12 May 2011

FDI in LLP Approved

APPROVAL FOR FDI IN LLP FIRMS


Approval for FDI in Limited Liability Partnership firms


PRESS RELEASE, DATED 11-5-2011


The Cabinet Committee on Economic Affairs today approved the proposal to amend the policy on allowing Foreign Direct Investment (FDI) in Limited Liability Partnership (LLP) firms.


The FDI in LLPs will be implemented in a calibrated manner, beginning with the 'open' sectors where monitoring is not required, subject to the following conditions :


(a) LLPs with FDI will be allowed, through the Government approval route, in those sectors/activities where 100% FDI is allowed, through the automatic route and there are no FDI-linked performance related conditions.


(b) LLPs with FDI will not be allowed to operate in agricultural/plantation activity, print media or real estate business.


(c) LLPs with FDI will not be eligible to make any downstream investments.


There are also further following conditions relating to funding, ownership and management of LLPs :


I. Funding of LLPs:


(a) An Indian company, having FDI, will be permitted to make downstream investment in LLPs only if both the company, as well as the LLP are operating in sectors where 100% FDI is allowed, through the automatic route and there are no FDI-linked performance related conditions.


(b) Foreign Capital participation in the capital structure of the LLPs will be allowed only by way of cash considerations, received by inward remittance, through normal banking channels, or by debit to NRE/FCNR account of the person concerned, maintained with an authorized dealer/authorized bank; and


(c) Foreign Institutional Investors (FIIs) and Foreign Venture Capital Investors (FVCIs) will not be permitted to invest in LLPs. LLPs will also not be permitted to avail External Commercial Borrowings (ECBs.)


II. Ownership and management of LLPs :


(a) For the purpose of determination of the designated partners in respect of LLPs with FDI, the term "resident in India" would have the meaning, as defined for "person resident in India", under section 2(v)(i)(A) & (B) of the Foreign Exchange Management Act, 1999 ;


(b) In case the LLP has a body corporate as a designated partner, the body corporate should only be a company registered under the Companies Act and not any other body, such as an LLP or a trust.


III. Conversion of a company with FDI into an LLP will be allowed only if the above stipulations are met and with the prior approval of FIPB/Government.


IV. The designated partners will be responsible for compliance with the above conditions and liable for all penalties imposed on the LLP for their contravention.


Presently, FDI is allowed in Indian companies. It is allowed in a firm or a proprietary concern, subject to certain conditions. FDI in a trust is also allowed with prior Government approval, provided it is a Venture Capital Fund (VCF).


The CCEA's approval will benefit the Indian economy by attracting greater FDI, creating employment and bringing in international best practices and latest technologies in the country.


The Limited Liability Partnership Act, 2008 (LLP Act) was notified in April, 2009. With the passage of this Act, a new hybrid entity, incorporating the features of a body corporate and a partnership, can now be formed for the purpose of undertaking business in India.


11 May 2011

IndianCAs: CBEC on Restaurant and Hotels [1 Attachment]

 
[Attachment(s) from Ashwin Nagar included below]

CBEC's CLARIFICATION REGARDING SERVICE TAX ON HOTELS/RESTAURANTS

Clarification regarding service tax on Short-Term Accommodation Service and Restaurant Service

CIRCULAR NO. 139/8/2011-TRU, DATED 10-5-2011

Since the levy of service tax on the two new services relating to services provided by specified restaurants and by way of short-term hotel accommodation came into force with effect from 1st May, 2011, a number of queries have been raised by the potential tax payers.

2. These are addressed as follows:

Short-Term Accommodation Service:

Sl. No
Queries
Clarification
1.
What is the relevance of declared tariff? Is the tax required to be paid on declared tariff or actual amount charged?
"Declared tariff" includes charges for all amenities provided in the unit of accommodation like furniture, air-conditioner, refrigerators etc., but does not include any discount offered on the published charges for such unit. The relevance of 'declared tariff' is in determining the liability to pay service tax as far as short-term accommodation is concerned. However, the actual tax will be liable to be paid on the amount charged i.e., declared tariff minus any discount offered. Thus if the declared tariff is Rs. 1100 but actual room rent charged is Rs. 800 tax will be required to be paid @ 5% on Rs. 800.
2.
Is it possible to levy separate tariff for the same accommodation in respect of corporate/privileged customers and other normal customers?
It is possible to levy separate tariff for the same accommodation in respect of a class of customers which can be recognized as a distinct class on an intelligible criterion. However, it is not applicable for a single or few corporate entities.
3.
Is the declared tariff supposed to include cost of meals or beverages?
Where the declared tariff includes the cost of food or beverages, Service Tax will be charged on the total value of declared tariff. But where the bill is separately raised for food or beverages, and the amount is charged in the bill, such amount is not considered as part of declared tariff.
4.
What is the position relating to off-season prices? Will they be considered as declared tariff?
When the declared tariff is revised as per the tourist season, the liability to pay Service Tax shall be only on the declared tariff for the accommodation where the published/printed tariff is above Rupees 1000. However, the revision in tariff should be made uniformly applicable to all customers and declared when such change takes place.
5.
Is the luxury tax imposed by States required to be included for the purpose of determining either the declared tariff or the actual room rent?
For the purpose of service tax luxury tax has to be excluded from the taxable value.

Services Provided by Restaurants:

1.
If there are more than one restaurants belonging to the same entity in a complex, out of which only one or more satisfy both the criteria relating to air-conditioning and licence to serve liquor, will the other restaurant(s) be also liable to pay Service Tax?
Service Tax is leviable on the service provide by a restaurant which satisfies two conditions: (i) it should have the facility of air conditioning in any part of the establishment and (ii) it should have license to serve alcoholic beverages. Within the same entity, if there are more than one restaurant, which are clearly demarcated and separately named, the ones which satisfy both the criteria is only liable to service tax.
2.
Will the services provided by taxable restaurant in other parts of the hotel e.g., swimming pool, or an open area attached to a restaurant be also liable to Service Tax?
The taxable services provided by a restaurant in other parts of the hotel e.g., swimming pool, or an open area attached to the restaurant are also liable to Service Tax as these areas become extensions of the restaurant.
3.
Is the serving of food and/or beverages by way of room service liable to service tax?
When the food is served in the room, service tax cannot be charged under the restaurant service as the service is not provided in the premises of the air-conditioned restaurant with a licence to serve liquor. Also, the same cannot be charged under the Short-Term Accommodation head if the bill for the food will be raised separately and it does not form part of the declared tariff.
4.
Is the value added tax imposed by States required to be included for the purpose of service tax?
For the purpose of service tax, State Value Added Tax (VAT) has to be excluded from the taxable value.

3. Trade Notice/Public Notice may be issued to the field formations and

| Ashwin Nagar | FCA and SAP-Finance & Consolidations |
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---------- Forwarded message ----------
From: Ashwin Nagar <ashwinnagar@yahoo.com>
Date: Wed, May 11, 2011 at 9:14 PM
Subject: CBEC on Restaurant and Hotels
To: Ashwin Nagar <ashwin.nagar@gmail.com>



 
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Attachment(s) from Ashwin Nagar

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07 May 2011

Circular on Sub-Contractors Liable to Pay Service Tax (WCS)


Classification of services - Services provided by sub-contractors/consultants & other service providers are classifiable as per section 65A - Representation by Jaiprakash Associates Limited, Noida, in terms of Judgment dated 14-2-2011 in W.P. No. 7705 of 2008


CIRCULAR NO. 138/07/2011 - SERVICE TAX, DATED 6-5-2011



The Works Contract service (WCS) in respect of construction of Dams, Tunnels, Road, Bridges etc. is exempt from service tax. WCS providers engage sub-contractors who provide services such as Architect's Service, Consulting Engineer's Service, Construction of Complex Service, Design Services, Erection Commissioning or Installation Service, Management, Maintenance or Repair Service etc. The representation by Jaiprakash Associates Limited seeks to extend the benefit of such exemption to the sub contractors providing various services to the WCS provider by arguing that the service provided by the sub contractors are 'in relation to' the exempted works contract service and hence they deserve classification under WCS itself.



2. The matter has been examined.



(i) Section 65A of the Finance Act, 1994 provides for classification of taxable services, which mentions that classification of taxable services shall be determined according to the terms of the sub-clauses (105) of section 65. When for any reason, a taxable service is prima facie, classifiable under two or more sub-clauses of clause (105) of section 65, classification shall be effected under the sub-clause which provides the most specific description and not the sub-clauses that provide a more general description.



(ii) In this case the service provider is providing WCS and he in turn is receiving various services like Architect service, Consulting Engineer service, Construction of complex, Design service, Erection Commissioning or installation, Management, maintenance or repair etc., which are used by him in providing output service. The services received by the WCS provider from its subcontractors are distinctly classifiable under the respective sub clauses of section 65 (105) of the Finance Act by their description. When a descriptive sub clause is available for classification, the service cannot be classified under another sub clause which is generic in nature. As such, the services that are being provided by the sub contractors of WCS providers are classifiable under the respective heads and not under WCS.



(iii) Attention is also invited to CIRCULAR NO 96/7/2007-ST, dated 23rd August, 2007 regarding clarification on technical issues relating to taxation of services under the Finance Act, 1994. The relevant portion is reproduced below,-









999.03 /23.08.07


A taxable service provider outsources a part of the work by engaging another service provider, generally known as sub-contractor. Service tax is paid by the service provider for the total work. In such cases, whether service tax is liable to be paid by the service provider known as sub-contractor who undertakes only part of the whole work.


A sub-contractor is essentially a taxable service provider. The fact that services provided by such sub-contractors are used by the main service provider for completion of his work does not in any way alter the fact of provision of taxable service by the sub-contractor. Services provided by sub-contractors are in the nature of input services.


Service tax is, therefore, leviable on any taxable services provided, whether or not the services are provided by a person in his capacity as a sub-contractor and whether or not such services are used as input services. The fact that a given taxable service is intended for use as an input service by another service provider does not alter the taxability of the service provided.



4. Therefore, it is clarified that the services provided by the subcontractors / consultants and other service providers are classifiable as per Section 65 A of the Finance Act, 1994 under respective sub clauses (105) of Section 65 of the Finance Act, 1944 and chargeable to service tax accordingly.





06 May 2011

Responsibilties of CA in MCA Certification & Minimum Recommended Fee

--

INSTRUCTION REGARDING CERTIFICATION OF e-FORMS BY PRACTISING PROFESSIONALS


Certification of e-forms under the Companies Act, 1956 by the Practising professionals


CIRCULAR NO. 14/2011, DATED 8-4-2011


Ministry of Corporate Affairs has been steadily progressing towards total electronic filing and approval regime. Objective is to do away with human intervention in MCA approvals to the maximum extent possible.


2. For this purpose, Ministry of Corporate Affairs has entrusted practicing professionals registered as Members of the professional bodies namely, ICAI, ICSI & ICWAI with the responsibility of ensuring integrity of documents filed by them with MCA in electronic mode. Professionals are now to be responsible for submitting/certifying documents (to be signed digitally by them) and system would accept most of these documents online without approval by Registrar of Companies or other officers of the Ministry.


3. However, to ensure that the data integrity is maintained at all times, there will be checking of such submissions to guard against fraudulent filing. In addition to the penal actions against the companies and their officers in default for furnishing incorrect or false information in the documents as provided under the Companies Act, 1956, action would also be taken on receipt of any complaint, anonymous or otherwise, against such professionals in the following manner :—


(a) Alleged wrong submissions: In such cases, quick enquiry will be conducted by the concerned RD who will be assessing prima facie, cases of wrong doing by the professionals. Concerned professionals will be given time for furnishing explanation before conveying to a cancellation.


(b) This report will be submitted to e-Governance Cell of MCA. The Cell will inform in the concerned Professional Institute to initiate an enquiry and complete the same within a month's time.


(c) Simultaneously, the concerned professional shall be debarred and shall not be allowed to enter to submit any document on MCA Portal. This debarment will be for a period of 30 days or till the final enquiry report is received from the respective Professional Institute.


(d) MCA will take a final decision after considering the report so received.










CCBCAF & SMP initiative for prescribing the Minimum Recommended Scale of Fees for the Professional Assignments done by the Chartered Accountants










The Committee for Capacity Building of CA Firms and Small & Medium Practitioners, ICAI (CCBCAF & SMP) has taken a major initiative for prescribing the Minimum Recommended Scale of Fees for the professional assignments done by our members of ICAI. The recommendation is about the fee to be charged as per the work performed for various professional assignments and the amount quoted under respective heads of professional work. The fee has been recommended separately for metro and non-metro Cities. The prescribed Minimum Recommended Scale Fees will enhance the productivity and Capacity Building of Practitioners & CA Firms and will largely benefit the SMP segment.

Please click here for Minimum Recommended Scale of Fees for Metro Cities

Please Click Here for Minimum Recommended Scale of Fees for Non Metro Cities





05 May 2011

GENERAL CIRCULAR NO. 19/2011, DATED 2-5-2011

CLARIFICATION ON MARKING A COMPANY AS HAVING MANAGEMENT DISPUTE BY RoCs


Marking a company as having management dispute by Registrar of Companies under MCA-21 system


GENERAL CIRCULAR NO. 19/2011, DATED 2-5-2011


In the present electronic MCA-21 system, there is a facility with the Registrar of Companies to mark a company "marked as having management dispute" on the basis of complaints received in his office. This marking creates an alert and the documents are not approved and remain in the registry as work in process till it is demarked by the Registrar. In order to bring uniformity of practices by all Registrar of Companies it is clarified that the Registrar of Companies shall use this facility as under: -


(i) The Registrar of Companies shall mark a company as having management dispute in only those cases where the court or Company Law Board has directed to maintain the status quo with reference to any e-forms including status of Directors in the company, or


(ii) The Court or Company Law Board has granted any injunction or stay in taking the document on record and Registrar of Companies is a party in such court cases and/or the directions have been issued to the Registrar of Companies.


(iii) In other matter, where the Registrar of Companies in not a party and such orders have been passed and has not been served to the Registrar of Companies, it is for the parties to comply to such orders and in case of non-compliances, the law shall take its own course.

04 May 2011

Circular on DIN Simplification

FURTHER SIMPLIFICATION IN ALLOTMENT OF DIN


Allotment of Director Identification Number (DIN) under Companies Act, 1956


GENERAL CIRCULAR NO. 11/2011, DATED 7-4-2011


The Ministry of Corporate Affairs has already simplified the process for obtaining DIN online, if the DIN-1 eform has been digitally signed by the practicing Chartered Accountant, Company Secretary or Cost Accountant, verifying the particulars of the applicants given in the application. However, in other cases, where the DIN form is digitally singed by the applicant only, the applications are being disposed of within one or two days after examination by the Central Government.


2. As another step towards simplification in allotment of DIN, the Ministry is considering to allot all DIN applications online. To examine the DIN-4 eform through the system, it has been decided that following fields in the DIN-1 eform will be mandatory:


(i) Name of Applicant


(ii) Father's name of the Applicant


(iii) Date of Birth


(iv) Income Tax Permanent Account Number (PAN) in case of all Indian Nationals.


(v) Passport in case of all Foreign Nationals.


3. At present, the PAN of the applicant is not a mandatory field in DIN eform-1. In order to examine DIN-4 eform through the system and to avoid duplicate DIN, it has been decided that all existing DIN holders who have not furnished their PAN earlier at the time of obtaining DIN, are required to furnish their PAN by filing DIN- 4 eform by 31st May, 2011.


IndianCAs: Clarifications on CENVAT CREDIT Amendments [1 Attachment]

 
[Attachment(s) from Ashwin Nagar included below]

DEPARTMENTAL CLARIFICATIONS ON CERTAIN ISSUES UNDER AMENDED CENVAT CREDIT RULES

Clarification on issues relating to CENVAT Credit Rules, 2004

CIRCULAR NO. 943/04/2011-CX, DATED 29-4-2011

The CENVAT Credit Rules, 2004 were amended along with the Budget 2011 announcements vide Notification 3/2011-CE (NT), dt 1-3-2011. A few changes were further effected vide Notification 13/2011-CE (NT), dt 31-3-2011. On a few issues trade has requested for clarity. Accordingly the following clarifications are presented issue wise in a tabular format.
S.No.
Issue
Clarification
1
Can credit of capital goods be availed of when used in manufacture of dutiable goods on which benefit under Notification 1/2011- CE is availed or in provision of a service whose part of value is exempted on the condition that no credit of inputs and input services is taken?
As per Rule 6(4) no credit can be availed on capital goods used exclusively in manufacture of exempted goods or in providing exempted service. Goods in respect of which the benefit of an exemption under notification No. 1/2011-CE, dated the 1st March, 2011 is availed are exempted goods [Rule 2(d)]. Taxable services whose part of value is exempted on the condition that no credit of inputs and input services, used for providing such taxable service, shall be taken, are exempted services [Rule 2(e)]. Hence credit of capital goods used exclusively in manufacture of such goods or in providing such service is not allowed.
2
Is the credit of only specified goods and services listed in the definition of inputs and input services not allowed such as goods used in a club, outdoor catering etc, or is the list only illustrative?
The list is only illustrative. The principle is that cenvat credit is not allowed when any goods and services are used primarily for personal use or consumption of employees.
3
How is the "no relationship whatsoever with the manufacture of a final product" to be determined?
Credit of all goods used in the factory is allowed except in so far as it is specifically denied. The expression "no relationship whatsoever with the manufacture of a final product" must be interpreted and applied strictly and not loosely. The expression does not include any goods used in or in relation to the manufacture of final products whether directly or indirectly and whether contained in the final product or not. Only credit of goods used in the factory but having absolutely no relationship with the manufacture of final product is not allowed. Goods such as furniture and stationary used in an office within the factory are goods used in the factory and are used in relation to the manufacturing business and hence the credit of same is allowed.
4
Is the credit of input services used for repair or renovation of factory or office available?
Credit of input services used for repair or renovation of factory or office is allowed. Services used in relation to renovation or repairs of a factory, premises of provider of output service or an office relating to such factory or premises, are specifically provided for in the inclusive part of the definition of input services.
5
Is the credit of Business Auxiliary Service (BAS) on account of sales commission now disallowed after the deletion of expression "activities related to business"?
The definition of input services allows all credit on services used for clearance of final products upto the place of removal. Moreover activity of sale promotion is specifically allowed and on many occasions the remuneration for same is linked to actual sale. Reading the provisions harmoniously it is clarified that credit is admissible on the services of sale of dutiable goods on commission basis.
6
Can the credit of input or input services used exclusively in trading, be availed?
Trading is an exempted service. Hence the credit of any inputs or input services used exclusively in trading cannot be availed.
7
What shall be the treatment of credit of input and input services used in trading before 1-4-2008?
Trading is an exempted service. Hence credit of any inputs or input services used exclusively in trading cannot be availed. Credit of common inputs and input services could be availed subject to restriction of utilization of credit up to 20% of the total duty liability as provided for in extant Rules.
8
While calculating the value of trading what principle to follow- FIFO, LIFO or one to one correlation?
The method normally followed by the concern for its accounting purpose as per generally accepted accounting principles should be used.
9
Are the taxes and year end discounts to be included in the sale price and cost of goods sold while calculating the value of trading?
Generally accepted accounting principles need to be followed in this regard. All taxes for which set off or credit is available or are refundable/ refunded may not be included. Discounts are to be included.
10
Does the expression "in or in relation" used in Rule 6 override the definition of "input" under Rule 2(k) for determining the eligibility of Cenvat credit?
The definition of "input" is given in Rule 2(k) and Rule 6 only intends to segregate the credits of inputs used towards dutiable goods and exempted goods. While applying Rule 6, the expression "in or in relation" must be read harmoniously with the definition of "inputs".
11
Sub-rules (3B) and (3C) of rule 6 apply to whole entity or independently in respect of each registration?
The rules 6(3B) and 6(3C) impose obligation on the entities providing banking and financial services (in case of a bank and a financial institution including a non-banking financial company) or life insurance services or management of investment under ULIP service. The obligation is applicable independently in respect of each registration. When such a concern is exclusively rendering any other service from a registered premises, the said rules do not apply. In addition to BoFS and life insurance services if any other service is rendered from the same registered premises, the said rules will apply and due reversals need to be done.
12
Is the credit available on services received before 1-4-2011 on which credit is not allowed now? e.g. rent-a-cab service
The credit on such service shall be available if its provision had been completed before 1-4-2011.

2. Trade and Industry as well as field formations may be suitably informed.

nn



 
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01 May 2011

IndianCAs: Clarification on EASY EXIT SCHEME,2011

 

CLARIFICATION ON EASY EXIT SCHEME, 2011

Section 560 of the Companies Act, 1956 – Power of Registrar to strike defunct company off register - Easy Exit Scheme, 2011 - Monitoring of Compliance Report with regard to action taken for filing of prosecution against defaulting companies through MCA 21

LETTER [2/7/2010-CL-V], DATED 15-4-2011

I am directed to refer to the Ministry's letter of even No. dated 11-3-2011 whereby it was requested to furnish the Compliance Report to the Ministry with regard to action taken for filing of prosecution against such defaulting companies in given format.

2. Secretary, MCA has desired that the Compliance Report shall be monitored through MCA 21 and be a part of their progress report. It has been observed that details of prosecutions 'filed' and 'yet to be filed' are not being updated on the Ministry's portal. Hence, you are requested to update the prosecution module so that the requisite data can be captured through MCA 21.



 
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29 April 2011

CBDT Circular on Procedure for Refund of Excess TDS

CBDT Circular On Procedure For Refund Of Excess TDS Deducted/ Paid


The CBDT has issued CIRCULAR NO. 2/2011 [F. NO. 385/25/2010-IT(B)], DATED 27-4-2011 for regulating the procedure for refund of excess TDS deducted / paid. A pdf copy is available for download

26 April 2011

No Service Tax Exemption to CAs' on Represenation Work wef 01/05/2011

The exemption from collecting Service Tax vide notification No. 25/2006 granted to Chartered Accountants for professional representation before statutory authorities has been withdrawn from 1st May 2011 vide notification No. 32/2011 dated 25th April 2011.



13th July, 2006.


Notification No. 25 / 2006-Service Tax




G.S.R. (E).- In exercise of the powers conferred by sub-section (1) of section 93 of the Finance Act, 1994 (32 of 1994) (hereinafter referred to as the Finance Act), the Central Government, on being satisfied that it is necessary in the public interest so to do, hereby exempts the taxable services falling under sub-clauses (s), (t) and (u) of clause (105) of section 65 of the Finance Act, provided or to be provided by a practicing chartered accountant, a practicing cost accountant and a practicing company secretary respectively, in his professional capacity, to a client, relating to representing the client before any statutory authority in the course of proceedings initiated under any law for the time being in force, by way of issue of notice, from the whole of service tax leviable thereon under section 66 of the said Finance Act.



F. No. 356/37/2006-TRU





Notification No. 32/2011 - Service Tax, dated 25-4-2011



G.S.R. -(E).- In exercise of the powers conferred by sub-section (1) of section 93 of the Finance Act, 1994 (32 of 1994), the Central Government, on being satisfied that it is necessary in the public interest so to do, hereby rescinds the notification of the Government of India in the Ministry of Finance (Department of Revenue) No.25/2006-Service Tax, dated the 13th July, 2006, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i) vide number G.S.R. 418(E) dated the 13th July, 2006, except as respects things done or omitted to be done before such rescission.



2. This notification shall come into force on the 1st day of May, 2011.



Legal Services


With the amendments coming into force, exemption provided to CAs, CWAs and CSs vide notification No. 25/2006-ST, dated 13-7-2006 for similar services is being withdrawn by notification No. 32/2011-ST, dated April 25, 2011.



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