The Central Government of India tabled Interim Budget in the Parliament on Feb 01, 2019. This Budget was an Interim Budget, in view of the upcoming General Election due in April- May later this year. Post elections the new Central Government shall announce the Full Budget. The key amendments proposed are as follows:
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GE Energy Parts Inc. [TS-765-HC-2018(DEL)]
Recently, the High Court of Delhi in the case of GE Energy Parts Inc. (lead case) and other GE group entities confirmed the order of the Tax
Tribunal holding that the assessee had Fixed Place Permanent Establishment (PE) and Agency PE in India. The High Court also held that 26% of the profits from offshore supplies were attributable to PE on account of core marketing and sales activities conducted by the assessee in India through expatriates operating out of the Indian Liaison Office of the group, supported by the staff of an Indian affiliate.
The assessee is a part of GE Group and a tax resident of USA (hereinafter referred as 'GE US'). The assessee, along with other group entities, is engaged in the business of manufacture and supply of sophisticated and technically customized equipments to customers world-wide including India.
One of the group entities, namely GeneralElectric International Operations Company ('GEIOC') had set up a Liaison Office ('LO') in New Delhi, India. Over 50 expatriates, employed by a US group company, namely GE International Inc. ('GEII'), were positioned at the Indian LO for conducting marketing and sales activities on behalf of various foreign GE group entities (including the assessee). Furthermore, in terms of an agreement between GEIOC and an Indian affiliate, namely GE India Industrial Private Limited ('GEIIPL'), the employees of GEIIPL were to
support the expatriates in their activities in India. For such activities, GEIIPL was to be remunerated on cost plus basis.
The assessee claimed that no income was liable to tax in India as the assessee was engaged only in carrying on liaison activities and not any business or commercial activities in India. However, upon examining certain documentary evidence obtained during a survey operation on the premises of the LO, the Income tax Officer observed that a PE is constituted in India. Firstly, it was alleged that the premises of the LO was being used as asales outlet and thus, constituted a Fixed Place PE. Secondly, it was contended that such expatriates and employees were in fact,
engaged in activities such as negotiation of contracts, securing of orders as well as conclusion of contracts which were beyond liasioning activities.
The Income tax officer applied a profitability rate of 10% to the PE due to unavailability of year-wise, and entity-wise profits of GE overseas entities for the operations carried out in India. While arriving at the profitability of 10%, reference was drawn from Section 44BBB of the Act which provides for a presumptive profit rate of 10% for specified non-residents carrying on business through a PE in India. The percentage of attribution of profits to PE for core marketing activities was computed at 35% by the income tax officer, based on the pronouncement of the Delhi High Court in Rolls Royce PLC and the Tax Tribunal, Delhi Bench in ZTE Corporation.
The CIT(A) upheld the order of the income tax officer and sustained the addition.
On appeal, the Hon’ble Tribunal held that incidence of a Fixed Place PE as well as Dependant Agent did arise in the instant case.On Fixed Place PE aspect, the Tribunal observed that the premises of LO were at the disposal of assessee with some degree of permanence and that the expatriates operating from the LO had specific chambers (at their constant disposal), with affixed nameplates along with secretarial staff. The support staff of GEIIPL also occupied the premises of the LO and worked under the direct control and supervision of the expatriates. The Tribunal also observed that the LO had exceeded the scope of the activities permitted by the Reserve Bank of India. Further, it was observed that the expatriates were involved in significant and essential part of sale activities right from bidding, proposal development and negotiation which could not be regarded as activities of preparatory and auxiliary nature.
As regards Agency PE, the Tribunal held that the expatriates and the employees of GEIIPL had an authority to conclude contracts on behalf of the overseas entities. While holding so, the Tribunal clarified that it is immaterial whether all aspects or elements of the contract were negotiated by the agent or not. Furthermore, the Tribunal did also examine whether the case of the assessee could be brought under the exception of ‘agents of an independent status’. The Tribunal held that group companies ought to be considered as one unit and not multiple units.
As regards the quantum of attribution, the Tax Tribunal, on comparison of the activities performed by the PE vis a vis the activities performed in the instant case, held that out of total marketing effort, 75% of the marketing activities were performed by the PE and accordingly, an attribution rate of 26% (75%*35%) of the profits to the operations carried out by the PE in India would be appropriate.
Aggrieved, the assessee had preferred an appeal before the High Court. The High Court confirmed the order of the Tax Tribunal and held as under:
On the issue of Fixed Place PE
On the issue of Agency PE
Regarding attribution of profits to PE, the High Court noted that the analysis carried out by the Income tax Officer and the Tax Tribunal was
after due consideration of the relevant facts and judicial precedents and as such, required
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In a recent decision, the Hon’ble High Court of Calcutta, setting aside the decision of Tax Tribunal has held that interest paid on funds borrowed to acquire controlling stakes in companies shall not be disallowed on the ground that the same could result in earning exempt dividend income in the future.
In the instant case, Vikram Somany (‘the assessee’) had paid interest on funds borrowed in order to acquire the control of two companies and accordingly claimed such interest as a deduction under section 36(1)(iii)
of the Income-tax Act. The Assessing Officer rejected such claim and disallowed the interest expense. However, the Commissioner (Appeals) allowed the deductions and granted relief.
When the matter travelled to the Tax Tribunal, it was held that such interest shall be disallowed under section 14A of the Income-tax Act, considering that the assessee would earn exempt dividend income out of the said investments.
On further appeal, the Hon’ble High Court of Calcutta set aside the order of the Tax Tribunal. While doing so, it held that the Tax Tribunal adopted an incorrect approach by looking into imaginary income and expenditure of asubsequent assessment year while computing income in the relevant previous year. For
granting allowance under section 36(1)(iii) of the Income-tax Act, Tax Tribunal was only required to ascertain that funds were borrowed for the purposes of business and profession. The question that whether any
dividend would be earned in future out of the said investment is irrelevant.
Accordingly, the claim was allowed to the Appellant.
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Innoviti Payment Solution Pvt. Ltd. v. Income Tax Of?cer [TS-4-ITAT-2019(Bang)]
In a recent case of Innoviti Payment Solution Pvt. Ltd. v. Income Tax Officer, the Bangalore Tax Tribunal has held that if in the valuation of shares, under Discounted Cash Flow (‘DCF’) method at the time of fresh issue of shares, if the cash flow projections are not estimated with reasonable certainty, then DCF method is not workable.
In the present case, the assessee company had allotted shares and issued them on a premium of Rs.23.50 per shares as against the face value of Rs. 10 per share based on the valuation report of shares under DCF method, issued by a Chartered Accountant. During the assessment proceedings, the Income-tax Officer observed that there was variance in the actual revenue and profits visà-vis estimates made by the assessee. The Income-tax Officer asked the assessee to
substantiate the basis of charging the share premium. The assessee submitted the valuation report of shares, wherein it was
stated that valuation is based on the projections which are as per the estimates of the management and the Chartered
Accountant provided the assurance that this information or the assumptions on which this information is based is accurate. The Incometax Officer observing that the assessee did not bring out any scientific basis for arriving at the projected figures valued the shares himself by following the net asset value method and taxed the amount received by the assessee in
excess of fair market value of shares.
The assessee, being aggrieved by the order, carried the matter in appeal before Commissioner (Appeals). The Commissioner (Appeal) upheld the order of Income-tax Offi cer. Aggrieved by the order of Commissioner (Appeals), the assessee, filed an appeal with the Tax Tribunal.
The Tax Tribunal held that for valuation under DCF method, it is to be ensured that projection is estimated with reasonable
certainty and it is not established by the assessee that this is a reliable estimate achievable with reasonable certainty, the
same cannot be recognised and if the future cash flow cannot be recognised than the DCF method is not workable.
The Tax Tribunal concluded that:
1. The Income-tax Officer can scrutinise the valuation report and if the Income-tax Officer is not satisfied with the explanation
of the assessee, he has to record the reasons and basis for not accepting the valuation report submitted by the assessee and only thereafter, he can go for own valuation or to obtain the fresh valuation report from an independent valuer and confront the same to the assessee. But the basis has to be DCF method and he cannot change the method of valuation which has been opted by the assessee.
2 .For scrutinising the valuation report, the facts and data available on the date of valuation only has to be considered and
actual result of future cannot be a basis to decide about reliability of the projections.
3. The primary onus to prove the correctness of the valuation report is on the assessee as he has special knowledge and he is privy to the facts of the company and only he has opted for this method. Hence, he has to satisfy about the correctness of the projections, Discounting factor and Terminal Value etc. with the help of empirical data or industry norm if any and
or scientific data, scientific method, scientific study and applicable guidelines regarding DCF method of valuation.
Based on the aforesaid, the Tax Tribunal remanded back the matter of valuation to the Income-tax Officer observing that the
assessee should be asked to establish that such projections by the assessee, based on which the valuation report is prepared by the Chartered Accountant is estimated with reasonable certainty by showing that this is a reliable estimate achievable with reasonable certainty on the basis of facts available on the date of valuation and actual result of future
cannot be a basis of saying that the estimates of the management are not reasonable and reliable.
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In other words, IGST credit has to be initially used against IGST, CGST & SGST liability. Thereafter, CGST credit ought to be used against CGST liability & subsequently IGST liability, if any. Afterwards, SGST credit may be used against SGST liability and subsequently IGST liability, if left any.
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Ministry of Corporate Affairs vide notification dated 22nd January, 2019 has amended the Companies (Acceptance of Deposit) Rules, 2014 (hereinafter referred to as Deposit Rules). The Amended Rules are called the Companies (Acceptance of Deposit) Amendment Rules, 2019 (hereinafter referred to as Amendment Rules ). As per the Amended Rules, a private company needs to file a one-time return of outstanding money or loan received by a company but not considered as deposits, within the meaning of the Deposit Rules, during the period from 1st April, 2014 to 22nd January, 2019 in Form DPT-3 within 90 days from the date of publication of this notification along with applicable fees. It may be noted that the requirement of filing Form DPT-3 is in addition to the disclosure to be made by a private company in its financial statement, by way of notes, about the money received from the directors or relatives of directors, which will continue to apply, in terms of Rule 16A of the Deposit Rules. A copy of the MCA notification is available in the following link: http://www.mca.gov.in/Ministry/pdf/MSMESpecifiedCompanies_22012019.pdf7. MCA introduces ?ling of return in respect of micro and small enterprise suppliers
MCA introduces filing of return in respect of micro and small enterprise suppliers.
The Central Government i.e. Ministry of Micro, Small & Medium Enterprises vide notification No. S.O.5622 (E), dated 2nd November, 2018 had directed that all companies, who get supplies of goods or services from micro and small enterprises and whose payments to micro and small enterprise suppliers exceed forty five days from the date of acceptance or the date of deemed acceptance of the goods or services as per the provisions of Section 9 of the Micro, Small and Medium Enterprises Development Act, 2006 (hereafter referred to as “specified companies”), shall submit a half yearly return to the Ministry of Corporate Affairs stating the following:
(a) the amount of payment due; and
(b) the reasons of the delay;
Subsequently, the Ministry of Corporate Affairs has now notified vide notification No. S.O. 368(E) dated 22nd January, 2019 the MSME Form I for this purpose.
Every specified company shall file a return as per MSME Form I as under: -
1. First Return to be filed within thirty days of the notification dated 22nd January, 2019 in MSME Form I specifying the details of all outstanding dues to micro or small enterprises suppliers existing on the date of this notification.
2. Thereafter, every specified company shall file a return as per MSME Form I, by 31st October for the period from April to September and by 30th April for the period from October to March. Copies of these two notifications dated 2nd November, 2018 and of 22nd January, 2019 are available in the following link:8. MCA amends Signicant Benecial Ownership Rules
The Ministry of Corporate Affairs has vide its Notification dated 08.02.2019 amended the existing the Companies (Significant Beneficial Owners) Rules, 2018 by introducing the Companies (Significant Beneficial Owners) Amendment Rules, 2019.
The Amendment Rules aim to look-through corporate layers to reveal individual shareholders that ultimately control or exercise significant influence over a corporate entity in India.
Rule 2(h) defines 'significant beneficial owner (SBO) as : "significant beneficial owner, in relation to a reporting company, means an individual referred to in sub-section (1) of section 90, who acting alone or together, or through one or more persons or trust, possesses one or more of the following rights or entitlements in such reporting company, namely:
It may be noted that if an individual does not hold any right or entitlement indirectly, he shall not be considered to be a significant beneficial owner.
The amended definition of SBO covers individuals holding a right or entitlement indirectly in the reporting company through HUF, body corporate, partnership entity or trust.
In case a body corporate (whether incorporated in India or abroad) other than limited liability partnership is a member of the reporting company, an individual shall be considered to hold a right or entitlement indirectly in the reporting company if he satisfies any of the following criteria, in respect of a member of the reporting company
(a) he holds a majority stake in that member; or
(b) he holds a majority stake in the ultimate holding company (whether incorporated or registered in India or abroad) of that member.
The Amendment Rules (Rule 2A) further bestow responsibility upon the reporting company to find out about the SBO, identify the individual and cause such individual to make a declaration to the reporting company. In order to find out about the SBO, the Company shall send notice in Form No. BEN4 to all its members(other than individuals) holding not less than 10% of the company’s shares/voting rights/right to receive/participate in the dividend or any other distribution payable in a financial year.
Form BEN-1 shall be filed by the individual who is the SBO to the reporting company within 90 days from the date of commencement of these Rules (i.e.8.02.2019) and for subsequent changes or acquiring the status of SBO, within 30 days of such change or acquiring the SBO status. Upon receipt of the above declaration, the reporting company shall file a return in Form BEN 2 with the Registrar of Companies within 30 days thereof along with applicable fees. The Amendment Rules are available at the following link: http://www.mca.gov.in/Ministry/pdf/CompaniesOwnersAmendmentRules_08020219.pdf
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Reserve Bank of India A.P. (DIR Series) Circular No. 17 dated January 16, 2019]
In December 2018, the Reserve Bank of India, vide its Notification No. FEMA. 3 (R)/2018-RB dated December 17, 2018 has issued the Foreign Exchange Management (Borrowing and Lending) Regulations, 2018, wherein ECB is defined to mean borrowing by eligible residents from outside India in accordance with the framework framed by RBI in consultation with the Govt. of India.
Now Reserve Bank of India, in consultation with the Government of India, has rationalised the extant framework for ECB and Rupee Denominated Bonds to improve the ease of doing business. The new framework, framed under Foreign Exchange Management (Borrowing and Lending) Regulations, 2018, has been notified through RBI A.P. (DIR Series) Circular No. 17 dated January 16, 2019.
The amended policy comes into force with immediate effect.
The salient features of the new framework are as under:
Merging of Tracks: Merging of Tracks I and II as “Foreign Currency denominated ECB” and merging of Track III and Rupee Denominated Bonds framework as “Rupee Denominated ECB”.
Eligible Borrowers: This has been expanded to include all entities eligible to receive FDI. Additionally, Port Trusts, Units in SEZ, SIDBI, EXIM Bank, registered entities engaged in micro-finance activities, viz., registered not for profit companies, registered societies/trusts/ coope ratives and non-goverment organisations can also borrow under this framework.
Recognised Lender: The lender should be resident of FATF (Financial Action Task Force) or IOSCO (International Organization of Securities Commissions) compliant country. Multi lateral and Regional Financial Institutions, Individuals and Foreign branches / subsidiaries of Indian banks can also be lenders.
Minimum Average Maturity Period (MAMP): MAMP will be 3 years for all ECBs. However, for ECB raised from foreign equity holder and utilised for specific purposes, as detailed in the Annex, the MAMP would be 5 years. Similarly, for ECB up to USD 50 million per financial year raised by manufacturing sector, which has been given a special dispensation, the MAMP would be 1 year.
Late Submission Fee (LSF) for delay in Reporting: Any borrower, who is otherwise in compliance of ECB guidelines, except for delay in reporting drawdown of ECB proceeds before obtaining LRN or Form ECB 2 returns, can regularize the delay by payment of LSF as per the laid down procedure.
(a) ECB up to USD 750 million or equivalent per financial year, which otherwise are in compliance with the parameters and other terms and conditions set out in the new ECB framework, will be permitted under the automatic route not requiring prior approval of the Reserve Bank. The designated AD Category I bank while considering the ECB proposal is expected to ensure compliance with applicable ECB guidelines by their constituents. Any contravention of the applicable provisions shall invite penal action or adjudication under the Foreign Exchange Management Act, 1999.
(b) Lending and borrowing under the ECB framework by Indian banks and their branches/subsidiaries outside India will be subject to prudential guidelines issued by the Department of Banking Regulation of the Reserve Bank. Further, other entities raising ECB are required to follow the - issued, if any, by the concerned sectoral or prudential regulator.
(c) The New ECB framework containing revised ECB Guide-lines are set out in detail in the Annex to the RBI Circular and may be referred to on the link as given hereunder: https://www.rbi.org.in/Scripts/NotificationUser.aspx?Id=11456&Mode=0#
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Deposit of TDS for the month of February, 2019
|Mar 07 , 2019|
Date of deposit of GST and filing of GSTR-3B for the month of February, 2019
|Mar 20 , 2019|
Filing of GSTR I for the month of February, 2019
|Mar 11 , 2019|