News & Updates
MCA Notification dated September 19, 2017
MINISTRY OF CORPORATE AFFAIRS:
1. MCA vide Notification dated 19.09.2017 has amended the Companies (Acceptance of Deposits) Rule, 2014. Presently as per proviso of sub rule 3 of Rule 3 of Companies (Acceptance of Deposits ) Rule, 2014 a private company may accept from its member’s monies not exceeding one hundred per cent of aggregate of the paid up share capital, free reserve and securities premium account. MCA vide the said notification has notified that in addition to a Private Company, specified IFSC Public Company may also accept deposit from its members and accordingly substituted the said proviso which is as follows : that a specified IFSC public company and a private company may accept from its member’s monies not exceeding one hundred per cent. of aggregate of the paid up share capital, free reserves and securities premium account and such company shall file the details of monies so accepted to the Registrar in Form DPT-3.
2. MCA vide Notification dated 20.09.2017 - the Central Government hereby makes the Companies (Restriction on number of layers) Rules, 2017. The rules clarify both the class of companies on which they shall be applicable as well as the number of layer that a company may be allowed to have in its course of business. No company, other than a company belonging to a class specified in sub-rule (2), shall have more than two layers of subsidiaries: Provided that the provisions of this sub-rule shall not affect a company from acquiring a company incorporated outside India with subsidiaries beyond two layers as per the laws of such country: Provided further that for computing the number of layers under this rule, one layer which consists of one or more wholly owned subsidiary or subsidiaries shall not be taken into account. The provisions of this rule shall not apply to the certain classes of companies, i.e a banking company, a non banking financial company, insurance company, Government Company.
3. MCA vide Notification dated 20.09.2017 appoints the 20th September, 2017 as the date on which proviso to clause (87) of section 2 of the Companies Act shall come into force.
4. SEBI vide Circular No. CFD/DIL3/CIR/2017/105 in order to align the requirements specified for listing under schemes of arrangement under Clause III (A)(1)(b) of Annexure I of the Circular with those specified under Rule 19(2)(b) of Securities Contracts (Regulations) Rules, 1957, it has been decided to amend Clause III (A)(1)(b) of Annexure I of Circular No. CFD/DIL3/CIR/2017/21 dated March 10, 2017 as under: At least twenty five per cent of the post-scheme paid up share capital of the transferee entity shall comprise of shares allotted to the public shareholders in the transferor entity; Provided that an entity which does not comply with the above requirement may satisfy the following conditions: i. The entity has a valuation in excess of Rs.1600 crore as per the valuation report; ii. The value of post-scheme shareholding of public shareholders of the listed entity in the transferee entity is not less than Rs.400 crore; iii. At least ten percent of the post-scheme paid up share capital of the transferee entity comprises of shares allotted to the public shareholders of the transferor entity; and, iv the entity shall increase the public shareholding to at least 25% within a period of one year from the date of listing of its securities and an undertaking to this effect is incorporated in the scheme.
MCA Notification dated September 13, 2017
MINISTRY OF CORPORATE AFFAIRS:
1. The MCA vide its General Circular dated September 13, 2017 has clarified that the holding companies if it is covered by the corporate sector roadmap for implementation of Ind AS, shall follow the corporate sector roadmap and if the company has got the Payment Bank or Small Finance Bank as its subsidiary then subsidiary company shall follow the banking sector roadmap. However, the Payment Bank or Small Finance Banks shall provide the Ind AS Financial data to its holding Company for the purpose of consolidation.
2. Taking forward the initiative launched by the Government of India to curb the menace of shell companies, money laundering and black money in the country and prevent misuse of corporate structure by shell companies for various illegal purposes, the Ministry of Corporate Affairs and Central Board of Direct Taxes (CBDT) have now concluded a formal Memorandum of Understanding (MoU) for data exchange, on 6th September, 2017.
3. The Ministry of Corporate Affairs has approved a request of the Malaysian Association of Company Secretaries (MACS) for adoption of the Secretarial Standards issued by the Institute of Company Secretaries of India (ICSI) as the benchmark in the development of Secretarial Standards of MACS. It is a matter of prestige that Indian Standards are to be adopted/benchmarked by a foreign sister institution in the course of formulation of their own similar standards.
INSOVENCY AND BANKRUPTCY CODE-SUPREME COURT
4. The judgment passed by the National Company Law Tribunal (NCLT), Allahabad in the matter of IDBI Bank Limited v. Jaypee Infratech Limited CP NO. (IB) 77/ALD/2017 had been stayed by the Hon’ble Supreme. Subsequent to the stay order, IDBI Bank Limited had filed interlocutory application & on hearing the application, the said SC Stay Order has been vacated by the Hon’ble Supreme Court vide order dated 11th September, 2017. Consequently the SC has inter-alia directed the IRP to takeover the management of Jaypee Infra again and an amicus has been appointed to participate in the meetings of creditors to advocate the cause of the homebuyers.
MCA Notification dated September 5, 2017
MINISTRY OF CORPORATE AFFAIRS:
1. MCA vide Notification dated 05.09.2017 clarified the meaning of joint venture for the purposes of availing exemption under Rule 4 of Companies (Appointment and Qualification of Directors) Amendment Rules, 2017. The said Rule 4 inter-alia provides that an unlisted public company which is a joint venture, a wholly owned subsidiary or a dormant company will not be required to appoint Independent Directors. MCA has now clarified that "Joint venture” would mean a joint arrangement, entered into in writing, whereby the parties that have joint control of the arrangement, have rights to the net assets of the arrangement. The usage of the term is similar to that under the Accounting Standards.
2. In terms of sub section (2) of Section 66 of the Companies Act, 2013 on receipt of application for reduction of share capital, the Tribunal shall give notice of every application made to it under sub-section (1) to the Central Government, Registrar and to the Securities and Exchange Board, in the case of listed companies, and the creditors of the company. The Central Government delegates to the Regional Directors at Mumbai, Kolkata, Chennai' New Delhi' Ahmedabad' Hyderabad and Shillong, the powers and functions vested in it under subsection(2) of section 66 of the Act vide notification dated September 6, 2017. Accordingly, Tribunal shall give notice to Regional Director, Registrar, SEBI & Creditors.
3. SEBI vide Circular No. SEBI/HO/MIRSD/CIR/P/2017/0000000100 dated 08.09 2017 decided that the framework prescribed vide SEBI circular CIR/MRD/DP13/2015 dated July 06, 2015 on cyber security and cyber resilience framework be broadly made applicable for large RTAs. Since RTAs perform important functions in providing services to holders of securities, it is desirable that RTAs have robust cyber security and cyber resilience framework in order to provide essential facilities and perform systemically critical functions relating to securities market. The provisions of this circular are applicable only for RTAs servicing more than 2 crore folios (hereinafter referred to as “Qualified RTAs” or “QRTAs”). The framework placed at Annexure A, would be required to be complied by the QRTAs with regard to cyber security and cyber resilience. QRTAs are directed to take necessary steps to put in place systems for implementation of this circular, by December 01, 2017.
Companies Act Notification
Companies Act :
The NCLT is constituted to render speedy justice in time bound manner without giving scope to raise frivolous pleas in between by amending pleadings. P Ram Bhoopal and Others vs. Pragnya Riverbridge Developers Ltd. and Others.  139 CLA 255 (NCLT)
Petitioner will not lose locus standi to file petition to initiate Corporate Resolution Process solely on the ground that it has got itself reimbursed from the insurer of goods. Macquarie Bank Ltd. vs. Uttam Galva Mettalics Ltd.  139 CLA 216 (NCLT)
MCA Notification dated August 23, 2017
(i) MCA vide notification dated August 23, 2017 has amended National Company Law Appellate Tribunal Rules, 2016. The existing Rule 63 regarding Appearance of authorized representatives before the NCLAT has been substituted. As per amended rule 63, the Central Government, the Regional Director or the Registrar Companies or Official Liquidator may also authorize an officer or an Advocate to represent in the proceedings before the Appellate Tribunal.
(ii) MCA vide notification dated 24th August, 2017 enforced w.e.f. 24th August, 2017 the provision of sub section (8), (9) and subsection (10) of section 212 of the Act. These sub-sections relates to the arrest of person who has been guilty of any offence punishable under section 212 of the Act by Director, Additional Director or Assistant Director of the Serious Fraud Investigation Office investigating into the affairs of a company. The MCA has also notified the Companies (Arrest in connection with Investigation by Serious Fraud Investigation Office) Rule, 2017.
MCA Notification dated July 27, 2017
(a) Shifting of Registered Office within the same State:
MCA has amended Companies (Incorporation) Rules, 2014 on July 27, 2017, rule 28 regarding shifting of Registered office within the same state has been substituted and requirement of publishing a notice in the news papers (English & Principal language) & serving individual notice to debenture holders, depositor and creditors has been dispensed with. As per new rule the Company seeking change of Registered Office within the same state from jurisdiction of one ROC to another ROC shall make an application to Regional Director in INC-23 with the following documents, 1. Board Resolution, Special Resolution, declaration to the effect that the company has not defaulted in payment of dues, declaration to the effect that not to seek change in the jurisdiction of the court where cases for prosecution are pending & acknowledged copy of intimation to Chief Secretary.
(b) Shifting of Registered Office from one state or union territory to another State:
Rule 30 regarding Shifting of Registered Office from one state or union territory to another state has also been substitution and in the amended rule few procedural filing requirements has been dispensed with such as copy of notice convening the meeting, copy of Special Resolution etc. need to be attach with the application & a copy of no objection from the RBI where the applicant is a registered as Non Banking Financial Company is not required. For further details refer the said circular.
(c) Clarification with respect to applicability of exemption given to Certain private companies under section 143(3)(i):
On the representation of stakeholders, the MCA vide General Circular No. 08/2017 dated July 25, 2017 has clarified that exemption given to certain private companies vide notification dated June 13, 2017 for not to report in their audit reports the requirements as required under section 143 (3)(i) shall be applicable for those
audit reports in respect of financial statement pertaining to financial years commencing on or after April 1, 2016 which are made on or after the said date of notification.
MCA vide Notification No GSR (E) dated 13.07.2017
1. MCA vide Notification dated 13.07.2017 has amended Companies (Meeting of Board and it's Power) Rule. Clause ( e) has been inserted in Rule 3 which says Any director who intends to participate in the meeting through electronic mode may intimate about such participation at the beginning of the calendar year and such declaration shall be valid for one year. Such declaration shall not debar to a director for attending meeting personally. Further Rule 6 regarding “Committee of Board” has been substituted with the following, the Board of Directors of every listed company and company covered under rule 4 of the Companies (Appointment & Qualification of Directors) Rules, 2014 shall constitute Audit and Nomination & Remuneration Committee of the Board. As a result the following Unlisted Public Companies i.e. Joint Venture Company, a Wholly owned subsidiary and Dormant shall not required to constitute Audit Committee and Nomination & Remuneration Committee.
2. MCA vide Notification dated 13.07.2017 has made the following correction in the notification dated 13.06.2017 though the corrigendum dated 13.07.2017, The correct amendment is clause(i) of sub-section (3) of section 143 shall not apply to Private company:- (i) which is a one person company or a small company or (ii) which has turnover less than rupees fifty crores as per latest audited financial statement
and which has aggregate borrowings from banks or financial institution or anybody corporate at any point of time during the financial year less than rupees twenty five crore.
3. RBI vide Circular No. DBS.ARS.BC.01/08.91.020/2017-18 dated 13.07.2017 has clarified that banks where the Board of Directors is chaired by a non-executive Chairman, there will not be any restriction if he/she is also nominated to the Audit Committee of the Board of Directors.(prior to this it was that Audit Committee of the Board of Directors should be chaired by any one of the non-executive/ non-official directors). For more details refer the said circular.
4. Insolvency and Bankruptcy Board of India (IBBI) invites comments from public on the Regulations notified under the Insolvency and Bankruptcy Code, 2016. It is anticipated that IBBI will come out with the modified regulations by 31st March, 2018 and the same will come into force on 1st April, 2018. All are requested to widely participate and provide their valuable comments on the Regulations as this is the right time to fine tune to smoothen the process under the Code and to incorporate the best practices.
MCA vide Notification No GSR (E) dated 05.07.2017
1. MCA vide Notification No GSR (E) dated 05.07.2017, has amended the National Company Law Tribunal Rules, 2016 and inserted the rules to make an appeal by any person who has been aggrieved under sub-section (1) of Section 252 where the name of the Company has been dissolved by the ROC or an application under subsection (3) of section 252, may be filed before the Tribunal in Form No. NCLT. 9 and upon hearing
the appeal or application or any adjourned hearing thereof, the tribunal may pass appropriate order, as deems fit.
2. MCA vide Notification No GSR (E) dated 05.07.2017, has amended the Companies (Appointment and Qualification of Director) Rules, 2014.The following classes of unlisted public company shall not be required to appoint Independent Director (a) Joint Venture, (b) a wholly owned subsidiary; and (c) a dormant company as defined under section 455 of the Act.
3. MCA vide notification dated 05.07.2017, has made few amendments in Schedule IV i.e. Code of Independent Director. The following changes have been made (i) in paragraph III, in sub-para (12), for the words "acting within his authority", the words "act within their authority" shall be substituted; (ii) an Independent Director who resign or removed shall be replaced by new independent director within
three months instead of a period of not more than 180 days (iii) the Independent Directors of the Company shall hold at least one meeting in a Financial Year (the words "in a financial year" shall be substituted in place of a Year) ; and(iv) after paragraph VIII, a note is inserted stating the certain provisions of code of
conduct shall not apply in the case of a Government company as defined under clause (45) of section 2 of the Companies Act, 2013 (18 of 2013) subject to certain conditions.
4. SEBI vide Circular No CIR/HO/MIRSD/MIRSD2/CIR/P/2017/73 in order to protect the interests of investors in securities and to promote the development of, and to regulate the securities market, stock exchanges/clearing corporations are required to formulate a policy for annual inspection of their members in consultation with SEBI.
5. SEBI vide Circular No. SEBI/HO/IMD/DF1/CIR/P/2017/75 dated 06.07.2017 has introduced an online system for filings related to Foreign Venture Capital Investors (FVCI). The online system can be used for application for registration, reporting and filing under the provisions of FVCI Regulations.
1. Pending Proceedings relating to voluntary winding up. MCA vide Notification No GSR (E) dated 29.06.2017, has amended Companies (Transfer of Pending Proceedings) Rules, 2016 interalia stating that proceedings relating to voluntary winding up of a company where notice of the resolution by advertisement has been given under sub-section (1) of section 485 of the Companies Act 1956 but the company has not
been dissolved before the 1st day of April, 2017 shall continue to be dealt with in accordance with Provisions of the 1956 Act. For further detail refer the said notification.
2. Holding Company – Layer of subsidiaries: The proviso to clause (87) of section 2 of the Companies Act, 2013 provides for restricting class or classes of Holding Company from having layers of subsidiaries beyond prescribe number. The Ministry has invited suggestion /comments on the draft amendments to the Companies (Specification of Definition Details) Rules, 2014 which may be sent latest by July
20, 2017 at firstname.lastname@example.org . Based on suggestions received, the MCA is considering commencing the said provision.
3. SEBI has revised the penalty amount for non compliance of the provisions of SEBI (Issue of Capital and Disclosure Requirements) Regulations, 2009 (“ICDR Regulations”). Regulations 111A and 111B of ICDR Regulations, 2009 inter alia specify liability of a listed entity or any other person for contravention and
action can be taken by the respective stock exchange. In the direction of SEBI, Stock Exchange shall impose a fine of Rs.20000/- per day of non compliance till the date of compliance with certain provisions of ICDR such as delay in completion of Bonus Issue, Companies not allotting the shares on conversion within 18 months, Issuer not approaching the exchange for listing of shares within 20 days from the date of allotment..
Subject: Companies (Audit and Auditors) Second Amendment Rules, 2017 -
In exercise of the powers conferred by section 139 read with subsections (1) and (2) of section 469
of the Companies Act, 2013, the Central Government hereby makes the following rules further to amend the Companies (Audit and Auditors) Rules, 2014, namely:-
1. Short title and commencement.-
(1) These rules may be called the Companies (Audit and Auditors) Second Amendment Rules, 2017.
(2) They shall come into force on the date of their publication in the Official Gazette.
2. In the Companies (Audit and Auditors) Rules, 2014, in rule 5, in clause (b), for the word "twenty",
the word "fifty" shall be substituted.
Subject: Enforcement date of Sections 55 to 58 of Insolvency and Bankruptcy Code, 2016 -
In exercise of the powers conferred by sub-section (3) of section 1 of the Insolvency and Bankruptcy Code, 2016, the Central Government hereby appoints the 14th day of June, 2017 as the date on which the provisions of section 55 to section 58 (both inclusive) of the said Code shall come into force.
Subject: Central Government hereby notifies that an application for fast track corporate insolvency resolution process may be made in respect of specified corporate debtors -
In exercise of the powers conferred by sub-section (2) of section 55 of the Insolvency and Bankruptcy
Code, 2016, the Central Government hereby notifies that an application for fast track corporate insolvency resolution process may be made in respect of the following corporate debtors, namely :-
(a) a small company as defined under clause (85) of section 2 of Companies Act, 2013 (18 of 2013);
(b) a Startup (other than the partnership firm) as defined in the notification of the Government of India in the Ministry of Commerce and Industry number G.S.R. 501(E), dated the 23rd May, 2017 published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), dated the 23rd May, 2017; or (c) an unlisted company with total assets, as reported in the financial statement of the immediately preceding financial year, not exceeding rupees one crore.
1. MCA vide Notification dated June 13, 2017 has amended its principal notification dated June 5, 2015 relating to exemptions to Private ,Section 8 & Government Companies under section 462 of Companies Act, 2013 giving more relaxations/exemptions to these companies such as
(i) Cash Flow Statement is not required to be attached in case of Private Company, if such Private Company is a start up,
(ii) provisions to have adequate internal financial control u/s 143(3)(i) not applicable to certain private companies,
(iii) interested director may also be counted towards quorum in such meeting after disclosure of his interest pursuant tosection 184,
(iv) the limit of maximum number of Directors not applicable to section8 companies,
(v) the Central Government will be approving authority in place of NCLT relating to cases of scheme of arrangement etc. of the Government Companies etc.
2. SEBI vide circular CIR/MRD/DP/56/2017 dated 14 June, 2017 has decided to permit the depositories to offer a system for capturing and recording the Non Disposal Undertakings (NDUs) to protect the interest of investors in securities and to promote the development of, and to regulate the securities market. The depository system provides a transparent mechanism for recording pledge transactions entered between lenders and borrowers.
3. SEBI vide circular CIR/CFD/DIL/57/2017 dated 15 June, 2017 bring the provisions of this circular to the notice of listed entities and all the recognized Stock Exchange regarding the Non-compliance with certain provisions of SEBI (Issue of Capital and Disclosure Requirements) Regulations, 2009 (“ICDR Regulations”). Now Stock exchanges shall impose fines on the companies for non-compliance with certain provisions of ICDR Regulations and the amount of fine realized shall be credited to the "Investor Protection Fund" of the concerned recognized stock exchange. The recognized stock exchanges shall disseminate on their website the names of non-compliant listed entities that are liable to pay fine for non-compliance, the
amount of fine imposed, details of fines received, etc.
4. SEBI vide circular CIR/HO/MIRSD/MIRSD2/CIR/P/2017/59 dated June 15, 2017 stated a) Depositories shall provide additional field in the depository system to the RTAs by July 15, 2017 whereby the RTAs can incorporate the details of corporate action viz. dividend/interest in rupee terms. b) The reporting with respect to dividend / interest is to be done by DPs on ‘entitlement’ basis and not on the basis of actual payment received by the demat account holder. c) If a demat account is identified as a ‘reportable account’ during a calendar year by the DP, the reporting under Rule 114G (1) (e) is to be done for the dividend / interest entitlements during the entire calendar year i.e. including the period of the calendar year before identification of such account as a ‘reportable account’ by the DP etc.
INSOLVENCY AND BANKRUPTCY BOARD OF INDIA:
5. The Insolvency & Bankruptcy Board of India(IBBI) vide notification dated June 14, 2017 has notified the IBBI(Fast Track Insolvency Resolution Process for Corporate Persons) Regulations, 2017. These regulations shall come into force w.e.f. 14.6.2017. The resolution process in these cases shall be completed within a period of 90 days as against 180 days in other cases. These regulations are available at ibbi.gov.in
Subject: Clarification regarding transmission of Securities by Operation of Law – Reg -
Clarity has been sought by stakeholders w.r.t. issue of duplicate shares under Rule 6 (3)(d) of the Investor
Education and Protection Fund Authority (Accounting, Audit, Transfer and Refund) Rules, 2016. It has been stated that since transfer of shares to IEPF under section 124 (6) of the Companies Act, 2013 read with rules referred to above takes place on account of operation of law hence the procedure followed during transmission of shares may be followed in such cases and duplicate shares need not be issued in such cases. The suggestion made by the stakeholders has been examined in the Ministry and it is clarified that the procedure similar to what is followed in case of transmission of shares may be followed by companies while transferring shares to IEPF Authority pursuant to section 124 (6) read with applicable rules.
1. MCA vide General Circular dated May 29, 2017 has clarified that as the IEFP Authority is yet to open the demat account and till the opening of the demat account, the due date for transfer of shares i.e. 31.5.2017 stands extended. Further the companies which have already published a notice in news paper & send notice to shareholders need to give fresh notices again due to this extension.
2. SEBI vide Circular No CIR/IMD/DF/51/2017 dated May 30, 2017 has prescribed additional requirements under SEBI (Issue and Listing of Debt Securities) Regulations, 2008 (“SEBI ILDS Regulations") for issue & listing of Green Debt Securities & listing of privately placed Green Debt Securities.
3. SEBI vide circular no. SEBI/HO/MIRSD1/CIR/P2017/38 dated May 02, 2017 has decided to operationalize SEBI Intermediary Portal (https://siportal.sebi.gov.in) for the intermediaries to submit all the registration applications online. The SEBI Intermediary Portal shall include online application for registration, grant of final registration, application for surrender/cancellation, submission of periodical reports, and other details.
4. RBI vide Notification no. RBI/2016-17/313 dated May 30, 2017 has clarified that Annual Information Return (AIR now changed to SFT) in respect of issue of saving Bonds for Rs. 5 lakh or more under Section 285 BA of Income Tax Act, 1961 is required to be furnished only to Public Debt offices of the respective jurisdiction. Agency banks/SHCIL need not submit this information to Income Tax Authorities
5. GST Council finalises tax rates for remaining items, States agree to July 1 rollout at its 15th meet on June 3, 2017.
Ministry of Corporate Affairs:
MCA vide notification dated 11th May 2017 has made the amendments in the Companies
(Acceptance of Deposits) Rules, 2014 through Companies (Acceptance of Deposits)
Amendments Rules, 2017. The rule 2((l)(c) has been amended & the words "Domestic
Venture Capital funds" the words "infrastructure Investment Trusts" shall be
inserted. Further in rule 5 in sub-rule (l), the following proviso shall be
substituted "Provided that companies may accept deposit without deposit insurance
contract till the 3lst March 2018 or till the availability of deposit insurance
product, whichever is earlier.
In order to further enhance the reach of Mutual Funds (MFs) towards the retail
investors, SEBI vide circular no. SEBI/HO/IMD/DF2/CIR/P/2017/39 dated May 08, 2017
has issued guide lines for extending Instant Access Facility (IAF). Mutual Funds /
Assets Management Companies (AMC) may offer the IAF subject to conditions as
prescribed in the notification. MFs/ AMCs can accept Investment by an Investor
through e-wallets (Prepaid Payment Instruments (PPI) subject to certain conditions.
The income tax department vide Notification no. 37/2017 dated 11.05.2017 has
exempted a few classes of assessees from the requirement of compulsorily quoting the
Aadhaar number while applying for a Permanent Account Number (PAN) or while filing
The relief is available to non-residents, those who are not citizens of India, those
who are 80 years of age and over and to the people living in Assam, Jammu & Kashmir
and Meghalaya. This notification shall come into force with effect from the 1st day
of July, 2017.
RBI vide no. DBR.CO.No.Ret.BC/66/12.07.144/2016-17 dated May 11, 2017 has decided
to move the reporting of SLR (Statutory Liquidity Ratio) from PCRPCD to XBRL
(Extensible Business Reporting Language) by all Regional Rural Banks(RRBs).
NCLT, vide office order dated April May 11, 2017 stated that no cost be imposed for
payment in the NCLT Library Fund as the NCLT Library Fund has been closed since
April 26, 2017.
1. Taxability of Mining Service- Executing work of haulage road, cross-cut and winze (activity of mine workings) is correctly classifiable under 'Site formation and clearance, excavation and earth moving and demolition services' and not under 'Mining Service' supported by Board Circular B1/6/2005-TRU, dated 27.07.2005. 2017-TIOL-1482-CESTAT-MUM.
2. Corpus Fund- The appellant, being a builder, undertook maintenance of residential project. They collected from their clients a fixed amount (apart from consideration) with a specific reason for transferring the same to the residents as and when the complex is formed. It was held that when computing tax liability, the value shall not be less than cost of provision of taxable service and hence, tax is payable under Management, Maintenance and Repair Service. 2017-TIOL-1475-CESTAT-DEL.
3. Re-warehousing certificate: On the non-production of re-warehousing certificate in time, the appellants are liable for penalty of Rs. 5000/- under Rule 27 of Central Excise Rules, 2002. The duty can be demanded from consignor only when the goods are diverted without any delivery of goods to the consignee against CT-3 certificate. 2017-TIOL-1490-CESTAT-MUM.
1. MCA vide circular no. 03/2017 dated 27/04/2017 has issued clarification
regarding transfer of shares to IEPF Authority. Where the seven year period under
section 124(5) is completed during September, 7 2016 to May 31, 2017, the due date
of transfer of such shares by companies is May 31, 2017. The IEPF authority has
decided to open a special demat account with National Securities Depository Limited
(NSDL). Information related to shareholders whose shares are being transferred to
IEPF’s demat account shall be provided to NSDL in the prescribed format.
2. With underlying objective to promote transparency in remuneration polices so
that executive remuneration is aligned with the interest of investors. SEBI vide
circular no. SEBI/HO/IMD/DF2/CIR/P/2017 dated April 28, 2017 has amended the
circular pertaining to disclosure of executive remuneration of all mutual funds/
Assets Management Companies / Trustee Companies/ Board of Trustee of Mutual Funds.
MF/AMC shall make disclosures of remuneration in the prescribe format pertaining to
Financial Year on the MF/AMC website.
INSOLVENCY & BANKRUPTCY BOARD OF INDIA (IBBI):
3.The Working Group set up by MCA has submitted draft regulations for Fast
Track Insolvency Resolution of Corporate Persons. A draft notification under Section
55(2) of IBC, 2016 for eligible corporate debtors has also been prepared and placed
on website of IIBI. Comments on each provision of the draft regulations and draft
notification are invited by 8th May, 2017. The comments may be submitted online in
the feedback form placed at website or by email at email@example.com .
4. NCLT Mumbai Bench, Mumbai in the matter of under section 9 of IBC, 2016 has
admitted the application filed by Operational Creditor against Uttam Galva Steel
Limited – Corporate Debtor vide order dated April 10, 2017. The order runs into more
than 30 pages & has decided/clarified various issues like: (i) no pleading or
defending party, the terminology like petitioner/ respondent or plaintiff /
defendant is not present in this code, most of procedure is inbuilt in the code,
therefore it has been named as Code, not as Act (ii) the definition of dispute as
given in the code has to be understood in a meaningful way to cater the intent and
purpose behind section 8 & 9, not otherwise. To know more refer the said order.
5. The ICSI has extended the last date for registration of FCS as mentor of
Mega Placement Drive of ICSI-2017 upto May 10, 2017.
1. MCA vide circular no. 02/2017 dated 20/04/2017 has issued clarification
regarding online generation of Challans for offline payment in respect of companies
which have transferred the amount to IEPF prior to 15.12.2016 as these companies
were/are unable to file e-form IEPF-1. To facilitate filing of e-form IEPF-1 by such
companies a procedure has been provided through this circular.
2. Form CHG-1 (Creation and Modification of charges –other than those related to
debentures) CHG-9 (Creation or modification of charges for debentures). CHG-4
(Satisfaction of charges) and STK-2 (Application by Company to ROC for removing its
name) have been revised with effect from 22.04.2017. The revised e-forms are
available on MCA portal.
3. Pursuant to section 139AA of Income Tax Act, 1961 as introduced by the Finance
Act, 2017, from July 1, 2017 quoting of Aadhaar no will be mandatory for filing of
all tax returns . If the person has PAN & Aadhaar it need to link the two failing
which PAN no could become invalid.
The Ministry of Finance clarified that quoting of Aadhar shall not apply to an
Individual who is not resident as per the Aaadhaar Act, 2016.
SUPREME COURT TO DECIDE VALIDITY OF LINKING AADHAAR WITH PAN CARD
Section 139AA of the Income Tax Act, which makes Aadhaar mandatory for filing
Income Tax Returns, has been challenged before the Supreme Court. Two different
Petitions have been filed in this respect. The matter was heard on April 22, 2014
and now Hon’ble Bench would hear the arguments on the plea challenging the
government moves making aadhaar mandatory for PAN cards on April 25, 2017.
ICSI is contemplating to introduce Three months or so Residential /Non Residential
Trainee Programme for professional pass out students for capacity building and
enhancing quality. The ICSI solicits suggestions or views from its stakeholders for
introducing the proposed Three months trainee Programme through questionnaire which
is available at ICSI website latest by 30th Arpil, 2017
C S: MINISTRY OF CORPORATE AFFAIRS
1. MCA vide notification dated April 12, 2017, has amended Companies (Removal of Names of Companies from the Register of Companies) Rules 2016. Further publication of notice under clause (iii) of this sub-rule in respect of cases falling under subsection (1) of S. 248 shall be in SKT-5A
2. MCA vide notification dated April 13, 2017, has amended Companies (Compromises, Arrangements, and Amalgamations) Amendment Rules 2016. Rule 25A has been inserted
after Rule 25 which provide:
(1) A Foreign Company incorporated outside India may merge with Indian Company after obtaining prior approval of RBI and after complying with the provisions of section 230 to 232 and these rules.
(2) A Company may merge with a foreign company incorporated in any of the jurisdiction specified in Annexure B to these rule(s) after prior approval of RBI after complying with the provisions of
section 230 to 232 and these rules.
3. MCA vide notification dated April 13, 2017, appoints the 13th day of April 2017 as the date on which provisions of section 234 relating to Merger or Amalgamation of Company with Foreign Company shall come into force.
4. Form INC-22 (Notice of Situation or Change of Registred Office), SCP ( Serious Complaint Form) & AOC-4 (Form for filing a financial statement and other documents with the Registrar) have been revised with effect from April 15, 2017. Stakeholders
are advised to check the latest version before filing.
5. MCA is actively considering Aadhaar Integration for availing various MCA21 related services. As a preparatory step, all individual stakeholders viz. DIN holders/Directors/Key Managerial
Personnel/Professionals of the Institute of Company Secretaries of India-Institute of Chartered Accountants of India-Institute of Cost Accountants of India (whether in employment or in practice) are requested to obtain Aadhaar as early as possible for integrating their details with MCA21 and also ensure that the information in Aadhaar is in harmony with PAN.
SECURITIES AND EXCHANGE BOARD OF INDIA:
6. SEBI vide Circular No SEBI/HO/MRD/DRMNP/CIR/P/2017/31 dated April 13, 2017, on the basis of the recommendation of Risk Management Review Committee of SEBI decided to specify “Derivatives on Equity shares of Company incorporated in India.
Accordingly, the recognized stock exchanges operating in IFSC may permit dealing in ‘Derivatives on equity shares’, subject to prior approval of SEBI.
1. The Bombay High Court has issued a circular G-/ 176/2017 dated this April 03, 2017. Directing the practitioners not to use prefixes like Mr./ Ms/ Mrs./ M/s in the title of legal proceedings for companies, both private limited and public. The judge said “This is necessary because where these incorrect descriptions are not carried forward into orders, then issuance of certified copies becomes difficult.
2. The Ministry of corporate affairs vides notification no. G.S.R..(E) F NO. 01/10/2017 CL-V dated April 07, 2017 has revised & substituted the form CHG-1, CHG-4 & CHG-9 (regarding charges/ satisfaction/ modification of charges) wherein certain field level changes have been incorporated to capture additional details relating to charges.
3. Draft Labour Code on Social Security & Welfare - reg. In line with the recommendations of the 2nd National Commission on Labour, Ministry of Labour & Employment has taken steps for simplification, amalgamation, and rationalization of Central Labour Laws and replacing them with 4 Labour Codes viz. The code on Wages, Code on Industrial Relations, Code on Social Security & Welfare, and Code on Occupational Safety, Health & Working Conditions. Out of these, first two i.e. Code on Wages and Code on Industrial Relations were earlier drafted and put on the Website of the Ministry of Labour & Employment inviting comments of the stakeholders/public. Both these Codes are under consideration of the Government at present. Now Ministry of Labour & Employment has extended the last date for submission of comments suggestion by one month and suggestions/comments on Draft Labour Code on Security should be sent to this ministry by 16.05.2017.
4. Government reduces the number of forms and reports from 36 to 12 lesson cost and compliance burden of various establishments.
5. The Government has simplified the maintenance of Labour registers of about 5.85 crore establishments in agriculture and non- agriculture sectors. These registers are related to details of employees, their salaries, loans/recoveries, attendance etc. This exercise will drastically reduce the number of registers being maintained by these establishments from 56 to only 5 by doing away with overlapping/redundant fields. This will help these establishments to save cost and efforts and ensure better compliance with Labour Laws.
(Refer Notification no. GSR/154(E) dated 21.02.2017 issued by Ministry of Labour & Employment ).
CS DEEPAK KUKREJA Past Chairman, ICSI-NIRC
All cash payments of over Rs 2 lakh for paying loans and credit card bills during the 50-day period postdemonetisation will have to be disclosed in the new one-page Income Tax return form.
The tax department a few days back notified new Income Tax Return (ITR) forms for filing of returns for the Assessment Year 2017-18 (financial year 2016-17).
Besides providing for declaring income, exemption claimed and tax paid, the forms have a new column providing for declaration for any deposit of over Rs 2 lakh in bank accounts made during November 9 and December 30, 2016 after the old 500 and 1,000 rupee notes were demonetised.
This column is also to be used for declaring cash payments in excess of Rs 2 lakh for repayment of any loan or settlement of credit card bills during this 50-day period, a senior official told PTI here. "The column is an attempt to match the cash deposits made post demonetisation with the annual income,"
While all credit cards are linked to permanent account number (PAN) of the holder, almost all loans by scheduled banks are also provided on furnishing of PAN.
The tax department will collate the data it has of cash payments made in excess of Rs 2 lakh with the returns filed. "We want to see if the income profile matches with the cash payments made," he said.
The move comes amid concerns of unaccounted cash or black money being used to settle bills after credit cards were used to make heavy purchases. It could also be that black money could have been used to repay loans.
Post-demonetisation, the government had provided a 50-day window beginning November 9, 2016 to deposit the junked notes in bank accounts. For those with unaccounted cash, it gave them one last opportunity to come clean by depositing 50 per cent of it as tax and parking another 25 per cent in a zero- interest bearing deposit for four years.
The changes made in ITR are an attempt to catch tax evaders, the official said. Revenue SecretaryHasmukh Adhia had last week told PTI that the new column of cash deposits made during November 9, 2016 and December 30, 2016 was a one-time feature in the ITR and would not be there in the ITR from next year onwards. The ITR, he had said, would evolve or change every year depending on the need.
While coming out with new ITRs, the CBDT had also rationalised them and cut down the number of forms to seven from earlier nine.
While all taxpayers will have to now mandatorily link Aadhaar with their PAN cards, ITR1 (Sahaj) form has been shortened from 7 page to 1 page to enable filing of returns by people with income up to Rs 50 lakh by July 31.
ITR2 is to be filed by individuals and HUFs who do not have income from business or profession and ITR3 is filed by individuals and HUFs having income from a proprietary business or profession.
Also ITR 2 and ITR 3 also have a Schedule AL which require assessees to declare their assets and liabilities at the end of the fiscal.
ITR4 (Sugam) is filed by those individuals who have opted for income calculation under presumptive income from business and profession.
All Income Tax department-related proceedings between the taxpayer and the taxman from the new fiscal will be conducted online, the CBDT today declared. This is as part of its initiative to minimise human interface between the assessee and the Assessing Officer (AO) thereby reducing complaints of harassment and corruption. A new link or window called ‘e-proceeding’ will soon be introduced on the e-filing website of the department, which is used by taxpayers to file their Income Tax Returns (ITRs) at present.
The website has been linked to the internal online business application portal of the tax department so that the Assessing Officer (AO) can undertake the new regime where a taxpayer will not have to visit the I-T office for regular issues like scrutiny issues and grievances related to his or her refunds or tax filing, among others.
A notification in this regard was today issued by the Central Board of Direct Taxes (CBDT), the policy-making body of the tax department. The CBDT directive added the new procedure of e-communication is “applicable to all proceedings under the Income Tax Act, 1961 under this notification as enabled from time to time”.
The new regime of e-communication is however voluntary and a taxpayer can take a call on whether to conduct his dealing with the taxman over the e-system or through the existing procedure of manual submissions of documents by visiting the I-T department office.
Once a taxpayer registers on the web portal, he or she will get a confirmation SMS and email on their registered mobile number and email ID, indicating success.
“The functionality to conduct e-proceeding will be available for all types of notice, questionnaire, letter issued under various sections of the I-T Act. For example, hearing notice for assessment proceedings under sections 143(3), 147, 263 or 264 etc, proceedings under section 154 and hearing under various sections for penalty.
“Proceedings in first appeal for hearing notice, proceedings for granting or rejecting registration applications under section 12AA, 80G under exemptions, seeking clarification for resolving e-nivaran grievances etc. can also be conducted using the e-proceeding functionality using electronic communication of notice or any document by any Income Tax authority and electronic submission of response by assessee,” it said. All such e-communication by the taxman to the taxpayer will bear the official email of the Assessing Officer (AO) with the email domain being ‘@incometax.gov.in’.
It added “on delivery of the notice, questionnaire or letter to the assessee under e-proceeding tab in the e-filing website of the department – http:// incometaxindiaefiling.gov.in – the assessee will be able to submit his response along with attachments on the e-filing website”.
It added that timelines will also be set for the new process to work smoothly and with all legal sanctity to such processes. “In order to facilitate a final date and time for e-submission, the facility to submit a response will be auto closed seven days prior to the Time Barring (TB) date, if any. If there is no statutorily prescribed TB date, then the Income Tax authority can, on his volition, close the e-submission whenever the compliance time is over or when the final order or decision is under preparation to avoid last minute submissions.
“However, Income Tax authority can also re-enable the e-submission by assessee in both TB or non-TB situations,” it added.
“The CBDT had run a pilot project in this regard sometime back which has paved the way for this absolutely new regime where the taxman and the taxpayer do not have an interface. A majority of tax dealings with the taxpayer in new financial year (2017-18) will be done through the new system,” a senior I-T officer said. The CBDT said a taxpayer will always have the option of coming out of the e-proceeding system at any point of time and go for the manual mode.
Detailing the procedures for the new paperless system, it added: “Upon closure or completion of any proceeding under this procedure, the final order, letter or document will be delivered to the assessee under e-proceeding tab in the e-filing website of the department. If need be, the same may also be delivered by post. “In case the assessee opts for manual mode in the middle of e-proceedings on the e-filing website, further proceedings shall be conducted in manual mode,” it said.
The assessee will also be able to view the entire history of notices, questionnaires, letters, orders on the e-filing website and of his responses under the new system. The new e-proceeding procedure, the CBDT said, is a part of e-governance initiative to facilitate a simple way of communication between the department and the taxpayer, through electronic means, without the necessity of the taxpayer to visit the I-T office.
MINISTRY OF CORPORATE AFFAIRS
New Delhi, the 30th March, 2017
G.S.R. 308(E).—In exercise of the powers conferred by sub-section (1) of section 467 of the Companies Act, 2013 (18 of 2013), the Central Government hereby makes the following further amendments to Schedule III of the said Act with effect from the date of publication of this notification in the Official Gazette, namely:-
2. In the Companies Act, 2013 (hereinafter referred to as the principal Act), in Schedule III, in Division I, in Part I under the heading “General instructions for preparation of Balance Sheet” in paragraph 6, after clause ‘W’, the following clause shall be inserted namely:-
“X. Every company shall disclose the details of Specified Bank Notes (SBN) held and transacted during the period from 8th November, 2016 to 30th December, 2016 as provided in the Table below:-
SBNsOther denomination notes
TotalClosing cash in hand as on 08.11.2016(+) Permitted receipts(-) Permitted payments(-) Amount deposited in Banks Closing cash in hand as on 30.12.2016
Explanation : For the purposes of this clause, the term ‘Specified Bank Notes’ shall have the same meaning provided in the notification of the Government of India, in the Ministry of Finance, Department of Economic Affairs number S.O. 3407(E), dated the 8th November, 2016.”.
3. In the principal Act, in Schedule III, in Division II, in Part I under the heading “General instructions for preparation of Balance Sheet” in paragraph 6, after clause ‘J’, the following clause shall be inserted namely:-
“K. Every company shall disclose the details of Specified Bank Notes (SBN) held and transacted during the period 08/11/2016 to 30/12/2016 as provided in the Table below:-
SBNsOther denomination notesTotalClosing cash in hand as on 08.11.2016(+) Permitted receipts(-) Permitted payments(-) Amount deposited in BanksClosing cash in hand as on 30.12.2016
Explanation : For the purposes of this clause, the term ‘Specified Bank Notes’ shall have the same meaning provided in the notification of the Government of India, in the Ministry of Finance, Department of Economic Affairs number S.O. 3407(E), dated the 8th November, 2016.”.
[F. No. 17/62/2015-CL-V (Vol.I)]
AMARDEEP S. BHATIA, Jt. Secy.
Note : Schedule III of the Companies Act, 2013 came into force with effect from the 1st April, 2014 vide Notification S.O. 902(E), dated 26.3.2014, subsequently amended vide G.S.R. 679(E), dated 04.09.2015 and vide G.S.R. 404(E), dated 06.04.2016.
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