COMPANY CASES (CC) HIGHLIGHTS
F Conviction of directors upheld where no proof of offence punishable u/s. 24 of SEBI Act, 1992 committed by company without director's knowledge or director exercised all due diligence to prevent commission of offence : Sunita Bhagat v. Securities and Exchange Board of India (Delhi) P. 467
F Where directors in charge of and responsible to company for conduct of its business, conviction of such directors upheld : Shalender Kaushik v. SEBI (Delhi) p. 480
F Where no proof of director being in charge of and responsible to company for conduct of its business or that contravention was with her knowledge, conviction of such director set aside : Shalender Kaushik v. SEBI (Delhi) p. 480
F Subscriber to memorandum and articles of association not director, manager, secretary or officer of company, conviction of subscriber on failure by company to repay investors set aside : Shalender Kaushik v. SEBI (Delhi) p. 480
F Interest of company paramount in proceedings u/s. 397/398 of 1956 Act : Seth Hotels P. Ltd. v. Mahinder Kumar Seth (Late) (Delhi) p. 491
F Where due diligence not exhibited by director and no scheme for revival of company presented, application for recall of winding up order dismissed : Registrar of Companies v. Cyber Space Ltd. (Delhi) p. 495
F Claim petitions before Labour Court and Controlling Authority u/s. 72 of PG Act, 1972 cannot be proceeded with after passing of winding up order : Silcal Workers Union (CITU) v. Silcal Mettalurgic Ltd. (Mad) p. 502
F Circulars :
SEBI Circulars :
CIR/IMD/FIIC/19/2013, dated 28th November, 2013-Investments by FIIs/QFIs in credit enhanced bonds P. 99
F Press Notes/Releases :
Press Note No. 2 (2014 Series)-Policy on foreign investment in the Insurance Sector-Amendment of paragraph 6.2.17.7 of "Circular 1 of 2013-Consolidated FDI Policy" P. 101
F Regulations :
Securities and Exchange Board of India (Foreign Portfolio Investors) Regulations, 2014 P. 103
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Press Releases/News Alerts
Feb 12, 2014
New York, New York
New York, New York
English
IAESB Publishes Revised Information Paper on Development and Management of Written Examinations
The International Accounting Education Standards Board (IAESB) has released an International Education Information Paper to help professional organizations conduct written examinations of aspiring accountants seeking qualification.
This information paper is intended to help professional accountancy organizations implement the revised International Education Standard (IES) 6, Initial Professional Development, Assessment of Professional Competence, issued in November 2012, and covers the many policies and procedures to develop, administer, and grade written examinations. It is especially useful to still-developing organizations that need to make decisions on assessment practices for their education programs.
The paper provides an overview of the policies concerned with the development and administration of examinations, including "high stakes" examinations that lead to qualification as a member of a professional organization. It also includes examples of the processes and procedures that member bodies use to deliver reliable and valid assessments, including appropriate elements of quality control.
"IFAC member bodies have a public interest obligation to ensure that aspiring accountants are able to demonstrate competence upon entry to membership," said IAESB Chair Peter Wolnizer. "There are various methods used to assess aspiring accountants throughout the education process; however, written examinations continue to be an important assessment method. This information paper is intended to help member bodies evaluate their current approach and follow good practices that suit their environment and circumstances."
"We expect professional organizations outside accounting may also be interested in this paper," Prof. Wolnizer added. "Many of the objectives and challenges of developing and administering a final written examination exist in other professions, both regulated and unregulated."
As part of its initiative to improve the clarity of its standards, the IAESB has redrafted and revised IESs 1-6 to prescribe the requirements for Initial Professional Development. In addition, IES 7, Continuing Professional Development, has been redrafted in accordance with the IAESB's new drafting conventions. IES 8, the remaining standard in the suite of eight IESs, is expected to be redrafted and revised by the fourth quarter of 2014.
About the IAESB
The IAESB develops education standards, guidance, and information papers for use by IFAC member bodies under a shared standard-setting process involving the Public Interest Oversight Board, which oversees the activities of the IAESB, and the IAESB Consultative Advisory Group, which provides public interest input into the development of the standards and guidance. The structures and processes that support the operations of the IAESB are facilitated by IFAC.
The IAESB develops education standards, guidance, and information papers for use by IFAC member bodies under a shared standard-setting process involving the Public Interest Oversight Board, which oversees the activities of the IAESB, and the IAESB Consultative Advisory Group, which provides public interest input into the development of the standards and guidance. The structures and processes that support the operations of the IAESB are facilitated by IFAC.
About IFAC
IFAC is the global organization for the accountancy profession dedicated to serving the public interest by strengthening the profession and contributing to the development of strong international economies. It is comprised of 179 members and associates in 130 countries and jurisdictions, representing approximately 2.5 million accountants in public practice, education, government service, industry, and commerce.
IFAC is the global organization for the accountancy profession dedicated to serving the public interest by strengthening the profession and contributing to the development of strong international economies. It is comprised of 179 members and associates in 130 countries and jurisdictions, representing approximately 2.5 million accountants in public practice, education, government service, industry, and commerce.
Related Resources
- IAESB Publishes New Standards on Content of the Professional Accounting Education Program
- Call For Applications
- IAESB Proposes Revised Standard on Professional Competence of the Audit Engagement Partner
- Notice of the Call for Nominations - Candidates Sought for the Independent Standard-Setting Boards
- IAESB Releases 2012 Annual Report: Enhancing Professional Accounting Education
Effective date for levy of excise duty on cigarettes at enhanced rates vide FA, 2012 – Clarification
Circular No.981/5/2014-CX, Dated- 11th February, 2014
Subject: Effective date for levy of excise duty on cigarettes at the enhanced rates vide Finance Act, 2012 – Clarification – Regarding.
I am directed to invite your attention to the above mentioned subject.
2. In the Budget 2012-13, vide Finance Bill, 2012 as introduced in the Lok Sabha on 16.03.2012, the basic excise duty rate was increased on various lengths of cigarettes by imposing an ad valorem component in addition to the specific duty, through clause 141 of the Finance Bill read with the Seventh Schedule as under:
(i) The lowest length slab of cigarettes upto 60 mm was expanded to include cigarettes upto 65 mm while maintaining the existing duty applicable to erstwhile 60mm cigarettes.
(ii) An ad valorem component of 10% chargeable on 50% of Retail Sale Price was added to other slabs beyond 65 mm.
3. By a declaration under the Provisional Collection of Taxes Act, 1931 (hereafter referred to as the PCT Act), the above increase in the excise duty was made effective immediately on the expiry of the day on which the Finance Bill, 2012 was introduced i.e. w.e.f. 17.03.2012.
4. Subsequently, by virtue of Government amendment to the Finance Bill, 2012 as introduced, the ad valorem component of 10% was converted to a specific rate. Consequently, the basic excise duty on cigarettes was levied at specific rates which were higher than the excise duty rates proposed in the Finance Bill as introduced. The Finance Bill, 2012 received the assent of the President on 28.05.2012. Thus, the provisions of the Finance Act, 2012 came into effect from 28.05.2012.
5. The issue that arises for consideration is whether the excise duty levied on cigarettes at higher specific rates by virtue of the Government amendments to the Finance Bill, 2012 would be applicable w.e.f. 17.03.2012, immediately on the expiry of the day on which the Finance Bill, 2012 was introduced or w.e.f. 28.05.2012, when the Finance Bill, 2012 received the assent of the President.
6. In the post-Budget letter issued under F.No.334/1/2012-TRU dated 01.06.2012, it was clarified that since clause 141 of the Finance Bill, 2012 read with the Seventh Schedule, by virtue of which the excise duty on cigarettes was increased, was declared under PCT Act, therefore the rates proposed in the Finance Bill came into effect from 17.03.2012. And, since the rates proposed in the Finance Bill have been revised through Government amendments, the revised rates will apply with effect from 17.03.2012.
7. However, representations have been received from trade and industry as well as field formations stating that the increase in the excise duty would be effective from 28.05.2012 and not w.e.f. 17.03.2012, as clarified in the said letter.
8. In view of the conflicting views on the issue, the matter was examined in consultation with the Ministry of Law and Justice. Ministry of Law & Justice has opined that under section 3 of the Provisional Collection of Taxes Act, 1931 (PCT Act) a declaration can be made by the Central Government while introducing the Bill for imposition or increase of a duty of customs or excise in the public interest. Under section 4(1) of the PCT Act, a declared provision shall have the force of law immediately on the expiry of the date on which the Bill containing it is introduced. Under sub-clause 2 (a) of this section, a declared provision ceases to have the force of law when it comes into operation as an enactment with or without amendment.
8.1 In view of above legal position and also in view of the declaration made while introducing the Finance Bill, 2012, the excise duty as provided through said Bill will have the force of law from the date on which the Finance Bill was introduced i.e. 17.03.2012. Since the amendments proposed to the Finance Bill were in the form of official amendments and no separate Bill was required for the said purpose, no declaration under the PCT Act is permissible. However, in view of the provisions of section 4(2)(a) of the PCT Act, the declaration made ceases to have force of law once the enactment comes into operation.
8.2 In the light of the above legal position, as the amendments were proposed to the Finance Bill, 2012 only on 08.05.2012 and assented by the President on 28.05.2012, the same will have its applicability only from the date of assent by the President. Thus, insofar as the levy of excise duty on cigarette at enhanced rates, as contemplated in the amendments moved on 08.05.2012, is concerned, the amended provisions will have effect only from the date of assent of President i.e. from 28.05.2012.
9. The above opinion of the Ministry of Law & Justice has been accepted by the Government. It is, thus, clarified that the tariff rate of duty on cigarettes levied vide amendments in the Finance Act, 2012 shall be applicable from the date of enactment of the said Finance Act i.e. 28.05.2012 and not from 17.03.2012.
10. Trade Notice/Public Notice may be issued to the field formations and taxpayers.
11. Difficulties faced, if any, in implementation of this Circular may be brought to the notice of the Board.
Hindi version follows.
F.No.345/01/2013-TRU
(Rajkumar Digvijay)
Under Secretary (TRU)
'Top 10 Indian Cyber Crimes' while filing online Income Tax Returns
By : Ferry Dhiman on 03 February 2014 Report Abuse Print Print this
YES people now a days are net savvy , though unknowingly they may be trapped under Information Technology Act ,2000 . Following are the top ten 'Cyber Crimes' while filing Indian Income Tax return Online:-
1. Sending request to password change of any other person without authority:
If on the web portal of Indian Income Tax Department request is found to be sent by any person without any consent from the assessee or authority to do so is not obtained U/s 4B of Information Technology Act 2000 .The assessee can file complaint under section 72 IT act 2000 against such person.
2. Quoting false address or email for creating PAN ID in online data on behalf of assessee:
In general an assessee can make his own online ID quoting PAN , but various business concerns /companies or non computer user's hand over this work to accountants. Any entry with regard to address or email is filled wrong or with the intent to keep the assessee henpecked at later stage is a cyber crime u/s 65 read with 71 of IT Act 2000.
3. Registering PAN on income tax portal without the PAN holder's consent-:
It is again an offence under section 65 of IT Act 2000. So after investigation U/s 78 of IT Act 2000 punishment may be given to the defaulter.Similarly if any professional / accountant found that he has access to all pan data of its company employees or clients and/or he voluntary register PAN ie without consent , while the PAN holders wanted to file manual returns , that kind of act is a crime of putting personal information on Internet server without consent . Though Chartered accountants / tax lawyers are exempt provided they obtain POA / consent to engage such professionals u/s 4B of IT Act 2000 as exceptions .
4. Hacking password with false digital signatures:
It is an offence U/S 66 of IT Act 2000 , however the income tax portal has stopped to entertain password change request by those with new emails ie other than those who created the profile . Mostly Chartered accountants / tax lawyers & accountants now keep the passwords of assessees. The only way to change password is to obtain digital signatures. But few agencies issue digital signs in hurry in this competition world. However in Private limited / limited companies case or where the digital signs are mandatory one can not attach false digital sign.CA's & other professionals are advised to obtain prior permission /POA from all Asseessees for record to avoid any dispute in future.
5. Not disclosing the password created for the Assessee -:
It is right of the assessee to know the profile password & username ( PAN generally)from the person who created it with own password to facilitate him for online Income tax return filing. If the creator of password & he has no written permission from assessee & refuses to give the password , a complaint may be made for which the offender u/s 43 read with 44 of IT Act 2000 may be imposed a penalty.
6. Claiming false Income tax refund:
Income tax refunds can not be claimed by making false entries in Online ITR in TDS column, so always analyse your 26 AS and try to update data from employer / contractor . Claiming refund without any relevance is punishable under Income Tax , as well as under information technology act read section 65 of IT Act 2000.
7. Quoting bogus online bank Challan entry in self assessment paid tax column:
Sometime in hurry ,just to complete the income tax return online or due to misplace of Challan entry details assessee files return giving hypthtical Challan no/bank name . For which demand is raised by Income Tax Department . The department may Investigate & can file complaint u/s 65 of IT ACT 2000 along with Income Tax Act provisitions.
8. No TDS deposit but deduction from taxpayer with fake online entries:
This kind of offence is played mostly by employers /contractors ie in transport or big overseas companies . They deduct the amount and thereafter issue the details /via accounts but later in 26 As online the person from whom the TDS charged found there is no such entry . The employer can pretend a clerical mistake but the deductee can file case under Information Technology Act 2000 U/S 65.
9. Filing Income tax return claiming false deductions for tax saving:
This is with context to Section 80C , HRA & other deductions normally an Individual assessee claim in online filing of return . The HRA deduction has now secured with a lie check for, the department is now demanding all details of the Renter(owner) of the house , his PAN etc is mandatory to be given in online return , however in deductions of insurance other documents are still not demanded . If such act of assessee is found guilty and deliberate proceedings may be initiated against him/them.
10. Bogus online complaints against an assessee for personal grudges :
The Income Tax Department has its complaint / whistleblowers wing ,where the personal details are said to be kept secret of a complainent regarding illegal earnings /incomes. But though people file false complaints out of some personal grudges . If such complaint is traced via Google search from an identifiable email ,the person after investigation person can be trailed u/s 67 Information technology Act 2000.
Note – The above Cyber crime related information is for general knowledge only and may not be perfect ,however for details expert guidance is suggested to all readers/CA/Tax Lawyers for more clarity
Writer: Ferry Dhiman Chief Counsel FDC, India
Contact for more details info@lawferry.com
Sasi Enterprises vs. ACIT (Supreme Court)
Prosecution for offence u/s 276CC for failure to file ROI can be initiated during the pendency of assessment proceedings. The statement in the individual returns of the partners that the firm has not filed a ROI as its' accounts are not finalized does not absolve the firm of prosecution for non-filing of ROI
The offence u/s 276CC is attracted on failure to comply with the provisions of s. 139(1) or failure to respond to the notice issued u/s 142 or s. 148 within the time limit specified therein. The contention that pendency of the appellate proceedings is a relevant factor for not initiating prosecution proceedings u/s 276CC is not acceptable. S. 276CC contemplates that an offence is committed on the non-filing of the return and it is totally unrelated to the pendency of assessment proceedings except for second part of the offence for determination of the sentence of the offence, the department may resort to best judgment assessment or otherwise to past years to determine the extent of the breach. The language of s. 276CC is clear so also the legislative intention. If it was the intention of the legislature to hold up the prosecution proceedings till the assessment proceedings are completed by way of appeal or otherwise the same would have been provided in s. 276CC itself. Therefore, the contention that no prosecution could be initiated till the culmination of assessment proceedings,
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