Tuesday, July 25, 2017

Sec. 68 couldn't be applied for sundry creditors arising out of purchase expenses: Patna ITAT

Facts:

a) Assessee-partnership firm had shown sundry creditors arising out of purchase expenses in its return but failed to establish genuineness of such sundry creditors.

b) Assessing Officer (AO) disallowed provision for such creditors and added it to total income of assessee under section 68.

c) CIT (Appeals) confirmed the order of AO. The aggrieved-assessee filed the instant appeal before the Tribunal.

The ITAT held in favour of assessee as under:

1) The provisions of section 68 are applied to the cash credit which has not been explained by assessee. In the instant case sundry creditors arose out of the purchases as claimed by assessee which had been duly accepted by the authorities.

2) AO had invoked section 68 to tax the sundry creditors whereas the assessee was claiming that the aforesaid amount represented the trade creditors and, therefore, it couldn’t be applied.

3) Admittedly, the creditors were found by the AO and the onus lay on assessee to justify that these were sundry creditors. In order to justify the impugned trade creditors, the assessee had to produce copies of PAN, ledger copies, bills / invoices details of payments, income tax return, mode of payments, etc.

4) In the instant case, assessee had summarily failed to observe the directions issued by the AO. Therefore, issue was restored to AO for fresh adjudication as per law. - [2017] 83 taxmann.com 187 (Patna - Trib.)

Compensation paid to clients due to negligence of employees was allowable as business exp.

Facts:

a) Assessee was engaged in Marketing of Financial products of various companies as distributor. He claimed Rs.1.54 lakh as expenses in its profit and loss account on account of compensation paid to clients for loses occurred due to negligence of on the part of its employees.

b) Assessing officer (AO) held that assessee had not been able to prove as to how the loss was payable by it as the losses were suffered by the clients and, therefore, assessee was not entitled to claim such losses its profit and loss account.

c) CIT (Appeals) also upheld order of AO. Aggrieved-assessee field the instant appeal before the Tribunal.

The Tribunal held in favour of assessee as under:

1) Assessee had claimed that the losses which had occurred to its clients due to negligence of employees as the employees of assessee could not square off the positions taken by clients in NIFTY index of National Stock Exchange.

2) Amount paid to these clients was necessarily an exp. which was allowable under section 37 as section 37 clearly states that any expenditure not in the nature of capital expenditure or personal expense laid out or expenditure wholly and exclusively incurred for the purposes of business or profession shall be allowed.

3) Moreover Circular no. 35-DCXLVII-20 of 1965 dated 24-11-1965, clearly states that losses arising due to negligence of employees has to be allowed as expense if loss took place in normal course of business

4) In the instant case, the losses were necessarily incurred in the normal course of business of assessee and therefore, the expenditure was allowable. - [2017] 83 taxmann.com 230 (Amritsar - Trib.)

Ind AS: Exposure Draft of revised lease standard Ind AS 116 issued

Exposure Draft on revised lease standard Ind AS 116 has been issued by the Institute of Chartered Accountants of India (ICAI). Ind AS 116 will replace the existing lease standard Ind AS 17. Last year, International Accounting Standards Board (IASB) revised the lease standard and issued new IFRS 16, Leases.

Ind AS 116, Leases sets out the provisions for the recognition, measurement, presentation and disclosures of leases. There are differences between Ind AS 116 and Ind AS 17. The major differences are as follows:

1. Under Ind AS 116, a part of the contract can also be treated as lease if the same conveys the right to use an asset for a period of time for certain consideration.

2. The principles of Ind AS 116 with regards to accounting of lease by the lessee is substantially different from that of Ind AS 17. However, requirements of Ind AS 116 with regard to lessor is substantially similar to Ind AS 17

3. Recognition of leases having lease term less than 12 months or value of underlying asset of the lease is low, by lessee is not mandatory under Ind AS 116. In such cases, lessee have to recognise the lease rentals as expense on a systematic basis considering pattern of benefits from the asset.

4. Ind AS 116 provides for a single accounting model for lessee. Classification of lease as either finance or operating lease by the lessee is not required under Ind AS 116. Initially, lessee should recognise right-of-use assets at cost similarly to other non-financial assets, like property, plant & equipment, intangible assets etc. and lease liabilities at the present value of all future payments.

5. Subsequently, lessee should measure the right-of-use assets either at cost or other specified models like revaluation model. The amount of interest paid on lease liability should be recognised as finance cost.

6. Under Ind AS 116, lessee shall depreciate the right-of-use asset in accordance with Ind AS 16, Property, Plant and Equipment.

Apart from this the Draft also provides principles with regard to transition from Ind AS17 to Ind AS 116. Ind AS 116 will be applicable from April 1, 2019. 

Thursday, July 20, 2017

No TDS on GST paid or payable on services when GST is separately shown in invoice: CBDT

CBDT had issued Circular No.1/2014 wherein it was clarified that TDS had to be deducted on the amount paid/payable without including service tax component. In other words, no TDS would be deducted on service tax component when amount of service tax is shown separately in the invoice.

After implementation of GST across the country with effect from July 1, 2017, CBDT has received various references for treatment of GST component on services. Now the CBDT has clarified (vide Circular 23/2017) that if as per terms of the agreement of the payee and payer ‘GST on services’ component has been indicated seperately in the invoice, then no tax would be deducted on GST component. GST will include CGST, SGST, IGST, UTGST.

Legal consultants working on contractual basis can't be enrolled as Advocates: Gujarat HC

When contract between petitioner law graduate with a company was in nature of full time employment, such employment of petitioner was violative of requirement of rule 49 of Advocacy Act; Bar Councils had rightly refused to grant her enrolment and certificate to practice law

Facts of the case:

i. Petitioner was in her last year of L.L.B. course. During her academic period, Campus placement were started and she was selected in campus interview of Gujarat Industrial Development Corporation as Legal Consultant on contract basis. After that, she had applied for Certificate of practice.

ii. Bar council had put her enrollment form for Certificate of Practice on hold by saying that she was violating the rule of 49 of the Bar Council of India as she is rendering his full time service to the Gujarat Industrial Development Corporation.

iii. Further, she contended that contractual arrangement of her service with the Gujarat Industrial Development Corporation could not be viewed as employment and remuneration of Rs. 25,000/- per month paid to her was not by way of salary, as such, there was no employee-employer relationship between them.

iv. Single Judge of High Court has granted interim relief to the respondent and directed the Bar Council of Gujarat to grant her a temporary enrolment number.

v. Aggrieved by the directions of Single Judge of High Court, Bar council of Gujarat preferred appeal against the directions of Single Judge. The Gujarat High Court held as under:

a) In view of the conditions of service contract of the Gujarat Industrial Development Corporation, it was observed that she was in the office from 11.00 a.m. to 5.00 p.m. which are standard hours of work, prima facie it has to be considered as full-time employment. 

b) Further, there is no provision for grant of temporary certificate by the Bar Council for practicing as an advocate under the Advocates Act, 1961 and the rules framed there under.

c) She could not entitled to practice as advocate so long as she continues such employment - [2017] 83 taxmann.com 129 (Gujarat)

Dept. can’t deny PAN correction in TDS return for more than 4 characters: HC

Facts:

a) CPC-TDS has provided an online facility to correct invalid PAN mentioned in TDS return. The online system of department is programmed to permit correction only in case four digits/characters of PAN are to be changed and no more.

b) In the instant case, entire PAN number of the recipient of the payment was wrongly fed by the assessee-company and the on-line system of the department didn’t permit to carry out changes in PAN in excess of four digits/characters.

c) Assessee challenged the action of the revenue in not permitting it to correct the error in mentioning the PAN before the High Court.

The High Court in favour of assessee as under:

1) Once the department recognizes the possibility of errors and also makes provisions for making corrections, it would be wholly illogical to limit such corrections on arithmetical working out of only two alphabets or two numeric of PAN characters.

2) Error in feeding an entry or a number may have multiple origins from typographical error of Data Entry Operation to mechanical failures or through pure oversight referring to one column of PAN instead of another while filling up and uploading the statement.

3) It is not necessary nor possible for us to envisage different situations under which such errors could crop up and it need not necessarily be confined to limited figures on the letters of the PAN being incorrect. 4) Therefore, decision of department in not permitting the petitioner to correct PAN of the deductee in the statement of tax deducted at source was impermissible. [2017] 83 taxmann.com 205 (Gujarat)

Delhi HC provides temporary relief to advocates for noncompliance with GST

There is no clarity on whether all legal services (not restricted to representational services) provided by legal practitioners and firms would be governed by the reverse charge mechanism. If all legal services are to be governed by the reverse charge mechanism, then there would be no requirement for legal practitioners and law firms to compulsorily get registered under the GST Acts.

No coercive action be taken against any lawyer or law firms for non-compliance with any legal requirement under the GST Acts till a clarification is issued by the Central Government and the GNCTD. - [2017] 83 taxmann.com 202 (Delhi)

Ind AS 12: Create deferred tax asset on goodwill even if eliminated while consolidating financials

Query

A company, say X Ltd. has two subsidiaries, say Y Ltd. and Z Ltd. Ind AS is applicable on X Ltd. from April 1, 2017. In April, 2016 both subsidiaries got amalgamated and consequently goodwill has been recognised in the books of amalgamated subsidiary. This goodwill is an allowable deduction to the amalgamated entity under Income tax laws. X Ltd. decided to apply Ind AS 103, Business Combinations prospectively.

At the time of consolidation as per Ind AS, X Ltd. has eliminated the goodwill as consolidation adjustments. But, tax base of assets in the consolidated financial statements (CFS) has increased because of eliminated tax deductible goodwill.

Whether X Ltd. should recognise deferred tax asset in CFS on goodwill as the same is deductible under tax laws, even if the goodwill has been eliminated from the CFS?

Response

Tax base of an asset is defines under para 5 of Ind AS 12, Income Taxes as the amount that will be deductible while determining taxable profits.

According to para 9 of Ind AS 12, some assets and liabilities have tax base even if they are not recognised in the books. For example, preliminary expenses, which are allowed as deduction over the years under Income tax laws but while determining accounting profit these are recognised as expense in the year of their incurrence. In such case, in the second year, tax base of preliminary expenses is the amount deductible over the future years even if there is no corresponding entry in the financial statements.

Further, para 24 of Ind AS 12 states that deferred tax asset shall be recognised for all deductible temporary differences to the extent that it is probable that taxable profit will be available in future years against which the deductible temporary differences can be utilised. But where deductible temporary differences arises on initial recognition of an asset or liability in a business combination or on recognition of a transaction that affectsneither accounting profit nor taxable profit, no deferred tax asset should be recognised. 

From the above paras, X Ltd. should recognise deferred tax asset on the tax base of the eliminated goodwill by crediting consolidated profit or loss to the extent that it is probable that taxable profit will be available in future years against which tax base of the goodwill can be deducted.

Reference
- Issue 3 of Ind AS Transition Facilitation Group Clarification Bulletin 10

Sum paid to AAI to operate executive lounge at IGI Airport treated as rent under Sec. 194-I

Facts :

a) Assessee entered into a Licence Agreement (LA) with Airport Authority of India (AAI) in terms of which the premises at the first floor of the IGI Airport was given on license basis to the assessee for the purpose of operating an executive lounge.

b) Assessee was paying monthly royalty and licence fee for space allotted for operating the Lounge Premises.

The issue before the High Court was "Whether amount paid to AAI for use of lounge premises would be deemed as rent within the meaning of Section 194-I?"

The High Court held in favour of revenue as under :

1) Assessee relied on a certificate issued by the AAI wherein it was clarified that the royalty charged was not for the use of building but only for the right to operate the lounge and accordingly it couldn’t be regarded as rent.

2) Assessee was permitted to operate an executive lounge. The payment made to AAI although in two parts, was for operating an executive lounge. Non-payment of even one component, as either of royalty or of the fee for the space, would entail the assessee losing the right to operate the executive lounge.

3) The payment for the use of space was inseparable from the payment of royalty. The question of being able to operate the lounge without the actual use of the space simply did not arise.

4) Thus, sum paid to the AAI under the LA fell within the definition of 'rent' under section 194-I. - [2017] 83 taxmann.com 167 (Delhi)

Dept. can levy fee under Sec. 234E even without regulatory provision Sec. 200A for computing fee: HC

Fact of the case :

a) Assessee filed the petition challenging the demand of fee in terms of section 234E raised by Assessing Officer (AO) under section 200A. He argued that section 200A didn’t authorize the AO to make adjustment of the fee to be levied under section 234E. 

b) The provision introduced with effect from 01.03.2016 wasn’t retrospective and therefore, for the period between 01.07.2012 i.e. when section 234E was introduced in the Act and 01.06.2015 when proper mechanism was provided under section 200A of the Act for collection of fee, the department could not have charged such fee. 

The High Court held in favour of revenue as under :

1) Section 200A is a machinery provision providing mechanism for processing a statement of deduction of tax at source and for making adjustments, which are, arithmetical or prima facie in nature.

2) With effect from 1-6-2015, this provision specifically provides for computing the fee payable under section 234E. On the other hand, section 234E is a charging provision creating a charge for levying fee for certain defaults in filing the statements.

3) Under no circumstances a machinery provision can override or overrule a charging provision. Section 200A does not create any charge in any manner. It only provides a mechanism for processing a statement for tax deduction and the method in which the same would be done.

4) Even in absence of section 200A with introduction of section 234E, it was always open for the revenue to demand and collect the fee for late filing of the statements. Section 200A would merely regulate the manner in which the computation of such fee would be made and demand raised.

5) Thus, the view that without a regulatory provision being found for section 200A for computation of fee, the fee prescribed under section 234E couldn’t be levied was unacceptable. - [2017] 83 taxmann.com 137 (Gujarat)