Ease of doing business in India – Related Party Transactions

Related party Transactions.

As part of its ongoing efforts to improve ease of doing business in the country, the Corporate Affairs Ministry has notified changes that further relax compliance requirements.

As another major step, the Companies Amendment Act, 2015 addresses “problems faced by large stakeholders who are related parties”.

In this new amendment, it replaces “special resolution with ordinary resolution for approval of related party transactions [Section 188] by non-related shareholders”.

Besides, related party transactions between holding companies and wholly owned subsidiaries have been exempted from the requirement of approval of non-related shareholders.

As per the amendment, the requirement of passing special resolution for approving certain related party transactions has been done away with. With this, certain related party transactions can now be approved through ‘ordinary resolution’ instead of ‘special resolution’.

Further, it has also been provided that for related party transactions between a holding company and its wholly owned subsidiary, no resolutions are required to be passed if the accounts of the holding and subsidiary company are consolidated and placed before the shareholders in a general meeting for approval.

Punishment for Contravention on defaults relating to deposits

Punishment for Contravention of Section 73 and Section 76 of Companies Act, 2013 for Acceptance of Deposits by Companies [New Section 76A inserted]

 

The Companies (Amendment) Act, 2015 has inserted a new Section 76A after Section 76 which introduces penal provisions for contravention of provisions of Section 73 and Section 76 (pertaining to acceptance of deposits by a company) or rules made thereunder, or if a company fails to repay deposits within the time specified.

As per the amended law:
A company, if it fails to repay deposits within the specified time, shall be punishable with a fine which shall not be less than Rs.1 crore but which may extend to Rs. 10 crores, in addition to the payment of the amount of deposit or part thereof and the interest due.
Every officer of the company who is in default shall be punishable with imprisonment which may extend to seven years or with a fine which shall not be less than Rs. 25 lakhs but which may extend to Rs. 2 crore, or with both.
Thus, specific punishment is prescribed for non-compliance to norms governing deposits taking activities.

India, Singapore to sign strategic partnership pact during PM’s visit

Taking their bilateral ties to the next level, India and Singapore are expected to sign a strategic partnership pact during prime minister Narendra Modi’s visit to that country from November 23 to 25.

The broad contours of the agreement were also discussed during the fourth India-Singapore joint ministerial committee meeting held here on Tuesday. It was co-chaired by external affairs minister Sushma Swaraj and her Singaporean counterpart Vivian Balakrishnan.

The strategic partnership agreement would comprise expansion of cooperation in five main areas: Scaling up investment and trade; speeding up air and maritime connectivity; smart city development and urban rejuvenation; skills development and capacity building, and state focus on strengthening business and cultural links, according to a press release issued by the Singapore High Commission.

“The strategic partnership will come with deliverables and concrete outcomes, with focus on urban solutions, smart cities and knowledge and skill transfer,” Balakrishnan told reporters after the meeting.

Balakrishnan also highlighted the need to enhance connectivity between India and Singapore, particularly in the aviation sector.

He also highlighted Singapore’s contributions to India in the areas of smart cities and skills development.

“Both ministers agreed on the need to enhance economic cooperation, including expanding trade and investment between both countries,” the release stated.

This will be Modi’s second visit to Singapore as India’s prime minister. He last went there in September to attend the funeral of Singapore’s founding father Lee Kuan Yew.

Singapore is planning for a similar reception Modi had received in San Jose in US last month. He has also been chosen to deliver the prestigious “Singapore Lecture” during the visit.

Source: http://www.business-standard.com/article/economy-policy/india-singapore-to-sign-strategic-partnership-pact-during-pms-visit-115101300787_1.html

Vodafone gets a reprieve in Rs. 8,500-cr transfer pricing case

The Bombay High Court on Thursday gave a favourable ruling to Vodafone in the transfer pricing case related to the sale of the company’s call-centre business to Hutchison and assignment of call options to Vodafone International.

The tax dispute, which dates back to 2007-08, arose after the tax authorities added Rs. 8,500 crore to the taxable income of the call centre unit. It had initially received a tax claim of about Rs. 3,600 crore.

While the Income-Tax Appellate Tribunal had upheld the I-T department’s claim, the High Court has accepted Vodafone’s position that the Department had no jurisdiction.

The court was of the view that there is no transfer of the ‘call options’ and, hence, the transaction does not fall within the purview of transfer pricing.

The I-T Department can challenge this order in the Supreme Court.

“We will study the order of the Bombay High Court on the Vodafone transfer pricing issue and then take a call,” Revenue Secretary Hasmukh Adhia said.

The I-T Department had issued its draft transfer-pricing order in December 2011. In 2012, Vodafone India Services moved the High Court challenging the Department’s jurisdiction.

This is the second major victory for Vodafone in tax-related cases in India. In October, the Bombay High Court had ruled that Vodafone is not liable to pay Rs. 3,200 crore in taxes in a 2009-10 transfer pricing case.

However, a verdict is still awaited in the $2.5 billion capital gains tax case, where the Department had asked Vodafone to pay tax for acquiring Hutchison’s telecom operations in India.

(This article was published in the Business Line print edition dated October 9, 2015)

STPI to sponsor over 100 start-ups for CeBIT show

To promote domestic start-up companies, state-run Software Technology Parks of India (STPI) will sponsor over 100 such new age IT firms during the three-day CeBit India exhibition, which is scheduled to begin from October 29 in Bengaluru.

“We are collaborating with CeBit to promote start-ups. Last year, we sponsored 127 start-up companies and looking for similar number this year as well,” STPI Director General Omkar Rai told PTI.

He said that STPI has written to states for nominating best start-up companies from their territory and they will be then shortlisted by STPI.

“Start ups are not required to pay anything. STPI will spend around Rs 50 lakh… Around 10 start-ups were able to make to the show in Hannover where Prime Minister Narendra Modi had also visited,” Rai said.

Hannover Milano Fairs organised CeBit show in Germany.

Around 450 firms are expected to participate in CeBit India, which included major participation from STPI, Hannover Milano Fairs India Managing Director Mehul Lanvers-Shah said.

“We are expecting 10 per growth in CeBit India participation and even we are seeing traction from foreign companies. Last year 25 countries participated in the show. This year we have 27 with participation increasing from Taiwan, China, Germany and Canada,” Shah said.

India signs 16 advance pricing pacts with MNCs

The income tax department has signed 16 advance pricing agreements (APAs) with multinational companies (MNCs) so far, exempting their transactions with local units from rigorous tax audits.

APAs were introduced to give tax certainty to MNCs that agree on certain principles in the valuation of their cross-border transactions.

These companies are in the business of telecommunication, oil exploration, pharmaceuticals, finance, banking and software development.

India has also resolved 45 tax disputes with multinational companies, especially US-based IT and IT-enabled services firms, under provisions in a bilateral tax treaty for avoiding double taxation. Sources said the tax department is working on another set of disputes for resolution. The India-US treaty provides for tax authorities of both the countries to bilaterally apportion the income of MNCs from cross-border operations to be taxed in each country and avoid double taxation.

The scheme, called mutual agreement procedure (MAP), offers MNCs a quick dispute resolution mechanism.

Most of the large US-based software companies having contract research and development operations in India have faced tax disputes on how much of the local arms’ revenue from services to the offshore parent is taxable in India.

“We are working on signing as many as 50 APAs, including some bilateral ones and resolving about 100 tax disputes under MAP soon,” said a person privy to the development.

Corporate tax exemptions phase-out may end MAT

The Minimum Alternate Tax (MAT) could be phased out after some years, if and when all corporate tax exemptions and deductions are phased out.

This could take at least seven or eight years. If it happens, experts agree, it would reduce tax litigation.

A finance ministry official said MAT might become redundant in seven years or more and could be removed. “For now, it will remain in the Income Tax Act, even if it does not affect people. If there are no substantial deductions that reduce the income to below 18.5 per cent, MAT will not be applicable. In seven to 10 years, as MAT becomes redundant, it will be removed,” he said.

MAT THROUGH THE YEARS
  • 1987-88: Rajiv Gandhi introduces Section 115J in I-T Act to tax zero tax companies at at least 15% of book profits
  • 1990-91: Madhu Dhandvate Abolishes it
  • 1996-97: P Chidambaram re-introduces section 115 JA. MAT rate at 12.5% of total book profit.
  • 2000-01: Yashwant Sinha amends and makes  it 115 JB. Rate at 7.5%. Continues even today. Simplifies rules
  • 2006-07: 7.5%, but long capital gains taken into account to compute book profit
  • 2009-10: 10%
  • 2010-11: 15%
  • 2011-12: 18%
  • 2012-13: 18.5%
  • 2013-14: 18.5%
  • 2014-15: 18.5%
  • 2015-16: 18.5%


The government is also looking at setting a sunset date for most open-ended tax concession schemes, alongside a five percentage point reduction in the corporate tax rate in four years. The rate is 30 per cent, but is close to 23 per cent, on account of a large number of exemptions and deductions. The revenue forgone in 2012-13 on account of deductions in this regard was Rs 68,000 crore.

In the next financial year, the corporate tax rate might be around 29 per cent, after a cut, part of a plan to align Indian taxation levels to global standards. “As the government progressively reduces the rate to 25 per cent and phases out exemptions and deductions, the need for MAT goes away. It will simplify a lot of things,” said Sudhir Kapadia, national tax leader, EY.

The finance ministry will issue a discussion paper on phasing out the exemptions and deductions. It is likely to announce the road map in the Budget.

MAT is levied at 18.5 per cent and was meant for large companies that showed book profits but took advantage of legal provisions to avoid paying corporate tax, via dividend payments and other legal deductions to stated income. As of now, 38 corporate tax deductions apply to industry, including benefits for units set up in Special Economic Zones (SEZs), the northeast states, hilly states and so on. Besides, tax incentives are offered for expenditure on scientific research, funding charitable trusts and institutions and the like. Deductions are also offered to sectors such as power, telecommunications, and infrastructure.

“As the corporate tax rate is reduced to 25 per cent, MAT will also not make sense, as the two rates anyway come close,” said  Rajesh H Gandhi, partner, Deloitte Haskin and Sells.

Rahul Garg, leader, direct taxes, PwC, said the government should look at replacing corporate tax with MAT. The effective corporate tax was 23.4 per cent, he explained, while that of MAT was close to 22 per cent. “If the government simply increases the MAT rate by one percentage point, collections will go up. With this, the government could get rid of all disputes,” he said.

SEZs lost sheen after then finance minister Pranab Mukherjee in 2011-12 imposed MAT on the book profits of these developers and units inside one.

That and a dividend distribution tax of 10 per cent made these  enclaves unattractive. Only 192 of the 388 notified SEZs are operational, meaning at least one functional export unit. There are 588 approved SEZs.

Exports from SEZs fell 7.6 per cent in 2014-15. The department of commerce has been pressing the finance ministry for the withdrawal of MAT but the latter has not obliged. The Budget for 2015-16 has  exempted foreign portfolio investment from MAT and the government has also accepted the A P Shah panel recommendation to do away with past cases of MAT on foreign institutional investors. A change to the law is on its way, while tax officials have been instructed not to pursue notices, issued against foreign instituional investors. However, applicability of MAT on foreign companies without permanent establishment remains. A case relating to this involving Castleton Investments is pending in the Supreme Court.