Faceless Appeal Scheme 2021: A Forward-Looking Initiative

The Central Board of Direct taxes (“CBDT”), with an objective of bringing in more transparency in the appeal proceedings and “honoring the honest”, had introduced the “Faceless Appeal Scheme 2020”[1] (“Old Scheme”), on September 25, 2020. The Old Scheme was introduced with an aim to eliminate human interference between the taxpayer and the First appellate authority (Commissioner Appeals), thereby ensuring that the appeals are disposed in a fair manner and are not influenced by any relation and human biasness.

The Old Scheme was introduced with the noble intention of curbing malpractices, easing compliance and make appeal process seamless and faceless. However, there were some post implementation hiccups experienced and accordingly taxpayers requested certain modifications in the Old Scheme.

In order to fix the hiccups and incorporate the changes requested by taxpayers, the CDBT, in supersession of the Old Scheme, has introduced a new appeal scheme called as “Faceless Appeal Scheme 2021”[2] (“New Scheme”) on December 28, 2021.

In this alert, we have made an effort to apprise the readers with the changes introduced in the New faceless appeal Scheme vis-à-vis the Old Scheme.

Key Changes in the New Faceless Appeal Scheme, 2021

The key changes brought in by the New Appeal Scheme are as follows:

  1. Mandatory personal hearing, if requested

In the Old Scheme, the appellant or his authorized representative had to make a request for personal hearing and the Chief Commissioner or Director General in charge of the Regional Faceless Appeal Centre (RFAC) had the discretion to approve such request, if he was of the opinion that the request is covered by the circumstances laid down by the CBDT.

In the New Scheme, there is no requirement for prescribed circumstances and the discretion for grant of personal hearing has been completely removed. CIT(A) shall allow personal hearing if requested by the appellant anytime during the course of the proceedings.

  1. Restructuring of the appeal center

In the Old Scheme, CBDT had set up a three-layer structure with National Faceless Appeal Centre (NFAC) at the top to conduct appeals in a centralized manner (nodal agency), followed by RFAC to support NFAC and Appeal Unit (AU) at the bottom, to facilitate the conduct of e-appeal proceedings and dispose them. In the composition structure, each AU unit had one or more Commissioner Appeals [CIT(A)].

In comparison, the New Scheme has done away with the RFAC and has set up a two-layered structure headed by NFAC and AU will directly coordinate with NFAC and conduct the appeal and dispose them. Further, in the New Scheme, each AU will have only one CIT(A).

  1. Elimination of review by multiple AUs

In the Old Scheme, the NFAC on receipt of draft order from AU, would  review the order and if the payable amount in respect of disputed issue was more than a specified amount, then send the draft order to another AU, other than the AU which had prepared it. In any other case, the NFAC would  examine the order based on the specified risk management strategy and then finalise the appeal or send the draft order to another AU.

The other AU who was assigned such case, would  either concur with the order or suggest variations as it would  deem fit. In case of variation, the NFAC would  assign the said appeal to another AU other than the one who had prepared or reviewed the draft order. The NFAC would then pass the final order, based on the order received from the last AU.

In the New Scheme, the CIT(A), after examining the submissions, shall now pass the order by digitally signing the same and send it to NFAC, along with details of penalty proceedings, if any, to be initiated therein.

Such order shall be final and will not be reviewed at multiple AUs as provided in the erstwhile scheme. NFAC shall communicate such order to the appellant and such other officers as may be prescribed.

  1. Penalty Proceedings

In the Old Scheme, AU in the event of any non-compliance during the appeal proceedings, had to send a recommendation to NFAC to initiate penalty proceedings. However, in the New Scheme, there is no need to send such recommendation and the CIT(A) can directly send the penalty notice through NFAC.

FM Comments:

The modifications provided in the New Scheme are certainly a move in the right direction by easing the process and building a robust appeal scheme. The CDBT, by removing the discretionary power of the authorities for grant of personal hearing, has also made an effort to meet the constitutional validity criteria, which has also been one of the matters, challenged before the Courts.

References: 

[1] Notification No 76/2020 dated 25 September 2020

[2] Notification No 139/2021 dated 28 December 2021

Image Credits: Photo by Arina Krasnikova from Pexels

In order to fix the hiccups and incorporate the changes requested by taxpayers, the CDBT, in supersession of the Old Scheme, has introduced a new appeal scheme called as “Faceless Appeal Scheme 2021”[2] (“New Scheme”) on December 28, 2021.

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Protection of Family Assets in the Trying Times of COVID

When death hits closer to home, it is accompanied by an ancillary ramification apart from emotional and psychological distress – finances. Many families have had to confront this reality as the pandemic left a trail of deaths across the country. Apart from grappling with insurmountable pain, one is often saddled with time-bound financial formalities, asset management and planning.Family businesses have been gravely impacted due to the COVID situation and it has acted for a wake-up call for planning the protection of valuable assets. 

Financial planning is a step-by-step process that is designed to meet fiscal requirements at every milestone of one’s life. For instance, creating a fund for children’s education, investing in retirement planning etc. The aim is to build a corpus of sufficient funds over a period of 15-30 years of continued investment and planning, which enables one to sustain financial responsibilities in these events. Another aspect of asset planning is setting up a contingency fund, which is most relevant and crucial in the present scenario of sudden deaths and unanticipated health emergencies. 

Lack of a structured plan can lead the family into chaos which may further result in litigation, a scenario not alien to many unsuspecting families today. This article aims to assist you through this dilemma by constituting an exhaustive list of tasks and legal measures one can undertake to ease the workload and formalities in such circumstances.

Documents and Immediate Actions for Families

The first step should be the collection of all documents, essential for dealing with various government and financial institutions. If the deceased had conducted a majority of transactions online, it is essential to secure access to their online accounts, with account numbers and login passwords.

The second step is securing the death certificate. In India, all deaths have to be mandatorily registered within 21 days of demise. If the same is done within 21-30 days, a penalty of INR 25 is charged. The certificate has to be certified by the medical officer. After 30 days and up to a year, the joint director of statistics is authorized to issue the certificate. The application has to be filed with a fine of INR 50 and an affidavit. After a year, the certificate is only issued by an order of a first-class magistrate, an application form which has to be accompanied by a “cause of death” certificate, cremation certificate, and an affidavit. The death certificate is vital for every financial task that has to be conducted in pursuance of the asset and financial management of the deceased.

Once all the above-mentioned documents and details are organized and collected, one can move forwards with the following tasks;

  1. Try to find out if the deceased person made a Will while they were living. A Will exponentially eases the process of transfer of assets, since most of the confusion is put to rest.
  1. Next, the efforts must be directed towards assessing the deceased’s liabilities and loans (secured/unsecured). This includes home, vehicles, personal loans or credit card dues. In such cases, the first step should be informing the creditor about the demise. In case the borrower had a co-signor/joint debtor the latter shall repay the loans. In the case of a single borrower; if a Will is in place, the executor shall be responsible for settling the debts, in the absence of a Will, an administrator (typically the   is appointed by the court to repay the liabilities.
  1. The heirs or children of the deceased (if adults) can undertake a mature discussion about the distribution of assets. The family must try to unite to avoid litigation. If possible, appoint a trustworthy person to carry out the necessary legal obligations.
  1. Take stock of all the assets in the name of the deceased and make a list with the valuation. Even if the deceased made a Will but left out a property that they later acquired, the property will be distributed according to intestate laws. i.e., the personal law of the individual.
  1. When it comes to insurance, deposits in banks, and shares of the deceased, in most cases, nominees are appointed. Notify the financial institutions of the death of the person and make inquires for the procedure to be followed by the nominee.
  1. In the event of the demise of both parents, where are minor children involved, it is essential that a guardian be appointed for them. If not appointed by a Will, in the case of Hindus, a guardian may be appointed by the court.
  1. Hire a local attorney to advise you. Keep in mind that laws in India relating to succession are not uniform. Moreover, legal procedures to get the appropriate documentation differ from state to state. Hence, it is recommended to hire someone who is well-versed with the local laws of the state in which the deceased resided or where they owned property.

Future Planning for Protection of Assets of a Family Business

People usually start thinking about protecting their assets only once they reach their late 40’s and 50’s. The ongoing pandemic has been a much-needed reality check which has triggered the families and individuals to structure their assets and finances for unforeseeable circumstances, even young adults.

What can you do to protect your estate in your life so that your assets are distributed according to your wishes?

 

  1. Will: Having a Will in place would make your life as well as the life of your loved ones quite simple. There is no fixed format for a Will under the law. The only requirements for a valid Will according to the Indian Succession Act, 1925 are; it should be made by a sound adult, signed by them, and attested by two witnesses. It is recommended that an Executor be appointed in the Will to reduce hassles. It is not compulsory to register a Will. Probate is also required only if the Will is made in Bengal, Bihar, Orissa, and Assam and within the local limits of the ordinary original civil jurisdiction of the High Courts of Madras and Bombay or where the property of the deceased is situated in these areas.
  1. Trusts: A trust may be created during the lifetime of a person who is called the author/s It may be created with a written legal document through which the assets of the settlor are placed into a trust and trustees are appointed therein who manage these assets for the benefit of the settlor and the beneficiaries named in the Trust Deed. The settlor can also be one of the trustees or the managing trustee of the trust during their lifetime. This gives them control over their assets while they are still living. The biggest advantage of Trust is that it operates both during and after a person’s life.
  • A provision can also be made in the Trust Deed for the appointment of a guardian for minor children in case both the parents die. The Trust Deed may provide instructions regarding the administration of the property to take care of one’s children.
  • A written Trust Deed is signed by the Settlor, requires a minimum of two trustees and two witnesses. The trust may or not be registered; registration is required only if an immovable property is transferred to the trust.
  • When a settlor dies, the trustee pays the debts, files the tax returns, and distributes the assets of a deceased. Trusts are an effective estate planning tool if one wants to avoid the costs and hassles involved in obtaining probate. It is a quick and quiet procedure, preserving one’s privacy and done without any court interference.
  1. Guardianship: Where minor children are involved, it is very important to make provisions either in a Will or by Trust, for appointing a guardian for minor children in the event of a death. If one parent dies, then the other living parent becomes the guardian. If both parents die, then it is needed to mention who will be accorded guardianship. Failure to do so will involve the intervention of courts and various applicable laws given India’s pluralistic society. The need for an appropriate guardian is to provide for personal needs but to also ensure that any future assets to be inherited are protected during the period of minority.

How does Ownership of Assets Transfer after the Death of a Person?

 

There are two scenarios that are to be considered while determining the ownership of the assets after the death of a person:

  1. In case a person dies leaving a Will; or
  2. In case a person dies without leaving a Will

Where there is a Will

Leaving behind a validly executed Will is the most uncomplicated mode through which a property can pass to the next owner. If an Executor is appointed in the Will, they should apply for the probate of the Will where Probate is mandatory. Once a Probate is obtained, the Executor is responsible for paying off all the debts of the deceased, managing the expenses for all the properties, and distributing the assets to all the beneficiaries according to the Will of the Testator.

Where there is No Will

The ownership of the property will be determined by intestate succession i.e succession according to the personal law applicable to the deceased individual. The heirs will be determined in accordance with the religion of the intestate for example Hindus, Buddhists, Sikhs and Jains will be governed by the Hindu Succession Act, 1956, Muslims will be governed by the Mohammedan Law and all others will be determined by the Indian Succession Act, 1925.

What are the legal options available to the heirs of the deceased?

 
  • Letters of Administration: Section 273 of the Indian Succession Act, 1925 provides for Letters of Administration which are granted by the court to the individual who volunteers to be the administrator with the consent of the legal heirs for the lawful distribution of assets of the deceased. The purpose of grant of Letters of Administration is only to enable the administrator so appointed by the court to collect/assimilate the properties of the deceased and to deal with the various authorities with whom the properties of the deceased may be vested or recorded and thereafter the same be transferred in the names of the successors in accordance with the law of succession applicable to the deceased. The administrator during the proceedings is required from time to time to file the accounts in the court with respect to the administration of the estate of the deceased.[1]
  • Succession Certificate: Succession certificate entitles the holder to inherit the moveable assets of the deceased and to make payment of a debt or transfer securities to the holder of certificate without having to ascertain the legal heir entitled to it. A Succession Certificate is not granted where Probate or Letters of Administration are mandatory to be obtained. The purpose of a succession certificate is limited in respect of debts and securities such as provident fund, insurance, deposits in banks, shares, or any other security of the central government or the state government to which the deceased was entitled.
  • Family Arrangement: Family arrangement resolves present or possible future disputes among family members ensuring equitable distribution of property among the family members.[2] In a Family arrangement, a member gives up all claims in respect of all the properties in dispute other than the ones falling to their share. The rights of all the others are recognised. Therefore, under a Family arrangement, members of a family may decide amongst themselves about the distribution of the property of the deceased. A Family arrangement would have to be appropriately stamped and registered. However, even oral arrangements are valid in the eyes of law.
  • Administration Suit: Order 20, Rule 13 of the Civil Procedure Code, 1908 deals with an administration suit that is filed by a person seeking administration of the estate of the deceased. It is resorted to when there is no amicable settlement of disputes amongst the family members of the deceased. Under the decree, distribution of the assets of the deceased amongst the heirs can be sought along with the administration. In an administration suit, the court takes upon itself the function of an executor or administrator and administers the estate of the deceased. The suit in its essence is one for an account and for application of the estate of the deceased for the satisfaction of the debts of all the creditors and for the benefit of all others who are entitled.
  • Partition: In the case of Hindus under the Hindu Succession Act, the co-parceners may claim for a partition of the property. Under the Mitakshara law, the partition of a joint estate consists of defining the shares of the coparceners in the joint property. Once the shares are defined there is a severance of the joint status. Therefore, all that is required for a partition to take place is a definite and unequivocal intention by a member of a joint family to separate himself from the family. An actual division of the property by metes and bounds is not necessary. It may be declared orally or by an agreement in writing or by instituting a suit for partition of the property in the court. The difference between family arrangement and partition is that any member of the family can enter a family arrangement, but partition can only take place between co-parceners.

 

Not only have the consequences of the pandemic made protection of assets a top priority for most individuals but it has also encouraged people to ensure the protection of their assets through a Will or a Trust. The primary reason for this change in approach can be owed to India’s pluralistic society which sets limitations on estate and succession rights and adopts the regime of forced heirship in some cases of intestate succession. Additionally, the time-consuming and tedious process for completing the transfer of assets when the courts get involved has also facilitated this shift in individual priorities.

References

[1] Ramesh Chand Sharma V/s State & Ors  (High Court of Delhi, Test. Cas. 66/2011, Date of Decision: 20.01.2015, Coram: Indermeet Kaur, J.)

[2] Kale & Others vs Deputy Director of Consolidation 1976 AIR 807

Image Credits: Photo by Matthias Zomer from Pexels

Not only have the consequences of the pandemic made protection of assets a top priority for most individuals but it has also encouraged people to ensure the protection of their assets through a Will or a Trust. The primary reason for this change in approach can be owed to India’s pluralistic society which sets limitations on estate and succession rights and adopts the regime of forced heirship in some cases of intestate succession.

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Recent Relaxations On Debenture Issuance Related Compliances Under The Companies Act, 2013

The provisions of the Companies Act, 2013 (the “Act”) relating to the issuance of debentures, stipulate various requirements which the issuing company has to comply with, which includes maintaining a Debenture Redemption Reserve (DRR) account and in case of a secured debenture, filing of charge-related documents.

The outbreak of COVID-19 and the related regulatory lockdowns have affected business inflows and administrative functioning of many organizations. On one hand, some of the companies are facing financial difficulties in meeting their repayment obligations under the debentures issued, while on the other hand, these companies are unable to meet the statutory requirements stipulated under the Act. Considering the request of various stakeholders, the Ministry of Corporate Affairs, India (“the MCA”) has brought out several relaxations relating to the compliance requirements for debenture issuance under the Act.

 

Debenture Redemption Reserve:

In order to protect the interest of the debenture holders, as per section 71 (4) of the Act, the companies, which have issued debentures, are mandatorily required to create a DRR account and transfer the stipulated sum of money to such account, every year, out of the profits of the company. The amount credited to such account shall be out of the profits of the company available for payment of dividend and the amount credited to such account shall not be utilized by the company except for the redemption of debentures.

Pursuant to the Companies (Share Capital and Debentures) Amendment Rules[1], 2019 dated 16th August 2019 (“the Amendment Rules”), the requirements of maintaining DRR account was further relaxed and only certain class of companies are required to comply with the provision to create a DRR account and to transfer money to the said account. In furtherance to the said Amendment Rules, the requirement of the DRR was modified as follows:

  • The requirement of DRR was removed for both privately placed debentures and public issue of debentures both by Non-Banking Finance Companies (NBFCs) (registered with Reserve Bank of India under section 45- IA of the RBI Act, 1934) and Housing Finance Companies (HFCs) (registered with National Housing Bank);
  • The requirement for other listed companies (other than NBFCs and HFCs) to create DRR, both in case of private issuance and public issuance of debentures, has been done away with; and
  • The requirement for DRR was reduced from 25% to 10% of the value of the outstanding Debentures in case of unlisted companies (other than NBFC and HFCs).

Pursuant to the above changes, only unlisted Companies (other than unlisted NBFCs and HFCs) are required to comply with the DRR requirement.

It may be noted that, in addition to the requirement of maintaining the DRR account, every listed company (including NBFCs and HFCs) issuing debentures under public issue and private placement basis and other unlisted companies (excluding NBFCs and HFCs) issuing debentures under private placement basis was required to invest in specified Government securities or deposit with a scheduled bank (as the case may be) a sum of not less than 15%, of the amount of its debentures maturing during the year, ending on the 31st day of March of the next year. Further, the amount so invested shall remain invested or deposited and shall not fall below fifteen percent of the amount of the debentures maturing during the year ending on the 31st day of March of that year. Though there were relaxations provided with respect to maintaining the DRR being brought into effect through the said Amendment Rules, however, the requirement of making such investment was retained to protect the investor sentiment. 

However, in consonance with the above relaxations, the MCA vide its notification dated 5th June 2020 (“Notification of 2020”) has now amended the clause (v) of the sub-rule (7) of Rule 18 of the Companies (Share Capital and Debentures) Rules, 2014. As per the Notification of 2020, the requirement of maintaining a deposit or investment to a tune of 15% of the total amount of debentures (maturing as of 31st March of the next year) has been relaxed for listed NBFCs, HFCs and other listed companies undertaking debenture issuance on private placement basis.

 

Compliances towards charge filings:

As per the existing provision of the Act, the company creating a charge over its assets or properties is required to file Form CHG-1[2] and CHG-9[3] with the MCA within 30 days from the date of creation or modification of charges (as the case may be). With the recent changes[4] in the provisions relating to charge filing, a company which fails to file the e-form within the said timeline has the ability to make an application to the Registrar for filing by making payment of additional fees[5] and the additional time period is as follows:

  • in case of charges created before the commencement of the Companies (Amendment) Ordinance, 2019 (“Ordinance”) viz. 2nd November 2018, within a period of 300 days of such creation; or six months from 2nd November 2018 by making payment of additional fees, which is an exposure of a maximum of 12 times of the normal fees; and
  • in case of charges created on or after the commencement of the Ordinance, within a period of a maximum 120 days of such creation (application has to be preferred after the initial 60 days), on payment of ad-valorem fees as may be prescribed subject to the maximum of Rs. 5,00,000/- (Rupees Five Lakhs)[6].

However, considering the request from the various stakeholders towards relaxation in the filing of these charges forms within the stipulated time frame as given under section 71, 77, 78 and Rule 3(1) of the Companies (Registration of Charges) Rules, 2014, the Government vide circular no. 23/2020 dated 17th June, 2020 (“Scheme for relaxation of time for filing forms related to creation or modification of charges under the Companies Act, 2013”, referred to as “the Charge Scheme” hereinafter), has further relaxed timeline for filing of forms related to the creation and modification of charges under the Act.

 

Provisions of the Scheme:

With the introduction of the Charge Scheme, the MCA has given relaxation in the filing of the Forms towards charge creation and modification and for this, the applicability of the scheme is considered on two-levels, as provided below:

  1. Where the date of creation and modification of charge is of a date prior to 1st March 2020, but the timeline for filing such form had not expired under section 77 of the Act as on 1st March 2020:

In such cases, it has been clarified that the period beginning from 1stMarch 2020 and ending on 30th September 2020 (“exempted period”) shall not be reckoned for the purpose of counting the number of days under section 77 and 78 of the Act. In case, the form is not filed within such period, the first day after 29thFebruary 2020 shall be reckoned as 1st October 2020 for the purpose of counting the number of days within which the form is required to be filed under the relevant provisions of the Act.

 

Put in other words, the exempted period will not be considered for computing the maximum period of 120 days for filing of CHG-9 for creation and modification of charges. Hence, the forms for which the timeline for filing has not expired as on 1st March 2020, can be filed without paying any additional fees towards the exempted period. As such, the companies can benefit from the Scheme by paying only the fees as applicable on 29.02.2020, only if the company manages to file their pending forms within the relaxation period i.e. from 01.03.2020 to 30.09.2020. Otherwise, the benefit to the company is that it will be entitled to make the filing of the form, however, by paying the additional fees for the days beginning from 01.10.2020 till the date of filing of such form. It is to be noted that the filing has to be done still within the maximum permissible time limit of 120 days by paying additional fees or ad valorem fees as the case may be.

 

 

  1. Where the date of creation or modification of charge falls on any date between 1st March 2020 to 30th September 2020 (both days inclusive):

In case the due date of filing the form for creation or modification of charges falls between the relaxation period and the Company fails to file the form within 30.09.2020, the first day after the date of creation or modification of charge shall be reckoned as 01.10.2020 for the purpose of counting the number of days within which the form is required to be filed under section 77 or section 78 of the Act.

 

It is pertinent to note that, if the form is filed before 30.09.2020, normal fees shall be chargeable under the Fees Rules. However, if the form is filed thereafter, the first day after the date of creation or modification of charges shall be reckoned as 01.10.2020 and the company will have to complete the filing within the maximum number of additional days permitted by paying the additional fees or ad valorem fees as the case may be.

 

Conclusion:

The exemptions provided last year towards the requirement of maintaining DRR was a big step to ease the compliance requirements for companies especially for those companies which are facing a financial crisis, however, it had affected the sentiments of investors in the debt market as the protection provided to the investor was being diluted. Now, with further relaxation in the requirement of maintaining the 15% deposit for listed companies undertaking debenture issuance on a private placement basis, the regulator needs to consider providing an adequate safety net to encourage investor protection.

The introduction of the Charge Scheme is yet another move by the authority to help ease India Inc. which could be welcomed by the investors as well. But again, the Charge Scheme also aims favours India Inc. whereby companies are provided extension of the time period to complete the filing of charge creation or modification.

Keeping aside the monetary exposure, wherein the maximum exposure towards the additional fees is the ad-valorem value (that too to an extent of Rs.5,00,000/-), the only benefit in terms of an investor especially in case of debenture issuances, is that the Charge Scheme enables the company to complete the pending filings. Moreover, the Act provides that a liquidator appointed under the Insolvency and Bankruptcy Code, 2016 has to take into account the charge created by a company and such charge has to be registered. This allows the investor to ensure that companies can rectify the filings and adequately reflect the charge with the Registrar.

However, it must be noted that the benefit will not be applicable if the timeline for filing of the form has expired, even after excluding the exempted period. Further, the contractual right of the investor to enforce the repayment of the obligation (which is secured by the charge) would still remain. While these recent changes are a small breather to India Inc., regulators should not forget to protect the interest of investors, especially in these testing times.

 

 

References

[1]  Rule 18 of the Companies (Share Capital and Debentures) Rules, 2014

[2] Refer section 71, 77, 78 and 79 of the Companies Act, 2013 along with Rule 3(1) of the Companies (Registration of Charges) Rules, 2014.

[3] Refer section 77, 78 and 79 of the Companies Act, 2013 along with Rule 3 of the Companies (Registration of Charges) Rules, 2014.

[4] Companies (Amendment) Ordinance,2019

[5] Refer the Companies (Registration of Offices and Fees) Rules, 2014 (“Fees Rules”)

[6] For ease of reference, we have considered fees structure applicable for non-small companies.

 

 

Image Credits: Photo by Austin Distel on Unsplash

The exemptions provided last year towards the requirement of maintaining DRR was a big step to ease the compliance requirements for companies especially for those companies which are facing a financial crisis, however, it had affected the sentiments of investors in the debt market as the protection provided to the investor was being diluted. Now, with further relaxation in the requirement of maintaining the 15% deposit for listed companies undertaking debenture issuance on a private placement basis, the regulator needs to consider providing an adequate safety net to encourage investor protection.

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