gst

 

The goods and Services Tax (GST) Act, 2017 came into force from 1st July, 2017. Here is a list of the major changes proposed in GST bill:-

  1. Applicability of GST Law in the State of Jammu and Kashmir (J&K)

J&K Finance Minister Haseeb Drabu has confirmed that J&K will apply GST. However, since J&K has a separate Constitution and has special provisions regarding legislature, Central GST (CGST) & Integrated GST (IGST) will be passed separately. State GST (SGST) will be passed separately, similar to the other states.

  1. Employer’s Gifts to Employee Will No Longer be Taxed under GST

Earlier the supply of goods or services between related persons (made during the course of business) was treated as ‘supply’ even when there is no consideration. Employer and employee were covered in the definition of related person. So, it stood that any supply of goods or services by employer to his employees (even if free of cost) would have been covered under the scope of GST.

Proposed change to the Act provides that GST will not apply on gifts upto Rs. 50,000 by an employer to a particular employee. However, gifts above Rs. 50,000 will attract GST.

  1. GST not Applicable on Sale of Land/Building

Earlier, the term ‘goods’ included all movable property including actionable claims. Only money and securities were excluded. “Services” had a vague definition of “anything other than goods”.

Thus, there was an apprehension that the Government may levy GST on supply of immovable property (land/building) apart from levy of Stamp duty.

Now, the government has clearly mentioned in Schedule III that sale of land and/or building will neither be treated as a supply of goods nor a supply of services, i.e., GST will not be applicable on this.

So currently it stands that:

  • GST will apply on renting, leasing of land and/or building
  • GST will not apply on sale of land/building (Stamp duty will continue to apply)
  • GST will apply on works contract, i.e., constructing a building
  • GST will apply on sale of an under-construction building

However, there are discussions of bringing in sale of land and/or building under GST within 1 year from GST implementation date.

 

  1. Fixing the Upper limits of GST rates- CGST- 20% & IGST- 40%

Earlier, the upper cap fixed was 14% and 25% respectively in both the laws. Now, the upper cap has been fixed at 20% and 40% respectively under CGST and IGST Law to keep flexibility for rates increase in future. However, the GST slabs remain the same – 5%, 12%, 18% and 28%.

  1. Petroleum Products will come under GST

The petroleum products (crude oil, high speed diesel, petrol, natural gas and aviation turbine fuel/ATF) have now been brought under GST.

This will be highly beneficial to Indian businesses as businesses now can take input credit on petrol products purchased. Many industries like the plastic and chemical industries have petroleum products as inputs for manufacture. Besides, machinery, vehicles use petrol/ATF to run. Availability of input credit will help to reduce prices of goods.

  1. Unregistered Seller and registered Buyer – GST is Applicable on Reverse Charge Basis

An unregistered supplier cannot charge GST on sales. The Model law did not mention the tax treatment if an unregistered dealer sold to a registered buyer.

The Act now provides that when a registered buyer buys from an unregistered dealer, then reverse charge is applicable, i.e. the buyer (recipient of goods/services) is liable to pay GST. This is similar to the current purchase tax on purchase of goods from an unregistered dealer applicable in many states.

  1. Reduction in Composition Rates

 

The Composition Scheme is one such scheme, applicable to all traders in India with a turnover of between Rs. 10 lakh and Rs. 50 lakh.

Particulars Earlier Composition Scheme Now in GST Act
Trader 1% 0.5%
Manufacturer 2.5% 1%
Restaurant N/A 2.5%
Service provider N/A N/A

 

Reduction in composition rates is a welcome move for the MSME sector. Composition scheme has many restrictions such as non-availability of ITC, not eligible for inter-state transactions. Reduction in composition rates will attract more taxpayers to register.

However, service providers are still not eligible for composition scheme thus burdening the various professionals and freelancers.

  1. Change in the Provision Time of Supply of Services

Model GST law contained that the time of supply of services (i.e., the point of taxation when liability to pay tax arises) would be the earlier of:

  • Date of issue of invoice, or
  • The last date on which the invoice should have been issued, or
  • Date of receipt of payment by the supplier.

Now in the Act, the provisions for determining time of supply for services have been changed. Thus, the time of supply of services shall be earlier of the following dates:

  • If the invoice is issued within time prescribed:
  • Invoice issue date, or
  • Date of receipt of payment

—whichever is earlier

  • If the invoice is not issued within time:
  • The date of providing of services, or
  • The date of receipt of payment

—whichever is earlier

If clauses (a) & (b) are not applicable then:

The date on which the recipient shows the receipt of services in his books of accounts.

  1. Change in conditions for disallowing ITC

According to the earlier provisions of GST Law, if the recipient/buyer failed to pay the service provider within 3 months, then the Input Credit Tax (ITC) availed by the buyer would be disallowed. He would be required to pay the amount of ITC availed along with interest. This was only for services. There were no provisions of re-allowing the ITC if the buyer paid after 3 months.

Now, in the amended Act, this provision includes goods also. Further, the time period for payment is extended to 180 days instead of 3 months before ITC is disallowed. Now, if payment is made even after 180 days then the ITC will be re-allowed.

  1. Credit of Rent-a-cab, Life Insurance and Health Insurance allowed if used against sale of same category

Earlier rent-a-cab, life insurance, and health insurance businesses were not eligible to take input tax credit. Only those services, as notified by the government, which are mandated to be provided to an employee by the employer will enjoy input tax credit.

Now, in the amended Act, to reduce the taxpayer’s burden, input tax credit will be allowed for the above services subject to the following conditions:

  • Credit must be adjusted only against outward supply (sale) of the same category of service. It can also be a part of mixed or composite supply.
  • GST will apply on petrol on a date and at a rate notified by the Government on the recommendations of the Council.

 

 

Sanchayeeta Das

Legal Associate

The Indian Lawyer

Tags :

RERA

Real Estate (Regulation and Development) Act (RERA), 2016 came into effect on 1st May 2017. RERA marks the beginning of new era with bringing in more clarity in deals between developers and buyers leaving out ambiguities. This Act will help the buyers in many ways and will increase the confidence of homebuyers and ensure if there is any wrongdoing by the developer, there will be a redressal mechanism through RERA court or consumer forum.

RERA is a Central Act and under the Central Law, each State has to notify rules and set up a Regulatory Authority to manage the real estate Sector which shall improve the governance and hold on the Sector reducing disputes to a great extent.

IMPORTANCE OF RERA

According to the Ministry of Housing and Urban Poverty Alleviation (HUPA), there were 76,044 companies operating in the real estate sector at the time of passing of the Bill in Rajya Sabha in March 2016. RERA is of extreme importance as it will be applicable to more than76,000 companies across the country.

More transparency: builders will have to deposit 70% of the funds collected from buyers in a separate bank account in case of new projects and 70% of unused funds in case of ongoing projects to ensure sufficient funds for the project to get completed on time. This will be a big relief to the buyers as timely delivery of the project is the biggest factor or cause of concern for the buyers.

As RERA aims to make transactions clearer and more transparent it will benefit the homebuyers. It will further attract more Foreign Direct Investments (FDI’s).

Developers will now have to get all the ongoing projects that have not received completion certificate and the new projects registered with Regulatory Authorities by July end, 2017. However, Cost of developers will rise as project can continue or start only after the project has been registered with the concerned Regulatory Authority.

Both developers and buyers will now have to pay the same penal interest of SBI’s marginal cost of lending rate plus 2% in case of delays.

Developers will be liable for structural defects for five years.

RERA will impact the real estate or real estate brokers in many ways- Now even brokers are to be registered with state level real estate Regulatory Authority. Brokers in unorganized sector need to get a license to operate.

Under RERA there shall be a code of conduct for the agents and all transactions have to be official this will ensure there is a no unfair trade practices.

 

Taruna Verma

The Indian Lawyer

 

 

Tags :

GST Transitional Provisions

 

The much awaited tax reform is set to roll on 1st July 2017. The Government which has made the GST the main stay of its economic reforms is set to ride the rough road of implementation that will start in a few days time. One of the keys to the success of Goods & Services Tax (GST) is smooth migration to new regime with minimum disturbance to existing businesses. It further looks at the enrollment of existing or new taxpayers to GST as the first step towards Transitional Provisions in the new regime.

The GST Council has approved rate structure on various items and also approved rules relating to GST Returns and Transition Provisions.

CARRY FORWARD OF INPUT TAX CREDIT

A registered person shall be entitled to claim Input Tax Credit (ITC) of the Central Value Added Tax (CENVAT) credit carried forward in the return relating to the period immediately preceeding the appointed day subject to the following prescribed conditions:

  • The amount of credit is admissible as ITC under GST
  • All Returns for preceding 6 months filed under existing laws and admissible credit is reflected in last returns filed
  • ITC / CENVAT credit does not relate to exempted goods

 

CREDIT OF INPUTS HELD IN INVENTORY ON THE APPOINTED DATE

Taxes and duties on Inputs which are held in raw material / semi-finished / finished goods which were for manufacture of exempted goods under the earlier law will be eligible as credit by the following person:

  • Those who were not liable to be registered under the earlier law, or
  • Those who were engaged in the manufacture of exempted goods or provision of exempted services,
  • Those who were providing works contract service and was availing the benefit of notification
  • A first stage dealer or a second stage dealer or a registered importer or a depot of a manufacturer.

 

CREDIT OF ELIGIBLE DUTIES AND TAXES IN RESPECT OF INPUTS OR INPUT SERVICES

A registered person shall be entitled to claim credit of eligible duties and taxes in respect of inputs or input services received on or after the appointed day but the duty or tax in respect of which has been paid by the supplier under the existing law subject to the condition:

The invoice or any other duty or taxpaying document of the same was recorded in the books of account of such person within a period of thirty days from the appointed day (may be extended by a further period of thirty days by the Commissioner);

The registered person shall furnish a statement, in such manner as may be prescribed, in respect of credit that has been taken under this sub-section.

MATERIAL REMOVED FOR JOB WORK OR OTHER PROCESSES LIKE TESTING REPAIRING OR FURTHER PROCESSING

Where raw material, semi-finished or finished are sent for job work under earlier law and are lying with the job worker on the appointed day, job worker need not pay GST on its return to principal provided the goods are returned within 6 months or extended period of 2 months, from the appointed day.

Principal is required to file an application in FORM GST TRAN-1, specifying the stock or capital goods held by him as a principal at the place/places of business of his agents/branch, separately agent-wise and branch-wise.

If goods are not returned within the specified period, the input tax credit shall be liable to be recovered as an arrear of tax under GST and the amount so recovered shall not be admissible as input tax credit.

DUTY PAID GOODS RETURNED TO THE PLACE OF BUSINESS AFTER THE APPOINTMENT DATE

Condition I: Such goods are returned within 6 months or such extended period from the appointed day

In this case, the supplier of the duty paid goods is entitled to get refund of excise duty paid by him under the earlier law on removal of goods provided:

  • Duty paid goods were removed in earlier law 6 months prior to the appointed date
  • Goods are returned by person other than registered taxable person
  • Such goods are identifiable to the satisfaction of the GST authorities

 

If such goods are returned by registered taxable person, then the return of goods shall be deemed to be a supply.

Condition II: Such goods are returned after 6 months or such extended period from the appointed day

If goods are returned by registered taxable person, he will be liable to GST on such supply.

If goods are returned by person other than registered person, then GST will be paid by recipient of goods under reverse charge mechanism.

ISSUE OF SUPPLEMENTARY INVOICE, DEBIT NOTE OR CREDIT NOTE WHEN PRICE UNDER EXISTING CONTRACT IS REVISED

For upward revision, taxable person is required to issue supplementary invoice or debit note within 30 days from the date of revision in prices of contract entered into before appointed day.

For downward revision, the taxable person shall issue a credit note within 30 days from the date of such revision.

REFUND CLAIMS UNDER EXISTING LAW

Claim for refund of CENVAT credit any duty, tax, interest or any amount paid under the existing law shall be disposed of in accordance with the provision of existing law.

TREATMENT OF LONG TERM CONTRACT

In respect of a contract entered into prior to GST regime, the goods or services or both which are supplied on or after the introduction of GST would be liable to tax under the GST to the extent the supply takes place after introduction of GST.

TAXABILITY ON SUPPLY OF GOODS SENT ON APPROVAL BASIS

No GST shall be payable for goods sent on approval basis, returned to the supplier due to rejection or non approval by the buyer within a period of 6 months or the extended period of 2 months.

 

Sanchayeeta Das

The Indian Lawyer

Tags :

download

The Central Governmenton 26th May 2017 announced strict rules to prohibit sale of animals for slaughter and sale. The ban on slaughter is alsoapplicable to religious sacrifice at livestock markets and animal fairs that are a common occurrence in rural areas. The animals under purview are cows, bulls, bullocks, buffaloes, steers, heifers, calves and camels.

The reasonbehind the order is intended to end uncontrolled and unregulated animal trade. The rules won’t apply to goats and sheep, often sacrificed during Id.

Meat export organizationsprotested the move saying it was sudden and arbitrary and that it will affect their business.

With the onus being on cattle owners to certify that cattle will not be sold for slaughter or sacrifice, the trade in animals will be more regulated.

The rules will bring in new norms for the functioning of well-known livestock markets or annual cattle fairs like the ones at Sonepur (Bihar) and Pushkar (Rajasthan) or in other states including Uttar Pradesh, Maharashtra, Tamil Nadu and Andhra Pradesh.

Animals for slaughter can now be bought directly from farms — a move expected to ensure traceability and food safety standards and weed out middlemen between farmers and slaughterhouses, and increase the income of farmers who rear such animals for trade. New rules have, however, not banned sale of such animals for agriculture purposes or milk. But it can be done only through regulated livestock markets which will have to adhere to safety standards and certain do’s and don’ts to avoid cruelty against the animals.

The rules, notified by the Ministry of Environment, will have to be implemented within three months across the country, including Kerala, which allows cow slaughter. Though the issues relating to cow slaughter come under the ‘State’ subject in terms of making law and framing the rules, the new central rules are notified under the Prevention of Cruelty to Animals (PCA) Act of 1960 that gives the Centre power over animal welfare.

The rules also provide for setting up a district-level authority to enforce animal protection laws on the ground, including those against illegal slaughter. As part of the Prevention of Cruelty to Animals (Regulation of Livestock Markets) Rules, 2017, it makes a provision of constitution of Animal Market Committee for management of animal markets in the district. The Committee will have to ensure that no person will bring a cattle to an animal market unless upon arrival he has furnished a written declaration signed by the owner of the cattle that “the cattle has not been brought to market for sale for slaughter”.

The purchaser will have to give an undertaking that he/she will not sell the animal for purpose of slaughter, follow the state cattle protection or preservation laws, not sacrifice the animal for any religious purpose and not sell the cattle to a person outside the State without the permission as per the State cattle protection laws.

Under the rules, no animal market will be allowed in a place that is within 25 km from any State border or that is within 50 km from any international border. Besides, unfit animals, pregnant animals, animals who have not been vaccinated and animals under six months of age cannot be displayed or sold at any of the cattle market anywhere in the country.

The market committee will have to keep a record of name and address of the purchaser and procure his identity proof. The committee will also have to ensure that the purchaser of the animal gives a declaration that he shall not sell the animal up to six months from the date of purchase and shall abide by the rules relating to transport of animals made under the Act or any other law for the time being in force.

Since the rules include buffaloes in their definition of cattle, big traders and exporters will initially feel the heat in procuring the animals for meat. But the regulation of slaughter houses and closure of illegal ones will ultimately bring consistency of supply in the market and ensure food safety standard. India is currently a major buffalo meat exporting country which grew from Rs 3,533 crore in 2007-08 to Rs 26,685 crore in 2015-16.

 

Sanchayeeta Das

The Indian Lawyer

Tags :

download

Participatory Notes commonly known as P-Notes or PNs are instruments issued by registered Foreign Institutional Investors (FII) to overseas investors, who wish to invest in the Indian stock markets without registering themselves with the market regulator, the Securities and Exchange Board of India (SEBI)

Markets Regulator, SEBI on Monday, 29th May 2017, proposed to levy a regulatory fee of USD 1,000 for each Participatory Note (P-Note) issued by foreign investors and bar issuance of such derivative-based instruments for speculative purposes to check any misuse of these products for channelizing black money as the concerns remain that P-Notes are misused by some to channelize black money from abroad into the country through the stock markets.

In a consultation paper issued on Monday, SEBI said it has been continuously making regulatory changes in order to ensure that the Offshore Derivative Instrument (ODI) route is not misused.

In the context of the Indian market, ODIs are investment vehicles used by overseas investors for an exposure in Indian equities or equity derivatives. These investors are not registered with SEBI, either because they do not want to or due to regulatory restrictions.

SEBI incurs a significant expenditure in terms of capital and manpower when it comes to monitoring of investments coming through the ODI route.

It is proposed that beginning 1st April 2017, for a period of every three years, regulatory fees of USD 1,000 be levied on each ODI issuing Foreign Portfolio Investment (FPI) for each and every ODI subscriber coming through such FPI.

SEBI said quite a few ODI subscribers invest through multiple issuers and the proposed fee will discourage the ODI subscribers from taking ODI route and encourage them to directly take registration as an FPI.

Besides, SEBI has proposed to prohibit ODIs from being issued against derivatives for speculative purpose. Further, the ODI issuers would be given time till December 31, 2020, to wind up the ODIs issued against derivatives which are not for hedging purpose.

Presently, ODIs are being issued against derivatives along with equity and debt. As of April 2017, the ODIs issued against derivatives had a notional value of Rs 40,165 crore, which is 24 per cent of the total notional value of outstanding ODIs.

P-notes are issued by registered FPIs to overseas investors who wish to be a part of the Indian stock markets without registering themselves directly. They, however, need to go through a proper due diligence process.

SEBI has sought suggestions from public on the proposals till 12th June 2017 and a final regulation will be put in place after taking into the considering views of all the stakeholders.

Taruna Verma

Senior Associate

The Indian Lawyer

Tags :

download

 

The Government on Monday, 8th May 2017, clarified that it is mandatory on the part of employers to extend the benefit enhanced maternity benefit of 26 weeks, as modified by the Maternity Benefit (Amendment) Bill, 2016, to those women workers who were already on maternity leave on the date of enforcement of the Maternity Benefit (Amendment) Act, 2017, that is April 1, 2017.

The Labour Ministry had notified the Maternity Benefit (Amendment) Act, 2017 on March 28, 2017 and the provisions of the Amendment Act have come into force with effect from April 1, 2017, “except those relating to crèche facility [Section 4(1)], which would come into force from July 1, 2017”.

Keeping in view queries received from various quarters, the Ministry had on April 12, 2017 issued certain clarifications on various provisions of Maternity Benefit (Amendment) Act, 2017.

One of the clarifications issued stated that the enhanced maternity benefit, as modified by the Maternity Benefit (Amendment) Bill, 2016, can be extended to women who are already under maternity leave at the time of enforcement of this Amendment Act.

It is now “mandatory” for employers to extend enhanced leave to women already on maternity leave.

Salient Features of the Act:

  1. Maternity leave available to the working women to be increased from 12 weeks to 26 weeks for the first two children.
  2. Maternity leave for children beyond the first two will continue to be 12 weeks.
  3. Maternity leave of 12 weeks to be available to mothers adopting a child below the age of three months as well as to the “commissioning mothers”. The commissioning mother has been defined as biological mother who uses her egg to create an embryo planted in any other woman.
  4. Every establishment with more than 50 employees to provide for crèche facilities for working mothers and such mothers will be permitted to make four visits during working hours to look after and feed the child in the crèche.
  5. The employer may permit a woman to work from home if it is possible to do so.
  6. Every establishment will be required to make these benefits available to the women from the time of her appointment.

 

While India’s private sector employers lagged behind the government sector and many other countries in terms of providing extended maternity benefits, with the enactment of the Maternity Amendment Act, India has become one of the most progressive countries in terms of providing maternity benefits. The Maternity Amendment Act is definitely a welcome step taken by the Indian Government enabling women to combine their professional and personal roles successfully and to promote equal opportunities and treatment in employment and occupation, without prejudice to health or economic security.

 

Sanchayeeta Das

Legal Associate

The Indian Lawyer

Tags :

download (1)

 

Real Estate (Regulation and Development) Act, 2016 came into force on May 1, 2016 culminating the eight year long efforts in this regard and setting in motion the process of making necessary operational rules and creation of institutional infrastructure for protecting the interests of consumers and promoting the growth of real estate sector in an environment of trust, confidence, credible transactions and efficient and time bound execution of projects.

Ministry of Housing & Urban Poverty Alleviation had notified 69 of the total 92 sections of the Act. A proposal for a law for Real Estate was first mooted at the National Conference of Housing Ministers of States and Union Territories in January, 2009.

Early setting up of Real Estate Regulatory Authorities with whom all real estate projects have to be registered and Appellate Tribunals for adjudication of disputes is the key for providing early relief and protection to the large number of buyers of properties.

The Act empowers appropriate Governments to designate any officer preferably Secretary of the Department dealing with Housing, as the interim Regulatory Authority until the establishment of Regulatory Authority under the provisions of the Act.

Under the directions of the Minister of Housing & Urban Poverty Alleviation Shri M. Venkaiah Naidu, a Committee chaired by Secretary (HUPA) has already commenced work on formulation of Model Rules under the Act for the benefit of States and UTs so that they could come out with Rules in quick time besides ensuring uniformity across the country.

Major dilutions under the Realty Act

States such as Odisha and Bihar have notified rules that are completely in sync with the one notified by the Union housing and poverty alleviation ministry.

Haryana’s draft rules have completely left out disclosures by builders on the sanctioned plan, layout and specifications at the time of booking with all subsequent changes till date.

In Maharashtra, a provision has been included to allow builders to take out or divest from a project after occupancy certificate has been issued. This means, the builder can pull out its entire investment before completion of common areas, facilities and amenities.

In UP, the norms related to compounding of offences have been diluted as no specific amount has been mentioned.

In Delhi, the Urban Development Ministry has allowed relaxation, where rules specify that promoters need to provide details of only those court cases which have been disposed of during the last five years.

Till 29th April, 2017, 13 states and Union Territories had notified their final rules.

 

Sanchayeeta Das

Legal Associate

The Indian Lawyer

 

Tags :

Picture1

In the past few years, the Government has brought a number of legal advancements, policy reforms for protection of women from various sources of violence and atrocities and schemes for launching women helpline, prevention of trafficking and sexual exploitation, for setting up of one stop centres to assist women affected by violence, etc. The courts have also awarded stringent punishments to offenders who commit offences against women including death penalty in the rarest of rare cases.

The Supreme Court, in Bachan Singh v. State of Punjab 1980, had laid down that life imprisonment is the rule and death sentence is an exception and thus, certain guidelines should be followed before a court may award death penalty:

  1. Only in the gravest cases of extreme culpability, this extreme penalty of death may be awarded;
  2. The circumstances of the offender along with the circumstances of the crime have to be taken into consideration.
  3. When the sentence of life imprisonment seems inadequate having regard to the nature and circumstances of the crime, only then death sentence may be awarded; and
  4. The aggravating and the mitigating circumstances have to be balanced.

 

Whereas, in Machhi Singh v. State of Punjab 1983, the Supreme Court had held that in the rarest of rare cases, when the collective conscience of the community is so shocked that it will expect the holders of the judicial power centre to inflict death penalty, then death penalty may be sanctioned.

Applying the aforesaid principles, the Supreme Court in a recent judgment of Mukesh and another vs. State of NCT of Delhi 2017 (Nirbhaya case) involving the brutal rape and murder of para-medical student, has taken into consideration all the evidences and investigation reports including the dying declaration, statements of witnesses, medical examination reports, etc. The mitigating factors as contended by the appellants include absence of pre-meditation to commit a crime of the present nature, poverty-stricken background, no criminal antecedents, the suffering that their family will face if they are awarded death sentence, etc. Whereas, the aggravating circumstances include the brutal and barbaric nature of the crime involving assault on the deceased victim with iron rods, pulling out vital organs, sexual violence, etc that would have caused her extreme mental and physical trauma, that ultimately, led to her death. These circumstances led to the indictment and death penalty of some of the rapists.

According to the Supreme Court, the medical reports and other evidences have established the fact that the accused persons had treated the deceased-victim in a devilish and perverse manner, which is bound to shock the collective conscience of the community. Thus, the Court has held that the aggravating circumstances have outweighed the mitigating factors, and as a result, this case has fallen under the ‘rarest of rare case’ category. Therefore, the SC upheld the order of the High Court to sentence the accused persons to death.

Tags :

image (1)

 

The Reserve Bank of India (RBI) on Wednesday, April 26, 2017,  proposed a fresh set of regulations regarding Mergers and Acquisitions (M&A) which seek reporting of all deals which are not on the automatic route, to be more stringent, time-bound and provide for mandatory permission

The RBI Regulations followed the new regulations notified by Ministry of Corporate Affairs (MCA) under the Companies (Compromises, Arrangements and Amalgamation) Amendment Rules of 2017 issued on 13 April, 2017.

The MCA notified Section 234 of the Companies Act 2013 (2013 Act) which permits cross border mergers with effect from 13 April 2017. Further, in consultation with the Reserve Bank of India (RBI), the MCA has also notified corresponding amendments to the Companies (Compromises, Arrangements and Amalgamations) Rules 2016 (Merger Rules) by inserting a new Rule 25A effective from 13 April 2017, which deals with cross border mergers.

The proposed Regulations by RBI will be under the Foreign Exchange Management Act, 1999 (FEMA) in order to address the issues that may arise when an Indian company and a foreign company enter into Scheme of merger, demerger, amalgamation, or rearrangement. These Regulations stipulate conditions that should be adhered to by the companies involved in the Scheme. The Regulations shall be named Foreign Exchange Management (Cross Border Merger) Regulations.

The Draft Regulations make (reporting) rules for the company in relation to,

  1. Issue/ transfer of securities in case of inbound M&A /holding of securities in case of outbound mergers;
  2. Repayment of (overseas) borrowings, as the case may be;
  3. Acquisition/holding of assets in or outside India as the case maybe;
  4. In the event the Foreign Exchange Management Act does not permit holding/acquisition of securities, repatriation of their sale proceeds to/outside India, as the case maybe.

 

Additionally, the valuations for both companies for the purpose of cross border merger shall be done as per internationally accepted pricing methodology, certified by a chartered accountant/ public accountant/merchant banker authorized to do so in either jurisdiction.

The RBI is accepting public comments till May 9, 2017.

Taruna Verma

Senior Associate

The Indian Lawyer

Tags :

download

The Central Information Commission on 23rd April 2017 made it clear that ‘missing files’ is no defence and it cannot be used as an excuse to deny information.

Under the Right to Information Act, it is mandatory to publish all relevant facts while formulating important policies or announcing the decisions which affect public. When information is being sought, non-traceability of the file cannot be used to deny information.

The Commission noted that no public authority can deny the right of the applicant to the information sought. A file being non-traceable is a reflection of the inefficient and pathetic management of files by the public authority. If despite best efforts the file cannot be traced, then efforts should be made to reconstruct the file and provide information.

If these files are a part of the public record and form evidence in any case, their destruction would be seen as a destruction of evidence and will invite sanctions under the Public Records Act, 1993 and the Right to Information Act, 2005.

Further, those documents which are no longer to be used by the public authority, but are of a permanent nature, are to be shifted to the national or state archives for safekeeping. Loss of records of a permanent nature would invite penal sanctions under The Indian Penal Code. Appropriate action in case of a missing file would be recovering the file, finding out which employee was responsible for the file being missing, taking suitable disciplinary actions against that employee and addressing the problems which arose due to the file being missing. If despite these efforts the file could not be traced, then the public authority has a moral and legal duty to sincerely address the grievance of the applicant.

The Commission, having the power to direct disclosure of information provided, has the jurisdiction to direct enquiry against the Public Information Officer (PIO) or Central Assistant Public Information Officer (CPIO) claiming that the information sought by the applicant is not traceable.

 
Sanchayeeta Das

Legal Associate

The Indian Lawyer

 

Tags :