Sunday, March 15, 2015

[aaykarbhavan] Source Business standard



The case of missing women in the boardroom


Last week, Tata Consultancy Services, India's largest software services exporter, appointed Aarthi Subramanian, the company's global head of the delivery excellence group, as executive director on its board. This is in line with Securities and Exchange Board of India (Sebi) rule of having at least one woman director on the board of all listed companies by April 1. However, surveys around board composition indicate that close to one- third listed companies are likely to miss the deadline. In September 2014, Sebi had given asix- month extension to companies to comply with this provision, dealing with norms for listed companies.

As many as 464 out of a total of 1,475 National Stock Exchange ( NSE)- listed companies were yet to appoint a woman director on March 8, said Pranav Haldea, managing director, PRIME Database.

He added a flurry of announcements of such appointments were likely over the next two- three weeks. But the last- minute rush is also likely to see many woman family members from the promoter groups making the cut.

According to nseinfobase. com, over the past year at least 82 positions of NSE- listed companies have been filled by appointing women belonging to the promoter group. " Most corporates may eventually comply in letter, but not in spirit," said Haldea.

Many corporate head hunters, trainers and some directors themselves feel that the issue of not finding suitable woman candidates for the board is more deep seated, and its needs systemic course corrections.

"Corporate India has not internalised the need to have woman directors. The need for gender diversity isn't truly felt across boardrooms, and the business case isn't compelling for companies," said Shriram Subramanian, founder and managing director, InGovern Research Services, a corporate governance advisory firm. Agreed Shachi Irde, executive director, Catalyst India WRC, a nonprofit organisation that works to build inclusive workplaces. "Not enough is being done by business leaders and companies to disrupt the default status quo in the workplace." The 2014 Catalyst Census: Women Board Directors notes that women's share of board seats in India is only 9.5 per cent. What further complicates the matter is that the proportion of senior management roles held by women in India is among the lowest in the world, pegged at 15 per cent, according to a report by Grant Thornton.

Some women have reluctance to raise their hands to take up the challenges and rigours that a top management job brings, according to Sangeeta Talwar, a marketing and branding specialist with three decades corporate experience, and currently on the board of half- adozen companies.

"Social perspectives and expectation requirements take their toll," said Talwar.

Catalyst found that nearly 50 per cent of Indian women drop out of the corporate employment pipeline between junior and mid- levels, compared with 29 per cent across Asia.

Some human resource heads complain that the restrictions in the number of directorship positions that a person can occupy according to Sebi corporate governance norms — a maximum of seven listed companies as an independent director and three, if the person is a whole- time director in a listed firm — makes their task harder. "Some relaxation for women directors would help," said the HR head of a finance firm.

However, many such as Irde feel there is no dearth of qualified women to take up board positions. " It is important to connect the right women with the right opportunities," she said.

Many trainers and human resource heads feel corporate India has to closely examine its retention strategies and pipeline- building processes to build on gender diversity within the organisation.

According to Shriram of Ingovern said it is futile to expect a regulatory need to bring about a mindset change within corporates.

"The pool can grow if companies recognise that gender diversity contributes to corporate performance." he added.

Having women from the family of the promoter on the board is a reality that corporate India and regulators have to live with, said Arun Duggal, chairman, Shriram Ownership Trust, who is involved in a mentorship programme for first- time woman directors. " This is a social change, and social evolution takes place with time," said Duggal.

Talwar said women from promoter families should have adequate exposure to the business before joining the board.

"A board position requires a director to bring to the table lot of strategic insights. They can only do that with proper exposure and professional training," she added. Irde, too, has nothing against choosing women on the boards of companies from promoter families as long as they are well qualified.

Many experts warn that if women from promoter families are given token board positions, the effectiveness of the board could get diminished in the long run. The best way to bite the bullet, say human resources experts, is to build on gender diversity across the organisation.

552 number of

woman directors

appointed in 600 companies over the past 12 months 82 the number of

directorship positions

filled by women belonging to the promoter group 460 number of

first time woman

appointees to the board of a NSE- listed company

958 Total number of woman directors who occupy 1,168

directorship positions in NSE- listed companies

RENU CHALLU, GEETA MATHUR, VIBHA PAUL RISHI, IREENA GOPAL VITTAL

On 6 boards as an independent director

Source: NSEINFOBASE. COM as on March 8th, 2015

Source: Grant Thorntons Women in business: The path to leadership 2015

Figures in %

Some top ranking women directors

Proportion of senior management roles held by women

464 ( 32%)

out of 1475 NSE- listed

companies still to appoint awoman director on their board

A WORK IN PROGRESS

RAMNI NIRULA

On 7 boards as independent director

RENU SUD KARNAD On 7 boards,

of which 4 are as independent director

RUSSIA 40 GEORGIA 38 POLAND 37

TOP THREE COUNTRIES

INDIA 15 GERMANY 14 JAPAN 8

BOTTOM THREE COUNTRIES

Many companies are likely to miss the April 1 deadline for putting women on their board of directors. Sudipto Dey finds out why

 

Can CBEC circular be always retrospective if it is beneficial?


Retrospectivity is now the most debated issue. And retrospectivity of a circular issued by the Central Board of Excise and Customs ( CBEC) is also in the news now. A recent judgment of the Tribunal in the case of L& T Sargent & Lundy - 014( 35) STR945 ( Tri. Ahmd., depending on a Supreme Court judgement in the case of Suchitra Components Ltd. Vs. Commissioner - 2008( 11) STR430( SC), and Jai Fibres Ltd.

vs. CCE, Mumbai - 2007 ( 218) E. L. T. 484 ( S. C.), has held that a beneficial circular has to be applied retrospectively while an oppressive circular has to be applied prospectively. I am writing to say that this proposition is not quite legally tenable and there are many more issues involved than the simple proposition mentioned above.

First, the Suchitra Components judgment has solely depended on Jai Fibres judgement.

And the latter does not clearly say in as so many words that the beneficial CBEC circular in all cases are retrospective.

Moreover, the issue was regarding a circular dated 24.9.1992 of the Board under Section 37B of the Excise Act which said that the goods shall be " henceforth classified" at a higher rate. So Supreme Court said that henceforth means prospective. In another judgment, namely CCE, Bangalore vs. Mysore Electricals Industries- 2006(204) ELT517( SC), Supreme Court says ( at para 15) the following, "…….. such re- classification can take effect only prospectively from the date of communication of the show cause notice proposing re- classification.

In the instant case, the show cause notice was communicated to the assessee only on 3112- 1993. Therefore, as rightly urged by the learned counsel for the respondent, the reclassification can take effect only from 27- 4- 1994 and accordingly, the differential duty can be demanded only from that date".

So Supreme Court judgment is that a higher duty can be levied from the time the show cause memo is issued and finalised. 27.4.1994 seems to be the date of finalisation of the issue of reclassification. The Supreme Court has not made any general observation that a circular of the Board is retrospective when it is beneficial although the lawyer of the taxpayer argued to that effect. If it has to be a Supreme Court judgment on such a fundamental issue of retrospectivity, then the Supreme Court has to say this in so many words, which it has not done. It has only given the judgments on very specific and limited issues as discussed above.

Then there is another issue as to whether the Board can make a circular prospective when it is basically retrospective in nature. This has arisen because of the same Supreme Court judgment in the case of Jai Fibres Ltd. ( mentioned above) interpreting the retrospectivity of classification on the basis of a CBEC Circular No. 54/ 12/ 91- CX. 1 dated 24.7.1992. The facts of the Supreme Court case relate to classification of HDPE bags which were variously classified under central excise tariff items 39, 54, or 63. To bring about uniformity, the Board under Section 37- B of the Central Excise Act ordered " that HDPE bags shall be henceforth classified under heading 3923.90".

The manufacturer argued in the case of H. M. Bags vs. CCE -1997( 94) ELT3( SC) that henceforth means prospective. This has also been accepted by Supreme Court in the H. M. Bags case and also much later in 2007 by Supreme Court in the Jai Fibre case, 1997 ( supra). Actually, the 2007 judgment of Supreme Court merely relied on the first judgment of 1997 and the latter is a very brief judgment in which there is no argument made by the Department. Therefore, my view is that the Board cannot make classification prospective when it is basically, that is, legally retrospective since it is clarificatory in nature, that being the fundamental principle on retrospectivity.

Conclusion: The fundamental principle is that a clarificatory circular can only be retrospective. Any circular cannot be retrospective just because it is beneficial to the tax payer. It has to be clarificatory also at the same time.

If it is clarificatory, then it will be retrospective even if it is oppressive to the tax payer. Secondly, if a circular is fundamentally retrospective in nature, CBEC cannot make it prospective. For it means, throwing away revenue which it cannot do.

smukher2000@ yahoo. com

Supreme Court has not made any general observation that a circular of the Board is retrospective

A clarificatory circular can only be retrospective

EXPERT EYE

SUKUMAR MUKHOPADHYAY

 

BRIEF CASE
A weekly selection of key court orders


More bungling in Karnataka mine leases

Last week, The Supreme Court indicted the Karnataka government and its Director of Mines for the way they transferred large mining lands in Bellary district from Dalmia Cement Ltd to another mining firm, flouting rules under the Forest Act and the Mineral Concession Rules. National wealth should be distributed strictly according to the rules and the conduct of the state and its authorities are " highly condemnable and calls for stringent action against them," the court stated while setting aside the high court judgment in the case, Muneer Enterprises vs Ramgad Minerals and Mining Ltd. The apex court stated that the director " simply glossed over the gross violations of the Forest Act" by approving the transfer of land surrendered by Dalmia Cement to the Ramgad firm. The 100- page judgment narrated the complex dealings among the competing miners and stated that " there was total lack of bona fides on the part of the state government in taking a sudden Uturn for passing the order of transfer in favour of Ramgad Minerals." Reversing the view of the high court, the apex court stated that any lease granted or renewed without following the central laws would be void

 Injunctions should not stall arbitration

If there is an arbitration agreement, the civil court should not interfere in the dispute between the parties and pass injunctions, invoking the Civil Procedure Code. The rule under Section 8 of the Arbitration and Conciliation Act that the dispute should be arbitrated is peremptory, the Supreme Court has stated in the judgment, Sundaram Finance Ltd vs T Thankam. In this case, a woman bought a car on loan. Disputes having risen, she moved the civil court for an injunction against the financing company from repossessing the vehicle. The court passed such an order.

The company moved the Kerala High Court in appeal, the high court stated that a petition for injunction can be separated from the main dispute and the Act did not bar the civil court from passing an injunction. The financier moved the Supreme Court. It allowed the appeal stating that the Arbitration Act is a special law which overrode the general civil law and Section 8 must be strictly followed. Otherwise, " it would only delay the resolution of disputes and complicate the redressal of grievance and of course unnecessarily increase the pendency in the court," the judgment said while setting aside the orders of courts below.

 Row over Indian court's jurisdiction

The Supreme Court last week dismissed the appeal of Harmony Innovation Shipping Ltd against the Kerala High Court judgment in an arbitration dispute with Gupta Coal India Ltd. The issue was whether Indian courts have jurisdiction in the dispute as the cargo was sent from Indonesia to India and the arbitration clause referred to London as the seat of arbitration. The district court in Kerala directed Gupta Coal to furnish a security of ₹ 6.60 crore and attached the cargo. On appeal, the high court set aside the orders of the court below. Upholding the high court view, the Supreme Court stated that " the commercial background, the context of the contract and the circumstances of the parties" irresistibly led to the conclusion that the seat of arbitration should be London

 Agency commission not tax deductible

The Supreme Court last week ruled that manufacturers of alcoholic beverages are not entitled to the benefit of disallowance purportedly paid by them to their commission agents for procurement of order for supply of liquor. The Kerala High Court had rejected the claim made under the Income Tax Act, and the Supreme Court upheld that view in its judgment, Premier Breweries Ltd vs CIT, Kochi. Certain states like Kerala and Tamil Nadu have established marketing corporations which are exclusive wholesalers of liquor and all manufacturers have to sell their products to them. The corporations would then sell the liquor to retailers. The manufacturers pleaded that they have to engage agents to coordinate with retailers and the corporations to ensure continuous supply of beverages to the consumers. Therefore, they claimed benefits under Section 37 of the Act. The revenue authorities rejected the claim and the Supreme Court approved of it.

 Pay order cannot bounce

If a bank stops payment of a pay order to another bank, a third party who is an account holder cannot file a complaint under the Negotiable Instruments Act for dishonour of cheques. The Supreme Court stated so in its judgment, ING Vysya Bank Ltd vs State of Rajasthan. In this case, ING had issued a pay order in the name of Citi Bank, New York, for account holder Jaya Enterprises. ING later stopped payment after receiving a telex message from Citi, at whose instruction the pay order was issued. The account holder then filed a complaint against ING. The magistrate took cognisance of it. The bank moved the Rajasthan High Court which dismissed the appeal. The Supreme Court set aside the orders of the courts below stating that there was no transaction between ING and the account holder. Dragging the bank to the criminal court was a " clear case of abuse of process of the power of court," the apex court said.

 Bad math in computing compensation

The Supreme Court has once again observed that the motor vehicles accident tribunals and high courts err while computing the loss caused to victims of road accidents. In this case, Jakir Hussein vs Sabir, the driver of a vehicle lost his right hand in the mishap and the medical evidence showed 55 per cent loss of earning power. However, the tribunal awarded only ₹ 4.38 lakh and the Madhya Pradesh marginally raised the compensation. The Supreme Court recalculated the loss and asked the insurance company to pay ₹ 17.60 lakh to the victim. It said that the statutory minimum wage is not always binding and driving was a skilled job. The court fixed loss of future income of the driver at ₹ 8.64 lakh and medical expenses at ₹ 2 lakh and future medical expenses at another ₹ 2 lakh. The insurer shall also pay nine per cent interest as the case was pending for six years. In another case, New India Assurance vs Sukanta Kumar, the tribunal awarded ₹ 4 lakh to the senior medical officer of Bhilai plant who suffered permanent disability in an accident. The Orissa High Court raised the amount to ₹ 55 lakh, but the Supreme Court reduced it to ₹ 35 lakh as the high court passed the order " without discussion and computation".

 

 


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Posted by: CS A Rengarajan <csarengarajan@gmail.com>


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