Tuesday, November 4, 2014

[aaykarbhavan] Topic to be discussed at CL seminar at Kolkata(DTPA) by CA N More on Tommorrow,Wed,5th Nov

Topics to be discussed:

a) How to issue shares: Procedures as well as planning ?

b) How to handle notice for non filling of Form 5INV?

c) Can we file DPT4 without paying any penalty now?

d) What are additional cares to be taken?: Some Relevant provisions under Companies Act,2013:

e) How can we plan for “Related party transaction” u/s 188 to the extent possible?

f) How can we plan for “loan to group cos u/s 185” to the extent possible?

g) What are cares to be taken for appointment of Auditors?

h) What are cares to be taken for appointment of directors?

i) What are cares to be taken for filling MGT14 along with Draft resolutions for 1st BM?

j) How to handle Practical Problems?

DTPA CHARTERED ACCOUNTANTS’ STUDY CIRCLE - EIRC

Organises a Study Circle Meeting

COMPANIES ACT, 2013:SELECTED PROBLEMS & SOLUTIONs

Hony. Speaker:

CA. NITESH MORE

WEDNESSDAY, 5th November, 2014

4:00 p.m.

DTPA Conference Hall

3, Government Place (West), Income Tax Building

2^nd Floor, Room No: 2/32, Kolkata: 700001

Delegate Fee:

Members :Rs. 50/-, Non Members 100/-

President - CA. Kashi Prasad Khandelwal

Secretary - CA. Ramesh Kumar Chokhani

Convenor - CA. Sanjay Bajoria

Deputy Convenor - CA. D.S. Agarwal

Note:

1) Registration is on first-cum-first serve basis at DTPA office at 3, Government Place (West), Income Tax Building, Ground Floor, Kolkata: 700001, Call: 22420638 / 32628487

2) Application is being made to ICAI-EIRC for grant of 3 CPE hours

3) Please keep your cell phones in silent /switched off during the meeting.

---------------------------------------------------------------------------------------------------------------------------------------------

DTPA CHARTERED ACCOUNTANTS’ STUDY CIRCLE - EIRC

REGISTRATION FORM FOR MEETING ON-30.10.2014

Name_____________________________________________________________

Membership No.(ICAI)______________ (Mobile No.)____________________

Email : _______________________________

Mode of payment: Cheque/Cash_____________Date___________ On_______________________________for Rs.___________

Signature________________

Please issue cheque in favour of “DTPA Chartered Accountants’ Study Circle-EIRC”

Warm Regards

"Team" CA.Nitesh More

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Disclaimer: Neither moderator nor sender nor any other person takes any responsibility, liability of any nature. Readers are requested to verify the genuineness of each & every information including any appeal, from own source.

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

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[aaykarbhavan] Income tax - Whether when company has been dissolved and amalgamated with different company, it can be said to be incumbent upon Revenue to substitute name of successor company in place of old one in assessment order - YES: HC

Income tax - Whether when company has been dissolved and amalgamated with different company, it can be said to be incumbent upon Revenue to substitute name of successor company in place of old one in assessment order - YES: HC

By TIOL News Service

NEW DELHI, NOV 04, 2014: THE issue before the Bench is - Whether when a company has been dissolved and amalgamated with a different company, it can be said to be incumbent upon the Revenue to substitute the name of the successor company in place of the old one in the assessment order. And the verdict goes against the Revenue.

Facts of the case

The assessee company is engaged in the business of manufacturing garments and clothing. Upon filing of its return, the assessment was carried on by the AO taking into account the A.Ys from 2003-04 till 2008-09. In the meanwhile, the assessee was dissolved and was amalgamated with another company by virtue of an order of the jurisdictional High Court u/s 391(2) & 394 of the Companies Act, 1956. However, the AO ignoring the said fact, continued with the assessment. On appeal, the CIT(A) observed that the assessee had ceased to exist on the date on which the assessment was passed and accordingly held that the assessment of a company amalgamated u/s 391 & 394 is invalid. On further appeal, the Tribunal confirmed the order of the CIT(A). On further appeal before the High Court, the counsel for revenue submitted that by virtue of Sections 170(1) and 170(2) of the I-T Act, in cases of succession of business, where the predecessor could not be found, the assessment that would otherwise have been made upon the predecessor, should instead be made upon the successor in a like manner. It was submitted that the assessment was justified because the liabilities of the amalgamating company accrue to the amalgamated company, as the text of Section 170(2) had made it clear that the assessment must be made on the successor.However, the counsel for assessee contended that the text and phraseology of Sections 170 (1) and (2) did not support the revenue's arguments, relying on the decision of Spice Entertainment Ltd. vs. CIT, decided by a Division Bench of this Court.

Having heard the parties, the High Court held that,

++ it is seen that the Supreme Court in case of Saraswati Industrial Syndicate held that after the amalgamation of the two companies, the transferor company ceased to have any entity and the amalgamated company acquired a new status and it was not possible to treat the two companies as partners or jointly liable in respect of their liabilities and assets. Similarly, with respect to the specific issue of assessment, in Vived Marketing Servicing Pvt. Ltd., the Supreme Court has observed that Section 176 of the IT Act, which contains provisions pertaining to a discontinuation of business, does not apply to a case of amalgamation/dissolution. At the same time, Section 159 of the Act, which provides for tax liability to be attached to the legal representatives of a deceased person, only applies to natural persons, and cannot be extended, through a legal fiction, to the dissolution of companies. It is also seen that this Court in case of Spice Entertainment Ltd., observed that:

["....Section 481 of the Companies Act provides for dissolution of the company. The effect of the dissolution is that the company no more survives and it puts an end to the existence of the company. After the sanction of this scheme, even if the assessee/company had filed the returns, it became incumbent upon the IT authorities to substitute the successor in place of the said "dead person‟. When notice u/s 143(2) was sent, the assessee or the amalgamated company appeared and brought this fact to the knowledge of the AO. He, however, did not substitute the name of the assessee on record and instead made the assessment in the name of assessee which was non existing entity on that day. In such proceedings and assessment order passed in the name of the assessee would clearly be void. Such a defect cannot be treated as procedural defect and mere participation by the assessee would be of no effect...."]

++ the authority of the this precedent binds this court and we see no reason to differ from the logic and reasoning of this case. The other aspect is as to the applicability of Section 292-B of the Act, which provides that no return of income assessment, notice, summons or other proceedings furnished or made shall be invalid or shall be deemed to be invalid merely by reasons of any mistake, defect or omission in such return of income, assessment, notice, summons or other proceeding if such return of income, assessment, notice, summons or other proceedings is in substance and effect in conformity with or according to the intent and purpose of this Act. The Revenue argues that the assessment was in substance and effect in conformity with the Act, because the AO had used correct nomenclature in writing the name of the assessee, along with the fact that it had amalgamated, as well as the correct address of the amalgamated company. The question of whether an assessment upon an amalgamated company is a mistake within the meaning of Section 292B was also raised and answered by this Court in case of Spice Entertainment. This Court has held that it becomes incumbent upon the IT Authorities to substitute the successor in place of the said "dead person" and such a defect cannot be treated as procedural defect. Once it is found that assessment is framed in the name of non-existing entity it does not remain a procedural irregularity of the nature which could be cured by invoking the provisions of Section 292B;

++ therefore, every contentions of revenue needs to be rejected as no interference is required in the decision of the Tribunal. Accordingly, this court upheld the same.

Regards

Prarthana Jalan

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Posted by: Prarthana Jalan <prarthanajalan@ymail.com>

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[aaykarbhavan] No addition as AO failed to prove that assessee was conducting certain coaching classes to earn undisclosed income

No addition as AO failed to prove that assessee was conducting certain coaching classes to earn undisclosed income

November 3, 2014[2014] 49 taxmann.com 207 (Rajkot - Trib.) (TM)

IT : Where Assessing Officer made addition to assessee's income taking a view that assessee conducted classes in Gujarat medium also income in respect of which had not been offered to tax, in view of fact that brochures of tuition published by assessee did not mention that classes were being conducted in Gujarati medium, impugned addition was to be set aside

Regards

Prarthana Jalan

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Posted by: Prarthana Jalan <prarthanajalan@ymail.com>

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[aaykarbhavan] Interest paid to different related parties at different rates couldn't be disallowed when it was paid at market rate

Interest paid to different related parties at different rates couldn't be disallowed when it was paid at market rate

November 4, 2014[2014] 50 taxmann.com 52 (Gujarat)

IT : Unless payment of interest was in excess of market rate, merely because assessee paid interest at different rates to different companies, payment of interest could not be held to be excessive and unreasonable

IT : Evidence accepted to ascertain date of installation of assets is also to be accepted as evidence about use of asset for business purpose, and, hence, depreciation could be allowed

Regards

Prarthana Jalan

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Posted by: Prarthana Jalan <prarthanajalan@ymail.com>

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[aaykarbhavan] Mere availability of additional facts during search couldn't shut out regular assessment order at threshold

Mere availability of additional facts during search couldn't shut out regular assessment order at threshold

November 4, 2014[2014] 49 taxmann.com 512 (Bombay)

IT : Where in course of regular proceedings, Tribunal deleted addition of capital gain holding that assessee's claim was genuine but, subsequently, pursuant to search proceedings, Tribunal held that amount of capital gain earned by assessee was taxable as 'income from other sources', rectification application filed by assessee could not be dismissed at threshold on ground that in view of certain further facts available in search and seizure finding recorded in regular assessment could not be given effect to

Regards

Prarthana Jalan

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Posted by: Prarthana Jalan <prarthanajalan@ymail.com>

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Monday, November 3, 2014

[aaykarbhavan] {DTPA} "Cos Act:Problems & Solutions" by CA Nitesh More on Wed,5th Nov

DTPA CHARTERED ACCOUNTANTS’ STUDY CIRCLE - EIRC

Organises a Study Circle Meeting

COMPANIES ACT, 2013:SELECTED PROBLEMS & SOLUTIONS

Hony. Speaker:

CA. NITESH MORE

WEDNESSDAY, 5th November, 2014

4:00 p.m.

DTPA Conference Hall

3, Government Place (West), Income Tax Building

2^nd Floor, Room No: 2/32, Kolkata: 700001

Delegate Fee:

Members :Rs. 50/-, Non Members 100/-

President - CA. Kashi Prasad Khandelwal

Secretary - CA. Ramesh Kumar Chokhani

Convenor - CA. Sanjay Bajoria

Deputy Convenor - CA. D.S. Agarwal

Note:

1) Registration is on first-cum-first serve basis at DTPA office at 3, Government Place (West), Income Tax Building, Ground Floor, Kolkata: 700001, Call: 22420638 / 32628487

2) Application is being made to ICAI-EIRC for grant of 3 CPE hours

3) Please keep your cell phones in silent /switched off during the meeting.

---------------------------------------------------------------------------------------------------------------------------------------------

DTPA CHARTERED ACCOUNTANTS’ STUDY CIRCLE - EIRC

REGISTRATION FORM FOR MEETING ON-30.10.2014

Name_____________________________________________________________

Membership No.(ICAI)______________ (Mobile No.)____________________

Email : _______________________________

Mode of payment: Cheque/Cash_____________Date___________ On_______________________________for Rs.___________

Signature________________

Please issue cheque in favour of “DTPA Chartered Accountants’ Study Circle-EIRC”

Warm Regards

"Team" CA.Nitesh More

JOIN OUR FB GROUP NOW : https://www.facebook.com/groups/caniteshmore/

To receive updates, send an email for adding to group to moreassociate@gmail.com

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[aaykarbhavan] RELEVANT SECTIONS OF INCOME-TAX ACT SHOULD BE GO THROUGH BY NON-RESIDENTS PLANNING TO SET UP BUSINESS IN INDIA AND RESIDENTS DEALING WITH NONRESIDENTS

Hi ,

RELEVANT SECTIONS OF INCOME-TAX ACT SHOULD BE GO THROUGH CAREFULLY BY NON-RESIDENTS PLANNING TO SET UP BUSINESS IN INDIA AND RESIDENTS DEALING WITH NON RESIDENTS

S. No.	Section	Particulars
1	2	Definitions
2	4	Charge of income-tax.
3	5	Scope of total income.
4	6	Residence in India.
5	7	Income deemed to be received.
6	10	Incomes not included in total income
7	40(a)(i)	Amounts not deductible.
8	40(a) (iii)	Amounts not deductible.
9	90	Agreement with foreign countries or specified territories
10	90A	Adoption by Central Government of agreement between specified associations for double taxation relief.
11	91	Countries with which no agreement exists.
12	92	Computation of income from international transaction having regard to arm's length price.
13	9	Income deemed to accrue or arise in India.
14	28	Profits and gains of business or profession
15	44B	Special provision for computing profits and gains of shipping business in the case of non-residents
16	44BB	Special provision for computing profits and gains in connection with the business of exploration, etc., of mineral oils .
17	44BBA	Special provision for computing profits and gains of the business of operation of aircraft in the case of non-residents.
18	44BBB	Special provision for computing profits and gains of foreign companies engaged in the business of civil construction, etc., in certain turnkey power projects.
19	44C	Deduction of head office expenditure in the case of non-residents
20	44D	Special provisions for computing income by way of royalties, etc., in the case of foreign companies.
21	44DA	Special provision for computing income by way of royalties, etc., in case of non-residents.
22	45	Capital gains
23	47	Transactions not regarded as transfer
24	48	Mode of computation
25	49	Cost with reference to certain modes of acquisition
26	92A	Meaning of associated enterprise.
27	92B	Meaning of international transaction.
28	92BA	Meaning of specified domestic transaction.
29	92C	Computation of arm's length price
30	92CA	Reference to Transfer Pricing Officer.
31	92CB	Power of Board to make safe harbour rules.
32	92CC	Advance pricing agreement.
33	92CD	Effect to advance pricing agreement.
34	92D	Maintenance and keeping of information and document by persons entering into an international transaction [or specified domestic transaction]
35	92E	Report from an accountant to be furnished by persons entering into international transaction [or specified domestic transaction].
36	92F	Definitions of certain terms relevant to computation of arm's length price, etc.
37	93	Avoidance of income-tax by transactions resulting in transfer of income to non-residents.
38	94	Avoidance of tax by certain transactions in securities.
39	94A	Special measures in respect of transactions with persons located in notified jurisdictional area.
40	95	Applicability of General Anti-Avoidance Rule.
41	96	Impermissible avoidance arrangement.
42	97	Arrangement to lack commercial substance
43	98	Consequences of impermissible avoidance arrangement.
44	99	Treatment of connected person and accommodating party.
45	100	Application of this Chapter.
46	101	Framing of guidelines.
47	102	Definitions.
48	111A	Tax on short term capital gain in certain cases
49	112	Tax on long term capital gains
50	115A	Tax on dividends, royalty and technical service fees in the case of foreign companies.
51	115AB	Tax on income from units purchased in foreign currency or capital gains arising from their transfer
52	115AC	Tax on income from bonds or Global Depository Receipts purchased in foreign currency or capital gains arising from their transfer.
53	115ACA	Tax on income from Global Depository Receipts purchased in foreign currency or capital gains arising from their transfer
54	115AD	Tax on income of Foreign Institutional Investors from securities or capital gains arising from their transfer
55	115BBD	Tax on certain dividends received from foreign companies
56	115C	Definitions.
57	115E	Tax on investment income and long-term capital gains
58	115F	Capital gains on transfer of foreign exchange assets not to be charged in certain cases.
59	115G	Return of income not to be filed in certain cases.
60	115H	Benefit under Chapter to be available in certain cases even after the assessee becomes resident.
61	115JG	Conversion of an Indian branch of foreign company into subsidiary Indian company
62	139	Return of income
63	139A	Permanent account number
64	140	Return by whom to be signed
65	140A	Self-assessment
66	160	Representative assessee
67	161	Liability of representative assessee
68	162	Right of representative assessee to recover taxes paid
69	163	Who may be regarded as agent
70	166	Direct assessment or recovery not barred
71	167	Remedies against property in cases of representative assessee
72	172	Shipping business of non-residents.
73	173	Recovery of tax in respect of non-resident from his assets
74	174	Assessment of persons leaving India.
75	195	Other sums.
76	195A	Income payable "net of tax"
77	196A	Income in respect of units of non-residents
78	196B	Income from units.
79	196C	Income from foreign currency bonds or shares of Indian company.
80	196D	Income of Foreign Institutional Investors from securities.
81	197	Certificate of deduction at lower rate
82	199	Credit for tax deducted
83	200	Duty of person deducting tax
84	201	Consequences of failure to deduct or pay
85	204	Meaning of person responsible for paying
86	205	Bar against direct demand on assessee
87	206AA	Requirement to furnish Permanent Account Number
88	207	Liability for payment of advance tax
89	208	Conditions of liability to pay advance tax
90	209	Computation of advance tax
91	210	Payment of advance tax by the assessee of his own accord or in pursuance of order of Assessing Officer
92	211	Instalment of advance tax and due taxes
93	214	Interest payable by Government
94	215	Interest payable by assessee
95	216	Interest payable by assessee in case of under-estimate, etc.
96	217	Interest payable by assessee in case of under-estimate, etc.
97	218	When assessee deemed to be in default
98	219	Credit for advance tax
99	228A	Recovery of tax in pursuance of agreements with foreign countries.
100	234A	Interest for default in furnishing return of income
101	234B	Interest for default in payment of advance tax
102	234C	Interest for deferment of advance tax
103	245N	Definitions.
104	245-O	Authority for Advance Rulings.
105	245P	Vacancies, etc., not to invalidate proceedings.
106	245Q	Application for advance ruling.
107	245R	Procedure on receipt of application.
108	245RR	Appellate authority not to proceed in certain cases.
109	245S	Applicability of advance ruling.
110	245T	Advance ruling to be void in certain circumstances
111	245U	Powers of the Authority.
112	245V	Procedure of Authority
113	271BA	Penalty for failure to furnish report under section 92E.
114	271C	Penalty for failure to deduct tax at source
115	271G	Penalty for failure to furnish information or document under section 92D
116	285	Submission of statement by a non-resident having liaison office
117	115BBA	Tax on non-resident sportsmen or sports associations.
118	115D	Special provision for computation of total income of nonresidents.
119	115I	Chapter not to apply if the assessee so chooses.
120	115J	Special provisions relating to certain companies
121	115JA	Deemed income relating to certain companies
122	115JAA	Tax credit in respect of tax paid on deemed income relating to certain companies
123	115JB	Special provisions for payment of tax by certain companies
124	194E	Payments to non-resident sportsmen or sports associations.
125	220	When tax payable and when assessee deemed in default
126	221	Penalty payable when tax in default
127	222	Certificate to tax recovery officer
128	226	Other modes of recovery
129	230	Tax clearance certificate