Tuesday, September 30, 2014

[aaykarbhavan] No problem with Form 23B: Infosys to CA Nitesh More:::::Suggestion:Form 23B is not being uploaded:Email to infosysh with ticket no



1) No problem with Form 23B: Infosys. 

2) I had talked with infosys team too. Kindly upload new form & try. If still,  problem than do the followings:

a
) Raise a ticket at MCA potal

b
) Email Complain/ticket no with details of problem to the following email ids of infosys:



Dear Sir,

Auditor has been appointed in March,2014 & Form 23B is being filledwhich is available at ROC website, which shows "OLd version/submit new version". Solution plz. Anyone had uploaded 23B?

Raj kumar Gadhwala



Warm Regards 

"Team" CA.Nitesh  More

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Posted by: Nitesh More <moreassociate@gmail.com>


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[aaykarbhavan] Judgments and Infomration,




Section 186 of the companies Act,2013 and its comparison with the predecessor provision Section 372A

By : Ramaswami Kalidas on 23 September 2014 Report Abuse Print Print this
 



Section 186 of the Companies Act 2013 – More rigorous law than Section 372A in the erstwhile 1956 Act- A Study
 
Section 186 in the Companies Act 2014 (herein after referred to as "The Act") corresponds to Section 372A in the erstwhile 1956 Act. The intention of both the provisions is   by and large  identical   namely to regulate primarily Inter-corporate Investments and loans. Although the provisions are substantially the same in spirit, there are certain subtle differences between the two in content which make Section 186 a much   more rigourous and potent  regime as compared to its predecessor in the 1956 Act.
 
The differences are enumerated as under:
 
· Section 186 is applicable without prejudice to the  provisions in the Act. There was no similar provision in Section 372A. Section 186 has been so worded with a view to isolate it from Section 185 which carries a blanket embargo on loans to Directors and their relatives.
 
· Section 186 imposes embargo on multi-layered Investments
 
Section 186(1) restrains a company from making investments beyond two layers of subsidiary companies subject to certain exceptions as provided under the Section which are as follows:
 
a) Where an Indian company is seeking to acquire any other company incorporated outside India, if such other company  has investment subsidiaries beyond two layers as per the laws of the concerned Country.
 
b) A subsidiary company is not restrained from having any investment subsidiary for the purposes of meeting the requirements of any law for the time being in force.
 
c) The above restriction did not apply under the erstwhile regime of Section 372A.The fact that investments could be made through  multi-layered structures gave the investor company the much needed flexibility in the process of planning and structuring the   investments. Sub-section (1) in Section 186 is therefore constrictive in its approach.
 
 
· Section 186 restrains   loans to Non-corporate Entities as well
 
Whereas Section 372A regulated only inter corporate loans and investments, Section 186 applies also to the provision of loans, guarantees, to non-corporate bodies. Clause (a) under sub-section   (2) introduces this fetter by making the Section applicable to any person or other body corporate. Therefore by a strange   quirk of logic or lack of it ,if you may, a company cannot provide loans to a non-corporate entity such as a  partnership firm or a sole proprietor without approvals u/s 186.For that matter, even a loan given to an employee of a company will come within the ambit of the collective wisdom of the Board which will have to, willy-nilly, sit in pompous  judgement on this  triviality and approve of  an innocuous application for financial support  at a duly convened meeting!
 
Having said this, the new Act, to its credit, does have some novel characteristics which are laudable. However,  the flip side is that the contents of clause (a) in sub-section (2) above  pushes its quality or the lack of it   to a nadir - to a , bottomless pit, as it were. Surely there could not be anything more archaic  and retrograde  than this provision, in a legislation which is supposed to be contemporary and which seeks to supplant the 1956 Act which was considered as an anachronism and well  past its useful shelf life. To be fair to the law makers, our surmise is  that this was an unintended aberration in drafting, the consequence of which they had not comprehended. Now that the MCA has   set in motion the process of mitigating  the hardships   caused  to stakeholders by some of the impractical  provisions in the new Act through  a slew of  circulars to ease the rigours of several provisions, our optimism  is that MCA will soon rectify the anomalous situation arising out of the above as well.

· Section 186 only regulates Inter-corporate Investments
 
Where it comes to investments, Section 186 regulates only investments made by a Company into any other body corporate. The term "body corporate" has to be given the meaning provided by Section 2(11) of the Act and   includes a company incorporated outside India.
 
It follows from the above that investments made by companies   into non-corporate avenues  such as mutual funds will not be subject to compliance with the procedure of  Section 186.
 
· Section 186 exemptions are less liberal  than its predecessor Section 372A 
 
The other major difference is that the provisions of Section 372A were in totality inapplicable to certain categories of Companies including companies, involved inter alia, in providing infrastructural facilities.
 
As against this, as stated in sub -section (11) u/s 186, the section does not apply only to loans made, guarantees given or securities provided, inter alia, by a Company engaged in providing infrastructural facilities. The expression "infrastructural facilities" refers to the facilities  specified in Schedule VI to the Act. Therefore, if such a company makes an acquisition by subscription, purchase or otherwise, in the securities of any other body corporate, the limits laid down in section 186 shall apply.
 
In the same vein, NBFCs registered with RBI whose principal business shall be in respect of its investment and lending activities will not have to seek approvals for making investments. In their case, the provision of loan and guarantees will come under the radar of the Board and in applicable cases, involve approval of the members as well.
 
· Section 186 considers "securities premium" for determining thresholds for loans and Investments
 
For computing the aggregate value of investments/loans that can be made, the lender/Investor company is allowed to include the amount of 'Securities premium" standing to the credit of its Books, in addition to its paid up capital and Free Reserves. By contrast under Section 372A one could consider only the aggregate of the paid up share capital and free reserves. It is pertinent to note that  in the 1956 Act, the term "free Reserves" was not specifically defined except by way of  a passing reference in Section 293(1)(d) wherein the term has been referred to as "Reserves not set apart for any specific purpose". In contrast, Section 2(43) in the Act, provides a restricted "means" definition to the expression  "Free Reserves" by describing it as" such  reserves  which as per the latest audited Balance Sheet of a company ,are available for distribution as dividend". In the light of the above, it is perhaps appropriate   to allow the "Securities Premium' as a concomitant to the  aggregate threshold for investments and loans.
 
· Can loans be extended at subsidized rates of Interest?
 
Sub-section (7) to Section 186 which corresponds to sub-section(3) in Section 372A provides that no loans can be provided  to a body corporate at a rate of interest which is lower than the prevailing bank rate being the standard rate made public under Section 49 of the RBI Act,1934.This throws up  a pertinent  question as to whether a Holding Company can provide to its 100% Subsidiary loans at either zero or subsidized rates of interest for business exigencies. The answer to this question would be an emphatic "No" as appears from a plain reading of Rule 11 (1) of the Companies (Meetings of Board and its powers) Rules,2014. The above Rule merely clarifies that where a loan or guarantee is given or an investment is made in the securities of a wholly owned Subsidiary or a joint venture company , the requirement of sub-section(3) of Section 186  shall not apply. Sub-section(3) calls for the passing of a special resolution where the limits contemplated in subsection(2) are proposed to be exceeded. Hence only the procedure of a special resolution can be dispensed with. All other requirements of section 186 will have to be met.
 
On the other hand, in as much as clause (c) in subsection (8) of Section 372A exonerated a Holding Company from  complying with Section 372A for loans made to its wholly owned Subsidiary, it was possible under the previous regime to provide interest free loans to a wholly owned subsidiary.
 
The above is yet another fetter in the new law which is perhaps oblivious to the realities of business. In many circumstances it may be necessary for a Holding Company to nurse back an ailing   wholly owned Subsidiary to good health through the provision of subsidized loans .By denying this benefit the new law could push many  a subsidiary to the throes of an unprecedented financial crisis. This anomalous position needs to be addressed urgently in the interest of business.

· Conflict between Section 179 and 186- which provision carries greater force?
 
The new law also throws up a conflict as between Section 179 and 186   in the matter of precedence very similar to the question which was raised between Section 292 and Section 372A in the 1956 Act once the latter provision was introduced in the Statute Book by  the Companies (Amendment)Act,1999 with effect from 31.10.1998.
 
We are aware that Section 179(3) in the Act, lists out the powers that are exercisable by the Board  by means of resolutions passed at its meetings. Some of the powers listed out can be  delegated by the Board to a Committee of Directors, the Managing Director ,the Manager or any other principal officer of the company.
 
The following powers can thus be delegated:
 
a) the power to borrow monies;
b) to invest the funds of the company.
c) to grant loans or give guarantee or provide security in respect of loans.
 
We are also aware that Section 186 provides that any decision to make investments or to make loans ,extend guarantees has to be approved unanimously by the Board at a duly convened Meeting even if the investments proposed or loans to be made are within the limits of the Board's authority.
 
The question therefore arises whether the power to invest the funds or to grant loans or guarantees can be exercised through the scope of delegated authority as envisaged in Section 179 by bypassing the rigmarole stipulated in Section 186.Our view is that as Section 186 is a specific and composite code to rein in inter-corporate investments and loans, if there is a conflict , competition between Section 179 and 186 ,having regard to the settled principles of judicial interpretation, Section 179 being a general provision will have to yield place to Section 186 since the latter is a specific provision. 
 
Conclusion
 
In the above discussion we have endeavoured to capture the nuances of the new provision Section 186 and bring home the differences between the same and its predecessor Section 372A in the 1956 Act both in terms of their forcefulness and subtlety. Without doubt Section 186 comes off as a more potent and rigid  law. Our view is that there exists still considerable headroom for making the law more pliable and friendly to companies.
 
Ceiling u/s 186Sub section (2) provides that no company shall directly or indirectly –
 
a).give any loan to any person or other body corporate ;
 
b) give any guarantee or provide security in connection with a loan to any other body corporate or person and
 
c) acquire by way of subscription, purchase or otherwise,the securities of any other body corporate.
 
if a Company subscribes to the securities of any other body corporate, the following limits shall apply :-
 
Unanimous approval of the Board required:-
 
Where the value of investment does not exceed 60% of the Company's paid up share capital, free reserves and securities premium account or
 
Where the investment does not exceed 100% of its free reserves and securities premium account whichever is more
 
Approval of Board has to be at a Meeting and if the Company has obtained loans from any public financial institutions which are outstanding, prior approval of the institution would also be needed.
 
If the above limits are exceeded, approval of members by special resolution will be needed.
 
Rule 11 in the Companies (Meetings of Board) Rules, 2014 provides that where the loans or guarantees or securities have been given to a wholly owned subsidiary or a joint venture Company or where the investment is made by holding Company in its wholly owned subsidiary it will not be necessary to obtain shareholders approval by special resolution u/s 186(3).
 
It is pertinent to note that where any Company subscribes to the shares of another Company under a Rights issue which is covered by Section 62, Section 186 shall not apply. In other words if shares are acquired pursuant to a rights issue, the ceiling laid down u/s 186 as stated above shall not apply.
 
In view of the above, the applicability of section 186 to Companies such as ours which are into infrastructural facilities is restricted to the following:-
 
Provision of loans, guarantees or securities can be made without any ceiling and without requiring compliance with Section 186.
 
Investment in securities of non corporate bodies such as mutual funds can be made without the regulation of the above provision.
 
The ceiling laid down in Section 186(1) shall apply for any acquisition of the securities of any other Company. Whenever any investment is proposed by a Company such as ours into the securities of any other body corporate, approval of the Board should be obtained at a duly held meeting with the unanimous consent of the members, provided the investment is within the limits prescribed. If the investment exceeds the limits prescribed, approval of the shareholders has to be taken. The best strategy to get away the above from rigours of compliance is to make investments in the securities of another Company pursuant to a Rights issue made by it. In such a case the above section shall not apply. Therefore, whenever we are making investments into any of our subsidiaries, we should make sure that the subsidiary is raising subscription through the rights issue. Otherwise the ceiling laid down in Section 186 shall apply.
 
Regards 
 
R Kalidas

Foreign trip to be included in IT Returns?

Dr. Suresh Surana
Recently, the Special Investigation Team (SIT) constituted on black money submitted its first report to the Supreme Court wherein indications are that certain changes like disclosure of foreign travel in a year in income tax return have been suggested. 
Over the past decade, Indians undertaking foreign visits have increased manifold due to holidaying, medical treatment, education and business requirements as well as liberalization of exchange controls. While foreign travel expenses incurred for business purposes are tax deductible, personal foreign travel  expenses on holidaying, medical treatment and education are not tax deductible. Hence, such personal foreign travel  expenses are susceptible to  unaccounted transactions for tax purposes.
The purpose of the purported coverage of the foreign trip in the income tax return seems to be to closely scrutinize the personal foreign travels undertaken by Individuals and whether expenses for the same have been duly accounted by taxpayers. It is worthwhile to note that for this reason, the Income-tax Act had introduced a scheme (later on recognized as one-by-six scheme) which provided six economic criteria including foreign travel which necessitated furnishing return of income even if total income was below the threshold limit. However, the scheme did not work, and the same had to be abolished in 2006.
One of the major challenges tax administration is facing is abundance of data but limited resources to scrutinize the same particularly when a large number of foreign travel expenses are incurred for business purposes by employers. As such, if such reporting is introduced, the tax administration needs to be geared up to meet challenges of data analysis and revalidation with tax returns.
- See more at: http://taxguru.in/income-tax/foreign-trip-included-returns.html#sthash.nJ5eBtYX.dpuf

Karniti -Breaking Partnerships- Partnerships, Politics and its Taxation

CA Umesh Sharma
Arjuna (Fictional Character): Krishna, what is going on? All over Maharashtra the discussion of breaking of partnerships by political parties are happening. However, if the same thing happens in business Partnerships then, what are the legal consequences as per Income tax act and other acts?
Krishna (Fictional Character): Arjuna, Partnership means more than one person come and work together. Business partnerships are carried out with the intention of earning Profits. But in Political partnerships there is no objective of earning profits, however nowadays it seems that they are made for profits only. In politics rules are not followed. If business Partnerships dissolves then every partner has to follow various laws.
Arjuna: Krishna, how Partnership firms come in existence?
Krishna: Arjuna, Partners have to prepare Partnership deed to bring Partnership firm into existence. In this deed Name of Partnership firm, Address, details of each partner, type of business, Profit sharing ratio, Capital, rights of operation of bank Accounts, etc. have to be mentioned. Every Partnership firm is required to be registered under Indian Partnership Act 1932. Now the new form of partnership i.e. Limited Liability Partnership is introduced and the same should be formed according to Limited Liability Partnership Act 2008.
Arjuna: Krishna, which special provisions in Income tax act are applicable to partnership firm?
Krishna: Arjuna, Partnership firm should obtain Permanent account number (PAN). Interest on Partners capital and salary are allowable to partners as per section 40(b) of Income Tax Act. If expenditure incurred is more than prescribed in provision then the deduction of excess expenditure will be disallowed. Partnership firm has to pay tax @ 30% on net profit and the same profit is tax free in the hands of partners. If partnership deed is not in written form, then u/s 184 of Income tax act the said partnership firm is considered as Association of Person and not as Partnership firm and income tax liability is calculated. The partners of Partnership firm are responsible for following the provision of income tax and maintaining the books of accounts. In Political partnership there is no guarantee that every partner will be benefited.
Arjuna: Krishna, when new partner can be admitted in Partnership firm?
Krishna: Arjuna, in partnership firm the new partner can be admitted with the consent of all partners. The Partnership deed has to be amended and the condition on which the new partner is admitted should be mentioned. E.g. Capital brought by the partner, interest given on the capital and the share of profit or loss etc. The new partners are introduced to expand business in Partnership firm but in politics for getting power and becoming strong partners are introduced. In business partnership the character of the partner is checked, however in politics how one gets benefitted is only seen, character of partners are meaningless in such cases.
Arjuna: Krishna, What are the provisions related to retirement of partners?
Krishna: Arjuna, Partner retires as per partnership deed or by his own will. After retirement of partner partnership deed will have to be amended. Further retiring partners accounts needs to be finalized by calculation of capital A/c, receivable and payables if any and needs to be squared off. Remaining partners can carry on the business of partnership. In business rarely partner gets retires but in politics during election period partner switch over their partnerships or leave the political parties.
Arjuna: Krishna, How Partnership Firm dissolves?
Krishna: Arjuna, If partnership firm is formed for achieving or performing a object then after completion of the same partnership dissolves. Further partnership firm dissolves with the consent of all the partners. For dissolution of partnership "dissolution deed" will have to be prepared. The assets and liabilities of the partnership firm should be transferred to the partners as per partnership deed or it can be sold out and payables should be paid off. Please note that, If immovable property of the partnership firm is transferred to the partner, then as per section 45 (4) market value of the property will be considered as selling value and profit will be calculated and the same will be included in the income of the partnership firm. For e.g. if book value of the immovable property of the firm is Rs. 10 lakh and the same is transferred to the partner and market value of the property is Rs. 30 lakhs, then Rs. 20 lakhs will be considered as income of the partnership firm and tax will have to be paid on the same. Further partnership should be dissolved after completing all legal formalities so that it would not create problem in future. There may be several reasons for dissolution of partnership in business. However in the politics greed and ego are major reasons for dissolution of partnership, in this process, whatever may happen to country and citizens. "Need and Greed of power" is the only intention in Politics.
Arjuna: What one should learn from Partnership?
Krishna: Arjuna, partnership may be of any type, trust, patience, understanding between the partners, etc. are roots of partnership. If any of these things lack anytime then partnership of years may dissolve. The same can be seen during this election period. Sometimes one has to sacrifice for other. In life all things are not measured in money. Business may collapse but relation should not. Keep in mind if there is clarity in partnership then it will not dissolve. It is difficult to carry on big business with single person, so partnerships are made and if broad view is kept then it remains. In Navratri while playing Dandiya, partner is important same is the case of partners in partnership firms.
- See more at: http://taxguru.in/income-tax/karniti-breaking-partnerships-partnerships-politics-taxation.html#sthash.1byKNHak.dpuf


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Posted by: Dipak Shah <djshah1944@yahoo.com>


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[aaykarbhavan] Fw: Lawyersclubindia Update : 30/09/2014, C A Next Step.





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