the parent entity is tax resident of the country or territory which has suspended or failed to exchange the CbCR with <\/span>India. <\/p>\n Then, such information to be intimated by the designated constituent entity to the Department in Form 3CEAE.<\/td>\n<\/tr>\n<\/table>\n
<\/p>\n
*As per section 286 (7) r.w.r. 10DA as well as 10DB of the Act, the above compliance is applicable in respect of a MNE group having total consolidated group revenue for the accounting year preceding to the relevant accounting year exceeding the prescribed amount or threshold limit. Currently, the said threshold limit as per the global consensus is € 750 million which is equivalent to INR 5,500 crores [as per Rule 10DB(6) of the Rules]. So for AY 2017-18, the Consolidated Revenue of the Group is required for the Accounting Year of the parent entity ending just before April 01, 2016.<\/p>\n
What is meant by International Group?<\/h2>\n
As per Section 286(9)(g) of the Act, "international group" means any group that includes,—<\/p>\n
(i)\ttwo or more enterprises which are resident of different countries or territories; or<\/p>\n
(ii)\tan enterprise, being a resident of one country or territory, which carries on any business through a permanent establishment in other countries or territories;<\/p>\n
In addition to this, as per Section 286(9)(e) of the Act, "group" includes a parent entity and all the entities in respect of which, for the reason of ownership or control, a consolidated financial statement for financial reporting purposes,—<\/p>\n
(i)\tis required to be prepared under any law for the time being in force or the accounting standards of the country or territory of which the parent entity is resident; or<\/p>\n
(ii)\twould have been required to be prepared had the equity shares of any of the enterprises were listed on a stock exchange in the country or territory of which the parent entity is resident.<\/p>\n
From the above definition we can say that:<\/p>\n
a.\tAn entity resident in India say X Ltd. having subsidiary in USA say Y Inc., then they both collectively would constitute an international group. X Ltd. Is required to prepare consolidated financial statements as per Indian Accounting Standards.<\/p>\n
b.\tNow, in example in point (a) suppose X Inc. is resident of USA and having a branch Y in India. Then as Y becomes Permanent Establishment (PE) of X Inc., both of them collectively would constitute an international group. As per laws applicable in India the branch Y of X Inc. is required to prepare separate financial statements for operations undertaken by it in India and X Inc. consolidates the same within its financial statements.<\/p>\n
In both the above examples, as there are two enterprises which are resident in two different countries, hence they would collectively constitute as a Group u\/s 286(9)(e) and further as an International Group u\/s 286(9)(g).However, the term enterprise has been defined u\/s 92F and not been defined u\/s 286 of the Act or has also not been specifically given reference of Section 92F unlike term PE.<\/p>\n
The rate of exchange for the calculation of the value in rupees of the consolidated group revenue in foreign currency shall be the telegraphic transfer buying rate of such currency on the last day of the accounting year. The “telegraphic transfer buying rate" shall have the same meaning as assigned in the Explanation to Rule 26 of the Indian Income-tax Rules, 1962.<\/p>\n
How to determine Parent Entity of International Group?<\/h2>\n
As per Section 286(9)(h) of the Act, "parent entity" means a constituent entity, of an international group holding, directly or indirectly, an interest in one or more of the other constituent entities of the international group, such that:<\/p>\n
(i)it is required to prepare a consolidated financial statement under any law for the time being in force or the accounting standards of the country or territory of which the entity is resident; or<\/p>\n
(ii)it would have been required to prepare a consolidated financial statement had the equity shares of any of the enterprises were listed on a stock exchange,<\/p>\n
and, there is no other constituent entity of such group which, due to ownership of any interest, directly or indirectly, in the first mentioned constituent entity, is required to prepare a consolidated financial statement, under the circumstances referred to in sub-clause (i) or sub-clause (ii), that includes the separate financial statement of the first mentioned constituent entity.<\/p>\n
From the above definition we can conclude that the parent entity is that entity, say X Ltd., of the international group who ultimately consolidates financial statements of all other group entities as per the applicable laws or accounting standards in the country or territory in which X Ltd. is resident; or the liability on X Ltd. to prepare consolidated financial statements arises as if it would have been listed on a stock exchange; and there is no group entity which consolidates financial statements of the first mentioned group entity i.e. X Ltd. in its financial statements. But if suppose there is group entity Y Ltd. which consolidates financial statements of X Ltd. in its books, then Y Ltd. would be the parent entity and not X Ltd.<\/p>\n
Whether for computing Total Consolidated Group Revenues per Rule 10DB(6) of the Rules extraordinary income and gain from investment activities be included? Also, for reporting purposes in CbC report i.e. Form 3CEAD – Part A in the column "Revenues" this amount to be included?<\/h2>\n
As per the “Guidance on the Implementation of Country-By-Country Reporting: BEPS Action 13” issued by OECD in determining whether the total consolidated group revenue of an MNE Group is less than INR 5,500 crores for the accounting year ending on or before March 31, 2016, all of the revenue that is (or would be) reflected in the consolidated financial statements should be used. A jurisdiction where the Ultimate Parent Entity (UPE) resides is required to include the extraordinary income and gains from investment activities in total consolidated group revenue if those items are presented in the consolidated financial statements under applicable accounting rules in the country or territory of the UPE.<\/p>\n
In addition to above, for the financial entities, which may not record gross amounts from transactions in their financial statements with respect to certain items like interest rate swap etc., the item(s) considered similar to revenue under the applicable accounting rules should be used in the context of financial activities, i.e. here the term ‘revenue’ would mean the net amount from the transaction of interest rate swap. Such items could be labeled as ‘net banking product’, ‘net revenues’ or others depending on accounting rules.<\/p>\n
As per the “Guidance on the Implementation of Country-By-Country Reporting: BEPS Action 13” the extraordinary income and gains from investment activities are to be included in "Revenues" column of the CbC Report i.e. Form 3CEAD.<\/p>\n
Whether for the purposes of evaluating limits under Rule 10DA(1), can the accounting year be different than previous year?<\/h2>\n
As per Section 286(9)(a) of the Act, “Accounting Year” has been defined as:<\/p>\n
a.\tIn case parent entity or alternate reporting entity is resident in India, the previous year;<\/p>\n
b.\tIn case the parent entity of the international group is resident of territory other than India, the accounting year w.r.t. which it prepares its financial statements as per the applicable laws or accounting standards in the country or territory in which it is resident.<\/p>\n
From the above definition we can conclude that, in case the parent entity of the international group is not resident in India and if the accounting year as per the applicable laws or accounting standards in the country or territory where the parent entity is resident is different from the previous year in India, then there would be different accounting year than the previous year. For example, if Parent Entity say X Inc. resident in USA and follows calendar year as accounting year then it will be different from the previous year followed by its subsidiary Z India Pvt. Ltd. resident in India.<\/p>\n
What are the major reporting requirements of the MF documentation?<\/h2>\n
Major reporting requirements of the Master File documentation (i.e. Form 3CEAA) as per various categories are as follows:<\/p>\n
A.\tOrganisational Structure<\/strong><\/p>\n 1.\tList of all entities of the international group along with their addresses<\/p>\n
2.\tChart depicting the legal status of the constituent entity and ownership structure of the entire international group<\/p>\n
B.\tBusiness Description<\/strong><\/p>\n 1.\tthe nature of the business or businesses<\/p>\n
2.\timportant drivers of profits of such business or businesses<\/p>\n
3.\tdescription of the supply chain for the 5 largest products or services of the international group in terms of revenue and any other products including services amounting to more than 5% of consolidated group revenue;<\/p>\n
4.\ta list and brief description of important service arrangements made among members of the international group, other than those for research and development services<\/p>\n
5.\ta description of the capabilities of the main service providers within the international group<\/p>\n
6.\tdetails about the transfer pricing policies for allocating service costs and determining prices to be paid for intra-group services<\/p>\n
7.\ta list and description of the major geographical markets (country wise) for the products and services offered by the international group<\/p>\n
8.\ta description of the functions performed, assets employed and risks assumed by the constituent entities of the international group that contribute at least 10% of the –<\/p>\n
•\trevenues or<\/p>\n
•\tassets or<\/p>\n
•\tprofits of such group<\/p>\n
9.\ta description of the important business restructuring transactions, acquisitions and divestments<\/p>\n
C.\tIntangibles<\/strong><\/p>\n 1.\ta description of the overall strategy of the international group for the development, ownership and exploitation of intangible property, including location of principal R&D facilities and their management<\/p>\n
2.\ta list of all entities of the international group engaged in development and management of intangible property along with their addresses<\/p>\n
3.\ta list of all the important intangible property or groups of intangible property owned by the international group along with the names and addresses of the group entities that legally own such intangible property<\/p>\n
4.\ta list and brief description of important agreements among members of the international group related to intangible property, including cost contribution arrangements, principal research service agreements and license agreements<\/p>\n
5.\ta detailed description of the transfer pricing policies of the international group related to R&D and intangible property<\/p>\n
6.\ta description of important transfers of interest in intangible property, if any, among entities of the international group, including the name and address of the selling and buying entities and the compensation paid for such transfers<\/p>\n
D.\tFinancial Activities<\/strong><\/p>\n 1.\ta detailed description of the financing arrangements of the international group, including the names and addresses of the top ten unrelated lenders<\/p>\n
2.\ta list of group entities that provide central financing functions, including their place (addresses) of operation and of effective management (POEM)<\/p>\n
3.\ta detailed description of the transfer pricing policies of the international group related to financing arrangements among group entities<\/p>\n
E.\tFinancial and Tax Position<\/strong><\/p>\n 1.\ta copy of the annual CFS of the international group
\n 2.\ta list and brief description of the existing unilateral advance pricing agreements and other tax rulings in respect of the international group for allocation of income among countries<\/p>\n
Note: The Master File shall be kept and maintained for a period of 8 years from the end of relevant assessment year (the year following the tax year).<\/p>\n
What are the major reporting requirements of the CbC documentation (i.e. Form 3CEAD)?<\/p>\n
Following is the CbC reporting templates which also shows the information and requirements to be reported in Form 3CEAD:<\/p>\n
![\"\"](\"https:\/\/www.itatonline.org\/articles_new\/wp-content\/uploads\/BEPS2.jpg\")
<\/a><\/p>\n![\"\"](\"https:\/\/www.itatonline.org\/articles_new\/wp-content\/uploads\/BEPS5.jpg\")
<\/a><\/p>\n![\"\"](\"https:\/\/www.itatonline.org\/articles_new\/wp-content\/uploads\/BEPS4.jpg\")
<\/a><\/p>\n From which year does MF documentation and CbCR<\/a> required to be complied in India?<\/h2>\n
The said TP compliance is applicable from AY 2017-18 and onwards. The due dates of e-filing of various forms as per Rules 10DA and 10DB of the Rules are as under:<\/p>\n
\n\n\n S. No.<\/strong> <\/td>\nDocumentation<\/strong><\/td>\nForm No.<\/strong><\/td>\nDue Date for AY 2017-18<\/strong><\/td>\nDue Date for subsequent AYs<\/strong><\/td>\n<\/tr>\n\n| 1<\/td>\n | Master File<\/td>\n | Form 3CEAA – Part A<\/td>\n | March 31, 2018 <\/td>\n | Due date of filing return of income<\/td>\n<\/tr>\n | \n| 2<\/td>\n | Form 3CEAA – Part B<\/td>\n | March 31, 2018 <\/td>\n | Due date of filing return of income<\/td>\n<\/tr>\n | \n| 3<\/td>\n | Form 3CEAB<\/td>\n | March 01, 2018 <\/td>\n | 30 days before the due date for filing Form No. 3CEAA<\/td>\n<\/tr>\n | \n| 4<\/td>\n | CbC<\/td>\n | Form 3CEAC<\/td>\n | January 31, 2018 <\/td>\n | 2 months prior to due date for filing Form No. 3CEAD<\/td>\n<\/tr>\n | \n| 5<\/td>\n | Form 3CEAD<\/td>\n | March 31, 2018 <\/td>\n | Due date of filing return of income<\/td>\n<\/tr>\n | \n| 6<\/td>\n | Form 3CEAE<\/td>\n | Yet to be clarified by CBDT <\/td>\n | Yet to be clarified by CBDT <\/td>\n<\/tr>\n<\/table>\n Whether any penalty on non-compliance?<\/h2>\nNon-compliance of the same will attract severe monetary penalty under the provisions of the Act as follows:<\/p>\n \n\n\n S. No.<\/strong> <\/td>\nPenalty Section<\/strong><\/td>\nDescription of the Penalty Provision<\/strong><\/td>\nQuantum of Penalty<\/strong>
\n (INR)<\/strong><\/td>\n<\/tr>\n\n| 1<\/td>\n | 271AA(2)<\/td>\n | Failure to furnish Master File documentation prescribed u\/s 92D(4)<\/td>\n | 5,00,000<\/td>\n<\/tr>\n | \n| 2<\/td>\n | 271GB(1)<\/td>\n | Failure to furnish CbC Report (Form 3CEAD)<\/td>\n | i) 5,000 per day if failure continues till 1 month
\n ii) 15,000 per day if failure continues beyond 1 month<\/td>\n<\/tr>\n | \n| 3<\/td>\n | 271GB(2)<\/td>\n | Furnishing of information and documentation as per Notice issued by the prescribed authority<\/td>\n | 5,000 per day from day of expiration on which period of furnishing the information and documentation expires<\/td>\n<\/tr>\n | \n| 4<\/td>\n | 271GB(3)<\/td>\n | If Penalty order issued by the prescribed authority for 271GB(1) and 271GB(2)<\/td>\n | 50,000 per day from the date of service of such order<\/td>\n<\/tr>\n | \n| 5<\/td>\n | 271GB(4)<\/td>\n | Inaccurate particulars are been furnished and:<\/p>\n i) entity has knowledge of inaccuracy at time of furnishing the report; or<\/p>\n ii) entity discovers inaccuracy after furnishing the report and fails to inform and furnish correct report within 15 days of such discovery; or<\/p>\n iii) entity furnishes inaccurate information or document in response to notice issued u\/s 286(6)<\/td>\n | 5,00,000<\/td>\n<\/tr>\n<\/table>\n What are the key differences between OECD requirements vis-a-via requirements under the CBDT final rules in India?<\/h2>\nThe following table is a snapshot of additional documentation requirement in India compared to OECD requirements:<\/p>\n \n\nMaster File Requirement<\/strong><\/td>\nOECD BEPS Action 13 Requirements<\/strong><\/td>\nCBDT Notified IT Rules Requirements<\/strong><\/td>\n<\/tr>\n\nOrganization structure<\/strong><\/td>\n\n\n- Chart illustrating IG’s legal and ownership structure and geographical location of operating entities<\/span><\/li>\n<\/ul>\n<\/td>\n
\n\n- Addresses of all entities of the IG<\/span><\/li>\n<\/ul>\n<\/td>\n<\/tr>\n
\nDescription of business<\/strong><\/td>\n\n\n- Description of important drivers of business profit<\/span><\/li>\n<\/ul>\n
<\/p>\n \n- Description of supply chain for five largest products\/ services in terms of revenue and\/or which contributes to more than 5% of IG’s revenues<\/span><\/li>\n<\/ul>\n
\n- Functional analysis of the principal contributors to value creation<\/span><\/li>\n<\/ul>\n
<\/p>\n \n- Important business restructuring transactions<\/span><\/li>\n<\/ul>\n<\/td>\n
\n\n- Functions, Assets and Risk (“FAR”) of the entities contributing at least 10% of IG’s Revenue, or Assets or Profits<\/span><\/li>\n<\/ul>\n<\/td>\n<\/tr>\n
\nIntangibles<\/strong><\/td>\n\n\n- IG’s strategy for ownership, development and exploitation of intangibles<\/span><\/li>\n<\/ul>\n
<\/p>\n \n- List of important intangibles with ownership<\/span><\/li>\n<\/ul>\n
\n- Important agreements and corresponding transfer pricing policies in relation to Research & Development (“R&D”) and intangibles<\/span><\/li>\n<\/ul>\n<\/td>\n
\n\n- Names and addresses of all entities of the IG engaged in development and management of intangible property<\/span><\/li>\n<\/ul>\n
<\/p>\n \n- Addresses of entities legally owning important intangible property and entities involved in important transfers of interest in intangible property<\/span><\/li>\n<\/ul>\n<\/td>\n<\/tr>\n
\nIntercompany financial activities<\/strong><\/td>\n\n\n- Description of how the IG is financed, including identification of important financing arrangements with unrelated lenders<\/span><\/li>\n<\/ul>\n
<\/p>\n \n- Identification of entities performing central financing function including their place of operation and effective management and corresponding transfer pricing policies<\/span><\/li>\n<\/ul>\n<\/td>\n
\n\n- Names and addresses of top ten unrelated lenders<\/span><\/li>\n<\/ul>\n
<\/p>\n \n- Addresses of entities providing central financing functions including their place of operation and effective management<\/span><\/li>\n<\/ul>\n<\/td>\n<\/tr>\n<\/table>\n
What are the major challenges in compliance of MF documentation and CbCR?<\/h2>\nThe major challenges ahead:<\/p>\n \n- Identifying the Parent Entity and Constituent Entity (CE) of international group;<\/span><\/li>\n
- Collection of data from entities across the globe is a time consuming activity;<\/span><\/li>\n
- Authenticity of data provided by CEs, especially those not included in CFS –the data furnished may be unaudited;<\/span><\/li>\n
- The data may be highly confidential and prone to cyber theft;<\/span><\/li>\n
- Aligning of the enormous data in a particular format;<\/span><\/li>\n
- Interpretation of statutory provisions;<\/span><\/li>\n
- Risk assessment exercise of the data to be submitted;<\/span><\/li>\n
- Utility for electronic forms yet to be uploaded on e-filing website;<\/span><\/li>\n
- System challenges in e-filing of various forms;<\/span><\/li>\n
- Increase in litigations in absence of clarity of law; etc.<\/span><\/li>\n<\/ul>\n
Conclusion<\/h2>\nThe unprecedented attention to aggressive international tax planning has shaken the earth under the most powerful players in the world of international tax administration and policy design. The emerging economies particularly India, China and Brazil have taken a more active role in the shaping of the new fangled international tax regime, despite not being OECD members. The Indian Courts and Judiciary discover and interprets tax laws delivers judgments which today in the current trend the world watches using binocular vision.<\/p>\n The CBDT’s<\/em> final rules on MF and CbCR seek more data than OECD. The CBDT<\/em> is marching a step ahead by ordering on the table information beyond the menu of BEPS Action 13. Considering more detailed requirements of the CBDT‘s final rules<\/em> in comparison to the OECD requirements it gives a clear impression and looks that the CBDT is claiming itself to become the New OECD.<\/p>\nEven though CBDT has notified the Rules and respective Forms thereby in relation to MF documentation and CbCR on October 31, 2017, the said Forms are yet to be uploaded on the Income-tax website in electronic format. To our surprise, the CBDT once uploaded Forms 3CEAA and 3CEAD (screenshots of which are attached with this article in excel files) on December 14, 2017 at its e-filing website, the same have been withdrawn by CBDT from the website within very short period (say 4-5 days). Such surprising activity has been rarely done in past by CBDT. We would further like to bring to the notice of everyone that the due dates of the Forms are not far away and very short period of time is left to e-file them.<\/p>\n However, the Government of India (GOI) is fully committed and taking strategic steps to increase transparency and ease of doing business in India in sync with global standards. With introduction of key legislations, policies, reforms taking place such as GST, Ind AS in line with IFRS, RERA, IBC regulations, India marched ahead to form part of top 100 countries on World Bank’s ‘Ease of Doing Business’ rankings. India in 2017 tramped towards bringing its tax laws in harmony with the BEPS agenda. At the present moment the GOI is on a crucial mission towards transforming India to Developed India and is positively moving in full force towards achieving its dream of India Vision 2020. <\/p>\n Wish you all a Happy and Prosperous New Year 2018 amid the era of compliances.<\/p>\n \n\n| Disclaimer: <\/strong>The contents of this document are solely for informational purpose. It does not constitute professional advice or a formal recommendation. While due care has been taken in preparing this document, the existence of mistakes and omissions herein is not ruled out. Neither the author nor itatonline.org and its affiliates accepts any liabilities for any loss or damage of any kind arising out of any inaccurate or incomplete information in this document nor for any actions taken in reliance thereon. No part of this document should be distributed or copied (except for personal, non-commercial use) without express written permission of itatonline.org<\/td>\n<\/tr>\n<\/table>\n","protected":false},"excerpt":{"rendered":" CA Chaitanya Maheshwari and Advocate Ameya Khare have explained the entire law and practice relating to Master File (MF) documentation and Country-by-Country Reporting (CbCR) as are applicable under sections 92D and 286 of the Income-tax Act, 1961 read with the OECD guidelines on \u2018Base Erosion and Profit Shifting\u2019 (BEPS)<\/p>\n Read more ›<\/a><\/div>\n<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[1],"tags":[31,32,34,33],"class_list":["post-4821","post","type-post","status-publish","format-standard","hentry","category-articles","tag-base-erosion-and-profit-shifting","tag-beps","tag-cbcr","tag-master-file"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/itatonline.org\/articles_new\/wp-json\/wp\/v2\/posts\/4821","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/itatonline.org\/articles_new\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/itatonline.org\/articles_new\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/itatonline.org\/articles_new\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/itatonline.org\/articles_new\/wp-json\/wp\/v2\/comments?post=4821"}],"version-history":[{"count":0,"href":"https:\/\/itatonline.org\/articles_new\/wp-json\/wp\/v2\/posts\/4821\/revisions"}],"wp:attachment":[{"href":"https:\/\/itatonline.org\/articles_new\/wp-json\/wp\/v2\/media?parent=4821"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/itatonline.org\/articles_new\/wp-json\/wp\/v2\/categories?post=4821"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/itatonline.org\/articles_new\/wp-json\/wp\/v2\/tags?post=4821"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}} | | | | | | | | | | | | | | | | | | | | | | | | | | |
![\"\"](\"https:\/\/www.itatonline.org\/articles_new\/wp-content\/uploads\/BEPS-Authors.jpg\")
<\/p>\n![\"\"](\"https:\/\/www.itatonline.org\/articles_new\/wp-content\/uploads\/BEPS.jpg\")
<\/a><\/p>\n<\/td>\n<\/tr>\n