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Tax Treaties — Revision can’t ensure slush funds’ return

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India’s feat in revising tax treaties with 81 countries, including Switzerland, may not significantly help the government in bringing back the money stashed abroad. It may, though, prove a little helpful in nailing tax evaders who have already shifted their bank accounts from tax havens. Experts agree that the much-hyped treaty with Switzerland, which came into effect recently, could allow for better sharing of information for tax collection purposes. But the larger issue of unearthing black money and checking corruption and money laundering may remain unaddressed for multiple reasons, they add.

Firstly, the provisions of the treaty do not include past banking details — only information after January 2011 will be provided. Secondly, India will have to give specific details of tax evaders to get information about their secret accounts in Switzerland. Seeking information under the treaty would hugely depend upon strengthening revenue intelligence in India where tax evaders have made money. In a treaty, you can’t ask for fishing and roving enquiries. You have to specifically give the details of people about whom information is needed. The Indian government can ask Swiss authorities to collect taxes on its behalf in cases of tax evasion, but can’t insist on repatriation of the money. That has to be done at a diplomatic level. India will have to use its revenue intelligence and tell tax havens about the amount which is due and required to be remitted.

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BMC to make digital records of properties

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To help it calculate property tax better, the civic body is planning to create geolocation-mapped digital records of constructions in the city. The project envisages using high-speed digital single-lens reflex (DSLR) cameras to develop a 360-degree map, which can also be used to detect illegal constructions.

The Brihanmumbai Municipal Corporation (BMC) has chosen N ward, comprising Ghatkopar and parts of Vikhroli, for the pilot project. It will be implemented by a private agency. (Source : Hindustan Times, dated 3-11-2011)

(Comment: One has to wait and watch the progress of the Project as BMC is deeply mired in corruption at all levels. The vested interests shall attempt to scuttle, delay and sabotage the Project.)

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Increase cost on frivolous litigation 3,000% to 1 lakh : SC

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The Supreme Court has suggested a 3,000% hike in the cost imposed on a person indulging in frivolous and vexatious litigation, saying unless it is raised from the current Rs.3,000 to Rs.1 lakh, the system will fail to control false cases being foisted to victimise innocent citizens. A Bench of Justices R. V. Raveendran and A. K. Patnaik, said, “At present, Courts have virtually given up awarding any compensatory costs as such a small sum of Rs.3,000 will not make much difference. We are of the view that the ceiling in regard to compensatory costs should be at least Rs.1 lakh.”

It referred to section 35A of the Civil Procedure Code, which provides for compensatory cost in respect of false or vexatious claims or defence. The maximum amount to be levied on a person indulging in false litigation was amended in 1977 from Rs.1,000 to Rs.3,000.

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Ram Charan seeks greater Chindia role on world stage

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He is often referred to as the CEO coach and has been a strategy consultant to top corporate honchos across the world. He feels that India and Indians are poised to play a big role in the global economic order in the 21st century. After noticing Indian companies getting more aggressive in globalising operations, Charan advocated a more aggressive role by governments of India and China. Charan says the leadership at Indian business houses, and the global exposure of the top Indian management, is the strength behind the country’s rising status in the world. He said it is the right time for Indian businesses to go global and cited acquisitions like Jaguar and Land Rover (by Tata group), Novelis (by Aditya Birla group) and Zain by Bharti Airtel. However, he cautioned that the cross-border push should be accompanied only when there are adequate strategic synergies and “not simply for the sake of going global”. “Before expanding overseas, Indian companies should ask these questions as to why are they going there. Is it to get access to the market, or to gain in distribution, or to get know-how or simply to change the game?”

Charan said it was the global exposure of the top Indian management that was proving to be the country’s strength. On the global financial front, he said the governments of India and China should now prepare themselves to play a more active role as the IMF and the World Bank had not been very effective in tackling economic crisis. “We put in a lot of hard work in creating brands and new products, but when the global financial system goes out of control, it hurts us all.” Charan broadly divides the globe into two distinct zones — north and south. The northern part comprises US and Canada and Europe (on the West) and Russia, Korea and Japan (on the East). Countries like India, China, Turkey and the West Asian comprised the southern part. “The markets of the future are all in the sourthern part,” Charan said. He also spoke extensively on digitisation that he said was leading to faster commoditisation. “Digitisation is shortening the shelf life of companies, it shortens the lifecycle of a business model.”

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Dinosaur Laws — Laws must evolve with the times if societies are to progress

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It is hard to think of a more damaging commentary on our legal system. The Supreme Court has described our laws on land as ‘a testament to the absurdity of law and a black mark upon the legitimacy of the justice system’. The Court was rebuking a government department that had first trespassed on a piece of land and then sought to justify its claim on the grounds of ‘adverse possession’, a form of theft sanctified by archaic colonial laws. Unfortunately, the Apex Court’s observation attracted little attention. Anachronistic laws are all too common. The Land Acquisition Act, that has repeatedly been at the centre of controversy over acquisition of land for large projects, dates back to 1894. Our Civil Procedure Code goes back to 1908, our Evidence Act to 1872 and our Telegraph Act to 1885. There are many more such. Yet, it is a no-brainer that laws must evolve in tandem with society if they are not to become an obstacle in society’s progress.

Unfortunately, this seemingly obvious statement has failed to goad successive governments into action. The net result is we have a host of antiquated laws on our statute books that have no business to be there. They should have been repealed long ago but for government tardiness. What is far more dangerous is that there is always the possibility of some elements using outdated rules for harassment, bribery and rentseeking; and courts often have no option but to hand out rulings based on these laws. The Indian Telegraph Act of 1885, for instance, has been invoked many times by the state-owned Doordarshan to claim telecast rights for cricket matches. Many laws that belonged to the British era have clearly become redundant. But there are others, like the Industrial Disputes Act and the Industrial Development and Regulation Act, that are no less relics of the past. If the recent labour trouble in the Maruti Suzuki factory in Gurgaon was a pointer to the need to rewrite our labour laws and the troubles in Singur to revamp our land acquisition laws, the Supreme Court’s reprimand is a call to recast our laws on an ongoing basis. A vibrant society must have vibrant laws.

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DIPP amends Foreign Investment Policy to allow smooth PE exits

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Bringing relief to the country’s private equity investors, the government has amended the foreign direct investment policy by removing a new clause that did not consider any investment with in-built options such as put options or call options as FDI transaction. Put and call options are the most common route for any PE investor to exit from his portfolio companies. According to the new paragraph (no. 3.3.2.1) that the Department of Industrial Policy and Promotion (DIPP) added in the FDI policy and released on September 30, only equity shares, fully, compulsorily and mandatorily convertible debentures and preference shares, with no in-built options of any type, would qualify as eligible instruments for FDI.

According to PE investors, the new clause was detrimental to the future PE investments in India. The PE investors had met officials of DIPP last week and received a positive nod regarding the removal of the clause. Indian Private Equity & Venture Capital Association (IVCA) said it would continue to follow up the matter with the Department of Economic Affairs (DEA), Finance Ministry and the RBI. “After all, the insertion has been made primarily at the behest of the RBI,” said IVCA president Mahendra Swarup. Following IVCA’s meeting, officials of DEA also agreed that while a decision on this matter was under consideration, any insertion in the policy must only be prospective and not made in retrospective effect applicable to already valid transactions, according to PE investors who are involved in the discussion. (Source : Business Standard, dated 1-11-2011)

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EuroZone debt crisis and impact on India

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What can Europe do to win global confidence in its ability to turn itself around? First, it must accept that its policies of subsidising a high-cost economy must end. For far too long have European governments used public money to benefit private constituencies, ranging from business to farmers to organised labour, and thrusting all manner of non-tariff barriers on the more competitive Asian economies. Second, Europe must either move closer to a political and fiscal union, to enable intra-European transfer of funds, or give up the illusion of a Union and let the nations seek their individual destinies. Both options come with a political price that Europeans must be willing to pay and be seen to be doing so, for the G20 to step in and help. Europeans who seek help from emerging markets do not see the irony: nations with per capita income of less than INR308,784 bailing out economies with per capita income of close to INR1,852,706.
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Team Anna — Even flawed crusaders can win

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The image of Team Anna has taken a beating. Some very un-Gandhian behaviour has been unmasked on the part of Kiran Bedi, Arvind Kejriwal and the Bhushans. But while politicians in the Congress and other parties may laugh their heads off, they must not imagine for a minute that public anger over corruption has diminished one whit. This anger was catalysed and channelled brilliantly by Anna Hazare, but has a force that greatly transcends his Jan Lokpal demand. It will not end with allegations of sleaze. Whether or not Team Hazare makes amends to the public remains to be seen. They will be subject to jeers and sniggers for a long time. Yet, this should not be mistaken for a scam that will end their anti-corruption campaign. Whatever they have done pales into insignificance compared with the thousands of crores being made by politicians.

 It would be nice to have squeaky-clean crusaders. But even flawed ones will do. If Jayalalithaa, with her dreadful record, can be viewed by voters as a means to oust the corrupt DMK, then clearly, India is fertile territory even for flawed crusaders. The key issue is not the purity of Team Hazare, but the impurity of politicians. We need institutional change to penalise law-breakers. The Lokpal Bill is no more than a start. We must overhaul the whole police-judicial system to make India a land with justice.

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India’s economic growth — llusion & disillusion

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Minister of Information and Broadcasting Ambika Soni may vehemently disagree with Azim Premji’s statement that the current government is guilty of a ‘complete absence of decision-making’. But she will be hard put to find any takers for her view that Mr. Premji’s forthright criticism was a matter of ‘perception’ that needed to be ‘rectified’. Certainly her boss Prime Minister Manmohan Singh does not appear to think like her; he has taken on board a letter, sent to him by 14 industrialists on October 10, that broadly echoes his own recent statement that economic progress should not be hijacked by internal dissension.

Mr. Premji’s comment at Wipro’s results press conference on October 31 was essentially a précis of the October 10 letter, to which he was a signatory. Nothing in his comments or the letter — the second in ten months — can be considered ‘perception’, especially when it comes to the second stint of the United Progressive Alliance (UPA). It is a fact, not perception, that no major project has got off the ground in this UPA term, on either environmental grounds or opposition to land acquisition. The infamous ‘no-go’ diktat on coal mining put on hold investments in critical infrastructure investment projects worth Rs.40,000 crore, and a recent decision for caseby- case relaxation can hardly be called policy. True, neither issue should be wished away, but as the letter astutely points out, there is a need to distinguish between ‘dissent’ and ‘disruption’. As for land acquisition and rehabilitation, the issues have become so contentious that no industrialist worth his profits wants to venture into new projects for fear of encountering frenzied farmer agitations. Yet, the government has done little to produce workable solutions, with the long-awaited draft land acquisition and rehabilitation legislation suffering a surfeit of socialism that is unlikely to enthuse industrialists or the land-loser. The industrialists’ letter has expended several paragraphs on corruption, the issue that has exercised middle-class civil society. But unlike the many activists, the letter highlights the burdens corruption imposes on the poor and addresses the issue realistically. Pointing to the need for a well-crafted Lok Pal Bill, it suggests such a law will only address episodic rather than systemic corruption. For that, the letter points out, judicial, land, electoral and police reforms are needed. No one can accuse Mr. Premji and his peers of suffering from perception problems on these issues either. There is a backlog of 31 million cases in the courts, a quarter of the members of Parliament have criminal charges pending against them and the police force is scarcely a model of civic uprightness. These are facts. (Source : Business Standard, dated 3-11-2011)

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Disciplinary proceedings

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In the case of Naresh Chandra Agarwal v. ICAI, the practitioner CA had challenged the validity of Rule 9(3)(b) of the Chartered Accountants (Procedure of Investigation of Professional and other Misconduct and Conduct of Cases) Rules, 2007, on the ground that this Rule is ultra vires the provisions of section 21A(4) of the C.A. Act. It was submitted by the practitioner that u/s.21A(4), if the Director (Discipline), (Director) is of the opinion that there is no prima facie case against the member, and if the Board of Discipline (Board) does not agree with his view, it can only direct the Director to further investigate the matter. However, under Rule 9(3)(b) the Board has been authorised to proceed under Chapter IV of these Rules if the matter pertains to the First Schedule of the C.A. Act or refer the matter to the Disciplinary Committee to proceed further under Chapter V of the Rules if the matter pertains to Second Schedule or both the Schedules of the C.A. Act.

The Delhi High Court has, by its order dated 5-9-2011, after considering the relevant provisions of the C.A. Act and Rules and after considering the legislative intent, dismissed the petition. The High Court has held that Rule 9(3)(b) is not ultra vires the provisions of section 21A(4) of the C.A. Act (C.A. Journal for November, 2011 P. 692-694).

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US Foreign Corrupt Practices Act — A Curtain Raiser

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Introduction

There is a famous quote that “Corruption is the most infallible symptom of constitutional liberty”. In the recent past, there has been quite a lot of awareness and activism about corruption and its prevention worldwide and specifically in India. The U.S. Foreign Corrupt Practices Act, 1977 (FCPA) is the single largest, widely recognised piece of legislation in the world which deals with the issue of various corrupt practices and contains the legislative provisions specifically to prevent such practices. Recently, the UK Bribery Act, 2010 was passed on the similar lines of FCPA.

This article deals with the salient features of the FCPA, FCPA settlements, the global legislative framework relating to prevention of corrupt practices, the Indian scenario and the key considerations for ensuring FCPA compliances.

For Accounting Professionals, an awareness of this important piece of legislation is the need of the hour especially when global companies are setting up shops in India and also Indian companies are expanding their wings globally necessitating the compelling need for a high level of awareness of the FCPA and other corruption prevention legislations.

Essence of FCPA

FCPA generally prohibits U.S. companies and citizens, foreign companies listed on a U.S. stock exchange, or any person acting while in the U.S., from corruptly paying or offering to pay, directly or indirectly, money or anything of value to a foreign official to obtain or retain business. Prohibition under FCPA also extends to making and offering to make payments to foreign public officials, including members of political parties, to further business interests. The FCPA also requires ‘issuers’, including foreign companies, with securities traded on a U.S. exchange or otherwise required to file periodic CANCEROUS CORRUPTION reports with the Securities and Exchange Commission (SEC), to keep books and records that accurately reflect business transactions and to maintain effective internal controls.

The above provisions can be analysed under two broad categories, namely,

  •  Anti-bribery provisions and
  •  Provisions relating to maintenance of books of account.

 The first part is generally enforced by the Department of Justice (DOJ) and it prohibits U.S. persons and U.S. firms, or those listed on a U.S. stock exchange, from making and offering to make payments to foreign government officials to obtain, or retain, business or a business advantage. The antibribery provisions make it illegal to directly or indirectly make payments of money or give anything of value to any foreign government official to influence a decision that will result in obtaining or retaining business or secure an improper business advantage. The anti-bribery provisions apply to domestic concerns, issuers (listed entities in the U.S.) and any person while in the territory of the U.S.

The second part relating to books of account is enforced by the SEC. The FCPA’s Books and Records and Internal Control provisions (which apply only to issuers) require:

 (i) that books, records and accounts are kept in reasonable detail to accurately and fairly reflect transactions and dispositions of assets, and

(ii) that a system of internal accounting controls is devised

(a) to provide reasonable assurances that transactions are executed in accordance with the authorisation of the management;

(b) to ensure that assets are recorded as necessary to permit preparation of financial statements and to maintain accountability for assets;

(c) to limit access to assets to management’s authorisation; and

(d) to make certain that recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. In many instances, improper payments to a foreign official to obtain or retain business result not only in anti-bribery charges, but also books and records and internal control charges, given that improper payments are often falsely characterised by giving a different colour in the company’s books and records such as payments towards liaisoning services, commissions, miscellaneous expenses, etc. and given the enforcement agencies’ view that the improper payments would not have been made if the company had effective internal controls.

Under FCPA, the organisation can be held responsible for any improper payments made by their subsidiaries, associates, joint-venture partners, directors, agents, employees, associates or third-party intermediaries and representatives as well. FCPA settlements The past few years have seen a tremendous increase in the settlement of FCPA charges by both corporations and individuals. Violations of the FCPA can result in criminal and/or civil liability for companies, and for their individual officers, directors, employees, and agents. The significant point to be noted in ensuring FCPA compliance is that there is no minimum threshold for the dollar amount of infractions, and even what might be considered as a small bribe can result in big penalties, especially if FCPA problems are systemic. Details of the top 10 FCPA settlements in the recent past are given in the table below; The magnitude of the above settlement amounts indicate the gravity of the problem and the need for enhanced monitoring in ensuring strict compliance with the FCPA provisions. Global legislative framework for prevention of corrupt practices Corruption is like a ball of snow, once it’s set rolling, it must increase !

The magnitude of corruption issue has increased manifold in the recent past and has posed serious challenges in establishing and ensuring a good governance framework globally. Hence, the regulators world-wide have taken up various initiatives to prevent the corrupt practices. Under the OECD Convention, government officials are considered to be a particular risk with regards to corruption, because they have the ability to award valuable contracts, or grant favours, and yet are often paid relatively little. The definition of government officials is also broader and it covers ministers and civil servants, government employees including doctors, law enforcement and military, employees of any enterprise majority-owned or controlled by the state and also the tax authorities and local government officials. As a written international agreement, the OECD Convention specifically sets forth the basic, model elements of a foreign corrupt practices statute that each signatory country has agreed to enact into law soon after each country’s ratification of the Convention. Thus, the Convention has particular significance for all U.S. businesses that operate internationally in the signatory countries.

Due to ever-increasing corruption risks, one of the most important trends in FCPA enforcement is the increased aggressiveness of government. The law enforcement authorities are increasingly focussing on global companies. The US regulators are probably very active in this area, but those in other countries are also catching up fast. Regulators around the world are cooperating with each other, sharing information and levying increasingly punitive fines. The other interesting feature in monitoring corrupt practices is the increased attention of the regulators towards individuals responsible, rather than just the companies. They also focus on the extent of companies’ anti-corruption measures when considering fines.

Other than the FCPA of the United States, very recently, the British Parliament has passed the UK Bribery Act, 2010, which is perceived to be more stringent than the FCPA. Under the UK Bribery Act, companies doing any form of business in the UK are covered by these provisions. Thus, any foreign company with operations in the UK that might have engaged in commercial or government-related corrupt activities anywhere in the world could be prosecuted in the UK. In this regard, it may be noted that FCPA covers only bribing foreign government officials, whereas the UK Bribery Act is very exhaustive in nature and has got extended scope and it does not allow any carve-out for facilitation payments or sponsored delegation visits by government officials.

The need for fighting corruption has forced several countries to come up with a separate piece of legislation to fight this evil and also to continuously fine-tune and improve the existing legislations to put in more and more detective and preventive mechanisms in view of the ingenuity with which the corrupt practices are resorted to.

Indian scenario

Implementation of the FCPA in India poses serious challenges for corporates. Though India has anti-corruption and anti-fraud laws, such as the Prevention of Corruption Act, the Prevention of Money Laundering Act and Rules thereunder, as well as various checks under the SEBI Prohibition of Fraudulent and Unfair Practices Regulations, addressing the risk of corruption has become one of the serious challenges for corporations. The recent episode of corruptions and scandals in India has raised concerns in the country and around the globe.

One of the other major challenge in India is providing gifts, hospitality, entertainment, etc. that step over the dividing line from relationship building and good manners, into attempts to influence key decision-makers. This has been the main focus of anti-bribery legislations. The key point to be noted here is what may be regarded by the industry as normal business development practice could well be seen by a regulator as a bribe!

Transparency International — a reputed NGO and the global anti-corruption organisation — publishes a ‘Bribe Payers Index’, which identifies industry sectors which are most likely to have the practice of bribing the public official. In its report on Corruption Perception Index (CPI) 2010, it has placed India at 87th in the list of corrupt nations with a score of 3.3 on a scale of 10 (very clean) to 0 (highly corrupt). Considering this low score, doing business in India is perceived to have high risk from the perspective of corruption risk.

Similarly, according to TI’s Global Corruption Barometer 2007, which details how individuals rate their country’s corruption levels, 25% of respondents in India said they had paid bribes and 90% expect corruption in India to get worse over the next three years. This assessment carried out in FY 2007 is proving to be true in the light of the recent corruption scandals.

In view of the prevailing challenging environment in India, there is an urgent need for creating greater awareness amongst the public at large in India regarding various corrupt practices, strengthening the existing regulatory framework dealing with such corruptive practices, and vigorous implementation of statutory requirements relating to prevention of corrupt practices, etc.

Key considerations for ensuring FCPA compliances

The FCPA has a far-reaching effect and it does not stop only with the entity under consideration. Parent entities can be held responsible for the actions of their subsidiaries also even when the subsidiary has gone to great lengths to conceal the illegal activity and the parent company is unaware of the activity. Further, parent entities can be held responsible for behaviour prior to an acquisition, joint-venture, or merger, especially if a prior payment has led to ongoing profits.

Keeping the provisions of the FCPA in mind to ensure compliance with the FCPA, the entity management could consider the following;

  Risk assessment relating to FCPA compliances

Periodic risk assessment by the entity, suo motu, as regards FCPA compliances would help in identifying the weak spots and the exposures, if any, and the corrective action to be taken. Such an exercise would help in identifying the risks which are pervasive in nature as well as specific to a particular activity or a transaction.

    Conducting periodic health checks/due diligences

A system should be put in place to assess the health of the entity from the FCPA compliance point of view. Such an exercise should ideally be carried out by an independent person/third party.

    Establishing strong internal audit functions

Having a strong and powerful internal audit system is a boon for fighting FCPA non-compliances. By way of timely identification, the internal audit can escalate the matters to those charged with governance and can also help in putting proper controls in place to prevent such non-compliances.

    Anti-corruption programmes/policies and creating awareness

The entities should design their own anti-corruption programmes, policies and procedures. Further, it should arrange for dissemination of knowledge amongst all the employees by way of training programmes and other education programmes. Such an awareness exercise will go a long way in ensuring FCPA compliances.

    Regular monitoring of intermediaries/third parties

Since the primary responsibility of ensuring compliance with the FCPA provisions vest with the entity, it should monitor intermediaries/third parties who are doing business for the entity on a continuous basis. Their activities, compliances, etc. need to be on the radar of the entity on a continuous basis. Further, it should also carry out the required background checks before appointing such intermediaries to represent the entity.

   Reasonability assessments of payments made to various intermediaries

The amounts paid to the various intermediaries and third parties for the services rendered should be reviewed from the perspective of reasonability. Large sums of money paid to intermediaries which are disproportionate to the services rendered by them to the entity could trigger concerns of FCPA non-compliances which need to be investigated in detail.

    Establishment of a system of identifying opportunities for corruption

The management should continuously work toward identifying various opportunities for corruption, so as to plug the loop holes by way of putting appropriate controls in place. Such an activity would help in identifying specific non-compliances of FCPA.

    Periodic evaluation of performance targets and its achievements

The entities should review the process of achieving performance targets by various business heads keeping in mind the corruption risks. The pressure of achieving targets could force the employees to resort to incorrect/corruptive practices which need to be monitored and timely efforts have to be taken to prevent such non-compliances.

    Self-declarations from all the employees for FCPA compliances

There should be a system of obtaining periodic self-declarations from all the employees of the company regarding FCPA compliances. This declaration should not be a form filling exercise, but should facilitate identification of FCPA non-compliances, if any, in letter and spirit.

   Dedicated anti-corruption cell

Entities could have a dedicated anti-corruption cell which focusses on identification of FCPA non-compliances. Their mandate could also include closer review of the commercial decisions keeping in mind the anti-corruption requirements, review of the decentralised business models, greater automated surveillance of e-mails, data, and transactions, evaluation of existing sanctions to prevent corruption, etc.

    Periodic interactions of the senior management with the employees

The senior management should have a streamlined process of interacting with all the levels of the employees on a periodic basis to identify any issues related to non-compliances of FCPA. Such an interaction could help the senior management in assessing the ground-level situations, obtaining first-hand information regarding FCPA compliance status.

    Ethics hotline/helpline and whistle-blower mechanism

Establishing a dedicated ethics hotline/help line and setting up a fool proof whistle-blower mechanism are the pillars for having an effective FCPA compliance framework. All the referrals made to these hotlines/forums should be carefully reviewed to identify any FCPA related non-compliances and their implications.

    Other techniques

The entities could also resort to the following other techniques for ensuring FCPA compliances.

  • Wide publicity for the action taken against corrupt practices

  • Conducting ethical compliance surveys amongst employees

  • Mandatory evaluation of employees in dealing with ethical dilemmas

  • Anti-corruption handbook

Depending on the size and the nature of the entity, one or more of the above mentioned techniques may be introduced by the entities to effectively ensure compliance with the provisions of the FCPA. Needless to add that the success of the monitoring mechanism is purely dependent on the involvement and support of the senior management.

Conclusion
When the greed of the person increases, it is bound to result in quite a lot of irregularities and related consequences and would naturally lead to various corrupt practices. Irrespective of the legislations and the regulatory actions to prevent and fight corruptive practices, the success of their implementation and their enforcement is purely dependent on the setting of the right culture and tone from the top of each and every organisation. When an organisation suspects or uncovers an FCPA violation, its response can be crucial in preventing repeat offenses. Leadership should carefully consider each situation, including asking people to leave the organisation or terminating certain relationships with vendors. When the awareness about the legislation relating to prevention of the corrupt practices increases and the compliance is monitored meticulously, the legislations, be it in the form of FCPA or the Bribery Act, will serve their real purpose. As indicated by Swami Vivekananda, “Arise ….! Awake…..! and Stop not…. till the goal is reached”. The greater level of awareness and the awakening of people about eradication of corruptive practices and fighting corruption through enhanced professional activism, would certainly help in reaching the goal of a corruption-free society.

Readers View

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Sir,

It is always a pleasure reading BCAJ which is full of new views and findings.

In the April issue I read the decision in the case of Frontier Offshore on page 35 of the Journal. The conclusion drawn is that withholding tax as per section 44BB does not lead to any violation of section 40(a)(i) of the Income-tax Act. Reading of the judgment leads to opposite view, what I feel.

It is requested to please look into it and give feedback as to the correct finding. Please take this in a positive manner with no intention to counter the view of the Journal.

— Japan Yagnik Chartered Accountant

Authors’ response
The decision of Frontier Offshore which is digested in April 2011 issue (ITA Appeal No. 200/ Mds/2009) at page 35 has concluded that provisions of section 40(a)(i) are not applicable when the payer has deducted tax at source after taking into account presumptive computation provisions of section 44BB.

It is true that at para 7, the ITAT has rejected the contention of the taxpayer that section 40(a)(i) is not applicable to the cases of short deduction and are restricted only to the cases of absolute failure. Please note that this was only the alternative argument of the taxpayer. The ITAT has accepted the primary argument of the taxpayer to the effect that section 40(a)(i) is not applicable to the cases where TDS has been deducted after taking into account presumptive tax provision.

Also, as is clarified in the gist appearing in April 2011 issue, the earlier decision of the Madras Tribunal in the case of the same taxpayer was decided against and after elaborate discussion, the ITAT has explained as to why after the SC decision in GE India’s case, the earlier decision was no longer a good law. The ITAT has gone to the extent of observing that perpetuating error is not a heroic deed, but to correct the mistake at the right opportunity is wisdom.

Trust we have been able to satisfactorily explain the concern of the reader.

— Geeta Jani, Dhishat Mehta Chartered Accountant

Sir,

Re : Income-tax Refunds — Need to revisit TDS Threshold Limits

This is with the reference to media reports to the effect that the Income-tax Department has granted tax refunds of Rs.78,000 crores to about 85 lakh assessees during the year 2010-11 and that during the first half of April, 2011, the IT Department refunded Rs.6,183 crores to 8,23,101 assessees and all the remaining refunds shall be settled during the remainder part of April, 2011. The CBDT Chairman has stated that the IT Refunds in 2010- 11 are about 70% higher than Rs.50,000 crores made in the previous year and that despite making such huge refunds, the direct tax collection will be in the range of Rs.4.5 lakh crores. The Tax Department needs to be sincerely complimented for expeditiously making such huge refunds which constitute about 20% of net collection and making life easier for the taxpayers.

To reduce such huge workload, the Tax Department needs to analyse what is causing such huge tax refunds; causing huge blockage of capital. Is it on account of excess advance tax paid or excess tax deducted at source? Or is it due to refund of tax pursuant to Appellate proceedings?

My own guess is that vast majority of such huge refunds is due to excess TDS deducted due to very low threshold limits prescribed under various TDS provisions. Now due to operation of section 206AA, most taxpayers/income-earners have obtained PAN. Therefore, there is an urgent need to revisit various TDS threshold limits and increase them substantially so that claims of refunds can go down significantly. The Department also needs to study and adopt Withholding Tax (TDS) practices followed in advanced western countries. Further, the Department need to liberalise self-declaration provisions as it is very difficult, time-consuming, inefficient and costly affair to obtain a Nil or Low TDS Certificate from the Tax Department u/s.197 of the Act.

— Tarun Singhal Chartered Accountant

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Greek dangers

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If there were to be any reason for the government to arrest the policy drift of recent months, it should be the darkening international horizon. Late last week, the International Monetary Fund warned that risks to the global economy have increased.

The possibility of Greece debt crisis morphing into something more contagious cannot be ruled out. Japan is still struggling with spending cuts after the nuclear accident there. Look anywhere — US spending, China’s housing boom going awry and elsewhere — chances are that the global economy is on the edge again.

It makes much sense to set one’s own house in order. India needs to set many things right — from fuel pricing to inflation to deficit spending. It is, of course, in no way comparable with the Greek situation. And that is not the point. The issue is to be prepared to face uncertainty in the world economy and also any unforeseen external shocks.

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Rich getting richer: 120k Indians hold a third of national income.

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Last year may have been a cruel year for much of the country with slow growth and doubledigit food inflation, but India’s high net worth individuals (HNWIs) prospered — just over 1,20,000 in number or 0.01% of the population their combined worth is close to one-third of India’s Gross National Income.

HNWIs, in this context, are defined as those having investable assets of $ 1 million or more, excluding primary residence, collectibles, consumables, and consumer durables.

According to the 2009 Asia-Pacific Wealth Report, brought out by financial services firms Capgemini and Merrill Lynch Wealth Management, at the peak of the recession in 2008, India had 84,000 HNWIs with a combined net worth of $ 310 billion. To put that figure in perspective, it was just under a third of India’s market capitalisation, that is, the total value of all companies listed on the Bombay Stock Exchange — as of end-March 2008. The average worth of each HNWI was Rs.16.6 crore.

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Double dip ahead

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The real estate market in India is heading for what looks like a double dip. After correcting somewhat from the sharp setback suffered in 2008, with some sectors managing to exceed previous peak prices in 2010, the sector entered 2011 with cautious optimism. But halfway through the year, the outlook has turned distinctly sombre. The current economic deceleration is pouring cold water on demand for office space, always driven by the overall economic climate. The retail segment has yet to absorb the excess supply that has characterised it since the last slowdown. But it is the bread and butter affordable-to-middle volume part of the residential segment that has suffered a clear setback with successive policy rate increases raising interest rates and equated monthly instalments (EMIs) and the promise of more to come. Banks, which had already turned cautious about lending to developers on receiving the signal from the banking regulator, are likely to become even more careful. Private equity, the only hope for cash-strapped developers facing sluggish demand, is unlikely to throw out a lifeline, since they do not relish being locked into a medium-term plateau if not trough.

It’s ironic that there is an astronomical unmet demand for livable urban space among all except the very rich, and it is a colossal failure of both the government and developers that an enormous business opportunity, which can make everyone better off, is not being created out of it. Despite the abolition of the Urban Land Ceiling Act in most parts of the country, there is no perceptible increase in urban land supply which can make possible large additions to affordable housing. This is because urban planning is not promoting mixed development sufficiently, nor is urban infrastructure being built keeping in mind transportation links between new residential areas and job centres. Even under these circumstances, the middle class would pay through the nose for a place to live in the hope of capital gains over time. But there are dampeners galore. Not satisfied with raising EMIs, banks are turning more cautious in the face of regulatory exhortations to be mindful of rising non-performing asset levels. Plus, there is a mountain of anecdotal evidence of how buyers are short-changed by developers.

A Bill to codify customer rights and offer recourse through the creation of a regulator has been hanging fire for a decade. Developers are opposing it tooth and nail and political leaders are in no hurry to upset them. Developers have a point when they say that the need to secure multiple sanctions delays projects and adds to costs. But the existing crop of developers has got into the business with its eyes open. It is popularly believed that they are both repositories and launderers of politicians’ black money. Thus, entrenched corruption at the grass roots (those who process the multiple sanctions required) and protection from top are blocking change and reform. With the central government appearing paralysed by fear of decisive action on such issues, it can only be hoped that some of the more confident and politically secure chief ministers will take the initiative for policy reform.

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PM-in-hiding

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Twenty years ago, Manmohan Singh was a man with a mission. After his first Budget as finance minister, he barged into a post-Budget press conference called by his officials, to personally explain what he was doing. He gave lengthy interviews; he spoke from virtually every available platform, to get across the need for change. Later, when Narasimha Rao announced a series of Independence Day handouts, Dr. Singh gave an interview to say that the country could not spend its way to prosperity (Sonia Gandhi, please note). And towards the end of the Rao government’s tenure, when the atmosphere became thick with deal-making, he spoke out courageously against crony capitalism.

The contrast with today could not be more striking, as the country seems to have a prime minister-inhiding. You see him seated at meetings, looking a trifle lost, or mouthing homilies at government functions (the MAFA syndrome — mistaking articulation for action). Other than that, he is both invisible and silent. This is no way to lead.

If his government is paralysed by inaction, and tarred comprehensively with the corruption brush, it is because Dr. Singh has not been true to his instincts, and too timid as the head of the government. Dayanidhi Maran as a stripling minister wrote to him in 2006, complaining that spectrum pricing should be left to him, not handed over to a group of ministers. Dr. Singh meekly acquiesced. Mani Shankar Aiyar wrote to him two years before the Commonwealth Games, i.e., before the bloated and wasteful spending began, to complain about Mr. Kalmadi’s budget-inflating habits. Yet Mr. Kalmadi was allowed to go his merry way till the damage was done.

When A. Raja cocked a snook at him, what was the response? Dr. Singh’s private secretary made the telltale request that the prime minister’s office be kept at arm’s length. In other words, he knew that skullduggery was going on, but wanted to turn a blind eye. On the spectrum scandal, he himself has explained that once two of his ministerial colleagues were in agreement, he did not think he could intervene! And now it transpires that a former secretary in the finance ministry (E. A. S. Sarma) wrote repeatedly to the prime minister, over two years, warning him of undue favours being done to private gas concessionaires like Reliance and Cairn, at the cost of the exchequer. He never got even a routine acknowledgement. Was Dr. Singh too scared to ask Murli Deora?

So the prime minister cannot say that he did not know. In every case, he was informed, and he chose to do nothing. This is not because he was corrupt; even his worst critics will not say that. Perhaps he felt there was no choice in a coalition other than to turn a blind eye to some goings-on (he once said something like “I am not in the business of losing my government’s majority”). But if an honest and public-spirited man allows scamsters around him to flourish, the stage comes when personal honesty is no longer a valid defence. And belated action under public and court pressure provides no absolution.

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Stop appointing retired officials as Regulators — Recommendation part of Moily’s 10-point agenda to curb corruption

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Law Minister M. Veerappa Moily wants the government to stop the practice of appointing retired bureaucrats as regulators. The proposal is part of a 10-point agenda prepared by him to improve governance and curb corruption.

The agenda has been discussed with the advisor to Prime Minister Manmohan Singh on public information, infrastructure and innovations, Sam Pitroda, and Planning Commission member Arun Maira and has been submitted to the Prime Minister.

Moily, who was also Chairman of the second Administrative Reforms Commission, has pointed out that in view of the experience of the existing statutory regulators with retired officers and judges, the job of regulators should be restricted to serving officers and judges in order to improve accountability.

He has stressed this would need to be supplemented through a carefully planned capacitybuilding exercise at periodic intervals, which will bring in domain expertise and enthusiasm in the regulatory system, which is currently lacking. Other recommendations in the 10-point agenda includes a legislation on the lines of US False Claims Act, providing for citizens and civil society groups to seek legal relief in the cases of fraudulent claims against the government.

The proposed law would allow any citizen to bring a suit against any person or agency for a false claim against the government. If the false claim is established in a court of law, the person or agency responsible will be liable for penalty equal to five times the loss sustained by the exchequer or society.

Bringing in the Right to Service, various steps for improving urban land management, measures for improving administration in areas dominated by Naxals and tribals, a performance-related tenure of the government functionaries for making them more accountable, codification of guiding principles in a Civil Service Law, suggestions on functioning of Lok Pal and Lokayukta and unity of command and enforcement and accountability are also included in the 10-point agenda.

For ensuring integrity in appointment to public offices, Moily has suggested that charge-sheeted persons should not be considered for appointment. “This principle should be made applicable for persons contesting elections, also.”

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Managing the Mudrochs — Media markets must remain competitive and open

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The latest controversy in the British media, triggered by unethical professional practices by journalists at Rupert Murdoch’s News of the World, holds important lessons for the Indian media, and not just because Mr. Murdoch has a significant presence in India and seeks more. The most important lesson is that public policy must prevent the emergence of all powerful media moguls like Mr. Murdoch. The extent of concentration in the Indian media, at both the national and regional level, has grown alarmingly. Regrettably, such growth in size and revenue has not always contributed to good journalism, as we now see in Britain, and as is obvious in India. Unlike in many other branches of business, in media there is no evidence that with size of business and operation comes either quality or reliability.

The dominance of one business group in one segment of the media is dangerous, so is the increasing control of such dominant players across different segments of the media, namely, print, television and radio. While the Government has not come forward with the promised broadcast Bill yet, the new FM radio policy has shied away from more stringent curbs on cross-media ownership. The ‘play safe’ policy of auctioning licences to the highest bidder has been preferred obviously because of the controversy surrounding telecom licences, but there is a downside to ‘transparent auctioning’ in the media business. It can privilege the powerful. Companies with deep pockets end up pocketing licences in the name of so-called transparency. A more confident government would have laid down other criteria too, including restricting cross-media ownership.

The sharp practices by Mr. Murdoch’s men and women in Britain draw attention to the hubris of a media intoxicated by power, made worse by the direct control that owners often exercise over editorial content. The consequent blurring of lines between the business bottom line and the editorial line is an assault on the idea of media as the ‘fourth estate’ in a democracy. The Indian media has its Murdochs in every language publication and news channel. While the dominance of one or two media groups in each state and language market has not come in the way of a thousand flowers blooming, it has forced a large number of smaller players to become pawns in the hands of other business persons with deep pockets.

The Niira Radia tapes controversy in India drew attention to some of the unsavoury aspects of a nexus involving professional journalists, owners, politicians and business persons. This is only the tip of the iceberg. In various Indian states, the situation is worse with many Indian language media groups. The number of powerful politicians and business persons owning and openly controlling as well as manipulating the media is on the increase. The controversy surrounding former Union Minister Dayanidhi Maran is an example of the media baron-politician-business person nexus. The Murdoch murk in Britain is a reminder of what could happen in India in the absence of regulation, rules of the game and codes of conduct aimed at preventing such unfair professional and business practices.

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Will the SIT on black money solve the problem?

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It is fundamental indeed that the Constitution empowers the Supreme Court to make orders necessary to ensure that public interest is served. The Parliament and State Legislatures are given powers to make laws and courts are constituted to enforce them. There is no possibility of a conflict of interest or of the jurisdiction of Court and Legislatures if they keep their functions strictly within the limits prescribed by the Constitution or the laws made under it.

Why, then, is there discord or murmur when courts issue orders commanding the authorities to enforce laws and in cases in which such authorities, particularly executive authorities, fail to act in national and public interest? It will not be correct to say that in making such orders Courts encroach on the jurisdiction of either the Legislature or the executive authorities who are empowered to act for enforcing such provisions.

No one can say depositing money and transactions and deposits in a foreign bank in violation of laws should be ignored and such violators allowed to go free without being punished and that it will not affect national security and public interest. Against this background, let us appreciate the value of the appointment of the Special Investigation Team (SIT) by the Supreme Court to ensure that laws are implemented and black money is brought under proper action.

The point that the appointment of an SIT is innovative is uncalled for and misconceived. The Court has appointed an SIT, for example, to investigate the Gujarat riot cases. This is the first time, however, that the Court has appointed an SIT in a case associated with finance and black money. This has been done in the interest of the State and public interest. When the authorities concerned have failed to act, setting up an SIT is a noble cause and a step that urgently needed to be taken. Arguments that there are agencies assigned for such work and the Court should have exercised discretion to direct any such authority to take steps instead of appointing an SIT are also uncalled for. The Bench of Judges that has passed this order was also conscious of this fact. The SIT is constituted by taking officers from all such relevant agencies. Since any such agencies have limited powers, one or the other agency alone may not be able to locate and find black money, fix responsibility for violations and prosecute.

No one should feel hurt if a Court asks authorities to act in the interest of the State and public interest. After all, the Court has issued such orders only when others designated to act failed to do so. Such orders are a welcome relief in the prevailing situation.

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Returns Procesed by CPC – clarifications from CPC to representation by BCAS

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Dear Members,

Considering the problems pointed out by you in relation to intimations received from the Centralised Processing Centre (CPC), Bangalore, the Taxation Committee of the Society had taken up the various issues for discussion with them, and some of the members had visited Bangalore to discuss the various issues with the CPC at their invitation. We are happy to inform you that the Commissioner of Income Tax, CPC, Bangalore not only gave a patient hearing to the representatives of the Society, but also shared various other aspects of functioning of the CPC and difficulties being faced by the CPC due to its limited mandate. Some of the points that he made would facilitate improved e filing of tax returns by members.

We enclose a copy of the representation made to CPC, their responses to the issues raised, minutes of the meeting with the CIT, CPC, and a copy of instructions given to Assessing Officers by the CPC with regard to uploading of outstanding demands.

We hope you will find these useful while e filing the returns of income, and while making online applications for rectification.

We intend to take up some of these issues further with the appropriate authorities, in view of the clarifications received.

Note : We publish herewith the responses of the CPC. The other documents are available on the web site of BCAS

Returns Procesed by CPC – clarifications from CPC to representation by BCAS Pradip Thanawala President Gautam Nayak Chairman Taxation C0mmittee

Representation of Bombay Chartered Accountants Society To CPC on problem faced by the taxpayers and responses of CPC

1. TDS and Advance tax/ Self-assessment tax credit:

Issue by Bombay Chartered Accountants (BCA)

In many cases, the assessees have been granted short/ no credit for TDS, advance Tax or/and self assessment tax as compared to what has been claimed in the Return of Income filed by them.

Response by CPC Centralised Processing Centre (CPC)

The credit for OLTAS payments are considered to extent claimed in the return and available in 26AS as on the date of processing is allowed subject the details of payments in the return being correct. We have noticed tax payment (Advance Tax, SAT) mismatch due to following mistakes:

1. Date of credit is entered in MM/DD/YYYY or YYYY/ MM/DD format where it is required in DD/MM/ YYYY format in the return.

2. The amount paid is rounded off to nearest 10, where the amount should be exact. Many people pay-7,899 to Bank and claim 7,900 or 7,890 which is not allowed. Amount should correct.

3. BSR codes are quoted incorrectly.

4. Date of deposit of cheque is mentioned while date of credit is required.

BCA: Also, in certain cases, the credit for taxes paid as per Form 26AS have also not been granted. Thus, there is no clarity amongst tax payers as to on what basis credit is granted by the CPC for tax payments

CPC: The difference when there is payments shown in 26AS but not considered in processing is mainly due to incorrect entry of points mentioned in 1(i) above. Many times it is noticed that payments claimed are made in respect of incorrect PANs, for different assessment year, for different purpose (people make payment under minor code 400 (tax on regular assessment) even before an intimation or assessment is made. Actually they are paying SAT(Minor code -300). Considering the magnitude of mismatch pertaining to Minor Code 300 and 400, changes are being made to take into consideration credits available in either minor codes. Rectifications may be filed and credit would be given to SAT wrongly paid as Regular tax (minor head 400)

BCA: Further, in certain cases, credit has been given as per Form 26AS. However, the TDS credit claimed by the assessee based on the original certificates available with him/her is greater than that seen in Form 26AS, which might be due to the errors/ non-filing of the TDS return on part of the deductor. In such cases, the only way that remains for claiming the TDS credit is to produce the original TDS certificates for the said amount to the relevant Authority. However, there is lack of clarity regarding the location (regional jurisdiction or CPC – Bangalore) where the said certificates need to be produced.

CPC:
AO can pass further rectification based on the verification of TDS certificates. CPC has processed cases only where TDS credit is covered by TDS guidelines.

BCA: There could be a difference in the year of deduction of TDS, and the year in which credit for TDS is to be granted. This could arise in the case of advances received, where TDS is deducted at the time of receipt, but credit is available in the year in which the income is offered to tax. This could also arise in a situation where the Deductor is following the mercantile system of accounting and the recipient is following the cash method of accounting, or vice versa. In such cases, the tax credit for the said period as per Form 26AS becomes irrelevant. Thus, in such a case, it becomes necessary for the department to understand the manner in which the income is offered to tax and the TDS credit to be given. However, once again, the problem persists as to where the rectification/explanation needs to be given – to the jurisdictional Assessing Officer or to the CPC.

CPC: AO can pass further rectification based on the verification of TDS certificates. CPC has processed cases only where TDS credit is covered by TDS guidelines.

BCA: Consequent to the above, there is incorrect calculation of interest u/s 234A/ 234B/ 234C/ 244A.

CPC: Consequential but once rectification is completed the computations are set right.

2. Adjustment of incorrect demands of earlier years:

In certain cases, certain erroneous demands for the previous years have been incorrectly adjusted against the refund for the year for which intimation is issued. Following are the issues relating to the same:

Arrear demand adjustment will continue to happen as per update uploaded by AO. Assessee will be able to get his refund from the AO who had uploaded the arrear. Eg. For a record of A.Y. 2009-10 where refund arose, if there is a arrear for A.Y. 2003-04, the amount of arrear has been paid by the refund of A.Y. 2009-10, so the assessee can get his refund for A.Y. 2003-04 once the demand if any is nullified by rectification which has to be done by the AO since A.Y. 2003-04 records are available with AO.

BCA: The main reason for such incorrect adjustment seems to be that the demands have been uploaded by Assessing Officers as per their records without proper verification as to the correctness of the outstanding demand. It is essential that all such demands uploaded in the system be reversed, and demands be uploaded only after verification by the Assessing Officer and certification of correctness of demand by the Additional Commissioner. In case of demands raised in the future, they should be uploaded after certification by the Commissioner that there are no pending rectification applications/appellate effects to be given in respect of such demands.

CPC: All arrear demands are adjusted based on data uploaded by respective Assessing Officers. Sufficient training has been given to them to make sure only correct data is uploaded. We are continuously training them appropriately.

BCA:
No advance intimation is given to the assessee before making the adjustment as required by section 245. Such adjustment is therefore not in accordance with law. It is therefore suggested that an e-mail be sent to the assessee before such adjustment, giving him an opportunity as required by the section. In case the assessee points out that there is a pending rectification application/appellate effect to be given with proof in support thereof or that he has not received the relevant notice of demand so far, then no adjustment should be made, and the matter should be taken up by the CPC with the concerned CIT.

CPC: The AO has been given clear instructions to completely verify and authenticate the arrear demand before upload. As a part of this process the AO is expected to contact the taxpayer and confirm the arrear position. Only subsequent to this the arrear demand is uploaded by AO to CPC. Therefore, CPC (having concurrent jurisdiction over the taxpayer along with AO) intimates the taxpayer about the arrear demand adjustment. AOs will be instructed to clarify to the taxpayer that arrear demand (communicated by AO to taxpayer shall be treated as intimation u/s. 245 and CPC (having concurrent jurisdiction) shall adjust this demand against any refund due.


BCA:
In some cases, the assessee has not received any intimation/notice of demand raising the above-mentioned demand. As a result of this, the manner in which the amount of demand is computed is not known to the assessee. Also, the assessee does not have access to the database of the income – tax showing the said demand. Thereby the assessee has to go through hardships of establishing the reasons/ records for the aforesaid erroneous demand.

CPC:
The intimation in all the cases is sent by email, in case of failure due to bouncing of email, the intimation is sent by speed post. In all cases of demand the intimation along with demand notice is sent by email and paper intimation through speed post. It is important that all assessee fill up the email correctly, so that these intimations are received.

BCA: In certain cases, intimation/order for the year in which the demand is raised has been received by the assessee. In most cases, the demands have arisen on account of non granting of credit for TDS, Advance Tax and/or Self Assessment Tax. In most cases, the assessee would have already filed a rectification application against the said incorrect demand. It appears that the various Assessing Officers have, without considering these pending rectification applications, uploaded these erroneous demands onto the Income Tax Database.

CPC: Answered as above.

BCA: In some cases, intimation for the year in which the demand is raised has been received by the assessee. Subsequent to this, the case is taken up for scrutiny and an order under section 143(3) has been passed which shows a ‘Nil’ demand. However, the department has not made the required changes in the data base and accordingly an incorrect demand appears which is wrongly adjusted.

CPC: Same as above. It is the AO’s responsibility to upload only ‘correct’ arrears. In fact AO’s have been clearly instructed not to upload any demand that is stayed or covered by instalments.

BCA: Further, the delay in attending to rectifications of up to 6 months results in incorrect demands being adjusted.

CPC: Online rectification is much faster to process than request received through mail. Rectifications are being expedited

3.    Wrong adjustments while computing income:

BCA: In cases where the assessee has business income and income from other sources, income from other sources is deducted from the Profit and Loss a/c and taken separately under the head ‘Income from Other Sources’ by the assessee. However, as per the intima-tion u/s 143(1), the said income is taxed twice as it is included in the Profit & Loss A/c as well as Income from Other Sources. Similar is the position as regards capital gains, which forms part of profits as per Profit & Loss Account, but which is treated as exempt income or is taxed under the head “Capital Gains”. Such capital gains is also taxed as profits and gains of business.

CPC: The assessee is expected to offer income from Part A P&L Profit before tax in schedule BP and in schedule BP he has to reduce the income offered for taxation under heads of income as provided Sl. 3. When this is not done, there will be taxation twice for all other heads of income which form part of Part A P&L. If depreciation schedules (DEP/DPM/ DOA) are not filled then depreciation is not allowed, depreciation claimed in P&L but not in schedule is not allowable, Depreciation claimed in P&L is supposed to be added back in Schedule BP and depreciation as per IT RULES must be taken into account. This is not done in many cases leading to addition of depreciation from P&L. In schedule BP profit before tax (PBT) should be taken but assessee took Profit after tax so income tax is added back to reach on PBT.

4    No column in ITR forms for set off of unabsorbed Depreciation of earlier years

It has been provided in schedule CFL, which is the place where Carried forward losses in the column: Unabsorbed Non Speculative are to be mentioned for adjustment in Schedule BFLA.

BCA: There is no distinction made between unabsorbed losses and unabsorbed depreciation in the CFL schedule in the ITR. Thus, the assessee faces a problem when he wants to claim only unabsorbed depreciation, which is not time bound.

CPC: Under e-filing, total of unabsorbed depreciation (beyond eight years) has been advised to be entered in the earliest year permissible in CFL schedule. This will allow system to compute adjustment correctly.

5    Wrong computation of interest u/s 234A/ 234B/ 234C/ 244A:

BCA: In some cases, there is incorrect computation of the interest u/s 234A/ 234B/ 234C/ 244A.

CPC: Needs to be looked at case by case.

6    Correspondence with the staff:

BCA: Since the CPC appears to be manned by a call centre, there is no option available to a tax payer in terms of corresponding with anyone in particular at the CPC office. The executive attending queries changes every time the assessee calls and thus a follow up for anything becomes impossible and tiresome as one has to explain the same case all over again. It is therefore suggested that a ticket number should be allotted for each complaint, and record of that complaint and follow up thereon be maintained by the call centre in its system, which will facilitate follow up by the assessee in subsequent calls.

CPC: Ticketing system is already in place and is used by the call center. A call center agent has access to data on all past interactions with the assessee.

BCA: Also, the call centre staff are not fully conversant with the intricacies of the tax returns, and therefore are able to answer only very basic queries. It is suggested that in case a taxpayer is unable to get his queries resolved by the call centre staff, he should be given the option of escalating the issue to a tax officer, who is aware of the intricacies of e-filed returns.

CPC: We have three levels of ticketing praticed by the Call Center.

  •     Level 1 – Consists of queries which are handled directly by the agents.

  •    Level 2 – Consists of queries which are handled by the respective process owners.

  •     Level 3 – Gets escalated to the income tax officer.

7    Special rates of tax:

BCA: In certain cases, where there is Long Term Capital Gain which is set-off against Long Term Capital Losses of earlier years and the Net Long Term Capital Gain becomes NIL, the software used by the CPC for processing the returns has still levied special rate tax on it, without considering the set-off.

CPC: This is due to incorrect entry of section codes in schedule SI. Use of wrong section codes is one of the main reason for income being increased.

8    Rectifications:

BCA: Online Rectifications are not carried out promptly, with time taken from three to sixmonths.

CPC: Initially there were problems in processing them quicker than three months. Now the process has stabilised and the processing is much faster. The delay is largely due to non receipt of Response sheet which has to be filed by taxpayer to complete rectification process in case of any change in bank account particulars. Many people are filing rectification in case of refund failure or due to change in bank details.

BCA: Very often, the rectified order is received without any corrections, except for additional interest being charged.

CPC: In case rectification is due to tax payments mis-match, then the taxpayer is required to file rectification after confirming the credit position and also should re verify the details provided in the return as there could be an issue with both. No additional interest is being charged.

BCA: Once a rectified intimation is received, there is no provision for further rectification of this intimation, as the system does not permit such further rectification applications. The system should be modified to permit such further rectification within the specified time limit permitted by law.

CPC: The multiple rectification facility will be available shortly.

Wrong move — The point is to go after the tax evader, not squeeze taxpayers further.

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The Finance Ministry’s move to subject high networth taxpayers (HNIs) to intense year-round scrutiny is simply absurd. It should stop harassing those who duly file their income tax returns. The Government should drop the proposal to create a dedicated cell to monitor those who report earnings over Rs.1 crore per annum, spending more than Rs.10 crore a year or having assets in excess of Rs.100 crore. Instead of squeezing more from those who already file returns and pay taxes, the Department should go after those who remain outside the tax net. This is eminently feasible with rigorous analysis of annual information returns (AIR) that identify potential taxpayers by examining expenditure patterns. Today, the Department is behind the curve in mining information gathered through the tax information network (TIN). Audit trails break-up as the permanent account number (PAN) is found missing in several large financial transactions gathered through TIN. This is untenable. Every transaction should be tagged by a PAN and the unique identifier should be made mandatory for all those who make high-value purchases. A fool-proof PAN and robust TIN, not a dedicated cell for HNIs, will enable the Department to identify tax evaders. Selective focus on HNIs is a bad idea that would only duplicate work for the Department that already has a system in place to scrutinise income tax returns, selecting cases through the computer-assisted scrutiny system (CASS) that also captures information provided by banks, credit card companies, mutual funds through the AIR. A 360-degree profile of every taxpayer can be easily created with creative and intelligent use of information technology.

Last year, around 10,600 tax-filers reported annual incomes over Rs.1 crore. The number dropped to 1,257 for those with an yearly income of over Rs.5 crore. Hardly surprising, given that less than 3% of people file tax returns in India. The base of income tax should be widened to raise the level of tax collection to GDP. The best way to do that is to expand the coverage of AIR. Also, moderate income tax rates, simple and transparent tax laws will improve compliance and stop generation of black money.

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Charitable trusts under I-T scanner

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Enhanced scrutiny, modified auditors’ report and new return form part of exercise to curb misuse of tax exemption. The Income-tax (I-T) Department has launched a comprehensive exercise for tightening the administrative mechanism for charitable institutions.

Scrutiny of cases where misuse of tax exemption has been noticed and modifications in reporting procedures to capture their activities, funding patterns and income are among measures taken for streamlining procedures. The Directorate of Exemption has already identified a substantial number of cases, which are being selected for scrutiny. These cases pertain to the new proviso added to section 2(15) of the Income-tax Act, applicable from 2009-10.

The new norm disentitles tax exemption to any trust or society, engaged in the advancement of any object of general public utility, if it collects fees or other charges for services rendered in the nature of business, commerce or trade.

The Directorate has suggested a criteria for selection of cases during the current year. It includes quantum of refund claim, quantum of investment, gross receipts and income from business and profession.

Modifications in Form No. 10-B associated with the auditors’ report for charitable institutions has also been planned to get full details of activities of these entities. The proposed modified features include disclosure of nature of charitable activities and places of primary business.

Further, complete information with regard to donation by both internal and external donors with details of Foreign Contribution Regulation Act (FCRA) approvals would also be required in this format.

Details of exemption claims made simultaneously under different provisions, yearwise break-up of accumulation and utilisation of funds, information in respect of cash transactions, Tax Deducted at Source (TDS) compliance and other business transactions would have to be furnished once the Central Board of Direct Taxes (CBDT) approves this new form.

A new income tax return form for public charitable trusts is also being prepared by the Directorate to facilitate comprehensive reporting of their income and expenditure. It would facilitate e-filing and help in selecting cases for investigation and would also provide details of foreign, anonymous and corpus donations, donation in kind and FCRA approvals.

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Choosing head of IMF: Self goal

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A lot of people talk about India rising. It is after all the second-fastest growing economy, a member of the G20, a pillar of BRICS, and a claimant to permanent membership of the Security Council. However valid the revivalist narrative might be, there has always been a vulnerable underbelly to the story of India Shining: massive poverty, and ‘under-development’ on many fronts (the largest number of poor people, the largest number of malnourished people, the largest number of illiterates, the largest number of blind people. . . .). You can sense the unstated position in many minds around the world that India is running ahead of itself, that it is confusing potential with achievement, and that its leadership role in world affairs is yet to be demonstrated. The less charitably inclined will also have been muttering ‘arriviste’.

If the country needed a wake-up call, it has got it in the run-up to choosing a new managing director of the International Monetary Fund. First, there was the small matter that its favoured candidate for the post was over-aged — a fact ignored for several days amidst expectant speculation. It now turns out that China, while seeming to go along with the BRICS position that the choice should not automatically go to a European, has done a deal while quietly offering support to the French candidate. There is a precedent worth recalling: the election of the United Nations Secretary-General. The Government backed Shashi Tharoor’s candidature when he had little hope of winning because the US preferred a candidate from another ‘risen’ country with whom it has a military alliance, South Korea. India, in comparison (and rightly so), seeks strategic autonomy in international relations.

Such tactical mistakes are not without cost. If it turns out that China has in fact done a deal, securing the No. 2 position at International Monetary Fund (IMF) for its national as quid pro quo for supporting Christine Lagarde, then India has scored an own goal. From the perspective in New Delhi, a European or American would have been preferred in that position, rather than a Chinese. Indeed, the Prime Minister is known to have argued in the past that having a European at the head of the IMF has served India well. What might happen in the IMF could be a precursor of other things to come. Pushing for re-ordering the global order, and a declining role for the West, means that the default country that gets to fill the power vacuum will be China — which after all has an economy thrice as big as India’s, a much greater role in world trade, a pivotal place in the currency market, and much else.

BRICS solidarity is also a double-edged sword. In the Doha Round of trade talks, the rich countries have been able to drive a wedge between ‘emerging markets’ like India and the more numerous poor economies, by pointing out that the two groups’ interests are not synonymous. In a recent meeting of the World Trade Organisation, some of the fiercest criticism of BRICS positions came from poor countries in Africa. In short, India should be careful about what it wishes to achieve in international affairs and how it leverages group dynamics; it might well get what it asks for — only to discover that the earlier arrangement was more to its advantage.

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The Finance Minister must focus on the fiscal challenge

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Finance Minister Pranab Mukherjee must devote his energies to improving fiscal management if his budgetary arithmetic has to be prevented from going awry. The danger signals are all up. His Ministry has now acknowledged the Reserve Bank of India’s earlier warning that economic growth in fiscal 2011-12 is likely to be lower than budgeted originally. A sharp deceleration in the denominator will mean a sharp increase in the fiscal deficit-to-gross domestic product (GDP) ratio. The timely arrival of the monsoon augurs well for the economy, which may surprise the markets and policy makers. But this cannot be taken for granted. Moreover, reports of investment deceleration suggest that some kind of a crowding-out of private investment may already be happening as a result of persistently high government borrowing. The most worrisome aspect of recent fiscal trends is the sharp increase in the Government’s subsidy bill. Total subsidies — food, fertilisers and petroleum — have been persistently high and as a percentage of GDP went up from less than 1.5% till 2007 to close to 2.5% in 2008-09 and above 2.0% in 2009-10. While Mr. Mukherjee has budgeted for a lower ratio this fiscal, there is little evidence so far that he will be able to meet his budgetary targets — not with the continued foot-dragging on petroleum and fertiliser subsidies and pressures to increase food subsidy.

The only thing that has saved the Union Government’s fiscal strategy so far, especially in the face of sluggish revenue receipts, is the less-than-budgeted defence expenditure. It was widely expected that immediately after the state Assembly elections were wrapped up the Government would attend to the extant fiscal challenge. Apart from the heroic increase in petrol prices, no other action has been taken. On the other hand, it appears that the Finance Ministry may not be able to meet the disinvestment target it had set. While no one expects last year’s bonanza to be repeated this year, even budgeted amounts may not be forthcoming if the overall approach to macroeconomic management remains lack lustre.

The delay in tax reform — with the introduction of a Goods and Services Tax still on hold and the apparent inability of major political parties to focus attention on issues pertaining to revenue mobilisation and revival of growth — is raising fresh concerns about the sustainability of even 8.0% economic growth. With the international economic environment remaining precarious and far from stable and with regional security re-emerging as a major policy concern, the gathering clouds do not bode well for growth, revenue generation and fiscal correction. It is not our intention to sound needlessly alarmist, but the time has come to ring a warning bell. India’s macroeconomic authorities must focus on fiscal stabilisation and Mr. Mukherjee has to provide the leadership as Finance Minister.

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America’s political deficit

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S&P finally wakes up to fiscal mismanagement in US Credit rating agency Standard and Poor’s (S&P’s) decision to shift the long-term credit outlook for the United States from stable to negative is yet another reminder that the aftershocks of the global financial crisis of 2008 are yet to dissipate. This should serve as a warning that unless the US administration and Congress can handle the fiscal consequences of the myriad stimulus measures put in place to fight the global recession, another financial crisis could be in the making. S&P’s specific concern is that “US policy-makers might not reach an agreement on how to address medium- and long-term fiscal challenges.” The challenge in this case is to reduce the US debt burden from close to 100 per cent of GDP, which is likely in 2011, to more manageable levels in the medium term. S&P’s scepticism appears to stem more from its assessment of the US’ current political situation in which partisan point-scoring seems to stand in the way of sensible policy making. In short, the rift between the Republican-dominated House of Representatives, which wants to put the burden of consolidation on spending cuts alone (particularly state-funded medical insurance, Medicare), and the Democrat-controlled Senate, which wants to use a mix of higher taxes and spending reduction, could compromise any workable plan of fiscal consolidation.

This, however, is not yet an outright downgrade of US sovereign debt and it is unlikely that the US government will default on its credit obligations in the near future. However, if concerns about fiscal health intensify (US treasury credit default swap spreads have been rising steadily), the status of US treasury bonds as the ‘default’ safe haven (and by extension the US dollar) in times of rising risk aversion will come into question. Europe’s travails rule out any European alternative. The only viable safe haven appears to be gold and German bonds, since Germany’s robust growth (and, consequently, its fiscal health) seems to be miles ahead of its moribund neighbours. One could argue that emerging markets like India and China, despite their immediate inflation problem, should get the safe haven status. Their underlying growth momentum (cyclical corrections notwithstanding) remains strong and their fiscal health, at least in comparison with the Western world, certainly looks to be in the pink. On the other hand, emerging markets could face other problems. Where US treasury yields to rise on the back of fiscal anxieties, it could turn off the spigot of cheap dollars that have been flooding these markets. Asset prices in these markets could see a sharp correction. Commodity prices that have ridden the wave of easy liquidity could also be hit. The worst-case scenario would be one in which rising interest rates and a heavy fiscal burden could drive the US economy down and that, in turn, would pull the global economy back into the throes of a recession. Though this seems a tad unlikely at this stage, one cannot simply wish the likelihood away. The world expects better leadership from US politicians, but S&P is clearly doubtful if this would be forthcoming.

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Anyone willing to bat for the poor?

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This week is a good time to discuss who deserves goodies from the government. Here are three candidates. The first is Members of Parliament (MPs), who have been given a 150% hike in their budgets under the MP local area development (MPLAD) scheme. Each MP can now spend Rs.5 crore every year, up from Rs.2 crore till now, and Rs.1 crore when MPLAD was introduced 17 years ago. Inflation neutralisation would have taken that figure to about Rs.3 crore, so the extra Rs.2 crore per MP per year (Rs.1,600 crore annually for about 800 MPs) is a bonus. If you want to know how this money is used, read the report of the Comptroller and Auditor General. Among other things, it points out that MPs can and do select those who get contracts under the scheme. Interestingly, Nitish Kumar has scrapped the Bihar variant of the scheme for Members of Legislative Assembly (MLAs); he has also announced a doubling of the pay and perquisites for MLAs. If the two announcements are connected, you can draw your own conclusions about whether kickbacks flourish in the name of local area development.

The second candidate for government largesse is the International Cricket Council (ICC), presided over by Sharad Pawar. The government has just given the ICC’s World Cup tax-free status. The reports say this means a tax saving for ICC of Rs.45 crore, though the figures of revenue (Rs.1,476 crore) and expenditure (Rs.571 crore) suggest a much larger giveaway. It is easy to see why the government has played ball; Mr. Pawar is the leader of a coalition partner, and agriculture minister. Oddly, the sports minister argued against the freebie. So did a note put up by the finance ministry, though the finance minister seems to have batted for the ICC. As happens all too often, the Prime Minister has chosen the path of least resistance.

Now the history of the ICC is that, once cricket became a big-money game some years ago, this London- based body decided that it needed tax shelters. It created a subsidiary for its business operations and housed it in Monaco. But running between London and Monaco was inconvenient, so the ICC told the British treasury that it would re-locate entirely to London if the government offered tax-free status. When the response was a polite ‘No’, the ICC moved to Dubai. Penny-pinching London could learn a thing or two from the generosity that New Delhi shows to the really deserving.

But the most deserving of all is Vijay Mallya, owner of yachts, private jets, vintage cars, a cricket team, an island in the Mediterranean, and homes on every continent, and also two-thirds owner of Kingfisher Airlines. Kingfisher has been so run that it has been losing money, and borrowing up to its gills. The lenders (13 banks led by the government-owned State Bank of India) have now agreed to convert some of the loans into equity — at a share price of Rs.64.48, when the going market rate was Rs.40. That means a loss straightaway of nearly 40% of the loan value — and there are further loans outstanding. Could the lenders have flexed their muscles, since the airline is in no shape to repay loans? Yes. Could they have threatened to buy out the promoters’ 66% shareholding at the going value of Rs.740 crore, and put in new management? Almost certainly, yes. So if Mr. Mallya still has majority control of the airline, it tells you the scale of the government banks’ largesse.

(Source: Weekend Ruminations by T. N. Ninan in Business Standard, dated 2-4-2011)

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Purge civil aviation of corruption

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The rot in the civil aviation industry runs deeper than was thought earlier. As investigations proceed into the fake pilot scam, it is fast becoming clear that the issue isn’t limited to a handful of pilots. An elaborate nexus exists between pilots, touts, flying schools and officials of the Directorate General of Civil Aviation (DGCA). The recent arrest of DGCA officer Pradeep Kumar lends credence to this nexus. Kumar was instrumental in processing the applications of pilots who had forged the result cards of their qualifying exam. It has also been discovered that flying schools themselves were on the take, fudging logbooks to escalate the number of flying hours of pilots. As the DGCA scrutinises 4,500 airline pilot licences, it is anybody’s guess how many unqualified pilots continue to fly commercial aircraft.

Opening up the aviation sector made air travel an affordable reality for the Indian middle class. However, oversight of this sector is poor. Each day the safety of thousands of passengers hangs in the balance. If sons and daughters of DGCA officials are able to obtain licences despite dubious flying records, it opens the door to large-scale fraud. Apart from an internal purge of the DGCA itself, it is imperative to undertake a thorough audit of the 40 flying schools in the country. A public DGCA database for result cards of candidates is a good idea. That corruption hasn’t even spared a sensitive industry like aviation, jeopardising the lives of thousands, is a grave concern. Now that the rot lies exposed, civil aviation minister Vayalar Ravi must undertake thorough and rapid action to cleanse the system and bring back credibility to civil aviation.

(Source: The Times of India, dated 29-3-2011)

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Tragic state of our Universities — University of Pune’s Institutes run sans approved teachers

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The University of Pune (UoP) said it will stop 48 colleges affiliated to it to conduct first-year admissions for 2011-12 after the administration came in for intense grilling from senate members over 125 affiliated colleges functioning without a single approved teacher. Worse, 24 of these colleges do not have approved principals either.

A Supreme Court order had asked colleges to have full-time approved principals and teachers in place or face punitive action like a ban on admissions to first year of courses in the 2011- 12 session. Seventy-seven of the 125 colleges have secured court relief against possible action. The university will stop admissions in the 48 other colleges.

At the meeting, senate members raised questions on how exams for students from these colleges were conducted, who assessed their papers and what action the varsity was taking to ban first-year admissions in the 48 colleges.

They also demanded a panel to probe how the local inquiry committees recommended continuation of affiliation for the 125 colleges. Director of UoP’s board of college and university development W. N. Gade and controller of exams S. M. Ahire could not placate the senate, which wanted to know if answer papers were assessed at the colleges lacking approved staff.

Ironically, the university was recently accorded the highest ‘A’ grade by the National Assessment and Accreditation Council. The university’s approval of teaching staff makes students of affiliated colleges eligible for exams. Without approved teachers/principals, a college cannot be an exam centre. Students then take their exams in the nearest college with approved staff. If the college is unable to accommodate more students, it assigns two approved teachers to the college to be ‘custodians’ of the varsity’s exam material, including answer papers.

The norms are ambiguous on who should assess answer papers of colleges lacking approved teachers.

(Source: The Times of India, dated 28-3-2011)

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Shunglu Committee Report reveals scale of waste — Don’t bury it

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Winning the bid to host a major international sporting event is a welcome occasion in most parts of the world. But if many Indian citizens receive such news with trepidation, the Shunglu committee’s investigation of the Delhi Commonwealth Games explains why. Contractors made Rs.254 crore in ‘undue gains’ and Rs.900 crore were lost through mismanagement if not outright corruption. What should have been the harbinger for urban renewal became a developmental fiasco. Ready a year before the Olympics, London’s Velodrome shows how things should’ve been done during Delhi’s Commonwealth Games, where preparations continued even as athletes arrived. Finding it difficult to dismiss the public perception that there was ‘method in the madness’, the report alleges that the tendering processes and long delays arose from a nexus between authorities and contractors. The report’s stinging critique of public bodies — such as the DDA, MCD and PWD — extends to naming individual bureaucrats and public figures including Delhi chief minister Sheila Dikshit and lieutenant-governor Tejendra Khanna.

(Source: The Times of India, dated 28-3-2011)

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Welfare law delusion — After passing legislation the Court has to prod the executive at every step for years to enforce them

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Whenever a socio-legal problem flares up, one can bet on two things to happen. Bollywood will make a film on it; and law-makers will pass legislation to solve it. Both will soon fade from public memory. There are several social welfare laws that are passed and forgotten. Two of them are meant to protect unorganised construction workers.

The construction industry is said to be the second largest one after agriculture. It is labour-intensive, employing 20 million and it is estimated that every Rs.1 crore invested on construction project generates employment of 22,000 unskilled man-days and 23,000 skilled or semi-skilled man-days. Recognising its importance, Parliament passed the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 and the Building and Other Construction Workers’ Welfare Cess Act, 1996.

The government stated in the preamble that construction works are characterised by their inherent risk to the life and limb of workers. The work is also characterised by its casual nature, temporary relationship between employer and employee, uncertain working hours, lack of basic amenities and inadequacy of welfare facilities. Although the provisions of various labour laws like the Minimum Wages Act, Contract Labour (Regulation & Abolition) Act and Inter-State Migrant Workmen (Regulation of Employment & Conditions of Services) Act are applicable to building workers, there was no comprehensive central legislation for this category of workers. The two enactments were aimed to improve matters.

After nearly 15 years, the central and state governments have done little to implement these laws. Ten years after the laws came into force, a public interest petition was moved in the Supreme Court pointing out the non-implementation of the provisions of the Acts (National Campaign for Central Legislation on Construction Labour v. Union of India). The Court passed several orders over the years asking state governments to implement the main provisions of the law. There was little response. Last week, the Court took a tough stand and summoned five top labour officers in the country to be present in the Chief Justice’s Court and explain the lapse.

The dubious honour goes to the Union Labour Secretary, the Director General of Inspection, Government of India, and Labour Secretaries of Nagaland, Meghalaya and Lakshdweep.

The Court stated that many among the 36 states and Union territories have not taken even the initial steps. They have not appointed ‘Registration Officers’ before whom the employers of workers have to register their establishments. They have also ignored their obligation to constitute state welfare boards.

(Source : Extracts from M. J. Antony’s article in Business Standard, dated 23-3-2011)

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Anna Hazare’s movement combines new and old ideals

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The Jan Lokpal movement based in Delhi’s Jantar Mantar, spreading across India through fasts, marches and vigils, reflects a serious face-off, between the middle class and India’s political class. As the tussle over the Bill’s provisions continues, the depths of the popular groundswell of disgust with corruption become evident, disaffection strong enough to bring together diverse groups.

While the movement’s leader, Anna Hazare, is a Gandhian, adopting the Mahatma’s method of fasting, many joining him are not satyagrahis shaped by austerity. Several are middle-class Indians, moulded by professionalism, progress and consumption. Many are youth in university or jobs, shaken by what they see, stirred into joining an elderly leader who refers to another leader’s practices, which for many have passed into the realm of cliche. The agitation is strong enough, however, to override these divisions. Corruption, exemplified by a terrible year of scams, is the oil fuelling such coalescing.

However, there’s more. The Indian middle class is not only demanding accountability but dignity in citizenship. This notion has been catalysed by recent cases like Rizwanur Rehman’s and Ruchika Girhotra’s, where regular middle-class lives were crushed by a brutal nexus of political and financial clout. The booing away from Jantar Mantar of Om Prakash Chautala, one of the political shields around Ruchika’s tormentor, police officer S. P. S. Rathore, reflected public anger with precisely this sort of nexus. This reflects growth in ideas about citizenship. Previously, notions of citizenship were limited to a small, well-educated elite. Today, this circle has perforce widened. Media and travel have changed the way people think. Indians are increasingly aware of countries where bribery isn’t normal, where murders get punished even when committed by the powerful. It’s become apparent that globalisation is not just about mobile phones and malls, but lawful, equal societies, an ideal many are now demanding.

The media is their ally. Starting with the Jessica Lal case in 1999, the media began acting as mirror and motor to civil society agitation, transmitting information about unpunished crimes, locations to gather at and modes of protest, like candlelight vigils, email and text campaigns. The Internet also sees massive following for Hazare’s movement. All this gives lie to the notion of middle-class Indians being ‘apathetic’ to politics. Where once frustration existed without cohesiveness, today there are effective means to channel feelings, forums to gather at, ways to debate and discuss. Several ‘ideas of India’ are emerging. Many Indians feel a deeper connection to their country. In that sense, Anna has won the war even as the battle persists.

(Source: The Times of India, dated 8-4-2011)

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Lost in Mumbai? Google Transit to the rescue

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Search giants Google have launched a nifty tool to help commuters and tourists navigate across Mumbai. The service uses Google maps to help travellers choose from public transportation options available from any location to any other place in the buslting metropolis.

Users need to visit www.google.com/transit and key in the start and endpoints of their proposed journey. Google then uses algorithms to churn out the best possible routes. The application, which is available in desktop and mobile versions, utilises a database of BEST bus routes as well as the railway routes and schedules on the Western, Central and Harbour lines.

However, this is not the first application that encourages people to use public transport. The BEST runs its own application on www.bestundertaking.com.

(Source: The Times of India, dated 8-4-2011)

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Lokpal Bill — Probity: Different yardsticks

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Lokpal Bill (Govt. version):

1. The Lokpal will have jurisdiction only over the Prime Minister, ministers and MPs

2. The Lokpal will not have suo motu power to initiate inquiry or even receive complaints of corruption directly from the public. The complaints will be forwarded to it by the presiding officer of either House of Parliament

3. It is purely an advisory body and can therefore only give recommendations of the Prime Minister on complaints against ministers and to the presiding officer of either House on complaints against the Prime Minister and MPs

4. Since it has no police powers, the Lokpal cannot register an FIR on any complaint. It can only conduct a preliminary enquiry

5. Anybody found to have lodged a false complaint will be punished summarily by the Lokpal with imprisonment ranging from one year to three years

6. The Lokpal will consist of three members, all of them will be retired judges

7. The committee to select Lokpal members will consist entirely of political dignitaries and its composition is loaded in favour of the ruling party

8. If a complaint against the Prime Minister relates to subjects like security, defence and foreign affairs, the Lokpal is barred from probing those allegations

9. Though a time limit of six months to one year has been prescribed for the Lokpal to conduct its probe, there is no limit for completion of trial, if any

10. Nothing has been provided in law to recover ill-gotten wealth. After serving his sentence, a corrupt person can come out of jail and use that money.

Jan Lokpal Bill (Civil society version):

1. The Lokpal will have jurisdiction over politicians, bureaucrats and judges. The CVC and the entire vigilance machinery of the Centre will be merged into the Lokpal

2. The Lokpal cannot only initiate action on its own, but it can also entertain complaints directly from the public. It will not need reference or permission from any authority

3. After completing its investigation against public servants, the Lokpal can initiate prosecution, order disciplinary proceedings or both

4. With the corruption branch of the CBI merged into it, the Lokpal will be able to register FIRs, conduct investigations under the Criminal Procedure Code and launch prosecution

5. The Lokayukta can only impose financial penalties for complaints found to be false

6. The Lokpal will consist of 10 members and one chairperson, out of which only four are required to have legal background without necessarily having any judicial experience

7. The selection committee will be broad-based as it includes members from judicial background, Chief Election Commissioner, Comptroller and Auditor General, retired Army Generals and outgoing members of the Lokpal

8. There is no such bar on the Lokpal’s powers

9. The Lokpal will have to complete its investigation within one year and the subsequent trail will have to over in another year

10. Loss caused to government due to corruption will be recovered from all those proved guilty. (Source: The Times of India, dated 8-4-2011)

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Sport and nation — Given the market for cricket, why tax breaks and cash awards?

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The Indian cricket team deserves all the accolades, the love and affection, the wild enthusiasm and all the money it made for winning the World Cup for the country. This was a historic and well-deserved victory for, clearly, one of the world’s best cricket teams today.

The players, their coaches and selectors have all been adequately rewarded not just in kind, but also in cash. In any case, India’s cricket players are the richest among the country’s sportspersons, given the money in the sport, the sponsorships and the advertisement budgets. The glistening diamonds worn by the wives of Indian cricketers, and their fancy cars, tell a tale of adequate recompense. So why did the taxpayer have to shell out more cash, in the form of cash awards from state governments and a tax break from the central government? There are games sportspersons play to win and there are games they play to make money. The Indian Premier League is a money-making enterprise. But a World Cup match is about winning for the country. It is the kind of achievement that finds recompense in the form of a Padma Shri or a Padma Bhushan award.

But tax breaks and cash awards from the government are an unnecessary indulgence. Gujarat’s Chief Minister Narendra Modi has resisted the cash award idea; instead, he has so far restricted himself to giving the Eklavya award. Some of India’s world-class sportspersons deserve financial support given the lack of adequate investment and the absence of a mass market in their respective sports. Cricket is certainly not one of them. The market is doing a good job, and the government, too, has done a good, indeed an excellent, job in ensuring security and safety of the players and the huge audience. Having done the job it must, and that too well, the government need not have tried to ingratiate itself with the players with more cash!

(Source: Business Standard, dated 5-4-2011)

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Seminar on Finance Act, 2012 — Direct Tax Provisions

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Seminar on Finance Act, 2012 — Direct Tax Provisions

This seminar was organised by the Taxation Committee on Saturday 9th June, 2012 at Walchand Hirachand Hall, IMC. The faculty Kishor Karia, Pradip Kapasi, and Sanjeev Pandit analysed threadbare various changes in the direct tax provisions enacted by the Finance Act, 2012. The programme received enthusiastic response from the participants who gained immensely from the wealth of knowledge and experience shared by the learned faculties.

Release of BCAS Referencer 2012-13

The most awaited Golden Jubilee Collector’s Edition of the BCAS Referencer for the year 2012-13 was released on Thursday, 14th June, 2012 at Swatantrya Veer Savarkar Rashtriya Smarak, Shivaji Park at the hands of our Past Presidents Narayan Varma, Pradyumna Shah and Arvind Dalal. The release was followed by a musical programme on the theme of ‘Kal, Aaj aur Kal’ where the artists regaled audience of over 400 with melodious and memorable songs from films of Raj Kapoor, Rishi Kapoor and Ranbir Kapoor.

 6th Residential Study Course on Service Tax & VAT

The Indirect Taxes and Allied Laws Committee organised this 6th Residential Study Course on Service Tax & VAT from 22nd June to 24th June, 2012 at Rio Resort, Goa that was attended by nearly 150 participants from various parts of India including Hyderabad, Mumbai, Ahmedabad, Secunderabad, Chennai, Jaipur and Pune. L to R: Kishor Karia (Speaker), Pradip Thanawala (President), Gautam Nayak (Speaker) and Saurabh Shah Front Row: L to R – Deepak Shah, Narayan Varma (Past President), Pradyumna Shah (Past President), Arvind Dalal (Past President), Rajesh Shah, Pradip Thanawala (President), Pranay Marfatia. Behind Row: L to R – Rajeev Shah, Naushad Panjwani, Yatin Desai, Narayan Pasari Sunil Gabhawalla, Chartered Accountant, presented paper on ‘Concept of Negative List based Taxation of Services, Important Definitions, Exclusions and Exemptions’. Adv. P. K. Sahu presented paper on ‘Sale vs. Service — Overlap of VAT and Service Tax’.

Case Studies in POT Rules, Valuation of Services and Bundled Services were presented jointly by Sunil Gabhawalla, Chartered Accountant and A. R. Krishnan, Chartered Accountant.

Adv. K. Vaitheeswaran presented a paper on ‘Indirect Tax Issues in Real Estate Industry’.

A. R. Krishnan, Chartered Accountant also presented a paper on ‘Analysis of Place of Provision of Services Rules’.

 The participants gained immensely from the wealth of knowledge and experi-ence shared by the learned faculty at this residential study course. n

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Jal Erach Dastur Students’ Annual Day:

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Jal Erach Dastur Students’ Annual Day celebration was organised on Saturday, 26th May 2012 at the Navinbhai Thakkar Auditorium of Shri Vile Parle Gujarati Mandal, Vile Parle (East), Mumbai-400057.

The event commenced with Saraswati Vandana followed by welcome address by President Pradip Thanawala. Chairman Mayur Nayak commended the efforts put in by students in organising this event. He briefed about various activities of the students undertaken by the BCAS. He welcomed the Key Note Speaker Padmashri T. N. Manoharan, past president of the ICAI. The key-note speaker made a very inspiring presentation with the help of Power point. The topic was ‘Transcending the challenges’. The talk was motivational and inspirational. He touched upon various topics such as values of life, setting goals, managing time, putting hard work, focusing on the career, sacrificing unimportant things and distractions, keeping physical, emotional and mental balance, maintaining highest standards in profession, etc. There were three competitions, namely Essay Writing, Elocution and Quiz.

1. Essay competition

46 students took part in the Essay competition; three essays were selected for printing in the BCA journal. The judges for the Essay Competition were Mihir Sheth, core group member and member of the HR Committee, Vipin Batavia, Past President of the Chamber of Tax Consultant and member of the HR Committee and Sangeeta Pandit, core group member. The winners were (1) Rohan Shah (2) Rushab Vora (3) Chhaya Joshi 2. Elocution competition The Elocution Competition was organised under the auspices of Smt. Chandanben Maganlal Bhatt Foundation. Mukesh Bhatt from the said Foundation graced the occasion and presented trophies to the winners. 31 students took part in the Elocution competition. After the elimination round, finally eight participants competed on the Annual Day for the 1st, 2nd and 3rd positions. It was a close competition as all of them did a good job. The judges for the elimination round of Elocution competition were, Ashok Solanki, Aliasgar Kherodawala and Vijay Bhatt. The judges for the final round were TV actor Sumeet Raghavan, Rajesh Muni, Past President and Stanny Pinto, an academician.
The winners of the Elocution competition were:

  1. First Prize – Utsav Shah – Rashmin Sanghvi & Associates
  2. Second Prize – Shweta Agarwal
  3. Third Prize -Shweta Mishra –  PHD & Associates

3. Quiz competition 45 students took part in the Quiz competition. Four teams comprising two students each were selected for the final round. The Quiz competition was hosted by the Ashish Fafadia in his inimitable style. He made even the audience to participate in the quiz.

The winners of the Quiz competition were:

  1. First – Murtaza Bootwala – B.D. Jokhakar & Co.- Prize Riken Patel C.M. Gabhawala & Co.
  2. Second – Ashish Shukla – M.B. Nayak & Co.Prize Ashwini Shah M.B. Nayak & Co.
  3. Third – Bhuma Iyer -R.R. Muni & Co. Prize Sonal Pilwankar R.R. Muni & Co.

This year more than 400 students registered and about 50 principals and parents witnessed the talent presented by students. The event was compered by Shweta Agarwal and Nishad Vora and was well supported by Khusboo Shah. The event concluded with a sumptuous and delicious dinner.

Students left for home with lots of learning, fun and rich experience.

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Indians among world’s happiest people.

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Despite economic woes, wars, conflicts and natural disasters the world is a happier place today than it was four years ago and Indonesians, Indians and Mexicans seem to be the most contented people on the planet. More than three-quarters of people around the globe who were questioned in an international poll said they were happy with their lives and nearly a quarter described themselves as very happy.

“The world is a happier place today and we can actually measure it because we have been tracking it,” said John Wright, senior vice-president of Ipsos Global, which has surveyed the happiness of more than 18,000 people in 24 countries since 2007. But he added that expectations of why people are happy should be carefully weighed. “It is not just about the economy and their well being. It is about a whole series of other factors that make them who they are today.”

Brazil and Turkey rounded out the top five happiest nations, while Hungary, South Korea, Russia, Spain and Italy had the fewest number of happy people. Perhaps proving that money can’t buy happiness, residents of some of the world biggest economic powers, including the United States, Canada and Britain, fell in the middle of the happiness scale. “Sometimes the greatest happiness is a cooked meal or a roof over your head,” he explained. “Relationships remain the No. 1 reason around the world where people say they have invested happiness and maybe in those cultures family has a much greater degree of impact.”

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White lies on black money.

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Estimates of ‘black money’ generated in the Indian economy vary: from rather minuscule amounts of a couple of billion dollars to more unbelievable numbers. The Union finance ministry issued a white paper on the subject that highlighted various measures of black money and what needs to be done to curb its generation. The analysis carried out in it does not represent anything new; it certainly does not give a road map for handling this problem.

In India, the easy fixes to curb tax evasion and the generation of black money have all been exhausted: there will be few, if any, taxpayers who try and evade what they owe the government. The tax administration is robust enough to detect and capture evasion by these citizens. The problem lies elsewhere.

The white paper itself illustrates these issues. Three examples can be highlighted. The issue of taxation of wealth generated in the businesses linked to exploitation of natural resources such as mining, hydrocarbons, telecom and other related sectors; the problem of income in “vulnerable” sectors such as real estate and, finally, the issue of political willpower required to make a difference. In each of these, this government has been an abject failure.

Consider the natural resources sector first. The problem lies in the vast discretionary powers enjoyed in allocating these resources. From spectrum allocation to that of issuing mining licences, there has been little or no transparency. The result is that there are inbuilt drivers to generate illicit wealth. If anything, this government is complicit in this process: it is deeply unhappy with auctions as a process to allocate these resources. In a firstcome- first-served process, there is ample scope for corrupt practices. Clearly, it has to address that issue before it can even argue that natural resource allocation processes are a problem. In fact, the sector can only be dubbed as a ‘politically exposed sector’.

In case of ‘vulnerable’ sectors such as real estate, the cause and effect are mixed: real estate is both a recipient and a generator of black money. Illicit gains made elsewhere can be parked in residential and commercial property without much fear of tax enforcers. But that is just one part of the problem. The high taxes — stamp duty is a prime example — levied make evasion a worthwhile chase. And high stamp duty being an important source of revenue for many states ensures that undervalued transactions are a norm and not an exception.

Finally, this government lacks the willpower to deter potential tax evaders — the big fish that is. The surest way to do so will be to disclose the names of evaders that are available with the government. Given that our politicians are sure to figure on such a list, confidentiality of agreements with other governments and, hold your breath, human rights of tax evaders (page 68 of the white paper) come in the way of public disclosures. This is difficult to believe.

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Don’t blame Greece for our problems.

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In the gloomy economic environs of a falling rupee, slowing economy and a general drift of things, an easy way to shirk responsibility would be to lay the blame at Greece’s door. Former ICICI Bank chairman N. Vaghul would strongly recommend not to rummage through the ruins of the Athenian economic Acropolis to explain our problems away.

“No one is going to believe if we say our problems are because of Greece. Our problems are self-inflicted”, says the celebrated banker, reasoning that the “root cause of India’s troubles lies in a decline in its values”.

“It isn’t a question of some fiscal, inflation or some other problem like a fall in the value of the rupee. It doesn’t have to do with the change in recent times in our tastes with regard to music, clothes, marriage or some social mores. Those are irrelevant. What is hurting is that our core values are disappearing and it has been six decades of decline with the political, economic and industrial leaderships dropping in integrity,” he says. Blending his characteristic wit with banking analogy, Vaghul says,

“the root cause of our financial crisis is that we have created derivatives without underlying assets,” referring to the decline in values in all spheres of life. Holding forth on the importance of upright leadership at an event here to remember banking stalwart and former SBI chairman R. K. Talwar, Vaghul said work ethics ought to be the cornerstone on which to build careers and industry and that the decline in values witnessed all around reminded one of the importance of the philosophy of those like Talwar, who thought everyone was an instrument of the divine.

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Corporate anonymity — Incorporation with limited liability is a privilege. It should not include anonymity.

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Limited liability — A commercial venture that protects its shareholders from personal bankruptcy —is one of the greatest wealth-creating inventions of all time. The law allows companies to borrow money, to take risks and to make contracts as if they were people, but without the human beings who own it going bust if things go wrong, as they would in an unlimited partnership.

Limited liability allowed Elizabethan adventurers to finance voyages to spice islands; it allows Silicon Valley technologists now to make similarly risky bets. But limited liability is a concession — something granted by society because it has a clear purpose. It is unclear why in parts of the world anonymity became part of the deal. Efforts to withdraw that unjustified perk deserve to succeed. In dozens of jurisdictions, from the British Virgin Islands to Delaware, it is possible to register a company while hiding or disguising the ultimate beneficial owner.

This is of great use to wrongdoers, and a huge headache for those who pursue them. Anonymously owned companies can buy property, make deals (and renege on them), launch intimidating lawsuits, manipulate tenders — and disappear when the going gets tough. Those who seek redress run into baffling bureaucracy and a legal morass. Seeking real names and addresses means dealing with lawyers and accountants who see it as their job to shield their clients from nosy outsiders.

Owning up

Reform ought to be simple. Anyone registering a limited company should have to declare the names of the real people who ultimately own it, wherever they are, and report any changes.

Lying about this should be a crime. Some dodgy places will try to hold out. But anti-money-laundering rules show international co-operation can work. You can no longer open an account at a respectable bank merely with a suitcase of cash. Let the same apply to starting a limited company.

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How to declutter your mind.

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By life overloads our senses with a barrage of sensations: information, sights, sounds and choices. We have portable devices that inform, entertain, update and connect. We are not designed to deal with so much information all at once. The noise keeps us from focussing on what matters, keeping us disconnected from the big picture.

Breath: Take a few deep breaths and relax. Concentrate on your breathing as it comes in and goes out of your body. This has a calming effect and allows other thoughts to float away.

Write it down: Pen down your thoughts. It helps to get them on paper and off your mind. This keeps your head from being filled with everything you need to do and remember. List and prioritise: Tasks that are critical to do today, tasks that you need to do in the next 1-2 weeks — prioritise what’s urgent and important.

Eliminate: Now that you’ve identified the essential, identify what’s not essential and eliminate those items. It declutters your mind really fast.

Decide now: List the things which you are yet to decide. Stop procrastinating and tackle them. Do a physical activity: Spending some physical energy clears the mind. Reduce TV time: It fills your head with noise. By reducing it, you will find that you have time for the more important things in life.

Take a break: Short breaks during work hours will help you feel more re-energised and fresh. Go slow: Life is not a race all the time. Do things one at a time. Relax and move at your own pace. As a result, your mind is less hassled.

Forgive and forget: Harbouring negative emotions of anger and frustration only add to the mental stress.

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Time for change — The country needs a new government, under a new leader.

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The second UPA government is observing its third anniversary. The second of those three years saw rampant and large-scale corruption emerge as a hot-button issue. The third and latest year has been disastrous for the economy. So the two principal attributes credited to Prime Minister Manmohan Singh — as a man of probity and as the author of economic reforms — have ceased to be political assets for the government. At the heart of the government’s problems is the dyarchy that prevails, something which the Westminster system of parliamentary government is simply not equipped to deal with. Political power rests with Sonia Gandhi, and she therefore has an important say in what must happen. In practice, therefore, the prime minister serves so long as he enjoys her confidence, and he has to consult her on ministerial appointments. More importantly, he cannot dispense with any of them if he so chooses. This fundamentally undermines his authority in the Cabinet, a situation which many ministers have exploited to thumb their noses at him.

Many other things are wrong with this government. For a start, its leading lights are simply too old. The prime minister will be 80 in a few months, while the foreign minister is already 80. Mr. Mukherjee is 77, and Mr. Antony 71. Among those exercising the sovereign functions of the state, only Mr. Chidambaram (67) is below 70. In the Cabinet as a whole, 15 of 34 ministers are 70 or older. Any government with so many old people, who have little to look forward to other than political survival for a few more years, is likely to be short on energy and initiatives, and tied to old ways of thinking. It also matters that most of the stalwarts in the Cabinet are political lightweights who have no real clout with voters in their states.

A lightweight prime minister has around him a bunch of other lightweights. This may have to do with the nature of the Congress party — if it is to be protected and preserved as family property, the party’s only real vote-getters must be from the Gandhi family; and young ministers like Jyotiraditya Scindia and Sachin Pilot cannot be allowed to flower too early or they might outshine Rahul Gandhi. It is frequently said that the bane of this government has been its recalcitrant allies. Perhaps, but how much of the failure to carry them along rests with the Congress? How often has the UPA actually met as an alliance? Why does it not have a common minimum programme, which everyone has agreed on? Why is there no effective system of discussion and consultation? Is it simply because the leading lights of the UPA lack political ability — the prime minister is reticent if not retiring, the home minister gets people’s backs up, and the finance minister has too much on his plate to focus on anything in particular? In any case, the ministerial mathematics tells its own story: 28 out of 34 Cabinet posts are with the Congress, as also all seven positions of minister of state with independent charge; that’s a score of 35 out of 41. Of the six posts with five allies, the government has got almost unstinting support from Sharad Pawar’s Nationalist Congress, Farooq Abdullah’s National Conference and Ajit Singh’s Rashtriya Lok Dal. When push came to shove, the Dravida Munnetra Kazhagam too played along, even allowing its Cabinet representation to shrink. The sole problem case can be said to be Mamata Banerjee. Is this really an unmanageable situation, or a failure of management?

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Lionising the indicted — Politics must reconnect with respect for law, propriety.

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In Punjab, the declared killer of a former state chief minister is honoured by those speaking in the name of a whole community. In Tamil Nadu, Andimuthu Raja returns to his home state as a conquering hero, after having had to resign as communications minister and then spending 15 months in jail. In the first case, the killer is awaiting execution, while in the second the trial is still to get under way.

 In that sense, the two are on different planes. But it is necessary to ask whether the Dravida Munnetra Kazhagam (DMK) is no better than some of the Akali factions when they cock a defiant snook at the law. It was left to the General who led Operation Bluestar to express his unhappiness at a memorial being built in memory of those killed by soldiers during Bluestar, since those killed included terrorists and armed separatists.

As for Mr. Raja, he is technically innocent, since no court has declared him guilty, but he has been indicted in no uncertain terms, as a simple reading of the Comptroller and Auditor General’s (CAG’s) report on the telecoms scam shows. He twisted the principle of ‘first-come-first-served’ by fixing arbitrary cut-off dates and other criteria in such a manner as to make the ultimate choice of licensees completely arbitrary, and therefore devoid of principle. Even when it came to simple paperwork, he gave licences to companies that did not qualify or were not eligible because they had not given the prescribed information or the prescribed documentation in time. Whether he committed any crime is something that is yet to be determined, as also the question of any quid pro quo. But on the evidence already set forth, it is clear that Mr. Raja is not someone who should be getting lionised by any serious political party, given that his handling of a ministerial portfolio did not set standards worthy of emulation. That the DMK has chosen to lionise such a person tells the country that politics in Tamil Nadu is as disconnected from propriety as it is in Punjab.

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White paper on Black Money:

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Generation of black money and its stashing abroad in the tax havens and offshore financial centres has dominated discussion and debate in the Parliament and in public forum in recent years. In the White Paper on Black Money recently laid before the Parliament this problem and its complexities have been discussed in detail. In this report para 5.2.75 deals with ‘Enhancing the Accountability of Auditors’ which reads as under.

“5.2.75 Unlike many developed countries, Auditors in India have not been requisitely accountable, resulting in frequent undermining of this important aspect. Apart from recent cases of distortionary corporate governance involving highly reputed firms, cases are detected regularly by the regulatory authorities where the Auditors have failed to point out gross violations and even blatant misrepresentations. In the absence of adequate effective provisions, the Auditors are hardly ever held accountable for these lapses. Another aspect of this problem is the way in which a firm opts for an Auditor in this environment of low accountability and prevalent evasion, since a strict Auditor ready to blow the whistle can hardly expect to thrive amidst competitors, many of whom may be more than willing to co-operate and compromise at different levels. As a result, a very important regulatory tool is virtually losing its role in contributing towards greater compliance. There will be need in future to look into various aspects of the functioning and regulation of the role of Auditors and various other professionals verifying the declarations and statements made by firms and ensure that there are adequate safeguards and sufficient accountability of such professionals.”

Such sweeping remarks about our profession in an official document laid before the Parliament indicate the present thinking in the minds of these who govern and regulate our profession. Members of ICAI should adequately respond to such remarks.

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EAC opinion – Revenue recognition in case of construction contracts

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Facts:

A public sector company (‘company’), listed in the stock exchanges, is engaged in the field of engineering, manufacture of equipments, erection & commissioning of power projects. In power project business, the contracts received by the company are either Engineering, Procurement and Construction (EPC) contracts or Boiler, Turbine and Generator (BTG) Packages, where civil works and Balance of Plant (BOP) package items are not in the scope. The normal execution period of a contract ranges between 3 to 5 years. The scope of the contract includes supply of equipments, erection, commissioning, ensuring guarantee output from the machines, completing the trial operation and synchronising the plant to the grid.

The company has stated that long-term construction contracts are obtained by the company’s marketing wing which allocates the scope and value to various manufacturing units and regions/ sites for execution. The units/regions bill the customers based on Billing Break Up (BBU) agreed with the customers.

The accounting policy of the company for revenue recognition in respect of construction contracts is on percentage completion method based on percentage of actual cost incurred up to the reporting date to the total estimated cost of the contracts. Actual cost incurred up to reporting period is worked out on actual cost incurred for each contract in respect of items manufactured and physically dispatched to the project site. Further, in power sector regions/sites, actual cost incurred towards engineering, commissioning, etc. by region/site is considered for working out percentage of completion for revenue recognition. Items like steel, cement and bought-outs directly supplied from supplier to project site and billed to the customer are also considered as part of actual cost incurred for working out percentage of completion for revenue recognition.

Query

On the above facts, the company has sought the opinion of the EAC: (a) whether the practice of cost of manufactured items dispatched to project site alone being considered as ‘cost incurred’ without considering the cost of raw material in stocks, works in progress at the plant, finished goods at stores as cost incurred is in line with the revenue recognition principle as per AS-7?, (b) In case of erection sites, whether the cost of cement and steel procured and delivered at the project site, specific to the project, in respect of which billing has been done as per the BBU agreed with the customer can be considered as ‘cost incurred’ in working out the percentage of completion as per AS-7 and whether the same is in line with the revenue recognition principle as per AS-7?, and (c) Whether change in estimated revenue and estimated cost in respect of long-term contracts executed over a longer period needs to be disclosed as ‘change in estimate’ as per AS-5?

Opinion:

After considering paragraphs 21, 29 and 30 of AS-7, the Committee is of the view that determination of contract costs incurred for calculating stage of completion depends upon the performance of contract activity rather than mere incurrence of cost. Costs that relate to future activity are to be recognised as ‘work in progress’. Accordingly a judgment is to be exercised by the management while determining the contract costs incurred considering various factors, such as terms and specifications of the contract, identifiability with the contact, achievement of milestone in relation to the contract, etc.

In view of the above, the practice of the company to consider the cost of manufactured items dispatched to the project site alone as ‘cost incurred’ is not correct, since mere event of dispatch can not be considered as a completion of a stage and may not trigger revenue recognition.

As regards steel and cement procured and delivered at the contract site and billed to the customer cannot trigger considering a cost as ‘contract cost incurred’. These items are general in nature for a construction activity and cannot be said to be specific for a project even though supplied directly to the contract site. Accordingly, this should be considered for determining ‘contract cost incurred’ only when these have been used/ applied for performance of contract activity. Till that time, these should be considered as ‘work in progress’.

Change in estimate on account of changes in estimated contract revenue and costs should be disclosed in accordance with AS-5 read with AS-7. Accordingly, the effect of change in estimated contract revenue and cost which has or is expected to have a material effect in the current period or subsequent periods needs to be disclosed. However, if it is impracticable to quantify the amount of change, the fact should be disclosed. [Please refer pages 1825 to 1830 of C.A. Journal, June, 2012]

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C.A. rendering legal services

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It has been reported in a leading newspaper that the Supreme Court has recently held that both litigation and non-litigation matters are covered by the Advocates Act, 1961. Therefore, only persons qualified as Advocates can render services in the legal field. Accordingly, the Society of Indian Law Firms has intimated to ICAI that Chartered Accountants and Firms of Chartered Accountants should not advice their clients on legal matters which are exclusively reserved for Advocates under the Advocates Act, 1961. Let us hope the Council of ICAI issues a clarification on this issue and advises our members as to which type of legal work cannot be undertaken by our members (H.T. 9-7-2012).

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EAC Opinion Treatment and disclosure of interest on fixed deposits in the financial statements of a financial enterprise.

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Facts

The entire equity capital of a public limited company registered under the Companies Act is held by the Government of India. The company was set up as a special purpose vehicle to provide long-term infrastructure finance as per scheme for Financing Viable Infrastructure Projects (‘the financing scheme’).

The company provides infrastructure finance through direct lending, refinancing and take-out finance as per the financing scheme. The company has raised long-term debt by way of loans from Life Insurance Corporation of India, National Small Saving Fund (NSSF), bonds listed in India and foreign currency loans from bilateral and multilateral institutions. Borrowings of the company are backed by sovereign guarantee.

The resources raised by the company are utilised for providing infrastructure finance through direct lending, refinancing and take-out finance as per the financing scheme. Pending disbursement, the resources of the company are held in the form of bank deposits and investments, such as Central/ State Government (PSUs), Certificate of Deposits with scheduled banks, etc. as per investment policy approved by the board of directors of the company.

The company has stated that as the nature of its business is that of an NBFC, the company has been treating interest on bank deposits as income from operations in its books of account and, accordingly, discloses interest on bank deposits as income from operations in the financial statements as well as in the cash flow statements. The Comptroller and Auditor General of India (CAG), while conducting audit of accounts of the company for the year ended 31st March, 2010 and subsequently for the year ended 31st March, 2011 inter alia, however, commented that interest on fixed deposits with banks has been included under income from operational activities instead of disclosing the same as other income. This has resulted in the overstatement of income from operations and understatement of other income by Rs.56,516.94 lakh.

Query:

In view of the above, the company sought the opinion of the Expert Advisory Committee (EAC) as to whether it is appropriate for the company to treat interest on bank deposits as income from operations in its books of account and accordingly, to consider the disclosure interest on bank deposits as income from operations in the preparation of financial statements, including cash flow statement.

Opinion:

 As far as the disclosure of such interest income in the financial statements including cash flow statement is concerned, the Committee after considering the definition of the term ‘operating activities’ as provided in paragraphs 5, 12 and 30 of AS-3, is of the view that operating activities are the principal revenue producing activities of the enterprise. The main business of the company is to provide longterm infrastructure loans and financial assistance while optimally managing and utilising its funds. Thus, the company is in the business of earning income by managing its funds which also includes the management of surplus funds between the date of receipt of funds to the date when the funds are finally disbursed. Accordingly, the Committee is of the view that interest earned on investment of surplus funds of the enterprise arises from its principal revenue producing activities and therefore, it should be treated and classified as income from operating activities. Further, in the context of cash flow statement, the Committee notes that paragraph 30 of AS-3 specifically states that cash flows arising from interest and dividends received in case of financial enterprise should be classified as ‘cash flow from operating activity’. Therefore, according to EAC, the treatment given by the company in the books of account is appropriate.

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Some historical facts about ICAI

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(i) First Indian to become Member of ICAE W: Shri A. E. Cama was the first Indian to become a member of the Institute of Chartered Accountants of England and Wales in 1908.

(ii) Accountancy got statutory recognition in India in 1913: When the Indian Companies Act, 1882, was replaced by the Indian Companies Act, 1913, it was for the first time that statutory provision was made for audit of accounts of companies.

(iii) First Accountancy Board: The first Accountancy Board was appointed under the Auditors’ Certificate Rules, 1932, in 1932. Its members were appointed by the Governor General in Council. Later on, in 1939, elective element was brought into the constitution of the Board.

(iv) GDA and Unrestricted Certificate: Scheme for Government Diploma in Accountancy along with apprenticeship under an approved Accountant for 3 years was introduced in 1918. This Diploma was abolished in 1943. Unrestricted Auditors Certificates were granted under the Companies Act, 1913.

(v) C.A. Act, 1949: Chartered Accountants Bill, 1948, was introduced in Constituent Assembly and C.A. Act, 1949 was passed on 1-5-1949.

 The C.A. Act was brought into force on 1-7-1949. Late Shri G. P. Kapadia was elected as the First President and held this position for first three years. (vi) Women Power:

 (a) First lady to qualify as GDA in 1930 was Ms. Shirin K. Engineer. After completion of Articles she was enrolled as R.A. in 1933 and thereafter as CA in 1949.

(b) First lady who topped CA Final Examination in 1984 was Ms. Nandita Shah (Now Nandita Parekh).

(c) First lady elected to the Central Council of ICAI in 1995 was Ms. Priya Bhansali (D/o late President Ashok Kumbhat).

(d) Incidentally, no lady has occupied the position as President of ICAI.

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DAY 4

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After breakfast participants discussed the paper written by Himanshu Kishanadwala on Case studies in Accounting and Auditing. The Group Discussion was followed by a precise presentation on the subject. He dealt with some burning issues affecting the CA’s in practice as well as industry. He analyzed all issues in great detail. His command over the topic and flawless analysis resulted in participants giving him a very patient hearing.

This session was chaired by K. C. Narang, Past President of the Society.

In concluding session Uday Sathaye, Chairman Seminar Committee took an overview of the RRC and recognized the contribution made by everybody, Pradip Thanawala, President of Society thanked everybody for making the RRC memorable. Participants departed after lunch to their respective destinations with a promise to meet again next year at the 46th RRC.


K.C. Narang, Chairman Addressing Participants. Also seen from L to R – Yatin Desai, Himanshu Kishnadwala, Paper Writer and Nitin Shingala

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DAY 3

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After the breakfast the participants discussed the paper written by S. Thirumalai on “Important Aspects of CENVAT credit & POT Rules.”

Thereafter Yogesh Thar Chartered Accountant presented paper on “TDS- Some important issues”. His liking and mastery over the subject made his presentation very informative and useful.


Yogesh Thar, Paper Writer Addressing Participants. Also seen from L to R – Bharat Oza, Rajesh Shah, Chairman and Krishna Kumar Jhunjhunwala.

This session was chaired by Rajesh Shah, Past President of the Society

Shri S. Thirumalai dealt with his paper and made his presentation very interesting and satisfied the participants by resolving issues raised during Group Discussion. Service Tax today is gaining importance with more services being added under the Service Tax net. Issues raised by him were of real significance to all. His depth of knowledge in Service Tax and masterly analysis was indeed a treat for the participants

This session was chaired by in his unique style by Govind Goyal, Past President of the Society.


S. Thirumalai, Paper Writer Addressing Participants. Also seen from L to R – Narayan Pasari, Govind Goyal, Chairman and Naresh Sheth.

The day ended with Gala Dinner and Musical Evening.

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DAY 2

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The
participants discussed the paper written by Dr. Pravin P. Shah on
Business Structuring/ Restructuring some important issues. The Group
Discussion was followed by a marvelous presentation paper by
Chandrashekhar N. Vaze who presented his views on Code of Ethics –
Practical Issues. His command over subject and presentation skills made
the session very lively. This session was chaired by Padamshri Shri T. N
Manoharan, Past President of the ICAI. The salient features of the
paper were explained by rapporteur Shri Jayant Gokhale member of the
central council of ICAI.


Padmashree T.N. Manoharan Addressing Participants. All seen from L to R – Manmohan Sharma, Chandrashekhar Vaze, Paper Writer, Jayant Gokhale, Rapertoire and Rajeev Shah.

Thereafter Dr. Pravin P. Shah dealt
with his paper and analyzed the implications and rationale of various
Tribunal, High Court, and Supreme Court Judgments. He explained that
every decision of the judgment forum is with respect to a set of facts
and it is important for reader to appreciate these facts before using
the judgment for any purpose. He answered brilliantly all the queries
raised by the participants.

Dr Pravin Shah, Paper Writer Addressing Participants. Also seen from L to R – Ashok Dhere, Chairman, Saurabh Shah and Mukesh Trivedi.

This session was chaired by Ashok Dhere,
Past President of the Society. In the afternoon participants visited
Ramoji Film City. Participants were made aware about the technicalities
in making the Film. Participants took keen interest and enjoyed the
unique experience. In the evening an additional session was held for the
benefit of all the participants on the burning topic “Revised
schedule-VI” Himanshu Kishanadwala did a masterly analysis of the
important changes which are relevant to a Chartered Accountant , whether
he is performing the accounting or audit function. The session was
effectively chaired by Uday Sathaye, Past President of the Society.

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DAY 1

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The RRC began with the Group Discussion on paper written by T. S. Ajai on Case Studies in Taxation.

In
the inaugural function which was held in the evening, Pradip Thanawala
President of the Society welcomed the members. For the benefit of the
outstation members attending RRC he gave an overview of Society’s
activities which are conducted through out the year.

Uday
Sathaye Chairman of Seminar Committee highlighted activities of the
Seminar Committee which are gaining popularity , like study tours in the
form of interactive meetings with Industries all over the Country. He
mentioned about the rationale behind the subjects chosen for the RRC and
thanked all paper writers for giving justice to the subjects and
delivering the papers well within committed time frame.

RRC was
inaugurated by Chief guest Shri N. Chandra Babu Naidu, Leader of
opposition, Andhra Pradesh, Guest of Honour G. Ramaswamy, President ICAI
and Jaydeep Shah, Vice-President ICAI, by lighting of lamp.
Shri. N.
Chandrababu Naidu is a very acclaimed, learned and senior professional
politician. He expressed his views in regard to various issues which
have arisen on account of the current trend of giving importance to
technological changes, Governance

Uday Sathaye, Chairman, Seminar Committee delivering Welcome Address. Also seen from L to R – Krishna Kumar Jhunjhunwala, Pradip Thanawala, N. Chandrababu Naidu, G. Ramaswamy, Jaydeep Shah, Deepak Shah and Rajeev Shah.

and values in life. He felt that even
though change is an accepted part of life, departure from certain age
old principles is unwarranted. In his opinion, while one should welcome
the good things from the new generation,


T.S. Ajai, Paper Writer Addressing Participants. All seen from L to R – Mandar Telang, Anil Sathe, Chairman and Manish Sampat.

one should also respect Indian
Ethos. His views on Indian Economy impressed everyone present . Shri G.
Ramaswamy, President ICAI updated members about the development and
initiatives taken by the ICAI for the benefit of members. Shri Jaydeep
Shah, Vice President ICAI addressed the participants about the various
programs run by ICAI.

Krishna Kumar Jhunjhunwala Convenor of the Seminar Committee proposed a hearty Vote of Thanks.

After
the inaugural session T. S. Ajai covered in his presentation all the
case studies.. His clinical analysis on the controversies and his
forthright views were unique and of immense benefit to the participants.

This session was ably chaired by Anil Sathe, Past President of the Society.

The day ended with tasty dinner being served

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Archives and archaism.

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The Government of India has a curious habit. It spares no effort on buying documents and personal effects of Gandhiji and storing them in its lightless archives. At the same time, it is most reluctant to grant access to scholars to any papers it remotely considers ‘sensitive’.

The latest example is its purchase of the Gandhi- Hermann Kallenbach papers. Kallenbach, an architect, was a close collaborator of Gandhiji in South Africa. The two issues may appear distinct, but they are not. The history of a country can’t be divided into what is acceptable to the government and what is not: that is not history, it is hagiography.

No Indian scholar has access to papers on vital post-1947 events such as the 1962 war with China, let alone recent matters such as our involvement in Sri Lanka after 1987. India’s archives access policy is perhaps one of the most illiberal anywhere in the world. It should be discarded fast.

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What happens when one spends beyond one’s means?

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If you have Rs.100 in your pocket, then you cannot spend Rs.200. It’s very logical, right? The good news is that today’s world is no longer logical! It’s indeed very easy to spend more than what you have. But it’s equally important to analyse the cost of this extravagance.

A country spending way beyond its means will surely have a far greater impact than a school kid overshooting his pocket money. As the scale of this lavishness increases, the following two distinct trends are observed:

(1) The system of financing the gap becomes more and more complex

(2) The person spending gets more and more distant from the one paying for it.

Let us now see a few examples to understand fully how this evil system works.

A child and his pocket money
A school-going child has Rs.1,000 as pocket money savings and wishes to buy a video game DVD worth Rs.2,000. In a normal scenario, the child will comfortably make a gullible puppy face in front of the elders (technically may be called ‘financers’) and get the money. The advantage of being a child is that he rarely has to return it back. The amount involved is relatively negligible and the ones affected are close family members, pretty harmless.

Credit card — The prodigal’s best friend
Generally, anyone who wants to spend, what he is yet to earn uses a credit card. No doubt, when used wisely, a credit card is a wonderful source of free credit, but sadly, not all are wise. According to RBI, 1 in every 10 credit card holders defaults on payment. As of March 2011, there were 1.8 crore credit cards with average spending of Rs.41,862. Thus, we can estimate the defaults, at 10% of spending, to be Rs.7,536 crore.

Now, who pays for these? For the defaults made good by the customers, he pays a whopping 36% interest. But if he is unable to pay, the bank has to write them off. The real pinch is felt by the private shareholders of these banks and the government in case of nationalised banks. Not to forget, the management where the remuneration is linked to the profits, also feels the heat.

I owe you money? . . . Oh! Sorry, it just went down the drain . . .

Jean Paul Getty said, “If you owe the bank $100, that’s your problem. If you owe the bank $100 million, that’s the bank’s problem.”

No statement explains the paradox better! When huge corporations do business with others’ money, it’s not them but the lenders who have to worry about the state of business. One of the most recent examples is of a ‘reputed’ airline company. According to a leading broker’s estimate, the debt exposures of that particular airline company maybe a whopping Rs.10,000 crore. Using the corporate veil, the management will safely escape from the liability they have created. So, the ones ultimately shelling out Rs.10,000 crore may include banks, shareholders and creditors. Imagine thousands of crores going down the drain, in times of monstrous rise in cost of living and record high interest rates!

Banks going bust!
It’s not always that the banks that are on the losing side. Some clever devils in dark suits manage to pass on their mistakes to unsuspecting investors. Since banks are traditionally considered conservative, and people like you and me, easily fall for such dud schemes. And soon the bubble bursts, in turn, making everyone burst into tears. Take the example of the most monumental fall of recent times, the Lehman Brothers. With a debt equity ratio of 35 to 1, it was a ticking time bomb. Its debt was close to US $613 billion at the time of default. The damage does not end there. Bail-outs and stimulus packages followed the 2008 crisis from which the world has still not fully recovered. The total impact of the whole global economic crisis has cost trillions of dollars, millions of jobs and countless hungry stomachs. Consider this; the family of a jobless daily labourer has to go hungry while the ones responsible for overshooting their means enjoy barbeque parties in lavish bungalows! The ones suffering include creditors, shareholders, governments, taxpayers, citizens and the list goes on.

What is bigger? Bankrupt countries!

Greed has no limit. What happens when governments spend beyond their means? Countries go bankrupt! Some casualties include Argentina, Zimbabwe and the latest one, Greece. Greece had pushed very hard to enter the European Union so that it could use the Euro to borrow cheaply. The interest rate it used to pay on its borrowings before joining EU was 10-11% which fell to 3-4% immediately after adopting Euro. So, it kept mounting debt. Before it could repay the old one, it took a new, bigger loan. The proceeds were not always used to repay the old loan, but to fund their spending spree. It should be noted that the pension entitlement in Greece is around 92% of last salary that too at a time when Greece has a very fast ageing population. Since the adoption of Euro, the average wage of public sector workers doubled. These, along with large-scale tax evasion are some of the reasons for the mess this country finds itself in. Portugal, Spain and Italy too are sitting ducks. The impact of this looming crisis shall be more than anyone can ever fathom. Ripples of this crisis shall affect billions of people and deeply hurt the global economy.

Conclusion
Credit is the reason any business or economy runs. However, if you cross your limits, the impact will be felt at places and by people beyond your imagination. The only way to prevent such damage is by knowing your limits. We should not confuse limits with restrictions, no one likes restrictions! However, by setting budgetary limits we can ensure no one suffers. For articles like us, it has to start by managing the whole month’s expenses within the stipend earned. Being a disciplined money manager is not the job of the faint hearted! The whole marketing world is conspiring to raid our wallets. It is for us to protect it and keep the spending within limits. Yes, tough task!!

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Sanction for prosecution: SC order brings cheer to beleaguered CVC.

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The Central Vigilance Commission welcomed Supreme Court order setting a timeline for giving prosecution sanction in cases against public servants.

“Sanctioning of prosecution by competent authority within a timeframe of four months will be a big help in fighting corruption, and will expedite action against corrupt public officials,” CVC Pradeep Kumar told TOI.

The CVC’s response came in the wake of the Supreme Court saying that “delay in granting such sanction has spoilt many valid prosecution and is adversely viewed in public mind that in the name of considering a prayer for sanction, a protection is given to a corrupt public official as a quid pro quo for services rendered by the public official in the past or may be in the future and the sanctioning authority and the corrupt officials were or are partners in the same misdeeds”.

The CVC has been at the receiving end of delaying tactics adopted by various departments to stall prosecution of officials against whom corruption proceedings are pending. As of December 2011, prosecution sanction was pending in at least 24 cases for more than four months.

In November, there were 28 cases pending with 17 ministries for over four months. The highest, of 10 pending cases, was with the Finance Ministry — four of them before the Central Board of Direct Taxes and four of them before the Central Board of Excise and Customs.

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Their birth right! (right or wrong?) judge for yourself!

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Patrick French’s recent book, India: A Portrait, offered this startling revelation about the Indian Parliament: “Every MP in the Lok Sabha under the age of 30 had in effect inherited a seat, and more than two-thirds of the 66 MPs aged 40 or under were HMPS (Hereditary Members of Parliament). In addition, this new wave of Indian lawmakers would have a decade’s advantage in politics over their peers, since the average MP who had benefited from family politics was almost 10 years younger than those who had arrived with ‘No Significant Family Background’. In the Congress, the situation was yet more extreme: every Congress MP under the age of 35 was an HMP. If the trend continued, it was possible that most members of the Indian Parliament would be there by heredity alone, and the nation would be back to where it had started before the freedom struggle, with rule by a hereditary monarch and assorted Indian princelings.”

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Majority wins: Bombay High Court paves way for redevelopment.

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Dissenting members who deliberately skipped housing society meetings have ‘no right’ to object to a resolution favouring redevelopment passed by majority of the members, observed a Cooperative Court recently. The Court upheld a resolution passed by majority of the members to redevelop a four-storey building in Khar (W).

The ruling is significant as it seals the fate of the dissenting few and holds that the resolution, if passed at a meeting held legally, will be binding on all members of a cooperative housing society.

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Schooling not enough.

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Higher spending on education is not improving dismal outcomes India came 72nd of 73 nations in the Programme for International Student Assessment (PISA) competition, despite fielding students from its best states, Himachal Pradesh and Tamil Nadu. The dismal quality of Indian education is confirmed by the latest Annual Status of Education Report (ASER). Throwing money (Sarva Shiksha Abhiyan) and legislation (Right to Education Act) at education has produced no quality gains at all. Abhiyan spending is up from Rs.7,166 crore in 2005-06 to Rs.21,000 crore last year, yet parents are shifting wholesale from free government schools to private options (schools and tuition). In the last five years, private school enrolment has gone from 18.7% to 25.6% of the total, with Kerala already at 54%. The shift has not, however, improved dismal learning outcomes. Half the Class V children cannot read Class II texts, and 40% of Class V children cannot solve a two-digit subtraction. This represents a fall in outcomes, especially in Government schools in the Hindi belt. Higher spending by the Government and parents has not yielded better outcomes. Many studies suggest that private schools have better outcomes, but the shift to private education has not achieved that at a macro-level. In 13,000 schools visited by surveyors, student absenteeism was 50% and teacher absenteeism 45%: neither seem motivated.

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SC tells HCs not to stay corruption probes unnecessarily.

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Expressing serious concern over High Courts staying investigations in criminal cases, the Supreme Court has directed the Higher Courts to exercise such powers with due caution and circumspection.

“Unduly long delay has the effect of bringing about blatant violation of the rule of law and adverse impact on the common man’s access to justice,” said a Bench comprising Justice A. K. Ganguly and Justice T. S. Thakur in its judgment.

The Bench said, “a person’s access to justice is a guaranteed fundamental right under the Constitution and particularly Article 21. Denial of this right undermines public confidence in the justice delivery system and incentivises people to look for shortcuts and other fora where they feel that justice will be done quicker. In the long run, this also weakens the justice delivery system and poses a threat to Rule of Law”.

Taking into account that such pendency were related to HC orders putting on hold the trial/ investigations into the criminal cases, the SC said, “the power to grant stay of investigation and trial is a very extraordinary power given to High Courts and the same power is to be exercised sparingly only to prevent an abuse of the process and to promote the ends of justice”.

The Bench passed a slew of directions to the HCs to reduce such pendency like disposing of such proceedings as early as possible, preferably within six months from the date its stay order, etc. The SC also asked the Law Commission to inquire into the issue and submit a report on it.

The Bench took into account that the pendency in criminal cases related to murder, rape, kidnapping and dacoity in different High Courts, varies from 1 to 4 years. Out of 201 cases, 34 such cases out were pending in Patna High Court and 33 out of 653 cases in Allahabad High Court were pending for eight or more years.

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Economic Assessment – Raghuram Rajan: A case for India

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Such bipolar behaviour seems to apply to assessments of India’s economy as well, with foreign analysts joining Indians in swings between overexuberance and self-flagellation. A few years ago, India could do no wrong. Commentators talked of “Chindia”, elevating India’s performance to that of its northern neighbour. Today, India can do no right.

India does have serious problems. Every commentator today highlights India’s poor infrastructure, excessive regulation, small manufacturing sector, and a workforce that lacks adequate education and skills.

These are indeed deficiencies, and they must be addressed if India is to grow strongly and stably. But the same deficiencies existed when India was growing rapidly. To appreciate what needs to be done in the short run, we must understand what dampened the Indian success story.

In part, India’s slowdown paradoxically reflects the substantial fiscal and monetary stimulus that its policymakers injected into its economy in the aftermath of the 2008 financial crisis. The resulting growth spurt led to inflation, especially because the world did not slide into a second Great Depression, as was originally feared. So monetary policy has since remained tight, with high interest rates contributing to slowing investment and consumption.

Moreover, India’s institutions for allocating natural resources, granting clearances and acquiring land were overwhelmed during the period of strong growth. India’s investigative agencies, judiciary and press began examining allegations of largescale corruption. As bureaucratic decision-making became more risk-averse, many large projects ground to a halt.

Only now, as the government creates new institutions to accelerate decision-making and implement transparent processes, are these projects being cleared to proceed. Once restarted, it will take time for these projects to be completed, at which point output will increase significantly.

Finally, export growth slowed, not primarily because Indian goods suddenly became uncompetitive, but because growth in the country’s traditional export markets decelerated.

The consequences have been high internal and external deficits. The post-crisis fiscal stimulus packages sent the government budget deficit soaring from what had been a very responsible level in 2007-08. Similarly, as large mining projects stalled, India had to resort to higher imports of coal and scrap iron, while its exports of iron ore dwindled.

An increase in gold imports placed further pressure on the current-account balance.

For the most part, India’s current growth slowdown and its fiscal and current account deficits are not structural problems. They can all be fixed by means of modest reforms. This is not to say that ambitious reform is not good, or is not warranted to sustain growth for the next decade. But India does not need to become a manufacturing giant overnight to fix its current problems.

The immediate tasks are more mundane, but they are also more feasible: clearing projects, reducing poorly targeted subsidies and finding more ways to narrow the current account deficit and ease its financing.

Every small step helps, and the combination of small steps adds up to large strides. But, while the government certainly should have acted faster and earlier, the public mood is turning to depression amid a cacophony of criticism and self-doubt that has obscured the forward movement.

Indeed, despite its shortcomings, India’s GDP will probably grow by 5-5.5% this year—not great, but certainly not bad for what is likely to be a low point in economic performance. The monsoon has been good and will spur consumption, especially in rural areas. The banking sector has undoubtedly experienced an increase in bad loans; but this has often resulted from delays in investment projects that are otherwise viable. As these projects come onstream, they will generate the revenue needed to repay loans. In the meantime, India’s banks have enough capital to absorb losses.

Likewise, India’s public finances are stronger than they are in most emerging-market countries, let alone emerging-market countries in crisis. India’s external debt burden is even more favourable, at only 21.2% of GDP (much of it owed by the private sector), while short-term external debt is only 5.2% of GDP. India’s foreign-exchange reserves stand at $278 billion (about 15% of GDP), enough to finance the entire current account deficit for several years.

That said, India can do better—much better. The path to a more open, competitive, efficient, and humane economy will surely be bumpy in the years to come. But, in the short term, there is much low-hanging fruit to be plucked. Stripping out both the euphoria and the despair from what is said about India—and from what we Indians say about ourselves—will probably bring us closer to the truth.

(Source: Extracts from an article by Shri Raghuram Rajan, Governor of the Reserve Bank of India, in Mint Newspaper dated 12-09- 2013, written before he took office.)
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Regulators must promote not strangulate industry

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India has several “regulators”, trying to “regulate” several sectors of the economy. There is SEBI keeping a check on the stock markets, TRAI doing the same for the telecom and broadcasting sectors, IRDA for the insurance sector, PFRDA for pensions, DGCA for civil aviation and CERC for electricity.

By their very nomenclature regulators regulate, which many mock to mean strangulate industries. In many cases, regulators focus on keeping private players in check, thinking of them as rapacious booty hunters who need to be tamed, confirming the suspicion that the government never really accepted the private sector as a dynamo of growth. What India needs in the form of regulators are bodies that focus on promoting and developing industry. For if industries develop, there are more tax revenues for the government, more jobs for the people, and more social and economic goals.

This would in turn propel industrial growth and start a virtuous cycle of prosperity. Regulation cannot become shorthand for controlling power tariffs. Equally, the proposed coal regulator should overhaul the defunct and destructive policy of reserving coal production for the inefficient public sector and not become an excuse to “regulate” prices, production capacities, import quotas and the like.

The primary role of regulators must be to ensure that the country’s resources are exploited efficiently and transparently for the benefit of industry and thereby people. Transparency demands that resources are allocated using ascending or single-step auctions, or tenders, not via opaque “administered methods” or “First Come First Served” which lead to corruption and hence must be banned.

Pricing must be remunerative, for only a profitable company can continue investing and exploring. Keeping prices and margins low, and crippling industry doesn’t serve anyone’s purpose, least of all the government’s. Domestic production of gas will increase, lowering the need for imports and easing the balance of payments position.

Regulators must of course always protect consumers. For if consumers suffer, industry suffers. Indeed, the whole reason for setting up SEBI came from the securities fraud of the early 1990s.

A fine balance between protecting consumer and corporate interests is required. The regulator often has to shield industry from the government’s faulty policies, just like the Supreme Court has to shield people from laws that violate the Constitution. A development oriented regulator must have the authority to question government policy, forcing it to make amends as and when required.

(Source: Extracts from an Article by Shri Anil Shinde in the Times of India dated 11.09.2013).
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Falling BRIC — India’s macro numbers are harming its global image.

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It has been more than ten years since the term ‘Bric’ was coined. The Bric nations — Brazil, Russia, India and China — were supposed to be the engines of global growth, the new poles of the world economy as Europe and North America slipped slowly into twilight. Yet Jim O’Neill of Goldman Sachs, the man leading the team that coined the phrase in 2001, has been quoted as saying that “there are important structural issues about all four, and as we go into the 10-year anniversary, in some ways India is the most disappointing”.

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BMC elections — Dance of democracy

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1. I am very disappointed that the voter turnout in the city is so low. We have no right to call ourselves educated and enlightened if we don’t come out to vote. We cannot expect things to change then. Voting is not just a fundamental right, it is our duty. If we fail to vote, we have no right to make comments about the state of affairs in the city. The quality of life is deteriorating and desperate measures are needed. Mumbai is the most important city in the country and generates a huge amount of revenue. It also has the largest number of urban problems. We want the elected leaders to fight for the city and get funds.

— Deepak Parekh, HDFC Chairman

2. The BMC is one of the richest corporations in the country. Despite this, the condition of Mumbai is pitiable. People should not consider voting day as a holiday, but as a day to do their duty. We can talk about responsibility only when we talk about duty. People should cast their vote. Not casting your vote is a crime.
— Anupam Kher, Actor 3.

It is very sad that a lot of people have not come out to vote. If you don’t vote, you have no right to complain. They are not contributing to the society. You are getting what you deserve . . . you are harming society and the country.

— Priya Dutt, Congress MP,

Mumbai North-Central 4. Times View — Another election, another low turnout in Mumbai. Is it apathy, or cynicism? Do we not care? Or do we believe that both sides are equally unworthy of our vote, that there’s nothing to choose from? Either which way, it doesn’t bode well for the city. The more affluent, it would appear, have mentally seceded from the city.

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FDI — The cost of caprice

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Serious economies cannot behave irresponsibly. That is the lesson to be drawn from the international fallout of our domestic telecom scandal. Within a week of the Supreme Court cancelling 122 telecom licences because of how they were issued, Bahrain Telecommunications Company has pulled out its investment in S Tel, and Etisalat of the UAE has written off investment of $ 827 million in Etisalat DB, in which it holds a 45% stake. A Norwegian Minister has come calling, to protect the interests of Telenor (which is majority-owned by the Norwegian Government), and you can rest assured that the Russians are not going to meekly accept the loss of Sistema’s majority stake in Sistema Shyam TeleServices, especially when Sistema owner Vladimir Yevtushenkov is closely linked to Prime Minister Vladimir Putin. So how much damage has been done internationally to the country’s standing and goodwill, because Mr. Raja was allowed to get away with his antics while the Prime Minister and Finance Minister fiddled?

Our capricious politicians are only dimly aware of the international fallout of their domestic dance. All too often, the operating assumption within the country is that the Government can do pretty much what it wants since most serious businessmen don’t want to be in court against it. That is not how it works around the world. So Devas has dragged Antrix to arbitration in Paris, after the government woke up one day and cancelled their contract. Cairn has accepted the Government’s unilateral rewriting of its contract with the Oil and Natural Gas Corporation, but only because it needed the Government’s approval for a change in shareholding control, and you can be sure that others in the energy space have been watching. Indeed, who is to tell how much damage was caused by the Enron-Dabhol fiasco in the 1990s, in terms of lost investment? While the collapse of Enron saved India some blushes, subsequent overseas investment in Indian power generation has been barely $ 5 billion (about the cost of one ultra-mega power project).

As it is, the country makes life hard for businesses, or it would not figure embarrassingly low in the World Bank’s list of countries ranked on the ease of doing business (132nd in a list of 183 countries; six years ago it was 116th out of 155 countries). Why add to the headaches with poor contractnegotiation, then second thoughts and unilateral action? This is not to argue that the country should not get out of bad deals; rather, the issue is of avoiding capricious conduct in an economy that hopes to be the fourth largest in the world by the end of the decade. If you want to get there, you have to start behaving like a serious economy, not invite comparisons with banana republics.

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Not textbook stuff — The NCERT cartoon issue is more about degeneration of political debate.

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At its root, the whole controversy on cartoons in NCERT textbooks underlines the malaise afflicting political debate in the country: passions whipped up in aid of divisive political ambitions. Here, rage and slanging matches trump reasoned debate. One of the stated reasons for the order of the six-member panel constituted to review cartoons — that politicians and bureaucrats can’t be shown in an ‘incorrect’ way — amply reveals that undemocratic spirit. Some of the suggestions of the panel, say, about changing the captions of cartoons that have appeared years ago border on the Orwellian. This is not just tantamount to changing history, it is indicative of school textbooks and curriculum being tinkered with according to ideological inclinations in India. Often, it is one political party or the other raising a furore over such issues, citing the oft-invoked ‘hurt sentiments’ theory.

Which is just another means of reinforcing the social and political faultlines the entire political class thrives on, given that it envisages politics as a competitive identity management project. Just as people’s representatives cannot amend, just because they have a majority, say, the theory of relativity, they cannot decide the school syllabus. There is a National Curriculum Framework, meant to further a consultative approach to framing school textbooks, but that fact is drowned in the cacophony of contesting, and largely manufactured, rage.

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Putting integrity into finance.

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Behaviour that lacks integrity leads to value destruction. This paper analyses some common beliefs, actions, and activities in finance that are inconsistent with being a person or a firm of integrity. Each of these beliefs leads to a system that lacks integrity, i.e., one that is not whole and complete and therefore creates unworkability and destroys value.

Focussing on these phenomena from the integrity viewpoint, makes it possible for managers to focus on the value that can be created by putting the system back in integrity and correcting the non-value maximising equilibrium that exists in capital markets. In effect, integrity is a factor of production just like knowledge, technology, labour, and capital, but it is undistinguished — and its affect (by its presence or absence) is huge. We summarise our new positive theory of integrity that has no normative content, and argue that there are large gains from putting integrity into finance — into both the theory and practice of finance. We define integrity as being whole and complete and unbroken. We argue that if finance scholars, teachers and practitioners take this approach to applications in finance, there are huge gains to be achieved.

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The Big Stick — The time for soft words is over, we need concrete action.

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It is all very well for the Prime Minister to say that he will cut red tape, reassure investors and keep the India growth story intact. He can hardly say the opposite. The whole point is to act, rather than talk or set up yet more committees to produce yet another report on a subject on which an endless number of committees have already produced an equal number of reports. Of the 40,000 MW of power generation capacity added over the last two years, only 6,000 MW of capacity generates power, the rest idles for want of coal or want of regulatory permission to pass on the higher cost of imported coal to willing consumers. Scrap the anti-national Coal Mines Nationalisation Act.

This will not only ensure that the country’s coal sector transforms from a dark realm of loot and thuggery to an efficient supplier of the country’s most abundant fuel, but also reassure potential inves- 36 37 38 Tarunkumar Singhal Raman Jokhakar Chartered Accountants Miscellanea tors that India is serious about economic growth. Muster courage to implement a Cabinet decision to decontrol diesel, and institute competition, including from independent operators, in the retailing of petro-fuels. This will slash the fiscal deficit, reduce inefficiency at India’s oil companies and increase energy efficiency across the spectrum. By reducing the fiscal deficit, the reform would also reduce the current account deficit, thereby easing pressure on the rupee. This move, too, would go a long way in restoring investor confidence.

Make progress on the ground on implementing the goods and services tax, getting the IT infrastructure and procedural framework for seamless integration of the tax ready. This will put pressure on the BJP-led states holding out against the transition. Concrete action of this kind is what we need, to restore investor confidence and get the economy vrooming. Kind words of good intent spoken with sincerity are always welcome. But the big stick that needs to back up soft talk is what has been missing and needs to be found.

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RTI — A weakened right

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One way to defeat a measure is to have your ‘yes men’ in places where decisions are taken. The Right to Information is meeting a similar fate.

In 2012, two-thirds of the 83 information commissioners at the Union and State levels are retired civil servants; three out of four chief information commissioners are retired members of the Indian Administrative Service (IAS). That is not all: on 1st May, 30% of the posts of information commissioners in states were vacant. It is no one’s case that all civil servants are placemen.

But the esprit de corps of the IAS in this domain is less likely to help the cause of accessing information. A bit more of diversity — say persons from civil society (and not merely those who claim to be from civil society), former soldiers, businesspeople and others — can go some distance in achieving the goal of transparency.

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Facebook co-founder says bye to US — Absurd American tax laws prompt Ed Saverin to move to Singapore ahead of landmark IPO

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Eduardo Saverin, the billionaire cofounder of Facebook, renounced his US citizenship before an initial public offering (IPO) that values the social network at as much as INR5,938 billion, a move that may reduce his tax bill.

“It’s plainly lawful and at the same time profoundly ungrateful to the country that provided these opportunities for him,” said Edward Kleinbard, a tax law professor at the University of Southern California. “He benefited from his US education, the contacts he made at Harvard, and most important the extraordinary openness and flexibility of our economy that encourages start-up ventures to flourish.”

Saverin’s name is on a list of people who chose to renounce citizenship as of April 30, published by the Internal Revenue Service.

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China orders big four audit firms to restructure

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The world’s top four accounting firms will have to bring in Chinese citizens to run their operations in China and end the dominance of foreign partners under new rules announced by the finance ministry.

The Big Four auditors — Deloitte Touche Tohmatsu, Pricewaterhouse Coopers, Ernst & Young and KPMG — must start to convert their practices this August and comply with all the new rules by the end of 2017.

The rules require them to ‘localise’ their operations so that they are led by Chinese citizens and dominated by accountants holding China’s accountancy qualifications. The changes come at a difficult time for the Big Four, grappling with the fall-out from a string of accounting scandals at Chinese companies listed in the US that has left investors questioning the quality of auditing in China. US securities regulators charged Deloitte’s China practice for refusing to provide audit work papers related to a US-listed Chinese company under investigation for accounting fraud.

The new rules will force the proportion of foreign partners at the Big Four to be a maximum of 40% when the structure is adopted in August, and fall to under 20% by 2017. This is likely to come as a relief to the firms, as there had been concerns that China could force them to convert more quickly to Chinese-dominated practices. Tougher though, will be the requirement that each of the Big Four’s senior partner be a Chinese citizen. All are currently led by foreigners.

The foreign joint venture arrangements currently used by the Big Four were signed 20 years ago and allowed foreign-qualified accountants to dominate their China practices. Since then, the firms have come to dominate the country’s accounting industry, having won much of the lucrative work to audit the books of stateowned enterprises when they first listed.

In 2010, their audit practices, excluding their consultancy businesses, had combined revenue of more than 9.5 billion yuan (INR93 billion), according to the Chinese Institute of CPAs. However, their market share has slipped in recent years to about 70% of the revenue among the top-10 auditors, down from 85% in 2006.

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Info exchange pacts turn troublesome for NRIs — Inbound investment may suffer as foreign taxmen seek info on funds parked by NRIs in India

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India’s search for black money overseas is having an unintended consequence, one that could affect one of its stable sources of dollars. Investments by non-resident Indians, or NRIs, and their funds parked in India are coming under the glare of the tax authorities in their home countries.

Indian income-tax authorities are sending financial details of NRIs to their respective countries under the information exchange agreements inked by New Delhi with many countries.

 Indians settled overseas have collectively pumped in nearly INR600 billion in NRI deposits in India in April- February 2011-12 financial year to take advantage of the higher returns available here. Interest rates of these NRI deposits can be as high as 9.5% in some cases, which yields a handsome tax-free package for investors even after adjusting the rupee depreciation.

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Flipkart faces heat of rivals’ discounts

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Flipkart, the big daddy of the online books trade, is feeling the heat of competition. Of late, several other portals are making a strong pitch for the pie with bigger discounts. Book lovers have options galore with players like Infibeam, Dial-a-Book, Bookadda, Friends of Books, Indiatimes Shopping, eBay, Junglee, uRead and more.

The new kids on the block offer bigger discounts than Flipkart, which range up to 40% on bestsellers. Retail industry insiders say the online books business is all about customer acquisition. Books help get customers online.

It’s hard to damage books while shipping. It builds trust that can later get customers to transact from other categories.

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World’s biggest rubbish dump out at sea, twice the size of America

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A ‘plastic soup’ of waste floating in the Pacific Ocean is growing at an alarming rate and now covers an area twice the size of the continental United States, scientists have said.

The vast expanse of debris — in effect the world’s largest rubbish dump — is held in place by swirling underwater currents. This drifting ‘soup’ stretches from about 500 nautical miles off the Californian coast, across the northern Pacific, past Hawaii and almost as far as Japan.

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Harvard, MIT to launch free online courses soon

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Harvard University and Massachusetts Institute of Technology have joined hands to launch an ambitious INR3,711 million initiative under which they will offer free online courses to students, a collaboration that will be headed by Indian-origin professor Anant Agarwal.

The new online education platform ‘EdX’ would be overseen by a Cambridge-based not-for-profit organisation and be owned and governed equally by the two universities. MIT and Harvard have committed INR1,856 million each in institutional support, grants and philanthropy to launch the collaboration.

Director of MIT’s Computer Science and Artificial Intelligence Laboratory, Agarwal led the development of the platform.

“EdX represents a unique opportunity to improve education on our own campuses through online learning, while simultaneously creating a bold new educational path for millions of learners worldwide,” MIT president Susan Hockfield said.

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Putting integrity into finance

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Behaviour that lacks integrity leads to value destruction. This paper analyses some common beliefs, actions and activities in finance that are inconsistent with being a person or a firm of integrity.

Each of these beliefs leads to a system that lacks integrity, i.e., one that is not whole and complete and, therefore, creates unworkability and destroys value. Focussing on these phenomena from the integrity viewpoint, we argue, makes it possible for managers to focus on the value that can be created by putting the system back in integrity and correcting the non-value maximising equilibrium that exists in capital markets.

 In effect, integrity is a factor of production just like knowledge, technology, labour and capital, but it is undistinguished — and its effect (by its presence or absence) is huge. We summarise our new positive theory of integrity that has no normative content, and argue that there are large gains from putting integrity into finance — into both the theory and practice of finance. We define integrity as being whole and complete and unbroken. We argue that if finance scholars, teachers and practitioners take this approach to applications in finance, there are huge gains to be achieved.

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A Third Industrial revolution calls for radical changes in our thought and action

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There is a paradigm shift underway in manufacturing, points out The Economist. New technologies in computing, materials and processes such as three-dimensional printing are making fundamental changes in the way things are made, where they are made and by whom, whether workers or smart robots.

Three-dimensional printing, in which a computeraided printing machine deposits successive layers of different materials to produce solid designs and objects, is a key exemplar of this third industrial revolution. The knowledge and service content of the final value of a manufactured product would go up, and the labour cost would go down.

Mass customisation would be in and locating manufacture to low-wage countries would be out. Boston Consulting Group foresees a resurgence of manufacture in a country like the US at the expense of a China, or an India. Several policy ramifications follow.

One, India will find it well-nigh impossible to take the route to prosperity that Asia’s miracle economies, including South Korea and China, followed, of outsourced manufacture to feed demand in developed economies. Ten years from now, much of the manufacture to meet demand in the US and Germany could well take place in those countries themselves. Two, low wages would only be a drag for attracting investments, whereas smart labour and a huge home market would be a big draw.

Three, knowledge would drive the entire economy: not the rote-driven mastery of yesterday’s verities but a ceaseless quest to challenge established wisdom and produce new knowledge. Universities have to not just train manpower but create new knowledge, serving as hubs of new production ideas. Our school and education systems would have to undergo a fundamental change in terms of organisational structure and culture. The way ahead is to universalise not just secondary education but also tertiary education, with extensive modular course offerings.

Four, the financial ecosystem must evolve to mediate funds towards knowledge acquisition, knowledge creation and conversion of knowledge into production. Finally, high-speed broadband must become ubiquitous and cheap, to enable all this.

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Retrospective amendments

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The day after the Budget, 2012 was presented by Pranavda in the Parliament, I bumped into Herambha Shastri.

 After Hi, Hello, How are you rituals, Herambha broached the Budget issue. I was reluctant to discuss.

As a run-up to his commentary on the Budget he said, “If a human being dies, it is believed that to fulfil his unfulfilled wishes he becomes ghost. It means he or she exists even after death so we experience ghost effect sometimes.”

I could not help but ask Herambha, “I didn’t get the hang of what are you referring to?” Herambha clarified “It’s all about ghost; I mean ghost of retrospective amendments by Pranavda, 50 years backward effect, utter nonsense!”

 “Retrospective amendment is required to plug revenue leakage” I said, adding fuel to the fire. “What revenue leakage? Past or future?” queried Herambha. “Of course future!” said I. “How innocent you are! My dear friend Pranavda and his battery of babu colleagues are trying to reduce the ‘deficit’ of past several budgets through these ghost amendments you know. It is beyond anybody’s imagination.

You are aware once you squeeze the toothpaste, you cannot put it back in the tube, but our Finance Minister — Pranavda is a superman; he can do it with retrospective amendments, 50 years backward!” elaborated Herambha. I was just staring at Herambha nodding my head. What else could I say?

“Apart from this, retrospective amendments are also useful to plug administrative undoing in the Income-tax Department. If action could not be taken in the past due to limitation of time, bring retrospective amendment extending the time limit. So taxpayers or rather their consultants have sleepless nights after every budget presentation. It is not just a hanging sword but the sword about to hit on your neck. Look at the functioning of bureaucrats working in the Income-tax Department and the plethora of reassessments initiated after retrospective amendments.”

 “Have you ever come across any retrospective amendment in any Budget in favour of taxpayers requiring the government to pay back the tax collected in the past? If there is one, it would be the rarest of rare amendment so far” said Herambha in one breath. While concluding his reaction to budget he remarked,

“My dear friend, it is normal practice as a prologue to the Budget, the Finance Minister talks about government’s spending in the coming year on various sectors of the economy like industry, agriculture and infrastructure, so on so forth and on various projects. With announcement of each project, the stock market in the country goes up or down, industry leaders on various channels puff their views, favourable or unfavourable. I think all these rituals should be scrapped since eventually most of the government spending goes into scams and scandals running into lakhs of crores leaving the country’s economy in lurch and making the Aam Aadmi’s day-to-day life difficult. So it is useless to make those announcements on the floor of the House. Instead the Finance Minister should just introduce Direct and Indirect Tax Bill on the floor of the House and sit down. What do you say?”

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Lokpal Bill: A bitter pill for political parties.

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It is for the 545 members of Lok Sabha to decide on the Bill. It is not being done in undue haste . . . What were political leaders doing sitting on Anna Hazare’s platform?

— Pranab Mukherjee

Minority reservation and 50% quota are unconstitutional . . . . it will be struck down by the courts on the very first day. Do you want such a legislation?

— Sushma Swaraj

Making the PM accountable to Lokpal is against the soul of the Constitution. No official will take a decision. Won’t the Lokpal machinery blackmail the Government?

— Mulayam Singh Yadav

It’s wrong to bring ex-MPs under the law . . . even Anna did not ask for this. He will consider us slaves and threaten us with dharnas in front of our houses.

— Lalu Prasad

Why are we so scared of an ex-bureaucrat, an excop and somebody who is pretending to be another father of the nation?

— Gurudas Dasgupta

(Source: The Times of India, dated 23-12-2011) (Comments: Why do our politicians of all hues dread scrutiny of their decisions and actions by a strong Lokpal. Daal mein kuch kaala zaroor hai!)

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Stop indiscriminate raids on industry, reform political funding.

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Several captains of industry have complained to the Government that taxmen are harassing India Inc. Harassment is unacceptable and must be halted. Raids and searches that have been rampant this year are blunt and opaque instruments of tax collection. The lack of transparency raises questions on the intent of such operations. Agreed, the Government is desperate to raise revenues in a slowing economy, but that is no justification for indiscriminate raids on businessmen. A system is already in place to scrutinise tax returns of companies and individuals by selecting cases through the computer-assisted scrutiny system. CASS should be strengthened as it minimises interface with taxpayers.

The point is for taxmen to make intelligent and creative use of technology to establish audit trails of transactions. This is eminently feasible if every financial transaction is dovetailed to the permanent account number (PAN), the tax department’s unique identifier. A foolproof PAN and an efficient tax information network will help track evaders and stem black money generation. What is truly troubling about these raids is that they bring back memories of an ugly, pre-reform past, when extraction of tribute through use of the state’s coercive powers was a standard procedure of mobilising political funding, with considerable amounts sticking to those who collect, before the tribute reaches party coffers. Economic reform and modern tax administration should bring such practices to an end. Lingering suspicion on what precisely motivates the state’s coercive machinery to descend on businessmen can be wholly removed only when a system of transparent funding of politics is instituted. Creating this is as important as creating and operating a modern tax information network married to intelligent analytics.

In parallel, the Government should widen the tax base, implement the proposed goods and services tax, correlate, if not unify, the databases of direct and indirect tax payment, lower rates and simplify laws and procedure. This is the best way to improve compliance and raise collections. Let raids and searches join the 97% tax rate.

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Time for elections.

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A dismal year has ended appropriately — with a fiasco in Parliament; the only reform measure of the year stuck in limbo; the stock market down 24 per cent; the business mood at its lowest ebb in years; the weak rupee signalling the gathering storm clouds of external vulnerability; and key economic indicators spelling Trouble with a capital T. If 2010 was the year of scams (or the unearthing of scams), the compensation was that the economic news was better than in the two previous years. Now you can scan the horizon and spot just one piece of good news — food prices.

Two more years of this is more than the country should be asked to take. So — even though it would be considered politically premature by both the Congress and the BJP — it may be best to think in terms of fresh elections. The lengthening list of pending Bills makes it clear that the government is unable to get legislation through Parliament. The Congress’ allies in the ruling coalition are simply not pulling in the same direction. And, for all their assertions of Parliament’s exclusive right to legislate, the present lot of parliamentarians is not interested in any kind of Lok Pal. It is easy to guess why. So much, then, for tackling corruption as the issue of the year. Anna Hazare might find takers again if he echoes Shakespeare and says “a plague on both your houses”.

As for the Prime Minister, he brought with him two reputational assets: a blemishless record of probity, and his historic role in salvaging the economy in the 1990s and setting it on the path to rapid growth. Both assets have depreciated sharply. The aam aadmi would be justified in wondering what use it is to have an honest Prime Minister if he cannot rein in rogue colleagues. As for economic reform and macroeconomic management, there has been little of the first and latterly a poor record on the second. The result is that the liabilities now hold attention — the lack of political weight, and the inability to pull the Congress behind him on key issues. Rather, Manmohan Singh has been forced to pilot the Congress leadership’s big ideas on entitlement even though his past record suggests that he must have little faith in their efficacy. In his frustration, Dr. Singh has taken to blaming the messengers — the media, businessmen — for his manifest inability to deal with the situation. It is symptomatic of the malaise that he can’t (or won’t) sort out the clash between those running the unique identity programme and the National Population Register.

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Accounting for foreign exchange loans.

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Instead of allowing firms to avoid marking foreign- exchange losses to market, regulators must increase clarity.

The National Advisory Committee on Accounting Standards or NACAS has advised allowing Indian companies to keep any losses or gains caused by exchange-rate fluctuation out of the main profit and loss accounts for the time being. This recommendation from NACAS, which is the technical advisory committee to the corporate affairs ministry, follows a period in which the rupee has suffered a sustained loss of value against the dollar, around 20% since August alone. Naturally, this has hurt those Indian companies that have a preponderance of imports in their input mix, or which have dollar-denominated debt. A large number of smaller companies will find it even harder to keep their margins or to roll over their foreign debt. NACAS’ recommendation will work to insulate these companies from some of the consequences of their exposure to currency risk.

At a time when India’s banking sector is under stress, and the sense is beginning to gain ground that non-performing assets (NPAs) in the financial system are not being properly accounted for, moving away from marking to market is a particularly bad idea. Those responsible for regulating accounting procedures should not have to be reminded that their job is not to make it more difficult for people to scrutinise a company’s profit and loss figures, but to make it easier. Keeping foreign exchange losses off the accounts will have major negative consequences systemically. First, it will not encourage responsible behaviour, which should include hedging of excessive currency risk. Second, it will conceal which companies are under stress, and add to the confusion about NPAs in the market, which will only heighten the fear of impending crisis. Third, it is reminiscent of some of the worst excesses of the global financial system three years ago, when brick-and-mortar companies would keep their losses from financial speculation off their balance sheets, and marking to market sometimes seemed optional. It also raises the question of regulatory confusion, as at the same time the main accounting regulator, the Institute of Chartered Accountants of India (ICAI), is suggesting that every private-sector bank branch should be audited only by Reserve Bank-approved auditors, purportedly to examine NPAs at the branch level. (The ICAI is, however, believed to be in favour of keeping marked-to-market exchange-rate losses off the main accounts, too.)

India’s investors need a uniform and clear approach to accounting requirements for companies. Regulation should strive towards making stresses or poor performance more visible. Instead, postponing the introduction of exchange-rate losses reduces clarity. Regulators should not take a call in order to protect those whom they are regulating. They should take decisions on the basis of what increases systemic strength and robustness. Marked-to-market values are the clearest indication of systemic health, and should be encouraged at the earliest.

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Tracking money hidden abroad

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Several questions arise from the UBS affair — involving also Barclays Bank and Société Générale, in London and Mauritius — regarding the reported attempt by Anil Ambani to use funds raised overseas for two of his group’s companies to invest illegally in India, in the shares of a third group company. Some of the questions relate to the role of foreign banks in facilitating illegal transactions abroad by resident Indians, a matter that has come into focus in recent weeks because of yet another foreign bank, HSBC. An ex-employee of HSBC allegedly stole bank data from its Geneva branch, which became available to the authorities — so it has been revealed that this one Swiss branch of one bank had the accounts of no fewer than 700 Indians. Other details are also with the Government, on money stashed away in places like Liechtenstein.

Banks usually pin the blame for wrong transactions on rogue employees. But some of the employees charged with illegal activity have argued in their defence that their employers encourage a culture of undertaking dodgy transactions, which returns the spotlight to the organisations. Is illegal activity being facilitated by foreign banks operating in India — or by ‘briefcase bankers’, based in tax havens across Asia, that come to India looking for people desirous of conducting illegal transactions overseas? And, if so, what pressure is the Government and the Reserve Bank of India putting on these banks and bankers? India is an increasingly attractive banking market, and virtually all the leading international banks are eager to expand their presence here. Surely it should be possible to demand their strict compliance with Indian laws not just here, but globally, and to officially disfavour those organisations that don’t play ball when global compliance is sought. The United States has successfully arm-twisted the same UBS into handing over the names of 4,450 clients for whom it had offered to conceal funds from the eyes of US tax inspectors; why should it be difficult for India to attempt something similar?

Questions have to be posed to Indian regulators as well. The Anil Ambani-related matter was investigated by the Securities and Exchange Board of India (Sebi), and settled last January through a consent order that involved payment of Rs. 50 crore. This is said to be the largest consent fee in Indian history; even if true, it is little more than a flea-bite for a large corporate house. It, therefore, raises questions about the correctness of such consent orders, almost always agreed to without admission of guilt. Such arrangements are usually made in an opaque manner, independent of the public scrutiny that would arise in a case tried in open court. Such questions are current in New York too, where a district court recently rejected a settlement with Citibank by the US Securities and Exchange Commission. The Court order has been contested subsequently, but perhaps someone in India should test Sebi on such matters.

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Food insecurity?

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The Food Security Bill cleared by the Cabinet is likely to hurt the poor more than it helps them. India already has 54.7 million tonnes of rice and wheat lying as stocks with the Centre and the states, 29.7 million tonnes of grain in excess of the buffer stocking norm. Offtake of rice in the current fiscal year has been 74% of the allotment, and that of wheat, 64%. The residual will keep adding to the grain mountain with the Government, which will rot, due to poor storage, be eaten by rats and be pilfered. By cornering huge volumes of grain, the Govt. reduces the supply in the open market, putting upward pressure on prices.

By banning exports every now and then, it depresses prices. This irrationality is set to be replicated on a much bigger scale, if the proposed Food Security Bill becomes law. This is not to say that the goal of ensuring food security for the people is either unworthy or undoable. It is neither. Rather, the Govt. is going about it in the most inefficient, unintelligent fashion possible. The world demand for food is set to climb, thanks to steady growth in the poorer regions of the world and increasing diversion of corn to biofuel.

The right way to guarantee every Indian food security is to act to make India a major source of the additional food the world demands, to invest in agricultural growth: in harnessing water for scientific irrigation, in extension of know-how as well as in R&D, in rural roads that provide vital physical linkage to markets, in electronic spot exchanges, in scientific storage and efficient transport logistics, in developing as close a link as possible between the farmer and the first stage of food processing and in providing proper regulation of financial markets in agricultural commodities, futures, derivatives and insurance.

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Little hope for 2012.

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As India marks two decades of reform, the year just past, 2011, may well go down as the one year in these decades in which the macro management of India’s economy showed the greatest signs of strain. All the major indicators are in the red. Consider, first, the fiscal deficit. The Budget declared it would be at 4.6% of gross domestic product (GDP), which was hailed at the time as a sign that the Finance Ministry wished to strike a blow for fiscal prudence. Yet it appears, now, that the Budget estimates were a worrying underestimation. It is not just that they did not take into account basic facts like that the 3G auctions, which bailed the fisc out last financial year, would not be an option this year. It is also that, over the months since the Budget was presented, there appears to have been no reasonable attempt made to control expenditure. The deficit is likely, thus, to be at least 100 basis points more than the Budgeted level, suggesting, that fiscal responsibility has gone for a complete toss. The Government has shown itself unable to contain its borrowing, which has seen an unprecedented 25% increase over the Budgeted level.

The rupee, meanwhile, saw a steep fall in its value vis-à-vis the US dollar. It was previously overvalued, judging by real effective exchange rate calculations — but it is nevertheless the case that a 20% depreciation over just four months has delivered serious shocks to the system. Meanwhile, as global markets slow, it is far from certain that the usual beneficiaries of a weaker rupee — India’s exporters — will be able to gain. Imports, however, will become more expensive, thinning corporate margins and making inflation harder to control. Another headline number that reveals poor macro-economic management is the current account deficit (CAD). At the time of the 1991 crisis, India’s CAD was 3% of GDP. That figure looks modest in comparison to the 3.6% of GDP the economy posted for the first half of the current year. Slowing export growth as seen in the last couple of months means keeping CAD at last year’s level of 2.6% appears difficult this year. Then, of course, there is inflation, which continues to hover around 9%.

The macro-economic mismanagement these numbers reveal is reflective of poor management all through. The coal sector has been hit hard by political troubles, environmental red tape and land acquisition norms. Only 9 km of roads are built a day — as opposed to a target of 20 km. Every kind of major legislation has been on hold: pension reform and the companies Bill. Even foreign direct investment in multi-brand retail, which did not require Parliament’s approval, has been shelved.

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IRS offshore programs produce $ 4.4 billion to date for nation’s taxpayers; offshore voluntary disclosure program reopens.

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The Internal Revenue Service reopened the offshore voluntary disclosure program to help people hiding offshore accounts get current with their taxes and announced the collection of more than $ 4.4 billion so far from the two previous international programs. The IRS reopened the Offshore Voluntary Disclosure Program (OVDP) following continued strong interest from taxpayers and tax practitioners after the closure of the 2011 and 2009 programs. The third offshore program comes as the IRS continues working on a wide range of international tax issues and follows ongoing efforts with the Justice Department to pursue criminal prosecution of international tax evasion. This program will be open for an indefinite period until otherwise announced.

The third offshore effort comes as the IRS has collected $ 3.4 billion so far from people who participated in the 2009 offshore program, reflecting closures of about 95% of the cases from the 2009 program. On top of that, the IRS has collected an additional $ 1 billion from upfront payments required under the 2011 program. That number will grow as the IRS processes the 2011 cases.

In all, the IRS has seen 33,000 voluntary disclosures from the 2009 and 2011 offshore initiatives. Since the 2011 program closed last September, hundreds of taxpayers have come forward to make voluntary disclosures. Those who have come in since the 2011 program closed last year will be able to be treated under the provisions of the new OVDP program. The overall penalty structure for the new program is the same for 2011, except for taxpayers in the highest penalty category.

For the new program, the penalty framework requires individuals to pay a penalty of 27.5% of the highest aggregate balance in foreign bank accounts/ entities or value of foreign assets during the eight full tax years prior to the disclosure. That is up from 25% in the 2011 program. Some taxpayers will be eligible for 5 or 12.5% penalties; these remain the same in the new program as in 2011.

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Starbucks, Amazon and Google to face MPs over Tax

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MPs will quiz executives of Starbucks, Google and Amazon about how they have managed to pay only small amounts of tax in Britain while racking up billions of dollars worth of sales here.

The Public Accounts Committee (PAC), which is charged with monitoring government financial affairs, has invited the companies to give evidence amid mounting public and political concern about tax avoidance by big international companies.

Britain and Germany announced plans to push the Group of 20 economic powers to make multinational companies pay their “fair share” of taxes following reports of large firms exploiting loopholes to avoid taxes.

Starbucks had paid no corporation or income tax in the UK in the past three years.

The world’s biggest coffee chain paid only £8.6 million in total UK tax over 13 years during which it recorded sales of £3.1 billion.

(Source: The Economic Times dated 13-11-2012)

                                                        (Comment: Do we want a similar situation in our country?)
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Comprehensive Commentaries on FCRA 2010

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Title : Comprehensive Commentaries on FCRA 2010

Author : Manoj Fogla

Pages : 444

Price : Rs.895

Foreign Contribution Regulation Act is a complex piece of legislation, often not fully understood by trustees as well as practising Chartered Accountants. There is very little literature available on this subject and there is hardly any book that deals with the subject in depth. Therefore, this book fills a void and is a welcome attempt to provide information and interpretation on FCRA for the benefit of all persons affected by this Act and in particular, voluntary organisations receiving foreign funding and contribution.

The book seeks to address the need, particularly of grassroot level organisations, which are doing yeoman work but struggle to understand the nuances of this legislation where the consequences of non-compliance can be severe. The book also discusses applicability of FCRA to unregistered ‘Self-help Groups’ and ‘Communitybased Organisations’.
The first chapter of the book is appropriately ‘Frequently Asked Questions (FAQs) on FCRA’. The book is comprehensive in its coverage and is divided into 46 chapters. Though the book does not have an index it has detailed contents, facilitating the search for the relevant information.
The book covers all the controversies under FCRA ranging from opening of multiple bank accounts, deposits from commercial transactions, applicability of the law to liaison offices, operation of revolving funds, anonymous donations, admission of foreigners on the Governing Board, etc. It also covers various procedural aspects, including procedure for obtaining and renewal of registration, prior permission for accepting foreign contribution, change in bank account, etc. It also has a chapter on online filing of application for registration giving a step-by-step process to be followed along with the screen shots at every stage.
It has 30 Annexures, including a useful Annexure tabulating the relevant provisions under the old FCRA, 1976 and under the current FCRA, 2010. An interesting Annexure reproduces the Charter issued by the Ministry of Home Affairs providing guidelines for Chartered Accountants auditing organisations covered by FCRA.
Though, the book is comprehensive in its coverage, the analysis and commentary is very often of a basic skeleton nature. One would have hoped for a more indepth analysis and discussion on topics, (and there are several of those in FCRA) where there could be more than one interpretation.
Perhaps that is done intentionally in favour of simplicity and to provide in an easy-to-read language all relevant information to persons covered by this enactment.
The book is published jointly by Financial Management Service Foundation (fmsf) and Voluntary Action Network India (VANI). The author and the publishers need to be complimented for spreading awareness on this opaque subject and fulfilling a crying need.
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Marwari Businesses at Crossroads

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A leading Gujarati industrialist recently asked me the reason for the drop in the pecking order of Marwaris in India’s top business groups. We tried to name a few potential next generation leaders from the community. Except for Kumar Birla, Prashant Ruia, Rajiv Bajaj, all now above 40 years, none else came to mind.

Rewind to early 20th century. The Marwaris exemplified a feisty and formidable spirit— traders who escaped the barren business landscape of their homes and created trading outposts in remote areas. Many of them had settled in Kolkata, which emerged as a commercial hub and offered manifold trading opportunities. Over time, they tried their hand at manufacturing which, after Independence, was clearly the future. But, as long as the manufacturing activity involved commodities and the economy was protected, it was fine. The moment there was a shift in the ruling industry paradigm, the pre-dominant Marwari business construct seems to have got challenged.

The community is currently exercised by an unavoidable question: Has the spirit of Marwari enterprise started flagging? The provocation for such introspection stems from the rise of a new entrepreneurial class in India which comprises very few Marwaris and consists of primarily Gujaratis, Punjabis and South Indian industrial groups. Over the past few years, the leaders in emerging industry categories— infrastructure, pharmaceuticals, information technology, telecom—have been markedly non-Marwaris.

(Source: Times of India dated 14-11-2012)
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Recent Controversies in Cross Border Taxation

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Subject : Recent Controversies in Cross Border Taxation

Speaker : Pinakin Desai, Chartered Accountant

Date : 11-7-2012

Venue : Indian Merchant Chambers, Mumbai

 The first Lecture Meeting of BCAS for the year 2012- 13 was addressed by Pinakin Desai on the topic ‘Issues in Cross-Border Taxation’ on 11th July 2012. Deepak Shah, Society’s newly elected President, welcomed everyone on behalf of BCAS. He shared with the august gathering the focus areas of BCAS for the upcoming year — to expand and enrich membership experience, to enhance and strengthen relationships and to provide mentorship — and invited whole-hearted involvement and participation of all BCAS members.

After an overwhelming introduction by the President, Mr. Desai took the stage to do full justice to it. Given the recent upheaval in the tax world, many new controversies have added themselves to an already long list. Mr. Desai, in his talk, discussed some of the most controversial ones. These are briefly discussed below:

1. Overview of General Anti-Avoidance Rules (‘GAAR’)

As per the current GAAR provisions, an arrangement would be termed as ‘impermissible avoidance agreement’ if its main purpose is obtaining tax benefit and it satisfies any of the four conditions specified in section 96(1) of the Income-tax Act, 1961 (‘Act’). The speaker opined that the condition that the main purpose be obtaining tax benefit was necessary to be provided and is provided by most countries globally. However, presently, the term tax benefit is very loosely worded and could lead to unreasonable conclusions.

Section 96(2) provides that while the objective of an arrangement as a whole may not be to obtain tax benefit, if a step in or a part of the arrangement has been inserted only to obtain tax benefit, the entire arrangement shall be presumed to obtain tax benefit.

GAAR can be used in addition to or in conjunction with other specified anti-avoidance rules already forming part of the Act. Benefit of the tax treaties would be subject to GAAR applicability.

2. Consequences of GAAR

Consequences of invoking GAAR have been laid down in section 98. Draft guidelines on GAAR have been released on 28th June 2012 giving examples of cases where GAAR is invoked. The speaker opined that there appeared to be no co-relation between the transactions and the consequences that followed. There were no principles laid down in the draft guidelines for reading the transactions and applying the appropriate consequence to it.

Further, the consequences per section 98 are not exhaustive; the Assessing Officers have been given wide powers to take appropriate actions where GAAR gets invoked. This is a dangerous tool in the hands of the officers as there is no saying as to how it will be used.
Lastly, it is not clear as to who will GAAR apply to — would it be limited to the parties carrying out the impermissible arrangement or could it be extended to a person who may be only liable to deduct tax at source?

3. Draft GAAR Guidelines:

 Examples The draft guidelines on GAAR have been released for public consultation. The speaker urged all present to actively contribute to the same.

The guidelines would have the same force as the statute to the extent that they are not inconsistent with the statute. The guidelines lay down monetary thresholds for invoking GAAR. GAAR is made effective to income accruing or arising on or after 1st April 2013, which is in sync with international practices. However, there are no grandfathering provisions for existing structures/transactions which may result in income accruing or arising post GAAR becoming applicable.
Key take-away of guidelines:
  •  GAAR provisions codify substance over form doctrine.
  •  Onus of proof is on tax authority.
  •  Special Anti-Avoidance Rules (‘SAAR’) usually override GAAR; exception being abusive behaviour that defeats a SAAR.
  •  If arrangement is only partly impermissible, GAAR is applicable to the part, not the whole.
The speaker, thereafter, briefly dealt with examples in the guidelines which seek to clarify the applicability of GAAR.
He observed that while the guidelines explained tax evasion and tax planning, they failed to bring out the distinction between tax evasion and tax mitigation, thereby leaving ambiguity for borderline cases. Thus, the guidelines still leave ambiguity on what qualifies as tax avoidance. Further, the examples are not exhaustive in any case and do not address the various peculiar transactions.
With respect to FIIs, the guidelines clarify that GAAR will not be applicable to FIIs if the FII opts not to claim treaty benefits. GAAR would also not extend to non-resident investors in FIIs. However, presently, there is no legal provision for this, but only the guidelines.
While SAAR overrides GAAR, one of the questions left open by the guidelines was whether the limitation of benefit clause in a double tax avoidance treaty would qualify as SAAR? Likewise, while guidelines gave examples demonstrating that treaty shopping is impermissible if without commercial substance, they also opened a Pandora’s Box of unaddressed challenges. Some of these issues were discussed by the learned speaker.
The guidelines have recognised the ‘choice principle’ in some examples, i.e., if a person undertakes a transaction purely as a matter of commercial choice, without the motive of tax evasion, GAAR would not apply. However, the speaker opined, that a number of other examples in the guidelines are inconsistent with this principle.
The guidelines should further clarify the following:
  •  GAAR is not a revenue earning measure; GAAR deals with abuse. l Respect business decisions and choice principle.
  •  Notional taxation is not permitted. l Claim of expenses to be evaluated on tax provisions. GAAR covers only artificial claims; not real expenditure.
  •  Co-relative adjustment: a natural hedge to protect reasonable business choice?
  •  Citing of a counterfactual (alternative/nonabusive) arrangement by the tax officer should be required.


4. Indirect transfer of assets in India — Section 9

Transfer outside India of shares of a company set up outside India by a non-resident of India to another non-resident have been made taxable in India of the company whose shares are being transferred derives its value substantially from Indian assets.

Meaning of the term ‘deriving value substantially’ used in the statute is not clear. This has thrown up a variety of issues. For example, say, A holds shares of Company X listed on the New York Stock Exchange (‘NYSE’). Company X holds Company Y which is located outside India and has operations in India and China. In this case, would sale of shares of Company X by A on the NYSE attract capital gains tax in India?
Some of the effects, perhaps intended, of these provisions are:
  • Merger of a foreign company having operations in India with its sister concern located outside India could now lead to capital gains tax in India for the holding company of the merging entities. Such transactions were till date outside the scope of Indian tax laws.
  •  Issues with respect to what would be the cost of acquisition and what would be the period of holding of the ‘deemed Indian assets’ in some situations are as yet unanswered.
  •  Indirect transfers may get treaty protection if the actual asset being transferred is located in a beneficial treaty country.
Reassessment of income for foreign assets
Whether the extended time limit of 16 years for assessees having undisclosed foreign assets would apply to cases of indirect transfer of Indian assets? Likewise, the time limit for reassessment of representative assessees has been extended to 6 years. While ideally, these limits should not apply to indirect transfers; it is difficult to be confident of this under the reigns of the Indian Tax Department.

5.    Other provisions

(i)    Software payments: The purpose of amendment to section 9(1)(vi) appears to bring into tax net ‘shrinkwrapped software’. However, there is no change in treaty position and hence, if treaty provisions made a transaction non-taxable, it will continue to be not taxable. The amendment will, however, apply to non-treaty and domestic transactions.

(ii)    Domestic transfer pricing: While international transfer pricing applies to foreign company holding more than 26% shares of Indian company, domestic transfer pricing may apply to foreign company holding more than 20% shares of Indian company. Disconnect in domestic transfer pricing provision could capture director’s fees, managerial remuneration allocated to Indian PE of a foreign company and paid by the foreign company.

(iii)    Taxation of foreign dividends at concessional rate (section 115BBD): This section does not cover deemed dividend u/s.2(22)(e). Further, section 115BBD does not allow deduction of expenses incurred. In many cases, the expenditure incurred, which is disallowed by section 115BBD, may be higher than the benefit offered by the concessional tax rate of section 115BBD. Further, MAT provisions still apply to this income.

(iv)    Foreign currency borrowings (section 115A r.w.s. 194LC): If loan agreement is executed prior to 1st July 2012 but monies are actually borrowed after that date, section 115A benefits would apply. While section 115A requires approval of Central Government, External Commercial Borrowing (‘ECB’) is permitted under general FEMA approval and does not require a specific Central Government approval. Clarifications/instructions clarifying this issue may be expected.

(v)    Issues arising out of amendments to section 195(7), concessional tax rate on LTCG from sale of unlisted securities by non-residents, requirement of tax residency certificate, section 90(3), annual statement requirement in respect of Liaison Offices were also lightly touched upon.

SC Draws Medias Laxman Rekha, Lauds Crucial Role

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The SC on Tuesday gave its nod for an accused to seek the postponement of media reporting of a trial if it interferes with the administration of justice.The bench of Chief Justice S. H. Kapadia and Justices D. K. Jain, S. S. Nijjar, R. P. Desai and J. S. Khehar said they (orders of postponement ) should be passed only when necessary to prevent real and substantial risk to the fairness of the trial, if reasonable alternative methods or measures such as change of venue or postponement of trial will not prevent the said risk and when the salutary effects of such orders outweigh the deleterious effects to the free expression of those (media) affected by the prior restraint order. But the SC said the media had a right to appeal against postponement orders. Such orders of postponement should be for a limited duration and without disturbing the content of the publication. The order of postponement will only be appropriate in cases where the balancing test otherwise favours nonpublication for a limited period, Justice Kapadia, who authored the 56-page judgment on behalf of the bench,said.

Importantly, the SC said constitutional courts could temporarily prohibit media statements if they had the potential to prejudice or obstruct or interfere with the administration of justice. The bench said the doctrine of postponement was for the benefit of journalists, who otherwise would be on the wrong side of contempt of court law. The doctrine of postponement will serve as a Laxman Rekha for journalists and warn them not to cross it, the CJI said.

(Source: Times of India dated 12-09-2012)
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Indian Economy – The Vital Signs

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To the long record of government leaders promising jam tomorrow, we must add the prime minister’s forecast on Independence Day that GDP growth this year will be better than last year’s 6.5 %. Now, three months later, the finance minister has lowered expectations to the 5.5 % – 6.0 %t range, but he expects growth next year to be back upto 7 %. In other words, “jam tomorrow” once again. If you keep predicting this till kingdom come, it will eventually turn out to be true. But will it be next year, or the year after, or still later? And has the economy bottomed out, as Montek Singh Ahluwalia says, although the latest monthly industrial production, trade and inflation figures are as depressing as any? Could we, instead, be heading for more bad, indeed worse, news? The pointers to the future are the macroeconomic numbers – the fiscal deficit, the trade deficit, and the level of inflation – which you could say are the equivalent of the system’s pulse rate, blood pressure and temperature. All of them are higher than normal, or what is desirable; indeed they are higher than what is being recorded by most other economies. And all three readings have stayed stubbornly high despite the government’s ministrations. In short, India’s economy has been and continues to be off balance. The more accurate metaphor would be “over-heated”, except that it is odd to say so when growth is slower than it has been in a decade. Still, the logical conclusion would be that the system needs to slow down some more, so that its vital signs get closer to normalcy, before structural adjustment measures (ie., real reforms) prepare the ground once again for faster growth. In short, not jam tomorrow but more pain before (at some point) the good times return.

(Source: Weekend Ruminations by T.N. Ninan in Business Standard dated 17-11-2012).
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London risks losing its status as world’s top financial centre.

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London risks losing its status as the world’s top financial centre as the INRNaN-trillion interest-rate fixing probe follows a series of market abuses by banks that eroded trust in a city already shrinking faster than rivals. JPMorgan Chase & Co’s trading loss of at least INRNaN billion, the alleged INRNaN billion fraud at UBS and the investigation of at least a dozen banks including Barclays for rigging global interest rates all happened in London in the last year. The effect is taking a toll on the capital of a country enduring its first double-dip recession since the 1970s, which fired more financial-services workers than any other country in 2011 and again this year.

“My heart sinks every time there is a scandal and the perpetrators are in London, even if it is not always the UK’s responsibility, it is under our noses,”

Sharon Bowles, chairwoman of the European Parliament’s economic and monetary affairs committee, said in an interview.

“There is an effect on the UK’s reputation, and it reinforces the view that even after all the apologies there is much to do.”

London, ranked as the world’s number one financial centre by research firm Z/Yen Group, was where American International Group and Lehman Brothers Holdings booked transactions that helped lead to their downfall. This week saw Bank of England and UK government officials tied to the interest-rate fixing scandal that cost Robert Diamond, London’s best-known banker, his job at Barclays. With the European debt crisis on its doorstep, London now faces calls to cull its bonus culture, rein in risk-taking and beef up a light-touch regulatory system that fuelled a decade long boom.

The danger for London is that Europe is preparing to set up its own regulator for banks, which may exclude the UK or disadvantage firms based in the city. Domestically, the industry is losing longstanding political support from both Conservative and Labour parties — as well as the public. Home to about 250 foreign banks, London is the world’s biggest centre for foreign-exchange trading and cross-border bank lending and trades INRNaN trillion of interest derivatives daily, according to the Bank for International Settlements.

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Liebor? — Determination of the LIBOR must be above suspicion.

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The scandal involving the London Interbank Offered Rate (Libor) — which serves as a benchmark for determining the rate of interest on a great many financial transactions — has already cost Barclays, the UK’s third-biggest bank, dear. It has been fined nearly half-a-billion dollars and lost three powerful men at the top, including CEO Bob Diamond. But the damage to date may be only the tip of the iceberg. If a 2008 internal memo published by Barclays is to be believed, manipulation and subterfuge are not the exclusive preserve of banks. The rot goes much deeper. Barclays, so it would seem, was only taking its cue from the Bank of England and the government. Both wanted to keep interest rates low to stimulate economic activity in the aftermath of the 2008 crisis.

What better way to do that than have friendly banks deliberately under-report the actual rate of interest in order to depress Libor, the market benchmark used to price financial contracts, globally? If true, the implications are much more serious and go well beyond the UK. Allegations of Libor rigging are not new.

For now, Barclays’ claim that it had official sanction to manipulate the rate and report it lower during the crisis has not found many takers. But there is no denying that after the collapse of Lehman Brothers when banks’ borrowing costs increased dramatically, managers and governments were keen to shore up confidence, tempting banks to present a rosier-than-actual picture by reporting lower-than-actual interest rates. There is also no denying the nexus between Western governments and banks.

Most US Treasury Secretaries have cut their teeth on Wall Street. But the Barclays scandal shows the nexus could potentially be wider and far more damaging than suspected so far. Libor determines the interest rate on transactions to the tune of close to INRNaN trillion globally. Like Caesar’s wife, it must be above suspicion.

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Campus Placement Programme for Chartered Accountants

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ICAI organised campus placement programmes in various cities during the months of February- March, 2012. Report in respect of this programme is on page 1749 of CA Journal for May, 2012. Highlights of the programmes are as under.

(i) The number of participants and jobs offered

Feb-Mar, 2012

Number of candidates registered

9717

Number of interview teams

12

Number of organisations

76

Number of jobs offered

874

Percentage of jobs offered
vis-à-vis registered candidates

9.00%

(ii) Highest salary offered

(a) For Domestic Posting r 14 lac P.A.

(b) For International Posting r 25 lac P.A.

(c) Minimum salary for Domestic Posting r 4 lac P.A.

(iii) Recruitments from some major cities

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Third industrial revolution calls for radical changes in our thought and action.

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There is a paradigm shift underway in manufacturing, points out The Economist. New technologies in computing, materials and processes such as three-dimensional printing are making fundamental changes in the way things are made, where 651 (2012) 44-A BCAJ they are made and by whom, whether workers or smart robots.

Three dimensional printing, in which a computeraided printing machine deposits successive layers of different materials to produce solid designs and objects, is a key exemplar of this third industrial revolution. The knowledge and service content of the final value of a manufactured product would go up, and the labour cost would go down. Mass customisation would be in and locating manufacture to low-wage countries would be out. Boston Consulting Group foresees a resurgence of manufacture in a country like the US at the expense of a China, or an India. Several policy ramifications follow.

One, India will find it well-nigh impossible to take the route to prosperity that Asia’s miracle economies, including South Korea and China, followed, of outsourced manufacture to feed demand in developed economies.

Ten years from now, much of the manufacture to meet demand in the US and Germany could well take place in those countries themselves. Two, low wages would only be a drag for attracting investments, whereas smart labour and a huge home market would be a big draw. Three, knowledge would drive the entire economy: not the rote-driven mastery of yesterday’s verities but a ceaseless quest to challenge established wisdom and produce new knowledge. Universities have to not just train manpower but create new knowledge, serving as hubs of new production ideas. Our school and education systems would have to undergo a fundamental change in terms of organisational structure and culture. The way ahead is to universalise not just secondary education but also tertiary education, with extensive modular course offerings.

Four, the financial ecosystem must evolve to mediate funds towards knowledge acquisition, knowledge creation and conversion of knowledge into production. Finally, high-speed broadband must become ubiquitous and cheap, to enable all this.

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India’s low ranking in higher education is a matter of serious concern

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The QS world ranking of universities has no place for any Indian institution among the top 200.

Unlike China, Hong Kong, Taiwan, Singapore, Korea, Malaysia, South Africa and Brazil. (Source: The Economic Times dated 13-09-2012) 120 (2012) 44-B BCAJ (Comment: We do not promote meritocracy in India. Politics of reservation in all walks is a big hindrance to promotion of meritocracy.)

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Don’t delay GAAR : Do it properly – but do it now

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There is no question that the proposed General Anti- Avoidance Rules, or GAAR, need to be reviewed. To the extent that they give excessive discretion to the tax assessment authorities, they are clearly unsuitable for a country like India where the tax department has often been accused of harassing its taxpayers. Compliance with tax requirements is difficult enough currently; allowing more levers for potential harassment to income tax officers is a dangerous step. The government’s move to set up a committee headed by tax expert Parthasarathi Shome was, thus, welcome. The Shome committee’s draft report, which was released on Saturday, however, is worrying in its own way. The delay by three years for “administrative” reasons, in particular, is questionable.

Remember, GAAR was always proposed to be part of the new direct taxes code, which was supposed to be in force by now. What additional preparation time will three years gain? It merely kicks the responsibility for introducing GAAR and calming market participants over to the next government. It strains belief to assume that, by that time, distrust of the income tax authorities will have ended. GAAR needs to be redrafted to ensure that excessive discretion is minimised — but six months is long enough to do that. The new tax policy should be in place by the next Budget. To try any less hard would be to betray the core purpose of GAAR: to serve as part of a co-ordinated, international crackdown on the sources and destinations of unaccounted-for and tax-avoiding money. This was a compact between the countries of the G20 post the financial crisis, when government resources were crucial to staving off the worst that could happen; and it is clearly something that voters desire. The government should do it properly, and do it now.

Some other aspects of the recommendations are equally questionable. For one, there is insufficient recognition that the incentivisation of “foreign” investment from Mauritius must end. The tax treaty that India currently has with Mauritius must be renegotiated, and the grandfathering of investment made under more lax rules must not also perpetuate the “evergreening” of tax-free pipelines even after laws change. Entities investing in India must be properly regulated, even if in low-tax environments like Singapore, and should meet more stringent know-your-customer requirements than has hitherto been expected of those from Mauritius. The “Mauritius route” is unsustainable, and must be closed. A clear timeline and method to do so must be laid out.

Finally, there is the question of tax on short-term capital gains from listed securities, which the panel suggests be ended. This – yet another attempt to boost listed securities as destinations for India’s savings – is problematic in isolation. However, the Shome committee suggests that securities transaction taxes receive a compensating hike, in order to ensure no loss of revenue to the government. That has some points in its favour: a securities transactions tax does have the advantage of ensuring that more people come into compliance with the law. It serves as an incentive against speculation. It is simple. These are all positive qualities. In the end, it must be remembered that India’s tax system is starkly regressive, and taxation is too easy to avoid. The concerns of equity must be borne in mind when designing taxation. GAAR is an essential tool towards equalizing the tax burden, and must not be watered down beyond recognition.

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Be Constructive – What are the BJP’s alternatives to the government policies it bashes?

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Ordinary people won’t be happy with the politics of obstructionism. Recently, the BJP stalled Parliament at taxpayers’ cost. Then it decided to take anti-UPA protests to the streets, along with reforms-bashers like the Left. The result was partially effective “Bharat bandh” coming at the aam aadmi’s cost. The biggest irony is that the BJP, thanks to which Parliament’s monsoon session was washed out, now wants a special session to discuss the UPA’s nod to retail FDI!

Certainly, the main opposition party should seek answers from the government on important issues, including corruption. However, the place for such interrogation is Parliament. The BJP is also within its rights to disagree with government initiatives, be it subsidy reduction or retail reform. But to come across as neither interested in debate nor offering alternatives to the policies it bashes, doesn’t bolster the party’s image. The BJP seems more concerned with destabilising the government than with resolving issues.

Why does the BJP limit its critique of the diesel price hike or retail reform to making noise? Surely, it should also prescribe how it thinks India should promote much-needed fiscal consolidation. Petrol prices rose several times under the tenure of the NDA, which endorsed price decontrol in 2002. Nor was the NDA hostile to retail reform, as pointed out by commerce minister Anand Sharma. Opposing multi-brand retail FDI today, the BJP must explain how else investors can be made to help boost the agri-value chain. Or how direct contact between farmers and buyers could be facilitated to raise farm incomes and lower prices for consumers.

When ruling at the Centre, the NDA brandished pro-growth policies to claim India was shining. Today, the BJP comes across as wilfully disowning a modern economic vision in tune with fastglobalising India. Tomorrow, if it comes back to power, can it afford to blink at reforms and let the economy go further down the tube? It’ll also serve the nation better by providing constructive opposition rather than fuelling political uncertainty.

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New Publications

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The following publications have been released : (Page 522)

a) Compendium of Guidance Notes on Accounting (As on 1-7-2012)

b) Technical Guide on Audit of NBFC (Revised Edition 2012) c) WIRC Reference Manual (2012-13)

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Direct entry to CA course

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The Ministry of Corporate Affairs has given its final approval to the Amendments to Chartered Accountants Regulations, 1988 which have been notified on 1st August, 2012.

Amongst other provisions, the amendments also stipulate Direct Entry Scheme to CA Course. Henceforth, Commerce Graduates/Post Graduates with prescribed percentage of marks and other students who have passed the Intermediate level examination or its equivalent examination by whatever name called, conducted by the Institute of Cost Accountants of India or by the Institute of Company Secretaries of India, shall be exempted from passing the Common Proficiency Test (CPT) if they wish to join the C.A. course. The details of the Scheme have been hosted on the Institute’s website and also published on Pages 507-517 of C.A. Journal for September, 2012.

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