The Income Tax Appellate Tribunal, Ahmadabad Bench, has held that while computing Foreign Tax Credit ('FTC'), the doubly taxed ‘income’ ought to be considered, rather than doubly taxed gross receipts.

The assessee, an Indian company, had received certain passive income from foreign entities registered in Singapore and Indonesia, upon which, tax had been withheld in terms of the tax laws of the respective countries. During the relevant year, the assessee’s tax liability was computed under the provisions of Section 115JB, i.e. Minimum Alternate tax (‘MAT’). The assessee also claimed FTC in respect of such foreign tax paid in the manner prescribed in provisions dealing with ‘Elimination of Double Taxation’ under the relevant tax treaties.

For computation of FTC, the assessee calculated the proportion of the Indian tax liability in respect of the doubly taxed income, for the purpose of comparison with the foreign tax actually paid. While doing so, the assessee considered the gross receipts from such foreign entities, without allowing any expenses.

As a result, such proportion of Indian tax bearing to the doubly tax income exceeded the foreign tax actually paid and accordingly, the assessee contended that the entire foreign tax actually paid is eligible as credit.

The revenue authorities disputed the mechanism of computation of FTC and contended that while computing the proportion of Indian taxes to the doubly taxed income, the net income should be considered (i.e. after deducting expenses) rather than the gross receipts. Furthermore, the expenses relevant to the foreign receipts were computed in the same proportion as the total turnover.

On appeal, the Hon’ble Tribunal held that in principle, adoption of gross receipts for the purpose of computing FTC is incorrect. However, in the peculiar facts of the case, the Tribunal observed that such foreign receipts were passive in nature and little or no expense could be attributed to such gross receipts.

In light of such observation, the Tribunal recomputed the FTC on the basis of the gross receipts after subtracting the expenditure, which admittedly was incurred in respect of such gross receipts. Resultantly, in terms of the decision of the Tribunal, the original claim of FTC made in the return of income was somewhat reduced.

However, while rendering such judgment, the Hon’ble Tribunal did state that the instant decision cannot be regarded as an authority for the general proposition that only marginal or incremental costs are to be taken into account for computing FTC. The Tribunal also stated that in certain cases, allocation of proportional expenditure may be justified in situations where business operations are somewhat evenly spread over the entire source of income of an assessee.

The High Court of Delhi has held that for the purpose of the duration test of 180 days prescribed in the supervisory Permanent Establishment (‘PE’) clause, the duration of unrelated contracts ought not to be aggregated.

The assessee, a company incorporated in Japan, had entered into ten separate purchase orders for the supply of equipment and supervision of their installation with MarutiUdyog Limited (‘MUL’). Further, the assessee had also established a Liaison office (‘LO’) and a Project Office (which was an admitted PE for a separate project) in relation to a separate contract with MUL.

The assessee contended that the income from supervisory activities should be characterized as Fee for Technical Services (‘FTS’) in terms of Article 12 of the Agreement for Avoidance of Double Taxation (‘DTAA’) between India and Japan. The revenue authorities contended that a PE is constituted as the aggregate duration of such supervisory activities exceeded 180 days. On appeal, the Hon’ble Tribunal, Delhi Benches, held as under:

• Period of activity under the each purchase order to be seen separately and PE will be constituted only if the duration under each purchase order does exceed the threshold individually. Thus, the separate durations of each purchase order cannot be aggregate for the purpose of the duration test.
• The supervisory income under the purchase orders is not attributable to the Project Office PE since there is no effective connection between the execution of the orders and the activities carried on by the PO, in terms of Article 12(5) of the DTAA. While holding so, the Tribunal observed that the provisions of Article 12(5) do not envisage the ‘Force of Attraction Rule’.
• Furthermore, the LO of the assessee cannot be regarded as a PE of the assessee, as it is carrying only preparatory and auxiliary activities in India.

In view of the aforesaid, the income of the assessee was characterized as FTS in terms of Article 12 of the DTAA. The High Court of Delhi, while concurring with the aforesaid views, has affirmed the judgment of the Tribunal.

The Central Board of Direct Taxes (‘CBDT’) had earlier recently issued a circular (Circular number 41/2016 dated December 21, 2016) to answer certain FAQs relating to the applicability of indirect transfer provisions to Foreign Institutional Investors (‘FII’) and Foreign Portfolio investors (‘FPI’) in India. This circular was reported in our corporate update, January 2017 edition.

Considering the concerns from the stakeholders, the CBDT has kept such circular in abeyance for the time being.

Here, it would also be apt to mention that in the Union Budget, 2017-18, it has been proposed to exclude Category I and Category II FIIs and FPIs from the ambit of the indirect transfer regime laid down in Section 9(1)(i) of the Income Tax Act, 1961.

The CBDT has recently issued a circular dated January 24, 2017, laying down certain guiding principles for determination of Place of Effective Management ('POEM').

It may be recalled that the Finance Act, 2015 had significantly altered the rules for determination of tax residence for companies. Pursuant to such amendment in Section 6(3) of the Act, the Place of Effective Management (‘POEM’) would be determinative of the tax residence of a company registered outside India. Resultantly, a foreign company in respect of which, the POEM lies in India would be regarded as a Resident of India and accordingly, taxed on its global income.

The aforesaid amendment was intended as a measure to counter tax abuse as well as to align the mechanism of determining tax residence to the internationally accepted practice.

Vide the Finance Act, 2016, the applicability of the aforesaid provisions was delayed by a year and as such, the aforesaid provisions shall now come into effect from the Assessment Year 2017-18.

The CBDT had earlier issued certain guiding principles to facilitate the determination of the POEM of a company, for public and stakeholders comments. Thereafter, the CBDT has now issued final guiding principles vide Circular dated 6/2017 dated January 24, 2017.

To allay the concerns of genuine taxpayers, the CBDT, in its press release dated January 24, 2017 has clarified that the intent is only to target shell companies and companies established to retain income outside India, although the real control and management of affairs is located in India.

Broadly speaking, while determining the POEM of a foreign company, various factors are to be taken into account, such as test of ‘active business outside India’, situs of board meetings, location of head office etc.

In terms of the Guidance Notes, the POEM of a foreign engaged in ‘active business outside India’ shall be presumed to be outside India if the majority meetings of the Board of Directors of the company are held outside India.

For this purpose, a company shall be regarded to be engaged in ‘active business outside India’ if the passive income is not more than 50% of its total income; and

• Less than 50% of its total assets are located in India; and
• Less than 50% of total number of employees are situated in India or are resident in India; and
• The payroll expenses incurred on such employees is less than 50% of the total payroll expenditure.

It is noteworthy that the final guidelines are broadly similar to the draft guidelines issued in December 2015. However, the final guidelines do elucidate the meaning of certain terms employed in the test of ‘active business outside India’, but not defined in the draft guidelines, such as ‘income’, ‘value of assets’, ‘number of employees’ and ‘payroll’.

Furthermore, the press release of the CBDT does also state that the POEM guidelines shall not apply to companies having turnover or gross receipts of Rs. Fifty crore or less in a financial year.

A copy of the Circular Number 6/2017 is enclosed herewith.

The CBDT has recently issued certain clarifications on the applicable of General Anti-Avoidance Rules (‘GAAR’) vide circular dated January 27, 2017. The provisions of GAAR, which are enshrined under Chapter X-A of the Act shall be effective from the Assessment Year 2018-19, i.e. Financial Year 2017-18.

The said circular, inter alia, clarifies that the provisions of GAAR shall not be pressed into service, merely due to the fact that an FPI is registered in a tax efficient jurisdiction, if the jurisdiction is finalized for non tax commercial considerations and not to obtain tax benefit.

The Circular does also clarify that where a Court has sanctioned a particular transaction or such transaction has been held to be permissible by the Authority for Advance Rulings, the provisions of GAAR shall not be applicable.

It has also been emphasized that the provisions of GAAR have been conceived as an anti avoidance measure with deterrent consequences. Therefore, if a particular consequence has been applied in the hands of one participant, a corresponding adjustment shall not be made in the hands of other participants. 

The CBDT, while issuing such press release, has reiterated its resolve towards certainty and clarity in tax rules and suggested that further clarifications may also be provided, if required.

(Contributed by: Mr. Anuj Mathur/ Ms. Purnima Bajaj) 

The facts of the case are that the assessee, Seagram Manufacturing Pvt. Ltd was set up as a 100% subsidiary of Seagram India Ltd and was engaged in the business of blending, bottling and trading of Indian made foreign liquor (‘IMFL’). The assessee, during the assessment year 2003-04 claimed sales and marketing expenses as brand expenses while the Seagram Brand was owned by its parent company-Seagram Netherlands Antilles NV.

During the assessment proceedings for Assessment Year 2003-04, the assessing officer ('AO') disallowed 10% of the expenditure on brand enhancement on the ground that it was allocable to the overseas owner/ collaborator.

On appeals, CIT(A) and ITAT ruled in favour of the assessee. Aggrieved by the order of ITAT,  revenue raised a question before High Court ('HC') whether expenses incurred for promoting brand of assessee’s foreign parent company are allowable.

HC observed that the expenses were incurred by the assessee pursuant to an arrangement with the brand proprietor as per which specified brands were made available to the assessee and the overseas owner did not set up any other licensee as a rival atleast in the area where assessee operated.

HC further referred to Sec. 48 of the Trade Mark Act and held that “as long as the arrangement existed, the assessee, who was a licensee of the products, was entitled to claim them as business expenditure though in the ultimate analysis it  might have enhanced the brand of the overseas owner also.”

Hon’ble Delhi High Court, thus, held that disallowing a certain portion of the expense on an entirely artificial and notional basis was unjustified and the same was allowable as deduction.

(Contributed by: Ms. Ritu Gyamlani)

Vide Notification No. 4/2017 Service tax dated 12th January 2017, Entry No.11 of Notification No 26/2012 (dealing with abatement of value of Service for Service Tax purpose) has been substituted.

Prior to the said amendment, taxability with respect to services provided by tour operator was as under:-

• In case services rendered in relation to a tour, only for the purpose of arranging or booking accommodation for any person, Service tax was payable on 10% of the value of service;
• In case of any other services, Service tax was payable on 30% of the value of service.

As against the above, according to the present notification, Service tax will be leviable on 60% of the value of service.

This notification is effective from 22nd January, 2017.

Vide Notification No. 3/2017 Service tax dated 12th January 2017, Entry No 12 has been inserted in Notification No.30/2012 (dealing with Reverse Charge Mechanism) wherein it has been provided that in respect of services provided or agreed to be provided by way of transportation of goods by a vessel from a place outside India up to the customs station of clearance in India, service recipient is liable to discharge service tax on such charges.

Explanation IV has also been inserted wherein it has been provided that “For the purposes of this notification, in respect of services provided or agreed to be provided by way of transportation of goods by a vessel from a place outside India up to the customs station of clearance in India, person liable for paying service tax other than the service provider shall be the person in India who complies with sections 29, 30 or 38 read with section 148 of the Customs Act, 1962 (52 of 1962) with respect to such goods.”

This notification is effective from 22nd January, 2017.

Vide Notification No. 2/2017 Service tax dated 12th January, 2017, a proviso has been inserted in rule 2, sub-rule 1, clause (aa), wherein it has been provided that aggregator shall not include such person who enables a potential customer to connect with persons providing services by way of renting of hotels, inns, guest houses, clubs, campsites or other commercial places meant for residential or lodging purposes, subject to certain conditions.

Subject to the following conditions, namely:-

• the person providing services by way of renting of hotels, inns, guest houses, clubs, campsites or other commercial places meant for residential or lodging purposes has a service tax registration under provision of these rules; and
• whole of the consideration for services provided by such service provider is received directly by such service provider and no amount, which forms part of the consideration of services of such service provider, is received by the aggregator directly from either recipient of the service or his representative.

This notification is effective from 22nd January, 2017.

GST Council meeting was held on 16 January, 2017 wherein deadlock over the contentious issue of dual control has finally been resolved. Finance Minister has formally announced that the government is targeting to implement GST from 1 July 2017.
 
Some of the other key issues on which consensus was reached during the meeting are as under:

(a) With respect to CGST/SGST:

• 90% of the assessee’s below turnover of INR 1.5 Crores would be administered by the States and the balance 10% would be administered by the Centre;
• All assesses having turnover above INR 1.5 Crores would be assessed in the ratio of 50:50 between centre and state;
• It was clarified that no assessee would be controlled by both the Authorities (Centre and State);
• In case of any conflict in assessments between the States, w.r.t. place of supply, Centre would have the power to intervene and decide.

(b) With respect to IGST:

• Power to levy and collect IGST will remain with Centre, but by special provision in the law, States will also be cross empowered.

Considering the above developments, the government is confident that July 1, 2017 as the roll-out date for GST seems very much achievable. Council would meet again on 18th February, 2017 to finalize the GST law.

CBEC has started the process of migrating the existing Central Excise (CE) and Service Tax (ST) registrations to GST and issue Provisional IDs to them. As a mandatory requirement, only PAN based registrations would be issued Provisional ID. It is however advised that all assessee’s having non-PAN based registrations, get their registrations converted to PAN based to obtain Provisional IDs.

Since GST registration will be based on PAN for a state, only one Provisional ID will be issued to a given PAN for a given State, as against the number of registrations presently available based on that PAN in that State.

Summary of Migration process issued by CBEC is as under:

• Provisional IDs would be issued only for PAN based registrations.
• Only one Provisional ID would be issued against multiple registrations where the combination of ‘State’ and ‘PAN’ is same.

(Contributed by: Mr. Shashank Goel/ Mr. Karan Chandna)

These amendments will be applicable from AY 2018-19.

The Appellant, i.e. M/s Southern Motors, is a dealer in the motor vehicles and registered under Karnataka VAT Act. During Assessment year 2007-2009, appellant had raised tax invoices on the purchasers as per the policy of manufacturers of vehicles to maintain uniformity in the price thereof. After the sales were completed, credit notes were issued to the customers granting discounts, in order to meet the competition in the market and for allied reasons. Consequentially, whatever amount was retained as the invoice less the sum of discount disclosed in the credit note was reflected in the books of the appellant. The appellant accordingly showed the amount of Invoice (after discount) in the returns filed under VAT Act.

The Assistant Commissioner ('AC') by his reassessment orders dated 21 June, 2010 allowed deductions claimed by the appellant towards discount accorded by the credit notes from the total turnover to quantify the taxable turnover. Subsequently, relying on the decision of the High Court in the case of State of Karnataka vs. M/s Kitchen Appliances India Ltd., wherein it was held that only such discounts which are mentioned/shown on tax invoices are eligible for deduction from the total turnover in terms of Rule 3(2)(c), AC passed the rectification orders u/s 41(1), disallowing the deduction of post sale discounts earlier awarded by the corresponding credit notes.
 
Against the said rectification order, appellant filed an appeal before the Karnataka High Court and High Court upheld the order passed by AC.

Thereafter, the appellant filed an appeal before Supreme Court against the Karnataka High Court ruling that had upheld the orders of the assessing authority disallowing the deduction of  post-sale  discount  earlier  awarded by the corresponding credit notes.

Allowing the appeal, the bench said “To deny the benefit of deduction only on the ground of omission to reflect the trade discount though actually granted in future, in the tax invoice/bill of sale  at  the  time  of  the  original transaction would be to ignore the contemporaneous actuality and be unrealistic, unfair, unjust and deprivatory. This may herald as well the  possible  unauthorised  taxation even  in  the  face  of  cotaneous accounts kept in ordinary course of business”

Accordingly, Supreme Court held that deductions under the provisions of the Karnataka Value Added Tax Act can be claimed towards post-sale discounts granted by the dealer/manufacturer by issuing credit note, even if it is not reflected in the Tax Invoice.

The following amendments have been made in the Foreign Exchange Management (Transfer or Issue of Security by a Person Resident Outside India) Regulations, 2000, as amended from time to time, w.e.f. January 10, 2017:

1. In Regulation 2 of the Principal Regulations containing Definitions, a new clause has been inserted providing definition of a new instrument in case of startup companies.

As per the definition, a ‘Convertible Note’/CN means:

an instrument issued by a startup company, evidencing receipt of money initially as debt, which is repayable at the option of the holder, or which is convertible into such number of equity shares of such startup company, within a period not exceeding five years from the date of issue of the convertible note, upon occurrence of specified events as per the other terms and conditions agreed to and indicated in the instrument

2. Further a New Regulation 6D has been inserted after Regulation 6C, containing provisions for Issue of Convertible Notes by Start Up Companies. In terms of provisions contained under Regulation 6D:

(a) A person resident outside India (other than an individual who is citizen of Pakistan or Bangladesh or an entity which is registered/ incorporated in Pakistan or Bangladesh), is permitted to purchase convertible notes issued by an Indian startup company for an amount of twenty five lakh rupees or more in a single tranche.

A ‘startup company’ means a private company incorporated under the Companies Act, 2013 or Companies Act, 1956 and recognised as such in accordance with notification number G.S.R. 180(E) dated February 17, 2016 issued by the Department of Industrial Policy and Promotion, Ministry of Commerce and Industry.

(b)  A startup company engaged in a sector where foreign investment requires Government approval is permitted to issue convertible notes to a non-resident only with approval of the Government.

(c) A startup company issuing convertible notes to a person resident outside India is required to receive the amount of consideration by inward remittance through banking channels or by debit to the NRE/ FCNR (B)/ Escrow account maintained by the person concerned in accordance with the Foreign Exchange Management (Deposit) Regulations, 2016, as amended from time to time. An escrow account for the above purpose is required to be closed immediately after the requirements are completed or within a period of six months, whichever is earlier. However, in no case continuance of such escrow account shall be permitted beyond a period of six months.

(d) NRIs are permitted to acquire convertible notes on non-repatriation basis in accordance with Schedule 4 of the Principal Regulations.

(e) A person resident outside India is permitted to acquire or transfer, by way of sale, convertible notes, from or to, a person resident in or outside India, provided the transfer takes place in accordance with the pricing guidelines as prescribed by RBI. Prior approval from the Government shall be obtained for such transfers in case the startup company is engaged in a sector which requires Government approval.

(f) The startup company issuing convertible notes shall be required to furnish reports as prescribed by Reserve Bank.

[Source: RBI Notification No. FEMA. 377/2016-RB dated January 10, 2017]

At present, there is no restriction on an Indian Party with regard to the countries, where it can undertake Overseas Direct Investment. In order to align, the instructions with the objectives of FATF, with effect from January 2, 2017, it has been decided to prohibit an Indian Party from making direct investment in an overseas entity (set up or acquired abroad directly as JV/ WOS or indirectly as step down subsidiary) located in the countries identified by the FATF as “non co-operative countries and territories” as per the list available on FATF website or as notified by the Reserve Bank of India from time to time.

[Source: RBI Notification No. FEMA. 382/2016-RB dated January 02, 2017 and RBI A.P. (DIR Series) Circular No. 28 dated January 25, 2017]

(Contributed by: Mrs. Ruchi Sanghi)

We refer to A.P. (DIR Series) Circular No. 20 dated November 25, 2016 (as discussed in the November issue of the Corporate Update) permitting foreign citizens (i.e. foreign passport holders) visiting India to exchange foreign exchange for Indian currency notes up to a limit of â‚?1; 5,000/- per week till December 15, 2016 subject to the tenderer submitting a self-declaration that this facility has not been availed of during the week.

The time limit for exchanging the foreign exchange was extended from December 15, 2016 to December 31, 2016 vide A.P. (DIR Series) Circular No. 22 dated December 16, 2016.

Subsequently, the RBI has vide its A.P. (DIR Series) Circular No. 24 dated January 03, 2017 further extended the time limit for exchanging the foreign exchange for Indian Currency notes, as mentioned above, from December 31, 2016  to January 31, 2017.

[Source: A.P. (DIR Series) Circular No. 24 dated January 03, 2017]

(Contributed by: Ms. Divya Ashta)

(A) The Ministry of Corporate Affairs ('MCA') vide Notification issued on 29th December, 2016 has notified Companies (Incorporation) Fifth  Amendment Rules, 2016 [hereinafter referred to as “amendment rules”] in order to amend the Companies (Incorporation) Rules, 2014. The amendment rules have come into force with effect from 1st January, 2017.

Significant changes brought about by the amendment rules are as under-:

• The scope of Form INC-32 SPICe (simplified integrated process for incorporation of a company) has been altered, as now this form has been made mandatory for filing application w.r.t. reservation of name, incorporation of new company and appointment of directors, for incorporation of One Person Companies ('OPC'), private company, public company and Section 8 company (company with charitable objects), provided that the company has upto seven subscribers.
• In case of incorporation of any of the above mentioned company with more than seven subscribers and for Part I company (which includes partnership firm, LLP, cooperative society, society or any other business entity), Form INC-7 shall continue to remain applicable. However, existing Form INC-7 has been substituted with a new form.
• Form INC-2 which was used to be filed for incorporation of OPC has been omitted by the amendment rules. Moreover, to avoid duplicity existing Rule 36 which provided for integrated process for incorporation by filing of Form INC-29 has also been omitted.

(B) Subsequently, Companies (Incorporation) Rules, 2014 have further been amended by MCA by notifying Companies (Incorporation) Amendment Rules, 2017, issued vide Notification dated 25th January, 2017. These rules have come into force w.e.f. 30th January, 2017. As per these amendment rules, the existing Form INC-32 SPICe has been substituted with a new form. In the new form while applying for incorporation, it has been made mandatory to apply for PAN and TAN also for the new company. Accordingly, the Certificate of Incorporation (COI) to be issued upon incorporation by the Registrar of Companies shall mention PAN of the company, if issued by the Income-tax Department. To reflect this change, existing format of COI provided in Form INC-11 has been substituted with a new form.

The MCA vide Notifications No G.S.R 08(E) and G.S.R 9(E) issued on 04th January, 2017 has provided exemptions to specified public companies and private companies respectively. 

As per these notifications, exemptions from various provisions of the Companies Act, 2013 have been provided to private company and unlisted public company which are licensed to operate by RBI or SEBI or Insurance Regulatory and Development Authority of India (IRDAI), from the International Financial Services Centre ('IFSC') located in an approved multi services Special Economic Zone (SEZ), set up under SEZ Act, 2005 read with SEZ Rules, 2006. The relevant notifications, containing details of exemptions provided to private company and unlisted public company, have been enclosed with this note.

 (Contributed by: Ms.Shikha Nagpal)