RCom to Exit DTH After Merging Subsidiary with Sun Direct

Reliance Digital TV, the fully-owned subsidiary of Reliance Communications that runs its direct-to-home (DTH) operations, will merge with Sun Direct to become India's second largest DTH company.

Facts:

- Under the deal, RCom will have 26 per cent stake in the merged entity.
- The merged company would also take over about Rs 1,500 crore of debt from Reliance's DTH operations. As of June 30, RCom's total debt stood at Rs 38,400 crore.
- As part of the deal, Sun Direct will later go for an initial public offering.
- According to sources close to the deal, RCom has valued the 26 per cent stake at around Rs 1,500 crore.
- After the deal RCom's debt would reduced by Rs 3,000 crore. - Management control would shift to the Marans, who own Sun Direct.
- The deal would help RCom restructure, get out of its non-core businesses and use the proceeds to reduce debt. The company is expected to sell majority stake in Reliance Globalcomm, which controls its submarine cable assets worth Rs 6,000-7,000 crore.
- RCom has signed long-term agreements with Mukesh Ambani-controlled Reliance Jio Infocomm.
- According to the deal, Reliance Jio would pay RCom Rs 12,000 crore to use its tower.

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No registration for a trust seeking employment for students in lieu of subscription fees

Activities of assessee-trust, of charging fees for providing employment opportunities to students of a college, were not charitable in nature.

In the instant case the assessee-trust filed the application seeking registration under section 12A. The CIT rejected its application for grant of registration under section 12A on ground that trust was created to provide opportunities for students of a college (Delhi School of Economics) to seek employment; it was charging fees for the same and it was also charging subscription fees from companies who were providing employment to the enrolled students. Aggrieved assessee filed the instant appeal.

The Tribunal held in favour of revenue as under:

1) The activities of trust were focused on education of the college students. After completion of their courses, the trust provides opportunity to these students to interact with corporate and non-corporate houses approaching the college;

2) The public at large was neither eligible to become a member of the trust nor was provided any benefit by the trust, as all its activities were for the enrolled members;

3) Moreover, its activities couldn’t be in any manner be classified as being charitable in nature. Apart from administrative heads of expenditure, no other expenses were shown to have been incurred on any charitable activity;

4) As per the documents submitted by the assessee it couldn’t be held that the assessee's activities were charitable in nature. Therefore, the order of CIT was to be upheld - DSE-ECONOMICS PLACEMENT CELL V. DIT (EXEMPTIONS) (2013) 35 taxmann.com 459 (Delhi - Trib.)


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Merger of companies

RCom to exit DTH after merging subsidiary with Sun Direct Reliance Digital TV, the fully-owned subsidiary of Reliance Communications that runs its direct-to-home (DTH) operations, will merge with Sun Direct to become India's second largest DTH company. Facts of Deal: - Under the deal, RCom will have 26 per cent stake in the merged entity. - The merged company would also take over about Rs 1,500 crore of debt from Reliance's DTH operations. As of June 30, RCom's total debt stood at Rs 38,400 crore. - As part of the deal, Sun Direct will later go for an initial public offering. - According to sources close to the deal, RCom has valued the 26 per cent stake at around Rs 1,500 crore. - After the deal RCom's debt would reduced by Rs 3,000 crore. - Management control would shift to the Marans, who own Sun Direct. - The deal would help RCom restructure, get out of its non-core businesses and use the proceeds to reduce debt. The company is expected to sell majority stake in Reliance Globalcomm, which controls its submarine cable assets worth Rs 6,000-7,000 crore. - RCom has signed long-term agreements with Mukesh Ambani-controlled Reliance Jio Infocomm. - According to the deal, Reliance Jio would pay RCom Rs 12,000 crore to use its tower . Business Standard This case study has been posted by student of ICAI vinanti zatakiya. you can reached her at vinanti2504@gmail.com Get Sudycafe's Updates by SMS in your mobile by Following below two Steps:  1. Download our Android Software &  2. Send a SMS, Type: JOIN CASTUDYCAFE & send to 9219592195

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Pre-payment charges for closer of housing loan are eligible for deduction u/s 24

Prepayment charges for closure of loan account which was taken for acquisition of property are allowable under section 24(b)

In the instant case during the assessment, the AO disallowed the assessee's claim for deduction of prepayment charges on closure of housing loan. Further, the CIT (A) upheld the disallowance. Aggrieved assessee filed the instant appeal.

The Tribunal held in favour of assessee as under:
1) The definition of interest under section 2(28A) makes it clear that it has basically two components, firstly, the amount of interest for moneys borrowed and secondly, the amount paid by whatever name called in respect of the money borrowed or debt incurred;

2) The second category might also encompass any charges paid for not utilizing the credit facility. By incorporating the definition of 'interest' in section 24(b), the position that emerges is that not only the amount paid as interest but also any other amount paid, by whatever name, called, in relation to such debt incurred also qualifies for deduction;

3) By early repayment, the assessee managed to wipe out its interest liability in respect of the loan, which would have otherwise qualified for deduction under section 24(b) during the continuation of loan;

4) It was obvious that these prepayments had live and direct link with the obtaining of loan which was availed for acquisition of property. It was beyond comprehension as to how the amount paid as interest on the loan taken was allowable as deduction but the amount paid as prepayment charges of the very same loan was not deductible;

5) The payment of such 'prepayment charges' couldn't be considered as de hors the loan obtained for acquisition or construction or repair, etc., of the property on which interest was deductible under section 24(b). Both, the direct interest and prepayment charges, were species of the term 'interest'. Therefore, the impugned order of CIT(A) was to be set aside and deduction claimed by the assessee was to be granted - WINDERMERE PROPERTIES (P.) LTD. V. DY. CIT [2013] 34 taxmann.com 109 (Mumbai - Trib.)

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HC presumes existence of culpable mind in not filing return within time; confirms prosecution

HC presumes existence of culpable mind in not filing return within time; confirms prosecution

Where assessee had not filed return of income timely, it could be prosecuted under section 276CC on presumption that there existed a culpable mental state as onus to prove that delay was not willful was on assessee and not on department

In the instant case, the assessee had filed the return of income on 1-5-1995 for assessment year 1994-95. The revenue's case was that inspite of several notices issued to assessee, she had filed the return of income beyond the statutory period. Therefore, delay in filing return was willful and deliberate and, thus, she was liable to be prosecuted and punished under section 276CC. However, the trial Court and the Sessions Court discharged the assessee. The revenue then filed the petition seeking reversal of orders of both the Courts.

The High Court held as under:

1) It was not in dispute that the assessee had not filed the return for the assessment year 1994-95 within prescribed period and not even within the period within which the revenue had required her to do so. The assessee had not even responded to the communications sent by the revenue requiring her to file return of income or to show the proof of filing. So, the offence under Section 276CC stood committed by that time and for that offence, the department could file a criminal complaint against her after obtaining requisite sanction from the competent authority which it did obtain and complaint was filed in Court;

2) It was for the respondent to establish during the trial that her failure to file return was not willful. The Courts went wrong in going into the question as to whether the explanation offered by the assessee before the filing of the complaint in Court was rightly rejected or not;

3) Once the complaint stood filed, the trial Court was only required to examine whether cognizance was to be taken or not and if it was decided to take cognizance, thereafter, trail Court was required to examine whether in the     pre-charge evidence the complainant had been able to show that the assessee had not filed her return for the relevant assessment year within the prescribed period, which fact in the present case was not even disputed by the assessee;

4) So, after raising the presumption under section 278E, the trial Court should have framed the charge against the assessee leaving it to her to show thereafter that there was no willful default on her part. Just because the assessee had applied for the compounding of the offence before the filing of the complaint against her in Court, and the same had not been decided before the filing of the complaint, it could not be said that the complaint was not maintainable;

5) The trial Court was not required to examine at the stage of charge as to why the department was not compounding the offence in the case of the respondent herein. If she was aggrieved by any action or inaction on the part of the authority for compounding, she would have had recourse to legal remedies instead of waiting for the prosecution to be launched by the department;

6) The revisional Court also did not go into the aforesaid aspects and simply affixed its seal of approval to the order of the trail Court and, therefore, its order also couldn’t be sustained. This petition, accordingly, was allowed. The impugned orders of the trial Court and the revisional Court were set aside – ACIT V. NILOFAR CURRIMBHOY [2013] 35 taxmann.com 99 (Delhi)

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SEBI GETS POWER TO RAID, ARREST DEFAULTERS

SEBI GETS POWER TO RAID, ARREST DEFAULTERS

The government has allowed the Securities and Exchange Board of India (SEBI) to pass orders such as those on search and seizure, attachment of properties and arrest and detention of defaulters, as well as pass disgorgement directions to recover wrongful gains made in contravention of laws .The government has also allowed the market regulator to seek information from other regulators within India and abroad with retrospective effect, paving way for collection of details pertaining to cases pending for over 15 years now. To tackle the growing menace of Ponzi schemes being floated as collective investment schemes (CIS), the rules have also been amended to classify any money collection of RS 100 crore or more as CIS operation. SEBI has been given powers to crack down on illegal investment schemes floated by individuals as well, as against companies only as of now. However, all government-notified schemes would be out of the CIS framework. 

The changes are part of as many as 22 amendments made by the government in three main Acts governing SEBI and its operations — the SEBI Act, the Securities Contracts Regulation Act (SCRA) and the Depositories Act — through a 16-page Ordinance.


Among others, SEBI has also been given powers to pass disgorgement orders for amount equivalent to wrongful gains or to losses averted by contravention of regulations. Besides, the regulator can now enter and search buildings, places, vessels, vehicles and aircraft of defaulters. Its officers can also break open the lock of any door, box, locker, safe almirah etc to get information from suspected entities.At the same time, the defaulters can seek settlement of pending cases with SEBI with retrospective effect from April 20 , 2012.The powers to seek information from other domestic and foreign regulators have been made effective retrospectively from March 6, 1998. For seeking information from outside the country, SEBI can enter into an arrangement, agreement or understanding with relevant foreign authorities with the prior approval of the central government. At the same time, SEBI can now ask for information or records from any person, banks, authorities, boards or corporation, if the regulator is of the opinion that such details could be relevant to any investigation or inquiry being undertaken by it. For speedy trial of offences under various SEBI regulations, the Ordinance also provides for setting up of “as many special courts as may be necessary” by the central government. Such courts would consist of a single judge to be appointed by the central government with concurrence of the Chief Justice of the High Court within whose jurisdiction the judge to be appointed is working. Till the time a Special Court is established, any offences committed under SEBI Acts would be tried by a Session Court.


If a person fails to pay the penalty imposed by SEBI or fails to comply with any direction for refund of money or any disgorgement orders, the recovery officer appointed by SEBI can proceed to recover such an amount..

SOURCE: Business Standard

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Due date under sec. 36(1)(va) for payment of employee’s contribution to PF is same as contemplated under section 43B

Due date under sec. 36(1)(va) for payment of employee’s contribution to PF is same as contemplated under section 43B

Employee's contribution towards
Provident Fund if paid before due date of filing return is allowable under
section 36(1)(va) to employer-assessee

In the instant case the AO had disallowed the payment made by the assessee
to the Provident Fund Authority on account of employee's contribution
towards Provident Fund since there was delay in payment. On appeal, the CIT
(A) held that since the money had already been paid by the assessee and was
no longer in the hands of assessee it could not be taken as income.
Further, the Tribunal confirmed the decision of CIT (A). Aggrieved revenue
filed the instant appeal.

The HC held in favour of assessee as under:

1) Any sum received by the assessee from his employees towards
contributions to the Provident Fund is the income of the assessee, however,
section 36(1)(va) allows deduction if contribution thus received is
deposited on or before the due date;

2) The due date referred to in section 36(1)(va) is to be read in
conjunction with section 43B(b) and a reading of the same would make it
amply clear that the due date as mentioned in section 36(1)(va), is the due
date as mentioned in section 43B(b), i.e., payment or contribution made to
the Provident Fund Authority before the filing the return for the year in
which the liability to pay has accrued;

3) The AO proceeded on the basis that 'due date', as mentioned in section
36(1)(va) was the due date fixed by the Provident Fund Authority, whereas
he was required to take note of section 43B(b). By not taking note of the
provisions contained therein, he committed gross error, which had been
rectified by the appellate authority and confirmed by the Tribunal. So,
there was no scope of interference in the order of the Tribunal – CIT V.
KICHHA SUGAR CO. LTD [2013] 35 taxmann.com 54 (Uttarakhand)

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AAR can only determine tax liability of an applicant and not any of its affiliates or AOP

AAR can only determine tax liability of an applicant and not any of its affiliates or AOP

It would be impermissible for the authority (‘AAR’) to determine tax liability of person other than the applicant

Facts

The applicant, a foreign company, formed a consortium with an Indian company to execute a project (i.e., ‘contract’) in India. The contract was awarded to the consortium. Under the contract, the applicant was responsible for offshore supplies, offshore services and the Indian company was responsible for onshore supplies, construction and erection. The applicant approached the AAR to determine the taxability of income receivable from offshore supplies made to Indian company. The AAR ruled that the applicant’s income from offshore supplies would not be taxable in India in view of the Supreme Court’s decision in Ishikawajima. Revenue filed an application for rectification of apparent mistake as the contract was awarded to consortium (AOP) and not to applicant, thus, ruling of AAR that applicant was not liable to be taxed was inconsistent with the finding that AOP was the assessing unit. The AAR allowed the rectification application of revenue and posted the application for main hearing as to whether AOP could be liable to be taxed in respect of offshore supplies?

Held

Section 245N of the Act doesn't permit AAR to rule on tax liability of a person other than the applicant. The AAR couldn’t give a ruling that the applicant was not liable to be taxed and somebody else would be liable to be taxed. The proposed question framed by AAR for determination could only relate to applicant's tax liability. It would be impermissible for AAR to determine tax liability of person other than the applicant (i.e., AOP) - CTCI Overseas Corporation Ltd., In re [2013] 35 taxmann.com 391 (AAR - New Delhi)

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Nissan inks 10-year export agreement with Ennore Port

Nissan Motor India, the Indian unit of Japanese auto maker Nissan Motor Co Ltd, today entered into an agreement with Ennore Port Ltd (EPL), according to which it will export at least 60,000 cars a year through the port for the next 10 years.According to the agreement, Nissan will get concessions in the wharfage for up to 60,000 cars a year at the rate of 0.36 per cent for every unit. Its cars will be offered free parking space for the first 15 days and will be handled in priority basis in the port. Nissan exported 54,000 cars in 2010-11, which were increased to 96,000 in 2011-12 and further to 98,000 in 2012-13. In the first quarter of the current financial year (April-June), the company shipped out 14,000 cars.

The company is selling cars in about 100 countries, said Kenichiro Yomura, managing director and chief executive, Nissan Motor India. It hopes to maintain around 100,000 units per annum for exports. M A Bhaskarachar, chairman and managing director of EPL, said Nissan would get benefits ranging between 10 per cent and 40 per cent of a car value (sliding rates or volume discount). The port, located about 40 km north of Chennai, has developed a general cargo-cum-car terminal at a cost of Rs 140 crore, including a car yard of 35 acres, facilitating the parking of 10,000 cars. The agreement can be terminated by both parties with a notice of three months from either side. In 2008, Nissan had signed a memorandum of understanding with EPL without any commitment of exports. Nissan was the first exporter of cars since 2010 from the port, which handled about 336,000 cars till now. The port can handle up to 300,000 units a year.

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With Jet-Etihad in mind, MEA pushes FinMin to 'expedite' UAE BIPPA talks

The Jet-Etihad deal weighing on its mind, the Ministry of External Affairs (MEA) has asked the Department of Economic Affairs (DEA) under the finance ministry to “expedite” talks on the proposed Bilateral Investment
Promotion and Protection Agreement (BIPPA). The Jet-Etihad deal had invited considerable pressure from the UAE government. After the Jet-Etihad deal, which involved the Abu Dhabi national carrier buying 24 per cent stake in Jet Airways for $379 million in April, the UAE government had said it would “not allow” any further investments from its sovereign funds until it was “assured of the returns”,on condition of anonymity.

Apparently, the Indian mission in Abu Dhabi is under heavy pressure from the UAE authorities to resolve the imbroglio. While MEA had been pushing for the BIPPA for long, the DEA wants to review all such investment pacts. “UAE now wants a BIPPA so that their investors are ensured more transparency on the flow of money, exchange of information and tax regulatory mechanisms.
“UAE is pushing for a regime where they want assurance. The confusion on Jet-Etihad is about the details. Etihad wants ownership. We are reviewing the matter. We have to handle such incidents carefully. This involves Islamic banking matters also. As foreign affairs ministry, it is our job to enhance ties with them,” the MEA official said. At a time when investments into the country are plummeting, India cannot afford to invite UAE’s ire. India also plans to tap into that country’s sovereign funds by working out an alternate mechanism until the BIPPA is signed.

For the Jet-Etihad deal to be sealed, the proposal has to secure a plethora of clearances from the Securities and Exchange Board of India, the Foreign Investment Promotion Board, theCompetition Commission of India and the Cabinet Committee of Economic Affairs.

Etihad is also making a $150-million equity investment in Jet’s frequent flyer programme. It has also invested an additional $70 million to buy Jet’s Heathrow slots, through a sale agreement announced in February. While Jet had been asked to revise the shareholders’ agreement, clearly specifying control and ownership remained with its Chairman Naresh Goyal and that it was headquartered in India, concerns were raised by the Prime Minister’s Office on the enhancement of seat entitlements under the bilateral air services pact. This, too, seems to be undergoing a thorough review.

Source: Business Standard

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Discount on shares offered under ESOP held as ‘expenditure’ and part of employees’ cost

Discount on shares offered under ESOP is construed, both by the employees and company, as nothing but a part of package of remuneration. It is deductible on straight line amortization basis over vesting period of the options.

In the instant case the moot question that arose before the ITAT was whether the Employee Stock Option compensation expense, was an allowable deduction in the computation of income under the head “Profits and gains of business or profession”?

The Tribunal allowed deduction on such discount and held as under:

1) When a company undertakes to issue shares to its employees at a discounted premium on a future date, the primary object of this exercise is not to raise share capital but to earn profit by securing the consistent and concentrated efforts of its dedicated employees during the vesting period;

2) Such discounted premium is construed, both by the employees and company, as nothing but a part of package of remuneration. In other words, such discounted premium on shares is a substitute of direct incentive in cash for availing of the services of the employees;

3) The discount on premium under ESOP was simply one of the modes of compensating the employees for their services and was a part of their remuneration. The sole object of issuing shares to employees at a discounted premium was to compensate them for the continuity of their services to the company;

4) Such discount couldn’t be described either as a short capital receipt or a capital expenditure. It was nothing but the employees cost incurred by the company. The substance of this transaction was to disburse compensation to the employees for their services, for which the form of issuing shares at a discounted premium was adopted;

5) By undertaking to issue shares at discounted premium, the company does not pay anything to its employees but incurs an obligation of issuing shares at a discounted rate on a future date in lieu of their services, which is nothing but an expenditure under section 37(1) of the Act;

6) A liability was definitely incurred by the assessee and was deductible, notwithstanding the fact that its quantification might take place in a later year. The discount in relation to options vesting during the year couldn’t be held as a contingent liability;

7) Liability to pay the discounted premium was incurred during the vesting period and the amount of such deduction was as per the terms of the ESOP scheme by considering the period and percentage of vesting during such period. Deduction of the discounted premium was to be allowed during the years of vesting on a straight line basis;

8) The amount of discount claimed as deduction during the vesting period is required to be reversed in relation to the unvested or lapsed options at the appropriate time. However, an adjustment to the income is called for at the time of exercise of option by the amount of difference in the amount of discount calculated with reference the market price at the time of grant of option and the market price at the time of exercise of option - BIOCON LTD. V. DY.CIT [2013] 35 taxmann.com 335 (Bangalore - Trib.) (SB)

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Vinanti Zatakiya.

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Registration to trust couldn’t be denied even if it breached Right to Education Act and generated profit

Registration to trust couldn’t be denied even if it breached Right to Education Act and generated profit Registration under section 12A couldn’t be denied to assessee-trust merely on ground that it earned profits by charging substantial fees and had violated requirements of Right to Education Act

In the instant case the assessee, an educational society, filed application for registration under sections 12A. The CIT rejected application for registration on ground that the society was running its institution purely on commercial basis and earning profits by charging substantial fees from students. He also cited violation of requirements of Right to Education Act, 2009 (RTE Act) and non-furnishing of original instrument of establishment of society as reasons for rejection of application. Aggrieved assessee filed the instant appeal to the Tribunal.

The Tribunal held in favour of assessee as under:

1) It was found that the CIT didn’t raise any objection against the objects of assessee-society. Its main object was education, which undeniably was of charitable nature, in line with the provisions of section 2(15);

2) Further, it was not within the CIT's purview to take recourse to the RTE Act to reject assessee’s application. While considering an application for grant of registration under section 12A, the CIT was only required to see whether the object of the applicant was charitable and as to whether its activities were genuine, and no further. The jurisdiction and competence to examine an issue under the RTE Act lay before the authorities mentioned therein;

3) Where the purpose of a trust or institution is education, it would constitute 'charitable purpose', even if it incidentally involves carrying on of commercial activities. Mere charging of high fees was no ground for refusing it registration, where the CIT had not doubted the objects and genuineness of the assessee's activities;

4) Merely because the assessee had generated surplus income after meeting expenditure on its educational activities, such activities could not be regarded as trade and commerce, so as to invite cancellation of registration and that education was a charitable purpose in itself. Thus, in view of the above the order passed by the CIT was to be cancelled and he was to be directed to grant registration to the society on verifying the original documents of establishment of assessee-society - SHRI GIAN GANGA VOCATIONAL & EDUCATIONAL SOCIETY V. CIT [2013] 35 taxmann.com 17 (Delhi - Trib.)

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Section 54EC benefit to be worked out before setting off Long-term capital losses U/S 70(3)

Section 54EC benefit to be worked out before setting off Long-term capital losses U/S 70(3)

For taking benefit under Section 54EC, it is not necessary that one should first apply Section 70(3) and thereafter, the assessee could invest the capital gain arising from the long-term capital asset to any specified bond under Section 54EC

1) If for working out the relief under Section 54, the Revenue does not insist upon the applicability of Section 70(3), then there is no acceptable reason as to how provisions of Section 70(3) would stand attracted in the case of Section 54EC?;

2) Revenue’s argument that for the purpose of working out the relief under Section 54 EC, one has to take recourse first to Section 70(3) and then only look at Section 54 EC deserved to be rejected;

3) A reading of Section 70(3) shows that the loss that has to be looked at first isn’t with reference to the loss arising in respect of any new capital asset, but in the totality of the loss suffered on the sale of capital asset chargeable to tax under Section 45;

4) On the other hand, Section 54EC is specific with reference to investment in specified bonds as regards the capital gain arising from and out of a long-term capital asset;

5) Thus, going by the scheme of the Act, for taking benefit under Section 54EC, it is not necessary that one should first apply Section 70(3) and thereafter, the assessee could invest the capital gain arising from the long-term capital asset to any specified bond under Section 54EC. Therefore, revenue’s appeal stood dismissed - Commissioner of Income-tax, Circle - XIV v. Vijay M. Mahtaney [2013] 35 taxmann.com 228 (Madras)

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