Newsletter for the Month of June 2012

1 June2012

Bangalore Branch of SIRCof the Institute of Chartered Accountants of India

2June2012

3 June2012


Contd. from previous page

With warm regards,

CA. Nithin Mahadevappa

Chairman

The main intension of these programs is to train, update andmake our professional colleagues empowered on the subjects oftheir interest. During the past couple of months we have noticedthat some of the programs recording lesser attendance; I requestmembers to attend the programs in good numbers and make theprograms successful and also comply their CPE credits.

May 2012 activities

Bangalore branch being the largest and the most vibrant branchin the country conducts activities for its members and studentsand extends services to the general public. During May 2012,Bangalore branch has conducted the following programs:

Members:• Workshop on Practical Issues in TDS & E-filing• Workshop on Information Technology (Excel)• Seminar on ‘Internal Audit’ in association with SIRC of ICAI• Certificate Course on Indirect Taxes• CPE Teleconferences• Study Circle Meets• Impact Seminars

All the programs were well appreciated by our members byway of attending in good numbers. Bangalore Branch hascontinued its initiative of web-casting for the major programsduring the month. All the programs of Bangalore branch arerecorded and hosted at branch website (ICAI TUBE). I requestthe members/students to make use this service atwww.bangaloreicai.org/resources/icai-tube.

CA Students:• Examination co-ordination• Coaching classes• Crash course for CPT exams

General Public and other students:• Investor Awareness Program• Career Counselling at Nitte Minakshi Institute of

Technologies, Yelahanka, Bangalore.

On behalf of Bangalore Branch, I thank all the speakers, resourcepersons, coordinators, professional colleagues and employeesof Bangalore branch for support all the events and programsfor the month. I also thank all the participants for making theevents successful.

June 2012 activities

The focus for the month of June would be on Karnataka StateLevel Conference and Programs of various committees of ICAI.The details of June 2012 programs are:

‘Jnana Dasoha - Knowledge Dissemination…….’ - a two dayState Level Conference at Hubli in association with all thebranches of Karnataka

The State Level Conference is the annual fest for all the branchesin Karnataka to join together, to celebrate knowledge andfellowship. First time in the history, this two day program (State

level Conference) is moved out of Bangalore and all of usthought this program can be hosted on rotation basis by all thebranches in the State. ‘Jnana Dasoha - KnowledgeDissemination’ , as the name portrays, this program is packedwith paper presentation by reputed speakers of the professionacross country on various topics of professional interest,spiritual session, entertainment, etc.

I request members of Bangalore branch to participate in largenumbers to this program and make this initiative a successful one.

National Conference on Cloud Computing - Opportunitiesfor CAs

Bangalore branch is the first in the country to host NationalConference on Cloud Computing - Opportunities for CAs.

Most of the applications and technology companies are movingto this innovative technology and in this scenario it is essentialfor Chartered Accountants to understand the impact of cloudcomputing on our profession.

This program focuses on basics of Cloud Computing, impactand opportunities for CA profession, Tax implications in CloudComputing environments (case studies) and Audit Risk in CloudComputing environment.

Seminar on ‘How to be successful in practice’

This program is the initiative of Committee for Members inIndustry; this program is designed to enable members in practicewith the required infrastructure, networking, skills, etc. Alsothis seminar will portray new avenues, LLP of CA practice.

Other Programs• ISA Meet• CPE Teleconferences• Study Circle Meets• Impact Seminars

Reading Rooms

Board of Studies (BOS) of The Institute of CharteredAccountants of India intends to start reading room facilitiesacross Bangalore in Association with Schools, Colleges andLibraries, etc. Wherein BOS will assist by way of grants forFurniture, Air-conditioning, etc. required for such facility. Irequest the members in association with such institutions cancontact Bangalore branch to facilitate the initiative.

Web-casting & ICAI Tube

Major programs at Bangalore Branch are live telecasted and allthe programs are archived and available on demand. All therecorded programs of Bangalore branch are hosted in theBangalore branch website, to watch them please visitwww.bangaloreicai.org/resources/icai-tube.

4June2012

CALENDAR OF EVENTS - June & July 2012Date/Day Topic /Speaker Venue/Time CPE Credit

06.06.12 “Taxation & Issues of HUF” Branch PremisesWednesday Mr. H. Naginchand Khincha 06.00pm to 08.00pm08.06.12 CPE Teleconference Programme on Branch PremisesFriday “Definition of Service covering Negative List” 11.00am to 01.00pm

CA. Madhukar Narayan Hiregange, Central Council Member09.06.12 “FEMA-An overview & Recent Issues” (Impact Seminar - No Fee) Branch PremisesSaturday CA. G. Sudhakar 10.00am to 01.00pm13.06.12 “SOX and Carbon Credit” (Impact Seminar - No Fee) Branch PremisesWednesday CA. Aman Dutta & CA. Bose Varghese 05.30pm to 08.30pm14.06.12 Fourth ISA Meet Hotel Fortune SelectThursday Delegate Fee: Nil For details refer Page No:9 JP Cosmos, Cunningham

Crescent Road, Bangalore06.00pm to 08.30pm

15.06.12 National Conference on Cloud Computing - Opportunities for CAs Hotel Le- Meridien,Friday Delegate Fee:Rs.1,500/- For details refer Page No:18 Sankey Road,

Seshadripuram, B'lore09.00am to 06.00pm

20.06.12 Study Circle Meeting : Tax & Regulatory implications Branch PremisesWednesday on Real Estate Sector 06.00pm to 08.00pm

CA. Anand Kakarla & CA. Archana Korlimarla22.06.12 ‘Jnana Dasoha - Knowledge Dissemination…….’ Bio Tech Hall,Friday & - a two day State Level Conference B.V.B. Engg. College23.06.12 Vidyanagar,Saturday Delegate Fee:Rs.2,000/- For details refer Page No: 13 Hubli-58002127.06.12 Demonstration of XBRL Tools (Impact Seminar - No Fee) Branch PremisesWednesday CA. V. Rangan & Mr.Karthik Ganeshan 05.30pm to 08.30pm

For details refer Page No:1628.06.12 Workshop on Information Technology ITT South Centre, ICAIThursday Working Module of Revised Schedule VI with reference to Excel Netkallapa Circle,

Spreadsheet -Connectivity from Trail Balance to Final Accounts Basavangudi,CA. Shivakumaar H. B'lore-4, Ph:26621434Delegate Fee: Rs.300/- Participation restricted to 40 on first come first serve 05.00pm to 08.00pm

29.06.12 Workshop on Information Technology ITT South Centre, ICAIFriday Understanding Internet in depth with reference to Digital Signature & Netkallapa Circle,

efiling - Online hands on workshop Basavangudi,Mr. S.M. Hussain, ITT Faculty, ICAI, Bangalore B'lore-4, Ph:26621434Delegate fee: Rs. 300/- Participation restricted to 40 on first come first serve 05.00pm to 08.00pm

30.06.12 Seminar on ‘How to be successful in practice’ - CMII Programme Branch PremisesSaturday Delegate Fee: Rs.500/- For details refer Page No:17 09.00am to 05.30pm01.07.12 CA Day Celebrations Branch PremisesSunday 09.30am onwards04.07.12 “Labor Law” Branch PremisesWednesday Sri. B. C. Prabhakar, Advocate 06.00pm to 08.00pm11.07.12 Service Tax Law - Negative List Concept (Impact Seminar - No Fee) Branch PremisesWednesday CA. G. Lakshminarayan 05.30pm to 08.30pm

DISCLAIMER: The Bangalore Branch of ICAI is not in anyway responsible for the result of any action taken on the basis of the advertisement publishedin the newsletter. The members, however, bear in mind the provision of the code of ethics while responding to the advertisements. The views and opinionsexpressed or implied in the Branch Newsletter are those of the authors and do not necessarily reflect that of Bangalore Branch of ICAI.

Note : High Tea at 5.30 pm for programmes at 6.00 pm at Branch Premises.

Advertisement Tariff for the Branch NewsletterColour full pageOutside back ` 30,000/-Inside back ` 24,000/-

Advt. material should reach us before 22nd of previous month.

Inside Black & WhiteFull page ` 15,000/-Half page ` 8,000/-Quarter page ` 4,000/-

Editor : CA. Nithin MahadevappaSub Editors : CA. Ravindranath. S.N

CA. Prasad. S.RCA. Shivakumar. H

Cover Page SubhashitaTranslation by : CA. Allama Prabhu M.S.

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5 June2012


TAX UPDATES APRIL 2012CA. Chythanya K.K., B.Com, FCA, LL.B., Advocate

VAT, CST, ENTRY TAX,PROFESSIONAL TAX

PARTS DIGESTED:

a) 49 VST – Part 3 to 6

b) 50 VST – Part 1

c) 13 GSTR – Part 9

d) 72 KLJ – Part 3 & 4

e) 17 KCTJ – Part 1

Reference / Description

2012 (72) Kar. L.J. 289 (HC) (DB):Ibex Engineering Pvt. Ltd. v. Stateof Karnataka - In the instant case theassessee had manufactured mouldsand retained with itself for use inmanufacture of other goods forexport. The ‘tool developmentcharges’ was received by the Assesseefrom his foreign customers in respectthereof. Assessee contended that thetransaction does not amount to salein absence of delivery of moulds tobuyers and that even if it wasconsidered as sale, it should be treatedas export sale and that in either casesaid receipt does not form part oftaxable turnover.

The Karnataka High Court held that‘tool development charges’ receivedby the Assessee was nothing but saleconsideration for moulds and oncesame was accepted by Assessee,property in moulds passed on tobuyer, and holding of moulds byAssessee thereafter was on behalf ofand for purpose of buyer. Delivery ofgoods to buyer, need not be actual orphysical, it can be symbolic also andit can be to seller himself. Therefore,the court held the said transactionamounts to sale.

The Court further held that merelybecause buyer was outside India,transaction cannot be taken as exportsale when goods had not crossedcustoms frontier of India and as goodshad not moved out of State, it cannotalso be taken as inter-State sale.Therefore, the court held that the saidtransaction has to be considered aslocal or intra-State sale attracting levyof tax under the State Act.

2012 (72) Kar. L.J. 289 (HC) (DB):Koutons Retail India Ltd. v. ACCT -In the instant case there was an entryof goods into local area by way ofstock transfer, which the Assessee hadnot paid tax. The Assessing Authorityissued a proposition notice proposingto tax on the same along with interestand penalty. However, Assessee paidthe tax along with the interest andsought for waiver of penalty and alsosubmitted that Assessee had omittedto pay tax in time for the reason thatthe Assessee had mistakenly believedthat the tax was not payable in respectof goods received on stock transferbasis. But, the Assessing Authoritylevied penalty without recordingreasons therefor.

The Karnataka High Court observingthat Assessee had paid tax due alongwith interest thereon before issue ofshow-cause notice and also observingthat Assessee had omitted to pay taxin time for the reason that the Assesseehad mistakenly believed that the taxwas not payable in respect of goodsreceived on stock transfer basis heldthat the Assessing Authority was notjustified in re-imposing penaltywithout recording reason therefor.

INCOME TAX

PARTS DIGESTED:

a) 342 ITR – Part 3 to 6

b) 343 ITR – Part 1

c) 205 Taxman – Part 5

d) 206 Taxman – Part 1 to 4

e) 14 ITR (Trib) – Part 7

f) 15 ITR (Trib) – Part 1 to 4

g) 135 ITD – Part 5 to 8

h) 38 CAPJ – Part 2 & 3

i) 44-A BCAJ – Part 1

j) 60 TCA – Part 9 & 10

Reference / Description

[2012] 343 ITR 1 (AAR): CitrixSystems Asia Pacific Pty. Ltd., In re- In the instant case the Applicant wasa Company incorporated in Australiaand the provider of software services.It had entered into agreements withIndian distributors for the distributionand sale of its software and hardwareproducts in India. In the year 2006,the Applicant entered into adistribution agreement with I, anIndian Company engaged in thebusiness of distribution of computersoftware and hardware, under whichI was appointed as non-exclusivedistributor of the products of theApplicant in India. For the softwareproducts, Citrix XenApp, sale andcollection was made through thedistributor, but there was no physicaldelivery of the product made to thedistributor. On the basis of thedemand of the customers, thedistributor placed orders of purchasewith the Applicant and madepayments to the Applicant. TheApplicant then directly transmitted a“key” to the end-user customer who,on receipt of the key, downloaded thesoftware from the server of theApplicant. In addition, I alsofacilitated the execution of the Citrix

6June2012

subscription advantage programmebetween the Applicant and its existingcustomers. The programme was apackage of support services during theperiod of the programme, includingproduct version updates, subscriptionadvantage, news and updates andsecure portal access. The Applicantsought an advance ruling on thetaxability in India in respect ofpayments made by I to it for thesoftware product.

The Authority for Advance Ruling onthe stated facts, ruled that:

(a) The payments received by theApplicant from the distributor forsales of the software productswere in the nature of royaltywithin the meaning of Section9(1)(vi) of the IT Act;

(b) The payments concerned wouldbe royalty as defined in Article 12of the DTAA between Indian andAustralia;

(c) The payment received by way ofsubscription for the updates wouldbe the payment received for grantof a right to use the copyrightembedded in the subscriptionadvantage programme and hencewill be royalty;

(d) The payment received by theApplicant from the distributor forthe Citrix subscription advantageprogramme was royalty within themeaning of Clause (a) of Article12(3) of the DTAA between Indiaand Australia.

(e) As the Applicant did not havepermanent establishment in India,the amount was liable to be taxedin India under Article 12(2) of theDTAA

(f) The distributor I was required towithhold taxes in India at the timeof making payments to theApplicant in terms of Section 195

of the IT Act at the rate of 10% ofthe gross amount of royalty asprovided under Article 12(2) ofthe DTAA.

The permission granted by thesoftware owner to the distributor tomake an offer of sale is one of thecopyright rights and theconsideration paid in respect of maypartake the character of royalty underthe Act. However, under the Indo USAtreaty, unless the consideration is paidfor use or right to use, it cannot beregarded as royalty. This importantdifference between the Act and theDTAA has been unfortunatelymisconstrued.

[2012] 343 ITR 30 (Karn. - HC): AnilKumar v. ITO and Others - In theinstant case, the Assessee was theproprietor of M engaged in purchaseand sale of non-ferrous metals, scraps,skimming ashes and dresseschemicals and other commodities.The purchases were made from onecountry and exported to anothercountry at a margin of profit byarranging direct shipment from theselling country to the purchasingcountry. The proceeds were receivedthrough convertible foreign currencyand payments were made onconvertible foreign currency. TheAssessee for the assessment year2001-2002, claimed 100% deductionunder Section 80HHC of the IT Actand subsequently claimed 80%deduction by revising the return. TheAssessing Officer and the Tribunalheld that the Assessee was not entitledto special deduction on the basis thatthe Assessee had not exported thegoods from the Indian soil aftercrossing its customs barrier.

The Karnataka High Court held thattwo conditions which require to besatisfied before an assessee claimsdeduction under this provision are:

(i) the assessee must be engaged inthe business of export out of India ofany goods or merchandise; (ii) saleproceeds of such goods ormerchandise exported out of India arerecoverable by the assessee inconvertible foreign exchange. If thesetwo conditions are satisfied, theassessee can claim deduction. Furtherthe Court observed that Explanationread with the main Section do not inany way indicate that, to be eligiblefor the benefit of deduction, the goodsor merchandise has to emanate fromIndia. Therefore, the Court held thatlaw does not require the goods to bephysically exported out of India andhence the Assessee was eligible fordeduction under Section 80HHC ofthe IT Act.

The honourable Karnataka HighCourt appreciated that as againstphysical import into the country andsubsequent export of goods out ofIndia, if a person buys goods in onecountry and directly sells the same toits customer in another country, he iseligible for benefit of exemptionattached to export.

[2012] 343 ITR 81 (Cal. - HC): ABNAmro Bank, N.V. v. CIT and another- In the instant case the Assessee wasa Netherlands Company and itsprincipal branch office was in India.In the course of its banking activities,the branch office in India remittedsubstantial funds to its head office asinterest. On appeal, two questionswere raised (i) whether interestpayment made by the branch officein India to its head office abroad wasto be allowed as a deduction incomputing the profits of the assessee’sbranch in India, and (ii) whether inmaking such payments to the headoffice, the branch office in India wasrequired to deduct tax at source underSection 195 of the IT Act.

7 June2012


The Calcutta High Court held thatunder Article 5(2)(b) of the DTAAbetween India and the Netherlands,provides that a branch is to be takenas permanent establishment and if itis further read with Article 7, thispermanent establishment or branch isto be treated as separate unit. Article7(2) specifically states that it is to beconsidered as a distinct and separateenterprise and its profits are to be socomputed as profit properlyattributable to such a permanentestablishment. In the calculation ofsuch profit by a banking enterprise,interest paid can be taken as adeduction by virtue of Article 7(3)read with Article 11(7).

Further the Court held that, no tax hadto be deducted under Section 195(1)of the IT Act for the reason that headoffice was not chargeable to tax on suchinterest payments by virtue of theAgreement between India and theNetherlands. Hence, the Court held that,there was no obligation on the branchoffice in India to deduct tax whilemaking interest remittance to its headoffice or any other foreign branch.

The honourable Calcutta High Courtheld that the permanent establishmentand the head office are to be regardedas two different persons. However, asthe income attributable to head office(which included payment made byPE) is not within the tax jurisdictionof India PE need not deduct tax. Withdue respect, it is not possible to treatpermanent establishment and headoffice as two different persons. Therelevant article 7 of the DTAA dealsonly with a hypothesis and not afiction that in attributing the profitsof the permanent establishment, itshould be treated as distinct andseparate from the head office.

[2012] 205 Taxman 389 (Karn. -HC); 18 taxmann.com 76 (Karn. -

HC): CIT v. Infosys TechnologiesLtd. - In the instant case the Assesseewas doing business of developing andexporting software. It received certainamount by sale of software system‘Eagle’ developed by it to its whollyowned foreign subsidiary. TheAssessee offered said income as long-term capital gain while computingtotal income and was set-off againstlong-term loss. The Assessing Officerheld that said income was receivedfrom business of Assessee. However,the Assessing Officer rejected thealternative plea of the Assessee thatif said income was to be treated asbusiness income, same was entitled toexemption under Section 10A of theIT Act holding that Assessee, havingclaimed said income as long-termcapital gain, could not claim exemptionunder Section 10A of the IT Act.

The Karnataka High Court held thatif Assessee was entitled to exemptionunder Section 10A of the IT Act asSTP unit, fact that Assessee hadclaimed the said income as long-termcapital gain should not come in waygranting the exemption. Therefore,the Court held that the Assessee wasentitled to exemption admissibleunder Section 10A of the IT Act.

[2012] 205 Taxman 396 (Karn. -HC); 18 taxmann.com 57 (Karn. -HC): CIT v. Fusion Software Engg.(P.) Ltd. - In the instant case theAssessee claimed exemption underSection 10A in respect of itsmanufacturing unit claimed to havebeen established in SoftwareTechnology Park (STP). The AssessingOfficer disallowed exemption holdingthat it was reconstruction of earlierestablishment.

The Tribunal on material on recordheld that it was not a case ofreconstruction of already existingbusiness and Assessee could not be

denied exemption under Section 10Amerely on the ground that no separateaccounts were maintained regardingSTP unit and other unit. The KarnatakaHigh Court held that finding arrivedby the Tribunal was pure finding of factbased upon material on record,therefore, could not at all be said to bearbitrary or capricious so as to call forinterference.

[2012] 206 Taxman 19 (AAR); 18taxmann.com 325 (AAR): SKFBoilers and Driers (P.) Ltd., In re -In the instant case the Applicant wasan Indian Company. It was engagedin the manufacture and supply of RicePar Boiling and Dryer Plants as perthe requirements of the customers. Ithad received an order from Pakistan.The order was received through twoagents situated in Pakistan. The plantwas shipped and on completion of theexport order, commission becamepayable to the agents as per the agreedterms. The question that arose forconsideration was whether the incomeof the non-resident agents can bedeemed to accrue or arise in India andwhether tax deduction under Section195 of the IT Act would apply?

The Authority for Advance Rulingruled that the fact that agents hadrendered services abroad in form ofsoliciting orders and that commissionwas to be remitted to them abroad,were wholly irrelevant for purpose ofdetermining situs of their income.Since order was executed in India,right of agent to receive commissionarose in India and therefore, incomearising on account of commissionpayable to the two agents is deemedto accrue and arise in India and istaxable under the IT Act andaccordingly, withholding underSection 195 of the IT Act would apply.

With due respect, the honourableauthority seems to have overlooked

8June2012

Explanation 1(i) which clearlyprovides that where no operations arecarried out in India, no businessincome is deemed to accrue or arisein India. Further, the honourableauthority may not be right inassuming that right to receivecommission arises in India on thebasis of execution of order in India.The place of execution of order by theprincipal may not be relevant indetermining the place of earning thecommission income, particularlywhen the agent has not carried outany operations in India.

[2012] 206 Taxman 22 (Ker. – HC);19 taxmann.com 157 (Ker. - HC):CIT v. Smt. Pushpa Vijoy - In theinstant case the Assessee wasfollowing cash system of accounting.She was holding cumulative termsdeposits in a bank entitling her forinterest, which was periodicallycredited by bank in deposit accountof Assessee. During previous yearsrelevant to assessment years 1997-98to 2000-01, bank deducted tax atsource on interest credited in depositaccount of assessee and issued TDSCertificates to her. Though Assesseein returns of income filed forassessment years 1997-98 to 2000-01did not disclose interest income fromthese deposits, Assessee in her incomeclaimed credit of tax based on TDScertificates issued by bank.

The Kerala High Court held that inview of provisions of Section 199Assessee is entitled to credit of taxbased on TDS Certificates only inassessment year in which incomefrom which tax is deducted is assessedto tax. Therefore, the Court held thatAssessee was not entitled to credit oftax deducted by bank.

[2012] 206 Taxman 137 (Karn. – HC);20 taxmann.com 26 (Karn. - HC): CITv. Rational Software Corpn. India Ltd.

- In the instant case the Karnataka HighCourt held that the consideration paidby Indian customers or end users toAssessee, a foreign supplier, for transferof right to use software/computerprogramme in respect of copyrightsfalls within mischief of ‘royalty’ asdefined under sub-Clause (v) toExplanation 2 to Clause (vi) of Section9(1) of the IT Act.

[2012] 206 Taxman 150 (Karn. -HC); 19 taxmann.com 17 (Karn. -HC): CIT v. SambandamUdaykumar - In the instant caseAssessee sold certain shares andearned capital gains and within 12months made investment forconstruction of a residential house.Assessee claimed exemption underSection 54F of the IT Act with regardto said portion. The Assessing Officerdenied exemption on the ground thatconstruction was not complete withinthree years as certain work likeflooring, electrical fittings, fittings ofdoor shutters, etc., were still pending.

The Karnataka High Court observedthat the registered sale deed wasexecuted showing transfer of propertyin Assessee’s favour and Assessee wasin possession and occupation of saidproperty. Therefore, the Court heldthat once it is demonstrated thatconsideration received on transfer ofa capital asset has been invested eitherin purchase or in construction of aresidential house, even though thesetransactions are not complete in allrespects as required under law, samewould not disentitle Assessee frombenefit of exemption under Section54F of the IT Act.

[2012] 15 ITR (Trib.) 158 (Mumbai):DCIT v. Indo-American JewelleryLtd. - In the instant case theAssessee’s operating profit marginwas 3.56 per cent on sales and 3.70per cent on cost whereas that of the

comparables used by the Assesseewas 3.27 per cent of sales and 3.82per cent on cost. The Transfer PricingOfficer rejected the same and madefresh search to find companies thecomparable business as that of theAssessee. Accordingly made theadjustment of RS. 3,39,63,606/- to thevalue of the international transactions.

The Mumbai Tribunal finding that theoperating profit or sales of theAssessee at 3.56 per cent being higherthan the industry margin, held that thetransactions between the Assessee andits associated enterprises were atarm’s length.

The Mumbai Tribunal while holdingso held that there was no transfer ofprofit by the Assessee outside India,as per the Assessee’s submission that:

(a) Since the tax rates were higher inthe USA compared with those ofIndia, there would not be anyincentive to transfer the profits tohigher tax chargeable regionsespecially when the companyenjoyed deduction under Section80HHC of the IT Act.

(b) The Associated Enterprises hadearned meagre profit or incurredlosses as compared to the profitsof the Assessee

The Tribunal also held the following:

(a) Unless a proper method wasfollowed, comparables werechosen and selected after doingproper functions, assets and risksstudy and adjustments were madeto the extent possible, it would beunfair to summarily reject thetransfer pricing analysis made bythe Assessee.

(b) The Assessing Officer of theTransfer Pricing Officer had notmade out a case to establish thatthe comparables used by theAssessee deserves to be rejected.

9 June2012


(c) The Transfer Pricing Officercannot reject the transfer pricingstudy made by the Assessee asrequired under the TransferPricing Regulations andGuidelines without any cogentreasons.

[2012] 135 ITD 351 (Cochin); 18taxmann.com 359 (Cochin – Trib.):Brilliant Study Centre v. ACIT - Inthe instant case the Cochin Tribunalheld that expenditure on booksincurred by a tutorial institution,preparing students for professionalentrance examinations, is a capitalexpenditure entitled to depreciationunder Section 32(1) and not revenueexpenditure.

[2012] 135 ITD (BN – XVIII) Part7[2012]; 20 taxmann.com 44(Ahmedabad – Trib.): KHSMachinery (P.) Ltd. v. ITO - In theinstant case the Ahmedabad Tribunalheld that where royalty was paid in acontinuous and phased manner andthere was no comparable and nofinding about ordinary profits, there

would not be application of arm’slength price.

In this interesting decision, one mayinfer that in the case of a very uniqueinternational transaction wherecomparable transaction is notavailable, it may not be unreasonableto assume that the internationaltransaction is carried out at arm’slength price.

[2012] 6 International Taxation580[2012]; 19 taxmann.com 123(Delhi – Trib.): CSC TechnologySingapore Pte. Ltd. v. ADIT - In theinstant case the Delhi Tribunal heldthat in absence of finding that delayin payment of royalty/FTS was witha view to defer payment of tax, it wasto be held that royalty/FTS which hadaccrued as income to a foreigncompany, could not be taxed in sourcecountry (being India), unless thisamount had been received by foreigncompany.

Interestingly, this is the mandate asper the DTAA also which deals withroyalty ‘paid’ and not ‘credited ‘.

Accordingly, royalty becomes theincome of the recipient only uponreceipt as per the DTAA whichoverrides Income tax Act

[2012] 6 International Taxation 585;[2012] 19 taxmann.com 272(Mumbai – Trib.): CromptonCreaves Ltd. v. DCIT - In the instantcase the Assessing Officer passed anorder holding that payments made byAssessee to non-residents withoutdeducting withholding tax, was innature of fees for technical servicesrendered and Assessee was to betreated as an assessee in default underSections 201(1) and 201(1A) of theIT Act.

The Mumbai Tribunal held that as noassessment had been made in handsof payee in respect of sums receivedfrom Assessee and similarly noproceedings had been taken againstit till date for assessing such incomeand also time limit for issuing noticeunder Section 148 also had come toan end held order passed by theAssessing Officer was invalid.

Fourth ISA Meet @ BangaloreOn Thursday the 14th June 2012 from 6.00 pm to 8.30 pm

Venue: Hotel Fortune Select JP Cosmos, Cunningham Crescent Road Bangalore

2 hrsCPE

Organised byCommittee on Information Technology, ICAI

Hosted byBangalore Branch of SIRC of ICAI

Time Particulars Speaker

6.00 p.m. Registration & High Tea

6.30 p.m. Welcome Address CA.Nithin Mahadevappa, Chairman, Bangalore Branch

6.45 p.m. IT Initiatives for Members CA. Atul Bheda, Chairman , IT Committee, ICAI

7.00 p.m. ISA Professional Opportunities

7.15 p.m. XBRL – The Road Ahead CA. K.Raghu, Director, XBRL India and Member– XBRL International Membership Development Committee

8.00 p.m. Open House Question-Answers/ Concerns Areas/Success Stories

8.25 p.m. Vote of Thanks

Please register by sending a mail to [email protected]. No Registration Fees.Participation is open to ISA Members only

10June2012

RECENT JUDICIALPRONOUNCEMENTS ININDIRECT TAXESCA. N.R. Badrinath, Grad C.W.A., F.C.A.CA. Madhur Harlalka, B. Com., F.C.A

Central Excise:

1. Valuation of Physician Samples:The appellant is engaged inmanufacture of physician sampleson their own account and onothers account. The physiciansamples manufactured are clearedon payment of duty at thecontracted price to the principalmanufacturer at the transactionvalue. The dispute in the presentappeal relates to the valuation ofphysician samples manufacturedon their account and othersaccount. The Tribunal held thatphysician samples manufacturedand cleared to others on principalto principal basis for aconsideration and which werefurther distributed by the buyerfree of cost to physicians / doctorsshould be assessed to duty on thetransaction values. In respect ofphysician samples manufacturedby the appellants on their ownbehalf and distributed free of cost,the issue is no more open forarguments inasmuch as the LargerBench of the Tribunal in the caseof Cadila PharmaceuticalsLimited Vs CCE, Ahmadabad(2008-TIOL-1668-CESTAT-AHM-LB). [Allianz Bio SciencesPrivate Limited and others VsCCE, Puducherry, 2012-TIOL-570-CESTAT-MAD]

2. Exemption Certificate:Appellant has cleared of excisable

goods to Indian Navy withoutpayment of duty underNotification no. 64/95. Theexemption was denied on theground that requisite certificateunder the notification was notproduced for verification at thetime of clearance of goods.Therefore, the exemption wasdenied. The Tribunal held that theassessee is eligible for the benefitof exemption, since the veracityof certificate is not questioned andchallenged by the department andfurther the invoice shows thenecessary details of the certificate.Hence the substantial benefitshould not be denied to theassessee. [A.R. Engineering WorksVs CCE, Kolkata-II, 2012 (278)E.L.T. 495 (Tri–Kolkata)]

Customs:

3. Validity of non speaking orderpassed by the department: Thequestion of law before theHonourable Delhi High Court waswhether the order passed by theTribunal disposing of the appealby recording the reasons which donot specifically deal and examinethe contentions and issues raisedwas right. It is held that such anorder is virtually non-speakingwhich will not meet themandatory requirements of law.The contentions and issues raisedby the appellants on facts and lawhave to be specifically examined,

dealt with and considered. Aspeaking and reasoned order isrequired to be passed afterreferring to the evidence andmaterial relied upon by the parties.It is because of this reason theorder passed by the Tribunal is setaside and the matter is remandedback to Tribunal to rehear thearguments and thereafter to passa reasoned and speaking order asis mandated and required in law.[Nitesh Kumar Kedia and othersVs. CC, Import & General, 2012-TIOL-331-HC-DEL-CUS]

4. Valuation and restriction onimport of cars: The issue beforethe Tribunal pertains to theassessable value of the car beingimported and the non-satisfactionof licensing restrictions to importthe car. A person who has lived ina foreign country for a period of 3years and above is entitled toimport a car without licenceprovided the vehicle was in his usefor a minimum period of one yearbefore his return to India. TheTribunal upheld that duty is to bepaid on enhanced value asdetermined by lower authority atthe time of redemption of vehicleand upheld levy of penalty sincethe vehicle was imported violatinglicensing restrictions and alsoattempted to clear by declaring alower price. [Sri Channa KrantiKumar Vs. CCCEST, Hyderabad,2012-TIOL-449-CESTAT-BANG]

5. Time limit is not applicable forrefund of duty paid underprotest: The issue before theTribunal pertains to the time limitfor claiming refund of customsduty paid under protest. Theappellants applied for the refundclaim upon the Tribunal’s decision

11 June2012


in favour of them in the matter oflitigation for adoption ofassessable value. The claim forrefund was rejected by lowerauthorities on the ground that therefund was barred by limitation oftime. The Tribunal held thatrefund claim is not hit by timelimitation in the view that dutywas paid on enhanced assessablevalue during assessment of bill ofentry and that the same was paidunder protest and when valuationis challenged in higher appellateforum and settled in favour ofthem. [M/s Big Apple Mfg BigApple Arcade, Secunderabad VsCC, Hyderabad, 2012-TIOL-454-CESTAT-BANG]

6. Re-import of goods exported:The customs department rejectedthe claim of exemption of customsduty under notification no. 94/96-Cus dated 16.12.1996 on theground that the chassis withengine without body wereexported whereas the goodsimported were fully built busesalong with fittings such as AirConditioner, T.V., video, coffeemaker, music system andrefrigerator and the goods re-imported were not the same asexported. The Tribunal upheld thedecisions of lower authoritiessince the condition the exportedand imported should be the samefor availing benefit of notificationno. 94/96 is not satisfied. [M/sAshok Leyland Ltd Vs CC(Import), Nhava Sheva, 2012-TIOL-527-CESTAT-MUM]

7. Refund of Special AdditionalDuty (SAD) paid upon importunder Notification No. 102/2007-Cus: The issue before theTribunal is whether transfer of

right to use can be treated as salesfor the purpose of claiming refundof SAD paid on imported goodsunder the Notification no. 102/2007-Cus. The Tribunal held that‘sale’ includes the transfer of rightto use any goods for any purposefor cash or deferred payment orother valuable consideration andVAT collected on the goodssupplied to consumers on right touse basis, therefore SAD iseligible as refund undernotification no. 102/2007-Cus.[C.C.(ICD), New Delhi Vs.Reliance CommunicationsInfrastructure Ltd, 2012 (279)E.L.T. 85 (Tri.- DEL)]

CENVAT Credit:

8. Refund of Cess paid underNotification No. 41/2007-ST:The issue before the Tribunal,whether refund of cess on exportof goods is covered by theNotification No. 41/2007-ST. TheTribunal held that cess also iseligible as refund by placingreliance on the Board’s CircularNo. 134/3/2011-ST dated8.4.2011 wherein it was clarifiedthat the exemption granted fromservice tax also applies to theeducation cess leviable as apercentage of basic service taxpayable. [CCE, Mangalore VsM/s. Kudremukh Iron OreCompany Ltd, 2012-TIOL-496-CESTAT-BANG]

9. Refund of service tax paid oninput services used in provisionof exempted services: In case ofexport of goods, the ownership ofgoods vests with the exporter tilldelivery of the goods at the portand therefore, the port of exportshould be treated as place of

removal. Customs House AgentServices, Transit InsuranceServices and Good TransportAgency Services used up to portof export will qualify as inputservices under Rule 2(l) of theCENVAT Credit Rules, 2004.Therefore, service tax paid on theabove services will be eligible asCENVAT credit. [CCE, BelgaumVs M/s. Ken Agritech PrivateLimited, 2012-TIOL-563-CESTAT-BANG]

Service Tax:

10. Valuation of Taxable Services:The issue before the Tribunal iswhether the reimbursement oftransportation cost, loading andunloading from the customersthrough debit notes attracts servicetax and whether service tax paidon such services will be eligibleas CENVAT credit. The appellantswere providing crushing, gradingof iron ore and services likeunloading, loading andtransportation iron ore. Thetransportation activity was doneby others and paid by theAppellant along with service taxpayable for transportation ofgoods which was subsequentlyreimbursed from customer. TheTribunal held that suchreimbursement of expenses billedby appellants form part of thevalue of taxable service thereforeservice tax is to be paid on the fullvalue under the head applicablefor crushing and grading. Theappellants were eligible to claimCENVAT credit on service taxpaid on the services received fromsub-contractors as the serviceswere provided to the appellantssubject to the condition that the

12June2012

appellants pay tax on the full valueof service including the amountaccounted as reimbursement fortransportation. [Hira IndustriesLimited Vs CCE, Raipur 2012-TIOL-566-CESTAT-DEL]

11. CENVAT credit based on TR-6challan: The issue before theTribunal was whether TR-6 challanis valid document for availment ofCENVAT credit under Rule 9 ofCENVAT Credit Rules, 2004. TheTribunal held that CENVAT creditcan be taken on the strength of TR6 challan as in case of import ofservices, invoice received fromforeign collaborators would notshow service tax element. TheTribunal has relied on its owndecision in the case of CCE, GoaVs. Essel Pro Pack Limited

(2007 (8) S.T.R. 609). [CCE,Gurgaon Vs Sonasomic LemforderComponents, 2012 (26) S.T.R. 338(Tri – DEL.)]

12. Service of order: The issue iswhether the copy of order sent bydepartment through speed post isa sufficient compliance to theprovisions of Section 37C(1)(a) ofCentral Excise Act, 1944. TheHigh Court held that it ismandatory on the part of therevenue either to tender a copy ofdecision or to serve a copy of theorder by registered post withacknowledgement due to theassessee and in the present casesince the same is not done, therequirement of Section 37C of theCentral Excise Act, 1944 has notbeen complied with and service of

order through speed post is not avalid mode of servicing the order.[Amidev Agro Care Private Ltd VsUnion of India, 2012 (26) S.T.R.299 (Bom)]

IMPORTANT DATES TO REMEMBER DURING THE MONTH OF JUNE 2012

05-Jun-12 Payment of Central Excise Duty for the month of May 2012

Payment of Service Tax for the month of May 2012(in case of persons other than individual, proprietor & partnership firms)

06-Jun-12 e-Payment of Central Excise Duty & Service Tax for the month of May 2012

07-Jun-12 Payment of Tax deducted & Tax Collected in the month of May 2012.

10-Jun-12 Filing of monthly returns of Central Excise for the month of May 2012.

15-Jun-12 Filing of TDS quarterly return in Form 27Qin case of credit to the account of Non-resident at the year end.

Filing of TDS quarterly return Form 24Q and 26Q for the Quarter – 4 for the FY 2011-12

Due date for payment of First installment of Advance Tax in case of companies

Due date for filing of VAT 120 under KVAT Laws.

Payment of Provident Fund for the month of May 2012.

20-Jun-12 Due date for filing of VAT 100 under KVAT Laws.

Payment of Professional Tax for the month of May 2012

21-Jun-12 Payment of Employee State Insurance for the month of May 2012.

25-Jun-12 Filing of Monthly returns of Provident Fund for the month of May 2012.

30-Jun-12 Due date for filing of Form 26QA, 26QAA for the quarter ending March 2012

Congratulations

CA. A. Rafeqhas been co-opted

as member ofBoard of Studies of ICAI

for the year 2012.

13 June2012


14June2012

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Adv

t.

Members of Bangalore Co-opted toCommittees of SIRC of ICAI

NAME COMMITTEE NAME

CA. Dias P Jacob Professional DevelopmentCommittee

CA. Manjunatha R S Career Counselling Committee

CA. Venkataramani S Committee on Taxation

CA. Prakash Chand S Committee on FinancialMarkets & Investors Protection

CA. Madhava Murthy K S Committee on Public Financeand Government Accounting

CA. Prasanna Kumar D Committee on Public Financeand Government Accounting

CA. Nityananda N Committee on Corporate &Allied Laws and CorporateGovernance

CA. Thimma Reddy V Research Committee

CA. Manoj Kumar G Information TechnologyCommittee

CA. Shyam Ramadhyani Exposure Drafts Committee

CA. George Victor Crasta Branch CoordinationCommittee

CA. Rayavarapu Ramarao Internal Audit Committee

REFRESHER COURSEFOR ACCOUNTANTSUnder the aegis of Management

Development Programmes (MDP)For whom:

Accountants, Accounts Executives & AccountsAssistants working in a manufacturing, service ortrading organization.

Course Contents & Structure

• Accounting

• Labor Laws & Business Laws

• Income Tax & Wealth Tax

• Central Excise, Service Tax and VAT

• Cost Accounting

• Banking

Duration :

The first batch of the course will be conducted on thefollowing days:

1. 14th, 15th & 16th June 2012 and

2. 22nd & 23rd June 2012

Timings: 10.00am to 05.30pm

Fees: Rs. 5,000/- per participant,Cheque/DD should be drawn in favour of “Bangalore

Branch of SIRC of ICAI” – payable at Bangalore.

Registrations Open on First Come First Served basis.

Venue:Management Training Centre,Bangalore Branch of SIRC of The Institute ofChartered Accountants of India,‘ICAI BHAWAN’, 16/O,Millers Tank Bed Area, Vasanthnagar,Bangalore – 560052Telephone: 080-30563500/511/512/513Email: [email protected] / [email protected]: www.bangaloreicai.org

CA. Nithin CA. K. Gururaj CA.Prasad S. R.Mahadevappa Acharya Secretary

Chairman Course Co-ordinator

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15 June2012


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16June2012

Coaching Classes: IPCC / PCC & FINAL for November 2012 andCPT for December 2012 Examinations

Admissions open for Subjectwise CoachingIn pursuance of our objective to provide fruitful and quality teaching to our students, we are pleased to inform you that CPT/ IPCC/PCC and FINAL coaching classes will be commencing at the Bangalore Branch of SIRC of ICAI from 01st June 2012 onwards. Theclasses will be concluded by 30th September 2012.Salient features: • Experienced, Expert and Dedicated faculty members • Methodology – Conceptual teaching • Affordable CoachingFee • The journey of CA with Bangalore Branch is that of progress with innumerable activities of knowledge supported and guided byour senior renowned faculty members – resource persons • During the course, amazing, inspiring and motivational sessions andOrientation classes will be conducted • Concessional fee for deserving students.Hence be proud to be part of the Branch by enrolling as a student to become a proud member of this glorious profession.

Fees TimingsCPT Rs.4500/- 05.30pm to 07.30pm (Monday to Friday) &

03.00pm to 07.30pm (Saturday) &07.30am to 12Noon (Sunday)

IPCC / PCC / FINAL Rs.10000/- for Both Groups 06.30am to 09.30am (Monday to Saturday) &Rs.8000/- for Single Group 06.00pm to 09.00pm (Monday to Saturday) &Rs.2000/- for Single Subject 07.30am to 05.30pm (Sunday)

Faculty Members: CA. Hariharan K, Chennai, Dr. V. Rajesh Kumar, Bangalore, CA. Sampath Kumar, Bangalore, CA. Shanthi Ganapathi,Chennai, CA.Vijay Raja, Bangalore, CA. Naveen Khariwal G, Bangalore, CA. Shivanand Nayak P, Bangalore, CA. Narendra Jain, Bangalore,CA. Vikas Oswal, Bangalore, CA. Jatin Christopher, Bangalore, CA. Malay Kumar Panda, Bangalore, CA. Naveen Raj Purohit, Bangalore,Mr. J Sundaresan, Bangalore, Mrs. Malathy Sunderrajan, CA. Shruthi B N, CA. B N Ganesh Kumar, Prof. Venkateshwara Kiran I. Bangalore,CA. Lohit Jagdish, CA. Sudheendra H, CA. Jaikumar Nair, Bangalore, Mr. S Gopichandra, Bangalore, Mr. Ajay Kumar Menon, Bangalore,Mr. S V Madhavan, Bangalore, Mrs. Anita Mehtha, Bangalore and so many other renowned resource persons.

Registration Fees: DD should be drawn in favour of “Bangalore Branch of SIRC of ICAI” payable at Bangalore.For further details please contact: Tel: 080-30563500 / 511 / 512 / 513 Email: [email protected] / [email protected]

For the detailed schedule visit : www.bangaloreicai.org

Appeal to members: Members are requested to show their patronage by informing andencouraging their students to join the coaching classes of Bangalore Branch.

An Impact Seminar on

“Demonstration of XBRL Tools”Organized by

Information Technology Committee of SIRC of ICAIwith Bangalore Branch of SIRC of ICAI

on Wednesday, 27.06.2012 at Bangalore Branch Premises

Timings : 05.30pm to 08.30pm

Speakers: CA. V. Rangan & Mr.Karthik Ganeshan

Delegate Fee: Nil

CA. Nithin Mahadevappa CA.Prasad S.R. CA. Cotha S. SrinivasChairman Secretary Chairman,

IT Committee of SIRC of ICAI

Topics:

3 hrsCPE

••••• Importance of XBRL

••••• Purpose of XBRL

••••• How to convert Financial Statements to XBRL

••••• Live demonstration of XBRL Software – BRANDSQUARE

17 June2012


Seminar on How to be Successful in PracticeOrganized by Committee for Members in IndustryCommittee for Members in IndustryCommittee for Members in IndustryCommittee for Members in IndustryCommittee for Members in Industry

Hosted by Bangalore Branch of SIRC of ICAIon SaturdaySaturdaySaturdaySaturdaySaturday, 3, 3, 3, 3, 300000ththththth June 2012 June 2012 June 2012 June 2012 June 2012 at Branch PremisesBranch PremisesBranch PremisesBranch PremisesBranch Premises

6 hrsCPE

Programme Details

09:00 AM-09:30 AM Tea and Breakfast

9:30 AM – 10.00 AM Inauguration

10.00 AM – 11.00 AM Technical Session IHow to be a successfulPracticing Chartered Accountant

11.00 AM-11.15 AM Tea Break

11.15 AM – 12.15 AM Technical Session IISkill Required to set up a New Practice

12.15 AM- 1.15 PM Technical Session IIIStructuring of CA Professional Firm –••••• Proprietorship••••• Partnership••••• LLP

01.15PM -2.00PM Lunch Break

2.00PM – 3.00PM Technical Session IVNew Professional Avenues forChartered Accountants

03.00 PM – 03.15 PM Tea Break

03.15 PM- 04.15 PM Technical Session VNetworking of CA firms in and outside India

04.15 PM – 05.15 PM Technical Session VIConsulting opportunities for CA’s– Rules for starting ICAI approvedManagement Consulting Company

Delegate fee: Rs. 500/-

For Registration:Cheque /draft in favour of “ICAI”payable at Bangalore and sent it withduly filled Registration toMr. Jagadish Kumar N.S,Assistant Secretary(Mobile no.09342732548,080-30563542Email ID: [email protected],[email protected]),Bangalore Branch ofSouthern India Regional Council,The Institute of Chartered Accountantsof India, ‘ICAI BHAWAN’,16/0, Millers Tank Bed Area,Bangalore - 560 052

For making online payment,please visithttp://www.icai.org/ccm.html

Programme Director(s):

1. CA. Rajkumar S. Adukia,Chairman, Committee for Membersin Industry

2. CA. K. Raghu, Member,Committee for Members in Industry

3. CA. Nithin Mahadevappa,Chairman, Bangalore branchof SIRC of ICAI

AN APPEAL TO THE MEMBERSSub: XVI Batch of the Course onFinance for Non Finance Executives(FNFE) under the aegis ofManagement DevelopmentProgrammes (MDP)

Duration:July 2012 to September 2012

Timings: 03.00 pm to 06.30 pm(Only on Saturdays)

Course Fee: Rs.15,000/-

Course Contents: Financial Accounts & CompanyAccounts Direct Taxes Financial Analysis Project Reports Indirect taxes

Corporate Finance Cost Accounts

For Whom: The course is open to Non-Finance Executives such as Engineers,Architects, Doctors, Human Resourcepersonnel, Department Heads,

Administrators and other executives.

The course does not call for any priorknowledge in Accountancy, Financeand Tax Laws. The course coveragewill be basic in all subjects.

We request you to pass on thisinformation to your Clients to avail thebenefits of this course.

Contact Tel: 080-30563500 / 511/ 512E-mail: [email protected] /[email protected]

18June2012

National Conference on Cloud Computing- Opportunities for CAs

On Friday 15th June 2012, Hotel Le- Meridian, Bangalore

19 June2012


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20June2012

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Newsletter for the Month of June 2012