Monthly Archives: February 2016

Union Budget – highlights

1)The ceiling of tax rebate under Section 87A of IT Act has been proposed to be raised to Rs. 5,000 from Rs. 2,000 for individuals with income less than Rs. 5 lakhs.

2)The limit of deduction of house rent paid under section 80GG has also been raised to Rs. 60,000 from the existing Rs. 24,000 per annum to give relief to employees who live in rented houses.

3) Under the presumptive taxation scheme under Section 44AD of the Income tax Act, the limit of turnover or gross receipts has been raised to two crore rupees from the exiting one crore rupees to benefit about 33 lakh small business people. It frees a large number of such assesses in the MSME category from the burden of maintaining detailed books of account and getting audit done.

4) The presumptive taxation scheme is to be now extended to professionals with gross receipts up to Rs. 50 lakh with the presumption of profit being 50% of the gross receipts.

5) Withdrawal up to 40% of the corpus at the time of retirement tax exempt in the case of National Pension Scheme(NPS). In case of superannuation funds and recognized provident funds, including EPF, the same norm of 40% of corpus to be tax free will apply in respect of corpus created out of contributions made after 1.4.2016. Further, the annuity fund which goes to the legal heir after the death of pensioner will not be taxable in all three cases.

6) The monetary limit for contribution of employer in recognized Provident and Superannuation Fund of Rs. 1.5 lakh per annum for taking tax benefit.

7) Annuity services provided by the National Pension Scheme (NPS) and Services provided by EPFO to employees will be exempt from service tax. Also service tax on Single premium Annuity (Insurance) Policies will be reduced from 3.5% to 1.4% of the premium paid in certain cases.

8) 100% deduction for profits to an undertaking from a housing project for flats upto 30 sq. metres in four metro cities and 60 sq. metres in other cities, approved during June 2016 to March 2019, and is completed within three years of the approval. Minimum Alternate Tax will however apply to these undertakings.

9) Distribution made out of income of SPV to the REITs and INVITs having specified shareholding will not be subjected to Dividend Distribution Tax.

10) For the ‘first – home buyers’, there will be a deduction for additional interest of Rs. 50,000 per annum for loans up to Rs. 35 lakh sanctioned during the next financial year, provided the value of the house does not exceed Rs. 50 lakh.

11) Exemption from service tax on construction of affordable houses up to 60 sq. metres under any scheme of the Central or State Government including PPP Schemes. Alongside, extension of excise duty exemption, presently available to Concrete Mix manufactured at site for use in construction work at such site to Ready Mix Concrete.

12) A Bill shall be introduced in the current Budget session of the Parliament in order to amend the Companies Act 2013. This will remove the difficulties and impediments to ease of doing business. The Bill would also improve the enabling environment for start-ups. The registration of companies will also be done in one day.

13) In order to reduce multiplicity of taxes, associated cascading and to reduce cost of collection, abolition of 13 cesses, levied by various Ministries in which revenue collection is less than Rs.50 crore in a year, is proposed.

14) Measures to rationalize TDS provisions for Income Tax have been proposed to improve cash flow position of small tax payers who get their funds blocked due to current TDS provisions. Also, Non-residents without PAN are currently subjected to a higher rate of TDS, however with amendment to relevant provision will allow that on furnishing of alternative documents, such higher rate will not apply. The facility for revision of return hitherto available to service tax assesses only will be extended to Central Excise assesses also.

15) Additional options for reversal of input tax credits with respect to non-taxable services provided by banking companies and financial institutions, including NBFCs, by way of extending deposits, loans and advances are proposed in Budget 2016-17.

16) Government of India has taken steps to reduce the cargo release time and transaction costs of EXIM trade. Shri Jaitley also proposed to amend the Customs Act so as to provide for deferred payment of customs duties for importers and exporters with proven track record.

17) Indian Customs Single Window Project would be implemented at major ports and airports starting from beginning of next financial year. Also, customs baggage for international passengers are simplified as filing of baggage declaration will be required only for those passengers who carry dutiable goods.

18) General Insurance Companies will be listed in stock exchanges for improving transparency, accountability and efficiency. Comprehensive Central legislation to deal with Illicit Deposit Taking schemes will be enacted.

19) To provide better access to financial services, especially in rural areas, the government will undertake a massive nationwide rollout of ATMs and Micro ATMs in Post Offices over the next three years.

20) SARFAESI Act is to be amended to strengthen Asset Reconstruction Companies. This will help in dealing with stressed assets of Banks.

21) 100% deduction of profits for 3 out of 5 years for start-ups, during April, 2016 to March 2019, with certain riders. Similarly to promote innovation, a special patent regime with 10% rate of tax on income from worldwide exploitation of patents developed and registered in India was proposed.

22) Non-banking financial companies shall be eligible for deduction to the extent of 5 % of its income in respect of provision for bad and doubtful debts.

23) The corporate income tax rate for the next financial year of relatively small enterprises i.e companies with turnover not exceeding Rs. 5 crores (in the financial year ending March 2015) is proposed to be lowered to 29 % plus surcharge and cess.

24) The new manufacturing companies which are incorporated on or after 1.3.2016 are proposed to be given an option to be taxed at 25% plus surcharge and cess provided they do not claim profit linked or investment linked deductions and do not avail of investment allowance and accelerated depreciation.

25) Service tax on services provided under Deen Dayal Upadhyay Grameen Kaushalya Yojana and services provided by Assessing Bodies empanelled by Ministry of Skill Development and Entrepreneurship are also proposed to be exempted.

26) The determination of residency of foreign company on the basis of Place of Effective Management (POEM) is deferred by one year.

27) To get more investment in Asset Reconstruction Companies (ARCs), which play a very important role in resolution of bad debts, a complete pass through income-tax to securitization trusts including trusts of ARCs has been proposed. The income will be taxed in the hands of the investors instead of the trust.

28) The Finance Minister also enunciated a plan for phasing-out various exemptions as the corporate tax is proposed to be reduced from 30% to 25 % over a period. Such graduated plan includes

  1. a) The accelerated depreciation provided under IT Act will be limited to maximum 40 % from 1.4.2017.
  2. b) The benefit of deductions for Research would be limited to 150% from 1.4.2017 and 100% from 1.4.2020
  3. c) The benefit of section 10AA to new SEZ units will be available to those units which commence activity before 31.3.2020.
  4. d) The weighted deduction under section 35CCD for skill development will continue up to 1.4.2020.

Source PIB

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Extension of e-tourist visas to 37 more countries

The e-Tourist Visa (e-TV) facility will be extended to 37 more countries from tomorrow. The total count of countries under the scheme will become 150.

The new 37 countries included in e-Tourist Visa scheme are Albania, Austria, Bosnia & Herzegovina, Botswana, Brunei, Bulgaria, Cape Verde, Comoros, Cote d’lvoire, Croatia, Czech Republic, Denmark, Eritrea, Gabon, Gambia, Ghana, Greece, Guinea, Iceland, Lesotho, Liberia, Madagascar, Malawi, Moldova, Namibia, Romania, San Marino, Senegal, Serbia, Slovakia, South Africa, Swaziland, Switzerland, Tajikistan, Trinidad & Tobago, Zambia and Zimbabwe.

Government of India had launched the e-TV facility on November 27, 2014. Till now the scheme has been extended to 113 countries at sixteen Indian airports designated for providing e-Tourist visa service.

PIB release dated 25th February, 2016

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KYC norms for opening bank accounts – mentally challenged persons

RBI had vide its notification no. RBI/2013-14/444 DBOD.No.Leg.BC.84/09.07.005/2013-14 dated 13th January, 2014 laid down guidelines for opening/ operating bank accounts for mentally challenged persons i.e. persons suffering from autism, cerebral palsy, mental retardation and any other form of mental disability. According to the said guidelines, 

  1. The Mental Health Act, 1987 provides for a law relating to the treatment and care of mentally ill persons and to make better provision with respect to their property and affairs. According to the said Act, “mentally ill person” means a person who is in need of treatment by reason of any mental disorder other than mental retardation. Sections 53 and 54 of this Act provide for the appointment of guardians for mentally ill persons and in certain cases, managers in respect of their property. The prescribed appointing authorities are the district courts and collectors of districts under the Mental Health Act, 1987.
  2. The National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 provides for a law relating to certain specified disabilities. Clause (j) of Section 2 of that Act defines a “person with disability” to mean a person suffering from any of the conditions relating to autism, cerebral palsy, mental retardation or a combination of any two or more of such conditions and includes a person suffering from severe multiple disabilities. This Act empowers a Local Level Committee to appoint a guardian, to a person with disabilities, who shall have the care of the person and property of the disabled person.
  3. Banks are advised to take note of the legal position stated above and may rely on and be guided by the orders/certificates issued by the competent authority, under the respective Acts, appointing guardians/managers for the purposes of opening/operating bank accounts. In case of doubt, care may be taken to obtain proper legal advice.
Subsequently it has been brought to the notice of the RBI that the banks have been insisting upon the guardianship certificate from all mentally ill persons, Therefore RBI has clarified vide its notification no. RBI/2015-16/321 DBR.No.Leg.BC.78/09.07.005/2015-16 dated 11th February, 2016 that “paragraph 2(iii) of the aforesaid circular is not intended to mandate banks to insist on  appointment of a guardian as a matter of routine from every person “who is in need of treatment by reason of any mental disorder”. It would be necessary for banks to seek appointment of a guardian only in such cases where they are convinced on their own or based on documentary evidence available, that the concerned person is mentally ill and is not able to enter into a valid and legally binding contract.”
 
Banks therefore have to exercise their judgment and call for documents only if they feel or have documentary evidence that the person is incapable of operating the bank account and needs guardian to take care of him. 

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Start ups – issue of shares – relaxations

RBI has vide its notification dated 11/2/2016 made a couple of clarifications w.r.t. issue of shares in case of start ups. One of the points is issue of shares without cash payment through sweat equity or issue of shares in lieu of payments due which are permissible transactions under FEMA. 

Accordingly, the following is clarified:

a. Issue of shares without cash payment through sweat equity: Reserve Bank of India vide Notification No. FEMA.344/2015 RB dated June 11, 2015 has permitted Indian companies to issue sweat equity, subject to conditions, inter-alia, that the scheme has been drawn either in terms of regulations issued under the Securities Exchange Board of India Act, 1992 in respect of listed companies or the Companies (Share Capital and Debentures) Rules, 2014 notified by the Central Government under the Companies Act 2013 in respect of other companies.

b. Issue of shares against legitimate payment owed: Reserve Bank of India vide Notification No. FEMA.315/2014-RB dated July 10, 2014, has permitted Indian companies to issue equity shares against any other funds payable by the investee company (e.g. payments for use or acquisition of intellectual property rights, for import of goods, payment of dividends, interest payments, consultancy fees, etc.), remittance of which does not require prior permission of the Government of India or Reserve Bank of India under FEMA, 1999 subject to conditions relating to adherence to FDI policy including sectoral caps, pricing guidelines, etc. and applicable tax laws (cf. paragraph 3 of Schedule 1 to Foreign Exchange Management (Transfer or Issue of Security by a Person Resident Outside India) Regulations, 2015).

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Relaxations for start ups – acceptance of payments

RBI has vide its notification dated 11th February, 2016 made some clarifications regarding start ups, especially w.r.t to acceptance of payments by them from their overseas subsidiares.

In this connection, it is clarified as under:

  1. A start-up in India with an overseas subsidiary is permitted to open foreign currency account abroad to pool the foreign exchange earnings out of the exports/sales made by the concerned start-up;
  2. The overseas subsidiary of the start-up is also permitted to pool its receivables arising from the transactions with the residents in India as well as the transactions with the non-residents abroad into the said foreign currency account opened abroad in the name of the start-up;
  3. The balances in the said foreign currency account as due to the Indian start-up should be repatriated to India within a period as applicable to realisation of export proceeds (currently nine months);
  4. A start-up is also permitted to avail of the facility for realising the receivables of its overseas subsidiary or making the above repatriation through Online Payment Gateway Service Providers (OPGSPs) for value not exceeding USD 10,000 (US Dollar ten thousand) or up to such limit as may be permitted by the Reserve Bank of India from time to time under this facility; and
  5. To facilitate the above arrangement, an appropriate contractual arrangement between the start-up, its overseas subsidiary and the customers concerned should be in place.

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Realisation, Repatriation & Surrender of FEX regulations

RBI has recently updated its Foreign Exchange Management (Realisation, Repatriation & Surrender of Foreign Exchange) Regulations, 2015 vide its notification dated 4th February, 2016, 

The salient features of the regulations are:

A. Duty of persons to realise foreign exchange due:-

A person resident in India to whom any amount of foreign exchange is due or has accrued shall, save as otherwise provided under the provisions of the Act, or the rules and regulations made thereunder, or with the general or special permission of the Reserve Bank, take all reasonable steps to realise and repatriate to India such foreign exchange, and shall in no case do or refrain from doing anything, or take or refrain from taking any action, which has the effect of securing –

  1. that the receipt by him of the whole or part of that foreign exchange is delayed; or
  2. that the foreign exchange ceases in whole or in part to be receivable by him.

B. Manner of Repatriation :-

(1) On realisation of foreign exchange due, a person shall repatriate the same to India, namely bring into, or receive in, India and –

  1. sell it to an authorised person in India in exchange for rupees; or
  2. retain or hold it in account with an authorised dealer in India to the extent specified by the Reserve Bank; or
  3. use it for discharge of a debt or liability denominated in foreign exchange to the extent and in the manner specified by the Reserve Bank.

(2) A person shall be deemed to have repatriated the realised foreign exchange to India when he receives in India payment in rupees from the account of a bank or an exchange house situated in any country outside India, maintained with an authorised dealer.

C. Period for surrender of realised foreign exchange:-

A person not being an individual resident in India shall sell the realised foreign exchange to an authorised person, within the period specified below :-

  1. foreign exchange due or accrued as remuneration for services rendered, whether in or outside India, or in settlement of any lawful obligation, or an income on assets held outside India, or as inheritance, settlement or gift, within seven days from the date of its receipt;
  2. in all other cases within a period of ninety days from the date of its receipt.

D. Period for surrender in certain cases:-

(1) Any person not being an individual resident in India who has acquired or purchased foreign exchange for any purpose mentioned in the declaration made by him to an authorised person under sub-section (5) of Section 10 of the Act does not use it for such purpose or for any other purpose for which purchase or acquisition of foreign exchange is permissible under the provisions of the Act or the rules or regulations or direction or order made thereunder, shall surrender such foreign exchange or the unused portion thereof to an authorised person within a period of sixty days from the date of its acquisition or purchase by him.

(2) Notwithstanding anything contained in sub-regulation (1), where the foreign exchange acquired or purchased by any person not being an individual resident in India from an authorised person is for the purpose of foreign travel, then, the unspent balance of such foreign exchange shall, save as otherwise provided in the regulations made under the Act, be surrendered to an authorised person –

  1. within ninety days from the date of return of the traveller to India, when the unspent foreign exchange is in the form of currency notes and coins; and
  2. within one hundred eighty days from the date of return of the traveller to India, when the unspent foreign exchange is in the form of travellers cheques.

E. Period for surrender of received/realised/unspent/unused foreign exchange by Resident individuals.-

A person being an individual resident in India shall surrender the received/ realised/ unspent/ unused foreign exchange whether in the form of currency notes, coins and travellers cheques, etc. to an authorised person within a period of 180 days from the date of such receipt/ realisation/ purchase/ acquisition or date of his return to India, as the case may be.

F. Exemption:-

Nothing in these regulations shall apply to foreign exchange in the form of currency of Nepal or Bhutan.

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Export & Import of Currency Regulations

RBI has vide its notification dated 4th February, 2016 updated the Foreign Exchange Management (Export and Import of Currency) Regulations, 2015. Accordingly, the gist of the regulations provides that

A. Export and import of Indian currency and currency notes

a) Any person resident in India,

  1. may take outside India (other than to Nepal and Bhutan) currency notes of Government of India and Reserve Bank of India notes up to an amount not exceeding Rs.25,000 (Rupees Twenty Five Thousand only) per person.
  2. may take or send outside India (other than to Nepal and Bhutan) commemorative coins not exceeding two coins each.

Explanation:

‘Commemorative Coin’ includes coin issued by Government of India Mint to commemorate any specific occasion or event and expressed in Indian currency.

  1. who had gone out of India on a temporary visit, may bring into India at the time of his return from any place outside India (other than from Nepal and Bhutan), currency notes of Government of India and Reserve Bank of India notes up to an amount not exceeding Rs.25,000 (Rupees Twenty Five Thousand only) per person.

b) Any person resident outside India, not being a citizen of Pakistan or Bangladesh, and visiting India,

  1. may take outside India currency notes of Government of India and Reserve Bank of India notes up to an amount not exceeding Rs.25,000 (Rupees Twenty Five Thousand only) per person
  2. may bring into India currency notes of Government of India and Reserve Bank of India notes up to an amount not exceeding Rs.25,000 (Rupees Twenty Five Thousand only) per person

B. Import of Foreign Exchange into India

A person,

  1. may send into India without limit foreign exchange in any form other than currency notes, bank notes and travelers cheques;
  2. may bring into India from any place outside India without limit foreign exchange (other than unissued notes) subject to the condition that such person makes, on arrival in India, a declaration to the Customs authorities in Currency Declaration Form (CDF). It shall not be necessary to make such declaration where the aggregate value of the foreign exchange in the form of currency notes, bank notes or travelers cheques brought in by such person at any one time does not exceed US$10,000 (US Dollars ten thousand) or its equivalent and/ or the aggregate value of foreign currency notes brought in by such person at any one time does not exceed US$ 5,000 (US Dollars five thousand) or its equivalent.

C. Export of Foreign Exchange and Currency Notes

  1. An authorised person may send out of India foreign currency acquired in normal course of business,
  2. any person may take or send out of India, –
    1. Cheques drawn on foreign currency account maintained in accordance with Foreign Exchange Management (Foreign Currency Accounts by a person resident in India) Regulations, 2000;
    2. foreign exchange obtained by him by drawal from an authorised person in accordance with the provisions of the Act or the rules or regulations or directions made or issued thereunder;
    3. currency in the safes of vessels or aircrafts which has been brought into India or which has been taken on board a vessel or aircraft with the permission of the Reserve Bank;
  3. any person may take out of India, –
    1. foreign exchange possessed by him in accordance with the Foreign Exchange Management (Possession and Retention of Foreign Currency) Regulations, 2000 ;
    2. unspent foreign exchange brought back by him to India while returning from travel abroad and retained in accordance with the Foreign Exchange Management (Possession and Retention of Foreign Currency) Regulations, 2000 ;
  4. any person resident outside India may take out of India unspent foreign exchange not exceeding the amount brought in by him and declared in Currency Declaration Form (CDF).

D. Export and Import of currency to or from Nepal and Bhutan

A person may-

  1. take or send out of India to Nepal or Bhutan, currency notes of Government of India and Reserve Bank of India notes (other than notes of denominations of above Rs.100 in either case) provided that an individual travelling from India to Nepal or Bhutan can carry Reserve Bank of India currency notes of denomination Rs.500/- and/or Rs.1000/- up to a limit of Rs.25,000/- ;
  2. bring into India from Nepal or Bhutan, currency notes of Government of India and Reserve Bank of India notes (other than notes of denominations of above Rs.100 in either case) ;
  3. take out of India to Nepal or Bhutan, or bring into India from Nepal or Bhutan, currency notes being the currency of Nepal or Bhutan.

E. Prohibition on Export of Indian Coins

No person shall take or send out of India the Indian coins which are covered by the Antique and Art Treasure Act, 1972.

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RTGS charges for customers

RBI has vide its notification dated 4th february, 2016 revised the RTGS charges for bank members and customers alike. The variation in charges for customers which will come into effect from 1st

april, 2016 is as follows:

1) Processing charges per transaction: – There will be a flat processing charge of Rs.0.50 per outward transaction and a time varying charge as follows:

Between 8 to 11 hours – NIL

From 11 hours to 13 hours – Rs.2 per transaction

From 13 hours to 1630 hours – Rs.5 per transaction

After 1630 hours – Rs. 10 per transaction

The time is reckoned as settlement at RBI. All charges are out outward transactions, NONE for inward transaction. All rates mentioned above are exclusive of service tax.

2) The maximum anount that the member can recover from its customer (if it so desires) will remain unchanged as under:

For inward transactions NIL

For outward transactions

Amount between Rs.2 lakhs to Rs.5 lakhs – Rs.25 plus applicable time varying charge, subject to maximum of Rs.30/-

Amount above Rs.5 lakhs – Rs.50 plus applicable time varying charge, subject to maximum of Rs.55/-

The RBI notification is available here i.e. https://www.rbi.org.in/Scripts/NotificationUser.aspx?Id=10260&Mode=0

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Safe deposit locker facility by NBFCs

RBI has vide its notification dated 28th January, 2016 clarified that safe deposit locker facilities being offered by certain NBFCs is a fee based service and shall not be reckoned as part of the financial business provided by NBFCs and further that this facility is not being regulated by RBI. NBFCs have to disclose to their customers that this activity is not regulated by RBI.

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Acquisiton & transfer of immoveable property outside India

RBI has vide its notification dated 21st January, 2016 upgraded the FEM (Acqusition and transfer of immoveable property outside India) REgulations 2015. 

As per these regulations:

3. Restriction on acquisition or transfer of immovable property outside India:-

Save as otherwise provided in the Act or in these regulations, no person resident in India shall acquire or transfer any immovable property situated outside India without general or special permission of the Reserve Bank.

4. Exemptions:-

Nothing contained in these regulations shall apply to the property –

  1. held by a person resident in India who is a national of a foreign state;
  2. acquired by a person resident in India on or before 8th July 1947 and continued to be held by him with the permission of the Reserve Bank.

5. Acquisition and Transfer of Immovable Property outside India:-

(1) A person resident in India may acquire immovable property outside India, –

(a) by way of gift or inheritance from a person referred to in sub-section (4) of Section 6 of the Act, or referred to in clause (b) of regulation 4;

(b) by way of purchase out of foreign exchange held in Resident Foreign Currency (RFC) account maintained in accordance with the Foreign Exchange Management (Foreign Currency accounts by a person resident in India) Regulations, 2015;

(c) jointly with a relative who is a person resident outside India, provided there is no outflow of funds from India;

(2) A person resident in India may acquire immovable property outside India, by way of inheritance or gift from a person resident in India who has acquired such property in accordance with the foreign exchange provisions in force at the time of such acquisition.

(3) A company incorporated in India having overseas offices, may acquire immovable property outside India for its business and for residential purposes of its staff, in accordance with the direction issued by the Reserve Bank of India from time to time.

Explanation:

For the purposes of these regulations, ‘relative’ in relation to an individual means husband, wife, brother or sister or any lineal ascendant or descendant of that individual.

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Possession & Retention of Foreign Currency

RBI has vide its notification dated 4/2/2016 updated the Foreign Exhange Management (Possession and Retention of Foreign Currency) Regulations 2015 whereby limits for possession and retention of foreign currency in the form of notes, coins & travellers cheques have been laid down. 

A. Following are the limits for possession or retention of foreign currency or foreign coins, namely :-

  1. possession without limit of foreign currency and coins by an authorised person within the scope of his authority ;
  2. possession without limit of foreign coins by any person;
  3. retention by a person resident in India of foreign currency notes, bank notes and foreign currency travellers’ cheques not exceeding US$ 2000 or its equivalent in aggregate, provided that such foreign exchange in the form of currency notes, bank notes and travellers cheques;
    1. was acquired by him while on a visit to any place outside India by way of payment for services not arising from any business in or anything done in India; or
    2. was acquired by him, from any person not resident in India and who is on a visit to India, as honorarium or gift or for services rendered or in settlement of any lawful obligation; or
    3. was acquired by him by way of honorarium or gift while on a visit to any place outside India; or
    4. represents unspent amount of foreign exchange acquired by him from an authorised person for travel abroad.

B. A person resident in India but not permanently resident therein may possess without limit foreign currency in the form of currency notes, bank notes and travellers cheques, if such foreign currency was acquired, held or owned by him when he was resident outside India and, has been brought into India in accordance with the regulations made under the Act.

Explanation: for the purpose of this clause, ‘not permanently resident’ means a person resident in India for employment of a specified duration (irrespective of length thereof) or for a specific job or assignment, the duration of which does not exceed three years.

The notification has come into force from December, 29, 2015. 

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Online filing of FDI forms

RBI has vide its notification dated 1st February 2016 mandated that all forms for Foreign Direct Investment reporting i.e. Advance Remittance Form (ARF), FC-GPR and FC-TRS should be mandatorily filed with the online e-biz platform of RBI. Physical forms have been discontinued with effect from 8th February, 2016.

The relevant extracts of RBI notification is given below:

2. With a view to promoting the ease of reporting of transactions related to Foreign Direct Investment (FDI), the Reserve Bank of India, under the aegis of the e-Biz project of the Government of India has enabled online filing of the following returns with the Reserve Bank of India viz.

– Advance Remittance Form (ARF) which is used by the companies to report the FDI inflows to RBI;

– FCGPR Form which a company submits to RBI for reporting the issue of eligible instruments to the overseas investor against the above mentioned FDI inflow; and

– FCTRS Form which is submitted to RBI for transfer of securities between resident and person outside India.

3. At present both the options, i.e. online filing and physical filing of abovementioned forms, are available to the users.

4. Based on the experience it has been decided that beginning February 8, 2016 the physical filing of forms ARF, FCGPR and FC-TRS will be discontinued and forms submitted in online mode only through e-Biz portal will be accepted.

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TRAI disallows discriminatory tariffs for data

TELECOM REGULATORY AUTHORITY OF INDIA (TRAI) issued the ‘Prohibition of Discriminatory Tariffs for Data Services Regulations, 2016’ today. This would disallow service providers to offer or charge discriminatory tariffs for data services on the basis of content being accessed by a consumer.

TRAI had earlier issued a Consultation Paper on ‘Differential Pricing for Data Services’ in December, 2015. This Consultation primarily sought the views of the stakeholders on whether the service providers should be allowed to charge differential tariffs based on the websites/applications/platforms being accessed on the internet. Based on the responses received and the internal deliberations, the Authority has now issued these Regulations. These Regulations, are aimed at ensuring that consumers get an unhindered and non-discriminatory access to the internet. These Regulations intend to make data tariffs for access to the internet non discriminatory on the basis of the content.

An overwhelming number of detailed and well reasoned responses, representing a diverse set of views were received in the consultation process. There were views suggesting both in support and against ex ante steps for regulating differential tariff for data services based on content. After careful examination of all the comments and feedback, the Authority has decided that ex ante regulation, rather than a case by case tariff intervention regime would be more appropriate as it would give the much needed certainty to industry participants. Such a step is also warranted in view of the high costs of regulation in terms of time and resources that will be required for investigating each case of tariff discrimination.

The Authority has therefore mandated the following:

a) No service provider shall offer or charge discriminatory tariffs for data services on the basis of content.

b) No service provider shall enter into any arrangement, agreement or contract, by whatever name called, with any person, natural or legal, that has the effect of discriminatory tariffs for data services being offered or charged by the service provider for the purpose of evading the prohibition in this regulation.

c) Reduced tariff for accessing or providing emergency services at times of public emergency has been permitted.

d) Financial disincentives for contravention of the regulation have also been specified.

TRAI had issued the Consultation Paper on ‘Differential Pricing for Data Services’ on 9th December, 2015. Opportunity for submitting written comments and counter comments was given to the stakeholders till 7th January, 2016 and 14th January, 2016 respectively. An Open House Discussion was held on 21st January, 2016 and further time to submit additional comments was given up to 25th January, 2016.

TRAI will keep a close watch on the implementation of the mandate by the service providers and may undertake a review after two years or at an earlier date as it may deem fit.

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Report of the Company Law Committee

Recommendations of the Company Law Committee constituted to streamline and provide further relaxations to companies from the strict compliances regime.

 

  1. Some of the key changes proposed are listed below:

 

  1. a) Managerial remuneration to be approved by shareholders. [s. 197, 198]
  2. b) Modify definition of associate company and subsidiary company to ensure that ‘equity share capital’ is the basis for deciding holding-subsidiary relationship rather than “both equity and preference share capital”. [s. 2]
  3. c) Private placement process to be substantially simplified, doing away with separate offer letter, making valuation details public, details/record of applicants to be kept by company and to be filed as part of return of allotment only, and reducing number of filings to Registrar. [s. 42]
  4. d) Incorporation process to be made easier and allow greater flexibility to companies: An unrestricted objects clause to be allowed in the Memorandum of Association dispensing with detailed listing of objects, self-declarations to replace affidavits from subscribers to memorandum and first directors; changes also in various Forms. [s. 4, 7]
  5. e) Provisions relating to forward dealing and insider trading to be omitted from Companies Act. Listed companies are covered under SEBI Act/Regulations. [s. 194, 195]
  6. f) Companies may give loans to entities in which directors are interested after passing special resolution and adhering to disclosure requirement. [s. 185]
  7. g) Restriction on layers of subsidiaries and investment companies to be removed. [s. 2(87), 186(1)]
  8. h) Change in the definition of term ‘relative’ for determining disqualification of auditor [s. 141]
  9. i) Rationalize penal provisions with reduced liability for procedural and technical defaults. Penal provisions for small companies to be reduced. [ various sections]
  10. j) No filing fees if financial statements and annual returns filed within prescribed time. [s. 403]
  11. k) Auditor to report on internal financial controls with regard to financial statements. [s. 143]
  12. l) Frauds less than Rs. 10 Lakh to be compoundable offences. Other frauds to be continued to be non-compoundable. [s. 447]
  13. m) Reducing requirement for maintaining deposit repayment reserve account from 15% each for last two years to 20% during the maturing year.
  14. n) Foreign companies having insignificant/incidental transactions through electronic mode to be exempted from registering and compliance regime under Companies Act, 2013. [s.  379]
  15. o) Disclosures in the Directors’ Report to be simplified and duplications with SEBI’s disclosure requirements and financial statements to be removed while retaining the informative content for shareholders. [s. 134, Rules]
  16. p) Increased threshold for unlisted companies for compliance in context of requirement for Independent Directors (IDs), Audit Committee and Nomination and Remuneration Committee. [s. 149, 177, 178]
  17. q) Test of materiality to be introduced for pecuniary interest for testing independence of ID; thresholds for relatives’ pecuniary interest to be revised to make it more practical. [s. 149]
  18. r) Requirement for a managerial person to be resident in India for twelve months prior to appointment to be done away with. [Schedule V]
  19. s) Disclosures in the prospectus required under the Companies Act and SEBI Regulations to be aligned, with a view to make these simpler, by allowing prescriptions to be as per SEBI Regulations. [s. 26]
  20. t) ESOPs to be allowed to promoters working as employees/directors [s.62, Rules]
  21. u) Limit on sweat equity to be raised from 25% of paid up capital to 50% for start-ups. [s.54]
  22. v) Recognition of the concept of beneficial owner of a company proposed in the Act. Register of beneficial owners to be maintained by a company, and filed with the Registrar. [new section]
  23. w) Provisions with regard to consolidation of accounts to be reviewed and those with respect to attachment of standalone accounts of foreign subsidiaries to be relaxed in certain cases. [s. 129, 136]
  24. x) Re-opening of accounts to be limited to 8 years. [s. 130]
  25. y) Mandatory requirement of taking up some items only through postal ballot to be relaxed in case of a company that is required to provide electronic voting at its General Meetings. [s. 110]
  26. z) Requirement for annual ratification of appointment/continuance of auditor to be removed. [s. 139]

 

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