Limited Liability Partnership Bill, 2008

The new Limited Liability Partnership Bill, 2008 - Download here

Comments / discussion on the bill are welcome

Upcoming articles

I am planing to write articles on the following subjects and would appreciate inputs (which will be included in the article) from the readers.

The topics are -

1. Whether a non agriculturist can purchase agricultural land? If yes, how;

2. Whether a company can purchase agricultural land in Maharashtra

If anyone has a suggestion / topic to recommend, please post a comment and I will update the list.

Seven new services under Service Tax net

With the Finance Bill 2008 receiving Presidential assent, Seven new taxable services will come under the Service Tax net w.e.f May 16. These new services include Information Technology, Software services, investment management services, ULIP, Internet Telecommunication services, stock exchange services, Commodity Exchanges and Clearing houses.

The revenue department has also extended the scheme of refund of service tax paid by exporters to three additional services, taking the total number of services for which service tax refund is available to exporters to 19.

Exporters can now get service tax refund on purchase or sale of foreign currency by authorised dealers or foreign exchange brokers.

However, exporters have to produce evidence to show that the services utilised by them for purchase or sale of foreign currency is related to export of goods.

So if you fall under any of the new services, remember to comply with the provisions of the Service Tax Act

Post Budget rate of CST

Post Budget rate of CST

Though the Hon'ble Finance Minister has announced reduction of Central Sales Tax Act (CST) from 3% to 2%, notification regarding the same has not been issued till today. So in such a situation, it is suggested that dealers should continue charging CST @ 3%. In case there is a notification on later date with retrospective effect, excess of 1% can be adjusted against future bills or as per discretion or settlement reached between the parties.

Trade Circular

CAs can audit; Sales Tax Lawyers can't: HC

In a decision that will affect the lawyers specialising in Sales Tax laws as well as former Sales Tax officers' who work as sales tax practitioners, Bombay High Court has held that only Chartered Accountants (CAs) can audit and certify accounts for traders.

Hitherto, traders had to hire only sales tax lawyers or former sales tax officers as advisors in tax matters. But a recent amendment to Maharashtra Value Added Tax Act made it mandatory for traders with sale of over Rs 40 lakhs to get their accounts audited and certified by a professional CA.

The amendment specifies that only a CA can audit the account. It allows lawyers and other sales tax practitioners to represent traders before sales tax commissioner and tribunals, but not to audit accounts.

Various organisations, including Bar Council of Maharashtra and Goa, the Sales Tax Practitioners Association of Maharashtra and Bombay Small Scale Industries Association moved High Court, claiming that this restraint violated right to equality enshrined in the Constitution.

Also, it would force traders to cough up extra money for engaging CAs, they contended. But division bench of Justices F I Rebello and R S Mohite rejected these arguments. "Auditing is a specialised job which can be undertaken by the person professionally competent and trained to audit," judges said, holding that advocates and other sales tax practitioners were not qualified for this job.

SOURCE

SEBI Circular on Mutual Fund Warning

Taking a note of the hasty and unintelligible manner in which the Mutual Fund advertisers warn about the market risks associated with Mutual Funds, the SEBI has issued a circular bearing no. SEBI/IMD/CIR No.12/118340/08 Dated 26.02.2008 setting guidelines for the manner in which such warning/message is to be conveyed.

The circular states that -

- The time for display of the standard warning be over a period of five seconds in case of audio advertisements and shall be read in an easily understandable manner.

- In case of audio visual advertisements the time for display and voice over of the standard warning be enhanced to five seconds.

All mutual funds are required to comply with the above requirements in letter and spirit.

So with effect from April 1, 2008, expect the statement - "Mutual Fund investments are subject to market risks, read the offer document carefully before investing" to be recited in an intelligible manner . This step of SEBI is definitely appreciable.

Taxation in IPR

“The Indian economy is overheated” says the Finance Minister. This comes as a prologue to the fact that the Government of India is bringing more and more sources under the taxation net or is tweaking the existing laws to levy taxes on a number of items/services/incomes, etc. This is being done through changes to existing laws or introduction of new sections in various acts like the Income Tax Act, Central Sales Tax Act, Value Added Tax Act, Profession Tax Act, Service Tax Act, etc. So in such a situation how can an upcoming sector like Intellectual Property Rights (IPR) be left out of purview of taxation?

Under the Intellectual Property Rights, the person assigning his rights to someone else earns an income in the form of Royalty. A person may also totally sell off his “trademark”, “patent”, “design” or “copyright” for a consideration.

TAXATION AND IPR –

1. Service Tax & IPR –

With effect from September 10, intellectual property services (other than copyrights) have been brought under the service tax net. According to the Revenue Department the definition of taxable services includes only such IPRs (except copyright) that are prescribed under law for the time being in force.

The Finance Ministry is of the view that the IPRs esp. Integrated circuits/undisclosed information would not be covered under the Taxable Services as these rights are not covered or prescribed under Indian Law.

Whether Payment of Royalty is a service ?

Payment of Royalty is not a service. It is rather a profit of the owner for permitting another to use his property. Hence payment of royalty should not be treated as a payment for service. IPR is in nature of property and the right to use IPR is a transaction in property and not consultancy or advice

Service Tax and Permanent transfer of IPR –

It has also been made clear by the Revenue Department that IPRs covered under Indian law in force at present alone, are chargeable to service tax. Further, permanent transfer of IPRs would not attract Service Tax because such transfer does not amount to rendering of service.

In cases where cess is levied under the Research and Development Cess Act, the Department has held that the cess amount so paid would be deductible from the total service tax payable.

Temporary transfer or permission to use or enjoy IPR can be classified as transfer of right to use goods, as it involves transfer of right to use movable property. Therefore, a tax on IPR is in pith and substance a tax on transfer of right to use IPR and not a tax on services.

Income Tax and IPR –

Earlier there was a lot of confusion over the provisions of Income Tax Act relating to Income Tax Act. However, over a period of time, various decisions given by the Tribunals, High Courts and Hon’ble Supreme Court and amendments to the Income Tax Act, the picture is quite clear now regarding transactions in IPR and its effect from Income Tax point of view

Purchase of Copyright – Capital or Revenue Expenditure -

Purchase of (c) is capital expenditure. Price paid for purchasing copyright of a book publisher and seller of books is capital expenditure – Hira Lal Phoolchand Vs. CIT [1947] 15 ITR 205 (All.)

Royalty for user of Trademark –
Royalty paid by the assessee for user of TM of another company is allowable as revenue expenditure. (CIT Vs. Raipur Manufacturing CO. [1996] 132 CTR (Guj.) 63

Expenditure on registration of Trademark -

Expenditure on registration of TM is not capital expenditure – The advantages derived by the owner of the TM by registration falls within the class of maintenance of the capital asset. The fact that a TM after regis. could be separately assigned and not as a part of the goodwill of the business only, does not also make the expenditure for registration a capital expenditure – CIT v. Finlay Mills Ltd. [1951] 20 ITR 475 (SC).

Deduction in repect of expenditure on acquisition of Patent -

As the term patent defined under the Patents Act 1970, only inventions can be patented and Beedi rolling or manufacturing, being not an invention, cannot be patented nor any patent right can be created therein. Therefore deduction cannot be claimed of expenditure on acquisition of patent or (c) in Beedi rolling or manufacturing in terms of Section 35A – CIT Vs. Mangalore Ganesh Beedi Works [2003] 128 Taxman 351/264 ITR 142 (Kar.).

Deductions U/s. 80O if the Income Tax Act -

From assessment year 2005 – 2006 and onwards no deduction shall be allowable in respect of income/royalty received from foreign enterprises in consideration for use outside India of any patent, invention, design or registered Trademark.

Conclusion –

Intellectual property laws in India are amongst the best in the world. The real problem is the implementation–the enforcement machinery is inadequate and the judicial process is slow.

So to improve this scenario, India will require great deal of political will, intellectual skill and administrative drill.