Thursday, October 9, 2008

Strategic Management - CA - PCC - May 2008 - Solutions

Question 6
State with reasons which of the following statements is correct/incorrect (Attempt any three):
(a) “Profit may not be a universal objective but business efficiency is definitely an objective common to all business”.
(b) “Industry is a grouping of dissimilar firms”.
(c) “Resistance to change is an impediment in building of strategic supportive corporate culture”.
(d) “Changes of any type are always disquieting, sometimes they may be threatening.”
(e) “Efficiency and effectiveness mean the same in strategic management”. (3 x 2 = 6 Marks)
Answer
(a) CORRECT:
It is generally asserted that business enterprises are primarily motivated by the objective of profit. Organizations pursue multiple objectives rather than a single objective in which business efficiency is a very useful operational objective. Many organizations, particularly charitable and non-government do not aim for making profits. But in general, all organizations aim for optimum utilization of resources and economy in operational costs.
(b) INCORRECT: Industry is a consortium of firms whose products or services have homogenous attributes or are close substitutes such that they compete for the same buyer. For example, all paper manufacturers constitute the paper industry.
(c) CORRECT: Corporate culture refers to a company’s values, beliefs, business principles, traditions, ways of operating, and internal work environment. In an organizational effort to build strategic supportive corporate culture resistance can impede its successful implementation and execution.
(d) INCORRECT: Favourable changes either in the external environment or internal environment are not threatening and/or disquieting. Changes that are initiated by the management to bring improvements in its working are not always disquieting. However, sometimes changes can be threatening especially for old and weak organizations with risk averse and stodgy managers.
(e) INCORRECT: Efficiency pertains to designing and achieving suitable input output ratios of funds, resources, facilities and efforts whereas effectiveness is concerned with the organization’s attainment of goals including that of desired competitive position. While efficiency is essentially introspective, effectiveness highlights the links between the organization and its environment. In general terms, to be effective is to do the right things while to be efficient is to do things rightly.

Question 7
Briefly answer any two of the following:
(a) What is meant by retrenchment strategy?
(b) Growth phase of product life cycle.
(c) Strategic groups. (2 x 2 = 4 Marks)
Answer
(a) Retrenchment strategy implies substantial reduction in the scope of organization’s activity. A business organization can redefine its business by divesting a major product line or market. While retrenching organizations might set objectives below the past level of objectives. It is essentially a defensive strategy adopted as a reaction to operating problems stemming from either internal mismanagement, unanticipated actions by competitors or hostile and unfavourable changes in the business environmental conditions. With a retrenchment strategy the endeavour of management is to raise the level of enterprise achievements focusing on improvements in the functional performance and cutting down operations with negative cash flows.
(b) Product life cycle (PLC) is a concept that describes a product’s four major life stages, i.e., introduction, growth, maturity and decline in terms of sales, profits, customers, competitors and marketing emphasis. As the product finds market acceptance in introduction stage, it gradually enters the ‘Growth’ stage. During growth stage there is an exponential rise of the volumes accepted by the market. Many new entrants join the industry and then fight for market share. In this stage consolidation and concentration begins. Profits increase and mass marketing is done with product differentiation.
(c) Strategic groups are conceptually defined clusters of competitors that share similar strategies and therefore compete more directly with one another than with other firms in the same industry. Strong economic compulsions often constrain these firms from switching one competitive posture to another. Any industry contains only one strategic group when all firms essentially have identical strategies and have comparable market positions. At the other extreme, there are as many strategic groups as there are competitors when each rival pursues a distinctively different competitive approach and occupies a substantially different competitive position in the market place.
Question 8
What do you mean by strategic leadership? What are two approaches to leadership style? To bring in strategic change which three steps may be initiated? (3+3+4 = 10 Marks)
Answer

Strategic leadership is the ability of influencing others to voluntarily make decisions that enhance prospects for the organisation’s long-term success while maintaining short-term financial stability. It includes determining the firm’s strategic direction, aligning the firm’s strategy with its culture, modelling and communicating high ethical standards, and initiating changes in the firm’s strategy, when necessary. Strategic leadership sets the firm’s direction by developing and communicating a vision of future and inspire organization members to move in that direction. Unlike strategic leadership, managerial leadership is generally concerned with the short-term, day-to-day activities.
Two basic approaches to leadership can be transformational leadership style and transactional leadership style.
Transformational leadership style use charisma and enthusiasm to inspire people to exert them for the good of the organization. Transformational leadership style may be appropriate in turbulent environments, in industries at the very start or end of their life-cycles, in poorly performing organizations when there is a need to inspire a company to embrace major changes. Transformational leaders offer excitement, vision, intellectual stimulation and personal satisfaction. They inspire involvement in a mission, giving followers a ‘dream’ or ‘vision’ of a higher calling so as to elicit more dramatic changes in organizational performance.
Such a leadership motivates followers to do more than originally affected to do by stretching their abilities and increasing their self-confidence, and also promote innovation throughout the organization.
Whereas, transactional leadership style focus more on designing systems and controlling the organization’s activities and are more likely to be associated with improving the current situation. Transactional leaders try to build on the existing culture and enhance current practices. Transactional leadership style uses the authority of its office to exchange rewards, such as pay and status. They prefer a more formalized approach to motivation, setting clear goals with explicit rewards or penalties for achievement or non-achievement.
Transactional leadership style may be appropriate in settled environment, in growing or mature industries, and in organizations that are performing well. The style is better suited in persuading people to work efficiently and run operations smoothly.
For initiating strategic change, three steps can be identified as under:
(i) Recognise the need for change: The first step is to diagnose which facets of the present corporate culture are strategy supportive and which are not. This basically means going for environmental scanning involving appraisal of both internal and external capabilities may it be through SWOT analysis and then determine where the lacuna lies and scope for change exists.
(ii) Create a shared vision to manage change: Objectives and vision of both individuals and organization should coincide. There should be no conflict between them. Senior managers need to constantly and consistently communicate the vision not only to inform but also to overcome resistance through proper communication. Strategy implementers have to convince all those concerned that the change in business culture is not superficial or cosmetic. The actions taken have to be credible, highly visible and unmistakably indicative of management’s seriousness to new strategic initiatives and associated changes.
(iii) Institutionalise the change: This is basically an action stage which requires implementation of changed strategy. Creating and sustaining a different attitude towards change is essential to ensure that the firm does not slip back into old ways of thinking or doing things. Capacity for self-renewal should be a fundamental anchor of the new culture of the firm. Besides, change process must be regularly monitored and reviewed to analyse the after-effects of change. Any discrepancy or deviation should be brought to the notice of persons concerned so that the necessary corrective actions are taken. It takes time for the changed culture to prevail.

Question 9
Under what conditions would you recommend the use of Turnaround strategy in an organization? What could be a suitable work plan for this? (5+5 = 10 Marks)
Answer
Rising competition, business cycles and economic volatility have created a climate where no business can take viability for granted. Turnaround strategy is a highly targeted effort to return an organization to profitability and increase positive cash flows to a sufficient level.
Organizations those have faced a significant crisis that has negatively affected operations requires turnaround strategy. Turnaround strategy is used when both threats and weaknesses adversely affect the health of an organization so much that its basic survival is a question.
When organization is facing both internal and external pressures making things difficult then it has to find something which is entirely new, innovative and different. Being organization’s first objective is to survive and then grow in the market; turnaround strategy is used when organization’s survival is under threat. Once turnaround is successful the organization may turn to focus on growth.
Conditions for turnaround strategies
When firms are losing their grips over market, profits due to several internal and external factors, and if they have to survive under the competitive environment they have to identify danger signals as early as possible and undertake rectification steps immediately. These conditions may be, inter alia cash flow problems, lower profit margins, high employee turnover and decline in market share, capacity underutilization, low morale of employees, recessionary conditions, mismanagement, raw material supply problems and so on.
Action plan for turnaround strategy
Stage One – Assessment of current problems: The first step is to assess the current problems and get to the root causes and the extent of damage the problem has caused. Once the problems are identified, the resources should be focused toward those areas essential to efficiently work on correcting and repairing any immediate issues.
Stage Two – Analyze the situation and develop a strategic plan: Before you make any major changes; determine the chances of the business’s survival. Identify appropriate strategies and develop a preliminary action plan. For this one should look for the viable core businesses, adequate bridge financing and available organizational resources. Analyze the strengths and weaknesses in the areas of competitive position. Once major problems and opportunities are identified, develop a strategic plan with specific goals and detailed functional actions.
Stage Three – Implementing an emergency action plan: If the organization is in a critical stage, an appropriate action plan must be developed to stop the bleeding and enable the organization to survive. The plan typically includes human resource, financial, marketing and operations actions to restructure debts, improve working capital, reduce costs, improve budgeting practices, prune product lines and accelerate high potential products. A positive operating cash flow must be established as quickly as possible and enough funds to implement the turnaround strategies must be raised.
Stage Four – Restructuring the business: The financial state of the organization’s core business is particularly important. If the core business is irreparably damaged, then the outlook for the entire organization may be bleak. Prepare cash forecasts, analyze assets and debts, review profits and analyze other key financial functions to position the organization for rapid improvement.
During the turnaround, the “product mix” may be changed, requiring the organization to do some repositioning. Core products neglected over time may require immediate attention to remain competitive. Some facilities might be closed; the organization may even withdraw from certain markets to make organization leaner or target its products toward a different niche.
The ‘people mix” is another important ingredient in the organization’s competitive effectiveness. Reward and compensation systems that encourage dedication and creativity encourage employees to think profits and return on investments.
Stage Five – Returning to normal: In the final stage of turnaround strategy process, the organization should begin to show signs of profitability, return on investments and enhancing economic value-added. Emphasis is placed on a number of strategic efforts such as carefully adding new products and improving customer service, creating alliances with other organizations, increasing the market share, etc.
Question 10
Read the following case and answer the question given at the end:
In 2006-07 PTC Food division decided to enter the fast growing (20-30% annually) snacks segment, an altogether new to it. It had only one national competitor- Trepsico’s Trito. After a year its wafer snack brand – Ringo, fetched 20% market share across the country. Ringo’s introduction was coincided with the cricket world Cup. The wafer snacks market is estimated to be around Rs. 250 crores.
The company could take the advantage of its existing distributing network and also source potatoes from farmers easily. Before the PTC could enter the market a cross- functional team made a customer survey through a marketing research group in 14 cities of the country to know about the snacks of eating habits of people. The result showed that the customers within
the age-group 15-24 years were the most promising for the product as they were quite enthusiastic about experimenting new snack taste. The company reported to its chefs and the chefs came out with 16 flavours with varying tastes suiting to the targeted age-group. The company decided to target the youngsters as primary target on the assumption that once they are lured in, it was easier to reach the whole family.
Advertising in this category was extremely crowded. Every week two-three local products in new names were launched, sometimes with similar names. To break through this clutter the company decided to bank upon humour appeal.
The Industry sources reveal that PTC spent about Rs. 50 crores on advertisement and used all possible media – print and electronic, both including the creation of its own website, Ringoringoyoungo.com with offers of online games, contest etc. Mobile phone tone downloading was also planned which proved very effective among teenagers. The site was advertised on all dotcom networks. Em TV, Shine TV, Bee TV and other important channels were also used for its advertisement alongwith FM radio channels in about 60 cities with large hoardings at strategic places.
Analysts believe that Ringo’s success story owes a lot to PTC’s widespread distribution channels and aggressive advertisements. Humour appeal was a big success. The ‘Ringo’ was made visible by painting the Railways bogies passing across the States. It has also been successful to induce Lovely Brothers’ Future Group to replace
Trito in their Big- Bazaar and chain of food Bazaars.PTC is paying 4% higher margin than Trepsico to Future group and other retailers.
Ringo to giving Trepsico a run for its money. Trito’s share has already been reduced considerably. Retail tie-ups, regional flavours, regional humour appeals have helped PTC. But PTC still wants a bigger share in the market and in foreign markets also, if possible.

Questions 10
(a) What is SWOT Analysis? (4 Marks)
(b) What are the strength of PTC ? (4 Marks)
(c) What are the weaknesses of PTC for entering into the branded snacks market? (4 Marks)
(d) What kind of marketing strategy was formulated and implemented for Ringo? (8 Marks)
What else need to be done by Ringo so as to enlarge its market?
Answer
(a) SWOT analysis is a tool used by organizations for evolving strategic options for the future. The term SWOT refers to the analysis of strength, weaknesses, opportunities and threats facing a company. Strengths and weaknesses are identified in the internal environment, whereas opportunities and threats are located in the external environment.
Strength: Strength is an inherent capability of the organization which it can use to gain strategic advantage over its competitor.
Weakness: A weakness is an inherent limitation or constraint of the organisation which creates strategic disadvantage to it.
Opportunity: An opportunity is a favourable condition in the external environment which enables it to strengthen its position.
Threat: An unfavourable condition in the external environment which causes a risk for, or damage to the organisation’s position.
(b) The strengths of PTC are:
(a) PTC has an existing distribution network that is used to its advantage.
(b) The company has strengths in the area of procurement of potato, raw material to make the wafers.
(c) Financially the company is very strong as they are spending 50 crores on advertising in a market worth 250 crores.
(d) The company has diverse flavours of wafers in its portfolio that are according to the different tastes of the target group.
(e) PTC has done good bargaining deals with food bazaars and food chains.
(f) The cross-functional team of PTC made a virtuous marketing research.

(c) Weaknesses are inherent limiting factors of an organization. They are internal by nature to the working of the organization. The case study does not clearly mention the points that can conclusively be weaknesses of the company. However, a deeper analysis will bring out that the company is totally new to the snacks business and is highly aggressive in its approach.
The experience in the food business may not result in the required competencies in the business of chips. Seemingly, the company has also gone overboard in its advertisement expenditure. It may be that the margins justify expenditure of 20% in value of the total market size of Rs. 250 Crores. Otherwise, the company may come into financial difficulties. Creating market may also be difficult as already there are many players who are trying to get attention of existing and new customers.
The business is already cluttered with regional and national players and is highly competitive. Further, the company is overly relying on young segment of the population.
This segment can be highly receptive to the new products and the company may lose them easily to the competitors.
(d) Formulation and Implementation of marketing strategy was as under:
The Product: To launch its snack product, an easy to remember brand name RINGO was decided upon. To understand the snacking habits of Indian customer a large survey was undertaken. Chefs on the basis of the market survey came out with sixteen flavours. The target group was identified as youngsters of 15 – 24 years.
The Promotion: The company spent about Rs.50 crore on marketing communication. Different Media including print, electronic and outdoor advertising were put to use. Appeal used was that of humour. A huge visibility through point-of-sale was also arranged. Promotion policy was very aggressive considering that 50 crores were spent in a market of 250 crores.
The Place: Getting Trito replaced by Ringo in Big-Bazaar and food Bazaar chain of stores was a great success for PTC. To motivate a higher margin than the Trepsico was provided for. PTC even otherwise has extensive distribution network.
A perfect blend of marketing mix has made it possible to go so far and so early. Since the marketing strategy has remained successful, they need to carry it forward. However, they also need to keep a restrain on promotion as spending huge amount of money on marketing for a share in the market of 250 crores seems to be too high. Such an expensive campaign is only suitable if the company is able to increase the market size itself and not merely its own in the existing market share. To achieve this it requires competencies. Otherwise, it might be difficult to sustain high expenditure over a very long period of time.

Wednesday, September 17, 2008

CA Final - MICS - MAY 2008 - Question Paper - Solved

Question No. 1 is Compulsory. Answer any four questions from the remaining six questions (Answers in ICAI MICS Study Material Page No are given at the end of each question)

1(a) Discuss various factors that render manual audit method ineffective in IS Audit? - 17.2
1(b) Briefly explain the components of an analysis and design work bench? - 19.9
1(c) Briefly discuss any five database control features? - 13.8; 13.9
1(d) Discuss briefly the powers of Central Government under Section 87 to make rules in respect of Information technology Act, 2000? - 16.19 (5 x 4 = 20 Marks)

2(a) What is Work-in-Process Control System? Describe briefly the system interfaces, files and inputs and reports involved in this system? (10) - 11.40
2(b) Describe the main prerequisites of a MIS which makes it an effective tool. Explain the major constraints in operating? (10) - 3.6

3(a) Discuss in detail, how the investigation of present system is conducted by the system analyst? (10) - 7.25; 7.26
3(b) Briefly explain various kinds of controls that can be incorporated in the system to make frauds difficult to perpetrate? (10) - 15.13

4(a) Briefly explain the characteristics and features of an Enterprise Resource Planning? (5) - 12.5
4(b) Briefly discuss four basic components of Decision Support System? (5) - 5.5
4(c) Define the following computer fraud and abuse technique: (10)
o War dialing - 15.11
o Scavenging - 15.10
o Cracking - 15.9
o Internet Terrorism - 15.9
o Masquerading - 15.10

5(a) Discuss various issues that should be considered while designing system input? (5) - 8.14
5(b) Briefly explain the risks associated with client/server model? (5) - 6.9
5(c) “Personnel Information System deals with flow of information relating to people” Explain? (5) - 4.24
5(d) Briefly describe various steps involved in system testing? (5) - 9.21

6(a) Briefly explain the best approach to implement information security policy? (5) - 18.12
6(b) What is the purpose of System Evaluation? How is it performed? (5) - 10.9
6(c) Discuss, how a controlled source program library environment can help to deter unauthorized changes to program? (5) - 13.20
6(d) Briefly explain the role of Information Security Administrator? (5) - 18.20

Question 7: Write short notes on the following: (4 x 5 = 20 Marks)
7(a)
Closed and Open Systems - 1.5
7(b) Programmed Decisions - 3.13
7(c) Program Documentation - 9.16
7(d) Firewalls - 13.30

Tuesday, September 16, 2008

Share Transactions - Business Income or Capital Gains

In relation to share transactions, the question that frequently comes up, while determining tax liability on such transactions, is as to whether the shares in question were held as stock-in-trade or as an investment. The taxpayers need clear-cut, well-structured, specific instructions for investing in the capital market.

Tax liability on share transactions
1. Transfer [as defined under section 2(47)] of a capital asset [as defined under section 2(14)] resulting in capital gain may either be of long-term [as defined under section 2(29B)] or short-term [as defined under section 2(42B)] of the Income-tax Act, 1961 (‘the Act’).
The period of holding is the criterion for determining its nature : it is long-term capital gain, if asset has been held for more than twelve months prior to transaction and short-term capital gain, when it is held for a period less than twelve months.
Shares held as capital asset by the investor will be chargeable under the head ‘Capital gains’.
The tax liability in respect of long-term capital gains of shares, securities and units is elaborated in section 112 and such gain, if covered by securities transaction tax, is exempt under section 10(38) of the Act.
The taxability of short-term capital gain, as per section 111A of the Act, is at a flat rate of 20 per cent (as increased by the appropriate cess and additional surcharge).
Income from transfer of stock-in-trade by a trader is treated as business income under the head ‘Profits and gains of business or profession’, taxable at the rate of 30 per cent in addition to education cess and surcharge.

Debatable issue
2. Tax treatment of share transactions has become debatable—whether the transaction involves transfer of stock-in-trade or it is from transfer of shares held as investment, resulting in business income or capital gain, respectively.

Present Scenario
3. The tax authorities have set certain parameters to distinguish between stock-in trade and investment vide CBDT Instruction No. 1827, dated August 31, 1989 [F.No 181/1/89-IT(AI)]. Consequent upon the reduction of tax on short-term capital gain and total exemption of long-term capital gain by the Finance (No. 2) Act, 2004, with effect from April 1, 2005, some of the assessees are of the view that the tax authority treats their transaction as business income when the number of transactions is large in number. It could be attributable to lack of clarity and discretionary instruction. The supplementary instruction draft dated May 16, 2006 (F.No.149/287/2005-TPL), circulated by the CBDT fuelled further confusion in the minds of trader/investor, as the proposed instruction listed fifteen parameters, viz. :—
(i) Whether the purchase and sale of securities was allied to his usual trade or business/was incidental to it or was an occasional independent activity.
(ii) Whether the purchase is made solely with the intention of resale at a profit or for long-term appreciation and/or for earning dividends and interest.
(iii) Whether scale of activity is substantial.
(iv) Whether transactions were entered into continuously and regularly during the assessment year.
(v) Whether purchases are made out of own funds or borrowings.
(vi) The stated objects in the Memorandum and Articles of Association in the case of a corporate assessee.
(vii) Typical holding period for securities bought and sold.
(viii) Ratio of sales to purchases and holding.
(ix) The time devoted to the activity and the extent to which it is the means of livelihood.
(x) The characterization of securities in the books of account and in balance sheet as stock-in-trade or investments.
(xi) Whether the securities purchased or sold are listed or unlisted.
(xii) Whether investment is in sister/related concerns or independent companies.
(xiii) Whether transaction is by promoters of the company.
(xiv) Total number of stocks dealt in.
(xv) Whether money has been paid or received or whether these are only book entries.
The draft instructions also advise that no single criterion of the above fifteen items would be decisive and the total effect of all factors should be considered to determine the exact status of the activity.
This led to severe market reaction and the Finance Minister, Mr. P. Chidambaram was compelled to assure the investors not to panic, as the instructions would be finalized taking into view the concerns of the taxpayers.

Judicial cases
4. In the landmark judgment of G. Venkataswami Naidu & Co. v. CIT [1959] 35 ITR 594, the Supreme Court observed that the presence of various factors is responsible for the inference whether transaction is in the nature of trade or not. It is not a matter of merely counting the number of facts and circumstances; what is important to consider is their distinctive character. In each case, it is the total effect of all relevant factors and circumstances that determines the character of the transaction.
If the purchase of share is solely and exclusively with the intention of resale at a profit, with no intention of holding or otherwise enjoying it or using it, then the nature would definitely be that of trade, concluded the Supreme Court.
This was further upheld in H. Mohmed & Co. v. CIT [1977] 107 ITR 637, where the Gujarat High Court observed that a stock-in-trade is something in which a trader or a businessman deals, whereas his capital asset is something with which he deals. Thus, the test of intention is also a very important factor. The High Court also held that selling outright in the course of the business activity and deriving income from exploitation of one’s own assets is the distinctive factor.
The Supreme Court, in Sardar Indra Singh & Sons Ltd. v. CIT [1953] 24 ITR 415, held that surplus resulting from sale of shares and securities constitutes business income. The High Court, in another important case, elaborated that any income arising from the sale of securities, closely connected with the main business, is business income.
Some of the other important cases are : State Bank of Hyderabad v. CIT [1985] 151 ITR 703/20 Taxman 123 (AP), Karam Chand Thapar & Bros. (P.) Ltd. v. CIT [1971] 82 ITR 899 (SC), CIT v. Associated Industrial Development Co. (P.) Ltd. [1971] 82 ITR 586 (SC) and AR.N. Ramaswami Chettiar v. CIT [1963] 48 ITR 771 (Mad.).
In a recent case the appellate Tribunal has held that volume or magnitude of transactions should not be the basis of considering such income as business income and that short-term capital gains, even if generated through a large number of transactions, would attract 10 per cent tax. The ITAT’s order, that the money an investor makes by exiting a stock within a year of purchase will be treated as ‘capital gains’ and not as ‘business income’, assumes significance as the department, normally, treats short-term capital gains as business income, if such gains are generated through a large number of transactions (i.e., sale and purchase of shares).
The above order would continue to be a guideline for the tax authorities and investors, until further notification from the Government in this regard.

Conclusion
5. India is poised for charting a high growth trajectory. The economy is buoyant. There is need for investors’ support to realize the dream. The role of administration is at the centre stage to provide fully transparent simple laws, guidelines for building confidence amongst the investors.
It is prudent and pragmatic to accept that investors operate in the stock market for gain with the element of high risk. There seems no scope for ‘to be determined on the facts and circumstances of the case’ or for (mis) interpretation by the tax authority and consultants, leaving room for corruption and litigation. The taxpayers need clear-cut, well-structured, specific instructions for investing in the capital market.

Tuesday, August 26, 2008

Tax Implications of a FAMILY ARRANGEMENT

FAMILY ARRANGEMENT
1. Succinct account of the nature of family arrangements and the conditions for their validity is found in Halsbury’s Laws of England, Third Edn., Vol. 17 at pp. 215-16: ‘A family arrangement’ is an agreement between members of the same family, intended to be generally and reasonably for the benefit of the family either by compromising doubtful or disputed rights or by preserving the family property or the peace and security of the family by avoiding litigation or by saving its honour. The agreement may be implied from a long course of dealing, but it is more usual to embody or to effectuate the agreement in a deed to which the term ‘family arrangement’ applies.
Had there been no family disputes, there would have been no great epics like Ramayana & Mahabharata. By nature, human beings unite and part. Be it Reliance or Mafatlal, split is inevitable.
Had there been no family disputes, there would have been no great epics like Ramayana & Mahabharata. By nature, human beings unite and part. Be it Reliance or Mafatlal, split is inevitable.
ESTOPPEL
2. The Hon’ble Chief Justice, C.J. Chagla, while dealing with the real nature of transaction in CIT v. Kolhia Hirdagarh Co. Ltd. [1949] 17 ITR 545 (Bom.), has deliberated as under :
“In taxation matters it is not necessary to construe documents from their purely legal aspect. It is open to us not merely to look at the documents themselves, but also to consider the surrounding circumstances so as to arrive at a conclusion as to what was the real nature of the transaction from the point of view of two businessmen who were carrying out this transaction. In all taxation matters more emphasis must be placed upon the business aspect of the transaction rather than on the purely legal and technical aspect.”
FAMILY ARRANGEMENT AND CAPITAL GAINS
3. In the case of CIT v. A.L. Ramanathan [2000] 245 ITR 494/[2003] 128 Taxman 87 (Mad.), the assessee was an HUF. The Karta of this joint family was one R, the son of A. There was a partition in the joint family of which A was the Karta and his three sons, L, P and R, were the other coparceners. Disputes arose in the family and an interim agreement was entered into on August 19, 1980, under which the assessee’s side was to receive a certain sum of money and certain lands and in return they were required to transfer half of their shareholding in certain companies. On August 20, 1981, a final agreement was drawn up and there was again a realignment of family properties. The assessee claimed that the agreements dated August 19, 1980, and June 20, 1981, were in pursuance of a family arrangement and, hence, the capital gains from these transactions could not be assessed to capital gains tax. The ITO took the view that the transactions amounted to transfer of title in respect of which capital gains were exigible to tax. The Tribunal came to the conclusion that the transaction was a family arrangement and did not involve any transfer of title of properties. On a reference, it was held that the dispute arose in the family and the family arrangement was arrived at in consultation with the Panchayatdars and, accordingly, realignment of interest in several properties resulted. The family arrangement was arrived at in order to avoid continuous friction and to maintain peace among the family members. The family arrangement was governed by the principles which were not applicable to dealings between strangers. So, such realignment of interest by way of effecting family arrangements among the family members would not amount to transfer. The Tribunal found that the family arrangement was a bona fide one inasmuch as it was made voluntarily and was not induced by any fraud or collusion and the conduct of the parties was consistent with the bona fide family arrangement, particularly when it was arrived at in the presence of Panchayatdars. The family arrangement involved in the above case did not amount to transfer. Therefore, no capital gains arose.
Members of a joint Hindu family may, to maintain peace or to bring about harmony in the family, enter into such a family arrangement.
HARMONY
4. In the case of Maturi Pullaiah v. Maturi Narasimham AIR 1966 SC 1836, the Apex Court held that although conflict of legal claims in praesenti or in future is generally a condition for the validity of family arrangement, it is not necessarily so. Even bona fide disputes, present or possible, which may not involve legal claims, would be sufficient. Members of a joint Hindu family may, to maintain peace or to bring about harmony in the family, enter into such a family arrangement. If such an arrangement is entered into bona fide and the terms thereof are fair in the circumstances of a particular case, the Courts will more readily give assent to such an arrangement than avoid it. In England also, the Courts are averse to disturb family arrangements but try to sustain them on broadest considerations of the family peace and security. The family arrangement will need the registration only if it creates any interest in immovable property in praesenti in favour of the parties mentioned therein. In case, however, no such interest is created, the document will be valid despite its non-registration and will not be hit by section 17 of the Registration Act.
ANTECEDENT TITLE
5. The Hon’ble Supreme Court in the case of S.K. Sattar S.K. Mohd. Choudhari v. Gundappa Ambadas Bukate [1996] 6 SCC 373 has held in respect of family arrangement that section 5 contemplates transfer of property by a person who has a title in the said property to another person who has no title. A family arrangement, on the contrary, is a transaction between the members of the same family for the benefit of the family so as to preserve the family property, the peace and security of the family, avoidance of family dispute and litigation and also for saving the honour of the family. Such an arrangement is based on the assumption that there was an antecedent title in the parties and the agreement acknowledges and defines what that title is. It is for this reason that a family arrangement by which each party takes a share in the property has been held as not amounting to a conveyance of property, from a person who has title to it to a person who has no title.
The term ‘family’ has to be understood in a wider sense so as to include within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title.
Recently, in the case of Kay Arr Enterprises v. Jt. CIT [2005] 97 ITD 291 (Chennai), it was held that the expression ‘family’ has a very wide connotation and it is not that the word ‘family’ in the context of a family arrangement is not to be understood in a narrow sense of being a group of persons who are recognized in law as having a right of succession or having a claim to a share in the property in dispute. If it is settled in between near relations, then the settlement of such a dispute can be considered as a family arrangement. A compromise or family arrangement is based on the assumption that there is an antecedent title of some sort in the parties and the agreement acknowledges and defines what that title is, each party relinquishing all claims to property other than that falling to his share and recognizing the right of the others, as they had previously asserted it to the portions allotted to them, respectively. These observations do not mean that some title must exist as a fact in the persons entering into a family arrangement. They simply mean that it is to be assumed that the parties to the arrangement had an antecedent title. It is also to be noted that a family arrangement by which the property is equitably divided between the various contenders so as to achieve an equal distribution of wealth instead of concentrating the same in the hands of a few is undoubtedly a milestone in the administration of social justice. That is why the term ‘family’ has to be understood in a wider sense so as to include within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title, a semblance of a claim or even if they have a spes successionis so that future disputes are sealed for ever and the family instead of fighting claims inter se and wasting time, money and energy on such fruitless or futile litigation is able to devote its attention to more constructive work in the larger interest of the country. The Courts have, therefore, leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. Where the Courts find that the family arrangement suffers from a legal lacuna or a formal defect, the rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits.
ADMISSION IS NOT CONCLUSIVE
6. In the case of Kay Arr Enterprises (supra), it was held that as regards the admission of the transaction in question as a transfer and, accordingly, payment of capital gains tax, it is well-settled in law that admission is best evidence of a point in issue and though not conclusive, is decisive of the matter unless successfully withdrawn or proved erroneous. An admission is an extremely important piece of evidence but it cannot be said that it is conclusive and it is always open to the person who made the admission to show that it is incorrect. In the present case, the admission was not made by the assessee; rather the other party had accepted the transaction as a transfer and, accordingly, paid capital gains tax. That would not debar the assessee from contesting the issue from the facts and circumstances of the case. It was clear that this was an admission of other party, which would not bind the present assessees. In view of the above discussion and after considering the case laws of the Apex Court and jurisdictional High Court, it was held that the rearrangement of shareholdings in the companies to avoid possible litigation among family members seemed to be a prudent arrangement which was necessary to control the companies effectively by the major shareholders to produce better prospects and active supervision. Accordingly, the same could not be held as a transfer of shares, which was exigible to capital gains tax. No doubt the family arrangement was not reduced in writing, there was no need to reduce the family arrangement in writing compulsorily and it did not need to be registered in view of the ratio of the decision of the Hon’ble Supreme Court in Kale (supra). From the above, it was clear that the two families were part of bigger families, which was very clear from the family tree. Accordingly, it was held that those transactions were not exigible to capital gains tax.
A family arrangement by which the property is equitably divided between the various contenders so as to achieve an equal distribution of wealth instead of concentrating the same in the hands of a few is undoubtedly a milestone in the administration of social justice.
RESOLUTION OF DISPUTES
7. The Hon’ble Supreme Court in the case of Kale v. Dy. Director of Consolidation AIR 1976 SC 807, has held as under :
“(a) 9. Before dealing with the respective contentions put forward by the parties, we would like to discuss in general the effect and value of family arrangements entered into between the parties with a view to resolving disputes once for all. By virtue of a family settlement or arrangement, members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once for all in order to buy peace of mind and bring about complete harmony and goodwill in the family. The family arrangements are governed by a special equity peculiar to themselves and would be enforced if honestly made. In this connection, Kerr in his valuable treatise ‘Kerr on Fraud’, at p. 364, makes the following pertinent observations regarding the nature of the family which may be extracted thus :
‘The principles which apply to the case of ordinary compromise between strangers, do not equally apply to the case of compromises in the nature of family arrangements. Family arrangements are governed by a special equity peculiar to themselves, and will be enforced if honestly made, although they have not been meant as a compromise, but have proceeded from an error of all parties, originating in mistake or ignorance of fact as to what their rights actually are, or of the points on which their rights actually depend.’
The object of the arrangement is to protect the family from long drawn litigation or perpetual strifes, which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family. Today when we are striving to build up an egalitarian society and are trying for a complete reconstruction of the society, to maintain and uphold the unity and homogeneity of the family which ultimately results in the unification of the society and, therefore, of the entire country, is the prime need of the hour. A family arrangement by which the property is equitably divided between the various contenders so as to achieve an equal distribution of wealth instead of concentrating the same in the hands of a few is undoubtedly a milestone in the administration of social justice. . . .
The law in England on this point is almost the same. In Halsbury’s Laws of England, Vol. 17, Third Edn., at pp. 215-216, apt observations regarding the essentials of the family settlement and the principles governing the existence of the same are made:”
ESSENTIALS OF A FAMILY ARRANGEMENT TO MAKE IT BINDING
8. To put the binding effect and the essentials of a family settlement in a concretized form, the matter may be reduced into the form of the following propositions :
Courts are averse to disturb family arrangement but would try to sustain them on broadest considerations of the family peace and security.
(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;
(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;
(3) The family arrangements may be even oral in which case no registration is necessary;
(4) It is well-settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the Court for making necessary mutation. In such a case, the memorandum itself does not create or extinguish any rights in immovable properties and, therefore, does not fall within the mischief of section 17(2) [(sic) section 17(1)(b)] of the Registration Act and is, therefore, not compulsorily registrable;
(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property, which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the Courts will find no difficulty in giving assent to the same;
(6) Even if bona fide disputes, present or possible, which may not involve legal claims, are settled by a bona fide family arrangement which is fair and equitable, the family arrangement is final and binding on the parties to the settlement.
The Apex Court relying on the decision in the case of S. Shanmugam Pillai v. K. Shanmugam Pillai AIR 1972 SC 2069 after an exhaustive consideration of the authorities on the subject, observed as under :
Equitable principles such as estoppel, election, family settlement, etc., are not mere technical rules of evidence. They have an important purpose to serve in the administration of justice. The ultimate aim of the law is to secure justice. In the recent times in order to render justice between the parties, the Courts have been liberally relying on those principles. We would hesitate to narrow down their scope.
CONCLUSION
9. The principles, the Courts should bear in mind in appreciating the scope of such family arrangement are stated thus :
Family arrangements are governed by principles, which are not applicable to dealings between strangers. The Court, when deciding the rights of parties under family arrangements or claims to upset such arrangements, considers what in the broadest view of the matter is most in the interest of families, and has regard to considerations which, in dealing with transactions between persons not members of the same family, would not be taken into account. Matters which would be fatal to the validity of similar transactions between strangers are not objections to the binding effect of family arrangements. This passage indicates that even in England, Courts are averse to disturb family arrangement but would try to sustain them on broadest considerations of the family peace and security. This concept of a family arrangement, has been accepted by Indian Courts but has been adapted to suit the family set up of this country which is different in many respects from that obtaining in England. As in England, so in India, Courts have made every attempt to sustain a family arrangement rather than to avoid it, having regard to the f broadest considerations of family peace and security. Rearrangement of shareholdings in the companies to avoid possible litigation among family members and to control companies effectively by major shareholders is not a transfer exigible to capital gains tax.

Friday, August 22, 2008

CA Final - MICS - NOV 2008 - Model Paper 2

Question No. 1 is Compulsory
Answer any four questions from the rest

Q.No.1:
(a) How to control against viruses and other destructive programs? (6)
(b) What is Total Cost of Ownership? (4)
(c) What is the purpose of system evaluation? How is it performed? (4)
(d) What are the limitations of Management Information System? (6)

Q.No.2:
(a) Briefly describe disk imaging and analysis technique? (7)
(b) Explain the following definitions with respect to Information technology Act, 2000? (10)
· Asymmetric Crypto System
· Digital Signature
· Electronic Record
· Key Pair
· Secure System
(c) What is the objective of a transaction log? (3)

Q.No.3:
(a) Distinguish between logical design and physical design? (8)
(b) What is system component matrix? (4)
(c) Distinguish between Top Down and Bottom up Approach of system development? (8)

Q.No.4:
(a) Define the term system stress and system change? (4)
(b) What are the effects of using computers for MIS? (8)
(c) How systems approach can be used to solve problems? (8)

Q.No.5:
(a) What are the four basic components of a DSS? Explain them? (8)
(b) What are the characteristic of a client-server technology? (10)
(c) Give two reasons why accountants should be involved in system development work? (2)

Q.No.6:
(a) What are the guidelines to make form design easy to fill? (5)
(b) Draw the system flowchart of a typical accounting information system? (5)
(c) What are the features of an ERP? (5)
(d) Distinguish discretionary access control policy and mandatory access control policy? (5)

Q.No.7:
Write short notes on:
(a) Data Encryption
(b) Program Version Number
(c) Disaster Recovery Plan
(d) Transcription errors
(e) Control Laptop Computers (4 X 5 = 20)

CA Final - MICS - NOV 2008 - Model Paper 1

Question No. 1 is Compulsory
Answer any four questions from the rest

Q.No.1:
(a) What are the objectives of information security? (2)
(b) How CASE tools evolved? (2)
(c) What do you understand by the Concurrent Audit technique? Discuss five commonly used concurrent audit techniques? (14)
(d) Define “Hash Function” as per section 3 of Information Technology Act? (2)

Q.No.2:
(a) Explain various categories of Information Systems? (8)
(b) What are the benefits of Client/ Server Computing? (6)
(c) What is data dictionary? What are its uses? (6)

Q.No.3:
(a) What is a Context Diagram? (3)
(b) What is Windowing Capability? (3)
(c) What is a System Manual? (3)
(d) What is a Check Digit? (3)
(e) What is Business Process Reengineering? (3)
(f) What is One-Time Password? (2)

Q.No.4:
(a) What are the components of a Client Server Architecture? (8)
(b) Explain briefly the various methods to control risks from subversive threats? (12)

Q.No.5:
(a) “Prevention is better than cure”. What are the various methods to prevent computer frauds? (10)
(b) Explain E-Governance with relevance to section 6 and 8 of the Information Technology Act? (8)
(c) What is BS7799? (2)

Q.No.6:
(a) What are the techniques used to preserve audit trails in processing a Computer Based Information System? (6)
(b) How to evaluate the life after implementation of ERP? (6)
(c) Distinguish Program Flowchart, System Flowchart, Data Flow Diagram, Pseudo Code & Structure Chart? (6)
(d) What is the meaning of the term “program debugging”? (2)

Q.No.7:
Write Short Notes on any four: (4 x 5 = 20 Marks)
(a) Holistic Protection
(b) File Interrogation
(c) Server-Centric Model
(d) Non-programmed Decisions
(e) Preventing Systems Entropy

Wednesday, August 13, 2008

Forensic Accounting - PROFESSION OF THE NEW CENTURY

The need at present to tackle economic/accounting frauds is greater than ever, all around the globe. Recently, the world has had a spate of white collared crimes such as bankruptcy, securities fraud, bribery, credit card frauds, bribes in loan taking. For solving such white collared crimes, one should have a fair knowledge of accounting concepts, analytical skills and investigative abilities. The career as a forensic accountant is one of the most secure jobs and currently in great demand. Explained here the potentials and working of this new emerging profession.


1. Introduction
Forensic accounting has been in practice since long (Kautiliya noted the occupational fraud scheme in his thesis, ‘Kautiliya Arthashastra’) but the need has never been as strong as in the present days. Recently, the world has experienced various white collared crimes such as bankruptcy, securities fraud, bribery, credit card fraud, bribes in loan taking, etc. It is equally true that for solving such white collared crimes, one should have a fair knowledge of accounting concepts, analytical skills and investigative abilities. The demand for such a different set of skills has given birth to a new branch of accounting, i.e., forensic accounting. The corporate scandals of Enron, world.com, and especially the tragedy of September 9, 2001, have made the role of forensic accounting very important.


2. Meaning of forensic accounting
Forensic accounting is broadly a mix of accounting, finance, law, computerisation, ethics and criminology with special focus on prevention and detection of frauds. Basically, forensic accounting covers three broad areas, viz., investigative accounting, litigation support and forensic audit.
2.1 Investigative accounting - It is the art of determining whether criminal matters such as employee theft, securities fraud, insurance fraud, identity fraud, etc., have occurred or not. Investigative accounting covers not only criminal matters but also civil matters, e.g., a forensic accountant has to search for hidden assets in divorce cases.
Economic accounting frauds require a different set of skills from those pre-sently available and the need for such a different set of skills has given birth to a new branch of accounting, i.e., forensic accounting. Forensic accounting is broadly a mix of accounting, finance, law, computerisation, ethics and criminology with special focus on prevention and detection of frauds.
2.2 Litigation support - Litigation support provides assistance of an accounting nature in a matter relating to
Documents necessary to support or refute a claim.
Review of relevant documentation to form an initial assessment of the case.
Formulation of questions to be asked regarding the financial evidence.
Identification of areas of loss.
Attendance at the examination for discovery to review the testimony.
Review of the opposing experts report
Reporting on both strengths and weaknesses of positions taken.
Assistance in settlement, discussions and negotiations.
Attendance at trial to hear the testimony of the opposing expert.
Provide assistance with cross-examination.
2.3 Forensic audit - It is an extended version of investigative accounting in search of and in prevention of financial frauds by finding the inadequacies and shortcomings of system, and by plugging the loopholes to prevent the wrong doers from taking advantage.
Thus, forensic accounting provides an accounting analysis that is suitable to the Court, which will form the basis for discussions, debate and ultimately dispute resolutions.


3. Functional areas of forensic accounting
Generally, a forensic accountant has to manage various types of assignments such as
Criminal investigations
Business investigations
Employee fraud investigations
Business losses/business trade disputes
Professional negligence
Personal insurance claims
Motor vehicle accidents
Business interruption/other types of insurance claims
Intellectual property rights
Matrimonial disputes
Restructuring of auditing procedures
In order to perform all these assignments, a forensic accountant has to pass through various stages (as presented in Chart I). It is very important to mention here that forensic accountants look not only at the numbers, but they look beyond and behind the numbers. That is why a forensic accountant must have some special qualities to perform these assignments as given below :
Curiosity, persistence, creativity, discretion, confidence and sound professional judgment.
Suspicious mind that the document he is looking at may not be what it purports to be.
Ability to pay attention to all alternatives, as well as, to the smallest details while analyzing the data.
- Proficiency in computer applications besides the basic accounting skills of a good audit.
- Familiarity with legal concepts and procedures.
- Ability to listen effectively as well as communicate clearly his findings and reports.
- Last but not the least, a forensic accountant must have sixth sense, which can be used to present the accounting data in such a way which can be admissible in the Court of law.
Forensic accountants look not only at the numbers, but they look beyond and behind the numbers.


Steps to fulfil assignments under forensic accounting
Meeting with the client
Performing the conflict check
Performing an initial investigation so that detailed plan can be formulated
Developing an action plan
Performing the analysis
Preparing the report. For this purpose, a forensic accountant has to :—
Calculate economic damages
Summarize a large number of transactions
Perform PV calculations, regression analysis, and other tests
Utilize appropriate discount rates
Perform the tracing of assets


4. Career as a forensic accountant in practice
The US News and World Report, 2000 stated that the future for the forensic accountants is very bright and it is designated as “one of the eight most secure careers in USA”. Similarly, Smart Money Magazine May 16, 2002 ranked it as ‘one of the ten hottest jobs’ for the next decade with salary potential of over US $ 1,00,000 annually. Presently, it has been turning out as reality. An organization named National Association of Certified Fraud Examiners (NACFA), formed by Joseph J. Wells, Professor of Finance, University of Texas has 5000 forensic accountants, followed by National Association of Forensic Accountants (NAFA) which has 4000 forensic accountants, Price Water House Firm has 500 forensic accountants and Cooper and LYB Brand has 380 forensic accountants. The American College of Forensic Examiners (ACFE) has developed an additional training, testing and certification to give added qualifications to CPAs working in the field of litigation support and forensic accounting. Besides this, Florida Atlantic University USA, has introduced various graduate and post-graduate courses in forensic accounting.
Smart Money Magazine ranked forensic accoun-tant’s job as ‘one of the ten hottest jobs’ for the next decade.
In Canada, the Canadian Institute of Chartered Accountants (CICA), has established the alliance for excellence in investigative and forensic accounting to encourage and recognize excellence in the provision of financial investigation, forensic accounting and financial litigation support services provided by chartered accountants. The CICA has also introduced various diploma courses such as Diploma in Investigative and Forensic Accounting (DIFA), Diploma in Fraud Examiner (DFE), etc.
The awareness level about forensic accounting in India is also increasing. The IFAIA (The Institute of Forensic Accounting and Investigative Audit) is working on prevention, detection and investigation of white collared crimes. Besides this, Bio Informatics Institute of India (BII) is offering Post Graduate Diploma in forensic accounting and India Forensic Foundation (IFF) is providing education in the field of cyber frauds, bank frauds, occupational frauds, etc.


5. Conclusion
The forensic accountants work throughout the business world and all branches of the Government because they need their expert investigation and evidence relating to corporate frauds, mergers investigation and acquisitions modalities, tax investigations, settling of insurance claims, and more recently, tracing the flow of funds even to terrorist activities. The various corporate scandals have put suspicion in the minds of investors, and though the annual reports are assumed to be disclosing to the shareholders everything significant, in reality, they remain obscure and lost in the piles of information. Besides this, there are so many frauds which never hit the radar system and travel to grow geometrically over the period, if not detected on time for e.g. Harshad Mehta Scam, MS Shoe Scam, Global Trust Bank Scam, Stamp paper fraud amounting to Rs. 42,000 crores, etc. In the present days, when the BSE sensex is expected to reach the level of 10,000, and every investor is attracted towards the stock market, the biggest point is ignored in this bull run, is the technology fraud. In such circumstances, the role of ‘Black Tech Forensics’ has become very important.The awareness level about the forensic accounting in India is increasing because of the persistent efforts of India forensic movement but it has not yet garnered the requisite pace. Presently, only three institutes are working in this field which are proverbially just three drops in the ocean since India ranked 88th among the most corrupt nations of the world (Annual report published by Berlin based, News Agency in October 2005 based on the survey of 169 nations). Thus, there is an urgent need to popularize career as a forensic accountant because only the forensic accountants can save the fortunes by detecting and preventing the frauds in time.

CARRY FORWARD OF LOSSES OF MINORS

Under section 64(1A) of the Income-tax Act, 1961, a minor child’s income is to be clubbed with that of one of his parents, subject to certain specific exceptions. As a consequence, a loss arising to the minor is also to be clubbed in the hands of the concerned parents. In this article, certain problems pertaining to carry-forward and set-off of loss in case of a minor who attains majority in a given assessment year is highlighted.
1. Introduction
The Finance Act, 1992 inserted sub-section (1A) to section 64 of the Income-tax Act, 1961, with effect from April 1, 1993, as amended till date, which reads as—
In computing the total income of any individual, there shall be included all such income as arises or accrues to his minor child, not being a minor child suffering from any disability of the nature specified in section 80U of the Act :
Provided that nothing contained in this sub-section shall apply in respect of such income as arises or accrues to the minor child on account of any—
manual work done by him; or
activity involving application of his skill, talent or specialised knowledge and experience.
Explanation.—For the purpose of this sub-section, the income of the minor child shall be included,—
where the marriage of his parents subsists, in the income of that parent whose total income (excluding the income includible under this sub-section) is greater; or
where the marriage of his parents does not subsist, in the income of that parent who maintains the minor child in the previous year, and where any such income is once included in the total income of either parent, any such income arising in any succeeding year shall not be included in the total income of the other parent, unless the Assessing Officer is satisfied, after giving that parent an opportunity of being heard, that it is necessary so to do.
Child in relation to an individual includes a step-child and an adopted child of that individual.
Further, all earlier provisions relating to clubbing of minor’s income with his parents were deleted by the Finance Act, 1992 with effect from April 1, 1993.
As per the above-mentioned provisions, all income of a minor child will be clubbed with that of his parents except income earned by the minor child on account of any manual work done by him or any activity involving application of his skill, talent or specialised knowledge and experience, like the income of a child film artist.
2. Set-off of loss suffered by minor clubbed in parent’s hand
Similarly, any loss suffered by a minor under any head of income will be clubbed in the hands of his parents under section 64(1A) and will be set-off against any income of the parents under the same head of income or under some other head of income, as per the provisions of the Act.
Explanation 2 to section 64 says that for the purpose of this section, income includes loss.
Section 80 of the Act provides that notwithstanding anything contained in the Chapter (Chapter VI), no loss which has not been determined in pursuance of a return filed in accordance with the provisions of sub-section (3) of section 139 of the Act, shall be carried forward and set-off under sub-section (1) of section 72 or sub-section (2) of section 73 or sub-section (1) or sub-sec­tion (3) of section 74 or sub-section (3) of section 74A.
Carry-forward and set-off of loss referred to above relates to business loss under section 72(1); speculation business loss under section 73(2); capital gain loss under section 74(1) or 74(3) and loss incurred in maintaining race horses under section 74A(3).
As per the provisions of the Act, certain losses incurred during an assess-ment year which are not set off during the same assessment year as per the Act are to be carried forward to the next assess­ment year for set-off.
3. Problem arising during year in which minor attains majority
Now take the example of a minor child who has suffered long-term capital loss on sale of his investments in shares during the financial year ending on March 31, 1999 corresponding to the assessment year 1999-2000. This long-term capital loss under the head ‘Capital gains’ will be clubbed in the hands of one of his par­ents, say the father. This loss will be adjusted against any capital gain earned by his father. After adjustment of capital gain against capital loss, if any, capital loss is still left, the same will be allowed to be carried forward to next year corre­sponding to the assessment year 2000-2001, if return is filed as per section 139(3), read with section 80, of the Act. The minor becomes major during the subsequent financial year ending on March 31, 2000 corresponding to the assessment year 2000-2001.
Now, a pertinent question arises whether the minor child who attains majority during the next year will be eligible for carry-forward and set-off of the unabsorbed loss under the head ‘Capital gains’, determined in the hands of father though relating to the minor child, or his father will be eligible to carry forward and set-off the unabsorbed loss in his own hands.
As per section 64(1A), income of a minor child is deemed to be the income of the parents. This legal fiction is enacted for a limit­ed purpose. But a legal fiction has to be carried to its logical conclusion. And as a natural corollary, a loss deemed to be the loss of parents under deeming provisions should be given effect to is logical conclusion and should be allowed to be carried forward and set off in the hands of parents subject to other provi­sions of the Act.
Further, the Supreme Court has held in CIT v. P. Doraiswamy Chetty [1990] 52 Taxman 346/183 ITR 559 that if husband and wife are partners in a firm and wife’s share is included in husband’s total income under section 64(1)(i), the husband is entitled to carry forward wife’s share of loss also.
4. Conclusion
Income or loss, once clubbed under the provisions of the Act, will be treated at par with the other income or loss. In case of any loss clubbed under the provisions of the Act in the hands of the parents, the parent will alone be eligible to carry forward and set off the loss.For the sake of convenience, loss under the head ‘Capital gains’ is made the subject-matter of our discussion. The treatment of any other allowable loss, suffered by the minors will also be on the same lines.

Friday, August 8, 2008

FORTY Tips - For the Better than the Best Life

1. Take a 10-30 minute walk every day. And while you walk, smile. It is the ultimate anti-depressant.

2. Sit in silence for at least 10 minutes each day.

3. Go to bed earlier and get more sleep.

4. When you wake up in the morning complete the following: 'Today, my primary purpose is to __________.'

5. Live with the 3 E's -- Energy, Enthusiasm, and Empathy.

6. Play more games and read more books than you did last year.

7. Make time to practice meditation, and prayer. They provide us with daily fuel for our busy lives.

8. Spend time with people over the age of 70 and under the age of 6.

9. Dream more while you are awake.

10. Eat more foods that grow on trees and plants and eat less food that is manufactured or packaged in factories.

11. Drink green tea and plenty of water. Eat blueberries, wild Alaskan salmon, broccoli, almonds & walnuts.

12. Try to make at least three people smile each day.

13. Clear clutter from your house, your car, your desk and let new energy flow into your life.

14. Don't waste your energy on gossip, issues of the past, negative thoughts or things you cannot control. Instead invest your energy in the positive present moment.

15. Realize that life is a school and you are here to learn. Problems are simply part of the curriculum that appear and fade away like algebra class but the lessons you learn will last a lifetime.

16. Eat breakfast like a king, lunch like a prince and dinner like a college kid with a maxed out charge card.

17. Smile and laugh more. It will keep the NEGATIVE BLUES away.

18. Life isn't fair, but it's still good.

19. Life is too short to waste time hating anyone.

20. Don't take yourself so seriously. No one else does.

21. You won't win every argument. Agree to disagree.

22. Make peace with your past so it won't spoil the present.

23. Don't compare your life to others. You have no idea what their journey is all about.

24. No one is in charge of your happiness except you.

25. Frame every so-called disaster with these words: 'In five years, will this matter?'

26. Forgive everyone for everything.

27. What other people think of you is none of your business.

28. Remember, God heals everything.

29. However good or bad a situation is, it will change.

30. Your job won't take care of you when you are sick. Your friends will. Stay in touch.

31. Get rid of anything that isn't useful, beautiful or joyful.

32. Envy is a waste of time. You already have all you need.

33. The best is yet to come.

34. No matter how you feel, get up, dress up and show up.

35. Do the right thing!

36. Call your family often. Or email them to death!

37. Each night before you go to bed complete the following: I am thankful for __________.
Today I accomplished _________.

38. Remember that you are too blessed to be stressed.

39. Enjoy the ride. You only have one ride through life so make the most of every moment, every single day.

40. Please share this with those you care about. May your troubles be less, May your blessings be more, May nothing but happiness come through your door!

Wednesday, August 6, 2008

Private Trust & Public Trust

A. Meaning of Trust
A Trust is when you set aside money or property for the benefit of an individual and appoint one or more individuals as TRUSTEES. As the term "Trust" suggests, you are really putting your confidence and faith in the trustees to look after the needs of your child. However it is equally important that the trustees accept responsibility. Therefore the basis on which a Trust comes into existence, include:
1. The author indicates with reasonable certainty, his intention to create a Trust.
2. The Trust must have a definite purpose. The aims and objectives have to be specified by the author of the Trust.
3. The Trust is made for the benefit of a specified individual or individuals who are called the beneficiary.
4. There has to be a certain amount of funds and / or property to set up a Trust i.e. Corpus.
5. Transfer of the property to the Trust. This however is not necessary when; a) The author is himself the sole trustee or, b) When the Trust has been created by a will.
6. The author (i.e. the person making the Trust) has confidence in the person whom he wants as a trustee.
7. The trustee accepts this responsibility.
So, a Trust is really a self initiative and calls for a certain amount of education and economic wherewithal.
B. Legal Terminology
1. Author of the Trust: The person who creates a Trust. In this case, it will be the parent of the child with mental disability.
2. Trustee: The person, the author of the Trust would appoint to operate the Trust funds and look after the needs of the child. The parents as authors of the Trust can also be the trustees.
3. Beneficiary: The person for whose benefit the Trust is formed. In this case, it would be the child. There can be more than one beneficiary. A parent can also be a co beneficiary.
4. Movable property: Includes money, jewellery and shares.
5. Immovable property: Includes property, land etc.
C. CORPUS
Corpus is the money or property that is set aside to set up and run the Trust.
1. The corpus can include both movable and immovable property. There is no specified amount with which you can set up a Trust. It would depend upon how much you can or want to set aside.
2. You can build on the corpus during your lifetime and can also 'will' any property to the Trust. For example you may have a property that you are living in which you do not want to give to the Trust during your lifetime. You can transfer this property to the Trust through your 'will'.
3. A Trust can also be set up solely through a will i.e. all movable and immovable property will only become Trust property once the will is executed.
4. It is advisable to consult a chartered accountant on the question of how and when movable and immovable property can be transferred to and utilized for the Trust. The accountant will advise you on the tax implications.
D. CREATION OF TRUSTS AND TRANSFER OF PROPERTY
TRANSFER OF PROPERTY: This does not mean that the trustee becomes the owner of the property. The property is in the name of the Trust and the trustee is just authorized to manage it.
1. When parent creates a Trust through a will- there is no need to transfer the property at the time of writing the will. However, at the time of execution of the will, the property will in due course be transferred to the Trust.
2. Parent as a trustee: When the parent creates a Trust and he, himself is a trustee- there is no need for transfer of property- he himself is holding the property in Trust. However, even though the property remains in the parents' name, the assets from the property will go to the Trust fund. The parent then can use them for his/her own benefit also, only if he is also a beneficiary. (i.e. a co-beneficary)
3. When parents appoint someone else as a trustee- here the parents need to transfer the property, in the name of the Trust.
E. WHO MAY CREATE A TRUST
According to the law any person who is seen as competent to contract can create a Trust, if he/she is:
1. Above 18 years
2. Is of sound mind i.e. is capable of understanding a contract and forming a rational judgment as to its effect upon his interests
3. Is not disqualified from contracting by any law to which he is subject
F. REGISTRATION OF TRUSTS
If the Trust is of IMMOVABLE PROPERTY i.e. land/property, then a Trust needs to be registered.However, if a Trust is of MOVABLE PROPERTY, it need not be registered i.e. it is not compulsory. But to be on the safer side it is better to get this kind of Trust registered too.Registration of Trusts is also important in other situations for example, if you open a bank account in the name of the Trust- a registered Trust deed will be needed.Steps/process Involved In Making And Registering A Trust
1. Make a Trust deed on a stamp paper
2. It is to be signed and the date affixed, by the author of the Trust and the trustee
3. You also have to get 2 witnesses to sign it. Anyone, who is a citizen of India, is of sound mind and is above the age of 18 years, can be a witness
4. You have to get a form of registration signed by the witnesses and along with the Trust deed; it is to be filed at the office of the Registrar of Trusts
5. A photograph and identification card of the author of Trust and the trustees have to be attached
G. KIND OF TRUSTS
PUBLIC TRUST: These are constituted for the benefit either of the public at large or some considerable portion of it, answering a particular description. Here, you cannot name any specific beneficiaries. They are of a permanent and indefinite character and not confined to any certain limits prescribed in a settlement. A public Trust has for its object, the members of an uncertain and fluctuating body. Hence it is the extensiveness of objective, which affords some indication of the public nature of a Trust, example a public or charitable Trust for educational purposes. Public Trusts get Tax Exemption.
PRIVATE TRUST: In a private Trust the beneficial interest is vested absolutely in one or more individuals who are within a given time, may be definitely ascertained. For example, a Trust created by parents for their child. Here their child is the beneficiary. Private Trusts get No Tax Exemption.
• Specific Trust: There is/are a specific beneficiary or beneficiaries, whose share is naturally specified in the Trust deed. Here the trustee does not have any discretion in apportioning income of the Trust for the benefit of its beneficiaries. This means, the money or income the beneficiary is to get is fixed and is specified in the Trust deed. The trustee does not have the discretionary power to determine this.
• Discretionary Trust: Is where beneficiaries, though specific and ascertained, do not have specified shares in the income and property of the Trust. The manner of employment of Trust funds/income is left to the absolute discretion of its trustees.
H. ABOUT THE BENEFICIARY
The beneficiary is the person for whose benefit the Trust is being made. In this context, it would be the person or persons with mental disability. Under the Indian Trusts Act (1882) the beneficiary has been given many rights.
For example:
1) She /he has the right to inspect and take copies of instruments of Trust and account etc.
2) Right to proper trustees so that the Trust property is properly protected and administered.
3) Right to compel any act of duty by the trustee, etc
These rights are given so that they serve as a counterpoint to the authority of the Trust. However, some of these rights are taken away from our beneficiary (i.e. the beneficiary who has mental disability) because she/he is not seen as being competent to contract. Also the person with mental disability may not actually be able to take advantage of some of the rights.
I. ABOUT TRUSTEES
A trustee is a person whom the author of the Trust would appoint to operate the Trust funds and look after the needs of the child. The parents can also be the trustees.
Who may be a Trustee
1. A person who is capable to contract: is above the age of 18 years; is of sound mind i.e. can understand a contract and make a rational judgment as to its effect upon the interests of the Trust
2. Is capable of holding property
3. Is not disqualified from contracting by any law to which she/he is subject
Number of Trustees
• The number of trustees could be between one and five
• If there are more than one trustee, one of them is elected chairman
Retirement - A trustee may retire after giving a notice of x number of days. This should be specified in the Trust deed.
Powers and Duties - These are a range of powers you can delegate to the trustee depending on the capacity of the beneficiary and how much independence you would like to give them. The trustee may be given the power to monitor.
J. POWERS
• To appoint employees and settle relevant terms
• Trustees can employ people for example driver, cook etc. and manage their payments out of the Trust fund
• To file suits on behalf of the Trust
• The trustee can apply to the court for opinion in management of Trust property: without instituting a suit
• To consult doctors, lawyers, chartered accountants or any other specialists
• To invest the Trust fund
• To draw upon the corpus of the Trust for recurring annuity/pension for the beneficiary
• To reimburse themselves out of Trust funds for all expenses incurred in the discharge of their duties
K. DUTIES
• To manage all assets of a Trust
• To open and maintain a bank account in any nationalized bank
• Care required from a Trustee: A trustee is to deal with the Trust property as carefully as a man would deal with such property if it were his own
• Trustee to execute Trust: The trustee is bound to fulfill the purpose of the Trust and to obey the directions of the Trust given at the time of its creation
• When a Trust is managed by a number of trustees and one of them dies/disclaims, the continuing trustees are required to take the necessary decisions
L. What the trustees cannot do
1.Trustees cannot renounce after acceptance - once accepted, the trustees cannot renounce the Trust except: If the beneficiary is competent to contract, then with his consent Or By virtue of a special power in the Trust deed Or with the permission of a principal civil court of original jurisdiction
2. Co-trustees cannot act singly, unless the Trust deed specifies otherwise
3. Trustees cannot delegate his office/duties unless: the Trust deed specifies so ; delegation is in the regular course of business ; delegation is necessary, the beneficiary, if capable to contract, consents
4. Trustees cannot use Trust property for their own profit or any other purpose unconnected with the Trust
5. He cannot buy the beneficiary's interest without the permission of a principal civil court, even after he has ceased to be a trustee
M. Power to Nominate
In the case of a vacancy in the office of a trustee, there should be a provision in the Trust deed, for the appointment of a new trustee. The vacancy may arise, if the earlier trustee dies or refuses to function as a trustee etc. Through the Trust deed, the author of the Trust, needs to authorize some person or organization to nominate a person as a trustee, in case of a vacancy. However, here again, the person/organization needs to accept the responsibility. Such an arrangement, with an organization can also be made to see that the Trust is functioning properly i.e. a kind of monitoring facility.
N. Dissolution of a Trust
The Trust is formed for the beneficiary. When the beneficiary is no more, the Trust deed needs to specify, as to what should happen to the Trust fund. For example, the Trust deed could state that the Trust fund should be distributed among the legal heirs of the beneficiary or some part should be given to charity etc.All these details may be worked out and incorporated in the Trust deed.

Profile of GKR

PROFILE

CA. GOPAL KRISHNA RAJU (36) is a practicing Chartered Accountant from Chennai. He is a partner of M/s K.GOPAL RAO & COMPANY, Chartered Accountants, Chennai. He hails from a family of Chartered Accountants. His Father (CA K.GOPAL RAO), Mother (CA B.MEERAGOPALAN) & Younger Brother (CA MADAN GOPAL NARAYANAN) all are Practicing Chartered Accountants.

He got elected for the First Time to the Southern India Regional Council of The Institute of Chartered Accountants of India (SIRC of ICAI) for the three-year term 2010-2013.

Year & Position

2010-2011 Chairman of Direct Taxes Committee and Regional Library Committee, SIRC-ICAI

2011-2012 Chairman of Information Technology Committee and Committee for Banking, Insurance and Pension, SIRC-ICAI

Academics
 An Associate member of The Institute of Cost & Works Accountants of India (ICWAI) with all India rank in intermediate examination.

 An Associate member of The Institute of Company Secretaries of India (ICSI).

 Post-Graduate Diploma holder in Operation Research from Pondicherry (Central) University

 Post-Graduate Diploma holder in Financial Management from Pondicherry (Central) University

 Qualified Information Systems Auditor (ISA) from The Institute of Chartered Accountants of India (ICAI)

 Qualified Part I of Post Qualification Course in International Trade Laws and World Trade Organisation (DITL) from The Institute of Chartered Accountants of INDIA

 Has completed his M.PHIL in Management from Tamilnadu open university

 He holds eight NSE’s certification in Financial Markets (NCFM) from National Stock Exchange of India Limited (NSEIL) viz. Capital Market (Dealers), Derivatives Markets (Dealers), Securities Market (Basic), FIMMDA-NSE Debt Market (Basic) Modules, Commodity Market, AMFI-Mutual Funds (Basic), AMFI-Mutual Funds (Advisors) and Corporate Governance Modules

Author:

He has authored two books. “Standard Costing & Variance Analysis” for Professional Students released in June 2001. “First Lessons in Information Technology” for CA students released in January 2006 and Second edition in December 2007 by Snow White Publishers, Mumbai.

Faculty:

His passion is Teaching Information Technology, Finance & Taxation. He is a visiting/guest Faculty for numerous Institutions, Corporates and B-Schools including:

1. The Institute of Chartered Accountants of India (ICAI)

2. The Institute of Company Secretaries of India (ICSI)

3. The Institute of Cost and Works Accountants of India (ICWAI)

4. Regional Training Institute of Indian Audit & Accounts Department (RTI – IAAD) & Member Audit Board

5. Regional Training Institute of National Academy of Direct Taxes (RTI – NADT)

A passionate writer on taxation in numerous journals and newspapers, he can be reached at gkr8164@gmail.com; gkr@icai.org. His blog space is http://www.gkr8164.blogspot.com/