Saturday, September 8, 2012

[aaykarbhavan] Consolidated Companies Act questions answers, Business Standard,




Ambiguity over capital gains reinvestment
If you purchase more than one property, the assessing officer may choose to tax you
Sandeep Shanbhag / Mumbai Sep 09, 2012, 00:20 IST

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It was a tough decision for Mrs Dalal (name changed on request). But she finally decided to sell the old ancestral home as her elder son was already married, and the other two were close to doing so. The house, for one, was too small for three families. And in the absence of her husband, the property had little attraction for her.
So, the property was sold and proceeds were divided between her three sons to purchase three separate properties. This arrangement was fine so far as practical life was concerned. However, wherever there is money, there is taxation.
Like, it is in the case of Dalal's sons' purchase of three properties from the sale of one. The question: Is the exemption available when a person sells one residential house and reinvests the long-term capital gain in more than one house?
The main issue causing the confusion and ambiguity is the usage of the article 'a' before 'residential house'. The word seems to imply that the exemption would be available only against purchase of one residential house and not two or more. In other words, the law seems to suggest that when a taxpayer invests the capital gains in purchasing or constructing two residential houses, only one of these, as opted for by the taxpayer, could be allowed for the tax concession. But is this the true intention of the legislation?
Adopting the literal meaning of the article "a" as "only one" goes against the very spirit, purpose and intent of the legislation which desires to give a boost to the housing sector. No wonder then that this ambiguity has given rise to conflicting case laws.
In the case of Fulwanti C Rathod v ITO, ITAT Mumbai Bench 'E' (ITA 1092/Mum./1995), dt 3.5.02, the learned judge observed, "The word 'a' can be equivalent to the word 'any'. Also as per the General Clauses Act, singular includes plural." In this case, the judge was referring to the Wealth-tax Act and the Estate Duty Act, where the words used were, 'one house' as against the words 'a house' used in the Income-tax Act.
On the other hand, in the case of Gulshanbanoo R Mukhi v Joint CIT Appeal no 3369 (BOM) of 2000 [AY 96-97] dt 16.1.02 ITD 649 (Mum) ITAT Mumbai Bench 'C', it was held that 'a' can be 'any' but 'any' cannot be 'many'.
Then there is the Allahabad High Court case of Shiv Narain Chaudhari v CWT (108ITR104) where it was held that if the two flats of the building are situated in same compound and within common boundaries and have unity of structure, then they could be regarded as constituting one house.
Another judgment
If the stand that 'a' is not two is accepted, then 'a' can also not mean half. The background is that one of the conditions of the exemption under the then existing Sec. 54F was that the investor should not be owning another house other than the new house. In other words, say the taxpayer had sold some commercial property. He could save the consequent capital gains tax by investing the net sale proceeds in a residential house (new house). However, this was allowed only upon the condition that he didn't already own another residential house (old house). (Subsequently the law has been amended and now the taxpayer can own one residential house other than the new house – but this was before the amendment was carried out. However, the principle applies equally even today.)
In the case of ITO vs Rasiklal N. Satra (280ITR243 dt 19.9.05), the assessee sold shares (this was when long-term capital gains earned on shares were taxable) and claimed exemption under Sec. 54F by investing the same in purchase of residential flat at Vashi, Navi Mumbai. The Assessing Officer (AO) noticed that the assessee was co-owner of a flat in Sion (West), Mumbai.
Now since the assessee already owned an old house, the AO denied him the Sec. 54F exemption. To this, the assessee contended that since he co-owned the old house along with his wife (they were joint owners), he was not an independent owner of the house and exemption can be denied only where he was the absolute owner of the house. It was held that since the legislature has used the word 'a' before the words 'residential house', it must mean a complete residential house and would not include a shared interest in the house. Where the property is owned by more than one person, it cannot be said that any one of them is the sole owner of the property. In such case, no individual person on his own can sell the entire property. Joint ownership is different from absolute ownership. Ownership of a residential house meant ownership to the exclusion of all others. Since Satra did not have full ownership of the house, it was held that the he was not the owner of 'a' residential house on the date of sale of the shares. Consequently, the exemption under section 54F could not be denied to him.
Finally
In spite of such contradictory decisions arising out of ambiguity, CBDT has not issued any clarification in spite of requests from many quarters. We have been given to understand that some of the ITOs have been sticking to the literal meaning of 'a' as 'one', and others don't. A clear cut clarification from CBDT would help a number of taxpayers as also reduce the number of litigations arising out of this issue.



Organising life after someone's death
Staking claim on the assets and insurance is a complex process. Seek professional help, if required
Arvind Rao / Mumbai Sep 09, 2012, 00:18 IST

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The loss of a family member, especially the bread earner, cannot be calculated in financial terms. But what can be more distressing for family member, is the fight that they have to go through, to get the ownership of assets. Many times, it can take reams of paperwork, number of years and lots of money to get what's rightfully yours.
Consequently, it makes sense to organise and prioritise the entire process in advance to ensure that there is little heartburn and pain.
Organise relevant documents
Yes, it can be painful, but the first step should be to make a complete statement indicating all the financial records of the deceased. This is most crucial because it will give an idea of assets and liabilities. In addition, it will get rid of the clutter that is associated with haphazard record-keeping and lack of financial information. Obviously, this step is likely to take the most amount of time because there has to be a proper documentation of every detail, unless of course, the deceased had followed a centralised record-keeping.
The list should include bank accounts, fixed deposits, shares in demat accounts, physical shares, mutual funds, bonds, debentures, properties, insurance policies, other beneficial interests, if any. Equally important is to gather information about payables like credit card statements, outstanding loans, outstanding medical bills, etc. Last, but not the least, the will of the deceased, if available, should be obtained.
Organising the total financials in this manner, will help the individual prioritise and lay down a complete procedure to distribute the wealth of the deceased. In addition, it will help in finding out the accounts, assets, liabilities and submit claims under the relevant insurance covers.
Individuals should note that the process of claiming these assets will require copies of the death certificates, in most chances attested copies. So, it is better to have three master copies of the death certificate and obtain multiple copies attested by the appropriate authority.
Appointing a professional
Getting oneself a professional such as a lawyer, chartered accountant or financial planner will help in having a proper approach towards making claims. For instance, recently an elderly client approached me for assistance to distribute his wife's estate. For the fear of high costs, many people prefer to adopt the 'do-it-yourself' way for estate distribution too, but that may not always be sensible. Particularly, if there are beneficiaries beyond the immediate family in the deceased's estate, liability of the individual executing the estate distribution is quite high.
Also due to an aversion to personal finance, many people may not want to take up this job all by themselves. Appointing a qualified professional will help in distributing the estate much easier without much liabilities.
Handling demat accounts
It is very important that every demat account holder appoints a nominee for his demat account, as it enables a smooth transmission of the shares in the demat account to the nominee. In cases, where a proper nomination has been made, the relevant paper work at the depository level will help in transferring the shares to the nominee. Therefore, at the time of nomination, account holders have to ensure that the nominee has a demat account.
If the deceased's demat account is held jointly with a family member, then on death, the demat account gets frozen, not allowing any operations in the account. In such cases, the joint holder has to open another account in his/ her single name and transmit the shares from the joint-holding account to the new single account.
Handling transmission of mutual fund units
Most mutual fund houses allow transfer of units to the second holder or nominee where there are no joint holders in case of death of the first holder. This process is referred to as transmission of mutual fund units.
For transmission, the joint-holder or the nominee has to submit a letter to the fund house along with copy of the death certificate of the deceased unit holder, their own KYC and bank account mandate for registering their own bank account. Depending on the value of the units, nominee may be required to submit an indemnity bond too. The process of transmission of units can take anywhere between 10 days to a month.
Filing of tax returns
If the death of the individual happens at any time during the year, the assessment of his income is to be done up to the time of his death. Accordingly, the income tax return for that relevant year up to the date of the death will be required to be filed by the legal heir. The return also needs to be signed by the legal heir in the same capacity.
If the estate settlement process takes longer, due to any court intervention or any other reason, separate return will need to be filed from the date of death till the end of the financial year. All the necessary advance tax payments or self-assessment taxes need to be paid by the legal heir out of the estate itself.
Bank accounts
It is advisable that at least one-two bank accounts may be kept open for operation even beyond
the estate settlement and distribution process for close to a year to 18 months. This would help to provide for any money due and received at a later date, which may have been missed in the distribution phase.
It is important for the individual handling this entire job to not let emotions influence any decision making and a qualified professional can be of immense help in this context.

Shome panel's tax-efficient recommendations
Implementation of the committee's guidelines on STT and short-term capital gains could increase profits of players by 30 per cent
Devangshu Datta / New Delhi Sep 09, 2012, 00:22 IST

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The tax regime is complicated for financial traders though the final tax rates are moderate. Transactions attract securities transaction tax (STT), as well as service taxes, stamp duties, etc. Equity dividends are not taxed in the hands of the receiver. The logic is that this would be double-taxation since a company pays taxes on its profits before distributing dividends.
Long-term capital gains on securities held for over a year are also tax-exempt. Profits booked within a year from trading are taxed as short-term capital gains. Profits and losses can be offset against each other, but not against other income.
The structure leaves several routes open for legal tax avoidance. A smart investor can generate a large tax-free dividend income. The offsets of profits versus losses can also be used cleverly to avoid taxes by dividend-stripping.
At the right moment, the investor buys into a stock expected to pay a large dividend. Once the dividend is paid, the stock price falls, and he sells. A tax-free dividend is received and also a tax break since the notional capital loss offset genuine profits. The tax revenue accruing from capital gains on listed securities transactions is about Rs 3,000 crore per annum. This is very low, given that the transaction volumes regularly exceed Rs 150,000 crore per day. STT revenues are more than twice as high, running at over Rs 7,500 crore per year.
The fact that STT is a more reliable route to revenue helps to explain the Shome Committee recommendations that a hike in the STT rate be coupled to the elimination of taxes on short-term capital gains. This would also equalise the tax rates between Indians and FIIs, who avoid paying capital gains tax by being headquartered in overseas tax-havens.
If traders behave rationally, such a change may lead to a temporary fall in trading volumes. Somebody who does pay short-term capital gains tax will gain from the proposed changes. But few traders actually make serious profits. In fact, most traders make losses.
The bulk of traders transact multiple times in every session. The frequent trading segment exhibits behaviour in line with the famous pareto principle: I'd guess that 10 per cent of frequent traders make 90 per cent of the short-term trading profits. The tax authorities should know the exact levels, if they bother to mine the data.
If traders behave rationally, they will cut back on their frequency of trading and thereby impact volumes. But while this may happen in the short run, history suggests that it won't happen, at least not in the long run.
When STT was introduced, the response was initially negative, But traders eventually absorbed the extra costs and volumes normalised. The Shome Committee is presumably hoping that the pattern would be similar if STT rates are hiked. It helped that the STT was introduced in fiscal 2004-05 early into a four-year bull market. The market situation is not so favourable now. But it will improve sooner or later and n the long run, most frequent traders will absorb the extra costs. If the Shome Committee recommendations are implemented, it might have another, more subtle effect. A hike in STT coupled to the removal of short-term capital gains tax should induce the smarter day-traders to change their methods and preferred timeframes.
Any trade that is closed out in less than one year gains in tax efficiency. The potential profitability increases by almost 30 per cent. A medium-term positional trade, lasting more than one session but less than one year, becomes much more attractive.
Such a timeframe requires a higher capital base than intra-day trading. Any medium-term position may run at a loss for multiple sessions. But the potential rewards are also much higher than in day-trading. This segment of the market has a more even distribution of profits. That's probably because the medium-term trader is much more sophisticated.
Apart from requiring more capital, trading for the medium-term requires a different mental attitude and a wider set of skills. For one thing, it requires more patience. It also requires a more careful juggling of stop losses and a better understanding of leverage. The trader also has to develop an ability to identify lasting trends – whether through fundamental means, or purely technically or a combination of both. This requires quite a lot of work and it usually involves taking quite a few painful losses.
While there's no certainty about the adoption of the Shome recommendations, the Finance Minister likes STT, and he was responsible for its debut. It cannot hurt for traders to get prepared for changes on the lines outlined above.

Dedicated unit likely to outsource some work; may rope in a registrar
The Securities and Exchange Board of India has set up a Sahara Enforcement Cell (SEC) to implement the Supreme Court's directions in the recent landmark judgment on two Sahara Group companies.
The apex court had on August 31 ordered Sahara India Real Estate Corporation (SIREC) and Sahara Housing Investment Corporation (SHIC) to return the Rs 24,029 crore, cumulatively collected by the two companies from 29.6 million investors, along with 15 per cent interest per annum.
These two Sahara Group companies have 90 days to deposit the money with SEBI, which would have to return the money to investors, the Supreme Court had ruled.
To ensure that the Supreme Court's directions are implemented, SEBI has now formed a cell which would, to start with, comprise two existing General Managers. The two, who will work under the overall supervision of a SEBI whole-time member, will go about the task of identifying the investors and see that the money is refunded to them, sources close to the developments said.
This new cell has also been empowered to outsource some of its work. Indications are that it may rope in an external registrar to handle the data processing of investors who are identified for refunds.
A retired Supreme Court judge, R. N. Agarwal, has already been appointed by the apex court to oversee whether the directions issued by the Supreme Court are being complied with by SEBI or not.
To mobilise the funds, the two Sahara Group companies — SIREC and SHIC — had used the instrument of unsecured optionally fully convertible debentures (OFCDs) by way of a private placement.
SIREC had in an information memorandum for prospective investors — prospectus filed with the Registrar of Companies (RoC), Kanpur, in March 2008 — clarified that the issue was a private placement and the company had no intention of listing the OFCDs in any exchange in India or abroad.

Funds mobilised

This company had issued OFCDs on an open-ended basis and it had collected over Rs 19,400 crore from 22.1 million investors between April 25, 2008 and April 13, 2011. After redemptions, the amount stood at Rs 17,656 crore as on August 31, 2011.
Similarly, SHIC had raised Rs 6,373 crore from 7.5 million investors through a prospectus filed with the RoC, Mumbai, in October 2009, the Supreme Court order noted.
Asked about the role of the Ministry of Corporate Affairs (MCA) post the Supreme Court judgment, a senior official said that the Ministry may work in tandem with SEBI on the implementation of court directions in the Sahara case. But the official maintained that it was SEBI which had full jurisdiction over public issues.
The MCA has been changing its position in the recent years as regards its oversight on unlisted companies, especially when such companies raised funds through patently public issues.
In early 2011, the Government had taken the position that unlisted companies such as SIREC and SHIC should be regulated by MCA and not SEBI. This stance, however, got reversed in the second half of 2011 after a new minister took charge of the Ministry.

Take a cover that factors in your future income and living expenses. Go for as long a tenure as possible. Buy online. And don't go overboard with the riders.
Insurance companies offer a confusing range of products, with fancy names and many bells and whistles. But the most important type of insurance you should buy is still the plain term cover. It comes pretty cheap, too.
But do you just buy one? What are the main things you should know while buying a term policy?
You need to be aware of factors such as what the insurance policy actually covers, the amount you need, premium rates, riders, medical tests, tax benefits and the mode of buying, among other things. You should also know the fine-print aspects such as splitting amount across policies.

What term insurance is

But first get this. Term insurance, unlike endowment policies or market-linked plans, is not an investment at all. It does not give you a return. It merely seeks to cover risks.
That is why term policies are the cheapest insurance you can buy. For the same sum assured, the premium you pay in a term plan will be far less than that in an endowment plan or ULIP.
Specifically, a term cover is taken so that your family is not financially deprived in case you were to die suddenly.
The idea is that the sum received on your death can be used to meet your financial commitments such as home loans, children's education, their marriage, etc.
So, you pay a specified premium for a given sum assured and this sum would be given to your nominee, if something were to happen to you, so that they can continue to enjoy their existing lifestyle without having to unduly compromise on expenses.

Choosing the cover

Now that you know it's cheap, should you just splurge on a Rs 1-crore policy? Your life is priceless, isn't it? Maybe it is, but there is a scientific way to decide how much term cover you need.
The concept is called human life value. This is nothing but a sum of all your current and future liabilities.
So, you need to figure out your annual salary, regular expenses, home loan instalments, credit-card dues, cost of children's education and marriage.
Since most of these goals pertain to the future, you also need to factor in inflation into your calculation.
If this sounds daunting to you, it isn't. All life insurance companies have calculators that enable you to systematically put in all the details under various cost heads and arrive at a target sum. This method is quite rigorous and rarely goes wrong.
Those looking for shortcuts can do this: apply a multiplier to your annual salary to decide on the sum assured that you need.
This ranges from six times if you are in the 18-24 age bracket to 12 times if you are 35-44 years of age. So, if you are 30 (multiplier is 10 in this case) and earn Rs 10 lakh annually, you may need to take Rs 1 crore as the sum assured.
Of course, the multiplier cannot be blindly applied as the sum does depend on subjective factors such as when you marry (early or late) or have children (early or late) and so on.
In such cases, you should draw up a statement of all assets and liabilities, future goals, etc, and decide on a sum assured.
You may choose to reduce the sum assured by calculating the present value of your investments, if you are a tad aggressive. But if you want a margin of safety, you can ignore your investments.
So, in the above example, if you had Rs 10 lakh as liquid investments currently, you will need to take a term cover for only Rs 90 lakh.

For how long?

The next important thing to do is to decide on the tenure of the policy.
This should ideally be till you decide to retire. That is, your intended retirement age minus your present age should be the policy tenure.
Of course, the implicit assumption is that you would have completed all your financial commitments and settled your children by the time you retire.
If you are not sure of that, buy a policy for as long a term as possible. The premiums are going to get steeper as you grow old!

the best price

For a 30-year-old male and for a 25-year policy term, the premium for a Rs 50-lakh cover ranges from Rs 7,200 to Rs 15,500 across insurance companies. These rates are for purchases made in the conventional way through agents.
In the case of online purchase made from an insurance company's Web site, the rates drop dramatically to Rs 4,500-7,640 for the same sum assured. Insurance companies pass on the benefits of not having to pay agent commission and low processing charges online to you in the form of lower premiums.
Companies such as HDFC Life, ICICI Prudential, Aegon Religare, Aviva, Bajaj Allianz and Bharti AXA are prominent players offering term cover online.
If your sum assured is large, say, in excess of Rs 1 crore, you can also split your requirement across two-three policies across insurance companies, say, Rs 50 lakh assured each if the required cover is Rs 1.5 crore.

add-ons

Along with the basic policy, you may be offered riders such as for accident, critical illness, dreaded diseases, etc.
If you opt for any of these, each one of these can escalate your premium rates by 15-20 per cent.
Our suggestion is that, if at all needed, take only the accident rider as for a slightly higher premium, your normal sum assured would be topped with an accident sum assured, which could be to the tune of half your basic sum.
Avoid other illness riders and opt for them with your health insurance policy instead, where it could work out cheaper.

Do I get tax breaks?

All premiums made for buying a term cover would give you tax benefits under section 80C. In case you opt for illness riders, that portion would qualify for additional tax deduction under section 80D.
Finally, a word of caution. Do not opt for a lower sum assured just because a higher sum assured entails a medical test.
If necessary, take the test as you can be assured that all medical facts are known to the insurance companies and factored into the premium rates. This will greatly boost the case if claims are made.






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