Monday, May 25, 2015

[aaykarbhavan] Judgments and Information [1 Attachment]





Protects Hawkins' registered label, an attractive 'artistic work'; Penalizes infringer

HC grants permanent injunction, penalizes defendant for wrongful & illegal application of Hawkins Cooker Ltd's (plaintiff) label design on its pressure cooker, thereby infringing plaintiff's copyright; Holds plaintiff's registered label design, i.e. two red semi-circles with a white patch in between and white highlight all round as an 'attractive get-up'; Observes that use of same colour combination, get-up and layout by defendant on its product is sufficient to pass off its goods as that of plaintiff's, applies an average man's intelligence; Rejects defendant's reliance on Sec. 15 of Copyright Act, 1957 to contend that since plaintiff's logo has been produced more than fifty times by a mechanical process, it does not enjoy the copyright protection; Holds that the alleged label was an 'artistic work' and Sec. 15 applies to copyright in industrial designs and "does not prevent the owner of copyright in claiming exclusivity of any artistic work or label"; Further rejects defendant's submission that similar logos are used by other pressure cooker manufacturers and manufacturers of other products, absent proof; Relies on SC observations in Sait Tarajee Khimchand & Ors. v Yelamarti Satyam & Ors., Satyam Infoway Ltd. v. Sifynet Solutions (P) Ltd.:Calcutta HC

Restrains YouTube from telecasting famous filmmakers' professional journey movie; Protects copyright infringement

HC grants interlocutory injunction to Indian Independent Filmmakers Worldwide Association's ('plaintiff') against YouTube for infringing its copyright by broadcasting cinematographic content of plaintiff's film; Plaintiff's cinematographic film 'Season 2 of IIFW MASTERCLASS' depicted reputed filmmakers' professional journey, and YouTube had uploaded and broadcasted an episode relating to interview of famous filmmakers, Sudhir Mishra & Rajkumar Hirani; Thus, HC issues cease and desist order restraining You Tube from exhibiting/ transmitting the cinematographic content in which plaintiff owned copyright; Observes that FICCI had permitted plaintiff to exclusively record its season, and in absence of show cause by You Tube as to why it should not be refrained from showing plaintiff's cinematographic content, holds "a prima-facie case of copyright infringement is made out by the Plaintiff":Bombay HC

Directs Registrar to expunge respondent's 'trademark', as applicant 'prior adopter and user'

IPAB directs Registrar of Trade Marks to expunge respondent's trade mark 'PRIME' from Trade Marks register, as applicant 'prior adopter and user' of the mark for similar product; Observes that the documents on record proved that applicant used the trademark since 1983, however, respondent failed to prove that it started using the mark even from 2000, as claimed by it, thus rejects respondent's 'honest concurrent user' plea; Further rejects respondent's contention that it used the mark only for HDPE pipes unlike applicant who used it for plastic pipes, observes that "any type of pipes manufactured under the name and style as 'PRIME\' would certainly create chaos and confusion among the consumers"; Relies on Madras HC Division Bench ruling whereby injunction was granted to applicant against respondent for the use of similar trademark; Concludes that, "In view of the clear and categorical findings of the Hon'ble High Court of Madras to the effect that both the parties are manufacturing pipes under the impugned trade mark "PRIME", preference should be given to the prior user and adopter":Chennai IPAB

Income Tax Appellate Tribunal
4th Floor, Prathishtha Bhavan, 101 Maharshi Karwe Marg,
Mumbai – 400 020
20th May, 2015.
ORDER
All applications for adjournment shall be filed atleast three weeks in advance, except in exceptional cases for which reasons for filing them beyond that period shall be clearly stated in the application. The application will be filed in duplicate and the copy served in advance on the opposite party. In case the opposite party writes "not opposed" on the application, it shall be taken up in Chamber, otherwise, all applications shall be listed before the Court along with the case. All applications shall clearly state the grounds on which adjournment is sought and shall be supported by an affidavit of the party seeking adjournment.
Sdl-
[Justice (Retd.) Dev Darshan Sud]
President

Income Tax Appellate Tribunal
4th Floor, Prathishtha Bhavan, 101 Maharshi Karwe Marg,
Mumbai – 400 020
14th May, 2015.
ORDER
Henceforth all appeals filed in the Tribunal by the Department or assessee shall contain:
(a) Index sheet clearly indicating the documents filed.
(b) Appeal paper book shall be paged in continuation.
Sdl-
[Justice (Retd.) Dev Darshan Sud]
President

CCI proposes M&A cases e-filing; Crowd-funding regulations on back burner; IPRs likely in Class-IX curriculum

 
New ITAT Rules For Filing Appeals And Seeking Adjournment

Income Tax Appellate Tribunal
4th Floor, Prathishtha Bhavan, 101 Maharshi Karwe Marg,
Mumbai – 400 020

20th May, 2015.

ORDER

All applications for adjournment shall be filed atleast three weeks in advance, except in exceptional cases for which reasons for filing them beyond that period shall be clearly stated in the application. The application will be filed in duplicate and the copy served in advance on the opposite party. In case the opposite party writes "not opposed" on the application, it shall be taken up in Chamber, otherwise, all applications shall be listed before the Court along with the case. All applications shall clearly state the grounds on which adjournment is sought and shall be supported by an affidavit of the party seeking adjournment.

Sdl-

[Justice (Retd.) Dev Darshan Sud]
President

Income Tax Appellate Tribunal
4th Floor, Prathishtha Bhavan, 101 Maharshi Karwe Marg,
Mumbai – 400 020

14th May, 2015.

ORDER

Henceforth all appeals filed in the Tribunal by the Department or assessee shall contain:

(a) Index sheet clearly indicating the documents filed.

(b) Appeal paper book shall be paged in continuation.

Sdl-

[Justice (Retd.) Dev Darshan Sud]
President









 


 





LSI News Alert - SEBI amends MF Regulations, sets last-date for Research Analyst registration; No carry forward of excess CSR expense
LawStreetIndia.com
BCC
djshah1944@yahoo.com
May 21 at 7:49 AM



SEBI permits asset management cos. to provide management & advisory services to FPIs

SEBI amends Mutual Funds Regulations, allows asset management companies to provide management & advisory services to FPIs Category-I and/or Category-II which are appropriately regulated broad based funds, as specified in SEBI (Foreign Portfolio Investors) Regulations, 2014: SEBI

Click here to read more.

SEBI sets deadline for making application for obtaining research analyst registration

SEBI sets May 31, 2015 as the deadline for making application for grant of registration under SEBI (Research Analysts) Regulations, 2014; States that all the persons acting as research analysts / research entity before the commencement of Regulations are advised to make an application for grant of registration before the said date; Clarifies that the person who fails to make an application for grant of registration shall stop acting as research analyst and if any person is found to be acting as research analyst after the said date (without making an application for grant of registration) action may be initiated : SEBI

Click here to read more.

ICAI Guidance Note on CSR expenditure accounting disallows excess expense carry forward

ICAI issues Guidance Note on accounting for expenditure on Corporate Social Responsibility activities;  Clarifies that where a company spends more than prescribed amount (2% of average net profits of immediately preceding 3-years), excess amount cannot be carried forward for set-off against CSR expenditure required to be spent in future; Note also specifies on the recognition of income earned from CSR Projects/Programmes or during the course of conduct of CSR activities: ICAI Guidance Note.

Click here to read more.

DIPP summarizes measures taken for improving ease of doing business in India

DIPP summarizes the series of measures taken for improving 'ease of doing business' in India, states that the emphasis is on simplification and rationalization of existing rules and introduction of information technology for making governance more efficient and effective; States that process of applying for Industrial License & Industrial Entrepreneur Memorandum is made online,  prescribes limit on number of documents (three nos.) required for export and import, introduction of integrated process for company incorporation; States that initial validity period of Industrial License has been increased to 3-years from 2-years, which will give enough time to licensees for procuring land and obtaining necessary clearances/approvals from authorities; Also states that NIC Code – NIC 2008 – has been adopted, which is the advanced version of industrial classification, which will allow Indian businesses to be part of globally recognized and accepted classification that facilitate smooth approvals/registration; Reiterates that the process for applying of environment and forests clearances is made online, states that the requirement for Environment Assessment Report is required for industrial shed / school / college / hostel for education institution above 20,000 sq. mts. of build-up area up to 150,000 sq. mts. of build-up area: DIPP

Click here to read more.

SEBI issues guidelines on co-location/proximity hosting facility by stock exchanges to stock-brokers

SEBI issues guidelines on the facility of co-location to stock brokers and data vendors under SEBI Act provisions, whereby trading systems are allowed to connect to stock exchanges' trading platform through direct / private network; States that stock exchanges to provide the facility in fair, transparent and equitable manner, all participants who avail hosting facility shall have fair and equal access to facilities and data feeds provided by the stock exchange; Stock exchange shall expeditiously decide on stock brokers / data vendors request such  facility and communicate the decision within 15-working days; Advises stock exchange to implement suitable mechanism for protecting its systems and stock brokers' / data vendors systems from unauthorized access, frame guidelines on access and conduct of personnel: SEBI

Click here to read more.

SEBI provides flexibility to clearing corporations for deciding time for conducting auction settlement

SEBI acknowledges the receipt of suggestions from Clearing Corporations & Stock Exchanges for facilitating time-reduction involved in delivering shares to buying broker, in case of default by selling broker, and permits to provide flexibility to Clearing Corporations for deciding the time for conducting auction-settlement session on or before T+3 day; Prescribes the activity schedule for conducting settlement of auction-session and close-out as prescribed by the said circular stands revised: SEBI

Click here to read more.

Govt. designates Special Court, Calcutta as 'Special Court' under Securities Laws

Govt. designates 5th Special Court, Calcutta as 'Special Court' under SEBI Act, Securities Contract (Regulation) Act and Depositories Act.

Click here to read more.

Govt. designates Sessions Court, Greater Mumbai as 'Special Court' under Securities Laws

Govt. designates 39th Sessions Court, City Civil Court, Greater Mumbai as the Special Court under the SEBI Act, Securities Contract (Regulation) Act and Depositories Act. 

Click here to read more.

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© TAXSUTRA All rights reserved
Click to Reply All




Govt. designates 5th Special Court, Calcutta as 'Special Court' under SEBI Act, Securities Contract (Regulation) Act and Depositories Act.

Click here to read more.

Govt. designates Sessions Court, Greater Mumbai as 'Special Court' under Securities Laws

Govt. designates 39th Sessions Court, City Civil Court, Greater Mumbai as the Special Court under the SEBI Act, Securities Contract (Regulation) Act and Depositories Act. 

Click here to read more.

Cabinet approves 'NRI' definition expansion, investments to be deemed domestic investment

Union Cabinet, chaired by the Prime Minister, approves to review FDI Policy on investments by Non-Resident Indians (NRIs), Persons of Indian Origin (PIOs) and Overseas Citizens of India (OCIs); Cabinet approves amending the definition of 'NRI' to mean an individual resident outside India, who is citizen of India or is an OCI cardholder within meaning of Citizenship Act and POIs cardholders are deemed to be OCI cardholders; Approves addition of new paragraph in FDI policy, whereby investment by NRIs will be deemed to be 'domestic investment' at par with the investment made by residents; States that such measure is expected to result in increased investments across sectors and greater inflow of foreign exchange remittance leading to economic growth: PIB


Dear Sirs,

Unconditional exemption of income under Section 10 and no statutory liability to file return of income under Section 139- NO TDS- SEE CIRCULAR NO.7
PFA


Belated claim on grandfather's legacy not entitled to Sec. 35 protection

HC restrains Ram Education Trust (defendant) to construct school under name & style of 'SHRI RAM', as it is similar to SRF Foundation's (plaintiff) The SHRI RAM SCHOOL (estd in 1988); Founders of plaintiff and defendant were real brothers and grandsons of Shri Ram, who has reputed educational institutions such as Shri Ram College of Commerce (in 1926) and Lady Shri Ram College (in 1956) in Delhi; Thus, defendant contended that 'SHRI RAM' being name of their grandfather, plaintiff could ​not claim monopoly and relied on Sec 35​ of Trademarks Act (that protects bona fide use by a person of his own name against proprietor or registered user of a registered trade mark); Rejecting such contention, HC holds that Sec 35 cannot be read blindly to entitle a party to use his own name, surname in respect of same goods and services and notes that use of name should be bonafide; Observes that defendant's use of the mark in 2011, after 23 years, was not bonafide, as it was intended to make use of plaintiff's goodwill; Notes that though grandfather of founders of plaintiff & defendant was involved in education field bearing mark SHRI RAM prior to plaintiff's schools but, no school was run on commercial scale, and states that there would be no objection if defendant would claim legacy of grandfather Sir Shri Ram in relation to other activities of education except for running the school; However, HC allows defendant to continue its existing school SHRI RAM GLOBAL PRE SCHOOL with a disclaimer that it has no connection with plaintiff, observes that "balance has to be strike down..otherwise, great hardship would not only cause to the defendant but also to the students and their family; Relies on SC observations in Mahendra & Mahendra Paper Mills Ltd. v. Mahindra & Mahindra Ltd., Dalpat Kumar vs. Prahlad Singh:Delhi HC


Narayana Murthy heads panel on start-ups; Airlines again under CCI scanner; RBI hints at simplified forex rules

Narayana Murthy heads panel on start-ups; Airlines again under CCI scanner; RBI hints at simplified forex rules

 

Dear Patrons,
If you have missed any of our updates on corporate laws, competition law or intellectual property laws, for the months of March & April 2015, here is a chance to catch up with all of them at one place. We are glad to present to you our Newsletter for March & April that will surely grab your attention.
Click here to read LSI Monthly Newsletter, March & April 2015.
Best Regards,
LSI Team
MUMBAI, MAY 22, 2015: THE issue before the Bench is - Whether sum receivedafter tripartite agreement is to be taxed as capital gains when assessee is engaged in such activity with respect to only one property. YES is the answer.
Facts of the case
The assessee is a manufacturer of textiles. The assessee was allotted a plot of land on lease by CIDCO with a specific condition that the plot must be used for construction of office building only. Therefore, when this agreement was executed and possession was taken the intention was to construct a corporate office. However, for more than 10 years it could not set up a corporate office and, therefore, an application was made to the CIDCO to consider the change of user to residential-cum-commercial complex. The CIDCO granted permission and it was subject to the condition that construction should be done within two years otherwise a penalty would be imposed by CIDCO. Thereafter application was made to the CIDCO for grant of permission to assign these leasehold rights in the plot to the buyer, which was accordingly granted. During assessment, the Revenue held that the gains derived by the assessee from such transaction and which was tripartite in nature was adventure in the nature of trade.
However, the Tribunal following the Supreme court judgement held that the gains derived by the assessee from the transaction was capital gains and not an adventure in the nature of trade.
On appeal, the HC held that,
++ it is in this overall perspective that the Tribunal considered the matter. It applied the relevant tests and as laid down by the Supreme Court in the case of G. Venkataswami Naidu and reaffirmed later. The Tribunal concluded that having regard to these tests, it is clear that a solitary or single transaction may be termed as adventure in the nature of trade even though the assessee, in a normal course, is not engaged in such business. But there is no formula and which can be applied generally. Ordinarily an isolated transaction cannot be the sole criterion to test as to whether it is in the nature of trade or sale of investment. A holistic and overall view of the transaction has to be taken;
++ upon finding that the plot was allotted but could not be utilized by manufacturer of cotton and yarn that the subsequent developments took place. It is only in the year 2005 and for the first time the assignment of leasehold interest took place. It was not a sale or transfer of property by the assessee for a profit but since use could not be made, that initially a conversion permission was sought but even thereafter a utilization of the property for the assessee's purpose did not come through. It is in these circumstances that the assignment with the consent of CIDCO has taken place. Therefore, the Tribunal termed that the amount received pursuant to the tripartite agreement is assessable to tax under the head "Capital Gains" only. The reasons assigned in the order under challenge and particularly that the revenue did not set up a case that the assessee was engaged in such activity in respect of any other piece of land or property that the single or isolated transaction was not termed as an adventure in the nature of trade. To our mind, such conclusion arrived at and consistent with the factual data does not raise any substantial questions of law.

Business Income—Deduction—Allowability—Funding of interest by term loan vis a vis Actual payment—Assessee was heavily indebted to its institutional creditors—ICICI was lead manager of those creditors—Accumulated interest on the overdue principal had mounted to Rs.3,00,14,900—Assessee was unable to discharge this interest liability due to its financial hardship—ICICI waived a part of compound interest together with the commitment charges and agreed to accept 3,00,149 convertible debentures of Rs.100 each, amounting to Rs.3,00,14,900 in lieu of the outstanding interest—Consequently, assessee issued debentures in favour of ICICI—Assessee claimed that interest of Rs.2,84,71,384 was deductible—AO was of view that debenture issue resulted only in postponement of interest liability and that the interest could not be considered as having been "actually paid" as required by Section to qualify for relief—He disallowed assessee's claim—CIT(A) on appeal, directed AO to allow deduction—ITAT upheld order of CIT(A)—Held, ICICI, IDBI and IFCI would also constitute public financial institutions for purposes of Section 43B and interest on loan taken by assessee from these entities would fall within the purview of Section 43B(d)—Explanation 3C, having retrospective effect with effect from 01.04.1989, would be applicable to present case—Explanation 3C squarely covers issue raised in this appeal, as it negates assessee's contention that interest which has been converted into a loan is deemed to be actually paid—In light of insertion of this explanation, which was not present at the time impugned order was passed, assessee cannot claim deduction u/s 43B—Thus, issue answered in favour of revenue—Revenue's appeal allowed

Dear Patrons,
In the recent landmark judgment in Madras Bar Association Vs Union of India & Anr. [LSI-486-SC-2015-(NDEL)], the Supreme Court's Constitution Bench upheld the validity of National Company Law Tribunal ('NCLT') / National Company Law Appellate Tribunal ('NCLAT') under the Companies Act, 2013. However, it struck down the validity of Technical Member appointment & Selection Committee constitution.
In this articleMr. Mahesh A. Athavale (Company Secretary and Partner, KANJ & Associates) analyses the SC ruling and states that the ruling is a welcome step "as it will reduce the burden of the Supreme Court, High Courts and CLBs on the corporate law related matters, which will ultimately help in unlocking the value of distressed assets".
The author further points out that formation of NCLT/NCLAT will widen opportunities for practicing professionals too, as post Tribunals formation practicing Chartered Accountants/Company Secretaries/Cost Accountants would be able to represent their client companies in matters like - mergers and amalgamations, revival of sick companies​,​ shareholders-management dispute matters etc. Thus, the author states that practicing professionals will now have to take some extra efforts for enhancing their skill sets. He opines that they need to develop the art of advocacy & soft skill and have basic knowledge of tax laws, accounting treatments in corporate restructuring etc.
Click here to read the article - 'SC clears NCLAT roadblocks - Can professionals cash in?'
Best Regards,
LSI Team





 





 


 





LSI News Alert - SEBI amends MF Regulations, sets last-date for Research Analyst registration; No carry forward of excess CSR expense
LawStreetIndia.com
BCC
djshah1944@yahoo.com
May 21 at 7:49 AM



SEBI permits asset management cos. to provide management & advisory services to FPIs

SEBI amends Mutual Funds Regulations, allows asset management companies to provide management & advisory services to FPIs Category-I and/or Category-II which are appropriately regulated broad based funds, as specified in SEBI (Foreign Portfolio Investors) Regulations, 2014: SEBI

Click here to read more.

SEBI sets deadline for making application for obtaining research analyst registration

SEBI sets May 31, 2015 as the deadline for making application for grant of registration under SEBI (Research Analysts) Regulations, 2014; States that all the persons acting as research analysts / research entity before the commencement of Regulations are advised to make an application for grant of registration before the said date; Clarifies that the person who fails to make an application for grant of registration shall stop acting as research analyst and if any person is found to be acting as research analyst after the said date (without making an application for grant of registration) action may be initiated : SEBI

Click here to read more.

ICAI Guidance Note on CSR expenditure accounting disallows excess expense carry forward

ICAI issues Guidance Note on accounting for expenditure on Corporate Social Responsibility activities;  Clarifies that where a company spends more than prescribed amount (2% of average net profits of immediately preceding 3-years), excess amount cannot be carried forward for set-off against CSR expenditure required to be spent in future; Note also specifies on the recognition of income earned from CSR Projects/Programmes or during the course of conduct of CSR activities: ICAI Guidance Note.

Click here to read more.

DIPP summarizes measures taken for improving ease of doing business in India

DIPP summarizes the series of measures taken for improving 'ease of doing business' in India, states that the emphasis is on simplification and rationalization of existing rules and introduction of information technology for making governance more efficient and effective; States that process of applying for Industrial License & Industrial Entrepreneur Memorandum is made online,  prescribes limit on number of documents (three nos.) required for export and import, introduction of integrated process for company incorporation; States that initial validity period of Industrial License has been increased to 3-years from 2-years, which will give enough time to licensees for procuring land and obtaining necessary clearances/approvals from authorities; Also states that NIC Code – NIC 2008 – has been adopted, which is the advanced version of industrial classification, which will allow Indian businesses to be part of globally recognized and accepted classification that facilitate smooth approvals/registration; Reiterates that the process for applying of environment and forests clearances is made online, states that the requirement for Environment Assessment Report is required for industrial shed / school / college / hostel for education institution above 20,000 sq. mts. of build-up area up to 150,000 sq. mts. of build-up area: DIPP

Click here to read more.

SEBI issues guidelines on co-location/proximity hosting facility by stock exchanges to stock-brokers

SEBI issues guidelines on the facility of co-location to stock brokers and data vendors under SEBI Act provisions, whereby trading systems are allowed to connect to stock exchanges' trading platform through direct / private network; States that stock exchanges to provide the facility in fair, transparent and equitable manner, all participants who avail hosting facility shall have fair and equal access to facilities and data feeds provided by the stock exchange; Stock exchange shall expeditiously decide on stock brokers / data vendors request such  facility and communicate the decision within 15-working days; Advises stock exchange to implement suitable mechanism for protecting its systems and stock brokers' / data vendors systems from unauthorized access, frame guidelines on access and conduct of personnel: SEBI

Click here to read more.

SEBI provides flexibility to clearing corporations for deciding time for conducting auction settlement

SEBI acknowledges the receipt of suggestions from Clearing Corporations & Stock Exchanges for facilitating time-reduction involved in delivering shares to buying broker, in case of default by selling broker, and permits to provide flexibility to Clearing Corporations for deciding the time for conducting auction-settlement session on or before T+3 day; Prescribes the activity schedule for conducting settlement of auction-session and close-out as prescribed by the said circular stands revised: SEBI

Click here to read more.

Govt. designates Special Court, Calcutta as 'Special Court' under Securities Laws

Govt. designates 5th Special Court, Calcutta as 'Special Court' under SEBI Act, Securities Contract (Regulation) Act and Depositories Act.

Click here to read more.

Govt. designates Sessions Court, Greater Mumbai as 'Special Court' under Securities Laws

Govt. designates 39th Sessions Court, City Civil Court, Greater Mumbai as the Special Court under the SEBI Act, Securities Contract (Regulation) Act and Depositories Act. 

Click here to read more.

If you would like to unsubscribe and stop receiving these emails click here to unsubscribe
DISCLAIMER:
The information contained in this communication is intended solely for the use of the individual or entity to whom it is addressed and others authorized to receive it. If you are an un-intended recipient, please notify us immediately by responding to this email and then delete it from your system. Any action based on content in this communication shall be at the sole risk, responsibility and liability of the individual taking such action. These updates shall not under any circumstance be construed as any kind of professional advice or opinion and we expressly disclaim any and all liability for any harm, loss or damage, including without limitation, indirect, consequential, special, incidental or punitive damages resulting from or caused due to your reliance and actions/inactions on the basis of this communication.
© TAXSUTRA All rights reserved
Click to Reply All




Govt. designates 5th Special Court, Calcutta as 'Special Court' under SEBI Act, Securities Contract (Regulation) Act and Depositories Act.

Click here to read more.

Govt. designates Sessions Court, Greater Mumbai as 'Special Court' under Securities Laws

Govt. designates 39th Sessions Court, City Civil Court, Greater Mumbai as the Special Court under the SEBI Act, Securities Contract (Regulation) Act and Depositories Act. 

Click here to read more.

Cabinet approves 'NRI' definition expansion, investments to be deemed domestic investment

Union Cabinet, chaired by the Prime Minister, approves to review FDI Policy on investments by Non-Resident Indians (NRIs), Persons of Indian Origin (PIOs) and Overseas Citizens of India (OCIs); Cabinet approves amending the definition of 'NRI' to mean an individual resident outside India, who is citizen of India or is an OCI cardholder within meaning of Citizenship Act and POIs cardholders are deemed to be OCI cardholders; Approves addition of new paragraph in FDI policy, whereby investment by NRIs will be deemed to be 'domestic investment' at par with the investment made by residents; States that such measure is expected to result in increased investments across sectors and greater inflow of foreign exchange remittance leading to economic growth: PIB


Dear Sirs,

Unconditional exemption of income under Section 10 and no statutory liability to file return of income under Section 139- NO TDS- SEE CIRCULAR NO.7
PFA


Belated claim on grandfather's legacy not entitled to Sec. 35 protection

HC restrains Ram Education Trust (defendant) to construct school under name & style of 'SHRI RAM', as it is similar to SRF Foundation's (plaintiff) The SHRI RAM SCHOOL (estd in 1988); Founders of plaintiff and defendant were real brothers and grandsons of Shri Ram, who has reputed educational institutions such as Shri Ram College of Commerce (in 1926) and Lady Shri Ram College (in 1956) in Delhi; Thus, defendant contended that 'SHRI RAM' being name of their grandfather, plaintiff could ​not claim monopoly and relied on Sec 35​ of Trademarks Act (that protects bona fide use by a person of his own name against proprietor or registered user of a registered trade mark); Rejecting such contention, HC holds that Sec 35 cannot be read blindly to entitle a party to use his own name, surname in respect of same goods and services and notes that use of name should be bonafide; Observes that defendant's use of the mark in 2011, after 23 years, was not bonafide, as it was intended to make use of plaintiff's goodwill; Notes that though grandfather of founders of plaintiff & defendant was involved in education field bearing mark SHRI RAM prior to plaintiff's schools but, no school was run on commercial scale, and states that there would be no objection if defendant would claim legacy of grandfather Sir Shri Ram in relation to other activities of education except for running the school; However, HC allows defendant to continue its existing school SHRI RAM GLOBAL PRE SCHOOL with a disclaimer that it has no connection with plaintiff, observes that "balance has to be strike down..otherwise, great hardship would not only cause to the defendant but also to the students and their family; Relies on SC observations in Mahendra & Mahendra Paper Mills Ltd. v. Mahindra & Mahindra Ltd., Dalpat Kumar vs. Prahlad Singh:Delhi HC


Narayana Murthy heads panel on start-ups; Airlines again under CCI scanner; RBI hints at simplified forex rules

Narayana Murthy heads panel on start-ups; Airlines again under CCI scanner; RBI hints at simplified forex rules

 

Dear Patrons,
If you have missed any of our updates on corporate laws, competition law or intellectual property laws, for the months of March & April 2015, here is a chance to catch up with all of them at one place. We are glad to present to you our Newsletter for March & April that will surely grab your attention.
Click here to read LSI Monthly Newsletter, March & April 2015.
Best Regards,
LSI Team
MUMBAI, MAY 22, 2015: THE issue before the Bench is - Whether sum receivedafter tripartite agreement is to be taxed as capital gains when assessee is engaged in such activity with respect to only one property. YES is the answer.
Facts of the case
The assessee is a manufacturer of textiles. The assessee was allotted a plot of land on lease by CIDCO with a specific condition that the plot must be used for construction of office building only. Therefore, when this agreement was executed and possession was taken the intention was to construct a corporate office. However, for more than 10 years it could not set up a corporate office and, therefore, an application was made to the CIDCO to consider the change of user to residential-cum-commercial complex. The CIDCO granted permission and it was subject to the condition that construction should be done within two years otherwise a penalty would be imposed by CIDCO. Thereafter application was made to the CIDCO for grant of permission to assign these leasehold rights in the plot to the buyer, which was accordingly granted. During assessment, the Revenue held that the gains derived by the assessee from such transaction and which was tripartite in nature was adventure in the nature of trade.
However, the Tribunal following the Supreme court judgement held that the gains derived by the assessee from the transaction was capital gains and not an adventure in the nature of trade.
On appeal, the HC held that,
++ it is in this overall perspective that the Tribunal considered the matter. It applied the relevant tests and as laid down by the Supreme Court in the case of G. Venkataswami Naidu and reaffirmed later. The Tribunal concluded that having regard to these tests, it is clear that a solitary or single transaction may be termed as adventure in the nature of trade even though the assessee, in a normal course, is not engaged in such business. But there is no formula and which can be applied generally. Ordinarily an isolated transaction cannot be the sole criterion to test as to whether it is in the nature of trade or sale of investment. A holistic and overall view of the transaction has to be taken;
++ upon finding that the plot was allotted but could not be utilized by manufacturer of cotton and yarn that the subsequent developments took place. It is only in the year 2005 and for the first time the assignment of leasehold interest took place. It was not a sale or transfer of property by the assessee for a profit but since use could not be made, that initially a conversion permission was sought but even thereafter a utilization of the property for the assessee's purpose did not come through. It is in these circumstances that the assignment with the consent of CIDCO has taken place. Therefore, the Tribunal termed that the amount received pursuant to the tripartite agreement is assessable to tax under the head "Capital Gains" only. The reasons assigned in the order under challenge and particularly that the revenue did not set up a case that the assessee was engaged in such activity in respect of any other piece of land or property that the single or isolated transaction was not termed as an adventure in the nature of trade. To our mind, such conclusion arrived at and consistent with the factual data does not raise any substantial questions of law.

Business Income—Deduction—Allowability—Funding of interest by term loan vis a vis Actual payment—Assessee was heavily indebted to its institutional creditors—ICICI was lead manager of those creditors—Accumulated interest on the overdue principal had mounted to Rs.3,00,14,900—Assessee was unable to discharge this interest liability due to its financial hardship—ICICI waived a part of compound interest together with the commitment charges and agreed to accept 3,00,149 convertible debentures of Rs.100 each, amounting to Rs.3,00,14,900 in lieu of the outstanding interest—Consequently, assessee issued debentures in favour of ICICI—Assessee claimed that interest of Rs.2,84,71,384 was deductible—AO was of view that debenture issue resulted only in postponement of interest liability and that the interest could not be considered as having been "actually paid" as required by Section to qualify for relief—He disallowed assessee's claim—CIT(A) on appeal, directed AO to allow deduction—ITAT upheld order of CIT(A)—Held, ICICI, IDBI and IFCI would also constitute public financial institutions for purposes of Section 43B and interest on loan taken by assessee from these entities would fall within the purview of Section 43B(d)—Explanation 3C, having retrospective effect with effect from 01.04.1989, would be applicable to present case—Explanation 3C squarely covers issue raised in this appeal, as it negates assessee's contention that interest which has been converted into a loan is deemed to be actually paid—In light of insertion of this explanation, which was not present at the time impugned order was passed, assessee cannot claim deduction u/s 43B—Thus, issue answered in favour of revenue—Revenue's appeal allowed

Dear Patrons,
In the recent landmark judgment in Madras Bar Association Vs Union of India & Anr. [LSI-486-SC-2015-(NDEL)], the Supreme Court's Constitution Bench upheld the validity of National Company Law Tribunal ('NCLT') / National Company Law Appellate Tribunal ('NCLAT') under the Companies Act, 2013. However, it struck down the validity of Technical Member appointment & Selection Committee constitution.
In this articleMr. Mahesh A. Athavale (Company Secretary and Partner, KANJ & Associates) analyses the SC ruling and states that the ruling is a welcome step "as it will reduce the burden of the Supreme Court, High Courts and CLBs on the corporate law related matters, which will ultimately help in unlocking the value of distressed assets".
The author further points out that formation of NCLT/NCLAT will widen opportunities for practicing professionals too, as post Tribunals formation practicing Chartered Accountants/Company Secretaries/Cost Accountants would be able to represent their client companies in matters like - mergers and amalgamations, revival of sick companies​,​ shareholders-management dispute matters etc. Thus, the author states that practicing professionals will now have to take some extra efforts for enhancing their skill sets. He opines that they need to develop the art of advocacy & soft skill and have basic knowledge of tax laws, accounting treatments in corporate restructuring etc.
Click here to read the article - 'SC clears NCLAT roadblocks - Can professionals cash in?'
Best Regards,
LSI Team



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