OECD is an international economic organisation of 34 countries, founded in 1961 to stimulate economic progress and world trade. It is a forum of countries describing themselves as committed to democracy and the market economy, providing a platform to compare policy experiences, seeking answers to common problems, identify good practices and coordinate domestic and international policies of its members.

The G20 is made up of the finance ministers and central bank governors of 19 countries: Argentina, Australia, Brazil, Canada, China, France, Germany, India, Indonesia, Italy, Japan, Mexico, Russia, Saudi Arabia, South Africa, South Korea, Turkey, the United Kingdom, the United States of America.

The remaining seat is held by the European Union, which is represented by the rotating Council presidency and the European Central Bank.

India not a member of OECD, but actively engaged in taxation work of OECD. Since 2006, India been accorded the status of “Participant” / “Observer”of OECD and G20 countries working on equal footing on the BEPS project. Recommendations under BEPS Project made on basis of consensus arrived by 34 OECD Countries and 8 non-OECD G20 countries

India as an non-OECD G20 country, is an active participant in the BEPS project. As member of “Bureau Plus”, participated in the decision making process. India obliged to act on BEPS recommendations. We Can expect BEPS related changes as early in the forthcoming 2016 Budget.

What is BEPS?

The term Base Erosion and Profit Shifting (BEPS) refers to tax avoidance strategies which, by exploiting gaps and mismatches in tax rules, shift profits of Multinational Enterprise (‘MNE’) Groups to low or no tax locations where there is little or no real activity.

What causes BEPS?

The interaction of domestic tax systems in cross border transactions may result in double taxation of same income / leave gaps, resulting in double non-taxation of income.BEPS strategies take advantage of these gaps between tax systems in order to achieve double non-taxation.

Impact:

Global corporate income tax (CIT) revenue losses estimated between 4% and 10% of global CIT revenues, i.e. USD 100 to 240 billion annually. Given developing countries’ greater reliance on CIT revenues, estimates of the impact on developing countries, as a percentage of GDP, are higher than for developed countries.

The Organisation for Economic Co-operation and Development (OECD) has published ‘Action Plans’ on BEPS as an initiative aimed at curbing such strategies. The Action Plans are built around three pillars viz. Coherence, Substance and Transparency. The final reports on the 15 Actions differ in timing of impact and further steps are needed. Some measures may have (almost) immediate effect in a number of countries; others require treaty based action or legislative action by countries. The OECD also has announced plans for additional work on some Actions.

Other Action points (1 is pertaining to concerns on the business involving Digital economy and the harmful tax planning’s and the solutions and 15 is pertaining to multilateral instrument relating to one common document to be signed by the countries accepting the changes that the BEPS action plans are suggesting.)

The Action points pertaining to Transfer Pricing (8-10 and 13) are of immediate impact on the global tax economies including India. In the following paragraphs, we have provided a brief overview of the Action points 8-10, transfer pricing aspects (Intangibles, risk allocation and High value Intra group transactions):

Actions 8-10 – Transfer pricing aspects:

The OECD has included its updated transfer pricing guidance in one report under Actions 8-10, covering: amended guidance on applying the arm’s length principle (revisions to section D of chapter I of the OECD Transfer Pricing Guidelines), notably providing guidance on the identification of the actual transaction undertaken, on what is meant by control of a risk, and on the circumstances in which the actual transaction undertaken may be disregarded for transfer pricing purposes.

Guidance on comparability factors in transfer pricing, including location savings, assembled workforce, and MNE group synergies (additions to chapter I of the OECD Transfer Pricing Guidelines). This guidance remains unchanged from the guidance issued as part of the 2014 report on transfer pricing for intangibles New guidance on transfer pricing for commodity transactions (additions to chapter II of the OECD Transfer Pricing Guidelines). A new version of chapter VI of the OECD Transfer Pricing Guidelines addressing intangibles, including new guidance on the return to funding activities and on hard-to -value intangibles. New guidance on low-value adding intragroup services (revisions to chapter VII of the OECD Transfer Pricing Guidelines).

An entirely new version of chapter VIII of the OECD Transfer Pricing Guidelines, covering cost contribution arrangements In addition, the Actions 8-10 package describes additional work to be conducted by the OECD to produce new guidance on the application of the transactional profit split method. The aim is to produce a discussion draft in 2016 and final guidance during the first half of 2017.

Intangibles:

The intangibles final report consists of a new version of chapter VI, which builds on the version issued in September 2014.10 The structure of the final report is the same, containing four sections providing guidance on: (i) identifying intangibles for transfer pricing purposes, including adefinition of intangibles for transfer pricing purposes; (ii) identifying and characterizing transactions involving intangibles, including the determination of which entity or entities should share in the costs and risks of intangible development and the economic returns from the intangibles; (iii) identifying types of transactions involving intangibles; and (iv) determining arm’s length conditions and pricing in cases involving intangibles, in particular addressing intangible valuation, and arm’s length conditions for hard-to-value intangibles.

The key features of the final report, and key differences from earlier reports on intangibles, are:

Guidance on which entity or entities are entitled to share in the economic return from exploiting intangibles. The final report clarifies and confirms previous work, stating that mere legal ownership of an intangible does not confer any right to the return from its exploitation. Instead, the economic return from intangibles will accrue to the entities that perform the important value creating functions of developing, enhancing, maintaining, protecting and exploiting the intangible, and that assume and manage the risk associated with those functions.

New guidance on determining the arm’s length return for providing funding for intangible development. Where the entity providing the funding exercises control over the financial risk assumed, that entity is entitled to an expected rate of return commensurate with the risk (for example, based on the rate of return that might be achieved by investing in comparable alternative investments). Where the entity does not exercise control over the financial risk, it is entitled to (no more than) a risk free return only.

Guidance on valuation methods. The final report confirms that database comparables are seldom appropriate for pricing intangible transactions, and provides guidance on the use of other valuation techniques that may be more applicable.

Guidance on hard-to-value intangibles. Where intangibles are transferred or licensed in development or where their value is highly uncertain, the tax administration is entitled to use the ex post evidence about financial outcomes to inform the determination of the arm’s length pricing arrangements, including any contingent pricing arrangements, that would have been made between independent enterprises at the time of the transaction. The taxpayer can prove the original pricing was based on reasonable forecasts taking into account all reasonably foreseeable eventualities. There are some similarities with the US ”Commensurate with Income”standard. The guidance on intangibles is effectively final, although one small section within part D on the application of the transactional profit split method for pricing intangibles transactions is likely to be revised when the OECD completes its new guidance on this transfer pricing method.

Cost contribution arrangements

The section on cost contribution arrangements (CCAs) replaces existing chapter VIII of the OECD Transfer Pricing Guidelines in it sentirety. The objective of the final report is to align the guidance on CCAs with the new guidance elsewhere in the final report on control of risk and on intangibles transactions.

The guidance contained in the final report is similar to the guidance in the discussion draft issued in April 2015.11 although some aspects have been refined in light of the OECD consultations with business representatives.

The key points contained in the final report are:

CCAs are contractual arrangements among business enterprises for sharing contributions and risks associated with the joint development, production or obtaining of intangibles, tangible assets or services, in the expectation of mutual benefit from the pooling of resources and skills.

The expectation of mutual benefit is a pre-requisite for participating in a CCA. Participants must expect to benefit from the output of the CCA, for example by being able to exploit the rights acquired or services developed in their own businesses.

Control is a pre-requisite to be considered as a participant in a CCA. Participants must have the functional capacity to exercise control over the risks taken in the CCA. This means they must be capable of making the decision to take on the initial financial risk of participation in the CCA, and must have the ongoing decision-making capacity to decide on whether or how to respond to the risks associated with the CCA.

The value of the contributions made by CCA participants must be in proportion to their reasonably anticipated benefits from the CCA. Where contributions are not in proportion to reasonably anticipated benefits, true-up payments may be required.

The value of each participant’s contribution should be determined in line with the value that would be placed on it by independent enterprises in comparable circumstances. While contributions should be measured based on value, the final report recognizes that it maybe more practical for taxpayers to compensate current contributions at cost. However, this approach may not be appropriate where the contribution of different participants differ in nature (for instance, where some participants contribute services and others provide intangibles or other assets).

Hard-to-value intangible

The final report contains a specific transfer pricing approach with respect to hard-to-value intangibles (HTVI). The guidance finalizes an earlier discussion draft released June 2015.12 HTVI are defined as intangibles or rights in intangibles for which, at the time of their transfer between associated enterprises, (i) no reliable comparables exist; and (ii) at the time the transactions was entered into, the projections of future cash flows or income expected to be derived from the transferred intangible, or the assumptions used in valuing the intangible are highly uncertain, making it difficult to predict the level of ultimate success of the intangible at the time of the transfer.

The approach is intended to ensure that tax administrations can determine in which situations the pricing arrangements with respect to a HTVI as set by the taxpayers are at arm’s length and are based on an appropriate weighting of the foreseeable developments or events that are relevant for the valuation of certain HTVI and in which situations this is not the case. Under this approach, ex post evidence provides presumptive evidence as to the existence of uncertainties at the time of the transaction, whether the taxpayer appropriately took into account reasonably foreseeable developments or events at the time of the transaction, and there liability of the information used ex ante in determining the transfer price for the transfer of such intangibles or rights in intangibles.

Such presumptive evidence may be subject to rebuttal if it can be demonstrated that it does not affect the accurate determination of the arm’s length price.

Compared to the discussion draft, the final report provides more detailed exemptions and safe harbours when a transfer does not fall within the rules on HTVI.

Risk & Capital

The final report also contains revisions to Section D of Chapter I of the OECD Transfer Pricing Guidelines following the work under Action 9 (transferring risks or allocating excessive capital) and Action 10 (clarifying circumstances to re-characterize transactions).

More specifically, the revisions include the following main guidance to consider in conducting a transfer pricing analysis:

The importance of accurately delineating the actual transactions between associated enterprises through analysing the contractual relations between the parties together with evidence of the actual conduct of the parties.

Detailed guidance on analysing risks as part of a functional analysis, including a six-step analytical framework. This framework considers the identification of the economically significant risks with specificity, the determination of contractual allocation of these risks and the functions relating to these risks.

For transfer pricing purposes, the associated enterprise assuming a risk should control the risk and have the financial capacity to assume the risk.

A capital-rich MNE group member without any other relevant economic activities (a “cash box”) that provides funding, but cannot control financial risks in relation to the funding, will attain no more than a risk-free return, or less if the transaction is commercially irrational.

In exceptional circumstances of commercial irrationality, a tax administration may disregard the actual transaction. The main question is whether the actual transaction has the commercial rationality of arrangements that would be agreed between unrelated parties under comparable economic circumstances.

With respect to risk and recharacterization, the final report contains significant changes compared to the discussion draft in December 2014.13 including the inclusion of guidance on risk as an integral part of a functional analysis, the new six-step analytical framework to analyze risk, the inclusion of a materiality threshold by considering economically significant risks with specificity, the importance of financial capacity to assume risk, which was generally ignored in the discussion draft, and elimination of the moral hazard concept.

Low value added services

The guidance on low value adding services under Action 10 finalizes an earlier discussion draft released in November 2014.14 It takes the form of a rewrite of chapter VII of the OECD Transfer Pricing Guidelines on services. The updated guidance has the stated aim of achieving a balance between appropriate charges for low value adding services and head office expenses and the need to protect the tax base of payer countries. Key features of the proposed guidance include:

A standard definition of low value-adding intra-group services as being supportive in nature, not being part of the MNE’s core business, not requiring or creating valuable intangibles and not involving significant risks.

• A list of services that would typically meet the definition. In essence the services listed are back-office services.
• An elective simplified approach to determine arm’s length charges for low value-adding services:
• - A process for determining the costs associated with low value adding services
• - Allowing general allocation keys
• - A simplified benefits test
• - A standard 5% mark-up

• Prescriptive guidance on documentation and reporting that should be prepared for the MNE to be able to apply the simplified approach.
• The ability for tax administrations to include a threshold above which the simplified approach may be denied. Further work on the threshold will be performed as part of step two mentioned below.

Implementation will take place in two steps. As step one, a large group of countries has agreed to endorse the elective simplified mechanism by 2018. The second step looks to provide comfort to other countries that the elective simplified mechanism will not lead to base-eroding payments. It will entail further work in relation to a potential threshold above which the elective simplified mechanism will not apply and other implementation issues.

Finally, the revised guidance encourages tax administrations to limit any withholding taxes on low value-adding services to the profit element in the charge only.

Profit split

One of the objectives of Action 10 was to prepare transfer pricing rules or special measures to clarify the application of transfer pricing methods, in particular profit splits, in the context of global value chains. In order to determine for which matters additional clarification would be useful, the OECD released a discussion draft in December 2014.15 That discussion draft did not include revised guidance. The final report released in respect of Actions 8-10 includes a “scope of work for guidance on the transactional profit split method” which explains, among others, that the revised and improved guidance should:

• Clarify the circumstances in which transactional profit splits are the most appropriate method for a particular case and describe what approaches can be taken to split profits in a reliable way

Take into account changes to the transfer pricing guidance in pursuit of other BEPS actions and take into account the conclusions of the Report on Addressing the Tax Challenges of the Digital Economy, developed in relation to BEPS Action 1.

Reflect further work being undertaken to develop approaches to transfer pricing in situations where the availability of comparables is limited, for example due to the specific features of a controlled transaction, and clarify how in such cases, the most appropriate method should be selected. This scope of work as included in the final report will form the basis for draft guidance to be developed by the OECD during 2016 and expected to be finalized in the first half of 2017. A discussion draft will be released for public comments and a public consultation will be held in May 2016.

Commodities

The new guidance on commodity transactions under Action 10 finalizes an earlier discussion draft released in December 2014.16 and includes additional paragraphs to be inserted immediately following paragraph 2.16 of the OECD Transfer Pricing Guidelines.

The stated aim is an improved framework for the analysis of commodity transactions from a transfer pricing perspective which should lead to greater consistency in the way that tax administrations and taxpayers determine the arm’s length price for commodity transactions and should ensure that pricing reflects value creation. The key features of the released guidance on commodity transactions include:

• Clarification of the existing guidance on the application of the comparable uncontrolled price (CUP) method to commodity transactions and the use of publicly quoted prices to apply the CUP.
• Recommendation that taxpayers document their price-setting policy for commodity transactions to assist tax authorities in conducting informed examinations.
• Guidance regarding the adoption of a deemed pricing date for controlled commodity transactions
  in the absence of evidence of the actual pricing date agreed by the parties to the transactions.

Compared to the discussion draft, the final guidance has minor changes, including a more specific list of the types of adjustments applicable when using a CUP method and clarification that the functions performed, assets used and risk assumed by other entities in the supply chain need to be compensated properly.

In our next Wiki, we would be covering exhaustively on the CBC (country by Country Reporting – Action 13) and its impact on the Indian TP regulations.

This article is contributed by Partners of SBS and Company LLP - Chartered Accountant Company. You can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it.

Trade Union Act was amended in the year 2001 which came into effect from 9th January 2002 and there has been a change in the requirements for registration of a trade union.

According to the new provisions of the Act, no trade union of workmen shall be registered unless at least 10% or 100 of the workmen, whichever is less, further subject to minimum of seven workmen, engaged or employed in the establishment or industry with which it is connected are members of such Trade Union on the date of making the application.

The application for registration should accompany the details of members such as (1) Name (2) occupation (3) address of place of work of the member.

After making the application and before the registration, if 50% or more workmen withdrawn from the membership, the Union cannot be registered.

Registered Trade Union of workmen shall at all times continue to have not less than 10% or 100 of the workmen, whichever is less, subject to minimum of seven, engaged or employed in an establishment or industry with which it is connected, as its members.

Thus whenever the Labour Department conducts the verification of membership among the registered trade unions, it is the responsibility of the Registrar of Trade Unions to cancel the registration of a Trade Union which has membership of less than 10% or 100 of the workmen as the case may be.

The Act has also prohibited persons holding an office of profit and also the council of ministers to be the executive and or office bearers of a Trade Union. An office of profit means a position that brings to the person holding it some financial gain or advantage or benefit and the quantum of such gain or remuneration is immaterial.

The Act also disqualifies a member of the union to be the office-bearer or executive of the union if he has been convicted by a Court in India of any offence involving moral turpitude and sentenced to imprisonment. Such person can only become an executive or office bearer of a union only after completion of 5 years period after his release.

The Madras High Court (2010) in the matter of M LakshmananVs ICICI Bank Employees Union held that conviction and sentence imposed on an employee of the Bank under section 138 of Negotiable Instruments Act can be considered as an offence involving moral turpitude and there by not entitled to hold the post of General Secretary of the Union.

The Trade Union members or the office bearers do not enjoy any immunity if they indulge in acts which constitute misconduct. Leadership has no right to indulge in acts which are oppose to law and they are liable for punishment under general law as well.

The Madras High Court in the matter of Indian Bank Vs Federation of Indian Bank Employees held that all workmen, guilty of wrongfully restraining any person belonging to the management or wrongfully confining him during a gherao are guilty under Section 339 or 340 of Indian Penal Code and have committed cognizable offences, for which they are liable to be arrested without warrant and punishable under Section 120A of IPC and is not saved by Section 17 of the Trade Union Act.

The Supreme Court in the matter of UshaBrecoMazdoorSanghVsUshaBreco Ltd [Air 2009 994] held that a union leader has no immunity from misconduct since he is also bound to be disciplined.

The management has every right to debar the entry of a trade union leader who is preaching violence either among the workmen or against the management. The Bombay High Court in the matter of Pudumjee Pulp & Paper Mills KamgarSanghVsPudumjee Pulp & Paper Mills [2008 LLR 860] confirmed this proposition.

The free ingress and egress of men and materials is a fundamental right of the owner of the property and hence the Unions or the workmen have no right to obstruct such movement to conduct its business. The Rajasthan High Court in the matter of Ajmer District Forest Department Asst Employees Union Vs State of Rajasthan [2006 LLR 283] held that a Trade Union has no right to cause obstruction to ingress or egress by staging demonstration since for redressal of grievances, they have the forum as under the law.

The union office bearers are workmen first and the role and responsibility of the management of the union is next to his primary duty of performing the work at the factory. Hence all the rules, regulations and responsibilities of a workman are applicable to them as well. The Himachal Pradesh High Court in the matter of Mohan Meakins Ltd Vs President Mohan Meakins Staff Union [2012 LLR 1040] held that the President of the Union cannot avoid transfer and he is required to report to duty at the new place of work. The Trade Union Act has not given any authority or powers to the executive or the office bearer of a trade union to conduct trade union activities while on duty within the premises of the factory. The trade union activities are to be conducted outside the working hours and not during the working hours. The Andhra Pradesh High Court in the matter of Singareni Collieries Vs Industrial Tribunal [2012 LLR 1162] held that Trade Union activities are not justified while on duty.

The only differentiation between a workman and the executive or office bearer of a trade union has been made in the Industrial Disputes Act under certain circumstances for a limited number of trade union office bearers, who are known as ‘protected workman’. The Industrial Disputes Act has provided protection from discharge or dismissal of the executive or other office bearer of a registered trade union who are declared as protected workman. During the pendency of an industrial dispute before conciliation or tribunal or labour court, the employer should not discharge or dismissal a protected workmen without permission from authority before whom the dispute is pending.

However, an office bearer or an executive of a registered trade union will not become a protected workman automatically. The registered trade union has to follow the procedure laid down under the Act. In accordance with the ID Rules, every registered trade union is required to submit the list of name of the executive or office bearers of the union who should be considered as protected workman on or before 30th April every year. Within fifteen days of receipt of the request from the union, the employer has to communicate the approved list of protected workman and it shall be valid for a period of twelve months from the date of communication. The number of protected workman shall be one percent of the workmen strength subject to a minimum of five and maximum of one hundred. Where there are more than one registered trade union in an industrial establishment, the protected workman for each of the registered trade union shall be in accordance with the membership of that union.

It has been the most common experience of the managements that soon after the registration of a trade union, most of the leaders will come up with a plan to hoist a flag in or near the factory premises. The Kerala High Court in the matter of Kerafibertex International P Ltd VsKerafibertex Employees Association [2009 LLR 985] held that Trade Unions have no right to hoist flags in the property of the Management. If the flag is hoisted outside the property of the Management, then the flag is said to have hoisted in a public place where the District Collector and the police will have authority not to permit such unauthorized activities.

The Trade Union Act 1926, deals only with the registration of Trade Unions. The Act has not provided any provisions with regard to the recognition of a trade union or declaring a trade union as a sole bargaining agent. However some State Governments such as Madhya Pradesh, Maharastra and West Bengal made certain amendments to recognize the union as a sole bargaining agent. In the State of Andhra Pradesh and Telangana there is no such provision and hence the recognition of the union is based on the acceptance of the code of discipline by the registered trade unions and verification of membership by the Labour Department.

At the central level, the 16th session of the Indian Labour Conference held at Nainital in May 1958 adopted the following set of criteria under the Code of Discipline for the recognition of trade unions:

1. Where there is more than one union, a union claiming recognition should have been functioning for

at least one year after registration. Where there is only one union, this condition would not apply.

2. The membership of the union should cover at least 15 per cent of the workers in the establishment

concerned. Membership would be counted only those who had paid their subscriptions for atleast

three months during the period of six months immediately preceding the reckoning.

3. A union may claim to be recognized as a representative union for an industry in a local area if it has a

membership of at least 25 percent of the workers of that industry in that area.

4. When a union has been recognized, there should be no change in its position for a period of two years.
5. In case of several unions in an industry or establishment, the one with the largest membership should be recognized.
6. A representative union for an industry in an area should have the right to represent the workers in all the establishments in the industry, but if a union of workers in a particular establishment has a membership of 50 percent or more of the workers of that establishment, it should have the right to deal with matters of purely local interests, such as, for instance, the handling of grievances pertaining to its own members. All other workers who are not members of that union might either operate through the representative union for the industry or seek redress directly.
7. In the case of trade union federations not affiliated with any of the four central labour organizations, the question of recognition would have to be dealt with separately.

8.         Only unions which observed the Code of Discipline would be entitled to recognition.

In accordance with the code of discipline the verification of membership of all the registered trade unions in an establishment is being conducted by the Labour Department authorities and the trade union which has the highest membership is declared as the recognized union for a period of two years.

In accordance with the provisions of the Act, in an industrial establishment, there can be many registered trade unions. The Supreme Court has time and again examined the matter and held that the rights and privileges vested in a non-recognized association are limited to espousing the grievances of individual members relating to their service conditions and representing them in domestic or departmental enquiries held by the employer and not proceeding before the conciliation officer, labour court, industrial tribunal or arbitrator. There is no right in the non-recognized union to participate in discussions relating to general issues concerning all workmen. [Chairman SBI Vs All Orissa S B Officers Association, AIR 2002 SC 2279]

Once there is a representative union, which in the present case, is the Labour Union, it is difficult to see the role of the Workers’ Union. If there are number of trade unions registered under the Trade Union Act, not entitled to be registered as “representative unions” and they raise disputes, industrial peace would be a far cry. [National Engg Industries Ltd Vs State of Rajasthan AIR 2000 SC 469].

Today most of the industrial establishment has multiplicity of the unions and hence the management should in their own interest provide the rightful place to the recognized union and should not encourage minority or unrecognized unions. Dealing with unrecognized unions will create more unions and the entire process of employee relations will be more complex and difficult to achieve the organizational objectives.

This article is contributed by Partners of SBS and Company LLP - Chartered Accountant Company. You can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it.

We all know that Foreign Trade Policy (for brevity ‘FTP’) is laid down with an intention to encourage the exports and regulate the imports. Apart from such administration of the export and import of goods and services, it also formulates various export incentive schemes to encourage the exports and make India’s presence visible in global trade.

The export incentive schemes or exemptions from import duties will generally come with the conditions to be fulfilled for enjoying such incentives or exemptions. Such conditions might be laid down both by the FTP and the relevant statutes as detailed in the following example.

An importer is exempted from the customs duty on import of raw material on a condition that the finished goods manufactured by using such free imported material are exported within a stipulated time. Here, such exemption from import duty might come with conditions to be satisfied in both FTP or Customs law or any one of them.

The point of consideration is in this article is ‘whether satisfaction of conditions laid down by the FTP would absolve the assessee from satisfying the conditions laid down in the Customs law to avail the benefits of the scheme’? In other words, does a customs authority can deny the exemption from the import duty under Customs Law since the assessee has failed to satisfy the conditions laid down in such exemption notification despite of the fact that he has satisfied the conditions laid out in the FTP.

In order to answer such a question, we should touch upon certain basic concepts in the FTP. It is a much known fact that FTP can only formulate the schemes, however the said policy cannot issue exemption notification in relevant statutes like Customs law (as in the above example). That is to say the scheme should be complimented with an exemption notification in the relevant statute separately to avail such benefit laid down by the schemes.

So, from the above, it is evident that FTP can only formulate the schemes but cannot issue exemption notifications in the relevant statutes and the responsibility to lay down such exemption notification rests with Department of Revenue. Now, let us proceed to answer the question raised in the article by taking

1

the ratio of recent Supreme Court judgment in the case of Pennar Industries Limited (for brevity ‘Pennar’/’Assessee’).

In the Pennar case, they have imported hot rolled non-alloy steel wide coils against advance license issued under the Duty Exemption Entitlement Scheme (for brevity ‘DEES’). At the time of importation, Pennar has not paid customs duty in light of the exemption under Notification No 30/1997 – Cus, dated 01.04. 1997 which provides exemption to the actual users from the customs duty at the time of import subject to a condition of export of finished goods manufactured using such free imported material.

¹2015-TIOL-162-CUS-SC

Pennar has manufactured the finished goods using such duty free raw material but could not export since the quality of the finished goods was not fit for exports. Hence, they have not exported the said finished goods and cleared such goods for home consumption. When the Director General of Foreign Trade (for brevity ‘DGFT’) has raised query pertaining to the fulfillment of export obligations, Pennar has represented that the said quantity cannot be exported and requested to change the product to be exported and also allow the export obligation to be fulfilled even the said exports was done through supporting exporters (exports made by arranging with other manufacturers or traders to meet export obligation). DGFT has accepted the submissions of Pennar and change the product to be exported and allowed support exports to be deemed as exports done by Pennar. The assessee has met the export obligations vide such permission given by DGFT and was under an impression that the export obligation has been discharged as per the DEES.

However, the customs authorities has demanded the customs duty which is not paid since the assessee has failed to comply with the conditions of Notification No 30/1997-Cus dated 01.04. 1997. The grounds of customs authorities were that, the said Notification does not allow any other material to be exported and the actual user of the raw material has to export the finished goods. Both the conditions have not been met by Pennar since the goods exported are not the one which is specified in the Notification and the exports were not actually made by the actual user of the subject imported material since they have been made by support exporters. Since, the conditions have been violated a notice demanding the customs duty on the imported raw material was issued. The assessee has stated that since the DGFT has accepted the exports made by the other persons as exports of the assessee, there cannot be any demand under customs. The supporting exports or 3rd party exports is an accepted concept under DGFT but not under customs especially when the exemption notification specifies that the actual user of raw material has to export and the adjudicating authority has confirmed the demand.

Pennar has approached the tribunal wherein it was held that when DGFT has amended the license to accommodate the products to be exported and support exports, the same amounts to fulfillment of export obligations as per license and hence there cannot be any demand of customs duty and brushed away the order of the adjudicating authority. The authorities have gone for appeal against such order of Tribunal before the Honorable Supreme Court.

The Honorable Supreme court after due considerations made by both the parties has held that when the conditions specified in Notification No 30/1997-Cus has not met, there cannot be any exemption despite of the fact DGFT has amended the terms on which the license is issued. The apex court after taking the ratio laid by the coordinate bench (of apex court) in the case of Sheshank Sea Foods Private Limited vs Union of India & Ors wherein it was held that there is nothing in EXIM policy which prohibits the power of customs to investigate into the matters even the subject belongs of EXIM policy. By adopting such ratio, the apex court has held that the assessee is required to pay customs duty since it has failed to satisfy the conditions laid down vide the Notification No 30/1997-Cus despite of the fact that the assessee has fulfilled the modified conditions given by DGFT.

From the above judgment, it is clear that despite the conditions laid down vide the license has been satisfied, the conditions enshrined in the Customs exemption notification has also to be satisfied. However, the apex court when delivering the above judgment has recommended the Central Government to make necessary amendments to overcome such situations where DGFT has relaxed the conditions, the supporting notification in the statutes should also envisage the same and cannot be in contradiction as after all such notifications under Customs Law are issue to implement and to give effect to the benefits under the foreign trade policy. Hope the DGFT/Department of Revenue comes with necessary amendments to meet the eventualities to avoid unnecessary hardships for bonafide assessees.

This article is contributed by Partners of SBS and Company LLP - Chartered Accountant Company. You can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it.

In continuation of its thrust on liberalising the economy, bringing more funds into India and creating employment, the Central Government has announced key amendments in the FDI policy. The amendments have been announced by Press Release dated 12th November, 2015 followed by Press Note No. 12/2015, dated 24th November, 2015

To further boost this entire investment environment and to bring in foreign investments in the country, the Government has brought in FDI related Reforms and liberalisation touching upon 15 major Sectors of the Economy. The salient measures are:

Limited Liability Partnerships, downstream investment and approval conditions. Investment by companies owned and controlled by Non-Resident Indians (NRIs) Establishment and transfer of ownership and control of Indian companies

Agriculture and Animal Husbandry

• Plantation
• Mining and mineral separation of titanium bearing minerals and ores, its value addition and integrated activities
• Defence
• Broadcasting Sector

Civil Aviation

• Increase of sectoral cap
• Construction development sector
• Cash and Carry Wholesale Trading / Wholesale Trading (including sourcing from MSEs)
• Single Brand Retail Trading and Duty free shops
• Banking-Private Sector; and
• Manufacturing Sector

The Crux of these reforms is to further ease, rationalise and simplify the process of foreign investments in the country and to put more and more FDI proposals on automatic route instead of Government route where time and energy of the investors is wasted. It is one more proof of minimum government and maximum governance. Further refining of foreign investments in key Sectors like Construction where 50 million houses for poor are to be built. Opening up the manufacturing Sector for wholesale, retail and E - Commerce so that the Industries are motivated to Make In India and sell it to the customers here instead of importing from other countries. The proposed reforms also enhance the limit of Foreign Investment Promotion Board (FIPB) from current Rupees Three thousand crores to Five thousand crores. The proposal also contains many other long pending corrections including those being felt by the limited liability partnerships as well as NRI owned Companies who seem motivated to invest in India. Few other proposals seek to enhance the sectoral Caps so that foreign investors do not have to face fragmented ownership issues and get motivated to deploy their resources and technology with full force.

With this round of Reforms, the Government has demonstrated that India is unstoppable on the path of Economic Development. Prime Minister has reiterated that Economic Wellbeing of the people of India is the main Task before him. It is also clear that India is a Country which is more than ready to integrate with the Global Economy because it feels that the Fruits of Development will reach to the common man only if there is Development. Above all every citizen in all nooks and corners must have a stake.

Details of these changes are given in the following paragraphs.

1. Radical Changes in FDI Regime in Construction Development Sector

Following changes have been made in the FDI policy on Construction Development sector:

1. Conditions of area restriction of floor area of 20,000 sq. mtrs in construction development projects and minimum capitalization of US $ 5 million to be brought in within the period of six months of the commencement of business, have been removed.
2. Each phase of the construction development project would be considered as a separate project for the purposes of FDI policy.

iii. A foreign investor will be permitted to exit and repatriate foreign investment before the completion of project under automatic route, provided that a lock-in-period of three years, calculated with reference to each tranche of foreign investment has been completed. Further, transfer of stake from one non-resident to another non-resident, without repatriation of investment will neither be subject to any lock-in period nor to any government approval. Nonetheless, exit is permitted at any time if project or trunk infrastructure is completed before the lock-in period.

1. FDI is not permitted in an entity which is engaged or proposes to engage in real estate business, construction of farm houses and trading in transferable development rights (TDRs). Real Estate Business will mean as 'dealing in land and immovable property with a view to earning profit therefrom and does not include development of townships, construction of residential/ commercial premises, roads or bridges, educational institutions, recreational facilities, city and regional level infrastructure, townships. Further, earning of rent/ income on lease of the property, not amounting to transfer, will not amount to real estate business.'
2. Condition of lock-in period will not apply to Hotels &Tourist Resorts, Hospitals, Special Economic Zones (SEZs), Educational Institutions, Old Age Homes and investment by NRIs.
3. 100% FDI under automatic route is permitted in completed projects for operation and management of townships, malls/ shopping complexes and business centres. Consequent to foreign investment, transfer of ownership and/or control of the investee company from residents to non-residents is also permitted. However, there would be a lock-in-period of three years, calculated with reference to each tranche of FDI, and transfer of immovable property or part thereof is not permitted during this period.

vii.      "Transfer", in relation to FDI policy on the sector, includes,‑

(a)      the sale, exchange or relinquishment of the asset ; or

(b)      the extinguishment of any rights therein ; or

(c)       the compulsory acquisition thereof under any law ; or

• Foreign Investment in Defence Sector up to 49% Under Automatic Route

As per extant FDI policy in the Defence Sector, foreign investment up to 49% is permitted under Government approval route. Foreign investment above 49% is also permitted, subject to approval of Cabinet Committee on Security (CCS) on case to case basis, wherever the investment is likely to result in access to modern and 'state-of-art' technology in the country. Portfolio investment and investment by FVCIs is restricted to 24% only. In this regard, the following changes have inter-alia been brought in the FDI policy on this sector:

1. Foreign investment up to 49% will be under automatic route.
2. Portfolio investment and investment by FVCIs will be allowed up to permitted automatic route level of 49%.

Proposals for foreign investment in excess of 49% will be considered by Foreign Investment Promotion Board (FIPB).

1. In case of infusion of fresh foreign investment within the permitted automatic route level, resulting in change in the ownership pattern or transfer of stake by existing investor to new foreign investor, Government approval will be required.
2. New Sectoral Caps & Entry Routes in Broadcasting Sector FDI policy on Broadcasting sector has also been amended. New sectoral caps and entry routes are as under:

Sector/Activity

6.2.7.1.1

• Teleports(setting up of up-linking H U Bs/Teleports);
• Direct to Home (DTH);
• Cable Networks (Multi System operators (MSOs) operating at National or State or District level and undertaking upgradation of networks towards digitalization and addressability);
• Mobile TV;
• Headend-in-the Sky Broadcasting Service(H ITS)

6.2.7.1.2 Cable Networks (Other MSOs not undertaking upgradation of networks towards digitalization and addressability and Local Cable Operators (LCOs))

6.2.7.2 Broadcasting Content Services

6.2.7.2.1 Terrestrial Broadcasting FM (FM Radio),

6.2.7.2.2 Up-linking of 'News & Current Affairs' TV Channels

6.2.7.2.3 Up-linking of Non-'News & Current Affairs' TV Channels 100%

Down-linking of TV Channels                             Automatic route

4. Full Fungibility of Foreign Investment Permitted in Banking- Private Sector

Government has decided to introduce full fungibility of foreign investment in Banking-Private sector. Accordingly, FIIs/FPIs/QFIs, following due procedure, can now invest up to sectoral limit of 74%, provided that there is no change of control and management of the investee company

5. 100% Foreign Investment Permitted in Coffee/Rubber/Cardamom/Palm Oil & Olive Oil Plantations

As per the present FDI policy on the Plantation sector, only tea plantation is open to foreign investment. In line with this sector, the government has decided to open certain other plantation activities namely; coffee, rubber, cardamom , palm oil tree and olive oil tree plantations also for 100% foreign investment. Foreign investment in the plantation sector would henceforth be under automatic route.

6. Investment by Companies/Trusts/Partnerships Owned & Controlled by NRIs on Non-Repatriation Basis to be Treated as Domestic Investment

Non-Resident Indians (NRIs) have special dispensation for investment in construction development and civil aviation sector. Further, investment made by Non-Resident Indians under schedule 4 of FEMA (Transfer or issue of Security by Persons Resident Outside India) Regulations is deemed to be domestic investment at par with the investment made by residents. In order to attract larger investments, which are possible through incorporated entities only, the special dispensation of NRIs has now been also extended to companies, trusts and partnership firms, which are incorporated outside India and are owned and controlled by NRIs. Henceforth, such entities owned and controlled by NRIs will be treated at par with NRIs for investment in India.

7. Permitting Manufacturers to Undertake Wholesale and/or Retail, Including Through E-Commerce Without Government Approval

It has been decided that a manufacturer will be permitted to sell its product through wholesale and/or retail, including through e-commerce without Government approval.

8. Review of FDI Policy Conditionalities for Single Brand Retail Trading and Permitting 100% FDI in Duty Free Shops

(i) Extant FDI policy on SBRT mandates that sourcing of 30% of the value of goods purchased would be reckoned from the date of receipt of FDI. It has now been decided that sourcing requirement has to be reckoned from the opening of first store. Further, it is seen that in certain high technology segments, it is not possible for retail entity to comply with the sourcing norms. To provide opportunity to such single brand entities, it has been decided that in case of 'state-of-art' and 'cutting-edge technology' sourcing norms can be relaxed subject to Government approval.

(ii) FDI policy on the SBRT provides that, retail trading, in any form, by means of e-commerce, would not be permissible. It has been decided that an entity which has been granted permission to undertake SBRT will be permitted to undertake e-commerce activities.

(iii) It has been clarified that Indian brands are equally eligible for undertaking SBRT. It has been decided that certain conditions of the FDI policy on the sector namely; products to be sold under the same brand internationally and investment by non-resident entity/ entities as the brand owner or under legally tenable agreement with the brand owner, will not be made applicable in case of FDI in Indian brands.

(iv) An Indian manufacturer is permitted to sell its own branded products in any manner i.e. wholesale, retail, including through e-commerce platforms. For the purposes of FDI Policy Indian manufacturer would be the investee company, which is the owner of the Indian brand and which manufactures in India, in terms of value, at least 70% of its products in house, and sources, at most 30% from Indian manufacturers. Further Indian brands should be owned and controlled by resident Indian citizens and/or companies, which are owned and controlled by resident Indian citizens.

Opening of Duty Free Shops for 100% FDI under Automatic Route

100% FDI is now permitted under automatic route in Duty Free Shops located and operated in the Customs bonded areas.

9. Permitting Same Entity to Carry Out Both Wholesale and Single Brand Retail Trading

As per the FDI policy, in wholesale cash & carry activities, 100% foreign investment is permitted under the automatic route. FDI policy on this sector further provides that a wholesale/cash & carry trader cannot open retail shops to sell to the consumer directly. It has now been decided that a single entity will be permitted to undertake both the activities of single brand retail trading (SBRT) and wholesale with the condition that conditions of FDI policy on wholesale/ cash & carry and SBRT have to be complied by both the business arms separately.

10. 100% FDI in LLPs Permitted Under Automatic Route

FDI policy on Limited Liability Partnerships (LLP) has been amended to provide that investments in LLPs will not require Government approval. 100% FDI is now permitted under the automatic route in LLPs operating in sectors/activities where 100% FDI is allowed, through the automatic route and there are no FDI-linked performance conditions. Further, the terms 'ownership and 'control' with reference to LLPs have also been defined.

Downstream Investment

It has been decided that in line with companies, an LLP having foreign investment will be permitted to make downstream investment in another company or LLP in sectors in which 100% FDI is allowed under the automatic route and there are no FDI-linked performance conditions. Further, for the purposes of FDI policy, the term 'internal accruals' has also been defined.

11. Opening up of FDI in Regional Air Transport Service

As per the present FDI policy, foreign investment up to 49% is allowed in Scheduled Air Transport Service/ Domestic Scheduled Passenger Airline (SOP). It has now been decided that Regional Air Transport Service (RSOP) is will also be eligible for foreign investment up to 49% under automatic route.

12. Enhancing Foreign Equity Caps in Non-Scheduled Air Transport, Ground Handling Services, Satellites- establishment and operation and Credit Information Companies

Foreign Equity caps of certain sectors viz. Non-Scheduled Air Transport Service, Ground Handling Services, Satellites- establishment and operation and Credit Information Companies have now been increased from 74% to 100%. Further, sectors other than Satellites- establishment and operation have been placed under the automatic route.

13. Companies without Operations Not to Require Government Approval for FDI for Undertaking Automatic Route Sector Activities

Approval requirements in respect of companies under operation have also been relaxed. It has now been decided that for infusion of foreign investment into an Indian company which does not have any operations and also does not have any downstream investments, Government approval would not be required, for undertaking activities which are under automatic route and without FDI-linked performance conditions, regardless of the amount or extent of foreign investment.

14. Establishment and Transfer of Ownership and Control of Indian Companies

As per the FDI policy establishment and ownership or control of the Indian company in sectors/activities with caps requires Government approval. This provision has now been amended to provide that approval of the Government will be required if the company concerned is operating in sectors/ activities which are under Government approval route rather than capped sectors. Further no approval of the Government is required for investment in automatic route sectors by way of swap of shares.

15. Simplification of Conditionalities

Certain conditions of FDI policy on Agriculture and Animal Husbandry, and Mining and mineral separation of titanium bearing minerals and ores, its value addition and integrated activities have been simplified.

16. Raising the Threshold Limit for Approval by Foreign Investment Promotion Board

As per the FDI policy Foreign Investment Promotion Board (FIPB) considers proposals having total foreign equity inflow up to Rs. 3000 crore and proposals above Rs. 3000 crore are placed for consideration of Cabinet Committee on Economic Affairs (CCEA). In order to achieve faster approvals on most of the proposals, it has been decided that the threshold limit for FIPB approval may be increased to 5000 crore.

Above amendments to the FDI Policy are meant to liberalise and simplify the FDI policy so as to provide ease of doing business in the country leading to larger FDI inflows contributing to growth of investment, incomes and employment.

This article is contributed by Partners of SBS and Company LLP - Chartered Accountant Company. You can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it.