Section 45 of the Income Tax Act, 1961 provides for chargeability of Capital Gain on transfer of a “Capital Asset”. 

Capital Gain arises only when a capital asset is transferred. If the asset transferred is not a capital asset, it will not be covered under the head “Capital Gains”. 

The term “Capital Asset” is defined U/S 2(14) as property of any kind held by the assessee, whether or not connected with his business or profession but does not include interalia agricultural land in rural area.

Rural area for this purpose is any area which is outside the jurisdiction of municipality or cantonment board having a population² of 10,000 or more and also which does not fall within distance (measured aerially) given below- 

• 2 KM from the local limits of municipality or cantonment board- If the population of municipality or cantonment board is more than 10,000 but not more than 1 lakh; 
• 6 KM from the local limits of municipality or cantonment board- If the population of municipality or cantonment board is more than 1lakh but not more than 10 lakh;
• 8 KM from the local limits of municipality or cantonment board- If the population of municipality or cantonment board is more than 10lakh.

(As Amended by FA 2013)

To attract charge of capital gain, the property transferred must be a capital asset on the date of transfer and it is not necessary that it should have been capital asset also on the date of acquisition by the assesseeⁱ.

If the concerned asset does not fall within the definition of capital asset on the date of transfer, no capital gain can be leviedⁱⁱ. 

• Population means population according to the last preceding census of which relevant figures have been published before the first day of the previous year. 

As the Rural Agricultural Land is not a Capital Asset, capital gain on transfer of the same is not subject to tax. 

It is the usage of seller of the land that will decide the nature of land.

Now, the question is whether this contention is valid when the buyer of the agricultural land has intention to use for commercial purpose after the transfer?

The above question was answered in the following case: 

Commissioner of Income-tax, Panaji-Goa v. Smt. Debbie Alemao

The assessee’s were co-owners of the land. They purchased said land for a sum of Rs. 8 lakhs as an agricultural land. Later on, they sold the said land to ‘V’ Ltd. for a sum of Rs. 73 lakhs. The assessee’s filed separate returns of income wherein capital gain arising out of the sale of agricultural land was claimed by each of them to be exempt.

The Assessing Officer held that the said land had non-agricultural potential and the fact that it was sold at a price which was nearly 10 times the purchase price within two years from its purchase and, moreover, it was purchased for the purpose of a beach resort showed that the said land was not an agricultural land. Consequently, he held that the profit arising out of the sale of the said land was assessable to the tax as capital gain. On appeal, the Commissioner (Appeals) set aside the assessment order. The Tribunal upheld the order of the Commissioner (Appeals). 

Aggrieved by the decision of the ITAT the revenue preferred appeal to High Court

Before the High Court:

The learned Counsel for the appellant contended that the Respondents had not shown any agricultural income during the period of two years from the date of the purchase till the date of the sale, arising out of the said land. This also showed that the land was not an agricultural land.

The Counsel for the appellant submitted that the Commissioner of Income-tax (Appeals) as well as the ITAT committed a gross error, bordering on perversity, in holding that the said land was an agricultural land.

The High Court held that the assessing officer has note that the land was noted in the revenue records as agricultural land and ITAT also held that the land was recorded in the revenue records as agricultural land. This fact is not disputed by the revenue. 

It is however contended that the land was not actually used for agriculture inasmuch as no agricultural income was derived from this land and was not shown by the respondents in their Income-tax return. 

This was explained by the respondents by saying that there were coconut trees in the land but the agricultural income derived by sale of the coconuts was just enough to maintain the land and there was no actual surplus and hence, no agricultural income was shown from this land.

The High Court held that if an agricultural operation does not result in generation of surplus that cannot be a ground to say that the land was not used for the agricultural purpose. It is not disputed that the land was shown in the revenue record to be used for agricultural purpose and no permission was ever obtained for non-agricultural use by the respondents.

The permission for non-agricultural use was obtained for the first time by the Varca Holiday Beach Resort Private Limited the purchaser after it purchased the land.

Thus, the finding recorded by the two authorities below that the land was used for the purpose of agriculture is based on appreciation of evidence and by application of correct principles of law. As a result the High Court dismissed the appeal.

Note: The Tribunal has relied upon two unreported decisions of this Court in CIT v. Minguel

Chandra Pais/ Smt. Maria Leila Tovar Furtado [2006] 282 ITR 618/ [2005] 149 Taxman 131 (Bom.) which involved identical issue. In those appeals, this Court has upheld the order of the Tribunal holding that the land was agricultural land and its sale did not invite the payment of capital gain. 

Similar view was also expressed by Gujrat High Court in case of Commissioner of Income-tax v. Rajshibhai Meramanbhai Odedra [2014] 42 taxmann.com 497 (Gujarat)

This article is contributed by Partners of SBS and Company LLP – Chartered Accountant Company You can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it.

The definition of ‘input service’ is always a mystery to the trade and business and has created a huge litigation as regards to what is eligible as input service for utilization of the same. The Board has amended the definition of the ‘input service’ with effective from 01.04.11 in anticipation of putting an end to huge litigation. The restricted amended definition has put an end to majority of the issues, however still leaving certain issues unaddressed. This article aims at dealing an issue ‘whether the credit of service tax paid on renting of immovable property services is eligible for cenvat credit to utilize the same against the excise duty/service tax as far as the manufacturer/service provider is concerned. 

Before examining the issue, it is very important for the reader to note the changes that have taken place in the definition of ‘input service’ as laid down vide Rule 2(l) of Cenvat Credit Rules, 2004. Earlier to 2011, the definition of ‘input service’ is very wide enough to cover all the services in its ambit to claim as Cenvat Credit for the service provider. This definition has led to a huge revenue loss to the exchequer and hence there was an amendment to the definition of ‘input service’ post 2011 which has restricted the scope of such definition, which shall be discussed in detail in the later part of the article. 

The amended definition which was effective from 01.04.2011 has made the definition of ‘input service’ into 3 parts. 

1^st Part     – 100% nexus with the provision of the output services provided by service provider; 

2^nd Part     – Irrespective of the Nexus theory, the credit stand eligible; 

3^rd Part     – Specifically Excluded from the ambit of the definition. 

As laid above, the first part of the definition deals with eligibility of the credit of services, which are having nexus with the provision of output services. Hence, all services which are having intimate nexus shall be eligible vide this part of the definition except specifically excluded (vide third part of the definition). The second limb of the definition of the said input service deals with eligibility of the credit of services irrespective whether they having nexus with the provision of output services. To be more lucid, once the services procured falls in the second limb, they are eligible for availment of credit irrespective of having nexus with the output services. 

Let us take the current issue for examining the eligibility of the cenvat credit of service tax paid. Let us understand by taking an example. Consider a company engaged in provision of services pertaining to leasing of vacant land with infrastructural supports to manufacturers. The manufacturer enters a lease agreement with such company for availing the leasing services and infrastructural support. The said company charges service tax and the manufacturer pays the same and avails the said service tax paid as cenvat credit.

Now the revenue is of the opinion that such service tax is not eligible since the same does not have nexus with the output service provided or manufacturing of the finished goods as far as the service tax on the lease hold land is concerned. Further, they were of opinion that service tax paid on the infrastructural services¹ is not eligible since said services are used outside the premises of the manufacturer/service provider. In this context let us examine whether the contention laid out by the department stands to the test of the judicial scrutiny. 

For the manufacturer, the definition of ‘input service’ vide 1^st limb allows services used by manufacturer whether directly or indirectly in or in relation to manufacture of the final products. Without the land, a factory cannot be established and without the factory, there cannot be any manufacturing activity and hence it is very absurd and illogical to state that the immovable property is not having nexus with the manufacture of final product. 

Further, for the service provider, as laid down above, the 1^st limb of the definition allows credit on services which are having intimate nexus with the provision of output service unless specifically excluded by 3^rd limb. It is very illogical or completely absurd that to state that without a leased land there would be provision of output services. There cannot be a provision of output service without an premises of the service provider, it is highly unimaginable and hence the service tax paid on the lease hold land is very eligible since the said input service is also not specified in the 3^rd limb of the definition of ‘input service’. 

It is very important to note that the provision of infrastructure services plays a crucial role for the manufacturer/service provider to avail the land on the lease. In absence of the proper infrastructural services, the land shall not be useful because no prudent business man would avail the land for construction of factory. Hence, the said infrastructural services are also having nexus with the manufacture of final products and hence eligible for availment of cenvat credit.

So, in my view, the credit of service tax paid on lease land hold and infrastructure services are eligible for availment as cenvat credit both for manufacturer and service provider for utilization

• Infrastructural support would mean development of roads, water supply network and reservoirs, sewer networks and sewerage treatment plant and other various allied support services.

against the output payable. The contentions raised by the revenue would not stand before the judicial scrutiny at the higher levels. When the 99 year lease hold land is considered as service and service tax is being collected, the same shall be eligible for credit in absence of any specific restrictions in the definition of ‘input service’.

This article is contributed by Partners of SBS and Company LLP – Chartered Accountant Company You can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it.

Chapter – IX - Section 138 deal with the provisions 01.04.2014. 

Section-138:

of the Companies Act, 2013, together with the rules made thereunder, as to Internal Audit of Companies - Notified to be effective from 

The Section reads as under: 

“138. (1) Such class or classes of companies as may be prescribed shall be required to appoint an internal auditor, who shall either be a chartered accountant or a cost accountant, or such other professional as may be decided by the Board to conduct internal audit of the functions and activities of the company. 

• The Central Government may, by rules, prescribe the manner and the intervals in which the internal audit shall be conducted and reported to the Board.” 

TAKEWAY POINTS: 

• Internal Audit (IA) applicable for companies as prescribed by Central Government (CG) by rules.
• Internal Auditor can be a CA, CWA or such other professional as decided by the Board. 
• CG may by rules prescribe the intervals in which IA to be conducted and reported. 

Rules: Rule 13 of the Companies (Accounts) Rules, 2014, relates to Internal Auditor:

Applicability to Companies: 

Sub-rule (1) of Rule 13 of the Companies (Accounts) Rules, 2014, lists out the companies who are required to appoint an Internal Auditor, 

• every LISTED company; 
• every UNLISTED PUBLIC company having:
• PAID UP SHARE CAPITAL of Rs.50 Crores or more during the preceding financial year; or 
• TURNOVER of Rs.250 Crores or more during the preceding financial year; or
• OUTSTANDING LOANS OR BORROWINGS from BANKS or PUBLIC FINANCIAL INSTITUTIONS exceeding Rs.100 Crores or more at any point of time during the preceding financial year; or
• OUTSTANDING DEPOSITS of Rs.25 Crores or more at any point of time during the preceding financial year; and every private company having:
• TURNOVER of Rs.200 Crores or more during the preceding financial year; or
• OUTSTANDING LOANS OR BORROWINGS from BANKS OR PUBLIC FINANCIAL INSTITUTIONS exceeding Rs.100 Crores or more at any point of time during the preceding financial year:

An existing company covered under any of the above criteria shall have to comply with the requirements of section 138 and this rule within Six (06) months of commencement of such section. i.e., 30.09.2014.

As per the explanation, given to the rule:-

• the internal auditor may or may not be an employee of the company; 

• the term “Chartered Accountant” shall mean a Chartered Accountant whether engaged in practice or not. 

Intervals/periodicity of Internal Audit: 

Sub-rule 2 of Rule 13(2), stipulates that the Audit Committee of the company (in case the company is required to have one) or the Board shall, in consultation with the Internal Auditor, formulate the scope, functioning, periodicity and methodology for conducting the internal audit. 

TAKEWAY POINTS:

• For Private Limited Companies, the criteria as to Paid-up is not included, thereby companied having turnover is Rs.200 Crores or more /loans of Rs.200 Crores or more are required to have IA.

• From the explanation, a CA other than in practice can also be appointed as an Internal Auditor. 

Periodicity of Audit and report to be decided by the Board and the Auditor.

This article is contributed by Partners of SBS and Company LLP - Chartered Accountant Company. You can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it.

By this time, the Practicing Professionals [CA, CS, CWA] would have got a glimpse of the documentation involved for complying with the provisions of the Companies Act, 2013, and clients arguing and wondering why? do I have to do all these filings and documentation, on the pretext that, mine is a very small business. 

The real documentation and reporting lies ahead at the time of preparation of the Accounts,  Board’s Report and Annual Return for the FY 2014 – 2015, and only then the real banging of heads will begin. The working style of copy and paste of a borrowed format is long gone, as reporting will be company specific. 

With the above in mind, it has become the need of the hour for the professionals and business houses to suitably identify and explore other business models, with less compliances, so as to enable them to concentrate on carrying on the business, with minimal compliances. 

This is where, the till now, not so popular concept of Limited Liability Partnership [LLP] comes into picture as an alternative. 

Points in favour of an LLP are:

• Limited Liability to the Partners, similar to Limited Liability of members of a Company.
• Minimal intervention from Government;
• Minimal cost [Statutory Fees], in comparison with Companies;
• Comparatively less Compliances [please refer to the October, 2014 issue of SBS Wiki, for list of compliances as applicable to a LLP];
• Relaxed requirement as to holding of Meetings under the Act, However the procedure as to calling and conducting of meeting are governed by the terms specifically spelled out in the LLP Agreement;
• Relaxed/minimal requirement of maintenance of Large statutory records;
• No specific regulation/restriction as to related party transactions [as of now];
• Relaxed requirement as to Audit of financials. Audit not required for LLPs having Capital contribution upto Rs.25 Lakhs and Turnover of upto Rs.40 Lakhs.
• Comparatively less financial disclosure norms.

With the above advantages, conversion of a Private Company or an unlisted Public Company is only the probable option available to reduce the burden as to the compliances.

An effort has been made to list out the steps involved in the conversion of a Company to LLP: 

Governing provisions: 

Conversion of a Private Company into LLP is governed by the provisions of Section 56 of the LLP Act, 2008, read with Schedule 3 to the Act, and applicable rules. 

Conversion of a Private Company into LLP is governed by the provisions of Section 57 of the LLP Act, 2008, read with Schedule 4 to the Act, and applicable rules. 

Important aspects for conversion (pre-requisites) and upon conversion:

• There should not any charge created/subsisting on the property of the Company. 
• All the Shareholders of the Company shall become the partners of the LLP and nobody else.
• On conversion, all the tangible (movable and immovable) property and the intangible property, all assets, interest, rights, privileges, liabilities, obligations of the firm/Company shall stand transferred to, and vest in, the LLP, without further assurances, act or deed. Necessary steps are to be taken for intimation of the registration authorities as to the conversion for effecting the change in their record. 

• Further, the Company after being converted in to LLP, shall stand dissolved. 

• Any court proceedings for and on behalf of the Company or any conviction, ruling judgment relating to the Company shall be enforceable on the LLP, upon conversion. 

• Any and all existing contracts, agreements, bonds in the name of the company, shall stand transferred to the LLP, including permits, licenses, if any, subject to the provisions of the respect enactment under which the permit, license were issued 

• Every employee of the Company shall continue to be the employee of the LLP, after its conversion. 

• For a period of Twelve (12) months after the date of conversion, every official correspondence of the LLP shall have to invariable state that (a) it was converted from a Company to LLP and (b) the name and registration number of the Company from which it was converted. 

Before seeing the procedure for conversion, let us also have a peek in to RBI and Income Tax point of view: 

RBI PERSPECTIVE: 

FDI in LLP is allowed in such sectors/activities, where 100% FDI is allowed under automatic route, without any FDI-linked performance related conditions. Even such entry is subject to prior Government / FIPB approval. 

FDI is not allowed in:

• Sectors with less than 100 % FDI under automatic route, 

• Sectors with Approval route, activities such as Agricultural/plantation and Print media and Sectors in which FDI is prohibited. 

Prior permission for Conversion: 

Conversion of a company with FDI, into an LLP, will be allowed only with the prior approval of FIPB/Government, and upon fulfilment of stipulations as laid under FEMA. 

Restriction as ECB: 

LLPs shall not be permitted to avail External Commercial Borrowings (ECBs). 

INCOME TAX: 

Capital Gains on conversion of Company into LLP: 

The Finance Bill 2010-11 has proposed to insert a new clause (xiiib) under Section 47 of the Income Tax Act, 1961 whereby any transaction concerning transfer of a capital asset or intangible asset by a Private Company or unlisted Public Company to a Limited Liability Partnership as a result of conversion of the company into a Limited Liability Partnership in accordance with the provisions of section 56 or section 57 of the Limited Liability Partnership Act, 2008 would be 

exempted from the provision of Capital Gain Tax, only if the following conditions are satisfied: 

1. All the assets and liabilities of the Company immediately before the conversion shall become the assets and liabilities of the limited liability partnership;
2. All the shareholders of the Company immediately before the conversion shall become the partners of the limited liability partnership and their capital contribution and profit sharing ratio in LLP should remain in the same proportion as their shareholding in the company on the date of conversion; 

3. The shareholders of the company do not receive any consideration or benefit, directly or indirectly, in any form or manner, other than by way of share in profit and capital contribution in the limited liability partnership; 

4. The aggregate of the profit sharing ratio of the shareholders of the company in the LLP shall not be less than fifty per cent at any time during the period of five years from the date of conversion; 

6. The total sales, turnover or gross receipts in business of the company in any of the three previous years preceding the previous year in which the conversion takes place does not exceed sixty lakh rupees; and  
7. No amount is paid, either directly or indirectly, to any partner out of balance of accumulated profit standing in the accounts of the company on the date of conversion for a period of three years from the date of conversion.
8. However in case of non-compliance of any of the conditions provided as aforesaid, the amount of profits or gains arising from the transfer of such capital asset or intangible asset not charged under section 45 by virtue of conditions laid down in the said provision shall be deemed to be the profits and gains chargeable to tax of the successor limited liability partnership for the previous year in which the requirements of the said proviso are not complied with.” 
9. Where a private company or unlisted public company is converted into limited liability partnership in any previous year, the MAT credit which was available to the company shall lapse.

The steps for conversion: 

1. To decide upon as who shall be Designated Partners among the Partners. One of them should be a Resident Indian; 

2. Convene a Board Meeting and pass a Board resolution for seeking name availability, and making an application to the Registrar of Companies/LLP, for availability of name of the LLP 

3. Convening of EGM for obtaining the approval of the members for the proposed conversion of the Company to LLP. 

4. Drafting of LLP agreement. 

5. Sign various documents to be filed with the Registrar of Companies/LLP, electronically, and payment of requisite fee to Ministry of Corporate Affairs. 

6. Scrutiny of documents by the Registrar of Companies/LLP [ROC], and Receipt of Certificate of Registration/Incorporation from ROC. 

7. Intimation to ROC about the conversion of the Company to LLP, for dissolution of the Company. 

8. Execution of the LLP agreement on the date of registration of the LLP, payment of stamp duty on the agreement, and filing of the agreement with Registrar of Companies/LLP. 

9. Obtaining registrations, as applicable, depending upon the activities of the company. 

STEPS FOR CONVERSION IN DETAIL:

1. Deciding upon the Designated Partners: 

Firstly, it is to be decided, as to who will be Designated Partners of the LLP after its conversion. The shareholders can decide up on as to whom among them shall be Designated partners. Further the Directors who may or may not be the Shareholders of the Company, may also be appointed as Designated partners, if the shareholders desire so. 

2. Name Approval of the LLP: 

For name availability, an application in LLP Form-1, is required to be filed along with the Resolution of the Board of Directors for proposed conversion of the company to LLP, with the Registrar of Companies/LLP (ROC/LLP) online. 

The format in which names allotted are: 

Existing Company name: XYZ SOFTWARE TECHNOLOGIES PRIVATE LIMITED 

LLP Name: XYZ SOFTWARE TECHNOLOGIES LLP 

(or) 

XYZ SOFTWARE TECHNOLOGIES LIMITED LIABILITY PARTNERSHIP 

The ROC/LLP scrutinizes the application filed and sends the approval or objections to the applicant through e-mail.

3. Convening of EGM:

Consequent upon receipt of the LLP name, an Extra-ordinary General Meeting of the members of the Company is required to be convened for obtaining the approval of the members for the proposed conversion. 

Resolutions are required to be passed and filed with ROC in Form MGT-14 

4. Drafting of the LLP Agreement: 

After the approval of name, we need to finalize the LLP agreement. 

All the points which the parties intend to have in their LLP agreement shall be expressly included in the agreement, as the same will be replacing the MOA/AOA of the Company upon conversion. 

5. Documents required for Conversion: 

The under mentioned documents are required to be filed with ROC for conversion of Company to LLP: 

Subscribers list along with Consent - The Subscription should be signed by the proposed Partners/Designated Partners and all the basic details as to name, father's name, Address, Date of Birth and Occupation, shall be written in their own handwriting in the presence of a witness. The subscribers sheet shall also contain the statement as to their consent to act as partner/Designated partner of the LLP. 

Proof of Registered office - A proof as to the proposed registered office address of the LLP shall be attached to the incorporation documents. A no-Objection shall be obtained from the Owner of the property and attached for use of the premises as the registered office of the LLP. 

Details of Interests – The details as to the other entities i.e., Companies/LLP/Firms etc., in which the proposed Partners/Designated Partners needs to be obtained and attached to the incorporation document. 

LLP Form 2 – Incorporation document – The LLP Form 2 containing all the details as to the partner/designated partner, their contribution, address of the registered office, the documents detailed above, is to be prepared, and filed with the Registrar of Companies/LLP, and pay the requisite fees depending upon the contribution of the LLP. 

It is to be noted that the paid-up share capital in the Company shall be the contribution of the LLP, and the nominal value of the shares held by the individual shareholders shall be their contribution to the LLP. 

LLP Form 18 - Application and Statement for conversion of a private company / unlisted public company into LLP – This application consists of all the details as to the conversion, pending cases, proceedings, etc.,. To this form, the following documents are to be attached. 

1. Statement from Shareholders- to be obtained individually from all the Shareholders as below: 

• that all the requirements of the Limited Liability Partnership Act, 2008 and the rules made thereunder have been complied with, in respect of conversion of private company/ unlisted public company into limited liability partnership and matters precedent and incidental thereto;
• that all the partners of the limited liability partnership comprise all the shareholders of the company and no one else; 
• that the applicable clearances, approvals or permissions for conversion of the company into a limited liability partnership from any authority/ authorities have been obtained.
• that the consent of all the secured creditors for conversion of the company into limited liability partnership has been obtained;

• that all the documents due for filing including latest balance sheet and annual return have been filed under the provision of the Companies Act, 1956; 

• that to the best of my knowledge and belief, the information given in this form and its attachments is correct and complete. 

1. Statement of Assets and Liabilities of the company duly certified as true and correct by the auditor, not older than 15 days from the submission of the statement. 

1. Copy of the acknowledgement of the Latest Income Tax Return 

1. Consent from any secured creditors for the proposed conversion. 

1. Any such other document as required and appropriate.

6. Scrutiny of the documents: 

After scrutinizing the documents and after being satisfied himself, the Registrar of Companies/LLP, issues a Certificate of Registration/Incorporation, after which the LLP legally comes into existence. 

7. Intimation to ROC about the conversion of Company to LLP: 

Subsequent upon the registration/conversion of the Company into LLP, Form No.14, is to be filed with the Registrar of Companies within 15 days of the registration, intimating the ROC about the conversion, so as to enable the ROC for dissolving the Company consequent upon conversion to LLP. 

8. Execution of the LLP agreement, payment of stamp duty on the agreement, and filing of the agreement with Registrar of Companies/LLP: 

On receipt of the LLP registration Certificate, the partners shall enter in to the LLP agreement, pay necessary stamp duty on the agreement, and electronically, file the agreement with the Registrar of Companies/LLP in LLP Form-3. 

Finally 

9. Applying of PAN, opening of bank account, obtaining necessary registrations/getting necessary changes in the registrations and proceeding with the business activities. 

Conclusion 

With the increased compliances and the onus of timely guidance to clients, being rested on us, LLP is definitely an option for small business and definitely the way ahead.

This article is contributed by Partners of SBS and Company LLP - Chartered Accountant Company. You can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it.