Published on December 18, 2013
MISSIVE Volume XXXI December 2013
Index Dear Patron H ere we are with the Thirtieth successive issue of our monthly ‘Missive’. We trust you will enjoy reading this Missive, even while soaking in the contents. We would very much appreciate your feedback which consistently helps us in improving and upgrading the contents. Topics Direct Tax Transfer Pricing Service Tax Central Excise Value Added Tax Customs FEMA Company Law Transactions that made headlines Page No 1 3 6 7 7 8 9 10 11 Thanks and regards, Knowledge Management Team Never hold your head high with pride or ego, even the winner of a gold medal gets his medal only when he puts his head down!!!
DIRECT TAX Citicrop finance ltd. V. ACIT (ITA No. 8532/mum/2011) TDS credit will be available, based on the evidence produced, even if no TDS certificate is available or no TDS entry is found in the system of tax department. Facts In the instant case, the assesse claimed TDS. The TDS certificates for the same were not available with the assesse and neither the entry related to the claimed amount of TDS is shown in Form 26AS. On the basis of this reasoning that evidence were not available with the assesse, AO disallow the claimed amount of TDS. The CIT (A) held that the taxpayer has to furnish all TDS certificates and the AO needs to verify the same. Accordingly, the AO may allow TDS credit as per the original challan available on record or as per the details of such TDS available on the computer system of tax department. TribunalRuling Finally, Mumbai Tribunal held that merely because the tax department’s system sdoes not indicate the TDS refund; it cannot be held that the taxpayer should be compelled to deposit the amount. TDS credit will be available on the basis of evidence produced by the Assesse. DIT v. Alcatel Lucent USA Inc. (ITA 328/2012, ITA 329/2012, ITA 336/2012, ITA 337/2012 & ITA 340/2012) and DIT v. Alcatel Lucent World Services Inc. 1 Non-resident taxpayer is liable to pay interest u/s 234B of the Income Tax Act, 1961 for default in payment of advance tax, since the tax liability was not admitted in its tax return and the Indian payers did not deduct tax. Facts In this case, the taxpayer is a non-resident company, engaged in the business of supplying telecom equipment to customers in India. The taxpayer was having subsidiary in India, which provided marketing support services to the taxpayer. The taxpayer denied its tax liability while filling Income tax return. The payer (i.e. Indian customers) did not deduct tax while making payment to the taxpayer. A survey was conducted in the premises of Indian subsidiary and AO concluded that the taxpayer has PE in India under India-USA tax treaty and attributed 2.5% of sale proceeds of the hardware as profit attributable to PE in India. The AO also levied interest under Section 234A, 234B, 234C of the Act. Initially taxpayer denied tax liability to pay tax in India. However, before CIT(A) the taxpayer did not claimed that it was not liable to tax in India. However, the taxpayer contended that it was not liable to pay interest under Section 234B of the Act on the ground that, it was liability of the payer to deduct at source on the income of the taxpayer. Judgment The High Court observed that when the taxpayer denied its tax liability in India while filing income tax return, it is not open to the taxpayer, after accepting the tax liability in appellate proceedings, to state that failure is
on the part of Indian payers, to deduct tax at source. Accordingly, all consequences under the Act, would be applicable, including its liability to pay interest under Section 234B of the Act. Carin UK Holding Limited Vs. CIT [Writ Petition (Civil) No. 6752/2012] Long term Capital Gain on off-market sale of listed shares by non-residents is taxable at 10 percent Facts The petitioner, a company based in United Kingdom, held shares in an Indian listed company. Petitioner sold the shares off market. Petitioner earned long term capital gain .Petitioner computed the Capital Gain by applying , first proviso of Section 48 of the Act which removes the impact of foreign exchange fluctuation and second proviso of Section 112 of the Act which define that tax on LTCG on listed shares shall be 10% after applying first proviso of Section 48 of the Act. The petitioner had approached to the AAR to take the benefit of reduced tax rate of 10 percent. AAR upheld the petitioner intention, stating that “For the proviso of Section 112(1) to apply, the second proviso to Section 48 of the Act should also be applicable to the petitioner’s case, As second proviso to Section 48 of the Act was not applicable on the Petitioner, benefit of lower tax rate of tax at 10 percent was not available to the petitioner.” Judgment High Court held that Section 112 Proviso does not state that the Taxpayers, who avail the 2 benefits of the first proviso to Section 48 of the Act, is not entitled to benefit of Section 112 Proviso. Also the benefit cannot be denied because the second proviso to Section 48 of the Act is not applicable. All the taxpayers covered under first proviso to Section 48 of the Act would be liable to tax at 10 percent and will never be liable at 20 percent. Poompuhar Shipping Corporation Ltd. vs ITO, International Taxation - II (2013) 38 taxmann.com 150 (Madras) West Asia Maritime Limited vs ITO (T.C.(A) No. 2629 to 2630 of 2006) Income from time charter of ship from operations between Indian ports is taxable as royalty Facts Poompuhar shipping corp ltd (taxpayer) engaged in business of moving coal from various ports in India to Chennai. It entered in to time charter agreement (TCA) with foreign shipping company (FSC) and did not deduct tax while making hire charges payments to FSCs. Assessing officer held that charges paid by taxpayer was on account of use and hire of ship, therefore it was royalty within the meaning of section 9(1)(vi) of I.T Act ,1961 and Article 12 of respective tax treaties and AO treated taxpayer as ‘assessee-in-default’ for non-deduction of tax at source while remitting such charges. West Asia Maritime was engaged in shipping business and made payment to dolphin maritime co. ltd., an associated enterprise towards hire charges for use of ship.
AO held that hire payments by taxpayer was royalty for use of equipment without deducting TDS u/s 195 of act. Also CIT(A) held that payments made for hire charges being royalty would be covered by Article 12 of respective Tax Treaty. It also held that as ship was put to use on coastline between ports in India by the hirer, article 8 of tax treaty would not be of any application. Judgment High Court in both the cases mentioned above, held that consideration was for the hire of ship and since ship is an equipment, TCA charges constitutes Royalty. Since the ships, in the present case, were plying along the Indian coastline and not in international traffic, the benefit of the shipping article of the tax treaty was not available. Neelkamal Realtors and Erectors India Pvt Ltd Vs. DCIT (ITA No. 1143/Mum/2013) Section 43CA providing for stamp duty valuation of property held as stock-intrade applies prospectively Facts The petitioner is engaged in the business of constructing and selling of flats. The petitioner offered profits from sale of flats, held as stock in trade on the project completion method. AO observed that there were variations in the sale price of flats sold by the taxpayer. The AO called for justification from the petitioner. However by simply rejecting the reasons and the explanations provided by the petitioner on the premise that such reasons and explanations provided by the petitioner are not justifiable, AO made additions. 3 The CIT(A) relying on Section 50C, Section 56(2)(vii)(b)(ii) and Section 43CA of the Act sustained that market value of flats ought to have been considered instead of the actual sale consideration. Tribunal’s ruling The Mumbai Tribunal in this case has held that the stamp duty valuation provision contained in Section 50C of the Act are not applicable to transfer of land or building or both being stock in trade. Section 56(2)(vii)(b)(ii) because is not applicable o It is applicable only in the hands of the transferee/acquirer, whereas the petitioner is a transferor/seller of flats. o It is applicable in respect of an immovable property acquired on or after 1 October 2009 but in the petitioner case subjected transaction occurred before 1 October 2009 o It is applicable in case of immovable property acquired by an Individual or HUF, whereas petitioner is a Private Limited Company. Further, the newly inserted Section 43CA of the Act with respect to property held as stock in trade applies prospectively. TRANSFER PRICING Vodafone India Services Pvt. Ltd. vs. UOI (Bombay High Court), Writ Petition No. 1877 of 2013 Existence of income is a jurisdictional requirement for the applicability of T. P. provisions. AO must deal with it after giving
personal hearing before making reference to TPO. The dept should not treat the assesse as an adversary who has to be taxed. Facts The assessee, an Indian company, issued shares at premium. Though the transaction was reported as an “international transaction” in Form 3 CEB, the assessee claimed that the transfer pricing provisions did not apply as there was no income arising to it. The AO referred the issue to the TPO without dealing with the preliminary objection. The TPO held that he could not go into the issue whether income had arisen or not because his jurisdiction was limited to determine the ALP. He held that the assessee ought to have charged the NAV of the share and that the difference between the NAV and the issue price was a deemed loan from the assessee to the holding company for which the assessee ought to have received interest. He accordingly computed the adjustment for the shares premium and the interest thereon. The AO passed a draft assessment order u/s 144C(1) in which he held that he was bound u/s 92-CA(4) with the TPO’s determination and could not consider the contention whether the transfer pricing provisions applied. The assessee filed a Writ Petition challenging the jurisdiction of the TPO/AO to make the adjustment. On the merits of the adjustment, the assessee filed objections before the DRP. Before the High Court the assessee argued that (i) it was a precondition before the transfer pricing provisions apply that there has to be income arising to the assessee. As the allotment of shares at a premium does not give rise to income, the transfer pricing provisions do not apply, (ii) there was a breach of natural justice because neither the TPO nor the AO had heard the assessee on, or decided, the fundamental issue as to whether the transfer 4 pricing provisions applied at all, (iii) the DRP does not offer an alternative remedy because the DRP has no power to quash the draft assessment order even if it is satisfied that the same is without jurisdiction & (iv) the DRP cannot take an unbiased view because one of its members is the DIT (TP). HELD by the High Court: Judgment i) The Assessee’s contention that the DRP does not offer an alternative remedy because it does not have the power to quash the assessment order even if it is satisfied that the same is without jurisdiction is not acceptable because in Vodafone 37 taxmann.com 250 it was held that the DRP’s power to confirm would include the power not to confirm and to annul the draft assessment order; ii) It is clear from s. 92(1) that there must be income arising/ potentially arising by an international transaction for the application of the transfer pricing provisions. This is a jurisdictional requirement and has to be dealt with by the AO when specifically raised by the assessee before making reference to the AO. Grant of personal hearing before referring the matter to the TPO has to be read into s. 92CA(1) in cases where the very jurisdiction to tax under Chapter X is challenged by the assessee. If, after the hearing the assessee, the AO holds that there is an international transaction, that would be binding on the TPO; iii) The AO is bound to hear the assessee in respect of jurisdictional issues before making the reference. The failure to do so is an illegality;
iv) The Assessee’s contention that the DRP would not give a fair hearing as one of its members is the DIT (TP) is not acceptable because it overlooks the fact that these are not appeal proceedings but to finalize the draft assessment order. Also, the DIT(TP) who approved the TPO’s order is not on the panel; v) The Revenue should keep in mind the sage advice of NaniPalkhivala that the department should not cause misery and harassment to the taxpayer and the gnawing feeling that he is made the victim of palpable injustice. In this case it would not be natural for the assessee to feel harassed as the AO nor the TPO gave a hearing or dealt with the preliminary objection. It is hoped that the revenue will be more sensitive to the just demands of the assessee and not treat the assessee as an adversary who has to be taxed, no matter what; vi) The DRP should decide the Assessee’s objection regarding chargeability of alleged shortfall in share premium as a preliminary issue. In case the DRP’s decision on the preliminary issue is adverse, the assessee shall be entitled to challenge it in a writ petition if it can show that the DRP’s decision on the preliminary issue is patently illegal notwithstanding the availability of alternate remedy before the ITAT. Cadbury India Ltd vs. ACIT (ITAT Mumbai) ITA NO. : 7408/Mum/2010 ITA NO. : 7641/Mum/2010 ALP of royalty for trademark usage and technical know-how fee can be 5 determined as per TNMM. Approval of RBI & Govt. means payment is as at arm’s length Facts The assessee entered into an agreement with its parent company, Cadbury Schweppes, pursuant to which it agreed to pay royalty for the use of trademarks and royalty for the use of technical know-how at 1.25% each of the net sales. This was approved by the RBI and the SIA (Government). The assessee adopted the Transaction Net Margin Method (“TNMM”) for computing the ALP of the international transactions by comparing the net margin of the company at entity level with that of companies engaged in food products, beverages and tobacco business. The TPO held that the transactions pertaining to payment of royalty for trademarks and technical know-how fee had to be separately and independently bench-marked using the Comparable Uncontrolled Prices (“CUP”) method. He held that the ALP of royalty and technical know-how fee should be computed at 1% of sales the instead of at 1.25% of the sales. This was reversed by the CIT(A) who held that the royalty and technical know-how fee paid by the assessee were at ALP. On appeal by the department to the Tribunal HELD dismissing the appeal: Judgment The assessee has been paying royalty on technical know-how to its parent AE since 1993. Other group companies across the Globe are also paying the same royalty. Also, the payment is as per the approval given by the RBI and the SIA. Hence there cannot be any scope of doubt that the royalty payment on technical know-how is at arm’s length. As regards the royalty on trademark usage, the assessee is in fact paying a lesser amount if the payment is compared with the payment
towards trademark usage by other group companies using the brand “Cadbury” in other parts of the world. Accordingly, the royalty payment on trademark usage is also within the arms’ length and does not call for any adjustment. SERVICE TAX Clarifications on the issues in VCES CBEC has issued a Circular No. 174/9/2013- ST dated 25.11.2013 to clarify various issues in regard to Voluntary Compliance Encouragement Scheme (VCES). Following issues have been clarified by the circular: If an inquiry, investigation or audit, pending as on 1.3.2013 was being carried out for the part period i.e. 2008-2011 , benefit of VCES would be eligible in respect of 'tax dues' for the period not covered by the inquiry, investigation or audit i.e. for the year 2012. If an inquiry or investigation, pending as on 1.3.2013 was in respect of a specific issue, say renting of immovable property, benefit of VCES would be eligible in respect of 'tax dues' concerning any other issue in respect of which no inquiry or investigation was pending as on 1.3.2013. In case designated authority has reasons to believe that the declaration filed by declarant is covered by section 106(2), a notice of intention to reject the declaration will be given to the declarant within 30 days from the date of filing of declaration stating reasons of rejection to give so as an opportunity of being heard before the rejection. The designated authority may take a view on merit on the basis of facts and 6 circumstances of each case as to whether the inquiry is of roving nature or whether the provisions of section 106 (2) are to be attracted. Benefit of scheme would be available for payment of tax made after 10.05.2013 even though the declaration under the scheme has been made later on. Benefit of scheme would not be available for waiver from penalty and other proceedings where service tax pertaining to the period of scheme along with interest has already been paid by the assesse. Circular No. 174/9/2013- ST dated November 25, 2013 Regarding exemption from service tax on the specified services received by the SEZ Unit or the Developer and used for the authorized operations Where the specified services received by the SEZ Unit or the Developer are used exclusively for the authorised operations, the person liable to pay service tax has the option not to pay the service tax ab-initio subject to the conditions as notified. In this case, the SEZ Unit or the Developer shall furnish to the jurisdictional Superintendent of Central Excise a quarterly statement, in Form A-3, furnishing the details of specified services received by it without payment of service tax, by 30th of the month following the particular quarter. For the quarter of July, 2013 to September, 2013, the said statement shall be furnished by the 15th of December, 2013. Notification No. 15/ 2013-Service Tax dated November 21, 2013
Monetary Limit for Mandatory E-Payment of tax reduced from Rs. 10L to Rs. 1L As per Rule 6(2) of Service Tax Rules, 1994 person who has paid Service Tax (Challan+CENVAT) amounting to Rs.10 Lakhs or more, in preceding F.Y., shall pay the tax electronically; however with effect from 1st January, 2014 the monetary limit has been reduced to Rs. 1 Lakh. Therefore, service provider who has paid service tax amounting to Rs. 1 Lakh or more in F.Y. 2012-2013 is required to pay service tax liability for the month of December, 2013 or quarter ending December, 2013 electronically. Notification No 16 /2013-Service Tax dated November 22, 2013 Central Excise Exemption to certain goods imported or domestically procured for the Revised National Tuberculosis Control Programme funded by the Global Fund to fight AIDS, Tuberculosis and Malaria Certain goods of the category Anti Tuberculosis Drugs and Diagnostics and equipments required for the Revised National Tuberculosis Control Programme funded by the Global Fund to fight AIDS, Tuberculosis and Malaria, shall be exempt from payment of excise duty. Notification No. 30/2013-CE dated November 29, 2013 Reductions of threshold limit from Rs. 10L to Rs. 1L for mandatory e-payment of Central Excise duty An assessee who has paid total duty of Rs.1 Lac or more including the amount of duty paid by utilization of CENVAT credit in the preceding financial year shall thereafter, 7 deposit the duty electronically through internet banking. Notification No. 15/2013 – Central Excise (N.T.) dated November 22, 2013 CENVAT Credit is allowable to the assessee even if the supplier had not discharged its duty Recently, in case of Commissioner of Central Excise, Jalandhar Vs. Kay Kay Industries, (2013) 38 taxmann.com 336 (SC), Hon’ble Supreme Court held that if a supplier of material has not discharged its Excise Duty liability, the assessee cannot be denied CENVAT Credit factualizing the provisions of Section 57A(6) of Central Excise Act, 1944. The facts of the case are that the appellant was denied the right to claim CENVAT Credit on the invoices issued by supplier of inputs on the grounds that the supplier had not paid the Excise Duty on the goods manufactured and supplied by it. The provisions of Section 57A(6) of Central Excise Act, 1944 were invoked which provides an assessee to take reasonable steps to confirm that the supplier has paid the duty. Hon’ble Supreme Court in the cited case judged upon that “Reasonable Care” as cited in the section does not mean that an assessee is required to confirm from department about payment of duty. Thus, CENVAT Credit was allowed to the appellant. Commissioner of Central Excise, Jalandhar Vs. Kay Kay Industries VALUE ADDED TAX Extension of date of filing audit report Notifications No. 7(420)/Policy/VAT/2011/12031213 dated 11/02/2013 regarding submission of
audit report in Form AR-1 for the year 2012-13, by dealers having turnover of Rs.10 crores or more in 2011-12 or 2012-13, has been amended so as to extend the date of filing of the said report to 31/12/2013 instead of 02/12/2013 Notification No.F.3(384)/Policy/VAT/2013/10291041 dated November 29, 2013 1. CUSTOMS Certain goods of the category Anti Tuberculosis Drugs and Diagnostics and equipment’s required for the Revised National Tuberculosis Control Programme funded by the Global Fund to fight AIDS, Tuberculosis and Malaria, when imported into India, shall be exempt from whole of the duty of customs and additional duty leviable thereon. Notification No. 49/2013-Customs November 29, 2013 dated Conversion Rate for Foreign Exchange Rate of exchange of conversion of each of the following foreign currency into Indian currency or vice versa shall, with effect from 22nd November, 2013 be the rate mentioned against it in the given tables: SCHEDULE-I S. No. Foreign Currency 8 Rate of exchange of one unit of foreign currency equivalent to Indian rupees (For Export Goods) Australian Dollar 59.20 57.80 2. Bahrain Dinar 171.40 162.00 3. Canadian Dollar 60.75 59.35 4. Exemption to certain goods imported or domestically procured for the Revised National Tuberculosis Control Programme funded by the Global Fund to fight AIDS, Tuberculosis and Malaria (For Imported Goods) Danish Kroner 11.50 11.15 5. EURO 85.30 83.35 6. Hong Dollar 8.15 8.05 7. Kuwait Dinar 228.65 215.40 8. New Zealand Dollar 52.55 51.25 9. Norwegian Kroner 10.40 10.10 10. Pound Sterling 102.25 100.00 11. Singapore Dollar 50.85 49.75 12. South African Rand 6.40 6.00 13. Saudi Arabian Riyal 17.25 16.30 14. Swedish Kroner 9.55 9.30 15. Swiss France 69.40 67.55 16. UAE Dirham 17.60 16.65 17. US Dollar 63.30 62.30 Kong
A.P. (DIR Series) Circular No. 69 dated November 8, 2013 SCHEDULE-II Foreign Currency Rate of exchange of 100 units of foreign currency equivalent to Indian rupees (For Imported Goods) (For Export Goods) Japanese Yen 63.35 61.80 Kenya Shilling 75.05 70.85 Notification No. 112/2013-Customs (N.T.) dated November 21, 2013 FEMA A.P. (DIR Series) Circular No. 68 dated November 1, 2013 Foreign Direct Investment (FDI) in India – definition of ‘group company’ The extant FDI policy has since been reviewed and it has been decided to incorporate the definition for ‘group company’ as under: ‘Group Company’ means two or more enterprises which, directly or indirectly, are in position to: (i) exercise twenty-six per cent, or more of voting rights in other enterprise; or (ii) appoint more than fifty per cent, of members of board of directors in the other enterprise. 9 Amendment to the “Issue of Foreign Currency Convertible Bonds and Ordinary shares (Through Depository Receipt Mechanism) Scheme, 1993” As per the existing guidelines unlisted Indian companies which have not yet accessed Global Depository Receipts / Foreign Currency Convertible Bond route for raising capital in the international market were required to have prior or simultaneous listing in the domestic market. This position has been reviewed and upon review, it has now been decided to allow unlisted companies incorporated in India to raise capital abroad, without the requirement of prior or subsequent listing in India, initially for a period of two years, subject to conditions listed in the Circular. This scheme will be implemented from the date of the Government Notification of the scheme, subject to review after a period of two years. A.P. (DIR Series) Circular No. 70 dated November 8, 2013 Third party payments for export / import transactions FEMA Notification No. 14 dated May 3, 2000 deals with the manner of receipt & payment for trade transactions. Normally payment for exports has to be received from the overseas buyer named in the Export Declaration Form (EDF) by the exporter and the payment shall
be received in a currency appropriate to the place of final destination as mentioned in the EDF irrespective of the country of residence of the buyer. Similarly, the payments for the import should be made to the original overseas seller of the goods and the AD should ensure that the importer furnishes evidence of import, such as, Exchange Control copy of the Bill of Entry to satisfy itself that goods equivalent to the value of remittance have been imported. In order to further liberalize the procedure relating to payments for exports/imports and taking into account evolving international trade practices, it has been decided with immediate effect, that AD banks may allow payments for export of goods / software to be received from a third party (a party other than the buyer) and AD banks are allowed to make payments to a third party (a party other than the seller) for import of goods, subject to the conditions stipulated in the circular. A.P. (DIR Series) Circular No. 72 dated November 11, 2013 Foreign Direct Investment in Financial Sector – Transfer of Shares As per the extant guidelines, No Objection Certificate (NoC) is required to be obtained from the respective financial sector regulator/regulators of the investee company as well as transferor and transferee entities and such NoC(s) are to be filed with the form FCTRS to the AD bank, where transfer of shares is from Residents to Non-Residents and where the investee company is in the financial services sector. On a review, it has now been decided that the requirement of NoC(s) will be waived from the 10 perspective of Foreign Exchange Management Act, 1999 and no such NoC(s) need to be filed along with form FC-TRS. However, any 'fit and proper/ due diligence' requirement as regards the non-resident investor as stipulated by the respective financial sector regulator shall have to be complied with. COMPANY LAW Exemption to certain Companies from the provisions of Section 182(1) of the Companies Act, 2013 (corresponding Section 293A(1)(b) and 293A(2)(b) of the Companies Act, 1956) [Order dated 7th November, 2013] The Companies which have been: 1. Incorporated with the name containing the expression “Electoral Trust”, and 2. Approved in accordance with the procedure laid down in the Electoral Trust Scheme, 2013, and 3. To which license is granted under section 25 of the Companies Act, 1956, have been exempted from the provisions of Section 182(1) of the Companies Act, 2013 (corresponding Section 293A(1)(b) and 293A(2)(b) of the Companies Act, 1956),dealing with the prohibitions and restrictions regarding political contributions. Clarification with regard to the applicability of provisions of section 372A of the Companies Act, 1956. [Circular No. 18/2013 dated 19th November, 2013]
Pursuant to the receipt of number of representations in relation to the notification of Section 185 of the Companies Act, 2013, dealing with loans to Directors which is corresponding to section 295 of the Companies Act, 1956, it has been clarified by the Ministry of Corporate Affairs that Section 372A of the Companies Act, 1956, dealing with inter-corporate loans continue to remain in force till section 186 of the Companies Act, 2013, is notified. TRANSACTIONS MADE HEADLINES THAT Etihad completes deal to buy 24% of Jet Airways. GAIL sells part of stake in China Gas Holdings for $63.5M. Vodafone seeks to buy out minority shareholders in India unit for $1.7B Bharti Airtel buys Qualcomm’s India wireless broadband venture Zamin Group completes acquisition of Anglo American’s Brazilian iron ore mine for $134M German firm SQS Software to buy majority stake in Thinksoft for $23M Kwality acquires assets of dairy firm VarshneyBandhu Foods NareshGoyal sells 7.9% in Jet Airways for$34M Diamond trader buys Cadbury House in Mumbai for $56M Tech Mahindra to merge Mahindra Engineering with itself 11
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