Related Party transactions

A related party is a party related to a body corporate /company in any other way other than by the companies own transactions. It means that a special relationship persists between the parties even before the transaction takes place. Section 2(76) of the Companies Act, 2013 (“the Act”), defines a related party with reference to a company

• director or a key managerial person or their relatives or,
• a firm, private company in which the partner, director / manager or his relative is a partner or,
• a private company or a public company in which a director or manager is a director and holds along with his relatives, more than 2% of its paid-up share capital.

Transactions which are deemed to be related party transaction
Following transactions between a company and its related party relating to:

1. Sale, purchase or supply of any goods or materials,
2. Selling or otherwise disposing of, or buying, property of any kind,
3. Leasing of property of any kind,
4. Availing or rendering of any service,
5. Appointment of any agent for purchase or sale of goods, materials, service or property,
6. Appointment to any office or place of profit in the co., its subsidiary or associate, and
7. Company underwriting the subscription of any securities or derivatives thereof, of the company.

Arm’s length transactions
An arm’s length transaction means a transaction between two related parties that is conducted as if they were irrelevant so that there is no dispute of interest. In this case, it is to be distinguished that the burden of agreement lies within the parties entering the agreement that the said transactions come within the purview of arm’s length basis. If the transactions are conducted and carried out in a fair, justiciable manner without any trace of influence of the parties’ relation upon itself it is known as a transaction at arm’s length. It means transactions which are not biased by the relation of the parties and conducted as if with an unrelated party. Such transactions have been exempted from compliance with Section 188 of the Act.
Exemptions
All the above conditions would not be applicable in case the transactions are entered into a company in its ordinary course of business which is on arm’s length basis.
Consequences of non-compliance

1. Agreements voidable: Where any contract or arrangement is entered into by a director or any other employee, without the consent of the Board or approval by a special resolution in the general meeting and if it is not ratified by the Board or by the shareholders within three months from the date on which such contract is made, then such contract or arrangement shall be voidable at the option of the Board.
2. Indemnification: If such a contract or arrangement is with a related party to any director, or is authorized by any other director, the directors concerned shall indemnify the company against any loss incurred by it.
3. The company can also proceed against such director or any other employee who had entered into such contract or arrangement in contravention of the provisions of this section for recovery of any loss sustained by it as a result of such contract or arrangement.
4. Penalties for a director or any other employee in violation of the provisions of Section 188 of the Act:

• Listed company: Punishment of imprisonment for a term upto 1 year or with fine from INR 25,000 (Approx. 388 USD) upto INR 5 lacs (Approx. 7750 USD), or both
• Other companies: fine of INR 25,000 (Approx. 388 USD) upto INR 5 lacs (Approx. 7750 USD).

Audit
As per the provisions of the Companies Act, 2013 it is required that the audit committee to approve or modify the transactions with the related parties, scrutinize the same as per the provisions of the act. Further the companies act gives the audit committee the authority to investigate into any matters falling within its ambit and to have full access over the information contained in the records of the company.
The proposal introduced new amendments pertaining to related party transaction, the categories of related party transactions that earlier required approval through special resolution (more than 75% of the voting members) will now need an ordinary resolution (more than half of voting members). However, the listing agreement shall stipulate a special resolution requirement for transactions exceeding the threshold limit.

Tax Audit Report (Form 3CD)

In order to get the various amendments made to Income-tax Act, 1961 and other laws (indirect taxes) within the format of tax audit report (TAR), the Central Board of Direct Taxes (CBDT) issued notification No. 33/2018  on 20 July 2018 amending the report format of tax audit. These amendments to TAR will come in force from 20 August 2018, which implies that the tax audits filed with the Income-tax on or after 20 August 2018 will have to be in the amended TAR. The point wise changes have been discussed in the ensuing paragraphs:

1. Clause no. 4 of Form 3CD – Registration details of indirect taxesDetails regarding the registration number of Goods & Service Tax (GST) have been added.

2. Clause no. 19 and 24 of Form 3CD – Deduction for investment in new plant or machineryDisclosure with regard to section 32AD has been added in these clauses to Form 3CD. This section allows deduction in respect of investment made in new plant or machinery in notified backward areas.

3. Clause no. 26 – Section 43B Certain deductions on actual payment basisClause f of section 43B has been added for reporting under this clause which pertains to allowing of liability outstanding towards Indian Railways for use of their assets, on actual payment basis.

4. Serial no 29A – New clause introduced for section 56(2) (ix) of the ActThis section was introduced in Finance Act 2014 primarily to tax the advance amounts initially received against the capital asset in the course of negotiation and later forfeited and no transfer effected. Reporting under this section has been got under the TAR

5. Serial no. 29B – New clause introduced for section 56(2) (x)of the ActThis section of the Act widened the scope of taxability of any sum of money, immovable property or any other property received by one person from another person for no consideration or inadequate consideration.

6. Serial no. 30A – New clause introduced for section 92CE of the Act (‘Secondary adjustment’)Section 92CE was introduced by the Finance Act, 2017 which brought in the concept of secondary adjustment in the Act. According to this section, where there has been any primary transfer pricing adjustments made in the case of an assesse, under various circumstances, the assesse is required to make a secondary adjustment.

7. Serial no. 30B – New clause introduced for section 94B of the Act (‘Thin Capitalization’)Section 94B was introduced in Finance Act 2017 to limit the interest deduction in certain cases and to bring in the concept of Thin Capitalization. It is a situation where an entity is financed at a relatively high level of debt compared to equity. Some multinational companies engage in aggressive tax planning techniques such as placing higher levels of third party debt in high tax countries, using intragroup loans to generate interest deductions in excess of their actual third party interest expense, using third party or intragroup financing to fund the generation of tax exempt income. Certain relaxations are also provided under this section

8. Serial no. 30C – New clause introduced for section 96 of the Act (‘GAAR’)Section 96 (impermissible avoidance agreement) falls under the Chapter X-A (General Anti Avoidance Rule). This section was inserted to curb such arrangements where an agreement creates such rights between the parties to the agreement, by misuse of the provisions of the Act, which would not have been created in normal course between parties dealing at arm’s length. Under this clause, where the tax auditor is of the view that a particular arrangement falls under this provisions of the act then they are supposed to state the nature of such arrangement and the tax benefit created in the previous year to all parties in aggregate. Reporting under clause 30C has been deferred till 31^st March 2020 vide circular no. 9/2019 dated 14^th May 2019.

9. Serial no. 31 – Clause (ba), (bb), (bc) and (bd) introduced after clause (b) to serial no. 31 of TAR pertaining to section 269ST of the ActPursuant to introduction of section 269ST by Finance Act 2017, the TAR has been amended to include disclosure under this provision whereby there is a restriction on receiving by any person of an amount exceeding INR two lakh in aggregate from a person in a day; or in respect of a single transaction; or in respect of one event otherwise than by account payee cheque or account payee bank draft or use of electronic clearing system (ECS). Where this section of the act is applicable only to the recipient, the disclosure requirements even mandate the payer to make the relevant disclosures along with the name, address and PAN of the party involved.

10. Amendments have been made to the language of clause 31 (c), (d) and (e) of the TAR with regard to the provision of section 269T of the Act

11. Serial no. 34 – Clause (b) Details of eTDS returnsEarlier this provision required only reporting of the fact as to whether the eTDS statement submitted contains all details/ transactions (Yes/ No). Now with the amendment to this clause, the TAR requires reporting of such details/ transactions which have not been reported in the eTDS return. This will be a task for the assesse with huge volumes of transactions which will require reporting of all such entries.

12. Serial no. 36A – New clause for details regarding deemed dividend u/s 2(22) (e) of the ActUnder the provisions of this section where any company, in which public are not substantially interested, makes any payment by way of loan or advance, to any person who holds not less than 10 percent voting power or to any other person in which such shareholder has substantial interest, then such payment to the extent of accumulated profits, will be treated as deemed dividend.

13. Serial no. 42 – New clause for details regards Form no. 61, 61A and 61BThis requires reporting of details of submission and due date of the respective forms with the income-tax. It also requires the auditor to ensure if all the required details have been submitted and if not, then the unreported details/ transactions are required to be reported in Form 3CD. The details required to be submitted in respective forms have been given hereunder:

• Form 61 – this form requires details of all Form 60 to be submitted. Where transactions specified under Rule 114B of the Income-tax Rules, 1962 (‘the Rules’) have been undertaken by the assesse and document with that regard has been collected by the assesse without the PAN of the person giving the document, then the assesse is required to collect declaration in Form 60.
• Form 61A – Statement of specified financial transactions as given in Rule 114E of the Rules which mandates reporting of certain financial transactions undertaken during a particular financial year, before due date (31 May).
• Form 61B – Statement of reportable accounts in accordance with FATCA and CRS for a calendar year.

14. Serial no. 43 – New clause with regard to Country by Country Reporting (CbCR) u/s 286 of the ActSection 286 r.w.r 10DB specifies the Companies liable to comply with CbCR requirements. Entities to which CbCR is applicable need to comply with reporting requirements of Form 3CEAC and 3CEAD, wherever applicable. The details of parent entity, alternate reporting entity and date of furnishing of these reports are to be mentioned under this clause of TAR.

15. Serial no. 44 – New clause of expenditure with respect to registered / unregistered entities under GSTThis clause requires breakdown of entire expenditure debited to Profit & Loss a /c into the following heads:

• Relating to goods or services exempt under GST
• Relating to entities falling under composition scheme
• Relating to other registered entities
• Relating to entities not registered under GST
  Reporting under clause 44 has been deferred till 31^st March 2020 vide circular no. 9/2019 dated 14^th May 2019.

TAX AUDIT REPORT |  COMPANY FORMATION IN INDIA