Manner of Appointment of Statutory Auditors and Payment of Remuneration

i. Procedure to appoint Statutory Auditors in the case of Companies not having an Audit Committee
a. An Auditor matching his qualification and experience with the size and requirements of the Company shall be chosen by the Board.
b. The Board shall then see whether there are any orders or pending proceedings relating to professional matters of conduct against the proposed Auditor before ICAI or any other competent Authority.
c. The Board has to see whether he satisfies the eligibility norms specified under Section 141.
d. The Board has to obtain a declaration from the Auditor that he is eligible to issue a certificate under rule 4(1).
Note: As per Rule 4(1), the Company has to get the eligibility certificate after the Auditor is appointed in the AGM. What if the management finds out if the Auditor is ineligible to issue the certificate after he is appointed? The Board should then take the pains to identify a new Auditor in replacement of the appointed Auditor. To avoid such a scenario, it is suggested that clause (d) be followed.
e. The Board has to finalize the remuneration payable to the Auditor in consultation with him and pass the resolution in the Board subject to the approval of the shareholders in the Annual General Meeting. Section 142 requires the Company to quantify the remuneration in the General Meeting.
Note: Under the Companies Act, 1956, The Company had the privilege to appoint Auditors in the AGMs on a remuneration that could be decided by the Board at a later date. That era is over.
f. With the Board’s consent on the Appointment as well as on the remuneration, the intended resolution to be passed could be mentioned in the AGM NOTICE itself. Here is the model resolution.
“Resolved that in accordance with the provisions of Section 139, 141 and 142 of the Companies Act, 2013 read with rule 3(7) of the Companies (Audit and Auditor) Rules, 2014, M/s.ABC & Co, Chartered Accountants, Bangalore be and are hereby appointed as Statutory Auditors of the Company so as to hold the said office from the conclusion of this meeting till the conclusion of the sixth Annual General Meeting on a consolidated remuneration of Rs.22,000 (Rupees twenty two thousand four hundred and seventy two only) for each Audit period unless otherwise revised subsequently at the time of ratifications in the subsequent Annual General Meetings”. for more information: Book keeping services
“Resolved further that M/s ABC & Co, Chartered Accountants, Bangalore shall in addition to the above remuneration be eligible to reimbursement of all expenses incurred during the course of Audit and availing   all such facilities as are extended to them during Audit”.
g. The Company shall file an E Form in ADT–1 intimating the Registrar about the appointment of Auditors within 15 days from the date of his appointment
h. The Company shall also inform the Auditors about his appointment in the AGM within 15 days of his appointment.
ii. Procedure to appoint Auditors in the case of Companies having an Audit Committee
i.    Instead of the Board, the Audit Committee has to go through the process of selection of Auditors as mentioned in Clause (a) to (e) and then recommend to the Board which in turn recommends to the Members for consideration in the AGM.
ii.    a. If the Board disagrees the recommendation of the Audit committee, it shall refer back again to the said Committee citing reason for disagreement and recommending reconsideration.
b. If the Audit committee decides not to reconsider the recommendations made by the Board, the Board shall then record the reason for disagreement and send its own recommendations for consideration to the members to decide in the Annual General Meeting.
3. Conditions and Eligibility Criteria for Appointment of Auditors
The Auditor appointed by the Members or by the Board as the case may be, shall submit a certificate stating that
i. He is eligible for appointment and is not disqualified for appointment under the Companies Act, 2013, the chartered Accountants Act, 1949 and the rules and regulations made there under.
ii. The proposed appointment is asper the terms provided under the Act.
Note: Section 141 and rule 10 list out the eligibility criteria for the Auditors and Section 144 list out services that he should not render either directly or indirectly while serving as Auditor
iii. The proposed appointment is within the specified limits laid under the Act.
iv. The list of proceedings against the Auditor or Audit firm or any partner of the Audit firm pending with respect to professional matters of conduct as disclosed in the certificate is true and correct.
4. Filling up of Casual Vacancy caused due to various reasons in the case of Companies not subject to Audit by the Comptroller and Auditor General of India
a. In the case of casual vacancy caused by the resignation of the Auditor, the following procedures have to be      followed.
i. The Board of Directors shall approve the filling up the casual vacancy within thirty days and then recommend such appointments to the members.
ii. The members in an Extra Ordinary General Meeting shall confirm and approve the vacancy filled up by the Board on its recommendations within three months.
b. In the case of casual vacancy caused by any other reason other than resignation of the Auditor, the Board of Directors has the powers to fill such a vacancy within thirty days.
c. In the case of Companies having Audit Committee, filling up of casual vacancy shall be done after taking into account the recommendation of such a Committee in addition to the recommendation of the Board.
The Appointed Auditor shall hold office till the conclusion of the next Annual General Meeting
5. Filling up of Casual Vacancy in the case of Companies subject to Audit by the Auditor Controller General of India
i. The Comptroller and Auditor General of India shall fill up the casual vacancy within thirty days.
ii. In case the casual vacancy is not filled as mentioned in (i) above, the Board of Directors shall fill such vacancy within the next 30 days.
6. Reappointment of either the retiring Auditor or some other Auditor in the place of the retiring Auditor.
As per Section 139(9) of the Act, the retiring Auditor shall be reappointed at an Annual General Meeting if
i. He is not disqualified for reappointment
ii. He has not given the company a notice of unwillingness to be reappointed.
iii. A special resolution is passed at the Annual General Meeting appointing some other Auditor or providing expressly that he shall not be reappointed.
iv. The retiring Auditor shall continue to remain as Auditor till the end of this term viz., conclusion of the sixth Annual General Meeting if no other auditor is appointed or reappointed.
Note: This is contrary to rule 3(7) as mentioned earlier.
7. Services to be rendered by the Statutory Auditor
i. The Auditor shall conduct the Statutory Audit the manner in which it is laid down under Section 143.
ii. The Auditor in his report shall specify all matters as are enumerated in Section 143 and Rule 11.
iii. In case of frauds, the Auditor shall report in the manner laid under Rule 13.
iv. Section 146 requires the Auditor to attend either by himself or through his authorized representative who shall be qualified to be an Auditor all general meetings and he shall have the right to be heard on any part of business that concerns him. (However the Company may exempt the Auditor in complying with this provision)
8. Services not to be rendered in the capacity as Statutory Auditor
The Auditor shall not render either directly or indirectly to the Company, or its Holding or Subsidiary Company the following services.
a. Accounting and Book keeping service.
b. Internal Audit
c. Design and Development of any financial information system
d. Actuarial Services
e. Investment advisory services
f. Investment Banking Services
g. Rendering of outsourced financial services
h. Management Services
Any other services as may be prescribed by the Government.
9. Restrictions on Term of Office that a Statutory Auditor can hold applicable only to certain class of Companies
The term of office of an Individual Auditor shall be for five years and for a firm of Auditors shall be for two consecutive terms of five years for the following classes of Companies.
a.    All listed Companies
b.    All unlisted Public Companies having a share Capital of Rs.10 Crores or more.
c.    All Private Companies having a capital of more than Rs.20 Crores
d.    All Companies not falling under clause (b) and (c) but having Public borrowings from financial institutions, banks or Public deposits of Rs.50 Crores or more.
However the Act has given time to comply with the above provisions by the aforesaid companies within a period of three years viz., on or before 31–3–2017.

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METHODS OF ELIMINATING DOUBLE TAXATION

The objective of double taxation can be achieved Tax treaties employ various methods or a combination of
(I) EXEMPTION METHOD –

One method of avoiding double taxation is for the residence country to altogether exclude foreign income from its tax base. The country of source is then given exclusive right to tax such incomes. This is known as complete exemption method and is sometimes followed in respect of profits attributable to foreign permanent establishments or income from immovable property. Indian tax treaties with Denmark, Norway and Sweden embody with respect to certain incomes.

(II) CREDIT METHOD

This method reflects the underline concept that the resident remains liable in the country of residence on its global income, however as far the quantum of tax liabilities is concerned credit for tax paid in the source country is given by the residence country against its domestic tax as if the foreign tax were paid to the country of residence itself.

(III) TAX SPARING

One of the aims of the Indian Double Taxation Avoidance Agreements is to stimulate foreign investment flows in India from foreign developed countries. One way to achieve this aim is to let the investor to preserve to himself/itself benefits of tax incentives available in India for such investments. This is done through “Tax Sparing”. Here the tax credit is allowed by the country of its residence, not only in respect of taxes actually paid by it in India but also in respect of those taxes India forgoes due to its fiscal incentive provisions under the Indian Income Tax Act.

Thus, tax sparing credit is an extension of the normal and regular tax credit to taxes that are spared by the source country i.e. forgiven or reduced due to rebates with the intention of providing incentives for investments.

The regular tax credit is a measure for prevention of double taxation, but the tax sparing credit extends the relief granted by the source country to the investor in the residence country by the way of an incentive to stimulate foreign investment flows and does not seek reciprocal arrangements by the developing countries.

APPLICABILITY OF TREATY BENEFITS

In order to get the benefit of a tax treaty, it is necessary to have an access to it. For that purpose, a person must qualify in terms of the treaty as a: 

- person 

- resident of any of the Contracting states; and 

- beneficial owner of the income by the way of dividends, interest or royalties for a lower rate of withholding tax.

RESIDENCE OF A PERSON/ RESIDENT

The determination of the residential status is of great significance as the taxability of income under the domestic laws depends upon it, and as also only the resident of a contracting state can seek relief from double taxation.

The expression ‘resident of contracting state’ is defined to mean any person who, under the laws of that state, is 

1. liable to tax therein by reason of 

2. domicile, residence, place of management or 

3. any other criterion of a similar nature.

The treaty provisions set forth rules for determination whether a person is a resident of a contracting state for purposes of the treaty. The determination looks for first to a person’s liability to tax as a resident under the respective taxation laws of the contracting state. If a person is resident in both the contracting states, there are provisions to assign a single state of residence to him for purposes of the treaty through tie-breaking rules.

BUSINESS INCOME

The business income of a non-resident is taxable in India under section 9(1)(i) of the ITA only if it accrues or arises, directly or indirectly, through or from any business connection in India, property in India, asset or source of income in India, or through the transfer of an Indian capital asset. Explanation 2 of section 9(1) (i) contain an inclusive definition of business connection; as per which a business connection is said to exist if any person carrying on a business activity acts on behalf of a non-resident and:
# has and habitually exercises an authority to conclude contracts on behalf of the non-resident 

# has no such authority, but habitually maintains in India a stock of goods or merchandise from which he regularly delivers goods or merchandise on behalf of the non-resident 

# habitually secures orders in India, mainly or wholly for the non-resident or its affiliates.

PERMANENT ESTABLISHMENT

Double taxation agreement restricts the jurisdiction of the contracting states to taxing business income of a foreign enterprise only if such enterprise carries on business in India through a permanent establishment.

The term “permanent establishment” as defined in Article 5 means a fixed place of business through which business of an enterprise is carried on. The definition requires performance of business activity through a fixed place of business in another country. The expression has been defined as:
a. fixed place of business through which the business of an 

b. enterprise is 

c. Wholly or partly carried on.

The first part of Article 5(1) postulates that the existence of a fixed place of business whereas the second part postulates that the business is carried on through a fixed place. If the second part is not attracted, there is no permanent establishment.[10] Thereby meaning that there should necessarily be a fixed place of business through which the enterprise must conduct business activity and that activity must be income generating.

TREATING SHOPPING

Treating shopping is an expression which refers to the act of a resident of a third country taking advantage of a fiscal treaty between states. A person acts through a legal entity created in a state essentially to obtain treaty benefits that would not be available directly to such person.

The basic feature of treaty shopping is the establishment of base companies in other states solely for the purpose of enjoying the benefit of a particular treaty rules existing between the state involved and the third state. An example of treaty shopping can be the India-Mauritius double Taxation agreement where various companies have been incorporated in Mauritius to take advantage of the Indo-Mauritius DTAA in which capital gains are to be assessed as per the law of the state of residence of the entity .However, under the Mauritian law, tax is not levied on capital gains which means that the capital gains made by the Mauritian entity on transfer of shares in an Indian company go unassessed.

However, the last few tears have seen a change in the approach of the States in the wake of wide reports of extensive money laundering and the tax evasion. As a consequences, a lot of countries are adopting a “Limitation of Benefits” clause in the tax treaties so as o restrict third parties from taking advantage of tax treaties between two other states.

INDIAN TAX REGIME

The Income Tax Act, 1961 (ITA) governs taxation of income in India. According to section 5 of the ITA, Indian residents[11] are taxable on their worldwide income, and nonresidents are taxed only on income that has its source in India.10 Section 6 of the ITA defines who may be a tax resident and contains different residency criteria for companies, firms, and individuals. The scope of section 5 is expanded by the ‘‘legal fiction contained in section 9,’’ which deems certain kinds of income to be of Indian source.

The ITA favors source-based taxation as compared to the OECD model conventions or treaties entered into by many developed countries that favor residence based taxation. Indian courts have supported source based taxation in several cases in the past.

INDIAN POLICY WITH RESPECT TO DOUBLE TAXATION AVOIDANCE AGREEMENTS

The policy adopted by the Indian government in regard to double taxation treaties may be worded as follows:

•  Trading with India should be relieved of Indian taxes considerably so as to promote its economic and industrial development.
•  There should be co-ordination of Indian taxation with foreign tax legislation for Indian as well as foreign companies trading with India 
•  The agreements are intended to permit the Indian authorities to co-operate with the foreign tax administration. 
•  Tax treaties are a good compromise between taxation at source and taxation in the country of residence 
•  India primarily follows the UN model convention and one therefore finds the tax-sparing and credit methods for elimination of double taxation in most Indian treaties as well as more source-based taxation in respect of the articles on ‘royalties’ and ‘other income’ than in the OECD model convention.

CONCLUSION

The regime of international taxation exists through bilateral tax treaties based upon model treaties, developed by the OECD and the UN, between the Contracting States. India has entered into a wide network of tax treaties with various countries all over the world to facilitate free flow of capital into and from India. However, the international tax regime has to be restructured continuously so as to respond to the current challenges and drawbacks. Know more about information: Business tax consultants and Tax consulting company

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HOW TO DEVELOP COMMUNICATION SKILLS

Human beings communicate through three ways
•    Speaking
•    Listening.
•    Writing,

We shall deal with each one aspect of communication separately. Let’s start with speaking skills, Successful communication is an exchange, two people sharing insights on the same topic. Their insights might be diametrically opposed, but each expresses an opinion and listens to the response.

Many times the conversation instead of being a dialogue becomes a monologue. Only one person does all the talking and the other listens. This leads to breakdown in conversations. Good conversation like good tennis needs volleying from both sides.

So remember when you converse allow the other person to air his / her opinion. Try to understand his view if possible even if it is totally against your opinion.

Whether speaking to an audience of hundreds or of one, strengthen your speaking- and your image with a short silent pause.  We often clutter our speech with verbal crutches-“like”, “Uhh” “Err” “Well” . We lean on these crutches to fill the silence when thinking of the next idea or word. The silence is better.

If you use these crutches break the habit by pausing. Make no sound. You will be surprised to see how quickly the next word pops up. And you will find the silence is hardly noticeable. More information: New company registration India

HOW TO MAKE AN EFFECTIVE ORAL PRESENTATION.

While hard work and good ideas are essential to success, your ability to express those ideas and get others to join you is just as important. Much of this is on one or in small groups but periodically you will be involved in more formal and public speaking in front of larger numbers. If this thought makes you nervous you are not alone. Many speakers lack the skills and confidence to make effective presentations. The fear of public speaking is the second largest fear in the world. Tips to improve your presentation:-

1)    Formulate a strategy for the specific audience:- Be clear about the purpose of your communication. Knowing the audience will be a critical determinant in what information is presented. Be concrete, specific, practical and relevant. Clarify your objectives-Is it to motivate?.. Inform?… persuade?…. Teach? Each calls for a different approach.

2)    Write the presentation in rough, never read from a script. You should know most of what you want to say, if you don’t then you should not be giving the talk Prepare cue cards which have key phrases and words, Don’t forget to number the cards in case you drop them.

3)    Greet the audience and tell them who you are. Then follow this formula:-
•    Tell the audience what you are going to tell them.
•    Then tell them
•    At the end tell them what you have told them.

4)    Keep the time allowed.

5)    Use your hands to emphasize points but don’t indulge in too much hand waving. Move around. But don’t block the projector.

6)     Look at your audience and try to make eye contact with each person. Eye contact helps to move your presentation from “speech” to “conversation” involving everyone in the audience. Don’t lock your gaze with one person. That may be intimidating.

7)    Avoid too much information on the slides. Just display the points then elaborate them.
Some presenters fill slides with so much detail that the audience just reads the slides ignoring the presenters. By keeping the slides lean, you convey the essentials with greater emphasis and you force the audience to turn to you for detail. Use color on slides but avoid orange and yellow which do not show well when projected.

8)    Speakers, who pound the podium, jingle change in their pockets or do other things focus attention on themselves rather than the subject.

9)    Speak clearly. Don’t shout or whisper.

10)    Room Lightning should be considered. Too much light near the screen will make it difficult to see the detail. On the other hand a completely darkened room can send the audience to sleep.

11)     Use numbers to help the audience follow and grasp your information. For example: - I have two major objectives for today’s meeting.

12)    Don’t worry if you are not grammatically sound. It is more important to remain cool and try to convey your ideas. Of course it is advisable to improve your language as it does have an impact on the audience. However your presentation will be better if you stop worrying about the audiences’ reaction to lack of grammatical correctness.


13)     Stage Fright:- Following are some techniques to cope with this fright:-

•    Your audience understands your nervousness; they will forgive any honest mistakes.
•    Chat with members of the audience before the presentation. You will not find them that threatening.
•    Practice deep breathing exercises before taking the podium.
•    Rehearse your presentation a few times.

14)    Use language that can move people. Churchill might never had made such a strong impact on the world had he written” Essentially my contribution includes sanguinary composition, diligence effort and commitment”. Fortunately he spoke in language that could move people “I have nothing to offer but blood, toil, sweat and tears”.

15)    Get your audience involved. Ask them questions. Give various anecdotes to liven up your presentation.

16)    The only way to be a good presenter is through practice. You can form small groups with friends to practice.

SMALL TALK:-

You are in the elevator and the Managing Director enters. As the elevator ascends the silence builds. You search desperately for something to say. What do you say? You think what the MD will think if you say nothing.

Casual meetings may not advance or derail your career, but they do add to the impression people form of you. In such situations sparkling conversation is not expected but small talk is.

So what do you talk about-?
•    Don’t try to be brilliant- Most people don’t expect it in casual meetings.
•    Turn the spotlight on the other person- Ask about the other person’s family, vacation plans etc.” What do you think of the weather” is not exactly original but can work as an ice breaker.
•    Compliment carefully. Give sincere praise. False flattery can back fire.
•    Use friendly body language- Smile, make eye contact and don’t fold you arms. Many times the other person may be just as uncomfortable as you are. So any small talk will be welcome.

HOW TO COMPLAIN IN THE RIGHT MANNER:-

•    Be straightforward- State the problem and not how much you are frustrated.
•    Offer a solution- Explain what you would like done to resolve the problem rather than leaving it up to the other person. For example “ If it would be easier to send a duplicate invoice since the original seems missing” Don’t say- “ “You have lost the original invoice. ….” Many people don’t understand when to stop complaining. Even if the other person is wrong offer a solution to get out of the . The offender will also be happy that you didn’t make a issue out of his mistake.
•    Stay Calm- Raising your voice and blood pressure won’t be of much help to you or have a positive effect on a lackadaisical performer. This is because when you finish getting mad and stomping around you will still have to deal with the person who would then be even less likely to help solve the problem.
•    Try a smile- Research suggests that people who walk around (or talk) with a smile have a much higher success rate at getting what they want.

DEALING WITH SENSITIVE ISSUES:-
Candor and directness are admirable qualities but sometimes tact works more effectively.  If the issue is sensitive and can lead to confrontation tread a bit carefully. Use the following three diplomatic techniques especially if the issue is raised at your workplace:-

1.    Lower your voice and control your tone-
Its true hostility can be conveyed in a whisper but that’s less likely if you control/ soften your tone of voice.

2.    Cushion the impact of criticism with expressions like “maybe” and “we might consider”- Such expressions can prompt an open response. For example-
“Maybe we can approach it another way” sounds much better.

3.    Use the passive voice to focus on the issue not the individual-
Instead of: - You designed the concept to….
Try: - The concept seems designed to…
The words you choose and the way you deliver them can turn confrontation into resolution.

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ONE PERSON COMPANY SETUP IN INDIA

INTRODUCTION

With the new Companies Act 2013, the government has introduced the Concept of One Person Company i.e Knows as OPC Company in India. The Individual entrepreneurs Carrying on business as proprietorship firm will now be able to avail the benefits of limited liability without a second person to form a company as the Companies Act, 2013 (hereinafter "2013 Act") proposes the concept of "One Person Company" (hereinafter "OPC").

INCORPORATION

In terms of section 3(1)(c) of the 2013 Act, an OPC may be formed for any lawful purpose by one person.

Salient features in relation to incorporation include

• The memorandum of an OPC shall indicate the name of another person, with his prior written consent, who shall, in the event of the subscriber's death or his incapacity to contract become the member of the company.
• The written consent of such person shall also be filed with the registrar of companies at the time of incorporation of the OPC along with its memorandum and articles.
• The words "One Person Company" must be mentioned in brackets below the name of such company, wherever its name is printed, affixed or engraved. [Second provison to Section 12(3)]
• A person can incorporate a maximum of 5 OPCs. [Rule 2.1(2)]
• Only natural persons can incorporate an OPC. Also, the person incorporating an OPC must be an Indian citizen who has stayed in India for at least 182 days during the immediately preceding one financial year. [Rule 2.1(1)]

Nomination by the subscriber or member of OPC

In terms of section 4(1)(f), the memorandum of an OPC should state the name of the person who shall become the member of the company in the event of death of the subscriber. Such nominee may withdraw his consent subsequently. [Section 3(1)]

• The subscriber to the memorandum of an OPC shall nominate a person, after obtaining his/her prior written consent, who shall, in the event of the subscriber's death or his incapacity to contract, become the member of that OPC. [Rule 2.2(1)]
• The member of OPC may at any time change the name of such nominee by giving notice as prescribed. [Section 3(1)]
• The notice by the member of OPC as stated above must be provided by the OPC to the registrar of companies once the same is intimated by the member to the OPC. Any change in the name of nominee shall not be deemed to be an alteration of the memorandum. [Section 3(1)]
• Only a natural person who has stayed in India for a period of not less than 182 days during the immediately preceding one financial year is entitled to be a nominee for the sole member of an OPC. [Rule 2.1(1)]
• Ambient Air Quality Report (if available)

Documents Required-

• Application for reservation of name in INC-1
• Proof of Identity of Member & Nominee
• Proof of Address of Member & Nominee
• Copy of PAN Card of Member & Nominee
• Consent of Nominee in form INC-3
• Affidavit in form INC 9 for subscriber for shares and Memorandum
• Application for Incorporation of Company in form INC-7
• Filling of Registered office address in form INC-22
• Proof of address for the registered office of Company.

Note: - The incorporation of OPC-One Person Company would commence from 28th April 2014, many practical aspects would clear after MCA rolls out forms. Know more about information: New company registration India and Service tax registration

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ACCOUNTING OUTSOURCING SERVICE INDIA

Service Tax

In the present times of intense competition and highly performance – oriented business world, it makes perfect sense to outsource certain activities of the company in favor of better management and optimal cost efficiency. Outsourcing is, in fact, a singular answer to the multifarious challenges that any company confronts in the face of peaking standards of performance and profitability. It avails the company the specialized services of professional accounting firms, thereby saving significant time and manpower and allocation of the saved resources in propagating business further.

There is a plethora of professional accounting firms that undertake outsourced accounting jobs in a comprehensive manner. Services from these firms are very accurate and timely, as they are highly fine tuned to suit the client’s subjective demands and needs. The services target to optimize business resources and processes for their clients and analyze potential risks much in advance. The efficient and reliable services of these firms al low informed and better management decision making. 

Among the most common services that are outsourced, it is common for companies to leave preparation and maintenance of day-to-day bookkeeping and management of accounts, as per US GAAP accounting standards, to professional firms. Other services generally outsourced include,

• Preparation of annual accounts and schedules for statutory annual audit; 

• Preparation of monthly salaries of employees and other inclusive pay roll services; 

• Helping clients make periodic income tax, sales tax and other returns and make sound investment decisions; 

• Assisting clients with recovery of debts; 

• Handling cash and bank operations for the current accounts and 

• Analyzing cash requirements for future use.

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