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    Key Topics Covered:

    • INTERNATIONAL TAXATION
    • FEMA
    • DIRECT TAX
    • COMPANIES ACT, 2013
    • SECTORAL ANALYSIS
    • LABOUR LAWS
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    The Factories and establishments employing ten or more employees are covered under the Employees’ State Insurance Act in the notified areas. The employees working in such factories and establishments with a gross monthly wage of Rs. 21,000/- and below are required to be covered under the ESI Scheme and they are entitled to ( i ) Medical Benefit ( ii ) Sickness Benefit ( iii ) Maternity Benefit ( iv ) Disablement benefit ( v ) Dependents benefit ( vi ) Funeral expenses ( vii ) other benefits

     

    When an employees is covered under ESI Act and is entitled to benefits provided by the said Act, he or she shall not be entitled to receive any similar benefit admissible under the provisions of any other enactment [Section 61].

     

    In view of the above, employees covered under ESI Act are not covered under The Maternity Benefit Act, 1961 and Employee Compensation Act 1923.

     

    The Maternity Benefit Act is applicable to every factory, mine or plantation and to shops and establishments employing ten or more employees. In such factories and establishments, employees who are not covered under ESI Act employed directly or through any agency will only be covered under the Maternity Benefit Act.

     

    To become entitled for maternity benefit, the employee should have worked eighty days in the twelve months immediately preceding the date of her expected delivery in an establishment of the employer.

     

    The amendments to the Maternity Benefit Act have come inforce with effect from 1st April 2017 are summarised hereunder:

     

    1. The Act now mandates that the employer of the establishment should inform a women all benefits made available under the law, at the time of her appointment. Such information must be given in writing and electronically.

     

    1. Every establishment employing fifty or more employees shall provide crèche facilities within a prescribed distance and the woman should be allowed four visits to the crèche in a day. However, this includes her rest interval. However, this provision will come into force with effect from 1st July 2017.

     

    Whereas, creche is required to be provide and maintained only if a factory employs more than thirty women employees under Section 48 of the Factories Act. In view of the amended maternity benefit act, if the factory is employing fifty or more employees, they are required to provide crèche facility even though the number of women employees are thirty.

     

    1. After completion of the statutory maternity benefit period with wages, an employer can permit a woman to work from home, if the nature of work assigned permits her to do so for a duration that is mutually decided by the employer and the woman employee. Though it is not mandatory, the law made it open to the women employee to make a request in this regard.

     

    1. Now the Maternity Benefit Act provides leave up to twelve weeks for a woman who adopts a child below the age of three months. The period of leave will be calculated from the date the child is handed over to the adoptive mother.

     

     

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    1. In surrogacy, the surrogate mother carries a child for another person after an agreement made before conception of the child. The person wishing to adopt and foster the child is called the commissioning person/couple. The amended legislation provides leave up to 12 weeks for commissioning mothers also.

     

    1. The maximum period for which any woman shall be entitled to maternity benefit shall be twenty six weeks of which not more eight weeks shall precede the date of her expected date of delivery.Provided that the maximum period entitled to maternity benefit by a women having two or more surviving children shall be twelve weeks of which not more than six weeks shall precede the date of her expected delivery.

     

    Thus women employees having two or more children will continue to get the maternity benefit as earlier.

     

    1. Woman who have already availed 12 weeks of maternity benefit on or before 31st March 2017 will not be entitled to the enhanced benefits mentioned above. However, woman who are on maternity benefit of 12 weeks and the period of 12 weeks ends on or after 1st April 2017 will be entitled to the enhance maternity benefit of twenty six weeks in place of twelve weeks.

     

    It is essential to recognise that the act has not defined ‘employee’ and extended the benefits to ‘woman’.Thus the intent of the legislature is to cover all categories of personnel whether be it casual, temporary, outsourced, contractual, full time consultants, trainees, probationers etc.,

     

    When a woman absents herself from work in accordance with the provisions of the maternity benefit act, the employer is retrained from terminating her services during the said period. Over two decades ago, in 1991, the Supreme Court had ruled in favour of pregnant employees in the matter of Neera Mathur Vs Life Insurance Corporation of India. The facts of the matter are Ms. Mathur was appointed on September 25, 1989. She was put on probation for six months and during the probationary period she applied for maternity leave on December 27, 1989. On February 13, 1990, she was discharged from service during her period of probation. The reason cited for termination was that she had deliberately withheld the fact of being pregnant at the time of filling up a declaration form prior to being appointed. The court ordered her reinstatement. The apex court judgement further reinforces the fact that though the contract of employment provides for termination of employment during the probationary period, the employer will not be in a position to implement the same, if it is in violation of provisions of the applicable laws.

     

    Similarly, in accordance with the Section 73 of the ESI Act employer shall not dismiss, discharge or reduce or otherwise punish an employee during the period when he / she is in receipt of sickness benefit or maternity benefit and also during the period in receipt of disablement benefit for temporary disablement or is under medical treatment for sickness or is absent from work as a result of certified illness arising out of pregnancy or confinement. During the said period no notice of dismissal or discharge or reduction shall be served on an employee.

     

    In view of the amended legislation, the HR professionals are required to have a relook at their HR manual and also the contract of employment to comply with the amended maternity benefit act.

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    BACKGROUND:

     

    The power sector in India has undergone significant progress after Independence. Energy is one of the key enablers for the country’s economic development. With the certainty in policy-level interventions, the economy is bound to proliferate and the demand for energy will inevitably surge. Other than economic growth, human developmental aspects like poverty reduction, employment generation, etc. are also considerably dependent on secure energy supply.

     

    Post India’s Independence the country had a power generating capacity of 1,362 MW. Hydro power and coal based thermal power have been the main sources of generating electricity. Generation and distribution of electrical power was carried out primarily by private utility companies. Notable amongst them and still in existence is Calcutta Electric. Power was available only in a few urban centres; rural areas and villages did not have electricity. After 1947, all new power generation, transmission and distribution in the rural sector and the urban centres (which was not served by private utilities) came under the purview of State and Central government agencies. State Electricity Boards (SEBs) were formed in all the states. Nuclear power development is at slower pace, which was introduced, in late sixties. The concept of operating power systems on a regional basis crossing the political boundaries of states was introduced in the early sixties. In spite of the overall development that has taken place, the power supply industry has been under constant pressure to bridge the gap between supply and demand.

     

    INTRODUCTION:

     

    Power is one of the most critical components of infrastructure crucial for the economic growth and welfare of nations. The existence and development of adequate infrastructure is essential for sustained growth of the Indian economy.

     

    India’s power sector is one of the most diversified in the world. Sources of power generation range from conventional sources such as coal, lignite, natural gas, oil, hydro and nuclear power to viable non-conventional sources such as wind, solar, and agricultural and domestic waste. Electricity demand in the country has increased rapidly and is expected to rise further in the years to come. In order to meet the increasing demand for electricity in the country, massive addition to the installed generating capacity is required.

     

    OBJECTIVES OF THE STUDY

     

    vTostudythe current scenario of Power Sector in India vTounderstand the various challenges and risk in Power Sector vTosuggest solution and remedies to the various problems in Power Sector in India

     

     

     

     

     

     

     

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    Current status of power sector in India:

     

    Third largest producer and fourth largest consumer globally:

     

    With production of 1,278.91 TWh in 2015, India was the 3 rd largest producer & 4 th largest consumer of electricity in the world, with the installed power capacity reaching 305.55 GW by September 2016. The country also has the 5th largest installed capacity in the world.

     

    Large-scale government initiated expansion plans:

     

    1. The government targets capacity addition of 88.5 GW under the 12th Five-Year Plan (2012–17) and around 100 GW under the 13th Five-Year Plan (2017–22)

     

    1. Investments of around USD250 billion are planned for the power sector during the 12th Plan Five-Year Plan.

     

    Robust growth in renewables:

     

    1. India energy is estimated to contribute 60 GW, followed by solar power at 100 GW by 2022.
    2. The target for renewable energy has been increased to 175 GW by 2022.

     

    Favourable policy environment:

     

    100 per cent FDI is allowed under the automatic route in the power segment & renewable energy.

     

    Policy Initiatives / Decision Taken

     

    The energy sector in India has seen a transformational change with progressive policy-level changes and effective implementation of directives. These changes promise enormous opportunities for various stakeholders and market players.

     

    The Indian power sector has come a long way since the laying down of the basic framework in 1910 right up to the Electricity Act of 2003, which brought about necessary changes to an evolving sector. Electricity Act 2003 came into force from 15.06.2003. (Electricity Amendment Bill 2014 Under consideration).The proposed amendment will have a profound impact on the Indian power sector. It touches upon different aspects of the sector, right from segregation of carriage and content to renewable energy and open access to tariff rationalisation and so on

     

    Recent decisions:

     

    Aiming to empower villages through a hike in MGNREGA funds, poverty alleviation and 100 per cent electrification by May 2018, Finance Minister Arun Jaitley focussed on rural India.

     

    In the Budget speech, Finance Minister said 100 per cent electrification of villages will be achieved by May 1, 2018.

     

     

     

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    The government has allocated Rs 4,843 crore to electrify the rural areas under the Deendayal Upadhyaya Gram Jyoti Yojana in financial year 2017-18.

     

    The government Five-Year Plans (GW) is targeting capacity addition of around 88.54 GW under the 12th (2012–17) & around 100 GW under the 13th (2017–22) Five-Year Plan The expected investments in the power sector during the 12th Plan (2012–17) is USD250 billion There is a tangible shift in policy focus on the sources of power. The government is keen on promotion of hydro, renewable & gas-based projects, as well as adoption of clean coal technology In March 2017, Bhoruka Power Corp. announced its plans is to raise USD120 million, to increase their hydro & wind renewable energy capacity to 1 gigawatt by 2020

     

    Government Initiatives

     

    The Government of India has identified power sector as a key sector of focus so as to promote sustained industrial growth. Some initiatives by the Government of India to boost the Indian power sector:

     

    vTheUnion Cabinet, Government of India has given its ex-post facto approval for signing of a Memorandum of Understanding (MoU) on Renewable Energy between India and Portugal, which will help strengthen the bilateral cooperation between the two countries.

     

    ?TheMinistry of New and Renewable Energy plans to introduce a fixed-cost component to the tariff for electricity generated from renewable energy sources like solar or wind, in a bid to promote a green economy.

     

    ?TheUnion Cabinet has approved the ratification of International Solar Alliance's (ISA) framework agreement by India, which will provide India a platform to showcase its solar programmes, and put it in a leadership role in climate and renewable energy issues globally.

     

    ?TheGovernment of India plans to introduce a scheme to encourage setting up of biomass plants across the country, which will generate electricity and also help dispose of agricultural waste in a carbon-neutral manner to help tackle growing pollution.

     

    ?TheGovernment of India plans to rationalise various categories of electricity consumers across states, which is expected to bring transparency and efficiency in billing, improve tariff collection and improve the health of distribution companies in the country.

     

    ?TheGovernment of India plans to set up a US$ 400 million fund, sourced from The World Bank, which would be used to protect renewable energy producers from payment delays by power distribution firms, while at the same time protecting the distribution firms from the shrinking market for conventional grid-connected power, caused by wider adoption of roof-top solar power generation.

     

    ?TheMinistry of Power plans to set up two funds of US$ 1 billion each, which would give investment support for stressed power assets and renewable energy projects in the country.

     

    ?MrPiyush Goyal, Minister of State with Independent Charge for Power, Coal, New and Renewable Energy and Mines, launched an online portal for star rating of mines, which will bring all mines to adopt sustainable practices, and thereby ensure compliance of environmental protection and social responsibility by the mining sector.

     

    ?TheMinistry of New and Renewable Energy (MNRE), which provides 30 per cent subsidy to most solar powered items such as solar lamps and solar heating systems, has further extended its subsidy scheme to solar-powered refrigeration units with a view to boost the use of solar-powered cold storages.

     

     

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    ?MrPiyush Goyal, Minister of State with Independent Charge for Power, Coal, New and Renewable Energy and Mines, inaugurated the Tarang (Transmission App for Real Time Monitoring & Growth) mobile app and web portal for electronic bidding for transmission projects, which is expected to enhance ease, accountability, transparency, and boost investor confidence in power transmission sector.

     

    ?TheMinistry of Shipping plans to install 160.64 MW of solar and wind based power systems at all the major ports across the country by 2017, thereby promoting the use of renewable energy sources and giving a fillip to government's Green Port Initiative.

     

    ?TheGovernment of India and the Government of the United Kingdom have signed an agreement to work together in the fields of Solar Energy and Nano Material Research, which is expected to yield high quality and high impact research outputs having industrial relevance, targeted towards addressing societal needs.

     

    ?TheMinistry of Petroleum and Natural Gas is seeking to enhance India's crude oil refining capacity through 2040 by setting up a high-level panel, which will work towards aligning India's energy portfolio with changing trends and transition towards cleaner sources of energy generation.

     

    ?TheGovernment of India plans to start as many as 10,000 solar, wind and biomass power projects in next five years, with an average capacity of 50 kilowatt per project, thereby adding 500 megawatt to the total installed capacity.

     

    ?MrPiyush Goyal, Minister of State (Independent Charge) for Power, Coal and New & Renewable Energy outlined Government of India’s goal to provide electricity to every home in India by 2020, while also focussing on ensuring the cost of power is affordable to everyone.

     

    ?Government of India has asked states to prepare action plans with year-wise targets to introduce renewable energy technologies and install solar rooftop panels so that the states complement government's works to achieve 175 GW of renewable power by 2022.

     

    • The Government of India announced a massive renewable power production target of 175,000 MW by 2022; this comprises generation of 100,000 MW from solar power, 60,000 MW from wind

     

    energy, 10,000 MW from biomass, and 5,000 MW from small hydro power projects. ?UjwalDISCOM Assurance Yojana (UDAY) is the financial turnaround and revival package for

     

    electricity distribution companies of India (DISCOMs) initiated by the Government of India with the intent to find a permanent solution to the financial mess that the power distribution is in.It allows state governments, which own the discoms, to take over 75 percent of their debt as of September 30, 2015, and pay back lenders by selling bonds. Discoms are expected to issue bonds for the remaining 25 percent of their debt.

     

    FINANCING CHALLENGES

     

    Power financing faces the following major challenges:

     

    1. Power Sector Exposure Limit: Most banks have already reached their exposure limits in power sector set by them in pursuance of the RBI guidelines. In addition, there is continual asset liability mismatch due to the long term nature of power plant projects. These factors cause tightness in liquidity and borrowing costs. Refinancing of loans or take-out financing may mitigate asset liability mismatch.

     

     

     

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    1. Lack of Payment Security / SEB Health: Deteriorating financial health of the state utilities makes the lenders uncomfortable in financing state sponsored solar power projects. As a result lenders tend to place power projects in high risk categories and that increases cost of borrowing.

     

    The decision of the project promoter to go for the combination of equity and debt finance depends upon various factors such as availability of finance, fiscal incentives available and return on equity as also the cost of debt vis-a-vis equity. In case of foreign loan it is generally required that supplier’s credit is guaranteed by export credit agencies from the country of export. The export credit agencies, in turn, seek guarantee from Indian lenders (financial Institutions and banks) since foreign banks and credit institutions continue to be unwilling to take the credit risk in view of the weak financial condition of State Electricity Boards.

     

    THE FINANCING OPTIONS AND RELATED CONSTRAINTS REMAIN AS FOLLOWS:

    EQUITY/ CAPITAL MARKET INSTRUMENTS:

     

    The government policy allows a debt equity ratio of 4:1. However, the lending institutions are comfortable with a debt equity ratio closer to 7:3 as a prudent measure for lending. The gap in the equity infusion needs to be filled up. It is imperative that some specialised infrastructure funding agencies and special purpose mutual funds are set up for this purpose to bridge the equity gap in large Power projects.

     

    1. Capital Market : Presently, interest rates are deregulated and credit rating is mandatory if the maturity of instrument exceeds 18 months debentures (convertible/ non-convertible)/bonds can be issued by power companies to augment the resources for power sector in the capital market. NCDs with option of buyback, debentures with equity warrants, floating rate bonds and deep discount bonds are some of the innovative instruments which can be floated in the capital market.

     

    1. Private placement: Rule 144 A allows for private placement of debt to financial institutions known as QIB, without the kind of stringent disclosure requirements needed for equity issues. Long tenure of bonds and less restrictive covenants make this proposition conducive for financing power projects.

     

    DEBT FINANCE :

     

    The capital intensive nature of power projects requires raising debt for longer tenor (more than 15 years) which can be supported by the life of the power project (around 25 years). However, banks face a difficulty in long term lending due to wide disparity between the maturity profiles of assets and liabilities of banks exposing them to Asset Liability Maturity mismatch (ALM).

     

    Accordingly, the longest term of debt available from any bank or financial institution is for 15 years (door-to-door) which creates mismatch in cash flow of the power project and sometimes affect the debt servicing.

     

     

     

     

     

     

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    Though maturity profiles of funds from insurance sector and pension funds are more suited to long gestation power projects, only a minuscule portion is deployed in power sector. Appropriate fiscal incentives need to be explored to channelize savings. New debt instruments and sources of funds, viz., Infrastructure Debt Fund, Special Energy Funds etc. may be identified for the purpose. Options like re-financing may be explored to make funds available for the power project for a long tenor.

     

    Syndicated Loans : Since the fund requirements for power sector are large and the gestation period is much longer , the loan syndication concept needs to be in place for closure of finance requirement. This also helps in sharing of risk among the lenders apart from saving on efforts and cost because appraisal can be done by only the lead institution.

     

    The constraints in syndicated loans are that all lenders are not comfortable with longer period repayment; specific to the requirements of the borrowers to suit their projects. The floating rate of interest is another concern for the project as this brings the element of uncertainty in project financials.

     

    Foreign Funding : Cost of Rupee funding is high as compared to foreign currency funding. In a competitive bidding scenario, higher cost of borrowing could adversely affect the profitability and debt servicing of loans. While raising debt for financing power projects, the cost of funds need to be at a low level so that the ultimate cost of electricity will be cheaper for the consumers.

     

    The need to tap international markets becomes inevitable which is characterized by longer tenure of maturities and availability of various modes of finances.

     

    Multilateral Institutions : Institutions like World Bank, IFC Washington, ADB, and Commonwealth Development Corporation (CDC) are tapped for financing infrastructure in developing countries. However usually the financing is available with restrictive covenants. The co-financing facility extended by some of the multilateral institutions are also a recourse. However in most of these loans, sovereign guarantee is solicited by the Lenders, which again requires government support.

     

    Export Credit Agencies (ECA) : ECAs can be important sources of bilateral funding. ECAs have a long history of providing finance for all types of power generating equipment. However, there are certain limitations in ECA financing like exposure limit, exchange risk transfer, guarantee requirements and cost of insurance etc. The fee for these services are quite expensive (levied on principal and future interest). Apart from interest costs and guarantee fees, other costs of financing are the lenders upfront fee, a fee for amount committed but remained unused, third party assessment and closing fees. In most cases upfront and unused fees are calculated on the committed amount and not on the total drawn amount. Third party costs include legal and consultancy fees.

     

    External Commercial Borrowing (ECB) : External Commercial Borrowings (ECBs) for power projects involves issues relating to tenor, hedging costs, exposure to foreign exchange risks etc. Project financing by multilateral agencies (World Bank, Asian Development Bank) has been low due to issues like soundness of power purchase agreements.

     

     

     

     

     

     

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    While bond offerings are a lower cost option to raise funds visà- vis syndicated loans, corporate bond market for project financing is virtually absent in India. The funds like Global Bonds, Yankee Bonds, Samurai Bonds, Euro Currency loan, UD 144A Private placement, Global Registered Notes (GRNs) can lend for large sized projects. However weak finances of the SEB’s remain a critical issue.

     

    The credit rating of the power projects being set up under SPV structure is generally lower than investment criterion of bond investors and there is a need for credit enhancement products. As a result of the credit enhancement, the SPV’s rating is expected to improve to AA, making it investment grade which is the minimum acceptable level for pension and insurance funds. With the participation of pension and insurance funds, the twin benefits of longer tenor and stable interest rate could accrue to power projects while the ALM issues of banks could also be resolved.

     

    RISKS AND MITIGATION MEASURES

     

    Despite excess demand for electricity, many existing and commissioned thermal power plants are operating well below designed capacity and/or are losing money. The reasons range from risks like excessive financial leverage at a higher than optimum rate of interest, power purchase agreements that are priced too low to leave a profit margin, under-utilisation due to inability to source domestic coal, and unavailability of finance at a low cost.

     

    Market risk: The market risk includes demand risk and price risk.

     

    Demand risk can be avoided by the ‘take or pay’ stipulation of the PPAs, according to which the SEB agrees to pay the power generator the ‘Availability rate’ regardless of the power purchased. Similarly, the price risk is avoided by the tariff structure in which all costs of producing power – fixed (interest, depreciation, O & M, insurance, taxes) and variable (fuel), plus a return on equity (ROE) are assured.

     

    Weak finances of SEBs: State Electricity Boards (SEB) are usually the sole purchasers of the power that a private sector generator generates. That being the case, the private sector runs the risk of not being paid by SEBs (who are in poor financial health). Risk can be mitigated as follows:

     

    i)An escrow account guaranteeing payment on behalf of the SEBs – Cash inflows of the SEB are deposited and to which the generating agency (say an independent power producer) would have first access in case of defaults by the SEB.

     

    1. An irrevocable letter of credit, favouring the IPP on certain conditions being met and issued by a highly rated bank/financial institution.

     

    • An agreement by which the IPP could supply electricity directly to buyers, through the existing lines.

     

    1. Counter guarantee from the central government. In fact this was sought from the central government and was eventually obtained in the case of six of the eight ‘fast-track’ projects.

     

    PPAs: The risks exposure of the private producers are usually sought to be addressed in the PPAs. But the power purchase agencies( Read SEBs) insist on a one-sided PPA agreement loaded in their favour.

     

    Fuel-supply risk: This is the risk of not obtaining timely supply of adequate quantity of fuel. To counter this risk, power generators may either sign long-term contracts with the public sector supplier or acquire a captive source (for example, a captive coal mine).

     

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    GST - Impact on Power Sector

     

    Power generation companies may see a rise in costs since all inputs are included in GST but electricity is not. Power generation companies can procure goods at a concessional rate of 2 percent, however the rate might go up to 12 percent or 18 percent and the cost might be passed on to the consumer if GST is implemented.

     

    The strong government thrust to promote power sector and ambitious target of achieving 175 GW of renewable energy capacity by 2022 with equal distribution across the country will be directly affected by impact of GST. It is necessary to rationalise the tax treatment under new tax reform for this sector.

     

    Reduced cost of projects will improve financial health of power sector and will encourage for new investment in this sector. Since electricity is one of the major inputs for manufacturing therefore any increase in cost of electricity will directly hit the cost of other products, which will result in overall inflation.

     

    Power Sector at a Glance ALL INDIA

     

    1.Total Installed Capacity:

     

     

     

     

     

     

     

     

     

     

     

     

     

    Fuel

    MW

     

    % of Total

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    Total Thermal

    215,215

    68.2%

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    Coal

    189,048

    59.9%

     

     

     

     

     

     

     

     

     

     

     

     

    Gas

    25,329

    8.1%

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    Oil

    838

    0.3%

     

     

     

     

     

     

     

     

     

     

     

     

     

    Hydro (Renewable)

    44,413

    14.0%

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    Nuclear

    5,780

    1.8%

     

     

     

     

     

     

     

     

     

     

     

     

     

    RES** (MNRE)

    50,018

    15.9%

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    Total

    315,426

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    Renewable Energy Sources(RES) include SHP, BG, BP, U&I and Wind Energy SHP= Small Hydro Project ,BG= Biomass Gasifier ,BP= Biomass Power, U & I=Urban & Industrial Waste Power, RES=Renewable Energy Sources

     

    ELECTRICITY GENERATION PERFORMANCE

     

    Indian power sector is undergoing a significant change that has redefined the industry outlook. Sustained economic growth continues to drive electricity demand in India. The Government of India’s focus on attaining ‘Power for all’ has accelerated capacity addition in the country. At the same time, the competitive intensity is increasing at both the market and supply sides (fuel, logistics, finances, and manpower).

     

    Total installed capacity of power stations in India stood at 315,426.32 Megawatt (MW) as of February 28, 2017.

     

    The Ministry of Power has set a target of 1,229.4 billion units (BU) of electricity to be generated in the financial year 2017-18, which is 50 BU’s higher than the target for 2016-17. The annual growth rate in renewable energy generation has been estimated to be 27 per cent and 18 per cent for conventional energy.

     

    The Government has added 8.5 GW of conventional generation capacity during the April 2016-January 2017 period. Under the 12th Five Year Plan, the Government has added 93.5 GW of power generation capacity, thereby surpassing its target of 88.5 GW during the period.

     

     

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    Programme, actual achievement and growth in electricity generation in the country during 2009-10 to 2016-17 :-

     

    Year

    Energy Generation from Conventional Sources (BU)

    % of growth

     

     

     

    2009-10

    771.551

    6.6

     

     

     

    2010-11

    811.143

    5.56

     

     

     

    2011-12

    876.887

    8.11

     

     

     

    2012-13

    912.056

    4.01

     

     

     

    2013-14

    967.150

    6.04

     

     

     

    2014-15

    1048.673

    8.43

     

     

     

    2015-16

    1107.822

    5.64

     

     

     

    2016-17*

    1057.746

    4.69

     

     

     

     

    * Provisional (Upto February, 2017)

     

    The electricity generation target for the year 2016-17 was fixed at 1178 BU comprising of 999.000 BU thermal; 134.000 BU hydro; 40.000 nuclear; and 5.000 BU import from Bhutan.

     

    Plant Load Factor (PLF): The PLF in the country during 2009-10 to 2016-17 is as under:

     

     

    PLF

    Sector-wise PLF (%)

     

     

    Year

     

     

     

     

     

    %

    Central

     

    State

    Private

     

     

     

     

     

     

     

     

    2009-10

    77.5

    85.5

     

    70.9

    83.9

     

     

     

     

     

     

    2010-11

    75.1

    85.1

     

    66.7

    80.7

     

     

     

     

     

     

    2011-12

    73.3

    82.1

     

    68.0

    69.5

     

     

     

     

     

     

    2012-13

    69.9

    79.2

     

    65.6

    64.1

     

     

     

     

     

     

    2013-14

    65.60

    76.10

     

    59.10

    62.10

     

     

     

     

     

     

    2014-15

    64.46

    73.96

     

    59.83

    60.58

    2015-16

    62.29

    72.52

     

    55.41

    60.49

     

     

     

     

     

     

    2016-17*

    59.93

    71.26

     

    54.08

    56.55

     

     

     

     

     

     

     

    * Provisional (Upto February, 2017)

     

     

     

     

    31 | P a g e


    Power Sector in India

     

     

     

    SBS Wiki                                                                                                                                                       www.sbsandco.com/wiki

     

    Power Supply Position

     

    The power supply position in the country during 2009-10 to 2016-17 :

     

     

     

    Energy

     

     

    Peak

     

     

     

     

     

     

     

     

     

     

     

     

     

    Requirement

    Availability

    Surplus(+)/Deficits(-)

    Peak

    Peak Met

    Surplus(+) / Deficts(-)

     

    Demand

    Year

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    (MU)

    (MU)

    (MU)

    (%)

    (MW)

    (MW)

    (MW)

    (%)

     

     

     

     

     

     

     

     

     

     

     

     

     

    2009-10

    8,30,594

    7,46,644

    -83,950

    -10.1

    1,19,166

    1,04,009

    -15,157

    -12.7

     

     

     

     

     

     

     

     

     

     

     

    2010-11

    8,61,591

    7,88,355

    -73,236

    -8.5

    1,22,287

    1,10,256

    -12,031

    -9.8

     

     

     

     

     

     

     

     

     

     

     

    2011-12

    9,37,199

    8,57,886

    -79,313

    -8.5

    1,30,006

    1,16,191

    -13,815

    -10.6

     

     

     

     

     

     

     

     

     

     

     

    2012-13

    9,95,557

    9,08,652

    -86,905

    -8.7

    1,35,453

    1,23,294

    -12,159

    -9.0

     

     

     

     

     

     

     

     

     

     

     

    2013-14

    10,02,257

    9,59,829

    -42,428

    -4.2

    1,35,918

    1,29,815

    -6,103

    -4.5

     

     

     

     

     

     

     

     

     

     

     

    2014-15

    10,68,923

    10,30,785

    -38,138

    -3.6

    1,48,166

    1,41,160

    -7,006

    -4.7

     

     

     

     

     

     

     

     

     

     

     

    2015-16

    11,14,408

    10,90,850

    -23,558

    -2.1

    1,53,366

    1,48,463

    -4,903

    -3.2

     

     

     

     

     

     

     

     

     

     

     

    2016-17 *

    10,44,326

    10,37,165

    -7,160

    -0.7

    1,59,542

    1,56,934

    -2,608

    -1.6

     

     

     

     

     

     

     

     

     

     

     

     

    REMEDIES AND SOLUTIONS

     

    It is evident that the deficit in power availability in India is a significant impediment to the smooth development of the economy. In this context, bridging the gap in demand and supply has become critical and consequently, large projects are being undertaken in different segments of the sector; Generation, Transmission and Distribution. As India has not witnessed such a large scale of implementation before, there is a need to review and enhance project execution capabilities to help ensure targets are met. The table below summarizes the key implementation challenges and remedies and solutions for successfully achieving the implementation of power generation plans.

     

     

     

     

     

     

     

     

     

    32 | P a g e


    Power Sector in India

     

     

     

    SBS Wiki

     

     

     

     

     

     

    www.sbsandco.com/wiki

     

     

     

     

    Key Challenges

    Measures being adopted

    Resulting issues

    Solutions and Remedies

     

     

     

     

     

     

     

     

    Addition

    of  significant

    UMPP

     

    Technical

    and

    financial

    P r o j e c t  e x e c u t i o n

    generation capacity

     

     

    capability

    to

    execute

    C o s t s / C a s h

    f l o w

     

     

     

     

    such large projects

    management

     

     

     

     

     

     

     

     

     

     

     

     

    Risks increase manifold

    R i s k  M a n a g e m e n t

     

     

     

     

     

     

     

    strategy and planning

     

     

     

     

     

     

    Ensuring fuel availability

    P u r c h a s e

    a n d

    Risks  in

    operating  in

    R i s k  m a n a g e m e n t

    and quality

    development  of

    coal

    different

    geographies.

    t h r o u g h

    e f f e c t i v e

     

     

    mines abroad

     

    Eg. - political risks

    contracting,

    supply

     

     

     

     

     

     

     

    diversification, etc.

     

     

     

     

     

    Uncertainties in logistics

    Control  over

    supply

     

     

     

     

    operations

     

    infrastructure

     

     

     

     

     

     

     

     

    P l a n t

    e q u i p m e n t

    P ro c u r e m e n t

    f ro m

    Vendor reliability

    Robust  procurement

    shortage

     

    abroad

     

     

     

     

    management,

    vendor

     

     

     

     

     

     

     

    monitoring

     

     

     

     

     

     

     

     

     

     

    Setting up of new supply

    Execution timelines

    Project scheduling

     

     

     

    units

     

     

     

     

     

     

     

     

     

     

     

     

     

    Land  acquisition  and

    Speeding up processes

    I  n  a  d  e  q  u  a t e

    E n v i r o n m e n t

    a n d

    environment clearances

     

     

    communication  with

    stakeholder management

     

     

     

     

    stakeholders resulting in

     

     

     

     

     

     

     

     

    mismatch of expectations

     

     

     

     

     

     

     

     

    from  project

    affected

     

     

     

     

     

     

     

     

    persons

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    Manpower shortage

    Enhance training

     

     

     

     

    Resource

    planning

    and

     

     

     

     

     

     

     

    management

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    This strongly necessitates employing a comprehensive project management structure to address the major challenges of the power sector projects and to be able to deliver them as per the planned targets. Historical records also indicate the presence of a weak project management structure which does not assess all the key project aspects leads to various issues and challenges. As discussed initially, the overall intent of this paper is to highlight the opportunities and challenges of the electricity sector, and the project management solutions and remedies that are required to address these challenges.

    Tags:

    All are aware that a Limited Liability Partnership (LLP) is a body corporate, governed by the Limited Liability Partnership Act, 2008 and rules framed thereunder. An LLP has a distinct legal entity separate from that of its partners, it has perpetual succession and any change in the partners shall not affect the existence, rights or liabilities of the LLP. It is a vehicle enabling the Partnerships to enter in to a Corporate frame work with Limited liability, and giving the partners/members the option and flexibility of devising/structuring the control document i.e., LLP agreement, as mutually agreed by the partner/members.

     

    Similar to Companies registered under the Companies Act, 1956/2013, compliances by a Limited Liability Partnership [LLP] can be classified in to (a) continuous compliance i.e., compliance as to maintenance of minimum partners/designated partners, (b)event based, i.e., happening of an event such as increase of Contribution, Admission of Partners, Resignation of Partners, Shifting of Registered office address of the LLP etc., and accordingly, the LLP will have to file the returns/forms/information with the Registrar of Companies/LLP, in compliance with the said provisions of the LLP Act and (c) Time based compliances i.e., based on time, like filing of Annual Return and Statement of Solvency.

     

    An effort has been made to list out the Continuous compliance, Event based and Time based

    Compliances:

    Continuous Compliances:

     

    Sl.

    Name of the Section of

    Compliance with regard to

    Penalty for non-Compliance

     

    the Act, along with the

    No.

     

     

     

    relevant rule

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    Chapter –II

    The LLP shall have a minimum of Two (02) Partners.

    If at any time, the number of Partner in a LLP

     

    1.

     

     

     

     

     

     

     

     

    is reduced to less than Two(02), and the LLP

     

    Section 6 (1) & (2)

     

    carried on the business for more than Six (06)

     

     

     

     

     

     

     

     

     

     

     

     

    months, with the number so reduced, then

     

     

     

     

     

     

     

     

     

     

    the  remaining  Partner  shall  be  liable

     

     

     

     

     

     

     

     

     

     

    personally for the obligations of the LLP

     

     

     

     

     

     

     

     

     

     

    incurred during the period

     

     

     

     

     

     

     

     

     

     

     

     

     

    Chapter – II

    The LLP shall have at least Two (02) Designated Partners who are

    For non-compliance of the requirement, the

     

    2.

     

     

     

     

     

     

     

    individuals and at least one of them shall be resident in India.

    LLP and its every Partner, shall be punishable

     

    Section 7(1)

     

    with fine :

     

     

     

     

     

     

     

     

     

     

     

    Explanation: “Resident in India” means a person who has stayed

     

     

     

     

     

     

     

     

     

     

    in India for a period of not less than 182 days during the

    Not less than Rs.10,000/-, but which may

     

     

     

     

     

     

     

     

     

    immediately preceding one year

    extend to Rs.5,00,000/-. [Sec.10(1)]

     

     

     

     

     

     

     

     

     

     

     

     

     

    Chapter – III

    Invoices, Official Correspondence and publication of the LLP shall

    For non-compliance of the requirement, the

     

    3.

     

     

     

     

     

     

     

    bear:

    LLP shall be punishable with fine :

     

    Section – 21 (1)

     

     

     

     

    The name, address of its registered office and registration number

     

     

     

     

     

     

     

     

     

     

    Not less than Rs.2,000/-, but which may

     

     

     

     

     

     

     

     

     

    of the LLP, and a Statement that it is registered with Limited

    extend to Rs.25,000/-. [Sec.21 (2)]

     

     

     

     

     

     

     

     

     

    Liability; and

     

     

     

     

     

     

     

     

     

     

    A statement that it is registered with Limited Liability.

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    16 | P a g e


     

    Sl.

    Name of the Section of

    Compliance with regard to

    Penalty for non-Compliance

     

    the Act, along with the

    No.

     

     

     

    relevant rule

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    Chapter – VII

     

    Maintenance of Books of accounts on cash basis or accrual basis

    For non-compliance of the requirement, the,

     

    4.

     

     

     

     

    and according to double entry system of accounting, at the

    LLP shall be punishable with fine :

     

     

    Section  34  r/w

    Rule

    registered office of the LLP.

     

     

     

     

     

     

     

     

    No.24 of the LLP Rules,

    Auditing of Accounts: Applicable to LLPswhose turnover exceeds

    Not less than Rs.25,000/-, which may extend

     

     

    2009.

     

     

    to Rs.5,00,000/- [Sec.34(5)].

     

     

     

     

     

     

    Rs.40,00,000/- in  any financial year, or whose contribution

     

     

     

     

     

     

     

    exceeds Rs.25,00,000/-.

    Every  Designated  Partner  shall  be

     

     

     

     

     

     

    Else auditing not required.

    punishable with fine:

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    Not less than Rs.10,000/- which may extend

     

     

     

     

     

     

     

    to Rs.1,00,000/-[Sec.34(5)].

     

     

     

     

     

     

     

     

     

     

    Time Based Compliance:

     

    Sl.

    N a m e

    o f

    t h e

     

     

     

     

     

     

     

     

     

     

    Section of the Act,

    Compliance with regard to

    Compliance with in

     

    Form and

     

    Penalty for non-Compliance

    No.

    along  with

    the

     

     

     

     

    attachments

     

     

     

     

     

     

     

    relevant rule

     

     

     

     

     

     

     

     

     

     

     

     

     

    Chapter – VII

     

    Preparation of Statement of Account and

    Six

    (06)

    months

    LLP

    Form

    No.8,

    For  non - compliance  of  the

    1.

     

     

     

     

     

    Solvency for the FY, within a period of Six

    from the end of the

    along

    with

    the

    requirement,  the,  LLP  shall  be

     

    Section

    34

    r/w

    (06) months from the end of the Financial

    F Y

    i . e . ,

    3 0 t h

    Statement of Assets

    punishable with fine :Not less than

     

     

    and

    Liabilities

    and

    Rs.25,000/-, which may extend to

     

     

    Rule

    No.24

    of

    year, and filing with ROC.

    September of every

    I n c o m e

    a n d

     

     

    Rs.5,00,000/- [Sec.34(5)].

     

     

    the

    LLP  Rules,

     

    year.

     

     

    Expenditure

    and

     

     

     

     

     

     

    disclosure

    under

    Every Designated Partner shall be

     

    2009.

     

     

     

    and

     

     

    p r o v i s i o n s

    o f

     

     

     

     

     

     

     

     

     

    section

    22

    of

    the

    punishable with fine: Not less than

     

     

     

     

     

     

     

     

     

     

    Micro,

    Small

    and

    Rs.10,000/- which may extend to

     

     

     

     

     

     

     

    Filing with Registrar

    M

    e

    d  i

    u

    m

    Rs.1,00,000/- [Sec.34(5)].

     

     

     

     

     

     

     

    with in 30 days of 6

    E n t e r p r i s e s

    +

     

     

     

     

     

     

     

    Development

    Act,

    Additional fee of Rs.100/- for each

     

     

     

     

     

     

     

    months  i.e.,  30th

    2006,is to be added

    day of delay in filing the return, after

     

     

     

     

     

     

     

    October.

     

    as attachment.

     

    30 days.

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    17 | P a g e


     

    Sl.

    N a m e

    o f

    t h e

     

     

     

     

     

     

     

     

     

    Section of the Act,

    Compliance with regard to

    Compliance with in

    Form and

    Penalty for non-Compliance

    No.

    along  with

    the

     

     

     

     

    attachments

     

     

     

     

     

     

     

     

     

    relevant rule

     

     

     

     

     

     

     

     

     

     

     

     

    Chapter – VII

     

    Every LLP shall file Annual Return with the

    Within  Sixty  (60)

    LLP Form No.11,

    For  non - compliance  of  the

     

     

     

     

     

    Registrar with Sixty (60) days of closure of

    days of closure of its

    mentioning the

    requirement,  the,  LLP  shall  be

    2.

     

    Section

    35

    r/w

    its financial year

     

     

    financial

    year. i.e.,

    details as to the

    punishable with fine :Not less than

     

     

    Rule 25

    of

    the

     

     

     

    30

    th

    May

    of every

    Partners,

    Rs.25,000/-, which may extend to

     

     

     

     

     

     

    Rs.5,00,000/- [Sec.35 (2)].

     

     

    LLP Rules, 2009.

    The annual return

    of an

    LLP having

    year.

     

     

    Contribution

    Every Designated Partner shall be

     

     

     

     

     

    turnover uptoRs. 5

    Crores,

    during the

     

     

     

     

    received from

     

     

     

     

     

     

     

     

     

    punishable with fine: Not less than

     

     

     

     

     

    corresponding FY or contribution uptoRs.

     

     

     

     

    them against

     

     

     

     

     

     

     

     

     

    Rs.10,000/- which may extend to

     

     

     

     

     

    50 Lakhs, shall be accompanied with a

     

     

     

     

    their obligation,

    Rs.1,00,000/- [Sec.35(2)].

     

     

     

     

     

    certificate from a

    designated partner,

     

     

     

     

    details of any

    +

     

     

     

     

     

    other than the signatory to the annual

     

     

     

     

    penalties

    Additional fee of Rs.100/- for each

     

     

     

     

     

     

     

     

     

    day of delay in filing the return, after

     

     

     

     

     

    return, to the effect that annual return

     

     

     

     

    imposed on the

     

     

     

     

     

     

     

     

     

    30 days.

     

     

     

     

     

    contains true and correct information.

     

     

     

     

    LLP/Partner/

     

     

     

     

     

     

     

     

     

     

     

     

     

    Designated

     

     

     

     

     

     

    In all other cases, the annual return shall

     

     

     

     

    Partners, and

     

     

     

     

     

     

    be accompanied with a certificate from a

     

     

     

     

    details of

     

     

     

     

     

     

    Company Secretary in practice to the

     

     

     

     

    interests of the

     

     

     

     

     

     

    effect that he has verified the particulars

     

     

     

     

    Partners/Designat

     

     

     

     

     

     

    from the books and records of the limited

     

     

     

     

    ed Partners in

     

     

     

     

     

     

    liability partnership and found them to be

     

     

     

     

    other entities.

     

     

     

     

     

     

    true and correct.

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    18 | P a g e


     

    Event Based Compliance:

     

    Sl.

    N a m e

    o f

    t h e

     

     

     

     

     

     

     

     

     

    Section of the Act,

    Compliance with regard to

    Compliance with in

     

    Form and

    Penalty for non-Compliance

    No.

    along

    with

    the

     

     

     

    attachments

     

     

     

     

     

     

     

     

     

    relevant rule

     

     

     

     

     

     

     

     

     

     

     

     

    Chapter – II

     

    7(4) - Notice of appointment, cessation,

    Within  30

    days

    LLP

    Form  No.4,

    For  non-compliance  of  the

    1.

     

     

     

     

     

     

    change in name/ address/ designation of

    f r o m

    t h e

    along  with  the

    requirement,  the

    LLP  and

    its

     

    Section 7(4) and

    a designated partner or partner. and

    appointment/

    relevant  consent

    e v e r y  P a r t n e r,

    s h a l l

    b e

     

     

     

     

    (5)  r/wrule

    8,

    consent to become a partner/designated

    cessation/

     

    letter/resignation

    punishable with fine :

     

     

     

    10(8), 22(2) and

    partner  Notice

    of  appointment,

    Change

     

    letter, as the case

    Not less than Rs.10,000/-, which

     

     

    22(3) of

     

    cessation,  change in  name/  address/

     

     

    may be.

     

     

     

     

     

    may  extend  to  Rs.1,00,000/-

     

     

    LLP Rules, 2009

    designation.

     

     

     

     

     

    [Sec.10(2)].

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    +

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    Additional fee of Rs.100/- for

     

     

     

     

     

     

     

     

     

     

     

     

     

    each day of delay in filing the

     

     

     

     

     

     

     

     

     

     

     

     

     

    return, after 30 days.

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    Chapter – III

     

    Appointment  of

    Designated  partner

    Within  30

    days

    LLP

    Form  No.4,

    For  non-compliance  of  the

    2.

     

     

     

     

     

     

    within 30 days of vacancy.

    f r o m

    t h e

    along  with  the

    requirement,  the

    LLP  and

    its

     

    Section 9

     

     

     

    appointment

     

    relevant  consent

    e v e r y  P a r t n e r,

    s h a l l

    b e

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    letter/ resignation

    punishable with fine :

     

     

     

     

     

     

     

     

     

     

     

     

    letter, as the case

    Not less than Rs.10,000/-, which

     

     

     

     

     

     

     

     

     

     

     

    may be.

    may  extend  to  Rs.1,00,000/-

     

     

     

     

     

     

     

     

     

     

     

     

     

    [Sec.10(2)].

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    +

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    Additional fee of Rs.100/- for

     

     

     

     

     

     

     

     

     

     

     

     

     

    each day of delay in filing the

     

     

     

     

     

     

     

     

     

     

     

     

     

    return, after 30 days.

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    19 | P a g e


     

    Sl.

    N a m e

    o f

    t h e

     

     

     

     

     

     

     

     

     

    Section of the Act,

    Compliance with regard to

    Compliance with in

     

    Form and

     

    Penalty for non-Compliance

    No.

    along

    with

    the

     

    attachments

     

     

     

     

     

     

     

     

    relevant rule

     

     

     

     

     

     

     

     

     

     

     

     

    Chapter – III

     

    Shifting of Registered office of the LLP,

    Within  30  days

    LLP Form 15, along

    For  non-compliance  of  the

    3.

     

     

     

     

     

    and filing of the notice of such change

    from the change

    with the proof of

    requirement,  the

    LLP  and

    its

     

    Section  13

    (3)

    with the Registrar. The change shall take

     

    office,  Extract

    of

    e v e r y  P a r t n e r,

    s h a l l

    b e

     

     

     

     

     

    r/w with Rule 17

    effect only upon such filing

     

    the

    Resolution

    +

    punishable with fine :

     

     

     

    of the LLP Rules,

     

     

    S u p p l e m e n t a l

    Not less than Rs.2,000/-, which

     

    2009

     

     

     

     

     

    Agreement, if the

     

     

     

     

     

     

    may  extend  to  Rs.25,000/-

     

     

     

     

     

     

     

     

    change is requires

    [Sec.13(4)].

     

     

     

     

     

     

     

     

     

     

    Suppl. Agreement.

    +

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    Additional fee of Rs.100/- for

     

     

     

     

     

     

     

     

     

     

     

     

    each day of delay in filing the

     

     

     

     

     

     

     

     

     

     

     

     

    return, after 30 days.

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    Chapter – III

     

    Direction received by the LLP from the

    Within Three (03)

    LLP

    Form

    No.1

    For  non-compliance  of  the

    4.

     

     

     

     

     

    Central Government to change its name,

    months from the

    and

    LLP

    Form

    requirement, the, LLP shall be

     

    Section 17

     

    which is in resemblance with any other

    date of receipt of

    No.5, along with

    punishable with fine :

     

     

     

     

     

     

     

     

     

     

     

    LLP or Body Corporate, and likely be

    the Direction

    t h e

    r e l e v a n t

    Not less than Rs.10,000/-, which

     

     

     

     

     

     

    mistaken for it.

     

    documents

     

     

     

     

     

     

     

     

     

     

     

    may  extend  to  Rs.5,00,000/-

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    [Sec.17(2)].

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    Every Designated Partner shall

     

     

     

     

     

     

     

     

     

     

     

     

    be punishable with fine:

     

     

     

     

     

     

     

     

     

     

     

     

     

    Not less than Rs.10,000/- which

     

     

     

     

     

     

     

     

     

     

     

     

    may  extend  to  Rs.1,00,000/-

     

     

     

     

     

     

     

     

     

     

     

     

    [Sec.17(2)].

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    20 | P a g e


     

    Sl.

    N a m e

    o f

    t h e

     

     

     

     

     

    Section of the Act,

    Compliance with regard to

    Compliance with in

     

    Form and

    Penalty for non-Compliance

    No.

    along

    with

    the

     

    attachments

     

     

     

     

    relevant rule

     

     

     

     

     

     

     

     

    Chapter – IV

     

    Filing of LLP Agreement – In case there is

    Within  30  days

    Form No.3, along

    Additional fee of Rs.100/- for

    5.

     

     

     

     

     

     

     

    no agreement, then the Mutual Eights and

    from the date of

    with

    the  initial

    each day of delay in filing the

     

    Section

    23

     

    (2),

    duties of the Partners shall be governed by

    Incorporation  (in

    agreement  and

    return, after 30 days.

     

     

    r/w

    Rule 21 of

    the First Schedule to the LLP Act.

    case of initial LLP

    the Supplemental

     

     

     

    the

    LLP

    Rules,

    Initial as well as Supplemental agreement

    Agreement)  and

    agreement

     

     

    2009

     

     

     

     

    also in the case of

     

     

     

     

     

     

     

     

     

     

     

    as to any change in the mutual

    a n y  c h a n g e

     

     

     

     

     

     

     

     

     

     

     

    Note: LLP  Agreement is not  a Public

    therein.

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    document  and  is  not  available  for

     

     

     

     

     

     

     

     

     

     

     

     

    inspection.

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    Chapter – IV

     

    Intimation of Change in Partners

    Within  30  days

    LLP Form No.3 and

    For  non-compliance  of  the

    6.

     

     

     

     

     

     

     

     

    from the change.

    LLP

    Form  No.4,

    requirement,  the  LLP  and  its

     

    Section

    25,

     

    r/w

    As change in Partners requires execution

     

    along  with  the

    every Designated Partner, shall

     

     

     

     

     

     

    Rule

    22

    of

    the

    of a Supplemental agreement, the same

     

    r e q u i r e d

    be punishable with fine :

     

     

    LLP Rules, 2009

    also needs to be entered into and filed

     

    documents

    Not less than Rs.2,000/-, which

     

     

     

     

     

     

     

     

    with ROC.

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    may  extend  to  Rs.25,000/-

     

     

     

     

     

     

     

     

     

     

     

     

    [Sec.25(4)].

     

     

     

     

     

     

     

     

     

     

     

     

    +Additional fee of Rs.100/- for

     

     

     

     

     

     

     

     

     

     

     

     

    each day of delay in filing the

     

     

     

     

     

     

     

     

     

     

     

     

    return, after 30 days, for each

     

     

     

     

     

     

     

     

     

     

     

     

    form.

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    Tags:

    Scheme of Taxation of Non-Residents:

     

    Section 5 of the Income Tax Act, 1961 provides for taxability of income in the hands of Non-Resident. Total

    Income of the Non-Resident includes all the income which is received or deemed to be received in India by or on behalf of such person or income accrues or arises or is deemed to accrue or arise in India to the Non-Resident.

     

    Section 7 ibid provides for when income is deemed to be received in India. Section 9 ibid provides for when the income is deemed to accrue or arise in India. Section 9(1)(i) ibid provides that all income accruing or arising, whether directly or indirectly, through or from any business connection in India is deemed to accrue or arise in India.

     

    Concept of Agency and its relevance to Business Connection:

     

    As per Explanation 2 to section 9(1)(i) ibid ‘business connection’ shall include:

     

    • any business activity carried out through a person who, acting on behalf of the non-resident has habitually exercise in India, an authority to conclude contracts on behalf of the non-resident, unless his activities are limited to the purchase of goods or merchandise for the non-resident or

     

    • has no such authority, but habitually maintain in India stock of goods or merchandise from which he regularly delivers goods on behalf of the non-resident or

     

    • habitually secure orders in India, mainly or wholly for the non-resident or for the non-resident and other non-residents …….

     

    business connection shall not include any business activity carried out through a broker, general commission agent or any other agent having an independent status, if such broker, general commission agent or any other agent having an independent status is acting in the ordinary course of his business (first proviso)

     

    To establish the business connection toit is not necessary that all the operations of the business are to be carried in India to constitute business connection. As per Explanation 1 to section 9(1)(i) provides in case where all the operations of the business are not carried out in India the income of the business is deemed to accrue or arise in India to the extent it reasonably attributable to the operations carried out in India.

     

    Combined reading of Explanation 1 and Explanation 2 there exists a business connection through agents, other that of independent status, who undertake activities on behalf of non-resident (Agency PE-Permanent Establishment).

     

    In nutshell, if the activities of agent (dependent) in India contributes to the income of the non-resident, such income is deemed to accrue or arise in India and chargeable to tax accordingly.

     

    The deciding factor in agency is the extent of dependency in carrying on activities in India or on behalf of non-resident in India for determining the chargeability of income in India.

    In this context, we analyse two Judicial pronouncements to arrive at a reasonable conclusion on agency transactions of non-residents.

     

    Galileo International Inc vs DCIT 19 SOT 257- ITAT DELHI

     

    Facts:

     

    Galileo International was a tax resident of USA. It was engaged in the business of maintaining and operating a Computerized Reservation System (CRS). The said system would receive, process, store and disseminate data about flight schedules, room availability, fare information and provision for booking capabilities, etc. The assessee entered into a Participating Carrier Agreement (PCA) with various participating airlines for providing them with said CRS services.

     

    To market and distribute the CRS services to the travel agents (TAs) in India, Galileo International (assessee) entered into a Distribution Agreement (DA) with an Indian company. The Indian company in turn entered in to a subscriber’s agreement with various TA to provide them with the access code, equipment, communication link and support services.

     

    The communication between the master computer system of the assessee in USA and TA in India arranged by another organization. The assessee paid remuneration to Indian company for acting as a distributor and to the other company which provided the communication channel.

     

    The assessee was remunerated outside India by the airlines and it did not receive any remuneration from the travel agents.

     

    The assessee filed its return declaring nil income on the ground that it had no operations in India and hence no income is accrue or arise in India.

     

    Department’s contention:

     

    All the activities in respect of bookings made by the TAs in India were completed in India through the hardware installed by assessee at travel agent’s premises; that on that basis income accrued or arose in India under section 5 of Income Tax Act, 1961.

     

    Even under the DTAA, the assessee had a PE in India under article 5 and so the income was taxable as business income under article 7; that the assessee earned income on each segment booked through the computers installed in India and, therefore, the same constituted a PE.

     

    The Assessing Officer further held that 'Indian Company' was a PE of the assessee within the meaning of article 5(4) because it was economically dependent on the assessee for its source of business and its activities were devoted wholly and exclusively for the assessee, and further, it entered into and concluded contracts on the assessee's behalf.

     

    On appeal the CIT(A) upheld the impugned findings. Second appeal made before ITAT.

     

    ITAT Ruling:

     

    The ITAT held that the Indian Company was totally dependent upon the assessee in respect of services to the CRS subscribers in India.

    It further held that the booking would take place in India on the basis of the presence of such seamless CRS. On the basis of booking made by the TAs in India, the income generated to the assessee. But for the booking, no income accrued to the assessee. The assessee was not to receive the payment only for display of information but the income would accrue only when the booking was completed at the desk of the subscriber's computer. In such a situation, there was a continuous seamless process involved, at least part of which was in India and, hence, there was a business connection in India.

     

    The assessee operates the CRS system which was the source of revenue and part of such system existed in India thus there was a business connection established in India and hence the income in respect of the booking which took place from the equipment in India could be deemed to accrue or arise in India and hence taxable in India.

     

    Key observation:

     

    Since part of the booking function was operated in India which directly contributed to the earning of revenue, the activities carried out by the assessee in India were in no way of 'preparatory or auxiliary' character. Thus, the exception provided in article 5(3) would not apply and the assessee would be deemed to have a PE in India

     

    Points to be pondered:

     

    If an agent works exclusively for a single principal, it would establish that the agent is economically dependent on the principal, though it is not conclusive, which could result in existence of dependent agency or agency PE.

     

    DCIT vs Elitecore Technologies (P) Ltd 80 taxmann.com 6 – ITAT AHMEDABAD

     

    Facts:

     

    The assessee is engaged in the business of developing software products. It has utilized the services of non-resident agents for marketing of the products and assistance in procuring sales orders abroad. Assessee has not deducted tax at source on commission paid to non-resident agents on the contention that it is not chargeable to tax in India.

     

    The Assessing Officer was not satisfied with genuineness of commission payment on the ground that there was no material to justify the reasonableness of commission payment and evidence pertaining to services rendered by the non-resident agents having nexus with the assessee business was not available. [though there is no agreement with non-resident agents the invoices and purchase order raised by the them are available]

     

    Assessing Officer Contention:

     

    In view of the provisions of Section 9(1)(i) of Income Tax Act, 1961, income of the non-resident from though or from any business connection in India or any source in India is deemed to accrue or arise in India, and under section 5(2)(b)ibid income deemed to accrue or arise in India is also taxable in India. Since the right to receive the commission income accrued in India, the income is deemed to accrue or arise in India.

    CIT(A) observations:

     

    The Supreme Court in CIT vs Toshoku Ltd 125 ITR 525 and CIT vs R.D. Aggarwal and Co 56 ITR 20 held that commission paid to non-residents for securing orders outside India is not taxable in India and hence no tax is required to be withheld on the same. Further, Hon’ble Supreme Court in GE India Technology Center Pvt Ltd 372 ITR 456 held that the provisions of section 195 of Income Tax Act,1961 are not applicable if the payments are not taxable in India. As the payment of foreign commission is not taxable in India, the provisions of section 195ibid are not applicable.

     

    ITAT observations:

     

    Relied on the judgement in DCIT vs Welspun Corporation Ltd 77 taxmann.com 165- ITAT Ahd where it was held that the consideration for which the payment made to the commission agent is obtaining of the orders and not any services per se. The consideration is computed on the basis of business procured. Obviously, if there are no business generated for the principal, the agent gets nothing.

     

    The consideration paid to the agent is also based on the business procured and the agency agreements do not provide for any independent, standalone or specific consideration for these services. The services rendered under the agreement cannot, therefore, be considered to be technical services in nature or character.

     

    Deeming fiction under section 9(1)(i) read with proviso thereto holds the key, and lays down that only to the extent that which the operations of such a business is carried out in India, the income from such a business is taxable in India. When no operations of the business are carried on in India, there is no taxability of the profits of such a business in India either.

     

    The profits of such a business can have taxability in India only to the extent such profits relate to the business operations in India, but then, as are the admitted facts of this case, no part of operations of business were carried out in India. The commission agents employed by the assessee, therefore, did not have any tax liability in India in respect of the commission agency business so carried out.

     

    Points to be pondered:

     

    Generating business or securing orders is an entrepreneurial activity and cannot, by any stretch of logic, be treated as a technical service per se. The point of time when commission agent's right to receive the commission fructifies is irrelevant to decide the scope of Explanation 1 to section 9(1)(I).

     

    Conclusion:

     

    Amount paid to non-resident agents who operate independently/ who carries on activity of procuring orders outside India doesn’t leads to business connection or rendering of technical services in India.

    Tags:

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