SPN Missive of October 2013

15
MISSIVE Volume XXX October 2013

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Here we are with the Thirtieth successive issue of our monthly ‘Missive’. We trust you will enjoy reading this Missive, even while soaking in thecontents. We would very much appreciate your feedback which consistently helps us in improving and upgrading the contents.

Transcript of SPN Missive of October 2013

Page 1: SPN Missive of October 2013

MISSIVE

Volume XXX

October 2013

Page 2: SPN Missive of October 2013

Topics Page

No

Direct Tax 1

Transfer Pricing 3

Service Tax 4

Value Added Tax 6

Customs 6

FEMA 8

Company Law 10

Transactions that made

headlines

11

Never hold your head high with pride or ego, even the winner of a gold

medal gets his medal only when he puts his head down!!!

Index

Dear Patron

Here we are with the Thirtieth

successive issue of our monthly

‘Missive’.

We trust you will enjoy reading this

Missive, even while soaking in the

contents. We would very much

appreciate your feedback which

consistently helps us in improving

and upgrading the contents.

Thanks and regards,

Knowledge Management Team

Page 3: SPN Missive of October 2013

1

DIRECT TAX

VIKAS OBEROI V. DY. CIT (2013) 37

taxmann.com 46 (Mumbai - Trib.)

Where share application money is

returned without any allotment of shares,

such refund cannot be classified as loan or

advance under section 2(22)(e), unless

mala fide intentions of assessee are

proved

Although the share application money is

one kind of advance given with the

intention to obtain the allotment of shares,

yet such advance is innately different from

the normal loan or advance specified in

2(22)(e);

In the instant case, the refund of the

amount was made for commercial reasons

and also in the best interests of the

prospective share applicants. Further, it

was self-explanatory that the assessee

being a 'beneficial shareholder', derived

no benefit whatsoever, when the

impugned 'share application money' was

finally returned without any allotment of

shares for commercial reasons;

Therefore, the share application money

might have been an advance but it was

not advance which was referred to in

section 2(22)(e). Such advances, when

returned without any allotment or part

allotment of shares to the applicants,

would not take a nature of the loan merely

because the same was repaid or returned

or refunded in the same year or later on

after keeping the money for some time

with the company;

As the original intention of payment of

share application money was towards the

allotment of shares of any kind, the same

couldn’t be deemed as 'loan or advance',

unless the mala fide intentions were proved

by the AO with evidence.

ANL SINGAPORE PTE. LTD V. DY. DIT (2013)

37 taxmann.com 131 (Mumbai-Trib)

Business income of NR isn’t taxable if its

dependent agent is remunerated on ALP

basis and is charged to tax

The Tribunal held in favour of the assessee as

under:

Income in respect of voyages which had

been considered as chargeable to tax in

India as per Article 7 of the India-Singapore

DTAA was the amount on which the

assessee paid commission, etc., to CMA,

which was its AE and also a dependent

agent

The receipt in the hands of the CMA had

been determined at ALP under due

process of law;

Where the AE also constitutes a PE and was

remunerated on ALP, then nothing further

was left to attribute to the PE. Thus, it was

held that income in respect of voyages

couldn’t be included in the hands of the

assessee

ITO, TDS V. KENDLE INDIA (P.) LTD (2013) 37

taxmann.com 140 (Delhi - Trib.)

Where assessee made remittance for

procurement of commercial information

for onward transmission to its principal,

remittance made was not for availing

technical services and did not amount to

royalty

In the instant case the assessee had entered

into a master clinical services agreement with

its principal 'BHAG' for clinical trials. Assessee

had arrangement with CSPL to provide

information on clinical trial test undertaken by

CTU of University of Kelmia, Sri Lanka. It applied

for issue of certificate for non-deduction of tax

on remittances made to CSPL which had no PE

in India. The AO held that remittance for

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2

clinical services was in nature of royalty and

was liable to be taxed in India. On appeal, the

CIT (A) reversed the order of AO.

The Tribunal held in favour of the assessee as

under:

The services in question were services for

supply of information which assessee was

not using for any technical know-how but it

was working as a conduit for supply of this

information further to its principal;

Thus, the remittance made by the assessee

was not for availing of technical services

and did not amount to royalty and

therefore was not liable for withholding

taxes.

Protocol to India-Australia DTAA – ‘Force of

attraction’ concept removed; PE redefined

The protocol amending the agreement

between the Government of India and

Australia, signed on the December 16, 2011,

has been notified on September 20, 2013 and

is effective from April 2, 2013. Now Force of

attraction' concept is removed from Article

7(1) with insertion of new Article 7(1). As per

the new clause, the business profits of the

enterprise may be taxed in the other State but

only so much of them as are attributable to

that PE.

Threshold limit for establishing Service PE has

been increased to 183 days. Earlier treaty did

not provide for any threshold limit for

establishing construction PE. However, the

protocol provides for threshold limit of 183 days

and 90 days on use of substantial equipment

and on activities in connection with

exploration of natural resources.

CIT v. Gujarat Flouro Chemicals (SC) SLP

(C) No. 11406 of 2008 Order dt. 18th Sep’13

Section 244A: The department is not

obliged to pay interest on interest as that is

not provided in the law (Sandik Asia 280

ITR 643 (SC), not correct and should be

reconsidered)

The question before the Supreme Court was

whether interest is payable by the Revenue to

the assessee if the aggregate of installments of

Advance Tax/TDS paid exceeds the assessed

tax? The assessee relied upon Sandvik Asia

Limited vs. CIT 280 ITR 643 where it was held

that the assessee was entitled to be

compensated by the Revenue for delay in

paying to it the amounts admittedly due.

In Sandvik Asia 280 ITR 643 (SC) the Supreme

Court held that if the department delays

paying interest on the refunded amount, the

assessee is entitled to interest on interest.

Subsequently, in CIT vs. Gujarat Flouro

Chemicals, a view was expressed that Sandvik

Asia 280 ITR 643 (SC) did not lay down the

correct law and ought to be reconsidered. The

matter was referred to a larger Bench. HELD by

the larger Bench:

The judgment in Sandvik Asia 280 ITR 643 (SC)

has been misquoted and misinterpreted by the

assessees and also by the Revenue. Their view

that in Sandvik case this Court had directed

the Revenue to pay interest on the statutory

interest in case of delay in the payment and

that the Revenue is obliged to pay an interest

on interest in the event of its failure to refund

the interest payable within the statutory period

is not correct. In Sandvik Asia, the Court was

considering the issue whether an assessee who

is made to wait for refund of interest for

decades be compensated for the great

prejudice caused to it due to the delay in its

payment after the lapse of statutory period. In

the facts of that case, this Court came to the

conclusion that there was an inordinate delay

on the part of the Revenue in refunding

certain amount which included the statutory

interest and therefore, directed the Revenue

to pay compensation for the same but not an

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interest on interest. S. 244A provides for interest

on refunds under various contingencies. It is

clarified that it is only that interest provided for

under the statute which may be claimed by

an assessee from the Revenue and no other

interest on such statutory interest.

Citicorp Finance (India) Ltd vs. ACIT (ITAT

Mumbai) ITA 8532/Mum/2011 dt. 13th

Sep’13

TDS Credit must be given even if TDS

Certificate is not available/ entry is not

shown in Form 26AS

The assessee claimed credit for TDS which was

denied by the AO on the ground that the

claim did not match the entries shown in Form

No. 26AS and that there was a discrepancy.

On appeal, the CIT(A) held that the assessee

would be entitiled to credit to the extent

shown in the computer system of the

department.

On further appeal by the assessee to the

Tribunal HELD:

The AO is not justified in denying credit for

TDS on the ground that the TDS is not

reflected in the computer generated Form

26AS. In Yashpal Sahwney 293 ITR 539 the

Bombay High Court has noted the difficulty

faced by taxpayers in the matter of credit

of TDS and held that even if the deductor

had not issued a TDS certificate, still the

claim of the assessee has to be considered

on the basis of the evidence produced for

deduction of tax at source.

The Revenue is empowered to recover tax

from the person responsible if he had not

deducted tax at source or after deducting

failed to deposit with Central Government.

The Delhi High Court has in Court On Its

Own Motion Vs. CIT 352 ITR 273 directed

the department to ensure that credit is

given to the assessee even where the

deductor had failed to upload the correct

details in Form 26AS on the basis of

evidence produced before the

department.

Therefore, the department is required to

give credit for TDS once valid TDS

certificate had been produced or even

where the deductor had not issued TDS

certificates on the basis of evidence

produced by assessee regarding

deduction of tax at source and on the

basis of indemnity bond.

TRANSFER PRICING

Vodafone India Service Private Limited

Recently the Bombay High Court (HC) in the

case of Vodafone India Service Private Limited

(taxpayer), dismissed the writ petition of the

taxpayer by ruling that the TPO had jurisdiction

to identify and determine arm’s length price of

transactions not referred to him by the AO nor

reported by the taxpayer in the Transfer Pricing

Accountant’s Report.

The taxpayer claimed that the TPO did not

have jurisdiction to determine ALP of

transactions relating to sale of call centre

business and assignment of call options and

thereafter filed a writ petition before the HC to

quash the transfer pricing adjustment of INR

8,500 crores (USD 1330 Million) made by the

TPO.

The HC held that the taxpayer has more than

one alternate remedy available under the

Indian Tax Law (ITL). Therefore, the remedy

provided by the statute should be availed of

and not by way of a writ petition to the HC.

The HC has purely decided on the jurisdiction

of the TPO and maintainability of the writ and

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has not discussed on the merits of the transfer

pricing issues involved in the writ petition.

IJM (India) Infrastructure Ltd Vs ACIT [ITA

No 1814/Hyderabad/2012, A.Y 2008-09]

The Hyderabad Bench of the Income-tax

Appellate Tribunal (the Tribunal) in the case of

IJM (India) Infrastructure Ltd (taxpayer) has

held that transactions between the taxpayer

and its related parties having Permanent

Establishment in India are transactions

between two 'resident' entities and cannot be

termed as 'international transaction'. The

Tribunal also held that the transactions

between the taxpayer and its joint venture

with the group entity cannot be characterised

as international transactions.

Brief Facts

During the year the taxpayer secured

subcontracts form its domestic related parties

one being a PE in India and the other being a

joint venture. The taxpayer contended that the

PE has a place of business in India by virtue of

its registration under the provisions of the

companies Act and also the control and

management of its branch affairs are situated

in India. Further the joint venture was formed in

India and was assessed to tax in the status of

AOP.

The Tribunal accordingly held in favor of the

Assessee that no Transfer Pricing provisions

were applicable for the said year.

Tellabs India Private Ltd vs. ACIT (ITAT

Bangalore)

The Bangalore Income-tax Appellate Tribunal

in the case of Tellabs India Private Ltd

(Taxpayer) held that assignment of a contract

to the Taxpayer by an Associated Enterprise

(AE) is an international transaction to which

the transfer pricing provisions shall apply and

the consideration received should be

determined at Arm’s Length Price.

The taxpayers AE, a Denmark based Company

secured a contract which was to be

performed both outside (Off shore) and in

India (On shore). The onshore component of

the contract was thereafter assigned by the

AE to the taxpayer.

The assignment agreement between the AE

and the Taxpayer had all the ingredients of an

international transaction within the meaning of

tax law. Thus it was an agreement between

two or more AEs where one of the parties to

the transaction is a nonresident. The

transaction relates to provision of services or a

transaction that had a bearing on profits,

income, losses or assets. Therefore, the price

paid for such transaction had to be

determined in accordance with arm’s length

principles.

Press Release

Changes made in the Final Safe Harbour

Rules

A press release issued on 18th September 2013

by the Government of India finalized the Safe

Harbour Rules after considering comments of

various stake holders and making necessary

modifications to the draft rules which were

released on 14.08.2013.

SERVICE TAX Amendment in Mega-Exemption

Notification

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Notification no. 25/2012 has been amended

and following additional services are being

declared as exempted from service tax:

Any services provided by-

(i) the National Skill Development

Corporation set up by the Government of

India;

(ii) a Sector Skill Council approved by the

National Skill Development Corporation;

(iii) an assessment agency approved by the

Sector Skill Council or the National Skill

Development Corporation;

(iv) a training partner approved by the

National Skill Development Corporation or the

Sector Skill Council

in relation to (a) the National Skill Development

Programme implemented by the National Skill

Development Corporation; or (b) a vocational

skill development course under the National

Skill Certification and Monetary Reward

Scheme; or (c) any other Scheme

implemented by the National Skill

Development Corporation.

Notification no. 13/2013-ST. Dated: 10.09.2013

Ad-hoc Exemption Order for taxable

services provided by the Hotel or

Restaurant in the flood affected State of

Uttarakhand

In order to provide support to ensure

sustenance for the local population in the

state of Uttarakhand, Central Government

exempts the following taxable service from the

whole of service tax provided to any person in

the State of Uttarakhand, namely:

i. Services by way of renting of a room

in a hotel, inn, guest house, club, campsite or

other commercial place meant for residential

or lodging purposes;

ii. Services provided in relation to serving

of food or beverages by a restaurant, eating

joint or mess.

Further, this exemption order shall be

applicable for the abovementioned taxable

services provided during the period 17th

September, 2013 to 31st March, 2014.

Exemption order 01/2013-ST. Dated: 17.09.2013

Central Excise

Amendment in Notification no. 12/2012,

dated 17.03.2012

In the said notification, wherein certain goods

were exempted from excise duty, entry no. 327

(goods specified in List 9 for the manufacture

of rotor blades for wind operated electricity

generators) has been amended to include

manufacture of intermediates, parts and sub-

parts of rotor blades, for wind operated

electricity generators.

Notification no. 27/2013. Dated: 12.09.2013

Amendment in CENVAT Credit Rules

In rule 3 of the CENVAT Credit Rules, 2004, for

sub-rule (5A), the following sub-rule shall be

substituted-

“ (5A) (a) If the capital goods, on which

CENVAT credit has been taken, are removed

after being used, the manufacturer or provider

of output services shall pay an amount equal

to the CENVAT Credit taken on the said capital

goods reduced by the percentage points

calculated by straight line method as specified

below for each quarter of a year or part

thereof from the date of taking the CENVAT

Credit, namely:-

(i) for computers and computer peripherals:

for each quarter in the first year @ 10%

for each quarter in the second year @ 8%

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for each quarter in the third year @ 5%

for each quarter in the fourth and fifth year @

1%

(ii) for capital goods, other than computers

and computer peripherals @ 2.5% for each

quarter:

Provided that if the amount so calculated is

less than the amount equal to the duty

leviable on transaction value, the amount to

be paid shall be equal to the duty leviable on

transaction value.

(b) If the capital goods are cleared as waste

and scrap, the manufacturer shall pay an

amount equal to the duty leviable on

transaction value.”

Notification No. 12 /2013-CE (NT). Dated:

27.09.2013

VALUE ADDED TAX

Information online in Form DP-1

Form DP-1 shall be submitted online by all the

dealers latest by 16/10/2013.

Notification No.F.3(352)/Policy/VAT/2013/751-

762. Dated: 09.09.2013

Withdrawal of privilege of VAT refund

The privilege of VAT refund has been

withdrawn in respect of the High Commission

of the Islamic Republic of Pakistan, New Delhi

for its official purchases as well as for personal

purchases of its diplomats, till further order.

Notification No.F.5(54)/Policy-II/VAT/2012-

13/769-781. Dated: 16.09.2013

Filing of stock statement

The date for filing of Stock Statement in Form

Stock-1 online for the stock available on 31st

March, 2013 has been extended to 5th

October 2013 for all the dealers.

Notification No.F.7(433)/Policy-

II/VAT/2012/part File/782-794. Dated:

16.09.2013

Amnesty scheme

Delhi Tax Compliance Achievement

Scheme,2013 has been announced, under

which a person may make a declaration of

the tax dues to the designated authority on or

before the 31st day of January 2014 so as to

avoid obligations of interest and penalty.

Notification No.F.3(16) / Fin. (Rev-I) /2013- 14/

dsVI /786. Dated: 20.09.2013

CUSTOMS

Amendment in Notification No. 12/2012-

Customs dated 17.03.2012

The said notification, which states customs duty

rate on various items, has been amended so

as to include sugar beet seeds on which

customs duty will be payable at the rate of 5%.

Notification No. 43 /2013-Customs. Dated:

13.09.2013

Revision of customs duty rate on articles of

gold and silver jewellery and goldsmiths

and silversmiths ware

Import duty leviable on articles of jewellery

and parts thereof, of precious metal or of

metal clad with precious metal and articles of

goldsmiths’ or silversmiths’ wares and parts

thereof, of precious metal or of metal clad with

precious metal, falling under headings 7113

and 7114 respectively of the First Schedule to

the Customs Tariff Act, 1975 has been

increased from 10% to 15%.

Notification No. 44/2013-Customs. Dated:

17.09.2013

Amendment Notification No. 36/2001-

Customs (N.T.), dated 3.08.2001

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Tariff value on the following goods has been

revised:

TABLE-1

TABLE-2

S.

No

.

Chapter

/

heading

/ sub-

heading

/ tariff

item

Description of

goods

Tariff

value

(US $)

(1) (2) (3) (4)

1 71 or 98 Gold, in any form,

in respect of which

the benefit of

entries at serial

number 321 and

323 of the

Notification No.

12/2012-Customs

436

per 10

grams

dated 17.03.2012 is

availed

2 71 or 98 Silver, in any form,

in respect of which

the benefit of

entries at serial

number 322 and

324 of the

Notification No.

12/2012-Customs

dated 17.03.2012 is

availed

702

per

kilogr

am

TABLE-3

S.

No.

Chapte

r/

headin

g/ sub-

headin

g/tariff

item

Descriptio

n of goods

Tariff value

(US $ Per

Metric Tons )

(1) (2) (3) (4)

1 080280 Areca nuts 1870 (i.e. no

change) ”

Notification No. 102/2013-CUSTOMS (N. T.).

Dated: 30.09.2013

Recent Case Laws:

Whether sales tax or service tax is

applicability on hire charges received on

transfer of right to use goods

Recently in the case of State of Andhra

Pradesh v/s RashtriyaIspat Nigam Limited.,

Honorable Supreme Court has observed that

when the effective control of the goods

remains in the hands of the transferor only,

despite of it being used by the transferee, then

hire charges received in lieu of the goods

used, is not leviable to sales tax.

Goods are merely given to the transferee for

specific use, but transferee cannot use them

as per his own will, which implies that the

effective control and possession remains in the

S.

No.

Chapter/

heading/

sub-

heading/

tariff item

Description

of goods

Tariff

value US $

(Per

Metric

Tonne)

(1) (2) (3) (4)

1 1511 10 00 Crude Palm

Oil

809

2 1511 90 10 RBD Palm

Oil

862

3 1511 90 90 Others –

Palm Oil

836

4 1511 10 00 Crude

Palmolein

883

5 1511 90 20 RBD

Palmolein

886

6 1511 90 90 Others –

Palmolein

885

7 1507 10 00 Crude

Soyabean

Oil

966

8 7404 00 22 Brass Scrap

(all grades)

3860

9 1207 91 00 Poppy

seeds

2556

Page 10: SPN Missive of October 2013

8

hands of the transferor only. Further, goods

being in the custody of the transferee do not

militate against possession.

The essential condition of section 5E of the

Andhra Pradesh general Sales Tax Act for levy

of sales tax involves transfer of right to use, but

here the right to use goods is not transferred

and hence sales tax is not leviable on hire

charges.

However, as per Section 66E of the Finance

Act, 1994, as amended declared Service

includes when there is transfer of goods by

way of hiring, leasing, licensing or in any such

manner without transfer of right to use such

goods. Hence service tax will be levied by

virtue of such transaction falling in the

declared service.

FEMA

A.P. (DIR Series) Circular No. 31 dated

September 4, 2013

External Commercial Borrowings (ECB)

from the foreign equity holder

On a review, subject to the conditions

prescribed in the circular, it has been decided

to permit eligible borrowers to avail of ECB

under the approval route from their foreign

equity holder company with minimum

average maturity of 7 years for general

corporate purposes.

A.P. (DIR Series) Circular No. 39 dated

September 6, 2013

Export and Import of Currency

As per Regulation (2) of Foreign Exchange

Management (Export and Import of Currency)

(Amendment) Regulations, 2009, notified vide

Notification No. FEMA 195/RB-2009 dated July

7, 2009, any person resident in India may take

outside India or having gone out of India on a

temporary visit, may bring into India (other

than to and from Nepal and Bhutan) currency

notes of Government of India and Reserve

Bank of India notes up to an amount not

exceeding Rs.7,500 per person.

As a measure of enhanced flexibility any

person resident in India, may take outside India

(other than to Nepal and Bhutan) currency

notes of Government of India and Reserve

Bank of India notes up to an amount not

exceeding Rs.10,000 (Rupees ten thousand

only) per person; and who had gone out of

India on a temporary visit, may bring into India

at the time of his return from any place outside

India (other than from Nepal and Bhutan),

currency notes of Government of India and

Reserve Bank of India notes up to an amount

not exceeding Rs.10,000 (Rupees ten thousand

only) per person.

A.P. (DIR Series) Circular No. 42 dated

September 12, 2013

Foreign Investment in India – Guidelines for

calculation of total foreign investment in

Indian companies, transfer of ownership

and control of Indian companies and

downstream investment by Indian

companies

On a review of the policy, condition (d) in Para

6 (ii) of Annex to A.P. (DIR Series) Circular No.1

dated July 04, 2013, as regards downstream

investments by an Indian company which is

not owned and/or controlled by resident

entity/ties, has been amended.

The amendment is that now Downstream

investments through internal accruals are

permissible by an Indian company, subject to

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9

the provisions of clause 6(i) and as also

elaborated in the Circular as against

Downstream investments through internal

accruals being permissible by an Indian

company engaged only in activity of investing

in the capital of another Indian company/ies,

subject to the provisions of the above circular.

A.P. (DIR Series) Circular No. 43 dated

September 13, 2013

Export of Goods and Services-

Simplification and Revision of Declaration

Form for Exports of Goods/Softwares

The existing form used for declaration of

exports of Goods/Softwares has been

simplified and a common form called “Export

Declaration Form” (EDF) has been devised to

declare all types of export of goods from Non-

EDI ports and a common “SOFTEX Form” to

declare single as well as bulk software exports.

The EDF will replace the existing GR/PP form

used for declaration of export of Goods. The

procedure relating to the exports of goods

through EDI ports will remain the same and SDF

form will be applicable as hitherto.

Under the revised procedure, the exporters will

have to declare all the export transactions,

including those less than US$25000, in the form

as applicable.

A.P. (DIR Series) Circular No. 44 dated

September 13, 2013

Foreign Direct Investment (FDI) in India –

Review of FDI policy – definition for control

and sector specific conditions

This circular defines the revised definition of the

term ‘Control’ as under:

'Control' shall include the right to appoint a

majority of the directors or to control the

management or policy decisions including by

virtue of their shareholding or management

rights or shareholders agreements or voting

agreements.

It also lists that the government of Himachal

Pradesh and Karnataka have given their

consent to implement the FDI policy on Multi

Brand Retail Trading in Himachal Pradesh and

Karnataka respectively.

Further, the extant policy on FDI caps and

routes for various sectors has since been

reviewed. Accordingly, in order to bring

uniformity in the sectoral classification position

for FDI as notified under the Consolidated FDI

Policy Circular with the FEMA Regulations,

Annex B of Schedule 1 to Notification No.

FEMA. 20/2000-RB dated 3rd May 2000, has

been suitably revised and the updated list is

given at the Annex.

A.P. (DIR Series) Circular No. 48 dated

September 18, 2013

External Commercial Borrowings (ECB)

Policy – Liberalisation of definition of

Infrastructure Sector

This Circular contains the expanded definition

for infrastructure sector for the purpose of

availing ECB.

A.P. (DIR Series) Circular No. 53 dated

September 24, 2013

Trade Credits for Import into India

As per the extant guidelines, AD Category - I

banks may approve availing of trade credit

not exceeding USD 20 million up to a maximum

period of five years (from the date of

shipment) for companies in the infrastructure

sector, subject to certain terms and conditions

Page 12: SPN Missive of October 2013

10

stipulated therein. It is also stipulated that AD

Category - I banks are not permitted to issue

Letters of Credit/guarantees/Letter of

Undertaking (LoU) /Letter of Comfort (LoC) in

favour of overseas supplier, bank and financial

institution for the extended period beyond

three years. No roll-over/extension is permitted

beyond the permissible period.

On a review, with immediate effect, it has

been decided to allow companies in all

sectors to avail of trade credit not exceeding

USD 20 million up to a maximum period of five

years for import of capital goods as classified

by Director General of Foreign Trade (DGFT). It

has also been decided to relax the ab-initio

contract period of 15 (fifteen) months for all

trade credits to 6 (six) months.

However, the AD Category - I banks are,

cannot issue Letters of credit/guarantees

/Letter of Undertaking (LoU) /Letter of Comfort

(LoC) in favour of overseas supplier, bank and

financial institution for the extended period

beyond three years.

All other aspects of Trade Credit policy will

remain unchanged and should be complied

with.

A.P. (DIR Series) Circular No. 59 dated

September 30, 2013

External Commercial Borrowings (ECB)

Policy – Refinancing / Rescheduling of ECB

As per the extant guidelines, the eligible

borrowers desirous of refinancing an existing

ECB can raise fresh ECB at a higher all-in-cost /

reschedule an existing ECB at a higher all-in-

cost under the approval route subject to the

condition that the enhanced all-in-cost does

not exceed the all-in-cost ceiling prescribed as

per extant guidelines.

It has been decided, on a review, to

discontinue the facility of allowing eligible

borrowers to raise ECB at a higher all-in-cost to

refinance / reschedule an existing ECB

effective from October 01, 2013.

The scheme of refinance of existing ECB by

raising fresh ECB at lower all-in-cost, subject to

the condition that the outstanding maturity of

the original ECB is either maintained or

extended, will continue as hitherto under the

automatic route and approval route as the

case may be.

All other aspects of ECB policy shall remain

unchanged.

COMPANY LAW

Commencement Notification of

Companies Act, 2013

[Notification dated 12th September, 2013]

The Central Government notified 98 provisions

of the Companies Act, 2013, effective from the

12th day of September, 2013.

Clarification on the Notification dated

12.09.2013

[General Circular No.15/2013 dated 13th

September, 2013]

The Companies Act, 2013, has been notified in

the Gazette of India on 30th August, 2013,

after receiving the approval from the President

on 29th August, 2013. For inviting the

comments/ suggestions or objections from the

stakeholders or general public, a portion of the

Draft Rules on 16 Chapters were placed on the

Page 13: SPN Missive of October 2013

11

MCA website on 9th September, 2013. Out of

16 Chapters, 13 Chapters requiring specifying

Forms will be soon uploaded on the website.

The stakeholders expressed their difficulties in

the proper implementation of some of the

provisions of the 98 sections of the Companies

Act, 2013 (the “said Act”) notified by the MCA

on 12th September, 2013 and in order to

ensure proper execution of the said Act, the

following four clarifications were given:

i) Sub-Section (68) of section 2:- Registrar of

Companies may register those Memorandums

and Articles of Association received till

11.09.2013 as per the definition clause of the

‘private company’ under the Companies Act,

1956, without referring to the definition of

‘private company’ under the “said Act”.

ii) Section 102:- All Companies which have

issued notices of general meeting on or after

12.09.2013, the statement to be annexed to

the notice shall comply with additional

requirements as prescribed in section 102 of

“the said Act”.

iii) Section 133:- Till the Standards of

Accounting or any addendum thereto are

prescribed by Central Government in

consultation and recommendation of the

National Financial Reporting Authority, the

existing Accounting Standards notified under

the Companies Act, 1956, shall continue to

apply.

iv) Section 180:- In respect of requirements of

special resolution under Section 180 of the

“said Act” as against ordinary resolution

required by the Companies Act, 1956, if notice

for any such general meeting was issued prior

to 12.09.2013, then such resolution may be

passed in accordance with the requirement of

the Companies Act, 1956.

Clarification on the Notification dated

12.09.2013

[General Circular No.16/2013 dated 18th

September, 2013]

In respect of the notification issued by MCA for

the implementation of the 98 Sections of the

Companies Act, 2013, on 12th September,

2013, it has been clarified by the Ministry that

the provisions of the Companies Act, 1956,

corresponding to the provisions of the

Companies Act, 2013, will not be effective

from 12th September, 2013, thereby, putting

an end to the confusion regarding the

application of the provisions of The Companies

Act, 1956.

Enforcement of Companies (Removal of

Difficulties) Order, 2013

[Order dated 20th September, 2013]

The Board of Company Law Administration has

been authorised to exercise all the powers of

the Tribunal under Sections 24, 58, and 59 with

respect to the second proviso to sub-section

(1) of Section 465 of the said Act, until the date

is notified by the Central Government under

sub-section (1) of section 434 of the

Companies Act, 2013, for transfer of all

matters, proceedings or cases to the Tribunal.

TRANSACTIONS THAT

MADE HEADLINES

Indian private firms temporarily allowed

to go public overseas without the rider

of local listing

RBI tightens norms for companies

lending against gold

Page 14: SPN Missive of October 2013

12

India Value Fund close to picking stake

in Trivitron Healthcare for up to $24M

Arisaig Partners ups stake in

McDonald’s franchisee Westlife to 6.9%

for $29M more

GMR divests 74% stake in highway unit

to IDFC for $35M

Penguin Random House acquires ABP

Group’s stake in Indian arm for $8.5M

Barclays to shut wealth management

services in 130 countries

Unitech's Gurgaon IT SEZ sale may be

delayed

Page 15: SPN Missive of October 2013

Disclaimer: This publication is intended as a service

to clients and associates and to provide them with

details of the important Transaction updates. It has

been prepared for the general guidance on matters of

interest only, and does not constitute professional

advice. No person shall act upon the information

contained in this publication without obtaining

specific professional advice. Due care has been taken

while compiling the information, however, no

representation (express or implied) is given as to the

accuracy or completeness of the information

contained in this publication.

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