31 May 2014

SIT

Union Cabinet nods to constitution of SIT on black monies stashed abroad

May 28, 2014

CONSTITUTION OF SPECIAL INVESTIGATING TEAM (SIT) TO IMPLEMENT DECISION OF SUPREME COURT ON LARGE AMOUNTS OF MONEY STASHED ABROAD

PRESS RELEASE, DATED 27-5-2014

The Union Cabinet today approved constitution of Special Investigating Team (SIT) to implement the decision of the Hon'ble Supreme Court on large amounts of money stashed abroad by evading taxes or generated through unlawful activities.

The SIT will be headed by Hon'ble Mr. Justice M.B. Shah, former Judge of the Supreme Court as Chairman and Hon'ble Mr. Justice Arijit Pasayat, former Judge as Vice Chairman.

The Members of the High Level Committee will comprise:

i.

 

Secretary, Department of Revenue

ii.

 

Deputy Governor, Reserve Bank of India,

iii.

 

Director (IB),

iv.

 

Director, Enforcement

v.

 

Director, CBI

vi.

 

Chairman, CBDT,

vii.

 

Director General, Narcotics Control Bureau

viii.

 

Director General, Revenue Intelligence

ix.

 

Director, Financial Intelligence Unit

x.

 

Director, Research and Analysis Wing and

xi.

 

Joint Secretary (FT&IR-1), CBDT

The SIT has been charged with the responsibility and duties of investigation, initiation of proceedings and prosecution in cases of Hasan Ali and other matters involving unaccounted money. SIT shall have jurisdiction in the cases where investigations have already commenced or are pending or awaiting to be initiated or have been completed. SIT will prepare a comprehensive action plan including creation of necessary institutional structure that could enable the country to fight the battle against unaccounted money. The SIT should report to the court the status of work from time to time.

30 May 2014

Revised TDS returns to be accepted without Original Provisional receipts

Revised TDS returns to be accepted without Original Provisional receipts wef 01.06.14

May 28
Circular No: NSDL/TIN/2014/024                                                                                               

Subject: Revised procedure for acceptance of e-TDS/TCS correction statements and upload of scanned documents to TIN Central System

Attention of all TIN Facilitation Centers (TIN-PCs) is invited to the procedure of acceptance of e-TDS/TCS correction statements and upload of scanned images as provided in chapter 6 and 7 of the TIN-PC Operating Manual (TOM).

As per approval from Income Tax Department, the procedure for acceptance of e-TDS/TCS correction statement stands revised. The same is intimated vide this circular. The revised procedure applicable with effect From June 1, 2014 is as per table below:

Sr. No. Documents to be accepted along with e- TDS/TCS correction statements – Existing procedure
1 Physical Form 27A Physical Form 27A
2 Statement Statistics Report (SSR)
3 Copy of Provisional Receipt of Original Statement
 In view of the above, TIN-PCs are required to accept e-TDS/TCS correction statements from Deductors/Collectors with .FVU file and duly signed Form 27A (generated from the latest File Validation Utility). The copy of Original Provisional Receipt and Statement Statistic Report need not be accepted from Deductor/Collector.

The verification of control total screen has to be carried out on the basis of information present on Form 27A.

Further, the revised procedure for upload of scanned images of e-TDS/TCS correction Statements, is as per the following table wherein e-TDS/TCS statements are accepted on or after June 1, 2014.

Note: For e-TDS/TCS statements accepted upto May 31, 2014, the scanned images of Form 27A and Provisional Receipt needs to be scanned and uploaded as referred vide circular number NSDL/T1N/2011/009 dated May 6, 2011.

The version of TOM after the above said updates is 5.10. The version control sheet is attached as Anneyure A

In case of any clarifications, contact TIN Support Desk on 022-24994201.

For and on behalf of

NSDL e-Governance Infrastructure Limited

Bushan Maideo

Senior Vice President

29 May 2014

Sharing of Asset Details from Wealth Tax Returns with PSBs - CBDT Instructions

Sharing of Asset Details from Wealth Tax Returns with PSBs - CBDT Instructions

IN a meeting on the performance of Public Sector Banks (PSBs) taken by Finance Minister on 5.3.2014, the PSBs raised concern that the details of assets as available in the Wealth Tax Returns of loan defaulters are not being shared by Income Tax Department with the Banks despite repeated requests.

Section 42B of the Wealth Tax Act 1957 states:

42B Disclosure of information respecting assessees:- Where a person makes an application to the Chief Commissioner or Commissioner in the prescribed form for any information relating to any assessee in respect of any assessment made under this Act, the Chief Commissioner or Commissioner may, if he is satisfied that it is in the public interest so to do, furnish or cause to be furnished the information asked for in respect of that assessment only and his decision in this behalf shall be final and shall not be called in question in any court of law.

CBDT observes in a letter to all the Principal Chief Commissioners that in view of the fact that every Return of Wealth filed by the assessee is subject to assessment under section 16 of the Wealth Tax Act, the information contained therein qualifies for being supplied u/s 42B of the Wealth Tax Act, provided the CCWT/CWT is satisfied that supply of such information to PSBs is in public interest.

CBDT in this context clarifies that information on assets of loan defaulters to enable recovery of loans by PSBs from such defaulters is in public interest.

CBDT further clarifies that such information may be provided in respect of the borrower/mortgager/guarantor of the loan only. At the time of supply of such information a confidentiality clause may be included specifying that such information be used only for the purpose of recovery of loan and will not be shared with any other person/agency. An undertaking to this effect shall be obtained from the Bank (to be signed by an officer not below the rank of the Manager of the Branch concerned) before furnishing the information.

At the same time CBDT wants to protect its own interests. The Board directs that in order to ensure that the tax dues of the Department against the defaulter (if any) are safeguarded, an undertaking be obtained from the PSB to obtain a No Objection Certificate (NOC) from the jurisdictional CIT of the loan defaulter before appropriation of the surplus amount recovered from sale of immovable/movable asset of the defaulter, information in respect of which is shared, after adjustment of its loan dues.

CBDT wants the Principal Chief Commissioners to bring these guidelines to the notice of the Chief Commissioners, DGs and Commissioners of their charges.

CBDT Letter in F. No. 328/10/2014-WT, Dated: May 28, 2014

Prior approval of RBI in cases of acquisition/ transfer of control of NBFCs.

RBI CIRCULAR Regarding Prior approval of RBI in cases of acquisition/ transfer of control of NBFCs. The prior written permission of the Reserve Bank of India shall be required for – (i) any takeover or acquisition of control of an NBFC, whether by acquisition of shares or otherwise; (ii) any merger/amalgamation of an NBFC with another entity or any merger/amalgamation of an entity with an NBFC that would give the acquirer / another entity control of the NBFC; (iii) any merger/amalgamation of an NBFC with another entity or any merger/amalgamation of an entity with an NBFC which would result in acquisition/transfer of shareholding in excess of 10 percent of the paid up capital of the NBFC. (iv) Prior written approval of the Reserve Bank would also be required before approaching the Court or Tribunal under Section 391-394 of the Companies Act, 1956 or Section 230-233 of Companies Act, 2013 seeking order for mergers or amalgamations with other companies or NBFCs.

22 May 2014

CAS can't write accounts and then audit.

FYI - CAs cannot undertake assignment of audit & accounting work together for same entity
Announcement on prohibition to undertake the assignment of audit and accounting work together for the same entity. – (20-05-2014)
No. ICAI/ESB/2014/03
It has come to the knowledge of some members that certain entities , while inviting tenders for services of chartered accountants for the assignment of statutory audit , are mentioning accounting and book keeping related works in the scope of works required to done by the auditor.
Members are hereby advised not to undertake such assignment since it is violative of the provisions of ‘Code of Ethics’ and ‘Guidance Note on Independence of Auditors’ for auditor of an entity to do book keeping work of the entity. The said prohibition in the case of Companies is further also mentioned in Section 144 of the Companies Act, 2013.

21 May 2014

PAN application revised

CBDT has revised PAN Application form 49A and 49AA wef from 16.05.2014 vide its notification no. 26/2014 , Dated- 16-5-2014. Revised Form 49A and 49AA provides option to get printed Mothers Name on PAN card.

20 May 2014

Whistle Blowers Protection Act, 2011

Whistle Blowers Protection Act, 2011

 

 

Whistle Blowers Protection Act, 2011 is an Act of the Parliament of India which provides a mechanism to investigate alleged corruption and misuse of power by public servants and also protect anyone who exposes alleged wrongdoing in government bodies, projects and offices. The wrongdoing might take the form of fraud, corruption or mismanagement. The Act will also ensure punishment for false or frivolous complaints.

The Act was approved by the Cabinet of India as part of a drive to eliminate corruption in the country';s bureaucracy and passed by the Lok Sabha on 27 December 2011.The Bill was passed by Rajya Sabha on 21 February 2014 and received the President';s assent on 9 May 2014.The Act has not come into force till now.

Intent

An Act to establish a mechanism to receive complaints relating to disclosure on any allegation of corruption or willful misuse of power or willful misuse of discretion against any public servant and to inquire or cause an inquiry into such disclosure and to provide adequate safeguards against victimization of the person making such complaint and for matters connected therewith and incidental thereto.

Salient Features

  • The Act seeks to protect whistle blowers, i.e. persons making a public interest disclosure related to an act of corruption, misuse of power, or criminal offense by a public servant.
  • Any public servant or any other person including a non-governmental organization may make such a disclosure to the Central or State Vigilance Commission.
  • Every complaint has to include the identity of the complainant.
  • The Vigilance Commission shall not disclose the identity of the complainant except to the head of the department if he deems it necessary. The Act penalizes any person who has disclosed the identity of the complainant.
  • The Act prescribes penalties for knowingly making false complaints.

19 May 2014

HC on Restaurant Service- Validity & Double Taxation

High Court on Restaurant Service

 

HC dismisses writ, upholds constitutional validity of Sec 66E(i) of Finance Act declaring service portion in activity of supply of food and drinks as "declared services"; Article 366(29-A) of Indian Constitution does not indicate subsuming of service part in sale of food, it rather separates sale of food and drinks from service; Sec 65B(44) and Sec 66E(i) only charge service tax on service part and not on sale part, which indicate exclusion of sale element from service as interpreted by SC in Associated-Hotel and Northern Caterers cases; Rejects assessee's reliance on SC ruling in K Damodarsamy, calling it irrelevant for determining Parliament's power to levy service tax on service element in sale; However, HC shows reservation in the rule quantifying fixed sum towards service and its functioning in restaurant, vis-a-vis tax under VAT Act; 40% over which service tax is charged cannot be subject to VAT; Absent provision in VAT Act to bifurcate amount between sale and service, HC advises State Govt to frame rules / issue clarification in conformity with provisions under Finance Act to avoid double taxation on same amount; Also allows assessee to object to VAT levy on service portion of bill value before VAT Authorities  : Chattisgarh HC

Case Law on Section 50B

S. 50B applies only to a "sale" for a "monetary consideration" and not to a case of "exchange" of the undertaking for shares under a s. 391/394 scheme of arrangement

The assessee transferred its Lift Division to Tiger Elevators Pvt. Ltd under a scheme of arrangement u/s 391 & 394 of the Companies Act, 1956. The transfer of the undertaking took place in exchange of preference shares and bonds issued by Tiger Elevators as per a valuation report. The assessee claimed that the transfer was not liable to tax on capital gains on the basis that there was no "cost of acquisition" of the undertaking. The AO held that the transaction was a "slump sale" as defined in s. 2(42C) and that the gains had to be computed u/s 50B. This was upheld by the CIT (A). On appeal by the assessee to the Tribunal, the Tribunal accepted the claim of the assessee. On appeal by the department to the High Court HELD dismissing the appeal:

The definition of the term "slump sale" in s. 2(42C) means the transfer of one or more undertakings as a result of the sale for a lump sum consideration without values being assigned to the individual assets and liabilities in such sale. In Motors & General Stores (P) Ltd 66 ITR 692 (SC) it was held that a "sale" meant a transfer for a monetary consideration and that an "exchange" would not amount to a "sale". On facts, scheme of arrangement shows that the transfer of the undertaking took place in exchange for issue of preference shares and bonds. Merely because there was quantification when bonds/preference shares were issued, does not mean that monetary consideration was determined and its discharge was only by way of issue of bonds/preference shares. In other words, this is not a case where the consideration was determined and decided by parties in terms of money but its disbursement was to be in terms of allotment or issue of bonds/preference shares. All the clauses read together and the entire Scheme of Arrangement envisages transfer of the Lift Division not for any monetary consideration. The Scheme does not refer to any monetary consideration for the transfer. The parties were agreed that the assessee was to transfer the undertaking and take bonds/preference shares as consideration. Thus, it was a case of exchange and not a sale. Therefore, s. 2(42C) of the Act was inapplicable. If that was not applicable and was not attracted, then, s. 50B was also inapplicable. The judgement of the Delhi High Court inSRIE Infrastructure Finance Ltd 207 Taxman 74 (Del) is distinguishable on facts. There is no necessity to analyze the circumstances in which s. 50B was inserted in the statute book.

17 May 2014

RBI on ECB

 
Date: May 16, 2014
External Commercial Borrowings (ECB) from Foreign Equity Holder - Simplification of Procedure

RBI/2013-14/594
A.P. (DIR Series) Circular No.130

May 16, 2014

To

All Category – I Authorised Dealer Banks

Madam/Sir,

External Commercial Borrowings (ECB) from Foreign Equity Holder - Simplification of Procedure

Attention of Authorised Dealer Category – I (AD Category – I) banks is invited to the A.P. (DIR Series) Circular No. 05 dated August 01, 2005 as amended from time to time relating to the External Commercial Borrowings (ECB). Attention is also invited toA. P. (DIR Series) Circular No. 11 dated September 07, 2011A.P. (DIR Series) Circular No. 29 dated September 26, 2011, andA.P. (DIR Series) Circular No. 31 dated September 04, 2013.

2. As per the extant ECB policy, ECBs from direct foreign equity holders (FEHs) are considered both under the automatic and the approval routes, as the case may be. ECBs from indirect equity holders and group companies and ECBs from direct FEH for general corporate purpose are, however, considered under the approval route. Further, any request for change of the ECB lender in case of FEH requires RBI's approval.

3. As a measure of simplification of the existing procedure, it has been decided to delegate powers to AD banks to approve the following cases under the automatic route:

  1. Proposals for raising ECB by companies belonging to manufacturing, infrastructure, hotels, hospitals and software sectors from indirect equity holders and group companies.

  2. Proposals for raising ECB for companies in miscellaneous services from direct / indirect equity holders and group companies. Miscellaneous services mean companies engaged in training activities (but not educational institutes), research and development activities and companies supporting infrastructure sector. Companies doing trading business, companies providing logistics services, financial services and consultancy services are, however, not covered under the facility.

  3. Proposals for raising ECB by companies belonging to manufacturing, infrastructure, hotels, hospitals and software sectors for general corporate purpose.ECB for general corporate purpose (which includes working capital financing) is, however, permitted only from direct equity holder.

  4. Proposals involving change of lender when the ECB is from FEH – direct / indirect equity holders and group company.

4. All other terms and conditions stipulated in the relative circulars shall continue to be applicable.

5. Other aspects of the ECB policy such as eligible borrower, recognised lender, permitted end-use, amount of ECB, all-in-cost, average maturity period, pre-payment, ECB liability:equity ratio, refinance of existing ECB, reporting arrangements, etc. shall remain unchanged.

6. These changes will come into force with immediate effect.

7. AD Category - I banks may bring the contents of this circular to the notice of their constituents and customers.

8. The directions contained in this circular have been issued under sections 10(4) and 11(1) of the Foreign Exchange Management Act, 1999 (42 of 1999) and are without prejudice to permissions / approvals, if any, required under any other law.

Yours faithfully,

(Rudra Narayan Kar)
Chief General Manager-in-Charge



16 May 2014

Dena Bank concurrent Audit

Applications for concurrent audit of Dena Bank for 2014-15
http://www.denabank.co.in/viewdetail.jsp?lang=0&did=139972780868505EA0AEA3057FD38A5D83AFAEE96DB32&id=0,47

15 May 2014

NSE-BSE Circuit Rules

NSE-BSE Circuit Rules & Election Counting Timings for 16th may.

If 10% circuit till 1pm then mkt shuts for 45 minutes if 15% circuit till 1pm then mkt shuts for 15 minutes if 20% circuit anytime, mkt closed for the day if 10%circuit from 1-2.3 pm then mkt shuts for 15mins if 15% circuit from 1-2.30 pm then mkt shuts for 45mins if 20% circuit anytime, mkt closed for the day. post 2.30pm , if 10% circuit mkt will continue trading but if 15% post 2.30 pm then closed the day.

### election counting for general election 2014 due to start on 8.00 am on may 16 across 989 counting centres. Trends will be in by 11 am on Friday, final results on 4 pm

Bombay HC on CA 2013


Important Judgement of Hon'ble Bombay High Court with respect to Companies Act, 2013

 

The Hon''ble Bombay High Court has made several important and interesting observations with respect to the Companies Act, 2013, recently on 8th May 2014, in the matter of Godrej Industries Limited.


The issue for consideration before the court was whether in view of the provisions of Section 110 of the Companies Act, 2013 and SEBI Circular dated 21st May 2013, a resolution for approval of a Scheme of Amalgamation can be passed by a majority of the equity shareholders casting their votes by postal ballot, which includes voting by electronic means, in complete substitution of an actual meeting. In other words, the issue considered by the Court was whether the 2013 Act, read with various circulars and notifications, has the effect of altogether eliminating the need for an actual meeting being convened. Along with this issue, the Hon'ble High Court also discussed several other matters such as the issue of effectiveness of the rules prescribed by the Ministry of Corporate Affairs ("MCA") under the Companies Act, 2013.


Interestingly, amongst the various discussions in the Order, the Court pointed out certain grey areas that persist with respect to the interpretation of the provisions around the issue under discussion. In Para 18 of the order, the Court pointed thus


"Far too many grey areas that still persist — the SEBI circular of 17th April 2014 is apparently differed; the Management & Administration Rules are not yet gazetted; Sections 230 and 232 of the 2013 Act are not yet brought into force; there is an apparent conflict between the requirements for a quorum coram and Section 110; it is doubtful whether Section 110 or any SEBI circular mandating exclusive voting by postal ballot can apply to a court- convened meeting.

 

Discussing the issues, and the considerations around it in much detail, the Court reached the following conclusions:

  1. The Court noted that the website of the Ministry of Corporate Affairs has a link to a single scanned PDF file entitled "COMPANIES ACT 2013 - STATEMENT OF NOTIFICATION OF RULES" on its front page where about 21 rules are listed. They are all said to be effective 1st April 2014. Several of these are not yet gazette. The Court Hon'ble Judge expressed his concern as to how such rules can be made effective on a basis where a ministry simply puts up some scanned document under the signature of one of its officers but without any publication in the official gazette. The Court noted that publication is not an idle formality and has fact a well-established legal purpose. That purpose is not and cannot be achieved in such an ad-hoc manner. Therefore, the Court ruled that, till such time as these rules are gazetted, or there is some provision made for the dispensation of official gazette notification, none of the rules in the Ministry of Corporate Affairs PDF document that are not yet gazetted can be said to be in force.
  2. The Court concluded that all provisions for compulsory voting by postal ballot and by electronic voting to the exclusion of an actual meeting cannot and do not apply to court-convened meetings. At such meetings, provision must be made for postal ballots and electronic voting, in addition to an actual meeting. Electronic voting must also be made available at the venue of the meeting. Any shareholder who has cast his vote by postal ballot or by electronic voting from a remote location (other than the venue of the meeting) shall not be entitled to vote at the meeting. He or she may, however, attend the meeting and participate in those proceedings.

In addition to the above, the Court observed that effect, interpretation and implication of the provisions of the Companies Act, 2013 and the relevant SEBI circulars and notifications, to the extent that they mandate a compulsory or even optional conduct of certain items of business by postal ballot (which includes electronic voting) to the exclusion of an actual meeting are matters that require a fuller consideration. It directed that the Company Registrar shall send an authenticated copy of present order to both the learned Additional Solicitor General and to SEBI requesting them to appear before the Court when this matter is next taken up for a consideration of this issue. Further, the Court laid down that until this issue is fully heard and decided, no authority or any company should insist upon such a postal-ballot-only meeting to the exclusion of an actual meeting.



Concurrent Audit P & bank

FYI - APPLICATION FOR ASSIGNMENT OF CONCURRENT AUDIT FOR CHARTERED ACCOUNTANT FIRM IN PUNJAB & SIND BANK

for online application
https://www.psbindia.com/OnLine_Application_CCA.php

opening date : 12-05-2014
last date :26-05-2014

14 May 2014

Supreme Court on Sale and WC


Important principles on distinction between "contract for sale of goods" and "works contract" explained

A Constitutional Bench of 5 Judges of the Supreme Court had to consider whether the law laid down by a three-Judge Bench in State of A.P. v. Kone Elevators (India) Ltd (2005) 3 SCC 389 that a contract for manufacture, supply and installation of lifts in a building is a "contract for sale of goods" and not a "works contract" is correct or not. HELD by the Constitution Bench over-ruling the three-Judge Bench judgement:

(i) In the case of a "contract for sale of goods", the entire sale consideration is taxable under the sales tax or value added tax enactments of the State legislatures. In the case of a "works contract", the consideration paid for the labour and service element has to be excluded from the total consideration received and only the balance is chargeable to sales tax or value added tax;

(ii) Four concepts have clearly emerged from the numerous judgements of the Supreme Court on the point. They are (a) the works contract is an indivisible contract but, by legal fiction, is divided into two parts, one for sale of goods, and the other for supply of labour and services; (b) the concept of "dominant nature test" or, for that matter, the "degree of intention test" or "overwhelming component test" for treating a contract as a works contract is not applicable; (c) the term "works contract" as used in Clause (29A) of Article 366 of the Constitution takes in its sweep all genre of works contract and is not to be narrowly construed to cover one species of contract to provide for labour and service alone; and (d) once the characteristics of works contract are met with in a contract entered into between the parties, any additional obligation incorporated in the contract would not change the nature of the contract;

(iii) The "dominant nature test" or "overwhelming component test" or "the degree of labour and service test" are really not applicable. If the contract is a composite one which falls under the definition of works contracts as engrafted under clause (29A)(b) of Article 366 of the Constitution, the incidental part as regards labour and service pales into total insignificance for the purpose of determining the nature of the contract;

(iv) On facts, the three-Bench judgement erred in taking the view that the major component was the equipment and that the skill and labour employed for converting the main components into the end product were only incidental. The principal logic applied, i.e., the incidental facet of labour and service is not correct because in all the cases, there is a composite contract for the purchase and installation of the lift. The price quoted is a composite one for both. Various technical aspects go into the installation of the lift. There has to be a safety device. In certain States, it is controlled by the legislative enactment and the rules. In certain States, it is not, but the fact remains that a lift is installed on certain norms and parameters keeping in view numerous factors. The installation requires considerable skill and experience. The labour and service element is obvious. The preparatory work has to be done taking into consideration as to how the lift is going to be attached to the building. The nature of the contracts clearly exposit that they are contracts for supply and installation of the lift where labour and service element is involved. Individually manufactured goods such as lift car, motors, ropes, rails, etc. are the components of the lift which are eventually installed at the site for the lift to operate in the building. In constitutional terms, it is transfer either in goods or some other form. In fact, after the goods are assembled and installed with skill and labour at the site, it becomes a permanent fixture of the building. However, if there are two contracts, namely, purchase of the components of the lift from a dealer, it would be a contract for sale and similarly, if separate contract is entered into for installation, that would be a contract for labour and service. But, a pregnant one, which is a composite contract for supply and installation, has to be treated as a works contract, for it is not a sale of goods/chattel simpliciter. It is not chattel sold as chattel or, for that matter, a chattel being attached to another chattel.


13 May 2014

Court-Convened Meetings and Postal Ballot

Court-Convened Meetings and Postal Ballot
-Dhananjay Trivedi

Background

 

In one of the first few cases interpreting the provisions of the Companies Act, 2013 (the 2013 Act), the Bombay High Court last week issued its judgment on the use of postal ballot facility at a court-convened meeting to consider a scheme of arrangement. In re Godrej Industries Limited, the court was concerned with a scheme of amalgamation of Wadala Commodities Limited into Godrej Industries Limited under sections 391 to 394 of the Companies Act, 1956 (the 1956 Act).[1] The narrow question at the initial stage for summons for direction to convene the meetings was “whether in view of the provisions of Section 110 of the [the 2013 Act] and SEBI Circular dated 21st May 2013, a resolution for approval of a Scheme of Amalgamation can be passed by a majority of the equity shareholders casting their votes by postal ballot, which includes voting by electronic means, in complete substitution of an actual meeting. In other words, whether the 2013 Act, read with various circulars and notifications, has the effect of altogether eliminating the need for an actual meeting being convened.”

 

The court answered this question in the negative to effectively find that while the mechanism of postal ballot (which includes electronic voting) ought to be offered as an additional facility for voting by shareholders, that cannot do away with the need for conducting a meeting. In arriving at this conclusion, the court considered various aspects of the purpose and conduct of shareholders’ meetings, issues of corporate law and governance contained in the 2013 Act as well as various SEBI 

circulars.

 

Reasoning

 

Even though the issue at hand was quite focused, the opinion of the court rendered by Justice G.S. Patel is elaborate and insightful on various legal and practical matters involving shareholder rights and corporate democracy (and hence I have taken the liberty of extracting some of the important observations). Some of the key issues considered are as follows:

 

Purpose and Importance of a Meeting

 

One consideration before the court was whether the purpose of corporate democracy is to simply permit shareholders to cast their vote or whether it was still important to hold a meeting of shareholders so as to enable them to deliberate on the issues and express their opinions. If deliberation is a crucial aspect of corporate democracy, then even where a postal ballot is provided for it is not possible to avoid a meeting altogether. The court expressed its views in the following manner:

 

We must remember that at the heart of corporate governance lies transparency and a well-established principle of indoor democracy that gives shareholders qualified, yet definite and vital rights in matters relating to the functioning of the company in which they hold equity. Principal among these, to my mind, is not merely a right to vote on any particular item of business, so much as the right to use the vote as an expression of an informed decision. That necessarily means that the shareholder has an inalienable right to ask questions, seek clarifications and receive responses before he decides which way he will vote. It may often happen that a shareholder is undecided on any particular item of business. At a meeting of shareholders, he may, on hearing a fellow shareholder who raises a question, or on hearing an explanation from a director, finally make up his mind. In other cases, he may hold strong views and may desire to convince others of his convictions. This may be in relation to matters that are not immediately obvious to the shareholder merely on receipt of written information or a notice. The right to persuade and the right to be persuaded are, as I see it, of vital importance. In an effort for greater inclusiveness, these rights cannot be altogether defenestrated. To say, therefore, that no meeting is required and that the shareholder must cast his vote only on the basis of the information that has been send to him by post or email seems to me to be completely contrary to the legislative intent and spirit to the express terms of the SEBI circular and amended Listing Agreement’s Clauses 35B and 49.

 

Hence, the purpose of shareholder democracy is not simply to exercise franchise but to meet, deliberate, persuade and be persuaded as a collective, which is possible only when the facility of a meeting is provided, and not simply when each shareholder casts a ballot in isolation without interaction.

 

Possibility of Amendments

 

An important aspect of shareholder right is the ability to propose amendments to resolutions put forth at a meeting. The court found that if the only facility provided is postal ballot without a shareholders’ meeting, then it would take away the power of directors or shareholders to propose amendments, as a result of which the resolution can only be put to vote as originally proposed. This is not desirable. The schemes of both the 1956 Act as well as the 2013 Act provide that schemes are “subject not only to approval by voting but also, possibly, to an amendment at the meeting itself”. The ability to decide upon the scheme along with amendments is important for achieving a meeting of minds, especially on crucial matters such as the share exchange ratio.

 

Broader Corporate Governance Concerns

 

The court also expressed its views on the broader governance impact that necessitates greater shareholder participation in companies, especially on crucial matters such as amalgamations.

 

Nothing could be more detrimental to shareholders’ rights than stripping them of the right to question, the right to debate, the right to seek clarification; and, above all, the right to choose, and to choose wisely. A vote is an expression of an opinion. That vote must reflect an informed decision. Dialogue and discourse are fundamental to the making of every such informed decision. [Counsel’s] submission seems to me to relegate shareholders, in the guise of greater inclusiveness, to a very distant second place in the scheme of corporate governance, seeing them merely as a necessary evil. Nothing could be further from the mandate of corporate law and governance. We strive today to greater transparency; that means that more should be given the opportunity to speak and to exercise their rights as shareholders. But that cannot come at the price of their right to speak, to be heard, to persuade, even to cajole. What corporate governance demands is the government of the tongue, not the tyranny of a finger pressing a button.

 

Electronic Voting at the Meeting

 

The court held that the facility of electronic voting must be made available at the meeting itself for those who wish to attend and vote at the meeting. In other words, electronic voting is not limited only to those who are unable or unwilling to attend the meeting. The objective behind this situation is that “[g]reater inclusiveness demands the provision of greater facilities, not less; and certainly not the apparent giving of one ‘facility’ while taking away a right.” Based on the court’s reasoning, the voting options available to shareholders are as follows:

 

1.         Shareholders may exercise their votes through postal ballot or electronic votes in advance and not attend the physical meeting;

 

2.         Shareholders may exercise their votes through postal ballot or electronic votes in advance and nevertheless attend and speak at the physical meeting so as to be able to persuade the other shareholders as to their point of view on matters discussed at the meeting (but they cannot vote again at the meeting);

 

3.         Shareholders may attend and speak at the meetings, and then vote electronically at the meeting itself.

 

This way, there could be a “single integrated system of voting” for all shareholders who exercise their votes, whether or not they attend the meeting.

 

Notification of Rules under the 2013 Act

 

Finally, the court was confronted with some procedural issues relating to the notification of various provisions of the 2013 Act as well as the Rules thereunder. It observed:

 

A final word about the manner in which these rules and sections are purportedly being brought into force. The website of the Ministry of Corporate Affairs has, on its front page, a link to a single scanned PDF file entitled “COMPANIES ACT 2013 - STATEMENT OF NOTIFICATION OF RULES”. Some 21 rules are listed. They are all said to be effective 1st April 2014. Several of these are not yet gazetted; at least I have not been able to find any gazette. I do not see how any such rules can be made effective on this basis where a ministry simply puts up some scanned document under the signature of one of its officers but sans any publication in the official gazette. That publication is not an idle formality. It has a well-established legal purpose. That purpose is not and cannot be achieved in this ad-hoc manner. Therefore, till such time as these rules are gazetted, or there is some provision made for the dispensation of official gazette notification, none of the rules in the Ministry of Corporate Affairs PDF document that are not yet gazetted can be said to be in force. [footnotes omitted]

 

These are significant questions, which will require urgent attention of the Ministry of Corporate Affairs (MCA).

 

Analysis

 

The judgment of the Bombay High Court is a significant one as it clarifies the rights of shareholders to attend and vote for (or against) resolutions proposed by the company, especially in the case of court-convened meetings for schemes of arrangement (and amalgamation). The courts grants wide amplitude to shareholder franchise and re-emphasises that the methods of voting are a facility provided to shareholders that cannot be circumscribed. Moreover, it highlights the importance of deliberations at a general meeting and the power of persuasion, both of which cannot be treated as empty formalities. This judgment also provides further impetus to shareholder participation in corporate decision-making, which is an important component of the overall phenomenon of shareholder activism, which is gaining ample momentum in the Indian context.

 

Furthermore, the judgment also raises questions regarding the implementation of the 2013 Act and highlights some key gaps such as the notification of the Rules. Such matters require urgent regulatory attention.

 

Although the judgment is only at the initial stage of summons for directors (for convening class meetings in a scheme of amalgamation), it raises significant issues that are pertinent more generally to similar cases. The fact that the court has observed that the matter requires fuller consideration and has sought to hear various interested parties such as the Registrar of Companies, the Central Government (through the Additional Solicitor General) and SEBI suggests that the issues will be subject to still further scrutiny. The wider ramifications of the judgment are evident in the observations of the court that “[o]n a prima-facie view that the elimination of all shareholder participation at an actual meeting is anathema to some of the most vital of shareholders’ rights, it is strongly recommended that till this issue is fully heard and decided, no authority or any company should insist upon such a postal-ballot-only meeting to the exclusion of an actual meeting.” 

 

[1] The scheme was considered under these provisions of the previous 1956 Act as they continue to be in force. The equivalent provisions of sections 230 and 232 of the new 2013 Act are yet to come into force.

08 May 2014

Power to quick inquiry to regional director

FYI - The Ministry of Corporate Affairs Vide its circular dated 07/05/2014   has empowered the Registrar/ Regional Director to conduct quick inquiry against professionals and officers where  it is observed that any e-Form/document/information/application certified   contains incomplete information, false or misleading information or omission of material information.

​ The said circular further states that cases shall be referred by the ​Registrar/ Regional Director to the e governance cell of the MCA which shall also refer the case to the concerned institute  for conducting disciplinary proceedings as well as debar the errant  professional from filing any document on the MCA Portal.

“National Judicial Reference System” (NJRS).

FYI - The CBDT has announced the setting up of a “National Judicial Reference System” (NJRS).

The NJRS comprises of two components, the “Appeals repository and Management System” and the “Judicial Research and Reference System”.

The Appeals repository is a database of all appeals pending in the ITAT, High Court and Supreme Court.

The Judicial Research and Reference System is a database of all decisions of the ITAT, High Courts & the Supreme Court. The cases will be indexed, searchable and cross-linked. The database will also have the relevant statutory enactments, circulars etc.

It is expected that the NJRS will go-live by November/ December 2014.

06 May 2014

Real Estate heading downfall?

"Mumbai has maximum inventory of unsold homes at 155.27 million sq feet I.e approximately 250000 houses which is equivalent to 40 months of unsold inventory. Unsold inventory denotes the number of months required to clear the stock at the existing absorption rate. An ideal scenario implies inventory should be in a range of 8 to 10 months. But Mumbai will take 4 years to sell these houses despite a slew of discount rates, new launches and back room negotiations. Same is the situation in NCR , Chennai , Kolkata, Banglore and Tier II cities. Builder's face crash crunch after RBI put brakes on 20:80 Ponzi scheme. This crisis will worse post 16 May if there is Hung Parliament.  India to expect big real estate crash in next 6 to 10 months.".... Dean Baker   ....renowned Economist who predicted 2008 US crisis. His advice to indian consumers ...."Indian consumers should be smart to defer their decision on investing in real estate ....and be greedy to sell their current exposure in real estate"Please forward this message to all your friends and family members.

Misuse of PAN from Tatkal

Don't give PAN number for railway Tatkal booking as proof of ID.

The Railways display the PAN. name, sex and age of passengers on reservation charts pasted on railway compartments.

This is a boon for benami transactions. It is mandatory for traders like jewelers to collect tax (TCS) from customers on purchase of jewelry worth Rs 5 lakh & bullion worth Rs 2 lakh.

While complying with TCS rules for collection, payment and uploading of TCS information (e-filing of TDS returns) jewellers have to furnish PAN of customers. For certain customers it is not convenient to provide PAN.

To accommodate high net worth customers, traders have a easy source of benami PAN numbers, name, sex and age from reserved railway compartments. A traveller recently noticed a chap copying PAN particulars along with name, age and sex pasted on reserved compartments, and when confronted with the help of railway police, he admitted that he gets Rs 10 per PAN particulars from jewellers. These persons are copying PAN information of senior citizens, women etc from sleeper class with the intention that passengers in sleeper class are not serious tax payers and generally salaried class.

This wrong usage of a PAN number is known only to the regular tax payers, who regularly check their tax credit on form 26 AS provided by the Income Tax department on their website.

This form 26AS is updated only on filing of e-TDS returns by the traders. There is almost 6-12 months time delay for the PAN holder to know that a transaction of above nature has taken place on his name and that too only if he goes through form 26 AS.

On noticing the tax credit of above nature while reconciling form 26 AS for tax credits for filing the return during subsequent financial year i.e. July / September, the tax payer has an option to exclude the same and go ahead in filing the return.

In that case the department will first initiate action from the tax payer's side asking him to explain the sources of money for the above transaction done in his name and also to prove that he has not carried on the above transaction.

The onus lies on the genuine tax payer for the fault committed by the traders.

This dispute may even take more than 2 years to be settled.

In conclusion, the only way to protect yourself from these fraudulent transactions, is to avoid quoting PAN details for identity proof at any source except for income tax related matters for which your Government had issued for.

You may quote your driving licence #, Voter ID # etc as your ID Proof but definitely not your PAN.

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05 May 2014

NO VAT on 40% of Restaurant Bill


VAT not leviable on 40% of the restaurant bill, which is subject to service tax

 

 

In the recent decision of the Uttarakhand High Court, in the case of Valley Hotels & Resorts vs. The Commissioner, Commercial Tax, Dehradun [TS-129-HC2014 (UTT)-VAT].


The High Court allowed the revision application filed by the assessee and held that, where the element of service has been declared and brought to tax vide notification dated 6 June 2012, by which Service tax is levied on 40% of the billed value in restaurant, no VAT can be imposed thereon.


The issue of double taxation seems to have been addressed and it has been held that VAT cannot be imposed on that portion of the restaurant bill, which has already suffered Service tax.


Empanel as Concurrent Auditors

BANK OF MAHARASHTRA invites online applications from practicing firms of Chartered Accountants, in the prescribed format, who are willing to...