Refuses to vacate interim-injunction granted to cancer drug; Rejects 'public interest' plea
HC upholds interim injunction against Indian pharma co. (defendants), in apprehension of it infringing USA co, Bristol-Myers Squibb's cancer treating drug patent- Dasatinib; Rejects defendants' 'public interest' contention that plaintiff's product was in much demand, however, due to exorbitant price was out of reach of common man, thus, interim injunction should be vacated; Holds that plea of public interest may be invoked after the Court finds prima-facie case of credible defence, absent in instant case, & also defendants did not make any representation to Central Govt pleading expensive drug, its non-availability, thus, interim injunction could not be vacated; Further dismisses plea of 'obviousness' in suit patent that Dastanib was Thiazole compound which was known to cure tumors and cancer, holds that the, "said submission ignores the principle operating behind improvements in the patents"; On defendants' plea that plaintiff was using monohydrate version of Dasatinib which was not covered by the suit patent and was the matter of the separate application, holds that at this stage, where the defendants were yet to launch the product containing Dasatinib in either form "the question of distinction of monohydrate form or otherwise gave no support"; Relies on foreign case in American Cyanamid Company v. Ethicon Limited, SC rulings in Wander Ltd. & Anr. V. Antox India P. Ltd., Kuldip Singh versus Subhash Chander Jain & Ors, co-ordinate bench rulings in Strix Limited v. Maharaja Appliances Limited, Novartis v. Ciplas:Delhi HC
Refuses to vacate interim-injunction granted to cancer drug; Rejects 'public interest' plea
HC upholds interim injunction against Indian pharma co. (defendants), in apprehension of it infringing USA co, Bristol-Myers Squibb's cancer treating drug patent- Dasatinib; Rejects defendants' 'public interest' contention that plaintiff's product was in much demand, however, due to exorbitant price was out of reach of common man, thus, interim injunction should be vacated; Holds that plea of public interest may be invoked after the Court finds prima-facie case of credible defence, absent in instant case, & also defendants did not make any representation to Central Govt pleading expensive drug, its non-availability, thus, interim injunction could not be vacated; Further dismisses plea of 'obviousness' in suit patent that Dastanib was Thiazole compound which was known to cure tumors and cancer, holds that the, "said submission ignores the principle operating behind improvements in the patents"; On defendants' plea that plaintiff was using monohydrate version of Dasatinib which was not covered by the suit patent and was the matter of the separate application, holds that at this stage, where the defendants were yet to launch the product containing Dasatinib in either form "the question of distinction of monohydrate form or otherwise gave no support"; Relies on foreign case in American Cyanamid Company v. Ethicon Limited, SC rulings in Wander Ltd. & Anr. V. Antox India P. Ltd., Kuldip Singh versus Subhash Chander Jain & Ors, co-ordinate bench rulings in Strix Limited v. Maharaja Appliances Limited, Novartis v. Ciplas:Delhi HC
The ruling was delivered by Justice Manmohan Singh.
Advocates Pravin Anand, Nishchal Anand and Aman Taneja argued on behalf of the plaintiff. Advocate Rajeshwari H argued on behalf of the defendants.
CCI amends Combination Rules to provide greater clarity/transparency : Govt
CCI revises its Combination Regulations after seeking comments from stakeholders; Key amendments include change in definition of the term "other document", limiting it to "a communication conveying the intention to make an acquisition to a Statutory Authority", mentions the Press Note; The amendments also provide flexibility to parties regarding signing of the notice, and number of copies of notice to be filed with the Commission is also reduced; CCI further revises Form I required to be filed for notifying combination; "To bring in greater transparency regarding the review process, the amendments provide that a summary of every combination under review will be published on the website of CCI...", Govt specifies
Closes complaint against 18 automobile manufacturers; Stringent dealership agreement 'standard business practice'
CCI closes complaint against 18 automobile manufacturers ( Mahindra & Mahindra, Tata Motors, Honda Siel, Volkswagen, General Motors, Toyota Kirloskar, Ford India, Renault, Hyundai, Ashok Leyland, TVS, Bajaj, Hero MotoCorp. etc., - Opposite Parties, 'OPs'). alleging imposition of restrictive, anti-competitive, one-sided conditions in their Letter of Intents ('LOIs') & dealership agreements; Rejects informant's (automobile dealer of M&M) allegation about automobile manufacturers' imposing stringent criteria relating to technical expertise, infrastructure, investment for appointing its authorized dealers, holds that such criterias are dependent on manufacturer's brand, goodwill, nature of product and the applicant is well aware of such requirements before selecting the manufacturer; With reference to the non-compete clauses in dealership agreements, maintenance of minimum stock in showroom, incurring expenditure in promotion of sales, CCI observes that such clauses are 'standard business practices' followed by all automobile manufacturers and are not anti-competitive; Observes that Informant has failed to prove any evidence for establishing that OPs have compelled to accept any anti-competitive terms and conditions, holds that Informant's grievance are monetary disputes for which civil suits & arbitration proceedings are initiated; On informant's reliance on CCI ruling in Automobile Dealers Association Vs Global Automobiles Ltd. & Shamsher Kataria Vs Honda Siel Cars & Ors, CCI holds that the issues & allegations involved in both these cases were distinct from extant case:CCI
The order was given by Shri. Ashok Chawla (Chairperson), Shri. S.L. Bunker, Shri. Sudhir Mital, Shri. U.C. Nahta and Shri. M.S. Sahoo (Members).
Advocates Vikram Mehta and Siddharth Jain represented the Informant.
INCOME TAX REPORTS (ITR)
Non-resident --International transaction--Transfer pricing--General principles--Arm̢۪s length price--US company subsidiary of Indian company--Loan by Indian company to its subsidiary--Interest calculated under comparable uncontrolled price method--Loan transaction in the year 2002-03--Rate of interest accepted in earlier and subsequent assessment years--Transfer Pricing Officer and Dispute Resolution Panel not questioning long-term transaction--Increase in rate of interest for assessment year 2007-08 not valid--Income-tax Act, 1961-- CIT v. Cotton Naturals (I.) Pvt. Ltd. (Delhi) . . . 1
Search and seizure --Block assessment--Undisclosed income--Assessment of third person--Sale of property--Assessee receiving amount--Books of account of purchaser showing fraction of amount disclosed as sale consideration--Department entitled to issue notice to determine whether such amount actually received by assessee and, if so, on whose behalf, and proceed further--Income-tax Act, 1961, s. 158BD-- CIT v. H. P. Goel (Delhi) . . . 29
Appeal to Appellate Tribunal --Limitation--Delay in filing appeal--Condonation of delay--No satisfactory explanation regarding delay--Delay could not be condoned--Income-tax Act, 1961-- Ajmeer Sherriff and Co. v. ITO (Mad) . . . 15
Business --Transactions in shares--Non-banking financial company--Whether business transactions or investments--Frequency of transaction not conclusive test--Evidence to show some transactions were business, some investment and some speculation--No fault found with evidence--Concurrent finding that transactions not business activity--Possible view--Income-tax Act, 1961-- CIT v. Merlin Holding P. Ltd. (Cal) . . . 118
Company --Dividend--Deemed dividend--Loan to shareholder by closely held company--Assessee owning 60 per cent. shares of company--Company possessing accumulated profits--Amounts taken as loan from company and payments also made to company--Assessing Officer directed to verify each debit entry and treat only excess as deemed dividend--Income-tax Act, 1961, s. 2(22)(e)-- Sunil Kapoor v. CIT (Mad) . . . 1
Deduction of tax at source --Interest--Chit fund--Amount paid by chit fund to its subscribers--Not interest--Tax not deductible at source on such interest--Income-tax Act, 1961, ss. 2(28A), 194A-- CIT v. Avenue Super Chits P. Ltd. (Karn) . . . 76
----Rent--Fees for technical services--Assessee distributing electricity to consumers--Public utility--Wheeling and transmission charges--Charge for permitting use of State transmission utility --Not equated to rent or fees for technical services--Tax not deductible at source--Income-tax Act, 1961, ss. 194-I, 194J-- CIT (TDS) v. Maharashtra State Electricity Distribution Co. Ltd. (Bom) . . . 23
Income deemed to accrue or arise in India --Wet-leasing aircraft to foreign company--Operational activities were abroad--Expenses towards maintenance and repairs were for purpose of earning abroad--Payments falling within the purview of exclusionary clause of section 9(1)(vii)(b)--Not chargeable to tax and not liable for deduction of tax at source--Income-tax Act, 1961, ss. 9(1)(vii)(b), 195-- Director of Income-tax v. Lufthansa Cargo India (Delhi) . . . 85
Income from house property --Annual letting value--Mode of determination--Income-tax Act, 1961-- Vimal R. Ambani v. Deputy CIT (Bom) . . . 66
Interpretation of taxing statutes --Rent--Contextual interpretation-- CIT (TDS) v. Maharashtra State Electricity Distribution Co. Ltd. (Bom) . . . 23
Non-resident --Income deemed to accrue or arise in India--Fees for technical services--Assessee acquiring aircrafts from non-resident company and wet-leasing them to a foreign company--Aircraft safe and airworthy--Certification of such component safety--Condition precedent--Component overhaul and maintenance--Level of technical expertise and ability required--Nature of these services technical services--Income-tax Act, 1961, s. 9(1)(vii)-- Director of Income-tax v. Lufthansa Cargo India (Delhi) . . . 85
Precedent --Effect of decision of Supreme Court in Smt. Tarulata Shyam v. CIT [1977] 108 ITR 345 (SC)-- Sunil Kapoor v. CIT (Mad) . . . 1
Reassessment --Notice after four years--Conditions precedent--Reasons not showing any failure on part of assessee to disclose fully and truly all material facts--Notice based on assessment made in subsequent years--Notice to be set aside--Income-tax Act, 1961, ss. 147, 148-- State Bank of Patiala v. CIT (P&H) . . . 109
Recovery of tax --Private company--Recovery of tax from director of private company--Scope of section 179--Public company--No material to show attempt was made to pierce corporate veil--No notice to company regarding such investigation--Recovery proceedings against director not valid--Income-tax Act, 1961, s. 179-- Ajay S. Patel v. ITO (Guj) . . . 72
Revision --Commissioner--Powers--Financial corporation--Government banks--Assessing Officer granting deduction to assessee--Possible view--View fortified by decision of Tribunal accepted by Revenue--Principle of consistency--No occasion for Commissioner to revise that order--Income-tax Act, 1961, ss. 36(1)(viii), 263-- CIT v. State Bank of India (Bom) . . . 20
----Condition precedent--Order of Assessing Officer should be erroneous and prejudicial to Revenue--Assessing Officer failing to make necessary enquiry--Creditworthiness of alleged lenders not investigated--Revision of order--Justified--Income-tax Act, 1961, s. 263-- CIT v. Maithan International (Cal) . . . 123
Salary --Deduction of tax at source--Doctors working in hospital--Different terms and conditions under which various doctors rendered services--Terms and conditions must be examined in each case to determine character of payment received--Income-tax Act, 1961, s. 192-- CIT (TDS) v. Grant Medical Foundation (Ruby Hall Clinic) (Bom) . . . 49
Search and seizure --Block assessment--Undisclosed income--Unexplained investment--Effect of sections 132 and 69--Burden on assessee to prove source of income--No satisfactory explanation regarding investment--Addition of value of investment in total income of assessee--Justified--Income-tax Act, 1961, ss. 69, 132-- Hemant Kumar Ghosh v. Asst. CIT (Patna) . . . 79
S. 2(22)(e) --Company--Dividend--Deemed dividend--Loan to shareholder by closely held company--Assessee owning 60 per cent. shares of company--Company possessing accumulated profits--Amounts taken as loan from company and payments also made to company--Assessing Officer directed to verify each debit entry and treat only excess as deemed dividend-- Sunil Kapoor v. CIT (Mad) . . . 1
S. 2(28A) --Deduction of tax at source--Interest--Chit fund--Amount paid by chit fund to its subscribers--Not interest--Tax not deductible at source on such interest-- CIT v. Avenue Super Chits P. Ltd. (Karn) . . . 76
S. 9(1)(vii) --Non-resident--Income deemed to accrue or arise in India--Fees for technical services--Assessee acquiring aircrafts from non-resident company and wet-leasing them to a foreign company--Aircraft safe and airworthy--Certification of such component safety--Condition precedent--Component overhaul and maintenance--Level of technical expertise and ability required--Nature of these services technical services-- Director of Income-tax v. Lufthansa Cargo India (Delhi) . . . 85
S. 9(1)(vii)(b) --Income deemed to accrue or arise in India--Wet-leasing aircraft to foreign company--Operational activities were abroad--Expenses towards maintenance and repairs were for purpose of earning abroad--Payments falling within the purview of exclusionary clause of section 9(1)(vii)(b)--Not chargeable to tax and not liable for deduction of tax at source-- Director of Income-tax v. Lufthansa Cargo India (Delhi) . . . 85
S. 36(1)(viii) --Revision--Commissioner--Powers--Financial corporation--Government banks--Assessing Officer granting deduction to assessee--Possible view--View fortified by decision of Tribunal accepted by Revenue--Principle of consistency--No occasion for Commissioner to revise that order-- CIT v. State Bank of India (Bom) . . . 20
S. 69 --Search and seizure--Block assessment--Undisclosed income--Unexplained investment--Effect of sections 132 and 69--Burden on assessee to prove source of income--No satisfactory explanation regarding investment--Addition of value of investment in total income of assessee--Justified-- Hemant Kumar Ghosh v. Asst. CIT (Patna) . . . 79
S. 132 --Search and seizure--Block assessment--Undisclosed income--Unexplained investment--Effect of sections 132 and 69--Burden on assessee to prove source of income--No satisfactory explanation regarding investment--Addition of value of investment in total income of assessee--Justified-- Hemant Kumar Ghosh v. Asst. CIT (Patna) . . . 79
S. 147 --Reassessment--Notice after four years--Conditions precedent--Reasons not showing any failure on part of assessee to disclose fully and truly all material facts--Notice based on assessment made in subsequent years--Notice to be set aside-- State Bank of Patiala v. CIT (P&H) . . . 109
S. 148 --Reassessment--Notice after four years--Conditions precedent--Reasons not showing any failure on part of assessee to disclose fully and truly all material facts--Notice based on assessment made in subsequent years--Notice to be set aside-- State Bank of Patiala v. CIT (P&H) . . . 109
S. 179 --Recovery of tax--Private company--Recovery of tax from director of private company--Scope of section 179--Public company--No material to show attempt was made to pierce corporate veil--No notice to company regarding such investigation--Recovery proceedings against director not valid-- Ajay S. Patel v. ITO (Guj) . . . 72
S. 192 --Salary--Deduction of tax at source--Doctors working in hospital--Different terms and conditions under which various doctors rendered services--Terms and conditions must be examined in each case to determine character of payment received-- CIT (TDS) v. Grant Medical Foundation (Ruby Hall Clinic) (Bom) . . . 49
S. 194A --Deduction of tax at source--Interest--Chit fund--Amount paid by chit fund to its subscribers--Not interest--Tax not deductible at source on such interest-- CIT v. Avenue Super Chits P. Ltd. (Karn) . . . 76
S. 194-I --Deduction of tax at source--Rent--Fees for technical services--Assessee distributing electricity to consumers--Public utility--Wheeling and transmission charges--Charge for permitting use of State transmission utility --Not equated to rent or fees for technical services--Tax not deductible at source-- CIT (TDS) v. Maharashtra State Electricity Distribution Co. Ltd. (Bom) . . . 23
S. 194J --Deduction of tax at source--Rent--Fees for technical services--Assessee distributing electricity to consumers--Public utility--Wheeling and transmission charges--Charge for permitting use of State transmission utility --Not equated to rent or fees for technical services--Tax not deductible at source-- CIT (TDS) v. Maharashtra State Electricity Distribution Co. Ltd. (Bom) . . . 23
S. 195 --Income deemed to accrue or arise in India--Wet-leasing aircraft to foreign company--Operational activities were abroad--Expenses towards maintenance and repairs were for purpose of earning abroad--Payments falling within the purview of exclusionary clause of section 9(1)(vii)(b)--Not chargeable to tax and not liable for deduction of tax at source-- Director of Income-tax v. Lufthansa Cargo India (Delhi) . . . 85
S. 263 --Revision--Commissioner--Powers--Financial corporation--Government banks--Assessing Officer granting deduction to assessee--Possible view--View fortified by decision of Tribunal accepted by Revenue--Principle of consistency--No occasion for Commissioner to revise that order-- CIT v. State Bank of India (Bom) . . . 20
----Revision--Condition precedent--Order of Assessing Officer should be erroneous and prejudicial to Revenue--Assessing Officer failing to make necessary enquiry--Creditworthiness of alleged lenders not investigated--Revision of order--Justified-- CIT v. Maithan International (Cal) . . . 123
GOODS AND SERVICE TAX REPORTS (GSTR) HIGHLIGHTS
F Purchasers of transferable licence cannot claim exemption admissible to predecessor in title as a right : Sevantilal and Sons v. Union of India (Bom) p. 84
F Rule 8 (3A) of 2002 Rules not beyond rule-making power of sub-ordinate legislation : Indsur Global Ltd. v. Union of India (Guj) p. 103
F Condition contained in rule 8(3A) of 2002 Rules for payment of duty without utilising Cenvat credit till outstanding amount including interest paid invalid : Indsur Global Ltd. v. Union of India (Guj) p. 103
F Pipette as accessory of auto analyser entitled to exemption as accessories of medical equipment under Notification No. 23/1998-Cus : Commissioner of Customs v. Transasia Bio-medicals Ltd. (Mad) p. 131
F Where final assessment resulting in nothing due and payable to Government, assessee not liable to pay interest : CEAT Ltd. v. CCE and Customs (Bom) p. 136
F Circular No. 108/02/2009-ST imposing of service tax on builders not lay down any new law and applicable to assessment orders dated 23/24-10-2008 : Maharaja Developers v. Assistant Commissioner, Service Tax Cell (Bom) p. 159
F Notifications :
Central Excise Act, 1944 : Notification under section 3A(3) : Rate of duty for chewing tobacco and branded unmanufactured tobacco : Amendments p. 17
Notification under section 5A(1) : Exemption to specified goods brought into hundred per cent. export-oriented unit or software technology park complex : Amendments p. 20
Notification under section 5A(1) and (2A) : Exemption to goods falling under First Schedule to Central Excise Tariff Act, 1985 : Amendments p. 19, 20
Central Excise Rules, 2002 : Notification under rule 19(2) and (3) : Conditions, safeguards and procedures for removal of excisable goods : Amendments p. 22
Cenvat Credit Rules, 2004 : Notification under rule 5B : Procedures, safeguards, conditions and limitations for grant of refund : Amendments p. 22
Customs Act, 1962 : Notification under sections 7(1)(b) and (c) : Appointment of customs ports for specified purposes : Amendments p. 31
Notification under section 14(2) : Rates of basic duty on specified goods : Amendments p. 30
Finance Act, 1994 : Notification under section 93(1) : Coming into force of certain clauses of section 93(1) p. 25
Exemption to certain services : Amendments p. 23, 24
Exemption to services provided by power system development fund scheme p. 26
Notification under section 94(1) and (2) : Coming into force of certain clauses of section 94(1) and (2) p. 25
Finance (No. 2) Act, 2004 : Notification under sections 91 and 93 : Exemption to goods falling under First Schedule to Central Excise Tariff Act, 1985 : Amendments p. 19
Finance Act, 2007 : Notification under sections 136 and 138 : Exemption to goods falling under First Schedule to Central Excise Tariff Act, 1985 : Amendments p. 20
Finance Act, 2015 : Notification under sections 107(a), (c), (f), 108, 109(2), (3), (4), 153, 159 : Coming into force of certain clauses of sections in Finance Act, 2015 p. 24
Foreign Trade (Development and Regulation) Act, 1992 : Notification under section 5 : Export policy of cotton yarn : Amendments p. 32
| COMPANY LAW INSTITUTE OF INDIA PVT. LTD. No. 2, Vaithyaram Street, T.Nagar, Chennai - 600017. Phone: (044) 24350752 - 55 Fax: (044) 24322015 |
__._,_.___
No comments:
Post a Comment