List of Resolution for which MGT-14 requires to be filed
CS Divesh Goyal
Form MGT-14 requires filing for following below mention Resolutions:1. Section- 8: For a company registered under Section- 8 to convert itself into a company of any other kind or alteration of its Memorandum or Articles
2. Section – 12:Shifting Of Registered Office.
3. Section-13:Alteration in MOA.
4. Section- 14: Alteration in Article.
5. Section 13(8): A company, which has raised money from public through Prospectus and still has any unutilized amount out of the money so raised, shall not Change its objects for which it raised the money through prospectus unless a special Resolution is passed by the company.
6. Section 27(1): A company shall not, at any time, vary the terms of a contract referred to in the prospectus or objects for which the prospectus was issued, except subject to the approval of, or except subject to an authority given by the company in general meeting by way of special resolution.
7. Section 41A: A company may, after passing a special resolution in its general meeting, issue depository receipts in any foreign country in such manner, and subject to such conditions, as may be prescribed. (Section still not applicable).
8. Section 48(1): Where a share capital of the company is divided into different classes of shares, the rights attached to the shares of any class may be varied with the consent in writing of the holders of not less than three-fourths of the issued shares of that class or by means of a special resolution passed at a separate meeting of the holders of the issued shares of that class.
9. Section 54: Issue of Sweat Equity Shares.
10. Section 62(1) (c): Preferential allotment of shares.
11. Section 65: Conversion of Unlimited company into limited company.
12. Section 66(1): Reduction of Share Capital.
13. Section 67(3) (b): Special resolution for approving scheme for the purchase of fully-paid shares for the benefit of employees.
14. Section 68(2)(b): Buy Back of Shares.
15. Section 71(1): A company may issue debentures with an option to convert such debentures into shares, either wholly or partly at the time of redemption: Provided that the issue of debentures with an option to convert such debentures into shares, wholly or partly, shall be approved by a special resolution passed at a general meeting.
16. Section 76:Inviting deposits from person other then members.
17. Section-94:Keep registers at any other place in India.
18. Section 140(1): The auditor appointed under section 139 may be removed from his office before the expiry of his term only by a special resolution of the company, May appoint more than 15 directors by passing of Special resolution.
19. Section- 149(10): Re-appointment of Independent Director.
20. Section 165(2): Subject to the provisions of sub-section (1), the members of a company may, by special resolution, specify any lesser number of companies in which a director of the company may act as directors.
21. Section- 180: The Board of Directors of a company shall exercise the following powers only with the consent of the company by a special resolution, namely-
a. to sell, lease or otherwise dispose of the whole or substantially the whole of the undertaking of the company or where the company owns more than one undertaking, of the whole or substantially the whole of any of such undertakings.
b. to invest otherwise in trust securities the amount of compensation received by it as a result of any merger or amalgamation.
c. to borrow money, where the money to be borrowed, together with the money already borrowed by the company will exceed aggregate of its paid-up share capital and free reserves, apart from temporary loans obtained from the company's bankers in the ordinary course of business.
d. to remit, or give time for the repayment of, any debt due from a director.
22. Section- 185:For approving scheme for giving of loan to MD or WTD.
23. Section- 188:To enter into related party transaction with the company if paid up capital of company exceed Rs.10/- Crore.
24. Section- 186(3): Loan & Investment by company exceeding 60% of paid up share capital or 100% of free reserve.
25. Section- 196: Appointment of a person as Managerial Personnel if, the age of Person is exceeding 70 year.
26. Schedule V: Remuneration to Managerial personnel if, profits of company are Inadequate.
27. Section 248: Power of registrar for removal name of company.
28. Section 271(1)(b): Special Resolution for winding up of the company by Tribunal.
29. Section 304(b): Special Resolution for winding up of company
AS PER SECTION 179(3): The Board of Directors of a company shall exercise the following powers on behalf of the company by means of resolutions passed at meetings of the Board, namely:—these resolutions are also necessary to file in MGT-14.
- To make calls on shareholders in respect of money unpaid on their shares.
- To authorize buy-back of securities under section 68.
- To issue securities, including debentures, whether in or outside India;
- To borrow monies;
- To invest the funds of the company;
- To grant loans or give guarantee or provide security in respect of loans;
- To approve financial statement and the Board's report;
- To diversify the business of the company;
- To approve amalgamation, merger or reconstruction;
- Take over a company or acquire a controlling or substantial stake in another company;
- Any other matter which may be prescribed.
In addition to the things mention above the following things are shall also require to file with ROC in MGT-14 per Rule 8 of Companies (Meetings of Board and its Powers), Rules 2014-
- To make political contributions.
To appoint or remove key managerial personnel (KMP)
To take note of appointment(s) or removal(s) of one level below the Key Management Personnel;
To appoint internal auditors and secretarial auditor;
To take note of the disclosure of director's interest and shareholding;
To buy, sell investments held by the company (other than trade investments), constituting 5% or more of the paid up share capital and free reserves of the investee company;
To invite or accept or renew public deposits and related matters;
To review or change the terms and conditions of public deposit;
To approve quarterly, half yearly and annual financial statements or financial results as the case may be.
(Author can be reached at csdiveshgoyal@gmail.com )
A Close Watch On Service Tax Defaulters
CA Pradeep Jain,
CA Neetu Sukhwani &
Ankit Palguata
The Government has enhanced the rate of interest to be charged on delayed payment of Service tax under Section 75 of Finance Act, 1994. This increase in the rate is based on period of delay rather a single increased rate for any period of delay. Thus, due to this change in the marginal difference in the rate of interest, interest recovered by the government will be high as compared to interest recovered before amendment. The increased rates according to the period of delay will be effective from 01.10.2014. It seems as if the government wishes to catch hold the service tax defaulters tightly because the service sector contributes to a substantial share in the overall revenue of the government. After giving the service tax assessees an opportunity to come clear by filing declarations in VCES and come clean, this enhancement in the interest rate for delayed payment of service tax depicts the intention of the government to keep a close eye on the service tax assessees.
Glance at the erstwhile provision:
The Govt. had prescribed Interest rate as 18% for delayed payment of service tax after due date under Section 75 of Finance Act, 1994. Every person, liable to pay the tax in accordance with the provisions of the charging section or the Service Tax Rules made thereunder, and who fails to credit the tax or any part thereof to the account of the Central Government within the period prescribed, shall pay simple interest at the rate of 18% per annum, for the period by which such crediting of the tax or any part thereof is delayed.
Provided that in the case of a service provider, whose value of taxable services provided in a financial year does not exceed sixty lakhs rupees
- during any of the financial years covered by the notice or
- during the last preceding financial year, as the case may be,
such rate of interest, shall be reduced by three per cent per annum i.e. effective rate of interest will be, in this case, 15%.
Amended Provision:
The Government has amended the rate of Interest to be charged on delayed payment of Service Tax. The Government has increased interest rate vide Notification no. 12/2014-ST dt. 11.07.2014 which is tabulated as under-
| S. No. | Period of Delay | Rate of Interest |
| 1 | Up to six months | 18% per annum |
| 2 | More than six months & upto one year | 18% for first six months of delay, and 24% for the period of delay beyond six months |
| 3 | For more than 1 year | 18% for the first six months of delay, 24% for the period beyond six months upto one year, and 30% for the period of delay beyond one year. |
Further, this amendment relating to variable rates of Interest will come into effect from 1st October 2014. Also the benefit of 3% concession in interest rate is available to small service providers.
Conclusion:-
This amendment, of increasing rate of interest on payment of Service tax after due date, is definitely not good from view point of assessee because of the high rate of interest which will prove to be extra burden to the assessee. Further, as the Government has increased rate on the basis of period of delay rather than flat increase in the rate irrespective of the time period, it will ultimately increase the burden of interest on the assessee. It appears that this measure has been taken by the Government to speed up the receipts of service tax payments within due course of time. But if an analysis is made on impact of this change, then amount of Interest on delayed payment of interest that will be charged from the service tax defaulters will be much higher than that charged before. This will be clear from an illustration as given below:-
Assume a case where service tax amounting to Rs. 10, 00,000/- became due, say, on the 6th of July, 2012 and the assessee pays the dues on 6th of December, 2014. In such a case, the interest to be charged would be as below:
(i) 18% simple interest upto September, 30th, 2014.
(ii) For the period from 1st October, 2014 to 6th December, 2014, the rate of interest will be 30% since the period of delay is beyond one year.
| Period | Delay | Amended Interest | Prior to Amendment |
| For period from 6.07.2012 to 30.09.2014 | 816 days | 1000000*18%*816/365 = 402411/- | 1000000*18%*883/365 = 435452/- |
| For period from 1.10.2014 to 06.12.2014 | 67 days | 1000000*30%*67/365 = 55068/- | |
| Total | 457479/- | 435452/- | |
Therefore, all we can say is that the service tax assessees should not think to delay the payment of service tax and beware because the extent of delay would determine their interest liability. However, it is appreciated that the proviso to section 75 granting three per cent concession on the applicable rate of interest will continue to be available to the small service providers. This fact is even clarified in the TRU letter issued by the government on 10.07.2014.
Before Parting:-
It is observed that the government is making every attempt to focus on its key source of revenue and making efforts to maximize the same. This is also reflected from the other amendments made in the Service Tax Laws wherein certain exemptions have been withdrawn and the scope of service tax has been expanded. Well, all that we can say to the Service Tax Assessees is BEWARE!!!
Extending Advance Ruling to Resident Private Limited Companies
CA Pradeep Jain
CA Neetu Sukhwani
Ankit Palgauta
The Union Budget 2014-15 was announced by The Hon'ble Finance Minister 'Arun Jeithly' on 10.07.2014. In this budget, some amendments have been made in the regime of Indirect Taxation i.e. Central Excise, Service tax, Customs etc. One of the amendments is about eligibility of availing Advance Ruling in Central Excise, Customs and Service tax matters. This is a very beneficial step taken in order to reduce litigations.
Glance at the Earlier Provision:-
As per provisions relating to Advance Rulings contained in section 23C of the chapter III A of central Excise Act, 1944, and similar provisions contained in Section 96A of the Finance Act, an applicant desirous of obtaining an advance ruling may make an application in such form and in such manner as may be prescribed, stating the question on which the advance ruling is sought. For this purpose, followings are allowed to make application to advance ruling authority-
- a non-resident setting up a joint venture in India in collaboration with a non-resident or a resident; or
- a resident setting up a joint venture in India in collaboration with a non-resident; or
- a wholly owned subsidiary Indian company, of which the holding company is a foreign company, or which, as the case may be, proposes to undertake any business activity in India;
- a joint venture in India; or
- a resident Public limited companies
- a resident falling within any such class or category of persons, as the Central Government may, by notification in the Official Gazette, specify in this behalf, and which or who, as the case may be, makes application for advance ruling under sub-section (1) of section 23C;
Amended Provision:-
The amendment seeks to extend the benefit of Advance Ruling to Resident Private Limited Companies. In pursuant to section 23A (c)(iii) of the Central Excise Act, 1944 and similar section 96A (b)(iii) of the Finance Act, 1994, the government has exercised its power to specify "Resident Private Limited Companies" as the category of persons who may obtain advance ruling. This amendment is made vide Notification no. 18/2014 CE (NT) DT. 11.07.2014 in Central Excise, vide Notification no. 51/2014 CUS (NT) DT. 11.07.2014 in Custom and vide Notification no. 15/2014- ST DT. 11.07.2014 in Service Tax.
Thus, through above mentioned notifications, Central Government has exercised the power and specified the Resident Private limited Companies as class of person eligible to make application for Advance Ruling.
For the purposes of this notification,-
(a) "private limited company" shall have the same meaning as is assigned to "private company" in clause (68) of section 2 of the Companies Act, 2013 (18 of 2013);
(b) "resident" shall have the same meaning as is assigned to it in clause (42) of section 2 read with sub-section (3) of section 6 of the Income-tax Act, 1961 (43 of 1961).
Conclusion:-
Presently, only a selected category of persons are eligible for Advance Ruling. The definition of applicant as given consists of mainly Joint venture having non-residents also and Resident Public Limited Companies. Now, the Central Government has made efforts to include 'Resident Private Limited Companies' under the meaning of the Applicant eligible for filing application of Advance Ruling in Central Excise, Customs and Service Tax matters.
Thus, this is a welcome step by the Government. This facility of Advance Ruling is primarily available only to non-residents who want to carry on business in India with residents and wants to be very clear about tax implications so as to be free from any litigation or dispute. This step of Government will enable the 'Resident Private Limited Companies' to obtain Advance Ruling in cases of Central Excise, Customs and Service tax matters. By this step, more exact, consensus or uniform ruling may be obtained by the Resident Private Limited Companies and harmony may be achieved in the tax compliance. Thus, the Government is gradually increasing the scope of Advance Ruling which is a good indication for error- free and litigation free working. In the near future, the same would provide conducive tax environment to work in.
Solution to Problems in Registering DSC and signing ITR
While Registering Digital Signature Certificate , Uploading of XML File and Signing of XML file on Income Tax E-filing websites we faces various problems. In this article we have listed out such problems which are mainly related to use of digital signature while registering and while signing the ITR.
Register DSC
Problem Description : I am not able to register my Digital Signature Certificate.
Corrective Action:This occurs due to the following reasons:
- Check if Java Runtime Environment 1.7 or above is installed in your PC.
- If Java Runtime Environment 1.7 or above is installed in your PC and still you are unable to register DSC to e-Filing application, this is because the Java is disabled. GO TO Internet Options –> Advanced –> Settings . Enable the chec-box for 'Java'.
Problem Description : While trying to e-File Income Tax Return using Digital Signature Certificate, the 'Select your .pfx file' or 'Select with your USB Token' buttons are not displayed or are not clickable.
Corrective Action:This occurs due to the following reasons:
- Check if Java Runtime Environment 1.7 or above is installed in your PC.
- If Java Runtime Environment 1.7 or above is installed in your PC and still you are unable to register DSC to e-Filing application, this is because the Java is disabled. GO TO Internet Options –> Advanced –> Settings . Enable the check-box for 'Java'.
Problem Description : An error appears on the screen: The E-mail ID in the Digital Signature Certificate does not match. Please retry.
Corrective Action:The registered e-mail ID in your e-Filing profile is not the same as in your Digital Signature Certificate. In case it is not the same, you can:
- GO TO 'Profile Settings' –> 'Update contact details' and change the e-mail ID or,
- Get a new Digital Signature certificate from your Certificate Provider which contains the same e-mail ID as mentioned in your profile.
Problem Description : An error appears on the screen: Invalid Digital Signature Certificate. Please contact your Certicate Provider.
Corrective Action:This could be due to the below reasons:
- Digital Signature Certificate is revoked.
- Digital Signature Certificate is not Level 2 or above. Only Level 2 or above Digital Certificates can be registered on e-Filing website.
- Digital Signature Certificate is not created in SHA-1 (Hash algorithm and 1024 bit RSA) or SHA-2 (Hash algorithm and 2048 bit RSA).
In this case, you should contact the Certificate Provider and get your Digital Signature Certificate checked.
Problem Description : An error appears on the screen: Validity of the Digital Signature Certificate has expired. Please update a valid Digital Signature Certificate.
Corrective Action:The validity period of the Digital Signature Certificate has ended. Attain a new Digital Signature Certificate from the Certified Service Providers and then register.
Problem Description : An error appears on the screen: Validity of the Digital Signature Certificate has not commenced. Please contact your Certificate Provider.
Corrective Action:The validity period of the Digital Signature Certiifcate has not yet started. A Digital Certificate cannot be registered if the validity period is yet to begin. You can:
- Register the same Digital Signature Certificate post the 'Start date' of the Digital Signature Certificate.
- Contact your Certificate Provider and attain a Certificate with a 'Start Date' same or less than the date of registering the DSC with e-Filing website.
Problem Description : An error appears on the screen: Invalid Digital Signature Certificate. The trusted Parent Certificate could not be verified.
Corrective Action:Digital Signature Certificate does not belong to a Trusted Certificate Provider.
In this case, you should contact the Certificate Provider and get your Digital Signature Certificate checked.
In this case, you should contact the Certificate Provider and get your Digital Signature Certificate checked.
Problem Description :An error appears on the screen:The PAN mentioned in the Digital Signature Certificate does not match. Please retry.
Corrective Action:This could occur due to the below reasons:
- The PAN in the Digital Signature Certificate does not match with your registered PAN. You should contact your Certificate Provider and get the PAN in your Digital Signature Certificate checked.
- If you are a Firm/Company/ AOP/BOI/ Legal authority/ Co-operative society, Artificial Juridical Person/ Trust, ensure that the PAN mentioned in the Digital Signature is that of the current Principal contact (Authorized signatory). If your prinicipal contact has changed, ensure that you have updated the PAN details of the new principal contact (under 'Profile Settings' –> 'Update Principal Contact's details), and the PAN encrypted in DSC matches with PAN of Principal contact.
Problem Description :An error appears on the screen: The Digital Signature Certificate is already registered.
Corrective Action:A Digital Signature Certificate (DSC) cannot be registered by multiple users. This error appears due to the below reasons:
- The DSC you are registering belongs to someone else. Make sure that the DSC you are registering belongs to you and has your PAN and e-mail ID encrypted.
- The only exception to this rule is that an authorized signatory (principal contact) for an organization should register his/her own DSC to e-File for the organization. The same DSC can be used for personal e-Filing too.
Problem Description :I am the Principal contact (authorized signatory) for a Firm/Company/ AOP/BOI/ Legal authority/ Co-operative society, Artificial Juridical Person/ Trust. I am trying to upload Income Tax Return using Digital Signature Certificate (DSC) for the same but I am getting an error message saying "PAN mentioned in Personal/ Verification section is invalid". What should I do?
Corrective Action:Please ensure that the PAN entered in the Verification section of the Income Tax Return is your (Authorized signatory) PAN and not of the Firm/Company/ AOP/BOI/ Legal authority/ Co-operative society, Artificial Juridical Person/ Trust.
Also, if the Income Tax Return is being digitally signed, the PAN encrypted in the DSC must match with the PAN mentioned in the verification section.
Also, if the Income Tax Return is being digitally signed, the PAN encrypted in the DSC must match with the PAN mentioned in the verification section.
Problem Description : An error appears on the screen: Invalid File format. Please retry.
Corrective Action:The DSC uploaded is not a valid DSC. Please select a valid DSC and upload it.
Still facing issue with the valid DSC/Invalid DSC :
Solution:Contact Helpdesk with the following details. Helpdesk will raise a ticket and will revert with the solution.
- PAN
- Full Name of the Individual/Name of the Company OR BoI OR Local Authority OR Firm OR Trust OR AOP OR AJP
- DoB/DoI
Opt for Higher Security/ LOGIN
Problem Description :An error appears on the screen:You need to register your Digital Signature Certificate before opting for Higher Security. To register, GO TO –> My Profile –> Register Digital Signature Certificate.
Corrective Action:
- For Individual/CA – Please register your DSC by navigating to –> My Profile –> Register Digital Signature Certificate. On registering, you can enable higher security by navigating to –> My Profile –> Opt for Higher Security.
- For Company/BOI/Local Authority/Firm/Trust/AOP/AJP – Please update your Principal Contact details and register your DSC by navigating to –> My Profile –>Update Principal Contact and then My Profile –> Register Digital Signature Certificate. On registering, you can enable higher security by navigating to –> My Profile –> Opt for Higher Security.
Problem Description :I am not able to enable Higher Security.
Corrective Action:To enable higher security, GO TO 'Profile Settings' –> 'Opt for Higher Security'.
If you are not able to enable higher security, it could be because your Digital Signature Certificate is NOT registered with e-Filing web-site. GO TO 'Profile Settings' ? 'Register Digital Signature Certificate' and register the Certificate first. Once Certificate is registered, enable the option for higher security.
If you are not able to enable higher security, it could be because your Digital Signature Certificate is NOT registered with e-Filing web-site. GO TO 'Profile Settings' ? 'Register Digital Signature Certificate' and register the Certificate first. Once Certificate is registered, enable the option for higher security.
Problem Description :I have enabled higher security. I am uploading my Digital Signature Certificate during LOGIN but I am unable to LOGIN.
Corrective Action:In case you are not able to LOGIN using Digital Signature Certificate, it could be due to the following reasons:
- The Digital Signature Certificate used for LOGIN is not the registered Digital Signature Certificate. Use the same registered Digital Signature Certificate to LOGIN.
- Digital Signature Certificate is Revoked (Invalid). Contact the Certificate Provider in such cases.
- Digital Signature Certificate is not from a Trusted Certificate provider. Contact the Certificate provider in such cases.
- The Digital Signature Certificate's validity has EXPIRED. In such cases, you can LOGIN with User ID and Password ONLY (Date of Birth/ Incorporation in case of Individuals, Corporates and Chartered Accountants), but your higher security is disabled. To enable it again, attain a fresh valid Digital Signature Certificate and register. To register, GO TO 'Profile Settings' ? 'Register Digital Signature Certificate'. Once Digital Certificate is registered, you can enable higher security.
Problem Description :I have enabled higher security. I am uploading my Digital Signature Certificate during LOGIN but I am getting an error: Invalid Digital Signature Certificate. Please retry.
Corrective Action:This is because the Digital Signature Certificate being used to LOGIN is not the registered Digital Signature Certificate. Use the same Digital Signature Certificate which is registered to LOGIN.
Problem Description :I have enabled higher security. I am uploading my Digital Signature Certificate during LOGIN but I am getting an error: Invalid Digital Signature Certificate. Please contact your Certicate Provider.
Corrective Action:This error occurs if the Digital Signature Certificate registered with e-Filing is Revoked (invalid). Contact the Certificate Provider in such cases.
Problem Description :I have enabled higher security. I am uploading my Digital Signature Certificate during LOGIN but I am getting an error: Invalid Digital Signature Certificate. The trusted parent certificate could not be verified.
Corrective Action:This error occurs if the Digital Signature Certificate registered with e-Filing is not from a Trusted Certificate provider. Contact the Certificate provider in such cases.
Problem Description :I have enabled higher security. I am uploading my Digital Signature Certificate during LOGIN but I am getting an error: Cannot read Certificate Keystrore file <File Name>. The file is either not in PKCS#12 format (.P12 or .PFX) or is corrupted or the password is invalid.
Corrective Action:This error occurs if the Password is not entered properly OR the Digital Signature Certificate is improper. Ensure the password entered is correct. If the problem persists, contact your Certificate provider.
Forgot Password
Problem Description :I have forgotten my password. How can I reset my password?
Corrective Action:Password can be reset by following the below steps:
- Click on the 'Login here' option on the homepage.
- Click on 'Forgot Password' link.
- Enter your User ID and click 'Continue'.
- You can choose to reset your password using one of the three options- Answer Secret Question, Upload Digital Signature Certificate (if registered), OR Provide e-Filing Acknowledgment Number and Bank Account Number.
- Provide the required details and Submit.
- On submission, the details entered are validated. On success, the user will be able to enter the new and confirm password and click SUBMIT.
- User will be able to LOGIN with the new password.
Problem Description :What is the secret question and answer I need to provide to reset my password?
Corrective Action:The Secret Question and Answer is the one selected at the time of registration OR if you have changed it on a later date under 'Profile settings'.
Provide the same secret question and answer to reset the password.
Provide the same secret question and answer to reset the password.
Problem Description :What is Acknowledgment Number under 'Enter e-Filed Acknowledgment Number and Bank Account Number'?
Corrective Action:The Acknowledgment Number is the 15 digit number generated when an Income Tax Return is e-Filed. To reset the password using this option, you should enter the Acknowledgment Number, select the Assessment Year for which the return is e-Filed and enter the Bank Account Number as provided in the e-Filed Income Tax Return of the selected Assessment Year.
Problem Description :I am trying to upload the Digital Signature Certificate but it displaying an error.
Corrective Action:In case you are not able to upload Digital Signature Certificate, it could be due to the following reasons:
- The Digital Signature Certificate used is not the registered Digital Signature Certificate. Use the same registered Digital Signature Certificate to LOGIN.
- You have not registered your Digital Signature Certificate.
- Digital Signature Certificate is Revoked (Invalid) or Expired. Contact the Certificate Provider in such cases.
- Digital Signature Certificate is not from a Trusted Certificate provider. Contact the Certificate provider in such cases.
Legal Heir
Problem Description :What all document do I need to attach as a ZIP file during registering myself as Legal Heir?
Corrective Action:You need to scan the following documents and ZIP them in a file:
- Copy of the Death Certificate of the deceased person,
- Copy of the PAN card of deceased person,
- Self attested copy of PAN card of the Legal Heir.
- Self attested copy of Legal Heir Certificate
Problem Description :I received an e-mail from Income Tax Department stating that my request for Legal Heir has been accepted and I am assigned as the Legal Heir for the deceased. Can I e-File for the deceased person now?
Corrective Action:Yes.
Problem Description :I am assigned as the Legal Heir for the deceased person. How can I e-File for the deceased person?
Corrective Action:LOGIN using your own User ID, Password and Date of Birth. Once logged in, GO TO 'e-File' –> 'Upload Return'. Select the PAN from the drop-down option as the deceased's PAN. Fill the remaining details on the page and upload XML. Sign using DSC if available and applicable.
Problem Description :I am trying to upload Income Tax Return for a deceased but I am getting an error message saying "PAN mentioned on Personal/ Verification section is invalid". What should I do?
Corrective Action:Please ensure that the PAN entered in the Verification section of the Income Tax Return is your (Legal heir) PAN and not of the deceased person. Also, if the Income Tax Return is being digitally signed, the PAN encrypted in the DSC must match with the PAN mentioned in the verification section.
Problem Description :Whose Digital Signature Certificate (DSC) can I use to e-File the deceased's Income Tax Return?
Corrective Action:You need to use your own valid Digital Signature Certifcate (DSC) which is registered with e-Filing.
Miscellaneous
Problem Description :I am the Principal Contact (authorized signatory) for a Firm/Company/ AOP/BOI/ Legal authority/ Co-operative society, Artificial Juridical Person/ Trust. I am trying to upload Income Tax Return for the same but I am getting an error message saying "PAN mentioned in Personal/ Verification section is invalid". What should I do?
Corrective Action:Please ensure that the PAN entered in the Verification section of the Income Tax Return is your (Authorized signatory) PAN and not of the Firm/Company/ AOP/BOI/ Legal authority/ Co-operative society, Artificial Juridical Person/ Trust. Also, if the Income Tax Return is being digitally signed, the PAN encrypted in the DSC must match with the PAN mentioned in the verification section.
Problem Description :I am unable to select the date from the calendar provided.
Corrective Action:Open your Internet explorer browser and GO TO Tools –> Internet Options –> Advanced –> Reset Internet Explorer settings, and Click the Reset button.
Problem Description :I am trying to upload the Income Tax Return XML but I am getting an error 'fake path and can't read the file'. What should I do?
Corrective Action:Please do the following settings: Internet explorer –> Tools –>Internal Option –> Security –> reset the setting to medium high, close and reopen the Internet Explorer.
OR
Create a folder called 'fakepath' in your C drive and store the XML in the folder. On BROWSE, select this file and upload.
Problem Description :I am trying to upload my Income Tax Return but an error is displayed as 'Please upload a valid XML'.
Corrective Action:This occurs when the file you are trying to upload is not an XML file. Please ensure that you upload the XML (generated from the Excel utility) and not the Excel.
(Updated on 31.07.2014)
Source- Income Tax Department
Deputation of employees on cost-sharing basis does not fall under Supply of Manpower Services
We are sharing with you an important judgment of the Hon'ble High Court of Gujarat in the case of Commissioner of Service Tax Vs. Arvind Mills Ltd. [(2014) 45 taxmann.com 376 (Gujarat)] on the following issue:
Issue:
Whether the deputation of employees to subsidiary companies for limited period on cost-sharing basis covered under Manpower Recruitment or Supply Agency's Services?
Facts & background:
Arvind Mills Ltd. ("the Respondent") was engaged in manufacturing of fabrics and ready-made garments. The Respondent deputed some of its employees to its subsidiaries which were engaged in similar businesses for a limited period. The Revenue contended that the Respondent was a Manpower Recruitment & Supply agency rendering manpower supply services.
The Hon'ble Tribunal rejected the contention of the Revenue on the premise that the Respondent deputed its employees to its subsidiaries only. Further, the employees of the Respondent worked under the direction and supervision of the Respondent only. Furthermore, the deputed employees were repatriated to the Respondent upon completion of their work. Therefore, the Hon'ble Tribunal concluded that the Respondent cannot be covered under Manpower Recruitment or supply agency Services.
The Revenue filed an appeal before the Hon'ble Gujarat High Court ("the HC").
Held:
The HC upheld the view taken by the Hon'ble Tribunal. The HC observed that in terms of Section 65(68) of the Finance Act, 1994 ("the Finance Act"), the definition of Manpower Recruitment or Supply agency at the relevant time (prior to April 18, 2006) means as under:
"Manpower recruitment or supply agency means any commercial concern engaged in providing any service directly or indirectly, in any manner for recruitment or supply of manpower, temporary or otherwise to a client".
In the instant case, it was held that the Respondent deputed its employees to the group companies/ subsidiaries. Therefore, the Respondent cannot be said to be a commercial concern which is providing services to its client.
Further, the Respondent was not engaged in the business of providing recruitment or supply of manpower. The Respondent deputed its employees to the subsidiaries for limited period and they worked under the control and supervision of the Respondent only.
Furthermore, the cost incurred by the Respondent in terms of salary, remuneration, perquisites, etc., was reimbursed by the group companies. Accordingly, there was no financial benefit to the Respondent.
Therefore, the HC held that the Respondent cannot be said to be a Manpower Recruitment or Supply agency rendering manpower supply services. The appeal filed by the Revenue was dismissed.
Important to Note:
Subsequent amendments in the definition of Manpower Recruitment or Supply Agency:
Post April 18, 2006, the definition of Manpower Recruitment or Supply agency was amended further and reads as under:
"Manpower recruitment or supply agency means any person engaged in providing any service directly or indirectly, in any manner for recruitment or supply of manpower, temporary or otherwise to a client".
Further, the this definition was again amended w.e.f. May 16, 2008:
"Manpower recruitment or supply agency means any person engaged in providing any service directly or indirectly, in any manner for recruitment or supply of manpower, temporary or otherwise to any other person".
Provisions with respect to supply of manpower Service after 1st July, 2012:
It is important to note that old definition of Manpower Recruitment or Supply Agency was rescinded w.e.f. July 1, 2012, and new definition of "Supply of Manpower" provided under Rule 2(1)(g) of the Service Tax Rules, 1994, which reads as under:
"Supply of manpower, temporarily or otherwise, to another person to work under his superintendence or control."
Conclusion: There was change in the definition of Manpower Recruitment or Supply Agency at several occasions and considering recent change in the definition of Supply of manpower effective from July 1 2012, essence of the said judgment still holds good on principle and should not be chargeable to Service tax on deputation of employees to subsidiary companies for limited period on cost-sharing basis under Supply of Manpower services.
It is advisable to have proper agreement to substantiate that deputed employees sent for limited period on actual cost sharing basis and do not work under the supervision and control of the service recipient so as to be out of the ambit of supply of manpower service.
(Bimal Jain, FCA, FCS, LLB, B.Com (Hons), Mobile: +91 9810604563, Email: bimaljain@hotmail.com)
ICAI invites suggestions on revised formats of Form Nos. 3CA, 3CB and 3CD
The Central Board of Direct Taxes has through, Income-tax (7th Amendment) Rules, 2014, notified new Forms of tax audit reports namely Form No. 3CA, 3CB and 3CD.The said notification can be downloaded from the link below:
With regard to the same, ICAI invites suggestions on the said new tax audit report formats, from the members. Members are requested to submit their suggestions latest by 6th August, 2014.
Acquisition & Transfer of Immovable Property in India by Foreign Nationals – Clarification
It has come to notice of the Central Government that foreign nationals are buying immovable property illegally in some parts of the country. Many organizations and social groups have also made representations to the Central Government expressing their serious concerns in this regard.
It has also been observed that foreign nationals coming to India and staying beyond 182 day on a tourist or other visa meant for a certain period are illegally acquiring immovable property in India in violation of the extant rules and regulations under FEMA.
As per the provisions contained in Foreign Exchange Management (Acquisition and Transfer of Immovable Property in India) Regulation 21/2000 (Notification No. 21/2000-RB dated 3rd May, 2000), an Indian citizen resident outside India and a Person of Indian Origin resident outside India may acquire immovable property in India other than agricultural land, plantation or a farm house. A foreign company which has established a Branch Office or other place of business in India under the provisions of Foreign Exchange Management (Establishment in India of Branch or Office or Other Place of Business) Regulations, 2000 (FEMA 22/2000-RB dated the 3rd May, 2000) can acquire immovable property in India which is necessary for or incidental to carrying on such activity, subject to the conditions stipulated in Regulation 5 of Foreign Exchange Manage (Acquisition and Transfer of Immovable Property in India) Regulations, 2000 (Notification No.21/2000-RB dated the 3rd May, 2000).
Apart from above, a foreign national who is residing in India for more than 182 days during the course of the preceding financial year for taking up employment or carrying on business/vocation or for any other purpose indicating his intention to stay for an uncertain period can acquire immovable property in India as he would be a 'person resident in India' as per Section 2(v) of FEMA 1999. To be treated as a person resident in India under FEMA a person has not only to satisfy the condition of the period of stay (being more than 182 days during the course of preceding financial year) but also his purpose of stay as well as the type of Indian visa granted to him to clearly indicate the intention to stay in India for an uncertain period. In this regard, to be eligible, the intention to stay has to be unambiguously established with supporting documentation including visa.
Further, person acquiring immovable property have to fulfill the requirements, if any, prescribed by the State authorities.
In view of the above, all, including the authorities concerned in the State Governments, are hereby advised to be extra vigilant in such matters and satisfy themselves about the eligibility under FEMA before registering sale or purchase of immovable property in India. The enquiries may include both the intending buyers and sellers. The relevant travel documents and the nature of visa may also be verified before registering such sale/purchase.
Where appropriate, the authorities may consider reviewing registration of sale/purchase already made to determine their compliance with legal requirements.
In the event of any doubts, Department of Economic Affairs in Ministry of Finance may be consulted for clarification.
Rajya Sabha clears Finance Bill 2014
Finance bill 2014 Final was presented by Finance Minister Shri Arun Jaitley on 10th July 2014. The bill got approval of Lok Sabha on25th July 2014 with some amendments. Now Rajya Sabha has cleared the Finance Bill 2014 on 31st July 2014.
Finance Bill will comes into effect after President Approves it. So now bill will go to Honorable president for his approval.
Applicability of provisions of section 139(5) & 139(7) of Companies Act, 2013 -Clarification
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General Circular No. 33/2014- Dated: 31st July, 2014
Subject: Clarification with regard to applicability of provisions of section 139(5) and 139(7) of the Companies Act, 2013
Doubts have been raised about applicability of sections 139(5) and 139(7) of the Companies Act, 2013 (New Act), which deal with appointment of auditors by Comptroller and Auditor General of India (C&AG), to 'deemed Government Companies' referred to in section 619B of the Companies Act 1956 (Old Act) i.e. companies where ownership or control lies with two or more Government companies or corporations etc in the manner detailed in section 619B ibid. Stakeholders have pointed out that the New Act does not contain specific provisions about 'deemed Government companies' on the lines of section 619E of the Old Act. Clarification has been sought whether, under the new Act, such deemed Government companies would be subject to audit by the C&AG in the same manner as Government Companies.
2. The above issue has been examined and it is clarified that the new Act does not alter the position with regard to audit of such deemed Government
companies through C&AG and thus such companies are covered under sub- section (5) and (7) of section 139 of the New Act.
companies through C&AG and thus such companies are covered under sub- section (5) and (7) of section 139 of the New Act.
3. Further, it has also been observed that the words "any other company owned or controlled, directly or indirectly by the Central Government
and partly by one or more State Governments" appearing in sub-sections (5) and (7) of section 139 of the New Act are to be read with the definition of 'control' in section 2(27) of the New Act. Thus documents like articles of association and shareholders agreements etc envisaging control under section 2(27) are to be taken into account while deciding whether an individual company, other than those referred in paragraph 1-2 above, is covered under section 139(5)/ 139(7) of the New Act.
and partly by one or more State Governments" appearing in sub-sections (5) and (7) of section 139 of the New Act are to be read with the definition of 'control' in section 2(27) of the New Act. Thus documents like articles of association and shareholders agreements etc envisaging control under section 2(27) are to be taken into account while deciding whether an individual company, other than those referred in paragraph 1-2 above, is covered under section 139(5)/ 139(7) of the New Act.
4. Clarification has also been sought about the manner in which the information about incorporation of a company subject to audit by an auditor to be appointed by the C&AG is to be communicated to the C&AG for the purpose of appointment of first auditors under section 139(7) of the New Act. It is hereby clarified that such responsibility rests with both, the Government concerned and the relevant company. To avoid any confusion it is further clarified that it will primarily be the responsibility of the company concerned to intimate to the C&AG about its incorporation along with name, location of registered office, capital structure of such a company immediately on its incorporation. It is also incumbent on such a company to share such intimation to the relevant Government so that such Government may also send a suitable request to the C&AG.
5. This issues with the approval of the competent authority.
F. No.1/33/13-CL-V
Yours faithfully
(KMS Narayanan)
Assistant Director (Policy)
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