/ Accounting Services

Schedule II of Companies Act, 2013

Schedule II of Companies Act, 2013

Section 123 of the Companies Act, 2013 requires every company to provide depreciation in accordance with the provisions of Schedule II.  This section has come into force with effect from 1st April 2014 implying that the Companies will be required to compute depreciation in their financial statements for the year closing on 31st March 2015 in accordance with Schedule II.
In Companies Act, 1956, Section 205, required every company to provide for depreciation in accordance with Schedule XIV.

A. Major Changes:

  • In old Act, SLM and WDV rates were prescribed, while in new Act, useful life of assets have been prescribed.
  • In old Act, assets were grouped according to the rates prescribed, in new Act, the assets have been grouped according to its nature and industry.
  •  In old Act, there was no mention in case a company wishes to apply higher or lower rates than given in the Schedule. However, the Accounting Standard has stated that company may choose to apply higher rate but it cannot be lower than the rates given in the Act. In new Act, it is given that ‘ordinarily’ the useful life of an asset shall not be different from the useful life given in the schedule. Originally, the word used was ‘longer’ which has been replaced with the word ‘different’. It implies that the useful life may be longer or shorter than given in the Act. In case, the useful life adopted is different from the useful life given in the Act, a justification is to be given which shall also be duly supported by technical advice. Originally, only justification was to be disclosed, but it has been amended that it ought to be supported by technical advice.
  • As regards residual value, there was no mention in schedule of the old Act. But, if we compare the rates given for WDV and SLM we can derive that those rates have been worked out taking 5% as the residual value. Section 205(2)(b) of the old Act also give a clue that a company was required to write off  95% of the  original cost on the expiry of the specified period. In the new Act also, it is provided that residual value shall not be more than 5% of the original cost. In case, a company takes lesser or more than 5% as residual value, it has to justify with technical support. It implies that a company may take residual value other than 5% if it can be justified.
  • New Schedule II also defines depreciation, depreciable amount and useful life as under:

Depreciation is the systematic allocation of the depreciable amount of an asset over its useful life. The depreciable amount of an asset is the cost of an asset or other amount substituted for cost, less its residual value.the useful life of an asset is the period over which an asset is expected to be available for use by an entity, or the number of production or similar units expected to be obtained from the asset by the entity.

It does not define the term ‘residual value’. AS-6 on Depreciation in para 10 states as under:

“Determination of residual value of an asset is normally a difficult matter. If such value is considered as insignificant, it is normally regarded as nil. On the contrary, if the residual value is likely to be significant, it is estimated at the time of acquisition/installation, or at the time of subsequent revaluation of the asset. One of the bases for determining the residual value would be the realisable value of similar assets which have reached the end of their useful lives and have operated under conditions similar to those in which the asset will be used.”

B. Impact of Change

With the change in concept, in the first of year of change i.e. the current year each company will have to work out the useful life of each of the asset, whether it is more or less as given in Schedule II, the remaining of the useful life, carrying amount as on the last day of the previous year. The rate of the depreciation to be applied to each of the assets depending upon its remaining useful life will be required to be worked out.

C. Comparison 

In the table below, useful life based on rates given in Schedule XIV of the 1956 Act and rates based on useful life given in Schedule II of the 2013 Act, has been given in respect of only those items where there is variation. (more…)

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Summary of changes made in Passed Finance Bill, 2015

Summary of changes made in Passed Finance Bill, 2015.

On April 30, 2015, the Lok Sabha passed the Finance Bill. The Bill which was presented originally in the Lok Sabha on February 28, 2015 is not passed in its original shape. Various changes have been made in the Bill. New amendments are proposed, some proposed amendments are removed, so on and so forth. A gist of all changes made in the Finance Bill, 2015 as passed by the Lok Sabha viz-a-viz the Finance Bill, 2015 as presented in the Lok Sabha are presented here.

MAT exemption extended to foreign companies.

The Finance Bill, 2015 presented originally proposed that long-term capital gains and short-term capital gains (on which STT is paid) arising to FIIs would be excluded from the chargeability of MAT. Further, expenditures, if any, debited to the profit and loss account, corresponding to such income would also be added back to the book profit for the purpose of computation of MAT.

Thus, the Finance Bill, 2015 proposed to provide relief from MAT only to FIIs without extending such relief to foreign companies. The foreign company would be liable to pay MAT on capital gains arising from transfer of securities and income arising from royalty, interest or FTS even if such income would not be chargeable to tax or taxable at lower rate in India by virtue of applicable double taxation avoidance agreements (‘DTAA’)or any provision of the Income-Tax Act.

The impact of such proposal would be that foreign companies would be liable to pay MAT even on that income which was exempt from tax by virtue of DTAAs or Income-tax Act.

Therefore, the Finance Bill, 2015 as passed by Lok Sabha proposes to provide relief from MAT to foreign companies as well.

Capital gains from transfer of securities, interest, royalty and FTS accruing or arising to foreign company has been proposed to be excluded from chargeability of MAT if tax payable on such income is less than 18.5%. Further, expenditures, if any, debited to the profit loss account, corresponding to such income shall also be added back to the book profit for the purpose of computation of MAT.

MAT exemption on notional gain arising on transfer of share of SPV.

The Finance (No. 2) Act, 2014 inserted clause (xvii) in Section 47 to provide that transfer of share of special purposes vehicle (‘SPV’) to a business trust in exchange of units allotted by that trust to the transferor shall not be regarded as transfer, thus, no capital gain would arise on such transaction.

The Finance Bill, 2015 as passed by Lok Sabha proposes to exclude the following from the chargeability of MAT:

  • Notional gain resulting from transfer of shares of SPV to a business trust in exchange of units allotted by that trust;
  • Notional gain resulting from any change in carrying amount of said units; and
  • Actual gains from transfer of said units.

A new clause is proposed to be inserted to re-compute the gains from transfer of said units (as referred to in point (c) above) which shall be added back for computation of MAT. It is proposed that the amount of gain from transfer of said units shall be computed by taking into account the cost of shares exchanged with units or the carrying amount of the shares at time of exchange where such shares are carried at a value other than the cost through profit & loss account.

Accordingly, notional loss arising from transfer of asset or notional loss arising from change in carrying amount of said units and actual loss from transfer of said units shall be added back to the book profit for the purpose of computation of MAT.

A new clause is proposed to be inserted to re-compute the loss from transfer of said units which shall be reduced from the book profit. It is proposed that the amount of loss from transfer of said units shall be computed by taking into account the cost of shares exchanged with units or the carrying amount of the shares at time of exchange where such shares are carried at a value other than the cost through profit & loss account.

Deduction under Section 80D in case of individual.

The Finance Bill, 2015 as presented originally omitted to propose amendment to clause (a) and clause (b) of sub-section (2) of Section 80D to enable assessee to claim deduction of Rs. 25,000 instead of Rs. 15,000. However, sub-section (4) of Section 80D was amended to allow deduction of Rs. 30,000 instead of Rs. 25,000 if individual or his family member or any of his parent is a senior citizen or very senior citizen.

Accordingly, it is proposed in the Finance Bill, 2015 as passed by the Lok Sabha that the existing deduction of Rs. 15,000 shall be substituted with Rs. 25,000. The following table highlights the deduction available to an Individual under Section 80D:

Deduction in respect of Individual and his family(none of them is a senior citizen) Parents of Individual(none of them is a senior citizen) Individual and his family(if senior citizen or very senior citizen) Parents of Individual(if senior citizen or very senior citizen)
(a) (b) (c) (d)
  ■  Health Insurance 25,000 25,000 30,000 30,000
  ■ Contribution to CGHS 25,000 – 25,000 –
 ■  Preventive health check-up 5,000 5,000 5,000 5,000
  ■  Medical expenditure if no amount is paid in respect of health insurance – – 30,000(only in case of very senior citizen) 30,000(only in case of very senior citizen)
Maximum Deduction 25,000 25,000 30,000 30,000

Note: Deduction for preventive health check-up of assessee, spouse, dependent children and parents shall not exceed in aggregate Rs 5,000.

  • Maximum deduction, if individual or any member of his family or any of his parent is not senior or very senior citizen: Rs. 50,000 [(a) + (b)]
  • Maximum deduction if individual or any member of his family is not senior citizen but any of his parent is a senior citizen or very senior citizen: Rs. 55,000 [(a) + (d)]

Maximum deduction if individual or any member of his family and any of his parent is senior citizen or very senior citizen: Rs. 60,000 [ (c) + (d)]

Residential Status of a Company.

The Finance Bill, 2015 as presented earlier proposed to amend Section 6 to provide that a company shall be said to be resident in India if its place of effective management, at any time in that year, is in India. In other words, the concept of Control or Management (wholly in India) is replaced with Place of Effective Management (at any time in India).

The amendment proposed in the original Finance Bill, 2015 might have caused difficulty in establishing the place of effective management as a company might have place of effective management in more than one country at any point of time during the year.

Thus, the Finance Bill, 2015 as passed by the Lok Sabha has proposed to omit the words ‘at any time’ which shall have effect that a company shall be deemed to be resident in India if its place of effective management is in India

Filing of return is mandatory if assessee has foreign assets.

The Finance Bill, 2015 as passed by the Lok Sabha has proposed mandatory filing of return by a person, being a resident other than not ordinarily resident in India, who at any time during the previous year:

  • Holds, as a beneficial owner or otherwise, any asset (including financial interest in any entity) located outside India or has signing authority in any account located outside India; or
  • Is a beneficiary of any asset (including any financial interest in any entity) located outside India.

However, filing of return shall not be mandatory under this proviso for an individual, being a beneficiary of any asset (including any financial interest in any entity) located outside India, if income arising from such an asset is includible in the income of the person who is beneficial owner of such an asset. (more…)

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REGISTRATION OF A COMPANY BY FILING JUST ONE FORM – OFFICIAL AMENDMENTS IN THE COMPANIES (AMENDMENT) BILL, 2014 ( INC-29: STARTING MAY 2015,)

REGISTRATION OF A COMPANY BY FILING JUST ONE FORM – OFFICIAL AMENDMENTS IN THE COMPANIES (AMENDMENT) BILL, 2014 ( INC-29: STARTING MAY 2015) 

The Union Cabinet chaired by the Prime Minister, Shri Narendra Modi, today gave its approval for moving of the following Official Amendments in the Companies (Amendment) Bill, 2014 :-

  • Doing away with the requirement for filing a declaration by a company before commencement of business or exercising its borrowing powers and
  • rationalizing the procedure for laying draft notifications granting exemptions to various classes of companies or modifying provisions of the Act in Parliament, in order to ensure speedier issue of final notifications.

These Official Amendments will address issues related to ease of doing business and put in place a speedier process for approval of draft notifications for providing exemptions etc. from specific provisions of the Act to a class of companies.

INC-29:  Starting May 2015, Registration of a company by filing just one form.

As one of the biggest reform in the process of setting up company in India, MCA recently in its webcast announced the introduction of a new e-form INC-29, for filing application for registering a company. So now instead of filing e-forms DIN-3, INC-1, INC-7/2, INC-22 & DIR-12, we can only file form INC-29. It is a single form in place of 5 forms. The e-form is scheduled to be introduced w.e.f 1st May 2015.

It is to be noted that with the introduction of INC-29, the existing e-forms i.e. DIN-3, INC-1, INC-7/2, INC-22, DIR-12, will continue to function as it is. The single form facility will be in addition to the current process of registering a company.

Apart from e-form 29, MCA is also going to introduce e-form 30 & 31 for filing Memorandum of Association & Articles of Association.

So now a company can be registered in the following 2 ways:

1st Option- the regular route: 2nd option- the faster route
Filings:

  • Apply for Director Identification Number (DIN) for Directors vide DIR-3
  • Check for name availability vide INC-1
  • File details of promoters, directors and registered office in form INC-7/2, INC-22 & DIR-12
  • Fees: Normal registration fees for each form
 Filings:

  • File a single form i.e. INC-29 for the following;§  Application for applying DIN for maximum 3 Directors§  Application for Name availability (for single name only)§  Application for company registration.
  • For furnishing details of Directors and registered office
  • Fees: Normal registration fees for each form + Rs 2000
 

(more…)

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Companies (Amendment) Bill, 2014

Companies (Amendment) Bill, 2014 The Union Cabinet  today gave its approval for moving of the following Official Amendments in the Companies (Amendment) Bill, 2014 :- Doing away with the requirement for filing a declaration by a company before commencement of business or exercising its borrowing powers and rationalizing the procedure for laying draft notifications granting exemptions …

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/ Company Law Compliances

Mere liquidation of shares in short span of time doesn’t mean that assessee was doing business in shares

Mere liquidation of shares in short span of time doesn’t mean that assessee was doing business in shares Section 45, read with section 28(i), of the Income-tax Act, 1961 – Capital gains- Chargeable as – Business income vs Capital gains – Shares dealings Circulars and Notifications: Circular No. 4/2007, dated 15-6-2007. Where assessee made investment in …

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/ DTAA

Section 37(1) of the Income-tax Act, 1961 – Business expenditure – Allowability of Compensation

AO couldn’t question reasonableness of business exp. when its genuineness wasn’t doubted. Where assessee made payment of compensation to CCL, a foreign company, for premature termination of Toll Manufacturing Agreement (TMA) entered into between parties, said payment being directly having nexus with business activity of assessee, was to be allowed as deduction under section 37(1) …

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BASIC ABOUT NON RESIDENT INDIANS UNDER FEMA AND INCOME TAX :-

BASIC ABOUT NON RESIDENT INDIANS UNDER FEMA AND INCOME TAX :–

An Indian Citizen who stays abroad for:-

  • Employment/ carrying on business or,
  • Vacation outside India or,
  • Stays abroad under circumstances indicating an intention for an uncertain duration of stay abroad is a non-resident.  Persons posted in U.N. organizations and officials deputed abroad by Central/ State Government and Public Sector Undertakings on temporary assignments are also treated as non-resident.

Non-resident foreign citizens of Indian Origin are treated on par with non-resident Indian citizens.

Who is a person of Indian Origin?

For the purpose of availing of the facilities of opening and maintenance of bank accounts and investments in shares/securities in India:-

A foreign citizen (other than a citizen of Pakistan or Bangladesh) is deemed to be of Indian origin, if

  • He, at any time, held an Indian passport
  • He or either of his parents or any of his grandparents was a citizen of India but virtue of the Constitution of India or Citizenship Act, 1956(57 of 1955).

A spouse( not being a citizen of Pakistan or Bangladesh ) of an Indian citizen /Indian origin is also treated as a person of Indian origin provided the Bank accounts are opened or investments in shares/securities in India are made by such persons jointly with their NRI spouses.

For Investment in immovable properties:-

A foreign citizen (other than a citizen of Pakistan, Bangladesh, Afghanistan, Bhutan, Sri lanka or Nepal), is deemed to be of Indian origin if,

  •  He held an Indian passport at any time,OR
  • He or his father or paternal grand-father was a citizen of India by virtue of the Constitution of India or the Citizenship Act, 1955 (57 of 1955).

Non resident Indians under income tax act :–

The laws in this regard are quite complicated as these it  does not  define who is nonresident. Rather these define who is resident and who are not ordinarily resident.  Therefore, if a person does not fall in the category of resident or not ordinarily resident, he / she will be non-resident.

Residential status of an individual or HUF or a company is of great importance in Indian Income Tax Act as the liability to pay tax in India does not depend on the nationality or domicile of the Tax payer but on his residential status. Residential Status is determined on the basis of physical presence i.e. the number of days of stay in India in any year. There are three types of status based on the stay in India:-

Resident:

An individual is resident if any of the following conditions are satisfied:

  • He stayed in India for 182 days or more during the previous year, or
  • He stayed in India for 365 days or more during the four preceding years and stays in India for at least 60 days 9 182 days in case of an Indian citizen or a person of Indian Origin coming on a visit to India or 182 days in case of an Indian citizen going abroad for an employment) during the previous year.
  • Stay in India for the above criteria may be continuous or intermittent. 
  • Hindu Undivided Family (HUF) or firm or other Association of persons is resident of India except in cases where the control and management of its affairs is wholly situated outside India in the previous year

 A company is resident in India if:-

  • It is an Indian company, or
  • During the previous year, the control and management is situated wholly in India.
  • A person resident in India, in a previous year in respect of any source of income shall be deemed to be resident in India in respect of his other sources of income.

Non-Resident

A person is non-resident if he is not resident in India.

Resident but not ordinarily resident

An individual or an HUF is treated to be not ordinarily resident in India in any previous year if he or the manager of HUF:-

  • Has not been resident in India in 9 out of 10 previous years preceding the previous year; or
  • Has not during the seven previous years preceding that year, been in India for a period of or periods amounting in all to 730 days or more.

Thus according to condition in clause (a) a newcomer to India would remain not ordinarily resident in India for the first 9 years of his stay in India. Similarly, in case where a person who is resident in India goes abroad and ceases to be resident in India for at least 2 years, he would upon his return, be treated as, not ordinarily resident for the next 9 years.

How the residential status of a person is determined:–

In case of Indian citizen who leaves Indian during previous year for the purpose of employment :-

Such a person is resident in India if he satisfies the following conditions:-

  • He stays in India for at least 182 days during the previous year.
  • He is resident in India for at least 9 out of 10 years proceeding the previous year.
  • He is resident in India for at least 730 days during 7 years proceeding the previous year.
  • If such a person satisfies condition (a) but does not satisfy either of the conditions at (b) or (c) above, such a person would be resident but not ordinarily resident.

Such person would be non-resident if he does not satisfy condition (a) stated above. (more…)

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Managerial Remuneration in a Company -2 [SCHEDULE XIII] (See section 198, 269, 310 and 311)

Managerial Remuneration in a Company -2 [SCHEDULE XIII] (See section 198, 269, 310 and 311)

[SCHEDULE XIII]

(See section 198, 269, 310 and 311)

Condition to be fulfilled for the appointment of a managing or whole-time director or a manager with out the approval of the Central Government

[PART I]

Appointments

No person shall be eligible for appointment as a managing or whole-time director or a manager (herein after referred to as marginal person) of a company unless he satisfies the following conditions, namely:-

(a) He had not been sentenced to imprisonment for any period, or to a fine exceeding one thousand rupees, for the conviction of an offence under any of the following Acts, namely: –

  • The Indian stamp Act, 1899 (2 of 1899),
  • The Central Excise and Salt Act, 1944 (1 of 1944),
  • The Industries (Development and Regulation) Act, 1951 (65 of 1951),
  • The Prevention of Food Adulteration Act, 1954 (37 of 1954),
  • The Essential Commodities Act, 1955 (10 of 1955),
  • The Companies Act, 1956 (1 of 1956),
  • The Securities Contracts (Regulation) Act, 1956 (42 of 1956),
  • The Wealth Tex Act, 1957 (27 of 1957),
  • The Income Tax Act, 1961 (43 of 1961),
  • The Custom Act, 1962 (52 of 1962),
  • The Monopolies and Restrictive Trade Practices Act, 1969 (54 of 1969),
  • The Foreign Exchange Regulation Act, 1973 (46 of 1973),
  • The Sick Industrial Companies (Special Provisions) Act, 1985 (1 of 1986),
  • The Securities and Exchange Board of India Act, 1992 (15 of 1992),
  • The Foreign Trade (Development and Regulation) Act, 1992 (22 of 1992),

(b) He had not been detained for any period under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (52 of 1974);

Provided that where Central Government has given its approval to the appointment of a person convicted or detained under sub-paragraph (a) or sub-paragraph (b). as the case may be, no further approval of the central government shall be necessary for the subsequent appointment of that person if he had not been so convicted or detained subsequent to such approval;

(c) He has completed the age of 25 years and has not attained the age of 70 years:

Provided that where-

  • He has not completed the age of 25 years, but has attained the age of majority; or
  • He has attained the age of 70 years; and where his appointment is approved by a special resolution passed by the company in general meeting, no further approval of the Central Government shall be necessary for such appointment

(d) Where he is a managerial person in more than one company he draws remuneration from one or more companies subject to the ceiling provided in section III of Part II;]

(e) He is resident in India.

Explanation 2[I]. – For the purpose of this Schedule, resident in India

Includes a person who has been staying in India for a continuous period of not less than twelve months immediately preceding the date of his appointment as a managerial person and who has come to stay in India, –

  •  For taking up employment in India, or
  • for carrying on a business or vocation in India.

3 [Explanation II. – This condition shall not apply to the companies in Special Economic Zones as notified by Department of Commerce from time to time.

Provided that a person, being a non-resident in India shall enter India only after obtaining a proper employment visa from the concerned Indian mission abroad. For this purpose, such person shall be required to furnish, along with the visa application form, profile of the Company, the principal employer and terms and conditions of such person’s appointment.]

PART II

Remuneration

Section I. – Remuneration payable by companies having profits

Subject to the provisions of section 198 and section 309, a company having profits in a financial year may pay any remuneration, by way of salary, dearness allowance, perquisites, commission and other allowances, which shall not exceed five percent of its net profits for one such managerial person, and if there is more than one such managerial person, ten percent for all of them together.

Section II. – Remuneration payable by companies having no profits or inadequate profits.

1[I. Notwithstanding anything contained in this Part, where in any financial year during the currency of tenure of the managerial person, a company has no profits or its profits are inadequate, it may pay remuneration to a managerial person by way of salary, dearness allowance, perquisites and any other allowances-

(A) not exceeding the ceiling limit of Rs. 2400000 per annum or Rs. 200000 per month calculated on the following scale:-

Where the effective capital  Of Company is Monthly remuneration payable shall not exceed (Rupees)

  • less than rupees 1 crore                                                            75000
  • rupees 1 crore or more but less than rupees 5 crores        100000
  • rupees 5 crores or more but less than rupees 25 crores    125000
  • rupees 25 crores or more but less than rupees 50 crores  150000
  • rupees 50 crores or more but less than Rupees 100 crs   175000
  • rupees 100 crores or more                                                      200000

Provided that the ceiling limits specified under this sub paragraph shall apply, if –

  • payment of remuneration is approved by a resolution passed by the Remuneration Committee;
  • the company has not made any default in repayment of any of its debts (including public deposits) or debentures or interest payable thereon for a continuous period of thirty days in the preceding financial year before the date of appointment of such managerial person.

(B)Not exceeding the ceiling limit of Rs. 4800000 per annum or Rs. 400000 per month calculated on the following scale:-

Where the effective capital   Of Company is Monthly remuneration Payable shall not exceed (Rupees)

  • Less than rupees 1 crore                                                            150000
  • rupees 1 crore or more but less than rupees  crores           200000
  • rupees 5 crores or more but less than rupees 25 crores     250000
  • rupees 25 crores or more but less than rupees 50 crores  300000
  • rupees 50 crores or more but less than rupees 100 crore 350000
  • rupees 100 crores or more                                                       400000

Provided that  the ceiling limit specified under this paragraph shall apply, if-

  • payment of remuneration is approved by a resolution passed by the Remuneration Committee;Provided that the ceiling limits specified under this sub-paragraph shall apply, if –
  • The company has not made any default in repayment of any of its debts (including public deposits) or debentures or interest payable thereon for a continuous period of thirty days in the preceding financial year before the date of appointment of such managerial person;
  • A special resolution has been passed at the general meeting of the company for payment of remuneration for a period not exceeding three years;
  • A statement along with a notice calling the general meeting referred to in clause (iii) is given to the shareholders containing the following, namely:-

 I.General Information;

  • Nature of industry-
  • Date or expected date of commencement of commercial production.
  • In case of new companies, expected date of commencement of activities as per project approved by financial institutions appearing in the prospectus.
  • Financial performance based on given indicators.
  • Export performance and net foreign exchange collaborations.
  • Foreign investments or collaborators, if any.

 II.Information about the appointee:

  • Background details.
  • Past remuneration.
  • Recognition or awards.
  • Job profile and his suitability.
  • Remuneration proposed.
  • Comparative remuneration profile with respect to industry, size of the company,profile of the position and person (in case of expatriates the relevant details would be w.r.t. the country of his origin.)
  • Pecuniary relationship directly or indirectly with the company, or relationship with the managerial personal, if any.

III.Other Information:

  • Reason of loss or inadequate profits.
  • Steps taken or proposed to be taken for improvement.
  • Expected increase in productivity and profits in measurable terms.                          

 IV.  Disclosures:

(A)The shareholders of the company shall be informed of the remuneration package of      the managerial person.

(B)The following disclosures shall be mentioned in the Board of Directors report under       the heading “Corporate Governance”, if any, attached to the annual report: –

  • All elements of remuneration package such as salary, benefits, bonuses, stock   options, pension, etc. of all the directors;
  • Details of fixed component and performance linked incentives along with the performance criteria;
  • Service contracts, notice period, severance fees;
  • Stock option details, if and, and whether the same has been issued at a discount as well as the period over which accrued and over which exercisable.

(more…)

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