Saturday, 25 February 2017

Book on BEPS

The most latest book on  Base Erosion and Profit Shifting (BEPS)  now published and you can place your order at taxbymanish@yahoo.com  to book your E copy.  The contents of the books is given below.


Index


SN
Description
Page No.
1
Important Summary
3-4
2
Introduction
5-7
3

BEPS Action 1 : Addressing the tax challenges of the digital economy

8-11
4
BEPS Action Plan 2: Neutralizing the effects of hybrid mismatch arrangements
12-15
5
BEPS Action Plan 3: Designing effective controlled foreign company rules
16-18
6

BEPS Action Plan 4: Limiting base erosion arising from interest deductions

19-20
7
BEPS Action 5: Countering harmful tax practice more effectively
21-22
8
BEPS Action Plan 6: Preventing inappropriate treaty benefit grants 
23-25
9
Action Plan 7 : Preventing the Artificial Avoidance of Permanent Establishment Status
26-27
10
BEPS Action Plan 8: Transfer pricing of intangibles 
28-30
11
BEPS Action 9: Risk and Capital 
31-33
12
BEPS action plan 10: Other high-risk transactions
34-35
13
Action Plan 11 -- Measuring and Monitoring BEPS
36-38
14
BEPS Action Plan Action 12: Disclosing Aggressive Tax Planning Arrangements
39-40
15
BEPS Action Plan 13: Transfer pricing documentation and country-by-country reporting
41-43
16
BEPS action plan 14: Making dispute resolution mechanisms more effective   
44-46
17
BEPS 15-point action plan: Developing a multilateral instrument to modify bilateral tax treaties
47-49
18
Introduction of BEPS into Indian domestic law
50-56
19
The Practical Impact of Country by Country Reporting.  
57-69
20
A model template for the Country- by-Country Report
70-71
21
Master & Local File
72-75



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TAXNOTICES

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POEM APPLICABLE ON COMPANIES TURNOVER MORE THAN 50 CRORE.

CBDT issues circular clarifying that provisions of Sec 6(3)(ii) relating to place of effective management (POEM) won't apply to companies having turnover or gross receipts less than Rs 50 crores during financial year; CBDT now issues a clarificatory circular since the Press Release issued in January 2017 referred to Rs 50 crores limit, however the same was not expressly mentioned in the POEM circular 

ITAT: Investment vs. stock-in-trade distinction irrelevant for Sec 14A application; Disallows expenditure on strategic investments

Chennai ITAT upholds Sec 14A disallowance for AYs 2011-12 & 2012-13 in respect of strategic investments made by assessee-company in subsidiary / associate companies for business purposes;  ITAT clarifies that the holding of asset/property under reference either as an investment or as stock-in-trade becomes inconsequential or irrelevant for Sec 14A application,  what is relevant is not the object for which the investment was made, but the nature of income – tax-exempt or otherwise, that arises from the investment;  Remarks that “Now, it stands to reason that if ‘investments’ forming part of the assessee’s stock-in-trade does not preclude application of sec. 14A, investments made for business, i.e., assuming so, would surely not.”; Further rejects assessee’s stand that no expenditure was incurred for making strategic investments, remarks that “the very fact that the assessee claims it as having business implications, makes such a review imperative, entailing cost.”, upholds disallowance of indirect expenditure as per Rule 8D(iii) ; Relies on Special Bench ruling in Daga Capital Management P. Ltd., Mumbai ITAT ruling in DH Securities (P.) Ltd., Bombay HC ruling Godrej & Boyce Mfg. Co. Ltd. and Calcutta HC ruling in Dhanuka & Sons, differs from co-ordinate bench ruling in EIH Associated Hotels Ltd.  in as much as the same was without reference to the language of the provision and the aforesaid decisions:ITAT 

HC : Upholds penalty u/s 112 for goods mis-declaration, however, deletes simultaneous penalty u/s 114A

HC sets aside CESTAT's order pertaining to deletion of penalty on assessee for mis-declaration of goods, upholds penalty u/s 112 of the Customs Act, 1962 (Act), while setting aside penalty u/s 114A; Agreeing with CESTAT, sets aside interest demand since show cause notice (SCN) does not mention about Section 28 of Customs Act, and also does not mention as to what provisions of law the interest was sought to be recovered although order confirms interest u/s Section 28AB Act; Further states that, even if it is considered that demand arises out of finalization of provisional assessment u/s 18, it is settled by judicial pronouncements that no interest is recoverable on finalization of provisional assessments made prior to July 13, 2007; Opines that, penalty u/s 114A is not leviable since SCN did not mention anything about Section 28 and wording of Section 114A makes it expressly clear that penalty under said Section is attracted when liability to pay duty or interest is determined u/s 28; However, distinguishing case of Care Foundation and Amrit Foods from present case, states in present case, SCN invokes both Section 114A and 112, and given that, both penal provisions are invoked, question of deleting penalty could not have arisen : Delhi HC

ITAT : Self-generated patent transfer triggers taxable capital gains; Rejects taxpayer's unascertainable cost plea

Mumbai ITAT rules that consideration received by assessee-company (engaged in research development, manufacturing, licensing of bio-pharmaceuticals products)  on assignment of indigenously developed patent of a medicine shall be taxable as ‘capital gains’ and shall be subject to  applicability of Sec. 55(2) (which states that cost of acquisition for self-generated goodwill, right to manufacture etc. shall be taken at ‘nil’) for AY 2008-09; Assessee had argued that the amount was a non-taxable capital receipt, as no cost was incurred for developing the patent and further even if cost was incurred, it was not ascertainable, moreover transfer of know–how/patent was not covered by Sec. 55(2);  ITAT notes that for developing a patent of medicine, assessee has to carry out research analysis and experimentation, further notes that medical patents require clinical tests and administering drugs to the patients, hence the claim that no cost was incurred is not acceptable; ITAT holds that assessee’s case falls under the ambit of ‘right to manufacture/produce/process any article or thing’ as envisaged u/s 55(2)(a), distinguishes assessee’s reliance on ITAT ruling in Kwality Biscuit (P.) Ltd. as it dealt with trade-mark and brand name, similarly distinguishes assessee’s reliance on Bombay HC ruling in Fernhill Laboratories and Industrial Establishment on facts:ITAT 

SC : Admits SLP against HC order including TDS as part of 'tax-paid' for refund

SC admits Revenue’s appeal against HC order directing Revenue to grant refund of 50% of total tax deposited (actual tax plus TDS) by assessee as per Clause 4.2.15 of Madhya Pradesh Udhyog Nivesh Samvardhan Sahayata Yojna, 2004 (Scheme of 2004); HC had rejected Revenue’s contention that, input tax is not deposited by purchaser at time of issuance of TDS certificate but at time of sale of such goods, therefore benefit of Clause 4.2.15 is not available; HC remarked that, Section 26A which provides for TDS have been brought in statute w.e.f. December 24, 2007 and since then, a liberty has been granted to purchaser to deduct TDS from sellers; Therefore, stating that, deeming provisions of deposit of tax has been introduced, as per Section 26-A (3) as well as Rule 45A (9), and considering same, benefit has been granted earlier to assessee as well as similarly situated manufacturers; Thus, HC allowed writ petition holding it to be a case of hostile discrimination : SC

ITAT: Third Member allows 'additional depreciation' on windmill; Sec 32(1)(iia) amendment of 2012 applicable retrospectively

Pune ITAT third member  rules that  process of generation of electricity through windmill amounts  to ‘manufacture or production of article or thing’ as contemplated u/s 32(1)(iia),   allows assessee’s ‘additional depreciation ’ claim on windmills  for  AYs 2011-12 & 2012-13; During relevant AYs, apart from claiming accelerated depreciation @ 80% u/s. 32(1)(i) (available to power generation companies), assessee  also claimed additional depreciation  @ 20% u/s. 32(1)(iia), accepts assessee’s  stand that conversion of wind energy into electric energy by windmill amounts to ‘manufacture ’ as contemplated u/s 32 (1)(iia),  relies on Madras HC ruling in Atlas Export Enterprises;  Third member dissents with Accountant member view that in light of ‘substantive’ amendment made by Finance Act 2012 to extend & include activity of ‘generation of power’ under the ambit of Sec 32(1)(iia) with effect from  April 1, 2013, benefit of initial depreciation/ additional depreciation could not be extended to windmills acquired prior to AY 2013-14;  Third member agrees with Judicial member view that amendment brought to Sec.  32(1)(iia) was clarificatory and not ‘substantive’ in nature, accordingly was retrospective in application:ITAT 

Friday, 24 February 2017

Amounts paid as part of lease premium towards acquisition of leasehold rights, were not 'rents' warranting obligation u/s 194-I

 THE ISSUE IS - Whether amounts paid as part of lease premium in terms of the time-schedules to the Lease Deeds executed between a builder and an industrial township, can be subjected to TDS being capital payments. No is the verdict.

Saturday, 11 February 2017

Whether manufacturer can be denied additional depreciation on machineries acquired by it, merely because they are installed at later date - NO: HC

THE ISSUE IS - Whether an assessee manufacturer can be denied additional depreciation u/s 32(1)(iia) on machineries acquired by it, merely because they were installed belatedly and that too on account of replacement of damaged parts. NO is the verdict.

Sunday, 5 February 2017

Penalty on receiving cash more than 3 Lakh - even from Bank.



The FM introduced the new section 269ST where it was held that "no person shall receive an amount of Rs 3 lakh or more by way of cash in aggregate from a person in a day; in respect of a single transaction; or in respect of transactions relating to one event or occasion from a person".
However, the restrictions will not apply to the government, any banking company, post office savings bank or co-operative bank.
It means that any person cant withdraw more than 3 lakh from a same bank in a day. 
The important words of the section are
(a) A Person receiving
(b) A person giving
(c) 3 Lakh
(d) in a day.