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A. Chandak & Company

Swachh Bharat Cess @ 0.5% leviable with effect from 15-11-2015 on all taxable services. It was proposed in budget 2015-16 that Swachh Bharat Cess will be levied @2%. However currently government start imposing this cess @0.5%(Half Percent only).
CA Arun Kumar Chandak

CBDT initiates pilot project on paper-less assessment using emails; CBDT identifies non-corporate charges at 5 locations in India & 100 initial cases for e-hearing; CBDT opines that "This would eliminate the necessity of visiting the Income-tax Offices by the taxpayers, particularly in smaller cases, involving limited issues and where taxpayer is able to provide details required by the AO without necessitating his physical presence": CBDT

CA Arun Kumar Chandak

MCA Update on Deposit From Relative By Private Limited Company:

Deposits rules are quickly getting aligned with old 58A exempted rules to private limited company.

Without any upper limit of amount, now a private company can  accept unsecured loans apart from director even from a relative (as per definition) of a director of the company with simple declaration saying the relative has not borrowed same from others. The relative need not be a shareholder of the company.

CA Arun Kumar Chandak

Tweet by finance ministry:
It has been decided that the last date for filing of returns due by 30th September 2015 will not be extended.@arunjaitley#income #tax

Here is the pib release

CA Arun Kumar Chandak

Congratulations for grand success in CA Final Exams :-
Ankur Mundra 
Janardhan Chadnak
Raghav Sarda

Team A.Chandak & Co.

CA Arun Kumar Chandak

How to e-file return using EVC without sending signed copy of ITR-V?
Taxpayers filing return of income electronically (without digital signatures) are required to send the signed copy of ITR-V acknowledgement to the CPC, Bengaluru within 120 days of uploading the return. From the Assessment Year 2015-16, an option is given to the taxpayer to file return of income via ‘Electronic Verification Code’ (‘EVC’). In that case, taxpayers shall not be required to send the signed copy of ITR-V to CPC, Bengaluru.

The procedures and modes of filing of return through EVC has been notified by the CBDT. Thus, taxpayers can now file their return without worrying about sending copy of ITR-V acknowledgment to the CPC, Bengaluru. The new procedure is as under:

I. Verification of person via EVC

EVC means a code generated for the purpose of electronic verification of the person furnishing the return of income. EVC will be a unique number linked to assessee’s PAN. It cannot be used for filing return of income of any other PAN. One EVC can be used to validate one return, irrespective, of assessment year or type of return.

EVC generated via Adhaar Card will be valid only for 10 minutes and in any other case, it will be valid for 72 hours.

II. Who cannot file return via EVC?

a) Persons, whose accounts are required to be audited under Section 44AB;

b) Political parties filing their return of income in ITR-7; and

c) Companies.

III. Modes of generating EVC

Taxpayers can generate EVC by any of the four modes specified hereunder:

1) Through Net-Banking : Banks registered with Income-tax Dept.are providing direct access to the e-filing website to their account holders. By clicking on e-filing option account holder will be redirected to the e-filing website where he can generate the EVC using “e-File” menu.

EVC generated will be sent to the registered e-mail id and mobile number of taxpayer, which can be used to verify income-tax return.

2) Through Aadhaar Number : Taxpayers can link their Aadhaar Number with their PAN on e-filing website to generate the EVC. Aadhaar Number can only be linked if the PAN database (i.e., name, DOB and gender) are similar to data available with UIDAI for his Aadhaar number.

Once the Aadhaar Number is linked to PAN, ‘one time password’ (‘OTP’) will be generated by UIDAI and sent to the taxpayer’s mobile number registered with UIDAI. This Aadhaar based OTP will be the EVC and can be used to verify the income-tax return.

3) Through ATM : All taxpayers can generate EVC through ATM only if ATM card of taxpayer is linked to PAN validated bank account and bank is also registered with the Income-tax department. Taxpayer can access ATM of registered bank using his Debit/Creditcard andthereafter he/she needs to selectoption of “Generate EVC for Income Tax Return Filing” on ATM screen. The bank will communicate this request to e-filing website which will generate EVC and send the EVC to assessee on his registered mobile number.

4) Through E-filing Website of Income-tax Dept. : Assessee can also generate EVC by using e-filing website of Income-tax Dept. (i.e., However, this facility is available only to the assessee’s having total income of Rs. 5 Lakhs or below and who are not claiming Income-tax refund. To use this facility, assessee can visit the e-filing website and select the option ‘Generate EVC’ from e-File menu. EVC generated will be sent to the registered email ID and mobile number.

CA Arun Kumar Chandak

After commencement of Companies Act, 2013 from 01st April 2014 Compliance requirement of Companies has been increased. Therefore it’s difficult for the Private Company to continue and for peoples to incorporate new Companies. The new Company law was pain for the youth. Although it allows a single-person company to be set up, when it needs to draw in fresh investment, it will be forced, for all practical purposes, to become a multi-share-holder Company. However small it is, it will have to meet full secretarial Standards. There is every reason to make compliance with the full panoply of regulation conditional on crossing a defined threshold. Section 185 makes it hard for owner of a clutch of privately-held Companies to shuffle capital amongst the companies. This produces inflexibility while advancing no public interest.
Similarly clumsy attempts to prevent mischief in related party transactions make life complex in other
Cases, too. Such legal requirements rightfully belong to the world of Kafka, not to attempts to improve ease of doing business. Young, ambitious Indians deserve better.


1But after 5th June, 2015 “EXEMPTION” has been provided to Private Limited Companies. After all that exemptions status of Private Limited Companies under Companies Act, 2013 more or less is equal to Status in Companies Act, 1956.
The Ministry of Corporate Affairs, Government of India issued the final notifications under Section 462 of the Companies Act, 2013 (Act), which provide exemptions under various provisions of the Act to Private Companies and has “Removed Hurdles in the path of Small Companies”
Notification issued by MCA on 5thJune, 2015.The same is effective from the date of its notification only i.e. 5th June, 2015.
v 2Incorporation by Single Form:

·         Entrepreneurs keen on setting up new enterprises will be able to incorporate one by filing just one form starting 1st May, 2015 against eight separate forms earlier, as part of the government's drive to make it easier to do business in the country.

·         "Name availability, allotment of Director Identification Number (DIN), company incorporation and commencement of business will now be possible through a single form.

The new form, called INC-29, is available on the MCA website. This is part of the government's drive to improve India's ranking on the globally tracked parameter of ease of doing business.
v  No need of Minimum Capital Requirement.

v  Have been allowed to accept deposits from members without the requirement of offer circular and creation of deposit repayment reserve etc maximum of 100% of aggregate of its paid up capital and free reserves (which does not include securities premium).

v  Major Relax exemption has been given from filing of board resolutions (MGT-14) with the ROC for the purposes mentioned under Section 179(3).

v  OPCs, dormant companies, small companies and private companies having paid up share capital less than Rs. 100 crore have been excluded for calculating the limit of 20 companies for audit by an auditor.

1.     Detailed Note on Exemption on Private Limited Companies published separately.
2.     (Complete Article on INC-29 “Integrated Process of Incorporation” will be published Separately)


v  No need to pass “Special Resolution” for the purposes of passing of Resolution mentioned under Section 180. Example: 1. Borrow exceeding paid up capital & free reserves.

v  An interested director of a private company can now participate in the Board meeting after declaring his interest. But will not count for the quorum.

v  Loan to Director u/s 185 allowed subject to certain conditions.

v  Even if, Member is related then also he can vote on such resolution required to be pass u/s 188 in GM.

v  The exemptions relax the provisions for entering into Related Party Transactions;

Let’s Start Discussion on Provisions Applicable on Private Limited Company

(After Exemptions Notification, Companies Amendment Act, 2015 and Circulars/Notifications/ amendments upto 7th July, 2015)
As per Section 2(68) “Private Company” means a Company, which by its Article,-
(I) restricts the right to transfer its shares;
(ii) Limits the number of its members to 200; and
(Iii) prohibits any invitation to the public to subscribe for any securities of the company;
Note: -     1. Joint holders shall be counted as one.

                2.   (A) Employees holding shares; and

(b) Person formerly in employment were, who members during such employment

                            and still continue to be the members shall not be counted in the limit of 200.

3.      Private Limited Company can be incorporate with any amount of Capital it may be Rs. 2 to Rs. Infinite.


India is moving towards “ease of doing business’ regime and wants to improve its current rank (134 out of 185 as per World Bank) in starting a business vis-à-vis global standards.
As I have already discussed above about Incorporation of Company by single form. It can be called “Single Step Process for Incorporation of Company”.
Complete Article of Incorporation through INC-29 will share separately
1.     The requirement of minimum paid-up capital has been deleted as per the Companies (Amendment) Act, 2015 (21 of 2015), dt. 25-5-2015.
3.      ALLOTMENT OF SECURITIES (Section 42, 62):
Private Limited Company can allot the shares by following ways:
a.    Right Issue of Shares: (Section-62)
In this option company can allot shares only to Existing Share Holders. (It is Shortest Process of Issue of Shares under Companies Act, 2013)
b.    Preferential Allotment of Shares: (Section 62 and 42 read with relevant rules) in this option company can issue shares to group of Existing share holders or group of existing shareholders and outsider.
(As per Companies (Share Capital and Debentures) Amendment Rules, 2015 Dated 18.05.2015 in case of preferential allotment of shares to only Existing Shareholders of the Company no need to maintain record of Offer in PAS-5 and no need to prepare private placement offer letter PAS-4)
c.     Private Placement of Shares: (Section 42 read with relevant rules) this option is use by the company when company will issue shares to outsiders. (It’s a lengthy process).
Separately Articles has been published on above mentioned topics.
4.      ISSUE OF SHARE CERTIFICATE(Section 45-46):
i.    Time Period For Issue Of Share Certificates:

§  In case of Incorporation: With in a period of 2 (Two) Month from the date of Incorporation to the subscriber of Memorandum.

§  In case of Allotment: With in a period of 2 (Two) Month from the date of allotment of shares.

§  In case of Transfer: With in a period of 1 (One) Month from the date of receipt of instrument of Transfer by the Company


ii.    Other Points:


Ø  Common seal is Optional (After Companies Amendment Act, 2015)
Ø  Share Certificate should be issue under the signature of Two Director or by a Director and Company Secretary (If any).
Ø  Share Certificate Must is ‘Issued’ from registered office only.
Ø  After issue of Share Certificate, Company should pay stamp duty on issue of share certificate as per Stamp Act of the State.
5.      TRANSFER OF SHARES (Section 45-46):
Generally a Private Company is guided by its Article of Association. As per Section 2(68) of Companies Act, 2013 Private Company restricts the transfer of shares and prohibit invitation to public to subscribe to any securities of the Company.

     i.        Points to be Kept in mind while transferring of shares:


a)    Transferor should give a notice in writing for his intention to transfer his share to the company.
b)    The company in turn should notify to other members as regards the availability of shares and the price at which such share would be available to them.
c)     Such price is generally determined by the directors or the auditors of the company as per book value of shares.
d)    The company should also intimate to the members , the time limit within which they should communicate their option to purchase shares on transfer
e)    If none of the members comes forward to purchase shares then the shares can be transferred to an outsider and the company will have no option, other than to accept the transfer.
f)     The Share transfer deed in FORM SH-4 duly executed both by the transferor and the transferee
g)    Stamp duty for transfer of shares in Delhi is 25 PAISA for every Rs. 100 or part thereof.
6.      CHARGE (Section 77):
Type of Charges to be registered:
Old Act: Section 125 specifies only 9 types of charges to be registered.
New Act: Section 77 states that Companies are required to register ALL TYPES OF CHARGES, with ROC within 30 days of its creation.
within or outside India,
on its property or assets or any of its undertakings,
whether tangible or otherwise, and
situated in or outside India
For Creation of Charge Form CHG-1 will be filed with fees prescribed under Act. Form should be signed by the Company and the Charge-holder and should be filed together with instrument creating charge.
Additional period to register the Charge:
Section 77- ROC may on application by the company, allow the registration of charge within 300 days (30 days + additional period of 270 days). If form will file after 30 days then form will file with additional fees.

Application to be supported by a declaration in Form CHG-10 from the CS or Director that such belated filing will not adversely affect the rights of any creditors of the company.
Rule 4(2) chapter VI
Time Limit for filling for Creation of Charge
Modification of charge:
Provisions of Modification of charge are completely same as provisions of Creation of Charge. After filling form for Modification of Charge registrar will issue certificate for modification of charge in form CHG-3.
Any modification in the terms or conditions or the extent or operation of any charge registered under that section also required registration.
1.     Under Companies Act, 2013 there is also need to Create Charge on Hypothecation of Vehicles also.
Satisfaction of Charge:
Charge is created as security for loan or debentures or as security for some other purpose. If the amount of loan is repaid or debentures are fully paid or other purpose is fulfilled, there remains no necessity of the charge. This is called satisfaction of charge.
As per Section 82 – Form for Satisfaction of charge will be file in form CHG-4 within 30 days of satisfaction of charge. If company fail to file form CHG-4 within 30 days of creation of charge then company have to go for Condonation of delay for satisfaction of charge.
Charges Filing of Which with ROC is not necessary?
·         Guarantee doesn’t require Registration.
·         Charge created by operation of law need not be filed
·         Negotiable Instrument (Hundi) is not a ‘Charge’ and registration not required.
Pledge is not required to be filed for Registration:
·         Official Liquidator V. Viswanathan case: It was held that charge, being pledge, is not required to be registered, in winding up, the pledge is not treated as creditor. He is at liberty to issue necessary statutory notice to sell the pledged property.
§  Every company shall prepare an annual return in form MGT-7 containing period 1st April to 31st March.

§  Every company shall file with the Registrar a copy of the annual return, within sixty days from the date on which the annual general meeting is held.
Certification of Annual Return by Company Secretary (MGT-8):
a)    All Listed Companies
b)    Every Company having:
Ø  Paid-Up share capital of 10 Crore (Ten Crore) rupees or more or
Ø  Turnover of 50 Crore (fifty crore) rupees or more
Signing of annual return By Company Secretary: Annual Return of below mentioned company should be “SIGNED FROM’ A ‘COMPANY SECRETARY IN PRACTICE’
a)    All Listed Companies
b)    All Public Companies
c)     Private Limited company having:
Ø  Paid up share Capital Exceeding 50 lac
Ø  Turnover exceeding 2 Crore
Companies EXEMPT from Signing of Annual Return from Company Secretary:
a)    One Person Company
b)     Small company
Time Period for Annual General Meeting:
·         In case of Existing Company: Annual General Meeting should be held within 15 (Fifteen) Months from the last Annual General Meeting or 6 (Six) month from the end of financial year. Whichever is EARLIER?
·         In case of New Company: First Annual General Meeting should be held within 9 (Nine) month from the end of financial year.
·         Time: Annual General Meeting should be held between 9:00 A.M. to 6:00 P.M.
Notice of Annual General Meeting:
§  General Meeting of a company may be called by giving not less than clear twenty-one days ‘notice either in writing or through electronic mode.
§  Every notice of a meeting shall specify the place, date, day and the hour of the meeting and shall contain a statement of the business to be transacted at such meeting.
§  The notice of every meeting of the company shall be given to—
(a)    Every member of the company
(b)    The auditor or auditors of the company; and
(c) Every director of the company
Quorum of Annual General Meeting:
Two members personally present, shall be the Quorum for a meeting of the company.
Place of ANNUAL General Meeting:
As per Section 96(2) AGM can be held at registered office of the Company or any other place in the City, Town & Village where registered office of the Company is situated.
Place of EXTRA ORDINARY General Meeting:
The EGM can be held anywhere in INDIA.
1.     Municipal Department of Company Affairs have recognized this contingency and have advised vide circular Letter No. 1/1/80-CLV and No. 6/159/PT/64, dated 16.02.1981 that a Company can hold its AGM within the postal Limits of the City in which registered office is situated if it is more convenient for its shareholders.
9.      DIVIDEND (SECTION 123): Dividend is 2 (Two) type.
A.    Interim Dividend: {As per Clause 81 of Model Articles of Company Limited by shares as Contained in Table-F of Schedule-I of the 2013 Act}

·         Interim dividend can only be declared by board of Directors.

·         Generally paid in the middle of the year if Board of directors fined that profitability of the company.

·         Board of Directors can declare dividend out of surplus in profit and loss account at the beginning of the year or profit during the year.

B.    Final Dividend: As per Clause 80 of Model Articles of Company Limited by shares as Contained in Table-F of Schedule-I of the 2013 Act}
·         Company in Board Meeting may decide the amount of dividend which they want to recommend in General Meeting.
·         Company will mention the resolution for Dividend in the Notice of General Meeting.
·         Company will hold the General Meeting:
§  Declaration of Dividend is Ordinary Business.
§  Ordinary Resolution for declaration of dividend will be passed in the General Meeting.
·         Once dividend is declared, it must be paid within 30 days.
Every Company shall prepare and Keep At Its Registered Office

·         Books of Account and

·         other relevant Books and Papers and

·         Financial Statement for every financial year which give a true and fair view of the state of the affairs of the Company including that of its branch office or offices, if any

Place of keeping of Books of Accounts:

Company can keep all or any of the books of account aforesaid at Place Other Then Registered Office (but in INDIA) of the Company by following procedure:

·         Board of Director of the Company will pass a Board Resolution.

·         Within 7 days of passing of resolution company will file form AOC-5 with ROC.




In case of newly incorporate company:

v  If Company incorporated ON OR AFTER 1st January of a year, the period ending on the 31st day of March of FOLLOWING Year.

v  If Company incorporated ON OR BEFORE 1st January of a year, the period ending on the 31st day of March of that Year.

In case of old incorporate company:
§  Financial year means the period ending on the 31st Day of March every year.


§  A Balance Sheet

§  A profit and Loss account (or Income and expenditure account)

§  Cash Flow Statement

§  A statement of changes in equity (If applicable)

§  Any explanatory note attached to,

[The State changes in equity is applicable for Companies to which the AS applies]

Cash Flow Statement not required to be prepared by the companies:

§  One Person Company; of

§  Small Company; or

§   Dormant Company.

Authentication of Financial Statement:

In case of Private Company Financial statement should be signed by the Two Directors of the Company.

§  After the signatures, it should be submitted to the auditor for his report thereon.

§  When financial statement signed by two directors, such directors should be present at the meeting and should sign the accounts at the meeting. (I.e. should be signed at the meeting itself and not later).

Circulation of Financial Statement 134(7):

To whom:
§  Every Member of the Company

§  To every trustee for the debenture-holder of any debentures issued by the Company and

§  To all persons other than such member of trustee, being the person so entitled.

Time period of circulation (Section 136):

§  The financial statement (including consolidated financial statement, if any) auditor’s report and every other documents required by law to be annexed or attached to financial statements, which are to be laid before a company in its general meeting shall be sent “Not Less Than 21 (Twenty One) days before the date of the Meeting.

A.    Signing of Director’s Report:
As per Section 134(6) Board Report and annexure thereto shall be signed by
·         its ‘CHAIRPERSON’ if he is authorized by Board of director; Where he is not so authorized by,
·         At least 2 (Two) Director, one of whom shall be a Managing Director.
·         If there is no Managing Director then by Two Directors.
B.    Basis of Board Report:
The Board’s Report shall be prepared based on “STAND ALONE FINANCIAL STATEMENT OF THE COMPANY”
But the Board’s Report shall contain a Separate section wherein a report on the performance and financial position of each:
·         Subsidiary
·         Associate
·         Joint venture companies, including in the consolidated financial statement is presented.

CA Arun Kumar Chandak

Member (A&J), CBDT
Tel: 011-23094683
Fax: 011-23092591


3rd July, 2015


Subject; Filing of Appeals on merits- Observations of Courts – reg,

Reference the earlier D.O. dated 19th September, 2014 on the above subject.

2. It has been noted that despite several instructions on the subject, necessary due diligence and caution is not being exercised while granting authorization for filing of appeals. Several court decisions have been noted where courts have taken an adverse view against the Department. A few such decisions are:

(i) ITAT, Mumbai in the case of M/s Prescon Builders Pvt. Ltd. has stated that the very fact that the AO filed the appeals without even verifying the year, which was mentioned in the ground of appeal, also indicated that the appeals were filed in a routine manner which causes lot of inconvenience to the tax payers and such a practice should be deprecated.

(ii) High Court, Mumbai, in the case of CIT-2 Vs. State Bank of India, Financial Reporting, Compliance & Taxation Department .noted that where the Revenue has accepted the order by not preferring any Appeal against the earlier order, the Revenue should not challenge the subsequent order on the same issue. In case an appeal is preferred from the subsequent order, then the Memo of appeal must indicate the reasons as to why an appeal is being preferred in the later case when no appeal was preferred against the earlier order of the Tribunal which has merely been followed in the later case. The absence of this being indicative of non-application of mind, does undoubtedly give an opportunity to the Revenue to arbitrarily pick and choose the orders of the Tribunal which they would challenge in the Appeal before the Court.

(iii) ITAT, Mumbai in the case of Sh. S. Ganesh has stated that the act of disregard and disobedience of the orders of the higher judicial authorities in hierarchy amounts to the gross abuse of process of law and is an act which tends to lower down the authority of the higher courts. In this case an appeal was filed on an issue settled by the ITAT in its earlier decision in the same case.

2.1 The apathy of the Department Officers is evident in another shocking incident where in a sensitive search case, appeal was filed by the Department in High Court. The Registry pointed out certain defects in filing of appeal and the Court granted time to remove the defects. This relates to the year 2009. From 2009 till 2014, no follow-up action was taken and the case was dismissed due to default on part of the Department in curing procedural defects. The Department filed a MA praying for restoration of the main appeal and subsequently a Review Petition which were dismissed by the Court. When the matter travelled to the Supreme Court, the Apex Court has taken a serious view and directed that Department ascertain and fix responsibility of the individual/ (s) guilty of inaction and for taking appropriate action against them for such inaction. This default was compounded by the fact that the SLP was filed after a delay of 240 days.

2.2 Needless to say that the Courts are taking a stern and inclement view as far as Department’s actions in litigation matters is concerned.

3. Further, besides financial costs, litigation also entails tarnishing the image of the Department and straining its resources. The significance of filing appeal and pursuing litigation only in deserving cases cannot be over-emphasized, more so in the backdrop of the fact that Department is facing shortage of officers at all levels. It is imperative that the available resources are optimally utilised to obtain maximum benefit out of litigation.

4. This must be brought to the attention of all concerned for compliance.

With regards,
Yours sincerely,
(S.K. Ray)

CA Arun Kumar Chandak

MCA 21 portal will not be available from 8am to 6pm. All stakeholders are requested to plan their filing activities accordingly.

CA Arun Kumar Chandak
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