Editorial: Scope of Audit - Changing Dimensions
Editorial: Scope of Audit - Changing Dimensions
EDITORIAL
SCOPE OF AUDIT CHANGING DIMENSIONS
The general public and the society including top bureaucrats, politicians, media personnel, social activists, thinkers, intellectuals and policy makers and those who determine the future directions of the society and the economy expect the auditing profession to perform the roles of a watchdog who can monitor the auditee entity CA Vinod Jain* comprehensively to ensure that interest of owners, minority shareholders, investors, bankers, government, regulators, suppliers, customers and other stake holders are fully protected. Most importantly interest of the auditee entity are preserved and various financial and operational decisions taken by the management at various levels were in the interest of the company and were within the policy framework laid down by the Board. The Comptroller & Auditor General of India (CAG) has given a new dimension to the scope of audit by issuing several path-breaking and courageous audit reports bringing out large number of severe infirmities and financial irregularities in the working of the government, ministries and various independent autonomous government bodies, and regulators. According to CAG report they have questioned the decisions taken at various levels of the government, which according to CAG were beyond the overall policy framework laid down by the government. CAG has been very critical on Performance Parameters : The various CAG reports have questioned the performance achieved by various government departments and bodies, as compared to money and resources allocated to them and spent by them. Performance Achievement : CAG has also outlined performance appraisal in its reports, the areas in which the overall purposes for which a significant financial layout was made, was not achieved.
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* Mr. Vinod Jain, FCA, FCS, FICWA, LL.B., DISA (ICA), Chairman, INMACS and Vinod Kumar & Associates. vinodjain@inmacs.com, vinodjainca@gmail.com, +91 9811040004
In the new guidelines, any AAA-rated public sector unit will qualify for investments for tenure up to 25 years. Any AA-rated PSU will qualify for investments for tenure up to 15 years. 6.0 HC Bars Co-operative Banks from Debt Recovery Under SARFAESI The Gujarat High Court has held that cooperative banks cannot use the Securitisation and Reconstruction of Financial Assets of Security Interest Act (SARFAESI), 2002 for recovery of debts from its defaulters. 7.0 Suzlon's $1.8-Bn Debt-recast: A Unique Plan The CDR package of $1.8 billion (` 9,500 crore) includes a two year moratorium on principal and term-debt interest payments; a three percent reduction in interest rates and six months moratorium on working capital interest. As a part of the package, ` 1,500 crore (two year's interest payment during moratorium) will be converted into equity or equity linked instrument over the next two years to bring stronger financial stability and a 10 year door-todoor back-ended repayment plan. In January, Suzlon received approval from a consortium of 19 banks to recast its debt. 8.0 Co's with captive Coal Mines may be allowed to produce & sell surplus In yet another initiative to step up domestic coal output without impinging on the Coal Mines (Nationalization) Act that bars commercial coal mining by private players, the government intends to encourage companies with captive coal mines to produce surplus. What is being considered is a commercial arrangement that would entail use of the e-auction platform, which normally fetches higher profits and where the gains will be shared between the public sector (Coal India or CIL and state mineral development corporations) and the private firms operating captive coal mines. 9.0 Banks serve loan Recall Notice on Kingfisher Airlines State Bank of India has said that a loan recall notice has been served on the defunct Kingfisher Airlines (KFA) on behalf of the consortium of 17 lenders. The notices under the SARFAESI Act, DRT and other processes will follow.
EDITORIAL
EDITOR IAL
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Physical Outcome : CAG has also examined the actual physical outcome in certain areas as compared to what is documented by various financial statements, vouchers, contracts, reports and other documents. Accounting Policy : CAG has also questioned various accounting policies adopted by organizations working in PPP model, wherein revenue of the government or resources of the government have been compromised due to non adoption of generally accepted accounting practices. For e.g. in one of the airports developed in terms of PPP model, the money received by the private sector developer from long term lease of the land to number of hotels amounting to thousands of crores have been accounted for by the developer as capital receipts and the developer has not shared mandatory 46% revenue with the government. Decisions Review : CAG in its reports have also questioned a large number of decisions taken at the highest level and middle level of the management which were, although technically documented, on the face of it as appropriate but in fact most of such decisions were neither taken in the best interest of the government or the regulators or organizations concerned. Most importantly these decisions were beyond the overall policy framework laid down by the government/audit entity. The aforesaid initiatives on the part of Hon'ble CAG have brought to light a new debate within the audit profession and the entire chartered accountants circle as to what should be the real scope of audit and can be really ignored the real expectation of the society and the public from the profession of chartered accountants and auditors. Could not understand this? Auditors' debate: The entire auditing profession, more especially all leading chartered accountants are very actively debating on as to whether the international standards on auditing need a comprehensive revision and rather than only reporting on internal control, compliance of various decisions, documentation, supporting vouchers, bills, receipts of goods and other supporting facts and figure examination, is the real audit different and whether the expectation gap is real. The auditors are debating as to 1. Whether they can question the decisions taken by the management at various levels, in case they are not in the interest of the company or they are not in
accordance with the overall policy guidelines determined by the Board or shareholders/owners. 2. Whether the auditors should review the actual performance vis-a-vis budgeted, standard or estimated performance at the time of financial outlay. Whether performance of management team need to be critically examined by the Auditors. 3. Whether besides the examination of financial figures and documentation supporting them, auditors need to confirm and verify as to whether the purpose to which the money was spent has been achieved. 4. Whether the Physical outcome arising out of the financial outlay is commensurate to the money spent. 5. Whether adequate due diligence was undertaken while carrying out various functions of the management. 6. Whether the auditors need to go in real corporate governance, rather than just verifying only symptoms or requirements of compliance of corporate governance indicators. 7. Whether the auditors can review the information disclosed to the audit committee or to the board of directors and to the shareholders, with a view to achieve adequate transparency and responsibility in the decision making process. 8. Whether the quality of services or quality of goods, claimed by the corporate were achieved or the corporate concerned is playing with the interest of various stake holders including customers, suppliers and employees and most importantly the shareholders. 9. Whether the propriety aspects of the audit are to be undertaken by the auditors, once the shareholders appoint them to review and undertake the audit and assurance process. 10. Whether auditors can question the extravagant or unwarranted cost and expenses. 11. Whether related party transactions are in the interest of the company or their justification can be reviewed. 12. Whether the money advances has unsecured loan as interest free loan or certain guarantees, advances or expenses were incurred without adequate justification, bearing the interest of the company in mind. The aforesaid list is unending and can be summarized in one statement i.e. whether the auditors should be made responsible to ensure that the affairs of the audit entity are managed in a manner that they are genuinely in the interest of the owners, minority shareholders, buyers, suppliers, employees, government and regulators, society and most importantly the overall interest of the audit entity and the nation. You can't expect auditors to be all pervasive, do all and know all kind of class.Please rethink on this issue.
A JOURNAL OF
AUDIT
1.0 CAG detects loss of ` 2,310 Cr in Tax Collection by Delhi Govt The Comptroller and Auditor General (CAG) has said that under assessment, irregular claims of exemption and other shortcomings in tax collection system of Delhi Government have caused a loss of over ` 2,300 crore to the exchequer in 2011-12 2.0 National Highways Body loses ` 874 Cr on Project delays: CAG Delay in completion of port road connectivity (PRC) projects and loss of toll revenue had resulted in a loss of around ` 873.85 crore to the National Highways Authority of India (NHAI), said the Comptroller and Auditor General of India. 3.0 CBI sharing Coal Probe Report has shaken Investigation Process : Apex Court The Comptroller & Auditor General draft report alleges that government offered coal blocks without auction causing a loss of ` 10.67 Lakhs crores. It also blames Prime Minister Manmohan Singh for wrongdoings. 1.0
to insurance companies to renew the archived individual agency licenses. IRDA had achieved a large number of licenses of agents who had not submitted their PAN or whose licenses had lapsed for more than one year, resulting in large number of dormant practices. 3.0 Insurers Exposure cap for Reverse Repo deals removed The Insurance Regulatory and Development Authority (IRDA) have done away with the exposure limit on reverse repo transactions by insurers. In a circular to the chief executives of all insurance companies, IRDA has said that reverse repo transactions in government securities were treated on a par with collateralised borrowing and lending obligation (CBLO) transactions and the 10 per cent investment limit wasn't applicable to this category.
DIRECT TAXATION
Union Budget Approved The Finance Bill for the year 2013 was approved by the parliament, subject to following changes: 1. No levy of wealth tax on farm land. 2. No requirement of TAN for tax deduction at source on transfer of immovable property of over ` 50 Lakhs. 3. Exemption for Gold Coin or articles, weighting less than 10 gms, from tax collected at source in cash sale withdrawn. 2.0 Withholding Tax thrashed The Finance Bill has made the withholding tax for FIIs, QFIs cut to 5% on rupee-denominated infra bonds. 3.0 Some Latest Judgements Section 32: Depreciation The Gujarat High Court has held that depreciation would be allowed on software developed and installed by assessee.
CIT-IV vs. Shree Rama Multi Tech Ltd., [2013] 32 taxmann.com 295
INSURANCE
1.0 IRDA finalises norms for Surveyors and Loss Assessors The Insurance Regulatory and Development Authority (IRDA) has finalized the training and licensing norms for surveyors and loss assessors for the insurance industry. The regulator has said appointment of a surveyor for loss assessment need to be made within 72 hours from the time of occurrence of loss was known to the insured. Further, they will be allowed to assess losses of only those departments specified in his/her license. They have been barred from acting as a consultant and are not to be involved in settlement of claims. 2.0 IRDA allows one time renewal of Agency License The Insurance Regulatory and Development Authority (IRDA) has given a one-time chance
A JOURNAL OF
Section 2(24): Income The Gujarat High Court has held that where incentive in form of sales tax waiver/deferment
DIRECT TAXATION
was not meant to give any benefit on day-to-day functioning of business or to make it more profitable, but was aimed to cover capital outlay of assessee for undertaking modernization of existing industry, it was capital receipt, not chargeable to tax
CIT vs. Birla VXL Ltd., 2013] 32 taxmann.com 330
The Mumbai ITAT bench has held that foreign exchange gain, if related to business of assessee profit, will be a part and parcel of arm's length price profit.
S. Narendra vs. Add. CIT-16(3), [2013] 32 taxmann.com 196 (Mumbai - Trib.)
Section 40(a)(ia): Business Disallowance The Bombay High Court has held that where assessee paid certain amount to sister concerns by way of reimbursement of salaries because their employees were deputed to assessee, there was no requirement to deduct tax at source while making said payments.
CIT-II vs. OCB Engineers, [2013] 32 taxmann.com 271
The Hyderabad ITAT bench has held that while computing ALP, companies having supernormal profits and companies with extraordinary circumstances like merger/de-merger etc. cannot be taken as comparables
Capital IQ Information Systems (India) (P.) Ltd. vs. DCIT (International Taxation), [2013] 32 taxmann.com 21
Section 30: Rent, Rates, Taxes, Repairs and Insurance for Buildings The Madras High Court has held that expenditure on designing, layout and other temporary constructions, to make leasehold office premises functional, is revenue expenditure.
CIT- I, Chennai vs. Armour Consultants (P.) Ltd., [2013] 32 taxmann.com 172
The Delhi ITAT bench has held that the Bright Line test can be applied to disallow the excessive AMP expenses incurred by the assessee for the benefit of the brand owner.
L.G. Electronics India P. Ltd. vs. ACIT
The Chennai ITAT bench has explained law on valuation of shares of a closely held company for transfer pricing purposes.
Ascendas (India) Pvt. Ltd. vs. DCIT
Section 2(14), read with Section 45: Capital Asset The Mumbai ITAT bench has held that undisputed tenancy right of an assessee in respect of a property is a capital asset.
Kewal Silk Mills vs. ACIT, [2013] 31 taxmann.com 405.
Section 28(i), read with Section 22 and Section 80-IA: Business Income The Mumbai ITAT bench has held that rental income derived by assessee from business centre (I.T. Park) was to be treated as business income and not as income from house property.
Krishna Land Developers (P.) Ltd. vs. ACIT, Circle-2(2), [2013] 32 taxmann.com
Section 194H: Deduction of Tax at Source on Commission or Brokerage The Mumbai ITAT bench has held that subbrokerage paid in connection with services rendered in course of buying and selling of units of mutual funds is not covered by provisions of Section 194H.
DCIT - 2(3), Mumbai vs. S.J. Investment Agencies (P.) Ltd., [2013] 32 taxmann.com 97.
Section 37(1): Business Expenditure The Mumbai ITAT bench has held that payment made to stock exchange for violation of byelaws of stock exchange is allowable as business expenditure.
HSBC Securities & Capital Markets (India) (P.) Ltd. vs. ACIT, Circle-4(1), [2013] 32 taxmann.com 328
Section 92C: Transfer Pricing The Delhi ITAT bench has held that in case of transaction of lending money in foreign currency to foreign subsidiary, LIBOR should be taken as benchmark rate for computing ALP of interest.
Cotton Naturals (I) (P.) Ltd. vs. DCIT, Circle 3(1), [2013] 32 taxmann.com 219
Section 147, read with Section 143(1) and Section 153C: Assessment / Reassessment / Search / Stay The Delhi High Court has held that even Section 143(1) Intimation cannot be reopened u/s 147 without fresh material.
CIT vs. Orient Craft Ltd.
The Bangalore ITAT bench has held that nonsupply of recorded reasons before passing
50C does not apply to transfer of immovable property held through company
Irfan Abdul Kader Fazlani vs. ACIT
The Mumbai High Court has held that failure to obtain JCITs approval renders Section 153C Assessment order void.
CIT vs. Akil Gulamali Somji
The Mumbai ITAT bench has held that Section 50C does not apply to transfer of FSI & TDR.
ITO vs. Prem Rattan Gupta
The Mumbai ITAT bench has held that Section 153A assessment is mandatory even if no incriminating material is found.
ACIT vs. Pratibha Industries Ltd.
The Delhi High Court has held that several independent units can constitute a residential house for the purposes of section 54 / 54F.
CIT vs. Gita Duggal
The Gujarat High Court has held that AO cannot assess other escaped income if original reason is dropped u/s 147.
CIT vs. Mohmed Juned Dadani
The Punjab & Haryana High Court has held that a family settlement does not result in a transfer and compensation received to equalize inequalities in family settlement is not taxable as income.
CIT vs. Ashwani Chopra
The Mumbai High Court has held that Section 292BB does not have retrospective effect.
CIT vs. Salman Khan
The Ahemdabad ITAT bench has held that Tribunal has the power to grant unlimited stay of demand under third Proviso to section 254(2A)
Vodafone West Ltd. vs. ACIT
The Delhi High Court has held that gains on shares held in investment portfolio are not assessable as business profits.
CIT vs. Avinash Jain
Section 14A / Rule 8 D: Exempt Income The Kolkata ITAT bench has held that expense specifically relatable to taxable income cannot be disallowed u/s 14A read with Rule 8D
JCIT (OSD) vs. Pilani Investment & Industries Corpn. Ltd.
Section 9: International Taxation / Royalty The Delhi ITAT bench has laid down important law on taxability of royalty embedded in goods sold in India has held that royalty earned by nonresident from another non-resident is not taxable in India u/s. 9(1)(vi)(c) even if payer embeds the know-how into products sold in India.
Qualcomm Incorporated vs. ADIT
FINANCIAL INDICATORS
Current Rate* Month Ago (in %) (in %) 3 Month Ago (in %) 6 Month Ago (in %)
3 Month LIBOR ($) 3 Month MIBOR (`) SENSEX NIFTY CRR REPO REVERSE REPO Gold (per 10 gm) Silver (per kg) Crude (USD/bbl) Rs. vs USD Rs. vs Euro Rs. vs 100 Yen Rs. vs RMB Rs. vs Pound MCX Aluminium MCX Copper
*As on 10th May 2013
0.275 8.36 19939 6050 4 7.25 6.25 26843 45062 104.47 54.54 71.11 53.97 8.93 84.19 100.75 399.45
0.277 8.79 18413 5558 4 7.5 6.5 29230 51775 105.79 54.53 71.33 55.03 8.8 83.59 102.4 413.2
0.290 8.96 19485 5903.5 4 7.75 6.75 30815 58246 118.9 53.57 71.79 57.42 8.61 84.25 110.7 444
0.310 8.68 18846 5738 4.25 8 7 31415 59933 107.25 54.34 69.43 68.31 8.63 86.97 103.65 416.4
The Mumbai ITAT bench has held that services rendered by machines is not fees for technical services u/s 9(1)(vii)
Siemens Limited vs. CIT
The Andhra Pradesh High Court explaining entire Law on Lifting Corporate Veil to tax offshore transfers held that gains arising on sale of shares of foreign company by NR to NR not taxable in India under India-France DTAA even if the foreign co only held Indian assets.
Sanofi Pasteur Holding SA vs. Department of Revenue
Section 50C read with Section 54 and 54F : Exemptions from Capital Gain The Mumbai ITAT bench has held that Section
A JOURNAL OF
Date of Printing : 12th MAY, 2013 R.N.I. No. 50796/90 Posting Date: 14/15 May, 2013
IAL EDITOR
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FEMA
1.0 RBI clarifies on ODIs The Reserve Bank of India (RBI) has observed Indian parties were using the Overseas Direct Investments (ODI) as an automatic route to set up structures facilitating trading in currencies, securities and commodities. Such structures, with equity participation of Indian parties, have also started offering financial products linked to the rupee. The central bank has clarified any foreign entity, with equity participation directly/indirectly, shall not offer such products without its approval.
TELECOM SECTOR.....
The telecom licenses & spectrum should be made freely transferable. The entry barriers in telecom sector need to be completely withdrawn by permitting maximum possible telecom operators to bid for spectrum on revenue sharing basis, while allocating a reasonable economic size to each operator.
"It is very important duty of the king to ensure, in an equitable manner that all fair opportunities are provided duly empowered by policy supports to ensure growth of each business sector"
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