Text of Press Release dated 01.10.2015 issued by the Ministry of Finance:
Government Extends the due Date for E-Filing of Returns of Income Tax and Audit Reports U/S 44AB of Income Tax Act from 30th September, 2015 to 31st October 2015The issue of extension of last date for e-filing returns of income and audit reports u/s 44AB due by 30th September, 2015 has been the subject matter of litigation in various High Courts across the country. While some High Courts have ruled in favour of the extension of due date, some others have ruled otherwise. In order to avoid discrimination between taxpayers residing in different jurisdictions and to be fair to all, and also in view of paucity of time to approach the Hon'ble Supreme Court by way of Special Leave Petition (SLP), the Government has decided that across the country, all the returns of income and audit reports u/s 44AB which were due for e-filing by 30th September, 2015, may now be filed by 31st October, 2015.Necessary order u/s 119 of the Income-tax Act, 1961 has been issued by CBDT in this regard.
The issue of extension of last date for e-filing returns of income and audit reports u/s 44AB due by 30th September, 2015 has been the subject matter of litigation in various High Courts across the country. While some High Courts have ruled in favour of the extension of due date, some others have ruled otherwise. In order to avoid discrimination between taxpayers residing in different jurisdictions and to be fair to all, and also in view of paucity of time to approach the Hon'ble Supreme Court by way of Special Leave Petition (SLP), the Government has decided that across the country, all the returns of income and audit reports u/s 44AB which were due for e-filing by 30th September, 2015, may now be filed by 31st October, 2015
Directors-in-charge of company's day-to-day business liable for cheque dishonouring
SC sets aside the order passed by Madras HC, holds that directors who are involved in day-to-day business of co. are liable u/s 138 of Negotiable Instrument Act; Notes the fact that cheque was issued by Managing Director, on behalf of the co., which was dishonoured / no amount was paid in spite of statutory notice being issued; SC also notes the directors' ignorant conduct as none of them appeared, observes that the co. notice was refused, whereabouts of all directors are not known, notices which were served upon directors in normal course could not be served and even the substituted service (i.e. newspaper publication) was not taken into consideration; States that HC ought not to have quashed proceedings against directors, states "it is an admitted position that simply because someone is a director, he cannot be held responsible in respect of cheque issued on behalf of the company, but if the concerned Director is in-charge of and is responsible to the company for its conduct of business, he can be held to be guilty of the offence u/s 138 of the Act and therefore"; Opines that HC has committed an error by making an observation that not a single statement was made in the complaint to the effect that directors were in-charge of company's day-to-day business:SC
The order was passed by Justice Anil R. Dave and Justice Amitava Roy
LSI Note:
In another case, SC had set aside Bombay HC order, directed Managing Director to undergo simple imprisonment for 5 months and ordered for payment of compensation to the extent of twice the cheque amount along with interest for non-compliance of Section 138 of Negotiable Instrument Act. [LSI-660-SC-2015-(NDEL)].
Further, in another case, SC had set-aside HC order, and held that where the company had issued cheque and the same was dishonoured for insufficiency of funds, then the notice u/s 138 of Negotiable Instrument Act, 1881 ought to be issued in company's name and not in name of all directors. [LSI-475-SC-2015-(NDEL)].
Section 141(1) of the Negotiable Instrument Act, 1881 states that if the person committing an offence u/s 138 is a 'company', every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.
HC : Reputed real-estate trade-name 'Lokhandwala' entitled to protection against imposter with same family name
HC restrains defendants Lokhandwala Infrastucture from using the name 'Lokhandwala' for any of its new construction projects, as deceptively similar to Lokhandwala Construction Industries Pvt. Ltd.'s ('plaintiff') tradename; Rejects defendants' contention that 'Lokhandwala' is a family name incapable of protection, holds that if plaintiff has been using the name for a very considerable period of time and enjoys wide publicity & reputation attendant to that use, then the name is entitled to some protection in consequence, refers to SC ruling in Mahendra & Mahendra Paper Mills Ltd. v. Mahindra & Mahindra Ltd. & co-ordinate bench ruling in Kirloskar Diesel Recon. (P) Ltd. & Ors. v. Kirloskar Proprietory Ltd. & Ors; Observes that plaintiff has acquired considerable reputation, the name 'Lokhandwala' has now come to describe a geographical area in Mumbai's suburbs, thus, public associate that area with plaintiff's name; Rejects defendants' contention that their adoption of 'Lokhandwala' was bonafide, notes that plaintiff started construction with name 'Lokhandwala' since around 1980, and in absence of any compelling evidence for defendant's bonafide adoption of 'Lokhandwala', states "I do not think it would be appropriate to suggest that the Defendants' use of the name is entirely innocent"; Dismisses defendant's argument that purchasers of properties would be able to distinguish between plaintiff & defendant properties, being from discerning class, holds, "I think this is the purest speculation. While such buyers do often conduct their own due diligences, I find it hard to believe that this would necessarily include an investigation of precisely which Lokhandwala they are dealing with, particularly if there is a common public association with one of them and not the other"; Also rejects defendant's plea of delay in filing suit, relies on Bombay HC (Division Bench) in Schering Corporation & Ors. v Kilitch Co. (Pharma) Pvt. Ltd to hold that once it is established that there is phonetically/visual similarity & defendant's adoption of mark is not honest, delay would not bar relief to plaintiff:Bombay HC
HC : Trademark 'ELENTE'/'LNT' deceptively similar to Larsen & Toubro's 'L&T', grants permanent injunction
HC grants injunction against use of trademark 'LNT'/ 'ELENTE' by Lachmi Narain Trades ('defendants'), similar to Larsen and Toubro Ltd.'s (plaintiff) trademark 'L&T'; Notes that plaintiff's has over the years acquired such goodwill & distinctiveness that its mark 'L&T' necessarily brings to mind of any person plaintiff's name "Larsen" and "Toubro" and any use of such words is bound to cause confusion amongst the traders/ members of the public; Rejects defendant's contention that adoption of 'LNT'/ 'ELENTE' by them is bonafide as letters LNT have been adopted from abbreviation of name of their main person concerned; Relies on 'Kerly's Law of Trade Marks and Trade Names', SC ruling in the matter of Laxmikant V. Patel vs. Chetanbhat Shah & Anr., compares both plaintiff's & defendant's mark, holds that the marks were deceptively similar; With respect to defendant's contention that they were using the mark since 2001 within the knowledge of the plaintiff, despite which plaintiff delayed in filing suit for about 2 years, relies on Delhi HC ruling in Hindustan Pencils Pvt. Ltd. Vs. M/s India Stationery Products Co, SC ruling in M/s. Bengal Waterproof Ltd. Vs. M/s. Bombay Waterproof Manufacturing Co. and holds that injunction cannot be refused on account of delay if the plaintiff has made a strong case on merit:Delhi HC
HC : Slight dissimilarities in logos immaterial when actual trademark identical; Protects trademark 'Kalpataru'
HC grants ad-interim injunction against defendant from using trademark "KALPATARU", as identical to Kalpataru Properties Pvt. Ltd's (plaintiff) registered Trade Mark "KALPATARU"; Notes that plaintiff, engaged in construction, development and building, conceived and adopted the trade mark 'Kalpataru' in 1969 and acquired considerable goodwill/ reputation, and the mark is now uniquely associated with plaintiff; Observes that defendant used an identical mark "Kalpataru" along with the device of a tree (similar to that plaintiff) as their trade name, in relation to their services of distribution of FMCG products; Rejects defendant's contention that there was some dissimilarity between the devices used by defendant & plaintiff, holds that "both logos are stylized or artistic deceptions of a tree and the fact that there are some dissimilarities is immaterial when the actual mark used is identical, the mark must be viewed as a whole.":Bombay HC
HC : Protects 5 decades-old distemper trademark '1001', restrains defendant from using similar '6004'
HC restrains defendants from using numeral trademark '6004', being deceptively similar to Glossy Color & Paints Pvt. Ltd.'s ('plaintiff') trademark '1001' used for same acrylic distemper goods; Observes that defendants adopted similar numeral eye device and colour combination in order to make it easy to create confusion and deception among purchasers, states that, "The Court cannot give the license to the party to filch the goodwill and reputation of the party which has been using the numeral for the last more than 69 years"; Notes that purchasers of plaintiff & defendant are illiterate and semi-literates persons (painters and whitewash men) who purchase the product mainly by identifying with colour combination, particular device and some combination of numeral; Remarks that, "Stolen property can never become rightful property in any manner either by law or by cleverness and smartness of a party. The Courts should not allow him to become Hero, it is better for the society if he remains as 'Villain'"; Relies on Delhi HC ruling (Division Bench) in B.K. Engineering Co. vs. Ubhi Enterprises & Anr, co-ordinate bench rulings inVrajlal Manilal vs. Adarsh Bidi, Tata Oil Mills Co. Ltd. vs. Reward Soap Works:Delhi HC
HC : Restrains unauthorised selling of counterfeit products of French brand 'Loius Vuitton'
HC grants permanent injunction restraining defendant from unauthorised selling of counterfeit products under multiple registered trademarks of French brand Loius Vuitton ('plaintiff'), viz., "Louis Vuitton", LV logo, "Damier pattern" and its "Toile Monogram" pattern; Observes that plaintiff's trademarks, logo, monogram pattern were all well-known trademarks, enjoying protection under Indian law; Rejects defendant's plea that they sold goods under belief that goods were owned by plaintiff, and were not counterfeit; States that goods were sold outside exclusive stores of plaintiff, thus, an adverse inference is to be drawn under Indian Evidence Act, 1872 that the goods are counterfeit beyond any doubt; Refers to co-ordinate bench rulings in Louis Vuitton Malletier v. Arif Khatri & Anr., Louis Vuitton Malletier v. Abdul Salim & Ors., wherein Loius Vuitton was declared to be well-known trademark:Delhi HC
HC : Saves Science Olympiad Foundation's trademark 'SOF'/domain name from infringement by not-for-profit organisation
HC grants ad-interim injunction against the use of trademark 'SOF' by Shivalik Olympiad Foundation ('defendant'), as identical/ deceptively similar to Science Olympiad Foundation's ('plaintiff') trademark 'SOF'; Also restrains defendant from using 'SOF' in domain name or any publicity material; Notes that plaintiff got its trademark registered in 2000 and is engaged in organizing/ conducting Olympiad Exams in over 1,200 cities across 19 countries in Asia, thus enjoys immense goodwill; Observes that defendant has not only adopted plaintiff's trademark and trade name, but has also adopted the manner of conducting Olympiad Exams and syllabus for such exams; Holds that, "Besides infringement of trademarks of the plaintiff, such conduct of the defendant is likely to cause deception in the minds of the general public that the impugned mark is a part of the plaintiff"; Thus, observes presence of prima facie case and balance of convenience in plaintiff's favour, states that "In case the interim orders are not passed the plaintiff would suffer an irreparable loss and injury":Delhi HC
HC : 'AQUALENA' infringes Pepsico's 'AQUAFINA'; Emphasizes on health danger when consumables trademark involved
HC in an ex-parte order grants permanent injunction against use of 'AQUALENA', as deceptively/ confusingly similar to Pepsico Inc.'s ('plaintiff') trademark 'AQUAFINA', both used for packaged drinking water; Observes that plaintiffs have been exclusively using the trademark 'AQUAFINA' continuously since 1994 and has acquired enviable goodwill & reputation, holds that defendants have intentionally /deliberately adopted similar mark, get up and design as that of plaintiffs'; HC considers the nature of the product (being drinking water), states that "courts should take more stringent action when the issue in hand pertaining to food, beverages and consumable articles are involved because the health and life of human being is involved"; Refers to Delhi HC rulings in Time Incorporated Vs. Lokesh Srivastava & Anr. and Microsoft Corporation Vs. Rajendra Pawar & Anr., and grants plaintiff punitive damages as well as cost of the proceedings to the tune of Rs.5 lakhs:Delhi HC
COMPANY CASES (CC) HIGHLIGHTS
F Where company abused the judicial process in order to delay discharge of an acknowledged debt, it had to pay the amount due within 45 days : Stantech Project Engg. P. Ltd. v. Nicco Corporation Ltd. p. 308
F Calculation of value of bonds for restitution made on basis of price sold by decree holder with value of coupon interest received by decree holder accepted : Citibank N. A. v. Hiten P. Dalal p. 343
F Where brand name was already registered trade mark of respondent, both appellant and respondent were doing same business, appellant to delete brand name from its existing name : Vardhaman Crop Nutrients P. Ltd. v. Union of India (P & H) p. 312
F Where arrears pertaining to post-winding up order period, licensor entitled to preferential payment : Eleganza Furnishings P. Ltd., In re (Bom) p. 321
F Where notice served to company in its administrative office instead of registered office, provisions of section 434(1)(a) not satisfied, petition dismissed with liberty to petitioner to serve notice on registered office address of company and file fresh petition : Reliance Capital Ltd. v. Vijay Mining and Infra Corp P. Ltd. (T & AP) p. 326
F Where provisions creating obligations on foreign companies doing business in India not applicable to creditor, admission of winding up petition on prima facie satisfaction that company was not able to pay its debts proper : Kingfisher Airlines Ltd. v. Aerotron Ltd. (Karn) p. 328
F Where company not prepared to deposit entire principal claim, winding up petition admitted : Himatsingka Chemicals P. Ltd. v. Dynamic Herbikem India P. Ltd. (Cal) p. 331
F Ordinance :
Negotiable Instruments (Amendment) Second Ordinance, 2015 p. 63
F Regulations :
Securities and Exchange Board of India (Alternative Investment Funds) (Amendment) Regulations, 2015 p. 49
Securities and Exchange Board of India (Issue of Capital and Disclosure Requirements) (Sixth Amendment) Regulations, 2015 p. 62
Securities and Exchange Board of India (Regulatory Fee on Stock Exchanges) (Amendment) Regulations, 2015 p. 61
Securities Contracts (Regulation) (Stock Exchanges and Clearing Corporations) (Amendment) Regulations, 2015 p. 59
F Rules :
Companies (Cost Records and Audit) (Amendment) Rules, 2015 p. 50
F Notifications :
Companies Act, 2013 : Notification under section 129(6) : Additional information of general instructions under section 129(6) not applicable to Government companies producing defence equipments p. 57
Notification under section 467(1) : Alterations in Schedule III p. 58
Securities Contracts (Regulation) Act, 1956 : Notification under section 4 : Renewal of recognition to stock exchanges p. 59
F Fraudulent preference as a risk to creditors-Sreyan Chatterjee p. 95
F Nomination : Legal position of parties under various legislations-Dr. Mahesh Thakar p. 113
F Rights of borrower for set-off and counterclaim before Debts Recovery Tribunal-G. S. Dubey p. 107
| COMPANY LAW INSTITUTE OF INDIA PVT. LTD. No. 2, |
CLB can't deny jurisdiction u/s 111 for rectification/member-registration, absent dispute regarding share-title
SC upholds Delhi HC order that directed a private ltd co. to register legal heirs ('respondents') as shareholders in place of their deceased father, quashes CLB order that denied its jurisdiction to direct such rectification; Observes that since respondents had furnished valid succession certificate and transfer deed executed by their grandmother (to whom shares were transferred by respondent's father through his Will), CLB could not have denied its jurisdiction; Holds that despite summary jurisdiction of CLB u/s 111, CLB can only relegate parties to Civil Court when case involves complex facts regarding title/property, not in instant case where there was no real dispute, thus, rejects reliance on SC rulings in Ammonia Supplies Corpn. (P) Ltd. vs. Modern Plastic Containers (P) Ltd., Standard Chartered Bank vs. Andhra Bank Financial Services Ltd., as distinguishable on facts; Rejects contention of deceased father's cousins that father's Will did not mention respondents as legatees and since a stay was granted by HC against succession certificate, succession certificate could not be relied on, thus, shares could not be transferred to respondents; Holds that since stay was granted at instance of grandmother who herself opted out and proceeded to settle & transfer shares to respondents, thus, succession certificate which was issued by District Court was valid and rightly relied on by HC :SC
The ruling was delivered by Justice Anil R. Dave and Justice Adarsh Kumar Goel.
Senior Counsels H.P. Rawal, Sanjiv Sen, Vikas Singh argued on behalf of appellants, while respondents were represented by Senior Counsel C.A. Sundaram.
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