CBEC notifies Accounting code for payment of Krishi Kalyan Cess

Circular No. 194/04/2016-ST F. No. 354/31/2016-TRU

Government of India

Ministry of Finance
Department of Revenue
(Tax Research Unit)

Dated the 26th May, 2016.

To

Principal Chief Commissioners of Customs and Central Excise(All)
Principal Chief Commissioners of Central Excise & Service Tax (All)
Principal Director Generals of Goods and Service Tax/System/CEI
Director General of Audit/Tax Payer Services,
Principal Commissioners/ Commissioners of Customs and Central Excise (All)
Principal Commissioners/Commissioners of Central Excise and Service Tax (All)
Principal Commissioners/Commissioners of Service Tax (All)
Principal Commissioners/Commissioners LTU/Central excise/Service Tax (Audit)

Madam/Sir,

Subject: Accounting code for payment of Krishi Kalyan Cess – regarding.

Chapter VI of the Finance Act, 2015 will come into effect from 1st June, 2016. Krishi Kalyan Cess is leviable on all taxable services, other than services which are fully exempt from Service Tax or services which are otherwise not liable to Service Tax under section 66B of the Finance Act, 1994, at the rate of 0.5%.

2. Accordingly, accounting codes have also been allotted by the Office of the Controller General of Accounts for the new Minor Head “507-Krishi Kalyan Cess” and new Sub-heads as under:

S.No	Krishi Kalyan Cess (Minor Head)	Tax Collection	Other Receipts (Interest)	Deduct Refunds	Penalties
1	0044-00-507	00441509	00441510	00441511	00441512

4. All concerned are requested to acknowledge the receipt of this circular.

5. Trade Notice/ Public Notice to be issued. Wide publicity through local news media including vernacular press may be given. Hindi version shall follow.

Yours faithfully,

(Abhishek Chandra Gupta)

Technical Officer (TRU)

CENVAT Credit (Seventh Amendment) Rules, 2016 - Service Tax

GOVERNMENT OF INDIA MINISTRY OF FINANCE (DEPARTMENT OF REVENUE)

NOTIFICATION No. 28/2016 – Central Excise (N.T.)New Delhi, the 26th May, 2016

G.S.R.—(E).– In exercise of the powers conferred by section 37 of the Central Excise Act, 1944 (1 of 1944) and section 94 of the Finance Act, 1994 (32 of 1994), the Central Government hereby makes the following rules further to amend the CENVAT Credit Rules, 2004, namely : –

1. (1) These rules may be called the CENVAT Credit (Seventh Amendment) Rules, 2016.
    (2) They shall come into force on 1st of June, 2016.

2. In the CENVAT Credit Rules, 2004, in rule 3,
    (a) after sub-rule (1), the following sub-rule shall be inserted, namely :-
          “(1a) A provider of output service shall be allowed to take CENVAT credit of the Krishi Kalyan Cess on taxable services leviable under section 161 of the Finance Act, 2016 (28 of 2016);”;

    (b) in sub-rule (4), after the ninth proviso, the following proviso shall be inserted, namely,-
          “Provided also that the Cenvat credit of any duty specified in sub-rule (1) shall not be utilised for payment of Krishi Kalyan Cess leviable under section 161 of the Finance Act, 2016 (28 of 2016);”;

    (c) in sub-rule (7),
          (i) after the words, figures and brackets “sub-rule (1)”, the words, figures and brackets “, sub-rule (1a)” shall be inserted;
          (ii) after clause (c), the following clause shall be inserted, namely,-

   “(d) Cenvat credit in respect of Krishi Kalyan Cess on taxable services leviable under section 161 of the Finance Act, 2016 (28 of 2016) shall be utilised only towards payment of Krishi Kalyan Cess on taxable services leviable under section 161 of the Finance Act, 2016 (28 of 2016)”;

[F. No. B-1/18/2016 – TRU]

Diwali Gift !!! - Swachh Bharat Cess @ 0.5% on value of all taxable services levied from November 15, 2015

Pursuing with Mr. Narendra Modi’s Dream of Swachh Bharat, in Union Budget 2015, a provision was made for levying a Swachh Bharat Cess (“SB Cess”) on all or any of the services, for the purposes of financing and promoting Swachh Bharat initiatives or for any other purpose relating thereto. However, the SB Cess was to be levied from such date as may be notified by the Central Government after the enactment of the Finance Bill, 2015.

SB Cess now made applicable from November 15, 2015 – Notification No. 21/2015-ST dated November 6, 2015:

After the Hon’ble President had given assent to the Finance Bill, 2015 on May 14, 2015, the Ministry of Finance, Department of Revenue vide Notification No. 14/2015-ST dated May 19, 2015 had notified increase in the rate of Service tax from 12.36% to flat 14% (Subsuming Education Cess and Secondary & Higher Secondary Education Cess) to be effective from June 1, 2015. But SB Cess was left to be notified at a later date.

Now, the Central Government vide Notification No. 21/2015-ST dated November 6, 2015 has appointed November 15, 2015 as the date from which, SB Cess shall be effective. SB Cess would be over and above the present 14% Service tax rate.

SB Cess at the rate of 0.5% will be levied on value of all taxable services – Notification No. 22/2015-ST dated November 6, 2015:

Section 119 of the Finance Act, 2015 (Chapter VI) that contains a provision of new levy of cess called the SB Cess, empowers the Central Government to impose Cess on all or any of the taxable services at the rate of 2% of the value of such services, for the purpose of financing and promoting Swachh Bharat initiatives or for any other purpose relating thereto.

Therefore, the Central Government has also issued another Notification i.e. Notification No. 22/2015-ST dated November 6, 2015 to exempt all taxable services from payment of SB Cess which is in excess of 0.5% of the value of taxable services. In other words, w.e.f. November 15, 2015 ‘SB Cess’ @ 0.5% will be levied on value of all taxable services i.e. the effective rate of Service tax including SB Cess will be 14.5% from November 15, 2015.

No SB Cess on services specified under the Negative List of services or otherwise exempted by a notification issued under sub-section (1) of section 93 of the Finance Act, 1994:

Notification No. 22/2015-ST dated November 6, 2015 further provides that SB Cess shall not be leviable on services which are exempt from Service tax by a notification issued under Section 93(1) of the Finance Act, 1994 or otherwise not leviable to Service tax under Section 66B thereof.

Therefore, SB Cess @ 0.5% will be levied on value of all taxable services except the following:
  * Negative List of Services under Section 66D of the Finance Act, 1994
  * Services exempted by a notification issued under sub-section (1) of Section 93 of the Finance Act, 1994 i.e.
      # Mega Exempted Services vide Notification No. 25/2012-ST dated June 20, 2012.
     # Services exempted as specified to certain extent under the Abatement Notification No. 26/2012-ST dated June 20, 2012

Open issues that require immediate clarification from the Board:

It is worth observing that the Government has not provided any further details of the levy of SB Cess. The continuous hike in Service tax rate from 12.36% to 14% and now 14.5% will definitely raise the burden of taxes on the ‘Aam Aadmi’. Further number of issues may crop up if no further clarification is issued, few of which are discussed as under:

a) Accounting head: What will be the accounting head for depositing SB Cess?

b) Availability of Cenvat credit of SB Cess in the hands of Manufacturer or Service Provider: Whether Cenvat credit of SB Cess would be available or not as there is no amendments proposed in the Cenvat Credit Rules, 2004 pertaining to availment of Cenvat credit of SB Cess?

c) Calculation of value of taxable services under Abatement Notification: How SB Cess would be dealt while availing the benefit of abatements by way of an exemption provided vide Abatement Notification No. 26/2012-ST dated June 20, 2012.

For example, under GTA services, presently, abatement of 70% is available and accordingly, Service tax is required to paid on 30% of value of taxable service after exemption (abatement) of 70% as provided under the said Abatement Notification.

Hence, question is arising → What would be effective rate of Service Tax including SB Cess. Whether it would be leviable at 4.2% (i.e. 30% of 14%) + 0.5% = 4.7% or 30% of 14.5% = 4.35%?

As per our understanding, it should be 4.35% as taxable value after abatement i.e. 30% for GTA Service for chargeability of Service Tax and SB Cess would be SAME in terms of sub-section (5) of Section 119 of the Finance Act, 2015, which states that “the provisions of Chapter V of the Finance Act, 1994 and the rules made there under, including those relating to refunds and exemptions from tax, interest and imposition of penalty shall, as far as may be, apply in relation to the levy and collection of the Swachh Bharat Cess on taxable services, as they apply in relation to the levy and collection of tax on such taxable services under Chapter V of the Finance Act, 1994 or the rules made there under, as the case may be.”

However, it is better that a proper clarification is issued in this regard.

d) Treatment of SB Cess on ongoing transactions: With the Service tax rate (including SB Cess) of 14.5% becoming effective from November 15, 2015, there are chances of turmoil being faced by the service provider in respect of the ongoing transactions for which either certain advance payment is received prior to November 15, 2015 but the completion of provision of service may take place post November 15, 2015 or vice versa.

Tussle between Rule 4 of the Point of Taxation Rules, 2011 and Section 67A of the Finance Act, 1994 will again crop up but, we are of the considered view that SB Cess should be levied on value of taxable services rendered on or after November 15, 2015.

With the aim of Mr. Narendra Modi’s Government to introduce GST by April 1, 2016 wherein all the Cesses on goods and services will be subsumed under the GST, the logic of introducing such a levy under the banner of SB Cess just few months before, will definitely create hue and cry among the Trade.

As SB Cess awaits its introduction, in days to come, an immediate detailed clarification on the various aspects of applicability of SB Cess and availability of its credit will surely be welcomed by the industry at large.

Relevant Provisions pertaining to SB Cess in Chapter VI of the Finance Act, 2015:

THE FINANCE ACT, 2015 – CHAPTER VI

SWACHH BHARAT CESS

“119. (1) This Chapter shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.

(2) There shall be levied and collected in accordance with the provisions of this Chapter, a cess to be called the Swachh Bharat Cess, as service tax on all or any of the taxable services at the rate of two per cent. on the value of such services for the purposes of financing and promoting Swachh Bharat initiatives or for any other purpose relating thereto.

(3) The Swachh Bharat Cess leviable under sub-section (2) shall be in addition to any cess or service tax leviable on such taxable services under Chapter V of the Finance Act, 1994 (32 of 1994), or under any other law for the time being in force.

(4) The proceeds of the Swachh Bharat Cess levied under sub-section (2) shall first be credited to the Consolidated Fund of India and the Central Government may, after due appropriation made by Parliament by law in this behalf, utilise such sums of money of the Swachh Bharat Cess for such purposes specified in sub-section (2), as it may consider necessary.

(5) The provisions of Chapter V of the Finance Act, 1994 and the rules made there under, including those relating to refunds and exemptions from tax, interest and imposition of penalty shall, as far as may be, apply in relation to the levy and collection of the Swachh Bharat Cess on taxable services, as they apply in relation to the levy and collection of tax on such taxable services under Chapter V of the Finance Act, 1994 or the rules made there under, as the case may be.”

e-Form 16 facility available to dealers having turnover more that 2 Cr

e-Form 16 facility is already available to dealers above 500 Cr which was further extended to dealers having turnover above 2 Cr vide notification no 3696 dt 15/10/2015.

The manual forms 16 will not be available to the dealers having annual turnover above 2 Cr. from the midnight of 31st October, 2015, only e-forms will be used instead of manual forms.

Notification as follows:

New Commercial Tax Officer's Jurisdiction

New Commercial Tax Officer's Jurisdiction
vide notification 841/2015/05(100)/xxvii(8)/02/T.C.
dated 23.09.2015.

CBDT finally extended due date all over India to 31.10.2015

Government of India
Ministry of Finance
Department of Revenue
Central Board of Direct Taxes

PRESS RELEASENew Delhi, 1st October, 2015

Subject: Extension of date for filing of Income tax returns and tax audit reports to 31st October 2015 – regarding

The issue of extension of last date for e-filing returns of income and audit reports u/s 44AB due by 30th September, 2015 has been the subject matter of litigation in various High Courts across the country. While some High Courts have ruled in favour of the extension of due date, some others have ruled otherwise. In order to avoid discrimination between taxpayers residing in different jurisdictions and to be fair to all, and also in view of paucity of time to approach the Hon’ble Supreme Court by way of Special Leave Petition, the Government has decided that across the country, all the returns of income and audit reports u/s 44AB which were due for e-filing by 30thSeptember, 2015, may now be filed by 31st October, 2015.

Necessary order u/s 119 of the Income-tax Act, 1961 has been issued by CBDT in this regard.

(Shefali Shah)
Pr. Commissioner of Income Tax (OSD)
Official Spokesperson, CBDT

Tax Audit Date Extended?- Fake Order doing rounds

Sunday Evening when I was enjoying the evening with family suddenly My Email and Whatapps Message box shown spike of messages which were coming from our viewers and friends. The Most of the Messages/Emails were in respect of one Income Tax order in which it is claimed that Due date for Income Tax Return is been extended to 15th October 2015 from current 30th September 2015.

We checked the Notification for its authenticity and found that the same cannot be relied for the following reasons :-

1. We confirmed with CBDT officials and they denied issue of any such Notifications.

2. We checked the official Websites of Income Tax, Government of India and Finance ministry and have not found any such notification, Order or announcement.

3. Income Tax Press release starts with F. No. while in this order it started with PF N0.

4. in Address of ICAI Pin code is 110001 instead of 110003.

5. Income Tax Office is in North Block not West Block.

6. Income Tax Department do not have ITEN division. Normally such announcement comes from TPL Division or ITA.II Division. 

7. Its been issued on Saturday -26.09.2015 a day when CBDT offices were closed. 

8. At the top date is 26.09.2015 but in signature the date is mentioned as 26/05/2015. 

9. In Subject orders mentions extension of date of ITR but in body the Notification discussed about section 44AB related to Tax Audit. 

10. Due dates for Tax Audit Returns is been specified under section 139(1) not under Section 44AB. Order which is doing rounds on Social media is as follows :-  

We request our readers to not to rely on any such notification unless they confirm the same with official website of Government of India or they may check our website where we will update them if any such announcement comes. 

Source Online Article

e-Form 16 facility available to dealers having turnover more that 50 Cr

e-Form 16 facility is already available to dealers above 100 Cr which was further extended to dealers having turnover above 50 Cr vide notification no 3109 dt 16/09/2015 (click for notification).

The manual forms 16 will not be available to the dealers having annual turnover above 50 Cr. from the midnight of 30th September, 2015, only e-forms will be used instead of manual forms.

Civil & Electrical Contractors Scheme for 2015-16

The most awaited civil & electrical contractors scheme is now available vide notification no 675 dt 10/08/2015

The scheme is effective from 01.042015 till 31.03.2016

Copy of notification

Supreme Court Stays Imposition of Service Tax on Lawyers

Supreme Court bench comprising Chief Justice H.L. Dattu, Justice A.K. Mishra and Justice Amitava Roy has stayed the Bombay High Court’s order, dated 15.12.2014 in the case of P.C. Joshi Vs. Union of India of dismissing the petition challenging levy of service tax on lawyers.
The Bombay Bar Association has challenged aforesaid order as well as the provision of Sub-clause (zzzzm) of clause (105) to Section 65 of the Finance Act, 1994, which was inserted by the Finance Act, 2011.

Few of the prominent questions of law, amongst others, as framed before SC are as below:

Whether the relationship between an advocate and a litigant is that of a provider and a service recipient or whether the relationship is that of a representative and a litigant ?

Whether the impugned judgment is correct and legal in as much as levy of service tax on the provision of assistance to the court would hit the provision of justice either by the individual or a business entity as both are indisputably guaranteed under right to justice in terms of Article 21 read with Article 39A of the Constitution ?

Bombay High Court 

It is pertinent to note that Bombay High Court while dismissing the petition held that

“the taxable service means any service provided or to be provided to any person, by a business entity, in relation to advice, consultancy and assistance in any branch of law, in any manner.”

“legislature by inserting such provision has neither interfered with the role and function of an advocate nor has it made any inroad and interference in the constitutional guarantee of justice to all. The services provided to an individual client by an individual advocate continues to be exempted from the purview of the Finance Act and consequently Service Tax but when an individual advocate provides service or agrees to provide services to any business entity located in the taxable territory, then, he is included and liable to pay Service Tax.’ The judgment also notes, ‘The Advocates and legal practitioners are known to pay professional taxes and taxes on their income. They are also brought within the purview of service tax because their activities in legal field are expanding in the age of globalization, liberalization and privatization. They are not only catering to individuals but business entities.”

Source: Online

e-Form 16 facility available to dealers having turnover more that 100 Cr

e-Form 16 facility is already available to dealers above 500 Cr which was further extended to dealers having turnover above 100 Cr vide notification no 2159 dt 22/07/2015 (click for notification).

The manual forms 16 will not be available to the dealers above 100 Cr. from the midnight of 14th August, 2015, only e-forms will be used instead of manual forms.

CBDT notifies ITR-1, ITR-2, ITR-2A and ITR-4S to be filed for AY 2015-16

[TO BE PUBLISHED IN THE GAZETTE OF INDIA, EXTRAORDINARY, PART II, SECTION 3, SUB- SECTION (ii)]

GOVERNMENT OF INDIA
MINISTRY OF FINANCE
DEPARTMENT OF REVENUE
[CENTRAL BOARD OF DIRECT TAXES]
NEW DELHI

NOTIFICATION

Dated: June 22, 2015

S.O. 1660 (E).– In exercise of the powers conferred by section 295 of the Income-tax Act, 1961 (43 of 1961), the Central Board of Direct Taxes hereby makes the following rules further to amend the Income-tax Rules, 1962, namely:-

1. (1) These rules may be called the Income-tax (8th Amendment) Rules, 2015.
    (2) They shall be deemed to have come into force with effect from the 1st day of April, 2015.

2. In the Income-tax rules, 1962,-
   (1) in rule 12,-
        (a) in sub-rule (1),-
            (I) in clause (a), in the proviso, for clause (III), the following clause shall be substituted, namely: –
                “(III) has agricultural income, exceeding five thousand rupees;”;
            (II) after clause (b) the following clause shall be inserted, namely:-
                 ‘(ba) in the case of a person being an individual not being an individual to whom clause (a) applies or a Hindu undivided family where the total income does not include any income chargeable to income-tax under the heads “Profits or gains of business or profession” and “Capital gains” and to whom the provisions of clause (I) and clause (II) of the proviso to clause (a) does not apply, be in Form No. ITR-2A and be verified in the manner indicated therein;';
           (III) in clause (ca), in the proviso, for clause (III), the following clause shall be substituted, namely: –
                 “(III) has agricultural income, exceeding five thousand rupees;”;

        (b) in sub-rule (4), for the words, brackets, letters and figures “in the manners specified in clauses (i), (iii) and (iv) of sub-rule (3)”, the words, brackets, letters and figures “in the manners (other than the paper form) specified in column (iv) of the Table in sub-rule (3)” shall be substituted.

   (2) in Appendix-II, for “Forms SAHAJ (ITR-1), ITR-2 and SUGAM (ITR-4S)” the “Forms SAHAJ (ITR-1), ITR-2, ITR-2A and SUGAM (ITR-4S)” shall be substituted, namely:-

[NOTIFICATION NO. 49/2015/ F.No.142/1/2015-TPL]

(Gaurav Kanaujia)
Director to the Government of India

Note.- The principal rules were published in the Gazette of India, Extraordinary, Part-II, Section 3, Sub-section (ii) vide notification number S.O.969(E), dated the 26th March, 1962 and last amended by the Income-tax (7th Amendment) Rules, 2015, vide notification number S.O. No. 1014 (E), dated 15 April, 2015.

_______________________________________________

To Download the Excel Utility follow the below link:

https://incometaxindiaefiling.gov.in/

DSC issuance process to get stringent from 1st July 2015

Verification process going to be very stringent w.e.f. 1st July 2015. Procure your DSC in Advance expiring in near future

We would like to update that DSC issuance process is going a vital change w.e.f 1st July 2015.

Detailed guidelines may be downloaded by going on below link :
http://cca.gov.in/cca/sites/default/files/IDENTITYVERIFICATIONGUIDELINES2015v1.pdf

You are requested to plan your Digital signatures before 30th June for those DSC expiring in new future as the issuance process would be more stringent and cumbersome post 1st July, 2015. The rates may also undergo change as a part of implementation cost of new guidelines as is being said by the Certifying Authorities. Please find outlined the key new changes which would be required to be adhered to going forward:

1. Attestation procedure:
(a) Attestation of supporting documents by RA will not be allowed.
(b) The documents are to be attested only by Group A/B Gazetted Officers / Bank Manager / Post Master.
(c) The Attesting Officers should also specify their Name, designation, office address andcontact number.
(d) The list of Gazetted Officers are also listed in CCA Guidelines.
(e) The signature of applicant has to be in Blue-ink only.

2. Mobile Verification for all Classes of Certificate
* Before Approval of DSC, Certifying Agency will make a telephonic verification, through the mobile number provided in application.
* The mobile number should also be unique in each application, as is currently in the case of email ID.

3. Video Recording for Class 3
* In place of physical verification, now CA / RA will make a video recording of the applicant for a specified time duration.
* Before providing final Approval, Certifying Agency will verify the applicant through a video recording.
* Applicant will have to answer a specific set of questions to establish his identity
* This recording will happen directly in CA System, in a tamper proof way. That means, if RA is recording the video, the recording has to be made in CA provided software / portal, and will be directly recorded to CA System
* Old videos or the videos sent over email or downloaded from web, etc will not be allowed.

4. Organization application
* New set of documents prescribed for Organization verification. Multiple documents are required, including Incorporation Certificate, AOA (2 pages), MOA(2 pages), Bank Statement, Audit Report of last year along with annual return, Board resolution for Authorized Signatory. Similar set of documents are also listed for Partnership Firms and Proprietorship entities.
* Authorization letter should be signed in Blue Ink Only

5. Application form
The forms shall undergo changes as may be required for new verification guidelines. Old formsshall not be accepted thereafter. The application form will be signed in Blue-ink only.

6. Aadhaar based eKYC: (HASSEL FREE)
New provision of Aadhaar based eKYC has been introduced. In this case, there is NO need for mobile / video verification. A Biometric device will be needed to perform a transaction via this mode. More details on the modus operandi and process related to this mode will be intimated as and when formulated.

Document as proof of identity (Any one):

(a) Aadhaar (eKYC Service)
(b) Passport
(c) Driving License
(d) PAN Card
(e) Post Office ID card
(f) Bank Account Passbook containing the photograph and signed by an individual with attestation by the concerned Bank official.
(g) Photo ID card issued by the Ministry of Home Affairs of Centre/State Governments.
(h) Any Government issued photo ID card bearing the signatures of the individual.

Documents as proof of address (Any one):
(a) Aadhaar (eKYC Service)
(b) Telephone Bill
(c) Electricity Bill
(d) Water Bill
(e) Gas connection
(f) Bank Statements signed by the bank
(g) Service Tax/VAT Tax/Sales Tax registration certificate.
(h) Driving License (DL)/ Registration certificate (RC)
(i) Voter ID Card
(j) Passport
(k) Property Tax/ Corporation/ Municipal Corporation Receipt

7. Foreign Nationals

New procedures have been notified as per Section 3 of the Guidelines.

Please note that in view of the new verification guidelines, there will be many procedural changes which may result in 5 to 7 days for issuance of a DSC until the new process stabilizes.

Article by Mr. Kamal Prateek, Advocate
Source online

Free issue of samples is not liable for VAT

Commercial Taxes Officer vs M/s Indian Shaving Products Ltd.

(Rajasthan High Court at Jaipur)

SB Sales Tax Revision Petition no.718/1999

Date of Judgment -10/4/2015

The fundamental principle of sales tax is that there should be sale of goods involving buyer and seller, there should be transfer of property in goods from the seller to the buyer and flow of consideration from the buyer to the seller.

In case of samples issued by the assessee as a part of promotion program, first of all there is no buyer and seller, there is no transfer of property in goods and there is no consideration.

When none of the conditions are fulfilled, there is no sale as per Sales Tax/VAT Acts.

Even though Trade/Industry/Department is aware of the above statutory position, still demands are raised on free samples issued and the disputes are reaching to the level of High Court, clogging the precious time of the courts.

In a recent judgement, High Court of Rajasthan has held that free issue of samples is not liable for VAT. Observation of the High Court is as follows :-

Free samples is in accordance with trade practice and is one of the major factor where manufacture/producer can put its product in the market. Marketing through free samples is commonly accepted trade practice which one is required to resort in the competitive business environment. The revenue gains substantially when the samples are accepted over the years by the consumers who later on purchases the commodity. It is also noticed that the free samples in the instant case is negligible to the total turnover. The free samples provided to the dealer who in turn provides the same to selected consumers cannot be said to be liable for sales tax. It has no marketable value. To say that the samples provided by assessee can be held to be liable to sales tax, in my view, does not appear to be justified and Tribunal has rightly come to the said conclusion.

Tax Planning- Save tax through your family

Saving Tax through Family! Surprised! Yes, we can save tax through our family members i.e. Parents, Major Children’s and Wife. To Save Tax through Family members we needs to invest in way that our tax burden shifts to our family members and we can take the benefit of Income Tax Slabs. Saving tax Through means not only saving in tax but also means Post Tax higher returns on your Investment.

Here is how we can save tax through our family members.

Through Parents

You can save tax through our own parents as well as through our Parent in-laws. To achieve this goal you needs to give away a portion of your funds, either as a gift or a loan, to your parents as well as your parents in law so that in years to follow your income tax burden becomes lighter as the income on funds transferred by you to them which would bring in income would be taxed in their hands.

Assuming that both the parents are senior citizens. Here’s how you go about it. Income tax deductions allow senior citizens a tax-free income of Rs 3 lakh. To exhaust this limit, say you gift Rs 28 lakh to each parent in cash. Of this, both can individually put Rs 15 lakh in a senior citizens savings scheme that earns a return of nine per cent and pays interest every quarter. Each will get yearly interest of nearly Rs 1.4 lakh. If they invest the remaining Rs 13 lakh each in the long term fixed deposit (FD) of eight-years (assuming interest rate of 7.5 per cent) that pays interest each quarter, it will fetch them an income of nearly Rs 1 lakh annually. That means both parents have earned Rs 2.8 lakh from the senior citizen saving scheme and another Rs 2 lakh from FD each year. A total savings of Rs 4.8 lakh – the tax-free limit (Rs 2.40 lakh) that each parent enjoys. So, they don’t even need to deposit any tax.

Same planning can be done for parents in laws.

Through Major Children

All your adult children are as solid as a rock to help you save your income tax. After October 1, 1998, the provisions relating to gift-tax have ceased to exist. Now you are free to gift away your money to your children without attracting gift tax. Investment made by Major Children out of the gift received by you will be taxed in the hands of your children. If for any reason you are inclined to make gifts to your major children, then you may give interest-free loans to your adult children so as to legally reduce your taxable income.

It is lawful to grant interest-free loans to adult children from your own funds.

Through Your Wife

Married taxpayers can make a substantial saving of income tax by setting up two separate independent income tax files, one each for the husband and the wife. If your wife is already filing Income Tax Return then she may continue filing the return with her new surname and address or with her old surname and address.

Thus, as a result of marriage one should plan a separate income-tax file of the wife. However, care should be taken to ensure that no direct gift or transfer from husband is made to the wife as clubbing provision may get attracted.

Article by CA Sandeep Kanoi

Converting a Partnership firm into a Private Limited Company

Corporatisation is the need of the hour. The entire world is gradually drifting towards one global market without any trade barriers between the countries. A small unincorporated organization led by few partners cannot think of growth on large scale without corporatizing itself. Corporatisation has its own advantages such as Limited Liability, Perpetual Succession, Transferability of shares, easy access to funds etc. Advantages of converting

All the assets and liabilities of the firm immediately before the conversion become the assets and liabilities of the company.

No Stamp Duty - All movable and immovable properties of the firm automatically vest in the Company. No instrument of transfer is required to be executed and hence no stamp duty is required to be paid.

No Capital Gain Tax - No Capital Gains tax shall be charged on transfer of property from Proprietorship firm to Company.

Continuation of Brand Value - The goodwill of the Proprietorship firm and its brand value is kept intact and continues to enjoy the previous success story with a better legal recognition.

Carry Forward and Set off Losses and Unabsorbed Depreciation - The accumulated loss and unabsorbed depreciation of Partnership firm is deemed to be loss/ depreciation of the successor company for the previous year in which conversion was effected. Thus such loss can be carried for further eight years in the hands of the successor company.

Mandatory Conditions

All partners of the partnership firm shall become shareholders of the company in the same proportion in which their capital accounts stood in the books of the firm on the date of the conversion.

* The partners receive consideration only by way of allotment of shares in company and the partners share holding in the company in aggregate is 50% or more of its total voting power and continue to be as such for 5 years from the date of conversion.

Requirements

* Registered Partnership firm with minimum 7 Partners

* Minimum Share Capital shall be Rs. 100,000 (INR One Lac) for conversion into a Private Limited Company

* Minimum Share Capital shall be Rs. 500,000 (INR five Lac) for conversion into a Public Limited Co.

* If the above requirement is not fulfilled by the firm, then the Partnership deed should be altered

* Minimum 7 Shareholders

* Minimum 2 Directors (for Private Limited Co.) and 3 Directors (for Public Limited Co.)

* The directors and shareholders can be same person

* DIN (Director Identification Number) for all the Directors

* DSC (Digital Signature Certificate) for two of the Directors

Process

* Filing of requisite form for Conversion

* Preparation of Foundation documents of the Company

* Filing for name approval

* Filing of Incorporation documents

* Receiving certificate of incorporation

Source: Online Article

Author Ankita Chopra

Received Gift? Check taxability before enjoying!

We receive gifts in cash, ornaments, land, car, gadgets, vouchers and many more on various occasions like on birthday, marriage, achievements and even sometimes out of gratitude too. Feel special and happy on its receipt, right? But have you ever bothered to check its taxability under Indian Income Tax Law? If not, then here are the provisions of income tax law related to gift. Some of the gifting transactions are to be taxed under the Income Tax Act, 1961 and the onus to offer such gift for tax and then to pay tax on it; is on the recipient of such gift. Remember in this article, we will be testing only those transactions for “taxability” which are having gift value exceeding Rs.50,000/- and that too received without consideration i.e. nothing is exchanged for such gift by an individual on or after October 1, 2009.  

There are 3 aspects of the transaction which need to be considered in consolidation before concluding its taxability…

1. Money or Property received as Gift.

2. Relationship with the person gifting such money or property.

3. Occasion on which gift is received.

Let us first understand; what are those things which can be a taxable gift under the law.

1. Money i.e. cash or cheque or draft.

2. Property: The term “Property” is specifically narrated in the law. So besides those items, other gifts will not come in the purview of taxability and property includes;

i. immovable property being land or building or both;

ii. shares and securities;

iii. jewellery;

iv. archaeological collections;

v. drawings;

vi. paintings;

vii. sculptures;

viii. any work of art;

ix. bullion (bullion w.e.f June 1, 2010)

Lesson: Receipt of Gift other than in Money or Property is not liable for tax.

Second aspect to be look upon is the relationship with the person gifting such money or property. Income Tax Act has excluded transactions of gift received from relatives from taxing and relative with respect to an individual includes;

i. spouse of the individual;

ii. brother or sister of the individual;

iii. brother or sister of the spouse of the individual;

iv. brother or sister of either of the parents of the individual;

v. any lineal ascendant or descendant of the individual;

vi. any lineal ascendant or descendant of the spouse of the individual;

vii. spouse of the person referred to in items (ii) to (vi)

Lesson: Receipt of Gift in Money or Property from a relative is not liable for tax.

Now coming to occasions, gift received on specified events or circumstances is excluded from taxability such as;

i. on the occasion of the marriage of the individual;

ii. under a will or by way of inheritance;

iii. in contemplation of death of the payer or donor;

iv. from any local authority;

v. from any fund or foundation or university or other educational institution or hospital or other medical institution or any trust or institution referred to in section 10(23C);

vi. from any trust or institution registered under section 12AA.

Lesson: Receipt of Gift in Money or Property from a relative or from a non-relative on specified occasion/circumstances is not liable for tax.

So whenever you will be doing a taxability test for any gift transaction, go by each of these step and conclude. But it is not as simple and straight as it looks; it also includes many other aspects relating to computation and documentation; so it is always advised to consult your Tax Advocate or Tax Advisor on receipt of gift or if possible before entering into such gifting transactions.

Article found online

Service tax rate increased from 12.36% to 14% (Subsuming EC and SHEC) effective from 01.06.2015

After the Hon’ble President has given assent to the Finance Bill, 2015 on Thursday, May 14, 2015, the Ministry of Finance, Department of Revenue vide Notification No. 14/2015-ST dated May 19, 2015 has notified increase in the rate of Service tax from 12.36% to flat 14% (Subsuming Education Cess and Secondary & Higher Secondary Education Cess) to be effective from June 1, 2015.

Service Tax: Analysis of Changes Applicable With Enactment of Finance Bill 2015

FINANCE BILL 2015 RECEIVED PRESIDENT ASSENT

Finance Bill, 2015 has got President Assent on 14th May, 2015 and has become Finance Act, 2015. As you know, Finance Bill 2015 has proposed lot of changes in Service tax provisions, applicable with effect from various dates.

Now with the enactment of Finance Bill, 2015, following changes have become applicable:

DEFINITIONS INTRODUCED / AMENDED

1. The Term “Government Defined: Services, excluding few specified services, provided by the government have been included in the Negative List. Further, specified services received by the government are also exempt. Hitherto, the term “government” has not been defined in the Act or the notification. This has given rise to interpretational issues. To address such issues, a definition of the term “government” is being incorporated in the Act.

Sub-section 26A inserted in section 65B in order to define the term Government. The term ‘Government’ defined to mean Central Government, State Government, Union territory and its departments. But it would not include entities whose accounts are not required to be kept under Article 150 of the Constitution.

2. Service Tax liability on Chit fund foremen and distributors or selling agents of lottery:

The intention in law has always been to levy Service Tax on the services provided by:

(i) chit fund foremen by way of conducting a chit.

(ii) distributors or selling agents of lottery, as appointed or authorized by the organizing state for promoting, marketing, distributing, selling, or assisting the state in any other way for organizing and conducting a lottery.

However, Courts have taken a contrary view in some cases, while in some cases the levy has been upheld.

Hence, in order to remove ambiguity, an explanation is being inserted in the definition of “service” to specifically state the intention of the legislature to levy service tax on activities undertaken by chit fund foremen in relation to chit, and distributors or selling agents of lottery in relation to lotteries.

CHANGES IN PRINCIPLES OF INTERPRETATION

3. Section 66F which deals with Principles of interpretation of specified description of services or bundled services. It prescribes that unless otherwise specified, reference to a service shall not include reference to any input service used for providing such service. An illustration is being incorporated in this section to exemplify the scope of this provision.

As illustrated, reference to service provided by RBI, in section 66D(b) does not include any agency service provided by other banks to RBI, as such agency services are input services used by RBI for provision of its main service. Accordingly, banks providing agency service to or in relation to services of RBI, are liable to pay Service Tax on the agency services so provided by virtue of the existing section 66F (1).

CHANGES IN VALUATION OF SERVICES

4. Section 67 : Valuation of Taxable Service: The definition of the term ‘consideration’ amended to include:

(a) all reimbursable expenditure or cost incurred and charged by the service provider subject to prescribed circumstances.

The intention has always been to include reimbursable expenditure in the value of taxable service. However, in some cases courts have taken a contrary view. Therefore, the intention of legislature is being stated specifically by this provision.

(b) amount retained by the distributor or selling agent of lottery from gross sale amount of lottery ticket, or, as the case may be, the discount received, that is the difference in the face value of lottery ticket and the price at which the distributor or selling agent gets such tickets.

PENAL PROVISIONS, RECOVERY OF TAX, APPEALS

5. Section 73 : Recovery of service tax not levied or paid or short-levied or short-paid or erroneously refunded: Section 73 is being amended in the following manner:

(i) a new sub-section (1B) is being inserted to provide that recovery of the service tax amount self-assessed and declared in the return but not paid shall be made under section 87, without service of any notice under sub-section (1) of section73,; and

(ii) sub-section (4A), that provides for reduced penalty if true and complete details of transaction were available on specified records, is being omitted.

Consequently, Rule 6 (6A) of Service Tax Rules which provided for recovery of service tax self-assessed and declared in the return under section 87 is being omitted due to the amendment in section 73 for enabling such recovery

6. Section 76: Penalty for failure to pay service tax: Section 76 is being amended to rationalize penalty, in cases not involving fraud or collusion or wilful mis-statement or suppression of facts or contravention of any provision of the Act or rules with the intent to evade payment of service tax, inthe following manner,-

(i) penalty not to exceed ten per cent of service tax amount involved in such cases;

(ii) no penalty is to be paid if service tax and interest is paid within 30 days of issuance of notice under section 73 (1);

(iii) a reduced penalty equal to 25% of the penalty imposed by the Central Excise officer by way of an order is to be paid if the service tax, interest and reduced penalty is paid within 30 days of such order; and

(iv) if the service tax amount gets reduced in any appellate proceeding, then penalty amount shall also stand modified accordingly, and benefit of reduced penalty ( 25% of penalty imposed) shall be admissible if service tax, interest and reduced penalty is paid within 30 days of such appellate order.

7. Section 78: Penalty for suppressing etc. : Section 78 is being amended to rationalize penalty, in cases involving fraud or collusion or wilful mis-statement or suppression of facts or contravention of any provision of the Act or rules with the intent to evade payment of service tax, in the following manner,-

(i) penalty shall be hundred per cent of service tax amount involved in such cases;

(ii) penalty equal to 15% of the service tax amount is to be paid if service tax, interest and reduced penalty is paid within 30 days of service of notice in this regard;

(iii) a reduced penalty equal to 25% of the service tax amount determined by the Central Excise Officer, by an order, is to be paid if the service tax, interest and reduced penalty is paid within 30 days of such order; and

(iv) if the service tax amount gets reduced in any appellate proceeding, then penalty amount shall also stand modified accordingly, and benefit of reduced penalty (25%) shall be admissible if service tax, interest and reduced penalty is paid within 30 days of such appellate order

8. New Section 78B : Transitory Provision: A new section 78 B is being inserted to prescribe, by way of a transition provision, that,-
* amended provisions of section 76 and 78 shall apply to cases where either no notice is served, or notice is served under sub-section (1) of section 73 or proviso thereto but no order has been issued under sub-section (2) of section 73, before the date of enactment of the Finance Bill, 2015; and
* in respect of cases covered by sub-section (4A) of section 73, if no notice is served, or notice is served under sub-section (1) of section 73 or proviso thereto but no order has been issued under sub-section (2) of section 73, before the date of enactment of the Finance Bill, 2015, penalty shall not exceed 50% of the service tax amount.

9. Section 80: Penalty not to be imposed in certain cases: Section 80 provided for waiver of penalty in specified situations, is being omitted.

10. Section 86: Appeals to appellate tribunal: Section 86 is being amended to prescribe that matters involving rebate of service tax shall be dealt with in terms of Section35EE of the Central Excise Act.

11. Settlement Commission: Certain changes have been made in the provisions relating to Settlement Commission. These provisions, contained in the Central Excise Act, 1944, are made applicable to Service Tax, through section 83 of the Finance Act, 1994.

12. Rule 6 (6A) which provided for recovery of service tax self-assessed and declared in the return under section 87 is being omitted consequent to the amendment in section 73 for enabling such recovery.

SERVICE TAX : CHANGES TO BE APPLICABLE FROM THE DATE TO BE NOTIFIED AFTER THE ENACTMENT OF FINANCE BILL 2015

SERVICE TAX RATE

The rate of Service Tax is being increased from 12% plus Education Cesses to 14%. The ‘Education Cess’ and ‘Secondary and Higher Education Cess’ shall be subsumed in the revised rate of Service Tax. Thus, the effective increase in Service Tax rate will be from the existing rate of 12.36% (inclusive of cesses) to 14%, subsuming the cesses.

Service Tax Rate                    Earlier 12.36%                  New 14.00%

In respect of certain services like money changing service, service provided by air travel agent, insurance service and service provided by lottery distributor and selling agent the service provider has been allowed to pay service tax at an alternative rate subject to the conditions as prescribed under rule 6 (7), 6(7A), 6(7B) and 6(7C) of the Service Tax Rules, 1994. Consequent to the upward revision in Service Tax rate, the said alternative rates shall also be revised proportionately. Amendments to this effect have been proposed in the Service Tax Rules. The new rates are summarized in the table below:

Services	Old Rate	New Rate
Air Travel Agent
Domestic booking	0.60%	0.70%
International booking	1.20%	1.40%
Life insurance
First Year premium	3.00%	3.50%
Subsequent year premium	1.50%	1.75%
Money changing service
Amount of currency upto 1 Lakh	0.12% subject to min Rs.30	0.14% subject to min Rs.35
Amount of currency exchanged exceeding INR 1 Lakh and upto 10 lakh	Rs.120 and 0.06%	Rs.140 and 0.07%
Amount of currency exchanged exceeding INR1 million	Rs.660 and 0.012% subject to max Rs.6,000	Rs.770 and 0.014% subject to max Rs.7,000
Lottery
Where guaranteed prize payout is more than 80 per cent	Rs.7,000	Rs.8,200
Where guaranteed prize payout is less than 80 per cent	Rs.11,000	Rs.12,800

SWACHH BHARAT CESS

An enabling provision is being incorporated in the Finance Bill, 2014 to empower the Central Government to impose a Swachh Bharat Cess on all or any of the taxable services at a rate of 2% on the value of such taxable services. The cess shall be levied from the date to be notified after the enactment of the Finance Bill 2014.

CHANGES IN SECTION 66D OF NEGATIVE LIST

Entertainment Event or Amusement Facility

The Negative List entry that covers “admission to entertainment event or access to amusement facility” is being omitted [section 66D (j)]. Consequently, the definitions of “amusement facility” [section 65 B (9)] and “entertainment event” [section 65B(24)] are also being omitted. The implication of these changes are as follows,-
* Service Tax shall be levied on the service provided by way of access to amusement facility providing fun or recreation by means of rides, gaming devices or bowling alleys in amusement parks, amusement arcades, water parks and theme parks.
* Service tax to be levied on service by way of admission to entertainment event of concerts, pageants, musical performances concerts, award functions and sporting events other than the recognized sporting event, if the amount charged is more than Rs. 500 for right to admission to such an event. However, the existing exemption, by way of the Negative List entry, to service by way of admission to entertainment event, namely, exhibition of cinematographic film, circus, recognized sporting event, dance, theatrical performance including drama and ballet shall be continued, through the route of exemption. For this purpose a new entry is being inserted in notification No. 25/12-ST.

The term recognized sporting event has been defined in the proposed amendment in the said notification (No 6/2015 ST dated 1st March 2015).

Any Process Amounting to Manufacture or Production of goods

The entry in the Negative List that covers service by way of any process amounting to manufacture or production of goods [section 66D (f)] is being pruned to exclude any service by way of carrying out any processes for production or manufacture of alcoholic liquor for human consumption. Consequently, Service Tax shall be levied on contract manufacturing/job work for production of potable liquor for a consideration. In this context, the definition of the term “ process amounting to manufacture or production of goods” [section 65 B (40)] is also being amended, along with the Negative List entry [section 66D (f)], with a consequential amendment in S. No. 30 of notification No. 25/12-ST, to exclude intermediate production of alcoholic liquor for human consumption from its ambit.

Support Services by Government to Business Entities

Presently, services provided by Government or a local authority, excluding certain services specified under clause (a) of section 66D, are covered by the Negative List. Service Tax applies on the “support service” provided by the Government or local authority to a business entity. An enabling provision is being made, by amending section 66D (a)(iv), to exclude all services provided by the Government or local authority to a business entity from the Negative List. Consequently, the definition of “support service” [section 65 B (49)] is being omitted. Accordingly, as and when this amendment is given effect to, all services provided by the Government or local authority to a business entity, except the services that are specifically exempted, or covered by any another entry in the Negative List, shall be liable to service tax.

(Author – CA. Chitresh Gupta, B.Com(H), FCA, IFRS (Certified), IDT (Certified) is Author of Book “An Insight Into Goods & Service Tax” and also Managing Partner at M/s Chitresh Gupta & Associates)