Monday, 2 September 2013

NOTE BRIEFLY ANALYZING THE CHANGES IN RELATION TO FORM 3CEB FILING



COMPLIANCE
1. BACKGROUND:

THE Central Board of Direct Tax (“CBDT”) has introduced the following changes in relation to Form 3CEB

compliance for the Assessment Year (“AY”) 2013-14 and onwards:

The CBDT has revised the Form 3CEB that would be applicable for the AY 2013-14 and onwards.

The revised form 3CEB has expanded the reporting requirements in alignment to the amendments

introduced by Finance Act 2012 retrospectively clarifying the definition of ‘international transaction’

and expanding the ambit of Transfer Pricing (“TP”) regulations to cover Specified Domestic

Transactions (“SDT”); and

The form 3CEB is required to be filed online from AY 2013-14 and onwards.

To consider the effect of the changes as above on the transactions undertaken by the Company with its

Associated Enterprises (“AE”) it would be relevant to understand in detail the significance of the said

changes. In this regard, we have provided in this note below the background, synopsis and our brief

analysis of the significance of the said changes.

2. UPDATE ON NEW FORM 3CEB:

The CBDT on June 10, 2013 has issued a Notification number 41 of 2013 which among other things has

revised the form 3CEB that would be applicable for the AY 2013-14 and onwards.

The background and significance of this change is briefly analyzed below:

2.1 New form 3CEB – Synopsis of the change

The revised form 3CEB prescribed, for the annual reporting of international transactions with it AE, and

SDT, interalia requires specific reporting of various international transactions including transactions in the

nature of guarantee, business reorganization/ restructuring, purchase/sale of securities and issue /

buyback of equity shares, debentures, preference shares.

The significance of this change is discussed hereunder:

2.2 Significant aspects of the revised form 3CEB

General

Aggregate value of international transactions and SDT as per books of account are to be

provided.

This change coupled with the introduction of the online filing of form 3CEB may enable the

Revenue Authorities (“RA”) to program their systems to enable identification of cases

where the mandatory TP documentation is to be maintained (ie where value of the

International transaction exceeds1 Million) and cases that needs to be referred to the

Transfer Pricing Officer (“TPO”) (ie where the value of the international transactions

exceeds INR 150 million).

Aspects in relation to the international transactions:

Issuance of shares, and convertible debentures are to be reported (clause 16)

While the Hyderabad ITAT in the case of Vijai Electrical has held that investment in the

share capital in an overseas subsidiary is not an international transaction as per the TP

provisions of the Act, the revised form makes it a requirement to report issuance of shares

as well.

As you would be aware, the TPO’s in the recent audit cycle has started enquiring on the

assumptions (including those pertaining to the growth rates factored) forming the basis of

the valuation at which the shares are issued to the AEs. The specific requirement to report

the said transactions could bring greater focus on these transactions in a TP audit, where

the basis adopted for valuing the shares etc could be questioned and consequential

adjustments could be made alleging short receipt of consideration for issue of shares, and

payment of excess consideration in case of subscription to shares.

Buyback of equity shares etc are to be reported (clause 16)

Buyback of shares’ was hitherto not specifically included under the definition of

international transaction (vide explanation introduced under section 92B of the Income-tax

Act, 1961 (“Act”) in 2012), although several other transactions such as guarantees issued,

purchase / sale / transfer of intangibles, capital financing, business restructuring were

specifically clarified as falling within the ambit of this term. Nevertheless, it is now

specifically included as a transaction requiring reporting in the revised form 3CEB and by

implication being considered as an international transaction, notwithstanding no

amendments in law.

With effect from June 1, 2013, a distribution tax at 20 percent (apart from surcharge and

cess) has been introduced on buy back of shares in the hands of the company, which

undertakes the buyback of shares pursuant to the introduction of section 115QA under the

Act. Simultaneous amendments have been made to section 10(34A) of the Act exempting

the income in the hands of the shareholder Thus, while it should be possible to argue that

there would be no income arising in the hands of the shareholder, it may not be possible to

do so in the hands of the company, which undertakes a buyback of shares.

Guarantees provided to AEs or received from AEs and the corresponding fees charged are to be

reported

You may note that the Finance Act 2012 specifically included guarantees as an

international transaction as per section 92B of the Act, while the Hyderabad ITAT in the

case of Foursoft Ltd had earlier held that a guarantee does not constitute an international

transaction.

International transaction arising from business restructuring and reorganization transactions are

required to be reported separately

Considering the guidance provided in the OECD TP guidelines, the transaction of business

restructuring may include any change in the functional profile of the assessee or

alternatively involve the termination or substantial renegotiation of existing arrangements.

Transactions referred to under the explanation 1(b) to section 92B which deals with aspects such

as transfer or use of intangibles property are to be reported

In this regard, it is relevant to note that the Finance Act 2012 has with retrospective effect

from April 1, 2002 clarified on the definition of the term Intangible Property and among

other things has defined the term to include: customer related, human capital related,

contract related intangibles which inturn includes customer lists, customer contracts,

trained and organized work force, employment agreements, favourable supplier contracts,

within the definition of the term Intangible property. Hence any transaction involving

transfer or use of the same would need to be specifically identified and reported.

Deemed international transaction entered in to by the assessee are to be reported separately

The Hyderabad ITAT in the case of Swarnandhra IJMII Integrated Township Development

Company Pvt. Ltd has held that for a transaction between an assessee and a third party to

be considered as deemed international transaction as per section 92B(2) of the Act at least

one of the parties to the transaction must be a non-resident. The revised form 3CEB now

specifically requires reporting of any transaction entered in to by the assessee with a

person other than an AE in pursuance of a prior agreement in relation to the relevant

transaction between such other person and the AE. Hence any transactions of the said

nature wherein the prices are decided under a global master services agreement entered in

to by the AE may require specific reporting under this clause.

Aspects in relation to SDT:

The form has also introduced a separate part for reporting SDTs, which requires the reporting of

payments to related parties referred to under section 40A(2)(b), and reporting of transactions

undertaken by the unit of the assessee eligible for certain tax incentives to which the provisions of

section 80IA(8), with its other business units. Further, reporting is also required for SDT resulting

in more than ordinary profits to an eligible business under section 80IA(10) or section 10AA of the

Act.

2.3 Penalty for non compliance

Section 271AA of the Act (amended with effect from July 2012), provides for a penalty at 2 percent of the

value of international transaction for failure to report any international transaction. Hence, the nonreporting

of an international transaction in the form 3CEB could result in stringent penal consequences

from the AY 2013-14.

3. MANDATORY ONLINE FILING OF FORM 3CEB FROM AY 2013-14

It is also relevant to note that the CBDT had also recently issued a notification (dated May 1, 2013)

interalia providing for compulsory electronic filing of form 3CEB from AY 2013-14 and onwards.

Due to the nature of changes, the following practical aspects may also arise:

Any additional notes, caveats or disclosures cannot be made in the form itself and may have to

provided in a separate document that may have to be furnished as an attachment;

Given that the format does not permit import of data from other soft forms such MS excel

spreadsheets, the data updation could be cumbersome particularly when the data to fed in the

form is voluminous on account of large number of transactions etc

4. WAY FORWARD

Considering the above changes in law and the penal consequences of non-reporting a transaction with

effect from AY 2013-14, reporting of transactions such as buyback of shares, issue of shares,

debentures, transfer or use of intangibles etc and SDTs in the form 3CEB would become very relevant.

The form 3CEB for the AY 2013-14 is due to be filed by November 30, 2013 and the same is to be filed

online after being digitally signed by the Chartered Accountant. Where the taxpayer believes that the

transactions are not subject to Transfer Pricing and nevertheless, wishes to file a form 3CEB by way of

abundant caution then the due date for filing the tax return would be September 30, 2013 and not the

extended timeline of November 30, 2013.

In view of the above, given the sweep of changes, it would be useful to identify the reporting and other

compliances required to be undertaken by the companies for the AY 2013-14 and subsequent years,

where the aforesaid international transactions and SDTs have been undertaken.
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