Thursday, June 4, 2015

IT, etc., REgime A Host Of New Developments


Conclusion:  A company ceases to exist after amalgamation. Thus, assessment upon a dissolved company is impermissible as there is no provision in Income Tax Act to make an assessment thereupon.
 Direct Link to download full text of the above Judgment/ Order from official website–
- See more at:

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 Whether the provisions limiting the period of condonation for delay in filing appeal ultra vires?

If were to be considered from all angles, and with the objective of profound public interests,  the view the  HC has taken has to be commended not only as the  right view, but as the ONE AND ONLY view judciary could have been expected to take; especially so, should a couple of crucial aspects be kept in sharp focus:

1. Strictly viewed, right of appeal being a special feature, rather creature of the Act, an appeal is required, and duty bound, be it taxpayer or Revenue, need to be lodged within the prescribed time limit., not beyond. And, con donation of a delay,  is intended to be prayed for, and allowed, provided "sufficient cause" is pleaded and proved to the satisfaction of the appellate authority, not excluding courts.In short, con-donation of a delay is permissible, only in exceptional cases and extraordinary circumstances; not as a matter of routine or impulsively.

2. For con donation, the outermost time limit prescribed is a MUST. With unbridled and uncontrolled power of discretion, if vested, that has the inherent danger of being exercised at freewill/ according to the whims and fancy of the authority; so much so, exercise of the power, if permitted  on subjective, as opposed to objective and non-judgmental, reasons, con donation  might become THE RULE, not an exception on a case to case basis.

june 13th


No Coercive Tax Recovery From Payer For TDS Default By Payee: CBDT

JUne 10

OECD - its latest proactive contribution in re. International Tax Regime !

On March 24, 2014, OECD released a discussion draft on the first focus area “Addressing the challenges of the Digital Economy” of the 15 point Action Plan on its BEPS project. 
On this significant action plan, Akhilesh Ranjan - India’s Competent Authority for USA/Europe and Joint Secretary Foreign Tax and Tax Research, Ministry of Finance, India ,  Jennifer Roeleveld, Board member of IFA South Africa and a member of IFA’s Permanent Scientific Committee (PSC) and Paul Morton, Chairman of the British Branch of IFA, provide their views along with comments on overall BEPS project. 
On the BEPS concerns raised by the digital economy, Mr. Ranjan states that “value is created not merely by the production of goods and services, but also by the purchasing power of the market where the goods/services are consumed”. Therefore, he believes that new rules that allow taxation of income where value is created, without insisting on a physical presence should be considered.  Mr. Ranjan is also of the view that the “nexus based approach” of taxing on the basis of significant digital presence in source jurisdiction is likely to be a game changer“which may help in introducing a new global legislation for taxing digital transactions.”

OECD releases stakeholders’ comments on Digital Economy taxation under BEPS
OECD releases stakeholders’ comments on Digital Economy tax issues under BEPS; Comments to be discussed in Digital Economy Task Force meeting on Feb 3-4, 2014 

OECD releases aggressive '2014 BEPS Calendar' to seek stakeholder inputs
Base Erosion and Profit Shifting (BEPS) Action plan developed by OECD was published first on July 19th, 2013. OECD has set up ambitious timeline for the BEPS action plan, with first output expected by September 2014 and completion of the project expected by the end of 2015.

Revenue Secretary - Trust us, Help Us Collect More Taxes
Revenue Secretary Sumit Bose says Govt’s ‘collaborative’ process will continue; “Taxpayers should trust us and help us collect more taxes”,says Sumit Bose; He also says, BEPS a key concern for developing countries and residence based taxation under strain’; Dr Shome says ‘Source’ taxation principle sacrosanct for India; Further, he also believes investment-linked incentives better for growth than profit based incentives

G20 nations endorse OECD's BEPS Action Plan to tackle tax avoidance
G20 Leaders' declaration fully endorses OECD's BEPS Action Plan and proposal for global model for multilateral and bilateral automatic exchange of information; Cross-border tax evasion and avoidance undermine public finances and people’s trust in the fairness of the tax system; Declaration welcomes establishment of the G20/OECD BEPS project to tackle tax avoidance, harmful practices and aggressive taxplanning

OECD's report to G20 leaders on EOI and BEPS
OECD Secretary General presents update on BEPS and automatic EOI to G20 leaders at St.Petersburg ; Model competent authority agreement  to “operationalise” automatic exchange expected in 2013, says Report

IFA Congress begins, BEPS in focus
As IFA President Manuel Tron delivered the inaugural address on Sunday, Aug. 25th to kick off the Copenhagen Congress, it truly was a spectacle to see almost 2000 delegates from all across the globe packing the Bella Center.

BEPS: OECD'S Raffaele Russo On The New Global Tax Medicine
In an exclusive video interview with Taxsutra, Senior Advisor at OECD - Mr. Raffaele Russo delved in detail on how the OECD expects to implement the radical 15 point BEPS action plan. Mr. Russo pointed out that the implementation of the Action Plan would require changes in domestic legislations, transfer pricing guidelines and changes in OECD Model Tax Convention. Arguing that BEPS was no longer a technical issue restricted to practitioners but had morphed into a relevant, visible political issue, Mr. Russo felt that the political support of G-20 would ensure that the Action Plan is implemented. Re-affirming the ambitious 18-24 month deadline to implement the Action Plan, Mr. Russo quipped that " ...There are some things if you cannot do in 1 year, you cannot do them in 100 years."
Mr. Russo also discussed various technical issues mentioned in the BEPS report including digital economy taxation, common template for transfer pricing documentation, intangibles, automatic exchange of information as also addressed some of the criticism and skepticism being expressed by tax experts. 
Taxsutra Editor Arun Giri’s  exclusive interview with OECD's Mr. Raffaele Russo is reproduced here

OECD to address VAT/GST issues on digital commerce under BEPS
OCED’s Comprehensive Action Plans on Base Erosion Profit Shifting (BEPS) to address tax issues facing digital economy, in the wake of digital globalisation; OECD's Task Force to identify main difficulties that digital economy poses on application of international tax laws vis-à-vis VAT/GST laws of each country (e.g. determination of jurisdiction where value addition occurs); Calls for thorough analysis of different business models to understand attribution of value created from generation of marketable location-relevant data, through use of digital products and services; Task Force will examine ways to ensure effective collection of VAT/GST w.r.t. cross border supply of digital goods and services; Sets September 2014 deadline to address these issues : OECD

Intangibles, risk & capital in transfer pricing focus as OECD releases BEPS report
OECD action plan proposes significant changes to TP Guidelines for preventing BEPS; Recognizes intangibles, allocation of risk and capital as key areas; Proposes development of guidance on pricing of related party financial transactions like guarantee, derivatives, captive and other insurance arrangements; Proposes to change TP rule to prevent separation of income from economic activity by using/misapplying existing TP rule; Plan also proposes to develop rule on re-characterization of intra-group transactions, which would rarely happen between unrelated parties: OECD Report on Base Erosion & Profit Shifting. 

OECD releases 15 point BEPS Action Plan; Digital economy, intangibles in focus
OECD Secretary-General Angel Gurría released the Action Plan at the meeting of G20 Finance Ministers and Central Bank Governors today in Moscow. The OECD’s Action Plan will allow governments to address the concerns arising from base erosion and profit shifting – the gaps in national tax laws that can be exploited by multi-national corporations to artificially reduce their taxes.

The BEPS Timeline
1948 – Roots of OECD trace back to 1948 through Organization for European Economic Corporation (OEEC).
1961 - The Organization for Economic Corporation and Development (OECD) was established.
1998 – The OECD had long back started the work on BEPS but under the banner of “Harmful tax competition, an emerging global issue”. OECD then dealt with eliminating harmful tax regimes and seeking commitment of tax havens on transparency & exchange of information, and encouraging other Non-OECD countries to participate.

BEPS – Outlining the Need & Rationale
With all the hype surrounding BEPS over the last 12 months, it is always good to take a step back and analyse what exactly prompted the OECD to work on this issue and that too on a war footing. The Lehman Brothers collapse in late 2008 brought the US economy and consequently the global economy under tremendous pressure, triggering a worldwide recession. A recession always puts strain on tax mobilization efforts, which is what happened. When that happens, all governments look at every possible way to raise resources and when they did, a lot of them were a bit startled to find that many corporate giants  had structured their group in such a way that most of of them were hardly paying any taxes anywhere……

OECD Feb 2013 BEPS report calls for "holistic, innovative" approach
OECD releases Report on Base Erosion and Profit Shifting (BEPS); Report recommends holistic, comprehensive approach towards tackling taxability on source vs. residence principles, taxing intra-group financial transactions, implementing anti-abuse provisions (including CFC, Transfer Pricing); Calls for timely action and innovative approaches; Identifies key pressure areas as hybrid mismatch arrangements, treaty application to delivery of digital goods / services, related-party debt financing, TP aspects of risk-allocation and intangibles, harmful preferential regimes 

Suggested Reading



 My Departure Address- Common Seal

The sealed fate of company seal | Business Line

Relic of the past
Coming to the question of putting up the seal of the company, the Supreme Court observed that, "it is a relic of the days when mediaeval barons, who could not read or write, used their rings to make a characteristic impress. Even in absence of a seal, the company may still be held to be liable having regard to the nature of a transaction and the authority of those who had executed it. If the act of the directors is not
ultra vires
or no public policy is involved, the parties acting thereupon cannot be left at large."
Although the Companies Act continues to provide for a common seal, it is clear that failure to affix the common seal on any deed or document by itself will not absolve the directors of their liability. Failure to affix the common seal cannot be a ground on which the company can escape its obligations. For all practical purposes, the common seal is as good as dead.
The common seal will continue more as a ritual rather than as a substantive mark of identification. Eventually, it is the overall circumstances of a given case that would weigh with the courts and not the mere affixation or otherwise of the common seal on a document or an agreement. Thus, the common seal of a company is no more as sacrosanct as it used to be.


S. L. Kapoor vs Jagmohan & Ors on 18 September, 1980
[767D] (2) (i) An administrative body may in a proper case, be bound to give a .... and a common seal, with power to acquire and hold property to contract etc. etc. .... that the question of the application of the principle can properly be determined". ..... "It may be that there are some who would decry the importance which the ...–-relevance-and-importance

·         Common Seal, Uncommon Nuisance - Our Community - Similarto Common Seal, Uncommon Nuisance - Our Community
The common seal is in legal terms the equivalent of the signature of an ordinary individual. Its use is associated with important decisions such as the transfer of ...

·         Due Execution of Documents under Seal by PRC Companies for ...

Due Execution of Documents under Seal by PRC Companies for Use in Hong ... ( c) a common seal being a metallic seal with the company's name engraved in ...

·         Common Seal under Companies Act 2013 | R & A Associates - Similarto Common Seal under Companies Act 2013 | R & A Associates
May 7, 2014 ... The Company uses Common Seal as its Signature. Here, comes the role of “ Common Seal”. Definition of Common Seal: There is no definition ...

·         Control and use of the society's common seal | Societies and ... - Similarto Control and use of the society's common seal | Societies and ...
Oct 2, 2008 ... All societies must adopt a common seal on incorporation. The rules of the society will set out when the common seal should be used and how.

Read Art. etc.

previous >
 Related Party Transaction updated as per Companies (Amendment) Act, 2015


Systemic Problems Require Systemic Solutions: Time to Talk About the Next System
by James Gustave Speth
If we are to escape the crisis now unfolding around us, we must create a new system of political economy capable of taking us to a very different place, where outcomes that are truly sustainable, equitable, and democratic are commonplace.

After over forty years of working in the environmental movement, I have come to the conclusion that our largest problems—including climate change—are deeply rooted in our fundamental political-economic system. Working within it to achieve incremental changes, however valuable, will never be enough. Our current system is simply not programmed to secure the well-being of people, place, and planet. Its priorities instead are GDP growth, corporate profits, and the projection of national power—typically military.

If we are to escape the crisis now unfolding around us, we must create a new system of political economy capable of taking us to a very different place, where outcomes that are truly sustainable, equitable, and democratic are commonplace. This is, I believe, the most important task we can engage in at this moment in history.


CBDT Strategy for Quality in Assessment Work


Not unrelated > 
Posted: 05 Jun 2015 05:53 AM PDT
By Accommodation Times News Services Biggest forest in Thane district at Ghodbundar road which is 25 kms fro Thane station and 18 kms from Miraroad on western side of far flung extended suburbs is rapidly converted into illegal concrete jungle. Majority of projects are having land related issues. Many developers who are taking pre launch […]

Gullible buyers are left clueless, but keep wondering  as ever, - is there any solution at all in the offing, or under serious empathetic   consideration by the men in governance, even to bring remotely in effective check or  under control* obstinately evading for long !

Is the Housing Ministry in a mood to listen ?

*Except, perhaps, to adopt the easiest course of continuing to be unnerved  or recalcitrant, and to remain immune to the realities of life starring in the face !

Posted: 04 Jun 2015 06:44 PM PDT
Non-resident Indians (NRIs) have long been considered as a separate category of investors who have enjoyed some privileges compared to other classes of foreign investors. NRIs have been allowed to investment either on a repatriable basis (with more stringent norms) and on a non-repatriable basis (with less stringent norms).

Earlier this week, by way of Press Note No. 7 (2015 Series), the Government of India introduced further changes to the Foreign Direct Investment (FDI) Policy relating to NRI investments. The changes relate to two aspects:
 (i) the definition of an NRI, and 
(ii) investments by NRIs on a non-repatriable basis.

Until this week’s change, for the purposes of foreign investment an NRI was defined to mean a non-resident person who is a citizen of India or one who is a person of Indian origin (PIO).[1]However, in January 2015, the Government of India did away with the concept of PIO by effectively merging it with the Overseas Citizen of India (OCI). An OCI is defined in section 7A of the Citizenship Act, 1955 in a manner similar to that of the PIO, but in more restrictive terms. For example, a great grandchild of a citizen and a spouse of a citizen are not included within an OCI.

Given this transition from PIO to OCI, under the new Press Note, for foreign investment purposes, an NRI would now mean an overseas resident who is either a citizen of India or an OCI cardholder. It appears that this change in the foreign investment policy is largely driven by the preceding changes to the Citizenship Act, and the need to streamline the policies.

The more substantive change in Press Note No. 7 relates to the fact that NRI investments made on a non-repatriable basis will now “be deemed to be domestic investment at par with the investment made by residents”. NRI investments on a non-repatriable basis are to be made in accordance with Schedule 4 of the FEMA (Transfer or Issue of Security by Persons Resident Outside India) Regulations, 2000. The new change is significant as NRI investments on a non-repatriable basis would now been treated as domestic investments for various purposes, including sectoral caps, pricing guidelines, types of investment instruments, downstream investments, and the like. This would give rise to additional structuring opportunities for foreign investments.

While the Press Note indicates the broader change in the nature of the policy for NRI investments on a non-repatriable basis, the details have to be contained in the necessary amendments, including to Schedule 4 of the FEMA Regulations discussed above.

[1] A PIO was a foreign citizen who (i) held at any time an Indian passport, (ii) has either parents, grandparents or great grandparents who were born in and were permanent residents of India, or is a spouse of a citizen or other persons referred to in (i) and (ii). See:

 NRI investments made on a non-repatriable basis will now “be deemed to be domestic investment at par with the investment made by residents"

A Quick thought (intending to provoke more): All such changes being conceived of and brought in lately in quick succession , through Press Notes, are seemingly for limited purposes of allowing investments. So far as one could readily visualize,those should have no consequence or impact for purposes of income taxation; except, perhaps, for taxation of 'gifts'., which anyway calls for a separate consideration.

Any thoughts on a varying wavelength?

june 4th

Taxsutra Analysis of Finance Act, 2015 amendments effective from 1st June, 2015

Advance in cash for Property Covered by Section 269SS & 269T wef 01.06.2015


Procedure for Conversion of Company into LLP


New company law tribunal: SC gives qualified approval

The Supreme Court on Thursday upheld, with riders, the constitutional validity of the proposed National Company Law Tribunal (NCLT). This allows setting up of the body, meant to replace the Company Law Board (CLB), the Board for Industri

Govt may bring ordinance to amend Negotiable Instruments Act

Seeks to check piling up of cheque bounce cases in courts, wants place of presentation to be recgnised as jurisdiction

< To check piling  of cheque-bounce cases in courts, the government is mulling a Bill to amend the Negotiable Instruments Act, which provides for filing of such cases only in the place where the cheque is presented.

An amendment Bill, already passed in the Lok Sabha, also seeks to overturn a 2014 ruling which said the case has to be initiated where the cheque-issuing branch was located.>

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