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Bangalore Branch of SIRC of the Institute of Chartered Accountants of India

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June 2012


June 2012

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Bangalore Branch of SIRC of the Institute of Chartered Accountants of India

Contd. from previous page The main intension of these programs is to train, update and make our professional colleagues empowered on the subjects of their interest. During the past couple of months we have noticed that some of the programs recording lesser attendance; I request members to attend the programs in good numbers and make the programs successful and also comply their CPE credits. May 2012 activities Bangalore branch being the largest and the most vibrant branch in the country conducts activities for its members and students and extends services to the general public. During May 2012, Bangalore branch has conducted the following programs: Members: • Workshop on Practical Issues in TDS & E-filing • Workshop on Information Technology (Excel) • Seminar on ‘Internal Audit’ in association with SIRC of ICAI • Certificate Course on Indirect Taxes • CPE Teleconferences • Study Circle Meets • Impact Seminars All the programs were well appreciated by our members by way of attending in good numbers. Bangalore Branch has continued its initiative of web-casting for the major programs during the month. All the programs of Bangalore branch are recorded and hosted at branch website (ICAI TUBE). I request the members/students to make use this service at www.bangaloreicai.org/resources/icai-tube. CA Students: • Examination co-ordination • Coaching classes • Crash course for CPT exams General Public and other students: • Investor Awareness Program • Career Counselling at Nitte Minakshi Institute of Technologies, Yelahanka, Bangalore. On behalf of Bangalore Branch, I thank all the speakers, resource persons, coordinators, professional colleagues and employees of Bangalore branch for support all the events and programs for the month. I also thank all the participants for making the events successful. June 2012 activities The focus for the month of June would be on Karnataka State Level Conference and Programs of various committees of ICAI. The details of June 2012 programs are: ‘Jnana Dasoha - Knowledge Dissemination…….’ - a two day State Level Conference at Hubli in association with all the branches of Karnataka The State Level Conference is the annual fest for all the branches in Karnataka to join together, to celebrate knowledge and fellowship. First time in the history, this two day program (State

level Conference) is moved out of Bangalore and all of us thought this program can be hosted on rotation basis by all the branches in the State. ‘Jnana Dasoha - Knowledge Dissemination’ , as the name portrays, this program is packed with paper presentation by reputed speakers of the profession across country on various topics of professional interest, spiritual session, entertainment, etc. I request members of Bangalore branch to participate in large numbers to this program and make this initiative a successful one. National Conference on Cloud Computing - Opportunities for CAs Bangalore branch is the first in the country to host National Conference on Cloud Computing - Opportunities for CAs. Most of the applications and technology companies are moving to this innovative technology and in this scenario it is essential for Chartered Accountants to understand the impact of cloud computing on our profession. This program focuses on basics of Cloud Computing, impact and opportunities for CA profession, Tax implications in Cloud Computing environments (case studies) and Audit Risk in Cloud Computing environment. Seminar on ‘How to be successful in practice’ This program is the initiative of Committee for Members in Industry; this program is designed to enable members in practice with the required infrastructure, networking, skills, etc. Also this seminar will portray new avenues, LLP of CA practice. Other Programs • ISA Meet • CPE Teleconferences • Study Circle Meets • Impact Seminars Reading Rooms Board of Studies (BOS) of The Institute of Chartered Accountants of India intends to start reading room facilities across Bangalore in Association with Schools, Colleges and Libraries, etc. Wherein BOS will assist by way of grants for Furniture, Air-conditioning, etc. required for such facility. I request the members in association with such institutions can contact Bangalore branch to facilitate the initiative. Web-casting & ICAI Tube Major programs at Bangalore Branch are live telecasted and all the programs are archived and available on demand. All the recorded programs of Bangalore branch are hosted in the Bangalore branch website, to watch them please visit www.bangaloreicai.org/resources/icai-tube. With warm regards,

CA. Nithin Mahadevappa Chairman

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CALENDAR OF EVENTS - June & July 2012 Date/Day 06.06.12 Wednesday 08.06.12 Friday

Topic /Speaker

09.06.12 Saturday 13.06.12 Wednesday 14.06.12 Thursday

“Taxation & Issues of HUF” Mr. H. Naginchand Khincha CPE Teleconference Programme on “Definition of Service covering Negative List” CA. Madhukar Narayan Hiregange, Central Council Member “FEMA-An overview & Recent Issues” (Impact Seminar - No Fee) CA. G. Sudhakar “SOX and Carbon Credit” (Impact Seminar - No Fee) CA. Aman Dutta & CA. Bose Varghese Fourth ISA Meet Delegate Fee: Nil For details refer Page No:9

15.06.12 Friday

National Conference on Cloud Computing - Opportunities for CAs Delegate Fee:Rs.1,500/For details refer Page No:18

20.06.12 Wednesday

Study Circle Meeting : Tax & Regulatory implications on Real Estate Sector CA. Anand Kakarla & CA. Archana Korlimarla ‘Jnana Dasoha - Knowledge Dissemination…….’ - a two day State Level Conference

22.06.12 Friday & 23.06.12 Saturday 27.06.12 Wednesday 28.06.12 Thursday

29.06.12 Friday

30.06.12 Saturday 01.07.12 Sunday 04.07.12 Wednesday 11.07.12 Wednesday

Delegate Fee:Rs.2,000/For details refer Page No: 13 Demonstration of XBRL Tools (Impact Seminar - No Fee) CA. V. Rangan & Mr.Karthik Ganeshan For details refer Page No:16 Workshop on Information Technology Working Module of Revised Schedule VI with reference to Excel Spreadsheet -Connectivity from Trail Balance to Final Accounts CA. Shivakumaar H. Delegate Fee: Rs.300/- Participation restricted to 40 on first come first serve Workshop on Information Technology Understanding Internet in depth with reference to Digital Signature & efiling - Online hands on workshop Mr. S.M. Hussain, ITT Faculty, ICAI, Bangalore Delegate fee: Rs. 300/- Participation restricted to 40 on first come first serve Seminar on ‘How to be successful in practice’ - CMII Programme Delegate Fee: Rs.500/For details refer Page No:17 CA Day Celebrations “Labor Law” Sri. B. C. Prabhakar, Advocate Service Tax Law - Negative List Concept (Impact Seminar - No Fee) CA. G. Lakshminarayan

Venue/Time

CPE Credit

Branch Premises 06.00pm to 08.00pm Branch Premises 11.00am to 01.00pm

2 hrs

Branch Premises 10.00am to 01.00pm Branch Premises 05.30pm to 08.30pm

3 hrs

Hotel Fortune Select JP Cosmos, Cunningham Crescent Road, Bangalore

06.00pm to 08.30pm Hotel Le- Meridien, Sankey Road, Seshadripuram, B'lore 09.00am to 06.00pm Branch Premises 06.00pm to 08.00pm Bio Tech Hall, B.V.B. Engg. College Vidyanagar, Hubli-580021 Branch Premises 05.30pm to 08.30pm ITT South Centre, ICAI Netkallapa Circle, Basavangudi, B'lore-4, Ph:26621434

2 hrs

3 hrs 2 hrs 6 hrs 2 hrs 12 hrs 3 hrs 3 hrs

05.00pm to 08.00pm ITT South Centre, ICAI Netkallapa Circle, Basavangudi, B'lore-4, Ph:26621434

05.00pm to 08.00pm Branch Premises 09.00am to 05.30pm Branch Premises 09.30am onwards Branch Premises 06.00pm to 08.00pm Branch Premises 05.30pm to 08.30pm

3 hrs 6 hrs 2 hrs 3 hrs

Note : High Tea at 5.30 pm for programmes at 6.00 pm at Branch Premises. Advertisement Tariff for the Branch Newsletter Colour full page Outside back ` 30,000/Inside back ` 24,000/-

Inside Black & White Full page ` 15,000/Half page ` 8,000/Quarter page ` 4,000/Advt. material should reach us before 22nd of previous month.

Editor Sub Editors

: CA. Nithin Mahadevappa : CA. Ravindranath. S.N CA. Prasad. S.R CA. Shivakumar. H

Cover Page Subhashita Translation by : CA. Allama Prabhu M.S.

DISCLAIMER: The Bangalore Branch of ICAI is not in anyway responsible for the result of any action taken on the basis of the advertisement published in the newsletter. The members, however, bear in mind the provision of the code of ethics while responding to the advertisements. The views and opinions expressed or implied in the Branch Newsletter are those of the authors and do not necessarily reflect that of Bangalore Branch of ICAI.

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Bangalore Branch of SIRC of the Institute of Chartered Accountants of India

TAX UPDATES APRIL 2012

INCOME TAX

CA. Chythanya K.K., B.Com, FCA, LL.B., Advocate

a) 342 ITR – Part 3 to 6

PARTS DIGESTED: b) 343 ITR – Part 1

VAT, CST, ENTRY TAX, PROFESSIONAL TAX PARTS DIGESTED: a) 49 VST – Part 3 to 6 b) 50 VST – Part 1 c) 13 GSTR – Part 9 d) 72 KLJ – Part 3 & 4 e) 17 KCTJ – Part 1 Reference / Description

2012 (72) Kar. L.J. 289 (HC) (DB): Ibex Engineering Pvt. Ltd. v. State of Karnataka - In the instant case the assessee had manufactured moulds and retained with itself for use in manufacture of other goods for export. The ‘tool development charges’ was received by the Assessee from his foreign customers in respect thereof. Assessee contended that the transaction does not amount to sale in absence of delivery of moulds to buyers and that even if it was considered as sale, it should be treated as export sale and that in either case said receipt does not form part of taxable turnover. The Karnataka High Court held that ‘tool development charges’ received by the Assessee was nothing but sale consideration for moulds and once same was accepted by Assessee, property in moulds passed on to buyer, and holding of moulds by Assessee thereafter was on behalf of and for purpose of buyer. Delivery of goods to buyer, need not be actual or physical, it can be symbolic also and it can be to seller himself. Therefore, the court held the said transaction amounts to sale.

The Court further held that merely because buyer was outside India, transaction cannot be taken as export sale when goods had not crossed customs frontier of India and as goods had not moved out of State, it cannot also be taken as inter-State sale. Therefore, the court held that the said transaction has to be considered as local or intra-State sale attracting levy of tax under the State Act. 2012 (72) Kar. L.J. 289 (HC) (DB): Koutons Retail India Ltd. v. ACCT In the instant case there was an entry of goods into local area by way of stock transfer, which the Assessee had not paid tax. The Assessing Authority issued a proposition notice proposing to tax on the same along with interest and penalty. However, Assessee paid the tax along with the interest and sought for waiver of penalty and also submitted that Assessee had omitted to pay tax in time for the reason that the Assessee had mistakenly believed that the tax was not payable in respect of goods received on stock transfer basis. But, the Assessing Authority levied penalty without recording reasons therefor. The Karnataka High Court observing that Assessee had paid tax due along with interest thereon before issue of show-cause notice and also observing that Assessee had omitted to pay tax in time for the reason that the Assessee had mistakenly believed that the tax was not payable in respect of goods received on stock transfer basis held that the Assessing Authority was not justified in re-imposing penalty without recording reason therefor.

c) 205 Taxman – Part 5 d) 206 Taxman – Part 1 to 4 e) 14 ITR (Trib) – Part 7 f) 15 ITR (Trib) – Part 1 to 4 g) 135 ITD – Part 5 to 8 h) 38 CAPJ – Part 2 & 3 i) 44-A BCAJ – Part 1 j) 60 TCA – Part 9 & 10 Reference / Description

[2012] 343 ITR 1 (AAR): Citrix Systems Asia Pacific Pty. Ltd., In re - In the instant case the Applicant was a Company incorporated in Australia and the provider of software services. It had entered into agreements with Indian distributors for the distribution and sale of its software and hardware products in India. In the year 2006, the Applicant entered into a distribution agreement with I, an Indian Company engaged in the business of distribution of computer software and hardware, under which I was appointed as non-exclusive distributor of the products of the Applicant in India. For the software products, Citrix XenApp, sale and collection was made through the distributor, but there was no physical delivery of the product made to the distributor. On the basis of the demand of the customers, the distributor placed orders of purchase with the Applicant and made payments to the Applicant. The Applicant then directly transmitted a “key” to the end-user customer who, on receipt of the key, downloaded the software from the server of the Applicant. In addition, I also facilitated the execution of the Citrix

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subscription advantage programme between the Applicant and its existing customers. The programme was a package of support services during the period of the programme, including product version updates, subscription advantage, news and updates and secure portal access. The Applicant sought an advance ruling on the taxability in India in respect of payments made by I to it for the software product. The Authority for Advance Ruling on the stated facts, ruled that: (a) The payments received by the Applicant from the distributor for sales of the software products were in the nature of royalty within the meaning of Section 9(1)(vi) of the IT Act; (b) The payments concerned would be royalty as defined in Article 12 of the DTAA between Indian and Australia; (c) The payment received by way of subscription for the updates would be the payment received for grant of a right to use the copyright embedded in the subscription advantage programme and hence will be royalty; (d) The payment received by the Applicant from the distributor for the Citrix subscription advantage programme was royalty within the meaning of Clause (a) of Article 12(3) of the DTAA between India and Australia. (e) As the Applicant did not have permanent establishment in India, the amount was liable to be taxed in India under Article 12(2) of the DTAA (f) The distributor I was required to withhold taxes in India at the time of making payments to the Applicant in terms of Section 195

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of the IT Act at the rate of 10% of the gross amount of royalty as provided under Article 12(2) of the DTAA. The permission granted by the software owner to the distributor to make an offer of sale is one of the copyright rights and the consideration paid in respect of may partake the character of royalty under the Act. However, under the Indo USA treaty, unless the consideration is paid for use or right to use, it cannot be regarded as royalty. This important difference between the Act and the DTAA has been unfortunately misconstrued. [2012] 343 ITR 30 (Karn. - HC): Anil Kumar v. ITO and Others - In the instant case, the Assessee was the proprietor of M engaged in purchase and sale of non-ferrous metals, scraps, skimming ashes and dresses chemicals and other commodities. The purchases were made from one country and exported to another country at a margin of profit by arranging direct shipment from the selling country to the purchasing country. The proceeds were received through convertible foreign currency and payments were made on convertible foreign currency. The Assessee for the assessment year 2001-2002, claimed 100% deduction under Section 80HHC of the IT Act and subsequently claimed 80% deduction by revising the return. The Assessing Officer and the Tribunal held that the Assessee was not entitled to special deduction on the basis that the Assessee had not exported the goods from the Indian soil after crossing its customs barrier. The Karnataka High Court held that two conditions which require to be satisfied before an assessee claims deduction under this provision are:

(i) the assessee must be engaged in the business of export out of India of any goods or merchandise; (ii) sale proceeds of such goods or merchandise exported out of India are recoverable by the assessee in convertible foreign exchange. If these two conditions are satisfied, the assessee can claim deduction. Further the Court observed that Explanation read with the main Section do not in any way indicate that, to be eligible for the benefit of deduction, the goods or merchandise has to emanate from India. Therefore, the Court held that law does not require the goods to be physically exported out of India and hence the Assessee was eligible for deduction under Section 80HHC of the IT Act. The honourable Karnataka High Court appreciated that as against physical import into the country and subsequent export of goods out of India, if a person buys goods in one country and directly sells the same to its customer in another country, he is eligible for benefit of exemption attached to export. [2012] 343 ITR 81 (Cal. - HC): ABN Amro Bank, N.V. v. CIT and another - In the instant case the Assessee was a Netherlands Company and its principal branch office was in India. In the course of its banking activities, the branch office in India remitted substantial funds to its head office as interest. On appeal, two questions were raised (i) whether interest payment made by the branch office in India to its head office abroad was to be allowed as a deduction in computing the profits of the assessee’s branch in India, and (ii) whether in making such payments to the head office, the branch office in India was required to deduct tax at source under Section 195 of the IT Act.


Bangalore Branch of SIRC of the Institute of Chartered Accountants of India

The Calcutta High Court held that under Article 5(2)(b) of the DTAA between India and the Netherlands, provides that a branch is to be taken as permanent establishment and if it is further read with Article 7, this permanent establishment or branch is to be treated as separate unit. Article 7(2) specifically states that it is to be considered as a distinct and separate enterprise and its profits are to be so computed as profit properly attributable to such a permanent establishment. In the calculation of such profit by a banking enterprise, interest paid can be taken as a deduction by virtue of Article 7(3) read with Article 11(7). Further the Court held that, no tax had to be deducted under Section 195(1) of the IT Act for the reason that head office was not chargeable to tax on such interest payments by virtue of the Agreement between India and the Netherlands. Hence, the Court held that, there was no obligation on the branch office in India to deduct tax while making interest remittance to its head office or any other foreign branch. The honourable Calcutta High Court held that the permanent establishment and the head office are to be regarded as two different persons. However, as the income attributable to head office (which included payment made by PE) is not within the tax jurisdiction of India PE need not deduct tax. With due respect, it is not possible to treat permanent establishment and head office as two different persons. The relevant article 7 of the DTAA deals only with a hypothesis and not a fiction that in attributing the profits of the permanent establishment, it should be treated as distinct and separate from the head office. [2012] 205 Taxman 389 (Karn. HC); 18 taxmann.com 76 (Karn. -

HC): CIT v. Infosys Technologies Ltd. - In the instant case the Assessee was doing business of developing and exporting software. It received certain amount by sale of software system ‘Eagle’ developed by it to its wholly owned foreign subsidiary. The Assessee offered said income as longterm capital gain while computing total income and was set-off against long-term loss. The Assessing Officer held that said income was received from business of Assessee. However, the Assessing Officer rejected the alternative plea of the Assessee that if said income was to be treated as business income, same was entitled to exemption under Section 10A of the IT Act holding that Assessee, having claimed said income as long-term capital gain, could not claim exemption under Section 10A of the IT Act. The Karnataka High Court held that if Assessee was entitled to exemption under Section 10A of the IT Act as STP unit, fact that Assessee had claimed the said income as long-term capital gain should not come in way granting the exemption. Therefore, the Court held that the Assessee was entitled to exemption admissible under Section 10A of the IT Act. [2012] 205 Taxman 396 (Karn. HC); 18 taxmann.com 57 (Karn. HC): CIT v. Fusion Software Engg. (P.) Ltd. - In the instant case the Assessee claimed exemption under Section 10A in respect of its manufacturing unit claimed to have been established in Software Technology Park (STP). The Assessing Officer disallowed exemption holding that it was reconstruction of earlier establishment. The Tribunal on material on record held that it was not a case of reconstruction of already existing business and Assessee could not be

denied exemption under Section 10A merely on the ground that no separate accounts were maintained regarding STP unit and other unit. The Karnataka High Court held that finding arrived by the Tribunal was pure finding of fact based upon material on record, therefore, could not at all be said to be arbitrary or capricious so as to call for interference. [2012] 206 Taxman 19 (AAR); 18 taxmann.com 325 (AAR): SKF Boilers and Driers (P.) Ltd., In re In the instant case the Applicant was an Indian Company. It was engaged in the manufacture and supply of Rice Par Boiling and Dryer Plants as per the requirements of the customers. It had received an order from Pakistan. The order was received through two agents situated in Pakistan. The plant was shipped and on completion of the export order, commission became payable to the agents as per the agreed terms. The question that arose for consideration was whether the income of the non-resident agents can be deemed to accrue or arise in India and whether tax deduction under Section 195 of the IT Act would apply? The Authority for Advance Ruling ruled that the fact that agents had rendered services abroad in form of soliciting orders and that commission was to be remitted to them abroad, were wholly irrelevant for purpose of determining situs of their income. Since order was executed in India, right of agent to receive commission arose in India and therefore, income arising on account of commission payable to the two agents is deemed to accrue and arise in India and is taxable under the IT Act and accordingly, withholding under Section 195 of the IT Act would apply. With due respect, the honourable authority seems to have overlooked

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Explanation 1(i) which clearly provides that where no operations are carried out in India, no business income is deemed to accrue or arise in India. Further, the honourable authority may not be right in assuming that right to receive commission arises in India on the basis of execution of order in India. The place of execution of order by the principal may not be relevant in determining the place of earning the commission income, particularly when the agent has not carried out any operations in India. [2012] 206 Taxman 22 (Ker. – HC); 19 taxmann.com 157 (Ker. - HC): CIT v. Smt. Pushpa Vijoy - In the instant case the Assessee was following cash system of accounting. She was holding cumulative terms deposits in a bank entitling her for interest, which was periodically credited by bank in deposit account of Assessee. During previous years relevant to assessment years 1997-98 to 2000-01, bank deducted tax at source on interest credited in deposit account of assessee and issued TDS Certificates to her. Though Assessee in returns of income filed for assessment years 1997-98 to 2000-01 did not disclose interest income from these deposits, Assessee in her income claimed credit of tax based on TDS certificates issued by bank. The Kerala High Court held that in view of provisions of Section 199 Assessee is entitled to credit of tax based on TDS Certificates only in assessment year in which income from which tax is deducted is assessed to tax. Therefore, the Court held that Assessee was not entitled to credit of tax deducted by bank. [2012] 206 Taxman 137 (Karn. – HC); 20 taxmann.com 26 (Karn. - HC): CIT v. Rational Software Corpn. India Ltd.

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- In the instant case the Karnataka High Court held that the consideration paid by Indian customers or end users to Assessee, a foreign supplier, for transfer of right to use software/computer programme in respect of copyrights falls within mischief of ‘royalty’ as defined under sub-Clause (v) to Explanation 2 to Clause (vi) of Section 9(1) of the IT Act. [2012] 206 Taxman 150 (Karn. HC); 19 taxmann.com 17 (Karn. HC): CIT v. Sambandam Udaykumar - In the instant case Assessee sold certain shares and earned capital gains and within 12 months made investment for construction of a residential house. Assessee claimed exemption under Section 54F of the IT Act with regard to said portion. The Assessing Officer denied exemption on the ground that construction was not complete within three years as certain work like flooring, electrical fittings, fittings of door shutters, etc., were still pending. The Karnataka High Court observed that the registered sale deed was executed showing transfer of property in Assessee’s favour and Assessee was in possession and occupation of said property. Therefore, the Court held that once it is demonstrated that consideration received on transfer of a capital asset has been invested either in purchase or in construction of a residential house, even though these transactions are not complete in all respects as required under law, same would not disentitle Assessee from benefit of exemption under Section 54F of the IT Act. [2012] 15 ITR (Trib.) 158 (Mumbai): DCIT v. Indo-American Jewellery Ltd. - In the instant case the Assessee’s operating profit margin was 3.56 per cent on sales and 3.70 per cent on cost whereas that of the

comparables used by the Assessee was 3.27 per cent of sales and 3.82 per cent on cost. The Transfer Pricing Officer rejected the same and made fresh search to find companies the comparable business as that of the Assessee. Accordingly made the adjustment of RS. 3,39,63,606/- to the value of the international transactions. The Mumbai Tribunal finding that the operating profit or sales of the Assessee at 3.56 per cent being higher than the industry margin, held that the transactions between the Assessee and its associated enterprises were at arm’s length. The Mumbai Tribunal while holding so held that there was no transfer of profit by the Assessee outside India, as per the Assessee’s submission that: (a) Since the tax rates were higher in the USA compared with those of India, there would not be any incentive to transfer the profits to higher tax chargeable regions especially when the company enjoyed deduction under Section 80HHC of the IT Act. (b) The Associated Enterprises had earned meagre profit or incurred losses as compared to the profits of the Assessee The Tribunal also held the following: (a) Unless a proper method was followed, comparables were chosen and selected after doing proper functions, assets and risks study and adjustments were made to the extent possible, it would be unfair to summarily reject the transfer pricing analysis made by the Assessee. (b) The Assessing Officer of the Transfer Pricing Officer had not made out a case to establish that the comparables used by the Assessee deserves to be rejected.


Bangalore Branch of SIRC of the Institute of Chartered Accountants of India

(c) The Transfer Pricing Officer cannot reject the transfer pricing study made by the Assessee as required under the Transfer Pricing Regulations and Guidelines without any cogent reasons. [2012] 135 ITD 351 (Cochin); 18 taxmann.com 359 (Cochin – Trib.): Brilliant Study Centre v. ACIT - In the instant case the Cochin Tribunal held that expenditure on books incurred by a tutorial institution, preparing students for professional entrance examinations, is a capital expenditure entitled to depreciation under Section 32(1) and not revenue expenditure. [2012] 135 ITD (BN – XVIII) Part 7[2012]; 20 taxmann.com 44 (Ahmedabad – Trib.): KHS Machinery (P.) Ltd. v. ITO - In the instant case the Ahmedabad Tribunal held that where royalty was paid in a continuous and phased manner and there was no comparable and no finding about ordinary profits, there

would not be application of arm’s length price. In this interesting decision, one may infer that in the case of a very unique international transaction where comparable transaction is not available, it may not be unreasonable to assume that the international transaction is carried out at arm’s length price. [2012] 6 International Taxation 580[2012]; 19 taxmann.com 123 (Delhi – Trib.): CSC Technology Singapore Pte. Ltd. v. ADIT - In the instant case the Delhi Tribunal held that in absence of finding that delay in payment of royalty/FTS was with a view to defer payment of tax, it was to be held that royalty/FTS which had accrued as income to a foreign company, could not be taxed in source country (being India), unless this amount had been received by foreign company. Interestingly, this is the mandate as per the DTAA also which deals with royalty ‘paid’ and not ‘credited ‘.

Accordingly, royalty becomes the income of the recipient only upon receipt as per the DTAA which overrides Income tax Act [2012] 6 International Taxation 585; [2012] 19 taxmann.com 272 (Mumbai – Trib.): Crompton Creaves Ltd. v. DCIT - In the instant case the Assessing Officer passed an order holding that payments made by Assessee to non-residents without deducting withholding tax, was in nature of fees for technical services rendered and Assessee was to be treated as an assessee in default under Sections 201(1) and 201(1A) of the IT Act. The Mumbai Tribunal held that as no assessment had been made in hands of payee in respect of sums received from Assessee and similarly no proceedings had been taken against it till date for assessing such income and also time limit for issuing notice under Section 148 also had come to an end held order passed by the Assessing Officer was invalid.

Fourth ISA Meet @ Bangalore On Thursday the 14th June 2012 from 6.00 pm to 8.30 pm

2 hrs

CPE

Venue: Hotel Fortune Select JP Cosmos, Cunningham Crescent Road Bangalore Organised by Committee on Information Technology, ICAI Time

Particulars

6.00 p.m. 6.30 p.m. 6.45 p.m. 7.00 p.m. 7.15 p.m.

Registration & High Tea Welcome Address IT Initiatives for Members ISA Professional Opportunities XBRL – The Road Ahead

8.00 p.m. 8.25 p.m.

Hosted by Bangalore Branch of SIRC of ICAI Speaker

CA.Nithin Mahadevappa, Chairman, Bangalore Branch CA. Atul Bheda, Chairman , IT Committee, ICAI CA. K.Raghu, Director, XBRL India and Member – XBRL International Membership Development Committee Question-Answers/ Concerns Areas/Success Stories

Open House Vote of Thanks Please register by sending a mail to blrregistrations@icai.org. No Registration Fees. Participation is open to ISA Members only

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RECENT JUDICIAL PRONOUNCEMENTS IN INDIRECT TAXES CA. N.R. Badrinath, Grad C.W.A., F.C.A. CA. Madhur Harlalka, B. Com., F.C.A Central Excise: 1. Valuation of Physician Samples: The appellant is engaged in manufacture of physician samples on their own account and on others account. The physician samples manufactured are cleared on payment of duty at the contracted price to the principal manufacturer at the transaction value. The dispute in the present appeal relates to the valuation of physician samples manufactured on their account and others account. The Tribunal held that physician samples manufactured and cleared to others on principal to principal basis for a consideration and which were further distributed by the buyer free of cost to physicians / doctors should be assessed to duty on the transaction values. In respect of physician samples manufactured by the appellants on their own behalf and distributed free of cost, the issue is no more open for arguments inasmuch as the Larger Bench of the Tribunal in the case of Cadila Pharmaceuticals Limited Vs CCE, Ahmadabad (2008-TIOL-1668-CESTATAHM-LB). [Allianz Bio Sciences Private Limited and others Vs CCE, Puducherry, 2012-TIOL570-CESTAT-MAD] 2. Exemption Certificate: Appellant has cleared of excisable

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goods to Indian Navy without payment of duty under Notification no. 64/95. The exemption was denied on the ground that requisite certificate under the notification was not produced for verification at the time of clearance of goods. Therefore, the exemption was denied. The Tribunal held that the assessee is eligible for the benefit of exemption, since the veracity of certificate is not questioned and challenged by the department and further the invoice shows the necessary details of the certificate. Hence the substantial benefit should not be denied to the assessee. [A.R. Engineering Works Vs CCE, Kolkata-II, 2012 (278) E.L.T. 495 (Tri–Kolkata)] Customs: 3. Validity of non speaking order passed by the department: The question of law before the Honourable Delhi High Court was whether the order passed by the Tribunal disposing of the appeal by recording the reasons which do not specifically deal and examine the contentions and issues raised was right. It is held that such an order is virtually non-speaking which will not meet the mandatory requirements of law. The contentions and issues raised by the appellants on facts and law have to be specifically examined,

dealt with and considered. A speaking and reasoned order is required to be passed after referring to the evidence and material relied upon by the parties. It is because of this reason the order passed by the Tribunal is set aside and the matter is remanded back to Tribunal to rehear the arguments and thereafter to pass a reasoned and speaking order as is mandated and required in law. [Nitesh Kumar Kedia and others Vs. CC, Import & General, 2012TIOL-331-HC-DEL-CUS] 4. Valuation and restriction on import of cars: The issue before the Tribunal pertains to the assessable value of the car being imported and the non-satisfaction of licensing restrictions to import the car. A person who has lived in a foreign country for a period of 3 years and above is entitled to import a car without licence provided the vehicle was in his use for a minimum period of one year before his return to India. The Tribunal upheld that duty is to be paid on enhanced value as determined by lower authority at the time of redemption of vehicle and upheld levy of penalty since the vehicle was imported violating licensing restrictions and also attempted to clear by declaring a lower price. [Sri Channa Kranti Kumar Vs. CCCEST, Hyderabad, 2012-TIOL-449-CESTAT-BANG] 5. Time limit is not applicable for refund of duty paid under protest: The issue before the Tribunal pertains to the time limit for claiming refund of customs duty paid under protest. The appellants applied for the refund claim upon the Tribunal’s decision


Bangalore Branch of SIRC of the Institute of Chartered Accountants of India

in favour of them in the matter of litigation for adoption of assessable value. The claim for refund was rejected by lower authorities on the ground that the refund was barred by limitation of time. The Tribunal held that refund claim is not hit by time limitation in the view that duty was paid on enhanced assessable value during assessment of bill of entry and that the same was paid under protest and when valuation is challenged in higher appellate forum and settled in favour of them. [M/s Big Apple Mfg Big Apple Arcade, Secunderabad Vs CC, Hyderabad, 2012-TIOL-454CESTAT-BANG] 6. Re-import of goods exported: The customs department rejected the claim of exemption of customs duty under notification no. 94/96Cus dated 16.12.1996 on the ground that the chassis with engine without body were exported whereas the goods imported were fully built buses along with fittings such as Air Conditioner, T.V., video, coffee maker, music system and refrigerator and the goods reimported were not the same as exported. The Tribunal upheld the decisions of lower authorities since the condition the exported and imported should be the same for availing benefit of notification no. 94/96 is not satisfied. [M/s Ashok Leyland Ltd Vs CC (Import), Nhava Sheva, 2012TIOL-527-CESTAT-MUM] 7. Refund of Special Additional Duty (SAD) paid upon import under Notification No. 102/ 2007-Cus: The issue before the Tribunal is whether transfer of

right to use can be treated as sales for the purpose of claiming refund of SAD paid on imported goods under the Notification no. 102/ 2007-Cus. The Tribunal held that ‘sale’ includes the transfer of right to use any goods for any purpose for cash or deferred payment or other valuable consideration and VAT collected on the goods supplied to consumers on right to use basis, therefore SAD is eligible as refund under notification no. 102/2007-Cus. [C.C.(ICD), New Delhi Vs. Reliance Communications Infrastructure Ltd, 2012 (279) E.L.T. 85 (Tri.- DEL)] CENVAT Credit: 8. Refund of Cess paid under Notification No. 41/2007-ST: The issue before the Tribunal, whether refund of cess on export of goods is covered by the Notification No. 41/2007-ST. The Tribunal held that cess also is eligible as refund by placing reliance on the Board’s Circular No. 134/3/2011-ST dated 8.4.2011 wherein it was clarified that the exemption granted from service tax also applies to the education cess leviable as a percentage of basic service tax payable. [CCE, Mangalore Vs M/s. Kudremukh Iron Ore Company Ltd, 2012-TIOL-496CESTAT-BANG] 9. Refund of service tax paid on input services used in provision of exempted services: In case of export of goods, the ownership of goods vests with the exporter till delivery of the goods at the port and therefore, the port of export should be treated as place of

removal. Customs House Agent Services, Transit Insurance Services and Good Transport Agency Services used up to port of export will qualify as input services under Rule 2(l) of the CENVAT Credit Rules, 2004. Therefore, service tax paid on the above services will be eligible as CENVAT credit. [CCE, Belgaum Vs M/s. Ken Agritech Private Limited, 2012-TIOL-563CESTAT-BANG] Service Tax: 10. Valuation of Taxable Services: The issue before the Tribunal is whether the reimbursement of transportation cost, loading and unloading from the customers through debit notes attracts service tax and whether service tax paid on such services will be eligible as CENVAT credit. The appellants were providing crushing, grading of iron ore and services like unloading, loading and transportation iron ore. The transportation activity was done by others and paid by the Appellant along with service tax payable for transportation of goods which was subsequently reimbursed from customer. The Tribunal held that such reimbursement of expenses billed by appellants form part of the value of taxable service therefore service tax is to be paid on the full value under the head applicable for crushing and grading. The appellants were eligible to claim CENVAT credit on service tax paid on the services received from sub-contractors as the services were provided to the appellants subject to the condition that the

11

June 2012


appellants pay tax on the full value of service including the amount accounted as reimbursement for transportation. [Hira Industries Limited Vs CCE, Raipur 2012TIOL-566-CESTAT-DEL] 11. CENVAT credit based on TR-6 challan: The issue before the Tribunal was whether TR-6 challan is valid document for availment of CENVAT credit under Rule 9 of CENVAT Credit Rules, 2004. The Tribunal held that CENVAT credit can be taken on the strength of TR 6 challan as in case of import of services, invoice received from foreign collaborators would not show service tax element. The Tribunal has relied on its own decision in the case of CCE, Goa Vs. Essel Pro Pack Limited

(2007 (8) S.T.R. 609). [CCE, Gurgaon Vs Sonasomic Lemforder Components, 2012 (26) S.T.R. 338 (Tri – DEL.)] 12. Service of order: The issue is whether the copy of order sent by department through speed post is a sufficient compliance to the provisions of Section 37C(1)(a) of Central Excise Act, 1944. The High Court held that it is mandatory on the part of the revenue either to tender a copy of decision or to serve a copy of the order by registered post with acknowledgement due to the assessee and in the present case since the same is not done, the requirement of Section 37C of the Central Excise Act, 1944 has not been complied with and service of

order through speed post is not a valid mode of servicing the order. [Amidev Agro Care Private Ltd Vs Union of India, 2012 (26) S.T.R. 299 (Bom)]

Congratulations

CA. A. Rafeq has been co-opted as member of Board of Studies of ICAI for the year 2012.

IMPORTANT DATES TO REMEMBER DURING THE MONTH OF JUNE 2012 05-Jun-12

Payment of Central Excise Duty for the month of May 2012 Payment of Service Tax for the month of May 2012 (in case of persons other than individual, proprietor & partnership firms)

06-Jun-12

e-Payment of Central Excise Duty & Service Tax for the month of May 2012

07-Jun-12

Payment of Tax deducted & Tax Collected in the month of May 2012.

10-Jun-12

Filing of monthly returns of Central Excise for the month of May 2012.

15-Jun-12

Filing of TDS quarterly return in Form 27Q in case of credit to the account of Non-resident at the year end. Filing of TDS quarterly return Form 24Q and 26Q for the Quarter – 4 for the FY 2011-12 Due date for payment of First installment of Advance Tax in case of companies Due date for filing of VAT 120 under KVAT Laws. Payment of Provident Fund for the month of May 2012.

20-Jun-12

Due date for filing of VAT 100 under KVAT Laws. Payment of Professional Tax for the month of May 2012

June 2012

21-Jun-12

Payment of Employee State Insurance for the month of May 2012.

25-Jun-12

Filing of Monthly returns of Provident Fund for the month of May 2012.

30-Jun-12

Due date for filing of Form 26QA, 26QAA for the quarter ending March 2012

12


Bangalore Branch of SIRC of the Institute of Chartered Accountants of India

13

June 2012


REFRESHER COURSE FOR ACCOUNTANTS

June 2012

14

Members of Bangalore Co-opted to Committees of SIRC of ICAI NAME

COMMITTEE NAME

CA. Dias P Jacob

Professional Development Committee

CA. Manjunatha R S

Career Counselling Committee

CA. Venkataramani S

Committee on Taxation

CA. Prakash Chand S

Committee on Financial Markets & Investors Protection

CA. Madhava Murthy K S Committee on Public Finance and Government Accounting CA. Prasanna Kumar D

Committee on Public Finance and Government Accounting

CA. Nityananda N

Committee on Corporate & Allied Laws and Corporate Governance

CA. Thimma Reddy V

Research Committee

CA. Manoj Kumar G

Information Technology Committee

CA. Shyam Ramadhyani

Exposure Drafts Committee

CA. George Victor Crasta Branch Coordination Committee CA. Rayavarapu Ramarao Internal Audit Committee

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123456789012345678901234567890121234567890123 123456789012345678901234567890121234567890123 123456789012345678901234567890121234567890123 The first batch of the course will be conducted on the 123456789012345678901234567890121234567890123 123456789012345678901234567890121234567890123 following days: 123456789012345678901234567890121234567890123 123456789012345678901234567890121234567890123 123456789012345678901234567890121234567890123 123456789012345678901234567890121234567890123 1. 14th, 15th & 16th June 2012 and 123456789012345678901234567890121234567890123 123456789012345678901234567890121234567890123 123456789012345678901234567890121234567890123 2. 22nd & 23rd June 2012 123456789012345678901234567890121234567890123 123456789012345678901234567890121234567890123 123456789012345678901234567890121234567890123 123456789012345678901234567890121234567890123 Timings: 10.00am to 05.30pm 123456789012345678901234567890121234567890123 123456789012345678901234567890121234567890123 123456789012345678901234567890121234567890123 Fees: Rs. 5,000/- per participant, 123456789012345678901234567890121234567890123 123456789012345678901234567890121234567890123 123456789012345678901234567890121234567890123 Cheque/DD should be drawn in favour of “Bangalore 123456789012345678901234567890121234567890123 123456789012345678901234567890121234567890123 Branch of SIRC of ICAI” – payable at Bangalore. 123456789012345678901234567890121234567890123 123456789012345678901234567890121234567890123 123456789012345678901234567890121234567890123 123456789012345678901234567890121234567890123 Registrations Open on First Come First Served basis. 123456789012345678901234567890121234567890123 123456789012345678901234567890121234567890123 123456789012345678901234567890121234567890123 Venue: 123456789012345678901234567890121234567890123 123456789012345678901234567890121234567890123 123456789012345678901234567890121234567890123 Management Training Centre, 123456789012345678901234567890121234567890123 123456789012345678901234567890121234567890123 Bangalore Branch of SIRC of The Institute of 123456789012345678901234567890121234567890123 123456789012345678901234567890121234567890123 123456789012345678901234567890121234567890123 Chartered Accountants of India, 123456789012345678901234567890121234567890123 123456789012345678901234567890121234567890123 ‘ICAI BHAWAN’, 16/O, 123456789012345678901234567890121234567890123 123456789012345678901234567890121234567890123 123456789012345678901234567890121234567890123 Millers Tank Bed Area, Vasanthnagar, 123456789012345678901234567890121234567890123 123456789012345678901234567890121234567890123 Bangalore – 560052 123456789012345678901234567890121234567890123 123456789012345678901234567890121234567890123 123456789012345678901234567890121234567890123 Telephone: 080-30563500/511/512/513 123456789012345678901234567890121234567890123 123456789012345678901234567890121234567890123 Email: bangalore@icai.org / 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Nithin CA. K. Gururaj CA.Prasad S. R. 123456789012345678901234567890121234567890123 123456789012345678901234567890121234567890123 Mahadevappa Acharya Secretary 123456789012345678901234567890121234567890123 Chairman Course Co-ordinator 123456789012345678901234567890121234567890123 123456789012345678901234567890121234567890123


Bangalore Branch of SIRC of the Institute of Chartered Accountants of India

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15

June 2012


Coaching Classes: IPCC / PCC & FINAL for November 2012 and CPT for December 2012 Examinations

Admissions open for Subjectwise Coaching In pursuance of our objective to provide fruitful and quality teaching to our students, we are pleased to inform you that CPT/ IPCC/ PCC and FINAL coaching classes will be commencing at the Bangalore Branch of SIRC of ICAI from 01st June 2012 onwards. The classes will be concluded by 30th September 2012. Salient features: • Experienced, Expert and Dedicated faculty members • Methodology – Conceptual teaching • Affordable Coaching Fee • The journey of CA with Bangalore Branch is that of progress with innumerable activities of knowledge supported and guided by our senior renowned faculty members – resource persons • During the course, amazing, inspiring and motivational sessions and Orientation classes will be conducted • Concessional fee for deserving students. Hence be proud to be part of the Branch by enrolling as a student to become a proud member of this glorious profession. Fees Timings CPT Rs.4500/05.30pm to 07.30pm (Monday to Friday) & 03.00pm to 07.30pm (Saturday) & 07.30am to 12Noon (Sunday) IPCC / PCC / FINAL Rs.10000/- for Both Groups 06.30am to 09.30am (Monday to Saturday) & Rs.8000/- for Single Group 06.00pm to 09.00pm (Monday to Saturday) & Rs.2000/- for Single Subject 07.30am to 05.30pm (Sunday) Faculty Members: CA. Hariharan K, Chennai, Dr. V. Rajesh Kumar, Bangalore, CA. Sampath Kumar, Bangalore, CA. Shanthi Ganapathi, Chennai, CA.Vijay Raja, Bangalore, CA. Naveen Khariwal G, Bangalore, CA. Shivanand Nayak P, Bangalore, CA. Narendra Jain, Bangalore, CA. Vikas Oswal, Bangalore, CA. Jatin Christopher, Bangalore, CA. Malay Kumar Panda, Bangalore, CA. Naveen Raj Purohit, Bangalore, Mr. J Sundaresan, Bangalore, Mrs. Malathy Sunderrajan, CA. Shruthi B N, CA. B N Ganesh Kumar, Prof. Venkateshwara Kiran I. Bangalore, CA. Lohit Jagdish, CA. Sudheendra H, CA. Jaikumar Nair, Bangalore, Mr. S Gopichandra, Bangalore, Mr. Ajay Kumar Menon, Bangalore, Mr. S V Madhavan, Bangalore, Mrs. Anita Mehtha, Bangalore and so many other renowned resource persons. Registration Fees: DD should be drawn in favour of “Bangalore Branch of SIRC of ICAI” payable at Bangalore. For further details please contact: Tel: 080-30563500 / 511 / 512 / 513 Email: blrregistrations@icai.org / blrprogrammes@icai.org For the detailed schedule visit : www.bangaloreicai.org Appeal to members: Members are requested to show their patronage by informing and encouraging their students to join the coaching classes of Bangalore Branch.

An Impact Seminar on

“Demonstration of XBRL Tools”

3 hrs

CPE

Organized by Information Technology Committee of SIRC of ICAI with Bangalore Branch of SIRC of ICAI on Wednesday, 27.06.2012 at Bangalore Branch Premises Timings : 05.30pm to 08.30pm Topics:

• Importance of XBRL • Purpose of XBRL • How to convert Financial Statements to XBRL • Live demonstration of XBRL Software – BRANDSQUARE Speakers: CA. V. Rangan & Mr.Karthik Ganeshan Delegate Fee: Nil

CA. Nithin Mahadevappa Chairman

June 2012

16

CA.Prasad S.R. Secretary

CA. Cotha S. Srinivas Chairman, IT Committee of SIRC of ICAI


Bangalore Branch of SIRC of the Institute of Chartered Accountants of India

Seminar on How to be Successful in Practice Organized by Committee for Members in Industry Hosted by Bangalore Branch of SIRC of ICAI 0th June 2012 at Branch Premises on Saturday Saturday,, 330 Programme

Details

09:00 AM-09:30 AM

Tea and Breakfast

9:30 AM – 10.00 AM

Inauguration

10.00 AM – 11.00 AM

Technical Session I How to be a successful Practicing Chartered Accountant

11.00 AM-11.15 AM

Tea Break

11.15 AM – 12.15 AM

Technical Session II Skill Required to set up a New Practice

12.15 AM- 1.15 PM

Technical Session III Structuring of CA Professional Firm – • Proprietorship • Partnership • LLP

01.15PM -2.00PM

Lunch Break

2.00PM – 3.00PM

Technical Session IV New Professional Avenues for Chartered Accountants

03.00 PM – 03.15 PM

Tea Break

03.15 PM- 04.15 PM

Technical Session V Networking of CA firms in and outside India

04.15 PM – 05.15 PM

Technical Session VI Consulting opportunities for CA’s – Rules for starting ICAI approved Management Consulting Company

6 hrs

CPE

Delegate fee: Rs. 500/For Registration: Cheque /draft in favour of “ICAI” payable at Bangalore and sent it with duly filled Registration to Mr. Jagadish Kumar N.S, Assistant Secretary (Mobile no.09342732548, 080-30563542 Email ID: jagadish.ns@icai.org, dcobangalore@icai.org), Bangalore Branch of Southern India Regional Council, The Institute of Chartered Accountants of India, ‘ICAI BHAWAN’, 16/0, Millers Tank Bed Area, Bangalore - 560 052 For making online payment, please visit http://www.icai.org/ccm.html Programme Director(s): 1. CA. Rajkumar S. Adukia, Chairman, Committee for Members in Industry 2. CA. K. Raghu, Member, Committee for Members in Industry 3. CA. Nithin Mahadevappa, Chairman, Bangalore branch of SIRC of ICAI

AN APPEAL TO THE MEMBERS Sub: XVI Batch of the Course on Finance for Non Finance Executives (FNFE) under the aegis of Management Development Programmes (MDP) Duration: July 2012 to September 2012 Timings: 03.00 pm to 06.30 pm (Only on Saturdays) Course Fee: Rs.15,000/-

Course Contents:  Financial Accounts & Company Accounts  Direct Taxes  Financial Analysis  Project Reports  Indirect taxes  Corporate Finance  Cost Accounts For Whom: The course is open to NonFinance Executives such as Engineers, Architects, Doctors, Human Resource personnel, Department Heads,

Administrators and other executives. The course does not call for any prior knowledge in Accountancy, Finance and Tax Laws. The course coverage will be basic in all subjects. We request you to pass on this information to your Clients to avail the benefits of this course. Contact Tel: 080-30563500 / 511/ 512 E-mail: bangalore@icai.org / blrprogrammes@icai.org

17

June 2012


National Conference on Cloud Computing - Opportunities for CAs On Friday 15th June 2012, Hotel Le- Meridian, Bangalore

June 2012

18


Bangalore Branch of SIRC of the Institute of Chartered Accountants of India

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June 2012


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June 2012

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Newsletter for the Month of June 2012  

Newsletter for the Month of June 2012

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