02 January 2015
If during the year, if their is any international transactions with the associated enterprises, then its mandatory to file file form 3ceb with tax audit report. Associated Enterprise has been defined under section 92A of the income tax Act,1956.
02 January 2015
Agree with Amol. There is no limit in case of international transaction. in case of Specified domestic transaction the limit of 5 Crore has been prescribed.
Querist :
Anonymous
Querist :
Anonymous
(Querist)
03 January 2015
if a foreign company has 50% share in indian company does it should file form 3 ceb
03 January 2015
the transaction should be INTERNATIONAL transaction.... why are you getting confused with HOLDING? Tell me what is your reasoning, please
Querist :
Anonymous
Querist :
Anonymous
(Querist)
03 January 2015
3.4 One enterprise holds, directly or indirectly, shares carrying not less than twenty-six per cent of the voting power in the other enterprise. [Section 92A(2)(a)] Two enterprises shall be associated enterprises based on the shareholding of one enterprise in the other if the investing enterprise holds shares carrying not less than twenty-six per cent of the voting power in the other enterprise. Holding for this purpose includes indirect holding too. As the terms used are “shares” and “voting power”, it is apparent that this clause applies only to those cases where the investee enterprise is a company. This is further supported by the fact that clause (j) refers to individuals, clause (k) to Hindu undivided families and clause (l) to firms, association of persons and body of individuals. 3.5 Any person or enterprise holds, directly or indirectly, shares carrying not less than twenty-six per cent of the voting power in each of such enterprises. [Section 92A(2)(b)] Under this clause, two enterprises are deemed associated enterprises, even though one enterprise may not hold any shares in the other enterprise. This Associate Enterprises 19 clause comes into play when one person or enterprise simultaneously holds shares carrying not less than twenty-six per cent voting power in each such enterprise. For example, if AA of UK holds 26% voting power in BB of Germany and also in CC of India, then BB and CC shall be deemed to be associated enterprises. Even for this clause, shareholding may be direct or indirect holding. 3.6 A loan advanced by one enterprise to the other enterprise constitutes not less than fifty-one per cent of the book value of the total assets of the other enterprise. [Section 92A(2)(c)] Where the lender enterprise’s loans to the borrower enterprise constitute more than 51% of the ‘book value’ of the total assets of the borrowing enterprise, then both the lender and the borrower enterprises would be treated as ‘associated enterprises’. 3.7 One enterprise guarantees not less than ten per cent of the total borrowings of the other enterprise. [Section 92A(2)(d)] Where the guarantor enterprise guarantees 10% or more of the total borrowing of the enterprise seeking guarantee, then they would become ‘associated enterprises’. 3.8 More than half of the board of directors or members of the governing board, or one or more executive directors or executive members of the governing board of one enterprise, are appointed by the other enterprise. [Section 92A(2)(e)] Where one enterprise has appointed (a) more than one-half of the board of directors or members of the governing board; or (b) one or more executive directors or executive members of that board in another enterprise the two enterprises shall be deemed to be associated enterprises. This clause refers to “board of directors” and “governing board”. As per section 2(6) of the Companies Act, 1956, the term “board of directors” would refer to the board of directors of a company. The term “governing board”, Guidance Note – Transfer Pricing 20 correspondingly, would refer to a body or council that has the executive authority to manage the affairs of the enterprise to which it relates. These enterprises could be artificial juridical non-corporate bodies. For the purposes of this clause, the appointment of even one person to the post of executive director or executive member would make the enterprises associated enterprises. 3.9 More than half of the directors or members of the governing board, or one or more executive directors or executive members of the governing board of each of the two enterprises are appointed by the same person or persons. [Section 92A(2)(f)] Clause (f) is an extension of the principle laid down in clause (e). This clause is applicable where the same person has (a) appointed more than one-half of the board of directors or members of the governing board; or (b) appointed one or more executive directors or executive members of the governing board of two or more enterprises For example, the appointment of seven out of twelve members of board of directors of B Ltd. and six out of ten members of the board of directors of C Ltd. is controlled and has been made by A Ltd. By virtue of clause (f), B Ltd. and C Ltd. are associated enterprises. Further, if the appointment of the executive director of B Ltd. and six out of ten members of the board of directors of C Ltd. have been made by A Ltd., then B Ltd. and C Ltd. shall be regarded as associated enterprises. 8.10 The manufacture or processing of goods or articles or business carried out by one enterprise is wholly dependent on the use of knowhow, patents, copyrights, trade-marks, licences, franchises or any other business or commercial rights of similar nature, or any data, documentation, drawing or specification relating to any patent, invention, model, design, secret formula or process, of which the other enterprise is the owner or in respect of which the other enterprise has exclusive rights. [Section 92A(2)(g)] Two enterprises are deemed to be associated, if one is wholly dependent on the other for the use of know-how, patents, copyrights etc. for the Associate Enterprises 21 manufacture or processing of goods or articles or business carried on by such enterprise. It should be noted that such know-how, patents, copyrights etc. must be either owned by the other enterprise or the exclusive rights thereto must vest with the other enterprise. If an Indian enterprise is wholly dependent on the licence granted by a non-resident enterprise for manufacture or processing of goods or articles or business carried out by the Indian enterprise both enterprises shall be deemed to be associated enterprises. 3.11 Ninety per cent or more of the raw materials and consumables required for the manufacture or processing of goods or articles carried out by one enterprise, are supplied by the other enterprise or by persons specified by the other enterprise, and the prices and other conditions relating to the supply are influenced by such other enterprise. [Section 92A(2)(h)] There are two situations dealt with in this clause and they are as follows: (i) 90% or more of the raw materials and consumables required for manufacturing or processing of goods or articles are supplied by the other enterprise, or (ii) 90% or more of the raw materials and consumables required for manufacturing or processing of goods or articles are supplied by persons specified by the other enterprise, and the prices and other conditions relating to supply (by the specified person) are influenced by the other enterprise. Since this clause relates to manufacture or processing of goods, it is important to note that the 90% criteria should be applied exclusively to raw materials and consumables used for manufacturing and processing only. 3.12 The goods or articles manufactured or processed by one enterprise, are sold to the other enterprise or to persons specified by the other enterprise, and the prices and other conditions relating thereto are influenced by such other enterprise. [Section 92A(2)(i)]Guidance Note – Transfer Pricing 22 Where the goods or articles manufactured and processed by one enterprise, (say, enterprise A) are sold (i) to another enterprise (say, enterprise B) or (ii) sold to another enterprise (say, enterprise C) specified by enterprise B, and the prices and other conditions relating thereto are influenced by enterprise B, then enterprises A and B shall be associated enterprises. While in clause (h), a minimum criteria of 90% has been mentioned, no such quantification has been done in clause (i). This clause covers only sale of goods manufactured or processed and not the sale of traded goods. 3.13 Where one enterprise is controlled by an individual, the other enterprise is also controlled by such individual or his relative or jointly by such individual and relative of such individual. [Section 92A(2)(j)] This clause deals with a situation where one enterprise is controlled by an individual and the other enterprise is also controlled by – (i) such individuals; or (ii) his relative; or (iii) jointly by such individual and his relative then both the enterprises shall be deemed as associated enterprises. The word ‘control’ can be interpreted to mean that the individual along with his relatives has the power to make crucial decisions regarding the management and running of the two enterprises. The word ‘relative’ is defined under section 2(41) of the Act as follows: “ “ relative”, in relation to an individual, means the husband, wife, brother or sister or any lineal ascendant or descendant of that individual” 3.14 Where one enterprise is controlled by a Hindu undivided family, the other enterprise is controlled by a member of such Hindu undivided Associate Enterprises 23 family, or by a relative of a member of such Hindu undivided family, or jointly by such member and his relative. [Section 92A(2)(k)] This clause envisages control of the two enterprises by the same Hindu undivided family and includes control by - (i) a member of the Hindu undivided family, or (ii) by a relative of a member of such Hindu undivided family, or (iii) jointly by such member and his relatives. 3.15 Where one enterprise is a firm, association of persons or body of individuals, the other enterprise holds not less than ten per cent interest in such firm, association or body of individuals [Section 92A(2)(l)] This clause seeks to cover non-corporate bodies like partnership firms, association of persons and body of individuals. Sub-clause (v) of clause (31) of section 2 of the Act defines the term ‘person’ to include these entities. In case of partnership firm or association of persons or body of individuals, the other enterprise must hold not less than 10% interest in such firm, association of persons or body of individuals to be regarded as an associated enterprise. 3.16 There exists between the two enterprises, any relationship of mutual interest, as may be prescribed. [Section 92A(2)(m)] This residuary clause enables the CBDT to widen the scope by adding any relationship of mutual interest from time to time that will make any two enterprises as associated enterprises. However, no such relationship of mutual interest has yet been prescribed. 3.17 It requires mention that the term ‘enterprise’ is defined under clause (iii) of section 92F of the Act. Accordingly, “enterprise” means a person (including a permanent establishment of such person) who is, or has been, or is proposed to be, engaged in any activity, relating to the production, storage, supply, distribution, acquisition or control of articles or goods, or know-how, patents, copyrights, trade-marks, licences, franchises or any other business or commercial rights of similar nature, or any data, documentation, drawing or specification relating to any patent, invention, model, design, secret
Querist :
Anonymous
Querist :
Anonymous
(Querist)
03 January 2015
i have seen dis in the book their is an transaction and consists of 50% share does it liable to file form 3 ceb?