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Some relevant tax issues

For assessment of income, a notice is issued seeking the taxpayer to produce
the necessary details for examination of the statements filed and income
admitted by him. Technically, a notice must be served on the taxpayer as if it
were a summons issued by a court under the Code of Civil Procedure, 1908.

In CIT vs Inderpal Malhotra (171 Taxman 359) a notice under Section
143 (2) was issued by means of registered post on the last day of the period of
limitation. The law says that the notice under Section 143(2) is required to be
served within 12 months from the end of the month in which the return was filed.
The court held that the statute has used the word ‘served’ in Section 143(2)
and, hence, mere dispatch or issue of notice before the prescribed time is not
sufficient compliance of the legal requirement.

Accordingly, the notice dispatched by registered post on the last of the
limitation time was held as inadequate for seeking compliance from the assessee
and, hence, the decision went in the assessee’s favour.

Tribunal subordinate to HC

In the hierarchy of appellate authorities, the Tribunal is the final
fact-finding authority. However, in respect of questions of law, both the
taxpayer and the Revenue can transverse beyond the Tribunal, to the High Court
and thereafter to the Supreme Court.

In National Textile Corporation Ltd vs CIT (171 Taxman 339), it was
observed by the court that the tribunal is subordinate to the High Court and
hence has to follow the decision of the jurisdictional High Court without making
any comment on the said decision or ignoring it on any grounds except those
which are well-recognised. It referred to a catena of cases in which there have
been deviations from binding decisions of superior authority and held that the
tribunal cannot ignore the decision of the jurisdictional High Court and give a
contrary decision.

Modvat credit

Where the taxpayer acquires a plant and machinery and pays excise duty on
such acquisition, he can claim credit in respect of such duty against duty
payable on goods manufactured by him. Whether the duty credit, which is eligible
for such adjustment, is chargeable to tax as income was the issue in CIT vs
Jay Bee Industries (171 Taxman 386).

The court held that merely because the Modvat credit is irreversible would
not mean that it is an income to be taxed. Following the precedent of the apex
court in the CIT vs Indo Nippon Chemicals Co Ltd (130 Taxman 179) case,
it held that the Modvat credit eligible for adjustment against duty payable is
not chargeable as income.

Estimate of stock on survey

During the course of survey by the income-tax authorities, the value of stock
in the premises surveyed is compared with the books of account to detect and tax
the unaccounted stocks as income. Such stock valuation is a matter of conjecture
in most of the cases.

Whether such stock valuation might result in concealment penalty is to be
decided based on facts. In SSR Pirodia vs Union of India (171 Taxman
221) the addition towards excess value of stock found at the time of survey
was sustained but the concealment penalty was set aside by the tribunal as the
addition to income was made on the basis of mere estimate. The further
consequence of prosecution was quashed by the court in view of relief from
concealment penalty granted by the tribunal.

Forfeiture of exemption

Where a charitable trust advances or allows its funds to remain with an
interested person without security or adequate interest, then such trust is not
eligible for exemption contained in Sections 11 and 12 of the Act.

 

In Kanahya Lal Punj Charitable Trust vs DIT (171 Taxman 134), the assessee
gave advance to a company which had substantial interest in the trust. It was
stated that the advance was towards purchase of land for a school project of the
trust.

The plea of the assessee was taken as an after-thought and the court held
that the income of the trust has been used to the benefit of a person referred
to in Section 13(3) which is one of the disqualifying acts contained in Section
13(1).

Accordingly, the benefit of exemption had to be cancelled to the trust. It
held that the disqualification under Section 13(1)(c) would result in taxation
of entire income of the trust, including voluntary contributions and income from
property held under trust. Such disqualification would saddle the trust to pay
tax on its total income without any exclusion.

However, if the trust for example, does not keep its unspent income in the
approved investments as enumerated in Section 11(5), then only income from such
investments would be subjected to maximum marginal rate of tax and the other
incomes would continue to enjoy the benefit of exemption contained in Sections
11 and 12.

Enhancement of income in appeal

The Commissioner (Appeals) can confirm, reduce, enhance or annul an
assessment order of the AO. The power to enhance the income liable to tax is to
be exercised only after providing an opportunity of hearing to the taxpayer.
However, there is no embargo in sourcing information from the AO while enhancing
the income in an appeal proceeding. It was so held in Goel Die Cast Ltd vs CIT
(171 Taxman 272).

The above has appeared in Hindu and authored by Mr.L.K.Subramani
(The author is an Erode-based chartered
accountant.)

Currency trading launched in India

More than 300 members will be eligible to participate in currency
futures trading on the National Stock Exchange of India on Friday, when
the facility gets flagged off by the Union Finance Minister, Mr P.
Chidambaram, said a top NSE official.

In order to encourage active participation in the Currency
Derivatives segment, the NSE has decided that no transaction charges
will be levied on the trades done in this segment on the exchange from
August 29 till September 30.

However, every trading member participating in currency derivatives
during the above period shall be required to make a lump-sum
contribution of Rs 500 towards an Investor Protection Fund, says an NSE
circular.

Currency futures are standardised foreign exchange contracts traded
on a recognised stock exchange to buy or sell one currency against
another on a specified future date, at a price specified on the
purchase or sale date.

Only US dollar-Indian rupee contracts would be allowed. The contract
size will be of 1,000 US dollars and the tick size (minimum price
fluctuation) will be 0.25 paise.

The prices in currency derivatives segment shall be displayed,
traded and reported up to the fourth decimal place instead of up to
two. For example, Rs 42.50 shall be displayed as Rs 42.5000.

OTC contracts

The trade in currency futures will co-exist with the already
prevalent OTC market for forwards, where the banks and corporates have
been hedging their foreign currency risks so far. The OTC market has an
average daily volume of $34 billion, said the NSE. Unlike OTC contracts
that are bilateral, the exchange-traded currency futures contracts will
be transparent.

Banks are also allowed to become members of the exchange to
participate in currency futures trade. All resident Indians are allowed
to participate in currency futures, only NRIs and FIIs are not eligible
to trade.

All Group 1 securities, bank guarantees, receipts of fixed deposits
will be allowed as collaterals for the margins required to be deposited
by the investors trading in currency futures.

Over the last 2 decades I have seen a dramatic shift in the way students are approaching the CA course. These days students seem to have a "wham bam thank you mam" approach to the course. This has resulted in a new breed of chartered accountants who have been fed on past papers, trends and selective studying rather than an indepth study which is required from a Chartered Accountant who is supposed to be a be all and end all as far as accounting and taxation issues go.Like I keep telling innumerable times I would be scared as hell to go to doctor who proclaims that he has passed out by adopting selective study route. A CA is to the accounting profession what a doctor is to medicine - we are both considered to be the final and absolute authority on their respective subjects. Students have to realise that there are CA's and then there are CAs. Over the years I have noticed certain things which I would like to share with you - things that you should keep in mind and things which will definitely make you a better CA -

Do CA because you want to:

• Study for CA not by force but by choice. You should enrol yourself into this course only because you want to become a CA and not because of reasons like your parents want you to do it or because your friend is doing it. You need to have a passion for the course and more importantly you need to enjoy what you are doing.

CA is an easy course

• Students who join the course straight after Class XII do not realise that CA is a different ballgame altogether and is very different from the kind of examinations they have been giving till now in their life. Till now their examination studies have been limited to the books prescribed by the school or the Board and the questions come from such books only. CA however is an open syllabus and there are no predefined books from where questions are set. So the first mind set that students have to change is that there should be more than one text book for a particular subject. Ca course is HARD but not impossible.

Coaching class is the key to success:

• If that were the case then everyone who attended any coaching class (including reputed ones who charge a bomb) should pass out. The coaching class culture (especially in Mumbai) has moulded the mindset of the students into thinking that they are the be all and end all of studies for CA (while this might be true for an SSC class - where a thorough mugging of 100 questions would ensure that you get atleast 70% - this is not true for CA). Remember coaching classes are mere guiding stones which should impart concepts and keep telling you along the way whether you are going wrong somewhere. "Coaching class notes" (and it could be best class in the world - I dont care) are by themselves not sufficient to make you pass the exams - you would still need to refer text books.

Repeated solving of the same problems cannot help you score more:

• More often than not students preparation for the exams is restricted to solve their coaching class problems umpteen number of times. This only results in making them expert of those problems - but give them a different type of a problem and they will blink like idiots. Another example which I keep giving -" Driving up and down a lane will only make you an expert driver on that lane but to drive on the highway you need presence of mind". Remember you need to solve more and more variety of problems thereby increasing the chances of getting a problem solved by you in the examination paper.

Aversion to buying text books:

• This is another surprising thing which I am noticing in the new generation - aversion to buy reference books - now I dunno whether it has got to do with money - if that is so my only request is to cut down on your mobile bills and use the money to buy books. By a reasonable estimate the maximum amount you would spend on text books (for the entire CA course) would not exceed Rs.10000. Considering the fact that good CA's would start their career with a minimum salary of Rs.60000 the entire amount of Rs.10000 would be recovered in the first 5 days salary of their career - THINK ABOUT IT!!!!. So dont think of books as expenses think of them as investments which is going to give you returns till you are 60 (or even more).

CA course needs hard work:

• While CA course is hard like I have mentioned before - It doesnt require you to slog like donkey - what it requires is a systematic and smart work. If it were just hardwork then everyone could have passed by putting in 16 hours of studies.
  

Classes should get over 6 months before the exams:

• This is another myth that needs to be shattered. This has again arisen from the coaching class culture prevalent for SSC levels where classes get over atleast 6 months before the exams. The most common query that I face from the students - "Sir when will the classes get over"!!. They are not just interested in learning the subject thoroughly - their only focus is on the class getting over. My question is what is the harm if the class gets over 3 months before the exams - dont you consider the time spent in the class learning new concepts as a productive use of time? Out of 16 hours of productive time that you have daily cant you give 4 hours to the class? Infact the last few months of the class are really the most productive ones because of the fact that you will able to clear most of your doubts during that period. It is only when you have started studying do you come up with doubts which is normally in the last 3 months. If the classes get over 6 or 8 months before the exams then where will you clear the doubts which will arise when you seriously start preparing. The concept of finishing lectures 6 months before the exam is a trend which has been started by the coaching classes so that they can make more money by starting a new batch (it has nothing to do with giving the students more time to prepare) - Ideally speaking you dont need more than 4 months to prepare for the exams.

Students dont keep themselves updated:

• Students are aspiring to become finance professionals but they hardly ever read a business daily (e.g. Economic times, Business Standard) - The common refrain is that they dont understand - C'mon guys give me a break - what do you expect a specialised tutorials or coaching class which will take class on how to read economic times (but knowing Mumbai I wouldnt be surprised if classes spring up for this specific purpose). Stop being spoon fed and learn to do certain things on your own. When you start reading business dailies you will not understand anything for maybe two weeks then gradually you will get the hang of it.Most of the students think - "Oh what is the point - I dont understand it anyways - I will start reading it once I pass out" !!! - Do you think you will grow horns on the day of passing out and that these horns will give you some divine knowledge which will help you understand business dailies from the very next day of your passing out? No Sirrrrr!!!! it is a habit and like any habit has to be cultivated over a period of time.

Reading Bare act is not necessary -

• How can we call ourselves experts in the field of company law and taxation without even reading through the respective acts even once. Final students are strongly advised to read through the bare acts.
• I mean think of a situation like this - the results have come out today and you have become a chartered accountant (without even knowing what a bare act is ). So your father takes you to a social do that very evening and proudly introduces you as a chartered accountant. One person (say a retired pensioner) walks upto you and asks a income tax query - How stupid will you look saying that you dont know what the act says". You cant also say that since you dont know how to read a act you are unable to advise him - the person will have a poor opinion not only about you but also about the profession - So dont disgrace the profession by being a mugpot.

Train yourself to think and not to memorise:

• Your success or otherwise in becoming a chartered accountant really depends on how well your mind works during the 3 hours of the exam - During this 3 hours your mind must be fresh and tuned to think rather than focussing on recollecting what you have practiced - Do not underestimate the powers of the human brain - It is a wonderful piece of machinery and at any given point of time we are only using 25% of it. You might practice 100 types of problems before the exam but what happens if a 101th type of problem comes in the paper - your concepts must be clear enough to understand and solve the problem in the allotted 1/2 hour for each question - this is where clarity of concepts come in.

Your troubles will end when you become a CA -

• Trust me - this is the most common mistake every one makes - they think passing out and becoming a CA is a end of all their troubles . Guys , passing out CA is just the beginning of your troubles - you need to be constantly updating yourself or you will find no takers for you in the job market. The career rat race, corporate politics, constant updating, meeting deadlines, taking decisions which could involve outlay of crores - these are just some of your problems.

Improve your communication skills:

• this is one areas where the MBA scores over a CA. CA's by and large tend to have poor communication skills because the course has never given weightage to this important aspect which plays a key role in your growth as a professional - now this is something that can only be developed with lots of reading - again another aspect which CA's lack.
  

In case of a rising interest rate scenario the borrower is exposed to the risk of increasing his interest burden. He may opt for a fixed rate loan but this may not always be possible due to bad market conditions, credit rating etc and as a result of which his cost of borrowing in fixed rate will be pretty high. Given this scenario the only solution he may have is to go for a floating rate liability and then swap the floating rate liability into a fixed rate liability. This floating rate liability can be swapped with someone who has an exact opposite requirement or request a bank to arrange for a swap.

The following diagram illustrates the case in which an intermediary, e.g. a bank, is involved in a swap deal between two counter parties. Borrower A has a floating rate loan, but would prefer a fixed rate loan. There is another borrower B who has a fixed rate loan, but would prefer a floating rate loan. The intermediary can now match these two borrowers as described in the following diagram.
Diagram:







Example:
A manufacturing company embarks on a project for which it borrows USD 4 million working capital on a floating interest rate basis, payable quarterly for two years. Since the treasurer of the company felt that the floating rate payments will involve serious risks, he decides to enter into a swap with a bank and convert the same into a fixed rate loan. The bank now swaps the floating rate payments into a fixed rate at 12%. The resultant cash flow arising out of the transaction is illustrated below.


Cheers!!!!
Happy studying