Shows mirror of "equality" to Mallya, imposes exemplary costs for FERA-summons evasion
SC dismisses Vijay Mallya's ('appellant') appeal to quash criminal complaint under FERA against him, filed for the reason that he failed to appear before trial Court in response to the summons issued to him; Holds that Sec 40 of FERA mandates issuance of summons, which should be complied with, and non-compliance of it is an independent offence, refers to SC ruling in ED vs. M. Samba Siva Rao; Rejects appellant's contention that since departmental authority exonerated him of substantive offence under FERA, such complaint should be quashed; Holds that, "Exonerating such an accused, who successfully evades the process of law and thereby commits an independent offence on the ground that he is found to be not guilty of the substantive offence would be destructive of law and order, apart from being against public interest"; SC also rejected appellant's reliance on ruling in Dy. Chief Controller of Import and Export vs. Roshan Lal Agarwal wherein it was held that prosecution of the accused, who is alleged to be guilty of not responding to summons, would not be justified, as distinguishable on facts; Holds that "the entire approach adopted by the appellant is a sheer abuse of the process of law. Any other view of the matter would only go to once again establishing the notorious truth stated by Anatole France that – "the law in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets and to steal bread"; SC remarks that "the enormous money power makes him believe that the State should adjust its affairs to suit his commercial convenience" and imposes exemplary costs of Rs 10 lakhs:SC
Press Information Bureau
Government of India
Ministry of Finance
09-July-2015 16:55 IST
Government of India
Ministry of Finance
09-July-2015 16:55 IST
India and United States Signs Inter Governmental Agreement (IGA) to Implement the Foreign Account Tax Compliance Act (FATCA) to Promote Transparency on Tax Matters
Mr. Shaktikanta Das, Revenue Secretary of India and Mr. Richard Verma, U.S. Ambassador to India signed here today , an Inter Governmental Agreement (IGA) to implement the Foreign Account Tax Compliance Act (FATCA) to promote transparency between the two nations on tax matters. The agreement underscores growing international co-operation to end tax evasion everywhere. The text of the signed agreement will be available on the website of the Indian Income Tax Department (www.incometaxindia.gov.in) and the website of U.S. Treasury (www.treasury.gov).
The United States (U.S.) and India have a long standing and close relationship. This friendship extends to mutual assistance in tax matters and includes a desire to improve international tax compliance. The signing of IGA is a re-affirmation of the shared commitment of India and USA towards tax transparency and the fight against offshore tax evasion and avoidance.
Revenue Secretary, Shaktikanta Das stated, "Signing the IGA with U.S. to implement FATCA today, is a very important step for the Government of India, to tackle offshore tax evasion. It reaffirms the Government of India's commitment to fight the menace of black money. It is hoped that the exchange of information on automatic basis, regarding offshore accounts under FATCA would deter tax offenders, would enhance tax transparency and eventually bring in higher equity in to the direct tax regime which necessary for a healthy economy."
Ambassador Verma, who signed on behalf of the United States, stated, "The signing of this agreement is an important step forward in the collaboration between the United States and India to combat tax evasion. FATCA is an important part of the U.S. Government's effort to address that issue."
FATCA is rapidly becoming the global standard in the effort to curtail offshore tax evasion. To date, the United States has IGAs with more than 110 jurisdictions and is engaged in related discussions with many other jurisdictions.
The United States enacted FATCA in 2010 to obtain information on accounts held by U.S. taxpayers in other countries. It requires U.S. financial institutions to withhold a portion of payments made to foreign financial institutions (FFIs) who do not agree to identify and report information on U.S. account holders. As per the IGA, FFIs in India will be required to report tax information about U.S. account holders directly to the Indian Government which will, in turn, relay that information to the IRS. The IRS will provide similar information about Indian account holders in the United States. This automatic exchange of information is scheduled to begin on 30th September, 2015.
Both the signing of the IGA with U.S. as well as India's decision to join the Multilateral Competent Authority Agreement (MCAA) on 3rd June, 2015 are two important milestones in India's fight against the menace of black money as it would enable the Indian tax authorities to receive financial account information of Indians from foreign countries on an automatic basis.
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MAM/KA
CA PRACTICE- BE AN ARBITRATOR
CA AMRESH VASHISHT , MEERUT
CA AMRESH VASHISHT , MEERUT
A Chartered Accountant can equip himself to enter into the field of Arbitration with considerable advantage. A Chartered Accountant normally represents the cases of his clients before various authorities, including the Tribunals, Company Law Benches, SEBI, RBI etc. He can definitely specialize in arbitration matters, particularly those connected with breach of contracts, insurance claims, loss of profit, securities fraud, commercial disputes, rights of properties, lease transactions etc. and represent his clients in Arbitration proceedings. The objective of arbitration is to provide expeditious, efficient and economic justice to the aggrieved parties as it is felt that too much legality defeats the very purpose of arbitration.
THE REGULATORS – INDIAN COUNCIL OF ARBITRATION (ICA)
INDIAN COUNCIL OF ARBITRATION (ICA) is registered under the Societies Registration Act, 1860.It was established in 1965 as a specialized arbitral body at the national level with the initiatives of the Govt. of India and apex business organizations like FICCI etc. Based in New Delhi, the main objective of ICA is to promote amicable, quick and inexpensive settlement of commercial disputes by means of arbitration, conciliation, regardless of location. This is a specialized arbitral body, sponsored by Government of India and certain apex business organizations, also recognize Chartered Accountants as arbitrators.
A WITH 15 YEAR EXPERIENCE IS ELIGIBLE FOR ARBITRATOR
ICA maintains a panel of arbitrators drawn from various fields. Clause III (b) of the "broad categories of qualification and experience for empanelment as an arbitrator indicate that Chartered Accountants are eligible for empanelment. Clause III (b) reads as follows:— III(b)"Chartered Accountants basically Valuers or other technical consultants accountancy etc. with at least 15 years experience in government / private organization or in professional practice, with adequate knowledge and experience in arbitration matters."
So, a Chartered Accountant having 15 years of post professional experience is eligible for empanelment as an arbitrator. There are a large number of organizations, national as well as international, which maintain a panel of arbitrators. The job of an arbitrator is often challenging but satisfying.As on 31st May 2015, only 135 Chartered Accountants are registered as Arbitrator with the ICA.
ICAI LAUNCHED A CERTIFICATE COURSE ON ARBITRATION.
ICAI also maintains a panel of member arbitrators after successful completion of the training and course on arbitration. As of 1st July 2015 , 648 are listed there as arbitrator and in the light of the emerging diversities & opportunities as Arbitrator, ICAI have designed a course to empower the members to be the leaders in the global service market. The Institute claimed that apart from the comprehensive theoretical aspects, this course will sharpen the expertise over the new coming up professional opportunity. The objective of this Course is to familiarize the members with the relevant laws which impact the arbitration process and the practical procedural aspects and to build the competency level of the members of the Institute to position them as multidisciplinary consultants in the global service market The course is targeted at members who are desirous of building their expertise and skills in the area Apart from the comprehensive theoretical aspects, this course cover practical and procedural aspects of the arbitration process with case studies and mock arbitration proceedings.
The course fee is Rs. 20000/- in New Delhi, Mumbai, Chennai, Kolkatta and Bangalore Rs. 15,000/- for Ahmedabad, Hyderabad, Jaipur, Kanpur, Lucknow, Nagpur, Pune, Secundrabad, Chandigarh, Agra, Allahabad, Bhopal, Indore, Ludhiana, Madurai, Patna, Surat, Tiruvanatapuram and Vadodara, and Rs 12,000/- for Cities/ Towns other than the above. The duration of the course is 40 hours spread over 6 days. The CPE credit of 20 Hours will be given to the participants.
ARBITRATION AN OLD WINE IN NEW BOTTLE
In all walks of life, it is usual to come across disputes, more so in business dealings. In olden days informal system of Arbitration existed in the shape of Panchayats [comprising "panch" meaning five wise men] headed by a Sarpanch. These systems were perceptible in all villages, castes and circles where all disputes were settled promptly and economically. The Father of Nation Mahatma Gandhi was also a staunch believer of arbitral process for resolving the problems in our predominantly rural society at affordable costs via Panchayats Raj. The word Arbitration' appears to have originated from the word arbitrary. The parties involved in the disputes refer them to a peer who is supposed to be a person of nobility having capability to resolve the disputes. Presently amendments to the arbitration Act is pending with the Parliament and it is expected that after the amendments, the intent of the present government is to establish INDIA as hub for International Arbitration.
CA AS AN ARBITRATOR
A Chartered Accountant is required to maintain a high degree of professional competence and technical standard. He is bound by the code of conduct framed by the Institute of Chartered Accountants of India. Section 2(2) of the Chartered Accountants' Act, 1949 read with Regulation 191 of the Chartered Accountants Regulations, 1988 specifically provides that a Chartered Accountant in his professional capacity is allowed to act as an arbitrator.
Viewed in this perspective, the role of a Chartered Accountant as an Arbitrator has now gained vast coverage and hence it is necessary to study the same. The Act has specifically recognised the objects underlying the agreements of the parties. The whole aim is to expedite justice at an affordable cost because the judiciary system of our country is already reeling under unprecedented workload and mire of paperwork and procedures.
CA TO ACT AS AN EXPERT
Under Sec 26(1) of the Arbitration and Conciliation Act, 1996 the Arbitral Tribunal may appoint expert/s to report on any specific issue to be determined by it. It may also require the parties to give the expert any relevant information, explanations, or to produce or provide access to any relevant documents, goods or other property for inspection. An expert may be examined and cross-examined by a party on request of a party and where an arbitral tribunal considers it necessary. A CA can help the arbitral tribunal in the capacity of an expert in matters relating to accounts, commercial transactions, lease transactions etc where he has sufficient domain knowledge.
CA TO ACT AS A CONCILIATOR
Conciliation is a process by which the conciliator endeavors to bring the disputant parties to an agreement. A conciliator is generally an independent third party who mediates for the disputing parties in order to bring them to a mutually acceptable settlement. A mediator is normally taken to be a person of the disputant's choice. The conciliator is instrumental in drawing up the terms of settlement in the shape of an agreement, consequent upon comprehensive discussions with the parties to the dispute. A CA in his day-to-day practice often
helps his clients in settling their disputes through conciliation. CA's can serve as professional conciliators. With the acquisition of thorough knowledge on the process of mediation, negotiating skills and related techniques of conciliation a CA can act as a successful professional conciliator thereby adding to the array of services he provides.
CA TO ACT IN OTHER CAPACITY
A Chartered Accountant can also advise the client whether a particular case is arbitrable or not. In case of arbitrable disputes, he can provide various services like, advising the clients on selection of arbitrator, initiating the arbitral proceedings, preparation of statement of claims or defence, pleadings etc. He can help in deciding which ADR process the client should choose. After enough experience in arbitration and other ADR methods, he can also play an important role in solving the pending disputes of his clients by identifying those cases that are suitable for resolution through ADR. It will not be out of place to mention that the field of ADR is bound to grow by leaps and bound in times to come. Nani Palkhivala had once said "If I were appointed a dictator of this country, in the short period between my appointment and my assassination, I would promulgate a law making all commercial disputes compulsorily referable to arbitration." The Code of Civil Procedure, 1908 has been recently amended and amendment Act of 1999 has recognized ADR as an effective tool for resolving disputes. The purpose of the amendment is to speed up the judicial process and get over the problem of backlog of civil cases.
PROMISING PROFESSIONAL OPPORTUNITY
There are an estimated 30 million cases pending in various courts in the country. The criticism against the justice delivery system is continuous when we here, 'Back Breaking delay', Elusive Justice', and 'System on the verge of brink'. Arbitration system is a means to provide an easy and expedient mechanism for dispute resolution without the need of resorting to a long drawn litigation. This is meant to be Justice without law. It is meant to be far superior to a black letter law. Arbitration seeks to remove blockade caused by chocking legal pollution. Arbitration started as a reform to resolve conflict with mutual love and trust. Even late Shri Nani Palkhiwala remarked succinctly, "If I were appointed a dictator of this country, in the short span of my appointment and assassination, I would promulgate a law making all commercial disputes compulsorily referable to arbitration."
METHODS UNDER ARBITRATION
Any dispute is normally resolved by way of litigation in court or through Alternative Dispute Resolution [ADR] mechanism involving four methods like negotiation, mediation, conciliation and Arbitration. In negotiation, there are no outsiders to resolve disputes .In mediation, there is a facilitator creating "win win" situation but settlement is not binding. Whereas, the conciliator authenticates settlement reached by the parties and is binding one. On the other hand, arbitration is a quasi-judicial method outside the court. Mediation is a procedure designed to resolve disputes through agreement i.e. Mutual consent of the parties. The mediator is a neutral person who facilitates discussions between the parties to reach an agreement based upon their consent. Mediation involves the use of a facilitator trend in conflict resolution. Arbitrator is called "pramanpurush" in Hindi meaning by a man of substance in domestic forum. Part I of the Act deals with domestic Arbitration, Part II deals with International Commercial Arbitration, Part III deals with conciliation and Part IV deals with supplementary provisions.
ADMINISTRATIVE FEE AND ARBITRATOR'S FEE
The Administrative fee (of ICA) and Arbitrator's fee (for each arbitrator) will be fixed separately with regard to the amount in dispute including determined interest in each case, as under:
| Amount of Claim & Counter Claim | Arbitrator's fee for each Arbitrator | Administrative Fee |
| Upto Rs. 5 lac (Rs.5,00,000/-) | Rs.60,000/- | Rs.45,000/- |
| From Rs.5 lac one to Rs.25 lac (Rs.5,00,001 to 2,500,000) | Rs.60,000/- plus Rs.3,000/- per lac or part thereof subject to a ceiling of Rs.1,20,000/- | Rs.45,000/- plus Rs.2,250/- per lac or part thereof subject to a ceiling of Rs.90,000/- |
| From Rs.25 lac one to Rs.1 crore (Rs.2,500,001 to 10,000,000) | Rs.1,20,000/- plus Rs.2,400/- per lac or part thereof subject to a ceiling of Rs.3,00,000/- | Rs.90,000/- plus Rs.1,800/- per lac or part thereof subject to a ceiling of Rs.2,25,000/- |
| From Rs.1 crore one to Rs. 5 Crore (Rs.10,000,001 to 50,000,000) | Rs.45,000/- per crore or part thereof subject to a ceiling of Rs.4,80,000/- | Rs.33,750/- per crore or part thereof subject to a ceiling of Rs.3,60,000/- |
| From Rs. 5 crore one to Rs.10 crore (Rs.50,000,001 to 100,000,000) | Rs.4,80,000/- plus Rs.30,000/- per crore or part thereof subject to a ceiling of Rs.6,30,000/- | Rs.3,60,000/- plus Rs.22,500/- per crore or part thereof subject to a ceiling of Rs.4,72,500/- |
| Over Rs.10 crores | Rs.6,30,000/- plus Rs.24,000/- per crore or part thereof | Rs.4,72,500/- plus Rs.18,000/- per crore or part thereof |
REIMBURSEMENT OF EXPENSES
The arbitral tribunal shall be entitled to allow fees and expenses of witnesses, expenses connected with the selection and carriage of sample and examination of goods, Licensed Measure's Department charges, conveyance, hire, cost of legal or technical advice or proceedings in respect of any matter arising out of the arbitration incurred by the arbitral tribunal, and any other incidental expenses and charges in connection with or arising out of the reference or award as the arbitral tribunal shall, in its absolute discretion, think fit.
The costs of the reference and the award including charges, fees and other expenses shall be in the discretion of the arbitral tribunal, which may direct to and by whom, and in what proportion, such charges, fees and other expenses and any part thereof shall be borne and paid, and may tax and settle the amount of costs to be so paid or any part thereof and may award costs to be paid as between solicitor and client. In the event, any administrative fees and expenses are due to the Council, the arbitral tribunal may award them in favour of the Council.
RELEVANT FORMS
- Application Form For Associate Membership
- Application Form For Individual Membership
- Form for Enrollment in the Panel of Arbitrator
Members interested in obtaining membership are requested to send their email address and other contact details to ica@ficci.com post/ fax their contact details to:
Indian Council of Arbitration
Room 112, Federation House
Tansen Marg
New Delhi 110001
Internal Phone No. 23738760-70
Email : ica@ficci.com
Room 112, Federation House
Tansen Marg
New Delhi 110001
Internal Phone No. 23738760-70
Email : ica@ficci.com
GOODS AND SERVICE TAX REPORTS (GSTR) HIGHLIGHTS
F C4 Raffinate entitled to partial exemption under Notification No. 6/2000-CE : CCE v. Indian Petrochemicals Corpn. Ltd. p. 163
F Definition of "interested party" inclusive and prospective importer vitally interested in outcome of investigation by designated authority falls within definition : Bharat Solvent and Chemical Corporation v. Union of India (Delhi) p. 181
F Mandatory for designated authority to give opportunity of hearing to interested party : Bharat Solvent and Chemical Corporation v. Union of India (Delhi) p. 181
F Refusal to supply non-confidential summary of data sourced and non-disclosure of non-injurious price determined by the designated authority vitiates final findings : Sandisk International Ltd. v. Designated Authority (Delhi) p. 200
F Expiry of extended period of limitation, matter cannot be remanded to designated authority for fresh consideration : Sandisk International Ltd. v. Designated Authority (Delhi) p. 200
F Time limit prescribed in subordinate legislation to be taken as directory and not mandatory : Hyundai Motors India Ltd. v. Union of India (Mad) p. 224
F Applicability of principles of natural justice vary from case to case in respect of investigation by designated authority : Hyundai Motors India Ltd. v. Union of India (Mad) p. 224
F Failure by designated authority to give opportunity to other interested parties amounts to violation of principles of natural justice : Kumho Petrochemicals Co. Ltd. v. Designated Authority (Trib.-Delhi) [LB] p. 168
F Notifications :
Customs Act, 1962 : Notification under section 25(1) : Duty concessions to Philippines and other ASEAN countries in view of ASEAN-India FTA (AIFTA) : Amendments p. 34
Foreign Trade (Development and Regulation) Act, 1992 : Notification under section 5 : Export policy of cotton : Amendment p. 33
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PFA
Shah D J
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