Section I: Client Alerts Direct Tax Updates Indirect Tax Updates Legal & Regulatory Updates Section II: Thought Leadership Success story of Shashank ND, Co-Founder and CEO of Practo Section III: Column Benami Transactions (PROHIBITION) Amendment Bill, 2015 Section IV: IBA's Club Section V: Compliance Calendar

News & Views from IBA

November 2015

Direct Tax CASE LAWS

A fraudulent company can't be chosen as comparable for TP study as its financial results aren't reliable. The assessee, Ocean Connect (I) Pvt. Ltd., (‘OCIPL„) is a wholly owned subsidiary of Oceans Connect (UK) Ltd. (‘OCUK„). It has been set up to provide call centre services to its parent company OCUK. The Assessing Officer made reference to the Transfer Pricing Officer under section 92CA(1). From the details submitted by the assessee, the TPO noted that the assessee during the impugned assessment year has entered into international transaction with its Holding company Oceans Connect (UK) Ltd. for provision of Outbound/Inbound telemarketing/Call centre services amounting to INR 8,32,10,579. The TPO proposed following 2 companies to be taken for benchmarking the international transaction pertaining outbound/inbound telemarketing/call centre services following TNM method – Maple Esolutions Ltd Saffron Global Ltd. The assessee objected to the adoption of the above 2 companies for benchmarking the international transaction stating that they were not aware whether the selected comparable companies operate under similar contracts and similar circumstances. It was further argued that no such adjustment was made in the preceding years. The TPO rejected the explanation of the assessee on the ground that assessee has not commented on the process of finding out the comparable companies and the final 2 comparable companies selected by the TPO. According to the TPO, these final 2 comparable companies were selected after a thorough study made on prowess keeping in mind the provisions and guidelines provided in the Income Tax Act 1961 and I.T. Rules, 1962. According to the TPO, the assessee in the instant case has squarely failed to carry out its responsibility of benchmarking its transaction between the independent unrelated entities. Before CIT(A) the assessee more or less reiterated the same arguments and also stated that the TPO was not justified in rejecting the other 8 comparables which he initially selected from the prowess process. However, the Ld.CIT(A) was not satisfied with the arguments advanced by the assessee and upheld the addition made by the AO/TPO.

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Before the ITAT, the assessee supported its contention by relying on the case of Market Tools Research (P.) Ltd. v. Dy. CIT in which it was held that Maple Esolutions Ltd. cannot be treated as comparable as its financial results are not reliable. The assessee also gave the reference to the judgment of Mumbai Tribunal in the case of Stream International Services (P.) Ltd. Vs. Asstt. CIT, wherein it was held that Mapple ESolutions was under serious indictment in fraud cases and accordingly, it should be excluded from the list of comparables. Referring to the said decision the assessee also submitted that the company Triton Corporation Ltd. was also involved in fraud for which it was held that the financial results of the company were not reliable. Thereafter the assessee made reference to the reply submitted to the TPO via letter dated October 24 , 2008 wherein it was stated that Saffron Global Ltd., and Maple Esolutions are both part of Triton Corporation Ltd. and both are found involved in fraud. In the judgment, ITAT held that the issue requires fresh adjudication at the level of TPO as the assessee has not considered any company as comparable and the 2 companies selected by the TPO from the final list of 10 companies are involved in fraud for which the financial results cannot be considered as correct and reliable. [Oceans Connect (I) (P.) Ltd. Vs. Assistant Commissioner of Income-tax, ITAT Pune] Comparables which are excluded for want of financial data to be included in appellate stage when such details available The assessee American Express (India) Private Limited being a wholly owned subsidiary of America Express International Inc., USA was engaged in providing IT Enabled Services to its group companies i.e. transaction processing, data management, information analysis and control. For the work which assessee undertook with its Associated Enterprises, assessee was remunerated at cost plus method. During the relevant period, the assessee entered into various international transactions with its Associated Enterprises which included:- 1. Export of business processing and support 2. Charges for CDN/CPU. 3. Travel agency services 4. Secondment of personnel

The assessee in its TP study selected 16 comparables and arrived at their margin at 14.62%. The TPO, however, rejected the transfer pricing study of the assessee. The TPO was of the view that multiple year data is not to be taken. The TPO held that single year data only needs to be considered. Further, the TPO excluded Max Healthscribe Limited and Weal Infotech Limited from the list of comparables on account of insufficient data for the current year. The TPO arrived at the adjusted operating profits of the comparables at 23.90% and made arm's length price adjustment of Rs. 36,89,34,440/. The CIT (A) partly allowed the appeal of the assessee. Against the order of the CIT (A), the assessee filed an appeal requesting for inclusion of Weal Infotech Limited along with other two companies.

This company was selected as comparable by the assessee. However the TPO excluded the same from the list of comparables on the ground that current year's data was not available. Before the CIT (A), the assessee submitted the financial information of the company and requested for accepting the same as a comparable. The CIT (A) accepted that the company is functionally comparable, but upheld the deletion of the same on the grounds that financial information was not submitted at the time of TP documentation and it cannot be taken into consideration at this stage. Before the Tribunal, assessee pleaded for inclusion of Weal Infotech Limited and placed reliance on the order of Delhi Tribunal in the case Asstt. CIT Vs. Convergys India Service (P.) Ltd. The Tribunal in the above case opined that though the company is excluded by the TPO, for the reason that there is no financial data is available at the time of TP study, the same can be included in the comparable list, during the appellate stage when financial details are made available. Considering the above, the ITAT held on this issue that it would be appropriate to restore the matter to AO/TPO so as to consider whether Weal Infotech Limited is to be included in the comparable list and if yes what would be the arithmetic mean. [American Express (India) (P.) Ltd. Vs. Deputy Commissioner of Income-tax]

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Press Release

Finance Minister launches the“e-Sahyog” pilot project of the Income-tax Department Driven by Digital India initiative of the Government of India, the finance minister on October 27, 2015 launched an “e-Sahyog” pilot project which furthers the Department„s commitment to work in an e-environment and reduces the need for the taxpayer to physically appear before tax authorities. This pilot project is aimed to reduce compliance cost and to provide an online mechanism for resolving mismatches in Income-tax returns to taxpayers whose returns have not been selected for scrutiny, without visiting the Income Tax Office. Department will provide an end to end e-service using SMS, e-mails to inform the taxpayers of the mismatch. The taxpayer will simply need to visit the e-filing portal log in with their user-ID and password to view mismatch related information and submit online response on the issue. On the same lines, CBDT earlier during the month issued a letter dated October 19,,2015 initiating the use of Email based communication for paperless assessment proceedings. Under this project, the department plans to send through email the questionnaires, notice etc. at the time of scrutiny proceedings and getting responses from them using the same medium on a pilot basis.

Indirect Tax CASE LAWS

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Excess baggage charges collected by airlines are integral part of main service, namely, transportation of passenger by air - demand of ST under category of 'Transportation of Goods by Air' is not sustainable The appellants are Kingfisher Airlines & Jet Airways who are in the business of transporting passengers by air. While transporting passengers, the baggage of passengers is also transported. There is a free allowance for carrying of baggage and any baggage in excess of free allowance is liable to transportation charges. The Revenue smelt a 'baggage' case here. It was of the view that charges collected by the Airlines for the excess baggage is liable to Service Tax under the category of "Transportation of Goods by Air" and accordingly, demand notices for recovery of Service Tax were issued. This matter came to be referred to the third member (judicial) on December 2 ,2014 due to difference in opinion between member (judicial) and member (technical). The third member (judicial) on reference heard the matter on April 23, 2015 and has passed an order on September 16 , 2015. The Majority order, therefore, the excess baggage charges collected by the appellants are an integral part of the main service namely transportation of passengers by air. Therefore, the demand of service tax is set aside. Extended period of limitation is not invokable. Penalties cannot be imposed on the appellants as there is no element of any fraud or suppression. Kingfisher Airlines Ltd & Jet Airways Ltd VS Commissioner of Service Tax (2015-TIOL-2329-CESTAT-MUM) Goods need not to be re-exported from the same port from which they were imported in order to claim the benefit of duty drawback. The issue raised in the present case was whether re-export needs to take place from the same port as from where the goods were imported in order to avail the benefit of duty drawback/ issuance of Duty Credit Scrip. As mentioned in Circular No. 72/2002, as long as the conditions mentioned in Sec 74 of the Customs Act are being satisfied, it is not necessary that re-export be done from the same port. Held, the assessee was allowed to be issued the scrip„s even if re-export was from a different port. [M/s Cipla Ltd v/s Commissioner of Customs (Export), Acc, Mumbai-III (2015-TIOL-1927-CESTAT-MUM)] Refund claim shall not be rejected merely by not debiting the amount of refund to the books as on the date of filing of refund. The apple of discord here is that whether Refund of CENVAT Credit can be denied solely on the grounds that the entry for the same had not been made in the CENVAT Credit Register at the time of filing of refund. Notification 5/2006 mandates the CENVAT credit to be debited in the books at the time of filing of refund claim. In the given case, the appellant debited the same at a later date. The refund claim was denied by the commissioner as it was in violation of the above said notification. Held, refund claim cannot be denied solely on the above said grounds and shall be granted to the assesse under Rule 5 of CENVAT Credit Rules. [Sandoz Private Limited v/s Commissioner of Central Excise, Belapur (2015-TIOL-2076-CESTAT-MUM)]

Notifications

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1. Notification No. 22/2015-Central Excise (N.T) The Said Notification has allowed to off-set the unutilised balance of Cesses towards payment of consolidated Service tax calculated @ 14%. However, the utilisation is subject to fulfilment of the following conditions:

a) Cesses paid on inputs or capital goods received in the premises of service provider on or after the 1st day of June, 2015. b) Balance 50% of Cesses paid on capital goods received in the premises of the provider of output service in the financial year 2014-15. c) Cesses paid on input service in respect of which the invoice, bill, challan etc. is received by the service provider on or after the 1st day of June, 2015.

http://www.cbec.gov.in/htdocs-cbec/excise/cx-act/notifications/notfns-2015/cx-nt2015/cent22-2015 2. Circular No. 1630/1516045 dated October 28, 2015 The due date for filling UP VAT Audit Report and Annual Return for FY 2014-15 is extended from September 30, 2015 to December 31, 2015 . http://comtax.up.nic.in/Circulars/2015-16/Circular_no_1516045.pdf 3. Notification No. FTX.49/2014/88 dated October 12, 2015 Extends due date for filling Annual Return and Audit Report for FY 2014-15 in Assam to December 31, 2015 from October 31, 2015. https://www.tax.assam.gov.in/vat21/vat21/notification/FTX_49_2014_88.pdf 4. Notification No. 1720/A.C.S.E & T dated November 2 , 2015 The due date for filling quarterly return for the period ended September 30, 2015 is extended to November 16, 2015 from October 30, 2015 in Haryana. http://www.haryanatax.com/Circulars/Order%20of%20Online%20Return%202-11-15.pdf 5. Circular No. 27 dated October 28, 2015 extends due date for filling online return of second quarter from October 25, 2015 to November 16, 2015 in Delhi. http://dvatonline.gov.in/Docs/Circulars/877746.pdf 6. Notification No. F.3(352)/Policy/VAT/2013/929-40 dated October 21, 2015 Extends the due date of filling DP-I online to November 21, 2015 in Delhi. Further the form shall be filled by dealers registered upto September 30, 2015 http://dvatonline.gov.in/Docs/Notifications/870778.pdf

Legal & Regulatory

NOTIFICATION RESERVE BANK OF INDIA Non-Banking Financial Company-Micro Finance Institutions (NBFC-MFIs) (RBI/2015-16/196 DNBR.CC.PD.No. 069/03.10.01/ 2015-16 dated October 01, 2015) In reference to the instructions on pricing of credit by MFIs, the condition relating to the maximum variance permitted shall not be applicable to loans extended by NBFC-MFIs against funding by The National Scheduled Castes Finance & Development Corporation (NSFDC). NSFDC has proposed to expand its outreach by channelizing funds through select NBFC-MFIs at lower rate of interest for the economic empowerment of persons belonging to Scheduled Castes living below the Double Poverty Line. Furthermore, appropriate disclosures shall be made in the balance sheet and minimum disclosures should include quantum of funds received from NSFDC, cost of such funds, loans disbursed therefrom, rate of interest on such loans and the number of beneficiaries. https://www.rbi.org.in/Scripts/NotificationUser.aspx?Id=10053&Mode=0

Foreign Exchange Management (Transfer or Issue of Security by a Person Resident outside India) (Ninth Amendment) Regulations, 2015 (Notification No FEMA.353/2015 RB dated October 06, 2015) The Reserve Bank of India (RBI) has made amendment in the Schedule 5 of the Foreign Exchange Management (Transfer or Issue of Security by a Person Resident outside India) Regulations, 2000 wherein it is mentioned that a Non- Resident Indian may subscribe to National Pension System governed and administered by Pension Fund Regulatory and Development Authority (PFRDA), provided such subscriptions are made through normal banking channels and the person is eligible

to invest as per the provisions of the PFRDA Act. The annuity/ accumulated saving will be repatriable. https://www.rbi.org.in/Scripts/NotificationUser.aspx?Id=10072&Mode=0

Reporting requirement under Foreign Account Tax Compliance Act (FATCA) and Common Reporting Standards (CRS) (RBI/2015-16/205 DPSS. CO. AD. No. 745/02.27.005/2015-16 dated October 15, 2015) The Reserve Bank of India (RBI) has issued a notification on the reporting requirement under FATCA and CRS. Also, the copies of the circulars issued by Department of Banking Regulation on FATCA are enclosed in this notification.

https://www.rbi.org.in/Scripts/NotificationUser.aspx?Id=10073&Mode=0

Financial Inclusion Fund (FIF) - Revised Guidelines (RBI/2015-16/206 DCBR.RCBD.BPD.No.4/19.51.010/2015-16 dated October 15, 2015) The Government of India (GOI) has merged Financial Inclusion Fund (FIF) and Financial Inclusion Technology Fund (FITF) which was constituted in the year 2007-08 for a period of five years with a corpus of Rs. 500 crore each, to form a single Financial Inclusion Fund. The Reserve Bank of India (RBI) has finalised the new scope of activities and guidelines for utilisation of the new FIF in consultation with GOI. The new FIF will be administered by the reconstituted Advisory Board constituted by GOI and will be maintained by NABARD. https://www.rbi.org.in/Scripts/NotificationUser.aspx?Id=10074&Mode=0

No fresh permission/ renewal of permission to LOs of foreign law firms (RBI/2015-16/215 A. P. (DIR Series) Circular No. 23 dated October 29, 2015) The Hon„ble Supreme Court vide its interim orders dated July 4, 2012 and September 14, 2015, passed in the case of the Bar Council of India vs A.K. Balaji & Ors., has directed RBI not to grant any permission to any foreign law firm, on or after the date of the said interim order, for opening of Liaison Office (LO) in India. Hence, no foreign law firm shall be permitted to open any LO in India till further orders/notification in this regard and those who have been granted permission prior to the date of interim order for opening LOs in India may be allowed to continue provided such permission is still in force. https://www.rbi.org.in/Scripts/NotificationUser.aspx?Id=10092&Mode=0

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Thought LEADERSHIP

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Shashank ND

In early 2008, Shashank ND was frantically getting together his father„s medical records and scanning them. He wanted to get a second opinion from an American physician, for an operation that his father was about to undertake. If that„s not bad enough, he was also unable to access enough information about the doctor, to make an informed decision before putting his father„s life in the doctor„s hands. This incident urged Shashank and his classmate Abhinav Lal to set up Practo Technologies Pvt. Ltd. The duo founded the company in Bengaluru, in 2008, when they were still college students in their final year of engineering (B.Tech, computer engineering) at National Institute of Technology, Karnataka. Though numerous players have come into the practice management space since Practo Ray began, Shashank believes that Practo„s razor sharp focus on product quality and support has enabled it to maintain a steady lead. Practo had earlier raised $4 million in July 2012 and is now on course to raise a series B round of $20 million from existing investors, Sequoia Capital (not confirmed by Practo yet). The growth numbers Practo Ray has 10,000+ doctors on the system. Over 10 million electronic patient records (doubling every year) have been created, over 7.5 million unique patients and over 7 million appointments are being made every year. In Singapore, Practo Ray is also the largest online clinic management software provider in terms of market share, reaching this milestone less than 2 years after launch. Practo.com has over 1,00,000 doctors listed from over 310 Indian towns and cities, with comprehensive coverage from the metros of Bangalore, Mumbai, Delhi, Hyderabad, Chennai, Pune and Singapore. It has over 1.3 million page views and 30,000 appointments booked every month, with traffic growing at 24 per cent per month. The company has seven offices, in Mumbai, Delhi, Bengaluru, Chennai, Hyderabad, Pune and Singapore. In terms of revenue, Practo has been growing at 50-100% QoQ.

Things that work Growth and brand awareness has primarily happened because of word of mouth, references and testimonials from customers, most of whom are leading opinion leaders and influencers in their field. Hospitals in India have traditionally been very reluctant to even share the contents of the medical records with the patients themselves. Practo Ray has found success with private doctors and smaller clinics as they are much more willing to be open and find the service useful. But in bigger hospitals, administrators and technology officers typically make decisions on patient management systems and the doctors themselves have no say, he adds. Practo„s success has been largely founded on these private doctors who have been impressed by the breadth of the offering of Practo Ray for their practice. Lessons from the entrepreneurial journey • One should always think long term • Don„t ship junk • Never never never quit

Column BENAMI TRANSACTIONS (PROHIBITION) AMENDMENT BILL, 2015 by Ramit Chitkara

Introduction

A transaction is considered as benami (literally ‘nameless„ or ‘without name„) when a property is transferred to a person and the consideration for the same is paid by another person. In order to prohibit such benami transactions and tackle this issue, the Benami transactions (Prohibition) Act, 1988 was enacted which came into force on 19 May 1988. However, due to various inherent deficiencies in the Act, the rules required for operationalizing the mechanism could not be framed thereunder. To address these deficiencies, Mr. Arun Jaitley, Finance Minister introduced the amendment Bill in Lok Sabha on May 13, 2015. Highlights of the Benami Transactions (Prohibition) Amendment Bill, 2015 Key highlights of the bill are as under: 1. Widened definition of “Benami transactions” A. An arrangement:

a) where a property is transferred to/ held by a person and the consideration is paid by another person and b) the property is held for the immediate/future or direct/indirect benefit of the person who has paid the consideration.

B. An arrangement in respect of a property: a) made in a fictitious name, or b) where the owner of the property is not aware of, or, denies knowledge of, such ownership; or c) where the person providing the consideration is not traceable or is fictitious;

2. Exclusions from the scope of “Benami transactions” a) Property held in the name of the children or spouse through known income sources; b) HUF buying property in the name of the any member of the HUF; c) Property held by someone in fiduciary capacity such as a trustee, executor, partner, director of a Company and Depository or

Depository participant under depository act; d) Property jointly held with brother, sister or lineal ascendant or descendant for which the amount is paid out of known sources of

income;

3. It explicitly defines various important terms, not defined under the previous legislation A. “Benami Property” It means any property which is the subject matter of a benami transaction and also includes the proceeds from such property; B. “Benamidar” It means a person/fictitious person, in whose name the benami property is transferred or held and includes a person who lends his

name; C. “Beneficial Owner” It means a person, whether his identity is known or not, for whose benefit the benami property is held by a benamidar;

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4. Specification of the penalty for entering into benami transactions Any person who enters into a benami transaction defeating the provisions under the bill or avoiding any statutory dues shall be subject to rigorous imprisonment for a term ranging from 1 year to 7 years and a fine which may extend to 25% of the fair market value of the property. The bill also seeks to provide penalty for providing any false information which is rigorous imprisonment of 6 months to 5 years and a fine which may extend to 10% of the fair market value of the benami property 5. Establishment of Adjudicating authorities and an Appellate Tribunal to deal with benami transactions The Bill seeks to establish four authorities to conduct inquiries or investigations regarding benami transactions: a) Initiating Officer, b) Approving Authority, c) Administrator and d) Adjudicating Authority

The bill also proposes to establish an Appellate Tribunal to hear appeals against any orders passed by the Adjudicating Authority. The Appeals against orders of the Appellate Tribunal will lie to the high court. The Government introduced the Benami Transactions (Prohibition) Amendment Bill on May 13, 2015 which got cleared by Lok Sabha and now headed towards Rajya Sabha for approval. In view of the circumstances stated above, comprehensive amendments to the Benami Transactions (Prohibition) Act, 1988 are necessary in order to prohibit holding property in benami and restrict right to recover or transfer property held benami. The Bill proposes to iron out various provisions under the act and provides an effective statutory framework for confiscation of property held benami in order to curb the domestic black money in the economy.

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Column BENAMI TRANSACTIONS (PROHIBITION) AMENDMENT BILL, 2015

Birthdays of the Month

Nimish Goel 7-Nov

Barkha Matharu 14-Nov

Sanchit Sethia 21-Nov

Ramit Chitkara 26-Nov

IBA wishes You a Happy Birthday and a great year ahead!!

THOUGHTS WHICH INSPIRE US

Those who say it can't be done are usually interrupted by others doing it.

Do not wish to be anything but what you are, and try to be that perfectly.

If you go out looking for friends, you're going to find they are very

scarce. If you go out to be a friend, you'll find them everywhere Character may be manifested in the great moments, but it is made in

the small ones.

Every man dies; but not every man really lives..

Imagination is more important than intelligence.

A boss was complaining in a staff meeting the other day that he wasn„t getting any respect.

Later that morning he went to a local sign shop and bought a small sign that read, "I'm the Boss”.

He then taped it to his office door. Later that day when he returned from lunch, he

found that someone had taped a note to the sign that said. “Your wife called, She wants her sign back!”

Samsung accounts for 20% of Korea’s gross domestic product.

Amazon.com employees spend two

days every two years working at the customer service desk — even the CEO — in order to help all workers understand the customer service process..

Ginger amazingly improves the

process of digestion and also wash off harmful microbial content of the body. This is a great herb which you can use to perfectly conduct kidney cleansing process.

The Indian Ocean earthquake in 2004

generated enough energy to power all the homes and businesses in the United States for three days.

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JOKES

IBA‘s CLUB

INTERESTING FACTS

Sumit Vij - June 9th IBA wishes You a Happy Birthday and a great year

ahead!!

November 2015

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Deposit of TDS/TCS deducted in October 2015

Service tax deposit for October -company (on-line)

Service tax Deposit for October – (Manually)

EPF deposit for October

EPF Monthly Return

Sunday Monday Tuesday Wednesday Thursday Friday Saturday

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Payment of DVAT/CST for October/ ESIC deposit for October

ITR for eligible assessee Form 3CD & 3CEB

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