Wednesday, June 15, 2016

Refund of Tax Deducted at Source U/s 195 to Deductor

Refund of Tax Deducted at Source U/s 195 To Deductor
Very often assessee involved in transactions with Non-residents faces a situation where transaction with the Non-residents is disrupted and they have deducted & deposited TDS on the transaction to the accounts of the government.

In addition to other concerns the assessee find himself trapped in additional loss on account of Tax deducted at source on the transaction which he has already paid to the government.

To remove the genuine hardship the CBDT issued the Circular No. 790 dated 20/04/2000, which lay down the procedure for refund of tax deducted under section 195, in certain situations to the person deducting the tax at source from the payment to the non-resident.

However there are situations where genuine claim for refund arises to the person deducting the tax at source from payment to the non-resident and it does not fall in the purview of the Circular No.790.

So Board has revised procedure for refund of TDS us 195 to the deducted vide circular no 7/2007 dated 23/10/2007 & circular no 7/2011 dated 27/09/2011.

The cases which are covered mainly relate to circumstances where, after the deposit into Government account of the tax deducted at source under section 195:-
  1.  The contract is cancelled and no remittance is made to the non-resident;
  2. The remittance is duly made to the non-resident, but the contract is cancelled. In such cases, the remitted amount has been returned to the person responsible for deducting tax at source;
  3. The contract is cancelled after partial execution and no remittance is made to the non-resident for the non-executed part;
  4. The contract is cancelled after partial execution and remittance related to non-executed part is made to the non-resident. In such cases, the remitted amount has been returned to the person responsible for deducting the tax at source or no remittance is made but tax was deducted and deposited when the amount was credited to the account of the non-resident;
  5. There occurs exemption of the remitted amount from tax either by amendment in law or by notification under the provisions of Income-tax Act, 1961;
  6. An order is passed under section 154 or 248 or 264 of the Income-tax Act, 1961 reducing the tax deduction liability of a deductor under section 195;
  7. There occurs deduction of tax twice from the same income by mistake;
  8. There occurs payment of tax on account of grossing up which was not required under the provisions of the Income-tax Act, 1961;
  9. There occurs payment of tax at a higher rate under the domestic law while a lower rate is prescribed in the relevant double taxation avoidance treaty entered into by India.
In the cases mentioned above, income does not either accrue to the non-resident or it accrues but the excess amount in respect of which refund is claimed, is borne by the deductor.

The amount deducted as tax under section 195 and paid to the credit of the Government therefore belongs to the deductor.

In the type of cases referred above in point-1, the non-resident not having received any payment would not apply for a refund.

For cases covered in point-2 to 9, no claim may be made by the non-resident where he has no further dealings with the resident deductor of tax or the tax is to be borne by the resident deductor.

This resident deductor is therefore put to genuine hardship as he would not be able to recover the amount deducted and deposited as tax.

Hence where no income has accrued to the non-resident due to cancellation of contract or where income has accrued but no tax is due on that income or tax is due at a lesser rate, the amount deposited to the credit of Government to that extent under section 195, cannot be said to be "tax", this amount can be refunded.

Procedure for the Refunds:

Prior approval of the Chief Commissioner of Income-tax or the Director General of Income-tax concerned, to the person who deducted it from the payment to the non-resident, under section 195, is required.

The amount paid into the Government account in such cases to that extent, is no longer "tax". In view of this, no interest under section 244A was admissible on refunds.

However the board vide circular No. Circular No. 11/2016 F.No.279/Misc./M-140/2015-ITJ, has allowed interest on refund of TDS as under:

"The issue of eligibility for interest on refund of excess TDS to a tax deductor has been a subject matter of controversy and litigation. The Hon’ble Supreme Court of India in the case of Tata Chemical Limited (2014-LL-0226-164 NJRS Citation), Civil Appeal No. 6301 of 2011 vide order dated 26.02.2014, held that, “Refund due and payable to the assessee is debt-owed and payable by the Revenue. The Government, there being no express statutory provision for payment of interest on the refund of excess amount/tax collected by the Revenue, cannot shrug off its apparent obligation to reimburse the deductors lawful monies with the accrued interest for the period of undue retention of such monies. The State having received the money without right, and having retained and used it, is bound to make the party good, just as an individual would be under like circumstances. The obligation to refund money received and retained without right implies and carries with it the right to interest.”

In view of the above judgment of the Apex Court it is settled that if a resident deductor is entitled for the refund of tax deposited under Section 195 of the Act, then it has to be refunded with interest under section 244A of the Act, from the date of payment of such tax.

The Assessing Officer may, after giving intimation to the deductor,
  1.  adjust it against any existing tax liability of the deductor under the Income-tax Act, 1961, Wealth-tax Act, 1957 or any other direct tax law.
  2. The balance amount, if any, should be refunded to the person who made such payment under section 195.
  3. A separate refund voucher to the extent of such liability under each of the direct taxes should be prepared by the Income-tax Officer or the Assessing Officer in favour of the "Income-tax Department" and sent to the bank along with the challan of the appropriate type.
  4. The amount adjusted and the balance, if any, refunded would be debitable under the major head "020-Corporation Tax" or the major head "021-Taxes on incomes other than Corporation tax" depending upon whether the payment was originally credited to the major head "020-Corporation tax" or to the major head "021-Taxes on Income other than Corporation tax".

Refund should be granted only after obtaining an undertaking that no certificate under section 203 of the Income-tax Act has been issued to the non-resident.

In cases where such a certificate has been issued, the person making the refund claim should either obtain it or should indemnify the Income-tax Department from any possible loss on account of any separate claim of refund for the same amount by the non-resident.

A refund should be granted only if the deductee has not filed return of income and the time for filing of return of income has expired.

Assessing Officer shall disallow corresponding transaction amount, if claimed, as an expense in the case of the person, being the deductor making refund claim for the refund is permitted in respect of transactions with non-residents which have either not materialized or have been cancelled subsequently.

Period of Limitation:

The limitation for making a claim of refund shall be two years from the end of the financial year in which tax is deducted at source.
__________________________________________________________________________________
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This blog is the property of Dhruv Jain & Associates. Any form of reproduction, dissemination, copying, disclosure, modification, distribution and/or publication of the content of blog or of the blog itself  without the prior written consent of the author of this blog is strictly prohibited and doing so will attract legal proceedings. Any views or opinions presented in this blog post are solely those of the author and for informative purpose only and should not be treated /used as guiding rule or professional consultancy in any case. The matter of discussion is highly sensitive to the amendments made by the government under various laws and may not be updated as per the changes. Readers are suggested to take prior professional consultancy of experts before using the blog or its material in any way.
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Monday, May 30, 2016

Equalisation Levy Finance Act 2016

EQUALISATION LEVY (FINANCE ACT, 2016)

Organization for Economic Co-operation and Development’s (OECD’s) had considered,  base erosion and profit shifting (BEPS) Action Plan, to impose an equalization levy (i.e., a tax to equalize the tax burden on remote and domestic suppliers of similar goods and services) as one option to tax digital transactions. The final Action report did not recommend introducing such a levy as an internationally agreed standard at this stage, it did state that countries could introduce one in their domestic laws as an additional safeguard against BEPS, provided they respect existing treaty obligations, or include them in their bilateral tax treaties.

In the Indian fiscal budget 2016, Finance Minister proposed inserting a new chapter "Equalization Levy" in the Finance Bill 2016 to provide for an equalization levy.

Here it is imperative to highlight a key issue that this levy has been proposed in the Budget as part of the Finance Bill and not as income tax so the person would not be able to take benefit of tax treaties to avoid double taxation in their home countries. (This issue is unaddressed yet)

Concept of Equalisation Levy as per Chapter VIII of Finance Act, 2016:

Equalisation Levy Means:
                                                Tax leviable on
                                                Consideration received or receivable
                                                for Specified service

Specified Service Means:
1.    Online Advertisement
2.    any provision for digital advertising space or any other facility or 
       service for the purpose of online advertisement
3.    Any Other Service as Notified by Government.

Rate of Levy:                               At the Rate of 6% of consideration

Applicability:
     Amount of consideration
     for any specified services
     received or receivable
     by a person being a non-resident
                         
                      FROM

1.    Resident in India carrying business or profession or
2.    Non-Resident having PR in India
     
But shall NOT BE CHARGED, where

1.    Non-resident providing the specified service has PE in India and 
       such services are effectively connected with such PE.
2.    Aggregate amount received or receivable in a P.Y is Less than 
       Rs.1Lakh.
3.    Payment for specified service is not for purpose of business or 
       profession.

Date of Applicability:                   1st June 2016 N.No. 37/2016 F No. 370142/12/2016-TPL.

Date of Payment of Levy:             7th day of the month immediately following the calendar month.

Furnishing of Statement:               Statement in Form-1 to be furnished before 30th June annually.  

Penalty/ Consequence of Non-Compliance:

Equalization levy not deducted:
                                                      Equal to the amount of the levy that failed to deduct (along with 
                                                      interest and the outstanding levy amount)

Equalization levy was deducted
but not deposited:
                                                      The penalty is equal to INR1,000 for each day the failure 
                                                      continues, but not to exceed the amount of the equalization levy
                                                      that the assesse failed to pay (along with interest and the
                                                      outstanding levy amount)

Disallowance of exp.                    
                                                      Expense disallowed u/s 40 of income tax Act. unless the defect is 
                                                      rectified)

Failure to file statement:               
                                                      INR100 for each day the noncompliance continues

Prosecution:                                  
                                                      If a false statement has been filed, the person may be subject to 
                                                      imprisonment of a term of up to three years and a fine
__________________________________________________________________________________
For suggestions and feedback please feel free to contact us via e-mail; dhruvjainassociates@yahoo.co.in or you can log on to our website: http://www.dhruvjainassociates.in
___________________________________________________________________________________
This blog is the property of Dhruv Jain & Associates. Any form of reproduction, dissemination, copying, disclosure, modification, distribution and/or publication of the content of blog or of the blog itself  without the prior written consent of the author of this blog is strictly prohibited and doing so will attract legal proceedings. Any views or opinions presented in this blog post are solely those of the author and for informative purpose only and should not be treated /used as guiding rule or professional consultancy in any case. The matter of discussion is highly sensitive to the amendments made by the government under various laws and may not be updated as per the changes. Readers are suggested to take prior professional consultancy of experts before using the blog or its material in any way.
___________________________________________________________________________________


Wednesday, September 2, 2015

Foreign Remittances & Withholding of Taxes, Section 195

Foreign Remittances & Tax Withholding
1.      There has been increase in cross border transactions both for trade as well as investment. Due to this, the importance of section 195 of the Income Tax Act, 1961 is increasing since it impacts every commercial transaction dealing in any cross border transactions. The objective is to ensure, that the tax liability on the income element, on the amount paid, should be deducted at source itself so that the department is not put to the hassles of recovering it from a non-resident whose connections with India may be transient or whose assets in India may not be sufficient to meet the tax liability. It is very pertinent to note that this section is wider in scope than all the other TDS sections in so far as it covers all and there is also no threshold exemption.

2.      Procedure for remittance-

Step1       Check if payment is covered under 195.

Step 2      Verify the documents and agreements

Step 3      Make classification of transaction on the basis of nature of income

Step 4      Check taxability under Income Tax Act

Step 5      Check taxability as per DTAA along with the availability of Tax

                 Residency certificate.
Step 6      Check the rates of TDS applicable

3.    Section 195

 
Sec 195(1)          Liability on payer to deduct tax on payments made to non-residents

Sec 195(2)          Application by payer for lower / Nil withholding

Sec 195(3)          Application by payee for Nil withholding

Sec 195(4)          Validity of certificate of lower/ nil deduction

Sec 195(5)          Empowers CBDT to notify rules

Sec 195(6)          Empowers CBDT the manner of furnishing information

Sec 195(7)          CBDT to specify class of persons or cases where application to AO is Compulsory

Sec 195(A)         Income payable "net of tax"

 
4.      Scope & Chargeability [Section 195 (1)]

Deduction under this section is to be made on earlier of credit or payment of Sum
chargeable to tax at the rates in force on payments made.

Exception:-

Section
Description
Sec 192
Salary
Sec 194LB
Interest payable by an Infrastructure Debt Fund referred u/s 10(47)
Sec 194LC
Interest on approved foreign currency loans obtained by an Indian company
Sec194LD
Income by way of interest on certain bonds and Government securities
Sec 115O
Dividend referred in Dividend Distribution Tax
 

"Foreign Company" means  company which is not a domestic company "domestic company' means an Indian company, or any other company which, in respect of its income liable to tax under his Act, has made the prescribed arrangements for the declaration and payment, within India, of the dividends including dividends on preference shares) payable out of such income).

As per Section 5, Non-residents (including NRIs) are chargeable to tax only on income which is received or deemed to be received in India or which accrues or arises or deemed to accrue or arise to him in India.

However, scope of section 195 extended to all persons including non-residents irrespective of them having a residence or place of business or business connection or any other presence in India. There is obligation to withhold tax even without any territorial nexus.

Section 9 deems the following income as accruing or arising in India:

(i)            Any income accruing or arising, directly or indirectly from any business connection in India or through any property in India or through any asset or source of income in India or through the transfer of capital asset situated in India.

(ii)          Income under the head salary chargeable if earned in India.

(iii)        Salary paid by government to citizen of India for services rendered by him Outside India.

(iv)        Dividend Paid by Indian Company outside India.

(v)          Interest payable by government or resident or Non-resident to NR in respect of debt incurred money borrowed and used for the purpose of business & profession carried on by such person in India.

(vi)        Royalty payable by government or resident or Non-Resident to NR in respect of services utilized for the purpose of business or profession in India or for earning any income from any source in India.

(vii)      Fees for technical services payable by government or resident or Non-Resident to NR in respect of services utilized for the purpose of business or profession in India or for earning any income from any source in India.

The sum paid to a non-resident should be chargeable under the provisions of the Act, for deduction of tax at source u/s 195. The words" Chargeable under the provisions of the Act" used in the section applies on both interest as well as any other sum. Hence, if income is not chargeable to tax under provision of income tax act, then there is no requirement to deduct tax u/s 195.

5.      Payer's application for lower/ Nil WHT certificate [See 195 (2)]

Application to be made to tax officer by the payer to determine portion of payment
chargeable to tax and thereof determined tax shall be deducted under sub-section (1)
only on proportion of sum which is so chargeable.

6.      Payee’s application for lower/Nil WHT certificate [See 195 (3)]

 
6.1.   Payee may make an application in the prescribed form to the AO for the grant of a certificate authorizing him to receive such interest or other sum without deduction of tax under that sub-section, and where any such certificate is granted, then payer so long as the certificate is in force, may make payment of such interest or other sum without deducting tax thereon.

6.2.   Conditions for grant of license prescribed in Rule 29B Form 15C & 15D

Person
Operating Mode
Eligible income for which application can be made
Foreign Banking Company
Carries Operations Through Branch
Interest Income (not on securities) or any other sum (not being dividend)
Any other Person
Carries Business or profession through Branch
Any sum not being Interest or Dividend

o   Conditions
§  Person must be regularly assessed in India
§  Must have furnished returns of income for all A/Y
§  He is not in default or deemed to be in default under act
§  Has not been subject to penalty U/S 271(1)(iii)
§  For person other than banking additional conditions:-
·         Must be carrying business or profession for not less than 5 years in India AND
·         Value of fixed Assets exceeds Rs.50lacs.

Application form for Banking -15C

Application form for other -     15D

 
7.      Validity and rules for grant of certificate [See 195 (4)]

Certificate granted u/s 195(3) valid till specified period or till cancellation by AO whichever is earlier .     

 8.      Power of CBDT to issue notifications [See 195(5)]

Board may make rules specifying the cases in which, and the circumstances under which, an application may be made for the grant of a certificate under sub section (3) with the specified conditions.

9.      Furnishing information [See 195 (6)]

1.      Requires the payer to furnish payment related information

2.      Rule 37BB introduced

3.      Information to department in Form 15CA

4.      CA Certificate to be obtained before payment Form

5.      Ref: Circular no. 4/2009 dated 29-06-2009 providing the manner for submitting processing the details of payment.

6.      Information to be furnished electronically.

Moreover, Section 195(6) has been amended in the Finance Act 2015 and which states that Form 15CA I CB needs to be necessarily filed for all remittances, whether chargeable to tax in India or not. All the assesses requested for submission of Form 15CA/CB for outward cross border remittances including those against imports with effect from June 2015

10.   Power of CBDT to specify class of persons or cases where application to AO u/s       195(2) Compulsory: [See 195 (7)]
Board empowered to notify class of persons (payees) required to apply to tax officer determination of WHT, irrespective of whether payment is taxable in India or not.

11.  TDS Rates:
Relevant rate in force as per chapter XVII-B. In case payee not having valid PAN, then rate prescribed chapter XVII-B (Finance Act) or 20% whichever is higher will apply calculating TDS rates, we need to consider the provisions under DTAA for the relevant country if any. In case payee fulfilling all the conditions as prescribed in the DTAA rates as per DTAA will apply.
Applicability of Surcharge: Rates prescribed under the Act has to be increased by
Surcharge and Education Cess & SHEC at the prescribed rates. However, if the payment is as per DTAA rates, no requirement to increase by Surcharge or EC or SHEC.
 
12.  Exchange rate for TDS on non-resident:
For the purpose of TDS on any income payable in foreign currency, the rate of exchange to be used shall be telegraphic transfer buying rate of such currency as on the date on which tax is required to be deducted at source.
Telegraphic buying rate means the exchange rate adopted by State Bank of India for buying such currency.
13.  Conditions & procedure to avail DTAA benefit by NR:
The Non Resident dedicatee has to submit the following documents with deductor or to avail the benefit of lower TDS rates as per DTAA:
1.      Tax Residency Certificate (TRC)
2.      PAN card copy
3.      Self declaration relating to Permanent establishment
14.  TRC Concept:
Tax Residency certificate (TRC) is the certificate duly verified and issued by the Tax
Department or Government of the country of which NR claims to be a resident for
the purpose of tax. The TRC certificate can be obtained from the Government or Tax
authorities of the particular country of Non-Resident.
A TRC should contain the following details
1.      Name of the assessee
2.      Status of the assessee (Individual, Firm, Company Etc.)
3.      Nationality
4.      Country
5.      Assessee Tax Identification or Unique Identification number of the relevant
Country
6.      Residential status for the purpose of tax
7.      Validity Period of the certificate
8.      Address of the applicant
If any detail is missing in TRC, the declaration from the NR to be taken in Form 10F.
15.  Form 15CA and Form 15CB

1.       Remitter to obtain certificate of a Chartered Accountant in Form 15CB
2.      Some focus area in issuing Form 15CB:
1.      Nature of the income FTS, Royalty, Interest, etc.
2.      Whether payee has a PE in India? If yes, attributable profit.
3.      Whether TRC is sufficient evidence for claiming treaty benefit?
3.      Remitter to access the income tax e-filling website and electronically upload the, remittance details in Form 15CA. After filling, remitter is required to take a print of the filled undertaking (Form 15CA) with system generated acknowledgement number.
4.      The duly signed paper Form 15CA (undertaking) and Form 15CB (certificate) is then submitted in duplicate to the RBI/authorized dealer.
5.      A copy of Form15CA & Form15CB is forwarded by RBI/Authorized Dealer to the concerned Assessing Officer  

16.  Consequences of Non Compliance of TDS:

Where any person, who is required to deduct any sum in accordance with Income Tax Ac but does not deduct, or does not pay or after deducting fails to pay shall deemed to be ‘Assessee in default’ and the assessee shall be liable for interest and penalty.

Section
Nature of Default
Consequence
40(a)
Withholding tax not deducted or not deposited within
prescribed time
Disallowance of expenses in computation of taxable income of payer;
deduction in year of payment
201(1)
Tax not withheld deposited appropriately
Recovery of tax not withheld deposited or short withheld deposited
Interest
u/s 201(1A)
Tax not withheld/ deposited
appropriately
 
Interest @ 1% per month or part of
the month for non-deduction. Further, interest @ 1.5% per month
is payable from the date of deduction till the date when tax is actually
paid
Penalty u/s 221
Tax withheld not paid
Penalty, not exceeding the amount
of tax not paid can be levied by AO
Penalty u/s 271 C
 
Tax not Withheld or short Withheld
Penalty, not exceeding the amount
of tax not withheld can be withheld
by Joint Commissioner.
 
Penalty u/s 272A
Failure to file TDS return
Penalty of INR100 per day of de-
fault subject to maximum of tax deductible
Penalty u/s 271-1
Non-furnishing of information or furnishing of incorrect information under section 195(6)
Penalty of INR 1,00,000 per trans-
action
Prosecution u/s 2768
Failure to pay tax deducted
Minimum: 3 months

Maximum: 7 years

 
17.  Proforma for Form 15CB under Rule 37BB
FORM NO. 15CB
(See rule 37BB)
Certificate of an accountant 

We have examined the agreement Mr./Ms./M/s ………………. and Mr./Ms./M/s ………………. requiring the above remittance as well as the relevant documents and books of account required for ascertaining the nature of remittance and for determining the rate of deduction of tax at source as per provisions of Chapter XVII-B. We hereby certify the following:
 

A
Name and address of the beneficiary of the remittance: …………………..                                      
B
1
Country to which remittance is made
Country:
Currency:
INR
 
2
Amount of payable
In foreign currency   USD
In Indian Rs.  0/-
 
3
Name of the bank        
Branch of the Indian bank  
 
4
BSR Code of the bank branch (7 digit)
Above Branch
 
 
5.
Proposed date of remittance (DD/MM/YYYY)
 
 
 
6.
Nature of remittance as per agreement/ document
 
 
 
7.
In case the remittance is net of taxes, whether tax payable has been grossed up?
 
 
8.
Taxability under the provision of the Income Tax Act (without considering DTAA)
 
 
(i)
Is remittance chargeable to tax in India?
 
 
(ii)
If not, reason thereof
 
 
(iii)
If Yes,
 
 
 
(a)        The relevant section of the Act under which the remittance is covered
 
 
 
(b)        The amount of income chargeable to tax
 
 
 
(c)         The tax liability
 
 
 
(d)        Basis of determining taxable income and tax liability
 
 
9
If income is chargeable to tax in India and any relief is claimed under DTAA-
 
 
(i)
Whether tax residency certificate is obtained from the recipient of remittance
 
 
(ii)
Please specify relevant DTAA
 
 
(iii)
Please specify relevant article of DTAA
 
 
(iv)
Taxable income as per DTAA
 
 
(v)
Tax liability as per DTAA
 
 
A
If the remittance is for royalties, fee for technical services, interest, dividend, etc, (not connected with PE) please indicate:-
 
 
 
(a) Article of DTAA
 
 
 
(b) Rate of TDS required to be deducted in terms of such clause of the applicable DTAA
 
 
B.
In case the remittance is on account of business income, please indicate:-
 
 
 
(a) Whether such income is liable to tax in India
 
 
 
(b) If so, the basis of arriving at the rate of deduction of tax.
 
 
 
(c) If not, please furnish brief reason thereof specifying relevant article of DTAA
 
 
C.
In case the remittance is on account of capital gains, please indicate:
 
 
 
(a) amount of  long term capital gain
 
 
 
(b)  amount of  short term capital gain
 
 
 
(c)  basis of arriving at taxable income
 
 
D.
In case of other remittance not covered by sub-items A, B, and C
 
 
 
 
(a)  please specify nature of remittance
 
 
 
 
(b)  whether taxable in India as per DTAA
 
 
 
 
(c)  If yes, rate of TDS required to be deducted in the terms of such article of the applicable DTAA
 
 
 
 
(d)  If  not, please furnish brief reason thereof specifying relevant Article of  DTAA
 
 
 
10.
Amount of TDS
In foreign currency 
In INR   
 
11.
Rate of TDS
As per Income Tax Act 
As per DTAA  
 
12.
Actual amount of remittance  after TDS
In foreign currency  USD
 
13.
Date of deduction of tax at source
NA
  


Certificate No.: ………………

       Date : ………..                                                                            Name
Place: …………                                                                          Firm Name
Chartered Accountants
(FRN–)
Address:
Membership No ………….
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For suggestions and feedback please feel free to contact us via e-mail; dhruvjainassociates@yahoo.co.in or you can log on to our website: http://dhruvjainassociates.in/contact

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This blog is the property of Dhruv Jain & Associates. Any form of reproduction, dissemination, copying, disclosure, modification, distribution and/or publication of the content of blog or of the blog itself  without the prior written consent of the author of this blog is strictly prohibited and doing so will attract legal proceedings. Any views or opinions presented in this blog post are solely those of the author and for informative purpose only and should not be treated /used as guiding rule or professional consultancy in any case. The matter of discussion is highly sensitive to the amendments made by the government under various laws and may not be updated as per the changes. Readers are suggested to take prior professional consultancy of experts before using the blog or its material in any way.

__________________________________________________________________________________________