Revised Form 3CD : CA Mehul Shah | 1
Revised Form 3CD
Amendments and Additions
CA MEHUL SHAH
RASESH SHAH AND ASSOCIATES
mehul@raseshca.com
9723459572
Disclaimer
The stuff to follow are just “my
opinion.” Opinion are like wrist
watches. All show different times but all
think that their time is correct…
| 2International Taxation : CA Mehul Shah
Revised Form 3CD : CA Mehul Shah | 3
Amendment in Form No. 3CA, 3CB & 3CD
Notification No. 33/2014 dated 25th July, 2014
1. Form No. 3CA/3CB
a. Amendments in Form No. 3CA
b. Amendments in Form No. 3CB
c. Other amendments
2. Form No. 3CD
a. Newly inserted clauses
b. Amendments in clauses
c. Specific format provided
Revised Form 3CD : CA Mehul Shah | 4
Amendments in Form 3CA
Scope of auditor increased :
Revised Form 3CD : CA Mehul Shah | 5
Amendments in Form 3CB
Dispensed with Annexures to Form no 3CD and provided space for
specifying observations and qualifications :
Revised Form 3CD : CA Mehul Shah | 6
Amendments in Form 3CD : Overview
Revised Form 3CD : CA Mehul Shah | 7
CLAUSE 4 - REGISTRATION NOS.
Clause
"Whether the assessee is liable to pay indirect tax like excise duty, service
tax, sales tax, customs duty etc. if yes, please furnish the registration
number or any other identification number allotted for the same"
Compliance
The auditor should obtain from the assessee and disclose the list of indirect
taxes applicable to him as well as exercise his diligence regarding the
applicability of different taxes based on the nature of the client business.
The aim of this clause would be to cross check the information like sales,
production, CENVAT etc. submitted under various statutes.
Revised Form 3CD : CA Mehul Shah | 8
CLAUSE 4 - REGISTRATION NOS.
Points to Remember
• Eventually, auditor is required to obtain a copy of the registration certificate
clearly mentioning the registration number under that relevant law.
• Where the indirect tax law does not require any registration, appropriate
identification number may be reported in this clause. For example, in Customs
Act, 1962, since there is no registration number, a copy of Export Import Code
(IEC) may be obtained and information be accordingly furnished.
Revised Form 3CD : CA Mehul Shah | 9
CLAUSE 4 - REGISTRATION NOS.
According to the Guidance Note ( ICAI) : The information may be
obtained and maintained in the following format:
| 10Revised Form 3CD : CA Mehul Shah
CLAUSE 8 - RELEVANT CLAUSE OF 44AB
Clause
"Indicate the relevant clause of section 44AB under which the audit has been
conducted"
Compliance
To mention the relevant clause of 44AB :
(a) Business
(b) Profession
(c) 44AE, 44BB, 44BBB
(d) 44AD
| 11Revised Form 3CD : CA Mehul Shah
CLAUSE 8 - RELEVANT CLAUSE OF 44AB
Clause
"Indicate the relevant clause of section 44AB under which the audit has been
conducted"
Implications :
Section 194C and 194H etc only makes a reference to 44AB(a) and 44AB(b).
Therefore, for individual & HUF, if audit is conducted u/s 44AB(c) & (d), TDS
provisions are not applicable.
Revised Form 3CD : CA Mehul Shah| 12
CLAUSE 11(b) -ADDRESS BOOKS
Clause
"List of books of account maintained and the address at which the books of
accounts are kept. (If the books of accounts are not kept at one location, please
furnish the addresses of locations along with the details of books of accounts
maintained at each location. )"
Compliance
Disclosure of ‘Place of business’ regarding where the books are kept in order
to facilitate a list of places where a visit could be initiated for conduct of
‘Survey’ under 133A.
Revised Form 3CD : CA Mehul Shah| 13
CLAUSE 11(C) – RELEVANT DOCUMENTS
Clause
"List of books of account and nature of relevant documents examined."
Compliance
The auditor needs to disclose the list of ‘relevant documents’ examined
which has a very wide scope including all Deeds, Agreements, Registrations,
Returns, Challans, Invoices, BRS, Bank Statements, Salary Register,
CENVAT Register etc.
Revised Form 3CD : CA Mehul Shah| 14
CLAUSE 11(C) – RELEVANT DOCUMENTS
Attention is also drawn to the definition of ‘document’ as per section
2(22AA) of the Act which is as under:
"document" includes an electronic record as defined in clause (t) of
sub-section (1) of section 2 of the Information Technology Act, 2000
Section 2(1)(t) of the Information Technology Act, 2000 as referred above is
reproduced below:
"electronic record" means data, record or data generated, image or
sound stored, received or sent in an electronic form or micro film or
computer generated micro fiche.
Revised Form 3CD : CA Mehul Shah| 15
CLAUSE 11(C) – RELEVANT DOCUMENTS
Books defined u/s 2(12A) - includes ledgers, day-books, cash books, account-
books and other books.
The definition of term “document” and “books” is an inclusive definition and
includes within its ambit documents other than those considered in definition- and
hence very wide scope.
Revised Form 3CD : CA Mehul Shah| 16
CLAUSE 17 - SALE OF IMMOVABLE PROPERTY
Clause
"Where any land or building or both is transferred during the previous year
for a consideration less than value adopted or assessed or assessable by any
authority of a State Government referred to in section 43CA or 50C, please
furnish:
1. Details of property
2. Consideration received or accrued
3. Value adopted or assessed or assessable"
Compliance
The amount prevailing on the date of agreement has to be considered where
any amount is received on or before the date of agreement. Reasonable checks
should be applied by review of 26AS wherein TDS u/s 194IA has been
deducted.
Revised Form 3CD : CA Mehul Shah| 17
CLAUSE 17 - SALE OF IMMOVABLE PROPERTY
In the column requiring the details of property, the auditor has to furnish the
details about the nature of property i.e. whether the property transferred by
him is land or a building along with the address of such property. If the
assessee has transferred more than one property, the detail of all such
properties is required to be mentioned. The auditor should obtain a list of all
properties transferred by the assessee during the previous year. He may also
verify the same from the statement of profit and loss or balance sheet, as the
case may be. Attention is invited to the meaning of the term “transfer” as
defined in section 2(47) of the Act.
Revised Form 3CD : CA Mehul Shah| 18
CLAUSE 17 - SALE OF IMMOVABLE PROPERTY
For reporting the value adopted or assessed or assessable, the auditor should obtain
from the assessee a copy of the registered sale deed in case, the property is
registered. In case the property is not registered, the auditor may verify relevant
documents from relevant authorities or obtain third party expert like lawyer,
solicitor representation to satisfy the compliance of section 43CA/ section 50C of
the Act. In exceptional cases where the auditor is not able to obtain relevant
documents, he may state the same through an observation in his report 3CA/CB.
Revised Form 3CD : CA Mehul Shah| 19
CLAUSE 17 - SALE OF IMMOVABLE PROPERTY
Auditor would have to apply professional judgment as to what constitutes land or
building for e.g. whether leasehold right / development rights / TDR etc would fall
under this provisions or not, would require to be evaluated based on facts &
circumstances of transactions.
Revised Form 3CD : CA Mehul Shah| 20
DCIT vs Tejinder Singh [ 32 CCH 58 (Kolkata Tribunal) ]
“monies received by the assessee being clearly in the nature of receipts for the
transfer of tenancy rights, section 50C of the act could not be invoked ”.
Revised Form 3CD : CA Mehul Shah| 21
CLAUSE 17 - SALE OF IMMOVABLE PROPERTY
Issue
Can penalty be levied u/s 271(1) (c ) for addition u/s
43CA or 50C?
Revised Form 3CD : CA Mehul Shah| 22
Renu Hingorani vs ACIT [ ITA No. 2210/Mum/2010 ]
“Merely because the assessee agreed for addition on the basis of valuation made by
the Stamp Valuation Authority would not be a conclusive proof that the sale
consideration as per this agreement was incorrect and wrong. Accordingly the
addition because of the deeming provisions does not ipso facto attract the penalty u/s
271(1)(c ). Hence in view of the decision of the Hon’ble Supreme Court in the case
of CIT V/s Reliance Petroproducts Pvt.Ltd (supra), the penalty levied u/s 271(1)( c )
is not sustainable. The same is deleted. “
Revised Form 3CD : CA Mehul Shah| 23
Sukhabhai P. Ahir (HUF) vs ITO [ITA No. 2454/Ahd/2009]
“ It is pertinent to note that in the quantum proceedings, there is no finding that the
assessee has received anything more than the consideration mentioned in the sale
deed. The addition was made by invoking the provisions contained in section 50C of
the I.T.Act, 1961. In the case of Shri Haresh P. Shah (supra), relied on by the ld.
Counsel of the assessee, on identical fact, the penalty of Rs.33,082/- was levied
under section 271(1)(c) of the I.T. Act and the same was cancelled by the ITAT,
‘SMC’ Bench, Ahmedabad vide order dated 08.07.2010 (supra) and hence in the
present case also the penalty is deleted “
Revised Form 3CD : CA Mehul Shah| 24
CIT v/s. Madan Teatres Ltd 42 taxmann.com 26 (Cal HC)
“Assessee sold a property for a sum of Rs. 2.51 crore - For purpose of stamp
duty, value was estimated at a sum of Rs. 5.19 crore and on that basis stamp
duty was realized - Thereupon, Assessing Officer having adopted sale price at
Rs. 5.19 crore and passed a penalty order under section 271(1)(c) - Tribunal set
aside said penalty order - On appeal, it was noted that actual amount received on
sale was offered for taxation and it was only on basis of deemed consideration
proceedings under section 271(1)(c) were started - Even otherwise, revenue
failed to produce any iota of evidence that assessee actually received one paise
more than amount shown to have been received by him - Whether in aforesaid
circumstances, Tribunal was justified in setting aside penalty order - Held, yes.”
Revised Form 3CD : CA Mehul Shah| 25
CLAUSE 19 - DEDUCTIONS
Clause
“To provide the details of amounts debited vis-à-vis amounts admissible as
per the provisions of the Income-tax Act, 1961 and also fulfil the conditions,
if any specified.”
Compliance
Admissibility of deductions under specific sections of the Income Tax Act,
1961 to be assessed and section wise chart to be given for deductions under
additional sections of 33AB, 33ABA, 33AC , 35 , 35ABB, 35AC, 35CCA,
35CCB, 35D, 35DD, 35DDA,35E, 32AC, 35(2)(AB), 35AD, 35CCC,
35CCD.
Revised Form 3CD : CA Mehul Shah| 26
CLAUSE 19 - DEDUCTIONS
Clause
“To provide the details of amounts debited vis-à-vis amounts admissible as
per the provisions of the Income-tax Act, 1961 and also fulfil the conditions,
if any specified.”
Compliance
Admissibility of deductions under specific sections of the Income Tax Act,
1961 to be assessed and section wise chart to be given for deductions under
additional sections of 33AB, 33ABA, 33AC , 35 , 35ABB, 35AC, 35CCA,
35CCB, 35D, 35DD, 35DDA,35E, 32AC, 35(2)(AB), 35AD, 35CCC,
35CCD.
Revised Form 3CD : CA Mehul Shah| 27
CLAUSE 19 - DEDUCTIONS
The Tax Auditor should indicate the amount debited to the Profit &
Loss Account and the amount actually admissible in accordance with the
applicable provisions of law.
The amount not debited to the Profit & Loss Account but admissible
under any of the Sections mentioned in the clause have to be found out.
Revised Form 3CD : CA Mehul Shah| 28
CLAUSE 20(b) – Employees’ Contribution
Clause
The clause requires the information regarding the various contributions made
by employees to specific funds and deposited by the employer vvis-a-vis due
date and actual date of such deposit in a tabular format.
Compliance
Revised Form 3CD : CA Mehul Shah| 29
CLAUSE 20(b) – Employees’ Contribution
Issue :
Whether employees contribution allowable if paid after due date
mentioned in the relevant Act but before due date of filing return
of income.
Revised Form 3CD : CA Mehul Shah| 30
CLAUSE 20(b) – Employees’ Contribution
Any delayed deposit of employees’ contribution is deemed as income under
section 2(24)(x). The reporting has to be done under this clause irrespective of
the time of deposit. If the same has been deducted and deposited before the
due date of filing of return under section 139(1), then it is worthwhile to note
that the same may not be added to the income of the assessee as per following
judgements :
1) CIT vs AIMIL Ltd. [2010] 321 ITR 508 (Del)
2) CIT vs Kichha Sugar 356 ITR 351 (Utt)
However, a converse view has been taken in the case of CIT vs Gujarat
State Road Transport Corporation [2014] (41 Taxmann.com 100) by
Gujarat High Court.
Revised Form 3CD : CA Mehul Shah| 31
CLAUSE 21(a) - INADMISSIBLE AMOUNTS
Clause 21(a)
"Please furnish the details of amounts debited to the profit and
loss account, being in the nature of capital, personal,
advertisement expenditure etc"
Sections covered by Clause 21(a):
Section 37(1) covers Personal or Capital Expenditure or Penalty
Section 37(2B) - advertisement in any souvenir, brochure, tract,
pamphlet or the like published by a political party
Revised Form 3CD : CA Mehul Shah| 32
CLAUSE 21(a) - INADMISSIBLE AMOUNTS
Where the penalty or fine is in the nature of penalty or fine only, the
entire amount thereof will have to be stated.
“In case of Malwa Vanaspati & Chemical Co. vs CIT [ 1997] 225 ITR 383
(SC), it was held that where the assessee is required to pay an amount
comprising both the elements of compensation and penalty, the amount shall
be bifercated and the compensation is allowable as business expenditure , and
penalty shall be disallowed”
Revised Form 3CD : CA Mehul Shah| 33
CLAUSE 21 - INADMISSIBLE AMOUNTS
Clause 21(b):
"Amounts inadmissible under section 40(a):-
(1) as payment to non-resident referred to in sub-clause (i)
(A) Details of payment on which tax is not deducted:
(B) Details of payment on which tax has been deducted but has not
been paid during the previous year or in the subsequent year
before the expiry of time prescribed under section 200(1)"
Compliance
Date, amount, nature of payment, name & address of payee, amount of
tax deducted.
Revised Form 3CD : CA Mehul Shah| 34
CLAUSE 21 - INADMISSIBLE AMOUNTS
Clause 21(b):
"Amounts inadmissible under section 40(a):-
(2) as payment referred to in sub-clause (ia)
(A) Details of payment on which tax is not deducted:
(B) Details of payment on which tax has been deducted but has not
been paid on or before the due date specified in sub-section (1)
of section 139."
Compliance
Date, amount, nature of payment, name & address of payee, amount
of tax deducted.
Revised Form 3CD : CA Mehul Shah| 35
CLAUSE 21(b) - INADMISSIBLE AMOUNTS
The Finance Act 2012, inserted second proviso in section 40(a)(ia) with
effect from 01-04-2013 (A.Y.2013-14) as a consequence to amendment in
Section 201. The second proviso provides that where an assessee fails to
deduct the whole or any part of the tax in accordance with the provisions of
Chapter XVII-B on any such sum but is not deemed to be an assessee in
default under the first proviso to sub-section (1) of section 201, then, for the
purpose of clause(ia) of section 40(a), it shall be deemed that the assessee
has deducted and paid the tax on such sum on the date of furnishing of
return of income by the resident payee referred to in the said proviso.
Revised Form 3CD : CA Mehul Shah| 36
CLAUSE 21(b) - INADMISSIBLE AMOUNTS
Where the auditee claims deduction under the second proviso to
subsection (ia) it is deemed that he has deducted and paid the tax and
hence such sum on which tax is so deemed to be deducted and paid is
not inadmissible, the tax auditor should verify compliance with the
requirements of section 201. He should also obtain and keep in his
record a copy of certificate in Form 26A as required by section 201
read with section 40(a)(ia).
Revised Form 3CD : CA Mehul Shah| 37
CLAUSE 21(b) – Dineshkumar Deepakkumar Creation
Pvt Ltd ( Ahmedabad Bench )
The amendment in 201 by Finance Act 2012 is retrospective in nature.
Revised Form 3CD : CA Mehul Shah| 38
CLAUSE 21 - INADMISSIBLE AMOUNTS
Clause 21(d):
"Disallowance/deemed income under section 40A(3)”
Compliance
Serial No., Date, Nature, Amount of payment Name & PAN of the payee, if
available.
Certificate now not to be obtained but CA should step in the shoes of the
Assessing Officer.
Revised Form 3CD : CA Mehul Shah| 39
CLAUSE 27(a) - CENVAT
Clause
"Amount of Central Value Added Tax credits availed of or utilised during the
previous year and its treatment in the profit and loss account and treatment
of outstanding Central Value Added Tax credits in the accounts."
Compliance
MODVAT replaced by CENVAT
Opening, Closing balance of CENVAT Credit Availed value and utilized
value of CENVAT to be disclosed
Revised Form 3CD : CA Mehul Shah| 40
CLAUSE 28 - 56(2)(viia)
Clause
"Whether during the previous year the assessee has received any property,
being share of a company not being a company in which the public are
substantially interested, without consideration or for inadequate consideration
as referred to in section 56(2)(viia), if yes, please furnish the details of the
same."
Section 56(2)(viia) is applicable if following conditions are satisfied :-
1. Assessee is a Firm or a Company
2. Assessee receives Shares of another unlisted Company from any Person
3. The Shares are received without consideration or for a consideration less
than Fair market value of shares, so received
4. Aggregate FMV of shares so received is > Rs. 50,000/- in case of without
consideration or difference is > Rs. 50,000/- in case consideration is less than
FMV
CLAUSE 28 - 56(2)(viia)
Revised Form 3CD : CA Mehul Shah| 41
CLAUSE 28 - 56(2)(viia)
Compliance
FMV to be determined as per Rule 11U and 11UA. Section 56(2)(viia)
shall not apply to transactions not regarded as transfer under section 47.
Said method is illustrated with an example.
Revised Form 3CD : CA Mehul Shah| 42
Revised Form 3CD : CA Mehul Shah| 43
CLAUSE 28 - 56(2)(viia)
Basic exemption limit of Rs 50,000/- is not mentioned in Revised Form 3CD
though same is provided in section 56(2)(viia). Thus even if consideration
does not exceed basic exemption limit of Rs 50,000/- in aggregate, such
transaction of receipt of shares shall be reported in Revised Form 3CD.
However Tax Auditor may write a suitable Note that since the aggregate of
FMV or difference between consideration and FMV does not exceed Rs
50,000/-, it is not reported in Form 3CD as it does not have an impact on
Computation of Total Income.
Revised Form 3CD : CA Mehul Shah| 44
Revised Form 3CD : CA Mehul Shah| 45
CLAUSE 29 - 56(2)(viib)
Clause
"Whether during the previous year the assessee received any consideration
for issue of shares which exceeds the fair market value of the shares as
referred to in section 56(2)(viib), if yes, please furnish the details of the
same."
Section 56(2)(viib) is applicable if following conditions are satisfied :-
1. Assessee is a Company
2. Assessee receives consideration for the issue of its Shares from resident
person
3. Shares are issued at a price which is higher than the Face value
4. Aggregate consideration received exceeds the FMV of shares issued
CLAUSE 29 - 56(2)(viib)
Revised Form 3CD : CA Mehul Shah| 46
CLAUSE 29 - 56(2)(viib)
Compliance
Consideration received - FMV = Taxable i.e. excess share premium.
FMV = As determined under Rule 11U/UA or as substantiated to the
satisfaction of the officer
Shall not apply to - Venture Capital Undertaking from Venture Capital
Company/Venture Capital Fund or persons notified by Central
Government.
Revised Form 3CD : CA Mehul Shah| 47
The proviso to section 68 added by Finance Act, 2012 and section
115BBE.
By making amendment in the proviso of this section now it will
be almost impossible to introduce unaccounted money in this
manner. In a way it is a very welcome amendment as it is to curb
introduction of black money in the guise of companies share
capital. In view of this now every company in which public are
not substantially interested shall have to maintain and in turn
produce before the Income tax authorities the genuineness and
creditworthiness besides the identity of the investors/shareholders
in share capital.
Revised Form 3CD : CA Mehul Shah| 48
The proviso to section 68 added by Finance Act, 2012 and section
115BBE.
With the amendment to section 68 by the Budget, 2012, in respect
of share capital and share premium, the insertion of section
56(2)(viib) to treat the amount in excess of FMV as income is not
warranted. If we look through both the amendments to section
56(2)(viib) and section 68, it is short of a double jeopardy. The
department should not resort to the new provisions of section
56(2)(viib) if the source of amount in the hands of
shareholder/applicant of shares is satisfactorily proved under
section 68, as the new proviso to section 68 itself casts a onerous
Revised Form 3CD : CA Mehul Shah| 49
The proviso to section 68 added by Finance Act, 2012 and
section 115BBE.
duty. The law makers have not envisaged a situation where an
addition may be made under section 68 and if the shares are
issued at price more than FMV, the A.O. may also make deemed
addition under section 56(2)(viib). It is suggested that a proviso
should be added to section 56(2)(viib) to mitigate such hardship
by providing that the addition under section 56(2)(viib) will not
be made to the extent income is deemed under section 68 or vice
versa.
Revised Form 3CD : CA Mehul Shah| 50
The proviso to section 68 added by Finance Act, 2012 and
section 115BBE.
As a result of amendment by the Budget, 2012, the tax rate for
amounts to be added under section 68 is now prescribed at
highest marginal rate under section 115BBE w.e.f. the assessment
year 2013-14.
Revised Form 3CD : CA Mehul Shah| 51
Revised Form 3CD : CA Mehul Shah| 52
CLAUSE 32(d) - LOSS IN SPECIFIED BUSINESS
Clause
"whether the assessee has incurred any loss referred to in section
73A in respect of any specified business during the previous year, if
yes, please furnish details of the same."
Compliance
35AD - specified businesses - loss to be reported.
Revised Form 3CD : CA Mehul Shah| 53
CLAUSE 33 - CHAPTER III DEDUCTIONS
Clause
"Section-wise details of deductions, if any, admissible under Chapter
VIA or Chapter III (Section 10A, Section 10AA)"
Revised Form 3CD : CA Mehul Shah| 54
CLAUSE 33 - CHAPTER III DEDUCTIONS
Honourable Karnataka High Court dated 11.12.2013 in case of ACIT Vs.
Motorola India Electronics.
The only difference is that Section 80HHC contains a further mandate in
terms of Explanation (baa) for exclusion of certain income from the “profits
of the business” which is, however, conspicuous by its absence in Section
10B. On the basis of the aforesaid distinction, Sub-section (4) of Section
10A/10B of the Act is a complete code by itself. Further, it is submitted that
Sub-section (4) does not require an assessee to establish a direct nexus with
the business of the undertaking and once an income forms part of the
business of the undertaking, the same would be included in the profits of the
business of the undertaking. Thus, once an income forms part of the business
of the eligible undertaking, there is no further mandate in the provisions of
section 10B to exclude the same from the eligible profits.
Revised Form 3CD : CA Mehul Shah| 55
CLAUSE 34(a) - TDS/TCS CHART
Clause
"Whether the assessee is required to deduct or collect tax as per the provisions
of Chapter XVII-B or Chapter XVII-BB, if yes please furnish"
Compliance
Tabular information of TDS/TCS
(i) TAN
(ii) Sections under which TDS or TCS deducted or collected
(iii) Nature of Payment
(iv) Total Amount of payment (including non-tax deductible or collectible portion)
Revised Form 3CD : CA Mehul Shah| 56
CLAUSE 34(a) - TDS/TCS CHART
(v) Total amount on which tax was to be deducted or collected
(vi) Total amount on which tax actually deducted or collected
(vii) Total amount of tax actually deducted or collected on above
(viii) Total amount on which tax actually deducted or collected at less than
specified rate
(ix) Total amount of tax actually deducted or collected at less than specified
rate
(x) Amount of tax deducted or collected but not deposited
Revised Form 3CD : CA Mehul Shah| 57
CLAUSE 34(a) - TDS/TCS CHART
Tax
deductio
n and
collectio
n
Account
Number
(TAN)
Sectio
n
Nature
of
payme
nt
Total
amount
of
payme
nt or
receipt
of the
nature
specifie
d in
column
(3)
Total
amount
on
which
tax was
require
d to be
deducte
d or
collecte
d out of
(4)
Total
amount
on
which
tax was
deducte
d or
collecte
d at
specifie
d rate
out of
(5)
Amount
of tax
deducte
d or
collecte
d out of
(6)
Total
amount
on
which
tax was
deducte
d or
collecte
d at
less
than
specifie
d rate
out of
(7)
Amount
of tax
deducte
d or
collecte
d on
(8)
Amount of
tax
deducted
or
collected
not
deposited
to the
credit of
the
Central
Governme
nt out of
(6) and
(8)
(1) (2) (3) (4) (5) (6) (7) (8) (9) (10)
IT : When it was not established that there was failure on part of assessee to
disclose truly and correctly all material facts, assessment could not be reopened
after expiry of four years to disallow interest on ground that no interest was
offered on loan advanced and to disallow rent on ground that TDS was not
deducted thereon.
CIT vs Ankit Maheshwari [2014] 48 taxmann.com 147 (Gujarat)
PRICE WATERHOUSE COOPERS PVT. LTD. vs. CIT
Facts:
Penalty u/s 271(1)(c)—Assessee, by mistake claimed a deduction in
respect of provision towards payment of gratuity in its return of
income, even though Tax Audit Report indicated that such provision
was not allowable—AO initiated penalty on assessee for concealing
income.
Held:
Tax Audit Report was filed along with the return and that it unequivocally stated
that the provision for payment was not allowable under s 40A(7) of the Act
indicates that the assessee made a computation error in its return of income.
The contents of the Tax Audit Report suggest that there is no question of the
assessee concealing its income. There is also no question of the assessee
furnishing any inaccurate particulars. It appears that all that has happened in the
present case is that through a bona fide and inadvertent error, the assessee
while submitting its return, failed to add the provision for gratuity to its total
income….
PRICE WATERHOUSE COOPERS PVT. LTD. VS. CIT
Held:
… Cont
This can only be described as a human error which we are all prone to
make. The calibre and expertise of the assessee has little or nothing to
do with the inadvertent error. That the assessee should have been
careful cannot be doubted, but the absence of due care, in a case such
as the present, does not mean that the assessee is guilty of either
furnishing inaccurate particulars or attempting to conceal its income.
PRICE WATERHOUSE COOPERS PVT. LTD. VS. CIT
Held:
… Cont
This can only be described as a human error which we are all prone to
make. The calibre and expertise of the assessee has little or nothing to
do with the inadvertent error. That the assessee should have been
careful cannot be doubted, but the absence of due care, in a case such
as the present, does not mean that the assessee is guilty of either
furnishing inaccurate particulars or attempting to conceal its income.
PRICE WATERHOUSE COOPERS PVT. LTD. VS. CIT
Held:
… Cont
This can only be described as a human error which we are all prone to
make. The calibre and expertise of the assessee has little or nothing to do
with the inadvertent error. That the assessee should have been careful
cannot be doubted, but the absence of due care, in a case such as the
present, does not mean that the assessee is guilty of either furnishing
inaccurate particulars or attempting to conceal its income.
PRICE WATERHOUSE COOPERS PVT. LTD. VS. CIT
Revised Form 3CD : CA Mehul Shah| 64
CLAUSE 34(b) - LATE FILING OF TDS RETURN
Clause
“Whether the assessee has furnished the statement of tax deducted or tax
collected within the prescribed time. If not, please furnish the details"
Compliance
To provide details of whether TDS return has been filed on time or not.
If TDS/TCS return is filed late entire late filed return will have to be verified since
the clause requires following details:
"Whether the statement of tax deducted or collected contains information about all
transactions which are required to be reported"
Revised Form 3CD : CA Mehul Shah| 65
CLAUSE 34(c) - INTEREST - TDS/TCS
Clause
"whether the assessee is liable to pay interest under section 201(1A)
or section 206C(7). If yes, please furnish:
(i) TAN
(ii) Amount of interest payable
(iii) Amount paid out of (ii) mentioned above
(iv) Date of payment"
Compliance
Auditor will have to recheck calculation of the interest on default in
payments of TDS/TCS. Also need to cross check from 26AS.
Revised Form 3CD : CA Mehul Shah| 66
CLAUSE 37 & 38 - COST AUDIT & Excise Audit
Clause 37
"Whether any cost audit was carried out, if yes, give the details, if any, of
disqualification or disagreement on any matter /item/ value/ quantity as may
be reported/ identified by the cost auditor."
Clause 38
"Whether any audit was conducted under the Central Excise Act,1944, if
yes, give the details, if any, of disqualification or disagreement on any
matter /item /value /quantity as may be reported/identified by the auditor."
Revised Form 3CD : CA Mehul Shah| 67
CLAUSE 39 - SERVICE TAX AUDIT
Clause
"Whether any audit was conducted under section 72A of the Finance Act,
1994 in relation to valuation of taxable services, if yes, give the details, if
any, of disqualification or disagreement on any matter/item/ value/ quantity
as may be reported/identified by the auditor."
Revised Form 3CD : CA Mehul Shah| 68
CLAUSE 40 - RATIOS
Clause
"Details regarding turnover, gross profit, etc., for the previous
year and preceding previous year:"
Compliance
Comparative data of previous year to be reported.
Total turnover is to be reported for the previous year as well as for preceding
financial year.
Revised Form 3CD : CA Mehul Shah| 69
CLAUSE 41 - DEMAND OR REFUND UNDER ANY TAX LAWS
Clause
"Please furnish the details of demand raised or refund issued during
the previous year under any tax laws other than Income tax Act,
1961 and Wealth tax Act, 1957 along with details of relevant
proceedings."
Compliance
If the details are not available from the client, relevant disclosures to be made
in Form 3CA/ Form 3CB
Revised Form 3CD : CA Mehul Shah| 70
REMOVAL OF ANNEXURE I
Annexure removed.
Revised Form 3CD : CA Mehul Shah| 71
QUESTIONS FROM THE AUDIENCE
In case of query ,
72
CA Mehul Shah
Mobile : 9723459572
E-mail : mehul@raseshca.com
Partner
Rasesh Shah and Assocaites
| 72International Taxation : CA Mehul Shah
| 73International Taxation : CA Mehul Shah
ABOUT THE AUTHOR
Author, Mr. Mehul Rasesh Shah is a member of the ICAI. He has pursued
certificate Course in International Taxation in the year 2012 conducted by the
ICAI. He has also completed his Diploma in IFRS (ACCA, London) and Advanced
Diploma in Management Accounting (CIMA, London) in the year 2013. Currently
he is handling many Appellate proceedings including representation before the
Tribunal and Settlement Commission. He can be reached at
mehul@raseshca.com
International Taxation : CA Mehul Shah| 74

Revised Form 3CD presentation

  • 1.
    Revised Form 3CD: CA Mehul Shah | 1 Revised Form 3CD Amendments and Additions CA MEHUL SHAH RASESH SHAH AND ASSOCIATES mehul@raseshca.com 9723459572
  • 2.
    Disclaimer The stuff tofollow are just “my opinion.” Opinion are like wrist watches. All show different times but all think that their time is correct… | 2International Taxation : CA Mehul Shah
  • 3.
    Revised Form 3CD: CA Mehul Shah | 3 Amendment in Form No. 3CA, 3CB & 3CD Notification No. 33/2014 dated 25th July, 2014 1. Form No. 3CA/3CB a. Amendments in Form No. 3CA b. Amendments in Form No. 3CB c. Other amendments 2. Form No. 3CD a. Newly inserted clauses b. Amendments in clauses c. Specific format provided
  • 4.
    Revised Form 3CD: CA Mehul Shah | 4 Amendments in Form 3CA Scope of auditor increased :
  • 5.
    Revised Form 3CD: CA Mehul Shah | 5 Amendments in Form 3CB Dispensed with Annexures to Form no 3CD and provided space for specifying observations and qualifications :
  • 6.
    Revised Form 3CD: CA Mehul Shah | 6 Amendments in Form 3CD : Overview
  • 7.
    Revised Form 3CD: CA Mehul Shah | 7 CLAUSE 4 - REGISTRATION NOS. Clause "Whether the assessee is liable to pay indirect tax like excise duty, service tax, sales tax, customs duty etc. if yes, please furnish the registration number or any other identification number allotted for the same" Compliance The auditor should obtain from the assessee and disclose the list of indirect taxes applicable to him as well as exercise his diligence regarding the applicability of different taxes based on the nature of the client business. The aim of this clause would be to cross check the information like sales, production, CENVAT etc. submitted under various statutes.
  • 8.
    Revised Form 3CD: CA Mehul Shah | 8 CLAUSE 4 - REGISTRATION NOS. Points to Remember • Eventually, auditor is required to obtain a copy of the registration certificate clearly mentioning the registration number under that relevant law. • Where the indirect tax law does not require any registration, appropriate identification number may be reported in this clause. For example, in Customs Act, 1962, since there is no registration number, a copy of Export Import Code (IEC) may be obtained and information be accordingly furnished.
  • 9.
    Revised Form 3CD: CA Mehul Shah | 9 CLAUSE 4 - REGISTRATION NOS. According to the Guidance Note ( ICAI) : The information may be obtained and maintained in the following format:
  • 10.
    | 10Revised Form3CD : CA Mehul Shah CLAUSE 8 - RELEVANT CLAUSE OF 44AB Clause "Indicate the relevant clause of section 44AB under which the audit has been conducted" Compliance To mention the relevant clause of 44AB : (a) Business (b) Profession (c) 44AE, 44BB, 44BBB (d) 44AD
  • 11.
    | 11Revised Form3CD : CA Mehul Shah CLAUSE 8 - RELEVANT CLAUSE OF 44AB Clause "Indicate the relevant clause of section 44AB under which the audit has been conducted" Implications : Section 194C and 194H etc only makes a reference to 44AB(a) and 44AB(b). Therefore, for individual & HUF, if audit is conducted u/s 44AB(c) & (d), TDS provisions are not applicable.
  • 12.
    Revised Form 3CD: CA Mehul Shah| 12 CLAUSE 11(b) -ADDRESS BOOKS Clause "List of books of account maintained and the address at which the books of accounts are kept. (If the books of accounts are not kept at one location, please furnish the addresses of locations along with the details of books of accounts maintained at each location. )" Compliance Disclosure of ‘Place of business’ regarding where the books are kept in order to facilitate a list of places where a visit could be initiated for conduct of ‘Survey’ under 133A.
  • 13.
    Revised Form 3CD: CA Mehul Shah| 13 CLAUSE 11(C) – RELEVANT DOCUMENTS Clause "List of books of account and nature of relevant documents examined." Compliance The auditor needs to disclose the list of ‘relevant documents’ examined which has a very wide scope including all Deeds, Agreements, Registrations, Returns, Challans, Invoices, BRS, Bank Statements, Salary Register, CENVAT Register etc.
  • 14.
    Revised Form 3CD: CA Mehul Shah| 14 CLAUSE 11(C) – RELEVANT DOCUMENTS Attention is also drawn to the definition of ‘document’ as per section 2(22AA) of the Act which is as under: "document" includes an electronic record as defined in clause (t) of sub-section (1) of section 2 of the Information Technology Act, 2000 Section 2(1)(t) of the Information Technology Act, 2000 as referred above is reproduced below: "electronic record" means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche.
  • 15.
    Revised Form 3CD: CA Mehul Shah| 15 CLAUSE 11(C) – RELEVANT DOCUMENTS Books defined u/s 2(12A) - includes ledgers, day-books, cash books, account- books and other books. The definition of term “document” and “books” is an inclusive definition and includes within its ambit documents other than those considered in definition- and hence very wide scope.
  • 16.
    Revised Form 3CD: CA Mehul Shah| 16 CLAUSE 17 - SALE OF IMMOVABLE PROPERTY Clause "Where any land or building or both is transferred during the previous year for a consideration less than value adopted or assessed or assessable by any authority of a State Government referred to in section 43CA or 50C, please furnish: 1. Details of property 2. Consideration received or accrued 3. Value adopted or assessed or assessable" Compliance The amount prevailing on the date of agreement has to be considered where any amount is received on or before the date of agreement. Reasonable checks should be applied by review of 26AS wherein TDS u/s 194IA has been deducted.
  • 17.
    Revised Form 3CD: CA Mehul Shah| 17 CLAUSE 17 - SALE OF IMMOVABLE PROPERTY In the column requiring the details of property, the auditor has to furnish the details about the nature of property i.e. whether the property transferred by him is land or a building along with the address of such property. If the assessee has transferred more than one property, the detail of all such properties is required to be mentioned. The auditor should obtain a list of all properties transferred by the assessee during the previous year. He may also verify the same from the statement of profit and loss or balance sheet, as the case may be. Attention is invited to the meaning of the term “transfer” as defined in section 2(47) of the Act.
  • 18.
    Revised Form 3CD: CA Mehul Shah| 18 CLAUSE 17 - SALE OF IMMOVABLE PROPERTY For reporting the value adopted or assessed or assessable, the auditor should obtain from the assessee a copy of the registered sale deed in case, the property is registered. In case the property is not registered, the auditor may verify relevant documents from relevant authorities or obtain third party expert like lawyer, solicitor representation to satisfy the compliance of section 43CA/ section 50C of the Act. In exceptional cases where the auditor is not able to obtain relevant documents, he may state the same through an observation in his report 3CA/CB.
  • 19.
    Revised Form 3CD: CA Mehul Shah| 19 CLAUSE 17 - SALE OF IMMOVABLE PROPERTY Auditor would have to apply professional judgment as to what constitutes land or building for e.g. whether leasehold right / development rights / TDR etc would fall under this provisions or not, would require to be evaluated based on facts & circumstances of transactions.
  • 20.
    Revised Form 3CD: CA Mehul Shah| 20 DCIT vs Tejinder Singh [ 32 CCH 58 (Kolkata Tribunal) ] “monies received by the assessee being clearly in the nature of receipts for the transfer of tenancy rights, section 50C of the act could not be invoked ”.
  • 21.
    Revised Form 3CD: CA Mehul Shah| 21 CLAUSE 17 - SALE OF IMMOVABLE PROPERTY Issue Can penalty be levied u/s 271(1) (c ) for addition u/s 43CA or 50C?
  • 22.
    Revised Form 3CD: CA Mehul Shah| 22 Renu Hingorani vs ACIT [ ITA No. 2210/Mum/2010 ] “Merely because the assessee agreed for addition on the basis of valuation made by the Stamp Valuation Authority would not be a conclusive proof that the sale consideration as per this agreement was incorrect and wrong. Accordingly the addition because of the deeming provisions does not ipso facto attract the penalty u/s 271(1)(c ). Hence in view of the decision of the Hon’ble Supreme Court in the case of CIT V/s Reliance Petroproducts Pvt.Ltd (supra), the penalty levied u/s 271(1)( c ) is not sustainable. The same is deleted. “
  • 23.
    Revised Form 3CD: CA Mehul Shah| 23 Sukhabhai P. Ahir (HUF) vs ITO [ITA No. 2454/Ahd/2009] “ It is pertinent to note that in the quantum proceedings, there is no finding that the assessee has received anything more than the consideration mentioned in the sale deed. The addition was made by invoking the provisions contained in section 50C of the I.T.Act, 1961. In the case of Shri Haresh P. Shah (supra), relied on by the ld. Counsel of the assessee, on identical fact, the penalty of Rs.33,082/- was levied under section 271(1)(c) of the I.T. Act and the same was cancelled by the ITAT, ‘SMC’ Bench, Ahmedabad vide order dated 08.07.2010 (supra) and hence in the present case also the penalty is deleted “
  • 24.
    Revised Form 3CD: CA Mehul Shah| 24 CIT v/s. Madan Teatres Ltd 42 taxmann.com 26 (Cal HC) “Assessee sold a property for a sum of Rs. 2.51 crore - For purpose of stamp duty, value was estimated at a sum of Rs. 5.19 crore and on that basis stamp duty was realized - Thereupon, Assessing Officer having adopted sale price at Rs. 5.19 crore and passed a penalty order under section 271(1)(c) - Tribunal set aside said penalty order - On appeal, it was noted that actual amount received on sale was offered for taxation and it was only on basis of deemed consideration proceedings under section 271(1)(c) were started - Even otherwise, revenue failed to produce any iota of evidence that assessee actually received one paise more than amount shown to have been received by him - Whether in aforesaid circumstances, Tribunal was justified in setting aside penalty order - Held, yes.”
  • 25.
    Revised Form 3CD: CA Mehul Shah| 25 CLAUSE 19 - DEDUCTIONS Clause “To provide the details of amounts debited vis-à-vis amounts admissible as per the provisions of the Income-tax Act, 1961 and also fulfil the conditions, if any specified.” Compliance Admissibility of deductions under specific sections of the Income Tax Act, 1961 to be assessed and section wise chart to be given for deductions under additional sections of 33AB, 33ABA, 33AC , 35 , 35ABB, 35AC, 35CCA, 35CCB, 35D, 35DD, 35DDA,35E, 32AC, 35(2)(AB), 35AD, 35CCC, 35CCD.
  • 26.
    Revised Form 3CD: CA Mehul Shah| 26 CLAUSE 19 - DEDUCTIONS Clause “To provide the details of amounts debited vis-à-vis amounts admissible as per the provisions of the Income-tax Act, 1961 and also fulfil the conditions, if any specified.” Compliance Admissibility of deductions under specific sections of the Income Tax Act, 1961 to be assessed and section wise chart to be given for deductions under additional sections of 33AB, 33ABA, 33AC , 35 , 35ABB, 35AC, 35CCA, 35CCB, 35D, 35DD, 35DDA,35E, 32AC, 35(2)(AB), 35AD, 35CCC, 35CCD.
  • 27.
    Revised Form 3CD: CA Mehul Shah| 27 CLAUSE 19 - DEDUCTIONS The Tax Auditor should indicate the amount debited to the Profit & Loss Account and the amount actually admissible in accordance with the applicable provisions of law. The amount not debited to the Profit & Loss Account but admissible under any of the Sections mentioned in the clause have to be found out.
  • 28.
    Revised Form 3CD: CA Mehul Shah| 28 CLAUSE 20(b) – Employees’ Contribution Clause The clause requires the information regarding the various contributions made by employees to specific funds and deposited by the employer vvis-a-vis due date and actual date of such deposit in a tabular format. Compliance
  • 29.
    Revised Form 3CD: CA Mehul Shah| 29 CLAUSE 20(b) – Employees’ Contribution Issue : Whether employees contribution allowable if paid after due date mentioned in the relevant Act but before due date of filing return of income.
  • 30.
    Revised Form 3CD: CA Mehul Shah| 30 CLAUSE 20(b) – Employees’ Contribution Any delayed deposit of employees’ contribution is deemed as income under section 2(24)(x). The reporting has to be done under this clause irrespective of the time of deposit. If the same has been deducted and deposited before the due date of filing of return under section 139(1), then it is worthwhile to note that the same may not be added to the income of the assessee as per following judgements : 1) CIT vs AIMIL Ltd. [2010] 321 ITR 508 (Del) 2) CIT vs Kichha Sugar 356 ITR 351 (Utt) However, a converse view has been taken in the case of CIT vs Gujarat State Road Transport Corporation [2014] (41 Taxmann.com 100) by Gujarat High Court.
  • 31.
    Revised Form 3CD: CA Mehul Shah| 31 CLAUSE 21(a) - INADMISSIBLE AMOUNTS Clause 21(a) "Please furnish the details of amounts debited to the profit and loss account, being in the nature of capital, personal, advertisement expenditure etc" Sections covered by Clause 21(a): Section 37(1) covers Personal or Capital Expenditure or Penalty Section 37(2B) - advertisement in any souvenir, brochure, tract, pamphlet or the like published by a political party
  • 32.
    Revised Form 3CD: CA Mehul Shah| 32 CLAUSE 21(a) - INADMISSIBLE AMOUNTS Where the penalty or fine is in the nature of penalty or fine only, the entire amount thereof will have to be stated. “In case of Malwa Vanaspati & Chemical Co. vs CIT [ 1997] 225 ITR 383 (SC), it was held that where the assessee is required to pay an amount comprising both the elements of compensation and penalty, the amount shall be bifercated and the compensation is allowable as business expenditure , and penalty shall be disallowed”
  • 33.
    Revised Form 3CD: CA Mehul Shah| 33 CLAUSE 21 - INADMISSIBLE AMOUNTS Clause 21(b): "Amounts inadmissible under section 40(a):- (1) as payment to non-resident referred to in sub-clause (i) (A) Details of payment on which tax is not deducted: (B) Details of payment on which tax has been deducted but has not been paid during the previous year or in the subsequent year before the expiry of time prescribed under section 200(1)" Compliance Date, amount, nature of payment, name & address of payee, amount of tax deducted.
  • 34.
    Revised Form 3CD: CA Mehul Shah| 34 CLAUSE 21 - INADMISSIBLE AMOUNTS Clause 21(b): "Amounts inadmissible under section 40(a):- (2) as payment referred to in sub-clause (ia) (A) Details of payment on which tax is not deducted: (B) Details of payment on which tax has been deducted but has not been paid on or before the due date specified in sub-section (1) of section 139." Compliance Date, amount, nature of payment, name & address of payee, amount of tax deducted.
  • 35.
    Revised Form 3CD: CA Mehul Shah| 35 CLAUSE 21(b) - INADMISSIBLE AMOUNTS The Finance Act 2012, inserted second proviso in section 40(a)(ia) with effect from 01-04-2013 (A.Y.2013-14) as a consequence to amendment in Section 201. The second proviso provides that where an assessee fails to deduct the whole or any part of the tax in accordance with the provisions of Chapter XVII-B on any such sum but is not deemed to be an assessee in default under the first proviso to sub-section (1) of section 201, then, for the purpose of clause(ia) of section 40(a), it shall be deemed that the assessee has deducted and paid the tax on such sum on the date of furnishing of return of income by the resident payee referred to in the said proviso.
  • 36.
    Revised Form 3CD: CA Mehul Shah| 36 CLAUSE 21(b) - INADMISSIBLE AMOUNTS Where the auditee claims deduction under the second proviso to subsection (ia) it is deemed that he has deducted and paid the tax and hence such sum on which tax is so deemed to be deducted and paid is not inadmissible, the tax auditor should verify compliance with the requirements of section 201. He should also obtain and keep in his record a copy of certificate in Form 26A as required by section 201 read with section 40(a)(ia).
  • 37.
    Revised Form 3CD: CA Mehul Shah| 37 CLAUSE 21(b) – Dineshkumar Deepakkumar Creation Pvt Ltd ( Ahmedabad Bench ) The amendment in 201 by Finance Act 2012 is retrospective in nature.
  • 38.
    Revised Form 3CD: CA Mehul Shah| 38 CLAUSE 21 - INADMISSIBLE AMOUNTS Clause 21(d): "Disallowance/deemed income under section 40A(3)” Compliance Serial No., Date, Nature, Amount of payment Name & PAN of the payee, if available. Certificate now not to be obtained but CA should step in the shoes of the Assessing Officer.
  • 39.
    Revised Form 3CD: CA Mehul Shah| 39 CLAUSE 27(a) - CENVAT Clause "Amount of Central Value Added Tax credits availed of or utilised during the previous year and its treatment in the profit and loss account and treatment of outstanding Central Value Added Tax credits in the accounts." Compliance MODVAT replaced by CENVAT Opening, Closing balance of CENVAT Credit Availed value and utilized value of CENVAT to be disclosed
  • 40.
    Revised Form 3CD: CA Mehul Shah| 40 CLAUSE 28 - 56(2)(viia) Clause "Whether during the previous year the assessee has received any property, being share of a company not being a company in which the public are substantially interested, without consideration or for inadequate consideration as referred to in section 56(2)(viia), if yes, please furnish the details of the same." Section 56(2)(viia) is applicable if following conditions are satisfied :- 1. Assessee is a Firm or a Company 2. Assessee receives Shares of another unlisted Company from any Person 3. The Shares are received without consideration or for a consideration less than Fair market value of shares, so received 4. Aggregate FMV of shares so received is > Rs. 50,000/- in case of without consideration or difference is > Rs. 50,000/- in case consideration is less than FMV
  • 41.
    CLAUSE 28 -56(2)(viia) Revised Form 3CD : CA Mehul Shah| 41
  • 42.
    CLAUSE 28 -56(2)(viia) Compliance FMV to be determined as per Rule 11U and 11UA. Section 56(2)(viia) shall not apply to transactions not regarded as transfer under section 47. Said method is illustrated with an example. Revised Form 3CD : CA Mehul Shah| 42
  • 43.
    Revised Form 3CD: CA Mehul Shah| 43
  • 44.
    CLAUSE 28 -56(2)(viia) Basic exemption limit of Rs 50,000/- is not mentioned in Revised Form 3CD though same is provided in section 56(2)(viia). Thus even if consideration does not exceed basic exemption limit of Rs 50,000/- in aggregate, such transaction of receipt of shares shall be reported in Revised Form 3CD. However Tax Auditor may write a suitable Note that since the aggregate of FMV or difference between consideration and FMV does not exceed Rs 50,000/-, it is not reported in Form 3CD as it does not have an impact on Computation of Total Income. Revised Form 3CD : CA Mehul Shah| 44
  • 45.
    Revised Form 3CD: CA Mehul Shah| 45 CLAUSE 29 - 56(2)(viib) Clause "Whether during the previous year the assessee received any consideration for issue of shares which exceeds the fair market value of the shares as referred to in section 56(2)(viib), if yes, please furnish the details of the same." Section 56(2)(viib) is applicable if following conditions are satisfied :- 1. Assessee is a Company 2. Assessee receives consideration for the issue of its Shares from resident person 3. Shares are issued at a price which is higher than the Face value 4. Aggregate consideration received exceeds the FMV of shares issued
  • 46.
    CLAUSE 29 -56(2)(viib) Revised Form 3CD : CA Mehul Shah| 46
  • 47.
    CLAUSE 29 -56(2)(viib) Compliance Consideration received - FMV = Taxable i.e. excess share premium. FMV = As determined under Rule 11U/UA or as substantiated to the satisfaction of the officer Shall not apply to - Venture Capital Undertaking from Venture Capital Company/Venture Capital Fund or persons notified by Central Government. Revised Form 3CD : CA Mehul Shah| 47
  • 48.
    The proviso tosection 68 added by Finance Act, 2012 and section 115BBE. By making amendment in the proviso of this section now it will be almost impossible to introduce unaccounted money in this manner. In a way it is a very welcome amendment as it is to curb introduction of black money in the guise of companies share capital. In view of this now every company in which public are not substantially interested shall have to maintain and in turn produce before the Income tax authorities the genuineness and creditworthiness besides the identity of the investors/shareholders in share capital. Revised Form 3CD : CA Mehul Shah| 48
  • 49.
    The proviso tosection 68 added by Finance Act, 2012 and section 115BBE. With the amendment to section 68 by the Budget, 2012, in respect of share capital and share premium, the insertion of section 56(2)(viib) to treat the amount in excess of FMV as income is not warranted. If we look through both the amendments to section 56(2)(viib) and section 68, it is short of a double jeopardy. The department should not resort to the new provisions of section 56(2)(viib) if the source of amount in the hands of shareholder/applicant of shares is satisfactorily proved under section 68, as the new proviso to section 68 itself casts a onerous Revised Form 3CD : CA Mehul Shah| 49
  • 50.
    The proviso tosection 68 added by Finance Act, 2012 and section 115BBE. duty. The law makers have not envisaged a situation where an addition may be made under section 68 and if the shares are issued at price more than FMV, the A.O. may also make deemed addition under section 56(2)(viib). It is suggested that a proviso should be added to section 56(2)(viib) to mitigate such hardship by providing that the addition under section 56(2)(viib) will not be made to the extent income is deemed under section 68 or vice versa. Revised Form 3CD : CA Mehul Shah| 50
  • 51.
    The proviso tosection 68 added by Finance Act, 2012 and section 115BBE. As a result of amendment by the Budget, 2012, the tax rate for amounts to be added under section 68 is now prescribed at highest marginal rate under section 115BBE w.e.f. the assessment year 2013-14. Revised Form 3CD : CA Mehul Shah| 51
  • 52.
    Revised Form 3CD: CA Mehul Shah| 52 CLAUSE 32(d) - LOSS IN SPECIFIED BUSINESS Clause "whether the assessee has incurred any loss referred to in section 73A in respect of any specified business during the previous year, if yes, please furnish details of the same." Compliance 35AD - specified businesses - loss to be reported.
  • 53.
    Revised Form 3CD: CA Mehul Shah| 53 CLAUSE 33 - CHAPTER III DEDUCTIONS Clause "Section-wise details of deductions, if any, admissible under Chapter VIA or Chapter III (Section 10A, Section 10AA)"
  • 54.
    Revised Form 3CD: CA Mehul Shah| 54 CLAUSE 33 - CHAPTER III DEDUCTIONS Honourable Karnataka High Court dated 11.12.2013 in case of ACIT Vs. Motorola India Electronics. The only difference is that Section 80HHC contains a further mandate in terms of Explanation (baa) for exclusion of certain income from the “profits of the business” which is, however, conspicuous by its absence in Section 10B. On the basis of the aforesaid distinction, Sub-section (4) of Section 10A/10B of the Act is a complete code by itself. Further, it is submitted that Sub-section (4) does not require an assessee to establish a direct nexus with the business of the undertaking and once an income forms part of the business of the undertaking, the same would be included in the profits of the business of the undertaking. Thus, once an income forms part of the business of the eligible undertaking, there is no further mandate in the provisions of section 10B to exclude the same from the eligible profits.
  • 55.
    Revised Form 3CD: CA Mehul Shah| 55 CLAUSE 34(a) - TDS/TCS CHART Clause "Whether the assessee is required to deduct or collect tax as per the provisions of Chapter XVII-B or Chapter XVII-BB, if yes please furnish" Compliance Tabular information of TDS/TCS (i) TAN (ii) Sections under which TDS or TCS deducted or collected (iii) Nature of Payment (iv) Total Amount of payment (including non-tax deductible or collectible portion)
  • 56.
    Revised Form 3CD: CA Mehul Shah| 56 CLAUSE 34(a) - TDS/TCS CHART (v) Total amount on which tax was to be deducted or collected (vi) Total amount on which tax actually deducted or collected (vii) Total amount of tax actually deducted or collected on above (viii) Total amount on which tax actually deducted or collected at less than specified rate (ix) Total amount of tax actually deducted or collected at less than specified rate (x) Amount of tax deducted or collected but not deposited
  • 57.
    Revised Form 3CD: CA Mehul Shah| 57 CLAUSE 34(a) - TDS/TCS CHART Tax deductio n and collectio n Account Number (TAN) Sectio n Nature of payme nt Total amount of payme nt or receipt of the nature specifie d in column (3) Total amount on which tax was require d to be deducte d or collecte d out of (4) Total amount on which tax was deducte d or collecte d at specifie d rate out of (5) Amount of tax deducte d or collecte d out of (6) Total amount on which tax was deducte d or collecte d at less than specifie d rate out of (7) Amount of tax deducte d or collecte d on (8) Amount of tax deducted or collected not deposited to the credit of the Central Governme nt out of (6) and (8) (1) (2) (3) (4) (5) (6) (7) (8) (9) (10)
  • 58.
    IT : Whenit was not established that there was failure on part of assessee to disclose truly and correctly all material facts, assessment could not be reopened after expiry of four years to disallow interest on ground that no interest was offered on loan advanced and to disallow rent on ground that TDS was not deducted thereon. CIT vs Ankit Maheshwari [2014] 48 taxmann.com 147 (Gujarat)
  • 59.
    PRICE WATERHOUSE COOPERSPVT. LTD. vs. CIT Facts: Penalty u/s 271(1)(c)—Assessee, by mistake claimed a deduction in respect of provision towards payment of gratuity in its return of income, even though Tax Audit Report indicated that such provision was not allowable—AO initiated penalty on assessee for concealing income.
  • 60.
    Held: Tax Audit Reportwas filed along with the return and that it unequivocally stated that the provision for payment was not allowable under s 40A(7) of the Act indicates that the assessee made a computation error in its return of income. The contents of the Tax Audit Report suggest that there is no question of the assessee concealing its income. There is also no question of the assessee furnishing any inaccurate particulars. It appears that all that has happened in the present case is that through a bona fide and inadvertent error, the assessee while submitting its return, failed to add the provision for gratuity to its total income…. PRICE WATERHOUSE COOPERS PVT. LTD. VS. CIT
  • 61.
    Held: … Cont This canonly be described as a human error which we are all prone to make. The calibre and expertise of the assessee has little or nothing to do with the inadvertent error. That the assessee should have been careful cannot be doubted, but the absence of due care, in a case such as the present, does not mean that the assessee is guilty of either furnishing inaccurate particulars or attempting to conceal its income. PRICE WATERHOUSE COOPERS PVT. LTD. VS. CIT
  • 62.
    Held: … Cont This canonly be described as a human error which we are all prone to make. The calibre and expertise of the assessee has little or nothing to do with the inadvertent error. That the assessee should have been careful cannot be doubted, but the absence of due care, in a case such as the present, does not mean that the assessee is guilty of either furnishing inaccurate particulars or attempting to conceal its income. PRICE WATERHOUSE COOPERS PVT. LTD. VS. CIT
  • 63.
    Held: … Cont This canonly be described as a human error which we are all prone to make. The calibre and expertise of the assessee has little or nothing to do with the inadvertent error. That the assessee should have been careful cannot be doubted, but the absence of due care, in a case such as the present, does not mean that the assessee is guilty of either furnishing inaccurate particulars or attempting to conceal its income. PRICE WATERHOUSE COOPERS PVT. LTD. VS. CIT
  • 64.
    Revised Form 3CD: CA Mehul Shah| 64 CLAUSE 34(b) - LATE FILING OF TDS RETURN Clause “Whether the assessee has furnished the statement of tax deducted or tax collected within the prescribed time. If not, please furnish the details" Compliance To provide details of whether TDS return has been filed on time or not. If TDS/TCS return is filed late entire late filed return will have to be verified since the clause requires following details: "Whether the statement of tax deducted or collected contains information about all transactions which are required to be reported"
  • 65.
    Revised Form 3CD: CA Mehul Shah| 65 CLAUSE 34(c) - INTEREST - TDS/TCS Clause "whether the assessee is liable to pay interest under section 201(1A) or section 206C(7). If yes, please furnish: (i) TAN (ii) Amount of interest payable (iii) Amount paid out of (ii) mentioned above (iv) Date of payment" Compliance Auditor will have to recheck calculation of the interest on default in payments of TDS/TCS. Also need to cross check from 26AS.
  • 66.
    Revised Form 3CD: CA Mehul Shah| 66 CLAUSE 37 & 38 - COST AUDIT & Excise Audit Clause 37 "Whether any cost audit was carried out, if yes, give the details, if any, of disqualification or disagreement on any matter /item/ value/ quantity as may be reported/ identified by the cost auditor." Clause 38 "Whether any audit was conducted under the Central Excise Act,1944, if yes, give the details, if any, of disqualification or disagreement on any matter /item /value /quantity as may be reported/identified by the auditor."
  • 67.
    Revised Form 3CD: CA Mehul Shah| 67 CLAUSE 39 - SERVICE TAX AUDIT Clause "Whether any audit was conducted under section 72A of the Finance Act, 1994 in relation to valuation of taxable services, if yes, give the details, if any, of disqualification or disagreement on any matter/item/ value/ quantity as may be reported/identified by the auditor."
  • 68.
    Revised Form 3CD: CA Mehul Shah| 68 CLAUSE 40 - RATIOS Clause "Details regarding turnover, gross profit, etc., for the previous year and preceding previous year:" Compliance Comparative data of previous year to be reported. Total turnover is to be reported for the previous year as well as for preceding financial year.
  • 69.
    Revised Form 3CD: CA Mehul Shah| 69 CLAUSE 41 - DEMAND OR REFUND UNDER ANY TAX LAWS Clause "Please furnish the details of demand raised or refund issued during the previous year under any tax laws other than Income tax Act, 1961 and Wealth tax Act, 1957 along with details of relevant proceedings." Compliance If the details are not available from the client, relevant disclosures to be made in Form 3CA/ Form 3CB
  • 70.
    Revised Form 3CD: CA Mehul Shah| 70 REMOVAL OF ANNEXURE I Annexure removed.
  • 71.
    Revised Form 3CD: CA Mehul Shah| 71 QUESTIONS FROM THE AUDIENCE
  • 72.
    In case ofquery , 72 CA Mehul Shah Mobile : 9723459572 E-mail : mehul@raseshca.com Partner Rasesh Shah and Assocaites | 72International Taxation : CA Mehul Shah
  • 73.
  • 74.
    ABOUT THE AUTHOR Author,Mr. Mehul Rasesh Shah is a member of the ICAI. He has pursued certificate Course in International Taxation in the year 2012 conducted by the ICAI. He has also completed his Diploma in IFRS (ACCA, London) and Advanced Diploma in Management Accounting (CIMA, London) in the year 2013. Currently he is handling many Appellate proceedings including representation before the Tribunal and Settlement Commission. He can be reached at mehul@raseshca.com International Taxation : CA Mehul Shah| 74