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Tuesday, June 16, 2015
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Facilities for persons other than individual

The following remittances by persons other than individuals shall require prior approval of the
Reserve Bank of India.
Donations exceeding one percent of their foreign exchange earnings during the previous three financial years or USD 5,000,000, whichever is less, for

  • Creation of Chairs in reputed educational institutes,
  • Contribution to Funds (not being an investment fund) promoted by educational institutes; and
  • Contribution to a Technical Institution or Body or Association in the field of activity of the donor Company.

Commission per transaction, to agents abroad for sale of residential flats or commercial plots in India exceeding USD 25,000 or five percent of the inward remittance whichever is more.
Consultancy: Remittances exceeding USD 10,000,000 per project, for any consultancy services in respect of infrastructure projects and USD 1,000,000 per project, for other consultancy services procured from outside India.
Pre-incorporation expenses: Remittances exceeding five per cent of investment brought into India or USD 100,000 whichever is higher, by an entity in India by way of reimbursement of pre- incorporation expenses.
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Salary Remittance

For a person who is resident but not permanently resident in India and
  • Is a citizen of a Foreign State other than Pakistan; or
  • Is a citizen of India, who is on deputation to the office or branch of a Foreign Company or Subsidiary or Joint Venture in India of such foreign company, may make remittance up to his net salary (after deduction of taxes, contribution to provident fund and other deductions).
    Explanation: For the purpose of this item, a person resident in India on account of his employment or deputation of a specified duration (irrespective of length thereof) or for a specific job or assignments, the duration of which does not exceed three years, is a resident but not permanently resident.
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    AD banks may now allow remittances by a resident individual up to USD 250,000 per financial year for any permitted Current or Capital account transaction.
    The permissible capital account transactions by an individual under LRS are:

    • Opening of foreign currency account abroad with a bank;
    • Purchase of property abroad;
    • Making investments abroad; setting up Wholly owned subsidiaries and Joint Ventures abroad;
    • Extending loans including loans in Indian Rupees to Non-resident Indians (NRIs) who are relatives as defined in Companies Act, 2013.
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    Irdai on Foreign Reinsurers

    Foreign Reinsurance need to have a minimum credit rating of a stable outlook from a renowned international agency for at least five years to set up branch offices in India, Insurance Regulatory and Development authority of India (IRDAI) said in its draft norms on registration and operation of branch offices. It also said applicants should have a minimum net owned fund of `5,000 crores at any time.
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    Flooring/tile terracing inclusive of construction is eligible for abatement in respect of Construction Services

    CESTAT, New Delhi Bench held that where assessee was providing Construction services (inclusive of completion and finishing) and scope thereof was 'plinth leveling, slab casting, plaster work (inner and outer), flooring and tiles terracing', said services were eligible for abatement in respect of construction services.
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    Separately registered units engaged in integrated manufacturing deemed as 'single factory' for Cenvat credit

    The High Court of Karnataka held that where three separately registered units are using a common input in continuous, interconnected and integrated process for common share, they constitute a single factory and CENVAT cannot be denied ton ground that credit is being availed by one factory and material inputs are used by three factories.
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    Mere visit of officers of Foreign Service Provider in India doesn't impose Service Tax liability on service provider

    The High Court of Karnataka held that a foreign company having no business establishment or operations in India, cannot be asked to pay service tax on services provided by it to Indian recipient merely because of a visit of its officers in India in course of providing service under Section 65(31), 66, 66A and 68 of Finance Act, 1994.
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    Goods cleared on Job-work basis can't be considered as exempted goods

    The High Court of Madras held that goods cleared without payment of duty on job work basis under Notification 214/86-C.E., dated 25-3-1986 cannot be considered as 'exempted goods' and therefore, job-worker is entitled to credit of inputs used therein and rule 6 of CENVAT Credit Rules, 2004 cannot be invoked to demand reversal/payment
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    Clarification- Cenvat credit in transit sale through dealer

    Cenvat excise credit in transit sale through dealer has been permitted on the basis of invoice of the Manufacturers or Importers invoice, on the basis of registered dealer invoice, even if the goods are sold in transit in full or in parts.The sale in transit in full can also be done by dealer not registered with Central Excise and based on invoice of manufacturer or importer and Cenvat credit can be availed by purchaser.
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    HC rejects creditor's objection to amalgamation scheme as there was unequivocal promise to pay off debt

    • The High Court of Andhra Pradesh held as follows here some Unsecured Creditors of Petitioner-company challenged proposed scheme of amalgamation on account of non- convening of meeting of creditors, in view of fact that debts belonging to them were doubtful and, moreover, there was unequivocal promise to pay debts if found to be true and binding on petitioner, objection raised deserved to be set aside

    • Where swap ratio given to shareholders of transfer or companies was based on report of auditors which was accepted by majority shareholders, proposed scheme of amalgamation could not be challenged on ground so that swap ratio adopted was inappropriate
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    Share Certificate Authentication

    In case, a company does not have a common seal, the Share Certificate shall be signed by two director or by a director and the Company Secretary , wherever the company has appointed
    a Company Secretary.If the composition of the Board permits of it, at least one of the aforesaid two directors shall be a person other than a Managing director or a whole
    time director.
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    Companies Amendment Act, 2015

    Key changes, as are effective from 29th may 2015, are as under:
    Certificate of Commencement of Business Certificate of Commencement of Business
    Doing away with the requirement for filing a declaration by a company before commencement of business or exercising its borrowing powers.
    Common Seal Optional :-
    Making common seal optional and consequential changes for authorization for execution of documents.
    Board Regulation Confidentiality :-
    Prohibiting public inspection of Board resolutions filed with the Registry under Section 177(g)
    Punishment for Contravention of section 73 or Section 76 :-
    A new section 76A introduced to heavily punish and imprison company and officials for non compliance or for non repayment of deposits.
    Prohibition to declare dividend :-
    No Company shall declare dividend unless carried over Previous losses and Depreciation not provided in previous year or years, are set off against profit of the company for the current year.
    Fraud Reporting by Auditors :-
    If an auditor of a company in the course of the performance of his duties as auditor, has reason to believe that an offence of fraud involving such amount or amounts as may be prescribed, is being or has been committed in the company by its officers or employees, the auditor shall report the matter to the Central Government within such time and in such manner as may be prescribed.In case of a fraud involving lesser than the specified amount, the auditor shall report the matter to the audit committee constituted under Section 177 or to the Board in other cases within such time and in such manner as may be prescribed.The companies, whose auditors have reported frauds under this sub-section to the Audit Committee or the Board but not reported to the Central Government, shall disclose the details about such frauds in the Board's report in such manner as may be prescribed.
    Related party transactions (Section 177) -
    New provision :-The Audit Committee may make omnibus approval for Related Party transactions proposed to be entered into by the company subject to such conditions as may be prescribed.
    Related party transactions(Sec 188) :-
    Approval needed only by an Ordinary Resolution and not by Special Resolution.

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    CCI issues cease and desist order to DLF

    The Competition Commission of India held that conduct of DLF of demanding additional payments from buyers pursuant to increase in super area and arbitrary cancellation of allotment was an unfair trade practice. Thus, terms and conditions imposed through the Buyer's Agreement were abusive being unfair within the meaning of Section 4(2)(a)(i) of the Competition Act, 2002 ('the Act').
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    Insider Trading norms

    Securities and Exchange Board of India (SEBI) prescribes format for disclosure of securities held by promoter, KMP and Directors under Insider Trading Norms.

    1. The Companies shall also ensure that:

    • Formulated and published (on its official website), code of practices and procedures for fair disclosure of Unpublished Price Sensitive Information (UPSI), is confirmed to the stock exchanges, immediately.
    • Formulated code of conduct is confirmed to the stock exchanges, immediately.
    • A company deals with only such market intermediary/every other person, who is required to handle UPSI, who have formulated a code of conduct as per the requirements of the Regulations
           2.The Stock Exchanges are advised to:
    • Put in place the adequate systems and issue the necessary guidelines for implementing the above decision.
    • Make necessary amendments to the relevant bye-laws, rules and regulations as applicable for the implementation of the above decision immediately.
    • Bring the provisions of this circular to the notice of the listed companies/issuers and also to disseminate the same on the website immediately.
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    Investment in name of Partners would provide Section 54EC relief to Partnership firm

    The ITAT Pune Bench held as follows:

    • Where partners of assessee-firm introduced land and building as their capital contribution to firm, said land and building became property of firm and, therefore, capital gain arising on sale of said property was taxable in hands of assessee-firm.
    • Where sale consideration of property belonging to assessee-firm was credited directly in hands of partners of firm and specified bonds were also purchased in names of those partners, still assessee-firm would be entitled to claim benefit of deduction under section 54EC.
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    Income Tax Return- Relaxations

    New ITR forms need Indian taxpayers to
    • Not give details of foreign trips
    • Disclose all operational bank accounts
    • Not disclose balance in the accounts
    • Not reveal details of dormant accounts that have not been operational during the last three years
    Relief for expats
    • They may not need to report overseas assets 
      which they acquired being Non-Residents and 
      not having any income
    ITR Forms
    • The forms ITR 2 and ITR 2A will not contain more than three pages
    • Time limit for filling these may be extended up to 31st August
    • Details of foreign trips of expenditure will not be required to be furnished
    • Only passport number, if available, would be required to be given in the forms ITR-2 and ITR-2A
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    Royalty for know-how of manufacturing taxable at its situs while know-how for product functionality at situs of usage

    The ITAT Delhi Bench held that when royalty is for use of a technology in manufacturing, it is to be taxed at situs of manufacturing product, and when royalty is for use of technology in functioning of product so manufactured, it is to be taxed at sit us of use. Also, held that where revenue received by assesses, an American company, for providing software to Indian company was for copyrighted article and not for copyright itself, same would not be taxable under section 9 or under article 12 of Indo-US DTAA.
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    No tax or MAT on Donee-Co. in respect of gift received from another concern; ITAT affirms gifting powers of a co.

    The ITAT Mumbai Bench held that where assesses received certain amount from 'R' Ltd. on account of dividend receivable by four concerns against their shareholding in 'R' Ltd., since there was no dispute about genuineness of transaction because receipt of amount was duly authorized by respective Memorandum and Articles of Association of assesses and donor companies, it was to be regarded as gift; it is neither taxable as Income from Other Sources under section 56 nor as Capital Gain nor as income under section 2(22)(e) nor under section 115JB.
    Monday, June 15, 2015
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    Tax relief for housing projects with shops

    The Supreme Court, in case of CIT vs Sarkar Builders held that the developers of housing projects with commercial complexes embedded in them can claim deduction of 100 per cent of profits subject to certain conditions.The benefit of the judgment will go to builders who finished their projects on or after April 1, 2005, though the local authorities might have sanctioned them much earlier, and the construction started before that date. The relevant provision, section 80IB (10)(d) of the Income Tax Act, was amended prospectively on that date.
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    Govt. notifies Black Money Act

    The government has notified the Black Money (Undisclosed Foreign Income as Assets) and imposition of Tax Act, 2015. It will come into effect from April 1 next year. The Act prescribes tax of 30 per cent and penalty up to 90 per cent on Undisclosed Bank Accounts and Assets abroad. However, this provision will apply only to those who do not use the compliance window. The government will notify separate dates for the compliance window during which any Indian can disclose his/her foreign bank account and assets, pay 30 per cent tax along with 30 per cent penalty and protect him/herself from legal action.
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    Shareholding change in Insurers

    The Insurance Regulatory and Development Authority of India said in a communication on transfer of equity shares of Insurance companies that no registration of transfer of shares or issue of share capital can be made which would result in a shareholding structure change  The regulator said, if after the transfer, the paid up holding of the transferee in the share of the Insurance companies is likely to exceed 5% of its paid up capital, it would not be approved.
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    Power procurement Bidding Norms amended

    • Amendment applies to case 1 bids where the quantum and period of power procurement is known but fuel type, source and location of the plant is not specified.
    • If Winning bidder is unable to meet the power capacity required, the remaining bidder will be invited to match the lowest bid.
    • Cap of seven bidders at financials bid stage removed.
    • Power developers can add further capacity without requiring consent from the procurers.
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    25-bp repo rate cut

    The Reserve Bank of India (RBI) took advantage of subdued inflation and cut the repo rate, the key policy rate, by 25 basis points (bps) to 7.25 per cent with State Bank of India (SBI), the country’s largest lender, responding with a 15- bp base rate cut to 9.7 per cent. Allahabad Bank and Punjab & Sind Bank were the other two lenders that also announced base rate cuts.
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    RBI allows ARCs long resolution period beyond eight years

    The Reserve Bank of India (RBI) has given Asset Reconstruction Companies (ARCs) long resolution period (beyond eight years) to ensure smooth working of restructuring package for stressed accounts.The time for redeeming Security Receipts (SRs) held against assets might be extended in congruence with the resolution period approved by Joint Lenders Forum and a Corporate Debt Restructuring (CDR), said RBI, in a communique to ARCs.
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    The Indian economy has although signaled positive sentiment but the tangible results in various economic sectors are still to be seen. The Wholesale Inflation Index is negative, the Retail inflation is in control at around 4%. The Foreign Exchange Reserve have reached a record level of more than US$350 billion. The economic mood is positive but the real momentum of growth is yet to pick up. The Bank Credit off take, Steel & Cement Production, the Core Sector growth, Index of Industrial Production, Agricultural growth are all yet to take off. Even the service sector growth is in close range. The Sensex has gained but the market cap gain is still not widespread across the sectors. The capital market sentiment are positive but not upbeat.The recent announcement of 0.25% reduction in repo rate has been far from adequate to bring fuel to the economic growth. The Indian Industry and Services sector need supportive hand of the RBI and the Government to enable them to come out of lack luster growth and gain momentum. It may be necessary to take some risk and aggressive approach to incentive's Indian economy towards growth with substantial reduction in interest rate and adequate availability of credit. The small and mid- size sector is severely suffering as now no Bank or financial Institution is ready to lend without collateral security. Financial Development Banking Institutions are needed at national, state as well as district level. The bankers have become too apprehensive of NPA. The Non-Performing-Asset determination criteria have been quite strict and the increased NPA ratio has created a severe sentimental impact on the entire credit system.These aspects of banking need a complete fresh look. More than 80% of Non-Performing-Asset can be brought back to revival and growth. It is important for Ministry of Finance & RBI to look into specific issue of each sector and provide them supporting hand.The Finance Ministry needs to announce very clearly that the credit decision will not be subjected to vigilance or CBI review except in case of clear evidence of corruption. It is important for government to encourage Banking Professionals to take calculated business risk and to have a Positive Aggressive Approach rather than a Negative Conservative Approach. The Black Money Act in relation to declaration of Foreign Assets and Income has several aspects which will negatively impact genuine businesses as well as salaried class. The rule making and procedures need to ensure fair treatment and not too much bureaucratic controls as it may lead to deep corruption in view of steep penalties. The Benami Assets Bill will also need an open debate. We need to ensure that adequate space is available to the businesses with adequate liberty and means of capital creation and pooling. The unnatural restrictions in Section 56 of the Income Tax Act and severe compliance's in the Companies Act have already scuttled growth of businesses.
    Employment Generation
    The Government needs to initiate the SME sector growth, Agriculture sector growth, skill development and other initiatives to boost employment. The focus has to be on all around growth rather than only on Black Money and Corruption. The wealth generation in the hands of poor and needy can be achieved only by economic activity built up. The tax collection can also go up only by substantial reduction in tax rates so that Indian Public voluntarily work more and more in official economy.
    GST Rates
    The proposed GST rates above 20% will bring a big disaster and will push the traders as well as manufacturers towards unrecorded transactions and will defeat the very purpose. The government need to ensure that rate of tax is less than 16% for State and Central Government put together.
    CSR Scheme
    The CSR activities of Private Sector as well as Public Sector need to be determined and freely approved by the shareholders. The government intervention to direct the CSR funds towards GANGA Cleaning or Swachh Bharat Abhiyan may negatively impact the real intent of CSR initiative.
    The Gold Monetization 
    The Gold Monetization Scheme is in its formative stage and could be a major initiative to positively restrict Gold import and channelize the gold lying with household and businesses to its productive use. In case an attractive interest rate could be worked out or alternatively, subject to a lock in period, the sources of gold up to a particular quantum per person could be given an amnesty from taxation, this scheme can bring good result.
    Bold Initiatives
    The Government needs to concentrate on real bold initiatives and rather than announcing these loudly, it is the time for bold action in:

    • Major tax reforms reducing harassment and abuse of power
    • Major relaxation in Corporate laws
    • New Technology for Agro sector
    • Infrastructure Development
    The list could be long but the message is clear that the Government need to create an atmosphere for all to act without fear of Criticism and act aggressively like in Coal sector auctions.The time is to deliver without making any noise.