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Thursday, May 24, 2012

Final Guidelines on Basel III Capital Regulations

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Reserve Bank of India (RBI) has informed that they have formulated an action plan to adopt the Basel III norms and have issued final guidelines on Basel III Capital Regulations to all scheduled commercial banks on May 2, 2012 which is available at RBI website www.rbi.org.in. RBI further informed that draft guidelines on Basel III – Liquidity Regulations have been issued on 21.02.2012 for public comments.
Basel III – Capital Regulations will be implemented from 01.01.2013 in a phased manner. In order to allow banks to prepare and plan themselves and also to minimize any unintended consequences arising out of higher capital requirements, banks have been given a long phase-in period during which the Basel III guidelines would be implemented. Capital ratios and deductions from Common Equity will be fully phased-in and implemented as on March 31, 2018. Thus, the Basel III norms will be made fully applicable with effect from March 31, 2018.
This information was given by the Minister of State for Finance, Shri Namo Narain Meena in written reply to a question in Rajya Sabha today.
DSM/Hb
(Release ID :84401)

Revised criteria for declaring a Financial Institution as PFI U/s. 4A, of Companies Act, 1956

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General Circular No. 10/2012, Dated the 21st May, 2012
Subject: Guidelines for declaring a financial Institution as Public Financial Institution under section 4A of the Companies Act, 1956
Section 4A of the Companies Act, 1956 was inserted by the Companies (Amendment) Act, 1974 (41 of 1974) with effect from 01st February, 1975. Sub-section (2) of Section 4A of the Act empowers the Central Government, subject to the provision of sub-section (1) of section 4A of the Act, to notify in the official Gazette such other institution as it may think fit to be Public Financial Institutions (PFI).
2. The Ministry had framed certain criteria for declaring a Financial Institution as PFI under section 4A, of the Companies Act, 1956 vide General Circular No. 34/2011 dated 2.6.2011. The issue has since been revisited and it has been decided that any Financial Institution applying for declaration as PFI shall fulfill the following criteria:-
(a) A company or corporation should be established under a special Act or the Companies Act, 1956 being a central act;
(b) Main business of the company should be industrial/infrastructural financing;
(c) the company must be in existence for atleast 3 years and its financial statements should show that its income from industrial/infrastructural financing activities exceeds 50% of its total income.
(d) the net-worth of the company should be minimum of Rs.1000 (Rs. One Thousand) crore.
(e) company is registered as a Infrastructure Finance Company (IFC) with RBI or as a Housing Finance Company (HFC) with National Housing Bank;
(f) NOC from RBI/NHB, in the case of IFC/HFC, with regard to supervisory concerns, if any, must be obtained and enclosed with the application.
(g) Such IFCs/HFCs, after being declared as PFIs are required to disclose in their audited Financial Statements that they are complying with the directions and conditions laid down by this Ministry.
3. It is, however, clarified that in the case of Central Public Sector Undertakings/State Public Sector Undertakings, no restriction shall apply with respect to financing specific sector(s) and net-worth as stated in para 2(c) and (d) above respectively.
This issues with the approval of the competent authority.

S.25 Company – Amendment in MOA without Government permission is illegal

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HIGH COURT OF DELHI AT New Delhi
20th April, 2012
1. FAO 481/2011
VINOD TIHARA & ORS
versus
DELHI & DISTRICT CRICKET ASSOCIATION
2. FAO 482/2011
ASHOKA CRICKET CLUB & ORS
Versus
DELHI & DISTRICT CRICKET ASSOCIATION

The argument on behalf of DDCA that as per Rule 23(b) once there is an entitlement to determine the manner in which elections can be held by the Executive Committee for the Sports Working Committee, and consequently the Executive Committee can prescribe the requirement for registration, is an argument if accepted will amount to permitting DDCA to do indirectly what cannot be done directly. As there is no restriction in the existing Memorandum and Rules of DDCA for requiring a club to be a registered club and therefore, if DDCA takes up a stand that only registered club can be an affiliated member, it would require amendment to the Memorandum and the Rules of DDCA and which amendment even assuming if it is carried out by resolution dated 1.3.2007 cannot be looked into as admittedly there is no prior sanction/approval of the Central Government to the amendment of the Memorandum and Rules of the DDCA whereby the definition of a club is introduced that only a registered club can be an affiliated club.
Now let me examine issue as to whether the order of Sh. K.S. Mohi, ADJ passed on 12.4.2007 is binding on the appellants/plaintiffs/unregistered clubs and whether it is permissible for DDCA to contend that the said order dated 12.4.2007 binds the appellants/plaintiffs/unregistered clubs. In my opinion, this argument on behalf of DDCA is clearly misconceived, inasmuch as, admittedly the appellants/plaintiffs/unregistered clubs were not parties to the litigation in which the order dated 12.4.2007 was passed. It is trite that a judgment only binds the parties to the suits and persons who claim thereunder. The judgment dated 12.4.2007 cannot be read to be a judgment in rem for obvious reasons that it is not in exercise of matrimonial, probate or admiralty etc. jurisdiction. I am informed that not a single unregistered club was a party to the litigation which resulted in passing of the order dated 12.4.2007 by Sh.K.S. Mohi, ADJ. The order of Sh. K.S.Mohi basically implements the resolution of DDCA dated 1.3.2007 and on which aspect I have already commented above that there is absolutely no resolution whatsoever dated 1.3.2007 and if even there is such a resolution, the same will be an illegal resolution because the same amounts to an amendment of the Memorandum of Association or Rules without prior sanction/approval of the Central Government as required under Section 25 of the Companies Act, 1956, the license granted to the DDCA and as duly incorporated in Clause 4(vii) of the Memorandum of Association.Therefore, the order dated 12.4.2007 cannot bind the appellants/plaintiffs either on principle of res judicata or because there is no resolution dated 1.3.2007 of DDCA on which the order was passed, or on the ground even if there is a resolution dated 1.3.2007, the said resolution would be an illegal resolution in the absence of any prior sanction or approval from the Central Government.

Wednesday, May 16, 2012

FDI up to 100 per cent under automatic route covers only financial leases & not operating leases

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RBI/2011-12/562A.P. (DIR Series) Circular No. 127
May 15, 2012
To
All Category – I Authorised Dealer Banks
Madam / Sir,
Foreign investment in NBFC Sector under the Foreign DirectInvestment (FDI) Scheme – Clarification
Attention of Authorised Dealers Category – I (AD Category – I) banks is invited to A.P. (Dir Series) Circular No.121 dated May 8, 2012.
2. The Reserve Bank of India has been receiving requests for clarifications as to whether ‘operating leases’ would not be permissible in terms of para 3 of the circular ibid.
3. It is clarified that the activity ‘leasing and finance’, which is one among the eighteen NBFC activities wherein FDI up to 100 per cent is permitted under the automatic route, subject to minimum capitalisation norms, covers only ‘financial leases’ and not ‘operating leases’, in so far as the NBFC sector is concerned.
4. AD Category – I banks may bring the contents of the circular to the notice of their customers/constituents concerned.
5. Necessary amendments to Foreign Exchange Management (Transfer or Issue of Security by a Person Resident Outside India) Regulations, 2000 (Notification No. FEMA 20/2000-RB dated May 3, 2000) are being notified separately.
6. The directions contained in this circular have been issued under sections 10(4) and 11(1) of the Foreign Exchange Management Act, 1999 (42 of 1999) and are without prejudice to permissions / approvals, if any, required under any other law.

Distinction between shares held as stock-in-trade and shares held as investment – tests for such a distinction

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INCOME TAX CIRCULAR NO. 4/2007, DATED 15-6-2007

The Income Tax Act, 1961 makes a distinction between a capital asset and a trading asset.

2. Capital asset is defined in Section 2(14) of the Act. Long-term capital assets and gains are dealt with under Section 2(29A) and Section 2(29B). Short-term capital assets and gains are dealt with under Section 2(42A) and Section 2(42B).

3. Trading asset is dealt with under Section 28 of the Act.

4. The Central Board of Direct Taxes (CBDT) through Instruction No.1827 dated August 31, 1989 had brought to the notice of the assessing officers that there is a distinction between shares held as investment (capital asset) and shares held as stock-in-trade (trading asset). In the light of a number of judicial decisions pronounced after the issue of the above instructions, it is proposed to update the above instructions for the information of assessees as well as for guidance of the assessing officers.

5. In the case of Commissioner of Income Tax (Central), Calcutta Vs Associated Industrial Development Company (P) Ltd (82 ITR 586), the Supreme Court observed that:

Whether a particular holding of shares is by way of investment or forms part of the stock-in-trade is a matter which is within the knowledge of the assessee who holds the shares and it should, in normal circumstances, be in a position to produce evidence from its records as to whether it has maintained any distinction between those shares which are its stock-in-trade and those which are held by way of investment.

6. In the case of Commissioner of Income Tax, Bombay Vs H. Holck Larsen (160 ITR 67), the Supreme Court observed :

The High Court, in our opinion, made a mistake in observing whether transactions of sale and purchase of shares were trading transactions or whether these were in the nature of investment was a question of law. This was a mixed question of law and fact.

7. The principles laid down by the Supreme Court in the above two cases afford adequate guidance to the assessing officers.

8. The Authority for Advance Rulings (AAR) (288 ITR 641), referring to the decisions of the Supreme Court in several cases, has culled out the following principles :-

(i) Where a company purchases and sells shares, it must be shown that they were held as stock-in-trade and that existence of the power to purchase and sell shares in the memorandum of association is not decisive of the nature of transaction;

(ii) the substantial nature of transactions, the manner of maintaining books of accounts, the magnitude of purchases and sales and the ratio between purchases and sales and the holding would furnish a good guide to determine the nature of transactions;

(iii) ordinarily the purchase and sale of shares with the motive of earning a profit, would result in the transaction being in the nature of trade/adventure in the nature of trade; but where the object of the investment in shares of a company is to derive income by way of dividend etc. then the profits accruing by change in such investment (by sale of shares) will yield capital gain and not revenue receipt.

9. Dealing with the above three principles, the AAR has observed in the case of Fidelity group as under:-

We shall revert to the aforementioned principles. The first principle requires us to ascertain whether the purchase of shares by a FII in exercise of the power in the memorandum of association/trust deed was as stockin-trade as the mere existence of the power to purchase and sell shares will not by itself be decisive of the nature of transaction. We have to verify as to how the shares were valued/held in the books of account i.e. whether they were valued as stock-in-trade at the end of the financial year for the purpose of arriving at business income or held as investment in capital assets. The second principle furnishes a guide for determining the nature of transaction by verifying whether there are substantial transactions, their magnitude, etc., maintenance of books of account and finding the ratio between purchases and sales. It will not be out of place to mention that regulation 18 of the SEBI Regulations enjoins upon every FII to keep and maintain books of account containing true and fair accounts relating to remittance of initial corpus of buying and selling and realizing capital gains on investments and accounts of remittance to India for investment in India and realizing capital gains on investment from such remittances. The third principle suggests that ordinarily purchases and sales of shares with the motive of realizing profit would lead to inference of trade/adventure in the nature of trade; where the object of the investment in shares of companies is to derive income by way of dividends etc., the transactions of purchases and sales of shares would yield capital gains and not business profits.

10. CBDT also wishes to emphasise that it is possible for a tax payer to have two portfolios, i.e., an investment portfolio comprising of securities which are to be treated as capital assets and a trading portfolio comprising of stock-in-trade which are to be treated as trading assets. Where an assessee has two portfolios, the assessee may have income under both heads i.e., capital gains as well as business income.

11. Assessing officers are advised that the above principles should guide them in determining whether, in a given case, the shares are held by the assessee as investment (and therefore giving rise to capital gains) or as stock-in-trade (and therefore giving rise to business profits). The assessing officers are further advised that no single principle would be decisive and the total effect of all the principles should be considered to determine whether, in a given case, the shares are held by the assessee as investment or stock-in-trade.

12. These instructions shall supplement the earlier Instruction no. 1827 dated August 31, 1989.

(F.No.149/287/2005-TPL)


Tuesday, May 15, 2012

International Worker allowed to withdraw full amount standing to his credit in PF fund

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Withdrawal of PF by International Workers
In accordance with amended para 69 (under para 83 of Employees’ Provident Fund Scheme, 1952), an International Worker is allowed to withdraw the full amount standing to his credit in the fund:
• on retirement from service in the establishment at any time after attaining the age of 58 years;
• on retirement on account of permanent and total incapacity for work due to bodily or mental infirmity duly certified by the medical officer;
• In respect of a member covered under a Social Security Agreement entered into between the Government of India and any other country, on such grounds as may be specified in that agreement.
The provisions of Inoperative accounts are not applicable in respect of International Workers.
This information was given by the Union Minister for Labour & Employment Shri Mallikarjun Kharge in reply to a written question in the Lok Sabha today.

Integration of LLP System into MCA-21

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Draft of notice to be displayed on LLP website
Ministry of Corporate Affairs
NOTICE
1. The Ministry is in process of integration of LLP system into MCA-21 in the month of June 2012 by allowing filing & approval of LLP forms at MCA-21 website (www.mca.gov.in) for better e-governance facility for stakeholders, by making necessary changes in e-forms. On post integration, old e-forms of the existing LLP system lying in “Pending User Clarification” (PUCL) status cannot be re-opened.
2. LLPs and designated partners are also advised to reopen/ resubmit the LLP form, if any lying in “Pending User Clarification” (PUCL) / Under Resubmission (RESUB) mode by 21-05-2012 after complying with the requirements failing which the pending forms will be liable for rejection or will be marked as invalid and LLP shall be required to file of fresh e-forms with fees & additional fees.

SEBI – Review of Regulatory Compliance and Periodic Reporting

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Securities and Exchange Board of India
CIRCULAR
CIR/MIRSD/6/2012 May 14, 2012
To
All Merchant Bankers registered with SEBI
Sir / Madam,
Sub: Review of Regulatory Compliance and Periodic Reporting
1. SEBI (Merchant Bankers) Regulations, 1992 have been amended vide notification no. LAD-NRO/GN/201 1-12/40/7335 dated March 29, 2012, a copy of which is available on SEBI website www.sebi.gov.in. With the said amendment, merchant bankers are required to submit a periodic report in such manner as may be specified by the Board from time to time. Further, in terms of SEBI Circular No. MIRSD/DPS-2/MB/Cir-16/2008 dated May 06, 2008, merchant bankers are required to submit half-yearly report in electronic form.
2. In order to strengthen the compliance mechanism and the role of the Boards of Merchant Bankers, it has been decided to review the reporting format. The revised format as given in the Annexure includes the status of regulatory compliance and investor grievances redressal.
3. The Boards of Merchant Bankers shall, henceforth, review the report and record its observations on (i) the deficiencies and non-compliances, (ii) corrective measures initiated to avoid such instances in future, (iii) pre-issue and post-issue due diligence process followed and whether they are satisfied and (iv) track record of past issues managed.
4. Accordingly, with effect from half year ended March 31, 2012, the Compliance Officer of the Merchant Banker shall send the report in the revised format to SEBI at mb@sebi.gov.in on half yearly basis within three months of the expiry of the half year. The other terms and conditions mentioned in the circular mentioned in Para 1 shall remain unchanged.
5. Further, merchant bankers are required to report changes in their status or constitution in accordance with Circular no. CIR/MIRSD/7/2011 dated June 17, 2011. The same information has also been incorporated in the revised format.
6. This circular is issued in exercise of powers conferred under Section 11(1) of the Securities and Exchange Board of India Act, 1992, to protect the interests of investors in securities and to promote the development of, and to regulate the

Monday, May 14, 2012

Policy for Transfer of Borrowal Accounts from One Bank to Another

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RBI/2011-12/551
DBOD.No.BP.BC-104/21.04.048/2011-12

May 10, 2012
The Chairman and Managing Director/
Chief Executive Officer of
All Scheduled Commercial Banks

Dear Sir,
Transfer of Borrowal Accounts from One Bank to Another
Please refer to our circular IECD.No.20/08.12.01/97-98 dated December 2, 1997, in terms of which banks were advised to incorporate the necessary safeguards to be observed in the case of transfer of borrowal accounts from one bank to another as a part of their lending policy/procedures.
2. However, of late we have been receiving references/complaints that critical information on the health of the borrowal accounts being taken over is not being shared by the transferor bank with the transferee bank, resulting in inadequate due diligence at the time of taking over of accounts.
3. Therefore, we advise that:
a) Banks should put in place a Board approved policy with regard to take-over of accounts from another bank. The policy may include norms relating to the nature of the accounts that may be taken over, authority levels for sanction of takeover, reporting of takeover to higher authorities, monitoring mechanism of taken over accounts, credit audit of taken over accounts, examination of staff accountability especially in case of quick mortality of such cases after takeover, periodic review of taken over accounts at Board /Board Committee level, Top Management level, etc.
b) In addition, before taking over an account, the transferee bank should obtain necessary credit information from the transferor bank as per the format prescribed in our circular DBOD.No.BP.BC.94/ 08.12.001/2008-09 dated December 8, 2008 on “Lending under Consortium Arrangement/Multiple Banking Arrangements”. The format is furnished in Annex. This would enable the transferee bank to be fully aware of the irregularities, if any, existing in the borrower’s account(s) with the transferor bank. The transferor bank, on receipt of a request from the transferee bank, should share necessary credit information as per the prescribed format at the earliest

Saturday, May 12, 2012

Budget 2012 – Prasar Bharati exempted from Income tax

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Prasar Bharati has been exempted from paying any income tax, with the smooth passage of the Finance Bill in the Lok Sabha. As per one of the amendments in the Finance Bill, 2012 which was passed by the Lok Sabha on 08.05.2012, “any income of Prasar Bharati (Broadcasting Corporation of India)” is now mentioned among entities who will not have to pay tax.
Though the Prasar Bharati does not pay income tax currently since it does not earn profits, the exemption comes as a big relief.
The public broadcaster will also be spared of the financial burden of engaging tax consultants and chartered accountants.
The official said that Prasar Bharati worked in national interest and the drain of its resources was ultimately being borne by the government.

Wednesday, May 9, 2012

Foreign exchange remittance limit for miscellaneous purposes without documentation raised to USD 25000

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RBI/2011-12/537
A. P. (DIR Series) Circular No.118

May 07, 2012
To
All Authorised Dealers in Foreign Exchange
Madam/ Sir,
Release of Foreign Exchange for Miscellaneous Remittances
Attention of Authorised Dealers in foreign exchange is drawn to A.P.(DIR Series) Circular No. 16 dated September 12, 2002, in terms of which the Authorised Dealers were advised to release amounts up to USD 500 or its equivalent for all permissible transactions on the basis of a simple letter from the applicant containing the basic information, viz., names and the addresses of the applicant and the beneficiary, amount to be remitted and the purpose of remittance. It was clarified in the circular that Authorised Dealers need not insist upon submission of A2 Forms in such cases. The limit was subsequently enhanced to USD 5000 in terms of the A.P.(DIR Series) Circular No. 55 dated December 23, 2003.
2. With a view to further liberalizing the documentation requirements, the limit for foreign exchange remittance for miscellaneous purposes without documentation formalities, has been raised from USD 5000 to USD 25000 with immediate effect.
3.It is clarified that Authorised Dealers need not obtain any document, including Form A-2, except a simple letter as stated above as long as the foreign exchange is being purchased for a current account transaction (not included in the Schedules I and II of Government Notification on Current Account Transactions), and the amount does not exceed USD 25000 or its equivalent and the payment is made by a cheque drawn on the applicant’s bank account or by a Demand Draft. AD banks shall prepare dummy A-2 so as to enable them to provide purpose of remittance for statistical inputs for Balance of Payment.
4. Authorised Dealers may bring the contents of this circular to the notice of their constituents concerned.
5.The directions contained in this circular have been issued under Sections 10(4) and 11(1) of the Foreign Exchange Management Act, 1999 (42 of 1999) and are without prejudice to permissions/approvals, if any, required under any other law.

Non-furnishing of PAN by payee caused delay in filing of e-TDS return, penalty for such late filing not to be levied

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INCOME TAX APPELLATE TRIBUNAL CHANDIGARH
ITA Nos. 1226 to 1229/Chd/2011
Assessment Years: 2007-08 to 2010-11
The Collector Land Acquisition, Vs Addl. CIT(TDS)
Date of Pronouncement : 09.03.20 12

It is an admitted fact that the amount of tax deducted at source by the assessee (Person Responsible) was paid within the limit under the relevant provisions of the Income Tax Act, 1961. There was only a technical and venial breach to the provisions contained in Rule 31A(2) of the Income Tax Rules, 1962 requiring the assessee to submit quarterly returns statement of Tax Deducted at Source which were required to be filed on due date as per section 200(3) of the I.T. Act. As regards the delay in submitting TDS returns, it was explained by the assessee that due to non-furnishing of PAN numbers, the TDS certificate could not be filed in time, but the tax was deducted in time and deposited with the government account. It is also explained that the Collector Land Acquisition, Department of Industries is a Government Organization. The Organization is acquiring land on behalf of Punjab Government. The Land Compensation is paid by the Organization to the land owners through the District / High Courts. The TDS is deducted at source on the interest payment to the land owners. But the compensation and interest is deposited in the Court and not paid directly to the land owners. It is also explained that generally the land owners / agriculturists do not have PAN numbers. The Department was not able to find PAN numbers of these land owners. It is also explained by the assessee that the Department has issued letters to individual land owners for PAN numbers at the available address but no response was received due to improper addresses. However, it is also explained that as the PAN numbers were not provided by the duductees, so the e-TDS returns could not be filed in time. In our view, the assessee has satisfactorily explained the reasons regarding non filing of TDS returns in time, therefore, no penalty should be levied in these cases. Even otherwise also, the assessee did not derive any benefit whatsoever by not filing the e-TDS returns in time, as the amount of TDS was duly deposited in the government treasury within prescribed time. Such delay has not caused any loss to the Revenue / Income Tax Department.

Registration of institution u/s 12AA cannot be cancelled if its receipts from trade, commerce, etc., exceeds Rs.10Lakhs/Rs.25 Lakhs limit u/s 2(15)

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INCOME TAX APPELLATE TRIBUNAL , JAIPUR
ITA NO. 100/JP/2012 Asstt. Year : 2009-10 & STAY APPLICATION No. 5/JP/2012 (In ITA NO. 100/JP/2012) Asstt. Year : 2009-10
Rajasthan Housing Board vs The CIT
Date of pronouncement : 04.05.2012

After going through the provisions of section 12AA(3) and section 2(15), we found that before the CIT(A) to withdraw the registration granted u/s 12AA has been provided in sub clause (3) of section 12AA of the Act. The provision of section 2(15) are totally different. Now by the amended provisions of section 2(15) it has been provided that if any year the gross receipts of an institution exceeds Rs. 10 lakhs, (now Rs. 25 lakhs w.e.f. 1.4.2012), then in that case, exemption u/s 11 may not be allowed to the Institution as the activities of the institution will be treated as not charitable if the receipts exceeds the limit. The exemption u/s 11 is to be examined on yearly basis, therefore, the exemption u/s 11 have no effect for granting registration u/s 12AA of the Act.
In the case of Gujarat Cricket Association, Ahmedabad vs DIT(E) (supra), the Tribunal by passing a detailed order has held that the registration cancelled by DIT(E) on the basis of amended provisions of section 2(15) of the Act was not justified as amended provisions does not fall within the permissible limit of section 12AA(3) of the Act and accordingly the order of DIT(E) was considered bad in law and the appeal of the Institution was allowed.
If in any year, the gross receipts of the Institution exceeds Rs. 10 lakhs or Rs. 25 lakhs, as the case may be, then in that year, the Assessing Officer is empowered to examine the allowability of exemption u/s 11 but the same has no effect on granting the registration u/s 12AA of the Act.

Portable Provident Fund A/c numbers coming soon

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EPFO is reportedly planning to provide portable numbers to salaried individuals. The move might stem the trend of premature withdrawal which most people prefer over getting their accounts transferred while switching jobs.
Once finalised, the decision will directly benefit about 4.8 crore PF account holders in India. A similar plan to issue unique numbers was scrapped on an earlier occasion. The plan now is to allow subscribers to tie their provident fund accounts with their existing PAN, unique identification number or national population register number.

Prosecution for dishonoured cheques possible against Company & its functionaries – SC

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Supreme Court of India
Aneeta Hada Vs. M/s. Godfather Travels & Tours Pvt. Ltd.
[Criminal Appeal No. 838 of 2008]
Anil Hada Vs. M/S. Godfather Travels & Tours Pvt. Ltd.
[With Criminal Appeal No. 842 of 2008]
Avnish Bajaj Vs. State
[With Criminal Appeal No. 1483 of 2009]
Ebay India Pvt. Ltd. Vs. State and ANR.
[And Criminal Appeal No. 1484 of 2009]

If the offence is by a Company, arraigning of a company as an accused is imperative: the company can have criminal liability and further, if a group of persons that guide the business of the companies have the criminal intent, that would be imputed to the body corporate. In this backdrop, Section 141 of the Act has to be understood. The said provision clearly stipulates that when a person which is a company commits an offence, then certain categories of persons in charge as well as the company would be deemed to be liable for the offences under Section 138. Thus, the statutory intendment is absolutely plain. As is perceptible, the provision makes the functionaries and the companies to be liable and that is by deeming fiction.

Clarification on service-tax payable where invoice raised before 01.4.2012

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Circular No. 158/9/2012 –ST
Dated : 8th May 2012
Subject: – Clarification on Rate of Tax – regarding.
1. The rate of service tax has been restored to 12% w.e.f. 1st April 2012. Representations have been received requesting clarification on the rate of tax applicable wherein invoices were raised before 1st April 2012 and the payments shall be after 1st April 2012. Clarification has been requested in case of the 8 specified services provided by individuals or proprietary firms or partnership firms, to which Rule 7 of Point of Taxation Rules 2011 was applicable and services on which tax is paid under reverse charge. 2. The rate of service tax prevalent on the date when the point of taxation occurs is rate of service tax applicable on any taxable service. In case of the 8 specified services and services wherein tax is required to be paid on reverse charge by the service receiver the point of taxation is the date of payment. Circular No 154/5/2012 – ST dated 28th March 2012 has also clarified the same. Thus in case of such 8 specified services provided by individuals or proprietary firms or partnership firms and in case of services wherein tax is required to be paid on reverse charge by the service receiver, if the payment is received or made, as the case maybe, on or after 1st April 2012, the service tax needs to be paid @12%.
3. The invoices issued before 1st April 2012 may reflect the previous rate of tax (10% and cess). In case of need, supplementary invoices may be issued to reflect the new rate of tax (12% and cess) and recover the differential amount. In case of reverse charge the service receiver pays the tax and takes the credit on the basis of the tax payment challan. Cenvat credit can be availed on such supplementary invoices and tax payment challans, subject to other restrictions and conditions as provided in the Cenvat Credit Rules 2004.
4. Trade Notice/Public Notice may be issued to the field formations accordingly

Tuesday, May 8, 2012

Budget 2012 – Clarificatory amendments do not override provisions of DTAA

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Hon’ble Members are aware that a provision in the Finance Bill which seeks to retrospectively clarify the provisions of the Income Tax Act relating to capital gains on sale of assets located in India through indirect transfers abroad, has been intensely debated in the country and outside. I would like to confirm that clarificatory amendments do not override the provisions of Double Taxation Avoidance Agreement (DTAA) which India has with 82 countries. It would impact those cases where the transaction has been routed through low tax or no tax countries with whom India does not have a DTAA .
Extract From FM Budget speech dated 7-5-2012 on Finance Bill, 2012

Lower rate of withholding tax of 5% on fund augmented from foreign borrowings extends to all businesses

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Lower rate of withholding tax of 5%, extended to fund augmented from foreign borrowings for infrastructure sector, now extends for all businesses
In order to augment long-term low cost funds from abroad for the infrastructure sector, Finance Bill proposes a lower rate of withholding tax of 5% for funding specific sectors through foreign borrowings. To further facilitate access to such borrowings, I propose to extend the lower rate of withholding tax to all businesses. This lower rate of tax would also be available for funds raised through long term infrastructure bonds in addition to borrowing under a loan agreement.

LTCG from sale of unlisted securities in case of NR / Private Equity Investors, to be taxed at 10%

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LTCG from sale of unlisted securities in the case of NR investors, including Private Equity Investors, to be taxed at 10% instead of 20%

Currently, long term capital gain arising from sale of unlisted securities in the case of Foreign Institutional Investors is taxed at the rate of 10% while other non-resident investors, including Private Equity investors are taxed at the rate of 20%. In order to give parity to such investors, I propose to reduce the rate in their case from 20% to 10% on the same lines as applicable to FIIs.

Withdrawal of TDS on purchase of Immovable Property

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The Finance Bill proposes that every transferee of immovable property (other than agricultural land), at the time of making payment for transfer of the property, shall deduct tax at the rate of 1% of such sum. I have received a number of representations pointing out the additional compliance burden this measure would impose. I, therefore, propose to withdraw this provision for levy of TDS on transfer of immovable property.
Extract From FM Budget speech dated 7-5-2012 on Finance Bill, 2012

Exemption from service tax for specified service in the negative list extends to Agricultural produce

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Exemption for specified services relating to agriculture in the Negative List has also been extended to agricultural produce enlarging the scope of the entry.
Extract From FM Budget speech dated 7-5-2012 on Finance Bill, 2012

NoTCS on Cash purchase of Jewellery upto Rs. 5 lakhs

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To curb the flow of unaccounted money in the bullion & jewellery trade, the Finance Bill proposes the collection of tax at source (TCS) by the seller at the rate of 1 per cent of the sale amount from the buyer for all cash transactions exceeding Rs.2 lakh. Responding to the representations made by the jewellery industry that this would cause undue hardship, I propose to raise the threshold limit for TCS on cash purchases of jewellery to Rs.5 lakh from the present Rs.2 lakh. The threshold limit for TCS on cash purchase of bullion shall be retained at Rs.2 lakh. However, it is being clarified that bullion will not include any coin or other article weighing 10 gms or less

Retrospective amendment to Sec. 9 not applicable where assessment order already passed

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The retrospective clarificatory amendments now under consideration of Parliament will not be used to reopen any cases where assessment orders have already been finalized. I have asked the Central Board of Direct taxes to issue a policy circular to clearly state this position after the passage of the Finance Bill.
Extract From FM Budget speech dated 7-5-2012 on Finance Bill, 2012

Government withdraws Excise Duty on all precious metal jewellery, branded or unbranded

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A related proposal that has attracted public attention is the imposition of Central Excise duty on unbranded precious metal jewellery at the rate of 1%. Madam Speaker, I would like to reiterate that the levy was well-intentioned and introduced not so much for raising revenue as for rationalization and movement towards GST. However, the outpouring of sentiment both within and outside the House indicates that we are not ready for it. As such, the Government has decided to withdraw the levy on all precious metal jewellery, branded or unbranded, with effect from 17th March, 2012.
Extract From FM Budget speech dated 7-5-2012 on Finance Bill, 2012

GAAR – Advance Ruling Applies, Onus on Department, Change in Constitution, Applicable from AY 2013-14

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1. In addition, certain provisions relating to a General Anti-Avoidance Rules (GAAR) have also been proposed in the Finance Bill, 2012. After examining the recommendations of the Standing Committee on GAAR provisions in the DTC Bill 2010, I propose to amend the GAAR provisions as follows:
(i) Remove the onus of proof entirely from the taxpayer to the Revenue Department before any action can be initiated under GAAR.
(ii) Introduce an independent member in the GAAR approving panel to ensure objectivity and transparency. One member of the panel now would be an officer of the level of Joint Secretary or above from the Ministry of Law.
(iii) Provide that any taxpayer (resident or non-resident) can approach the Authority for Advance Ruling (AAR) for a ruling as to whether an arrangement to be undertaken by her is permissible or not under the GAAR provisions.
2.To provide greater clarity and certainty in the matters relating to GAAR, a Committee has been constituted under the Chairmanship of the Director General of Income Tax (International Taxation) to give recommendations for formulating the rules and guidelines for implementation of the GAAR provisions and to suggest safeguards so that these provisions are not applied indiscriminately. The Committee has already held several rounds of discussion with various stakeholders including the Foreign Institutional Investors. The Committee will submit its recommendations by 31stMay 2012.
3. To provide more time to both taxpayers and the tax administration to address all related issues, I propose to defer the applicability of the GAAR provisions by one year. The GAAR provisions will now apply to income of Financial Year 2013-14 and subsequent years.
Extract From FM Budget speech dated 7-5-2012 on Finance Bill, 2012

Filing Offer Documents under SEBI (Issue of Capital and Disclosure Requirements) Regulations, 2009

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Filing Offer Documents under SEBI (Issue of Capital and Disclosure Requirements) Regulations, 2009
circular no. CFD/DIL/5/2012, dated 3-5-2012
1. Please refer to circular No. CFD/DIL/9/2010, dated October 13, 2010 on the captioned subject.
2. In partial modification of the above referred circular, it has been decided that the draft offer documents in respect of issues of size up to Rs. 500 crores shall be filed with the concerned regional office of the Board under the jurisdiction of which the registered office of the issuer company falls. Merchant Bankers are accordingly advised to file the draft offer documents/offer documents with the concerned office of the Board, based on the estimated issue size as indicated below:-
Sl.No.Region in which registered office of the issuer fallsJurisdictions covered in this regionName and address of the office of the Board where draft offer document/offer document is required to be filed
Estimated issue size of up to Rs. 500 crore
i.Northern RegionHaryana, Himachal Pradesh, Jammu and Kashmir, Punjab, Uttar Pradesh, Chandigarh, Delhi, UttarakhandSEBI Northern Regional Office, 5th Floor, Bank of Baroda Building, 16 Sansad Marg, New Delhi – 110 001
ii.Eastern RegionAssam, Bihar, Manipur, Meghalaya, Nagaland, Orissa, West Bengal, Tripura, Arunachal Pradesh, Mizoram, JharkhandSEBI Eastern Regional Office, 3rd Floor, L & T Chambers, 16 Camac Street, Kolkata – 700 017
iii.Southern RegionAndhra Pradesh, Karnataka, Kerala, Tamil Nadu, PuducherrySEBI Southern Regional Office, D’Monte Building, 3rd Floor, No. 32, D’Monte Colony, TTK Road, Alwarpet, Chennai – 600 018
iv.Western RegionGujarat, RajasthanSEBI Western Regional Office, Unit No: 002, Ground Floor, SAKAR I, Near Gandhigram Railway Station, Opposite Nehru Bridge, Ashram Road, Ahmedabad – 380 009
Maharashtra, Madhya Pradesh, Dadra and Nagar Haveli, Goa, Daman, Diu, ChhattisgarhSEBI Head Office, SEBI Bhavan, Plot No. C4-A, “G” Block, Bandra Kurla Complex, Bandra (East), Mumbai – 400 051
Estimated issue size greater than Rs. 500 crore
v.All regionsAll jurisdictionsSEBI Bhavan, Plot No. C4-A, “G” Block, Bandra Kurla Complex, Bandra (East), Mumbai – 400 051
3. Merchant Bankers are further advised to file three copies of the draft offer documents/one copy of the offer documents with the office indicated above.
4. The amendments made vide this circular shall come into effect for all draft offer documents for issues which are filed with SEBI on or after May 14, 2012.
5. The above are specified in exercise of the powers conferred under section 11 read with section 11A of the Securities and Exchange Board of India Act, 1992. This circular is available on SEBI website at www.sebi.gov.in under the categories “Legal Framework” and “Issues and Listing”.

Company Law – Substitution of Forms 23C and 23D

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Companies (Central Government’s) General Rules and Forms (Amendment) Rules, 2012 – Substitution of Forms 23C and 23D
Notification No. G.S.R. 313(E), dated 24-4-2012
In exercise of the powers conferred by sub-section (l) of section 642, read with section 610B of the Companies Act, 1956 (1 of 1956), the Central Government hereby makes the following rules further to amend the Companies (Central Government’s) General Rules and Forms, 1956, namely: -
1. (1) These rules may be called the Companies (Central Government’s) General Rules and Forms (Amendment) Rules, 2012.
(2) These rules shall come into force with effect from the 24th April, 2012.
2. In the Companies (Central Government’s) General Rules and Forms, 1956, in Annexure ‘A’ for Forms 23C and 23D, the following Forms shall be substituted, namely:-
FORM 23CForm of application to the Central Government for appointment of cost auditor
[Pursuant to section 233B(2) of Companies Act 1956]

FORM 23DInformation by cost auditor to Central Government
[Pursuant to section 233B of the Companies Act 1956]
VISIT www.mca.gov.in to view new format of Forms 23C and 23D

Saturday, May 5, 2012

Employers can now submit EPF subscription online

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Ending hassles of employers in payment of EPF subscription of employees, the government today started an electronic mechanism that promises to bring transparency and accessibility. The initiative, launched by Labour and Employment Minister Mallikarjun Kharge, offers an opportunity to employers to file their returns online from anywhere and anytime.

“The hassles of preparing various monthly and annual paper returns and visiting the EPFO offices for submitting them will become a thing of the past,” Kharge said.

He said provisions are being made under the scheme so that employees can also check their accounts for updates.

He said EPFO offices would not have to manually enter the returns in the system to update information and make several communications in case of mistakes or deficiencies in paper returns.

EPFO Commissioner R C Mishra said with the updating of the new employee and existing employee details under the new online initiative, the “claims settlement process would become much quicker”. This will also do away with the need of annual accounts preparation at the end of the year.

He said the manpower engaged for these old processes can be gainfully utilised for other activities.

Kharge, who greeted the working population on the occasion of International Labour Day today, said it has been their endeavour to improve the working conditions and quality of life of workers through policies and programmes.

RBI raises Interest rate ceiling on Foreign Currency Non-Resident deposits of banks

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RBI/2011-12/535
DBOD.Dir.BC. 102/13.03.00/2011-12

May 4, 2012

All Scheduled Commercial Banks
(excluding RRBs)

Dear Sir/Madam

Interest Rates on FCNR(B) Deposits

Please refer to paragraph 2 of our circular No.DBOD.Dir.BC.59/13.03.00/2011-12 dated November 23, 2011 on Interest Rates on Deposits held in FCNR(B) Accounts. In view of the prevailing market conditions, it has been decided that until further notice and with effect from the close of business in India as on May 4, 2012, the interest rates on FCNR(B) Deposits will be as under:
Maturity Period
Existing
Revised
1 year to less than 3 years LIBOR/Swap plus 125 basis points LIBOR/Swap plus 200 basis points
3 – 5 years LIBOR/Swap plus 125 basis points LIBOR/Swap plus 300 basis points


On floating rate deposits, interest shall be paid within the ceiling of swap rates for the respective currency/maturity plus 200 bps/300 bps as the case may be. For floating rate deposits, the interest reset period shall be six months.

2. Foreign currency loans out of FCNR(B) deposits may be given as Pre-shipment Credit in Foreign Currency (PCFC)/ Rediscounting of Export Bills Abroad (EBR) to exporters and other entities (including exporters who desire to avail of foreign currency term loans for creating export capability) having a natural hedge or entities having a risk management policy for managing the exchange risk.

3. All other instructions in this regard, as amended from time to time, will remain unchanged.

4. An amending directive DBOD.No.Dir.BC. 101/13.03.00/2011-12 dated May 4, 2012 is enclosed.

RBI removes ceiling rate on export credit in foreign currency

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BI/2011-12/534
DBOD.DIR.No.100/04.02.001/2011-12

May 4, 2012

All Scheduled Commercial Banks
(Excluding RRBs)

Dear Sir / Madam,

Deregulation of Interest Rates on Export Credit in Foreign Currency

Please refer to our circulars DBOD. DIR. No. 52/04.02.001/2011-12 dated November 15, 2011 and DBOD. DIR. No. 91/04.02.001/2011-12 dated March 30, 2012 relating to interest rates on export credit in foreign currency.

2. With a view to increasing the availability of funds to exporters, it has been decided to allow banks to determine their interest rates on export credit in foreign currency with effect from May 5, 2012.

3. A directive DBOD.DIR.No.99/04.02.001/2011-12 dated May 4, 2012, issued in this regard is enclosed.

Friday, May 4, 2012

Priority Sector Lending-Indirect Finance to Housing Sector – Increase in Limit to 10 lakh

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RBI/2011-12/527
 RPCD.CO RRB. BC.NO.74 /03.05.33/2011-12

April 27, 2012

The Chairmen
 All Regional Rural Banks (RRBs)

Dear Sir,

Priority Sector Lending-Indirect Finance to Housing Sector

Please refer to paragraph 7.4 of our circular RPCD.No. RRB.BC.20/03.05.33/2007-08 dated August 22, 2007 on lending to priority sector.

2. Pursuant to the announcement made by Union Finance Minister in the Union Budget for the year 2012-13, it has been decided to increase the limit from Rs.5 lakh to Rs.10 lakh for the bank loans extended to non-governmental agencies, approved by NHB for their refinance, for on-lending for the purpose of construction/reconstruction of individual dwelling units or for slum clearance and rehabilitation of slum dwellers.

3. The revised limit is applicable to the bank loans sanctioned from the date of this circular.

Guidelines on Implementation of Basel III Capital Regulations in India

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㈸ Ᏸ 2011-12/530
 DBOD.No.BP.BC.98 /21.06.201/2011-12

May 2, 2012

The Chairman and Managing Directors/Chief Executives Officers of All Scheduled Commercial Banks (Excluding Local Area Banks and Regional Rural Banks)

Madam / Dear Sir,

Guidelines on Implementation of Basel III Capital Regulations in India

Please refer to the paragraph 90 (extract enclosed) of the Monetary Policy Statement 2012-13 announced on April 17, 2012. It was indicated that the final guidelines on the implementation of Basel III capital regulations would be issued by end – April 2012. It may be recalled that draft proposals on Basel III capital regulations were issued vide circular DBOD.No.BP.BC.71/ 21.06.201/ 2011-12 dated December 30, 2011.

2. The final guidelines on Basel III capital regulations are enclosed. These guidelines would become effective from January 1, 2013 in a phased manner. The Basel III capital ratios will be fully implemented as on March 31, 2018.

3. The capital requirements for the implementation of Basel III guidelines may be lower during the initial periods and higher during the later years. While undertaking the capital planning exercise, banks should keep this in view.

4. RBI is currently working on operational aspects of implementation of the Countercyclical Capital Buffer. Guidance to banks on this will be issued in due course. Besides, certain other proposals viz. ‘Definition of Capital Disclosure Requirements’, ‘Capitalisation of Bank Exposures to Central Counterparties’ etc., are also engaging the attention of the Basel Committee at present. Therefore, the final proposals of the Basel Committee on these aspects will be considered for implementation, to the extent applicable, in future.

5. For the financial year ending March 31, 2013, banks will have to disclose the capital ratios computed under the existing guidelines (Basel II) on capital adequacy as well as those computed under the Basel III capital adequacy framework.

Display of Citizens Charter in all buildings of Income Tax Department

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The Results Framework Document (RFD) for the Income Tax Department for the financial year 2012-13 under the objectives “Communication with Taxpayers” includes one of the action point “Display of Citizen’s Charter in all the buildings of the Department”.

Intra-bank Deposit Accounts Portability

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RBI/2011-12/528
 DBOD.AML. BC. No. 97/14.01.001/2011-12

April 27, 2012

The Chairmen/Chief Executive Officers,
 All Scheduled Commercial Banks (excluding RRBs)/Local Area Banks

Dear Sir,

Intra-bank Deposit Accounts Portability

It has been brought to our notice that some banks are insisting on opening of fresh accounts by customers when customers approach them for transferring their account from one branch of the bank to another branch of the same bank. Such insistence on opening of fresh account or making the customer undergo full KYC process again causes inconvenience to them resulting in poor customer service. It is not reasonable in view of the fact that most bank branches are now on CBS and KYC records of a particular customer can be accessed by any branch of the bank.

2. Banks are advised that KYC once done by one branch of the bank should be valid for transfer of the account within the bank as long as full KYC has been done for the concerned account. The customer should be allowed to transfer his account from one branch to another branch without restrictions. In order to comply with KYC requirements of correct address of the person, fresh address proof may be obtained from him/her upon such transfer by the transferee branch. It may be noted that instructions regarding periodical updation of KYC data in terms of para 2.4(e) and those on maintenance of records of identity and transaction in terms of para 2.21(iii) of our Master circular DBOD.AML.BC. No.2/14.01.001/ 2009-10 dated July 01, 2011 remain unchanged and banks will be required to carry out the updation at prescribed intervals as also maintain records of transactions and verification of identity as prescribed.

Wednesday, May 2, 2012

General Circular No. 7/2012- Name Availability Guidelines, 2011

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General Circular No. 7/2012
No.17/90/2011-CL-V
Dated:25 April 2012
Sub: Name Availability Guidelines, 2011
Sir,
Please refer to this Ministry’s earlier Circulars no.45/2011 dated 08.07.2011 and 48/2011 dated 22.07.2011 on the subject cited above. In this regard, I am directed to say that matter regarding availability of name by the system online without backend process by the Registrar of Companies (ROC) on certification given by practising professionals in the manner provided at Para 3 of the Circular no.45/2011 dated 08.07.2011 has been re-examined in this Ministry and it has been decided as under:-
(i) The facility of name approval through STP mode on certification by professional will continue to be available. However, such names will be put to online check by the system for ascertaining similarity with trademarks. If there is similarity of proposed name with any existing trademark, the work item will be transferred for processing in non¬STP mode.
(ii) All the names applications submitted in STP mode will be put for system check and if there is exact match of any of the two words (other than the words private limited/limited) proposed in new company’s name with any existing company’s name, then such name will also be processed in non-STP mode.
(iii) All the names approved in STP mode will be made available on the dash board of the concerned ROC for immediate examination. Such STP approved names will not be available for filing of incorporation documents up to:-
(a) 1900 hrs. of the same day, if the name through STP mode is approved by the system upto 1100 hrs. on any working day.
(b) 1900 hrs. of the any next working day if the name is approved after 1100 hrs. on any working day or on holiday/non-working day.
(iv) Name approval application in case of single word (other than words private limited/limied) shall not be processed in STP mode.
2. This circular shall be implemented w.e.f 20.05.2012
3. All RDs/ROCs should take note of this circular and ensure its compliance, and discrepancies, if any, should be brought to the notice of this Ministry immediately.

Difference between Finance Lease & Operational Lease – Delhi HC

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HIGH COURT OF DELHI
INCOME TAX APPEAL NO. 442/2007
Date of Decision: 17th April, 2012
COMMISSIONER OF INCOME TAX DELHI-VI
VERSUS
THE INSTALMENT SUPPLY LIMITED


The appellants are carrying on the business of financiers: they are not dealing in motor-vehicles. The motor-vehicle purchased by the customer is registered in the name of the customer and remains at all material times so registered in his name. In the letter taken from the customer under which the latter agrees to keep the vehicle insured, it is expressly recited that the vehicle has been given as security for the loan advanced by the appellants. As a security for repayment of the loan, the customer executes a promissory-note for the amount paid by the appellants to the dealer of the vehicle. The so-called “sale letter” is a formal document which is not made effective by registering the vehicle in the name of the appellants and even the insurance of the vehicle has to be effected as if the customer is the owner. Their right to seize the vehicle is merely a licence to ensure compliance with the terms of the hire-purchase agreement. The customer remains qua the world at large the owner and remains in possession, and on condition of performing the covenants has a right to continue to remain in possession. The right of the appellants may be extinguished by payment of the amount due to them under the terms of the hire-purchase agreement even before the dates fixed for payment. The agreement undoubtedly contains several onerous covenants, but they are all intended to secure to the appellants recovery of the amount advanced. We are accordingly of the view that the intention of the appellants in obtaining the hire-purchase and the allied agreements was to secure the return of loans advanced to their customers, and no real sale of the vehicle was intended by the customer to the appellants. The transactions were merely financing transactions.
In view of the aforesaid position, we feel that the matter has not been examined and considered by the tribunal from the right perspective, the real issue and controversy has not been examined. The tribunal has not considered the legal position to reach its conclusion. In these circumstances, we answer this substantial question of law mentioned above in negative, i.e., in favour of the Revenue and against the assessee. An order of remand is passed directing the tribunal to examine the controversy a fresh in the light of what has been stated above and without being influenced by the earlier order. The appeal is disposed of. In the facts of the case, there will be no order as to costs.