TIOL-DDT 2509
02 01 2015
Friday

IN DDT 2432 - 08.09.2014, we carried the story of the ITAT coming down heavily on CAs. The year 2014 did not end rather well for the Chartered Accountants. In a Judgement delivered on 31 st December 2014, the ITAT had some real harsh words for the CAs to ponder over the New Year.

The Tribunal observed,

………..certifications by the chartered accountants inspire no confidence and, quite to the contrary, raise doubts about efficacy of the built in checks and balances in transfer pricing regulations.

It is somewhat fashionable to criticize the revenue authorities for their lack of objectivity or even inefficiency but what in the world can justify such a pathetic level of professional work relied upon by even the large corporate entities. If the tax judicial system is clogged by frivolous litigation today and if the tax finality still takes decades to reach, these saviours of taxpayers are as much to be blamed for this situation as anybody else.

No purpose can be served in reporting by a chartered accountant when such reports do not even point out glaring infirmities in taxpayer's approach vis-a-vis the transfer regulation, in a comparison of budgeted profits margin with actual profit margins realized by the comparables which is stated to be ascertainment of ALP on the basis of the TNMM.

It appears that in an alarming number cases, these audit reports, rather than painting a true and fair picture of the relevant facts, tend to epitomize the art of constant hedging and manoeuvring by the professionals so as they stay within the confines of permissible professional conduct and are yet able to sidestep the inconvenient realities. Of course, it will be much worse a situation if they are actually so naive as to be oblivious of simple provisions of law, of their onerous responsibilities or of the legitimate public expectations. It is not to belittle the brilliant work being done by many a professionals but it is just to point out the dilemma of those who explore the possibilities of relying upon such audit reports and certifications, and also the inertia of those who can do something to salvage this situation and, to thus avoid an inevitable systemic rejection of the ritualistic certifications.

Please see 2015-TII-02-ITAT-DEL-TP

CA vs CAG

IN its Report No. 32 of 2014 (Performance Audit), submitted to Parliament recently, the CAG observed,

The CAs are regarded as facilitators for the Income Tax Department (lTD) in administering the provisions of the Act correctly. The Tax Audit Reports (TARs)/certificates issued by them serve as a valuable reference guide to the Assessing Officers (AOs) while making assessments .

CAG found cases where the CAs failed to report full and correct information in 367 cases leading to short levy of taxes of Rs. 2,813.11 crore.

Some of the important audit findings:

a. Tax auditors failed to give correct information relating to allowance of depreciation in 66 cases involving short levy of tax of ­ 457.79 crore

b. Tax auditors did not report correct information regarding brought forward loss/depreciation resulting in irregular brought forward loss/depreciation allowance in 46 cases involving short levy of tax of ­ 557.79 crore.

c. In 42 cases personal/capital expenditure was incorrectly allowed as the tax auditors did not report the amount in their tax audit reports which resulted in short levy of tax of ­ 477.89 crore.

d. CAs have certified wrong information/claims for various exemptions and deductions in 74 cases having tax effect of ­ 259.72 crore.

e. CAs gave incorrect/incomplete information in TARs/certificates in 132 cases having a revenue impact of ­ 1,037.61 crore.

Audit also found in another 616 cases where CAs committed mistakes viz. in allowance of exemption/deductions, charging of tax on Book Profit under Section 115JB, adoption of Arm's Length Price and reporting on cash payments exceeding Rs. 20,000 per day.

Regarding monitoring of work of CAs and ensuring quality tax audit, ICAI issued guidance to its members for limiting the tax audit assignments in a financial year. There is a limit of 45 tax audits that a CA can undertake in a Financial Year. (It is 60 from FY 2014-15). Audit found that 18.87 per cent of CAs (12,435 CAs) for AY 2013-14 issued more tax audit reports than prescribed by ICAI. One CA took up 2471 TARs in AY 2013-14.Audit also found cases where CAs did not mention their membership numbers. lTD did not refer any case for professional negligence to ICAI for taking action against erring CAs in terms of Section 288 of the Act. Audit found that non-adherence to various provisions of the Act by CAs led to deny proper dues to the Government.

CAG even mentioned the names and addresses of several Chartered Accountants who failed in their professional duties.

Excise duty hiked on Petrol & High Speed Diesel… again

THE Central Government has again increased the Excise duty on Motor Spirit (Petrol) & High Speed Diesel by Rs.2/- per litre with effect from today. This is the third hike in two months.

This hike is not to inflate the sagging excise revenue collections. This hike is in order to fund the ambitious infrastructure development programme of the Government, particularly the building of 15000 kms of roads, during current and next financial year. Government believes that allocation of these resources to the road sector will also spur economic activity and employment generation arising from the road construction sector.

Notification No. 01/2015-Central Excise., Dated: January 01, 2015

Customs - New Exchange Rates from Today

CBEC has notified new exchange rates for Imported Goods and for Export Goods with effect from 02 January 2015. The US Dollar is 63.80 rupees for imports and 62.75 rupees for exports.

The Exchange rates were last notified on 18th December 2014.

Notification No.01/2015 - Cus.,(N.T.), Dated: January 01, 2015

FTP - Import Policy regime of Radio Navigation Equipment

GOVERNMENT has amended the Import Policy regime of Radio Navigation Equipment to stipulate that no license is required for import of GSM/CDMA based vehicle tracking system having a valid International Mobile Station Equipment Identity (IMEI) / Electronic Serial Number (ESN) / Mobile Equipment Identifier (MEID) number.

DGFT Notification No.105(RE-2013)/2009-14, Dated: January 01, 2015

FTP - Import Policy regime for Insecticides

GOVERNMENT has inserted a new Policy Condition in Chapter 38 of ITC (HS), 2012 - Schedule - 1 (Import Policy):

"3. Under Section [9] of the Insecticides Act, 1968 all chemicals intended to be used as insecticides, rodenticides, fungicides, herbicides etc. [referred to as ‘insecticides' under the Act] require mandatory registration for import. In cases, where the ‘insecticide' is imported for non-insecticidal purpose, an import permit is necessary from the Registration Committee under the Department of Agriculture and Cooperation. The Registration Committee while granting registration or a permit for import of an insecticide spells out the conditions for import which inter alia, may include reference to the source of import. No ‘insecticide' can be imported from a source other than that specified on the certificate of registration or the permit, as the case may be. In addition, the Registration Committee may issue regulatory guidelines from time to time with respect to safety, efficacy, quality etc. which warrant full compliance from importers."

DGFT Notification No.106(RE-2013)/2009-14, Dated: January 01, 2015

Companies (Cost Records and Audit) Rules, 2014 - Amended

GOVERNMENT has amended the Companies (Cost Records and Audit) Rules, 2014.

‘Central Excise Tariff Act Heading' has been defined as the heading as referred in the Additional Notes in the First Schedule to the Central Excise Tariff Act.

Cost records are mandatory for companies engaged in production of certain goods and providing services mentioned in the Table.

Cost Audit mandatory if turnover exceeds Rs. 25 crores.

Any vacancy in the office of cost auditor shall be filled by the Board within thirty days under intimation to the Government.

Ministry of Corporate Affairs Notification Dated:December 31, 2014

2014 - The Year of Challenges and Reforms - Arun Jaitley

FINANCE Minister Arun Jaitley says,

2014 was one of the most challenging years for India. For two consecutive years our GDP growth was sub 5 per cent. Employment generation had declined, the revenue buoyancy was low and the country had become investment starved.

Reforms by Government:

Building a national consensus and introducing a bill to amend the constitution to implement the Goods and Services Tax (GST).

Opening the gates of investment by raising FDI limits in the insurance, defence and the railways. The FDI conditions in real estate have been liberalised.

Deregulation of diesel prices and facilitating the opening up of petrol and diesel sector to private investment.

Rationalizing tax management to end the image of India having an ultra-aggressive tax policy.

Resolving of pending disputes through appropriate mechanisms so that our tax structures do not become a disincentive against investments.

Giving major tax rebates to the manufacturing sectors which is facing a slowdown.

Amending the provisions of the Companies Act to add to the ease of doing business in India.

Despite major reforms steps taken, there are still challenges which the Indian economy faces. Investment needs to be enhanced and encouraged. Infrastructural spending has to be stepped up. Manufacturing sector has to be given a major push. This has to be done both through encouraging public and private investment. This is our resolve for the upcoming year .

Car buyers may not agree.

Glimpses of 2014 - Railway Board Chairman driving a fire engine

THIS fire engine is a hundred years old and belonged to the Nizam; now it is part of the Rail Museum. Driving it through the streets of Delhi is the former Chairman of Rail Board Arunendra Kumar.

Jurisprudentiol-Monday's cases

Income Tax

Income tax - Whether when royalty agreement clearly states that no proprietory interest shall be transferred to assessee with respect to any service being rendered by licensor, even then sum paid is to be treated as capital in nature - NO: HC  

THE issue before the Bench is - Whether when the royalty agreement clearly states that no proprietory interest shall be transferred to the assessee with respect to any service being rendered by the licensor, even then the sum paid is to be treated as capital in nature. NO is the answer.

Customs

Cus - CA issuing false certificate for an undisclosed consideration thereby facilitating M/s Elit to import goods under advance authorisation without any bank guarantee & which goods were diverted into local market - act of aiding and abetting M/s Elit to evade customs duty rightly attracts penalty - Appeal dismissed: CESTAT

M/S Elit imported polyester knitted fabrics under DEEC scheme. For issuance of the DEEC certificate from DGFT, the appellant issued a Chartered Accountant certificate. Those certificates were taken as evidence of the financial turn-over for the purpose of issue of licence.

See our Columns Monday for the judgements

Until Monday with more DDT

Have a nice weekend.

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