KANTH AND ASSOCIATES · 2014. 12. 12. · minimum floor area for construction development projects...

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not be treated as professional advice or legal opinion. Kanth and Associates also disclaim any responsibility and hereby accept no liability for consequences of any person acting or refraining to act on the basis of any information contained herein.

KANTH AND ASSOCIATESAttorneys and International Legal Consultants

K & A Newsletter

NEWS ALERTS

TAX

CORPORATE, CAPITAL MARKET, ECONOMY & FOREIGN TRADE

Section 80C - bank term deposit limit increased

Government relaxes FDI norms for construction, real estate sector

The Central Government, vide Notification dated 13.11.2014, in exercise of the powers conferred by the Income Tax Act, 1961has made the following amendments to the Bank Term Deposit Scheme, 2006. This scheme may be called the Bank Term Deposit (Amendment) Scheme, 2014. It shall come into force on the date of its publication in the Official Gazette. In the Bank Term Deposit Scheme, 2006, in para 3, in clause (1), for the words “One Lakh Rupees”, the words “One Hundred And Fifty Thousand Rupees” shall be substituted. Thus, the Central Government by virtue of the said Notification has increased the bank term deposit limit under Section 80C of the Income Tax Act, 1961from Rs.1 Lakh to Rs.1.5 Lakh.

The Union Cabinet approved a comprehensive proposal by the Department of Industrial Policy & Promotion (DIPP), dropping the minimum 10-hectare rule for serviced housing plots and slashing the minimum floor area for construction development projects to 20,000 sq m from 50,000 sq m to be eligible for overseas investment. It also halved the minimum foreign direct investment (FDI) amount to $5 million from $10 million and substantially eased the exit norms. The norms will come into force after DIPP issues a notification. Although 100 percent foreign direct investment was allowed in townships, housing and built-up infrastructure and construction developments since 2005, the Government had imposed certain conditions. Though the Cabinet has not reduced the 03 year lock-in period, it has permitted foreign investors to exit on project completion or 3 years from the date of final investment subject to the development of trunk infrastructure.

CONTENTS

— News AlertsTax 1Corporate, Capital Market, Economy & Foreign Trade 1

Judgments 5

— Article 6

Legislations/Notifications 4

By Indirect Taxes On Online Retailers

Mr. Anshumaan Bahadur, Associate, K&A

The commencement of the project will be the date of approval of the building plan/lay out plan by the relevant statutory authority. Subsequent tranches of FDI can be brought till the period of ten years from the commencement of the project or before the completion of the project, whichever expires earlier. It also said that the Government may, in view of facts and circumstances of a case, permit repatriation of FDI or transfer of stake by one non-resident investor to another non-resident investor, before the completion of the project. These proposals will be considered by FIPB on case-to-case basis. The project would also have to conform to the norms and standards, including land use requirements and provision of community amenities and common facilities, as laid down in the applicable building control regulations, bye-laws, rules, and other regulations of the State Government / Municipal / Local Body concerned. Further, the Government has now clearly defined 'developed plots', 'Floor area' and 'real estate business' to remove any kind of ambiguities. Further, it added that projects using at least 60 per cent of the FAR/FSI for dwelling units of Carpet Area not more than 60 sq mt. will be considered as affordable housing projects. It is clarified that 100 per cent FDI under the automatic route is permitted in completed projects for operation and management of townships, malls/ shopping complexes and business centres. For the purposes of this policy, “developed plots” will mean plots where trunk infrastructure including roads, water supply, street lighting, drainage and sewerage, have been made available. It added that “Real estate business” means dealing in land and immovable

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property with a view to earning profit or earning income therefrom and does not include development of townships, construction of residential/ commercial premises, roads or bridges, educational institutions, recreational facilities, city and regional level infrastructure, townships. It clarified that FDI is not permitted in an entity, which is engaged or proposes to engage in real estate business, construction of farmhouses and trading in Transferable Development Rights (TDRs).

The Department of Public Enterprises (DPE), Ministry of Heavy Industries & Public Enterprises, vide its Office Memorandum dated 21.10.2014, laid sown the Guidelines on Corporate Social Responsibility and Sustainability for Central Public Sector Enterprises. These Guidelines will supersede the earlier guidelines on Corporate Social Responsibility and Sustainability issued by the DPE. The Guidelines would supplement CSR Rules (under Companies Act, 2013) notified by Ministry of Corporate Affairs and are issued in consultation with them. These Guidelines have the approval of Minister (Heavy Industries & Public Enterprises) and are effective from 01.04.2014.

The Reserve Bank of India (RBI) tightened norms and rules for non-banking financial company (NBFCs). According to the new guidelines, NBFCs will require higher minimum capital; have less time to declare bad loans, and a board-approved fit and proper criteria for director appointments. The new norms, which will be implemented in a phased manner, are made applicable for NBFCs that manage funds worth Rs.500 Crore and for those that accept public deposits. The RBI will also start granting fresh NBFC licenses. To harmonize the deposit acceptance regulations across all deposit-taking NBFCs (NBFCs-D) and move to a regime of only credit-rated NBFCs-D accessing public deposits, existing unrated asset finance companies (AFCs) have been asked to get themselves rated by March 31, 2016. Those AFCs that do not get an investment grade rating by March 31, 2016 will not be allowed to renew existing or accept fresh deposits thereafter.

Spending on CSR mandatory for all public sector companies

RBI tightens norms for NBFCs

According to current regulations, an asset is classified as non-performing when it remains overdue for six months or more for loans and overdue for 12 months or more in case of lease rental and hire-purchase instalments, compared with 90 days for banks. The new norms proposed to reduce the period in a phased manner so that the norms are at par with banks by March 31, 2018. Similarly, provisioning for standard assets, which is 0.25 per cent for NBFCs now, is proposed to be increased to 0.40 per cent by March 2018, in line with banks. On capital, however, larger and deposit-taking NBFCs will have to increase their minimum tier-1 capital adequacy ratio to 10 per cent by March 2017, from 7.5 per cent now. The overall capital adequacy ratio (asset size of Rs.100 Crore), has been retained at 15 per cent.

The RBI has also tightened the corporate governance and disclosure norms for NBFCs. Besides that, RBI said NBFCs that are part of a corporate group or are floated by a common set of promoters will not be viewed on a standalone basis. With regard to directors' appointment, the RBI said that NBFCs shall ensure there is a policy put in place for ascertaining the fit and proper criteria at the time of appointment of directors and on a continuing basis. The minimum net worth for NBFCs, which were granted licenses before 1999, was retained at Rs.25 Lakh. Now, all NBFCs are to attain a minimum net-owned funds of Rs.2 Crore by March 2017. RBI has also asked for application of enhanced prudential regulations to NBFCs, wherever public funds are accepted and conduct of business regulations will be made applicable wherever customer interface is involved.

The investors will soon be able to view their entire investments in mutual funds and securities held in dematerialized form with the depositories in a single consolidated account statement. The consolidation will be done on the basis of PAN with effect from March 2015. SEBI has kicked off the first phase of the project to create one record for all financial assets of an individual. In case of multiple holdings; it would be PAN of the first holder and pattern of holding. Investors will receive the consolidated account statement on a monthly basis either through

Single account statement for mutual funds & shares




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electronic mail or in physical form at the address registered in the depository system. The consolidated account statement will be implemented from the month of March 2015 with respect to the transactions carried out during the month of February 2015. Based on the PANs provided by the asset management companies, the depositories will match their PAN database to determine the common PANs and allocate the PANs among themselves for the purpose of sending the statement. In case of PANs with only MF unit holdings, fund houses will continue to send the consolidated statements to their unit holders as is being done currently.

If investors have multiple accounts across the two depositories, the depository having the demat account which was opened earlier will be the default depository which will consolidate details across depositories and MF investments and dispatch the statement to the investor. However, options would be given to the demat account holder by the default depository to choose the depository through which the investor wishes to receive the statement. SEBI has asked AMCs to provide the data with respect to the common PANs to the depositories within three days from the month end. Depositories would then consolidate and dispatch the statement within 10 days from the month end. In case there is in any of the MF no transaction in any of the MF folios and demat accounts, then statement with holding details would be sent to the investor on a half-yearly basis.

The Ministry of Corporate Affairs, vide its Circular dated 14.11.2014, has extended the Company Law

stSettlement Scheme (CLSS 2014) up to 31 December, 2014 with due approval of the competent authority. The Government has again extended the scheme that allow such entities to make their statutory filings without attracting any prosecution. This is the second time that the Ministry of Corporate Affairs has extended the deadline. The scheme, which was to first end on October 15, was earlier extended till November 15. Under the Company Law Settlement Scheme 2014, which started on August 15, the defaulter entities can make statutory filings for a

Company Law Settlement Scheme, 2014 extended

period of two months without attracting any prosecution. The new Companies Act, whose many provisions came into force from April 1, has stringent norms to deal with defaulting entities and even directors can be disqualified for failing to make necessary annual filings. A stricter regime for companies defaulting in filing statutory returns, with higher additional fees and penalties, has been brought in through the new Act.

The Securities and Exchange Board of India (SEBI) has tightened rules to keep a check on insider trading and made it cheaper for small investors to participate in companies' delisting process. SEBI has barred directors and key management personnel of listed companies from trading in futures and options contracts of the company. It has also put the onus on the accused to prove that he or she was not in possession of unpublished price sensitive information. Under the new delisting rules, investors will be able to tender their shares on stock exchanges. SEBI has also shortened the period for the delisting process to 76 working days from 137 calendar days. SEBI has also brought in a new set of regulations for listing compliance. It also approved the proposal to review the policy in respect of barring a company or its promoters categorized as willful defaulters from raising capital after going through public consultation process.

The definition of an 'insider' has also been widened by including persons connected with a company on the basis of being in any contractual, fiduciary or employment relationship that allows them access to unpublished price-sensitive information. It would also cover directors and employees who are in possession or have access to such information. The perpetual insiders like the promoters and directors of the company will have to disclose their future trading plan in advance to the stock exchanges and trade strictly as per that plan. Earlier, the definition of price-sensitive information had reference to only the company. Now, it has reference to both the company and securities. Under the revised delisting norms, promoters of listed companies will be able to take their company private only if at least 25% of the

SEBI tightens delisting and insider trading regulations




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number of public shareholders tender shares in the reverse book-building process. According to SEBI, the delisting process would be considered successful only when the shareholding of the acquirer, together with the shares tendered by public shareholders, reaches 90% of the total share capital. Further, promoters have been prohibited from making a delisting offer if any entity belonging to the group has sold shares of the company during a period of six months prior to the date of the board meeting, which approves the delisting proposal.

The Government is planning to revamp the Consumer Protection Act to allow “territory free” legal action against any goods or service provider to help the customers. Under the current rules, a consumer can initiate legal action against a seller only in the place where transaction takes place. The current restriction of jurisdiction cannot work in an e-commerce environment. The Ministry of Consumer Affairs is working on this revamp to safeguard interest of consumers in a World where shopping is not constrained by geography. The existing law, which came into being in 1986, cannot effectively deal with challenges posed by new economic, business and technological developments. The new provisions will cover both goods and service providers but only those that operate physically from the Indian soil.

The Government plans to introduce transparent, competitive bidding for all minerals and in order to facilitate the same, the Government may amend the Mines and Mineral Development and Regulation (MMDR) Act. It has proposed stiff penalties and special courts for illegal mining in the proposed amendment. The proposed amendment comes in the backdrop of suspension of mining activities over the past few years in several states on account of illegal mining. The Government now plans to also auction mining leases for bulk mineral such as iron ore, bauxite and manganese, which are due to be notified soon.

LEGISLATIONS/NOTIFICATIONS

Govt. planning new law to help sue etailers

Proposed amendment in MMDR Act

With regard to the purpose of granting a mining lease in respect of any notified mineral, the draft amendment bill says that the State Government shall select, through auction by a method of competitive bidding, including e-auction, an applicant who satisfies the eligibility conditions. The Mines and Minera ls (Development and Regulat ion) (Amendment) Bill, 2014 says it is designed to put in place mechanisms to improve transparency in the allocation of mineral resources, obtain for the Government its fair share of the value of resources, attract private investment and latest technology, and eliminate administration delays. The amendment Bill not only seeks to make illegal mining a cognizable offence but also proposes a provision to enable State Governments to set up special courts for trial of offences under the Act, if necessary. The Union government will also be specifically empowered to frame rules to prescribe the timelines for the various stages of processing applications for grant of mineral concessions and their renewals.

As per the provisions of the new Road Transport & Safety Bill 2014, it will be mandatory to have a parking lot before a person buys a car. As it goes in the Bill, the fresh application for vehicle registration shall be accompanied by proof of parking space duly specified by the local government authority. As per Section 90(3) of the said Bill, the application for registration shall be accompanied by such proof of parking space as may be specified by the State Government of the State within which the competent registering authority, being applied to, is located subject to a notification to this effect provided by the appropriate State Government or Municipality or Panchayat.

The Rajya Sabha approved the Bill to amend the Labour Laws Act, 1988, which will simplify the procedures of filing returns for small firms. The Bill will now be taken up in Lok Sabha. As part of the amendment to the Labour Laws (Exemption from furnishing returns and maintaining registers by certain establishments) Act, 1988, the Ministry of

New Transport Bill seeks proof of parking for registration

Labour Bill approved by Rajya Sabha




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Labour & Employment has proposed that companies with 10-40 employees will now be exempt from provisions under various labour laws that mandate them to furnish and file returns on various aspects as against establishments with up to 19 employees. Besides, it has proposed to extend the coverage of the Principal Act from 9 Schedules Acts to 16 Schedules Acts, which means that small firms can now use a unified compliance format from 9 to 16. The amendments would also allow small firms to maintain two registers as against three till now besides enabling records and registers in computer, floppy, diskette or on any other electronic media as well as file it through e-mail.

The Central Government has introduced strict rules for checking sexual harassment in its workplaces. The Service Conduct Rules of the Government states that any implied or explicit promise of preferential treatment in employment or creating a hostile work environment for a women employee would amount to sexual harassment. The Government has amended the Central Civil Services (Conduct) Rules, 1964, to expand the definition of “sexual harassment” as well as that of a “workplace”. Specifying the circumstances, which may be construed as sexual harassment, the Central Government has said that any implied or explicit promise of preferential employment or any such threat of detrimental employment or her present employment status may amount to sexual harassment of a woman Government employee. Another act that could spell trouble for male Government superiors is if they met out any humiliating treatment likely to affect a woman employee's health or safety. Interference with her work or creating an intimidating, offensive or hostile work environment for her is now listed as another event amounting to sexual harassment.

The Supreme Court has held that the Board for Industrial and Financial Reconstruction (BIFR) will

Govt. amends Central Civil Services (Conduct) Rules

BIFR sole authority to move Cos out of its supervision: SC

JUDGMENTS

continue to have jurisdiction over any sick company referred to the agency even if its net worth becomes positive. The Board is also the sole authority to decide whether or not such a company can be moved out of its supervision. The Apex Court clarifies a law that has seen conflicting rulings from different High Courts. While some Courts have ruled that BIFR ceases to lose jurisdiction on a company the moment its net worth becomes positive, some others have said the opposite. The Supreme Court held that the Sick Industrial Companies Act gave complete supervisory control to the BIFR over its affairs from the stage of reference and questions concerning status of sickness are in its exclusive domain. The Court further observed that any claim on revival has to be made before the BIFR and only upon the satisfaction of the agency that a company is no longer sick, that such a company would cease to be under its supervisory control. It has further been held that Civil Courts will have no jurisdiction over these aspects and no Suit for recovery of money can be filed without BIFRs approval.

The Supreme Court directed the National Green Tribunal (NGT) to shutdown all industries releasing untreated effluents into the Ganga unless the units take steps to prevent such discharges by March 31, 2015. According to a notification by the Ministry of Environment and Forests, industries releasing untreated effluents have until March to set up treatment plants and get them operational to ensure that the quality of water meets prescribed standards or close operations. The NGT would have the power to disconnect power and water supplies to any defaulting unit. The order will affect industrial units in 11 states through which the Ganga flows. The industries affected include pharmaceuticals, fertilizers, pesticides, distilleries, sugar, pulp and paper, textiles, slaughter houses and tanneries, food and diary units, power plants, cement plants, automobile and locomotive units and paints. According to the Court, NGT will submit a report to the top court every six months.

NGT asked to shutdown industries polluting Ganga: SC




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ARTICLE

1According to research and consultancy firms , the online retail market is projected to grow at a compound annual rate of 40 to 45 per cent during

22014-18 . The current market size of online retail sector has been pinned at $ 3.5 billion (over Rs 21,000 Crore). Online marketplace 'Snapdeal' may soon raise

3$650 million . It's just a tip of an ice-burg. Indian online retail market is estimated to grow over 4 fold to touch $ 14.5 billion (over Rs 88,000 crore) by 2018 on account of rapid expansion of e-commerce in the

4country . Only sufferers are the offline retailers. It is the neglect towards the offline retailers which has transpired into a mega-tax dispute which has put online retailers in askance. Therefore, two issues shall be dealt in this short article, levy of Entry Tax by State Government and levy of Service Tax by Central Government. Confederations of all India Traders have filed a complaint against the e-retailers in the Competition Commission of India, a watch-dog to

5promote fair and just Competition . The demands are not going unheard. Many State Legislations are becoming inclined to levy additional Value Added Tax (VAT) on the said e-purchases. E-retailers sell goods at factory price and save on overheads by delivering them to buyers through courier. The e-retailers also do not pay VAT on sales, as they claim to be just

6shipping the goods from source to end-user . This is the reason that State Governments are hell bent to

7introduce levy of Entry Tax .

The State Government of Odisha, Tamil Nadu, Karnataka, Goa have already made such provisions of levy of Entry Tax. For instance, Tamil Nadu has released a press statement on e-commerce. They have mentioned the online retail companies are evading tax by not declaring their turnover on online

8sales . The press release has given inclusive examples of online sales and has also mentioned that the consumers should see to it that the Tax Payer's

9Identification number is written . The State of Odisha has come up with a press release regarding the

10same .

INDIRECT TAXES ON ONLINE RETAILERS

By Mr. Anshumaan Bahadur, Associate, K&A

Entry Tax/Octroi

The situation in West Bengal in the issue of Entry Tax does not appear to be clear. The West Bengal Tax on Entry of Goods into Local Areas Act, 2012 has been held to be ultra vires of the Constitution of India in Tata Steel Limited and Anr. vs. The State of West

11Bengal and Ors. The impugned Entry Tax Act facially provides for a levy for the purpose of creating a compensatory Entry Tax Fund. Further, under Entry 52 of List II of the Seventh Schedule, it would be evident that Entry Tax levied and collected from one local area had to be spent for the benefit of the trading people of the said local area itself in order to make the levy compensatory. The grounds of challenge were the following:

1) The state did not take the President's assent before imposing it

2) The tax was not compensatory in nature.

However, the High Court while declaring the Act to be unconstitutional, observed that the said impugned Act was not of compensatory nature. However, the Commercial Tax department, despite the aforesaid order appears to be sending notices for assessment to the e-commerce players making the situation uncertain in West Bengal. It would be appropriate if the State Government furnishes the correct position in this regard. In other States like Goa, Maharashtra, Karnataka, Tamil Nadu and Assam the e-commerce sector has already been made liable for the payment of Entry Tax.

The logistic Service Providers provide services through the Goods Transport Agency mode. The Central Government can impose Service Tax on Logistic Service Providers. The nature of transfer agency will determine the service tax and to whom the consignment is delivered will also determine who shall be liable to Service Tax. Therefore, to clear the same, the Ministry of Finance introduced the Notification No. 19/2012 dated June 09, 2012, which introduced Negative List.

Goods Transport Agency is defined under Section 65B(26) as 'any person who provides service in

Service Tax




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relation to transport of goods by road and issues consignment note, by whatever name called'. Courier Agency is defined under section 65B(20) of the Act as 'any person engaged in the door-to-door transportation of time-sensitive documents, goods or articles utilizing the services of a person, either directly or indirectly, to carry or accompany such documents, goods or articles'. The definition is silent on the issue whether there is restriction to transportation of goods only by road. It can transport any documents, goods or articles by any mode of transport such as air, road or water. Services by way of transportation of goods by road are taxable, only if the same is provided by:

(i) a goods transportation agency; or

(ii) Courier agency.

Services of Road Transport provided by all others are not taxable because they are covered by the

12Negative List u/s 66 D (p) (i) of the Act. In other words, if any person is providing service of transportation of goods by road, and is neither covered under the statutory definition of GTA, nor under courier agency, then he is not liable to pay any service tax on such transportation.

Also, the issue of Reverse Charge Mechanism should be considered. Reverse change mechanism shifts the liability to pay Service Tax from service provider to service receiver, provided that certain conditions are

13fulfilled. As per Entry No. A(ii) of N/No.-30/2012 , reverse charge is applicable only when taxable service provided or agreed to be provided by a goods transport agency in respect of transportation of goods by road, where the person liable to pay freight is:

a) any factory registered under or governed by the Factories Act, 1948 (63 of 1948);

b) any society registered under the Societies Registration Act, 1860 (21 of 1860) or under any other law for the time being in force in any part of India;

c) any co-operative society established by or under any law;

d) any dealer of excisable goods, who is registered under the Central Excise Act, 1944 (1 of 1944) or the rules made there under;

e) anybody corporate established, by or under any law; or

f) any partnership firm whether registered or not under any law including association of persons;

An individual is not covered in the above 'specified category'. Individual or Proprietorship Firm can pay any amount of freight to any GTA without any service tax implications. Hence, there shall be no applicability of reverse charge mechanism. The person who pays or is liable to pay freight for the transportation of goods by road in goods carriage, located in the taxable territory shall be treated as the person who receives the service for the purpose

14of this notification . There are two conclusions which can be drawn from the above discussion with respect to levy of Service Tax. Firstly, if the service is received by the individual, then there shall be no applicability of Reverse Charge Mechanism and the levy of Service Tax shall shift to the Logistics Service Provider. Secondly, if the service is received by the Online Retail Company then to avoid the reverse charge mechanism it the aforementioned Notification No. 30/2012 under Section A (ii) (a) to (f) has to be looked into. If the Company fits in any of the aforementioned clauses then reverse charge mechanism shall come into operation and Company will be levied with service tax.

The issue with respect to service tax is well settled as the notification and specific amendments to the Finance Act, 2012 have actually enunciated the role of GTA and Courier Agency with regard to delivery of online purchases. The position of Entry Tax is still equivocal and convoluted. Various States have administered levy of Entry Tax on the online purchases. No doubt the Entry Tax increases the State Revenue but still the reluctance of the Online Retail giants like Flipkart and Amazon, towards levy of Entry Tax clearly infers that they are vexed with the actions of State Government in this aspect. A proper interpretation of the taxing statutes with regards to levy of Entry Tax on online purchase appears to be the need of the hour to bring certainty in the sector.




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References:

1. http://articles.economictimes.indiatimes.com/2014-10-28/news/55521315_1_indian-online-online-shopping-portals-internet-penetration

2 .http://economictimes.indiatimes.com/industry/services/retail/indian-online-retail-market-to-cross-rs-88000-crore-by-2018/articleshow/44958984.cms

3 .http://economictimes.indiatimes.com/industry/services/retail/online-retailer-snapdeal-to-raise-600-650-mn-investment-sources/articleshow/44821394.cms

4. Supra Note 1.

5. http://www.bgr. in/news/complaint-f i led-with-competition-commission-of-india-against-flipkart-and-other-e-commerce-sites/

6. http://articles.economictimes.indiatimes.com/2014-10-01/news/54516726_1_tax-official-tax-authorities-tax-heat

7. The incidence of Entry Tax starts when a dealer who in the course of business, whether on his own persons, brings or

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not be treated as professional advice or legal opinion. Kanth and Associates also disclaim any responsibility and hereby accept no liability for consequences of any person acting or refraining to act on the basis of any information contained herein. 8

cause to be brought into a local area any goods or takes delivery or is entitled to take delivery of goods on its entry into a local area and includes a casual dealer, occasional dealer and a non-residential dealer. It also includes an industrial, commercial or trading undertaking Central as well as State Government Company, H.U.F., a firm, a society, a club which carries on business. Please See, http://goacomtax.gov.in/salestax_taxcon tent_disp.php?cid=50

8. http://www.tnvat.gov.in/English/press%20release-english_131014.pdf

9. Id.

10. https://odishatax.gov.in/ET/notifi/NOT158902014.pdf

11. W.P. Nos. 11407 (W) of 2012 and 18582 (W) of 2012 Decided On: 24.06.2013

12. http://www.servicetax.gov.in/st-edu-guide.pdf

13. http://www.servicetax.gov.in/notifications/notfns-2012/st30-2012.htm

14. Id.

KANTH AND ASSOCIATES · 2014. 12. 12. · minimum floor area for construction development projects...

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