engineering company engaged in manufacture of precision steel tubes, etc., and in a factory in the state of Uttarakhand, more than 500 workmen (both direct and indirect) are employed. It is also noted that the applicant recovers nominal amount from the employees on a monthly basis to provide food to them and for same, they have engaged contractors, who operate canteen within the factory premises. It is also noted that the applicant discharges GST @5 per cent on the taxable value which is sum total of the cost of the canteen service provider plus 10 per cent notional mark up. Further, the applicant does not avail input tax credit (ITC) on the expenses incurred on the services provided by the canteen service provider, and it is absorbed as a cost in the books of accounts.

The ld. AAR observed that the clarification is sought as to whether GST is liable to be paid on that part of the amount which is collected from their employees towards provision of food and also whether ITC is available on the GST paid by them on the taxable value of the canteen service. The ld. AAR observed that the contention of applicant is based on premises that the supply of food in canteen is part of employment contract and hence ousted from the scope of supply vide the Entry 1 in Schedule III of the CGST Act, 2017. Therefore, there is no supply between the Applicant and the employees. Further, the amount received from the employees is in the nature of recovery and not consideration.

As per direction of ld. AAAR in appeal order, the ld. AAR referred to Circular no.172/04/2022-GST dt. 6th July, 2022 and particularly to clarification given at Sl. No.5 in said circular.

The ld. AAR observed that as per the said circular, perks provided in terms of contractual agreement are not supply under GST which means that if any perks are provided to the employee, in terms of contractual agreement, then such perks are outside the purview of GST.

The ld. AAR observed that if any perk / privilege is mentioned in the employment contract, then it becomes binding for the employer to provide the same to the employees but anything provided beyond the employment contract is a part of sweet will or largesse on the part of employer and cannot be insisted upon by an employee.

The ld. AAR found that consuming food at the canteen facility made available by the applicant in their premises is not mandatory and it is purely optional for the employees and that while extending the canteen facility, no meal is extended free but the meals / food are provided at concessional rates.

The ld. AAR observed that although the provision of food in canteen is on account of the mandate prescribed in the Factories Act, 1948, the supplies are provided by the employer to the employees for a consideration, though nominal. The ld. AAR held that it is taxable supply.

Referring to provisions of Factories Act, 1948, the ld. AAR also held that such supply is in course of business, being incidental to business activity of applicant.

The further contention that making recovery is not consideration but recovery of cost also negatived by the ld. AAR on grounds that such recovery fulfils the definition of “consideration” given in section 2(31) of CGST Act.

In relation to availability of ITC, the ld. AAR observed as under:

“So in the instant case, the flow of the transaction is that the Canteen Contractor is providing service to the applicant, which is classifiable as Restaurant Service and the applicant himself is also providing same service to its worker, as mandated in the Factories Act, 1948 i.e. he is also providing a Restaurant Service to its worker. As already brought out above, the Restaurant Service, compulsorily attracts GST rate of 5% without ITC, in a non-specified premises and the applicant’s premises is not a specified premises in terms of Notification No. 11/2017-Central Tax (Rate) dated 28.06.2017. Therefore, though the Section 17(5) of the CGST Act, 2017, does not debar availment of ITC in entirety, but in the present case availment of ITC is debarred in terms of provisions of Notification No. 11/2017-Central Tax (Rate) dated 28.06.2017 as amended vide Notification No. 20/2019- C.T. (Rate) dated 30.09.2019.”

In respect of all above issues, the ld. AAR also relied upon order in appeal passed by the ld. AAAR, H.P.

The ld. AAR accordingly ruled that recoveries in canteen for foods are taxable supply and no ITC is eligible.

Whether the Order Passed Under Section 139(9) Invalidating the Return Is Appealable?

ISSUE FOR CONSIDERATION

Quite often the income tax returns filed by the taxpayers are considered to be defective and the defect notices are being sent by the Centralised Processing Centre. If the defects pointed out have not been resolved, then such a defective return filed is considered to be an invalid return, by virtue of the provisions of section 139(9). Under such circumstances, it is considered that the assessee has not filed his return of income at all for the relevant year. As a result, the assessee does not get the benefits like getting the refund of excess tax paid or carry forward of unabsorbed losses etc. which he was entitled to get otherwise had the return been considered to be a valid return.

Section 246A provides for the dispute resolution mechanism whereby, if the assessee is aggrieved by the order passed by the income-tax authorities, then he can challenge that order by filing an appeal against it before the Commissioner (Appeals). However, the list of orders against which the appeal can be so filed are listed in sub- section (1) of section 246A. Therefore, the appeal can be filed before the Commissioner (Appeals) against a particular order, only if that order is included in the list of orders which are appealable under section 246A.

The order passed under section 139(9), considering the return of income as invalid return due to non-removal of the defects, is not specifically included in the list of orders which are appealable under section 246A. Therefore, the issue arises as to whether the assessee can file the appeal before the Commissioner (Appeals) against such an order considering the return as a defective return or not. The Pune bench of the tribunal had earlier taken a view that such an order is appealable and the assessee can file the appeal challenging it before the CIT (A). However, in a later case, the Pune bench took a contrary view disagreeing with its earlier decision and held that no appeal can be filed before the CIT (A) against such an order.

DEERE & COMPANY’S CASE

The issue had come up for consideration of the Pune bench of the tribunal in the case of Deere & Company vs. DCIT [2022] 138 taxmann.com 46.

In this case, the assessee was a foreign company and it had filed its return of income for assessment year 2016- 17 declaring the income of ₹474.37 crore and claiming a refund of ₹1.34 crore. The return was processed by the Centralized Processing Centre (CPC), Bengaluru, and a notice dated 15-11-2017 was issued under Explanation (a) to section 139(9) highlighting the difference between the income shown in the return at ₹474.37 crore and as shown in Form No. 26AS at ₹478.62 crore. The assessee responded to the same on 4th December, 2017 through e-portal elaborating the reasons for the difference in the two amounts by maintaining that correct income was reported in the return of income. It was explained that the difference was arising mainly due to two reasons as mentioned below –

1. The assessee had computed its income accruing in India as per Rule 115 whereby invoices raised in foreign currency were converted into Indian Rupees on the basis of SBI TT Buying Rate of such currency prevailing on the date of credit to the account of the payee or payment, whichever is earlier. As against this, the parties on the other hand have deducted tax at source by converting the foreign currency amount into Indian Rupees adopting some other exchange rates.

2. There were certain reimbursements and reversals on which tax had been deducted but they were not in the nature of income of the assessee company.

The DCIT (CPC), Bengaluru rejected the assessee’s contention and declared the return to be invalid by means of the order u/s 139(9) of the Act. The assessee filed an appeal against that order before the CIT(A) which came to be dismissed at the threshold on the ground that the order u/s 139(9) was not appealable under section 246A.

The assessee filed the further appeal before the tribunal against the said order of the CIT (A).

Firstly, the tribunal held that the DCIT (CPC), Bengaluru could not have acted u/s 139(9) in an attempt to correct the mismatch and in the process declared the return as invalid, thereby depriving the assessee from refund claimed in the return of income. The tribunal observed that the AO had activated clause (a) of an Explanation to section 139(9), which stated that: “the annexures, statements and columns in the return of income relating to computation of income chargeable under each head of income, computation of gross total income and total income have been duly filled in”. On this basis, it was held that if all the annexures, statements and columns etc. of the return have been duly filled in, there could be no defect as per clause (a). The defect referred to in clause
(a) was of only non-filling of the requisite columns of the return of income. If the relevant columns in the return of income were duly filled in but were not tallying with the figures reported in Form 26AS due to a valid difference of opinion then it was not covered by clause (a). Further, the tribunal also observed that the Finance Act, 2016 inserted sub-clause (vi) in section 143(1) providing that that if certain amount of income appearing in Form 26AS etc. is not fully or partly included in the total income returned by the assessee, then the AO will process the return u/s 143(1) and make adjustment by way of addition to the total income so computed by the assessee. Therefore, if the intention of the Legislature had been to treat the mismatch of income between Form 26AS and as shown in the return of income rendering the return defective, then there was no need to incorporate clause (vi) of section 143(1)(a) of the Act requiring the AO to carry out the adjustment during the processing of return of income on this score.

With respect to the effect of the return being considered as invalid under section 139(9), the tribunal observed that there were two possibilities. The first possibility was that the assessee could have again filed a fresh return. However, the AO, sticking to his earlier stand, would have held such return also as invalid on the same premise, throwing the proceedings in a vicious circle resulting in an impasse. The second possibility was that the AO, having knowledge of the assessee having taxable income, could have issued a notice u/s 142(1)(i) requiring the assessee to file a return of income. This would have resulted in the assessee filing its return and then the AO determining correct total income of the assessee as per law after making assessment u/s 143(3) of the Act. However, in the instant case, the AO did not issue any notice u/s 142(1) (i) and pushed the proceedings to a dead end, leaving the assessee without any apparent legal recourse. It was under such circumstances, left with no option, the assessee preferred an appeal before the ld. CIT(A) against the order u/s 139(9) of the Act, which has been dismissed as not maintainable on the ground that an order u/s 139(9) is not covered by the list of appealable orders given in section 246A.

In view of these facts, the tribunal held that the assessee could not have been left remediless. Every piece of legislation is ultimately aimed at the well-being of the society at large. No technicality could be allowed to operate as a speed breaker in the course of dispensation of justice. In the context of taxes, if a particular relief was legitimately due to an assessee, the authorities would not circumscribe it by creating such circumstances leading to its denial.

The tribunal held that the first look at different clauses of section 246A(1) transpired that an order u/s 139(9) was ex-facie not covered therein. However, there were two clauses of section 246A(1), namely, (a) and (i), which in the opinion of the tribunal could provide succor to the assessee. The clause (a) of section 246A provided for filing an appeal before CIT(A), inter alia, against “an order against the assessee where the assessee denies his liability to be assessed under this Act”. The word ‘order’ in the expression ‘an order against the assessee where the assessee denies his liability’ was not preceded or succeeded by the word ‘assessment’. Thus any order passed under the Act against the assessee, impliedly including an order u/s 139(9) as in the present case, having the effect of creating liability under the Act which he denies or jeopardizing refund, got covered within the ambit of clause (a) of section 246A(1).

Further, Clause (i) of section 246A(1) dealt with the filing of an appeal before the CIT(A) against an order u/s 237. Section 237 provided that ‘If any person satisfies the Assessing Officer that the amount of tax paid by him or on his behalf or treated as paid by him or on his behalf for any assessment year exceeds the amount with which he is properly chargeable under this Act for that year, he shall be entitled to a refund of the excess.’ Technically speaking, the AO has not passed an order u/s 237 but only u/s 139(9) of the Act. Firstly, the AO could not have treated the return as invalid u/s 139(9) because of mismatch between the figure of income shown in the return and that in Form 26AS and secondly, if at all he did so on a wrong footing, he ought to have issued notice u/s 142(1)(i) of the Act for enabling the assessee to file its return so that a regular assessment could take place determining the correct amount of income and the consequential tax/refund. Here was a case in which the assessee has been deprived by the DCIT (CPC), Bengaluru of any legal recourse to claim the refund. Considering the intent of section 237 in mind and the unusual circumstances of the case, the tribunal held that the order passed by the AO was also akin to an order refusing refund u/s 237 making it appealable u/s 246A(1)(i).

On this basis, the tribunal held that the appeal against the order passed under section 139(9) was maintainable before the CIT (A).

The Mumbai bench of the tribunal has followed this decision of the Pune bench in the case of V.K. Patel Securities Pvt. Ltd. v. ADIT (ITA No. 1009/Mum/2023).

AMRUT RAJENDRAKUMAR BORA’S CASE

The issue, thereafter, came up for consideration before the Pune bench of the tribunal again in the case of Amrut Rajendrakumar Bora [ITA No. 563/Pun/2023 – Order dated 4-8-2023].

In this case, the return of income filed by the assessee for assessment year 2018-19 was treated as invalid under section 139(9) on account non-removal of the defects which were pointed out to the assessee. The appeal filed by the assessee before the CIT (A) against the said order was dismissed on the same ground that it was not an appealable order as per the provisions of section 246A. Before the tribunal, the assessee primarily relied upon the decision in the case of Deere & Co. (supra). As against that, the revenue placed strong reliance on section 246A and contended that it did not contain any specific clause regarding the maintainability of appeal against an order passed under section 139(9) of the Act.

The tribunal held that section 246A was a self-exhaustive provision providing remedy of an appeal against the orders passed by lower authorities in various clauses from (a) to (r) followed by Explanation(s) and statutory proviso(s); as the case may be. The order passed under section 139(9) is not covered specifically under any of the clauses. The tribunal held that a stricter interpretation in such an instance has to be adopted in light of Hon’ble Apex Court’s landmark decision in Commissioner of Customs (Imports), Mumbai vs. M/s. Dilip Kumar And Co. & Ors. [2018] 9 SCC 1 (SC) (FB).

As far as clause (i) was concerned, the tribunal held that it could come into play only when the concerned taxpayer was denying his liability to be assessed under the Act which was not the case as the point involved was limited to the validity of the return of income filed by the assessee. The tribunal further held that section 246A envisaged an appellate remedy before the CIT(A) not based on various consequences faced by an assessee or by way of necessary implications but as per various orders passed by the field authorities under the specified statutory provisions only.

The decision of the co-ordinate bench in the case of Deere & Co. (supra) was held to be per inquirium for not adopting the stricter interpretation as was required. Accordingly, the tribunal upheld the order of the CIT (A) dismissing the appeal of the assessee as not maintainable.

OBSERVATIONS

It is a well-settled principle that the right to make an appeal is not an inherent right, but a statutory right. Therefore, an appeal can be filed against a particular order only if such order is made appealable under the Act. Hence, an appeal cannot be filed before CIT(A) against any order which is not included in the above list. The Supreme Court in the case of Gujarat Agro Industries Co Ltd. vs. Municipal Corporation of City of Ahmedabad (1999) 45 CC 468 (SC) has held that the right of appeal is the creature of a statute. Without a statutory provision creating such a right, the person aggrieved is not entitled to file an appeal. Similarly, in the case of National Insurance Co. Ltd. v. Nicolletta Rohtagi (2002) 7 SCC 456, the Supreme Court has held that the right of appeal is not an inherent right or common law right, but it is a statutory right. The appeal can be filed only if the law so provides.

In light of these principles, one needs to examine the provisions of section 246A for the purpose of determining whether the appeal can be filed against the order passed under section 139(9) considering the return as a defective return. The relevant provision of section 139(9) read as under –

“Where the Assessing Officer considers that the return of income furnished by the assessee is defective, he may intimate the defect to the assessee and give him an opportunity to rectify the defect within a period of fifteen days from the date of such intimation or within such further period which, on an application made in this behalf, the Assessing Officer may, in his discretion, allow; and if the defect is not rectified within the said period of fifteen days or, as the case may be, the further period so allowed, then, notwithstanding anything contained in any other provision of this Act, the return shall be treated as an invalid return and the provisions of this Act shall apply as if the assessee had failed to furnish the return”

As rightly noted by the tribunal in both the cases as discussed above, the order passed under section 139(9) is not included specifically in the list of orders which are made appealable under sub-section (1) of section 246A. On perusal of sub-section (1) of section 246A, it can be observed that it lists down several orders which have been passed under the specific provisions of the Act which does not include the order passed under section 139(9) of the Act. The only sub-clause which refers to the order in general without referring to any specific provision of the Act is sub-clause (a). It refers to the ‘order against the assessee where the assessee denies his liability to be assessed under this Act’. Therefore, one needs to examine as to whether the order passed under section 139(9) can be considered to be in the nature of an order against the assessee where the assessee denies his liability to be assessed under the Act.

When a person files his return of income taking a particular position, it results into a self-assessment of his liability under the Act. When such a return of income filed by the assessee is considered to be an invalid return of income for non-removal of defects as per the provisions of section 139(9), return of income becomes non-est in law i.e. as if it had never been filed. Consequentially, the self-assessment of the liability which had been declared through the return of income also becomes invalid. Thus, there is no assessment of the liability of the assessee under the Act till that point in time unless it is followed by the specific assessment being made in accordance with the relevant provisions of the Act, which may be either a regular assessment under section 144 or reassessment under section 147. Further, by passing an order under section 139(9), the Assessing Officer is not assessing the liability of the assessee under the Act. Therefore, strictly speaking, the order passed under section 139(9) does not result into assessment of the assessee’s liability in any manner which could have been denied by the assessee.

Alternatively, a view can be taken that the order passed invalidating the return also results in rejecting the self- assessment of the liability of the assessee as declared in the return of income. It might be possible that the assessee claims certain benefits while assessing his liability under the Act in the return of income which has been submitted. Such benefits can be in the nature of claim of loss, or claim of refund on account of excess tax paid in the form of advance tax or TDS. On account of the fact that the return is being considered as invalid return, the benefits so claimed also get rejected indirectly. Therefore, under such circumstance, it is possible to take a view that the liability of the assessee gets increased indirectly as a result of denial of the benefits, which had been claimed by the assessee through the return of income. Although such an increase in the liability of the assessee is not due to any order of assessment, there is an order passed under section 139(9) which is affecting the quantum of the liability of the assessee under the Act. If the claim of refund as made by the assessee in the return becomes invalid, then it results into overcharging of tax upon the assessee to that extent. Therefore, it may be considered as an order affecting the liability of the assessee as originally declared in the return of income and, hence, appealable under section 246A.

The question of applying strict interpretation as laid down by the Supreme Court in the case of Dilip Kumar & Co. (supra) does not arise here as we are not dealing with the exemption provision. The principles of strict interpretation were laid down by the Supreme Court in the context of the exemption provision as the exemption granted affects the exchequer which will then results in increase in tax liability of the other taxpayers. The provision of section like 246A providing for the remedy of filing an appeal against the order passed by the Assessing Officer is no way be compared with the case which was before the Supreme Court in which such a strict interpretation was required.

If a view is taken that the order passed under section 139(9) is not appealable under the provisions of section 139(9), then the only remedies available to the assessee would be to file the petition of revision under section 264 or to knock the doors of the high court by filing certiorari or mandamus writ against such orders. Therefore, a better view seems to be the one which was taken by the Pune bench of the tribunal in its earlier case of Deere & Co. However, the readers may explore the other alternatives as they would be left with no remedy if the appeal filed is not being entertained by following the contrary view.

The CBDT has been given the powers under sub- clause (r) of section 246A(1) to issue direction making any particular order passed by the Assessing Officer as appealable in the case of any person or class of persons having regard to the nature of the cases, the complexities involved and other relevant considerations.

This is a fit case where the CBDT should issue the necessary direction providing for the appeal against the order passed under section 139(9) treating the defective return of income as invalid return.

Glimpses of Supreme Court Rulings

Excise Commissioner Karnataka and Another

vs. Mysore Sales International Ltd. and Ors.

(2024) 466 ITR 205 (SC)

8. Tax collection at source — The liquor vendors (contractors) who bought the vending rights on auction could not be termed as “buyer” under Section 206C of the Income-Tax Act because they were excluded from the definition of “buyer” as per Clause (iii) of Explanation (a) to Section 206C, in as much as the goods [arrack] were not obtained by him by way of auction (i.e., only licence to carry on the business was obtained) and that the sale price of such goods to be sold by the buyer was fixed under a state enactment. Merely because there is a price range providing for a minimum and a maximum under the State Act, it cannot be said that the sale price is not fixed.

Principles of natural justice — Even though the statute may be silent regarding notice and hearing, the court would read into such provision the inherent requirement of notice and hearing before a prejudicial order is passed — Before an order is passed under Section 206C of the Income-Tax Act, it is incumbent upon the assessing officer to put the person concerned to notice and afford him an adequate and a reasonable opportunity of hearing, including a personal hearing.

Prior to 1993, there were several private bottling units in the State of Karnataka, and they were manufacturing and selling arrack.

In the year 1993, the state government discontinued private bottling units from engaging in the manufacture or bottling of arrack and instead decided as a policy to restrict those operations in the hands of state government companies or undertakings, such as, Mysore Sales International Limited and Mysore Sugar Company Limited.

Mysore Sales was entrusted with the above task for the northern districts of the State of Karnataka, while for the rest of the state, Mysore Sugar was entrusted with the responsibility.

The Karnataka Excise Act, 1965 (“the Excise Act”) provides for a uniform law relating to production, manufacture, possession, import, export, transport, purchase and sale of liquor and intoxicating drugs and the levy of duties of excise thereon in the State of Karnataka and for certain matter related thereto. Under the Excise Act, several Rules have been framed for appropriate enforcement of the excise law.

Auctions are conducted periodically for the purpose of conferring lease right for retail vending of arrack. It was conducted with reference to designated areas. Successful bidders are entitled to procure arrack from Mysore Sales and Mysore Sugar depending upon the area allotted to them and then to sell it in retail trade within their respective allotted areas. The retail sale price is fixed by the state government in terms of the Rules.

Section 206C of the Income-tax Act, 1961 casts an obligation on the “seller” of alcoholic liquor, etc., of collecting tax at source at the specified time from the “buyer”. As per Explanation (a), certain persons were not included within, rather excluded from, the definition of “buyer”.

A circular came to be issued by the Excise Commissioner of Karnataka on 16th June, 1998 to which an addendum was also issued. The circular clarified that since arrack was not obtained through auction and since the selling price of arrack was fixed by the Excise Commissioner, there was no question of recovery of tax from the excise (liquor) vendors or contractors.

In view of the above, Mysore Sales and Mysore Sugar (Assesses) did not recover the tax from the liquor vendors.

Assessing Officer (AO) issued notices dated 26th October, 2000 calling upon the Assessee to show cause as to why it should not pay the requisite tax amount which it had failed to collect from the “buyers”, i.e., the excise contractors for the financial years relevant to the assessment years under consideration. The Assessee had submitted its reply to such notice. Thereafter, the AO passed orders dated 17th January, 2001 under Section 206C(6) of the Income-tax Act for the assessment years 2000–2001, 1999–2000, 1998–1999, 1997–1998, 1996–1997 and 1995–1996. The AO held that the Assessee is a “seller” and the liquor vendors are “buyers” in terms of Section 206C of the Income-tax Act and hence, the Assessee was under a legal obligation to collect income tax at source from the liquor vendors (contractors) for the financial years relevant to the aforesaid assessment years. By the aforesaid orders, the Assessee was directed to pay certain sums of money as tax, which it had failed to collect from the liquor vendors or contractors. Following such orders, consequential demand notices for the respective assessment years under Section 156 of the Income-tax Act were also issued to the Assessee by the AO.

Mysore Sales / Mysore Sugar filed writ petitions before the High Court. While the main contention was that Section 206C(6) of the Income-tax Act was not applicable to it, a corollary issue raised was that before passing the order under Section 206C(6) of the Income-tax Act, no opportunity of hearing was given to it. Therefore, there was violation of the principles of natural justice. Learned Single Judge vide the judgment and order dated 27th October, 2003 [(2004) 265 ITR 498] dismissed the writ petitions confirming the orders passed under Section 206C(6) of the Income-tax Act.

Thereafter, Mysore Sales and Ors. preferred writ appeals before the Division Bench. However, by the judgment and order dated 13th March, 2006 [(2006) 286 ITR 136], the writ appeals were dismissed by affirming the orders passed by the AO and also that of the learned Single Judge.

Aggrieved by the aforesaid, SLP(C) No. 12524 of 2006 was preferred by Mysore Sales. After leave was granted on 23rd April, 2007, the same came to be registered as Civil Appeal No. 2168 of 2007. Mysore Sugar also filed an SLP.

According to the Supreme Court, the short point for consideration in this appeal was whether provisions of Section 206C of the Income-Tax Act were applicable in respect of the Appellant and whether the liquor vendors (contractors) who bought the vending rights from the Appellant on auction could be termed as “buyer” within the meaning of Explanation (a) to Section 206C of the Income-tax Act or excluded from the said definition of “buyer” as per Clause (iii) of Explanation (a) to Section 206C of the said Act.

The Supreme Court noted that under Section 17 of the Excise Act, the state government grants lease of right to any person for manufacture, etc., of liquor, arrack in this case. The licencing authority, i.e., Excise Commissioner, may grant to the lessee a licence in terms of his lease. In supplement to the above provision, Rule 3(1) of the 1987 Rules provides that the Excise Commissioner shall grant a licence for any specified area or areas for the manufacture or bottling of arrack. From 1st July, 1993, sub-Rule (2) of Rule 3 has come into force as per which provision the licence under Rule 3 of the 1987 Rules shall be issued only to a company or agency owned or controlled by the state government or to a state government department. This is how Mysore Sales was granted licence for the manufacture and bottling of arrack. Through a process of auction, excise contractors are shortlisted who are thereafter granted licence or permits to vend arrack by retail in their respective area(s). They are required to procure the arrack from the warehouse or depot on payment of the issue price fixed by the Excise Commissioner as per Rule 5(1) of the 1967 Rules. Rule 2 makes it very clear that no arrack in retail vend shall be sold except in sealed bottles or in sealed polythene sachets obtained from either a warehouse or a depot. For such retail vending, Rule 3 of the 1967 Rules requires the excise contractor to construct a counter in the shop. The right to retail vend of liquor is granted either by tender or by auction or by a combined process of tender-cum- auction, etc. As per Rule 17 of the 1987 Rules, the price to be paid by the lessee for the right of retail vend of arrack to the government for the supply of bottled arrack shall be fixed by the Commissioner with prior approval of the government. In so far the retail price is concerned, Rule 4 of the 1967 Rules says that the excise contractor can sell the arrack at a price within the range of minimum floor price and maximum ceiling price that may be fixed by the Excise Commissioner.

The Supreme Court observed that Sub-section (1) of Section 206C provides that every person who is a seller shall collect from the buyer of the goods specified in the table a sum equal to the percentage specified in the corresponding entry of the table. The collection is to be made at the time of debiting of the amount payable by the buyer to the account of the buyer or at the time of the receipt of such amount from the said buyer, be it in cash or by way of cheque or by way of draft, etc. In so far alcoholic liquor for human consumption (other than India made foreign liquor, i.e., IMFL), the amount to be collected is 10 per cent. Sub-section (3) provides that any person collecting such amount under Sub-section (1) shall pay the said amount within seven days of the collection to the credit of the central government or as the Central Board of Direct Taxes (CBDT) directs. Sub- section (4) clarifies that any amount so collected under Section 206C(1) and paid under Sub-section (3) shall be deemed as payment of income tax on behalf of the person from whom the amount has been collected and credit shall be given to such person for the amount so collected and paid at the time of assessment proceeding for the relevant assessment year. Sub-section (5) says that every person collecting such tax shall issue a certificate to the buyer within 10 days of debit or receipt of the amount. Sub-section (5A) requires the person collecting tax to prepare half yearly returns for the periods ending on 30th September and 31st March for each financial year and submit the same in the prescribed form before the competent income tax authority. Sub-section (6) says that any person responsible for collecting the tax, fails to collect the same, shall notwithstanding such failure be liable to pay the tax which he ought to have collected to the credit of the central government in accordance with the provisions of Sub-section (3). Sub-section (7) deals with a situation where such tax is not collected in which event the seller is liable to pay interest at the prescribed rate. Sub-section (8) on the other hand deals with a situation where the seller does not deposit the amount even after collecting the tax. In such an event also, he would be liable to pay interest.

The Explanation defines “buyer” and “seller” for the purposes of Section 206C. While Explanation (a) defines “buyer”, (b) defines “seller”. As per Explanation (a), “buyer” means a person who obtains, in any sale by way of auction, tender or by any other mode, goods of the nature specified in the table in Sub-section (1) or the right to receive any such goods but “buyer” would not include:

(i) a public sector company;

(ii) a buyer in the further sale of such goods obtained in pursuance of such sale;

(iii) a buyer where the goods are not obtained by him by way of auction and where the sale price of such goods to be sold by the buyer is fixed by or under any State Act.

On the other hand, “seller” has been defined to mean the central government, a state government or any local authority or corporation or authority established by or under a central, state or provincial act or any company or firm or cooperative society.

According to the Supreme Court, as per Explanation (a) (iii), if the goods are not obtained by the buyer by way of auction and where the sale price of such goods to be sold by the buyer is fixed by or under any state enactment, then such a person would not come within the ambit of “buyer”. Explanation (a)(iii), thus, visualises two conditions for a person to be excluded from the meaning of “buyer” as per the definition in Explanation (a). The first condition is that the goods are not obtained by him by way of auction. The second condition is that the sale price of such goods to be sold by the buyer is fixed under a state enactment. These two conditions are joined by the word “and”. The word “and” is conjunctive to mean that both the conditions must be fulfilled; it is not either of the two. Therefore, to be excluded from the ambit of the definition of “buyer” as per Explanation (a)(iii), both the conditions must be satisfied.

In view of the above, the Supreme Court examined the position of an excise contractor. The Supreme Court noted that Mysore Sales was the licensee for the manufacture and bottling of arrack for specified area(s). By a process of auction or tender or auction- cum-tender, etc., excise contractors were shortlisted who are thereafter granted permits to vend arrack by retail in their respective area(s). These retail vendors, i.e., excise contractors had to procure the arrack from the warehouse or depot maintained by Mysore Sales on payment of the issue price fixed by the Excise Commissioner. The arrack was procured in sealed bottles or in sealed polythene sachets. Therefore, according to the Supreme Court, by the process of auction, etc., the excise contractors are only shortlisted and conferred the right to retail vend of arrack in their respective areas. It cannot be said that by virtue of the auction, certain quantities of arrack were purchased by the excise contractors. Thus, at this stage, there were two transactions, each distinct. The first transaction was shortlisting of excise contractors by a process of auction, etc., for the right to retail vend. The second transaction, which was contingent upon the first transaction, was obtaining of arrack for retail vending by the excise contractors on the strength of the permits issued to them post successful shortlisting following auction. Therefore, it was clear that arrack was not obtained by the excise contractors by way of auction. What was obtained by way of auction was the right to vend the arrack on retail on the strength of permits granted, following successful shortlisting on the basis of auction. Thus, the first condition under Clause (iii) was satisfied.

The Supreme Court observed that in Union of India vs. Om Parkash S.S. and Company (2001) 3 SCC 593, it had considered the issue of tax collection at source in respect of the liquor trade under Section 206C of the Income-tax Act and as to whether a licensee who is issued a licence by the government permitting him to carry on the liquor trade would be a “buyer” as defined in Explanation (a) to Section 206C of the Income-tax Act. It was held that “buyer” would mean a person who by virtue of the payment gets a right to receive specific goods and not where he is merely allowed / permitted to carry on business in that trade. On licences issued by the government permitting the licensee to carry on liquor trade, provisions of Section 206C are not attracted as the licensee does not fall within the concept of “buyer” referred to in that section. It was emphasised that a buyer has to be a buyer of goods and not merely a person who acquires a licence to carry on the business.

The requirement of the second condition under Explanation (a)(iii) is that the sale price of such goods to be sold by the buyer is fixed by or under any state statute. After the arrack is obtained in the above manner by the excise contractor, such person has to sell the same in the area(s) allotted to him at the sale price fixed as per Rule 4 of the 1967 Rules. Rule 4 of the 1967 Rules enables the excise contractor to sell the arrack in retail at a price within the range of minimum floor price and maximum ceiling price which is fixed by the Excise Commissioner. A minimum price and a maximum price are fixed within which range the arrack has to be sold by the excise contractor. Thus, according to the Supreme Court, the price of arrack to be sold in retail is not dependent on the market forces but pre-determined within a range. Therefore, though price range is provided for by the statute, it cannot be said that because there is a price range providing for a minimum and a maximum, the sale price is not fixed. The sale price is fixed by the statute but within a particular range beyond which price, either on the higher side or on the lower side, the arrack cannot be sold by the excise contractor in retail. Therefore, the arrack is sold at a price which is fixed statutorily under Rule 4 of the 1967 Rules and thus, the second condition stands satisfied.

The Supreme Court held that since both the conditions as mandated under Explanation (a)(iii) were satisfied, the excise contractors or the liquor vendors selling arrack would not come within the ambit of “buyer” as defined under Explanation (a) to Section 206C of the Income-tax Act.

The Supreme Court further held that though there is no express provision in Sub-section (6) or any other provision of Section 206C of the Income-tax Act regarding issuance of notice and affording hearing to such a person before passing an order thereunder, nonetheless, it is evident that an order passed under Section 206C(6) of the Income-tax Act, as in the present case, is prejudicial to the person concerned as such an order entails adverse civil consequences. It is trite law that when an order entails adverse civil consequences or is prejudicial to the person concerned, it is essential that principles of natural justice are followed. In the instant case, though show-cause notice was issued to the Assessee to which reply was also filed, the same would not be adequate having regard to the consequences that such an order passed under Section 206C(6) of the Income-tax Act would entail. Even though the statute may be silent regarding notice and hearing, the court would read into such provision the inherent requirement of notice and hearing before a prejudicial order is passed. We, therefore, hold that before an order is passed under Section 206C of the Income-tax Act, it is incumbent upon the AO to put the person concerned to notice and afford him an adequate and reasonable opportunity of hearing, including a personal hearing.

The Supreme Court allowed the appeals.

Notes:

1. Though the issue relates to TCS under the Income-tax Act, interestingly, the judgment is reported as Excise Commissioner, Karnataka & Anr [Appellant(s)] vs. Mysore Sales International Ltd & Ors [Respondent(s)]. From the facts, it appears that the Appellant was Mysore Sales International Ltd.

2. In the judgment, it seems inadvertently, in paras 4.5 to 4.8, reference is made to tax deduction at source [TDS] instead of tax collection at source [TCS]. In the above write-up, reference to TDS is avoided.

3. The provisions referred to in the judgment are those in force prior to amendments made by the Finance Act, 2003. It is worth noting that the definition of “buyer” has substantially undergone change as compared to the earlier one, and the current definition does not have the exclusion of the type from the scope of “buyer” under Section 206C which was considered in the above judgment.

Goods and Services Tax

HIGH COURT

Ashoka Fabricast Pvt. Ltd. vs. Union of India [2024] 20 Centax 105 (Raj.)

Dated: 1st May, 2024

39. GST Audit can be conducted under section 65 of the CGST Act even after cancellation of registration of taxpayer.

FACTS

Petitioner had applied for cancellation of GST registration, and the same was cancelled on 16th January, 2020. Further, petitioner was served with a notice for conducting GST Audit for the period from July 2017 to March 2020 on 6th March, 2023. Thereafter, SCN was issued on 1st June, 2023 and detailed reply was filed by the petitioner. Subsequently, an order was passed by respondent confirming the demand. Hence, the petitioner preferred this petition challenging initiation of Audit post cancellation of registration.

HELD

Hon. High Court held that section 29(3) of the CGST Act clearly states that cancellation of registration does not affect the liability of the taxpayer. The Court further stated that audit can be conducted for those past periods when registration was active as per section 65(1) of CGST Act. Accordingly, writ petition was disposed of.

Contrary view: Tvl. Raja Stores vs. The Assistant Commissioner (ST) — MANU/TN/6752/2023]


Unitac Energy Solutions (India) Pvt. Ltd. vs. Assistant Commissioner (ST)
[2024] 21 Centax 141 (Mad.) Dated: 3rd July, 2024

40. Recovery proceedings should be kept in abeyance till disposal of application for waiver of interest and penalty as per recommendations made in 53rd GST Council Meeting and subsequent notification giving effect to the same.

FACTS

Demand order was confirmed against petitioner for period from 2017–18 to 2021–22. Petitioner had discharged entire tax liability and a certain portion of interest by filing an application opting to pay demand amount in installment. This was pursuant to recommendation made in the 53rd GST Council Meeting regarding waiver of interest and penalties for demand raised under section 73 for A.Ys. 2017–18 to 2019–20, if full tax is paid by 31st March, 2025. However, respondent wanted to recover the dues hurriedly. Being aggrieved, petitioner preferred this petition before Hon’ble High Court.

HELD

High Court directed to keep the recovery proceedings in abeyance for a period of 60 days in the light of recommendations made in 53rd GST Council Meeting and corresponding notifications. Accordingly, petition was disposed of.


National Plasto Moulding vs. State of Assam [2024] 21 Centax 182 (Gau.)

Dated: 12th August, 2024

41. ITC cannot be denied to recipient of goods merely because supplier has failed to deposit the tax collected from recipient to the Government.

FACTS

Petitioner was issued an SCN under GST Law demanding disallowance of ITC on account of failure of supplier to discharge GST liability to the Government. Petitioner had already paid GST amount to supplier. However, respondent sought to deny ITC on the grounds that GST amount was not remitted to Government by supplier of petitioner. Being aggrieved by proposal to deny ITC in SCN, petitioner filed the present writ before Hon’ble High Court.

HELD

High Court squarely relied upon the judgement of Delhi High Court in the case of On Quest Merchandising India Private Limited vs. Government of NCT of Delhi (2017) 87 taxmann.com 179 (Delhi) held that a purchasing dealer cannot be punished for the failure of the selling dealer to deposit the tax collected. The Court emphasised that the tax authorities should initiate recovery proceedings against the defaulting selling dealer instead of denying ITC to purchasing dealer. Accordingly, SCN proposing to disallow ITC in the hands of petitioner was quashed.


Shree Om Steel vs. Additional Commissioner

Grade-2 [2024] 21 Centax 19 (All.)

Dated: 19th July, 2024

42. SCN cannot be issued for confiscation of goods invoking section 130 of CGST Act, 2017 solely on the basis of mismatch of quantity of goods lying in godown and as per records in books of accounts during survey.

FACTS

Petitioner, a registered dealer, is engaged in the business of trading of iron & steel. A survey was conducted at the business premises of petitioner where goods lying in godown were found to be more than quantity of goods recorded in the books of account. SCN was issued on 4th November, 2020 for confiscation of goods under section 130 of CGST Act, 2017 read with penalty under section 122 of UPGST Act, 2017. Subsequently, an order was passed on 20th November, 2020 for the confiscation of goods and imposition of penalty. On filing the appeal against said order, the appeal was dismissed by Appellate Authority. Being aggrieved, petitioner preferred this writ before Hon’ble High Court.

HELD

High Court ruled that confiscation of goods and imposition of penalty by initiating proceedings under section 130 of the UPGST Act, alleging excess stock found based on mismatch between the quantity of stock found in godown and that recorded in books of account during survey is not tenable. The Court relied upon the decision of Metenere Limited vs. Union of India & Another [2020 NTN (74) 574] where it categorically stated that demand should be quantified and raised as per only sections 73 and 74 of the CGST Act. The Court referred to the decision of M/s. Maa Mahamaya Alloys Pvt. Ltd vs. State of U.P. & 3 Others [Writ Tax No. 31/2021, decided on 23rd March, 2023] and concluded that proceedings under section 130 of CGST Act cannot be initiated where time of supply to pay GST has not arrived and there was no intent to evade payment of tax. Thus, impugned order demanding tax and imposing penalties was quashed and, thus, petition was allowed.


Sona Infracon Pvt. Ltd. vs. Directorate General

of GST Intelligence

[2024] 20 Centax 159 (Pat.)

Dated: 9th May, 2024

43. Intimation / SCN issued by DGGI cannot be challenged on the grounds that they are incompetent or beyond their jurisdiction.

FACTS

Petitioner was issued an SCN by Additional director of DGGI (Respondent) under section 74(5) of CGST Act, 2017. Petitioner was of the understanding that respondent was not a proper officer to issue the SCN under 74(5) of CGST Act. Accordingly, petitioner challenged such SCN issued by respondent, before this Hon’ble High Court.

HELD

Hon’ble High Court relying on Circular No 169/01/2022-GST dated 12th March, 2022 held that Central Tax officers of Audit Commissionerates and Directorate General of GST are competent to issue SCN under section 74(5). Accordingly, writ petition was disposed of in the favour of revenue.


Power Grid Corporation of India Ltd vs. State of Rajasthan

[2024] 165 taxmann.com 80 (Rajasthan)

Dated: 18th July, 2024

44. A person liable to pay tax on a reverse charge is deemed to be a supplier for the purpose of filing of application under Advance Ruling provisions. Where an application is rejected as not maintainable, the writ petition filed before the High Court against such order is maintainable.

FACTS

The petitioner is engaged in transmission of electricity. During the course of business, the petitioner engages contractors who would transport goods and raises invoices for transportation. The petitioner filed an application for an advance ruling on the issue as to whether in the facts of the case, transportation of goods is exempt under Serial No.18 of Notification No. 12/2007-Central Tax (Rate). In case of non-applicability of the exemption notification, the petitioner would be liable to pay tax on a reverse charge basis, the services being in the notified category. The AAR held that application under section 97 of the Central Goods and Service Tax Act, 2017 (for short ‘CGST Act’) is not maintainable, as the petitioner was not the supplier.

HELD

As regards the maintainability of the petition, the Hon’ble Court held that no appeal is provided against the rejection of the application under section 98(2) of the CGST Act. The application of the petitioner was ousted at the threshold under section 98(2) is not maintainable. The section is unambiguous that an appeal can be filed only against the orders pronounced under section 98(4) of the CGST Act. Hence, the writ petition is maintainable. The Hon’ble Court further held that the recipient liable to pay tax on a reverse charge basis is given a deeming fiction of supplier for the purpose of payment of tax. Hence, the fiction under section 9(3) of the CGST Act has to be given full play, by bringing the dealer liable to pay tax on a reverse charge basis within the ambit of Chapter XVII for seeking an Advance Ruling.


Aberdare Technologies (P.) Ltd vs. Central Board of Indirect Taxes and Customs [2024] 165 taxmann.com 325 (Bombay) Dated: 29th July, 2024

45. There were certain errors in the GST returns filed by the petitioner. The Hon’ble Court permitted the petitioner to amend and rectify GSTR-1 by directing the department to open the GST portal / accept and process the application for rectification manually. The Hon’ble Court relied upon to the decision in the case of Star Engineers (I) Pvt Ltd. vs. Union of India & Ors. 2023 SCC Online Bom 2682.

Note: In Star Engineers’ case (supra), the Hon’ble Supreme Court discussed factors to be borne in mind when considering the cases of inadvertent human errors creeping into the filing of GST returns. The Hon’ble Court held that the assessee cannot be prevented from placing the correct position and having accurate particulars in regards to all the details in the GST returns being filed by the assessee, and it cannot be said that there would not be any scope for any bonafide, and inadvertent rectification / correction. It was further held that the intention of the legislature as borne out on a bare reading of section 37(3) and section 39(9) in the category of cases when there is a bonafide and inadvertent error in furnishing any particulars in the filing of returns, accompanied with the fact that there is no loss of revenue whatsoever in permitting the correction of such mistake. Any contrary interpretation of section 37(3) read with sub-sections (9) and (10) of section 39 would lead to absurdity and / or bring a regime that GST returns being maintained by the department having incorrect particulars become sacrosanct, which is not what is acceptable to the GST regime, wherein every aspect of the returns has a cascading effect.


Kabir Traders vs. State of Maharashtra [2024] 165 taxmann.com 381 (Bombay) Dated: 22nd July, 2024

46. An adjudication order passed rejecting the letter filed by petitioner’s Chartered Accountant, without assigning any reasons, was quashed and the matter was remanded for fresh adjudication.

FACTS

The petitioner received the order dated 8th December, 2023. On its perusal, it was found that a letter by petitioner’s Chartered Accountant was not accepted by the office. Also, the reason for the same for not considering the said letter was not clearly mentioned. The petitioner therefore challenged the said order in Writ Petition.

HELD

The Hon’ble High Court noted that a letter by petitioner’s Chartered Accountant was not accepted by the office without assigning any reason. Further, before the Hon’ble Court, the Council for the department fairly admitted that it was a genuine case of hardship to the petitioner. Consequently, the Hon’ble Court remanded the matter for de novo consideration. Further, the Order passed consequent upon the adjudication order debiting the petitioner’s cash ledger / ITC ledger was also quashed and ordered to be reversed / refunded.


Malindo Airway SDN BHD vs. State Tax Officer

[2024] 165 taxmann.com 319 (Madras)] Dated: 23rd July, 2024

47. The Passenger Service Fees (PSF) and User Development Fees (UDF) collected by the petitioner from the passengers through its General Sales Agents (GSAs), on behalf of the Airport Authority of India and remitted to them on an actual basis are taxable only in the hands of the Airport Authority of India and not in the hands of the airline as clarified in Circular No. 115/34/2019-GST, dated 11th October, 2019.

FACTS

The petitioner, an airliner, is engaged in the transportation of passengers and cargo through its flights. The petitioner collected PSF and UDF from the passengers along with Ticketing Charges with GST which is paid to the Airport Authority of India as a pure agent. The dispute arose on the taxability of GST on the said PSF and UDF in the hands of the petitioner. The petitioner contended that be- ing a pure agent, they are not liable to discharge GST on the said amounts.

HELD

The Hon’ble Court held that prima facie, the petitioner may not be liable to pay tax on such PSF and UDF as the peti- tioner is requested to collect these amounts for the Airport Authority of India as its “agent”. The Court also referred to the CBIC Circular No. 115/34/2019-GST [F.No.354/136/2019-TRU) dated 11th October, 2019 and held that the amount that are collected by the petitioner from the passengers through its GSAs are taxable only in the hands of the Airport Author- ity of India. However, if any other separate charges were collected by the petitioner for acting as a pure agent of the Airport Authority of India, such service may be liable to tax in the hands of the petitioner. The Hon’ble Court further held that if the petitioner has availed input tax credit on the ser- vice tax collected from the passengers towards the PSF and UDF, the petitioner would be liable to reverse the same.

Valuations of Corporate Guarantee

In the January 2024 issue of the BCAJ, we have examined the fundamental concepts of guarantee and the tax challenges hovering over corporate guarantees. It was acknowledged that mere legislative insertion of valuation rules by the 52nd GST Council does not put to rest the question over taxability of such corporate guarantees between related persons. On an application of the provisions of the Contract Act, one could have firmly viewed it as a rendition of service (if at all) by the Surety to the Principal Creditor and the flow of consideration (being the financial loan / assistance) by such Creditor to the Principal Debtor. Therefore, the service was being rendered by Parent Companies to the Banks / FIs (as a principal creditor) rather than its related entity (also emerging from CBIC Circular No. 204/16/2023-GST). The revenue’s interpretation of invoking the deeming fiction of Schedule I between related persons seemed to be misplaced. The true nature of contract between Surety and Principal Debtor (being related entities) is that of an implied ‘contract of indemnity’ where the debtor is bound to indemnify any loss which the surety may incur in case the guarantee was invoked by the Principal Creditor.

The 53rd GST Council has once again overlooked the fundamental principles of Corporate Guarantees and has tweaked the valuation rules on the mistaken understanding that the transaction is deemed to be a service between related entities. Be that as it may, the objective of this article is to only examine the valuation provisions in light of the 53rd Council meeting, on the Council’s presumption that corporate guarantees are taxable (a) as a supply of service between related entities; and (b) the consideration for such service is to be performed as per valuation norms.

Backdrop of Valuation provision

We all know that “Value of Supply of Guarantee services” u/s 15(1) would be the ‘transaction value’, i.e. the price actually paid or payable for the said supply where the supplier and the recipient are unrelated and price is the sole consideration for such supply. In normal circumstances where a specific price is charged by the Guarantor from the recipient of its service, such transaction value would form the value of supply. However, in two specific circumstances, valuation rules are invokable; (a) supply is between related entities in which case the price is not deemed to be a sole consideration (section 15(4)); (b) Value of supplies as are notified by the Government in terms of valuation rules (section 15(5)). Rule 28 has been incorporated for valuation of supplies between related / distinct persons with an intent to arrive at the arm’s length price and negate the probable influence of the relationship over the valuation. It provides that the value would be the ‘open market value’; ‘comparable value of similar services’; ‘cost of service’ or similar methodology (applied in the same sequence). In terms of a proviso, in cases where the recipient is eligible for full input tax credit, the value as declared in the invoice would be considered as the ‘open market value’ and adopted for the purpose of value in terms of Rule 28.

The 52nd GST council introduced an overriding Rule 28(2) (vide Notification 52/2023 w.e.f. 26th October, 2023) stating that value of a supply of corporate guarantee service between related person would be fixed 1 per cent of the guarantee offered or the actual consideration, whichever is higher. Thereby, the open market value mechanism of ascertaining the value of a corporate guarantee service was rendered inapplicable and the Guarantor had to necessarily deem the value at 1 per cent of the sum guaranteed. In view of this specific overriding rule 28(2), the benefit of proviso to Rule 28(1) in cases of full input tax credit was also not made available for valuation of corporate guarantees. Singling out corporate guarantees from the benefit of zero- valuation in full ITC cases was unknown and taxpayers were ultimately left to the mercy of the ad-hoc valuation of 1 per cent. This amendment in valuation rules gave impetus to the revenue to allege that Corporate Guarantees are a ‘taxable service’ under section 7 r/w 9 of the GST law. The summary of revenue’s approach to taxation was as follows:

Taxability Valuation
Pre-GST No consideration – Not taxable in view of Edelweiss (SC)
1st July, 2017 to 26th October, 2023 Open Market Value – Proviso benefit not available since no invoice (later clarified)
26th October, 2023 onwards 1 per cent or Actual Value w.e.h. in all cases

Retrospective amendment: 53rd Council decision

The said amendment ignited widespread investigation and arbitrariness (in valuation methodology) with imposition of either RCM / FCM tax depending on the location of related entities. Ancillary questions were then raised by the industry on (a) frequency of the taxability; (b) base value for purpose of application of 1 per cent, etc. The 53rd GST council took cognizance over these issues and introduced a retrospective amendment in Rule 28(2) which now reads as follows (underlined terms inserted
w.r.e.f from 26th October, 2023):

(2) Notwithstanding anything contained in sub-rule (1), the value of supply of services by a supplier to a recipient who is a related person located in India, by way of providing corporate guarantee to any banking company or financial institution on behalf of the said recipient, shall be deemed to be one per cent of the amount of such guarantee offered per annum, or the actual consideration, whichever is higher.

Provided that where the recipient is eligible for full input tax credit, the value declared in the invoice shall be deemed to be the value of said supply of services.

The three retrospective insertions to Rule 28(2) made are as follows:

– Valuation is fixed at 1 per cent of the guarantee offered on a ‘per annum’ basis;

– Beneficial valuation mechanism in case of full input tax credit is reintroduced;

– Insertion of the condition that the related person should be located in India;

Rationale for fixation of 1 per cent per annum as the deemed value — Corporate guarantees are contracts which may not necessarily be driven by time. The contract commences on the emergence of a financial obligation and ends on discharge of such obligation. The tenure may be subject to early termination or even extension on mutual terms. The insertion of the phrase involves fixation of a deemed value of 1 per cent on a ‘per annum’. CBIC Circular No 225/19/2024-GST states that the phrase ‘per annum’ has been inserted to tax the service on an annual basis until the discharge of the credit facility.

This decision was taken on account of varied practices among taxpayers as well as revenue administration on the valuation of corporate guarantee. Tax-payers followed Transfer Pricing methodologies such as a Yield approach, Cost approach, Expected loss approach, Capital support approach. Revenue’s approach involved some arbitrariness of adopting commission charged by Banks, thumb rules or publicly available rates. Due to large scale variations, the GST council thought it appropriate to fix a deemed value of 1 per cent of the guarantee amount by amending Rule 28(2), thus allaying any disputes on valuation. Though such a value may not necessarily reflect the arm’s length value, in the absence of a scientific approach to value guarantee commissions and a lack of an open market value, taxpayers were forced to adopt this approach to avoid litigation. The revenue on the other hand would treat this insertion as vindicating its stand of a thumb rule approach of 1 per cent of the guarantee for valuation of the services prior to said amendment.

The other aspect is on the taxation of corporate guarantees on a ‘per-annum’ basis. Conceptually, the contract of guarantee is a one-time activity having a validity over a specific time period or fulfillment of the loan obligation. Guarantee fee could vary based on probability of default risks (computed based on sovereign risks, economic risks, industry risks, credit risks, etc.), but this insertion has singled out only the time factor for ascertainment of appropriate value. Legally, the finer aspect of identifying the taxable event (a.k.a. subject matter of tax) seems to have been lost in this amendment. In a service of guarantee, the risk underwritten by the Guarantor is subject matter of tax. This risk is underwritten only once (as a one-time activity) by endorsing the contract of guarantee. As a condition of this endorsement, the guarantor takes over a financial obligation for a particular tenure. Viewed from another angle, the underwriting of risk is governed by the contract tenure and does not have to expire and be renewed at the end of each year. Even if a comparison is drawn with Banks / FIs, the concept of charging a guarantee commission on an annual basis is not a rule but driven by commercial agreements only. But the current amendment makes charging of a guarantee fee an annual exercise as a mandatory rule and overlooks economic and commercial reality.

Accordingly, the rule represents that the arm’s length price should be a direct function of the tenure of guarantee and hence prescribed a valuation on a per-annum basis. So, where the guarantee is for a 6-month period, the valuation should be proportionately reduced to 0.5 per cent and where it is for a 5-year period, the value would be 5 per cent. This theory seems to be flawed fundamentally:

– It fails to appreciate that rendition of a guarantee is distinct from the underlying financial obligation which is underwritten by the contract;

– It assumes that guarantee service is reset at every 12-month period;

– It attempts to define the contractual terms of a guarantee service, which is clearly not a legislative authority, rather a mutual contract between the parties concerned;

– It treats unequals as equals by equating the minimum guarantee commission at 1 per cent for all cases without appreciating commercial considerations (financial capabilities of the debtor/ creditor, macro-economic factors, prevailing interest rates, recovery risk, etc.);

Rationale for granting the benefit of valuation in cases full input tax credit – Without going into the rationale of depriving the ‘guarantee transactions’ with this benefit previously, the GST council in its wisdom has now extended such benefit in cases where full input tax credit at the recipient’s end. By insertion of a proviso, it is stated that the value as declared in the invoice would be accepted as the arm’s length value in cases where full input tax credit is otherwise eligible to the recipient, thereby equating Rule 28(2) with Rule 28(1). The debate on whether ‘full input tax credit’ must be examined at an invoice or at the registration level would continue even for corporate guarantees.

CBIC Circular No. 225/19/2024-GST affirms that this rule would apply retrospectively from 26th October, 2023. Despite this deemed value, on application of CBIC Circular No. 210/4/2024-GST, NIL value can now be adopted by not raising any self-invoice in case of import transactions. Even if a self-invoice is supposed to be raised, in terms of CBIC Circular No. 211/5/2024-GST, the date of raising the self invoice would be treated as the starting point of time of eligibility for input tax credit. The above culminates into narrowing down the operation of deemed valuation of corporate guarantees only to non ITC / exempt sectors such as residential real estate, restaurants, health care or other exempt services.

Rationale on restricting Rule 28(2) to related persons located in India – CBIC C ircular 225/19/2024-GST merely states that Rule 28(2) would not henceforth apply for export transactions but falls short to clarify over applicability of Rule 28(1) for such transactions. By excluding the application of Rule 28(2) for outbound guarantees, the default Rule 28(1) comes back into contention & becomes applicable. In such cases, one would have to fall back upon the open market value, comparable supplies of similar services or similar methodology for ascertainment of value for export of corporate guarantee services. The ad-hoc valuation of 1 per cent cannot then form the basis of valuation for such outbound guarantee services. However, the entity may consider the possibility of claiming the zero-rating benefit provided under Section 16 of the IGST Act, 2017. It may be noted that the definition of export of service requires an exporter of service to repatriate the consideration in convertible foreign exchange. Admittedly, in such cases, though there is a taxable value of supply, the consideration is NIL and therefore the said condition can be said to be satisfied.

Peculiar cropping up under the CBIC Circular 225/19/2024-GST

The CBIC Circular issued pursuant to 53rd Council recommendations are clearly overreaching the legal understanding emerging from statutory provisions. Some of them are discussed herein:

i. Impact of amendment over pre-existing Corporate guarantees prior to 26th October, 2023. The circular states that pre-existing corporate guarantees would be governed by the erstwhile law and not by the amended law. The amended law would govern only fresh issuances or renewal of pre-existing guarantee after 26th October, 2023. The pre-existing valuation rules (i.e. open market value, etc.) would govern old guarantees i.e. corporate guarantees issued prior to 26th October, 2023 would be subject to generic open market value without the condition of valuation on a per-annum basis but those issued on or after 26th October, 2023 would be subjected to the 1 per cent valuation calculated on a per-annum basis. Clearly, this position of the Government would emerge only after considering that taxable supply is the act of underwriting the default risk, such an activity being a one-time supply and not a continuous or recurring supply. Being a one- time supply, pre-existing guarantees would continue to be governed by the old valuation rules. But this very understanding seems to be overturned when the same circular later states that valuation of corporate guarantees are to be performed on a per-annum basis.

ii. Valuation of corporate guarantees in case of part disbursement – The circular states that the subject- matter of taxation is the underwriting of default risk and not the loan/financial assistance. Therefore, even if the loan is not completely disbursed, the valuation would be on the entire amount of guarantee. Clearly there is a conflict in the very statement of the circular. In a corporate guarantee of ₹1 crore, if the actual disbursement is ₹75 lakhs, then default risk would be to the extent of ₹75 lakhs and not ₹1 crore. Yet the circular claims that the valuation would be on the complete guarantee amount, failing to appreciate that limit specified in the contract of guarantee is the upper limit and non-usage of such limit cannot result in a default risk to the Guarantor. This approach also fails to appreciate the contract law provisions which states that the financial credit is basis of consideration for the guarantee rendered by the Surety.

iii. Assignment of corporate guarantee to another Bank / FI – The circular states that pre existing assignment guarantee would not be taxable once again even at the time of takeover of loan as long as there is no fresh issuance / renewal of the guarantee. Where a fresh agreement is entered with any revision in terms, despite the underlying loan being in continuance, the said circular would treat it as a fresh guarantee. The clarification does not also seem to be well thought out. According to this clarification, it seems that the transaction of assignment would not be a taxable event unless there is a renewal of the entire arrangement. Even though the recipient of the guarantee / default risk (i.e. the principal creditor) would be an entirely different entity, the government believes default risk is not taxable once again. Certainly, there are going to be disputes over whether the true nature of the take-over of the financial credit has been performed by way of ‘assignment’ or ‘fresh issuance’.

iv. Co-guarantee arrangements – The circular suggests that guarantee would be proportionately charged based on default risk which undertaken by the guarantors. In many arrangements, the co-guarantors are surety for the entire amount of loan jointly or severally without any bifurcation. The circular does not provide any particular solution to this and the revenue would sway towards applying common 50:50 rule which would lack statutory force. It would be interesting on how the circular would apply where the parent company and its promoter directors are looped as co-guarantors in the entire loan arrangement. CBIC Circular 204/16/2023-GST would state that personal guarantees by directors would not be taxable in view of the RBI’s restriction on charge of any kind guarantee fee by Bank / FIs.

Is there a possibility to challenge these valuation rules?

Certainly, the said valuation rules can be challenged based on arbitrariness. We have the instance where a valuation rule in Customs was struck down by the Supreme Court in Wipro’s case1 on the basis that a fictional value cannot replace an actual value. A 1 per cent arbitrary handling charge was read down when actual values were available with the importer. Similarly, Gujarat High Court2 in Munjaal Manishbhai’s case also read down the mandatory 1/3rd deduction towards land for arriving at the value of construction services. The ad-hoc 1 per cent value towards Corporate Guarantee could face a similar challenge before Courts as it disregards the commercial reality. It also exceeds its authority by holding that such a value should be computed on a per-annum basis disregarding the very nature of guarantees. Incidentally, the said rule has been challenged in the case of Sterlite Power Transmission3 that the valuation rules are proposing a tax on an activity which is not taxable itself under section 9. Currently a stay on the Circular has been granted in another case of Acme Cleantech Solution (P) Ltd4 where the arbitrariness in valuation was challenged in the said case.


1. Wipro Ltd 2015 (319) E.L.T. 177 (S.C.)
2. MunjaalManishbhai Bhatt2022 (62) G.S.T.L. 262 (Guj.)
3. [2024] 160 taxmann.com 381 (Delhi)
4. [2024] 162 taxmann.com 151 (Punjab & Haryana)

Retrospective impact of amendment – The retrospective amendment would be applicable from 26th October, 2023. In many cases, the tax-payers would have fixed a 1 per cent fee on account of lack of the beneficial Full ITC condition. Assessments / orders would have been issued even in cases where ITC would otherwise be fully available. Pursuant to such retrospectivity, sectors which were subject to full ITC need not continue with this practice and re-align their valuation to commercial reality rather than the ad-hoc scheme. In case of Non-ITC sectors the taxpayers would be forced to reset the valuation to 1 per cent p.a. or alternatively challenge the levy itself.

A foot in the wrong direction by the GST council has only made the issue more ambiguous. The GST council should attempt to dig into the root of the transaction and not shy away from fixing the service provider recipient problem statement. Moreover, with the full ITC condition being reintroduced, the impact would only be restricted to a few sectors albeit a bag full of confusion. In the meanwhile, the Courts are already seized of this issue and one would hope that the dust on this matter is settled soon.

Part A : Company Law

In the Matter of M/s Bluemax Capital Solution Private Limited

Registrar of Companies, Chennai

Adjudication Order— ROC/CHN/BLUEMAX/ ADJ/S.134/2024

Date of Order: 30th April, 2024

Adjudication Order on Company and its director for non-disclosure of related party transaction which amounts to violation of the provisions of Section 134(3) (i) of the Companies Act, 2013, and penalty was imposed as per Section 134(8) of the Companies Act, 2013.

FACTS

Based on the Inspection of books and accounts of M/s BCSPL carried out under Section 206(4) of the Companies Act, 2013 by Officer authorized by the Central Government it was observed that —
The particulars of contracts or arrangements with related parties referred to in Section 188(1) had to be mentioned in form AOC-2, but in the Directors Report for the Financial years ended 2015–16,2016–17,2017–18 it was mentioned that ‘The Company did not make any related party transaction during the financial year’. So Form AOC-2 was not applicable to the “Company” and consequently no particulars in Form AOC-2 were furnished.

However, in the Balance Sheet Note 4- “Other Long-Term Liabilities” for the Financial Year 2015–16, 2016–17, and 2017–18 ‘Dues to Directors and others amounting to ₹19,20,291, ₹32,23,697.46 and ₹32,63,015.30
respectively are mentioned, which showed that M/s BCSPL had transactions falling under section 188(1) of the Companies Act, 2013.

Thus, on the submission of the inspection report, the Regional Director (RD) of Chennai directed to office of the Registrar of Companies, Chennai (“ROC”) to initiate the necessary action against the defaulters. Thereafter a Show Cause Notice (SCN) was issued dated 13th June, 2023.

Shri. RA requested for some time through a reply dated 29th June, 2023, however after that no reply was received from M/s BCSPL and its directors and the adjudication hearing notice was fixed on 23rd January, 2024.

Pursuant to the notice Shri I.B.H, Company Secretary appeared on behalf of M/s BCSPL and its directors before the Adjudicating Officer (AO) and made a submission that violation may be adjudicated.

PROVISIONS

Section 134 of the Companies Act, 2013 — Financial statement, Board’s Report, etc.

(3) There shall be attached to statements laid before a company in general meeting, a Report by its Board of Directors, which shall include —

(h) particulars of contracts or arrangements with related parties referred to in sub-section

(1) of section 188 in the prescribed form;

Rule 8(2) of the Companies (Account) Rules 2014 provides:

(2) The Report of the Board shall contain the particulars of contracts or arrangements with related parties referred to in sub-section (1) of section 188 in the Form AOC-2.

Section 188. Related party transactions:

(l) Except with the consent of the Board of Directors given by a resolution at a meeting of the Board and subject to such conditions as may be prescribed, no company shall enter into any contract or arrangement with a related party with respect to —

(a) sale, purchase, or supply of any goods or materials;

(b) selling or otherwise disposing of or buying, property of any kind;

(c) leasing of property of any kind;

(d) availing or rendering of any services;

(e) appointment of any agent for purchase or sale of goods, materials, services or property;

(f) such related party’s appointment to any office or place of profit in the company, its subsidiary company or associate company; and

(g) underwriting the subscription of any securities or derivatives thereof, of the company

Section 134 (8) provides —

If a company is in default in complying with the provisions of this section, the company shall be liable to a penalty of three lakh rupees, and every officer of the company who is in default shall be liable to a penalty of fifty thousand rupees.

ORDER

After considering the facts and circumstances of the case the AO concluded that M/s BCSPL and its directors had violated Section 134(3)(h) of the Companies Act, 2013 and thereby were liable for penalty as prescribed under Section 134(8) of the Act for the FYs 2015–16, 2016–17 and 2017–18.

The details of the penalty imposed on the company and Officers in default are given in the table below:

Name of Company / person on whom penalty imposed The maximum limit for a penalty (₹) in each year Penalty

Imposed (₹)

 

FY 2015–16

Penalty

Imposed (₹)

 

FY 2016–17

Penalty

Imposed (₹)

 

FY 2017–18

Total Penalty

Imposed (₹)

M/s BCSPL 3,00,000 3,00,000 3,00,000 3,00,000 9,00,000
Shri. RA 50,000 50,000 50,000 50,000 1,50,000
Shri. B 50,000 50,000 50,000 50,000 1,50,000
Shri. SG 50,000 50,000 50,000 50,000 1,50,000
TOTAL 4,50,000 4,50,000 4,50,000 13,50,000

Further, the said amount of penalty was to be paid within 90 days of receipt of the order, and compliance was required to be intimated to AO office with proof of penalty paid.

NBFCs: Scale-Based Regime

INTRODUCTION

Non-Banking Financial Companies or NBFCs are often called shadow banks since they perform quasi- banking activities. Considering their importance from a financial system perspective, the RBI strictly regulates NBFCs. However, a one-size fits all NBFCs approach was often considered very oppressive to the smaller NBFCs. Recognising this anomaly, the RBI in 2023 issued the Reserve Bank of India (NBFC Scale-Based Regulation) Directions, 2023 (“the Directions”). What the Directions seek to do is to classify NBFCs into four layers: Base, Middle, Upper and Top. As the layer increases, the quantum of compliance and regulations increase. Hence, a Top Layer NBFC would have maximum regulations whereas a Base Layer NBFC would have least compliances and regulations. Let us examine some facets of this scale-based classification.

DETERMINATION OF NBFC STATUS

Any company which carries on the business of a non- banking financial institution as its principal business as defined in section 45-I(c) read with section 45-I(f) of the RBI Act, 1934 shall be treated as an NBFC and requires registration under section 45-IA of the RBI Act. However, certain companies have been exempted by the RBI from registering as NBFCs, even though they otherwise satisfy all the tests. These include, a merchant banking company, a stock broker, a venture capital company, an insurance broker, a Core Investment Company not accepting public funds, etc.

PRINCIPAL BUSINESS TEST

The term “principal business” has not been defined in the RBI Act, 1934. Hence, in order to identify a company as an NBFC, the Principal Business Criteria as set forth in Press Release dated 8th April, 1999 shall be referred, which considers both the assets and the income pattern as evidenced from the last audited balance sheet of the company. These criteria areas under:

A company will be treated as an NBFC, if its Financial Assets (e.g., investments, stock of shares, loans and advances, etc.) appearing in the Balance Sheet are more than 50 per cent of its total assets (netted off by intangible assets) and Income (e.g., dividend, interest, capital gains from financial assets, etc.) from financial assets appearing in the Profit and Loss Statement is more than 50 per cent of its gross income. Both these tests are required to be satisfied as the determinant factor for determining principal business of a company.

For this purpose, investments in bank fixed deposits are not treated as financial assets and receipt of interest income on fixed deposits with banks is not treated as income from financial assets as these are not covered under the activities mentioned in the definition of “financial institution” in section 45-I(c) of the RBI Act, 1934.

AUDITOR’S REPORT

Under the Master Direction – Non-Banking Financial Companies Auditor’s Report (Reserve Bank) Directions, 2016, the auditor’s report on the accounts of an NBFC shall include a statement on:

(a) Whether it is conducting Non-Banking Financial Activity without a valid Certificate of Registration (CoR) granted by the RBI?

(b) If it has a CoR, then whether that NBFC is entitled to continue to hold such CoR in terms of its Principal Business Criteria?

(c) Whether the NBFC is meeting the required net owned fund requirement?

Every NBFC must submit a certificate from its Statutory Auditor that it is engaged in the business of non-banking financial institution which requires it to hold a CoR under section 45-IA of the RBI Act and that it is eligible to hold it. A certificate from the Statutory Auditor in this regard with reference to the position of the company as at end of the financial year ended 31st March may be submitted to the Regional Office of the Department of Non-Banking Supervision under whose jurisdiction the NBFC is registered, within one month from the date of finalisation of the balance sheet and in any case not later than 30th December of that year.

Where, in the auditor’s report, the statement regarding any of the above items is unfavourable or qualified, the report shall also state the reasons for such unfavourable or qualified statement. Where the auditor is unable to express any opinion on any of the items, his report shall indicate such facts together with reasons thereof. In case of an adverse / qualified report, it shall be the obligation of the auditor to make a report containing the details of such unfavourable or qualified statements and/or about the non-compliance, as the case may be, in respect of the company to the concerned Regional Office of RBI.

In addition to the above, the provisions of the Companies (Auditor’s Report) Order, 2020 are also relevant in this aspect. One of the questions which the Auditor is required to address is ‘Whether the company is required to be registered under section 45-IA of the Reserve Bank of India Act, 1934 and if so, whether the registration has been obtained?’ Connected to this is the second question of ‘Whether the company has conducted any Non-Banking Financial or Housing Finance activities without a valid CoR from the Reserve Bank of India as per the Reserve Bank of India Act, 1934?’

The Guidance Note on CARO 2020 issued by the ICAI throws some light on the audit of NBFCs. It states that the auditor should examine the transactions of the company with relation to the activities covered under the RBI Act 1934 and directions related to NBFCs. The auditor should examine the financial statements with reference to the business of a non-banking financial institution, as defined in the RBI Act, 1934.

Thus, a great deal of onus has been cast on the auditor in terms of determining whether or not a company is an NBFC. Accordingly, it is essential that knowledge of the RBI Act and NBFC Directions is a very crucial aspect for any auditor. If an auditor is ignorant about these provisions and ends up making an error in his reporting, he could face penal consequences.

CLASSIFICATION MATRIX

The regulatory structure for NBFCs comprises four layers based on their size, activity and perceived riskiness.

(a) NBFCs in the lowest layer are known as NBFCs-Base Layer (NBFCs-BL). The Base Layer shall comprise of (a) non-deposit taking NBFCs below the asset size of ₹1,000 crore and (b) NBFCs undertaking the activities of NBFC- Peer to Peer Lending Platform (NBFC-P2P), NBFC-Account Aggregator (NBFC-AA), Non-Operative Financial Holding Company (NOFHC) and (iv) NBFCs not availing public funds and not having any customer interface. The NBFCs which were earlier called NBFC-ND (i.e., non-systemically important non-deposit taking NBFC) would now be referred to as NBFC-BL. A non-systemically important NBFC was one which had an asset size of less than ₹500 crore. Correspondingly, systemically important NBFCs were those which had an asset size of ₹500 crore or more.

For the purpose of NBFCs not availing public funds, “Public Funds” include funds raised either directly or indirectly through public deposits, inter-corporate deposits, bank finance and all funds received from outside sources such as funds raised by issue of Commercial Papers, debentures, etc. However, it excludes funds raised by Compulsorily Convertible Preference Shares / Debentures convertible into equity shares within a period not exceeding five years from the date of issue.

(b) NBFCs in the middle layer are known as NBFCs- Middle Layer (NBFCs-ML). The Middle Layer shall consist of (a) all deposit taking NBFCs (NBFCs-D), irrespective of asset size, (b) non-deposit taking NBFCs with asset size of ₹1,000 crore and above and (c) NBFCs undertaking the following activities (i) Standalone Primary Dealer (SPD),
(ii) Infrastructure Debt Fund-NBFC (IDF-NBFC), (iii) Core Investment Company (CIC), (iv) Housing Finance Company (HFC) and (v) NBFC-Infrastructure Finance Company (NBFC-IFC). Hence, all CICs irrespective of size would always be NBFCs-ML. All NBFCs which were earlier referred to as NBFC-D (i.e., deposit taking NBFC) and NBFC-ND-SI (systemically important non-deposit taking NBFC) shall now mean NBFC-ML or NBFC-UL, depending upon their size.

(c) NBFCs in the upper layer are known as NBFCs Upper Layer (NBFCs-UL). The Upper Layer shall comprise of those NBFCs which are specifically identified by the Reserve Bank as warranting enhanced regulatory requirement based on a set of parameters and scoring methodology as provided by the RBI. The top 10 eligible NBFCs in terms of their asset size shall always reside in the upper layer, irrespective of any other factor. Currently, the RBI has identified 15 NBFCs as NBFCs-UL. Once an NBFC is categorised as NBFC-UL, it shall be subject to enhanced regulatory requirement, at least for a period of five years from its classification in this layer, even in case it does not meet the parametric criteria in the subsequent year/s. In other words, it will be eligible to move out of the enhanced regulatory framework only if it does not meet the criteria for classification for five consecutive years. Within three years of identification as NBFC-UL, such NBFCs must be mandatorily listed.

Once an NBFC is identified for inclusion as NBFC-UL, the NBFC shall be advised about its classification by the RBI, and it will be placed under regulation applicable to the Upper Layer. For this purpose, the following timelines shall be adhered to:

  • Within three months of being advised by the RBI regarding its inclusion in the NBFC-UL, the NBFC shall put in place a Board-approved policy for adoption of the enhanced regulatory framework and chart out an implementation plan for adhering to the new set of regulations.
  • The Board of Directors shall ensure that the stipulations prescribed for the NBFC-UL are adhered to within a maximum time period of 24 months from the date of advice regarding classification as an NBFC-UL from the RBI.
  • The roadmap as approved by the Board towards implementation of the enhanced regulatory requirement shall be submitted to the RBI and shall be subject to supervisory review.

(d) The Top Layer is ideally expected to be empty and is known as NBFCs-Top Layer (NBFCs-TL). This layer can get populated if the RBI is of the opinion that there is a substantial increase in the potential systemic risk from specific NBFCs in the Upper Layer. Such NBFCs shall move to the Top Layer from the Upper Layer. As of now, none of the NBFCs-UL have been upgraded to NBFCs-TL.

CLASSIFICATION OF MULTIPLE NBFCS IN ONE GROUP

If a Group has more than one NBFC, then classification is not on a standalone basis. The total assets of all the NBFCs in the Group shall be consolidated to determine the threshold for their classification in the Middle Layer. If the consolidated asset size of the NBFCs in the Group is r1,000 crore and above, then each NBFC-ICC, NBFC- MFI, NBFC-Factor and NBFC engaged in micro finance business, lying in the group shall be classified as an NBFC in the Middle Layer. However, this consolidation provision is not applicable for determining NBFC-UL.

For this purpose, “Companies in the group” means an arrangement involving two or more entities related to each other through any of the following relationships: Subsidiary – parent (defined in terms of AS 21), Joint venture (defined in terms of AS 27), Associate (defined in terms of AS 23), Promoter–promotee [as provided in the SEBI (Acquisition of Shares and Takeover) Regulations, 1997] for listed companies, a related party (defined in terms of AS 18), common brand name and investment in equity shares of 20 per cent and above.

The Statutory Auditors are required to certify the asset size (as on 31st March) of all NBFCs in the Group every year. The certificate shall be furnished to RBI’s Department of Supervision under whose jurisdiction NBFCs are registered.

NBFC-ML STATUS

Once an NBFC reaches an asset size of ₹1,000 crore or above, it shall be treated as an NBFC-ML, despite not having such assets as on the date of last balance sheet. All such non-deposit taking NBFCs shall comply with the regulations / directions issued to NBFCs-ML from time to time, as and when they attain an asset size of ₹1,000 crore, irrespective of the date on which such size is attained. If the asset size of an NBFC falls below ₹1,000 crore in a given month, which may be due to temporary fluctuations and not due to actual downsizing, the NBFC shall continue to meet the reporting requirements and shall comply with the extant directions as applicable to NBFC-ML, till the submission of its next audited balance sheet to the RBI and a specific dispensation from the RBI in this regard.

Net Owned Fund Requirements

₹10 crore is the Net Owned Fund (NOF) requirement for an NBFC-ICC, NBFC-MFI and NBFC-Factor to commence or carry on the business of non-banking financial institution. The RBI has permitted NBFCs-BL to gradually ramp up their NOF:

Type of NBFC Starting NOF NOF needed by 31st March, 2025 NOF needed by 31st March, 2027
NBFC-ICC ₹2 crore ₹5 crore ₹10 crore
NBFC-MFI ₹5 crore ₹7 crore ₹10 crore
NBFC-Factor ₹5 crore ₹7 crore ₹10 crore

NBFCs failing to achieve the prescribed level within the stipulated period are not eligible to hold the Certificate of Registration (CoR) as NBFCs.

For NBFC-P2P, NBFC-AA and NBFC not availing public funds and not having any customer interface, the NOF requirement is ₹2 crore. For NBFC-IFC and IDF-NBFC, the NOF requirement is ₹300 crore.

The leverage ratio of NBFCs (except NBFC-MFIs, NBFCs-ML and above) shall not be more than 7 at any point of time. Leverage ratio means the total Outside Liabilities divided by Owned Fund.“Owned Fund” means aggregate of paid-up equity capital, compulsorily convertible preference shares, free reserves, share premium and capital reserves representing surplus arising out of sale proceeds of asset, excluding reserves created by revaluation of asset as reduced by accumulated loss balance, book value of intangible assets and deferred revenue expenditure, if any.

AUDITOR’S APPOINTMENT

NBFCs can appoint Auditors for a continuous period of three years, subject to the firms satisfying the eligibility norms each year. The time gap between any non-audit works (services mentioned at section 144 of Companies Act, 2013, internal assignments, special assignments, etc.) by the Auditors for the Entities or any audit / nonaudit works for its group entities should be at least one year, before or after its appointment as Auditors. However, non-deposit taking NBFCs with asset size below ₹1,000 crore can avoid the above restrictions of rotating auditors after three years.

CONCLUSION

The scale-based regime is a welcome move by the RBI since it regulates NBFCs based on their size. The larger an NBFC, the stricter the regime. Probably, the time has come for other regulators and laws to also consider a scale-based regime. For instance, listed companies could be subject to listing obligations and disclosures based on their market capitalisation. Till such time as we have a horses for courses approach, this is a step in the right direction by the RBI!

Allied Laws

Shankar Vithobai Desai and Ors vs. Gauri Associates and Anr.

Comm. Arbitration Application (L) No. 21070 of 2023 (Bom HC)

16th July, 2024

24. Arbitration — Development Agreement between Society and Firm — Dispute — Individual members of the society cannot invoke Arbitration clause — [S. 11, Arbitration and Conciliation Act, 1996].

FACTS

A Development Agreement (DA) was executed between society and the Respondent (i.e., Gauri Associates). The Applicants (thirteen individual members) are among the forty members of the society. A dispute arose between the Applicants and the Respondent. Therefore, the Applicants, issued a letter / notice to the Society and to the Respondent invoking arbitration clause in the DA. Interestingly, the Society had not authorised / consented to the Applicants on whose behalf the said notice was issued.

An application was filed before the Hon’ble Bombay High Court by the thirteen individual members of the society, on behalf of the society for the appointment of an Arbitrator.

HELD

The Hon’ble Bombay High Court observed that the DA was executed between the Society and the Respondent and not between individual members of the Society and the Respondent. Further, the Hon’ble Court relied on the decision of the Hon’ble Bombay High Court in the case of Ketan Champaklal Divecha vs. DGS Township Pvt Ltd (2024 SCC OnLine Bombay 10), wherein, it was held that individual members of the society give up their desire and identity by submitting to the collective will of the housing society. Therefore, the Court held that individual members of the Society could not invoke the arbitration clause as they were not the signatories of the DA.

The Application was thus, dismissed.


Ram Briksha Singh and Ors vs. Ramashray Singh and Ors.
Civil Miscellaneous Jurisdiction 1824 of 2018 (Patna HC)
11th July, 2024

25. Evidence — Certified copy of sale deed — Public document — Relevance of sale deed — Maintainability of a certified copy of sale deeds as a public document — [S. 74, 75, 76 Indian Evidence Act, 1872; S. 57(5), Registration Act, 1908].

FACTS

The Respondent (Original Plaintiff) had instituted a suit for title against Petitioners (Original Defendants). It was the case of the Plaintiffs, that a mortgage deed was executed between the Plaintiff and Defendant. However, after the Plaintiff repaid the money, the Defendants refused to re-convey the property. Consequently, the Plaintiff filed a suit against the Defendant. During the pendency of the suit, the Plaintiff filed an application to admit a certified copy of the sale deed executed by the Plaintiff in favour of a third party, as evidence in the form of a public document. However, the Defendants objected by arguing that the said sale deed was irrelevant and could not be considered as a public document. The Learned Trial Court, after examining the facts, admitted the sale deed and marked it as an exhibit.

Aggrieved, a Petition was filed before the Hon’ble Patna High Court under Article 227 of the Constitution.

HELD

The Hon’ble Patna High Court, at the outset, observed that merely marking a document as an exhibit does not infer that the said document is admissible evidence. Further, the aggrieved party is not barred by objecting to its admissibility when the document is marked as exhibit. Further, relying on the decision of the Hon’ble

Supreme Court in the case of Appaiya vs. Andimuthu Thangapandi and Ors (Civil Appeal No. 14630 of 2015, S.L.P. (C) No. 10013 of 2015) and relying on sections 74 to 76 of Indian Evidence Act, 1872 read with section 57(5) of the Registration Act, 1908 the Hon’ble Court held that certified copy of a registered sale deed would fall under the category of public document and the same can be admitted into evidence. However, the Hon’ble Court cautioned that the certified copy would only prove the contents of the original document and not be proof of execution of the original document.

Thus, the Petition was dismissed.


Late Shivraj Reddy (Through his Legal Heir) and Anr. vs. S. Raghuraj Reddy and Ors.

AIR 2024 Supreme Court 2897

16th May, 2024

26. Partnership Firm — Partnership at will — Death of a Partner — Automatic termination of Partnership Firm [S. 42(c), Partnership Act, 1932; S. 3, Limitation Act, 1963].

FACTS

A suit was instituted in 1996 for the dissolution of the Partnership Firm and rendition of accounts by Respondent No. 1 (Original Plaintiff). The Respondent No. 1 along with Defendants No. 2 to 4 and one Mr. Late Balraj Reddy had constituted a Partnership Firm (i.e. Defendant No. 1, the firm) in 1978. The Learned Trial Court allowed the suit and passed a decree dated 26th October, 1998. Subsequently, an appeal was filed before the Hon’ble Andhra Pradesh High Court (Single Bench) by the Defendant No.1 (the Firm) and the Defendant No. 2 (Appellant). The Hon’ble Court observed that the one Mr. Balraj Reddy (partner of the firm) had expired in the year 1984. Therefore, as per section 42(c) of the Partnership Act, 1992 (Act), the said Partnership firm stood automatically dissolved. Thus, the original suit which was filed by Respondent No.1 in 1996 for rendition of accounts, was barred by limitation. Aggrieved by the Order, an appeal was filed before the Division Bench of the Hon’ble Andhra Pradesh High Court. The Division Court reversed the decision passed by the Hon’ble Single Bench on the ground that the issue of limitation was never raised during the proceedings before the Learned Trial Court.

Aggrieved, an appeal was filed before the Hon’ble Supreme Court.

HELD

The Hon’ble Supreme Court observed that the Partnership was at will. Further, it was not disputed that one partner, namely Mr. Balraj Reddy had expired in 1984. Therefore, relying on section 42(c) of the Act, the Court held that the Partnership Firm stood automatically dissolved and thus, the Original Suit (of 1996) was barred by limitation. Coming to the question of the limitation issue which was raised for the first time before the Hon’ble High Court, the Hon’ble Supreme Court held that even if the plea of limitation is not taken up as a defense, the Court is bound to dismiss the suit if it is barred by limitation. Furthermore, relying on the decision of the Hon’ble Supreme Court in the case of V.M. Salagaocar and Bros vs. Board of Trustees of Port of Mormugao and Anr[(2005) 4 SCC 613], the Hon’ble Court reiterated that it is the duty of the Courts not to proceed with the application if it is made beyond the period of limitation prescribed.

Thus, the Petition was allowed, and the decision of the Hon’ble Andhra Pradesh High Court (Single Bench) was restored.


Mool Chandra vs. UOI & Anr

Civil Appeal No. 8435-8436 of 2024 (SC) 5th August, 2024

27. Condonation of Delay — Delay of 425 days — Tribunal rejected the appeal for condonation of delay — High Court affirmed the order of Tribunal — On SLP Hon’ble Supreme Court condoned the delay — It is not the length of delay that would be required to be considered while examining the plea for condonation of delay rather the cause for the delay — Directed the Tribunal to decide on merits. [S. 21, Central Administrative Tribunal Act, 1985].

FACTS

The Appellant was appointed to Indian Statistical Services in 1982. He was suspended on 13th October, 1997, on account of desertion of his family for another woman. There was ongoing litigation between the Department and the assessee for reinstatement, promotion, and financial benefits. In one instance the Appellant was unaware that his counsel had withdrawn the application directing the Respondent to dispose of his review petition. It came to his notice much later and he immediately filed a Miscellaneous Application against the same. This was rejected by the Tribunal on account of the delay of 425 days. The High Court affirmed the order of the Tribunal.

On SLP to the Supreme Court.

HELD

No litigant stands to benefit in approaching the courts belatedly. It is not the length of delay that would be required to be considered while examining the plea for condonation of delay, it is the cause for the delay which has been propounded that will have to be examined. If the cause for delay falls within the four corners of “sufficient cause”, irrespective of the length of delay same deserves to be condoned. However, if the cause shown is insufficient, irrespective of the period of delay, the same would not be condoned.


Ramkripal Meena vs. Directorate of Enforcement SLP(Crl) No. 3205 of 2024 Supreme Court 30th June, 2024

28. Money Laundering — Bail granted in the predicated offense — But arrest by Enforcement Directorate under PMLA — Section 45 of PMLA is relaxed — Conditions imposed. [S. 45, Prevention of Money Laundering Act, 2002; S. 120-B, 302, 365, 406, 420, Indian Penal Code, 1860].

FACTS

The Petitioner was accused of leakage of question paper and use of unfair means in the Rajasthan Eligibility Examination for Teachers (REET) exam 2021. The Petitioner was working as a manager of the school and had access to the strong room from where the Petitioner had allegedly stolen one copy of the question paper and leaked it. The Hon’ble Supreme Court, however, had granted bail to the Petitioner vide order dated 18th January, 2023 subject to various conditions on the predicated offense mentioned in the First Information Report (FIR). Subsequently, the Respondent arrested the Petitioner again on 21st June, 2023, based on First Information Report No. 298/2021 (Second FIR). The Second FIR was registered under Sections 302, 365, and 120B of the IPC and Sections 3(2)(v) of the Scheduled Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989 (SC/ST Act). However, the Petitioner was not charge-sheeted under the SC/ST Act by the Respondent. Thus, the only Scheduled offense against the Petitioner under the Prevention of Money Laundering Act (PMLA) was with respect to Section 420 of the IPC.

HELD

The Hon’ble Supreme Court noted that the Petitioner was in custody for over a year, and the only offense against him was under section 420 of the IPC. Further ₹1.06 crore out of the sum of ₹1.2 crore were recovered. Further, on a specific query asked by the Court, the Counsel of the Respondent informed the Hon’ble Court that the case was pending at the stage of framing of charges, and twenty- four witnesses are yet to be examined, which would take a considerable amount of time. Thus, taking into consideration the time spent by the Petitioner in custody, along with the progress of the case, apart from the fact that the Petitioner was already on bail in the predicate offense, the Hon’ble Supreme Court held that rigors of section 45 of PMLA have to be relaxed. Further, directed the passport to be submitted before the Special Court with a list of assets and bank accounts that can be seized by the Enforcement Directorate.

Thus, the Petitioner was granted bail.

Society News

LEARNING EVENTS AT BCAS

1. Suburban Study Circle meeting on the topic of Recent Changes in GST as per 53rd GST Council Meeting & Union Budget 2024. Held on 2nd August, 2024; Venue: Bathiya & Associates LLP, Andheri

The Group Leader, CA Mrinal Mehta, crafted a detailed presentation that addressed the recent changes through which group had insightful discussions. He shared his views on the following:

  • Changes in GST Tax Rates
  • Clarifications on services
  • Waiver of interest and penalty
  • Monetary limit for appeals and reduction in pre-deposit amount
  • Input Tax Credit – Section 16(4)
  • Clarifications on corporate guarantee and
  • Other amendments and clarifications

The session saw active engagement from 20 participants.

2. Indirect Tax Laws Study Circle on Interpreting section 16 (4) of CGST Act, 2017. Held on 29th July, 2024; Venue: Zoom Platform

Group leader, CA Saurabh Jain, in consultation with Group Mentor, CA Rishabh Singhvi, prepared case studies covering various contentious issues around section 16 (4) of the CGST Act, 2017 and also dealt with the recent amendments proposed.

The presentation covered the following aspects for detailed discussion:

  • Whether section 16 (4) time limit applies to taking of credit in books of accounts or GSTR-3B
  • Whether the conditions imposed u/s.16 (4) are a substantial condition or procedural condition?
  • Whether the time limit prescribed u/s. 16 (4) applies to claim of ITC of tax paid on import of goods
  • Whether the time limit prescribed u/s 16 (4) applies to claim of ITC of tax paid on RCM (registered/unregistered)
  • How to interpret section 16 (4) in terms of ISD credits
  • Whether section 16 (4) applies in cases where the supplier has filed his GSTR-1 after the time limit prescribed therein

Around 60 participants from all over India benefitted while taking active part in the discussion. Participants appreciated the efforts of group leader& group mentor.

3. Lecture meeting on Direct Tax Law provisions of the Finance (No.2) Bill, 2024. Held on 27th July, 2024 at Yogi Sabagrah, Dadar

The Finance (No. 2) Bill, 2024 introduced various direct tax law provisions, including changes in tax rates, capital gains, buy-back of shares, charitable trusts, withholding requirements for partnerships, etc. While it aims for simplification, concerns arise over potential complications and inequities. Notably, the withdrawal of the Equalization Levy and Angel Tax provisions reflects a shift in tax policy. This public lecture meeting is the most awaited by our members, CA Fraternity, professionals and public at large. CA Pinakin Desai addressed the participants on the important provisions of the Finance (No. 2) Bill, 2024. He rated the budget as a satisfactory and also highlighted few points requiring further attention and simplification.

Some of the prominent takeaways and viewpoints from his lecture were:

  • The withdrawal of the Equalization Levy signals a strategic move towards implementing pillars one and two, indicating a shift in approach to international tax challenges.
  • Changes in tax rates and increase in standard deductions for salaried employees and a reduction in tax rates for foreign companies and capital gains aim to address equity in taxation.
  • Significant changes to capital gains taxation, which can impact both individual and corporate taxpayers. Listed securities of holding is now uniform with other securities and will turn long-term in 12 months. Short-term capital gains tax on listed securities has increased from 15% to 20%. These changes aim to simplify the capital gains tax framework but could lead to complexities and inequities for certain taxpayers.
  • The ease of doing business needs to be re-evaluated to ensure fairness for both residents and non-residents. Current provisions may impose undue burdens, particularly on partnership firms and their tax obligations.
  • The tax withholding obligations for partnership firms can lead to financial strain, especially when remuneration exceeds deductible amounts. This situation may result in penalties for non-compliance.
  • The new buy-back provisions effective from 1st October, 2024, classify buy-back payments as dividend income for shareholders, regardless of the company’s profit status. Shareholders face a challenge as the buy-back income is treated as dividends, with no deductions allowed for the cost of shares. This could lead to capital losses instead.
  • Reassessment proceedings for tax can now be conducted within a shorter period of five years, impacting how companies manage their tax strategies. This change emphasises the importance of timely compliance.
  • Significant steps are taken for charitable trusts by removing adverse provisions, particularly regarding mergers and exit tax. It alleviates previous concerns and fosters collaboration between trusts.
  • A significant change in the Black Money Act mandates that residents disclose foreign assets, with strict penalties for non-compliance, emphasizing the importance of transparency.
  • Amendments regarding tax refunds indicate a shift towards stricter compliance and potential delays for taxpayers.

The Lecture meeting was attended by around 350 participants at the venue, and have more than 18,000 viewers on YouTube. It was highly appreciated by the participants.

The readers can view the entire meeting at the following link:

YouTube Link: https://www.youtube.com/watch?v=iweDyhhFqNw

4. ITF Study Circle Meeting on “Pillar Two – Basics” Held on 22nd July, 2024; Venue: Zoom Platform

The group leader – K. Prasanna deliberated on the following topics:

  • Need of Pillar-2 and its developments in the International arena.
  • Conditions relating to the applicability of Pillar-2 – Globe rules.
  • Various concepts surrounding the Globe rules such as IIR, UTPR etc. with practical scenarios and case studies.

During the study circle meeting, the participants raised questions about their specific concerns. The session was highly informative and was a good base to start in-depth study and was attended by 55 participants.

5. Webinar on Filing of Income Tax Returns for AY 2024-25 Held on 2nd July, 2024; Venue: Zoom Platform

The Direct Tax Committee of BCAS organised a “Webinar on Filing of Income Tax Returns for AY 2024-25. CA Akshar Panchamia, the first speaker covered ITRs 1, 2, 3 and 4 wherein he explained the applicability of these ITRs to applicable assesses. There were some important amendments in the ITR like choosing the tax regime, mentioning the type of Bank Account, quoting the MSME number etc. which were highlighted. He also demonstrated instances where the details need to be mentioned correctly to avoid any undue disallowances. Schedule FA – Foreign Asset which is mainly applicable for Resident and Ordinarily Resident was explained in detail in his presentation.

CA Ronak Rambhia covered the ITRs 5, 6 and 7 wherein he explained the due dates applicable to each assessee. The pre-requisites while preparing the Tax Returns like the Annual Accounts, Audit Report, Bank details, registration numbers, GST Turnovers, etc. were taken into consideration along with important schedules like Schedule VDA — Virtual Digital Asset, SH-1 — Shareholders details, AL-1 — Asset Liability, etc.

The webinar gave the viewers practical insights about the Income Tax return filings, the latest amendments reflected in the forms and best practices to avoid mismatch in the ITR processing. Webinar was attended by around 280 participants.

YouTube Link: https://www.youtube.com/watch?v=X7qmz3H5HUY

6. 75 Hours Long Duration Study Course on Auditing Standards on the 75th Anniversary of BCAS Held in June from 14th March, 2024 to 14th June, 2024, Venue: Zoom Platform

BCAS has always been pioneer in equipping its members in particular and other stakeholders at large. To Commemorate 75th Year of existence of BCAS and to celebrate its Diamond Jubilee, Accounting & Auditing Committee organised a well-designed 75-hour long duration study course spanning more than 12 weeks. The Course was mainly held on Fridays and Saturdays for 3 hours each day totaling to 75 hours.

The main objective of designing this long duration course was to deep dive into the subjects affecting the audit fraternity and provide platform to the members in Industry and Practice to come together. It was focused on the practical challenges which crops up while implementing the complicated Accounting Standards. The course was segregated into three equal segments.

  • AS
  • IndAS
  • Assurance Standards

The course also included topics on Companies Act provisions, CARO, Schedule II, III, CSR, FRRB / NFRA observations, etc. The segments / modules were designed to give practical case study based insights to the participants on various topics.

The various sessions of the course generated lot of interactions between the participants and the respective faculties. The three month’s duration course was attended by 136 participants and was well received and the overall feedback from the participants was encouraging. The Participants were awarded Certificate of Participation for attending the course.

7. Corporate & Commercial Law Study Circle – Oppression & Mismanagement Held on 30th May, 2024; Venue: Zoom Platform

The Group leader – CS Gaurav Kumar explained the meaning of oppression and mismanagement, difference between oppression and mismanagement, the relevant provisions of the Companies Act 2013. The speaker discussed modes, methods and possible reasons of oppression and mismanagement, and discussed landmark case laws giving understanding of the relevant nitti-gritties.

He also touched upon arbitration as a possible alternative to prolonged and expensive litigation process. He enlightened the participants with the preventive measures to reduce the possibility of oppression and mismanagement. He threw light on the role a CA can play in the matters relating to oppression and mismanagement. Around 60 participants attended the meeting and it was well appreciated.

  1. Other Events & News:

BCAS Foundation’s Tree Plantation Drive 2024

On 4th August, 2024, the BCAS Foundation, in partnership with Keshav Srushti, organised the Miyawaki Forest Project 2024 at Ismail Yusuf College, Jogeshwari East. This initiative focused on environmental sustainability through the Miyawaki technique, a method that fosters rapid growth of dense, native forests.

Trustees of BCAS Foundation, spoke about the Foundation’s dedication to social and environmental causes, stressing the significance of projects that yield long-term benefits. The event was graced by CA Rashmin Sanghvi as the Chief Guest. A longstanding advocate for environmental causes within the BCAS Foundation, CA Sanghvi has been instrumental in driving such initiatives.

Neelkantan Aiyyar, Joint Secretary of Keshav Srushti, kicked off the event with an insightful briefing on the Miyawaki technique, emphasising its ecological benefits, such as enhanced carbon absorption and biodiversity support. Following this, Satish Modh, President of Keshav Srushti, highlighted the organisation’s commitment to nature conservation and rural development.

A special session followed, where participants engaged in a Bhu Devs Pooja to honour the Earth, followed by symbolic plantations. Around 100 saplings were planted during this session, with many of the trees planted by children. This act of nurturing young minds alongside young trees was a powerful reminder of the legacy we leave for the future. The event concluded with a sumptuous lunch, the sense of accomplishment and camaraderie was palpable, with participants leaving with a deeper understanding of their role in preserving the environment and a commitment to future initiatives.

Intervention on behalf of BCAS at Ad Hoc Committee Meeting for United Nations Framework Convention:

CA Radhakishan Rawal, core group committee member of International Tax Committee of BCAS, had an opportunity to place his views as a representative of BCAS and participate in the discussions at the Second Session of the Ad Hoc Committee to Draft Terms of Reference (ToR) for United Nations Framework Convention on International Tax Co-operation at a 15 days session held in New York. The ToR was approved by majority (110 in favour, 8 against and 44 abstaining member states). This is treated as a historical development but a small step of a long journey for establishing an inclusive and fair system of international taxation.

Date of Capitalisation of Property, Plant and Equipment

The date of capitalisation is very significant in the case of property, plant and equipment. This is the date on which the assessment of useful life and residual value is made, and depreciation commences. Other than in accounting, it has tremendous significance with respect to determining depreciation for tax purposes as well. Consider a simple situation, Mr X purchased a car but is unable to drive it, because he does not yet have a driving license. It takes him a year, to get a driving license, after which he starts running the car, which was lying idle till then. The question is whether the depreciation should commence on date of purchase of the car or the date when Mr X starts running the car. This article deals with this basic and other related questions.

QUERY

Energy Limited (Energy) has one engine that is part of a bigger machine and is being used to produce energy for the plant. Energy has a stand-by engine which is a backup to the first engine. The stand-by engine will be put to use only if the first engine fails or is otherwise rendered out of service. Though the stand-by engine is necessary to ensure continuity of production in the event of failure of the first engine; it is less likely that it will ever be put to use or used immediately on the date of its purchase. The useful life of the bigger machine is 50 years, and the first engine is 20 years. The useful life of the stand-by engine is likely to be much greater than 20 years, even after factoring technological obsolescence, because it will remain mostly idle — let’s say 25 years. Both the engines are of the same type and cost ₹2,50,000 each.

Further, assume, though the first engine was expected to be used for 20 years, it could be used only for 15 years due to some exceptional incident. After 15 years, the first engine was replaced with the stand-by engine.

Further, the first engine had no significant value and would have to be scrapped (the scrap value is ignored because it is immaterial). Energy uses the Straight-Line Method (SLM) of depreciation. The exceptional incident does not warrant any review or change in the useful life of the stand-by engine.

With these simple facts, Energy has the following questions?

1. What is the date of capitalisation of the stand-by engine and when does the depreciation commence? Should the depreciation commence when the first engine fails and the stand-by engine is installed and used within the bigger machine?

2. How is the first engine accounted for and depreciated?

3. How is the replacement of the first engine with the stand-by engine accounted for at the end of 15 years?

RESPONSE

Accounting Standard References in Ind AS 16 Property, Plant and Equipment

Definitions

Property, plant and equipment are tangible items that:

(a) are held for use in the production or supply of goods or services, for rental to others, or for administrative purposes; and (b) are expected to be used during more than one period.

Useful life is: (a) the period over which an asset is expected to be available for use by an entity; or (b) the number of production or similar units expected to be obtained from the asset by an entity.

Paragraph 8

Spare parts and servicing equipment are usually carried as inventory and recognised in profit or loss as consumed. However, major spare parts, stand-by equipment and servicing equipment qualify as property, plant and equipment when an entity expects to use them for more than one period.

Paragraph 13

Parts of some items of property, plant and equipment may require replacement at regular intervals. For example, a furnace may require relining after a specified number of hours of use, or aircraft interiors such as seats and galleys may require replacement several times during the life of the airframe. Items of property, plant and equipment may also be acquired to make a less frequently recurring replacement, such as replacing the interior walls of a building, or to make a non-recurring replacement. Under the recognition principle in paragraph 7, an entity recognises in the carrying amount of an item of property, plant and equipment the cost of replacing part of such an item when that cost is incurred if the recognition criteria are met. The carrying amount of those parts that are replaced is derecognised in accordance with the derecognition provisions of this Standard.

Paragraph 55

Depreciation of an asset begins when it is available for use, ie when it is in the location and condition necessary for it to be capable of operating in the manner intended by management. Depreciation of an asset ceases at the earlier of the date that the asset is classified as held for sale (or included in a disposal group that is classified as held for sale) in accordance with Ind AS 105 and the date that the asset is derecognised. Therefore, depreciation does not cease when the asset becomes idle or is retired from active use unless the asset is fully depreciated. However, under usage methods of depreciation the depreciation charge can be zero while there is no production.

Analysis and Conclusions

It may be noted that both the first engine and the stand- by engine are equipment in their own right. Since both the engines are used to generate electricity (as part of a bigger machine) and have a useful life beyond more than one accounting period, they will be classified as property, plant and equipment in accordance with the definition of property, plant and equipment and paragraph 8 enumerated above.

For the purposes of depreciation, both the first engine and stand-by engine are treated as separate equipment as suggested in paragraph 13 of the Standard and will be depreciated as per their respective useful life. A point to be noted is that though the first engine and the stand- by engine are the same, they have different useful lives depending on the purpose and how they are used.

Now let us proceed to answer the questions raised.

Ind AS 16 defines property, plant and equipment as tangible items that: (i) are held for use in the production or supply of goods or services, for rental to others, or for administrative purposes, and (ii) are expected to be used during more than one period. However, it is not necessary that their use should be regular. Therefore, stand-by engine should be capitalised and depreciated from the date it becomes available for use (i.e., when it is in the location and condition necessary for it to be capable of being operated in the manner intended by the management).

In this case, intended use of the standby-engine is to act as back-up for the first engine. Hence, the company should start depreciating stand-by engine from the day it is ready for the use as back-up. The company cannot postpone the commencement of depreciation till the date stand-by engine is actually put to use for producing energy. Since the stand-by engine is available for use immediately, its depreciation should start from the date of purchase itself.

The stand-by engine will be depreciated over its useful life which is 25 years starting from the date of purchase. Therefore, each year it will be depreciated by ₹10,000 (250,000/25), starting from the date of purchase. This is in accordance with paragraph 55 of the Standard enumerated above.

The first engine will be depreciated over its useful life, i.e., 20 years, which works out to ₹12,500 (250,000/20) each year. A point to be noted is that though the first engine and the stand-by engine are the same, they have different useful lives and will be depreciated according to their respective useful lives.

From the facts as stated in the case, the first engine is replaced by the stand-by engine at the end of 15 years, due to some exceptional situation. The written down value of the first engine at the end of 15 years is ₹62,500 (250,000 less 12,500 * 15 years). In accordance with paragraph 13 of the Standard, this amount will be derecognised and debited to the profit or loss account.

The stand-by engine will continue to be depreciated at ₹10,000 each year, assuming there is no change in the assumption regarding its useful life.

MISCELLANEA

1 . TECHNOLOGY

Surge in ‘Shadow AI’ Accounts Poses Fresh Risks to Corporate Data

The growing use of artificial intelligence in the workplace is fuelling a rapid increase in data consumption, challenging the corporate ability to safeguard sensitive data.

A report released in May from data security firm Cyberhaven, titled “The Cubicle Culprits”, sheds light on AI adoption trends and their correlation to heightened risk. Cyberhaven’s analysis drew on a dataset of usage patterns from three million workers to assess AI adoption and its implications in the corporate environment.

The Cubicle Culprits report reveals the rapid acceleration of AI adoption in the workplace and use by end users that outpaces corporate IT. This trend, in turn, fuels risky “shadow AI” accounts, including more types of sensitive company data. Products from three AI tech giants — OpenAI, Google, and Microsoft — dominate AI usage. Their products account for 96 per cent of AI usage at work.

According to the research, workers worldwide entered sensitive corporate data into AI tools, increasing by an alarming 485 per cent from March 2023 to March 2024. However, only 4.7 per cent of employees at financial firms, 2.8 per cent in pharma and life sciences, and 0.6 per cent at manufacturing firms use AI tools.

A significant 73.8 per cent of ChatGPT usage at work occurs through non-corporate accounts. Unlike enterprise versions, these accounts incorporate shared data into public models, posing a considerable risk to sensitive data security.

A substantial portion of sensitive corporate data is being sent to non-corporate accounts. This includes roughly half of the source code (50.8 per cent), research and development materials (55.3 per cent) and HR and employee records (49.0 per cent). Data shared through these non-corporate accounts are incorporated into public models.

This trend indicates a critical vulnerability. Ting said that non-corporate accounts lack the robust security measures to protect such data. AI adoption rates are rapidly reaching new departments and use cases involving sensitive data. Some 27 per cent of data that employees put into AI tools is sensitive, up from 10.7 per cent a year ago. For example, 82.8 per cent of legal documents employees put into AI tools went to non-corporate accounts, potentially exposing the information publicly.

Some companies are clueless about stopping the flow of unauthorised and sensitive data exported to AI tools beyond IT’s reach. They rely on existing data security tools that only scan the data’s content to identify its type.

Educating workers about the data leakage problem is a viable part of the solution if done correctly. Most companies have rolled out periodic security awareness training.

(Source: technewsworld.com, dated 26th July, 2024)

 

2. ENVIRONMENT

Earth ends 13-month streak of record heat: Here’s what to expect next

From June 2023 until June 2024, air and ocean surface water temperatures averaged a quarter of a degree Celsius higher than records set only a few years previously. Air temperatures in July 2024 were slightly cooler than the previous July (0.04°C, the narrowest of margins) according to the EU’s Copernicus Climate Change Service. July 2023 was in turn 0.28°C warmer than the previous record-hot July in 2019, so the remarkable jump in temperature during the past year has yet to ease off completely. The warmest global air temperature recorded was in December 2023, at 1.78°C above the pre-industrial average temperature for December – and 0.31°C warmer than the previous record.

Global warming has consistently toppled records for warm global average temperatures in recent decades, but breaking them by as much as a quarter of a degree for several months is not common. The end of this streak does not diminish the mounting threat of climate change.

So what caused these record temperatures? Several factors came together, but the biggest and most important is climate change, largely caused by burning fossil fuels.

Temperatures typical of Earth 150 years ago are used for comparison to measure modern global warming. The reference period, 1850–1900, was before most greenhouse gases associated with global industrialisation – which increase the heat present in Earth’s ocean and atmosphere – had been emitted.

July 2024 was 1.48°C warmer than a typical pre-industrial July, of which about 1.3°C is attributable to the general trend of global warming over the intervening decades. This trend will continue to raise temperatures until humanity stabilises the climate by keeping fossil fuels in the ground where they belong. But global warming doesn’t happen in a smooth progression. Like UK house prices, the general trend is up, but there are ups and downs along the way.

Behind much of the ups and downs is the El Niño phenomenon. An El Niño event is a reorganisation of the water across the vast reaches of the Pacific Ocean. El Niño is important to the workings of worldwide weather as it increases the temperature of the air on average across all of Earth’s surface, not only over the Pacific. Between El Niño events, conditions may be neutral or in an opposite state called La Niña that tends to cool global temperatures. The oscillation between these extremes is irregular, and El Niño conditions tend to recur after three to seven years.

A plausible scenario is that global temperatures will fluctuate near the 1.4°C level for several years, until the next big El Niño event pushes the world above 1.5°C of warming, perhaps in the early 2030s.

The Paris agreement on climate change committed the world to make every effort to limit global warming to 1.5°C, because the impacts of climate change are expected to accelerate beyond that level.

The good news is that the shift away from fossil fuels has started in sectors such as electricity generation, where renewable energy meets a growing share of rising demand. But the transition is not happening fast enough, by a large margin. Meeting climate targets is not compatible with fully exploiting existing fossil-fuel infrastructure, yet new investments in oil rigs and gas fields continue.

Headlines about record breaking global temperatures will probably return. But they need not do so forever. There are many options for accelerating the transition to a decarbonised economy, and it is increasingly urgent that these are pursued.

(Source: business-standard.com, dated 20th August, 2024)

Why climate change might hamper your fish consumption

United Nations Food and Agriculture Organisation (FAO) confirmed that fish stocks are headed towards a significant decline, primarily due to climate change.

For starters, elevated carbon dioxide (CO2) levels are making the oceans more acidic, posing a survival challenge for something called phytoplanktons. These are tiny organisms that are also a primary food source for small fish. So, as phytoplankton struggle with elevated CO2 levels, the small fish find it harder to access the food they need.

Not just that. Warmer waters create low-oxygen “dead zones” where marine life struggles to survive. Additionally, rising sea temperatures are pushing fish towards cooler waters, disrupting their growth and reproduction.

And, as if that weren’t enough, the loss of coastal habitats like coral reefs and mangroves is depriving fish of their breeding grounds and shelters. But how are prokaryotes about to add to this trouble? After all, aren’t they supposed to strike a balance in the ocean?

You see, the real culprit here, again is climate change. Because as climate change warms up our oceans, prokaryotes become more dominant. And because they are adaptable, they can handle climate change better than larger marine creatures. For instance, every degree of ocean warming pushes the total weight of prokaryotes down by just 1.5 per cent, but larger marine creatures like fish could see a larger drop of 3 per cent to 5 per cent.

And here’s the catch – as climate change progresses, it will lead to prokaryotes taking over the ocean. As their population rises in comparison to other marine life, they would also alter the availability of essential nutrients in the ocean. So, if prokaryotes consume more nutrients that other marine creatures – like fish – rely on, it could disrupt the balance of marine ecosystems. And it could further contribute to the decline in fish populations.

So, what’s the big issue with that, you ask?

Well, it could very well affect the enormous fishing industry.

You see, fish indisputably form a vital part of the global food supply, serving as a primary source of protein for around 3 billion people. And if we were to look at the money involved, the global seafood industry was valued at $500 billion in 2022.

So, if fish populations start to dwindle, it could very well mean less industry revenue and higher consumer prices.

Take India, for instance. In many states, especially in the northeastern and eastern regions, as well as Tamil Nadu, Kerala and Goa, over 90 per cent of the population consumes fish. Coastal communities too depend heavily on fisheries, particularly in states like Kerala, Tamil Nadu and West Bengal.

And almost 3.8 million people living along the coast depend on fishing for their livelihood. The industry also plays a significant role in our economy, contributing around $8.1 billion in foreign exchange through marine exports annually.

India is also a major player in the global seafood export market, with its largest buyers being China, the US, the EU, Southeast Asian countries and Japan. In fact, the government hit an all-high in seafood exports, raking in ₹63,969.14 crores during the financial year 2022–23.

And India has even set an ambitious goal to increase seafood exports to R1 trillion in the next two years.

But if prokaryotes continue to dominate the oceans, this dream could be jeopardised. They will continue to multiply, corner resources, produce more CO2, accelerate climate change even further and really decimate marine population.

So yeah, it’s a vicious cycle. And it shows us how climate change could have impacts beyond what we can fathom.

The real question is: Can we adapt fast enough to protect both our plate and our planet?

Well, we will probably have to wait and see.

(Source: finshots.in, dated 22nd August, 2024)

Regulatory Referencer

I. DIRECT TAX: Spot light

1. Non-applicability of higher rate of TDSITCS as per provisions of section 206AAI and 206CC of the Incometax Act, 1961, in the event of death of deductee / collectee efore linkage of PAN and Aadhaar – Circular No. 08/2024 dated 5th August, 2024

CBDT had provided time up to 31st May, 2024 for linkage of PAN and Aadhaar for the transactions entered into up to 31st March, 2024 so as to avoid higher deduction /collection of tax under section 206AA/206CC of the Act.

CBDT has now provided that in cases where higher rate of TDS/TCS was attracted under section 206AA/206CC of the Act pertaining to the transactions entered into up to 31st March, 2024 and in case of demise of the deductee / collectee on or before 31st May, 2024 i.e. before the linkage of PAN and Aadhaar could have been done, there shall be no liability on the deductor/collector to deduct /collect the tax under section 206AA/206CC, as the case may be. The deduction / collection as mandated in other provisions of Chapter XVII-B or Chapter XVII-BB of the Act, shall, however, be applicable.

II. COMPANIES ACT, 2013

1. MCA extends the time for filing of Web-Form PAS-7 without additional fees up to 5th August, 2024: As per the Companies (Prospectus and Allotment of Securities) Rules, 2014, every public company which had issued share warrants before commencement of Companies Act 2013 and not converted into shares is required to inform the ROC about details of share warrants in Form PAS-7. Web-Form PAS-7 is now deployed on MCA 21 Portal on V3. The said form can be filed without payment of additional fees up to 5th August, 2024 [General Circular No. 5/2024, dated 6th July, 2024]

2. MCA revises MSME Form-1 with enhanced disclosures for reporting payments pending over 45 days to micro / small enterprises: MCA has notified Specified Companies (Furnishing information about payment to micro and small enterprise suppliers) Amendment Order, 2024. Now, only those specified companies with payments pending to any micro or small enterprises for more than 45 days from the date of acceptance / date of deemed acceptance of goods or services must furnish information in MSME Form-1. [Notification No. S.O. 2751(E), dated 15th July, 2024]

3. MCA allows directors to update mobile numbers and email IDs anytime during the Financial Year on payment of a fee: The MCA has notified an amendment to Rule relating to Directors’ KYC. Now if an individual intends to update his personal mobile number or email address again at any time during the financial year in addition to the other updations allowed, he shall update the same by submitting an e-form DIR-3KYC on the payment of fees of ₹500. [Notification No 8/4/2018-CL-I, dated 16th July ,2024]

4. MCA notifies e-Form MGT-6 for MCA V3 Portal: The MCA has notified amendment in Companies (Management and Administration) Rules, 2014. Now, the Form MGT-6 has been substituted with the new format for MCA V3 Portal. New feature of PAN validation of shareholders and beneficial owners has been introduced. [Notification No. G.S.R. 403, dated 15th July, 2024]

5. MCA notifies e-Form BEN-2 for MCA V3 Portal: MCA has notified an amendment to the Companies (Significant Beneficial Owners) Rules, 2018. Form BEN-2 has been substituted with the new format for the MCA V3 Portal. The new format allows users to fill out a form to change an existing Significant Beneficial Ownership or update the particulars of existing Significant Beneficial Ownership under Section 90 of the Companies Act. [Notification G.S.R. No. 404, dated 15th July, 2024]

6. Companies must now remit amounts to the IEPF Authority online within 30 days of the due date: The MCA has notified the Investor Education and Protection Fund Authority (Accounting, Audit, Transfer and Refund) Amendment Rules, 2024. As per the amended norms, companies must remit any amount required to be credited to the Investor Education and Protection Fund (IEPF) online to the Authority within 30 days from the date it becomes due. [Notification G.S.R. No. 414(E), dated 16th July, 2024]

7. MCA merges Form IEPF-3 with IEPF-4 and Form IEPF-7 with IEPF-1: The MCA has merged Form IEPF-3 with Form IEPF-4 and Form IEPF-7 with IEPF-1 in MCA Version 3. The revised forms will be made STP (straight-through process). Further, various amounts that need to be transferred to the IEPF Authority as due on shares transferred by companies can now be paid online [General Circular No. 07/2024, dated 17th July, 2024]

8. MCA waives of additional fees on filing of IEPF e-forms due to migration to MCA V3 portal: In view of the transition of forms from MCA 21 V2 to MCA 21 V3, the MCA has waived additional fees on the filing of various IEPF e-forms (IEPF -1, IEPF-1A, IEPF-2, IEPF-4) and e-verification of claims filed in e-form IEPF-5 till 16th August, 2024. Similarly, a one-time relaxation for filing e-verification has also been provided till the said date. [General Circular No. 06/2024, dated 16th July, 2024]

III. SEBI

1. SEBI raises ‘Basic Services Demat Account’ limit from ₹2 lakh to ₹10 lakh: Earlier, SEBI provided a “Basic Services Demat Account” (BSDA) facility for eligible individuals. Individuals can opt for BSDA subject to a condition that the value of securities held in demat account shall not exceed ₹2 lakh. SEBI has now raised this limit to ₹10 lakh. BSDA is a special category of demat account that can be opened/held only by individual investors subject to certain conditions. [Circular No. SEBI/HO/MIRSD/MIRSD-PoD1/P/CIR/2024/91, dated 28th June, 2024]

2. SEBI amends Stock Brokers Regulations: SEBI has notified an amendment to SEBI (Stock Brokers) Regulations, 1992. Accordingly, KMP and senior management of stock broker must put in place adequate systems for surveillance of trading activities & internal control systems to ensure compliance with all the regulatory norms for the detection, prevention & reporting of potential fraud or market abuse. [Notification No. SEBI/LA D-NRO/GN/2024/186, dated 27th June, 2024]

3. SEBI mandates email as default mode for dispatching CAS and holding statements by Depositories, MF-RTAs, and DPs: Considering the increasing reach of digital technology and to streamline the regulatory guidelines on mode of dispatch of account statements, SEBI has now decided that email shall be default mode of dispatch for Consolidated Account Statement (CAS) by Depositories, Mutual Fund – Registrar and Transfer Agents (MF-RTAs) and holding statement by Depositories Participant (DP). [Circular No. SEBI/HO/MRD-POD2/CIR/P/2024/93, dated 1st July, 2024]

4. SEBI reduces face value for private placement of debt securities / non-convertible preference shares to ₹10,000: SEBI has reduced the face value for issuing debt security or non-convertible redeemable preference shares on a private placement basis from ₹1 lakh to ₹10,000, subject to certain conditions. [Circular No. SEBI/HO/DDHS/DDHS-POD-1/P/CIR/2024/94, dated 3rd July, 2024]

5. L isted entities to publish a window advertisement in newspapers referring QR code & website link for Financial Results: SEBI has notified the SEBI (Listing Obligations and Disclosure Requirements) (Second Amendment) Regulations, 2024. Now listed entities are required to publish only a window advertisement in the newspapers that refers to a Quick Response Code and the link to listed entity’s website and stock exchanges, where such results are available and capable of being accessed by investors subject to certain conditions. [Notification No. F. NO. SEBI/LA D-NRO/GN/2024/189; dated 8th July, 2024]

6. SEBI amends REITs and InvITs Regulations; SEBI has notified SEBI (InvITs) (Second Amendment) Regulations and SEBI (REITs) (Second Amendment) Regulation, 2024. A framework for ‘unit-based employee benefit scheme’ has been inserted. As per the new framework, the unit-based employee benefit scheme must be in the nature of the employee unit option scheme. Also, SEBI has inserted a definition of “employee unit option scheme’ which refers to a scheme under which a manager grants unit options to its employees via employee benefit trust. [Notification No. SEBI/LA D-NRO/GN/2024/192 & 193, dated 9th July, 2024]

7. Insider trading restrictions for Mutual Fund units to be enforced from 1st November, 2024: SEBI has notified 1st November, 2024, as the effective date for the enforcement of norms relating to restrictions on communication about and trading by insiders in the units of mutual funds. Now an insider cannot trade in the units of a mutual fund scheme when in possession of UPSI, which may have a material impact on the net asset value of a scheme or on the interest of the unit holders of the scheme. [Notification No. SEBI/LA D-NRO/ GN/2024/195, dated 25th July, 2024]

IV. FEMA

1. RBI issues master direction on Overseas Investment

RBI had issued a new Overseas Investment Regime in August 2022 with Overseas Investment Rules and Overseas Investment Regulations. Further, RBI had also issued the Overseas Investment Directions as operational directions for AD Banks. RBI has now issued the Master Direction on Overseas Investment (OI). This Master Direction compiles the August 2022 Directions and the amendment in these directions made in June 2024. Like the earlier Directions, these are addressed to the AD Banks as instructions to be followed with a view to implement the aforesaid OI Rules and OI Regulations. It should be noted that unlike other Master Directions, this Master Direction only compiles the OI Directions and amendments thereto. It does not cover the OI Rules and OI Regulations and thus does not act as a stand-alone comprehensive document. Those referring to this Master Direction should refer to the OI Rules and OI Regulations too for a complete understanding of all the applicable provisions.

[FED Master Direction No. 15/2024-25 issued on 24th July, 2024]

2. RBI restricts FPIs from investing in new 14-year and 30-year G-Secs under Fully Accessible Route

Earlier, RBI vide circular dated 30th March, 2020, introduced the ‘Fully Accessible Route’ (FAR), where certain specified categories of Central Government securities (G-Secs) were opened fully for non-resident investors without any restrictions, apart from being available to domestic investors. RBI has now excluded the government securities of 14-year and 30-year tenors from the FAR for investment by foreign portfolio investors (FPIs). Existing stocks of these Government Securities shall continue to be available under the FAR for investments by non-residents in the secondary market. Further, investments by FPIs in new Government Securities of these tenors will be as per investment limits prescribed under Directions to Schedule 1 to the Foreign Exchange Management (Debt Instruments) Regulations, 2019 as also the ‘Voluntary Retention Route’ (VRR) for FPIs.

[Circular No. RBI/2024-25/56 FMRD. FMID. MO. 03/14.01.006/2024-25 dated 29th July, 2024]

3. RBI allows non-residents to trade Sovereign Green Bonds in IFSC

RBI has notified an amendment to Schedule 1 of FEM (Debt Instruments) Regulations, 2019. Now, persons resident outside India can purchase / sell Sovereign Green Bonds issued by the Government of India by maintaining a securities account with a depository in IFSC in India. The amount of purchase consideration must be paid out of inward remittance from abroad via banking channels or out of funds held in a foreign currency account maintained in accordance with the regulations issued by the RBI and / or the IFSCA.

[Foreign Exchange Management (Debt Instruments) (Third Amendment) Regulations, 2024, Notification No. FEMA.396(3)/2024-RB]

Contingent Liabilities and MRL – Management Representation Letter

Shrikrishna : Arjun, in past years, during these months of August and September, you used to look worried. But now, you are not only worried but also afraid! What is the matter?

Arjun : Till now, our soldiers used to get killed in terrorists’ attacks. That is why I was worried. But nowadays our CAs are getting killed by Regulators.

Shrikrishna : What do you mean.

Arjun : Nowadays, there is always some news about suspension of membership of so many CAs; and fines of crores of rupees being imposed by the Regulator. That is making me afraid.

Shrikrishna : I understand.

Arjun : Bhagwan, you always say everything is the result of your karma, you have propounded the theory of karma.

Shrikrishna : True. Doing karma is in your hands but giving fruits is my prerogative.

Arjun : Then Lord, tell me, are the karmas of CAs really so bad? Are they sinners?

Shrikrishna : Arjun, these punishments are partly for doing wrong karma; but mainly for not doing the karma expected from you!

Arjun : Meaning….?

Shrikrishna : See, your Institute always keeps on issuing detailed guidance on so many things as to how to perform an audit. But most of you take it lightly. You just don’t care to follow them.

Arjun : Lord, these standards are so boring and complicated that it is a big burden on us. And the Managements are least interested in following them. They don’t see any value addition in them. And they firmly believe that we do it for our safety and hence, it warrants
no remuneration.

Shrikrishna : But many simple standards also you don’t follow; like giving engagement letter, third-party evidence obtaining proper Management Representation Letter (MRL) and examining secretarial records, etc.

Arjun : But Lord, there is no co-operation from clients. I am talking of small- and medium-sized enterprises /companies. Big corporates may be having qualified staff.

Shrikrishna : Arjun, this is an endless discussion. Let me ask you, do you ever enquire about contingent liabilities?

Arjun : How will we know? We go only by the books of account. If these liabilities are not appearing in books, Management should tell us.

Shrikrishna : That’s your mistake. It is your duty to ask. You people have a habit of carrying forward everything ‘as per last year’. You are not able to visualise anything beyond the books.

Arjun : Tell me, how to go about it.

Shrikrishna : Your working papers should specifically contain a note on contingent liabilities. You should visualise and guess what disputes or litigations are going on. Tax litigations are very common. Then, there could be show cause notices under labour laws, other economic laws, penal consequences of defaults which are noticed.

Arjun : Yes, Lord. We hardly pay any attention to this aspect of the balance sheet. And we do not have any confirmation from the Management either.

Shrikrishna : That’s what I am saying. You take MRL very lightly. It should be prepared very carefully. I know, you only prepare it on behalf of the Management. That’s a good opportunity for you to put many points to ensure your safety. Don’t prepare it mechanically. MRL should contain the details of all pending disputes and estimated liabilities on those account along with various other aspects of the Client’s business that may have impact on his business.

Arjun : I agree, Lord.

Shrikrishna : Your Institute has provided specific guidance on MRL. Please read it and protect yourself.

Arjun : Bhagwan, from this year, I will pay special attention to these points. Thank you for opening my eyes.

This dialogue is based on the general precautions to be taken in audit in respect of contingent liabilities and MRL.

Interesting Productivity Tools at the Workplace and For Personal Well-Being

Reading Mode in Google Chrome

Many websites, especially news and general interest websites, which are free, carry a large number of advertisements to help pay for the content. It becomes irritating to wade through the ads to read the main content.

Google Chrome has now introduced — Reading Mode — to take care of this. So now, whenever you are on a website with many ads and you wish to focus on the text content of the website, just enable Reading Mode and you can read the content as plain text.

Reading Mode can be enabled in two ways: on a page with lots of text, just right-click on any text area and you will find an option in the list saying, “Open in Reading Mode”. Alternatively, on the top right hamburger menu, you can click on “More Tools” and then click on “Reading Mode”. Under both options, a panel will pop up on the right, with plain text.

You may resize the panel, change the text to your preferred font, change the font size, and change the background color scheme to your liking. You can also choose the line spacing and letter spacing for easy reading comfort. And, if you want to browse through multiple pages on the same site, you even have an option to pin the Reading Mode, so that it stays throughout your stay on that site.

This is free and available on all the latest updated versions of Chrome.

Try it, you will really enjoy reading stuff online for hours!

LocalSend: FOSS Airdrop

We all have multiple devices at home / office and very often, we need cross-platform compatibility for transferring files between devices. The files could be audio, video, text or images.

LocalSend resolves this problem very smoothly. Just install it on multiple devices on the same wi-fi network and enable send / receive. The app is very simple to use. It connects in peer-to-peer mode and does not need any external server.

You can easily transfer files from Windows Computer to Linux Computer to Mac to iPhone to Android and to Android TV too! You can enable / disable encryption. If encryption is disabled, the speed increases dramatically. And there is no limit to the file size.

A very simple tool that is open-source and crossplatform and totally free to use — no ads, no tracking no hidden charges!

Try it, you may not need anything else for local file
transfer!

https://localsend.org/

Tooly – Tiny Tools Collection

Tooly is a very useful app that contains a lot of tools for students, teachers, developers, or office staff. It offers text tools, calculation tools, color tools, image tools, and other offline tools to make your work easier and safer.

Text Tools provide stylish fonts and multiple styles to change and enhance your text. Image tools can help you change the structure of your image. You can easily resize images, crop them, touch them up, and edit them. Calculation Tools have algebra, geometry, area, perimeter, or shape-related information in 3D or 2D shapes. Unit Converter contains various conversions for length, weight, area, temperature, etc. Programming tools enable you to create an organized page for your
codes.

You can access all kinds of tools quickly using the search bar inside the app.

Tooly is a nifty app that puts together multiple tools in one place in an easy-to-use app.

Android: https://bit.ly/4f2lCq2

AI Calorie Counter — Lose It!

AI Calorie Counter is your ultimate diet tracker and weight loss companion, powered by ChatGPT. It’s not just a calorie counter, it’s a comprehensive food tracker designed to help you lose it, achieve a calorie deficit, and maintain a healthy diet.

You can easily track your daily calorie intake – just tell the app what you have eaten, and it will calculate the calories for you. You can even take a pic of your meal and it should be able to recognize the food items for you!

Chat casually with your AI assistant for dietary advice – you can just ask it to recommend a dinner idea based on the lunch you have taken and you will get instant suggestions!

Once you have logged your meals, you can receive a detailed analysis of the components and the calories consumed. Set the target weight to be achieved and it will guide you on your progress day by day.

An interesting daily AI-assisted Calorie Counter which not only records your progress but also reminds you to log your meals so that you do not miss out on anything you take in!

Android: https://bit.ly/3S5gEit

iOS: https://apple.co/4f3RvP6 (Similar)

Article 13(4) of India-Mauritius DTAA — on facts, assessee was not a conduit company and hence, qualified for exemption of capital gains under Article 13(4) of India-Mauritius DTAA

[2024] 164 taxmann.com 440 (Delhi – Trib.)

India Property (Mauritius) Company-II vs. ACIT

ITA No:1020/Del/2023

A.Y.: 2018–19

Dated: 18th July, 2024

8. Article 13(4) of India-Mauritius DTAA — on facts, assessee was not a conduit company and hence, qualified for exemption of capital gains under Article 13(4) of India-Mauritius DTAA.

FACTS

The assessee is a company incorporated in Mauritius. It is engaged in the business of investment activities. The assessee company claimed to be holding valid tax residency certificate (‘TRC’) and Global Business License-I (‘GBL-I License’) issued by Mauritius Financial Services Commission. During the relevant year, the assessee had transferred shares of certain Indian companies and earned long-term capital gains. Having regard to provisions of section 90(2) of the Act, read with Article 13(4) of India-Mauritius DTAA, the assessee claimed the same as exempt and filed its return of income declaring NIL income.

Return of income of the assessee was selected for scrutiny and pursuant to the directions of DRP, the AO denied DTAA benefits. In reaching his conclusion, the AO had examined fund flow, structure, business operation and other aspects of the assessee. The AO observed that on the principle of doctrine of substance over form and principal purpose test, the assessee did not qualify for benefit under clause 13(4) of India-Mauritius DTAA because of following reasons.

(a) The assessee had acquired the shares through its group company and immediately upon receipt of sale consideration, the assessee transferred the funds to another group company.

(b) The assessee had not incurred any expense on wages or salaries.

(c) The assessee did not have any physical assets such as land and building nor did it pay any rent.

(d) Though the assessee had 7 directors, no remuneration was paid to them during the relevant year. Further out of 7 directors, 4 directors were non-residents and 2 directors were executive directors of group company. One executive director of group company was attending board meetings by teleconference.

(e) The directors who were based in Mauritius did not have any effective say in management. The adviser company and sub-adviser company were both based outside Mauritius. Thus, the effective control and management of the assessee was outside Mauritius.

(f) The assessee has argued that it holds a valid TRC and as per Circular No.789 dated 13th April, 2000, and as per Supreme Court decision in UOI vs. Azadi Bachao Andolan [2003] 263 ITR 706 (SC) and other judicial precedents, DTAA benefits should be granted on the basis of TRC issued by Mauritius revenue authorities. However, subsequent judicial precedents and decisions have held that TRC is not conclusive in deciding tax residency and granting of benefit under DTAA.

HELD

ITAT held that the assessee is the beneficial owner of income on account of the following facts:

  • The assessee had made investments long time ago. Even after disinvestment from the said companies, it continued to hold substantial investments.
  • In its decision in Vodafone BV, Bombay High Court had made a conscious distinction between companies which were without any commercial substance and were established for investments, and those which were interposed as owner of shares in India at the time of disposal of shares to a third party, solely with a view to avoid tax.
  • The AO has nowhere alleged on the basis of any evidence that any investment flowing from India was received for creating the assessee. The assessee had held investments for over five years before it transferred them. The assessee had earlier also made investments and had sold them and even now held investments in various companies. The assessee was beneficially and legally holding the investments in its own name. On facts, it could not be called a fly-by-night operator created merely for purpose of tax avoidance.
  • The genuineness of the activities of assessee could not merely be questioned on the basis that Directors were not residents of Mauritius or that there were no operational expenses or no remuneration was paid to directors.
  • Revenue cannot question genuineness of business operations of an assessee without establishing that administrative activities were sham. The assessee had validly discharged its burden by establishing that the external service provider had been outsourced and it had paid for their services. It is the wisdom and discretion of the assessee as to how it should conduct its day-to-day activities.
  • The AO sought to establish that the assessee was a conduit company by alleging that investment funds were immediately transferred to the assessee before investment, and sale consideration received by the assessee was immediately transferred in the form of share buyback and dividend. However, since the assessee is an investment fund, such transactions are normal. What is material is how long the investments were held and whether the investments had commercial expediency. In his order the AO has reproduced the resolutions of the assessee indicating why the investments were being sold and how the sale proceeds were to be distributed to the investors. Conduit company could not be presumed merely because sale consideration was immediately transferred as the invested funds were to be returned to investors with gains made.
  • The commercial rationale for incorporating the assessee in Mauritius was not for tax avoidance but to attract funds from different jurisdictions for investment in India. In its decision in Azadi Bachao Andolan case, Supreme Court has mentioned that when endeavour of Government of India is to facilitate investment in joint venture and infrastructure projects for the benefit of economy, then attributing malice to investment funds like the assessee is not justified. The AO has not brought any evidence on record to rebut the statutory presumption of genuineness of business activity of the assessee on the basis of TRC.
  • Accordingly, the Tribunal allowed the appeal in favour of the assessee.

S. 12A, 13 — CIT(E) cannot deny registration under section 12A by invoking section 13(1)(b) since section 13 can be invoked only at the time of framing assessment and not at the time of grant of registration

(2024) 165 taxmann.com 141 (Ahd Trib)

Bargahe Husaini Trust vs. CIT

ITA No.: 826(Ahd) of 2023

A.Y.: N.A.

Date of Order: 22nd July, 2024

41. S. 12A, 13 — CIT(E) cannot deny registration under section 12A by invoking section 13(1)(b) since section 13 can be invoked only at the time of framing assessment and not at the time of grant of registration.

FACTS

The assessee-trust was granted provisional registration under section 12A on 24th January, 2022. Thereafter, it filed application for grant of final registration in Form 10AB on 18th March, 2023.

On perusal of the application, the CIT(E) observed that the objects of the applicant were for the benefit of a particular community or caste, that is, Khoja Shia Ishna Ashari Samaj, and hence, covered by the disallowance under section 13(1)(b). He, therefore, rejected the application for final registration under section 12A.

Aggrieved, the assessee filed an appeal before ITAT.

HELD

Noting various judicial precedents including that of jurisdictional High Court / Tribunal, the Tribunal held that provisions of section 13 can be invoked only at the time of framing assessment by AO and not at the time of grant of registration under section 12A by CIT(E). Accordingly, the appeal of the assessee-trust was allowed and the matter was restored to the file of CIT(E) for de-novo consideration.

S. 12A / 12AB — Where the show cause notice was issued on 6th October, 2022, CIT(E) could not have cancelled registration retrospectively with effect from 1st April, 2014 in so far as section 12AA /12AB do not provide for cancellation of registration with retrospective effect

(2024) 165 taxmann.com 39(Cuttack Trib)

Maa Jagat Janani Seva Trust vs. CIT

ITA No.: 248(Ctk) of 2023

Date of Order: 16th July, 2024

40. S. 12A / 12AB — Where the show cause notice was issued on 6th October, 2022, CIT(E) could not have cancelled registration retrospectively with effect from 1st April, 2014 in so far as section 12AA /12AB do not provide for cancellation of registration with retrospective effect.

FACTS

The assessee trust was granted registration under section 12A on 21st May, 2014, w.e.f. 1st April, 2013. It had also filed Form 10A to get re-registration under section 12A and Form 10AC was issued granting registration for the period from AY 2022-23 to AY 2026-27 vide an order dated 5th April, 2022.

Subsequently, a show cause notice was issued by CIT(E) to the assessee on 6th October, 2022 wherein the assessee was asked to explain as to why registration should not be cancelled. The assessee responded from time to time; however, CIT (E) held that the assessee had not submitted any categorical explanation or reply to the show cause notice and cancelled the registration under section 12AA with retrospective effect from 1st April, 2014.

Aggrieved, the assessee filed an appeal before ITAT.

HELD

The Tribunal observed that:

(a) A perusal of the order cancelling the registration showed that CIT(E) had not given any reason for rejecting various explanation given by the assessee to various show-cause notices issued.

(b) In any case, the show cause notice for cancellation of registration having been issued on 6th October, 2022, CIT (E) could not have cancelled registration retrospectively with effect from 1.4.2014 insofar as the provisions of section 12AA/12AB do not provide for the cancellation of registration with retrospective effect, as held by the Tribunal in Amala Jyothi Vidya Kendra Trust vs. PCIT, (2024) 206 ITD 601 (Bangalore Trib).

Accordingly, the Tribunal cancelled the order of CIT(E) and allowed the appeal of the assessee.

S. 45 — Revaluation of asset held by partnership firm and crediting amount of said revaluation to partners’ capital account is transfer taxable section45(4) and the fair market value fixed by stamp authorities should be taken as deemed value of consideration for purpose of section 48

(2024) 165 taxmann.com 261 (Hyd. Trib)

Shree Estatesvs. ITO

ITA No.:469(Hyd) of 2023

A.Y.: 2018-19

Date of Order: 30th July, 2024

39. S. 45 — Revaluation of asset held by partnership firm and crediting amount of said revaluation to partners’ capital account is transfer taxable section45(4) and the fair market value fixed by stamp authorities should be taken as deemed value of consideration for purpose of section 48.

S. 251 — Where CIT(A) considered the same income considered by AO but taxed it under the correct provision, the power exercised by CIT(A) cannot be said to be beyond scope of section 251(1).

FACTS

The assessee was a partnership firm registered on 15th May, 2017 with three partners, formed with capital contribution of land parcels by two partners and ₹1 lakh by third partner. Subsequently, it was reconstituted on 8th November, 2017 with six partners. The firm also revalued the land held by it in its books of account upwards to the tune of ₹12,56,24,460, thereby increasing the value of the land. The said revaluation amount was credited to the capital account of the partners. Subsequently, three partners also converted their loans given to the firm into capital account for which the existing partners agreed.

The assessee filed its return of income declaring total income of ₹1. The case was selected for scrutiny to verify substantial increase in capital in a year. During the course of assessment proceedings, the AO called upon the assessee to furnish the necessary capital account of partners and explain the substantial increase in partners’ capital account. The AO was not satisfied with the explanation furnished by the assessee and therefore, treated the entire capital account as unexplained credit taxable under section 68.

CIT(A) deleted the addition made under section 68; however, he held that the revaluation reserve credited to the partners’ capital account was available for withdrawal by the partners and such credit was taxable under section 45(4).

Aggrieved, the assessee filed an appeal before the ITAT, inter alia, taking an additional legal ground challenging the jurisdiction of CIT (A) to tax a new source of income.

HELD

On the additional legal ground, the Tribunal observed that once the first appellate authority is having the coterminus powers with that of AO, then the powers of CIT (A) under section 251(1)(a) are wide enough to consider any other issues which come to his knowledge during the course of appellate proceedings. However, such issues should have emanated either from the assessment order or from the return of income filed by the assessee. In other words, CIT (A) can very well consider the issues which have been dealt by the AO as it is or he can deal with the issues under proper provisions of law, if facts so demand; but he cannot consider a new issue or new source of income which is either not considered by the AO or not emanated from the return of income filed by the assessee. In the present case, the issue considered by the AO was increase in capital account of partners on account of revaluation of the assets held by the firm and credited such revaluation amount to the capital account of the partners and said issues fall under section 45(4), but the AO considered the issue under section 68 as unexplained cash credit. CIT (A) having noticed this fact had rightly invoked section 45(4). Therefore, the powers exercised by CIT (A) cannot be said to be beyond the scope of section 251(1).

On the issue of taxability under section 45(4), the Tribunal observed –

(a) Following CIT vs. Mansukh Dyeing and Printing Mills, (2022) 449 ITR 439 (SC), the revaluation of the asset held by the firm and crediting the amount of said revaluation to the partners’ capital account is a transfer which falls under section 45(4) and any profit or gain arising from the transfer needs to be taxed in the hands of the appellant firm.

(b) Under section 45(4), the fair market value of the asset on the date of such transfer is deemed to be the full value of consideration for the purpose of section 48. The value recorded by the assessee in the books of account for the purpose of revaluation of asset cannot be a fair market value of the property because it is not ascertainable as what is the basis on which said value has been arrived at.

(c) The guideline value fixed by the stamp duty authorities reflects the correct fair market value of any property and it may be a yardstick to determine the fair market value of the property. Therefore, in absence of contrary evidence to that effect, the fair market value fixed by the stamp duty value authorities should be taken as deemed full value of the consideration for the purpose of section 48 read with section 45(4).

Sec. 153D: Approval u/s 153D is a mandatory and not procedural requirement and mechanical approval without application of mind by the approving authority would vitiate assessment orders

[2024] 112 ITR (T) 224 (Pune – Trib.)

SMW Ispat (P.) Ltd. vs. ACIT

ITA NO. 56 TO 67 AND 72 & 73 (PUN.) OF 2022

A.Y.: 2009-10 TO 2014-15

Date of Order: 20th December, 2023

38. Sec. 153D: Approval u/s 153D is a mandatory and not procedural requirement and mechanical approval without application of mind by the approving authority would vitiate assessment orders.

FACTS

The assessee is a company engaged in the business of manufacturing of TMT Bars. A search and seizure action was conducted at different premises of the Mantri-Soni Group of Jalna / Bhilwara and their family members on 2nd May, 2013. A notice us 153A was issued upon the assessee on 13th February, 2014 requiring him to furnish the return of income from the date of receipt of notice.

The AO had added an amount of ₹2,00,00,000 which was taken from M/s. Sangam Infratech Limited, Bhilwara as unsecured loans on account of accommodation entry in the hands of the assessee. The AO further added unsecured loans of ₹85,00,000 taken from M/s. Swift Venture Pvt Ltd. and determined total income at ₹3,23,94,890 vide its order dated 30th March, 2016 passed us 143(3) r.w.s. 153A of the Act.

Aggrieved by the assessment order, the assessee filed an appeal before CIT(A). The CIT(A) in its order confirmed both the additions made by the AO. Aggrieved by the order, the assessee filed an appeal before the ITAT.

The assessee challenged the action of the AO of initiating the proceedings us 153A of the Act and passing the assessment order us 143(3) r.w.s. 153A of the Act.

HELD

The assessee argued that the Joint Commissioner of Income Tax, Central Range, Nashik granted approval u/s. 153D of the Act on mechanical basis without any independent application of mind, the said approval nowhere deals with the merits of case relating to the additions made in the draft assessment order, the said approval nowhere mentions any reason or justification as to why such approval is being granted and it amply proves beyond doubt that the same was given in mechanical manner with a biased approach without any independent application of mind.

The ITAT observed that there should be some indication that the approving authority examined relevant material in detail while granting the approval u/s 153D of the Act. The approval u/s. 153D is a mandatory requirement and such approval is not meant to be given mechanically. The ITAT observed that on an examination of the approval dated 21st March, 2016 which was placed on record, no reference whatsoever was made by the JCIT or no indication was given for examination of evidences, documents, statements of various persons, etc.

The ITAT also observed that the AO sought approval u/s 153D of the Act on 18th March, 2016, the JCIT granted approval on 21st March, 2016 and the final assessment order u/s 143(3) r.w.s. 153A of the Act was passed on 30.03.2016 which clearly indicates that the approving authority granted approval in one day [19th March, 2016 & 20th March, 2016 was a Saturday & Sunday] mechanically without examining the relevant material.

The ITAT followed the decision of Hon’ble High Court of Orissa in the case of M/s. Serajuddin & Co. in ITA Nos. 39, 40, 41, 42, 43, 44 of 2022 and held that the approval granted u/s. 153D of the Act mechanically without application of mind which resulted in vitiating the final assessment order dated 30th March, 2016 u/s. 143(3) r.w.s. 153A of the Act.

In the result, the appeal of the assessee was allowed for the above-mentioned issue.

EDITORIAL COMMENT

The decision of Hon’ble High Court of Orissa in the case of M/s. Serajuddin & Co. in ITA Nos. 39, 40, 41, 42, 43, 44 of 2022 was confirmed by the Hon’ble Supreme Court vide order dated 28th November, 2023 in SLP(C) No. 026338/2023.

Sec. 68 r.w.s. 148: Where nothing was brought on record by the Assessing Officer to substantiate that assessee had taken accommodation entry, reopening notice was to be quashed

[2024] 112 ITR (T) 158 (Kol – Trib.)

R. S. Darshan Singh Motor Car Finance (P.) Ltd. vs. ITO

ITA NO. 265(KOL) OF 2024

A.Y.: 2013-14

Date of Order: 2nd May, 2024

37. Sec. 68 r.w.s. 148: Where nothing was brought on record by the Assessing Officer to substantiate that assessee had taken accommodation entry, reopening notice was to be quashed.

FACTS

The assessee is a non-banking financial company [NBFC]. The AO had received information from Asst. Director of Income Tax (Investigation) (OSD), Unit-4, Kolkata that the assessee is one of the beneficiaries of the accommodation entries and had received total amount of ₹35,00,000 from M/s. Brahma Tradelinks Pvt. Ltd. during the FY 2012-13. A notice u/s 148 was issued on 19th March, 2020 on perusal of the said information. The assessee had objected the reopening of the assessment proceedings. The AO disposed of the objections without assigning any reasons and enhanced the income of the assessee by ₹35,00,000 as unexplained cash credit u/s 68 of the Act. On appeal before CIT(A), the CIT(A) confirmed the impugned addition of ₹35,00,000 and upheld the assessment order.

Aggrieved by the Order, the assessee preferred an appeal before the ITAT on several grounds and filed an application for additional ground of appeal – “That the impugned order passed u/s 147 of the Act making an addition of ₹35,00,000 is not based on any information leading to escapement of ₹35,00,000 and therefore the entire proceeding is without jurisdiction and hence bad in law”

HELD

The ITAT observed that evidently the assessee had received sum of ₹20,00,000 from M/s. Brahma Tradelinks Pvt. Ltd. during the FY 2012-13. The AO had not brought on record anything to substantiate the alleged receipt of ₹35,00,000 except for the fact that he had received credible information.

Assessee had relied on the following judgments:

  • CIT(Exemptions) vs. B. P. Poddar Foundation for Education [2023] 448 ITR 695 (Cal. HC)
  • CIT vs. Lakshmangarh Estate & trading Co. [2013] 220 Taxman 122 (Cal.)
  • Peerless General Finance and Investment Co. Ltd. vs. DCIT [2005] 273 ITR 16 (Cal. HC)

Relying on the above judgments, the ITAT opined that the burden lies with the AO to verify the genuineness of the credible information and that the information as alleged to be received by AO cannot be said to be a credible information. The ITAT also observed that in the preceding AY 2012-13, reopening was initiated by the then AO against the assessee on the same issue i.e. on the basis of transaction with M/s. Brahma Tradelinks Pvt. Ltd. but no addition was made.

The ITAT held that the AO did not apply his own mind to the information and examine the basis and material of the information, he accepted the plea in a mechanical manner and thus, the issuance of notice u/s 148 of the Act was illegal, wrong and quashed the notice.

In the result, the appeal of the assessee was allowed.

Section 250(6) of the Act obligates the CIT(A) to state points for determination in appeal before him, the decision thereon and the reasons for determination. CIT(A) has no power to dismiss appeal of assessee on account of non-prosecution and without deciding on the merits of the case

Maa Chintpurni Mining Pvt. Ltd. vs. ITO
ITA No. 28/Ranchi/2024
A.Y.: 2015-16
Date of Order: 13th August, 2024
Section: 250

36. Section 250(6) of the Act obligates the CIT(A) to state points for determination in appeal before him, the decision thereon and the reasons for determination. CIT(A) has no power to dismiss appeal of assessee on account of non-prosecution and without deciding on the merits of the case.

FACTS

The assessee, engaged in the business of mining, filed its return of income electronically on 29th October, 2015 declaring total income at ₹21,960. The case of the assessee was selected under limited scrutiny under CASS for the reason ‘large share premium received during the year’. During the assessment proceedings, the assessee failed to substantiate the nature of amount received to the tune of ₹68,11,000 whether it was share premium or otherwise to the satisfaction of the AO.

The assessment order stated that the assessee did not make due compliance to notices issued from time to time. Thus, the Assessing Officer (AO) framed the assessment u/s.144 of the Act assessing total income at ₹68,32,955 after making addition of ₹68,11,000 on account of unexplained cash credit u/s.68 of the Act.

Against the assessment order, the assessee preferred appeal before the ld. CIT(A). Before him, vide three grounds of appeal, the assessee contested the addition made on the ground that the AO erred in making the addition of the amount credited in the bank account as cash credit u/s 68 of the Act. Besides, he erred in making the addition which was not the subject matter of Limited scrutiny. The CIT(A) in his order narrated the non-compliant attitude of the assessee stating that despite number of notices sent through ITBA portal on several occasions, there was no response from the assessee. Therefore, he proceeded to dispose of the appeal based on materials on record. The CIT(A) dismissed the appeal of the assessee upholding the addition made by the AO.

Aggrieved, the assessee filed an appeal to the Tribunal where written submissions were filed on behalf of the assessee.

HELD

The Tribunal observed that while the CIT(A) has claimed that despite several notices issued allowing opportunity of hearing to the assessee during appellate proceedings, there was no compliance, the AR on the other hand, has inter alia claimed vide written submission above (which have been reproduced by the Tribunal in its order) that the CIT(A) ignored the written submission made on e-filing portal within the due date of time allowed. Copies of e-proceeding acknowledgements were enclosed with the written submissions which the Tribunal found to be self-speaking.

The Tribunal held that evidently, it appeared to the Bench that the compliance made by the assessee through e-portal was not in the knowledge of the CIT(A) for some technical issue. Since the appellate proceedings were taken up by NFAC in a faceless manner, such lack of communication cannot be ruled out due to technical glitches. It held that it would be in the fitness of things that the matter be adjudicated de novo on the grounds of appeal before the CIT(A)/NFAC after taking account the reply and other supporting material as claimed by the assessee to have been filed on e-portal.

The Tribunal held that the appeal has not been decided on merits due to miscommunication between the department and the assessee. Referring to provisions of Section 250(6) of the 1961 Act the Tribunal held that CIT(A) is obligated to state points for determination in appeal before him, the decision thereon and the reasons for determination. He has no power to dismiss appeal of assessee on account of non-prosecution and without deciding on the merits of the case.

Thus, in the in the interest of justice, the Tribunal restored the matter to CIT(A) emphasising the need for a thorough and compliant adjudication process.

The appeal filed by the assessee was allowed for statistical purposes.

It is not necessary that the consideration of the original asset be invested in new residential house. Construction of new house can commence before the date of transfer of original asset. Where return of income is filed under section 139(4), investment in new residential house till the date of filing of such return qualifies for deduction under section 54

Jignesh Jaysukhlal Ghiya vs. DCIT

ITA No. 324/Ahd./2020 A.Y.: 2013-14

Date of Order: 7th August, 2024

Sections: 54, 139(4)

35. It is not necessary that the consideration of the original asset be invested in new residential house. Construction of new house can commence before the date of transfer of original asset. Where return of income is filed under section 139(4), investment in new residential house till the date of filing of such return qualifies for deduction under section 54.

FACTS

For the assessment year under consideration the assessee filed his return of income declaring total income of ₹31,71,420. The Assessing Officer (AO) assessed the total income by making an addition of ₹23,17,183 as long-term capital gains.

The assessee sold a residential house on 9th January, 2013 for a consideration of ₹45,00,000 and purchased an unfinished flat on 17th February, 2014 and sale consideration was paid between 4th August, 2011 to 8th December, 2011 (much before sale of original house). The assessee also entered into a Construction Agreement on 25th February, 2014 to complete the construction of unfinished flat for a total consideration of ₹51,65,000. This consideration was paid during 8th December, 2011 to 16th February, 2014. Thereafter, the assessee filed his belated Return of Income u/s. 139(4) of the Act and claimed exemption u/s. 54 (restricted to ₹23,17,183). The Assessing Officer (AO) denied the benefit of section 54 as the assessee failed to deposit unutilised amount of capital gain in separate account and also did not file the Return of Income as prescribed u/s. 139(1) of the Act.

Aggrieved, the assessee preferred an appeal to CIT(A) who partly allowed the appeal and directed the AO to recompute the deduction under section 54 by considering only that part of the investment made in new property which was made after the date of sale of the original house and before the due date of filing of return of income under section 139(1) of the Act.

Aggrieved, the assessee preferred an appeal to the Tribunal where on behalf of the assessee it was submitted that construction of the new flat has been completed within three years (25th February, 2014) from the date of transfer of original asset (9th January, 2013). Thus, assessee is eligible for exemption u/s. 54 even in respect of investment made prior to the date of transfer of original asset. The date of commencement of construction is irrelevant for the purpose of claim of exemption u/s. 54 of the Act, so long as construction is completed within three years from the date of “transfer of original asset”. Further, the assessee is eligible for exemption u/s. 54 of the Act even in respect of amount of investment in construction made prior to the date of “transfer of original asset”. Reliance was placed on the following decisions:

i) Bhailalbhai N. Patel vs. DCITITA 37/Ahd/2014;

ii) ACIT vs. Subhash S. Bhavnani – (2012) 23 taxmann. com 94 (Ahd);

iii) Kapil Kumar Agarwal vs. DCIT-(2019) 178 ITD 255 (Del);

iv) CIT vs. J. R. Subramanya Bhat (1987) 165 ITR 571 (Karnataka);

v) CIT vs. H. K. Kapoor-(1998) 234 ITR 753 (Allahabad);

vi) CIT vs. Bharti Mishra-(2014) 41 taxmann.com 50 (Del);

HELD

The Tribunal found that both the lower authorities have taken a common view that the sale consideration of the old residential house should form part of construction in the residential house for claiming deduction 54 of the Act. It held that that the assessee is eligible to claim deduction under this section, even if a new residential house is purchased within one year before the date of transfer of original asset, which means that assessee has to make use of funds other than the sale consideration of original asset for investing in a new residential house and it is not mandatory that only the sale consideration of original asset be utilised for purchasing or constructing a new residential house. Since the assessee, in the present case, has utilized other funds (apart from sale consideration) for constructing new residential house, for this reason only he cannot be denied deduction u/s 54 of the Act.

The Tribunal having quoted the provisions of section 54 held that there is no mention about the date of start of construction of residential house, but it only refers to a construction of a residential house, which is the date of completion of the constructed residential house habitable for the purpose of residence.

As regards the question as to whether the assessee is entitled for claiming exemption u/s. 54 where the return is filed belatedly u/s. 139(4) of the Act it noted that this issue is considered by the Co-ordinate Bench of this Tribunal in the case of Manilal Dasbhai Makwana vs. ITO [(2018) 96 Taxmann.com 219] where the Tribunal has held that “when an assessee furnishes return subsequent to due date of filing return under s.139(1) but within the extended time limit under s.139(4), the benefit of investment made up to the date of furnishing of return of income prior to filing return under s.139(4) cannot be denied on such beneficial construction.”

It also noted that the Madras High Court in the case of C. Aryama Sundaram vs. CIT [(2018) 97 taxmann.com 74] has on identical facts decided the issue in favour of the assessee and held that “It is not a requisite condition of section 54 that the construction could not have commenced prior to the date of transfer of asset resulting in capital gain.”

The Tribunal following the above judicial precedents held that the assessee is eligible for deduction u/s. 54 of the Act and directed the AO to grant deduction and delete the addition made by him.

The Tribunal allowed the appeal filed by the assessee.

Mistake in tax calculation whereby tax was calculated at slab rate instead of rate mentioned in section 115BBE is a mistake which can be rectified under section 154 and therefore provisions of section 263 cannot be invoked in such a scenario

Dhashrathsinh Ghanshyamsinh vs. PCIT

ITA No. 223/Ahd./2021

A.Y.: 2015-16

Date of Order: 8th August, 2024

Sections: 115BBE, 154, 263

34. Mistake in tax calculation whereby tax was calculated at slab rate instead of rate mentioned in section 115BBE is a mistake which can be rectified under section 154 and therefore provisions of section 263 cannot be invoked in such a scenario.

FACTS

The assessee filed return of income for AY 2015-16 declaring total income to be a loss of ₹31,52,060. The case was selected for limited scrutiny. The Assessing Officer (AO) passed an order under section 143(3) assessing the total income to be ₹1,89,07,363. The additions made by the AO comprised of addition in respect of interest free advance amounting to ₹3,60,000, addition in respect of cash gift amounting to ₹34,00,000, addition in respect of unsecured loan amounting to ₹19,50,000 and addition in respect of cash deposit in Bank amounting to ₹1,63,49,423. The PCIT issued show cause notice under Section 263 of the Act dated 28th February, 2020 in respect of the observation that during the assessment proceedings, the assessee failed to submit any documentary evidence regarding the source of cash deposit in the Bank and gift received in cash and, therefore, the addition made under section 68 should have been taxed at 30 per cent and not as per the slab rates. Thus, the PCIT passed order under Section 263 on 30th April, 2020 directing the AO to calculate tax as per Section 115BBE of the Act.

Aggrieved, assessee preferred an appeal to the Tribunal.

HELD

The PCIT has not pointed out the aspect of assessment order being erroneous and prejudicial to the interest of the revenue. The Tribunal observed that all the additions made by the AO are in consonance with the Income-tax statute. The calculation of tax as per Section 115BBE of the Act is a mistake which can be rectified under Section 154 of the Act and, therefore, the provisions of Section 263 of the Act cannot be invoked in this scenario as it is not derived from Section 263 of the Act where the mistake in the assessment order carried out by the AO can be rectified. Thus, invocation of Section 263 of the Act itself was held to be not justifiable in the assessee’s case.

Section 69C — Bogus Purchase — Genuineness of purchase transaction

Pr. CIT – 1 Mumbai vs. SVD Resins & Plastics Pvt. Ltd

ITXA No. 1662 & 1664 of 2018

A.Ys.: 2009–2010 and 2010–2011

Dated: 7th August, 2024, (Bom) (HC)

14. Section 69C — Bogus Purchase — Genuineness of purchase transaction.

Briefly, the facts are that the assessee was engaged in the business of trading in resins and chemicals on wholesale basis. On information received from the DGIT (Investigation), Mumbai, the Assessing Officer (AO) invoked Section 147 of the Income-tax Act, 1961 to reopen the completed assessment by issuing notice under Section 148 dated 12th March, 2013. In response thereto, the assessee filed a revised return on 20th March, 2013, as also sought the reasons as recorded by the AO. The AO was of the opinion that the assessee had made purchases amounting to ₹1,34,25,500 from six parties who were declared by the Sales Tax Department as ingenuine dealers. It is not in dispute that during the assessment proceedings, the assessee filed ledger accounts, confirmation of suppliers, purchase bills, delivery bank statements and other documentary evidences to justify the genuineness of the purchases. The AO nonetheless was of the opinion that the disputed purchases did not have nexus with the corresponding sales. Accordingly, he made an addition of the said amount under Section 69C of the Act on the grounds of there being unexplained payments qua the disputed purchases.

Before the Commissioner of Income Tax (Appeals), the assessee contended that the AO has not rejected the books of accounts by invoking the provisions of Section 145(3); hence, the AO was not justified in invoking the provisions of Section 69C. It was also the assessee’s case that during the hearing in question as well as the preceding two years, the assessee had declared gross profit for the AY 2007–2008 at 4.23 per cent and for the AY 2008–2009 at 4.28 per cent. It was also contended that for the subsequent AY 2009–2010, a gross profit of 4.74 per cent was declared in respect of the disputed purchase; the disclosed gross profit was 0.27 per cent which was lower by 4.47 per cent than the normal gross profit margin of 4.74 per cent in respect of other accepted genuine transactions. It was also contended that if the disallowance is sustained, there will be an abnormal increase in the gross profit at 17.81 per cent which was almost impossible in trading activity of chemicals, and hence, it was urged before the CIT(A) that an alternate to estimate the total income at 5 per cent on the purchases needs to be accepted. Considering the rival contentions, the CIT(A) estimated the profit at 12.5 per cent on the purchases made by the assessee. The CIT(A) reduced the declared GP from 12.5 per cent and confirmed the addition to the extent of 7.76 per cent.

The Tribunal considering the proceeding and the respective contentions as urged on behalf of the revenue passed the impugned order in which it was observed that the CIT(A) has rightly estimated the profit in regard to the purchases at 12.5 per cent; however, the Tribunal observed that CIT(A) was not correct in reducing the gross profit already returned by the assessee at 4.74 per cent out of the 12 per cent, for the reason that the gross profit returned by the assessee related to the sales made by the assessee and did not have link to the purchases for which assessee might have procured bills by making savings in VAT, etc. For such reason, the Tribunal partly allowed the grounds as raised by the revenue and directed the AO to estimate the income at 12.5 per cent in each of the assessment years, on the purchases so made. The Tribunal rejected the assessee’s challenge to the orders passed by the CIT(A) while partly allowing the revenue’s appeals and dismissing the assessee’s appeal.

The appellant’s / revenue’s primary submission that the approach of the CIT(A) as also the part acceptance of such approach by the tribunal in the impugned order needs interference of this Court on the question of law as raised by the revenue. It is submitted that entire purchases of ₹1,34,25,500 were required to be discarded as bogus purchases, and the relevant amounts brought to tax by making additions to the assessee’s income, as rightly undertaken by the AO. However, the revenue was not in a position to dispute that the assessee had furnished all the relevant documents in so far as the purchases are concerned, namely, the ledger accounts, confirmation of suppliers, purchase bills, delivery statements and other documentary evidence, despite which the AO on the basis of information received from the Sales Tax Department had decided to make additions of the said amounts on the grounds that the purchases were presumed to be doubtful. The revenue further stated that the suppliers were not independently examined nor was their evidence recorded.

The assessee submitted that all these are factual issues which are being raised by the revenue and no question of law rises for consideration of the Court. Reliance was placed on the decision of a co-ordinate bench of this Court in the case of Pr. Commissioner of Income Tax-17 vs. Mohammad Haji Adam & Company, [2019] 103 taxmann.com 459 (Bombay) to contend that in similar circumstances, the Court had not entertained the revenue’s appeal and the same was dismissed, with observations that no question of law had arisen for consideration of the Court in similar facts.

The Honourable Court observed that the basic premise on the part of the AO so as to form an opinion that the disputed purchases were not having nexus with the corresponding sales, appears to be not correct. It was seen that what was available with the department was merely information received by it in pursuance of notices issued under Section 133(6) of the Act, as responded by some of the suppliers. However, an unimpeachable situation that such suppliers could be labelled to be not genuine qua the assessee or qua the transaction entered with the assessee by such suppliers was not available on the record of the assessment proceedings. It was an admitted position that during the assessment proceedings, the assessee filed all necessary documents in support of the returns on which the ledger accounts were prepared, including confirmation of the supplies by the suppliers, purchase bills, delivery bank statements, etc., to justify the genuineness of the purchases; however, such documents were doubted by the AO on the basis of general information received by the AO from the Sales Tax Department. The Honourable Court held that to wholly reject these documents merely on a general information received from the Sales Tax Department would not be a proper approach on the part of the AO, in the absence of strong documentary evidence, including a statement of the Sales Tax Department that qua the actual purchases as undertaken by the assessee from such suppliers, the transactions are bogus. Such information, if available, was required to be supplied to the assessee to invite the response on the same and thereafter take an appropriate decision. Unless such specific information was available on record, it is difficult to accept that the AO was correct in his approach to question such purchases, on such general information as may be available from the Sales Tax Department, in making the impugned additions. This for the reason that the same supplier could have acted differently so as to generate bogus purchases qua some parties, whereas this may not be the position qua the others. Thus, unless there is a case to case verification, it would be difficult to paint all transactions of such supplier to all the parties as bogus transactions. Thus a full addition could be made only on the basis of proper proof of bogus purchases being available as the law would recognise before the AO, of a nature which would unequivocally indicate that the transactions were wholly bogus. In the absence of such proof, by no stretch of imagination, a conclusion could be arrived, that the entire expenditure claimed by the petitioner qua such transactions need to be added, to be taxed in the hands of the assessee.

The Honourable Court observed that in a situation as this, the AO would be required to carefully consider all such materials to conclude that the transactions are found to be bogus. Such investigation or enquiry by the AO also cannot be an enquiry which would be contrary to the assessments already undertaken by the Sales Tax Authorities on the same transactions. This would create an anomalous situation on the sale-purchase transactions. Hence, wherever relevant, any conclusion in regards to the transactions being bogus needs to be arrived only after the AO consults the Sales Tax Department and a thorough enquiry in regards to such specific transactions being bogus is also the conclusion of the Sales Tax Department. In a given case, in the absence of a cohesive and coordinated approach of the AO with the Sales Tax Authorities, it would be difficult to come to a concrete conclusion in regard to such purchase / sales transactions being bogus merely on the basis of general information so as to discard such expenditure and add the same to the assessee’s income. Any halfhearted approach on the part of the AO to make additions on the issue of bogus purchases would not be conducive. It also cannot be on the basis of superficial inquiry being conducted in a manner not known to law in its attempt to weed out any evasion of tax on bogus transactions. The bogus transactions are in the nature of a camouflage and /or a dishonest attempt on the part of the assessee to avoid tax, resulting in addition to the assessee’s income. It is for such reason, the approach of the AO is required to be a well-considered approach and in making such additions, he is expected to adhere to the lawful norms and well-settled principles. After such scrutiny, the transactions are found to be bogus as the law would understand, in that event, they are required to be discarded by making an appropriate permissible addition.

The Honourable Court further observed that the Tribunal directed the AO to assess the income from such disputed transaction at 12.5 per cent in each of the assessment years, on the purchases so made by the assessee. However, in a given case if the Income Tax Authorities are of the view that there are questionable and / or bogus purchases, in that event, it is the solemn obligation and duty of the Income Tax Authorities and more particularly of the AO to undertake all necessary enquiry including to procure all the information on such transactions from the other departments / authorities so as to ascertain the correct facts and bring such transactions to tax. If such approach is not adopted, it may also lead to the assessee getting away with a bonanza of tax evasion and the real income would remain to be taxed on account of a defective approach being followed by the department.

The Honourable Court further observed that the decision in Mohammad Haji Adam & Company [2019] 103 taxmann.com 459 (Bombay) as relied on behalf of assessee is also quite opposite in the context in hand. In this decision, the Court observed that the findings which were arrived by the CIT(A) as also by the tribunal would suggest that the department did not dispute the assessee’s sales, as there was no discrepancy between the purchases as shown by the assessee and the sales declared. This was held to be an acceptable position, in dismissing the revenue’s appeal on the grounds that no substantial question of law had arisen for consideration of the Court.

In view of the same the appeals are accordingly dismissed.

Section 22 vis-à-vis 28 — Income from house property” or “business income” — Rule of consistency — Applicable to tax proceeding

Pr. CIT – 3 Mumbai vs. Banzai Estates P. Ltd.

ITXA No. 1703, 1727 & 1900 of 2018

A.Ys.: 2008–09, 2009–10 and 2010–11.

Dated: 9th July, 2024, (Bom) (HC).

13. Section 22 vis-à-vis 28 — Income from house property” or “business income” — Rule of consistency — Applicable to tax proceeding.

The issue before the Tribunal was as to whether the income received by the Respondent-Assessee from the property owned by it be accepted as “income from house property” or as contended by the Revenue, it should be treated as “business income”.

The Assessee is engaged in the business of hiring and leasing of properties. The Assessee declared an income from a self-owned property situated at MBC Tower, TTK Road, Chennai (for short, “MBC Tower property”) as income from house property. Apart from such income, the Assessee also declared rental income received from sub-letting of four other properties not owned by the Assessee, as income from business. The Assessing Officer did not accept the income earned from the MBC Tower property as “income from house property” and held such income necessarily to be a “business income”.

The CIT-A confirmed the view taken by the Assessing Officer in assessing the income earned by the Assessee from the self-owned property, as income from business (“profits and gains from business”).

Before the Tribunal, the Assessee contended that in the past, the Assessee was consistently treating rental income from the MBC Tower property as income from house property, which was accepted by the Revenue. The Tribunal was of the view that the Revenue was consistent in accepting Assessee’s income derived from MBC Tower property as “income from house property”; it was observed that the Assessing Officer however had taken a reverse position, for the assessment years in question, by treating its income from MBC Tower property to be “income from business”, without a valid reason. The Tribunal, referring to the decision of the Supreme Court in Raj Dadarkar & Associates vs. Assistant Commissioner of Income-tax [2017] 394 ITR 592 (SC) held that in the present case, Section 22 of the Act was clearly applicable as the property in question was owned by the Assessee. The Tribunal also observed that the Supreme Court in the case of Commissioner of Income-tax vs. Shambhu Investment (P.) Ltd. [2003] 263 ITR 143 (SC) confirmed the decision of the Calcutta High Court in Shambhu Investment P. Ltd. vs. Commissioner of Income-Tax [2001] 249 ITR 47 (Calcutta), wherein the High Court had taken a view that when the Assessee was the owner of certain premises, then the income derived from such property would be income from house property. The Tribunal also considered other relevant decisions to come to a conclusion that the Appeal filed by the Assessee must be allowed.

The revenue submitted that this was a clear case where the income earned by the Assessee from letting out the MBC Tower property was required to be assessed as income, under the head “business income”, and not under the head of “income from house property” for the reason that the primary business of the Assessee was a business of letting out properties and deriving income therefrom. It was submitted that for such reason, the rental income received by the Assessee from MBC Tower property could not be categorised under the head “income from house property”. The Revenue placed reliance on the decision of the Supreme Court in Chennai Properties & Investment Ltd. vs. Commissioner of Income-tax, Central-III, Tamil Nadu [2015] 277 CTR 185 (SC). Thus, the primary contention as urged on behalf of the Revenue is that in the context of Section 22 read with Section 24 of the Act, the provisions would permit a distinction in categorising income under different heads, in the facts and circumstances in hand. It is her contention that such a position stands approved by the Supreme Court in the case of Chennai Properties & Investment Ltd (supra).

The Assessee submitted that Section 22 of the Act makes no distinction on the basis of the Assessee’s business, and in fact, it was appropriate in the facts of the present case for the Assessee to treat the rental income from the MBC Tower property as an income from house property. It was submitted that there was nothing improper much less illegal for the benefit being conferred under Section 24 of the Act, to be availed by the Assessee. It was submitted that in fact in the previous three Assessment Years, i.e., in 2005–06, 2006–07 and 2007–08, the Revenue had accepted that this very income be taken to be income from house property and without any material change in the circumstances, much less in law, the Revenue has taken a position contrary to what had prevailed in the earlier assessment years. Hence, it was not appropriate for the Assessing Officer to take a different position for the Assessment Years in question. It was therefore submitted that the questions of law as raised by the Revenue do not arise for consideration on the principles of consistency which need to be accepted, and as applied by the Tribunal.

The Honourable Court held that it is not possible to accept the contentions as urged on behalf of the Revenue, so as to hold that the present proceedings give rise to any substantial question of law raised by the Revenue in the present Appeals. Section 22 of the Act, making a provision for “income from house property” ordains that the “annual value” of property consisting of any buildings or lands appurtenant thereto of which the Assessee is the owner, other than such portions of such property as he may occupy for the purposes of any business or profession carried out by him, the profits of which are chargeable to income-tax, shall be chargeable to income-tax under the head “income from house property”. Section 23 provides the manner in which “annual value” would be determined. Section 24 provides for deductions from income from house property.

In the present case, the Assessee has availed of deduction under Section 24, which appears to be one of the reasons that the Assessing Officer thought it appropriate to disallow what was accepted in the earlier three Assessment Years: 2005–06, 2006–07 and 2007–08. On a bare reading of Section 22, we find that in the present case, the basic requirements for the Assessee to consider the income as received from MBC Tower property as “income from house property” stands clearly satisfied, as the Assessee derives income from house property “owned by it”. Even if the Assessee is to be in the business of letting or subletting of properties and deriving income therefrom, there is no embargo on the Assessee from accounting the income received by it, from the property “owned by Assessee” (MBC Tower) as “income from house property” and at the same time, categorising the rental income from other properties not of Assessee’s ownership under the head “income from business”. The Revenue’s reading of Section 22 differently to those who are in the business of letting out properties as in the present case namely in combination of a property of Assessee’s ownership and also to have income from properties which are not of Assessee’s ownership from which rental income is derived would amount to reading something into Section 22 than what the provision actually ordains. The legislature does not carve out any such categorisation / exception. Thus, the Revenue is not correct in its contention that in the circumstances in hand, a straightjacket formula is required to be applied, namely, that section 22 is unavailable to an Assessee, who is in the business of letting out properties.

In the prior Assessment Years, the Assessing Officer had accepted the Assessee’s treatment of such income as an income from house property, which is one of the factors which has weighed with the Tribunal to allow the Appeals filed by the Assessee, on the principle of consistency. The Court was of the opinion that such principles are appropriately applied by the Tribunal. The Supreme Court has held it to be a settled principle of law that although strictly speaking res judicata does not apply to income tax proceedings, and as such, what is decided in one year may not apply in the following year. Thus, when a fundamental aspect permeating through different Assessment Years has been treated in one way or the other and that has been allowed to continue, such position ought not be changed without any new fact requiring such a direction. (See M/s. Radhasoami Satsang, Saomi Bagh, Agra vs. Commissioner of Income Tax [1992] 193 ITR 321 (SC). The decision of the Supreme Court in M/s. Radhasoami Satsang (supra) has been referred in a decision of a recent origin in Godrej & Boyce Manufacturing Company Ltd. vs. Dy. Commissioner of Income Tax, Mumbai, &Anr (2017) 7 SCC 421.

The further refer to a decision of this Court in the case of Principal Commissioner of Income-tax vs. Quest Investment Advisors (P.) Ltd [2018] 409 ITR 545 (Bombay), in which this Court referring to the decision of the Supreme Court in Bharat Sanchar Nigam Ltd. Anr. vs. Union of India Ors [2006] 282 ITR 273 (SC) which followed the decision in Radhasoami Satsang Sabha (supra) accepted the rule of consistency.

The Honourable Court further observed that the Revenue’s reliance on the decision in Chennai Properties (supra) was not well founded for the reason that in such case, the assessee itself had chosen to account such income derived by the assessee, as an income under the head “income from business”. This was a case where the Revenue was of the contrary view, namely, that such income ought not to be allowed as an income from business and must be treated as income from house property. The Supreme Court thus held that the income was rightly disclosed by the Assessee under the head “gains from business”, and it was not correct for the High Court to hold that it needs to be treated as income from house property. The situation being quite different in the said case, the same would not be applicable in the present facts. This is not a case where the Assessee itself had taken a position that such income be treated as income from business.

Accordingly the Appeals were dismissed.

Section 37: Payments under a Memorandum of Settlement with the trade union — Expenditure not covered by Section 30 to Section 36, and expenditure made for purposes of business shall be allowed under Section 37(1) of the Act.: Section 40A(9) of the Act.

CIT vs. M/s. Tata Engineering & Locomotive

Company Ltd.

[ITXA NO. 321 of 2008 & 2070 of 2009

A.Ys.: 1987–88 and 1988–89

Dated: 30th July, 2024, (Delhi) (HC)].

12. Section 37: Payments under a Memorandum of Settlement with the trade union — Expenditure not covered by Section 30 to Section 36, and expenditure made for purposes of business shall be allowed under Section 37(1) of the Act.: Section 40A(9) of the Act.

The two Appeals arise from common order dated 26th October, 2004 passed by the Income-tax Appellate Tribunal, and involve identical questions of law, extracted below:

“(A) Whether the ITAT was justified in law in upholding the action of the CIT(A) in deleting the disallowance of R1,96,71,842/- made under section 40A(9) of the Act ?

(B) Whether a payment made under a memorandum of settlement under the Industrial Disputes Act can be said to be a payment required by or under any law ?”

The short point that arose for consideration was whether the payments made under a Memorandum of Settlement dated 31st March, 1986 between the Respondent-Assessee and the trade union could be allowed as revenue expenditure under Section 37(1) of the Act; the disallowance canvassed by the Appellant-Revenue was based on the purported applicability of Section 40A(9) of the Act.

The payments were envisaged under a Memorandum of Settlement dated 31st March, 1986 between the Respondent-Assessee and the trade union, namely, TELCO-Workers’ Union, Jamshedpur (“Workmen’s Union”) of the workers employed by the Respondent-Assessee. The expenses were primarily defended as being revenue expenditure as expenses towards development and welfare of the local population in the vicinity of the factory with benefits flowing the business. Such expenditure was claimed to have helped the Respondent-Assessee get the benefit of goodwill and local harmony in the conduct of its business operations in the local ecosystem, thereby justifying the claim that such expenditure should be allowed as revenue expenditure. Apart from these submissions, the Respondent-Assessee also claimed that such expenditure, having been envisaged in the Memorandum of Settlement entered into with the Workmen’s Union of the employees, the expenditure could also be defended as payments made under the law in terms of the settlement reached with the employees.

The Honourable Court observed that from a plain reading of the Memorandum of settlement, it would become clear that the Respondent-Assessee had been expending various amounts towards “Community Services” and “Social Welfare”, and this was recited in the Memorandum of Settlement, with a statement that such measures would continue. There is no commitment of any specific amount that would be spent under these heads of expenses. Owing to the linkage of the expenses with the settlement entered into with the Workmen’s Union, the Appellant-Revenue has argued that Section 40A(9) would disallow deduction of such expenditure in the computation of income under the Act.

Both, the lower authorities gave a concurrent findings to state the nature of these expenses do not fall within the jurisdiction of Section 40A(9) and that they ought to be allowed under Section 37(1) of the Act.

The Honourable Court observed that it was apparent that the expenditure on community services and social welfare, in the context of the Respondent-Assessee’s business in that region, was being undertaken even before the execution of the Memorandum of Settlement. The document merely recited that the Company would continue to spend on such measures. Indeed, employees and their extended families would have benefited from such expenditure, which is why it finds mention in the Memorandum of Settlement. However, the expenses were not aimed at employee welfare alone but formed part of the Company making its presence felt by discharging a wider range of social responsibilities in the area of its operation.

The Court noted that plain reading of the Section 40A(9) would show that the subject matter of what is positively disallowed under the provision is payments made by an assessee “as an employer”. The very core ingredient to attract the jurisdiction of the provision is that the payment ought to have been made by the assessee in the capacity of an employer. The payments that are disallowed under Section 40A are payments made towards setting up, forming or contributing to any fund, trust, company, association of persons, body of individuals, society or other institution for any purpose, but in every case, in the capacity as an employer. Even for such payments, there is an exception in relation to payments that positively fall within the scope of clauses (iv), (iva) and (v) of Section 36(1), which are essentially payments towards contribution to provident fund, pension scheme and gratuity fund. These are specifically legislated as allowable expenses and have therefore been kept out of the mischief of Section 40A(9). Yet, it cannot be overlooked that for any payment to first fall within the mischief of what has to be positively disallowed under Section 40A(9), the payment ought to have been made by the assessee “as an employer”.

The Honourable Court observed that the payments could not be regarded as payments made by the Respondent- Assessee in its exclusive capacity as an employer. The payments in question are made towards wider local welfare measures that would boost its presence in the local ecosystem and enable harmonious conduct of its factory and business operations in the vicinity. Merely because a commitment to continue such welfare measures is recited in the Memorandum of Settlement with the Workmen’s Union, these payments would not partake the character of payments made under the Memorandum of Settlement or payment required to be made under labour law, or for that matter, payment that is made “as an employer”.

The expenditure not covered by Section 30 to Section 36, and expenditure made for purposes of business shall be allowed under Section 37(1) of the Act. At all times, relevant to these appeals, as Section 37 then stood, such expenses were not disallowed under Section 37.

The Court observed that in the instant case, the payments made by the Respondent- Assessee were for public causes in the locality of the business operations and benefits flowed from it to the business of the Assessee. If at all the Memorandum of Settlement is relevant, it would be to show that there was a nexus between such social welfare activity undertaken by the Respondent-Assessee and the business of the Respondent-Assessee. The local harmony and goodwill that the social welfare and community expenses generated, benefited the Respondent-Assessee’s conduct of business. That such expenses were being incurred was acknowledged and recited as a continuing commitment. Thus, merely because such expenditure finds a place in the Memorandum of Settlement, the nature and character of such expenditure would not be altered, so as to fall under Section 37(1), or to attract Section 40A(9). Therefore, the two concurrent views expressed by the CIT-A and the Tribunal need not be faulted.

The Honourable court further observed that the Court, in appellate jurisdiction on substantial questions of law, should not substitute an alternate view merely because another view is possible, unless the views expressed in the concurrent findings are not at all a plausible view.

The Honourable Court held that Section 40A(9) has no application to the facts of the case. The Tribunal was indeed justified in law in upholding the view of the CIT-A in deleting the disallowance made by the Assessing Officer. Insofar as question (B) is concerned, the payments made in the facts of this case were not payments required to be made under the Industrial Disputes Act or payment required by or under any other law, but the same is irrelevant for the matter at hand since Section 40A(9) was not at all attracted. Unless it was attracted, there was no necessity to rely on the exception in that section in relation to payments required to be made or under any law.

Consequently, the two questions of law the Appeals were answered against the Revenue and in favour of the Assessee.

Reassessment — Notice after three years — Limitation — Extension of limitation period under 2020 Act — Notice for A.Y. 2016–17 issued after April 2021 — Alleged escapement of income less than R50 lakhs — Notice barred by limitation

SevenseaVincom Pvt. Ltd. vs. Principal CIT

[2024] 465 ITR 331(Jhar)

A.Y.: 2016–17

Date of order: 11th December, 2023

Ss. 147, 148, 149, 156 of the ITA 1961

43. Reassessment — Notice after three years — Limitation — Extension of limitation period under 2020 Act — Notice for A.Y. 2016–17 issued after April 2021 — Alleged escapement of income less than R50 lakhs — Notice barred by limitation.

The petitioner is a private limited company registered under the Companies Act, 2013. A notice dated 30th June, 2021 u/s. 148 of the Income-tax Act, 1961 for the A.Y. 2016–17 was issued to the petitioner. Thereafter, the Revenue issued a letter on 30th May, 2022 deemed to be a notice u/s. 148A(b) of the Act. However, no information and material relied upon by the respondent-Department were provided to the petitioner. Department passed the order on 21st July, 2022 u/s. 148A(d) of the Act and on the same date, i.e., 21st July, 2022 notice u/s. 148 of the Act was also issued for reassessment for the A.Y. 2016–17 and finally a reassessment order was passed on 31st May, 2023 against this petitioner and consequential notice of demand was also issued. The income claimed to have escaped assessment was less than ₹50 lakhs.

The petitioner wrote a writ petition and challenged the notices and the orders. The Jharkhand High Court allowed the writ petition and held as under:

“i) According to section 149 of the Income-tax Act, 1961 the limitation for issuance of notice u/s. 148 is three years from the end of the relevant assessment year and extendable beyond three years till ten years, provided the income which has escaped assessment is ₹50,00,000 or more and the permission of the prescribed sanction authority is taken u/s. 151.

ii) The notice dated July 21, 2022, issued u/s. 148, for the A. Y. 2016-17 was barred by the limitation period prescribed u/s. 149 since the three-year time period had ended on March 31, 2020. Further, the notice was for alleged escaped income which was less than ₹50 lakhs and therefore, the benefit of the extended period of limitation beyond three years till ten years was not available.

iii) The initiation of reassessment proceedings u/s. 147 was without jurisdiction. If the foundation of any proceeding was illegal and unsustainable, all consequential proceedings or orders were also bad in law. Accordingly, since the notice dated July 21, 2022, issued u/s. 148, was barred by limitation and was illegal, unsustainable and void ab initio and set aside, the subsequent reassessment order u/s. 147 and notice of demand u/s. 156 were also quashed and set aside.”

Reassessment — New procedure — Notice — Reason to believe — Necessity of live link between belief and material available — Information from “insight” portal that assessee had transacted with mutual fund found to be involved in scam — No nexus between belief and material — AO not clear whether assessee had claimed loss or dividend in mutual fund — Non-application of mind — Notices and order set aside.

Karan Maheshwari vs. ACIT

[2024] 465 ITR 232 (Bom)

A.Y.: 2016–17

Date of order: 8th March, 2024

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

42. Reassessment — New procedure — Notice — Reason to believe — Necessity of live link between belief and material available — Information from “insight” portal that assessee had transacted with mutual fund found to be involved in scam — No nexus between belief and material — AO not clear whether assessee had claimed loss or dividend in mutual fund — Non-application of mind — Notices and order set aside.

For the A.Y. 2016–17, the Assessing Officer issued an initial notice u/s. 148A(b), an order u/s. 148A(d) and notices u/s. 148 of the Income-tax Act, 1961, based on the information from the “insight” portal, that the assessee was a beneficiary of dividend income from a mutual fund alleged to have been involved in a scam.

On a writ petition contending that without providing any information as requested, the Department had proceeded to pass the order u/s. 148A(d) and the notices u/s. 148 for reopening the assessment u/s. 147, the Bombay High Court held as under:

“i) The reasons for the formation of the belief that there has been escapement of income u/s. 147 of the Income-tax Act, 1961 must have a rational connection with or relevant bearing on the information. Rational connection postulates that there must be a direct nexus or live link between the material coming to the notice of the Assessing Officer and his view that there has been escapement of income in the particular year. It is not any and every material, howsoever vague and indefinite or distant, remote and far-fetched which would suggest escapement of the income. The powers of the Assessing Officer to reopen an assessment, though wide, are not plenary. The Act contemplates the reopening of the assessment if grounds exist for believing that income has escaped assessment. The live link or close nexus should be there between the information before the Assessing Officer and the belief which he has to prima facie form an opinion regarding the escapement of the income u/s. 147.

ii) The assessee was himself a victim of the alleged fraud of the mutual fund and was again being victimised by the Assessing Officer. Even in the order u/s. 148A(d) wherein it was mentioned that statement of the key management personnel of the mutual fund was recorded, there was nothing to indicate that the assessee was part of the alleged sham mutual fund. The assessee was not a distributor and was only a client. The allegation in the initial notice issued u/s. 148A(b) that the assessee was one of the persons who had claimed fictitious short-term capital loss was without any basis. The assessee had, based on public announcement, invested in the mutual fund. The receipt of tax free dividend fund and the fact that the assessee had suffered a loss could not be held against the assessee. Even assuming that the transaction was preplanned, there was nothing to impeach the genuineness of the transaction. The assessee was free to carry on his business which he did within the four corners of the law. Mere tax planning without any motive to evade taxes through colourable devices was not frowned upon even in Mcdowelland Co. Ltd. v. CTO [1985] 154 ITR 148;

iii) That the Assessing Officer’s allegations in the notice issued u/s. 148A(b), that the mutual fund had manipulated accounting methodology so as to artificially inflate the distributable surplus and the investors, in order to reduce their tax liability, had entered into sham transactions and received dividend and short-term capital loss, did not implicate the assessee in any manner. There was nothing to indicate that the assessee had participated knowingly in a sham transaction to reduce his tax liability or to earn dividend or book short-term capital loss.

iv) The Assessing Officer was also not clear whether the assessee had booked loss or claimed dividend in the mutual fund which indicated non-application of mind by the Assessing Officer. The initial notice u/s. 148A(b), the order passed u/s. 148A(d) and the notices u/s. 148 were therefore, quashed and set aside.”

Reassessment — Notice — Limitation — New procedure — Extension of period of limitation by 2020 Act — Supreme Court ruling in UOI vs. Ashish Agarwal [2022] 444 ITR1 (SC) — Effect — Notice for reassessment u/s. 148 after 31st March, 2021 for A.Y. 2015–16 — Extension of period not applicable where limitation had already expired — Notice does not relate back to original date — 2020 Act would not extend limitation

Hexaware Technologies Ltd. vs. ACIT

[2024] 464 ITR 430 (Bom)

A.Y.: 2015–16

Date of order: 3rd May, 2024

Ss. 119, 147, 148, 148A(b), 148A(d) and 149 of ITA 1961

41. (A) Reassessment — Notice — Limitation — New procedure — Extension of period of limitation by 2020 Act — Supreme Court ruling in UOI vs. Ashish Agarwal [2022] 444 ITR1 (SC) — Effect — Notice for reassessment u/s. 148 after 31st March, 2021 for A.Y. 2015–16 — Extension of period not applicable where limitation had already expired — Notice does not relate back to original date — 2020 Act would not extend limitation.

(B) Reassessment — Notice — Document identification number — CBDT Circular stipulating mention of document identification number — Binding nature of — Failure to mention document identification number in notice — Violation of mandatory requirement — Notice invalid.

(C) Reassessment — Notice — Jurisdiction — Faceless assessment scheme — Specific jurisdiction assigned to jurisdictional Assessing Officer or faceless Assessment Officer under scheme is to exclusion of other — No concurrent jurisdiction — Office memorandum cannot override mandatory specifications in scheme.

In its return for the A.Y. 2015–16, the assessee claimed deduction u/s. 10AA of the Income-tax Act, 1961, and special deduction u/s. 80JJAA, filing audit reports in forms 56F, 10DA, 3CB and 3CD. Notices were issued calling upon the assessee to file details of the deductions with all supporting documents with which the assessee complied. The Assessing Officer passed an assessment order u/s. 143(3) of the Act, accepting the return of income filed by the assessee. On 8th April, 2021, the Assessing Officer issued notice u/s. 148 of the Act.

The assessee filed a writ petition challenging the notice as having been issued on the basis of provisions which had ceased to exist. The petition was allowed and the court held that the notice dated 8th April, 2021 was invalid.

Pursuant to the decision of the Supreme Court in UOI vs. Ashish Agarwal [2022] 444 ITR 1 (SC); directing that notices issued u/s. 148 of the Act after 1st April, 2021 be treated as notice issued u/s. 148A(b) of the Act, the Assessing Officer issued notice dated 25th May, 2022 to the assessee u/s. 148A(b) proposing, inter alia, to deny the deduction u/s. 80JJAA of the Act. Notwithstanding the detailed reply filed by the assessee, the Assessing Officer issued a notice called for further information due to change in incumbency as per the provisions of section 129 of the Act. The assessee informed the Assessing Officer that the submissions earlier made should be considered as a response to the notice. The Assessing Officer thereafter passed an order u/s. 148A(d) dated 26th August, 2022, inter alia, dismissing the assessee’s objections. Separately, a communication dated 27th August, 2022 was issued where the Assessing Officer stated that document identification number had been generated for the issuance of notice dated 26th August, 2022 u/s. 148 of the Act.

On the grounds that the notice dated 25th May, 2022 purporting to treat notice dated 8th April, 2021 as notice issued u/s. 148A(b) of the Act for the A.Y. 2015–16, the order dated 26th August, 2022 u/s. 148A(d) of the Act for the A.Y. 2015–16, and the notice dated 27th August, 2022 issued u/s. 148 of the Act for the A.Y. 2015–16, were unlawful, the assessee filed a writ petition. The Bombay High Court allowed the writ petition and held as under:

“i) F or the A. Y. 2015-16 the provisions of the 2020 Act were not applicable. The reliance by the Department on Instruction No. 1 of 2022 ([2022] 444 ITR (St.) 43) issued by the CBDT was misplaced and neither the provisions of the 2020 Act nor the judgment in UOI v. Ashish Agarwal [2022] 444 ITR 1 (SC); provided that any notice issued u/s. 148 of the 1961 Act after March 31, 2021 would travel back to the original date.

ii) The notice, dated August 27, 2022, u/s. 148 of the 1961 Act was barred by limitation since it was issued beyond the period of limitation prescribed in section 149 read with the first proviso. Section 149(1)(b) of the unamended provisions provided a time limit of six years from the end of the relevant assessment year for issuing notice u/s. 148. The relevant assessment year, being 2015-16, the sixth year had expired on March 31, 2022. The first proviso to section 149 provided that up to the A. Y. 2021-22 (period before the amendment), the period of limitation as prescribed in the unamended provisions of section 149(1)(b) would be applicable and only from the A. Y. 2022-23, the period of ten years as provided in section 149(1)(b), would be applicable. To interpret the first proviso to section 149 to be applicable only for the A. Ys. 2013-14 and 2014-15, i. e., for the assessment years where the period of limitation had already expired on April 1, 2021, was contrary to the plain language of the proviso and would render the first proviso to section 149 redundant and otiose and one phrase would have to be substituted with another in section which was impermissible. When the limitation period had already expired on April 1, 2021 when section 149 was amended for the A. Ys. 2013-14 and 2014-15, it could not be revived by way of a subsequent amendment and, hence, for these assessment years the proviso to section 149 was not required. Reopening for the A. Ys. 2013-14 and 2014-15 had already been barred by limitation on April 1, 2021. Accordingly, the extended period of ten years as provided in section 149(1)(b) would not have been applicable to the A. Ys. 2013-14 and 2014-15, de hors the proviso. Hence, to give meaning to the proviso it has to be interpreted to be applicable for the A.Y. up to 2021-22.

iii) The period of limitation and the restriction under the proviso to section 149 were provided in respect of a notice u/s. 148 and not for a notice u/s. 148A. The notice dated April 8, 2021, which though originally issued as a notice u/s. 148, (under the old provisions prior to the amendments made by the Finance Act, 2021), had now been treated as a notice issued u/s. 148A(b) in accordance with the decision of the Supreme Court in UOI v. Ashish Agarwal [2022] 444 ITR 1 (SC). Once the notice dated April 8, 2021 had been treated as having been issued u/s. 148A(b), it was no longer relevant for the purpose of determining the period of limitation prescribed u/s. 149 or the restriction in the first proviso to section 149. Therefore, for considering the restriction on issue of a notice u/s. 148 prescribed in the first proviso to section 149, the fresh notice dated August 27, 2022 issued u/s. 148 was required to be considered. Such notice was beyond the period of limitation of six years prescribed by the 1961 Act prior to its amendment by the Finance Act, 2021. For the A. Y. 2015-16, the unamended time limit of six years had expired on March 31, 2022 and the notice u/s. 148 had been issued on August 27, 2022 and, therefore, was barred by the restriction of the first proviso to section 149.

iv) Even if the fifth and sixth provisos were to be applicable, the notice u/s. 148 dated August 27, 2022 for the A. Y. 2015-16 would still be beyond the period of limitation. The fifth proviso extends limitation with respect to the time or extended time allowed to an assessee in the show-cause notice issued u/s. 148A(b) or the period, during which the proceeding u/s. 148A were stayed by an order of injunction by any court. Hence, in view of the fifth proviso, the period to be excluded would be counted from May 25, 2022, i.e., the date on which the show-cause notice was issued u/s. 148A(b) by the Assessing Officer subsequent to the decision in UOI v. Ashish Agarwal [2022] 444 ITR 1 (SC) and up to June 10, 2022, which is a period of 16 days. The period from June 29, 2022 up to July 4, 2022 could not be excluded since it was not based on any extension sought by the assessee, but at the behest of the Assessing Officer. Even if it was it would only be an exclusion of five days. Even after considering the excluded periods, the notice dated August 27, 2022 was still beyond limitation. The fact that the original notice dated April 8, 2021 issued u/s. 148 was stayed by this court on August 3, 2021, and its stay came to an end on March 29, 2022 on account of the decision of this court, would not be relevant for providing extension under the fifth proviso. The fifth proviso provides for extension only for the period during which the proceeding u/s. 148A is stayed. The original stay granted by the court was not with respect to the proceeding u/s. 148A but with respect to the proceeding initiated under the unamended provisions of section 148 and, hence, such stay would not extend the period of limitation under the fifth proviso to section 149. On the facts, the sixth proviso was not applicable.

v) The notice issued u/s. 148 for the A. Y. 2015-16 had been issued without mentioning a document identification number. Issuance of a separate intimation letter on even date would not validate the notice issued u/s. 148 since the intimation letter referred to a document identification number with respect to some notice u/s. 148 dated August 26, 2022. The notice in question issued to the assessee was dated August 27, 2022 and not August 26, 2022 for which the document identification number was generated. The procedure prescribed in Circular No. 19 of 2019 dated August 14, 2019 ([2019] 416 ITR (St.) 140) for non-mention of document identification number in case letter or notice or order had not been complied with by the Assessing Officer. If the document identification number was not mentioned the reason for not mentioning it, and the approval from the specified authority for issuing such letter or notice or order without the document identification number had to be obtained and mentioned in such letter or notice or order. No such reference was stated in the notice.

vi) The notice dated August 27, 2022 u/s. 148 had been issued by the jurisdictional Assessing Officer and not the National Faceless Assessment Centre and hence was not in accordance with the Scheme announced by notification dated March 29, 2022 ([2022] 442 ITR (St.) 198).

vii) The Scheme dated March 29, 2022 ([2022] 442 ITR (St.) 198) in paragraph 3 clearly provides that the issuance of notice ‘shall be through automated allocation’. It was not the contention of the Assessing Officer that he was the random officer who had been allocated jurisdiction.

viii) No reliance could be placed by the Department on the Office Memorandum, dated February 20, 2023, to justify that the jurisdictional Assessing Officer had jurisdiction to issue notice u/s. 148. The Office Memorandum, merely contained the comments of the Department issued with the approval of Member (L&S) of the CBDT and was not in the nature of a guideline or instruction issued u/s. 119 to have any binding effect on the Department.

ix) The guidelines dated August 1, 2022 did not deal with or even refer to the Scheme dated March 29, 2022 ([2022] 442 ITR (St.) 198) framed by the Government u/s. 151A. The Scheme dated March 29, 2022 u/s. 151A, would be binding on the Department and the guidelines dated August 1, 2022 could not supersede the Scheme and if it provided anything to the contrary to the Scheme, it was invalid.

x) There was no allegation regarding income escaping assessment u/s. 147 on account of any undisclosed asset. In his order, the Assessing Officer had restricted the escapement of income only with regard to the claim of deduction u/s. 80JJAA and had made disallowance of claim of foreign exchange loss. The Assessing Officer had accepted the contentions of the assessee in respect of the foreign exchange loss and therefore, it could not be justified as an escapement of income. He had also accepted that the transactions in issue had been duly incorporated in the assessee’s accounts and that no deduction was claimed in respect of the deduction allowed u/s. 10AA. None of the issues raised in the order showed an alleged escapement of income represented in the form of asset as required u/s. 149(1)(b). The alleged claim of disallowance of deduction did not fall either under clause (b) or clause (c) as it was neither a case of expenditure in relation to an event nor of an entry in the books of account as no entries were passed in the books of account for claiming a deduction under the provisions of the Act.

xi) The assessment could not be reopened u/s. 147 based on a change of opinion. The Assessing Officer had no power to review his own assessment when the information was provided and considered by him during the original assessment proceedings. The claim of deduction u/s. 80JJAA was made by the assessee in the return of income and form 10DA being the report of the chartered accountant had been filed. In the note filed along with form 10DA, the assessee had specifically submitted that software development activity constituted “manufacture or production of article or thing”. During the assessment proceedings, in response to the notice the assessee had furnished the details of deduction claimed under Chapter VI of the Act along with supporting documents. The Assessing Officer had passed the assessment order allowing the claim of deduction u/s. 80JJAA. Such claim had been allowed in the earlier assessment as well from the A. Y. 2010-11. The concept of change of opinion being an in-built test to check abuse of power by the Assessing Officer and the Assessing Officer having allowed the claim of deduction u/s. 80JJAA, reopening of assessment on change of opinion or review of the original assessment order was not permissible even nder the new provisions.

xii) The initial notice issued u/s. 148A(b), the order u/s. 148A(d) to issue the notice and the notice issued u/s. 148 for the A. Y. 2015-16 were quashed and set aside.”

Reassessment — Change of law — Jurisdiction — Notice issued under existing law and reassessment order passed and becoming final — Issue of notice u/s. 148A pursuant to subsequent direction of Supreme Court in UOI vs. Ashish Agarwal — Without jurisdiction and therefore quashed

Arvind Kumar Shivhare vs. UOI
[2024] 464 ITR 396(All)
A.Y.: 2017–18
Date of order: 4th April, 2024
Ss. 147, 148 and 148A of the ITA 1961

40. Reassessment — Change of law — Jurisdiction — Notice issued under existing law and reassessment order passed and becoming final — Issue of notice u/s. 148A pursuant to subsequent direction of Supreme Court in UOI vs. Ashish Agarwal — Without jurisdiction and therefore quashed.

The assessee was originally assessed to tax u/s. 143(3) of the Income-tax Act, 1961 for the A.Y. 2017–18, by an assessment order dated 29th May, 2019. Thereafter, the assessee received a reassessment notice dated 31st March, 2021 issued u/s. 148 of the Act. The assessee participated in the reassessment proceeding and a reassessment order dated 28th March, 2022 was passed by the Assessing Officer. The assessee did not challenge it, and it attained finality. A second reassessment notice for the A.Y. 2017–18 dated 30th July, 2022 was issued, invoking section 148A of the Act.

The assessee filed a writ petition and challenged the validity of notice u/s. 148A.

The counsel for the Revenue contended that since the reassessment notice dated 31st March, 2021 was digitally signed on 1st April, 2021, by virtue of the law declared by the Supreme Court in Civil Appeal No. 3005 of 2022 (UOI vs. Ashish Agarwal 1), decided on 4th May, 2022, the Revenue authorities have taken a view that the notice dated 31st March, 2021 was wrongly acted upon. That notice having been digitally signed on 1st April, 2021, the day when the amended law that introduced section 148A of the Act after making amendment to sections 147 and 148 of the Act came into force, the entire proceedings culminating in the reassessment order dated 28th March, 2022 were vitiated.

The Allahabad High Court allowed the writ petition and held as under:

“i) There could exist only one assessment order for an assessee for one assessment year. Since the reassessment order had already been passed on March 28, 2022 for the A. Y. 2017-18, there was no proceeding pending to have been influenced or affected or governed by the order of the Supreme Court dated May 4, 2022 in UOI v. Ashish Agarwal 1.

ii) In the absence of any declaration of law to annul or set aside the pre-existing reassessment u/s. 147 and assessment order dated March 28, 2022, after issuing notice u/s. 148, the assessing authority had no jurisdiction to reissue the notice dated July 30, 2022 u/s. 148A. The proceedings were without jurisdiction and a nullity, and therefore, quashed.”

Non-resident — Double taxation avoidance — Income deemed to accrue or arise in India — Royalty — Meaning of — Difference between transfer of copyright and right to copyrighted article — Provision of customer relationship management services by resident of Singapore — Fees received not royalty within meaning of Act — Not also taxable in India under DTAA between Singapore and India.

CIT (International Taxation) vs. Salesforce.Com

Singapore Pte. Ltd.

[2024] 464 ITR 257 (Del)

A,Ys.: 2011–12 to 2017–18

Date of order: 14th February, 2024

Ss. 9(1)(vi), Expl. 2of the ITA 1961: and DTAA

between Singapore and India Art. 12(4)(b)(1)

39. Non-resident — Double taxation avoidance — Income deemed to accrue or arise in India — Royalty — Meaning of — Difference between transfer of copyright and right to copyrighted article — Provision of customer relationship management services by resident of Singapore — Fees received not royalty within meaning of Act — Not also taxable in India under DTAA between Singapore and India.

The assessee was a tax resident of Singapore and was stated to provide a customer relationship management services application which was stated to be an ‘enterprise business application’. The application enabled customers and subscribers to record, store and act upon business data, formulate business strategies and enable businesses to manage customer accounts, track sales positions, evaluate marketing campaigns as well as bettering postsales services. The income derived from the subscription fee, which the assessee received from customers in India for providing customer relationship management-related services, was assessed to income-tax.

The Tribunal held that the amount was not assessable in India.

On appeal by the Revenue, the Delhi High Court upheld the decision of the Tribunal and held as under:

“i) Section 9 of the Income-tax Act, 1961, defines royalty as the amount received for the transfer of all or any rights (including the granting of a licence) in respect of a patent, invention, model, design, secret formula or process or trade mark or similar property. There is a clear distinction between royalty paid on transfer of copyright rights and consideration for transfer of copyrighted articles. The right to use a copyrighted article or product with the owner retaining his copyright, is not the same thing as transferring or assigning rights in relation to the copyright. The enjoyment of some or all the rights which the copyright owner has, is necessary to invoke the definition of royalty.

ii) In order qualify as fees for technical services, the services rendered ought to satisfy the ‘make available’ test. Therefore, in order to bring services within the ambit of technical services under the Double Taxation Avoidance Agreement between India and Singapore, the services would have to satisfy the ‘make available’ test and such services should enable the person acquiring the services to apply the technology contained therein.

iii) S ince the copyright in the application was never transferred nor vested in a subscriber, the fees were not assessable u/s. 9 of the Act.

vi) Article 12(4)(b) of the DTAA between Singapore and India would have been applicable provided the Department had been able to establish that the assessee had provided technical knowledge, experience, skill, know-how or processes enabling the subscriber acquiring the services to apply the technology contained therein. The explanation of the assessee, which had not been refuted even before the High Court was that the customer was merely accorded access to the application and it was the subscriber which thereafter inputs the requisite data and took advantage of the analytical attributes of the software. This would clearly not fall within the ambit of article 12(4)(b) of the Agreement.

v) That the amount was not assessable in India.”

Charitable purpose — Exemption — Denial of exemption by AO on grounds that assessee did not furnish proper information to Charity Commissioner, that there was shortfall in provision for indigent patients fund, that assessee had generated huge profits, that hospital did not serve poor and underprivileged class, and assessee paid remuneration to two trustees — Grant of exemption by appellate authorities on finding that orders for earlier assessment years not set aside in any manner or over-ruled by court — No infirmity in order of Tribunal granting exemption

CIT(Exemption) vs. Lata Mangeshkar Medical Foundation

[2024] 464 ITR 702 (Bom.)

A.Y.: 2010–11

Date of order: 30th August, 2023

S. 11 of ITA 1961

38. Charitable purpose — Exemption — Denial of exemption by AO on grounds that assessee did not furnish proper information to Charity Commissioner, that there was shortfall in provision for indigent patients fund, that assessee had generated huge profits, that hospital did not serve poor and underprivileged class, and assessee paid remuneration to two trustees — Grant of exemption by appellate authorities on finding that orders for earlier assessment years not set aside in any manner or over-ruled by court — No infirmity in order of Tribunal granting exemption.

The assessee-trust was running a medical institution. For the A.Y. 2010–11, the Assessing Officer (AO) denied the assessee-trust exemption u/s. 11 of the Income-tax Act, 1961 on the grounds that (a) the assessee did not furnish proper information to the Charity Commissioner, (b) there was shortfall in making provision for indigent patients fund, (c) the assessee had generated huge surplus and therefore, its intention was profit making, (d) the hospital of the assessee did not provide services to the poor and under-privileged class of the society, and (e) there was violation of provisions of section 13(1)(c) since the assessee paid remuneration to two individual trustees who did not possess significant qualification and one of them was beyond 65 years of age.

The Commissioner (Appeals) restored the exemption u/s. 11 following the orders of the Tribunal for the A.Y. 2008–09 and 2009–10. The Tribunal affirmed his order of the Commissioner (Appeals).

On appeal by the Revenue, the Bombay High Court upheld the decision of the Tribunal and held as under:

“i) There was no reason to interfere with the order of the Tribunal. The Tribunal had followed its own decision in which it had granted exemption u/s. 11 to the assessee for the A. Ys. 2008-09 and 2009-10. Since there was nothing on record that such orders had been set aside or overruled in any manner by the court, the Tribunal had found no reason to interfere with the order of the Commissioner (Appeals).

ii) There was no infirmity in the order of the Tribunal granting exemption u/s. 11 to the assessee for the A. Y. 2010-11.”

Business expenditure — Capital or revenue expenditure — Software development expenses — Product abandoned on becoming obsolete due to development in technology — No enduring benefit accrued to the Assessee — Expenditure incurred revenue in nature and allowable

Principal CIT vs. Adadyn Technologies Pvt. Ltd.

[2024] 465 ITR 353 (Kar.)

A.Ys.: 2015–16 and 2016–17

Date of order: 10th April, 2023

S. 37 of the ITA 1961

37. Business expenditure — Capital or revenue expenditure — Software development expenses — Product abandoned on becoming obsolete due to development in technology — No enduring benefit accrued to the Assessee — Expenditure incurred revenue in nature and allowable.

The Assessee was engaged in the business of rendering customised internet advertising services for advertisers which could be used on the desktop. The Assessee had incurred software development expenditure of R6,06,30,146 during A.Y. 2015–16 and R20,80,24,899 during A.Y. 2016–17. In the scrutiny assessment, the Assessing Officer (AO) held that if the software platform was developed, it would give enduring benefit to the Assessee, and therefore, held the expenditure to be capital in nature.

The CIT(A) confirmed the action of the AO. The Tribunal reversed the finding of the AO and allowed the appeals of the Assessee.

The Karnataka High Court upheld the decision of the Tribunal and held as under:

“i) The Assessee’s investment to develop a software platform for desktops had become obsolete due to rapid change in the technology and the Assessee had abandoned further development as a result of which it had abandoned the product and incurred a loss. The project having been abandoned, the assessee would not get any enduring benefit.

ii) The Tribunal, on correct analysis of the facts, had held that the expenditure was revenue and not capital in nature. There was no ground for interference with the findings recorded by the Tribunal.”

Digital Tax War and Equalisation Levy

RECENT DEVELOPMENT

The Finance (No. 2) Act 2024 has dropped the provision of Equalisation Levy (EQL) of the year 2020 on e-commerce supply of services and goods. (Finance Act 2016, Chapter VIII has been suitably modified.) What we call equalisation levy is a part of Digital Taxation. Digital Taxation has been the subject of deep discussions, since 1997, and a global tax war, since 2013. In this tax war, the US Government has been on one side, China has been neutral, and the rest of the world has been on the other side. The USA has been insisting that there should be no digital taxation on non-residents of a country; in other words, digital commerce income should be taxed only by the Country of Residence (COR). India resisted this demand from the USA, but finally, with the Finance (No. 2) Act, 2024 India has succumbed to US pressures. Even before the Indian withdrawal, U.K., France, etc. have deleted their unilateral digital tax laws.

With the withdrawal of EQL 2020, in the Global Digital Tax War, USA has emerged as ‘The Winner’…. for the time being. Let us see how the situation develops. 

The Global Digital Tax War and earlier, Digital Tax discussions have engaged many tax commissioners as well as professionals and a huge amount of intellectual work has been done. Since 2013, there was a huge discussion on BEPS Action 1 and, since the year 2017, on Pillar 1. The USA wants to bury all this. In this brief article I am just giving a timeline of what has happened, with some insights.

REASON FOR THE DIGITAL TAX WAR

Most of the prominent Digital Corporations (DCs) are from USA and China. They are the providers of digital services and sellers of goods and services through digital platforms. Hence one can say that broadly, USA and China are the Countries of Residence (COR) for digital commerce. The rest of the world constitutes Countries of Market (COM). The USA, as the COR, is taxing its digital corporations and collecting vast amounts of tax. It does not want COM to tax these corporations. Because, if COMs tax DCs (digital corporations) then under the Double Tax Avoidance Treaty (DTA), the USA would have to give set off / credit for COM taxes. This would be a significant loss of revenue for the USA. Hence, the USA is determined that no COM should have any digital tax law. It may be noted that the USA is able to tax DCs resident in USA without any change in existing tax law.

Under existing OECD and UN model treaties (which are outdated and need major modifications), COMs cannot tax non-resident DCs doing digital business without a PE in the COM. Hence, COMs want to change the model treaty. The USA does not allow change in the model treaty. This is the reason for the Digital Tax War. This is a COR vs. COM Digital Tax War.

A TIMELINE OF DIGITAL TAX DEVELOPMENTS

History

In the year 1997, OECD at its Ottawa Conference (Canada) published a report that E-commerce is going to be very important, and OECD should work on drafting special provisions for E-Commerce taxation in OECD model of DTA.

In the year 2000, the CBDT, Government of India appointed an E-commerce Committee consisting of Commissioners and Professionals to study the subject and report.

The Committee reported that E-commerce is really an important business, and it will grow fast. Existing tax laws and Treaty Models cannot be applied to it because the definition of Permanent Establishment (PE) was outdated. The Committee recommended that the concept of PE should be reviewed.

In the year 2005, OECD published a report and said that E-Commerce is not significant. There is no need for any further discussion on it. This was an “about turn” by OECD from its 1997 report.

Background

The US Government already knew that if E-Commerce tax law came in, then USA would be the loser. Hence, it convinced OECD not to proceed further. Normally, the G7 nations — USA, UK, France, Germany, Canada, Italy, and Japan hold similar views on such international matters.

Amazon, Google, Facebook, and other Digital Corporations (DCs) were earning hundreds of millions of Pounds / Euros from the COM — U.K., France, Germany, etc. And they were not paying any significant tax to the COM Governments. In the year 2013 Ms. Margaret Hodge, Chair of the British Public Accounts Committee clearly expressed her anger at the Corporate Tax Avoidance. The committee was clear in its view that the revenue that was rightfully due to them as COM was not coming to them. They had no solution and were frustrated, because the OECD model DTA did not permit them to tax non-resident DCs. These nations pushed and finally, G20 asked OECD to redraft the OECD model of DTA so that even DCs pay taxes to the COM.

In the year 1997, the use of computers and internet was limited. Mobile phones were not in use. In any case, nobody had thought of using mobile phones to conduct commerce. In those times, this business was called Electronic Commerce or E-commerce. Within about 15 years, the whole world started doing business on the internet. Mobile phones became so common that smallest transactions to large transactions started happening on mobile phones. In essence, commercial communication happens through a device — computer-mobile phones; internet and intermediary servers. By the year 2013, however, OECD and other experts found it difficult to call mobile phone commerce as E-commerce. Hence, they developed a new name- Digital Commerce. In essence, it is a business carried out by the seller of goods or services without having a permanent establishment in COM.

In 2013, OECD again took an about turn when UK, France and other nations could not tolerate loss of tax revenue on digital commerce and G20 pushed OECD. They declared that E-commerce was a very big business. The existing OECD model was inadequate to deal with Digital Commerce. COM nations were losing their due tax revenue and hence OECD model needed a review.

The project to draft new DTA provisions was called: “Base Erosion & Profit Shifting” or BEPS. In simple words, a project to curb international “Tax Evasion” and “Tax Planning”.

USA again played its game. It declared that there are several forms of tax evasion and OECD should work on trying to control all tax evasions & avoidances. Hence the BEPS work was divided into fourteen different subjects. Focus was expanded from a single subject of Digital Taxation to fourteen different subjects. For each subject, a separate report would be prepared. Separate committees were constituted for different subjects. (Instead of “Committee” they used the word “Task Force”). There would be a fifteenth report which would give a draft Multi-Lateral Instrument (MLI). All the parties to BEPS agreement would sign MLI. Since the exercise started with E-commerce, the very first report was titled BEPS Action One report on E-Commerce. It was given maximum importance, and the expectation was that the report would be published in the year 2014. In other words, OECD model DTA was expected to be modified to take care of E-Commerce taxation.

BEPS committees had expert senior Income-tax officials as well as tax professionals. They put in a huge amount of work. Eventually, BEPS Action reports from No. 2 to 15 were published. However, BEPS Action One report on E-commerce could not come up with draft rules for taxation of Digital Income. The main reason for this failure was that the US Government kept on stone walling the project. The USA insisted that:

(i) the basic right to tax business income should always be with COR;

(ii) the concept of PE cannot be modified;

(iii) the committee and all countries must work within the Framework of OECD;

(iv) whatever amendments may be made in the tax treaty model, must be applicable to all the businesses. One cannot make separate rules for E-commerce and other rules for “Brick & Mortar” businesses. In other words, “Ring Fencing” was not acceptable. (It may be noted that in Pillar One, US proposal for Digital Tax involves “Ring Fencing”.)

In 2015, the BEPS Action One Committee came up with an interim report. There was a reference in the interim report that some tax system like EQL may be imposed by the governments. Government of India (GOI) took this opportunity and immediately appointed a new E-commerce committee – 2015. The Committee gave a report and made suggestions. In the Finance Act 2016, GOI brought EQL 2016. USA was unhappy with it but could not object because the law brought in by GOI was in line with the interim report. This was a tax essentially on advertisement charges paid by Indian residents to non-residents who published their advertisements on the internet. The rate was 6 per cent, to be deducted at source by the payer. This provision came as chapter VIII of the Finance Act 2016 – Sections 163 to 165. EQL 2016 was not a part of the Income-tax Act. If it were a part of the Income-tax Act, DTA would override EQL. There is no provision in DTA for EQL, which could frustrate GOI’s efforts to tax DCs.

Government of India wanted to tell the world that it was serious about bringing in the E-Commerce tax. The revenue that GOI would get from Equalisation Levy may be insignificant, but the world must realise that it cannot go on negotiating forever.

BEPS ON E-COMMERCE FRUSTRATED

The BEPS Action One was started for E-commerce taxation, it could not bring in the necessary draft for amending the OECD model. U.K., France and other countries in OECD that pushed for BEPS Action One could not levy any tax on DCs. Their efforts were completely wasted. This was one more success for the USA.

DTA TRADITIONS CHANGED

So far, the history of DTAs has been as under:

Double tax Avoidance Agreement is an agreement between two countries. OECD and United Nations (UN) have given their model treaties to be used as templates. The two negotiating countries would make such modifications as they like. Thus, OECD and UN models had absolutely zero binding power. They were just suggestions. Countries were free to either adopt UN model or OECD model or develop their own model.

The USA insisted for huge change in the system. In the BEPS group of discussions even non-OECD & Non-G20 countries were invited. It was called “Inclusive Framework”. Total OECD members were 36 in the year 2013. Total number of countries that participated in BEPS negotiations went up to 136. The USA further insisted that once a person signs MLI, that country should not adopt UN model, or any other model and it should largely follow the BEPS model – MLI. In addition, the MLI would also expect signatories to modify their domestic laws in line with the MLI.

Initially, several countries were happy that they could participate in tax treaty drafting negotiations even though they were not OECD members. Later they realised that signing the BEPS agreement amounted to restriction on their freedom.

By now, 102 nations have signed MLI. The USA was the main architect of important clauses of the Agreement. But USA has not signed MLI; and will not sign MLI. This is US Unilateralism.

UNILATERAL DIGITAL TAX LAW

While the BEPS negotiations were going on, some COMs were frustrated. Every year, huge revenue was going out of their countries without payment of any taxes. Hence, some countries started their own unilateral digital tax law. Britain, France and India are some of the prominent countries who passed unilateral tax laws. This was clearly contrary to the US demand that any digital tax provision must be within the OECD framework.

The US Government started action under Super 301 (section 301 of United States Trade Act of 1974) and alleged that all the countries that had passed unilateral digital tax law had caused damage to US digital commerce. Hence, these countries were summoned as “guilty of violating the BEPS principles”. They were asked to drop the unilateral tax laws or face a trade war with USA. None of the countries could afford trade war with USA. Hence, all these countries agreed to drop their unilateral laws. The provision in Finance Act 2024 is a result of India succumbing to US pressures and thus dropping a unilateral digital tax law — EQL-2020.

After the demise of BEPS One, USA came out with another proposal around the year 2020. Pillar 1 was to provide a draft for digital taxation. Pillar 2 was to provide for curbing tax avoidance through tax havens and other matters. These reports drafted are so complex, arbitrary and unjust that again years were spent on discussions without any conclusion. As on the date of writing this article, Pillar 1 has seen no conclusion. Until Pillar 1 is concluded; OECD model does not get modified; and COMs cannot tax DCs’ digital incomes. COMs have been forced to abolish their Unilateral digital tax laws. Hence US DCs do not face digital taxes outside the USA.

There have been no agreements on BEPS-Action One and on Pillar 1. Hence, technically, one can say that India is free to choose OECD model or UN model on Digital Taxation. However, this would be a “technical” statement and not “practical”. The US may never modify India-USA DTA. And hence UN provisions cannot come into effect.

U.N. has its own model DTA. The UN Expert Committee has drafted its own digital tax provision as Article 12B. It is a fairly simple provision to understand, to administer (department) and to comply with (taxpayer). Countries are free to adopt it. However, everyone is scared of the US Govt., and there is not much progress on Article 12B.

There is a Union of African Nations named Economic Commission for Africa. This association has criticised OECD tax reform process.

India wanted to tell the world and mainly the USA that “India is serious about imposing Digital tax”. This declaration has been made by three legal provisions – EQL 2016, EQL 2020 and Significant Economic Presence – SEP. The last provision is part of the Income-tax Act (ITA) – Section 9(1)(i) Explanation 2A. Since this provision is part of the ITA, it will not work unless the relevant DTA includes a provision for digital tax. Hence, at present this provision has no practical effect.

EQL 2016 CONTINUES

It may be noted that while the Finance Act 2024 has dropped EQL 2020, the earlier provision of EQL 2016 still continues. The reason may be that practically EQL 2016 is suffered by the Indian advertiser making the TDS from payments for advertising charges.

EUROPEAN HELPLESSNESS

Remember the North Stream Gas Pipeline which starts from Russia, passes through the Baltic Sea and lands in Germany? It was meant to supply cheap Russian gas to Germany and Europe. This gas was very important for German and European economies.

In September, 2022, both North Stream 1 and North Stream 2 were blown up. It is rumoured that this was done by the USA. Russian gas supply was damaged. Germany went into recession and suffered heavily. Still, German politicians could not criticise the U.S. Government. This is the extent to which Europe has lost its independence to USA.

When important issues like energy supply and economy are surrendered to US pressures; what do we expect for a smaller issue like Digital Tax?

This article gives a glimpse of important Digital Tax War. In essence, US stonewalling has succeeded, and at present, the world has no way to tax digital incomes of non-residents.

Qualify to Adore a Position

These two are very interesting lines, often used like proverbs. Let us see both the verses.

१. एरंडोsपि द्रुमायते (Erandopi Drumayate)

यत्र विद्वज्जनो नास्ति श्लाघ्यस्तत्राल्पधीरपि !

निरस्तपादपे देशे एरण्डोऽपि द्रुमायते!

This is indeed a great thought. It reflects the richness of our Indian culture.

This is from Hitopadesh (1.67). It literally means:

यत्र विद्वज्जनो नास्ति – Where there is no knowledgeable person.

श्लाघ्यस्तत्राल्पधीरपि – A person with mediocre or average intelligence also is regarded as a scholar.

निरस्तपादपे देशे – Where there are no trees (desert).

एरंडोSपि द्रुमायते – Even a small bush or shrub like Eucalyptus is treated as a big ‘tree’.

We observe and experience this at many places. For example, the speakers invited in some conferences are very learned and knowledgeable, whereas in some conferences we find average speakers. They may not possess that expertise; nor do they have a good exposure. The same situation prevails in many walks of life. Take fine arts. In a cheap or low-quality orchestra, an average singer receives a lot of praise if the audience is such which has not seen or heard high-quality singers before. In general, we find that talent is admired where intelligent people are there.

It has another meaning as well. If there is no competition, even an average person is regarded as talented. Haven’t we seen a band baja in a hoarse voice in villages during a baarat? And surprisingly, people enjoy and dance to such tunes.

२. काक: किं गरुडायते !( Kaakah Kim Garudayate)

गुणैरुत्तमतां याति – One rises to high position by his qualities.

नोच्चैरासनसंस्थितः – One cannot be considered as great merely by occupying a highly placed seat.

प्रासादशिखरस्थो ऽपि – Even a crow sits at the top of a palace.

काकः किं गरुडायते – It cannot become an eagle.

A man commands respect due to his qualities; and not by occupying a high ‘seat’. Even if a crow sits on the top of a palace, do we call him an eagle?

Again, a common experience. There are many intelligent, talented, knowledgeable and competent persons in an office or organisation. However, the boss may be occupying that seat merely due to seniority or by ‘other’ considerations or means. Still, only the real talent is respected. The so-called ‘boss’ also will need help and guidance from such talented personnel. People may outwardly show respect to the ‘boss’, but in reality, may ridicule him! Even a person outside the organisation will recognise such competent person. They will insist that he should be sent for their work!

Take political parties. A person may have become ‘President’ due to inheritance or other dubious tactics. But people know who is the person that can run the show, the one whose views will matter. One cannot command true respect merely by occupying an ‘elevated chair’.

Readers may count many examples of these two proverbs.

Faceless, Fair and Friendly

The Finance Minister, Smt. Nirmala Sitharaman, in her address on the occasion of the 165th Anniversary of the Income Tax Day celebrations in New Delhi, emphasised on a “Faceless, Fair and Friendly” Tax Administration — something taxpayers have been yearning for ages.

Every year, 24th July is celebrated as Income Tax Day in India. This day commemorates the introduction of Income Tax in India by Sir James Wilson in 1860. While this initial implementation laid the groundwork, it was the comprehensive Income-tax Act of 1922 that truly established a structured tax system in the country. This Act not only formalised various income tax authorities but also laid the foundation for a systematic administration framework1. In 2010, for the first time, the Income Tax Department decided to celebrate 24th July to mark 150 years of the levy of the tax in India.


1. https://pib.gov.in/PressReleasePage - posted on 21st August, 2024

However, the Ministry of Finance celebrated the 165th anniversary of Income Tax Day in New Delhi on 21st August, 2024 and released a “My Stamp” dedicated to Income Tax Day. The Finance Minister hailed both taxpayers, for contributing to nation-building, and tax officials, for raising revenues for the country. She urged tax officials to write notices in simple and courteous language and use enforcement only in exceptional cases. She emphasised making income-tax filing seamless and painless. Her message was loud and clear to make the tax administration transparent, taxpayer-friendly and trustworthy. Such a request and exhortation coming from the Finance Minister raises a great deal of hope.

Most of us have experienced the pains and agony of our clients due to high-pitched assessments, unfriendly notices, unjustified penalties, threatening prosecution even for a venial breach, adjustment of old unverified demands against current refunds and whatnot. And therefore, the FM’s assurance matters. She has also informed about the plans to introduce simplifications to the Income Tax Act in six months.

The buoyancy in tax revenues and increase in voluntary tax compliances (with 58.57 lakhs first-time ITR filers for A.Y. 2024–25) are testimony of the growing economy and taxpayers’ faith and participation in national development2. A fair and just treatment from the tax department is the least a taxpayer can expect in return.


2. A growth of 17.7 per cent achieved in net collections and an increase of 7.5% in the number of ITRs filed over the previous year (till 31st July,2024) [Source: https://pib.gov.in/PressReleasePage - posted on 21st August 2024]

The expectations of fair treatment and reasonable tax laws are not just in respect of direct taxes, but indirect taxes as well, especially Goods and Service Tax (GST).

GST was introduced just seven years ago as a panacea for the complex indirect tax regime in the country. It was expected to be ‘faceless’, with the GSTN portal being the ‘face’ of the administration. The law also provides for the issuance of notices and orders only on the GSTN Portal. Despite such a clear mandate and frequent Court interventions, it is common to receive a notice or an order offline. Clearly, what is legislated is not administered. As far as hearings are concerned, the GST law mandates that a hearing is a must before adjudication but does not specifically mention about an online / faceless hearing. At times, the authority proceeds to pass orders without granting even a hearing in person. Is this the interpretation of faceless hearing? Strange!

A fair attempt to resolve controversies (which are inevitable in tax laws) by the legislators and the policy makers, is visible with the issuance of a barrage of circulars providing relief to various sectors where controversies were brewing. However, within this apparent ‘fairness’ lies the ‘gross unfairness’. How could it be ‘fair’ when a retrospective amendment permits a belated claim of input tax credit in cases which are being litigated but denies refunds to a genuine taxpayer who paid up tax, interest and penalties immediately on demand in similar situations? When the resolution of controversies is regularly sought to be achieved on the principle of ‘as is where is’ basis, this inequity, as well as inequality, is clearly ‘unfair’, especially in cases where the taxpayer coughs up the tax, interest and penalties based on a ‘friendly’ advise from a tax authority, whose actual conduct portrays everything other than ‘friendliness’, just to later on realise that another taxpayer who did not act on such ‘friendly’ advise and withstood the pressures is ultimately exonerated.

In indirect taxation, there is a concept of ‘unjust enrichment’. The dictionary meaning is “a benefit gained at another’s expense without legally justifiable grounds, such as one gained by mistake”. In other words, a taxpayer cannot get a refund of taxes paid by him to the government unless the same are borne by him. If the taxpayer has collected taxes from others and paid to the government, the refunds arising for any reason cannot be granted unless those taxes are restituted to the payer (customer).

The majority judges in the case of Mafatlal Industries Ltd. vs. UOI3 held that “the doctrine of unjust enrichment is, however, inapplicable to the State. The State represents the people of the country. No one can speak of the people being unjustly enriched.”


3. SUPREME COURT REPORTS [1996] SUPP. 10 S.C.R.

Is it fair on the part of the government to be unjustly enriched at the cost of the taxpayers?

There are umpteen instances where one can question the ‘faceless nature’, ‘fairness’ and ‘friendliness’ of the indirect tax administration. In fact, such instances have become a far too familiar pattern. An overzealous tax authority would attempt far-fetched interpretations (e.g., Securities held by a holding company in a subsidiary company, Share Premiums, ESOPs, etc., would amount to rendition of services) to garner more revenue even without authority of law. Despite the interpretation being far-fetched, it sky-balls into a nationwide investigation, with virtually all significant taxpayers being issued ‘not so friendly’ notices or summons. The taxpayers and associations run helter-skelter and reach out to the policy-makers, with the entire issue receiving a disproportionate media coverage and, ultimately the policy-makers clarify the situation to resolve the issue. While all’s well that ends well, the process does leave significant scars on the impacted taxpayers, with the ‘as is where is’ principle adding further salt to the wounds. It is in this background that the significant words of relief of the Finance Minister need to percolate to the tax administrators.

All in all, the way GST law is administered is against the spirit of ease of doing business in India. There is a strong demand to reduce the peak rate of GST and rationalise other slabs to reduce the tax burden. With the sizable increase in GST revenue, there is a scope for some relief to people at large, as indirect tax is regressive and results in inflationary pressure in the economy.

Turning to the important amendments by the Finance (No. 2) Act, 2024 (FA Act), this issue carries a series of articles giving an in-depth analysis of the old and new provisions. Restoration of the indexation benefits by the FA Act, at the option of the assessee, in case of immovable property acquired before 23rd July, 2024, with 20 per cent tax rates for individuals and HUFs is a welcome step; however, a number of issues may arise due to change of taxation in case of buy-back of shares. Readers may refer to the detailed discussion in the separate article in this issue.

Recently, we lost a dedicated contributor to the BCAJ, CA Jayant Thakur. His contribution to the Journal will be remembered for a long time. We pray for the departed soul.

To conclude, let’s hope that both the Direct and Indirect Tax Administrations become ‘Faceless, Fair and Taxpayer-Friendly’ in letter and in spirit. A mechanism of constant monitoring is required to ensure fair, equitable and friendly treatment to taxpayers. Needless to add that unless tax officials are made accountable, the fair and friendly tax administration may remain a utopian dream.

BCAS President CA Anand Bathiya’s Message for the Month of September 2024

“Sir, what supplementary courses would you recommend I take alongside my Chartered Accountancy course?” asked a young and enthusiastic student who recently embarked on her Articleship journey. The student was attending an orientation program conducted by her firm to welcome the new 2024 batch of recruits.

The principal, with grey hair and a composed demeanour, articulated to the student, “In our era, we focused on enhancing our ‘technical’ proficiency through courses like masters, legal qualifications, CS, CWA, CFA, and so on. However, today it is crucial for you to also develop ‘technological’ proficiency by deeply understanding, learning and applying modern technologies. Being tech-literate is no longer a choice.”

In current times, technology and Artificial Intelligence (‘AI’) have become ubiquitous, permeating every significant discussion and infiltrating every dialog that matters.

Be it at the BCAS New Chartered Accountants’ Felicitation event, attended by hundreds of newly qualified Chartered Accountants, or the CA Pariskha pe Charcha webinar, attended by CA students in hordes; the theme of Technology somehow found its way into these leading discussions. So-much-so that when a group of BCAS volunteers visited a BCAS Foundation supported school in Umbergaon, Gujarat, they were spell-bound to see deserving primary school kids making live websites and apps with no-code techniques, powered through the BCAS Digital Classroom initiative. [1]


[1] The BCAS Foundation completed an ambitious project of providing Digital Classrooms at various schools. More than 3000 school kids will be beneficiaries of this social initiative.

At the crossroads of these discussions lies our renewed shared realization that wholeheartedly embracing (even better, a bear hug) technology is quintessential for maintaining our professional relevance. A clear reflection of this feature was in the BCAS Membership Survey 2024 where highest number of member respondents rated ‘Impact of Technology’ as the top-most challenge for the profession.

Technology is not alien to us; over the years, both in our personal and professional spheres, we have integrated information technology into our everyday routines. However, the latest advancement in AI promises an even more substantial impact on our lives and careers. OpenAI launched ChatGPT on November 30, 2022. Although ChatGPT is a relatively simple form of AI, it marked a significant step toward understanding AI’s potential to transform not only business but also our everyday activities.

Speculating the impact of AI on businesses, I dare contend that it holds the potential to ignite revolutionary changes. Finding balance in navigating the middle ground between irrational fear—believing AI will render us obsolete—and naive rejection, viewing it merely as a fleeting trend, it is clearly time now to move the needle from questions of ‘Whether’ and ‘Why’ to the more practical considerations of ‘What’ and ‘How’.

The general perspective is that AI will function as an augmentation technology, freeing up our professional time for the critical-thinking tasks that empower us and drive innovation and progress. At the end of the AI wave, a ‘K’-shaped outcome seems emerging, with the adopters benefiting significantly and the ignorant running the risk of professional obsolescence.

AI in finance and accounting is not about replacing accountants; rather, it’s about empowering financial professionals to work smarter, faster, and with unparalleled accuracy. Accountants can leverage AI in various ways to enhance their productivity, accuracy, research and decision-making capabilities. With this emerging technology, the applications of AI and the use-cases in our practices and careers, are only limited by our imagination.

Innovative concepts such as Invisible Accounting (which operates in the background, allowing accountants to focus more on strategic decisions), Continuous Auditing (providing uninterrupted, automated and accurate auditing processes), Active Insight (offering real-time financial visibility for accounting managers and leaders), Smart Documentation (enabling automated documentation and communication with minimal human intervention), Co-Counsel (a virtual research assistant that fills you on facts, figures and judicial precedents, whist you focus on arguments and merits) and Robo Advisor (utilizing language model bots on technical databases to resolve complex client queries without team assistance) are swiftly gaining acceptance.

Although AI, in its present state, might not be able to replace you at your job, the reality is that AI will continue to improve and become more powerful over time, learning increasingly from observing your actions. Coming soon is a contest between You vs. Bot. What steps can we take to reduce the likelihood of being outsourced by machines or replaced by AI? While my guess can be as good as yours, few thought come handy:

i. Being Versatile: It quite seemed a concluded professional debate of a ‘Specialist having an edge over a Generalist’. Whilst this remains largely true, the needle seems to have moved towards more balance. Being a Generalist (or better still, a Versatalist) would mean engaging in solutions over service, which perhaps require elements of judgment, bias into decisions and analyses, an estimation which comes with experience. Building ‘breath’ alongside ‘depth’ certainly seems to have a better odd.

ii. Principle-based vs Process-based: As a chess enthusiast, I was fascinated early on by an AI application when IBM’s Deep Blue easily defeated legendary chess players. Contrasting this triumph, the utilization of AI in self-driving cars and its unpredictable feedback to philosophical questions, appears to follow a pattern. Deep Blue’s dominance in chess arose from its extensive database of historical games and its ability to evaluate millions positions per second, surpassing even the most adept human players. Conversely, AI encounters significant hurdles with automated driving, not because of the inherent complexity of driving, but due to the unpredictable behaviour of human drivers on public roads. In our professional field as well, aligning with the Principle-based approach with possibility of multitude of outcomes, seems to be a wiser. choice than relying on the Process-based approach.

iii. Expertise vs. Efficiency: Conventionally, a professional would strive for mobility from Efficiency-based activities to Expertise-based activities or in absence of it, Experience-based activities. The need for this transition from Efficiency-based activities is further amplified in the face of AI. Being on the side of intellect and intuition is better than on the side of mechanical. Whatever gets ‘process ‘zed can get automated.

Needless to say, we all are a work in progress, and rather than complaining or worrying about a bot replacing me, we will work on staying ahead.

At your Society, a series of initiatives are underway to equip our members to this new reality.

  • The BCAS AI Survey was the first step towards getting more granular understanding and awareness levels of AI within our community. Many of us have participated in the AI Survey, and the insights will greatly assist the Society in refining its learning offerings according to the suggestions.
  • A unique webinar has been planned on 10th September, 2024 on harnessing the power of Co-Pilot and Co-Pilot Studio alongwith a live demonstration on making your own ChatBot. This program is particularly tailored on use-cases for Professional Services Firms and will be a perfect immersion into your AI powered journey.
  • A series of ‘AI pe Charcha’ webinars on AI and its impact on different subjects is being planned by the Technology Initiatives committee for the benefit of our community.
  • To talk about the longer-term effects of technology amongst various other themes, one of the finest thought-leaders of our profession, Shri Shailesh Haribhakti will share his thoughts on ‘Profession @ 2047’ at this open-for-all online lecture meeting on September 25, 2024.
  • In another first, your Society has entered into a collaboration with IIM-Mumbai towards fostering a unique Professional: Academia partnership. This initiative with focus of research, learning, advocacy and strategic initiative; will also work on the digital angle impacting our professional lives.

As we enter the busy September-October season, lets be on the lookout for tasks, processes and engagements that can be leveraged through automation and tune our energies towards expertise and value additive endeavours.

The ‘learning factory’ at BCAS continues at full steam with an array of events planned across the month. Do refer to the Forthcoming Events section and opt for the event of your choice.

Representations

BCAS as an organisation has always been pro-active in voicing the opinion of its members and community at large and has been one of the important stakeholders of the policy makers. The Society made two representations before the Finance Ministry and CBDT Chairman in the last month.

Pre-Budget Memorandum for Finance Act, 2024:

A Pre- Budget Memorandum- 2024-25 offering various suggestions was presented before the Finance Ministry. Some of the salient suggestions included were:

  •  Reducing the maximum tax rate of 30 per cent for individuals;
  •  Reinstating medical reimbursements up to ₹50,000/- for salaried employees;
  •  Increasing the threshold limit for payment of advance tax from ₹10,000/- to ₹1,00,000/-;
  •  Bringing back weighted deduction of 150 per cent for in-house Research and Development expenditure to promote innovation;
  •  Raising the exemption limit u/s. 54EC from ₹50 lakhs to ₹2 crore.

The recommendations offered in the memorandum were to simply tax compliance, reduce the financial burden on individuals and promote overall growth.

Readers can read the entire representation by scanning the QR Code or by clicking this link
https://bcasonline.org/wp-content/uploads/2024/06/BCAS-Pre-Budget-Memorandum-2024-25-.pdf

Representation for rectification of errors in the E-filing utility:

A lot of members were facing issue with incorrect application of rebate u/s. 87A for various special rate incomes by the Income Tax E- filing utility which was contrary to legislative provision. A representation is filed on 18th July, 24 for rectifying the faulty ITR e-filing utility urgently before the due date of filing of returns of income i.e. 31st July, 2024. It was recommended in the representation that immediate action be taken for rectify these utility errors so as to align the same with the legal provisions and issue a clear clarification regarding applicability of section 87A to avoid such uncertainties in future.

Readers can read the entire representation by scanning the QR Code or by clicking this link
https://bcasonline.org/wp-content/uploads/2024/07/Representation-to-FM-and-CBDT-18.07.2024.pdf

 

Book Review

Title of the Book: THE ANTHOLOGY OF BALAJI THE CFO LENS:

HOW TO THRIVE IN THE FAST-CHANGING WORLD OF FINANCE

Author: R. RAVIKUMAR

Reviewed by V KUMARASWAMY1

THE CFO LENS, written by Mr Ravikumar (ex-CFO of IBM India), based on discussions with several senior CFOs in the country, is as brilliant as educative, and the discussions are both lucid and practical. I wish I had got this to read when I started my career and once midway through it when I was groping in the dark on where next to go and, more importantly, what to do personally to get there.

The book starts with a welcome emphasis on finance teams using stories and experiences for building convincing arguments when working with business and finance colleagues. Weaving stories around numbers and looking at them from the listener’s perspective can help avoid friction within the organisation. The section of the book on building business acumen will surely help finance professionals position themselves properly and chalk out steps for further self-development and career growth. The contents are a fine illustration of the customer-first approach by the finance function.

The three chapters on managing financials better deal with costs, capital expenditure and balance sheets. The chapter on costs is superb, reminding the reader about some forgotten essentials of the function. Readers would do well to go over it carefully.

The many anecdotes used are very well summarised; the subplots don’t derail the main flow at any stage. They are purposefully handled. So are the experiences of other CFOs whose experiences have been woven well — educative, not overwhelming. A good mix of examples — more from the Indian context is welcome and will make the reader connect more easily with the content.

The topics covered, like handling risks, how business leaders look at things, data visualisation, etc., are more apt for someone in senior or senior middle functions of finance. Being aware of these at a much earlier stage in one’s career would help both the employer and the employee. Whatever the level to which the chapters are appropriate, the basics have been explained well enough for someone junior to start baby steps in following them.

The stories about the birth of Netflix, the disastrous experience at -cross-selling at Wells Fargo and multi-dimensional selling at IBM present to the reader the many ways in which one can win the customer beyond just the price. The examples used of TVS Motors’ persistent push for credit rating to open the doors for bank funding for dealers and Ola’s relentless pursuit till they found an optimal solution told in an impactful way. There are many more examples to hold your interest.

The last section of the book on digitalisation is more about how to use technology for financing core functions rather than about extensions like data mining, technology-enabled optimisation, and expanding the markets for sourcing finance or placing funds. Perhaps the author would add a chapter on this in his revisions. A specific chapter on how to use the book’s nuggets in career planning and planning organisation training programmes would add immense value.

The book is the closest one can get to a practical guide for making the finance professional more productive and effective in the emerging world of finance. It should ideally be made a compulsory reading for all budding finance and accounting professionals and for those who are in mid-career as a refresher. It will surely make their career more satisfying, helping them deliver better value to the organisations, and increase the likelihood of reaching greater heights in general management. I strongly recommend it.


1 Ex-CFO JK Paper; Author of Making Growth Happen in India.

Miscellanea

1. TECHNOLOGY

#Experts Suggest Crowdstrike Update Behind Global Outage Likely Skipped Key Checks

Security experts have indicated that CrowdStrike’s routine update of its widely used cybersecurity software, which led to a global system crash on Friday, apparently did not undergo sufficient quality checks before being deployed. The lack of thorough testing is believed to have contributed to the widespread disruption affecting clients’ computer systems worldwide.

According to a report by Reuters, the recent update to CrowdStrike’s Falcon Sensor software was intended to bolster security for clients by refreshing the list of threats it protects against. Unfortunately, the update contained faulty code, which triggered one of the most significant tech outages in recent years. This disruption affected numerous companies relying on Microsoft’s Windows operating system, leading to widespread system crashes and operational issues.

“What it looks like is, potentially, the vetting or the sandboxing they do when they look at code, maybe somehow this file was not included in that or slipped through,” said Steve Cobb, chief security officer at Security Scorecard, which also had some systems impacted by the issue.

The massive disruption to Microsoft systems has included flight delays and cancellations, as well  as impacting hospitals, banks, supermarkets and millions of businesses.

Close to 7,000 flights were cancelled globally on Friday—equating to 6.2 per cent of all scheduled flights, according to Aviation analytics firm Cirium.

Patrick Wardle, a security researcher specialising in operating system threats, identified the code responsible for the outage. He explained that the issue lay in a file containing either configuration details or signatures—code used to detect specific types of malicious software or malware.

Wardle noted that it is common for security products to update their signatures regularly, often daily, to continuously monitor for new malware and ensure protection against the latest threats.

Wardle suggested that the frequent nature of updates might explain why CrowdStrike did not test this particular update as thoroughly. It remains unclear how the faulty code was introduced into the update and why it was not detected before being released to customers.

Other security companies have faced similar issues in the past. For example, McAfee’s problematic antivirus update in 2010 caused hundreds of thousands of computers to stall.

(Source: International Business Times – By Litty Simon, dated 21st July, 2024)

2. SPORTS

#Paris Braces For ‘Most Incredible’ Olympics Opening Ceremony

Thousands of athletes are set to sail through central Paris on Friday during an unprecedented and high-risk Olympics opening ceremony that will showcase the country’s hugely ambitious vision for the Games.

The parade on Friday evening will see up to 7,500 competitors travel down a six-kilometre (four-mile) stretch of the river Seine on a flotilla of 85 boats.

Compared to the Covid-blighted 2020 Tokyo Olympics, which were delayed by a year and opened in an empty stadium, the Paris show will take place in front of 300,000 cheering spectators and an audience of VIPs and celebrities from around the world.

“Tomorrow you will have one of the most incredible opening ceremonies,” French President Emmanuel Macron promised at a pre-Games dinner for heads of state and government at the Louvre museum on Thursday evening.

The line-up of performers is a closely guarded secret but US pop star Lady Gaga and French-Malian singer Aya Nakamura—the most listened-to French-speaking singer in the world—are rumoured to be among them.

It will be the first time a Summer Olympics has opened outside the main athletics stadium, a decision fraught with danger at a time when France is on its highest alert for terrorism.

For months, organisers have been dogged by questions about whether they would need to scale back or move the procession, but they had insisted throughout that there was no plan B.

A huge security perimeter has been erected along both banks of the Seine, guarded round-the-clock by some of the 45,000 police and paramilitary officers who will be on duty on Friday evening.

Another 10,000 soldiers are set to add to the security blanket along with 22,000 private security guards.

“Without any doubt, it is much more difficult to secure half of Paris than to secure a stadium, where you have 80,000 people and you can frisk them and send them through turnstiles,” Frederic Pechenard, an ex-director general of the French police, told AFP.

Police snipers are set to be positioned on every high point along the route of the river convoy, which is overlooked by hundreds of buildings.

An assassination attempt on US presidential candidate Donald Trump on 13th July has focused minds.

Armed officers will also be on the boats, a security source told AFP.

The Israeli and Palestinian teams will be given extra protection, with the tensions caused by Israel’s offensive in Gaza, where nearly 40,000 people are estimated to have died, already spilling into the Games.

Organisers will be on guard against fresh protests on Friday evening after the Israeli football team’s first match on Wednesday was marked by the waving of Palestinian flags and the booing of the Israeli anthem.

The opening ceremony is likely to define the mood for the rest of the 26th July–11th August Games, which organisers have pledged will be “iconic”.

Around 3,000 dancers are set to perform from the banks of the river and nearby monuments, including Notre-Dame cathedral, in a show that will promote diversity, gender equality and French history.

The landmarks and architecture of the City of Light, one of the world’s best-loved destinations, is set to feature as a backdrop both to Friday night’s show and much of the sport afterwards.

“The opening ceremony is a huge event and one that, arguably, sets the tone for the next 17 days,” Hugh Robertson, the minister charged with delivering the 2012 London Olympics, told AFP recently.

(Source: International Business Times by Adam Plowright, dated 25th July, 2024)

3. HEALTH

#People Now More Mindful of Health and Natural Healing After Worldwide COVID Crisis, Says Global Healing Founder

The COVID-19 pandemic was the worst health crisis the world has faced in the past century, resulting in more than 7 million deaths. The early days of the pandemic were also some of the scariest for people, and the only surefire way to deal with the disease was to avoid getting infected and to strengthen one’s immune system to fight off the virus.

While the worst days of the pandemic are over and life has returned to almost normal, many people still remember the fear and uncertainty it caused, with a study finding that 60% of consumers are now more conscious of preventing health problems through adopting a healthier lifestyle using more natural solutions.

People are now more aware of the importance of whole-body wellness, and they are more open to doing their own research. However, this trend has also led to the proliferation of misinformation, spread by groups or individuals who want to make a quick buck. This is why there is a great need for information and products that are supported by scientific research.

For more than 25 years, Global Healing has been helping health-conscious individuals build a self-healing body and thrive in a lifestyle that aligns with nature’s design through science-backed products and education.

With a philosophy of cleansing the body of accumulated toxins and embarking on a personalised wellness journey, Global Healing was built on the idea that everyone, everywhere, should have access to research-backed health information and personal control over their health outcomes.

Global Healing

According to Global Healing Founder, Dr Edward F Group III, DC, NP, the growing health consciousness of people and the accompanying spread of misinformation has strengthened the need for Global Healing to uphold and improve its already-high standards and maintain the integrity of the market.

This begins with education, with Global Healing dedicated to teaching the community how to address the root cause of disease with a holistic approach and allow the body to heal itself.

Its website contains a wealth of articles discussing various health topics, and it is active on its various social media accounts, sharing knowledge about how people can become the healthiest, strongest, best versions of themselves. Dr. Group has also authored multiple books on health and holistic medicine.

“Global Healing sets the bar for discussions and developments in our industry with valuable insights, reliable guidance, and thoughtful perspectives,” he says. “We advocate for a holistic lifestyle that promotes whole-body wellness, such as natural remedies over pharmaceuticals, mindfulness practices over mind medications, exercise over diet pills, and
sleep over caffeine.”

Dr. Group believes that, as part of the natural wellness industry, it is Global Healing’s responsibility to provide correct and up-to-date information to its customers. He looks at things through the eyes of the customers, who are looking up information about various supplements, vitamins, detoxes, or cleanses because they’re concerned about something in their body, whether it’s their gut and digestive health, respiratory health, mental wellness, or any other component of health.

Across its wide array of products, Global Healing has maintained its dedication to quality and purity, sourcing botanicals from small farms. Many of its sources are certified USDA-organic, GMO-free, and vegan. The company also implements strict quality control procedures, with a rigorous testing process that involves both internal and third-party testing.

It hand-reviews every batch of ingredients, choosing only those that meet its stringent specifications for proper plant identification, potency levels, microbial presence, and heavy metal content.

Through its proprietary Raw Herbal Extract™ technology, Global Healing does not use heat, alcohol, or harsh chemicals in processing ingredients, resulting in a raw, all-natural, pure, and potent formula. Furthermore, all its equipment that comes into contact with the products does not use plastic, protecting it from contamination with potentially toxic compounds.

Dr. Group believes that the growing interest in all-natural and holistic health will result in more scrutiny of companies in this industry, and this is a great thing. With more attention placed on the industry, there will be more demand to improve standards.

“The COVID pandemic forced everyone to give more thought to their health, and people are getting smarter and smarter,” Dr Group says. “I’ve observed that they are holding companies to a higher standard and are more conscious about what’s in the food they eat and the air they breathe. ”As public demand for better and more natural health solutions grows, corporations will be held more accountable for how they process things and what they put into their products.

”People are demanding to know more, and they won’t fall for the smoke and mirrors. In this evolving market, Global Healing is dedicated to providing science-backed cleansing regimens and premium supplements that nurture the body’s innate ability to heal from within.”

(Source: International Business Times by Karcy Noonan, 11th July, 2024)

Statistically Speaking

1. Rise In Resident Millionaires’ Population By Country

Source: Henley Private Wealth Migration Report 2024

2. India’s Import And Export Trade With The World (In INR Billion)

Source: Department of Commerce

3. India — A Key Contributor to Global Migration

Source: OECD Economic Outlook

4. Rise in Electronic Manufacturing in India

Source: India Cellular and Electronics Association (ICEA)

5. Countries that own the most gold

Source: World Gold Council (as on Q1 of 2024)

Learning Events at BCAS:

SOCIAL OUT-REACH INITIATIVES:

Round Table discussions on Viksit Bharat:

The Finance, Corporate and Allied Laws Committee (FC&AL) of the Bombay Chartered Accountants’ Society (BCAS) organized two round table discussions on Viksit Bharat: Ideas and Suggestions in July 2024. The aim was to gather insights from experienced Chartered Accountants and promising young professionals to contribute to Prime Minister, Shri Narendra Modi’s vision to make a Viksit Bharat by 2047. The first round table discussion was held on Saturday 6th July 2024 at the International Fiscal Association – India Branch in BKC, Mumbai where eminent Chartered Accountants shared their perspectives on various aspects of public policy and economic development crucial for India’s progress. The second roundtable discussion took place on Saturday 20th July 2024 at ATLAS SkillTech University, Mumbai. This event brought together top-ranking CA Finals and Intermediate students, along with MBA students, to provide a fresh perspective on India’s future.

MOU with Bombay Industries Associations (BIA):

The Society entered into a collaboration agreement with BIA on 18th July 2024 under which both bodies of eminence will mutually collaborate by leveraging strengths and enabling commerce. In this one of its kind partnership, both organizations, with 75 years of history, will combine their resources and capabilities towards collaborative learning opportunities, advocating for ease-of-businesses, offering policy suggestions, and engaging members from both associations with an aim to reinforce the overall economic structure.

BCAS Membership Survey:

Our members are at the centre of everything we plan and do. The Society believes in delivering high-quality professional experience for our members and community at large. Keeping that in mind, BCAS conducted a Membership Survey on 16th July, 2024 and received an overwhelming response. We thank our beloved members for participating in the survey. Some of the statistics of the survey are as follows:

  •  Relevance of Topic at BCAS Learning Events —Average rating 4.4
  •  Quality of Speakers and Content at BCAS Learning Events: Average rating 4.3
  •  Format of BCAS Learning Events- Average rating 4.1
  •  Venue, Food, and other logistics at BCAS Learning Events — Average rating 3.9
  •  Pricing for BCAS Learning Events — Average rating 3.9

The Society has also received many well thought suggestions from the members in the survey, and we shall strive to take that into consideration in our future activities.

Social Media Reach:

The Society has been striving to increase its reach to professionals and society and large and social media has been one of the relevant tools of current times to achieve the same. We are happy to announce that we have crossed 10,000 followers on Linkedin. Our Whatsapp channel is also live and within two days we have crossed 1000 followers. With these, our overall social media spread has reached 57,189 followers and counting.

BCAS WhatsApp Chatbot:

In a constant endeavour to bring ease to our members, the Society is delighted to introduce its own Whatsapp Chatbot. Now, all our members and non-members can access and register for BCAS events and other activities through the ease of WhatsApp. Readers can explore the chatbot by sending a simple Hi on the chatbot number — 9082634642 to get started.

LEARNING EVENTS AT BCAS:

1. 76th Founding Day Lecture Meeting on Viksit Bharat — Role of Accounting and Finance Professionals held on 6th July, 2024 at ITC Grand Central Hotel Parel.

The 76th Foundation Day of the Society was marked by a significant event, featuring an interactive talk with the esteemed Padma Bhushan Shri K. V. Kamath. The topic, ‘Viksit Bharat — Role of Accounting and Finance Professionals,’ is a testament to the evolving landscape of India’s economy and the pivotal role that accounting and finance professionals play in it. Shri Kamath, with his extensive experience spanning over five decades, provided invaluable insights into India’s journey towards becoming a developed nation. As an inter-generational witness of India’s transformation, his dialogue with CA Raman Jokhakar, past president of the Society, highlighted the transformative changes that technology brought and the contribution of the Country’s infrastructure development plan, reflecting on the progress and the road ahead for India. He broadly spoke about the following.

Role of CAs: Since his early days at ICICI in 1971, Shri Kamath has witnessed first-hand the pivotal role of Chartered Accountants in shaping financial strategies and strengthening accounting practices. He reminisced about his experience in 1980, when he was leading a standalone division at ICICI acknowledging how chartered accountants assumed the role of technology architects in bringing technology to ICICI. Shri Kamath stated that people in the accounting and finance professions have to be leaders in absorbing and leveraging technology in a bigger way. According to Shri Kamath, the role of Chartered Accountants is going to be closely interwoven with technology for in the next 25 years, it will be difficult to differentiate between where the accounting stops and the technology comes in. He further stated that CA’s are the conscious keepers for the companies, Government and the public at large. That role is going to be more important as we go along with the new technology. He also emphasized the necessity of setting one’s mind on skilling and upskilling and getting everybody’s mindset aligned towards the technology part of the profession.

Learnings from the past: Talking about his learnings from driving and executing IT in ICICI, he said that the integration of technology into ICICI Bank’s operations between 2000 and 2005 marked a transformative era in Indian banking. The introduction of ATMs and the centralization of back-office operations, along with the establishment of call centres, significantly reduced the volume of in-branch transactions. He acknowledged that between 2020 and today, it has virtually revolutionized the way payments are made by individuals and corporations NPCI and QR technologies are taking over.

Characteristics of Viksit Bharat: On being asked about the characteristics/features of Viksit Bharat, he said that Viksit Bharat envisioned as a developed India, is characterized by its focus on rapid infrastructural growth, mirroring the transformative journeys of Japan, the Asian Tigers, and China. This vision is embodied in Mumbai’s current infrastructure projects like MTHL (Atal Setu), Eastern Freeway, and various metro and coastal road projects. According to Shri Kamath this seamless development will happen in every city, and town and will pervade down to every village and that according to Shri Kamath, will be a very visible sign of Viksit Bharat. He further explained that the infrastructure becomes the first building block as it adds to GDP during the implementation phase becoming the first ‘virtuous cycle’ leading to economic utilization of the said infrastructure in the next 15-20 years. With the fruits of infrastructure reaching every corner of the country, wealth will increase which will lead to more consumption leading to a second virtuous cycle.

Growth Rate and Per Capita Income: Speaking about the 10 per cent aspirational growth rate, and higher per capita income, Shri Kamath highlighted that given the size of the population, India has no challenge to put up new infrastructure for the next 25 years and put the same to utility. The country has had an agenda for over 20 years that provides momentum for sustainable development. The mark of 8-10 per cent is the combination of growth driven by infrastructure, consumption and other constituents like services, agriculture etc. In his view, the country should have a goal of achieving a growth rate of 8 per cent and a 25 trillion economy by 2047. According to him, funding is not a challenge today. It’s also not true to say that the private-sector capex cycle is not happening. With improvement in cash equivalence, and with very minimum access to borrowings, companies are now investing in themselves on a just-in-time basis without waiting for demand to develop. The new indicator of capital expenditure is therefore the increase in the gross fixed assets and capital working progress and not bank lending.

YouTube Link:
https://www.youtube.com/watch?v=OxSpLouU8Iw

QR Code:

2. Suburban Study Circle meeting held on Friday, 12th July, 2024 @ Bathiya & Associates LLP Andheri.

The meeting was held on Friday, 12th July, 2024 at Bathiya & Associates LLP Andheri. The meeting was led by Group Leader — CA Amit Purohit. CARO 2020 represents a significant shift in the audit reporting landscape, with enhanced requirements aimed at improving transparency and accountability. While these changes present challenges, they also offer opportunities for auditors to add value through more detailed and insightful reporting.

Key discussions in the meeting were about:

  •  Property, Plant, and Equipment: Detailed disclosure regarding title deeds, revaluation, and proceedings involving Benami Property.
  •  Inventory and Working Capital: Reporting on discrepancies of 10 per cent or more in the aggregate of each class of inventory.
  •  Loan Advances and Guarantees: Scrutiny of loans, guarantees, and advances to related parties, including reporting on terms, conditions, and repayment status.
  •  Fraud Reporting: Specific requirements to report any fraud noticed or reported during the year, including actions taken by the auditor. Ensuring the accuracy and completeness of data, especially for inventory and property, can be challenging.
  •  Internal Audit System: Reporting on the existence and effectiveness of an internal audit system. The detailed nature of the new requirements means auditors must perform more comprehensive and in-depth audits.
  •  Maintaining detailed documentation to support the new disclosures is essential but time-consuming.

The group leader shared practical insights to help auditors navigate these challenges and emphasized the importance of ongoing learning and adaptability in the ever-evolving field of audit and assurance.

3. International Economics Study Group meeting on the topic of ‘Analysing Parliament Election Results of 2024’

The meeting was held on Tuesday, 2nd July 2024 through a Virtual platform by Group Leaders CA Harshad Shah and CA Pramod Jain. The unexpected outcome of India’s 2024 election has reasserted the unpredictable nature of its politics — and the strength and resilience of our democracy. The BJP’s significant drop of 63 seats marked a return to coalition politics, presenting significant challenges in parliament. The passage of bills will require substantial compromise, a stark contrast to the previous government’s majority passing. There is no clear sign of pan-India anti-incumbency, especially on the economic front. Mr Jain shared his views on inequality, highlighting ten areas of disparities. He questioned whether Indian democracy will ever mature and emphasized the role of professionals as the “fifth pillar” for the success of Indian democracy.

4. Lecture Meeting on ‘Obligations of Chartered Accountants under PMLA’.

The lecture meeting on “Obligations of Chartered Accountants under PMLA” jointly with the National Institute of Securities Market (NISM) was held virtually on Friday 28th June 2024. More than 200 participants attended the webinar. The lecture was delivered by Mr. Krishnan Vishwanathan. The key takeaways of the session are:

  •  Under PMLA it is an offence to assist in money laundering, and accountants may be responsible for detecting and preventing it, especially regarding predicate offences like bribery.
  •  Only those professionals holding a Certificate of Practice from ICAI, CWA, or ICSI and conducting activities like managing client money or property are obligated to comply with PMLA.
  •  Documentation of AML policies and procedures is crucial to avoid penalties, and these include client acceptance methodologies.
  •  Procedures for periodic reviews and client’s due diligence are essential under PMLA.
  •  Extra caution is needed when dealing with clients in Tax Havens due to the increased risk of money laundering and tax evasion. One has to be aware of beneficial ownership structures, shell companies, and politically exposed persons (PEPs).
  •  Reporting to the Financial Intelligence Unit (FIU) is required, but only for truly suspicious activities with documented justification to avoid overwhelming the authorities.
  • Training for employees and maintaining records for five years are mandatory.
  •  Chartered Accountants can play a role in identifying proceeds of crime like unexplained cash or suspicious accounting entries.
  •  Chartered Accountants need to be cautious when offering professional services, especially certifications or acting as collection centres, to avoid indirectly facilitating money laundering.

BCAS Lecture Meetings are high-quality professional development sessions which are open to all to attend and participate. The readers can view the lecture meeting at the below-mentioned link/code:

YouTube Link:
https://www.youtube.com/watch?v=DJDX-mic1tw&t=19s

QR Code:

5. FEMA Study Circle Jointly with ITF Study Circle meeting on ‘Cross Border Structuring for Individuals — FEMA and Tax Implications’

The meeting was held on 13th June, 2024, at BCAS in hybrid format. The following relevant points were discussed in the meeting by the group leader — CA Bhavya Gandhi:

  •  Key considerations for cross-border structuring include compliance with FEMA regulations and adherence to Indian tax laws.
  •  Outbound investments must follow the Liberalized Remittance Scheme (LRS) limits and reporting requirements.
  •  Tax residency status of the individual significantly impacts global income tax liabilities.
  •  Proper documentation and valuation are essential to avoid penalties and ensure legal compliance.
  •  Double Taxation Avoidance Agreements (DTAA) should be leveraged to minimize tax burdens.
  •  Repatriation of funds to India requires careful planning to ensure compliance with both FEMA and tax regulations.
  •  Estate planning and inheritance tax implications must be considered in cross-border structuring.
  •  Continuous monitoring and review of the structure are necessary to adapt to any regulatory or tax law changes.

The meeting was attended by 79 members and was well appreciated.

6. Suburban Study Circle Meeting on “Income Tax Aspects of Redevelopment of Society”.

The meeting was held on 05th May and 23rd May, 2024 at Golden Delicacy, Borivali (W)led by CA Sharad Sheth as Group Leader and chaired by CA Nihar Jambusaria and discussions were spread over two sessions.

Group Leader prepared an interesting list of various situations arising in the redevelopment of the Housing Society and shared their views on the following:

  •  When does the transfer of capital assets arises.
  •  Income tax liability on transfer of tenancy right.
  •  When does the benefit of section 45(5A) be availed.
  •  When can exemptions under sections 54 and 54F be claimed.
  •  Analysis of various caselaws on the relevant topic.

The session was thought-provoking with comprehensive discussion on practical issues faced. The session saw lively engagement from 55 + participants and the interactive nature of the discussion enriched the experience of everyone involved.

7. Indirect Tax Laws Study Circle on ‘Export Driven Custom’s Schemes — MOOWR, AEO — Benefits from Customs Perspectives’

The meeting was held virtually on Thursday, 23rd May 2024. The key discussions are done by the Group Leader — CA. Shravan Gehlot, Chennai and Group mentor —Adv. Vikram Naik, Mumbai were as follows:

  •  Manufacturing & Other Operations in Warehouse (MOOWR)
  •  The application and registration process for availing the benefits and covered the key benefits, customs norms for activities in the warehouse and who must opt for the same.
  •  The Authorised Economic Operator (AEO) scheme.
  •  The AEO road map in India since 2001, eligibility criteria, benefits for importers as well as exporters, Customs clearance norms, registration & post registration compliances and other key considerations.
  •  The professional opportunities for the Chartered Accountants in the MOOWR and AEO Scheme.

Around 50 participants all over India benefitted while taking an active part in the discussion on the 2 FTP Customs Schemes.

8. Indirect Tax Laws Study Circle meeting on ‘Issues in Logistic Sector’

The meeting was held virtually on Tuesday, 14th May 2024 Group leader — CA. Darshan Ranavat had prepared case studies and a presentation covering various issues & challenges faced by taxpayers in the Logistic Sector under the GST law. The session was mentored by CA. A R Krishnan. The case studies covered the following aspects for detailed discussion:

  1.  Taxability of clearing & forwarding agents including the claim of pure agent benefits.
  2.  Issues relating to classification and RCM concerning the vessel charter business.
  3.  Issues relating to classification and place of supply concerning the freight forwarding business.
  4.  Issues relating to services provided by GTA to GTA.
  5.  Specific issues in services provided to SEZ

Around 65 participants all over India benefitted by taking an active part in the discussion.

Disallowance under section 13 relating to benefit to interested persons cannot apply to charities notified under section 10(23C)(iv).

33 ITO vs. Theosophical Society

(2024) 163 taxmann.com 770 (ChennaiTrib)

ITA No.: 624 (Chny) of 2024

A.Y.: 2014–15

Date of order: 10th June, 2024

Sections: 10(23C), 13

Disallowance under section 13 relating to benefit to interested persons cannot apply to charities notified under section 10(23C)(iv).

FACTS

The assessee was a society notified under section 10(23C)(iv) and also registered under section 12A(1)(a) of the IT Act. The assessee filed its return of income on 26th September, 2014, admitting NIL income after claiming exemption under section 11.

The AO denied exemption under section 11 on the grounds that two individuals who had made donations to the society [“interested persons”] had stayed in the lodging facilities of the society by paying nominal maintenance charges, and therefore, the society had violated section 13(1)(c)(ii).

CIT(A) allowed all the grounds of appeal of the assessee-society and observed that:

(a) On perusal of details of interested persons, it was seen that those individuals were providing services to the society without remuneration and their stay in guest house was for theosophical work. It was debatable whether such donors to society will be qualified as interested persons. People staying in society lodgings to serve the society are obviously not benefitting from the society as such.

(b) Even if it was so, then such instance would only affect the case of an assessee since sections 11 to 13 relating to interested persons could not be imported to deny exemption under section 10(23C) as per CBDT Circular No.557 dated 19th March, 1990.

Aggrieved, the revenue filed an appeal before ITAT.

HELD

The Tribunal noted that it was an admitted fact that the society was notified under section 10(23C)(iv) and registered under section 12A(1)(a) and held that the conditions prescribed under section 13 of the IT Act were not applicable, as per CBDT Circular No.557 dated 19th March, 1990, once the society was notified under section 10(23C). Similarly, the AO could not make any disallowance under section 11 as the society was an organisation notified under section 10(23C)(iv) of the IT Act.

Author’s note: The law has undergone a change by the insertion of the 21st proviso to section 10(23C) w.e.f. A.Y. 2023–24.

Deeming provision of section 50C is not applicable to leasehold rights in property.

32 Shivdeep Tyagi vs. ITO

(2024) 163 taxmann.com 614(DelTrib)

ITA No.: 484(Delhi) of 2024

A.Y.: 2011–12

Date of order: 18th June, 2024

Section: 50C

Deeming provision of section 50C is not applicable to leasehold rights in property.

FACTS

The assessee, a salaried employee, filed his return of income without declaring capital gains on sale of leasehold property for ₹60,00,000.

Subsequently, based on AIR information, the AO reopened the case. Since the assessee did not file any proof of cost of acquisition of the leasehold property, the assessment was completed under section 143(3) / 147 by taxing the entire sale consideration of ₹75,94,850 for stamp duty purposes under section 50C as against the actual sale consideration of ₹60,00,000.

The assessee did not succeed in the appeal filed before CIT(A). CIT(A) also did not adjudicate on the issue of validity of reopening of assessment.

Aggrieved, the assessee filed an appeal before ITAT.

HELD

Since the issue of validity of reopening of the assessment had not been adjudicated by CIT(A), the Tribunal restored the matter of validity of reopening of the assessment to the file of CIT(A) to decide it afresh.

On merits, the Tribunal observed as follows:

(a) It is axiomatic that the leasehold right in a plot of land is neither “land or building or both” as such nor can be included within the scope of “land or building or both”. The distinction between a capital asset being “land or building or both” and any “right in land or building or both” is well recognised under the Act, as can be seen from section 54D, which shows that “land or building” is distinct from “any right in land or building”;

(b) Section 50C is a special provision for full value of consideration in certain cases and is a deeming provision; therefore, the fiction created therein cannot be extended to any asset other than those specifically provided therein;

(c) Following decision of the coordinate bench in the case of Noida Cyber Park (P.) Ltd., (2021) 123 taxmann.com 213 (Delhi Trib), section 50C, being deeming provision, is not applicable to leasehold right in a plot of land;

(d) However, the AO was empowered to compute capital gains as per the IT Act, without invoking the provisions of section 50C.

Interest earned by a co-operative housing society on investment with co-operative banks in Maharashtra is eligible for deduction under section 80P(2)(d).

31 Ashok Tower “D” Co Op Housing Society Ltd. vs. ITO

(2024) 163 taxmann.com 598 (Mum Trib)

ITA No.: 434(Mum) of 2024

A.Y.: 2015–16

Date of order: 21st June, 2024

Section: 80P

Interest earned by a co-operative housing society on investment with co-operative banks in Maharashtra is eligible for deduction under section 80P(2)(d).

FACTS

The assessee, a cooperative housing society, filed its return of income, claiming deduction under section 80P(2)(d) on the interest income of ₹14,72,930 earned by it from its investment in co-operative banks.

During scrutiny proceedings, the AO denied the deduction under section 80P(2)(d) on the grounds that such deduction is available only in case of investment in another co-operative society and co-operative banks cannot be regarded as “co-operative society” under section 2(19) of the IT Act.

CIT(A) rejected the contentions of the assessee and confirmed the addition made by AO.

Aggrieved, the assessee filed an appeal before the ITAT.

HELD

Noting that a “co-operative bank” is defined under section 2(10) of the Maharashtra Co-operative Societies Act, 1960 to mean a “co-operative society” which is doing the business of banking, the Tribunal held that the amount of investment in fixed deposit receipts or in savings bank account made by the assessee with co-operative banks in Maharashtra is also investment made in co-operative society, and therefore, interest earned thereon is also eligible for deduction under section 80P(2)(d) of the IT Act.

Where assessee sold a land and made investment in new land from sale proceeds of old land in name of his son, assessee is entitled to exemption u/s 54B even if investment was made before registration of sale deed.

30 Siddhulal Patidar vs. ITO

[2024] 111 ITR(T) 541 (Indore – Trib.)

ITA No. 110 (IND.) of 2023

A.Y.: 2011–12

Date of order: 28th February, 2024

Section 54B

Where assessee sold a land and made investment in new land from sale proceeds of old land in name of his son, assessee is entitled to exemption u/s 54B even if investment was made before registration of sale deed.

FACTS

The assessee sold a land vide agreement dated 29th September, 2006 for ₹35,00,000, which was registered on 6th September, 2010. The assessee made a new investment of ₹53,29,440 on 20th June, 2007 in purchase of an agricultural land in the name of his son, Shri Rameshwar Patidar. On the strength of this investment, the assessee had claimed exemption u/s 54B.

The AO had denied the exemption u/s 54B for two reasons, namely:

  •  the new land was purchased in the name of son and not in the name of assessee himself;
  •  the new investment was made on 20th June, 2007 whereas the sale deed was registered on 6th September, 2010; thus, the investment has been made before the date of transfer which is not permitted u/s 54B.

Aggrieved by the assessment order, the assessee filed an appeal before the CIT(A). The CIT(A) confirmed the order of the AO. Aggrieved by the order, the assessee filed an appeal before the ITAT.

HELD

The ITAT followed the decision of Hon’ble Jurisdictional High Court of Madhya Pradesh in PCIT vs. Balmukund Meena ITA No. 188/2016 and held that the assessee can be said to be entitled for exemption u/s 54B even if the registration was taken in the name of son.

As for the second reason, the ITAT relied on the following decisions wherein it is already established that the assessee is eligible for exemption u/s 54B where the investment was made by assessee after execution of sale agreement but before registration of sale deed, from the moneys received under sale agreement:

  •  Dharmendra J. Patel vs. DCIT [2023] 152 taxmann.com 465 (Ahmedabad – Trib.)
  •  Ramesh Narhari Jakhadi vs. ITO [1992] 41 ITD 368 (Pune)
  •  Smt. Narayan F. Patel vs. PCIT [2023] 152 taxmann.com 53 (Surat-Trib.) – It followed the decision of Hon’ble Bombay High Court in Mrs. Parveen P Bharucha vs. Union of India WP No. 10437 of 2011 dated 27th June, 2012 (Para No. 12 of order).

In the result, the appeal of the assessee was allowed for the above-mentioned issue.

EDITORIAL COMMENT

The Hon’ble Punjab and Haryana High Court in the case of Bahadur Singh vs. CIT(A) [2023] 154 taxmann.com 456 (P&H) had rejected assessee’s claim of exemption u/s 54B on the basis of purchase of land in the name of wife and the assessee’s SLP against the said decision was dismissed by Hon’ble Supreme Court vide order dated 29th August, 2023 published in [2023] 154 taxmann.com 457/295 Taxman 313 (SC). The ITAT followed the view favourable to the assessee by relying on the decision of CIT vs. Vegetable Products [1973] 88 ITR 192 (SC) and also mentioned that the Hon’ble SC had dismissed the assessee’s SLP against the decision of Hon’ble Punjab & Haryana High Court by passing a one line summary order; therefore, as per settled judicial view, such dismissal cannot be treated as pronouncement of final law by the Hon’ble Supreme Court.

75th Annual General Meeting and 76th Founding Day

The 75th Annual General Meeting of the BCAS was held on Saturday, 6th July, 2024 at ITC Grand Central Hotel, Ballroom Ground Floor, 287, Dr Baba Saheb Ambedkar Rd, Parel, Mumbai – 400012.

The President, Mr. Chirag Doshi took the chair and called the meeting to order. All the business as per the agenda contained in the notice was conducted, including the adoption of accounts and appointment of auditors.

Mr. Mandar Telang, Hon. Joint Secretary, announced the results of the election of the President, the Vice-President, two Honorary Secretaries, the Treasurer and eight members of the Managing Committee for the year 2024–25.

The following members were elected unopposed for the year 2024–25:

Dr CA Mayur Nayak, Editor of the BCAJ, announced the ‘Jal Erach Dastur Awards’ for the Best Article and Best Feature appearing in the BCA Journal during the year 2023–24. The ‘Best Article Award’ was awarded to CA Bhavya Gandhi & CA Naresh Ajwani, for their article ‘Liberalised Remittance Scheme — How Liberal it is? (An Overview and the Recent Amendments’. The ‘Best Feature Award’ went to CA Jagdish Punjabi, Adv. Aditya Bhatt & Adv. Devendra Jain for ‘Tribunal News Part A — Domestic Taxation’. The Editor then announced the ‘S V Ghatalia Foundation Award’ for the ‘Best Article on Audit’. The award went to CA P R Ramesh for the article ‘Future Audit: The Transformation Agenda’.

Before the conclusion of the AGM, members, including Past Presidents of the BCAS, were invited to share their views about the Society.

The July 2024 special issue of the BCA Journal on Bharat and BCAS — The March towards a Centenary was released by the Chief Guest – Padma Bhushan Shri K.V. Kamath.

At the end of the formal AGM proceedings, the 76th Founding Day Lecture was delivered to a packed auditorium. Members and attendees benefitted from the astute deliberation on Viksit Bharat – Role of Accounting and Finance Professionals by Padma Bhushan Shri K.V. Kamath. The meeting formally concluded with CA Kinjal Shah thanking the speaker for sharing his visionary thoughts on a relevant topic with the attendees.

[The video of the lecture can be accessed on the BCAS YouTube Channel, and a Report on the Founding Day lecture is provided in the ‘Society News’ section of this journal.]

OUTGOING PRESIDENT’S SPEECH

Chirag Doshi- “As we celebrate the momentous occasion of the 75th anniversary of the Bombay Chartered Accountants Society (BCAS), we reflect on a rich legacy of excellence, integrity, and innovation. Over these seven and a half decades, BCAS has consistently strived to uphold the highest standards in the profession, fostering a community that values continuous learning and ethical practice. This year, we take pride in commemorating our journey, marked by significant milestones and transformative contributions to the field of chartered accountancy.

5-year plan

Starting this year, the BCAS Managing Committee has initiated the presentation of a comprehensive 5-year plan for the Society. This strategic plan aims to enhance the Society’s reach, foster professional development among its members, provide ample networking opportunities, advocate for important causes, empower the youth through Yuva Shakti initiatives, and drive impactful change through the Chartered for Change program. This endeavour marks a significant step forward in shaping the future trajectory of BCAS and its contributions to the accounting profession.

New initiatives

1. Reach — Social media, Print media, hoarding, new paper ads, outstation meetings. MODI letters, invitees to various meetings before the budget, C&AG, Dubai branch, Abu Dhabi branch, Rakeez authorities, AAA association, MSME panel, jointly with IMC maximum events, BIA felicitation.

2. Professional development — Adaan Pradhan 75 mentees in a year, CAMBA, various Seminars on technology, International webinars, Seminar on FIAS standards, 75 hours duration course on Accounting and Auditing, Professional accountancy courses, International Women’s Day Celebrations – ‘Present Positive = Future Ready’, Full Day Workshop — Use of Technology in GST Compliance

3. Networking — BCAS engage platform, Pan India Networking events for members, RRC and other events had networking focus initiatives, NFC cards at reimagine

4. Advocacy / Research and publications – 1. KYC 2. IND AS 3. Representation to charity commissioners 4. 75 Laws Relevant to Direct Taxes

5. Yuva Shakti – Tarang, JhanCAr was back with a bang and maximum participation, CAMBA, Digital branding seminar, BCAS youth WhatsApp group

6. CA for Change — Digitalisation of schools, science labs, computer labs, BCAS Van.

Various other events: More than 75 events in one year were organized including Lecture Meetings on current topics, webinars, outstation meetings, RRCs, NRRC, student events, study circle meetings, workshops, seminars and non-technical sessions and events

Reimagine – The 75th year ……..

Journey of Re-Imagine: Started in February 2023, when 2 committees were formed the technical committee led by Past presidents — Shariq Contractor, Anil Sathe, Abhay Mehta and the celebrations committee led by Pranay Marfatia, Uday Sathaye and Narayan Pasari. I remember attending my first president’s meeting (many call them mothers-in-law, I call them my biggest supporters and guides), there were big thoughts and expectations in the eyes of each of the Presidents. Despite the big responsibilities they had put on my shoulders, they also had kept their both hands on my head. Post that I spoke to my OB team about the big bash in the year we can achieve and only one common word came we can and let’s go for it. The youth Managing Committee was all geared up to take their part in responsibilities and never even once hesitated for the task allocated to them. I just loved the power, enthusiasm and kuch kar gujarne ki chahat of this young and vibrant Office Bearers Team and Managing committee.

It was not as easy as it looked, 12 topics with no tax clauses, no case studies, no Accounting standards, no Auditing Standards, chosen by each committee of BCAS and the Technical team. 50+ Stalwarts Speakers 3 Padma accolades, 7 CFOs, 2 International Speakers, 2 Media Anchors, 5 Founders, several senior professionals, lawyers, capital market regulators and players, MBAs, bankers and venture capitalists, top-notch moderators and many more.

Friends, it was not as easy as it looked and was made by the celebration committee, opening ceremony, organising and arrangement for sponsors, souvenirs, managing seamless registration of 1200 professionals, 3 lunches, 2 dinners, family registrations, kits, speakers travel to stay and all other arrangements were so seamless.

It was not as easy as it looked, communications, pre-meetings, lounge interviews and engagement, use of technology like pigeon hole, the seamless sound and light support, graphics and timely changing of slides, adhering to minute-to-minute planning, social media push, 21+ journalists and 41+ media covering the event, no cancellation or delay of speakers.

Friends, it was the achievement of a miracle with the complete dedication of all of us together.The famous dialogue comes to my mind, Jab tum kisi cheez ko dil se chahete ho to sari kyanat tumara saath deti hai.

Thanking everyone,

First and foremost, I sincerely thank the Past Presidents, whose invaluable guidance and support have been instrumental to my effective functioning. I express my deepest appreciation to my Office Bearer colleagues for their unwavering support and active involvement in our planned activities. I am profoundly grateful to all the Managing Committee members, Trustees of the BCAS Foundation, Chairmen (Manish bhai, Abhay bhai, Nitin bhai, Deepak bhai, Sunil bhai, Rajesh bhai, Mayurbhai, Udaybhai, Ameet bhai, Mihir bhai and Co-Chairmen of the committees Anil bhai, Chetan bhai, Raman bhai, Nandita ben and Anand Kothari), convenors, coordinators, YUVA Shakti, students forum and core group members and the entire team of BCAS for their steadfast support across various initiatives. My special thanks to Nileshbhai Vikamsey, Raj Mullick, Manish Sampat, Sudhir Soni, Anil Desai, Anand Vashi, Rajaramji, Purvi Malani, Gautam Nayak and Gautam Shah for their support during Re-Imagine.

I also extend my heartfelt thanks to our Members, Subscribers, Speakers, Students, Social Media followers, Staff, Vendors, Donors, Sponsors, Printers of our publications, Service providers, Statutory and Internal auditors, Consultants, and Office Bearers of various sister organisations, Contributors to the journal, all of whom who have wholeheartedly supported our initiatives throughout the year. The success of our Society is a testament to your faith and patronage. At this moment I would like to thank my grandmother whom we lost this year at the age of 99, my father and my mother, my ever-supportive wife Khushboo and my all-time problem solver, my daughter Jhalak.

As we move forward, our focus must remain sharply attuned to understanding the evolving times and the needs of our members. I am confident that the newly elected President Anand Bathiya and his team of Office Bearers, the Managing Committee, and the Core Group will continue to uphold and advance the vision of the Society, further enhancing its legacy. I wish them every success in the coming year.

Jai hind! Jai BCAS!”

INCOMING PRESIDENT’S SPEECH

CA ANAND BATHIYA—

Excerpts from the address of the Incoming President (Scan here to watch the full video).

Youtube link: https://www.youtube.com/watch?v=rzW4eqHlIcY&t=1525s

“Good evening and a very warm welcome to this momentous and historical 75th AGM of our beloved Society.

A. Context

75 years is a very big milestone in the lifetime of an organization. The mere fact that an organization ‘survives’ for such a long period is in itself an exception, forget being a thriving, growing and vibrant organization like BCAS.

BCAS today is not just an organization but an Institution, an Institution that has stood the test of time and delivered on its promise exceedingly well.

It is a curious case of how a handful group of people who used to meet on Wednesdays today snowballed into a mammoth organization with members spread across 350+ towns and cities in India. With no regulatory powers, and no mandatory learning hours support, how is it that thousands of professionals each year look up to an organization as an epitome of Professional Development? The journey of BCAS is a textbook case study on Institution Building that outlives generations and continues to operates for its cause.

At this cusp of 75 years, we are celebrating durability, we are celebrating continuity, we are celebrating adaptability, and we are celebrating Longevity. It would be only right for us to reflect on what have been the real ingredients that shaped BCAS longevity as we see it today. What have been the differentiators that gave BCAS this longevity?

In these characteristics might also lie the answers to our future.

As I pondered through my journey at BCAS, first as an observer, then as a member, then as a Core Group Member and as an Office Bearer, I credit this longevity of BCAS to three distinct themes:

1. Selfless Volunteerism — Swayam Sevak

– High-quality volunteers working shoulder to shoulder for a greater purpose. The organization has somehow institutionalised the process of filtering committed volunteers, motivating, grooming and taking them up the ladder.

– When high-quality volunteers work with a ‘Seva’ mindset, it creates wonders.

– Volunteer-led selfless service of Seva has translated into Strong Successive Leadership that keeps the flag high.

– It is this combination of Swayam and Seva that has created the right Sanskaar at BCAS.

2. Staying relevant& building capabilities–Saksham

– There is constant urge in the collective consciousness at BCAS, to stay relevant and build capabilities.

– Be it around professional development challenges, having younger members, adopting technology or any such contemporary challenge.

– BCAS has over the years remained relevant and adapted to changing times.

– That organizational consciousness and alertness have held us high — The Sanskrit Subhashitam that we hold in our emblem – Na Bhaya Chasti Jagrata, is a reflection of this spirit. The one who is conscious and alert, need not fear.

3. Staying Focused & purposeful —Seem it

– Single-mindedness of purpose, remaining apolitical and not spreading ourselves too thin.

– At BCAS we realise our limitations as well, which is very important.

– It is unconventional but very deep to:

  • Opt for Stability over Growth.
  • Opt for Values over Value.
  • Opt for Commitment over Competence.
  • Opt for Depth over Breath.

– Sometimes being Best is more important than being Big.

These three pillars of Swayam, Saksham and Seem it have become our Swabhaavat BCAS.

We are built not for a sprint, but for a long marathon and better still a relay marathon. This has been our character; this has been our Swabhaav and it is this Swabhaav of BCAS that has allowed us to witness this beautiful day today.

It is from our Swabhaav that our Strengths and Weaknesses emerge, and it is in our Swabhaav that our Challenges and Opportunities lie.

B. My Journey at BCAS

Though my formal tryst with BCAS started as a Core Group member exactly 10 years before in 2014, my first engagement with BCAS started in 2011 when I was invited to speak at a session on IFRS in the year 2011. I distinctly remember, that I had my ICAI convocation on the same day, and a young convenor of the Accounting & Auditing Committee in the form of Manish Sampat called me to take up this session. We spoke and for whatever reason I chose to speak at the BCAS session and gave a pass to my convocation. And I jokingly tell people that I got convocated at BCAS.

The journey then continued with Power Summitsto then being again invited to present the first paper at the first Youth RRC held in 2013. This was the place where we made lots of friends Chirag, Kinjal, Mandar, Rutvik, Mahesh, Shreyas and many more who are now a part of the Managing Committee or Office Bearer pools.

It was in 2014 that Naushadbhai Panjwani inducted me to the Membership and Public Relations committee and I became a close on-looker to the inner functioning of the BCAS subsequently spending more time with the Corporate and Allied Laws Committee.

All through these 10 years, it’s been a journey of immense learning and realization both professionally as well as personally. Each passing day, month and year has been an occasion of tremendous learning and extreme satisfaction.

My father used to narrate a very nice story of 3 masons/construction workers. These 3 masons were working at a construction site. A passer-by comes and asks one mason,“Brother what are you doing?” The first mason replies, “I am laying a brick.” The passer-by walks on and asks the other mason, “Brother what are you doing?” The second mason replies, “I am making a wall”. The passer-by walks on and asks the third mason, “Brother what are you doing?” The third mason replies, that “I am making a temple”.

Throughout these 10 years, travelling through committees we had the privilege to pass through these stages where we visualised ourselves as ‘laying a brick’, to ‘building a wall’ and over the last year understanding the ‘Temple that we are building and supporting’ consciously or unconsciously.

So much so that over the last fortnight, me and Zubinbhai have had the privilege to attend 10 Committee meetings and those really opened up our understanding of the strength of BCAS and the Core Group. Imagine each of the chairpersons (who are much senior and much-established professionals) before they start the meeting, requested the President to provide ‘guidance’ on the year forward. To us, it was a lesson in humility and organization building.

When I was young, in our colony during Janmashtami, we had the Dahi-Handi festivities. I would be 9–10 years of age and they decided to make me the symbolic Krishna and decked me up with the robes, head gears etc. The seniors in the colony painstakingly made human pyramids, fell a few times but yet got up and finally when it was settled, popped me up to break the Dahi Handi. On that day I felt so much joy, so much sense of achievement that it was me and everyone clapped for me.

Today is a similar day, whilst I may have the symbolic pleasure of being appointed as the President, it is sitting on the strong shoulders of multiple past presidents and core group volunteers who have held the pyramid and laid the foundation.

It is completely to their wisdom, judgment and vision that we stand here today and I really hope and pray that we can make our community proud and live up to the high expectations.

C. Team and Plan for 2024–25

As they say, sitting on the shoulders of giants, we can see how far, we will use this occasion to move further in the coming year with our agenda of Professional Development. Fresh on the back of a very successful 75th year, we will further enhance the momentum that we gained in the last year.

In a voluntary setup like BCAS, there is no task that is easy ‘without’ the support of the Team and there is no task that is difficult ‘with’ the support of the Team. Over the last 45 days, we have worked towards assembling a committed Team that will enable realizing plans for the coming year.

In Zubin Billimoria, we have a formidable Vice President who brings decades of experience to the table, unmatched commitment and attention to detail.

In Kinjal Shah and Mandar Telang, we have a combination of strong capabilities and technological prowess to navigate us further. And now with the welcome addition of Kinjal Bhuta to the Office Bearers team, we have a very well-balanced Office Bearersteam with high execution capabilities.

Happy to share that we perhaps have an all-time young Office Bearers team, with an average age of 43 years, significantly down from the average age of 54 years just 5 years before.

The Managing Committee is our altar of governance as well as our reservoir of future leaders. It is this managing committee that is going to lead our Society through the glorious years of Amrit Kaal. We have consciously opted for continuity and this young team has gotten younger with the addition of Prajit Gandhi, who holds a lot of promise. The average age of MC today stands at 42 years, again down from 49 years 5 years before.

This year we had a lot of churnat chairmanship for 10 committees at BCAS. One of the years when we effectuated changes to chairmanship in 5 out of 10 committees. In another, we have a non-past president as a co-chairman in a Technical Committee as Rutvik Shanghvi takes the position of Co-Chairmanship of the very important International Tax Committee.

With many new additions to the Core Group as well, I remain confident of being in pole position to set sail into the Amrit Kaal for BCAS.

Last year we decided to move away from an Annual Thematic Plan to a 5-Year Strategic Plan. We plan to accelerate on the tenants of that 5-Year Strategic Plan and build on the back of the success we experienced last year. As we move forward on our 6-point Hexagonal Plan, we will amplify our impact by:

1. Putting in the rigours of Execution: Ideas are only as good as our execution abilities, and we plan to bring the rigours of effective execution through this dedicated team of volunteers.

2. Harnessing Technology to the maximum: This is one thing that we have been working on for the past few years and we now have a reasonably equipped tech stack. We plan to further build on this to ease the challenges of execution and enhance our member experience.

Amongst the Key Projects that we will focus on include:

1. Mount 11,000 — A membership enhancement and reach project.

2. BCAS Academy — Implementing a self-paced learning digital infrastructure.

3. Sherpa Project — Complete the appointment of 75 sherpas across 75 towns \ cities in India.

4. Collaborations — Research and Industry collaborations.

5. BCAS Studio — Building in-house audio\visual capabilities.

6. BCAS Podcasts — New way of consuming content.

7. BCAS BroadCASt — Member communication initiative.

8. Membership Formats — Evaluate different membership formats, timings, nature, etc.

9. Member Townhalls — Regular engagements, orientations and inductions.

10. Digital Certifications & Tech Enablement — WhatsApp Chatbot, digital badge and certification

Whilst we will do a few Different Things, we will do a lot of things Differently. Realizing the need for continuity in some of these initiatives, the capabilities at the back office have also been strengthened.

D. Conclusion

In no uncertain words, I would like to express my deepest gratitude and thanks

(i) to the BCAS members, Core Group, Past Presidents and the Managing Committee members for expressing their faith in me,

(ii) to my parents, who are here today for always being a guiding light in my personal and professional journey,

(iii) to my life partner and backbone Silky, who has graciously agreed to share me for one more year as I embark upon this journey,

(iv) to my younger brothers Janak and Haseet for the rock-solid support they offer, both at home and at the office.

With these words, the blessing of the almighty and seniors, love and support of friends and family, I humbly bow down with great humility as I accept this prestigious responsibility as the 76th President of Bombay Chartered Accountants’ Society. Thank you once again”.

Addition made by Assessing Officer during reassessment proceedings, not being based on any incriminating material during search and seizure action, was to be deleted.

29 Ashish Jain vs. DCIT

[2024] 111ITR(T)152 (Chd – Trib.)

ITA No. 352 (CHD) of 2023

A.Y.: 2012–13

Date of order: 23rd January, 2024

Section: 153A

Addition made by Assessing Officer during reassessment proceedings, not being based on any incriminating material during search and seizure action, was to be deleted.

FACTS

A search and seizure operation u/s 132(1) was carried out at the residential and business premises of M/s Jain Amar Clothing Pvt. Ltd. Group of cases on 26th February, 2016, and the assessee’s premises were also searched on the said date. Thereafter, a notice dated 28th September, 2016 u/s 153A was issued upon the assessee.

The assessee had purchased 1,700 equity shares of M/s. Maple Goods Pvt. Ltd. in F.Y. 2010–11 through share broker S.K. Khemka. M/s. Maple Goods Pvt. Ltd. was later on amalgamated with M/s. Access Global Ltd. and as against 1 share of M/s Maple Goods (P) Ltd., 47 equity shares of M/s Access Global Ltd. were allotted. The shares of M/s. Access Global Ltd. were received in D-Mat account of the assessee. The assessee had sold these shares in F.Y. 2012–13 and earned long-term capital gains (LTCG) of ₹87,04,733 thereon.

The AO had referred upon the report of the Directorate of Income-tax (Inv.), Kolkata dated 27th April, 2015, which stated that the share of M/s Access Global Ltd. and M/s Maple Goods (P) Ltd. resembled the character of Penny Stocks and provided accommodation entries in the guise of LTCG. The AO further referred to the documents so seized from the locker no. 194, HDFC Bank, Ludhiana which belonged jointly to Shri Sunil Kumar Jain, the father of the assessee and Smt. Kamla Jain, the grandmother of the assessee and that documents so seized were share certificates of M/s Maple Goods (P) Ltd. in respect of shares purchased by the assessee through Shri S.K. Khemka and the copy of the contract cum bill notes issued by Shri S.K. Khemka. The AO also referred to the statement recorded on oath on 13th March, 2015 of Shri S.K. Khemka who had admitted to provide “kachhapanna” [Purchase Contract Notes] of M/s Maple Goods (P) Ltd. and provided bogus LTCG entries to the assessee.

During the course of assessment proceedings, the assessee submitted that no incriminating material was found during the action of search but the AO stated that the said contention is not tenable and treated the LTCG of ₹87,04,733 as bogus and added to the total income of the assessee treating the same as unexplained cash credit under section 68 of the Act.

Aggrieved by the assessment order, the assessee filed an appeal before the CIT(A). The CIT(A) in its order held that the assessment order and remand report of the AO dated 5th February, 2020, clearly brought on record the share certificates and the contract bills seized from the bank locker no. 194, HDFC Bank which belonged jointly to Shri Sunil Kumar Jain, the father of the assessee and Smt. Kamla Jain, the grandmother of the assessee on the basis of which bogus LTCG had been claimed by the assessee were incriminating in nature as they had a direct bearing on the estimation of correct income of the assessee. Further, on merits as well, various contentions raised by the assessee were rejected, and the findings and order of the AO was confirmed.

Aggrieved by the order, the assessee filed an appeal before the ITAT.

HELD

The ITAT observed that it was an undisputed fact that the assessee had purchased 1,700 equity shares of M/s. Maple Goods Pvt. Ltd. in F.Y. 2010–11 through share broker S.K. Khemka, which were later on amalgamated with M/s. Access Global Ltd and received 79,900 shares of M/s. Access Global Ltd. The assessee had earned LTCG gains of R87,04,733 in A.Y. 2012–13 from sale of these shares which were disclosed in the original return of income u/s 139(1) of the Act.

The only issue was whether the documents seized from the bank locker no. 194, HDFC Bank – share certificate / contract cum bill notes in the name of the assessee issued by Shri S.K. Khemka for purchase of shares of M/s. Maple Goods Pvt. Ltd were incriminating material found during the course of search in case of the assessee.

The assessee had submitted that:

  •  it is a case of unabated assessment, and during the course of search on the assessee, no incriminating material / evidence was found in respect of LTCG on shares;
  •  the share certificates and the contract notes relating to purchase of shares cannot be an incriminating material; rather the said documents support the case of the assessee that the purchase of shares is genuine and is backed by proper documents;
  •  the statements of Shri S.K. Khemka and Shri Sunil Kumar Kayan and others had nothing to do with the search proceedings of the assessee as these were recorded during their respective investigation proceedings way back in the year 2015.

The ITAT held that the term “incriminating material” has to be read and understood in the context of one or more of the conditions stipulated in section 132(1) of the Act, on satisfaction of which a search can be authorised and search warrant can be issued. Therefore, the information in possession of the competent authority at the time of authorisation of search becomes relevant, and on the basis of the same, his satisfaction that search action is warranted coupled with material actually found and seized during the course of search which has not been disclosed or produced or submitted in the course of original assessment.

The ITAT further held that in case of unabated assessment, the reassessment can be made on the basis of the satisfaction note pursuant to which the search has been initiated and books of account or other documents not produced in the course of original assessment but found in the course of search which indicate undisclosed income or undisclosed property, and the reassessment can be made on the basis of the undisclosed income or undisclosed property which is physically found and discovered in the course of search.

Applying the aforesaid legal proposition, the ITAT held that it was not the case of the revenue that the locker from which the documents were seized was in the possession of the assessee or was being operated by the assessee, and thus, what was found and seized was from the possession of third persons, who no doubt were part of the assessee’s family and covered as part of the same search proceedings, but the same cannot be held as found during the course of search in case of the assessee.

The ITAT further observed that though the assessee was part of the search proceedings and action was initiated u/s 153A in his case, the same doesn’t take away the statutory requirement of recording of satisfaction note by the AO of family members whose locker was searched and from where the documents belonging to the assessee were found and seized.

The ITAT held that:

  •  it was an admitted and undisputed position that the assessee had purchased the shares of M/s Maple Goods (P) Ltd. during the F.Y. 2010–11 relevant to A.Y. 2011–12 and thus, the said transaction doesn’t pertain to impugned A.Y. 2012–13 and cannot be held as incriminating in nature for the impugned A.Y.;
  •  the assessee had purchased the shares wherein the payment was made through normal banking channel and the transaction was duly reflected and disclosed in the bank statement;
  •  proceedings for A.Y. 2011–12 were also reopened u/s 153A pursuant to search action and the reassessment proceedings were completed u/s 153A r/w 143(3) vide order dated 29th December, 2017 where the AO has not recorded any adverse findings regarding the aforesaid purchase of shares;
  •  the transaction of sale and purchase of shares have been duly disclosed as part of the original return of income, and the assessment thereof stood completed / unabated as on the date of search;
  •  the share certificates and contract notes represent and corroborate a disclosed transaction of purchase and sale of shares as part of the original return of income and cannot be termed as incriminating material so found and seized during the course of search;
  •  where there is no incriminating material found during the course of search, the statement of Shri S.K. Khemka (and what has been stated therein) which is recorded well before the date of search in case of the assessee and in the context of some other proceedings, independent of the impugned search proceedings, is availability of certain “other material / documentation” with the AO during the course of reassessment proceedings but not material / documentation which is incriminating in nature found during the course of search in case of assessee for the impugned assessment year.

In view of the aforesaid discussion and in the entirety of facts and circumstances of the case, the ITAT was of the view that the addition of ₹87,04,733 made by the AO during the reassessment proceedings completed u/s 153A is not based on any incriminating material found or seized during the course of search and seizure action u/s 132 of the Act in case of the assessee. Being a case of completed / unabated assessment, in absence of any incriminating material found during the course of search, the addition so made cannot be sustained and was directed to be deleted.

In the result, the appeal of the assessee was allowed.

The loss incurred on the sale of shares on stock exchange platform, where STT was duly paid, is eligible to be set of against the long-term capital gain earned by the assessee from sale of unlisted shares.

28 Rita Gupta vs. DCIT

ITA No. 46/Kol./2024

A.Y.: 2014–15

Date of Order: 6th June, 2024

Sections:10(38), 45, 70, 74

The loss incurred on the sale of shares on stock exchange platform, where STT was duly paid, is eligible to be set of against the long-term capital gain earned by the assessee from sale of unlisted shares.

FACTS

The assessee filed return of income on 31st July, 2014, declaring total income of ₹18,31,980. The Assessing Officer (AO) assessed the total income of the assessee, making various additions including the addition of ₹47,90,616, resulting on non-allowance of set off of loss from sale of equity shares on recognised stock exchange with STT paid against the profit on sale of unquoted equity shares. The AO held that the long-term capital gain on sale of quoted shares is exempt u/s 10(38) of the Act and similarly, the loss incurred was also not liable to be set off against the other taxable income.

Aggrieved, the assessee preferred an appeal to the CIT(A) who dismissed the appeal of the assessee and confirmed the action of the AO on this issue on the same reasoning that since long-term gain from sale of securities / shares are exempt in terms of provisions of Section 10(38) of the Act, and therefore, on the same analogy, the long-term capital loss resulting from the sale of equity shares with STT paid cannot be allowed to be set off against the taxable long-term capital gain resulting from sale of any other asset.

Aggrieved, assessee preferred an appeal to the Tribunal.

HELD

The Tribunal having perused the provisions of sections 2(14), 45, 47, 70 to 74 held that it is only the long-term capital gain resulting from sale of shares / securities which was granted exemption u/s 10(38) subject to the fulfilment of certain conditions and not the entire source which was excluded from the aforesaid sections. Therefore, when the entire source is not excluded from the charging section and only special type of income is excluded, then the interpretation of law has to be made strictly and cannot be deemed to include any other income or loss resulting or falling within the same source. The case of the assessee is squarely covered by the decision of Hon’ble jurisdictional High Court in the case of Royal Calcutta Turf Club vs. CIT [144 ITR 709 (Cal)].

The Tribunal noted that:

i) the Co-ordinate Bench in another decision in the case of Raptacos Brett & Co Ltd. [69 SOT 383] has also decided the similar issue by following the decision of Calcutta High Court in the case of Royal Calcutta Turf Club vs. CIT (supra) and by considering the decision of CIT vs. Hariprasad & Co. Pvt. Ltd. [99 ITR 118] as relied by the CIT(A);

ii) the decision of Hon’ble Apex Court in the case of CIT vs. Hariprasad & Co. Pvt. Ltd. (supra) did not apply to the case of the assessee as the principle laid down in the above decision would be applicable if entire source is excluded from the charging section.

The Tribunal having perused the decision relied upon by the CIT(A) found that except two decisions of the coordinate benches namely Nikhil Sawhney [119 taxmann.com 372] and DDIT vs. Asia Pacific Performance SICAV [55 taxmann.com 333] and decision of Gujarat High Court in the case of Kishorebhai Bhikhabhai Virani vs. ACIT [367 ITR 261], all others are distinguishable of facts.

In the case of Nikhil Sawhney (supra), the Co-ordinate Bench has relied on the decision of Supreme Court in the case of CIT vs. Hariprasad& Co. Pvt. Ltd., which has been rendered on the different principle that the income includes loss; however, the said legal proposition would apply only when the entire source is exempt and not liable to tax and not as in a case where the income falling within such source is treated as exempt. The Hon’ble Supreme Court in the case of Hariprasad & Co. Pvt. Ltd. (supra) has held that the expression “income” shall include loss because the loss is nothing but negative income. But in our opinion, the principle laid down by the Hon’ble Apex Court that income includes negative income can be applied only when the entire source of income falls within the charging provision of Act but where the source of income is otherwise chargeable to tax but only a specific kind of income derived from such source is granted exemption, then in such case, the proposition that the term “income” includes loss would not be applicable. Thus, if the source which produces the income is outside the ambit of charging provisions of the section, in such case negative income or loss can be said to be outside the ambit of taxing provisions. Consequently, the negative income is also required to be ignored for tax purpose. In other words, where only one of the streams of income from a source is granted exemption by the legislature upon fulfilment of specified conditions, then the concept of income includes loss would not be applicable. Similarly, the second decision of DDIT vs. Asia Pacific Performance SICAV (supra) has relied on the decision of Hariprasad & Co. Pvt. Ltd. [55 taxmann.com 333], CIT vs. J H Gotla [156 ITR 323], and CIT vs. Gold Coin Health Food Pvt. Ltd. [304 ITR 308], which are distinguishable of facts. In the case of Kishorebhai Bhikhabhai Virani vs. ACIT [367 ITR 261], the issue was decided against the assessee; but in the said decision, the decision of Hon’ble Calcutta High Court in the case of Royal Calcutta Turf Club (supra) has not been referred at all, and considering the ratio laid down by the Hon’ble Supreme Court in the case of CIT vs. Vegetable Products Ltd. 88 ITR 192 (SC), where there are two construction, then the construction / interpretation which is in favour of the assessee has to be followed.

The Tribunal held that the loss incurred on the sale of shares on stock exchange platform, where STT was duly paid, is eligible to be set of against the long-term capital gain earned by the assessee from sale of unlisted shares.

Letter to the Editor

To,

The Editor,

BCAJ,

Mumbai

Dear Sir,

Greetings. I have been regularly reading the versatile “Bombay Chartered Accountant Journal” edited by you.

The varieties of subjects cater to the needs of all strata of practising/in industry Chartered Accountants.

I look forward to reading the “Editorial” every month.

The icing on the cake in June journal was “Who died” by Vazeji.

Keep up the excellent work you are doing.

All the best.

Payment made by assessee to tenants of a co-operative housing society towards alternate accommodation charges / hardship allowance / rent are not liable for deduction of tax at source under section 194I.

27 ITO vs. Nathani Parekh Constructions Pvt.

ITA Nos. 4088 and 4087/Mum/2023 and 4101 and 4100/Mum/2023

A.Ys.: 2013–14 & 2016–17

Date of Order: 21st May, 2024

Sections: 194I, 201

Payment made by assessee to tenants of a co-operative housing society towards alternate accommodation charges / hardship allowance / rent are not liable for deduction of tax at source under section 194I.

FACTS

The assessee, a real estate developer, engaged in the business of development and construction, entered into a redevelopment agreement with M/s Dalal Estate Co-operative Housing Society Ltd. In the course of survey conducted under section 133A(2A) of the Act, it was found that the assessee has debited amounts under the head “Alternate Accommodation / Rent” in each of the four years under appeal.

The Assessing Officer (AO) called upon the assessee to explain why tax has not been deducted at source in respect of the payments debited under the head “Alternate Accommodation / Rent”. The assessee submitted that it has entered into a re-development agreement dated 30th April, 2017 with M/s Dalal Estate Co-operative Housing Society Ltd., which was encumbered with more than 300 tenants and that for the purpose of vacating the premises, the assessee had agreed to pay compensation of hardship according to the nature of tenancy occupied by each tenant. The assessee further submitted that these tenants could not be provided the alternate accommodation, and therefore, the assessee agreed to pay the above amount as compensation for the hardship of the tenants. The assessee also submitted that the amount paid towards alternate accommodation / hardship allowance does not fall within the definition “Rent”, and therefore, tax was not liable to be deducted at source on the said payments. The assessee accordingly submitted that no tax was deducted at source from the payment of alternate accommodation charges / rent.

The AO did not agree with the contentions of the assessee and held that the payment made by the assessee is liable for deduction of tax at source under section 194I of the Act.

Aggrieved, the assessee preferred an appeal to the CIT(A) who allowed the appeal of the assessee by relying on the decisions of the Co-ordinate Bench in the case of Jitendra Kumar Madan (32 CCH 59, Mumbai), Sahana Dwellers Pvt. Ltd. [2016] 67 taxmann.com 202 (Mum. Trib.) and Shanish Construction Pvt. Ltd. in ITA Nos. 6087 and 6088/Mum/2024 dated 11th January, 2017.

Aggrieved, the revenue preferred an appeal to the Tribunal.

HELD

The Tribunal noted that the common issue arising in each of the four appeals preferred by the Revenue is “Whether the payment made by the assessee to the tenants of M/s Dalal Estate Co-operative Housing Society Ltd. towards alternate accommodation charges/hardship allowance/rent are liable for tax deduction under section 194I of the Act.”

On behalf of the assessee, it was contended that:

i) the impugned payment is made in lieu of the alternate accommodation which the assessee could not provide to the tenants / members of the society;

ii) the definition of term “Rent” as per the provisions of section 194I which states that the payment which is made towards use of land or building. In assessee’s case, the payment is made not towards the use of land or building but as a compensation for the hardship that the tenants would undergo by vacating the property for the purpose of re-development;

iii) the CIT(A) has correctly relied on the various decisions of the Co-ordinate Bench which has been consistently holding that the amount paid towards compensation / hardship allowance is not taxable in the hands of the tenants for the reason that the same is not paid towards use of land or building but for the hardship in vacating the property for re-development;

iv) the Hon’ble Bombay High Court in the case of Sarfaraz S. Furniturewalla vs. Afshan Sharfali Ashok Kumar & Ors in Writ Petition No. 4958 of 2024, has held that the “transit rent” i.e., the rent paid by the developer to the tenant who suffers due to dispossession is not a revenue receipt and is not liable to be taxed. As a result, there will not be any question of deduction of TDS from the amount payable by the developer to the tenant.

The Tribunal having quoted the decision of the Bombay High Court in Sarfaraz S. Furniturewalla (supra) observed that the Hon’ble High Court in the above decision has held that the transit rent which is paid to the tenant who suffers hardship due to dispossession does not fall within the definition “rent” under section 194I. It held that in assessee’s case, the payment is made towards compensation for handing over the vacant possession of the property and towards rent if any payable by the tenants in the alternate accommodation until the completion of the re-development.

Applying the ratio of the decision of the Hon’ble High Court, the Tribunal held that the payment made by the assessee towards “Alternate accommodation charges / rent” is not liable for tax deduction under section 194I, and accordingly, the Tribunal upheld the order passed by the CIT(A) for A.Y. 2013–14 to 2016–17, setting aside the order of the AO treating the assessee as an assessee in default for non-deduction and non-payment of TDS under section 194I of the Act.

Section 9(1)(vi): Supply of software — “Royalty” — Article 12 under the Indo-US DTAA.

11 CIT (IT) -3 Mumbai vs. M/s. Lucent Technologies GRL LLC

Income Tax Appeal (L) Nos. 3695 & 3693 of 2018

A.Ys.: 2006–07 & 2010–11 alongwith other companion appeals

Dated: 1st July, 2024 (Bom) (HC)

Section 9(1)(vi): Supply of software — “Royalty” — Article 12 under the Indo-US DTAA.

The Revenue has raised the following question of law:

“Whether on the facts and in the circumstances of the case and in law, the Tribunal has erred in not holding payments received by the assessee for supply of software to Reliance Infocomm Limited (now Reliance Communication Limited) to be in the nature of “royalty” under Section 9(1)(vi) of the Income Tax Act, 1961?”

In the connected Appeals, the question of law as raised is similar, which by consent of the parties was re-framed as under:

“Whether on the facts and circumstances of the case and in law, the Tribunal has erred in holding that the payment made to assessee did not amount to income of the payee by way of ‘royalty’ under Section 9(1)(vi) of the Income Tax Act, 1961?”

The Respondent-assessee filed its return of income declaring NIL income, and also claimed Tax Deducted at Source (TDS) from the payments received from the purchasers (referred as “Reliance”). The return as filed by the Respondent was taken up for scrutiny. The Assessing Officer was of the view that receipts of the amounts in question from Reliance were on account of supply of the copyright software as per the terms of the Wireless Software Assignment and License Agreement. However, the case of the assessee was to the effect that the amount was a business income and was not taxable in India, in the absence of assessee having a Permanent Establishment (PE) in India.

The Respondent-assessee contended that the Revenue receipts were in terms of the sale, as the software supplied to Reliance was not a customised software but a software which was sold to several clients. The AO did not agree with the assessee’s case, and held that the supply of such software amounted to a transfer of intellectual property rights, and hence, the consideration paid to the assessee was in fact towards a license to use the software as no title or interest in the software was transferable to the user. The AO, accordingly, held that the transaction not being a sale of the software and being a payment received for the license to use such software, it was taxable as “royalty” in terms of Section 9(1)(vi) of the Act, read with relevant Article of the Double Taxation Avoidance Agreement (DTAA) (i.e., Article 12 under the Indo-US DTAA and similar clauses in the other DTAA’s). Thus, the amount received by the assessee from Reliance was assessed as royalty and, accordingly, was sought to be taxed.

The assesee’s appeal was adjudicated by the CIT(A) taking into consideration the agreements in question, as also the transaction being viewed and considered on the applicability of Section 9(1)(vi) of the Act and the relevant Articles of the DTAA, namely, Article 12. The CIT(A) accordingly held that such amount received by the assessee did not amount to receipt of “royalty” within the meaning of Section 9(1)(iv) of the Act.

The Revenue being aggrieved by such orders of the CIT(A) carried the proceedings before the Tribunal. By the impugned orders, the Tribunal confirmed the orders passed by the CIT(A) by upholding the contentions as raised on behalf of the assessee and recording finding against the Revenue.

The Hon. Court observed that the question whether the payments made by Reliance Communication Limited for obtaining computer software, whether were liable to be taxed in India as ‘royalties’ under the provisions of Section 9(1)(vi) of the Act, had fallen for consideration of the Court in a batch of appeals filed by the Revenue on similar issues filed against Reliance Industries Ltd., came to be disposed of by an order dated 24th June, 2024.

The Respondent-assessee submitted that once in respect of the party making payment to the assessee, such question of law had fallen for consideration of the Court, and when the Court had come to a considered view that the payment for software which was supplied by the assessee was not liable to be taxed as “royalty” under the provisions of Section 9(1)(vi) of the Act, then certainly, the present assessee, which had in fact supplied the software, cannot be treated differently and the same parameters of law would be required to be applied.

The Hon. Court observed that the question of law as raised by the Revenue in the present batch of appeals would stand covered by the orders in Income Tax Appeal No. 1655 of 2018 and also a batch of appeals decided on 24th June, 2024 in Income Tax Appeal No. 28 of 2018 and other connected appeals.

The Court further observed that the order dated 24th June, 2024 passed in Income Tax Appeal No. 28 of 2018 is also required to be noted.

The Hon. Court observed that the question of law would stand covered by the authoritative pronouncement of the Supreme Court in the case of Engineering Analysis Centre of Excellence (P.) Ltd. vs. Commissioner of Income Tax 2. [2021] 125 taxmann.com 42 (SC).

The Revenue appeals were accordingly dismissed.
No costs.

Section 148 / 151: Reopening of assessment — Beyond three years — Sanction by the specified authority.

10 Cipla Pharma and Life Sciences Limited vs. Dy. CIT Circle – 1(1)(1)

WP NO. 149 OF 2023

A.Y.: 2016–17

Dated: 2nd July, 2024, (Delhi) (HC)

Section 148 / 151: Reopening of assessment — Beyond three years — Sanction by the specified authority.

The primary ground of challenge before the Hon. High Court was that the impugned notice u/s. 148 of the Act had been issued in breach of the provisions of Section 151 of the Act, which provides for a sanction by the specified authority before issuance of notice.

The Petitioner-assessee contended that the sanction to issue the impugned notice dated 30th July, 2022 was issued by the Principal Commissioner which itself is contrary to the provisions of Section 151(ii), in as much as admittedly the impugned notice was issued after a period of more than three years having elapsed from that of the relevant assessment year 2016–17. Accordingly, such sanction ought to have been issued by the Specified Authority as set out in Section 151(ii) and not by an authority falling under clause (i) of the said provision. It was contended that once such compliance itself was lacking, the impugned notice issued under Section 148 would be rendered illegal, and on such count, would be required to be quashed and set aside. In support, reliance was placed on the decision of the Division Bench of this Court in Siemens Financial Services Pvt. Ltd. vs. Deputy Commissioner of Income Tax, Circle 8 (2)(1), Mumbai &Ors. (Writ Petition No. 4888 of 2022, decided on  25th August, 2023).

The Hon. Court observed that on a plain reading of Section 148A, it is clear that the Assessing Officer (AO) before issuing any notice under Section 148 is required to follow the procedure as set out in clauses (a) to (d) of Section 148A. One of the pre-conditions as ordained by clause (d) of Section 148A is that an order under such provision can be passed by the AO only with the approval of “Specified Authority”. Thus, necessarily when clause (d) of Section 148A provides for prior approval of specified authority, it relates to the provisions of Section 151 of the Act providing for “Specified authority for the purposes of Section 148 and Section 148A of the Act”. In the present case, Section 151 as amended by the Finance Act, 2021 and Section 148A as also introduced by Finance Act, 2021 have become applicable, as although the assessment year in question is 2016–17 in respect of which the assessment is sought to be reopened by issuance of notice under Section 148, which is dated 30th July, 2022. Such amended provision would squarely become applicable the date of notice under section 148 itself being 30th July, 2022.

The Hon. Court further observed that the record clearly indicates that the sanction in the present case was issued by the Principal Commissioner which can only be in respect of cases if three years or less than three years have elapsed from the end of the relevant assessment year, as would fall under the provisions of clause (i) of Section 151 of the Act. As in the present case, the assessment year in question is 2016–17 and the impugned notice itself has been issued on 30th July, 2022, it is issued after a period more than three years having elapsed from the end of the said assessment year. Accordingly, clause (ii) of Section 151 of the Act was applicable, which required the sanction to be issued by either Principal Chief Commissioner or Principal Director General or where there is no Principal Chief Commissioner or Principal Director General, Chief Commissioner or Director General for issuance of notice under Section 148 of the Act.

The Hon. Court further observed that such an issue fell for consideration of the Division Bench of this Court in Siemens Financial Services Pvt. Ltd. (supra), wherein the Division Bench considered the provisions of Section 151 of the Act read with the provisions of Section 148A(b). The latter provision clearly provided that prior to issuance of any notice under Section 148 of the Act, the AO shall provide an opportunity of being heard to the assessee, only after considering the cumulative effect of Section 148A(b) read with Section 151 of the Act. As provided under sub-clause (d), the AO shall decide on the basis of material available on record, including reply of the assessee, whether or not it is a fit case to issue a notice under Section 148 by passing an order, with the prior approval of specified authority within one month from the end of the month in which the reply is received. The sanction of the specified authority has to be obtained in accordance with the law existing when the sanction is obtained. Therefore, the sanction is required to be obtained by applying the amended Section 151(ii) of the Act, and since the sanction has been obtained in terms of Section 151(i) of the Act, the impugned order and impugned notice are bad in law and should be quashed and set aside.

The Hon. Court further observed that the respondent’s case based on the notification dated 31st March, 2020 issued under the Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020 (for short, “TOLA”) was concerned, the Court held that such notification was a subordinate legislation, and it could not override the statute enacted by the Parliament and in that regard, the position in law was discussed by the Division Bench in Siemens Financial Services Pvt. Ltd. (supra), paragraph 27 of the said decision.

The impugned notices are quashed and set aside, the petition is allowed.

Writ — Competency to file writ petition — Chartered Accountant authorised to represent assessee in income-tax matters — Chartered Accountant could file writ against order of assessment.

36 TiongWoon Project and Contracting Pte. Ltd. vs. CBDT

[2024] 463 ITR 641 (Mad)

A.Ys. 2012–13 and 2013–14

Date of order: 22nd January, 2024

ART. 226 of Constitution of India

Writ — Competency to file writ petition — Chartered Accountant authorised to represent assessee in income-tax matters — Chartered Accountant could file writ against order of assessment.

The petitioner is a company incorporated in Singapore and engaged in undertaking turnkey construction projects involving erection, installation and commissioning activities. In these two writ petitions, the petitioner assails a common order dated 3rd November, 2023 refusing to condone delay in filing the return of income of the petitioner for the A.Y. 2012–13 and 2013–14. The writ was signed by the chartered accountants. The assessee-company had authorised the chartered accountants to represent it in relation to its Income-tax assessments and all other proceedings arising therefrom.

The standing counsel for the respondents raised the preliminary objection that the writ petition should not have been filed by the chartered accountants of the petitioner. By referring to the authorisation issued by the petitioner to the chartered accountants, it was submitted that the authorisation does not extend to the conduct of proceedings before this court. A reference was also made to the ethics code of the Institute of Chartered Accountants of India and the annual report of TiongWoon Corporation Holding Ltd. to contend that the chartered accountants through whom the writ petitions were filed were the statutory auditors of one of the subsidiaries of the above-mentioned holding company, and that the chartered accountants should not act as authorised representatives in such situation.

Rejecting the preliminary objection of the Respondents, the Madras High Court held as under:

“The authorisation in favour of the chartered accountants was on record and the assessee-company had authorised the chartered accountants to represent it in relation to its Income-tax assessments and all other proceedings arising therefrom. Although proceedings before the court were not expressly referred to the language of the authorisation was wide enough to embrace these proceedings. As regards the alleged breach of the ethics code, even if established, that could not be the basis to reject this petition.”

Regulatory Referencer

I. DIRECT TAX: SPOTLIGHT

1. Forms 3CN, 3CS, 3CEC, 3CEFB, 59 and 59A shall be furnished electronically – Notification No. 01/2024-25 dated 24th June, 2024

II. COMPANIES ACT, 2013

No News to report

III. SEBI

1. “Saarthi 2.0” app with tools, calculators, and modules, offering financial insights to investors launched: SEBI has launched “Saarthi 2.0” mobile app, enhancing its user-friendly interface and providing comprehensive financial tools. The app includes financial calculators, modules on KYC procedures, mutual funds, ETFs, and the stock exchange, as well as investor grievance mechanisms and the Online Dispute Resolution platform. It aims to empower investors, especially young ones, with unbiased and essential insights into the securities market, adapting to evolving market conditions. [Press Release No. N.10/2024, dated 3rd June, 2024]

2. Master Circular for ‘Bankers to an Issue registered with SEBI: SEBI has issued an updated master circular for ‘Bankers to an Issue registered with SEBI’. This circular compiles all existing circulars issued till date. This is done in order to enable the stakeholders to have an access to all the applicable circulars/directions at one place. [Circular No. SEBI/HO/AFD/AFD-POD-2/P/CIR/2024/72, dated 30th May, 2024]

3. FPI norms amended: SEBI has notified SEBI (Foreign Portfolio Investors) (Amendment) Regulations, 2024. It states that a foreign portfolio investor (FPI) must pay the registration fees as provided in Part A of Second Schedule for every block of 3 years before the beginning of such a block. However, registration fees shall be considered paid if FPI pays fee along with late fee within 30 days from expiry of preceding block. [Notification No. SEBI/LAD-NRO/GN/2024/183, DATED 31st May, 2024]

4. FPI Master Circular modification: SEBI has modified the Foreign Portfolio Investors (FPI) Master Circular. The amended norms provide flexibility to foreign portfolio investors (FPIs) in dealing with their securities after their registration expires. Similar changes have been carried out in the Foreign Portfolio Investors (FPI) Master Circular. [Circular No. SEBI/HO/AFD/AFD-POD-2/P/CIR/2024/76 AND 77, dated 5th June, 2024]

5. SEBI mandates direct pay-out of securities by clearing corporation to demat accounts of clients: At present, securities received in payout are pooled by the broker before being credited to the respective client demat accounts. However, the direct payout to client accounts was already made available on a voluntary basis as per the circular dated 1st February, 2001. It has now been decided that the process of direct securities payout to client accounts will become mandatory. The provisions of this circular will come into effect on 14th October, 2024. [Circular No. SEBI/HO/MIRSD/MIRSD-POD1/P/CIR/2024/75, dated 5th June, 2024]

6. SEBI notifies framework of ‘Financial Disincentives for Surveillance Related Lapses’: The SEBI has notified a framework for Surveillance Related Lapses at Market Infrastructure Institutions (MIIs). This shall be applicable to lapses emanating from non-adherence to the requisite surveillance activities / decisions. [Circular No. SEBI/HO/ISD/ISD-POD-1/P/CIR/2024/73, dated 6th June, 2024]

7. Guidelines on ‘Anti-Money Laundering Standards and Combating Financing of Terrorism’ for intermediaries: SEBI has issued guidelines on ‘Anti-Money Laundering Standards and Combating Financing of Terrorism’ for intermediaries. The guidelines set out the essential principles for combating Money Laundering (ML) and Terrorist Financing (TF) and provide detailed procedures and obligations for all registered intermediaries to follow and comply with. Also, intermediaries may require clients to specify additional disclosures to address concerns about ML and suspicious transactions undertaken by clients. [Master Circular No. SEBI/HO/MIRSD/MIRSDSECFATF/P/CIR/2024/78, dated 6th June, 2024]

8. ‘Master Circular on KYC norms’ for KRAs Integration with Central KYC Records Registry: SEBI has notified amendment in ‘Master Circular on KYC Norms’ with respect to Uploading of KYC information by KYC Registration Agencies (KRAs) to Central KYC Records Registry (CKYCRR). Now, KRAs shall ensure that existing KYC records of legal entities and of individual clients are uploaded on to CKYCRR within a period of 6 months from 1st August, 2024 ill 1st February 2025. Also, KRAs shall integrate with CKYCRR and start uploading KYC records by 1st August, 2024. [Circular No. SEBI/HO/MIRSD/SECFATF/P/CIR/2024/79, dated 6th June, 2024]

9. Updated Master Circular on ‘Portfolio Managers’: SEBI has issued an updated master circular on ‘Portfolio Managers’. This will facilitate access to all the applicable requirements at one place, all the circulars issued till 31st March, 2024. [Circular No SEBI/HO/IMD/IMD-POD-1/P/CIR/2024/80, dated 7th June, 2024]

10. Demat and Mutual Fund accounts won’t be frozen over non-submission of nomination: Earlier, SEBI extended the deadline for submitting the ‘choice of nomination’ for Demat accounts and mutual fund folios to 30th June, 2024. Now, SEBI has clarified that non-submission will not result in freezing these accounts. Further, security holders with physical securities will receive payments and services even without submitting the nomination. Also, existing investors are encouraged to submit nominations to ensure smooth transmission of securities and prevent unclaimed assets. [Circular No. SEBI/HO/MIRSD/POD-1/P/CIR/2024/81, dated 10thJune, 2024]

11. Introduction of a ‘special call auction mechanism’ for price discovery of scrips of listed investment companies: SEBI has introduced a ‘special call auction mechanism for effective price discovery of scrips of listed investment companies (ICs) and investment holding companies (IHCs). SEBI directs that ICs or IHCs must be identified based on uniform industry classifications provided by stock exchanges. Further, scrips of ICs or IHCs must have been listed and available for trading for a period of at least 1 year. The first special call auction must be conducted by stock exchanges in the month of October 2024. [Circular No. SEBI/HO/MRD/MRD-POD-3/P/CIR/2024/86; dated 20th June, 2024]

12. Updated ‘Master Circular for Electronic Gold Receipts (EGRs)’: Now, in order to enable the stakeholders to have access to all the provisions mentioned in the earlier issued circulars at one place, SEBI has issued an updated master circular incorporating all subsequent circulars issued on EGRs till 31st May, 2024. [Master Circular No. SEBI/HO/MRD/MRD-POD-1/P/CIR/2024/87, dated 24th June, 2024]

13. Updated ‘Master Circular for Mutual Funds’: SEBI has been issuing various circulars from time to time to effectively regulate the Mutual Fund Industry. Now, in order to enable the stakeholders to have an access to all the regulatory requirements at one place, SEBI has issued an updated master circular incorporating all subsequent circulars issued till date. The master circular supersedes the master circular for mutual funds dated 19th May, 2023. [Master Circular No. SEBI/HO/IMD/IMD-POD-1/P/CIR/2024/90, dated 27th June, 2024]

IV. FEMA

I. Draft Import and Export Regulations issued for public response:

The Notifications dealing with Import and Export are in force since RBI has decided to rationalise regulations that cover export and import transactions. The proposed regulations are intended to promote ease of doing business, especially for small exporters and importers. They are also intended to empower Authorised Dealer banks to provide quicker and more efficient service to their foreign exchange customers. The draft regulations under FEMA and draft directions meant for Authorised Dealer banks are available online on RBI’s website for public response. Comments / feedback on the draft proposals (regulations as well as directions) may be forwarded by 1st September, 2024. Readers are welcome to share their feedback with BCAS which will compile and share response to RBI.

[Press Release: 2024-2025/615 dated 2nd July, 2024]

II. Limits applicable on remittances allowed with online filing of Form A2 now removed:

RBI has allowed online filing of Form A2 for remittances for transactions with an upper limit of USD 25,000 for individuals and USD 100,000 for corporates. RBI has now decided to allow remittance through online filing of Form A2 without any limit.

[A.P. (DIR SERIES 2024-25) CIRCULAR NO. 12, DATED 3rd July, 2024]

III. Form A2 applicable for all cross-border remittances:

For any current account transaction up to USD 25,000 Authorised Dealers are permitted to release foreign exchange on the basis of a simple letter containing basic information. No other documents were required including Form A2. However, RBI has now decided that Authorised Dealers shall obtain Form A2 in physical or digital form for all cross-border remittances irrespective of the value of transaction.

[A.P. (DIR SERIES 2024-25) CIRCULAR NO. 13, DATED 3rd July, 2024]

IV. IFSCA designates 4 additional currencies as ‘specified foreign currencies’:

IFSCA has notified IFSCA (Banking) (Amendment) Regulations, 2024. An amendment has been made to the First Schedule relating to ‘specified foreign currencies’. The IFSCA has designated four additional currencies as ‘specified foreign currencies’ under First Schedule. These currencies include Swedish Krone (SEK), New Zealand Dollar (NZD), Danish Krone (DKK) and Norwegian Krone (NOK).

[Notification IFSCA/GN/2024/004 dated 4th July, 2024]

V. RBI expands the scope of Foreign Currency Account held by Residents in IFSC:

At present, remittances under LRS to IFSCs can be made by Residents only for:

a. Making investments in IFSCs in securities except those issued by entities/ companies resident in India (outside IFSC); and

b. Payment of fees for education to foreign universities or foreign institutions in IFSCs for pursuing gazetted courses.

For these permissible purposes, resident individuals can open Foreign Currency Account (FCA) in IFSCs.

On a review, RBI has decided that Authorised Persons may facilitate remittances for all permissible purposes under LRS to IFSCs for:

a. Availing financial services or financial products as per the International Financial Services Centres Authority Act, 2019 within IFSCs; and

b. All current or capital account transactions, in any other foreign jurisdiction (other than IFSCs) through an FCA held in IFSCs.

This brings FCA in IFSC at part with FCA in any other foreign jurisdiction for remittances of all current and capital account transactions covered under the LRS.

[A.P. (DIR SERIES 2024-25) CIRCULAR NO. 15, DATED 10th July, 2024]

VI. Extension in deadline for filing of FLA returns to 31st July 2024:

The deadline for filing the Annual Foreign Liabilities and Assets (FLA) Return for Financial year (FY) 2023-24 was 15th July, 2024. However, there were technical glitches on RBI’s Foreign Liabilities and Assets Information Reporting (FLAIR) portal where the return is to be uploaded. Therefore, RBI has extended the due date to 31st July, 2024.

[Announcement on RBI’s FLAIR System]

Revision — Powers of Commissioner — Commissioner (Appeals) holding amounts included in fringe benefits tax return not chargeable to fringe benefits tax — Revision application for refund of fringe benefits tax — Revision application rejected on grounds of delay — Commissioner conferred with power to condone delay to do substantial justice — Commissioner (appeals) taking long time to dispose of appeal — Commissioner ought to have condoned delay — Order rejecting revision application quashed — Direction to condone delay and consider revision application on merits and pass reasoned order.

35 Hindalco Industries Ltd. vs. UOI

[2024] 464 ITR 236 (Bom.)

A.Y. 2007–08

Date of order: 17th January, 2024

Ss. 115WD(1) and 264 of the ITA 1961

Revision — Powers of Commissioner — Commissioner (Appeals) holding amounts included in fringe benefits tax return not chargeable to fringe benefits tax — Revision application for refund of fringe benefits tax — Revision application rejected on grounds of delay — Commissioner conferred with power to condone delay to do substantial justice — Commissioner (appeals) taking long time to dispose of appeal — Commissioner ought to have condoned delay — Order rejecting revision application quashed — Direction to condone delay and consider revision application on merits and pass reasoned order.

For the A.Y. 2007–08, the Commissioner (Appeals) by order dated 31st August, 2016, held the amounts included in the fringe benefits tax return as not chargeable to fringe benefits tax. Since the Commissioner (Appeals) allowed the claim of the assessee, the assessee filed an application u/s. 264 of the Income-tax Act, 1961 for refund of the fringe benefits tax return. The Commissioner rejected the revision application on the grounds of substantial delay in filing the application and that the intimation u/s. 143(1) of the Act was not an assessment order.

The assessee preferred a writ petition contending that the Commissioner (Appeals) took almost five to six years to decide that the amounts included in the fringe benefits tax returns were not chargeable to fringe benefits tax and hence there was no delay in filing the revision application. The Bombay High Court allowed the writ petition and held:

“i) On the issue of condonation of delay in an application filed u/s. 264 of the Income-tax Act, 1961, courts have held that the authorities should not take a pedantic approach but should be liberal. The courts have held that the words ‘sufficient cause’ should be given a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fides is imputable to the assessee. The courts have held that the principle of advancing substantial justice is of prime importance and while considering the question of condonation, the revisional authority is not all together excluded from considering the merits of the revision petition.

ii) U/s. 264 of the Act, the Commissioner is empowered either on his own motion or on an application made by the assessee to call for the record of any proceedings under the Act and pass such order thereon not being an order prejudicial to the assessee and this power has been conferred upon the Commissioner in order to enable him to give relief to the assessee in cases of over-assessment.

iii) The Commissioner having been conferred power to condone the delay to do substantial justice to parties by disposing of the matter on the merits should, considering the facts and circumstances of the case, in particular that it took a long time for the Commissioner (Appeals) to dispose of the assessee’s appeal, have condoned the delay. The order rejecting the application u/s. 264 of the Act was quashed and set aside. The Commissioner was directed to condone the delay and consider the application u/s. 264 of the Act on the merits and pass a reasoned order in accordance with the law.”

Revision — Rectification of mistake — Time limit — Computation of long-term capital gains — Sale of flat inherited by the assessee and three others — Omission of claim of deduction of indexed renovation expenses in return of income — Rejection of application for rectification and revision on grounds that new claim not raised earlier — Revision Application within one year from the date of rectification order — AO accepting indexed renovation expenses in case of co-owner — Amount accepted in co-owner’s case to be accepted as correct and allowance to be made while computing long-term capital gain.

34 Pramod R. Agrawal vs. Principal CIT

[2024] 464 ITR 367 (Bom.)

A.Y.: 2007–08

Date of order: 13th October, 2023

S. 48, 143(3), 154 and 264 of ITA 1961

Revision — Rectification of mistake — Time limit — Computation of long-term capital gains — Sale of flat inherited by the assessee and three others — Omission of claim of deduction of indexed renovation expenses in return of income — Rejection of application for rectification and revision on grounds that new claim not raised earlier — Revision Application within one year from the date of rectification order — AO accepting indexed renovation expenses in case of co-owner — Amount accepted in co-owner’s case to be accepted as correct and allowance to be made while computing long-term capital gain.

The assessee was a co-owner of a flat which was inherited by the assessee along with three others. The assessee’s share was to the extent of 25%. In the return of income, the assessee offered capital gains from the sale of the said flat. The assessee offered the capital gains without claiming the indexed cost of improvement in respect of the renovation expenses incurred. On the advice of the chartered accountant that a co-owner had sought rectification and had been allowed deduction of the entire renovation expenses of the flat from full value of consideration, while computing the share of capital gains, the assessee also filed an application u/s. 154 of the Act seeking rectification by allowing deduction of indexed cost of improvement being renovation expenses not claimed in the original return of income. The assessee’s application for rectification was rejected on the grounds that the claim was made for the first time in the application u/s. 154 and it was never brought to the attention of the lower authorities earlier. Against this order rejecting the assessee’s application for rectification of mistake, the assessee filed a revision application u/s. 264 of the Act which application was also rejected.

Against this order rejecting the assessee’s application u/s. 264, the assessee filed a writ petition before the High Court. The Bombay High Court allowed the petition and held that:

“i) Section 264 confers wide jurisdiction on the Commissioner. The proceedings u/s. 264 of the Act are intended to meet a situation faced by an aggrieved assessee who is unable to approach the appellate authorities for relief and has no alternate remedy available under the Act. The Commissioner is bound to apply his mind to the question whether the assessee was taxable on that income and his powers are not limited to correcting the error committed by the sub-ordinate authorities but could even be exercised where errors are committed by the assessee. It would even cover situation where the assessee because of an error has not put forth legitimate claim at the time of filing the return and the error is subsequently discovered and is raised for the first time in an application u/s. 264 of the Act.

ii) There was no delay in filing the application u/s. 264 of the Income-tax Act, 1961 because the application u/s. 264 of the Act was against the order passed u/s. 154 of the Act and not that passed u/s. 143(3) of the Act. The order u/s. 154 of the Act was passed within one year from the date of application filed u/s. 264 of the Act.

iii) In the assessment order passed in the case of another co-owner of the flat, the Assessing Officer had accepted certain amount as the cost of indexed renovation. Therefore, the amount had to be accepted as correct and suitable allowance should be made while arriving at the long-term capital gains. The order is quashed and set-aside. The matter was remanded for de novo consideration and to pass a reasoned order after providing the assessee with an opportunity of hearing.”

Return of income — Delay in filing revised return — Condonation of delay — Power to condone — Meaning of “genuine hardship” — Power vested in authority to be judiciously exercised — Compensation received on compulsory land acquisition inadvertently declared as income — Payment of tax more than liability is “genuine hardship” — Department to enable assessee to file revised return of income.

33 K. S. Bilawala and Others vs. Principal CIT

[2024] 463 ITR 766 (Bom.)

A.Y. 2022–23

Date of order: 16th January, 2024

S. 119(2)(b) of the ITA 1961

Return of income — Delay in filing revised return — Condonation of delay — Power to condone — Meaning of “genuine hardship” — Power vested in authority to be judiciously exercised — Compensation received on compulsory land acquisition inadvertently declared as income — Payment of tax more than liability is “genuine hardship” — Department to enable assessee to file revised return of income.

For the A.Y. 2022–23, the assessee inadvertently declared as income the compensation received by him on acquisition of its land under the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. The return of income was processed u/s. 143(1) of the Income-tax Act, 1961 and the assessee received an intimation. Thereafter, the assessee filed an application u/s. 119(2)(b) for condonation of delay and leave to file a revised return. The application was rejected on the grounds that he did not show any genuine hardship which was caused due to delay in the application.

The assessee filed the writ petition challenging the rejection order. The Bombay High Court allowed the writ petition and held as under:

“i) The phrase ‘genuine hardship’ used in section 119(2)(b) of the Income-tax Act, 1961 should be considered liberally. There cannot be a straitjacket formula to determine what is genuine hardship. The power to condone delay has been conferred to enable the authorities to do substantial justice to the parties by disposing of matters on the merits. While considering these aspects, the authorities are expected to bear in mind that no applicant stands to benefit by filing delayed returns. Refusing to condone the delay can result in a meritorious matter being thrown out at the very threshold and the cause of justice being defeated, but, when the delay is condoned, a cause would be decided on the merits after hearing the parties.

ii) When the assessee felt that the amount of compensation that it received under the 2013 Act need not have been offered to tax, under the 1961 Act, the authority should have condoned the delay and considered the matter on the merits. The fact that an assessee had paid more tax than what he was liable to pay would cause hardship and that would be a ‘genuine hardship’. The delay in filing the revised return was to be condoned and accordingly the Department was to enable the assessee to file the revised return for the A. Y. 2022-23. Thereafter, the authority could decide whether or not the compensation received by the assessee under the 2013 Act was liable to tax.”

Reassessment — Notice — Sanction of Authority — Application of mind to material on basis of which reopening of assessment sought for by AO — Discrepancy in quantum of escapement of income in order in initial notice and order for issue of notice — Not noticed by concerned Sanctioning Authorities — Non-application of mind in passing sanction order — Orders and consequent notice set aside.

32 Vodafone India Ltd. vs. Dy. CIT

[2024] 464 ITR 385 (Bom.)

Date of order: 19th March, 2024

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

Reassessment — Notice — Sanction of Authority — Application of mind to material on basis of which reopening of assessment sought for by AO — Discrepancy in quantum of escapement of income in order in initial notice and order for issue of notice — Not noticed by concerned Sanctioning Authorities — Non-application of mind in passing sanction order — Orders and consequent notice set aside.

In this case, the petitioner is impugning a notice dated 30th March, 2023, u/s. 148A(b) of the Income-tax Act, 1961, an order dated 19th April, 2023 passed u/s. 148A(d) of the Act and a notice dated 19th April, 2023 issued u/s. 148 of the Act on various grounds. One of the grounds raised across the Bar is that the sanction for issuance of the order u/s. 148A(d) of the Act has been granted without application of mind by all the five officers involved.

The Bombay High Court allowed the petition and held:

“i) The power vested in the sanctioning authorities u/s. 151 of the Income-tax Act, 1961 to grant or not to grant approval to the Assessing Officer to reopen the assessment u/s. 147 is coupled with a duty. The sanctioning authorities are duty bound to apply their mind to the proposal put up for approval considering the material relied upon by the Assessing Officer and cannot exercise their power casually on a routine perfunctory manner. While recommending and granting approval it is obligatory on the part of the officers to verify whether there is any genuine material to suggest escapement of income on all the authorities and the Principal Chief Commissioner in particular to consider whether or not power to reopen is being invoked properly.

ii) The contention that the record had been carefully considered before granting approval u/s. 151 was an incorrect statement made by the Principal Chief Commissioner. The information annexed to the notice issued u/s. 148A(b) had stated the quantum of income that had escaped assessment more than the amount mentioned in the order passed u/s. 148A(d) without any explanation as to how the amount had changed or had been reduced. In the affidavit it was stated that in the notice the value of the transaction in question was taken gross and subsequently it was seen that there were duplicate entries which were corrected while passing the order u/s. 148A(d). The notice did not contain any duplicate entries. If there were duplicate entries, the Assessing Officer was duty bound to clarify in the order and also give details of what were those duplicate entries and should have come clean on the error made. If the Principal Chief Commissioner or the other officers had seen the records and had applied their mind those errors would not have crept in. This displayed non-application of mind by all those persons who had endorsed their approval for issuance of notice u/s. 148.

iii) Had the authorities read the record carefully, they would have never come to the conclusion that this was a fit case for issuance of notice u/s. 148 and would have either told the Assessing Officer to correct the amounts or would have sent the papers back for reconsideration. They had substituted the form for substance, important safeguards provided in sections 147 and 151 were treated lightly by the concerned officers. The order of approvals u/s. 151, having been granted mechanically and without application of mind in a most casual manner, were quashed and set aside. The order passed u/s. 148A(d) and the consequent notice issued u/s. 148 were also quashed and set aside.”

Offences and prosecution — Compounding of offences — Application for — Limitation — Application can be filed either before or subsequent to launching of prosecution — Circular issued by CBDT stipulating limitation period of 12 months — Contrary to legislative intent of provision — Application for compounding rejected as barred by limitation period prescribed in circular issued by CBDT — Not sustainable — Relevant clause of Circular struck down — Matter remitted to decide application on the merits.

31 Jayshree vs. CBDT

[2024] 464 ITR 81 (Mad)

A.Y.: 2013–14

Date of order: 3rd November, 2023

S. 119(1) and Explanation to S. 279(2) of the ITA 1961

Offences and prosecution — Compounding of offences — Application for — Limitation — Application can be filed either before or subsequent to launching of prosecution — Circular issued by CBDT stipulating limitation period of 12 months — Contrary to legislative intent of provision — Application for compounding rejected as barred by limitation period prescribed in circular issued by CBDT — Not sustainable — Relevant clause of Circular struck down — Matter remitted to decide application on the merits.

During the previous year relevant to the A.Y. 2013–14, the assessee sold an immovable property and reinvested the capital gains in the purchase of another immovable property. The Assessee was under the impression that since there was no liability to pay income tax, she was not required to file return of income and, therefore, did not file her return of income. The return of income was filed belatedly on 13th June, 2016. Subsequently, she was prosecuted for delay in filing of the return. In view of provisions of section 279(2) of the Act, the assessee filed an application for compounding of offence in the year 2021. The application was rejected on the grounds that it was filed beyond the time limit of 12 months from the date of launching prosecution which was prescribed under the Circular F. No. 285/08/2014-IT(Inv.) 147 dated 14th June, 2019.

The assessee filed the writ petition and challenged the order of rejection. The Madras High Court allowed the writ petition as under:

“i) The power of the CBDT u/s. 119(1) of the Income-tax Act, 1961 to issue circulars, directions and instructions should not be exercised beyond the scope of the Act. The CBDT is not empowered to fix the time limit for filing the application for compounding of offences u/s. 279, which is contrary to the provisions of section 279(2) in terms of which the assessee can file the application for compounding of offences either before or subsequent to the launching of the prosecution. The Explanation to section 279 which empowers the CBDT to issue circulars is only for the purpose of implementation of the provisions of the Act with regard to the compounding of offences and not for the purpose of fixing the time limit for filing the application for compounding of offences.

ii) Nowhere in section 279(2), had a time limit been mentioned for filing an application for compounding of offences u/s. 279 though the Explanation thereunder, stated that the CBDT was empowered to issue orders, circulars, instructions and directions for the purpose of implementation of the Act. The intention of the legislation for bringing section 279(2) was to permit the assessee to file an application for compounding of offences either before institution of proceedings or after institution of proceedings. The fixing of a time limit by the CBDT by way of a Circular was contrary to the intention of the legislation and amounted to amendment of section 279(2). Since the idea of the legislation was that the compounding of offences was permissible either before or after the institution of the proceedings, the CBDT could not issue a circular contrary to the object of the provisions of section 279. Clause 7(ii) of Circular F.No. 285/08/2014-IT(Inv.V)/147, dated June 14, 2019 was beyond the scope of the Act and hence, that portion of the circular was to be struck down.

iii) The matter was remitted to the authority to decide the application on the merits in accordance with law.”

Offences and prosecution — Failure to file returns in time — Relief from prosecution — Effect of proviso to s. 276CC — Prepaid taxes resulting in NIL liability — Prosecution u/s. 276CC not valid.

30 Manav Menon vs. DCIT

[2024] 463 ITR 752 (Mad)

A.Y. 2013–14

Date of order: 17th November, 2023

S. 276CC of ITA 1961

Offences and prosecution — Failure to file returns in time — Relief from prosecution — Effect of proviso to s. 276CC — Prepaid taxes resulting in NIL liability — Prosecution u/s. 276CC not valid.

For the A.Y. 2013–14, the Assessing Officer filed complaint for the offence punishable u/s. 276CC of the Income-tax Act, 1961 for non-filing of income-tax return. The crux of the complaint is that the accused is an assessee within the jurisdiction of the respondent. During the course of proceedings for assessment, the respondent detected that the petitioner failed to file his return of income for A.Y. 2013–14. As per section 139(1) of the Income-tax Act, the petitioner ought to have filed the return of income on or before 30th September, 2013.

The assessee filed a criminal writ petition for quashing the prosecution proceedings. The Madras High Court allowed the writ petition and held as under:

“i) Filing of the Income-tax return is mandatory in nature u/s. 139(1) of the Income-tax Act, 1961 and failure to file the Income-tax return is punishable u/s. 276CC of the Act, 1961. The proviso to section 276CC gives some relief to genuine assessees. The proviso in clause (ii)(b) to section 276CC provides that if the tax payable determined by regular assessment as reduced by advance tax paid and tax deducted at source does not exceed ₹3,000, such an assessee shall not be prosecuted for not furnishing the return u/s. 139(1) of the Act. Therefore, this proviso takes care of genuine assessees who either file their returns belatedly but within the end of the assessment year or those who have paid substantial amounts of their tax dues by prepaid taxes from the rigour of the prosecution u/s. 276CC.

ii) A perusal of the records revealed that admittedly the assessee had failed to file his return of income for the A. Y. 2013-14. However, the assessee had paid taxes under the heads of advance tax, tax deducted at source, tax collected at source, and self assessment tax to the tune of ₹23,75,066. According to his returns, the total tax and interest payable by him was ₹23,74,610. Therefore, he had claimed a refund of ₹460 and the proviso (ii)(b) to section 276CC would come to the rescue of the assessee from the rigour of the prosecution u/s. 276CC of the Act. Therefore, the initiation of prosecution for the offence punishable u/s. 276CC of the Act could not be sustained.”

Accrual of income — Meaning of accrual — Time of accrual — Assessee terminating lease following dispute — Assessee not accepting lease rent — Matter before Small Causes Court — Small Causes Court allowing lessor to deposit lease rent in Court specifying that deposit was allowed without prejudice to rights of contestants — Matter still pending in Small Causes Court — Lease rent did not accrue to the Assessee.

29 T. V. Patel Pvt. Ltd. vs. DCIT

[2024] 464 ITR 409 (Bom.):

A.Ys. 1986–87 to 1991–92, 1993–94

Date of order: 4th December 2023

Ss. 4 and 5 of the ITA 1961

Accrual of income — Meaning of accrual — Time of accrual — Assessee terminating lease following dispute — Assessee not accepting lease rent — Matter before Small Causes Court — Small Causes Court allowing lessor to deposit lease rent in Court specifying that deposit was allowed without prejudice to rights of contestants — Matter still pending in Small Causes Court — Lease rent did not accrue to the Assessee.

The assessee entered into a sub-lease agreement with IDBI on an annual lease rent of ₹3,42,720. The said income was offered for tax under the head “Income from Other Sources”. During the previous year 1980–81, dispute arose between the assessee and IDBI for breaches committed by IDBI, which lead to termination of the sub-lease agreement by the assessee, and subsequently, the assessee refused to accept rent from IDBI post termination of the agreement. In October 1981, IDBI filed a Declaratory Suit in the Small Causes Court and obtained injunction against the assessee from terminating the sub-lease agreement.

In March 1984, the Department issued a garnishee notice u/s. 226(3) in respect of the outstanding tax arrears of the assessee and directed IDBI to pay rent to the Department. In response to the notice, the assessee informed the Department that the sub-lease agreement had been terminated and there was no rent due and payable to the assessee and, therefore, the notice issued by the Department was illegal. The Assessee also addressed a letter to IDBI about the termination and recorded that IDBI should not make payment to the Income-tax Department. However, IDBI made the payment to the Department despite the fact that the agreement was terminated.

Thereafter, in the year 1984, the Assessee filed a suit for eviction and claimed reliefs. On an application made by IDBI to the Small Causes Court, the Small Causes Court allowed IDBI to deposit the lease rent in Court. The assessee, however, did not withdraw any amount.

In the return of income for A.Ys. 1982–83 to 1986–87 filed by the assessee, the lease rent was not offered for tax. The assessments were completed and no addition was made. Subsequently, the assessment for A.Y. 1986–87 was re-opened for assessing the lease rent which the assessee had not offered for tax in the return of income for A.Y. 1986–87. In the re-assessment order, the AO added the amount of annual lease rent agreed between the assessee and IDBI.

On appeal before the CIT(A) and the Tribunal, both dismissed the appeal of the assessee. The reason for dismissing the appeal was that the claim for arrears of rent and compensation was pending before the Court. The consideration under the agreement had been paid by IDBI. The assessee was demanding compensation over and above the amount of rent. It was held by the Tribunal that the consideration did accrue to the assessee and it was being utilised for payment of tax arrears.

Against the order of the Tribunal, the Assessee filed an appeal before the High Court. The Bombay High Court allowed the appeal and held as follows:

“i) Section 5(1)(b) of the Income-tax Act, 1961 provides for scope of total income to include all income which ‘accrues’ or ‘arises’ or ‘is deemed to accrue or arise’ in India during such year. The words ‘accrue’ or ‘arise’ have different meanings attributed to them while the former connotes the idea of a growth or accumulation, the latter connotes the idea of crystallisation of the former into a definite sum that can be demanded as a matter of right. For determining the point of time of accrual, two factors are relevant. The first is a qualitative factor and the second is a quantitative factor. The qualitative factor is relatable to the terms of the agreement or the conduct of the parties for determining when the legal right to receive income emerges. The quantitative factor is relatable to the exact sum in respect of which the qualitative factor of legal right to receive is applied. These two factors have no order of priority between them. When both converge, there is a legal right to receive a certain sum of money as income. Such convergence determines a point of time of accrual. In order that the income may be said to have accrued at a particular point of time, it must have ripened into a debt at that time, that is to say, the assessee should have acquired a right to receive payment at that moment, though the receipt itself may take place later. There must be a debt owed to the assessee by somebody at that moment or, as is otherwise expressed, ‘debitum in praesentisolvendum in futuro’. Until it is created in favour of the assessee, the debt due by somebody, it cannot be said that he has acquired a right to receive any income accrued to him.

ii) There is also a difference between ‘accrue or arise’ or ‘earned’. Earning income is not the same as accrual of income but is a stage anterior to accrual of income. A person does not have a legal right to receive the income by merely earning income. Although, earning of income is a necessary prerequisite for accrual of income, mere earning of income without right to receive it does not suffice. A person may be said to have ‘earned’ his income in the sense that he has contributed to its production by rendering service and the parenthood of the income can be traced to him but in order that the income may be said to have ‘accrued’ to him an additional element is necessary that he must have created a debt in his favour.

iii) There is a distinction between cases where the right to receive payment is in dispute and it is not a question of merely quantifying the amount to be received and cases where the right to receive payment is admitted and the quantification of the amount received is left to be payable in amount. The principle of law as laid down in various decisions is to the effect that if the matter is pending before the judicial forum or the amount is allowed to be withdrawn by the party, till the case is decided finally by the judicial forum, it cannot be said that the assessee has acquired a right to receive the income for the purposes of section 5 of the Act. The time of accrual for taxing income gets postponed till the dispute is adjudicated by the civil court.

iv) In the present case, it was not disputed that the cross suits filed by the assessee and the tenant against each other were pending before the Small Causes Court. It was also not disputed that the assessee had not accepted the rent from the tenant post termination of the sub-lease agreement in the year 1981. The Small Causes Court had permitted the tenant to deposit the lease rent in the court till the rights of the parties were decided and the order of deposit of the rent was without prejudice to the rights and contentions of the parties. In the light of these facts, whether the sub-lease agreement between the tenant and the assessee subsisted post 1981 termination by the assessee, was itself a subject matter of dispute between the assessee and the tenant which was pending adjudication. In the light of these facts, it could not be said that the assessee was entitled to receive a sum of ₹3,42,720 under the sub-lease agreement with the tenant or a right was vested in the assessee to that sum. The determination of the amount payable by the tenant to the assessee as prayed for by the assessee in its suit was to be determined by the Small Causes Court and when the Court passed a final decree one could not say that the right to receive the sum decreed by the Small Causes Court had accrued to the assessee. Till then, the right to receive any sum by the assessee was in jeopardy and sub judice before the Small Causes Court. Therefore, the Revenue was not justified in bringing to tax the sum of ₹3,42,720 as accrued income for the A. Y. 1986-87 and for the other years being A. Y. 1988-89 to 1991-92 and 1993-94.”

Applicability of Section 50c to Rights in Land

ISSUE FOR CONSIDERATION

Section 50C of the Income Tax Act, 1961 provides for substitution of the actual consideration by the stamp duty valuation on the transfer of a capital asset, being land or building, if the consideration is less than the stamp duty valuation, for purposes of computing capital gain under section 48. In other words, the full value of consideration, in such cases, shall be deemed to be the value adopted for the purpose of levy of stamp duty. Section 50C reads as follows:

“Where the consideration accruing as a result of transfer of the capital asset, being land or building or both, is less than the value adopted or assessed or assessable by any authority of a State Government (hereinafter in this section referred to as the “stamp valuation authority”) for the purpose of payment of stamp duty in respect of such transfer, the value so adopted or assessed or assessable shall, for the purposes of section 48, be deemed to be the full value of consideration received or accruing as a result of such transfer.”

The issue has arisen before the Courts as to whether this deeming fiction of s. 50C applies to a case of transfer of leasehold or other rights in land or building, which are not ownership rights and are not land and building simpliciter. While the Rajasthan High Court has held that the provisions of section 50C do apply to such leasehold and other rights, the Karnataka and Bombay High Courts have held that the provisions of section 50C do not apply in such cases.

RAM JI LAL MEENA’S CASE

The issue had come up before the Rajasthan High Court in the case of Sh. Ram Ji Lal Meena s/o Sh. Bachu Ram Meena vs. ITO 423 ITR 439 (Raj).

In this case, the land was sold by the assessee under a registered sale deed for a consideration of ₹11,70,000. The Registering Authority adopted the value of the property at ₹53,11,367 for stamp duty purposes. The assessee or the transferee did not file any appeal against such valuation by the stamp authorities before the appellate authorities appointed under the stamp duty law. The land in question had been allotted by a cooperative society to the assessee’s predecessor, from whom the assessee had purchased the land. The land was acquired by the Government for the public purpose for RIICO after its purchase / allotment by / to the co-operative society. A writ petition for validating the purchase / allotment of land was filed by the co-operative society, which was allowed by the Rajasthan High Court. At the time of validation of the sale to the society, an appeal by RIICO against the Rajasthan High Court’s order was pending before the Supreme Court. Subsequent to the sale by the assessee, the Supreme Court reversed the High Court’s order on an appeal by RIICO, and upheld the acquisition by the Government for RIICO.

The assessee did not file any tax return either u/s 139(1) or in response to a notice received for reassessment u/s 148. During reassessment proceedings, he merely filed a computation of total income, disclosing a capital loss of ₹1,22,303. In reassessment proceedings, the assessee objected to the stamp duty valuation. The Assessing Officer referred the matter to the Departmental Valuation Officer, who returned the reference stating that statutory references normally required 120 days, and it was not possible to take up the case, as it was getting time barred by 31st March 2016.

The assessee contended that section 50C was not applicable as the land was under dispute, and the assessee had only sold out / transferred the rights to the land under dispute. The Assessing Officer did not accept the assessee’s contention and made an addition of ₹41,80,805 to the capital gains by applying the provisions of section 50C.

The Commissioner (Appeals) dismissed the appeal of the assessee.

The Tribunal, on appeal by the assessee, held that there was a transfer of a plot of land, by the assessee, and not just rights in land as claimed by the assessee, because the Rajasthan High Court’s order, which had held that the co-operative society was entitled to the land, was in force at the point of sale of the land by the assessee and as such the assessee sold the land in his capacity as the owner of the land. The Tribunal however restored the matter to the file of the Assessing Officer to decide the matter afresh after obtaining a valuation report from the Departmental Valuation Officer.

The assessee filed an appeal to the High Court against the order of the Tribunal. Before the Rajasthan High Court, it was argued on behalf of the assessee that this was not a case of transfer of land, but the transfer of rights therein, since the land was under acquisition by the Government for RIICO. Due to upholding the order of acquisition by the Supreme Court, it was claimed that the land vested in the State Government, and the possession remained with RIICO and not with the assessee. It was therefore urged that it was wrongly taken as a transfer of land when what was transferred by the assessee was only rights in land. Therefore, it was submitted that section 50C was not applicable.

It was also submitted that as per the revenue records the rights in land were khatedari rights, the ownership of the land vested with the Government and not the assessee, and the assessee had leasehold and not freehold rights over land, and as such section 50C could not have been invoked. Reliance was placed on various decisions of the Tribunal and the decision of the Bombay High Court in the case of Greenfield Hotels & Estates Pvt Ltd 389 ITR 68, to support the contention that section 50C would not be applicable when there was a transfer of leasehold land. It was contended that the assessee had rights similar to that possessed by a leaseholder, and therefore section 50C would not apply.

The High Court observed that a sale deed was executed for the sale of land, and the assessee had received consideration. The sale deed was registered by the Sub-Registrar. A transfer of a capital asset existed and for a valuable consideration received by the assessee. There was a dispute regarding possession of the property, which possession according to the assessee was with RIICO, but according to the revenue, the possession was with the assessee. The High Court noted that the material on record did not show any possession with RIICO, as only a notification for the acquisition of land had been issued, and there was no award passed for the acquisition by the Government for RIICO. It was the notification, the court noted, that was in dispute before the Supreme Court and not the possession of the land.

The High Court held that no question of law was involved in the case, as the dispute had been raised on facts, and the Commissioner (Appeals) and the Tribunal had held that section 50C would apply in the circumstances. According to the High Court, the appeal preferred by the assessee against the order passed by the Tribunal could not be admitted.

The Rajasthan High Court rejected reliance placed on behalf of the assessee on the decision of the Ahmedabad Tribunal in the case of Smt Devindraben I Barot vs. ITO 159 ITD 162 (Ahd), on the ground that in that case there was a relinquishment without there being a relinquishment deed and that the tribunal had decided the case without examining what was the difference between sale of the land and relinquishment of right therein. The Rajasthan High Court also rejected the reliance placed by the assessee on the Jaipur Tribunal decision in the case of ITO vs. Tara Chand Jain 155 ITD 956 (Jp), on the ground that the finding in that case that the assessee had transferred only the right in the land for valuable consideration and thereby did not transfer the capital asset, was recorded without proper scrutiny of facts and without elaborate finding on the issue. The tribunal in that case had not examined how the land and building or both were disclosed by the assessee in the balance sheet had not been taken note of, nor had it been shown how it was not a transfer of capital asset.

Referring to the decision of the Bombay High Court in the case of Greenfield Hotels & Estates Pvt Ltd (supra), the Rajasthan High Court observed that a bare perusal of section 50C did not show that transfer of a capital asset for consideration should be other than that of leasehold property or khatedari land, and that the Court could not rewrite the provision. According to the Rajasthan High Court, if the analogy taken by the Bombay High Court was applied in general, then section 50C would not be applicable in the majority of the cases as it was not allowed for leasehold property. The Rajasthan High Court further observed that the Bombay High Court had not referred to how the land was reflected in the balance sheet, whether as a capital asset or not. It therefore expressed its inability to apply the ratio of the judgment of the Bombay High Court to the case before it.

The Rajasthan High Court dismissed the appeal, holding that it did not find any question of law involved in the case before it.

V S CHANDRASHEKHAR’S CASE

The issue had also come up before the Karnataka High Court in the case of V S Chandrashekhar vs. ACIT 432 ITR 330.

In this case, the assessee had entered into an unregistered agreement for the purchase of land from Namaste Exports Ltd for a consideration of ₹4.25 crore. Under the agreement, the assessee was neither handed over the possession of the land nor was power of attorney executed in his favour. Namaste Exports Ltd. subsequently sold the land to another person, to which agreement the assessee was a consenting party.

The assessing officer of the assessee made an addition under section 50C, in his hands, in respect of the capital gains offered by the assessee for the transaction of consenting to the transfer by Namaste Exports Ltd. of the land. The appeals by the assessee to the Commissioner (Appeals) and the Tribunal confirmed the order of the assessing officer.

Before the Karnataka High Court, on appeal by the assessee, it was claimed that the provisions of section 50C were not applicable to the case of the assessee, since he was merely a consenting party in the transaction of transfer of land by a third party. It was urged that section 50C, being a deeming provision, required strict interpretation, and applied to the transfer of the land, by Namaste Exports Ltd. In its hands, and not to the assessee, who was a consenting party and not the transferor / co-owner of the property. It was further argued that since the assessee was only a consenting party, he had no locus standi in the transaction of transfer of land. It was further pointed out that section 50C used the expression ‘capital asset’ as being ‘land, building or both’, and the expression ‘being’ was more like ‘namely’, and therefore section 50C did not deal with interest in land but only dealt with land.

It was also urged on behalf of the assessee that where the language of the statute was clear and unambiguous, there was no room for the application of either the doctrine of ‘causes omissus’ and external aids for interpretation of the provision of s.50C could also not be taken recourse to. It was submitted that the assessee could not be taxed without clear words for the purpose and that every Act of Parliament must be read according to the natural construction of words.

Various alternative arguments were made on behalf of the assessee, including that the land was stock-in-trade and that section 50C did not therefore apply.

On behalf of the Revenue, besides rebutting the arguments that the land was stock-in-trade, it was contended that section 50C mandated the adoption of consideration on the basis of guidance value prescribed by the State Government for the purposes of stamp duty, as the consideration reflected by the assessee was much less than the guidance value provided by the Government of Karnataka. Therefore, the assessing officer had rightly adopted the stamp duty valuation in terms of section 50C.

It was also argued on behalf of the revenue that since the assessee had entered into a purchase agreement and had paid substantial consideration to the extent of 80%, rights had accrued in his favour, which had been extinguished by the sale deed, which would amount to transfer under section 2(47). Reliance was placed on the decision of the Supreme Court in the case of Sanjeev Lal vs. CIT 365 ITR 389 for this proposition that consideration had rightly been subjected to capital gains.

The Karnataka High Court examined the provisions of section 2(47) and section 50C. It noted that explanation 1 to section 2(47) used the term “immovable property”, whereas section 50C used the term “land or building or both” instead of “immovable property”. The Karnataka High Court was of the view that it was pertinent that wherever the legislature intended to expand the meaning of land to include rights or interest in land, it had said so specifically; viz., sections 35(1)(a), 54G(1), 54GA(1), 269UA(d) and Explanation to section 155(5A). According to the Court, section 50C therefore applied only in the case of a transferor of land, which in the case before the court, was Namaste Exports Ltd., and not the assessee, who was only a consenting party and not the transferor or co-owner of land.

According to the Karnataka High Court, the assessee had certain rights under the agreement, but from the clear, plain and unambiguous language used in section 50C, it was evident that it did not apply to a case of rights in land. According to the Karnataka High Court, it was a well-settled rule that in interpreting the taxing statutes no charge should be applied where the words used in the law by the legislature are clear and not ambiguous and the words used in the statute should be given natural meaning when they were clear and unambiguous, and the extended meaning should not be read into such words in the name of legislative intent and for any other reason.

For these reasons, the Karnataka High Court was of the view that the provisions of section 50C were not applicable to the case of the assessee.

OBSERVATIONS

The issue under consideration though moves in a narrow compass has a wider application. Other provisions of the Act namely, s.2(42A), s. 43CA and 56(2)(x) apply in the same context of bringing to tax the difference between the agreement value and the stamp duty value in respect of the transfer of land or building or both or for determination of the period of holding a capital asset. Besides these direct provisions, the Act is replete with provisions that use the term ‘immovable property’ in preference to the term ‘land or building or both’. They are found in s.27, 35(1)(a), 54G(1), 54GA(1), 269UA(d) and Explanation to section 155(5A) of the Act. The Transfer of Property Act and the General Clauses Act also deal with immovable property instead of land or building. All of these make one thing clear that the term immovable property is wider in its scope and embraces in its sweep the terms land and building, though the converse of the same is not true.

Various benches of the tribunal and some high courts have held that the profits and gains on transfer of rights in the land or building are not exigible to the deeming provisions being discussed herein. This is based on the application of the understanding that the terms ‘land or building’ have narrower meaning than the term ‘immovable property’ which is wider to include in its scope the rights and interest in the land or building, besides the land or building. These decisions hold that tenancy rights, leasehold rights, and rights in buildings under construction and development rights are not the same as the ‘land’ or ‘building’.

It’s useful to refer to the meaning of the term ‘immovable property’ provided under s.269UA of the Income Tax Act s.3 of the Transfer of Property Act (“TOPA”) and s.3 of the General Clauses Act (“GCA”). Immovable property, under TOPA and GCA, is defined to mean “Immovable property does not include standing timber, growing crops and grass”,. and “Immovable property shall include land benefits to arise out of the land, and things attached to the earth ”, respectively. S. 269UA of the Income-tax Act defined the term as under;

“immovable property” means-

(i) any land or any building or part of a building, and includes, where any land or any building or part of a building is to be transferred together with any machinery, plant, furniture, fittings or other things, such machinery, plant, furniture, fittings or other things also.

Explanation. – For the purposes of this sub-clause, “land, building, part of a building, machinery, plant, furniture, fittings and other things” include any rights therein;

(ii) any rights in or with respect to any land or any building or a part of a building (whether or not including any machinery, plant, furniture, fittings or other things, therein) which has been constructed or which is to be constructed, accruing or arising from any transaction (whether by way of becoming a member of, or acquiring shares in, a co-operative society, company or other association of persons or by way of any agreement or any arrangement of whatever nature), not being a transaction by way of sale, exchange or lease of such land, building or part of a building;

A bare reading of the definitions leaves no doubt that the term ‘immovable property’ as defined, is wider in its scope and includes the terms land or building while the latter terms are not defined and would be assigned their natural meaning, and not the wider meaning to include the rights in the land and building.

Importantly, the legislature in framing the different provisions of the Income Tax Act has a clear perception and understanding of the difference between these terms which is made clear by the use of different terms at different places with different objectives. Had the intention been to cover the cases of the rights in land too in the ambit of the provisions being examined namely, s.43CA, 50 C and 56(2), the legislature would have used the term’ immovable property’ in place and stead of the terms ‘land’ or ‘building’. S.27, 35(1)(a), 54G(1), 54GA(1), 269UA(d) and Explanation to section 155(5A) of the Act use the term ‘immovable property’ whose meaning would be supplied reference to the enactments which define this term while the meaning of the terms ‘land’ or ’building’ used in the Act should be gathered by the natural meaning of these terms.

This issue had first come up before the Bombay High Court in the case of CIT vs. Greenfield Hotels & Estates (P) Ltd 389 ITR 68. In that case, the Bombay High Court noted that the tribunal had followed its decision in Atul G Puranik vs. ITO 132 ITD 499, which had held that section 50C is not applicable while computing capital gains on the transfer of leasehold rights in land and buildings. In that case, the counsel for the revenue stated that the revenue had not preferred any appeal against the decision of the tribunal in the case of Atul G Puranik (supra). The Bombay High Court therefore stated that it could be inferred that the tribunal decision in Atul Puranik’s case had been accepted by the Government. The High Court referred to its own decision in the case of DIT vs. Credit Agricole Indosuez 377 ITR 102 and the decision of the Supreme Court in the case of UOI vs. Satish P Shah 249 ITR 221, for the salutary principle that where the revenue had accepted the decision of the court / tribunal on an issue of law and not challenged it in appeal, then a subsequent decision following the earlier decision cannot be challenged. Therefore, the Bombay High Court had taken the view that no substantial question of law arose in that case.

An identical view had been taken by the Bombay High Court on the same reasoning earlier in CIT vs. Heatex Products Pvt Ltd 2016 (7) TMI 1393 – Bombay High Court. However, in a subsequent matter in the case of Pr CIT vs. Kancast Pvt Ltd 2018 (5) TMI 713Bombay High Court, the Bombay High Court took note of its decisions in Greenfield Hotels & Estates (P) Ltd (supra) and Heatex Products Pvt Ltd (supra) and observed that these were decided on the basis that no appeal had been filed against the Tribunal’s decision in the case of Atul G Puranik (supra). The High Court observed that in the case before it, reliance had been placed on the Tribunal decisions in the case of Atul G Puranik (supra) and ITO vs. Pradeep Steel Re-Rolling Mills Pvt Ltd 2011(7) TMI 1101 – ITAT Mumbai (supra). The counsel for the Revenue pointed out that the Revenue had preferred an appeal against the Tribunal’s order in Pradeep Steel Re-Rolling Mills Pvt Ltd (supra), which was admitted. It was however later withdrawn in view of the low tax effect.

The Bombay High Court noted that when both appeals in Greenfield Hotels & Estates Pvt Ltd (supra) and Heatex Products Pvt Ltd (supra) were not entertained by it, the decision of the Court in Pradeep Steel Re-Rolling Mills Pvt Ltd (supra) admitting the appeal on the same question had not been brought to its notice. It therefore admitted the appeal on the substantial question of law in Kancast Pvt Ltd’s (supra) case. Therefore, the issue is still pending for decision before the Bombay High Court.

However, in a decision of the Bombay High Court in the case of Pr CIT vs. MIG Co-op. Hsg. Soc. Group II Ltd 298 Taxman 284 (Bom), in the context of a redevelopment agreement entered into by a co-operative housing society, the Bombay High Court noted with approval the following observations of the Tribunal in the case before it:

“We also hold that Society was only the lessee  and what was transferred to the developer is development rights, not land or building. Section 50C of the Act stipulates as under:

“Where the consideration received or accruing as a result of the transfer by an assessee of a capital asset, being land or building or both.….…”

No authority is required to hold that terms’ land or building’ ‘or both’ do not include development rights and that in the case before (them) there was the transfer of such rights only.”

Looking at the number of judicial decisions, including various decisions of the Tribunal, it appears that the majority of the Courts and the Tribunals seem to favour the proposition that given the express language of section 50C, referring to “capital asset, being land or building or both” and not using the broader term “immovable property”, the intention clearly seems to be that only land building per se was intended to be covered, and not all types of immovable property.

The facts in both cases are highly peculiar. In the case before the Rajasthan High Court, the subsequent order of the Supreme Court has made the entire transaction of the transfer by the assessee non-est and not enforceable in law, and the assessee would have been better off by contending that no capital gains could be said to have arisen out of a non-est transaction by relying on the settled position in law including by the decisions of the Supreme Court in the case of Balbir Singh Maini,86 taxmann.com 94 and Ranjit Kaur, 89 taxmann.com 9. In the facts of the assessee before the Karnataka High court the assessee had never acquired any land or building, nor had he acquired even the rights in the land, nor had he possessed the land, neither had he transferred the land, nor was he capable of doing so; he was just a consenting or confirming party and was included for the reason of he having made the part payment to the extent of 80% of the consideration agreed. In such facts, it was not possible for the court to have come to any other conclusion other than the one delivered by it.

Therefore, the better view is that rights in immovable property which are inferior to ownership rights, such as leasehold rights or the right to acquire immovable property, would not be covered by section 50C.

Part A | Goods and Services Tax

HIGH COURT

33 AU Finja Jewels vs. Assistant Commissioner Div. V CGST and Cx.

[2024] 164 taxmann.com 278 (Bombay)

Dated 21st June, 2024

Where the invoice issued to the customer indicates the gross value of the jewellery and also shows a reduction in respect of the gold supplied by the customer free of cost, the value as per GST invoice for the purpose of computing refund should be the gross value and the value of gold supplied free of cost can be treated as a payment in advance.

FACTS

Petitioner is a jewellery processor and manufacturer of jewellery and in the course of his business, imports gold and exports gold jewellery in accordance with the Foreign Trade Policy of the Government of India. The issue that arises in this petition is, what is the value of the goods that have to be considered while working out the refund of Integrated Goods and Services Tax (IGST) to be sanctioned? The FOB value as per the invoice was USD 2,24,846.75. However, the net realisable value after considering the value of gold supplied by the customer free of cost was USD 6,479.39. The department considered net realisable value as the value of goods declared on the export invoice.

HELD

The Hon’ble Court held that the value of export goods should be considered as the gross value and the value of gold given by the customer free of cost should be treated as advance payment.

34 Fabricship (P.) Ltd vs. Union of India

[2024] 164 taxmann.com 80 (Bombay)

Dated 21st June, 2024

When imported machinery under ECPG scheme is transported from the port to the petitioner’s factory, there is no supply and hence in the absence of any evidence that the goods were being supplied to a third party, the penalty under section 129(1)(a) is not payable. However, such a movement will qualify as an “exempt supply” to attract a penalty under section 129(1)(b) of the Act. As sections 129(1)(a) and 129(1)(b) are mutually exclusive, an order imposing penalties under both sections is an order without application of mind.

FACTS

The petitioner imported machinery at port from China which was fully exempted since it was covered by the EPCG scheme. Petitioner, thereafter, arranged a transporter to transport the said machinery from the port to its factory at Surat. The said vehicle was intercepted in Maharashtra and it was found that no e-way bill was prepared. However, the Bill of Entry accompanying the vehicle contained all the details. The State GST authority imposed a penalty under section 129(1)(a) and under section 129(1)(b) of the MGST Act. The petitioner submitted that as there was no Customs duty or IGST liability since goods are exempt under notification no.16/2015-Customs read with notification no.18/2020-Customs, the penalty was not imposable. The petitioner also informed that it had given a bank guarantee; however, the said bank guarantee has expired and has not been renewed.

HELD

The Hon’ble Court observed the fact that the machinery imported is exempted from Customs duty and IGST and that the machinery was being transported from port to the petitioner’s own factory at Surat post clearance by the Customs Authorities is not disputed. Further, there is no evidence indicating the movement of machinery to the outside buyer out of the State of Maharashtra. The Hon’ble Court held that when the petitioner imports machinery and after Customs clearance transports the said machinery to its own factory, it cannot be said that such a transportation would fall within the definition of the term supply’ as defined by section 7 as for a ‘supply’ to fall under section 7 there has to be more than one person or entity between whom the transaction of supply should take place. It further held that the movement of goods cannot fall under schedule I, II and III of the Act. The Hon’ble Court held that the applicability of the rate of tax would get triggered only if a transaction falls within the meaning of the term ‘supply’ as per section 7 of the MGST Act. Therefore, the first limb of Section 129(1)(a) is not applicable. However, when a person transports the goods imported, after Customs clearance to his own factory premises then it is a non-taxable supply and would fall within the category of “exempted goods” as it does not attract tax and consequently, the case will be covered within the second limb of section 129(1)(b) of the Act attracting the penalty of ₹25,000 in the present case.

On the simultaneous imposition of penalty under sections 129(1)(a) and 129(1)(b), the Hon’ble Court held that both these provisions are mutually exclusive and hence order imposing penalty under section 129(1)(a) as well as under section 129(1)(b) is an order passed without application of mind. Since the petitioner failed to keep the bank guarantee in force, the Hon’ble Court imposed a cost of R15 lakh on the petitioner.

35 Pedersen Consultants India (P.) Ltd vs. Union of India

[2024] 164 taxmann.com 67 (Delhi)

Dated 19th March, 2024

When the petitioner was forced to pay GST on invoices due to the non-filing of returns by the supplier and subsequently, the supplier filed the returns, thereby creating a scenario of double tax payment to the Government, the Hon’ble Court permitted the petitioner to file the refund application.

FACTS

Petitioner had been coerced into depositing the tax on the said invoices as the supplier had not filed returns within time. Subsequently, the said supplier filed the returns and consequently, double payment was made to the department. The claim of the petitioner was not considered as petitioner did not file an appropriate refund application as required under section 54 of the Central Goods & Service Tax Act, 2017.

HELD

Assessee / Petitioner was directed to file a refund application under section 54 of the Central Goods and Services Tax Act, 2017. However, relying on Notification No.13/2022 dated 5th July, 2022, the period between 1st March, 2020 to 28th February, 2023 was directed to be excluded for computation of period of limitation. Also, the period between filing of the subject petition till the passing of the High Court’s order was also directed to be excluded for filing the refund application.

36 Amarjyothi Carrying Corporation vs. Assistant Commissioner (ST)

[2024] 164 taxmann.com 11 (Madras)

Dated 20th March, 2024

Where the entire tax liability has arisen on account of an inadvertent error committed while filing the GSTR 1 return which was subsequently rectified in GSTR-3B and GSTR-9 return and the petitioner did not submit the reply before the authorities in time, the Hon’ble Court thought it just and proper to remand the matter setting aside the impugned Order.

FACTS

While filing the GSTR 1 return for the month of October 2019, it is stated that the petitioner inadvertently failed to indicate that GST was leviable on the service on reverse charge basis. However, this mistake was corrected in the GSTR 3B return for the relevant month and also in the annual GSTR 9 return. The department recovered the outstanding demand from the petitioner by attaching the bank account. The Order was challenged primarily on the ground that the petitioner was not provided a reasonable opportunity.

HELD

The Hon’ble Court held that when the entire tax liability has arisen on account of an inadvertent error committed while filing the GSTR 1 return which was subsequently rectified in GSTR-3B and GSTR-9 return and just because the petitioner did not submit the reply before the authorities in time, it is just and necessary to provide the petitioner opportunity. The Hon’ble Court therefore remanded the matter with a direction that amounts appropriated pursuant to the impugned order shall be subjected to the outcome of the remanded proceedings.

37 Maurya Industries vs. Union of India

(2024) 19 Centax 273 (Del.)

Dated 11th March, 2024

Cancellation of GST registration must be based on objective criteria, ensuring that registration can only be cancelled retrospectively when the consequences are intended and warranted.

FACTS

Petitioner applied for cancellation of its registration on 12th April, 2023 as the firm was discontinued due to losses incurred. It had also duly furnished the required documents. However, the application was rejected via a SCN dated 6th June, 2023, citing an inspection by the Anti-Evasion Branch on 30th May, 2023 that found the petitioner’s principal place of business non-existent. Subsequently, an order was issued in line with the Show Cause Notice, retrospectively cancelling the petitioner’s registration from 26th October, 2022. Being aggrieved by impugned order passed by respondent, petitioner preferred this petition before Hon’ble High Court.

HELD

The High Court held that retrospective cancellation is invalid as the petitioner had applied for cancellation before the inspection on the basis that business was discontinued thereby implying that his place of supply was not existing any more. According to section 29(2) of the CGST Act, a taxpayer’s registration can be cancelled with retrospective effect only where such consequences are intended and are warranted. In the present case, such cancellation would have unwanted repercussions such as invalidation of the ITC claimed by petitioner’s customers.

Further, such cancellation cannot be based on subjective assessment but must be based on objective criteria. Mere non-filling of returns cannot be the reason for retrospective cancellation of registration, as it also covers the period when the returns were filled. Accordingly, writ petition was disposed of, reserving all the rights and contentions of the parties.

38 Aditya Steel Trading vs. Joint Commissioner, Central Goods and Services Tax and Central Excise (2024) 19 Centax 469 (Bom.)

Dated 18th June, 2024

Show Cause Notice issued without attaching the impounded documents mentioned therein renders the petitioner unable to effectively respond to the SCN.

FACTS

Petitioner was issued a SCN dated 25th October, 2023, however copies of impounded documents along with the SCN were provided only on 25th December, 2023. This reduction in time lead to non-filing of reply by petitioner. Consequently, an order was issued on 28th December, 2023, supplemented by another order of 20th December, 2023. Being aggrieved by impugned order passed by respondent, petitioner preferred this petition.

HELD

The High Court held that impugned orders were passed without giving an opportunity to reply to SCN. It was observed that without access to copies of the impounded documents, the petitioner would have been unable to adequately address the SCN. Consequently, the impugned Order was deemed to be set aside, and the matter was remanded.

Glimpses of Supreme Court Rulings

6 Special Leave Petition — Dismissed on grounds of efflux of time — Question of Law kept open

PCIT vs. Atlanta Capital Pvt. Ltd.

(2024) 464 ITR 346 (SC)

A notice dated 27th March, 2008 u/s. 148 of the Act for the assessment year 2001–02 was issued to the assessee at an old address, though the Assessing Officer had served letters dated 8th August, 2007 and intimation u/s. 14(1) dated 25th January, 2008 for the assessment year 2006–07 at the new address. The Tribunal quashed the reassessment proceedings holding that there was no proper service of notice. The Delhi High Court dismissed the appeal holding that there was no substantial question of law. According to the High Court, the mere fact that an assessee participated in the reassessment proceedings despite not having been issued or served with the notice u/s. 148 of the Act in accordance with law will not constitute a waiver of the jurisdictional requirement of the issuance and the service of notice.

The Supreme Court observed that the said notice as followed by the order passed by the Assessing Officer/Commissioner was set aside by the Income-Tax Appellate Tribunal on 21st June, 2013. Subsequently the order of the Tribunal was upheld by the High Court on 15th September, 2015. The proceeding initiated in 2008 was concluded by the order of the High Court in 2015. Yet another decade had passed thereafter. Under the circumstances, while keeping the question of law open for consideration in another case, the Supreme Court decided not to interfere with the judgment of the High Court.

7 Business Expenditure—Expenditure cannot be disallowed merely because no income is earned SLP dismissed since it was accepted that the business had commenced
PCIT vs. Hike Pvt. Ltd (2024) 464 ITR 394 (SC)

The assessee filed its return of income for the assessment year 2014–15 declaring a loss of ₹42,24,57,146. The assessment order u/s. 143(3) was passed determining total income at ₹78,83,350. The Assessing Officer inter alia disallowed the expenses of ₹43,01,40,500 for the reason that the assessee had not earned any revenue from its business. The only income that it had earned was income from other sources, i.e., interest earned on fixed deposits.

On an appeal, the Commissioner of Income-tax (Appeal) inter alia confirmed the disallowance of expenses.

The Tribunal reversed the view taken by the Commissioner of Income-tax (Appeals) noting that for AY 2012–13, the Assessing Officer had accepted the stand of the assessee that the expenses incurred by it were on revenue account and the later order passed by the Commissioner u/.s 263 for AY 2012–13 was quashed by the Tribunal.

Before the High Court, the Revenue contended that the expenditure was incurred before the business was set up and therefore not allowable. The High Court noted that the objection of the Assessing Officer was that the said amount was spent in building a brand for future utilization, therefore, was not in the nature of revenue. The High Court noted that even in AY 2012–13 the expenses were disallowed because according to the Assessing Officer, the business was not set up and the software purchased was not put to use.

The High Court considering that the assessee was in the business of software development did not interfere with the order of the Tribunal.

On a special leave by the Revenue, the Supreme Court declined to interfere with the High Court judgment as it was accepted that the business had commenced.

Recent Developments in GST

A. NOTIFICATIONS

i) The Government has published the GST Appellate Tribunal (Recruitment, Salary and Other Terms and Conditions of Service of Group “C” Employees) Rules, 2024, dated 21st June, 2024 by Notification No. G.S.R 340(E), dated 21st June, 2024.

B. CIRCULARS

The following circulars have been issued by CBIC.

i) Monetary Limit for filing appeals by Department — Circular no.207/01/2024-GST dated 26th June, 2024.

By the above circular, monetary limits are indicated for the filing of appeals by the department. Different limits are provided for appeals to different forums like GSTAT, High Courts and Supreme Court.

ii) Clarifications in respect of manufacturers of specified commodities — Circular no.208/02/2024-GST dated 26th June, 2024.

By the above circular, various issues regarding compliance with special procedures in respect of specified commodities like Pan Masala and tobacco products are clarified.

iii) Clarification regarding Place of Supply — Circular no.209/03/2024-GST dated 26th June, 2024.

In the above circular, clarification is given about the Place of Supply in case of supply to an unregistered person. It is clarified that if the delivery address is different from the billing address, then the delivery address should be considered as the place of supply.

iv) Clarification on the valuation of Import Services- Circular no. 210/04/2024-GST dated 26th June, 2024.

In case of import of services between related parties, the importer is liable to pay tax under RCM, even though there is no consideration. By the above circular, clarification is given about valuation in such cases.

v) Clarification regarding ITC of Tax paid under RCM— Circular no.211/05/2024-GST dated 26th June, 2024.

In case, there are any inward supplies, received from unregistered suppliers, on which the recipient is liable to pay tax under RCM, in the above circular it is clarified that the year for considering the time limit under section 16(4) for availing ITC should be the year in which the self-invoice is created for such supply.

vi) Clarification regarding deduction towards discount — Circular no.212/06/2024-GST dated 26th June, 2024.

As per section 15(3)(b)(ii), if any discount is given by the supplier to the recipient then such discount is deductible from the value of such supply. One of the conditions for getting the claim is that the recipient should reduce his ITC proportionately. However, at present there is no facility to know the reduction made by the recipient. The circular has provided that, in such cases, a self-declared undertaking can be obtained from the recipient about a reduction in ITC and if such reduction is more than 5 lakhs, then a certificate from CA/CMA should be obtained.

vii) Clarification regarding Taxability of Shares / Securities – Circular no.213/07/2024-GST dated 26th June, 2024.

By the above circular clarifications are given about the taxability of ESOP / ESPP / RSU (Issue of Shares/Securities) provided by the Company to its employees through its overseas holding Company. Mainly it is clarified that such transactions are related to Shares / Securities, which are neither goods nor services, hence not liable to tax under GST as import of services.

viii) Clarification about reversal of ITC in case of Life Insurance — Circular no.214/08/2024-GST dated 26th June, 2024.

When there is an exempt supply, the ITC is required to be reversed on a proportionate basis. In the above circular it is clarified that in respect of the amount of premium for taxable life insurance policies, which is not included in taxable value as determined under Rule 32(4), there is no need for reversal of pro rata ITC.

ix) Clarification regarding taxability of Salvage — Circular no.215/09/2024-GST dated 26th June, 2024.

In the case of the insurance claim for goods, there are pre-determined terms for the treatment of salvage while deciding the claim amount. In the above circular, clarifications are given about taxability and valuation of salvage/wreckage.

x) Clarification regarding GST liability and ITC in case of Warranty— Circular no.216/10/2024-GST dated 26th June, 2024.

In the above circular, various clarifications are given with respect to GST liability and availability of ITC in cases involving warranty / Extended Warranty. This is in continuation of earlier circular no.195/07/2023-GST- dated 17th July, 2023.

xi) Clarification regarding ITC to the Insurance Companies — Circular no.217/11/2024-GST dated 26th June, 2024.

By the above circular, clarifications are given about the entitlement of ITC by insurance companies on the expenses incurred for the repair of motor vehicles in case of reimbursement mode of insurance claim settlement.

xii) Clarification regarding Taxability of providing loan — Circular no.218/12/2024-GST dated 26th June, 2024.

In the above circular, clarifications are given about the taxability of transactions of providing a loan by an overseas affiliate to an Indian affiliate or by a related person.

xiii) Clarification about ITC on Ducts and Manholes — Circular no.219/13/2024-GST dated 26th June, 2024.

By the above circular, clarification is given about the applicability of Section 17(5)(d), i.e., regarding the blocking of ITC with respect of ducts and manholes used in the network of optical fibre cables (OFCs).

xiv) Clarification about the place of supply in case of Banks — Circular no.220/14/2024-GST dated 26th June, 2024.

By the above circular clarifications are given about the place of supply applicable for Custodial Services, provided by the bank to Foreign Portfolio Investors.

xv) Clarification regarding Time of supply in case of Construction services of Road — Circular no.221/15/2024-GST dated 26th June, 2024.

In the above circular, clarifications are given about Time of supply in relation to the supply of services of construction of road and maintenance thereof of National Highways of the National Highways Authority of India under a Hybrid Annuity Mode.

xvi) Clarification about Time of supply in case of Spectrum Uses — Circular no.222/16/2024-GST dated 26th June, 2024.

By the above circular, clarifications are given about the time of supply of services Spectrum uses and other similar services.

C. ADVANCE RULINGS

19 GST on EPC/Turnkey Contract vis-à-vis Imported goods

M/s. Tecnimont Private Limited (AR Order No.GUJ/GAAR/R/2024/02 (In Application No.Advance Ruiling/SGST& CGST/2023/AR/15) dt. 5th January, 2024 (Guj)

The applicant M/s Tecnimont Private Limited has entered into a turnkey contract with Indian Oil Corporation Ltd. (for short — IOCL), vide contract No. 44AC9100-EPCC-1 dated 19th January, 2021, for executing EPC work of Acrylic Acid Unit (90 KTA) and Butyl Acrylate Unit (150 KTA) of Acrylic/Oxo-Alcohol Project’, located at IOCL Dumad Complex, Nr. Gujarat Refinery, Vadodara.

The applicant has stated that, in terms of the contract, all imported materials required to be supplied under the contract will be sold by the applicant to IOCL on High Seas Sale [HSS] basis by endorsing bill of lading in favour of IOCL who will be filing the bill of entry for warehousing and subsequently for home consumption by paying the applicable customs duty and IGST.

The applicant has further clarified that the contract value is fixed as a lump sum price of ₹18,72,00,48,047.50 comprising of:

“(i) ₹14,70,30,56,131 for domestically sourced material and supply of service;

(ii) Foreign Exchange Euros of € 4.55.18,322 (i.e., converted @ 1 EURO = INR88.25 as on the date of opening of price bid ₹401,69,91,916.5) based on the terms and conditions of Contract No. 44AC9100-EPCC-1 towards goods imported outside India;

(iii) ₹32,89,75,280.89 towards custom Duty & SWS on Foreign Component imported which is reimbursable according to contractual terms.”

As per the applicant, during the course of importation, before the goods reached the Customs frontiers of India, they entered into an HSS agreement with IOCL, transferring the ownership of the goods to IOCL at the price agreed in the contract. The applicant raises a Custom Invoice with respect to goods sold to IOCL under HSS without charging GST. IOCL then files a bill of entry as an importer of the said goods and discharges customs duty and IGST by clearing the goods for warehousing or home consumption. The applicant intends to treat this portion of the supply of imported goods as a separate supply of goods distinct from the works contract supplies.

In other words, the applicant wanted to say that the contract No. 44AC9100-EPCC-1 entered into with IOCL, identifies two separate sets of supplies for the turnkey project, (i) works contract for EPC work and [ii] supply of imported materials for the said work.

With respect to consideration mentioned in respect of contract part at (i) above, the applicant intends to charge GST @ 18 per cent, as works contract service.

In respect of part (ii), the applicant intends to claim exemption from the levy of tax in terms of para 8(b) of Schedule-III of CGST Act,2017;

As per above entry 8(b) in Schedule-III, the sale by transfer of documents of title to goods before goods are cleared for home consumption is exempt.

With the above background, the applicant has put forth the following questions before the ld. AAR for its ruling:

“1. Whether the transaction of sale of goods by Tecnimont Pvt. Ltd. (TCMPL) to Indian Oil Corporation Ltd. (IOCL) on a High Seas Sale basis in terms of Contract No. 44AC9100-EPCC-1 would be covered under Entry No. 8(b) of Schedule III of the CGST Act and shall be excluded from the value of work contract service for charging GST?

2. Whether the transaction of sale of goods on a high seas sale basis by the Applicant to IOCL in terms of Contract No. 44AC9100-EPCC-1 would be treated as a works contract and whether Applicant is liable to charge GST on the goods sold on a high seas sale basis to IOCL? If yes, what will be the applicable rate of tax on such goods supplied?”

The ld. AAR went through the agreement and minutes recorded in follow-up to the award of the contract. The ld. AAR referred to various clauses in the agreement and observed about scope of important features of the contract as under:

“18. The contract in question is in respect of a turnkey EPC contract. The terms ‘Turnkey’ and ‘EPC contract’ are not defined under the CGST Act. Now, what constitutes an EPC contract? We find that an Engineering, Procurement and Construction (‘EPC’) contract is a particular form of contracting arrangement wherein the EPC contractor is made responsible for all the activities right from design, procurement, construction, commissioning, and thereafter handover of the project to the end-user or owner. Likewise, Turnkey contracts, place the responsibility for designing, engineering, procurement, and construction of the entire project on a single contractor. Such contracts further ensure that following completion, the client receives a ready-to-use facility. Further, these contracts are usually ‘fixed price’ contracts.”

The ld. AAR noted that in contrast to the above features of the contract, the applicant has submitted that there are two separate contracts within the EPC contract i.e.,

“[i] supply of imported materials for the project; and

[ii] works contract for EPC work pertaining to EPCC-1 project.”

In this respect, the ld. AAR referring to the definition of ‘works contract’ given in section 2(119) analyzed the aspects of said definition as under:

  • “works contract must be in relation to any immovable property;
  • composite supply undertaken on goods say fabrication or paint job would perse not fall within the ambit of works contract under GST; such contract would continue to remain composite supplies;
  • In terms of Schedule-II, para 6(a), works contract shall be treated as a supply of services;
  • GST aims to put at rest the controversy by defining what will constitute a works contract (applicable for immovable property only) by stating that a works contract will constitute a supply of service and specifying a uniform rate of tax applicable on the same value across India.”

The ld. AAR referred to important judgment about the implication of transactions being works contract-like, judgment in the case of Kone Kone Elevator India Private Limited [2014 (304) E.L.T. 161 (S.C.) — 2014-VIL-12-SC-CB] and other judgments.

Based on the ratio of the above judgments the ld. AAR observed that the contract dated 19th January, 2021, entered into by the applicant & IOCL, is to execute the work of “EPCC-1 Package for Acrylic Acid & Butyl Acrylate Unit of Acrylic/ Oxo-Alcohol Project” which is a lump sum turnkey EPC contract. The ld. AAR observed that to divide a turnkey EPC contract into two parts is legally not tenable. It is tenable if they have entered into two different contracts.

In respect of HSS sales of imported goods to IOCL, the ld. AAR held that the sale is covered by entry 8(b) of Schedule III and hence not liable to GST.

However, in respect of the liability of the applicant, the ld. AAR refers to provisions of section 15 of the GST Act which provides for the valuation of Taxable Supply.

The ld. AAR, amongst others, referred to section 15(2)(b) which reads as under:

“(b) any amount that the supplier is liable to pay in relation to such supply but which has been incurred by the recipient of the supply and not included in the price actually paid or payable for the goods or services or both;”

The ld. AAR observed that in terms of the contract, the applicant is liable to provide the goods [supplied on an HSS basis] and hence the submission that this value is not to be included in the transaction value in respect of the works contract service is legally not tenable. The ld. AAR observed that, in terms of section 15, the value of such imported goods would form a part of the transaction value for payment of GST in the hands of the applicant.

In this respect the ld. AAR made reference to the Judgment decided by the Hon’ble Chhattisgarh High Court in the case of M/s. Shree Jeet Transport [Writ Petition (T) No. 117/2022 decided on 17th October, 2023] – 2023-VIL-764-CHG.

In this case, the diesel supplied free by contractee to the contractor providing transport services is held liable to tax in the hands of the contractor.

Applying said principle, the ld. AAR held that the value of imported goods is to be included in taxable contract value.

Based on the above analysis the ld. AAR gave the ruling as under:

“1. The transaction of sale of goods by Tecnimont Pvt. Ltd. (TCMPL) to Indian Oil Corporation Ltd. (IOCL) on a High Seas Sale [HSS] basis in terms of Contract No.44AC9100-EPCC-1 is covered under Entry 8(b) of Schedule III of the CGST Act. However, in terms of the findings recorded supra, the value of such HSS supply would form a part of the transaction value under section 15, ibid, for computing the value of work contract service for charging GST.

2. The transaction of sale of goods on a high seas sale [HSS] basis by the applicant to IOCL in terms of Contract No. 44AC9100-EPCC-1 as has been held supra, is covered under entry 8(b) of Schedule III of the CGST Act, 2017 and is therefore the HSS supply is neither a supply of goods nor a supply of services.”

20 ITC vis-à-vis Solar Plant for Captive Consumption

Unique Welding Products P. Ltd. (AR Order No.GUJ/GAAR/R/2024/01 (in application no. Advance Ruling/SGST & CGST/2023/AR/14) dt. 5th January, 2024 (Guj)

The applicant, M/s Unique Welding Products Pvt. Ltd., is engaged in the business of manufacturing and sale of welding wires and it is registered with the GST department.

The applicant supplies its products i.e., Welding Wires etc. after discharging GST @ 18 per cent. The applicant has entered into an interconnection agreement with power distribution licensee (Madhya Gujarat Vij Company Ltd) for captive use of power generated by Roof Top Solar System and has installed a rooftop solar system with a capacity of 440 KW (AC) on the factory roof for power generation. The applicant generates power solely and captively for use in its manufacturing activity of welding wires within the same premises.

The applicant further submitted that their business of manufacturing and sale of welding wires from their manufacturing plant constitutes as ‘business’ as per section 2(17) of the CGST Act, 2017 and is eligible for ITC as per section 16(1).

In light of the above background, the applicant has sought an advance ruling on the below-mentioned questions:

“1. Whether the applicant is eligible to take ITC as ‘inputs/capital goods’ or ‘input services’ on the purchased rooftop solar system with installation & commissioning in terms of sections 16 & 17 of the CGST/GGST/IGST Act?

2. Whether the rooftop solar system with installation and commissioning constitutes plant and machinery of the applicant which are used in the business of manufacturing welding wires and hence not blocked input tax credit under section 17(5) of the CGST/GGST/ IGST Act?”

In the course of the hearing, the applicant provided a copy of the Ruling in the case of M/s. The Varachha Co.op Bank Ltd., Surat.

Copy of the Annual report of the applicant for the FY 2022–23, showing addition to Plant and machinery under fixed assets, copy of the invoice from rooftop solar plant and copy of interconnection agreement signed with MGVCL for rooftop solar plant were filed before the Ld. AAR.

The applicant further clarified that the solar rooftop plant is bolted to the factory roof by means of screws and bolts for operational efficiency and safety. Further, it was clarified that the rooftop solar plant can be dismantled and sold if required. Accordingly, it was submitted that, the rooftop solar plant is not permanently fastened to the building hence it will not be an immovable property. It was further submitted that the rooftop solar plant qualifies as a plant and machinery used for the furtherance of the business of supplying taxable goods and hence not covered under blocked credit mentioned in section 17(5)(d) of the CGST Act, 2017.

The ld. AAR referred to relevant provisions like a definition of business, the scope of ITC as per section 16 and blocked credit u/s.17(5) of the CGST Act.

The ld. AAR also referred to the later issued by Additional Chief Engineer (RA&C), Madhya Gujarat Vij Company Limited, Vadodara addressed to Superintending Engineer, Circle Office, MGVCL, granting approval to the applicant, for grid connectivity of Solar Roof Top Photo-Voltaic systems as per the provisions of the Gujarat Solar Power Policy-2021. The relevant paras are reproduced in the AR as under:

“With reference to the above subject, it is to state that application of M/s. Unique Welding Products P Ltd for the installation of a 440.00 KW(AC) Solar Roof Top Photo Voltaic System has been registered by GEDA.

Now regarding the connectivity with MGVCL network for injection of Solar Energy from 440.00 KW Solar Power Plant, consumer M/s. Unique Welding Products P Ltd hearing consumer no. 15453 has paid connectivity charges of ₹50000 and executed a connectivity agreement with MGVCL.

The connectivity has been granted for a period of 25 years. Accordingly, the connectivity agreement has been executed for 25 years and it shall be in force for the period of 25 years only.

Copy of the connectivity agreement, connectivity charge paid receipt, CEI approved single line diagram, earthing diagram, wiring diagram and installation charging approval received from CEI is attached herewith.”

Based on the above documents and legal provisions, the ld. AAR observed as under:

“17. It is therefore, clear that the roof solar plant, affixed on the roof or the building is not embedded to earth. Accordingly, it is not an immovable property but a plant and machinery, which is utilized to generate electricity which is further solely and captively used in the manufacture of welding wires. The applicant is engaged in the business of supply of welding wires on payment of GST at the applicable rates. The applicant has further stated that they have capitalized the roof solar plant in their books of accounts. The Roof Solar Plant, as is evident is not permanently fastened to the building. Thus, it qualifies as a plant and machinery and is not an immovable property, hence, it is not covered under blocked credit as mentioned in 17(5)(d) of the CGST Act, 2017. Therefore, we hold that the applicant is eligible for input tax on roof solar plant.”

With the above background the ld. AAR gave a ruling on pertinent questions as under:

“1. The applicant is eligible to avail of ITC rooftop solar system with installation & commissioning under the CGST/GGST Act.

2. The rooftop solar system with installation and commissioning constitutes as plant and machinery of the applicant and hence is not blocked ITC under section 17(5) of the CGST/GGST Act.”

21 Catering Services to Education Institution

M/s. Sri Annapurneshwari Enterprises (AR Order No.KAR ADRG 04/2023 dt. 23rd January, 2023 (Kar)

The applicant, M/s. Sri Annapumeshwari Enterprises is a Partnership firm registered under GST. The applicant is engaged in the business of hotel and catering services.

The applicant has sought an advance ruling in respect of the following question:

“i. Whether providing catering services to Educational Institutions from 1st standard to 2nd of Pre University Course (PUC) is taxable or not according to Notification No. 12/2017- Central Tax Rate –under Heading 9992.”

The applicant has stated that they are carrying on the business of the hotel and they are supplying ready-to-eat breakfast, and lunch to the KLE Independent Pre University (PU) College, Bengaluru. They are not collecting any charges from the students. They are billing to college and college is paying the amount.

In this respect the ld. AAR noted that the applicant is providing catering services to Educational Institutions from 1st Standard to 2nd PUC and referred to entry No.66 of Notification No. 12/2017-Central Tax (Rate) dated 28th June, 2017 as amended vide Notification No.02/2018-Central Tax (Rate) dated 25th January, 2018 and reproduced the same as under:

“Sl. No. Chapter, Section, Heading, Group or Service Code (Tariff) Description of Services Rate (per cent.) Condition
66 Heading 9992 Services provided –

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

Nil Nil
(aa) by an educational institution by way of conduct of entrance examination against
consideration in the form of entrance fee
(b) to an educational institution, by way of,-
(i) transportation of students, faculty and staff;
(ii) catering, including any mid-day meals scheme sponsored by the Central Government, State Government or Union territory;
(iii) security or cleaning or housekeeping services performed in such educational institution;
(iv) services relating to admission to, or conduct of examination by, such institution;
(v) supply of online educational

journals or periodicals:

Provided that nothing contained in sub-items (i), (ii) and (iii) of item

(b) shall apply to an educational institution other than an institution providing services by way of preschool education and education up to higher secondary school or equivalent.”

The ld. AAR observed that the services provided by way of catering to an educational institution, which is providing services by way of pre-school education and education up to higher secondary school are exempted from GST.

The ld. AAR also referred to the meaning of recipient of service as defined in section 2(93) and further observed that the concerned education institution is the recipient and it also fulfils the condition of being an Education Institution as defined in clause (v) of para 2 of the Notification no.12/2017-Central Tax (Rate) dated 28th June, 2017.

The ld. AAR arrived at the conclusion that since the applicant is providing ready-to-eat food by way of catering to a Pre-University College, the services provided by the applicant under question are covered under entry No.66 of Notification No. 12/2017-Central Tax (Rate) dated: 28.06.2017 as amended further and hence exempted from GST.

The ld. AAR issued a ruling accordingly.

22 Unit Run Canteen — Tax Position

M/s. Central Police Canteen (AR Order No. KAR ADRG 35/2023 dt. 16th November, 2023 (Kar)

The applicant is a subsidiary canteen of the Central Police Force Canteen System (CPFCS/CPF Canteen System), which is set up vide letter No.27011/75/2011-R&W dated 18th November, 2011, issued by the Resettlement & Welfare Department, Police Division-II, Ministry of Home Affairs, Government of India. They have claimed that they are entitled to avail of CPF Canteen facilities.

The applicant has quoted the Notification No.7/2017-Central Tax (Rate) dated 28th June, 2017, contending that their canteen is covered under “Unit Run Canteens” and thus the supply of goods by them to the authorized customers is exempted from levy of GST.

The applicant also contemplated that they are entitled to claim a refund of fifty per cent of the applicable central tax paid by it on all inward supplies, under notification no. 06 of 2017— Central Tax (R) dated 28th June, 2017

Applicant has put the following questions for the ruling of AAR.

“a. Whether the applicant being a recognized Unit Run Canteen be exempted from levying CGST on goods sold by it to authorized customers?

b. Whether similar exemption can be availed under State GST also?

c. Is the applicant eligible to claim a refund of CGST and SGST paid by it on goods purchased to date?”

The ld. AAR considered each question. In respect of the first question about exemption from the levy of CGST on goods sold by it to authorized customers, the learned AAR referred to Notification No. 07/2017-Central Tax (Rate) dated 28th June, 2017. Said Notification contemplates to grant exemption as under:

“Sl. No. Tariff item, sub-heading,

heading or Chapter

Description of Services of Goods
(1) (2) (3)
1. Any Chapter The supply of goods by the CSD to the Unit Run Canteens
2. Any Chapter The supply of goods by the CSD to the authorized customers.
3. Any Chapter The supply of goods by the Unit Run Canteens to the authorized customers.”

The heading CTH 8711 and 8713, are described as under The ld. AAR observed that CSD i.e., Canteen Stores Department, Unit Run Canteens of the CSD and the authorized customers of CSD mentioned in the above notification are under the Ministry of Defence, Government of India. Applicant is a subsidiary canteen of the Central Police Force Canteen System (CPFCS), under the Ministry of Home Affairs, Government of India, formed in terms of permission granted vide letter No. DAVII/ SC-CP/2013 dated 28th November, 2013.

Therefore, the ld. AAR held that the applicant is not covered under the Unit Run Canteen as they are a subsidiary canteen of CPF canteen under the Ministry of Home Affairs. Accordingly, the ld. AAR held that the applicant is not entitled to claim the exemption provided under Notification No.7/2017-Central Tax (Rate) dated 28th June, 2017.

In respect of the second question, exemption under SGST, the ld. AAR held that, like CGST, no exemption is eligible under SGST.

Regarding, the third question about a refund, the ld. AAR referred to Notification No. 6/2017-Central Tax (Rate) dated 28th June, 2017, which reads as under:

“In exercise of the powers conferred by section 55 of the Central Goods and Services Tax Act, 2017 (12 of 2017), the Central Government, on the recommendations of the Council, hereby specifies the Canteen Stores Department (hereinafter referred to as the CSD), under the Ministry of Defence, as a person who shall be entitled to claim a refund of fifty per cent, of the applicable central tax paid by it on all inward supplies of goods received by it for the purposes of subsequent supply of such goods to the Unit Run Canteens of the CSD or to the authorized customers of the CSD.

2. This notification shall come into force with effect from the 1st day of July, 2017.”

Since the above notification covers CSD under the Ministry of Defence, as a person who shall be entitled to claim a refund, the ld. AAR held that the applicant cannot be covered by the above notification as it is not under the Defence Ministry but under the Home Ministry.

Thus, all questions are answered in negative.

23 Scope of Article 243G and 243W vis-à-vis Exemption.

M/s. Sanjeevini Enterprises (AR Order No.KAR ADRG 03/2023 dt. 23rd January, 2023 (Kar)

The applicant has sought an advance ruling in respect of the following questions:

“i. Whether works contract service provided to Bio Centers, Department of Horticulture and Center of Excellence are exempted as per GST Exemptions?

ii. Whether other services like data entry operator and security, provided to the Horticulture Department attract GST?

iii. Whether materials like fertilizers, soil, and sand supplied for use of bio centres exempted as per GST?”

The applicant has stated that they are bidding for a tender called by the Department of Horticulture which includes the supply of manpower for Bio-Centre, Department of Horticulture, Centre of Excellence for Floriculture, Tunga Horticulture Farm, Shivamogga, which includes the following works:

1) Department of Horticulture: Handling the complete process of tissue culture production of various agriculture plants and mushroom research, growing under the guidance of the agriculture officer including cleaning and maintenance of equipment used for production under the tissue culture process.

2) Center for Excellence, Tunga Floriculture Center: Handling the complete process of research on flowers, planting and growing process and maintenance under the guidance of the agriculture officer including cleaning and maintenance of equipment used and handling of wastage.

The ld. AAR referred to entry no.3 of the Notification No.12/2017-Central Tax (Rate) dated 28th June, 2017 which reads as under:

“Pure Services (excluding works contract service or other composite supplies involving any goods) provided to the Central Government, State Government or Union territory or local authority by way of any activity in relation to any function entrusted to a Panchayat under article 243G of the Constitution or in relation to any function entrusted to a Municipality under article 243W of the Constitution.”

The ld. AAR observed that the applicant has to satisfy two conditions:

“1. Pure Services (excluding works contract service or other composite supplies involving any goods) provided to the Central Government, State Government or Union territory or local authority

2. by way of any activity in relation to any function entrusted to a Panchayat under article 243G of the Constitution or in relation to any function entrusted to a Municipality under article 243W of the Constitution.”

The ld. AAR observed that the first condition of supplying pure services to the Karnataka Government is satisfied.

The ld. AAR refers to functions listed under Articles 243G and 243W. The ld. AAR found that the activity of the applicant is not directly covered by any entry in the above articles. The ld. AAR examined whether it can fall under the entry for Agriculture.

The ld. AAR held that the issue certainly cannot amount to agriculture and there is no other direct entry to cover the above activity in Article 243G/243W.

The ld. AAR answers negative as under:

“i. Works contract service provided to Bio Centers, Department of Horticulture and Center of Excellence are not exempted from GST.

ii. Providing Manpower services like data entry operator, and security to the Horticulture Department is exigible to GST at 18 per cent (CGST @ 9 per cent and KGST @ 9 per cent).

iii. Materials like fertilizers, soil and sand supplied for use of bio centres are not exempted under GST.”

Part A | Company Law

6 In the Matter of M/s Nextgen Animation Media Limited

Registrar of Companies, Mumbai

Adjudication Order No. ROC(M)/NEXTGENMEDIALTD/ADJ-ORDER/92/101

Date of Order: 3rd June, 2024

Non-filing of Annual Return within a period of 60 days from the due date of Annual General Meeting amounts to violation of Section 92 of the Companies Act, 2013.

FACTS

The Registrar of Companies, Mumbai, Maharashtra (ROC) observed from MCA 21 database that NAML had defaulted in filing of Annual Return for the financial year ended on 31st March, 2019. Hence M/s NAML had not complied with the provisions of Section 92 of the Companies Act, 2013 by not filing Annual Return. A default period of 326 days was noticed.

Thereafter, a show-cause notice was issued to NAML and its officer in default on 21st October, 2020 under section 454 of the Companies Act, 2013, for adjudication of offence under Section 92(5) of the Companies Act, 2013.

However, no reply was received from NAML and its officers in default.

PROVISIONS

Section 92(4): Every company shall file with the Registrar a copy of the annual return, within sixty days from the date on which the annual general meeting is held or where no annual general meeting is held in any year within sixty days from the date on which the annual general meeting should have been held together with the statement specifying the reasons for not holding the annual general meeting, with such fees or additional fees as may be prescribed.

Section 92(5): If any company fails to file its annual return under sub-section (4), before the expiry of the period specified [therein], such company and its every officer who is in default shall be liable to a penalty of [ten thousand rupees] and in case of continuing failure, with further penalty of one hundred rupees for each day during which such failure continues, subject to a maximum of [two lakh rupees in case of a company and fifty thousand rupees in case of an officer who is in default].

HELD

Adjudication Officer (AO) has considered the facts and circumstances of the case that NAML and its officer in default had failed to reply or neglect or refuse to appear as required. Hence, AO imposed the penalty on NAML and its officer in default. AO imposed a penalty of ₹1,65,200 (one lakh, sixty-five thousand and two hundred only) on NAML and its officer in default (who is Mr. KKS being Managing Director of the NAML and considered as officer in default).

The AO further ordered to pay the penalty amount through MCA portal and proof of payment was asked to be produced for verification within 90 days of receipt of the order.

Burden of Proof in Case of Cheque Bouncing Cases

INTRODUCTION

Section 138 of the Negotiable Instruments Act, 1881 (“the Act”) is a very well-known provision even amongst laymen. It imposes a punishment in the form of an imprisonment in case a cheque, which has been issued, bounces. Whilst this is a very simplistic explanation of this very important provision, a very vital ingredient is what is the burden of proof in case of a cheque bouncing case and who is it on? The Supreme Court in its verdict in the case of Rajesh Jain vs. Ajay Singh, 2023 AIR(SC) 5018 has laid down clear-cut guidelines on the same. In the case on hand, the accused had borrowed funds from the complainant and was not returning the same. Finally, he issued a post-dated cheque which bounced on presentation. Accordingly, the complainant filed a case under Section 138 of the Act.

The Trial Court held that the only question which remained for determination was whether a legally valid and enforceable debt existed qua the complainant and the cheque in question was issued in discharge of the said liability / debt? The Trial Court answered the issue in the negative. It held that the complainant had failed to prove his case beyond reasonable doubt. It has been observed that the defence led by the accused has created a doubt regarding the truthfulness of the complainant’s case. Accordingly, the Trial Court dismissed the case against the accused.

The Punjab & Haryana High Court also found no merit in the appeal and upheld the order of acquittal passed by the Trial Court. The High Court reasoned that the accused had discharged his onus in rebutting the statutory presumption raised under Section 139 of the Act. The onus, then, once again had shifted to the complainant to prove that the cheque had been issued in respect of a legally enforceable debt, and the complainant had failed in discharging the onus to prove that cheque was issued in respect of a legally enforceable debt.

The matter, thus, travelled up to the Supreme Court.

The Apex Court held that the limited question to be considered was whether the accused could be said to have discharged his ‘evidential burden’, for the lower courts to have concluded that the presumption of law supplied by the Act had been rebutted?

ESSENCE OF SECTION 138

At the outset, one must understand the essence of Section 138 of the Act. In Gimpex Private Limited vs. Manoj Goel (2022) 11 SCC 705, the Supreme Court had explained the ingredients forming the basis of the offence under Section 138 of the Act as follows:

(a) The drawing of a cheque by person on an account maintained by him with the banker for the payment of any amount of money to another from that account;

(b) The cheque being drawn for the discharge in whole or in part of any debt or other liability;

(c) Presentation of the cheque to the bank arranged to be paid from that account;

(d) The return of the cheque by the drawee bank as unpaid either because the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount;

(e) A notice by the payee or the holder in due course making a demand for the payment of the amount to the drawer of the cheque within 30 days of receipt of information from the bank in regard to the return of the cheque; and

(f) The drawer of the cheque failing to make payment of the amount of money to the payee or the holder in due course within 15 days.

In K. Bhaskaran vs. Sankaran Vaidhyan Balan, (1999) 7 SCC 510 the Apex Court had summarised the constituent elements of the offence in fairly similar terms by holding:
“14. The offence Under Section 138 of the Act can be completed only with the concatenation of a number of acts. The following are the acts which are components of the said offence:

(1) drawing of the cheque,

(2) presentation of the cheque to the bank,

(3) returning the cheque unpaid by the drawee bank,

(4) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount,

(5) failure of the drawer to make payment within 15 days of the receipt of the notice.”

BURDEN OF PROOF

The Court laid down principles of burden of proof and held that there were two senses in which the phrase “burden of proof” was used in the Indian Evidence Act, 1872:

(a) One was the burden of proof arising as a matter of pleading — this was called the “legal burden” and it never shifted during a case. The legal burden was the burden of proof which remained constant throughout a trial. It was the burden of establishing the facts and contentions which supported a party’s case. If, at the conclusion of the trial, a party failed to establish these to the appropriate standards, he would lose to stand. The incidence of the burden was clear from the pleadings and usually, it was incumbent on the plaintiff or complainant to prove what he pleaded or contended.

(b) The other was the one which deals with the question as to who has first to prove a particular fact — this was called the “evidential burden” and it shifted from one side to the other, Kundanlal vs. Custodian Evacuee Property (AIR 1961 SC 1316). The evidential burden could shift from one party to another as the trial progressed according to the balance of evidence given at any particular stage; the burden rested upon the party who would fail if no evidence at all, or no further evidence, as the case may be was adduced by either side.

PRESUMPTIONS

The Court next explained the meaning of presumptions — it literally meant “taking as true without examination or proof”. Presumptions were of two kinds: presumptions of fact and of law.

Presumptions of fact were inferences logically drawn from one fact as to the existence of other facts. Presumptions of fact were rebuttable by evidence to the contrary.

Presumptions of law may be rebuttable or irrebuttable (conclusive presumptions), so that no evidence to the contrary may be given. A rebuttable presumption of law was a legal rule to be applied by the Court in the absence of conflicting evidence. Rebuttable presumptions could be further bifurcated into discretionary presumptions (“may presume”) and compulsive or compulsory presumptions (“shall presume”).

EVIDENCE UNDER SECTION 139

The Court further held that Section 139 of the Act was an example of a reverse onus clause and required the accused to prove the non-existence of the presumed fact, i.e., that cheque was not issued in discharge of a debt / liability.

It held that the Act provided for two presumptions: Section 118 and Section 139:

(a) Section 118 of the Act inter alia directed that it shall be presumed, until the contrary was proved, that every negotiable instrument was made or drawn for consideration.

(b) Section 139 of the Act stipulated that “unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for the discharge of, whole or part of any debt or liability”. The Court held that the “presumed fact” directly related to one of the crucial ingredients necessary to sustain a conviction under Section 138. As per the Court, Section 139 of the Act, which took the form of a “shall presume” clause was illustrative of a presumption of law. Because Section 139 required that the Court “shall presume” the fact stated therein, it was obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. However, this did not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary as was clear from the use of the phrase “unless the contrary is proved”.

The Court also held that it will necessarily presume that the cheque had been issued towards discharge of a legally enforceable debt / liability in two circumstances.

Firstly, when the drawer of the cheque admitted issuance / execution of the cheque and secondly, in the event where the complainant proved that cheque was issued / executed in his favour by the drawer. The circumstances set out above form the fact(s) which bring about the activation of the presumptive clause. [Bharat Barrel vs. Amin Chand] [(1999) 3 SCC 35].

In Bir Singh vs. Mukesh Kumar, (2019) 4 SCC 197, the Supreme Court held that that presumption took effect even in a situation where the accused contended that “a blank cheque leaf was voluntarily signed and handed over by him to the complainant”. Therefore, the Court concluded that mere admission of the drawer’s signature, without admitting the execution of the entire contents in the cheque, was now sufficient to trigger the presumption. It further held that as soon as the complainant discharged the burden to prove that a cheque was issued by the accused for discharge of debt, the presumptive device under Section 139 of the Act helped shift the burden on the accused. The effect of the presumption, in that sense, was to transfer the evidential burden on the accused of proving that the cheque was not received by the bank towards the discharge of any liability. Until this evidential burden was discharged by the accused, the presumed fact will have to be taken to be true, without expecting the complainant to do anything further.

REBUTTAL

The Apex Court held that in order to rebut the presumption and prove to the contrary, it was open to the accused to raise a probable defence wherein the existence of a legally enforceable debt or liability could be contested. The words “until the contrary is proved” occurring in Section 139 did not mean that accused must necessarily prove the negative that the instrument was not issued in discharge of any debt / liability, but the accused had the option to ask the Court to consider the non-existence of debt / liability so probable that a prudent man ought, under the circumstances of the case, to act upon the supposition that debt / liability did not exist, Basalingappa vs. Mudibasappa (AIR 2019 SC 1983).

Thus, as per the Court, the accused had two options:

(a) Proving that the debt / liability did not exist. This was to lead defence evidence and conclusively establish with certainty that the cheque was not issued in discharge of a debt / liability.

(b) Prove the non-existence of debt / liability by a preponderance of probabilities by referring to the particular circumstances of the case. The preponderance of probability in favour of the accused’s case could be even 51:49 and arising out of the entire circumstances of the case, which included the complainant’s version in the original complaint, the case in the legal / demand notice, complainant’s case at the trial, as also the plea of the accused in the reply notice, his statement at the trial as to the circumstances under which the promissory note / cheque was executed. All of them could raise a preponderance of probabilities justifying a finding that there was “no debt / liability”.

It also held that the nature of evidence required to shift the evidential burden did not have to necessarily be direct evidence, i.e., oral or documentary evidence or admissions made by the opposite party; it could comprise circumstantial evidence or presumption of law or fact.

The accused may adduce direct evidence to prove that the instrument was not issued in discharge of a debt / liability and, if he did so, then the burden again shifted to the complainant. At the same time, the accused may also rely upon circumstantial evidence and, if the circumstances so relied upon were compelling enough, then the burden again shifted to the complainant. It was open for him to also rely upon presumptions of fact. The burden of proof may shift by presumptions of law or fact.

It further alluded that once the accused gave evidence to the satisfaction of the Court that on a preponderance of probabilities there existed no debt / liability in the manner pleaded in the complaint, the burden shifted back to the complainant and the presumption “disappeared” and does not haunt the accused any longer. The onus having now shifted to the complainant, he was now obliged to prove the existence of a debt / liability as a matter of fact and his failure to prove would result in dismissal of his complaint case. Thereafter, the presumption under Section 139 did not again come to the complainant’s rescue. Once both parties have adduced evidence, the Court had to consider the same and the burden of proof lost all its importance, Basalingappa vs. Mudibasappa, AIR 2019 SC 1983; Rangappa vs. Sri Mohan (2010) 11 SCC 441.

FINDINGS OF THE COURT

In the backdrop of the above legal analysis, the Supreme Court examined the conduct of the accused to ascertain whether there was evidence against him or had he rebutted it?

It noted the following fallacies and inconsistencies in the conduct of the accused:

(a) He neither replied to the demand notice nor has led any rebuttal evidence in support of his case.

(b) He had suggested that an employee of his had colluded with the complainant and falsely given a blank cheque containing his signature to the complainant. This was denied by the employee and the evidence was not sustained in cross-examination. Further, the Court noted that no action had been taken by way of registering a police complaint in order to prosecute the alleged illegal conduct of his blank cheque having been misused.

(c) The Court noted that on an overall consideration of the record, it found that the case set up by the accused was thoroughly riddled with contradictions. It was apparent on the face of the record that there was not the slightest of credibility perceivable in the defence set up by the accused.

(d) It also noted that the accused in some of his statements agreed that he had taken a loan from the complainant, but later on he stated that he had no financial dealings with the complainant.

(e) The Court observed that the signature on the cheque having not been disputed, and the presumption under Sections 118 and 139 having taken effect, the complainant’s case satisfied every ingredient necessary for sustaining a conviction under Section 138.

The case of the defence was limited only to the issue as to whether the cheque had been issued in discharge of a debt / liability. The Court concluded that the accused having miserably failed to discharge his evidential burden, that fact will have to be taken to be proved by force of the presumption, without requiring anything more from the complainant.

The Supreme Court also held that there was a fundamental flaw in the way both the lower Courts proceeded to appreciate the evidence on record. Once the presumption under Section 139 was given effect to, the Courts ought to have proceeded on the premise that the cheque was, indeed, issued in discharge of a debt / liability. The entire focus would then necessarily have to shift on the case set up by the accused, since the activation of the presumption had the effect of shifting the evidential burden on the accused.

The nature of inquiry would then be to see whether the accused has discharged his onus of rebutting the presumption. If he failed to do so, the Court can straightaway proceed to convict him, subject to satisfaction of the other ingredients of Section 138. If the Court found that the evidential burden placed on the accused has been discharged, the complainant would be expected to prove the said fact independently, without taking aid of the presumption. The Court would then take an overall view based on the evidence on record and decide accordingly.The course of action when the courts concluded that the signature had been admitted should have been to inquire into either of the two questions (depending on the method in which accused has chosen to rebut the presumption):

(a) Had the accused led any defence evidence to prove and conclusively establish that there existed no debt / liability at the time of issuance of cheque?

(b) In the absence of rebuttal evidence being led the inquiry would entail: Had the accused proved the nonexistence of debt / liability by a preponderance of probabilities by referring to the “particular circumstances of the case”?

The Supreme Court came down heavily on the Trial Court’s perverse approach. According to the Trial Court, the question to be decided was “whether a legally valid and enforceable debt existed qua the complainant and the cheque in question was issued in discharge of said liability / debt”. The Supreme Court observed:

“When the initial framing of the question itself being erroneous, one cannot expect the outcome to be right.”

The onus instead of being fixed on the accused had been fixed on the complainant. Lack of proper understanding of the nature of the presumption in Section 139 and its effect resulted in an erroneous Order being passed by the Trial Court.

It next took up the erroneous approach by the High Court. The High Court had found that the complainant has proved the issuance of cheque, which (as per the Apex Court) meant that the presumption would come into immediate effect. Further, the High Court rightly observed that the burden was on the accused to rebut such presumption.

However, as per the Supreme Court, in the very next paragraph, the High Court found that the accused had rebutted the presumption by putting questions to the complainant. There was no elucidation of material circumstances / basis on which the High Court could have reached such a conclusion. The Supreme Court held that the High Court rather shockingly concluded that:

“If the complainant had given loans on various dates, he must have maintained some document qua that, because it was not a one-time, loan but loan along with interest accrued on the principal, ….”

Therefore, according to the High Court, “the burden was primarily on the complainant to prove the debt amount”. This as per the Apex Court was a fundamental error. The High Court had questioned the want of evidence on part of the complainant in order to support his allegation of having extended loan to the accused, when it ought to have instead concerned itself with the case set up by the accused and whether he had discharged his evidential burden by proving that there existed no debt / liability at the time of issuance of cheque.

Finally, the Supreme Court set aside the acquittal verdict given by the High Court and allowed the complaint filed under Section 138 of the Act and convicted the accused.

CONCLUSION

This decision has explained very clearly the process of alluding evidence in cases of cheque bouncing and when and how the onus shifts from one party to another.