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India will get the right to tax capital gains on investments channelled through Mauritius under an amended tax treaty it signed with the Mauritius. The amendment to the 1983 India-Mauritius treaty, which will come into force on 1 April 2017, will also apply to the India-Singapore treaty, shutting two lucrative investment routes preferred by foreign investors. The India-Singapore treaty links the capital gains tax regime to that provided in the India-Mauritius treaty. Around 50% of foreign direct investment into India comes through Mauritius and Singapore, according to Indian government data. Some 34% of it is channelled through Mauritius and 16% through Singapore.

In addition, the amended India-Mauritius double taxation avoidance treaty has also provided for a limitation of benefit clause that will ensure that only genuine Mauritius-based companies get the benefit of the bilateral tax treaty. Only those Mauritius-based companies that have a total expenditure of more than Rs.27 lakh in the preceding 12 months will be able to benefit from the tax treaty. Treaty has also provided a two-year transitionary phase wherein the capital gains will be taxed at 50% of the existing tax rate; the full domestic tax rate will be applicable from 2019-20, provided the limitation of benefit clauses have been adhered to.

Under the earlier bilateral agreement between India and Mauritius, capital gains from sale of securities have been taxable only in Mauritius, where the levy is close to zero.

One big positive is that there will be no retroactive impact on any investment made till 1 April 2017.The changes in the treaty should be seen in the light of India’s commitment to base erosion and profit shifting and the impending general anti-avoidance rules that will come into effect on 1 April 2017.

How we got Mauritius to agree?

  • India’s determination to implement GAAR from 1 April,2017,
  • Global pressure built up after panama papers and so many other tax heaven in which the global community is against such arrangements, wherein companies get away with double non taxation, and
  • The urgency the government has put on this matter. Negotiation started back from 1996 and pursued until now.

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The Real Estate (Regulation and Development) Act, 2016, is an effort to improve customers’ confidence in the real estate sector. It is an initiative to protect customers’ interests, promote fair play in real estate transactions, and ensure timely execution of projects. Real estate transactions are often complex and involve legal formalities that buyers may not understand until too late. Most of the buyers do not know what a transparent agreement should contain and how to safeguard their interests as buyers.

But,The real estate Act will lead to transparency in the sector, because :

  1. Developers as well as real estate brokers will have to register themselves (The real estate Act states that projects of above 500 sq. meter be compulsorily registered with the real estate regulator once it is set up. This will bring a large proportion of projects under the purview of the regulation. But each state will have the flexibility to reduce the threshold as per regional requirements. So, a state can also bring in even smaller projects or those that have less than eight units, under the Act.),
  2. To register a project, a builder will have to disclose names of promoters, project layouts, plans of development works, land status, statutory approvals’ status, draft of builder buyer agreements, and names and addresses of real estate agents, contractors, architects and structural engineers, to the authority. Once a project gets registered, all this information will be readily available on the authority’s website, which should help buyers take more informed decisions. Plus, the information has to be regularly updated by the developer. A clear picture of number of units sold and construction status has to be available on the website. ,
  3. Will not be able to launch projects without proper approvals,
  4. Moreover, they will not be able to change plans without the consent of at least two-thirds of buyers,
  5. Builders will also have to deposit at least 70% of the sale proceeds in a separate account to meet construction cost of the particular project, compared with the earlier proposal for 50% or less.

The agreement with customers will also have to be more transparent than what it has been. It will have to include clauses such as:

  1. Advance money of not over 10% before entering into a sale agreement.
  2. Possession date, specifications of the property, construction schedule will be there in the agreement and compensation to be paid to buyers for default or delay, which should be the same as that charged to buyers for delayed payment from their side.
  3. Liability of builders for structural defects for five years (instead of the earlier two years) and clearly defined carpet area, which means customers must know precisely how much space they are going to get for the price paid.

The real estate sector is facing issues related to liquidity, huge debts, and delays in project completion. But ultimately, it is the customers that bear the brunt due to increased pricing.

It is hoped that the situation will change once the Act is implemented, and more investors are attracted to the sector, which will, in turn, improve customer confidence, and give the sector a much-needed growth impetus. It will also bring in more confidence among global investors, providing better access to structured capital, which is in short supply now.

The Act will have positive consequences for the sector in terms of transparency, accountability, and avenues for grievance redressal, which will mean lower litigation cost for buyers. It will also ensure that only serious players will remain in the sector leading to greater transparency in the sector.

There are multiple reasons for such delaysfunds being diverted by developers, lack of funding options, and slow sales. Implementation of the Act will bring project delays under control as funds will not be diverted, more funding avenues will be available for builders at a lesser cost, customer confidence will improve in the sector and home buying process will be easier to follow.

Challanges: 

  1. Many departments and processes have to be streamlined to make this part of the Act successful. Land records need to be updated. Parity between circle rate and market rate needs to be established. In some localities, there is a gap between these rates. Some consumer activists share the view.
  2. We cannot overlook the fact that a completion certificate that is issued by a government agency should necessarily be issued in a time-bound manner. So, a time frame should be fixed for government agencies to provide services. Otherwise, this can be used by the promoter as a plea for unnecessary delay.
  3. The Act has provisions for penalising developers in case of delays. But many developers say that the main cause of delay is slow approvals from government agencies. A single-window clearance is needed now, without which there may be cases where bona fide delays by developers may still result in an unfavourable penalty.
  4. Under the Act, if the registration is revoked by the regulatory authority, who will complete the construction? How will that be managed looking at such a vast number of projects?

Ultimately, it will be a win-win situation for developers as well as customers in the long term, which will restore much-needed trust, transparency, and growth. This will have a positive effect on the country’s economy as well.

The Act has been formulated. Now it has to be seen how soon states start implementing it.

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What was the need for the amendment?

This is the third major amendment in recent times to the Negotiable Instruments Act 1881, prompted by dishonour of cheques in lakhs, shaking the credibility of the instrument, confidence of business community and choking courts. The 1988 amendment introduced penalty for issuing cheques which get dishonoured for want of fund in the bank. Since that provision, Section 138, was found insufficient to deal with the menace, the penalty was increased from one to two years imprisonment after a summary trial. Even this has not resolved the problem and at present 1.8 million criminal cases are before magistrates’ courts and appellate courts. One of the devices employed by dishonest drawers is to challenge the jurisdiction of the courts, stalling the proceedings. This was tried to be resolved by the Supreme Court in its 2009 judgment in Dashrath Rupsingh case.

What does the present amendment do?

The amendment adopts the basic principles laid down by the Supreme Court in the above case (Dashrath RupSingh case) regarding jurisdiction of courts and improves upon it in the light of the representations made by various stakeholders, including industry associations and financial institutions. Complications had arisen because a cheque was issued in one place on one bank, and presented in another place to another bank. The payer company might be in one corner of the country and the payee might be in another. The payee therefore had to chase the accused in distant places and even if he won, appeals would be filed in another court and arguments will continue for years. The Supreme Court found that even high courts had differed on the question of the choice of courts which should try the case. The present amendment removes such legal bottlenecks and speeds up the trial. Now the question of jurisdiction cannot be raised as the law is clear.

The new provision states that the holder of the cheque can file a criminal complaint before a magistrate where he resides and tendered the cheque. He need not go to the place where the cheque was issued or other courts. After this clarification, there is a single place to file the complaint. Litigation expenses will come down, and the drawers of cheques, including company directors will be more careful while signing such cheques. The government feels that these procedural changes will be fair to both parties.

What happens to cases already pending?

According to the newly introduced Section 142A, all cases which were pending in any court, whether filed before it or transferred to it shall go before the court having jurisdiction under the new procedure.

What is the other important proposed change in the Bill?

The new law also cures a deficiency in the definition of “a cheque in the electronic form”. The law as it stood presumed drawing of a physical cheque and signature. With the advance in technology it needed to be updated. Therefore, it is explains that “a cheque in the electronic form” means a cheque drawn in electronic form by using any computer resource and signed in a secure system with digital signature (with or without biometrics signature) and asymmetric crypto system or with electronic signature. The Negotiable Instruments Act borrows definitions of technical expressions from the Information Technology Act 2000.

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What is insolvency?

Insolvency is a situation where individuals or companies are unable to repay their outstanding debt. It may be resolved by changing the repayment plan of the loans, or writing off part of the debt. If insolvency cannot be resolved, assets of the debtor may be sold to raise money, and repay the outstanding debt.

Why do we need a new law?

Insolvency resolution in India took 4.3 years on an average, as of 2015. This is higher when compared to other countries such as United Kingdom (1 year) and United States of America (1.5 years). These delays are caused due to pendency of resolution cases in courts and confusion due to lack of clarity in the current bankruptcy framework.

As the Joint committee on Insolvency and  Bankruptcy Code 2015 has submitted its report. Thus path for its passage in parliament seems clear. Here, I present  some important features of the Bill and some critical analysis on it.

Important Features:

The Bill has a number of helpful provisions for tackling large loan defaults.

First, it enables the early detection of financial distress by allowing any creditor to commence an insolvency proceeding the moment a default occurs. This is in contrast to the current scenario where principal or interest on a loan needs to be unpaid for at least 90 days from its due date to be classified as an NPA.

Second, the Bill contains very strict timelines for each step in the insolvency resolution process. Subject to a few exceptions, a resolution plan needs to be approved within 180 days, failing which the company goes into liquidation.

Third, it enables an investigation into the affairs of the insolvent debtor and the setting aside of fraudulent, undervalued or extortionate credit transactions that occurred in the lead-up to the insolvency. There are also penalties for concealing information, misrepresentations and defrauding creditors during the insolvency resolution process.

Fourth,New law is premised on the establishment of three institutions that currently do not exist – a regulator to be named the Insolvency and Bankruptcy Board of India (the “Board”), a new profession of insolvency professionals who are to be registered and regulated by insolvency professional agencies (“IP Agencies”) and information utilities that are designed to store and release information on debts and defaults. While it is understood that these institutions would take time to mature and develop, the new legislation should, at a minimum, specify certain things about their functioning to provide a starting point for implementation.

critical Analysis:

Let us think about the new regulator. The Bill vests the Board with wide-ranging powers. These powers include regulating insolvency professionals, insolvency professional agencies and information utilities, by laying out the eligibility requirements and standards for their functioning, carrying out investigations, and monitoring their performance. However, despite this vital role, the Bill does not envisage that the regulator will be established at the time the new law comes into effect. Ideally, the Board should be in place well before the new law comes into effect, to allow sufficient time for it to develop a regulatory framework for implementation.

The transition process for moving from the current legal framework to the new law needs to be thought through. The Bill needs to say which institutions will necessarily have to be operational at the time the new legislation comes into effect. To the extent that some institutions need more time to develop, it must specify the timeframe within which these institutions must be functional and the interim measures that would be in place until this point. For example, insolvency resolution professionals don’t exist as a profession today. As it is likely to take time to administer their examination and develop a sufficiently large pool of such professionals, could individuals or firms with other professional qualifications (such as lawyers or chartered accountants) perform the role of insolvency resolution professionals as an interim measure? Until information utilities are established and have robust procedures for gathering, storing and disseminating information on defaults, could any other body perform their function?

The two tribunals that are to hear insolvency and bankruptcy cases – the National Company Law Tribunal (The National Company Law Tribunal (NCLT) will replace the Company Law Board and the Board for Industrial and Financial Reconstruction, and be an overarching body for resolving insolvencies.It will be established under the Companies Act, 2013 ) for corporations and the Debt Recovery Tribunals (“DRTs”) for individuals – have their own set of problems. The NCLT is yet to become operational and the DRTs are, by all accounts, clogged with high case pendency. Both these tribunals would also continue to hear cases under their existing mandates in addition to those under the new law. This might not be an issue that can be fixed through the legislation, but the government must ensure that the NCLT becomes operational and increase the infrastructure and resources of both these tribunals if they are to hear insolvency cases in the efficient and time bound manner that the Bill envisages.

Conclusion:

Countries the world over differ widely in the legal frameworks they have adopted for insolvency and bankruptcy. The US has what is widely acknowledged to be a debtor-friendly regime; the administrator-led system in the UK is more creditor-friendly; while the insolvency regimes in continental Europe fall somewhere in between these two models. However, studies have shown that ultimately the effectiveness of an insolvency regime depends not so much on the specific path the law decided to take, but on whether it is backed by strong institutions for implementation.

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At present, farm marketing varies not only from state to state but also within the states, with each wholesale mandi being governed by its own Agricultural Produce Marketing Committee (APMC). These mandis require separate licences and they charge different marketing fees. The use of technology is low, which means that there is very little transparency in transactions, which eventually hurts farmers.A pan India trading portal , E-National Agricultural Market (NAM) is designed to create a unified national market for agriculture commodities. The first-ever National Policy for Farmers brought out in 2007 by the United Progressive Alliance government also mentioned this need.  The new integrated electronic platform begins, in a limited way, to address many of these problems. Some features of E- NAM as follows:

  1. Farmers can showcase their produce online from their nearest market and traders can quote price from anywhere.
  2. Results in increased number of traders and greater competition.
  3. This would allow them to escape the cartels that dominate local mandis and strangle the freedom to trade.
  4. Ensure open price discovery and better returns to farmer.
  5. Will cover 585 markets across country in three years during first phase. India has 2477 principal mandis and 4843 submarkets  created by the APMCs.

Limitation in implementation of E-NAM: Wide quality variation in farm produce within a state , and even wider variations across states, pose a challenge for the new market. Commodities with similar standards nationally are few. Wheat in Punjab and Haryana is of medium quality while in MP and  Gujrat it is of superior. An electronic platform can only trade standardise commodities. For the rest , the NAM might not be the right platform. A state agriculture market model launched in 2009 by the NCDEX , provide some lessons in market integration. The Karnataka Model  a joint initiative of govt of Karnataka and NCDEX e- Markets, was the first such initiative.

But it is dangerous to presume that a model that has worked well at the state level will automatically succeed at the national level as well. There are too many prerequisites for that to happen. The three most critical among them are a single wholesale trading licence valid across the catchment area, a single-point levy of market fees, and e-auction as the mode for price discovery. Currently, there are too few warehouses equipped with facilities for weighing, grading and standardisation of stocks sold through the electronic platform. Moreover, aggregators would need to emerge that pool together small marketable surpluses of individual farmers for sale to bulk buyers to attract competitive bidding. The Small Farmers Agribusiness Consortium (SFAC), the nodal agency for running the new electronic platform, can serve as an aggregator through its existing or specially created local units.

Getting states on board for full agricultural marketing reform will also be difficult.

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Founded in 1989 at Australia’s initiative, APEC’s members include the US, Russia, China, Australia and Japan. It’s 21 members represent 2.8 billion people and accounts for 57 percent of the world’s gross domestic product and 47 percent of global trade. For 26 years, the APEC has served as the key driver of Asian regional economic integration by developing habits of economic dialogue and cooperation and facilitating market opening and trade expansion. India had applied for APEC’s membership in 1993 and has been an observer at the forum since 2011.

Why APEC membership important for India:

  1. The APEC’s institutional processes of trade facilitation, consultation on standards, and sharing of best practices will help India improve its regulatory regime and business environment. This, in turn, helps make India more attractive to investors and more competitive in international markets.
  2. India’s inclusion in APEC will give a boost to its ‘Act East Policy’ and will further integrate the Indian economy into the Asia-Pacific economic milieu.
  3. The APEC would help India access the transnational supply chains that increasingly dominate the global economy. To achieve the growth rates of 8 to 10 percent for lifting millions out of poverty, India would have to participate in the global trade system.  In recent share of APEC in India’s total exports declined from 46.2 per cent in 2000-01 to 32.7 per cent in 2013-14 while imports from APEC countries to India increased from 29.2 per cent in 2000-01 to 36.2 per cent 2013-14. Membership to APEC may help India in maintaining trade balance.
  4. In addition to facilitating greater regional economic integration, APEC promotes the development of small and medium enterprises in the member countries.
  5. APEC membership is also a facilitating condition for Trans-Pacific Partnership (TPP) membership. It makes more sense for India to join APEC now because it is also negotiating a regional trade pact Regional Comprehensive Economic Partnership (RCEP) where China is an influential member, including the 10 Southeast Asian countries and their partner countries.
  6. Membership in the APEC would promote equal participation by government and private institutions and help deal with the disconnect between policy and business.

India’s candidacy for the APEC is viewed sceptically in some parts of the region for two reasons.

First, critics say India’s past behaviour in trade negotiations, especially in multilateral settings such as the World Trade Organization (WTO), has been reflexively difficult, even intransigent. Some critics fear India would disrupt the APEC’s consultative and consensus-based processes and impede progress on key initiatives. These parties remain unconvinced that India’s government or business community are ready to take more constructive positions despite India’s progress over the past 15 years.

Second, some parties believe that India must prove it is serious about the APEC by completing or committing to certain major steps such as land policy reform or bilateral investment treaty negotiations. It is not unreasonable to look at the government to signal in some significant fashion its desire to be part of the APEC by implementing substantial economic reform.

These perceptions of India’s past stances are based on its behaviour in binding negotiations such as the Doha Round of the WTO. Domestic attitudes about trade, as well as bureaucratic and corporate resistance, have so far made it difficult for India to achieve the scope and pace of reform that would benefit India and its economic partners. Access to APEC’s processes and best practices would help India’s bureaucracy deal with their obstructions. In fact, participation in APEC will over time help India achieve the major policy reforms that India has said it wants. More importantly  APEC is a non-binding forum, and while a consensus of all members is always the goal, some initiatives proceed with a limited consensus of some members. The APEC is a process not a destination And as a non-binding forum for discussion and consultation, it is designed to be flexible even as it holds out the very ambitious goal of pan-regional economic integration.

Making the accomplishment of specific reforms a condition for APEC membership is not consistent with the APEC’s history or character. Throughout its history, the APEC has included economies that have varied widely in their size, stage of development, and trade policy orientation. China was an APEC member for 10 years before making the reform commitments that brought it into the WTO. When Vietnam joined, its economy and policies were very different from those of most APEC members. Now, it is a TPP member. One of APEC’s most important contributions has been to assist the gradual opening of emerging economies. Major policy changes have not typically been pre-conditions for APEC membership.

US was the only major country that did not want India’s entry to forum but now that also watered down after US Congres brought a bill to this effect.The legislation notes that the US-India partnership is vital to the US strategic interests in the Asia-Pacific region and across the globe, and is an integral aspect to the Administration’s Rebalance to Asia. It opens opportunity for India to become part of APEC in near future.

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Accrual Accounting System vs Cash Accounting System:

While cash accounting recognises a transaction only when money changes hands , accrual accounting recognises the transaction at the time it is made, thereby providing more current snapshot. The fourteenth Finance Commission strongly recommended for adoption of accrual based accounting system. It is a means to an end, the end being reforms in public financial management and therefore greater accountability and a greater need for operations of the government to be on commercial lines. The method according to the experts, provide a more accurate picture of the company’s financial position. However it is more complex accounting system than cash accounting which the government uses currently and so is more expensive and time consuming to implement.

Need for Accrual based accounting system:

  1. Accrual accounting is useful in some specific cases such as comparing the cost of public hospitals with private hospitals, for example and in ascertaining why the government is so uncompetitive and why the private players are in a better position.
  2. Budget heads of accounting needs modernisation. The present classification system goes back to around 1974. It has undergone some minor changes, nothing major. What’s happened is that with the greater complexities of the government’s fiscal operations, the need for greater transparency of information and its correct depiction has also become very, very important. A report by the Comptroller and Auditor General of India had found that the archaic classification system had resulted in 11 heads of government spending where more than 50 per cent of the expenditure had no details of how and where the money had been spent. They had simply been classified as ‘other expenditure’. This classification system, called the Chart of Accounts, is like the DNA of the budgetary system.

Challenges in Implementing Accrual based accounting System :

  1. Its relevance to certain departments becomes crucial but most government departments and ministries are policy-oriented ministries. So what if you knew about their assets and liabilities? Accounting information must have relevance.
  2. Another issue with adopting accrual accounting is the cost and time involved. “There are heavy costs involved. Also, experience shows the timeframe for implementation is around 10-15 years for a government of our size. And then there is the issue of the states. If the Centre moves to the accrual system, what happens to the states? Do you have a dual set of statements? Or will you get all the states on board?
  3. In India, our focus isn’t so much to run fiscal surpluses, which may be the focus, say, in Australia but because of our other social sector priorities and heavy subsidy element; our focus is on balancing the budget somehow or the other and remaining within fiscally prudent levels of deficit

Conclusion:

The Controller General of Accounts has asked the government to be careful in adopting the accrual method of accounting considering the costs involved as only a few of its departments can benefit. We should tread this subject in a careful manner. There is no such thing as a big-bang approach. And even if you’ve heard of some advanced countries that have made this transition, like Australia, New Zealand, South Africa, UK, you must understand that the background to the introduction of accrual accounting was not that it was an end by itself.

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