Latest Blogs from SBS and Company LLP

    Article On Special Measures By The Ministry Of  Corporate Affairs, In View Of Covid-19 Outbreak

    In view of the outbreak of COVID-19, protection and safety of the lives, is the utmost priority, and compliance of the law is secondary, and in this regard, to support and enable Companies and LLPs in India, to address the threat and economic disruptions caused by COVID-19, the Ministry of Corporate Affairs, vide General Circular No.11/2020, Dated: 24.03.2020,  has implemented the following measures to reduce the compliance burden and other risks.

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    Conduct Of Board Meeting And General  Meetings Amidst Covid-19

    An attempt is being made to list out on the provisions relating to the conduct of the Board and General Meeting, and relaxations by the Ministry of Corporate Affairs relating thereto.

    BOARD MEETINGS: 

    All are aware that Section 173 of the Companies Act, 2013, prescribes, the manner in which the meetings of the Board of Directors are to be conducted, including through Video Conferencing or other Audio-Visual means. 

    The rules list out that the following matters/decisions of the Board, cannot be dealt through Video conference means, and can accordingly be passed by a meeting of the Board of Directors: 

    • Approval of the Annual Financial Statements;
    • Approval of the Board’s Report;
    • Approval of the Prospectus;
    • Audit Committee Meetings for consideration of Financial Statement including Consolidated Financial Statement if any, to be approved by the Board under sub-section (1) of section 134 of the Act; and
    • Approval of the matter relating to amalgamation, merger, demerger, acquisition and takeover. 

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    Treatment of Gain/Loss on Foreign Exchange Fluctuations - Income Tax Perspective

    The increase in global trade and dependency on the foreign capital for the purposes of conduct of business in India has led to various transactions with the entities which are situated outside India. The business is conducted with such entities in the foreign currency unlike the Indian currency which is used for conduct of trade with entities located in India. As all are aware that since the rate of foreign currency is market driven, there may always be a difference in the value of foreign currency at which the transaction takes place and at which the transaction gets settled or closed for the purposes of accounting at the Indian entity. The difference arising from such value between the transaction date and settlement/closure date would give raises to gains or losses depending upon the rate of foreign currency on both such dates. The treatment of such foreign exchange (for brevity ‘forex’) gain/loss from the perspective of provisions of Income Tax Act, 1961 (for brevity ‘IT Act’) is the main object of this article. Let us proceed, to understand the treatment of forex gain/loss under the various provisions of IT Act.

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    A Deep Dive into the Place of Supply of Scientific Research, Testing and Analysis Services

    Introduction:

    Ever since the introduction of negative based taxation effective from 01.07.2012 under the pre-GST era, the cross-border services by way of scientific research, technical testing or analysis services have undergone huge litigation as to whether these services are to be considered as exported services or not. The issue remained status quo even under the GST regime. Amid this ambiguity, certain scientific research, testing, and analysis services related to Pharma Sector got relief with specific notification notifying their place of supply as that of the location of the recipient of the supply. In this backdrop, let us do a deep dive into this issue by analyzing the position under Service Tax and GST laws.

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    Interest on Credit ‘availed’ but ‘not utilised’

    Introduction:

    Whether interest is payable or not on the amount of tax credit that was wrongly availed but reversed without utilising the same is always a bone of contention between taxpayer and Revenue under Indirect Tax laws. Under the erstwhile CENVAT Credit Rules, 2004, Rule 14 as prevailing prior to 01.04.2012 provided for recovery of CENVAT Credit that has been taken or utilized wrongly or has been erroneously refunded. The said issue was originated from the use of the phrase “CENVAT Credit has been taken or utilized wrongly” in Rule 14.

    The said Rule 14 was amended with effect from 01.04.2012 to provide for recovery of CENVAT Credit that has been wrongly taken and utilised or has been erroneously refunded. The above-mentioned phrase has been suitably amended as “CENVAT Credit has been wrongly taken and utilized” to put an end to this controversy. However, the amendment was not expressly notified to be retrospective. This has made the issue wide open and the litigation is continuing for more than a decade with respect to interest demanded for the periods prior to 01.04.2012. The matter is now pending before the Supreme Court under the second round of litigation.

    Coming to Good & Service Tax (GST) regime, Sections 73(1) and 74(1)[1] of the Central Goods & Services Tax Act, 2017 (CGST Act) provides for recovery of input tax credit that was wrongly availed or utilised. The use of the phrase ‘wrongly availed or utilised’ marks invocation of same issue and litigation under GST regime as well. Notices are also issued by the Department to recover interest amounts in cases where credit was wrongly availed but reversed before utilisation. With the above backdrop, we will now analyse the issue based on jurisprudence evolved as on date under the erstwhile CENVAT Credit Rules, 2004 and under GST laws as well.

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