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Transfer pricing documentation has to be prepared annually, as per the Indian Transfer Pricing regulations. Full transfer pricing documentation, including an update of the functional analysis and fresh economic analysis using contemporaneous data, must be maintained, in case the total value of international transaction is more than INR 10 million and/or aggregate value of specified domestic transactions exceed INR 200 million.
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In case of failure to maintain Transfer Pricing documentation, failure to report the transaction, maintenance or furnishing of incorrect information/document, there is a penalty of 2% of the value of each international/specified domestic transaction.
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The penal consequences for non-compliance with Indian transfer pricing regulations are as follows in case of under-reporting or misreporting of income:
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Form FC-TRS shall be required to be filed within sixty days of receipt/ remittance of funds or transfer of capital instruments whichever is earlier, under the following scenarios for transfer of capital instruments by way of sale:
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APA is a binding agreement between the taxpayer and tax authority to determine in advance, a set of criteria that would govern the transfer prices for covered inter-company transactions for a fixed period of time.
The APA regime has been introduced in India effective 01 July 2012. The APA rules provide an option for taxpayers to seek a unilateral, bilateral or multilateral APA. It can be valid for up to five years and additionally for a period of four consecutive previous years.
The APA filing process includes an optional pre-filing submission, the filing of the APA request, negotiation of the APA, execution and monitoring. Taxpayers are required to prepare and file an annual compliance report for each year under the APA. It helps that taxpayer in attaining certainty on the transfer price adopted and assists in mitigating the risks of litigation for the period covered under APA.
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Safe harbor rules is a mechanism under which in certain circumstances tax authorities accept the transfer prices declared by tax payer without undertaking detailed audit. The tax authorities have introduced rules prescribing procedure for adopting safe harbor, the transfer price to be adopted, the compliance procedures upon adoption of safe harbor and the circumstances in which a safe harbor adopted may be held to be invalid.
The categories of international transactions covered under the safe harbor provisions include:
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An accountant’s report in Form 3CEB must be furnished along with the Income Tax Return, i.e., (on or before 30 November following the end of the financial year under consideration). With respect to the transfer pricing documentation, the taxpayer is required to maintain the same before furnishing Form 3CEB. However, there is no requirement of furnishing the transfer pricing documentation along with accountant’s report/Form 3CEB at the time of filing tax return.
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A fresh benchmarking search needs to be conducted every year. According to Rule 10D(4), “The information and documents specified under [sub-rules (1), (2) and (2A)], should, as far as possible, be contemporaneous and should exist latest by the specified date referred to in clause (iv) of section 92F.”
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The various methods to calculate the arm’s length price with respect to an international/specified transaction are as under:
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The annual TP documentation is required to be maintained if the aggregate value of all international transactions during the relevant financial year exceeds INR 10 million (approximately US$156,250) and/or specified domestic transactions during the relevant financial year exceed INR 200 million (US$3,125 million).
The economic analysis is required to be maintained to justify the arm’s length character of the international transaction, irrespective of the transaction value threshold.
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After you file your application and receive diary number you have to wait for a mandatory period of 30 days so that no objection is filed in the Copyright office against your claim. In case any objection is filed, the Registrar of Copyrights after giving an opportunity of hearing to both the parties, may decide to register the work or otherwise.
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A website may be understood as a web-page or set of interconnected web-pages, hosted or stored on a server, and is made available online to members of public. Users can access the information and other underlying work on a website through various means such as scrolling web-pages, using internal hypertext links or a search feature.
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Yes. Both published and unpublished works can be registered. Copyright in works published before 21st January, 1958, i.e., before the Copyright Act, 1957 came in force, can also be registered, provided the works still enjoy copyright. Three copies of published work may be sent along with the application. If the work to be registered is unpublished, a copy of the manuscript has to be sent along with the application for affixing the stamp of the Copyright Office in proof of the work having been registered. In case two copies of the manuscript are sent, one copy of the same duly stamped will be returned, while the other will be retained, as far as possible, in the Copyright Office for record and will be kept confidential. It would also be open to the applicant to send only extracts from the unpublished work instead of the whole manuscript and ask for the return of the extracts after being stamped with the seal of the Copyright Office. When a work has been registered as unpublished and subsequently it is published, the applicant may apply for changes in particulars entered in the Register of Copyright in Form V with prescribed fee.The process of registration and fee for registration of copyright is same.
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Yes. Computer Software or programme can be registered as a ‘literary work’. As per Section 2 (o) of the Copyright Act, 1957 “literary work” includes computer programmes, tables and compilations, including computer databases. ‘Source Code’ and “Object Code” have also to be supplied along with the application for registration of copyright for software products.
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As per the rule 70 (12) of the Copyright Rules, 2013, an opportunity of hearing must be given. Only after hearing, it may be decided to register the work or to reject it. The applicant himself or his/her pleader may appear in the hearing.
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Chapter XIII of the Copyright Rules, 2013, as amended, sets out the procedure for the registration of a work. Copies of the Act and Rules can be obtained from the Manager of Publications, Publication Branch, Civil Lines, Delhi or his authorized dealers on payment or download from the Copyright Office web-site, link.
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Yes. Any individual who is an author or rights owner or assignee or legal heir can file application for copyright of a work either at the copyright office or by post or by e-filing facility from the copyright Office web-site "www.copyright.gov.in"
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The fee is not reimbursable in case of rejection of the application. The fee can be paid by postal order/demand draft/online payment payable to “registrar of copyrights, New Delhi.
For information on the fee for getting work registered under the copyright act, click here
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The Copyright Office has been set up to provide registration facilities to all types of works and is headed by a Registrar of Copyrights and is located at 4th Floor Jeevan Deep Building, New Delhi- 110 001. The applications for registration of works can be filled at the counter provided at the Copyright Office from 2.30 P.M. to 4.30. P.M. from Monday to Friday. The applications are also accepted by post. On-line registration through “E-filing facility “has been provided from 14th February 2014, which facilitates the applicants to file applications at the time and place chosen by them.
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The procedure for registration is as follows:
1) Application for registration is to be made on Form
2) Separate applications should be made for registration of each work.
3) Each application should be accompanied by the requisite fee prescribed in the second schedule to the Rules.
4) The applications should be signed by the applicant or the advocate in whose favour a Vakalatnama or Power of Attorney has been executed.
5) The fee is either in the form of Demand Draft, Indian Postal Order favouring ‘Registrar Of Copyright Payable At New Delhi’ or through E-payment
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When an application for registration of a Design is in order, it is accepted and registered and then a certificate of registration is issued to the applicant. However, a separate request should be made to the Controller for obtaining a certified copy of the certificate for legal proceeding with requisite fee.
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After registration of designs the best view of the article along with other bibliographic data will be notified in the Official Journal of The Patent Office, which is being published on every Friday.
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If anyone contravenes the copyright in a design, he is liable for every offence to pay a sum not exceeding INR25,000/- to the registered proprietor subject to a maximum of INR50,000/- recoverable as contract debt in respect of any one design.
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If anyone contravenes the copyright in a design, s/he is liable for every offence to pay a sum not exceeding Rs. 25,000/- to the registered proprietor subject to a maximum of Rs. 50,000/- recoverable as contract debt in respect of any one design. The registered proprietor may bring a suit for the recovery of the damages for any such contravention and for injunction against repetition of the same.
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For ascertaining whether registration subsists in respect of a design, a request should be made to the Patent Office, Kolkata. If the Design number is known, the request should be made on Form 6, otherwise on Form 7, together with prescribed fees. Each such request should be confined to information in respect of a single design.
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No. A registered design, the copyright of which has expired, cannot be re-registered.
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The date of registration, except in case of priority, is the actual date of filing of the application. In case of registration of design with priority, the date of registration is the date of making an application in the respective country.
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The duration of the registration of a design is initially ten years from the date of registration, but in cases where claim to priority has been allowed the duration is ten years from the priority date. This initial period may be extended by 5 years on an application made in Form-3 accompanied by prescribed fees to the Controller before the expiry of the said initial period of ten years. The proprietor of a design may make application for such extension even as soon as the design is registered.
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The registration of a design confers upon the registered proprietor ‘Copyright’ in the design for the period of registration. ‘Copyright’ means the exclusive right to apply a design to the article belonging to the class in which it is registered.
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First-to-file rule is applicable for registrability of design. If two or more applications relating to an identical or a similar design are filed on different dates only first application will be considered for registration of design.
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Yes, Trade Marks Registry had published a list of facilitators who are willing to facilitate filing trademark applications for start-ups and act as a trademark agent on their behalf. Their fees for this purpose have also been notified.
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Yes. However, the basic principle is that the trademark applied for should not be substantially altered affecting its identity. Subject to this, changes are permissible according to rules detailed in the subordinate legislation.
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The register of trademark currently maintained in electronic form contains inter alia the trademark the class and goods/ services in respect of which it is registered including particulars affecting the scope of registration of rights conferred; the address of the proprietors; particulars of trade or other description of the proprietor; the convention application date (if applicable); where a trademark has been registered with the consent of proprietor of an earlier mark or earlier rights, that fact.
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The national statues i.e., The Trade Marks Act, 1999 and rules made are as under:
· International multilateral convention.
· National bilateral treaty.
· Regional treaty
· Decision of the courts
· Office practice reduced in Manuals and guidelines and rulings of the Courts.
· Decision of Intellectual Appellate Board.
· Text books written by academician ad professional experts
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The registration of a trademark confers upon the owner the exclusive right to the use the trademark in relation to the goods or services in respect of which the mark is registered and to indicate so by using the symbol (R) and seek the relief of infringement in appropriate courts in the country. The exclusive right is however subject to any conditions entered on the register such as limitation of area of use etc. Also, where two or more persons have registered identical or nearly similar marks due to special circumstances, such exclusive right doesn't operate against each other.
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Following are the types of trademarks in India:
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Under modern business condition a trademark performs four functions:
1) It identifies a good/service and its origin.
2) It guarantees its unchanged quality.
3) It advertises the goods/services.
4) It creates an image for good/services.
For further details please access following link.
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The registered proprietor of a trademark can create, establish and protect the goodwill of his products or services. He/she can stop traders from unlawfully using his trademark, sue for damages and secure destruction of infringing goods or labels.
The government earns revenue as a fee for registration and protection of registration of trademark.
The legal professionals render services to the entrepreneurs regarding selection, registration and protection of trademarks and get remuneration for the same. The purchaser and ultimately consumers of goods and services get options to choose the best.
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A trademark (popularly known as brand name) is a visual symbol which may be a word signature, name, device, label, numerals or combination of colours used by one undertaking on goods or services or other articles of commerce to distinguish it from other similar goods or services originating from a different undertaking.
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No. Patent protection is a territorial right and therefore, it is effective only within the territory of India. There is no concept of global patent. However, filing an application in India enables the applicant to file a corresponding application for same invention in convention countries or under PCT, within or before expiry of twelve months from the filing date in India. Patents should be obtained in each country where the applicant requires protection of his invention.
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An application for a patent can be filed at the earliest possible date and should not be delayed. An application filed with provisional specification, disclosing the essence of the nature of the invention helps to register the priority of the invention. Further, the application for patent should be filed before the publication of the invention and until then it should not be disclosed or published.
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A patent specification can be prepared by the applicant himself or his registered and authorized agent. The patent specification generally comprises of the title of the invention indicating its technical field, prior art, draw backs in the prior art, a concise but sufficient description of the invention and its usefulness, drawings (if any) and details of best method of its working.
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Indian Patent Law follows first to file system. A provisional application is an application which can be filed if the invention is still under experimentation stage. Filing a provisional specification provides the advantage to the inventor since it helps in establishing a priority date of the invention.
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Patent protection is territorial right and therefore it is effective only within the territory of India. However, filling an application in India enables the applicant to file a corresponding application for same invention in conventional countries, within or before expiry of twelve months from filling data in India. Therefore, separate patent should be obtained in each country where the applicant requires protection of his invention in those countries. There is no patent valid worldwide.
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Patent is a statutory right for an invention granted for a limited period of time to the patentee by the government, in exchange of full disclosure of his invention for excluding others, from making, using, selling, importing the patented product or process for producing that product for those purpose without his consent.
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Generally, when an invention is not complete an application can be filed with provisional specification which is known as provisional application. This is useful in establishing a priority date for your invention.
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A Patent is a statutory right for an invention granted for a limited period of time to the patentee by the Government, in exchange of full disclosure of his invention for excluding others, from making, using, selling, importing the patented product or process for producing that product for those purposes without his consent.
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The term of every patent granted is 20 years from the date of filing of application. However, for application filed under national phase under Patent Cooperation Treaty(PCT), the term of patent will be 20 years from the international filing date accorded under PCT.
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An invention can become patentable subject matter must meet the following criteria:
1) It should be novel.
2) It should have inventive step or it must be non-obvious.
3) It should be capable of industrial application.
4) It should not fall within any of the provisions of sections 3 and 4 of the Patents Act 1970
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An abstract of Section 3 and 14 of the Act in Local Language and English.
List of actions are:
•Willful insubordination or disobedience, whether or not in combination with another, of any lawful and reasonable order of a superior.
•Going on illegal strike or abetting, inciting, instigating or acting in furtherance thereof;
•Willful slowing down in performance of work, or abetment or instigation thereof;
•Theft, fraud or dishonesty in connection with the employers’ business or property or the theft or property of another workman within the premises of the establishment;
•Taking or giving bribes or any illegal gratification;
•Habitual absence without leave, or absence without leave for more than ten consecutive days or overstaying the sanctioned leave without sufficient grounds or proper or satisfactory explanation;
•Habitual breach of any Standing Order or any law applicable to the establishment or ant rules made there under;
•Collection without the permission of the Manager of any money within the premises of the establishment except as sanctioned by any law for the time being in force;
•Engaging in trade within the premises of the establishment;
•drunkenness, riotous, disorderly or indecent behavior on the premises of the establishment;
•Commission of any act subversive of discipline or good behavior on the premises of the establishment;
•Habitual neglect of work, or gross or habitual negligence;
•Habitual breach of ant rules or instruction for the maintenance and running of any department, or the maintenance of the cleanliness of any portion of the establishment;
•Habitual commission of any act or commission for which a fine may be imposed under the Payment of Wages Act, 1936.
•Canvassing for union membership, or the collection of union dues within the premises of the establishment except in accordance with any law or with the permission of the Manager
•Willful damage to work in process or to any property of the establishment;
•holding meeting inside the premises of the establishment without the previous permission of the Manager or except in accordance with the provisions of any la for the time being in force;
•Disclosing to any unauthorised person any information in regard to the processes of the establishment which may come into the possession of the workman in the course of his work;
•Gambling within the premises of the establishment;
•Smoking or spitting on the premises of the establishment where it is prohibited by the employer;
•Failure to observe safety instructions notified b the employer or interference with any safety device or equipment installed within the establishment;
•Distributing or exhibiting within the premises of the establishment hand-bills, pamphlets, posters, and such other things or causing to be displayed by means of signs or writing or other visible representation on any matter without previous sanction of the Manager;
•Refusal to accept a charge-sheet, order or other communication served I accordance with these Standing Orders;
•Unauthorised possession of any lethal weapon in the establishment.
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Registrar of Trade Union shall not register that union, until they make a change in the identical name under the Trade Union Act.
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Registrar has the power only to cancel the registration. He cannot withdraw the order of registration issued by him.
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Application shall not become invalid.
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The Registers required to be maintained by establishments exempt from furnishing return are as under:
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As per the Indian labour laws, employers need to ensure that following amenities are available to their employees:
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No child shall be employed or permitted to work in any of the occupations set forth in Part A of the Schedule or in any workshop wherein any of the processes set forth in Part B of the Schedule is carried on.
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Register showing the name of date of birth of every child so employed or permitted to work, hours and periods of work of any such child and intervals of rest, the nature of work of any such child.
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Payment can be made online through shram Suvidha Portal.
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The key laws governing M&A in India are:
The key regulations governing M&A in India are:
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When an ‘acquirer’ takes over the control of the ‘Target Company’, it is termed as a Takeover. When an acquirer acquires ‘substantial quantity of shares or voting rights’ of the Target Company, it results into substantial acquisition of shares.
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The Competition Act requires mandatory notification of all combinations within stipulated timelines. Combinations must be notified to CCI within 30 days of a trigger event
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Any Merger or Amalgamation that meets the below threshold limits is considered as combination:
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The acquisition of up to 25% shares where the acquirer does not acquire control and the acquisition is solely as an investment or in ordinary course of business, need not normally be notified to the CCI for prior approval.
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Following statutory provisions apply to mergers, amalgamations and acquisitions from competition law perspective:
1) Competition Act, 2002.
2) The Competition Commission of India (Procedure in regard to the transaction of business relating to combinations) Regulations, 2011.
3) The Competition Commission of India (General) Regulations, 2009:
i) Notification No. S.O. 93(E) dated January 8, 2013
ii) Notification No. S.O. 673(E) dated March 4, 2016
iii) Notification No. S.O. 674(E) dated March 4, 2016
iv) Notification No. S.O. 675(E) dated March 4, 2016
v) Notification No. S.O. 988(E) dated March 29, 2017
vi) Notification No. S.O. 2039(E) dated June 29, 2017
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The competition act 2002 governs the laws and regulations with respect to merger, acquisition and amalgamation transactions. Competition commission of India is the governing body.
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There are two threshold limits for acquisition of shares/voting rights, beyond which an obligation to make an open offer is triggered:
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In respect of acquisitions under clause (a) of sub regulation (1), and clauses (e) and (f) of sub regulation (4), the acquirer shall intimate the stock exchanges where the shares of the target company are listed, the details of the proposed acquisition in such form as may be specified, at least four working days prior to the proposed acquisition, and the stock exchange shall forthwith disseminate such information to the public.
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Acquirer means any person who, whether by himself, or through, or with persons acting in concert with him, directly or indirectly, acquires or agrees to acquire shares or voting rights in, or control over a target company. An acquirer can be a natural person, a corporate entity or any other legal entity.
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As per the section 286(4) of the Income Tax Act, if the ultimate parent entity, resides in a country where CbCR is not required to be filed and the group has not opted for a surrogate filing, then the entity will be obligated to file a CbCR in India.
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From 1st July 2017, indirect taxes such as service tax, VAT would be subsumed by Goods and Service tax (GST) which is a comprehensive levy on manufacture, sale, and consumption of goods and services. Major compliances are as follows:
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Major direct taxes in India are:
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Major indirect taxes in India are:
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The following categories of persons are liable to pay GST:
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The major advantages of IGST model are
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Taxability in India:
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A constituent entity means
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An inbound CE is required to file CbCR in India if:
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Following caution can be taken while filling-up the tax payment challan:
Clearly mention the following:
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All goods, import of which is permitted only with an authorisation / permission / license or in accordance with the procedure prescribed in a notification / public notice are ‘restricted’ goods. For import of goods mentioned in Schedule 1 of ITC (HS) Classification of Export & Import 2012, an application for grant of an Import Authorisation may be made to the concerned Regional Authority of DGFT in Aayaat Niryaat Form 2B(ANF 2B) along with documents prescribed therein, with two copies of the complete set to DGFT(HQ) at Udyog Bhawan, New Delhi. The requests for such imports are considered by Inter Ministerial Committee meeting.
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Non-resident Indians (NRI) have to follow the normal application procedure while applying for IEC. In addition, permission from RBI/ FIPB is needed in some cases.
Further the following documents are also required for IEC code:
• Board Resolution
• Memorandum of Association
• copy of Passport
• All documents prescribed for Indian Citizen/ company/ Proprietorship firm
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An IEC allotted to an applicant shall have permanent validity unless cancelled by the competent authority. The IEC will cover all branches / divisions / units / factories of the applicant.
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If an IEC holder does not wish to operate allotted IEC number, he may surrender same by informing issuing authority. On receipt of such intimation, issuing authority shall immediately cancel it and electronically transmit it to DGFT and Customs authorities.
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No, IEC need not be revalidated if the PAN is incorporated in it, but the same needs to be updated for changes in name / address / constitution.
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Yes, Modifications in IEC number are applied online in ANF 2A.
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The requirements are as follows :-
•submit an application to the Directorate General of Foreign Trade and obtain Importer and Exporter Code (IEC) number
•IEC has to be indicated in the documents filed with the Customs for clearance of the imported goods
•In the case of 100% EOUs / EPZs the importer and Exporter Code (IEC) numbers are allocated by the Development Commissioner of Export Processing Zone concerned.
•Every good imported shall be in conformity with Section 11 of the Customs Act 1962, Foreign Trade (Development & Regulation) Act 1992 read with the EXIM policy in force.
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No. However, the name of each concern owned by such a company may be included in the IEC of the firm in whose name PAN exists, as a branch.
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If you want to know the HS Code, Click on ‘ITC HS Based Policy’ on the website of DGFT. A new window will open as ITC(HS) Query Form. Insert the name of the product in the description option to know the HS Code of your product. Similarly, if you want to know the product and are already aware of the HS Code, enter the ITC(HS) Code (e.g. 0324) option to know the product.
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ITC(HS) Code or better known as Indian Trade Classification (Harmonized System) Code was adopted in India for import – export operations. ITC (HS) is a compilation of codes for all merchandise / goods for export/ import. Goods are classified based on their group or sub-group at 2/4/6/8 digits. ITC (HS) is aligned at 6 digit level with international Harmonized System goods nomenclature maintained by World Customs Organization Link. However, India maintains national Harmonized System of goods at 8 digit level which may be viewed through the following Link
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The State may exclude the Act(s) under which there is no requirement to file return. However, the State should submit necessary evidence for nonapplicability of the reform point.
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Yes. There is no need for empanelment of the same third party agencies by the State.
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No.
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No, there is no requirement of empanelment of BOE.
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Rule 31 of the BOE Rules, 2011 provides for minimum eligibility criteria i.e. age, qualifications and experience for obtaining a certificate of proficiency and operate a boiler as a Boiler Operation Engineer. The said criteria is Stated for both, Diploma and Degree Holders.
However, under BRAP 2019, distinction form the qualifications under Rule 31 of the BOE Rules, 2011 has been made in relation to third-party certification. For the purpose of issuing/granting third-party certification, only a BOE who holds a degree/is a graduate in Mechanical/ Production/ Power Plant/ Metallurgical engineering from a recognised institution and has minimum 5 years of experience in the field related to boilers is eligible. The said reform excludes diploma holders to grant third-party certificate.
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There are no restrictions on BOE if they are authorized under section 34(3) of the Boilers Act 1923.
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The State shall develop feature only for registration under Shops and Establishments Act. The “Registration and renewal under The Shops and Establishments Act” refers only to the main heading of the reforms.
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Yes. The State should encourage voluntary update of information by the establishment and remove requirement for renewal of registration under Shops and Establishments Act
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Inspection for a boiler which requires more than one visit can be considered as one inspection and the same inspector can carry out the stages of inspections (in case of power boiler which requires thorough examination and Hydro testing on two different days, must be considered as one inspection). For subsequent inspections the State Government may advise/educate the boiler owner to approach Private Component Persons for carrying out the inspections of Boilers so that the system proposed in BRAP 2019 can be effectively implemented.
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The permission for every surprise inspection or inspection based on complaints must be taken from the officer who heads the Department within the State/UT.
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