Orders ghee trademark removal, as registration claimed prior to commercial use date
IPAB orders removal of respondent's registered trademarks from register for its failure to prove trademark's use since 1993 as claimed in trademark application;Observes that respondent had filed application for trademark 'Udhayam' ghee and 'GRB Udhayam' ghee in 1998 and 2002 respectively claiming to be their user since 1993 but respondents 1st invoice was dated December, 2001 and Agmark Certificate was issued in June, 1998 i.e. subsequent to the date of user claimed; Holds that "Board has not allowed the trade mark to continue in the register for mentioning wrong date of use"; Rejects respondent's reliance on its advertisements, holds that, "Use means actual use/commercial use and not advertisement which will not evidence the respondent's use"; Also observes respondent's trademarks to be similar to that of applicant's registered trademark 'Udhaiyam', though applicant's mark was registered under food and allied products (like gram, pulses, rice, flour etc), different from respondent's product 'ghee', holds that, "trade channels are the same when that is so then the class of customers are to be considered" :Chennai IPAB
The Order was passed by Ms. S. Usha [Vice-Chairman] and Mr. Sanjeev Kumar Chaswal [Technical Member (Trademarks)].Applicant was represented by Mr. Madan Babu while respondents were represented by Mr. S. Balachandran.
RBI, SEBI rated better than US, Chinese regulators; Indian patent law may face legal hurdle
RBI, SEBI rated better than US, Chinese regulators; Indian patent law may face legal hurdle
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Orders ghee trademark removal, as registration claimed prior to commercial use date
IPAB orders removal of respondent's registered trademarks from register for its failure to prove trademark's use since 1993 as claimed in trademark application;Observes that respondent had filed application for trademark 'Udhayam' ghee and 'GRB Udhayam' ghee in 1998 and 2002 respectively claiming to be their user since 1993 but respondents 1st invoice was dated December, 2001 and Agmark Certificate was issued in June, 1998 i.e. subsequent to the date of user claimed; Holds that "Board has not allowed the trade mark to continue in the register for mentioning wrong date of use"; Rejects respondent's reliance on its advertisements, holds that, "Use means actual use/commercial use and not advertisement which will not evidence the respondent's use"; Also observes respondent's trademarks to be similar to that of applicant's registered trademark 'Udhaiyam', though applicant's mark was registered under food and allied products (like gram, pulses, rice, flour etc), different from respondent's product 'ghee', holds that, "trade channels are the same when that is so then the class of customers are to be considered" :Chennai IPAB
The Order was passed by Ms. S. Usha [Vice-Chairman] and Mr. Sanjeev Kumar Chaswal [Technical Member (Trademarks)].
Applicant was represented by Mr. Madan Babu while respondents were represented by Mr. S. Balachandran.
RBI, SEBI rated better than US, Chinese regulators; Indian patent law may face legal hurdle
RBI, SEBI rated better than US, Chinese regulators; Indian patent law may face legal hurdle
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Dear Patrons,
The Division Bench of Bombay High Court in Bajaj Auto Ltd v Western Maharashtra Development Corporation Ltd [LSI-479-HC-2015-(BOM)] upheld the validity of a pre-emption clause between the shareholders of a public co. The Court held that a consensual share purchase agreement doesn't impinge the 'free transferability' concept. Reversing the Single Judge order, the Division Bench ruled that "The fact that the shares of a public company can be subscribed to by the public,.. does not in any way whittle down the right of a shareholder of a public company to arrive at a consensual agreement/arrangement..with another shareholder".
In this article, the authors, Vyapak Desai (Partner & Head of International Litigation & Dispute Resolution Practice at Nishith Desai Associates) and Satish Padhi (Member, Corporate & Commercial Law Practice) analyse the above case. Expressing agreement with the judgement, authors mention that even under Companies Act, 2013 (proviso to Section 58(2)), express recognition is given to private consensual arrangements and pre-emption clauses in a public company. Referring to 57th report of the Parliamentary Standing Committee on Companies Bill, 2011, they state that the intention behind inserting proviso to Section 58 (2) was to codify the pronouncements made by various courts holding that contracts relating to transferability of shares shall be enforceable under law.
The authors further point out that SEBI too issued a notification dated October 3, 2013 which clarified that no SEBI permission was required "to enter into any contracts for pre-emption including right of first refusal, or tag-along or drag-along rights contained in shareholder agreements."
Click here to read their article titled, "How "free" is the free share transferability concept?"
Best Regards
LSI Team.
Protects Spanish co.'s trans-border reputation in brand 'ZARA', restrains Indian hotel's use
HC protects Spanish textile co., Industria DE Diseno Textile SA's ('plaintiff') trademark 'ZARA', grants interim injunction against Indian co., Oriental Cuisines Pvt Ltd, ('defendant') from using mark 'ZARA TAPAS BAR' for its hotel business, as deceptively similar to plaintiff's mark; Rejects defendant's contention that it was not using the mark ZARA per se, but 'ZARA TAPAS BAR' and that too for its hotel and hospitality business, different from plaintiff's textile business; Observes plaintiff's trans border reputation, notes that mark ZARA was adopted by plaintiff in 1975 and had stores in over 44 countries by 2003 with an annual turnover of 3 billion Euros when defendant first opened a Bar and Restaurant under the name of ZARA TAPAS BAR; Also observes that though there was no ZARA store in India prior to 2010, mark ZARA was registered since 1993 and "We are living in the 21st century... there is widespread dissemination of information through the internet and television"; Noting the images of defendant's facebook account and advertisements wherein only word ZARA was prominent and almost ten times bigger than other words used in advertisement/screenshots, states that marks were deceptively similar to that of plaintiff, thus, defendant's adoption of the mark was dishonest & fraudulent; Rejects defendant's contention that mark ZARA was used by many entities and had, therefore, become publici juris, states that "even if it is used by any other person, it will not disentitle the Plaintiff to seek relief against the Defendants if it is otherwise entitled to the same"; Relies on Delhi HC observations in N.R. Dongre & Ors. v. Whirlpool Corp. & Anr. & SC observations in Milmet Oftho Industries & Ors. v. Allergan Inc.:Delhi HC
INCOME TAX REPORTS (ITR)
Appeal to High Court --Competency of appeal--Rule of consistency--Decision of Tribunal on identical issues relating to section 92B--No appeal from decisions--Presumption that decisions had been accepted--Appeal on similar issues to High Court--Not maintainable--Income-tax Act, 1961, ss. 92B, 260A-- CIT v. Tata Autocomp Systems Ltd. (Bom) . . . 516
Business --Business income or capital gains--Short-term capital gains--Whether investment or trade--Tests--Share scrips traded only amounts held by assessee and no borrowings--Dividend amounting to 4 per cent. of value of investment earned by assessee--Value and frequency of transactions--Not conclusive--Similar income for past and subsequent periods accepted as short-term capital gains--No distinctive material to differentiate assessee’s activities for assessment year in question--Principle of consistency--Investment in shares assessable as short-term capital gains and not business income--Income-tax Act, 1961-- CIT v. Amit Jain (Delhi) . . . 550
Business expenditure --Disallowance--Payments to directors--Film production--Amounts paid as professional charges to directors for directing and producing film--Amounts not paid in their capacity as members of board of directors--No disallowance can be made--Income-tax Act, 1961, s. 40(c)-- CIT v. Rupam Pictures P. Ltd. (Bom) . . . 450
----Disallowance--Sums on which tax deductible at source--Amounts paid during assessment year itself and nothing payable at close of year--No disallowance could be made--Tribunal restoring matter to Assessing Officer to determine whether payments made by assessee during assessment year--No reason to interfere either in fact or in law--Income-tax Act, 1961, s. 40(a)(ia)-- CIT v. Rajinder Parshad Jain (P&H) . . . 545
----Work-in-progress--Concurrent finding that amount already taken into account in total cost of works and no addition warranted--Finding of fact--Income-tax Act, 1961, s. 37-- CIT v. Rajinder Parshad Jain (P&H) . . . 545
Capital gains --Appeal to Commissioner (Appeals)--Computation of capital gains--Determination of value of property--Reference to District Valuation Officer--Commissioner (Appeals) has power to make such reference--Commissioner (Appeals) must form opinion that value on 1-4-1981 by registered valuer was less than its fair market value on that date--No evidence that Commissioner (Appeals) had applied his mind--Reference to District Valuation Officer not valid--Income-tax Act, 1961, ss. 55A, 250-- Rallis India Ltd. v. CIT (Bom) . . . 462
----Capital asset--Definition--Agricultural land--Land situated within prescribed distance from municipal limit--Measurement of distance for purpose of agricultural land--Amendment in 2014 providing that distance should be measured aerially--Prospective and not to apply to earlier years--Income-tax Act, 1961, s. 2(14)(iii)(b)-- CIT v. Nitish Rameshchandra Chordia (Bom) . . . 531
Double taxation avoidance --Resident of Mauritious having agent in India--Revenue from time-slots given to advertisers from India--Entire activities carried from Mauritius and all contracts concluded in Mauritius--Only incidental or auxiliary/preparatory activity carried out in India under direction of principal--Agent not dependent agent with independent status--Agent remunerated on arm’s length basis--Income of assessee not liable to tax in India--Double Taxation Avoidance Agreement between India and Mauritius, art. 5(4), (5)--Income-tax Act, 1961, ss. 9(1)(i), Explns. 1(a), 4, 5, 6, 195-- DIT (IT) v. B4U International Holdings Ltd. (Bom) . . . 453
Export --Exemption--Loss--Carry forward and set off--Effect of section 10A(6)--Loss in assessment year 2002-03 can be set off against profits of erstwhile section 10A unit in assessment year 2005-06--Income-tax Act, 1961, ss. 10A(6), 72, 74-- CIT v. Shantivijay Jewels Ltd. (Bom) . . . 520
Housing project --Special deduction--Commercial project on a plot of land of 1.33 acres--Commencement of project on 1-10-1998 and completion on or before 31-3-2008--Project completion complied with in terms of section 80-IB(10)(d)--Area situated 25 kilometres from limits of Mumbai city--Eligibility for deduction of flat of size of 1,500 square feet approximately--Commercial establishment in project less than 2,000 square feet--Assessee entitled to deduction--Income-tax Act, 1961, s. 80-IB(10)-- CIT v. Suresh L. Wadhwa (HUF) (Bom) . . . 541
Income --Estimation--Application of net profit rate of 6.75 per cent. and 5 per cent. for preceding and following years--Tribunal applying net profit rate of 6 per cent. for assessment year 2008-09--Consistent with past history of assessee--Justified--Income-tax Act, 1961-- CIT v. Rajinder Parshad Jain (P&H) . . . 545
Industrial undertaking --Relief--Film production--Is a manufacturing activity--Assessee engaged in such activity is an industrial undertaking--Entitled to deduction--Income-tax Act, 1961, s. 80J-- CIT v. Rupam Pictures P. Ltd. (Bom) . . . 450
Interpretation of taxing statutes --Amendments in taxing statute--Prospective unless a different legislative intention is clearly expressed--Circular No. 3 of 2014, dated 24-1-2014--Income-tax Act, 1961-- CIT v. Nitish Rameshchandra Chordia (Bom) . . . 531
Non-resident --Shipping business--International traffic--Automated software communication system set up by assessee for use by it and its agents--No technical services rendered--No profit element involved--Cost-sharing arrangement between assessee and its agents to efficiently conduct shipping business--Payments received by assessee from its agents--Not taxable--Double Taxation Avoidance Agreement between India and the Netherlands, art. 13(4)--Income-tax Act, 1961-- DIT (International Taxation) v. A. P. Moller Maersk A/S. (Bom) . . . 497
Penalty --State co-operative society disclosing all details including sale of dal mill--Society claiming depreciation by treating asset as depreciable asset--Assessee referring to written down value too but committing error in treating transaction as long-term capital gains--Not concealment of income or furnishing inaccurate particulars--Assessing Officer to rectify error by making necessary addition--Penalty ought not to have been imposed without satisfying concealment or submission of inaccurate particulars--Income-tax Act, 1961, s. 271(1)(c)-- Anoopgarh Kraya Vikraya Sahakari Samiti Ltd. v. Asst. CIT (Raj) . . . 558
Reassessment --Notice--Condition precedent--Reason to believe income has escaped assessment--Depreciation and bad debts allowed after consideration in original assessment proceedings--No tangible material to show escape of income from tax--Reassessment proceedings to recompute depreciation and bad debts--Not valid--Income-tax Act, 1961, s. 147-- Plus Paper Food Pac Ltd. v. ITO (Bom) . . . 485
Revision --Appeal--Merger of assessment order in appellate order--Denial of special deduction by Assessing Officer--Deduction allowed on appeal--Order of Assessing Officer merged in appellate order--Order of revision to re-compute special deduction--Not valid--Income-tax Act, 1961, ss. 80-IB, 263-- CIT v. Fortaleza Developers (Bom) . . . 510
----Commissioner--Method of bifurcation of expenses in proportion in which agricultural and non-agricultural income bifurcated accepted in past years--Assessment order not showing non-application of mind--Commissioner not observing anything concrete about irrelevance of method or apportionment--Revision not valid--Income-tax Act, 1961, s. 263-- CIT v. Forest Development Corporation of Maharashtra Ltd. (Bom) . . . 538
----Commissioner--Powers--Doctrine of merger--No power to decide matters considered and decided in appeal by Commissioner (Appeals)--Commissioner revising and revisiting matters very much part and parcel of Commissioner (Appeals) order and dealt with extensively therein--Impermissible--Income-tax Act, 1961, s. 263-- CIT v. K. Sera Sera Productions Ltd. (Bom) . . . 503
----Condition precedent--Order erroneous and prejudicial to Revenue--Debatable issue--Order cannot be revised--Dispute regarding sale of property settled by consent decree--Question whether amount received was taxable was debatable--Order treating amount as capital receipt could not be revised--Income-tax Act, 1961, s. 263-- Sterling Construction and Investments v. Asst. CIT (Investigation) (Bom) . . . 474
Art. 5(4), (5) --Double taxation avoidance--Resident of Mauritious having agent in India--Revenue from time-slots given to advertisers from India--Entire activities carried from Mauritius and all contracts concluded in Mauritius--Only incidental or auxiliary/preparatory activity carried out in India under direction of principal--Agent not dependent agent with independent status--Agent remunerated on arm’s length basis--Income of assessee not liable to tax in India-- DIT (IT) v. B4U International Holdings Ltd. (Bom) . . . 453
Art. 13(4) --Non-resident--Shipping business--International traffic--Automated software communication system set up by assessee for use by it and its agents--No technical services rendered--No profit element involved--Cost-sharing arrangement between assessee and its agents to efficiently conduct shipping business--Payments received by assessee from its agents--Not taxable-- DIT (International Taxation) v. A. P. Moller Maersk A/S. (Bom) . . . 497
S. 2(14)(iii)(b) --Capital gains--Capital asset--Definition--Agricultural land--Land situated within prescribed distance from municipal limit--Measurement of distance for purpose of agricultural land--Amendment in 2014 providing that distance should be measured aerially--Prospective and not to apply to earlier years-- CIT v. Nitish Rameshchandra Chordia (Bom) . . . 531
S. 9(1)(i), Explns. 1(a), 4, 5, 6 --Double taxation avoidance--Resident of Mauritious having agent in India--Revenue from time-slots given to advertisers from India--Entire activities carried from Mauritius and all contracts concluded in Mauritius--Only incidental or auxiliary/preparatory activity carried out in India under direction of principal--Agent not dependent agent with independent status--Agent remunerated on arm’s length basis--Income of assessee not liable to tax in India-- DIT (IT) v. B4U International Holdings Ltd. (Bom) . . . 453
S. 10A(6) --Export--Exemption--Loss--Carry forward and set off--Effect of section 10A(6)--Loss in assessment year 2002-03 can be set off against profits of erstwhile section 10A unit in assessment year 2005-06-- CIT v. Shantivijay Jewels Ltd. (Bom) . . . 520
S. 37 --Business expenditure--Work-in-progress--Concurrent finding that amount already taken into account in total cost of works and no addition warranted--Finding of fact-- CIT v. Rajinder Parshad Jain (P&H) . . . 545
S. 40(a)(ia) --Business expenditure--Disallowance--Sums on which tax deductible at source--Amounts paid during assessment year itself and nothing payable at close of year--No disallowance could be made--Tribunal restoring matter to Assessing Officer to determine whether payments made by assessee during assessment year--No reason to interfere either in fact or in law-- CIT v. Rajinder Parshad Jain (P&H) . . . 545
S. 40(c) --Business expenditure--Disallowance--Payments to directors--Film production--Amounts paid as professional charges to directors for directing and producing film--Amounts not paid in their capacity as members of board of directors--No disallowance can be made-- CIT v. Rupam Pictures P. Ltd. (Bom) . . . 450
S. 55A --Capital gains--Appeal to Commissioner (Appeals)--Computation of capital gains--Determination of value of property--Reference to District Valuation Officer--Commissioner (Appeals) has power to make such reference--Commissioner (Appeals) must form opinion that value on 1-4-1981 by registered valuer was less than its fair market value on that date--No evidence that Commissioner (Appeals) had applied his mind--Reference to District Valuation Officer not valid-- Rallis India Ltd. v. CIT (Bom) . . . 462
S. 72 --Export--Exemption--Loss--Carry forward and set off--Effect of section 10A(6)--Loss in assessment year 2002-03 can be set off against profits of erstwhile section 10A unit in assessment year 2005-06-- CIT v. Shantivijay Jewels Ltd. (Bom) . . . 520
S. 74 --Export--Exemption--Loss--Carry forward and set off--Effect of section 10A(6)--Loss in assessment year 2002-03 can be set off against profits of erstwhile section 10A unit in assessment year 2005-06-- CIT v. Shantivijay Jewels Ltd. (Bom) . . . 520
S. 80-IB --Revision--Appeal--Merger of assessment order in appellate order--Denial of special deduction by Assessing Officer--Deduction allowed on appeal--Order of Assessing Officer merged in appellate order--Order of revision to re-compute special deduction--Not valid-- CIT v. Fortaleza Developers (Bom) . . . 510
S. 80-IB(10) --Housing project--Special deduction--Commercial project on a plot of land of 1.33 acres--Commencement of project on 1-10-1998 and completion on or before 31-3-2008--Project completion complied with in terms of section 80-IB(10)(d)--Area situated 25 kilometres from limits of Mumbai city--Eligibility for deduction of flat of size of 1,500 square feet approximately--Commercial establishment in project less than 2,000 square feet--Assessee entitled to deduction-- CIT v. Suresh L. Wadhwa (HUF) (Bom) . . . 541
S. 80J --Industrial undertaking--Relief--Film production--Is a manufacturing activity--Assessee engaged in such activity is an industrial undertaking--Entitled to deduction-- CIT v. Rupam Pictures P. Ltd. (Bom) . . . 450
S. 92B --Appeal to High Court--Competency of appeal--Rule of consistency--Decision of Tribunal on identical issues relating to section 92B--No appeal from decisions--Presumption that decisions had been accepted--Appeal on similar issues to High Court--Not maintainable-- CIT v. Tata Autocomp Systems Ltd. (Bom) . . . 516
S. 147 --Reassessment--Notice--Condition precedent--Reason to believe income has escaped assessment--Depreciation and bad debts allowed after consideration in original assessment proceedings--No tangible material to show escape of income from tax--Reassessment proceedings to recompute depreciation and bad debts--Not valid-- Plus Paper Food Pac Ltd. v. ITO (Bom) . . . 485
S. 195 --Double taxation avoidance--Resident of Mauritious having agent in India--Revenue from time-slots given to advertisers from India--Entire activities carried from Mauritius and all contracts concluded in Mauritius--Only incidental or auxiliary/preparatory activity carried out in India under direction of principal--Agent not dependent agent with independent status--Agent remunerated on arm’s length basis--Income of assessee not liable to tax in India-- DIT (IT) v. B4U International Holdings Ltd. (Bom) . . . 453
S. 250 --Capital gains--Appeal to Commissioner (Appeals)--Computation of capital gains--Determination of value of property--Reference to District Valuation Officer--Commissioner (Appeals) has power to make such reference--Commissioner (Appeals) must form opinion that value on 1-4-1981 by registered valuer was less than its fair market value on that date--No evidence that Commissioner (Appeals) had applied his mind--Reference to District Valuation Officer not valid-- Rallis India Ltd. v. CIT (Bom) . . . 462
S. 260A --Appeal to High Court--Competency of appeal--Rule of consistency--Decision of Tribunal on identical issues relating to section 92B--No appeal from decisions--Presumption that decisions had been accepted--Appeal on similar issues to High Court--Not maintainable-- CIT v. Tata Autocomp Systems Ltd. (Bom) . . . 516
S. 263 --Revision--Appeal--Merger of assessment order in appellate order--Denial of special deduction by Assessing Officer--Deduction allowed on appeal--Order of Assessing Officer merged in appellate order--Order of revision to re-compute special deduction--Not valid-- CIT v. Fortaleza Developers (Bom) . . . 510
----Revision--Commissioner--Method of bifurcation of expenses in proportion in which agricultural and non-agricultural income bifurcated accepted in past years-- Assessment order not showing non-application of mind--Commissioner not observing anything concrete about irrelevance of method or apportionment--Revision not valid-- CIT v. Forest Development Corporation of Maharashtra Ltd. (Bom) . . . 538
----Revision--Commissioner--Powers--Doctrine of merger--No power to decide matters considered and decided in appeal by Commissioner (Appeals)--Commissioner revising and revisiting matters very much part and parcel of Commissioner (Appeals) order and dealt with extensively therein--Impermissible-- CIT v. K. Sera Sera Productions Ltd. (Bom) . . . 503
----Revision--Condition precedent--Order erroneous and prejudicial to Revenue--Debatable issue--Order cannot be revised--Dispute regarding sale of property settled by consent decree--Question whether amount received was taxable was debatable--Order treating amount as capital receipt could not be revised-- Sterling Construction and Investments v. Asst. CIT (Investigation) (Bom) . . . 474
S. 271(1)(c) --Penalty--State co-operative society disclosing all details including sale of dal mill--Society claiming depreciation by treating asset as depreciable asset--Assessee referring to written down value too but committing error in treating transaction as long-term capital gains--Not concealment of income or furnishing inaccurate particulars--Assessing Officer to rectify error by making necessary addition--Penalty ought not to have been imposed without satisfying concealment or submission of inaccurate particulars-- Anoopgarh Kraya Vikraya Sahakari Samiti Ltd. v. Asst. CIT (Raj) . . . 558
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