Inheritance laws are not only complicated but also very scattered in India. Because of the absence of Uniform Civil Code, there are different inheritance laws for different religion in India. What are the inheritance rights given to a brother in deceased brother’s property? What are the provisions governing inheritance laws in India? Does brother have rights over brother’s property? Does sister have rights over brother’s property or vice versa? An article by Anubhav Pandey dealing with the above-raised issues.

Hindu inheritance law and succession of brother over deceased brother’s property 

The Hindu Succession Act applies where the person dies without declaring a will. In legal terminology, Intestate. A brother might get a share in deceased brother’s property but only where certain conditions are fulfilled.

Among Hindus, the manner in which property will pass to the heir is thoroughly divided into classes. Such as class 1 heir, class 2 heir and so on. There are rules which govern the passing of property.

Suggested Reading. https://blog.ipleaders.in/identify-legal-heir/ 

Rule1 When a Hindu male dies, one part of his property passes to his widow. If there are more than one widow, in such a case, all widows together will take one share in the property.

1. The surviving sons and daughters and the mother of the intestate, each will take one share.
2. In cases of predeceased sons or daughters of the Hindu (whose property is to pass), in case of predeceased daughter,  the surviving sons and daughters get an equal portion, and, where the case is of predeceased son, his widow (or widows together) and the surviving sons and daughters gets equal portions.

Rule2 Share of brother in deceased brother’s property

• If there are no heirs in Class I, the property will be given to the heirs within Class II.
• If there are no class 1 hair as mentioned above the whole property will pass on to the father.
• If there is no father, then, in this case the property will be given to brother, sister, son’s daughter’s son, daughter’s daughter’s daughter in equal share.

Muslim inheritance law and passing of deceased brother’s property to surviving brother

After death, all the expenses are deducted from the property of a Muslim and whatever is left passes for inheritance. There is no distinction for inheritance purposes between movable and immovable property.  Among Muslims, there is no difference between personal and inherited property.

Muslim inheritance law does not recognize the principle of representation. 

• Suppose, A has two sons B, and C.
• B has 2 sons while C has 4 sons.
• B dies before A.
• The property of A will only pass on to C and his 4 sons. This is applicable to both Shia and Sunni law.
• In India, the rules that govern inheritance under the Muslim law In cases of nNon testamentary succession is the Muslim Personal Law (Shariat) Application Act, 1937, whereas, when one who has created his will before death, the inheritance is governed under the relevant Muslim Sharia Law as applicable to the Shias and the Sunnis.

Share of brother in deceased brother’s property

Under Quran and Sharia law, the following are the prescribed shares which pass after the death of a male. Father, mother, son, daughter and spouse get a confirmed share. Rest depends upon the residue of what amount of property is left and the relatives alive to inherit.

(Everything mentioned is from the perspective of deceased person)

Son’s share: Son is the next head after the deceased.

Wife’s share: in case wife is left with no children she gets ¼ and if with children ⅛. It is confirmed share.

Husband’s share: ½ in case when the wife dies with no child/children. ¼ when dies with children.

Daughter’s share: Only in the case when there is no son. Half in the case daughter is unmarried.

Father’s share: ⅙ share if children are alive. Father is very powerful. If after calculating, everything left can go to father. Father can block brother.

Mother’s share: ⅓, but if deceased have children it gets reduced.

Granddaughter’s share: Granddaughter is given a share only in the absence of son and daughters. 

Grandfather’s share: Only is father is not alive.  Not as powerful as father. ⅙ prescribed share.

Grandmother: Only in the absence of mother and father.  Both father’s and mother’s side. Prescribed share is ⅙

Sister’s share: If only one sister she gets ½ if multiple they share from the 2/3 on the condition that there should be no daughter or granddaughter and also the absence of brother is required. The absence of father and grandfather is also necessary.

After giving of the inheritance to all the ‘prescribed relatives’, fractions left out are given to these relatives depending upon priority first basis.

First priority is given to son and daughter, then Grandson and Granddaughter, then Father and then comes Brother and Sisters. Therefore, brother in nowhere given priority in the deceased property. Only in the residual property lies Brother’s share.

Indian Succession Act and share of brother in deceased brother’s property

Consanguinity is the quality of being descended from the same ancestor as another person. Lineal consanguinity is that which subsists between two persons, one of whom is descended in a direct line from the other, as between a man and his father, grandfather and great-grandfather, and so upwards in the direct ascending line; or between a man and his son, grandson, great-grandson and so downwards in the descending line.

Simply put the relationship between direct line, parents, child, and grandparent.

Situations where brother acquires deceased brother’s property

1. If the deceased father is dead, but the mother is alive and there are also brothers or sisters of the deceased living, and there is no child living of any deceased brother or sister, the mother and each living brother or sister will succeed to the property in equal shares.

• A dies intestate, survived by his mother and two brothers of the full blood, B and C and a sister D, who is the daughter of his mother but not of his father. The mother takes one-fourth, each brother takes one-fourth and D, the sister of half blood, takes one-fourth.

2. If the deceased father is dead but the mother is living, and if any brother or sister and the child or children of any brother or sister who may have died in the intestate’s lifetime are also living, then the mother and each living brother or sister, and the living child or children of each deceased brother or sister, will be entitled to the property in equal shares, such children (if more than one) taking in equal shares only the shares which their respective parents would have taken if living at the deceased death.

• A deceased, leaves his mother, his brothers B and C, and also one child of a deceased sister, D, and two children of E, a deceased brother of the half-blood who was the son of his father but not of his mother. The mother takes one-fifth, B and C each take one-fifth, the child of D takes one-fifth, and the two children of E divides the remaining one-fifth equally between them.

3. Where the deceased has left neither lineal descendant, nor father, nor mother, the property will be divided equally between his brothers and sisters and the child or children of such of them as may have died before him.

In this article, Anubhav Pandey put forth the marriage and divorce laws involved in Arya Samaj marriages.

Founded by Swami Dayananda Saraswati in 1875, Arya Samajis acquires a prominent place in India. How is Arya Samaj marriage solemnized? What is the legal validity of Arya Samaj marriage? Is the Arya Samaj marriage certificate valid? What is the divorce procedure according to Arya Samaj rituals? Is Arya Samaj marriage certificate valid for a passport? Let us try to understand the marriage and divorce procedure as per the Arya Samaj custom.

How is Arya Samaj marriage solemnised

• The ceremony of Arya Samaj marriage is conducted as per the Vedic ritual, and its validity is derived from Arya Samaj Marriage Validation Act, 1937 with provisions of Hindu Marriage Act, 1955. Hindu Marriage applies equally to Arya Samajis.
• Since the people belonging to Arya Samaj do not believe in Idol worship, therefore, their marriages are performed by different rituals than Hindus.

Marriage rituals in Arya Samaj

Arya Samaj marriage rituals are very simple and straight. Based on Vedic principles, all the hymns spelled during marriages are explained to the bride and groom. The marriage is just like Hindu marriage, marriage is centered around fire and is observed as the transition of wedding couple from Brahmacharya to Grihastha Ashram.

Who are eligible for an Arya Samaj marriage

1. Age of the groom must be 21 and bride 18.
2. Any person who is Hindus, Buddhists, Jains, Sikhs can perform Arya Samaj Marriage.
3. Any person who is not Muslims, Christians, Parsis or Jews can also perform Arya Samaj Marriage.
4. Inter-Caste Marriages and Inter-Religious Marriages can also be performed in an Arya Samaj Marriage provided none of the marrying persons are Muslims, Christians, Parsis or Jews.
5. If a non-Hindu couple would like to perform the marriage, the Samaj allows them to get converted through a process called Shuddhi. Muslims, Christians, Parsis or Jews, if, out of their free will and consent are ready to convert and embrace Hindu Religion, the Arya Samaj Mandir perform a ritual called shuddhi meaning purification for such conversion, and thereafter, such a convert can perform Arya Samaj Marriage.

Wedding rituals and procedure in Arya Samaj marriages

An Arya Samaj marriage takes around 1-2 hours for the completion of entire marriage. All one needs are basic paper requirements, two garlands, and sweets! The wedding rituals involved in marriage are:

1. Booking of Arya Samaj Mandir in advance and submission of required papers.
2. After successful registration Mandir will give you a date for marriage.
3. Wedding rituals start with, enchanting of the holy Vedic hymn and its explanation by Pandit Ji. Then comes the garland exchange ritual, where, the bride garlands the groom first. Then washes his feet, hand, and face. Then comes the ritual of madhupark se satkar (consuming of honey, curd and ghee by the groom).
4. Yagna begins with groom wearing a sacred thread.
5. Kanya daan is observed followed by holy rounds around the fire.
6. Kanya daan is followed by ‘Pratigya Mantra’, The groom holds the bride’s hand and together, they take their wedding vows.
7. Shilarohan, where the brother of the bride places her foot on a stone, while the groom recites mantras.
8. Bride and the groom do parikrama around the fire four times.
9. Kesh Mochan, ritual involves the groom undoing his bride’s hair gently and letting it cascade down freely.
10. Just as Hindus, saptapadi or seven holy circle around the fire is observed.
11. Hridaya Sparsh, where, the couple touch each other’s hearts and promise to be tender-hearted and gentle with each other ending with the newly-weds viewing the Dhruv or the Pole Star.

Documents required for solemnisation of Arya Samaj Marriage

1. 4 copies of coloured photograph of both bride and the groom
2. Date of birth proof and address proof of both marrying parties.
3. Bride and groom should be of competent age. 18 for bride and 21 for groom.
4. Standing of two witnesses to witness the holy ceremony.
5. In case where a marrying party is divorced, then, certified copy of divorce certificate issued by the court.
6. In case where a marrying party is a widow, the death certificate of the dead spouse.
7. Where a marrying party  is a foreign citizen or holding a foreign passport or is having foreign residential address- Certificate of present marital status of the party/No Impediment Certificate/ NOC from concerned Embassy and Valid VISA

Registration of Arya Samaj Marriage

If you got married under the Arya Samaj Mandir then get this marriage registered under section 8 of the Act by the Marriage officer/Registrar of the district/state, where this marriage took place.

• After 2006, orders of Supreme Court are strict on the issue of registration of marriages in personal laws. An Arya Samaj marriage can be registered either under the Hindu Marriage Act, 1955 or under the Special Marriage Act, 1954. The Hindu Marriage Act is applicable in cases where both husband and wife are Hindus, Buddhists, Jains or Sikhs or where they have converted into any of these religions. Where either of the husband or wife or both are not Hindus, Buddhists, Jains or Sikhs, the marriage is registered under the Special Marriage Act, 1954.
• Hindu Marriage Act places a responsibility upon the states to make laws regarding registration of the marriage but also places an emphasis that where a marriage is not registered, its non registration will not invalidate the marriage. It is often advised to get the marriage registered as per the Supreme court orders and, it is the correct way to avoid disputes in future regarding breakdown of marriage.

Registering Arya Samaj Marriage as per Hindu Marriage Act

1. Registration is done with any Sub-divisional Magistrate, offline. Another option available at few jurisdictions like Delhi is of online registration. An appointment comes after 15 days.
2. Fulfilling the formalities of registration form.
3. Any document that provides the date of birth of the individuals.
4. 2 passport size photographs of both the parties are required, also one marriage photograph and Marriage invitation card (optional).
5. Attestation of gazetted officer is mandatory
6. After fulfilling all the formalities, it is the duty of the district court to provide the couple a marriage certificate.
7. A marriage registration cost around INR 100- 200.

Anant Naithani v State of Uttarakhand (2013)

In the said case the High Court of Uttarakhand observed that the Arya Marriage Validation Act, 1937 did provide for the grant of a marriage certificate nor authorised any person to do so. It was thus held that a marriage certificate issued by any Arya Samaj Mandir had no legal effect, except if a certificate was given by the person issuing the marriage certificate that he was a witness to the marriage.

Arya samaj marriages cannot get cancelled or divorce cannot happen in the arya samaj mandir, it only need to happen in the court, mandir are not proper authority to file an application for divorce. The divorce decree issued by the court is valid all around the globe.

June 30 2017 Union of India and another v. Deoki Nandan Aggarwal, AIR 1992 SC 96 and Balram Kumawat v. Union of India, (2003) 7 SCC 628,  a single judge pass certain rule and directions when couple opt to marriage through arya samaj. So it was challenged by the gwalior bench of madhya pradesh that already rules have been issued by the arya samaj authorities and its their internal matter and contrary to the laws of the arya samaj validation act,1937. Therefore the decision of the single judge was not upheld and also said that he is not competent to issue such directions. Thus the court does not have any authority to issue any directions or rules when persons want to marry through arya samaj.

When the marriage is unregistered and for the divorce wife wishes to apply husband is not giving any respond to the wife then wife without the consent of husband can file the case on the ground of cruelty or for the demand of dower. Points stated should be backed by proper evidence to prove on mental cruelty.

Advantages of Marrying under Arya Samaj customs and rituals

1. Arya Samaj marriages are very cost effective as Arya Samaj mandir charges very meager amount for the marriage.
2. It takes place within few hours only.
3. Only two witnesses are required, who may be anybody including parents, siblings, friends or anybody.
4. In practicality, one can plan for an Arya Samaj marriage within 30 minutes, go to Arya Samaj Mandir and complete the rest ritual within an hour.

How to get a divorce in marriages solemnised under Arya Samaj Marriage customs

Divorce procedure to dissolve Arya Samaj marriages are as same as Hindu divorce procedure as per Hindu Marriage Act. Couples in a marriage can either file for a mutual divorce through consent or in cases where mutual consent is not present fight the divorce through contest.

Divorce in Arya Samaj through mutual consent

Section 13-B (divorce by mutual consent ) makes provision for divorce by mutual consent on the ground that-

• Both the parties to the marriage have been living separately for a period of one year or more,
• They have not been able to live together, and
• They have now mutually agreed for the dissolution of the marriage.

Procedure of divorce through mutual consent in Arya Samaj

• Both the parties need to file together a petition seeking divorce before the District court.
• Before filing of the petition, married couple should make sure that they are living separately for a period of one year or more. After petition is allowed, parties are required for filing of statement
• Couple seeking divorce by mutual consent will have to give reason why they are not able to live together and mention in the petition that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
• Court after a period of 6 months and not more than 18 months (cooling-off period) will give a date for listening to the parties.

If the case is withdrawn or the parties do not move to court at the given date(s), the petition stands cancelled. After hearing to the parties and on being satisfied, court may pass a decree of divorce declaring the marriage to be dissolved.

Divorce in Arya Samaj without mutual consent

• If other party in a marriage have sexual intercourse with someone else after solemnization of the marriage, it results in a valid ground for divorce without mutual consent under the Hindu Marriage Act;
• After the solemnization of the marriage, treated the partner with cruelty;
• The other party has deserted the divorce seeker for a continuous period of not less than two years, immediately preceding the presentation of the petition;
• The other party has ceased to be a Hindu by conversion to another religion;
• The other party has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent, that the divorce seeker cannot reasonably be expected to live with the other party in a marriage.
• The other party has been suffering from a virulent and incurable form of leprosy;
• The other party has been suffering from venereal disease in a communicable form;
• The other party has renounced the world by entering any religious order;
• The other party has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, if the party had been alive.

A wife in an Arya Samaj marriage can, under the Hindu Marriage Act, 1955, contest for divorce without mutual consent on the following grounds that the husband had married again or that any other wife of the husband married before the contented marriage was alive at the time of the solemnization of the marriage of the petitioner, provided that, in either case, the other wife is alive at the time divorce is contested.

Guidelines issued by Gwalior Bench HC on Arya Samaj marriage:

Certain guidelines has been issued by the gwalior bench on arya samaj mandir marriage rituals before getting marriage certificate:

1. When bride and bridegroom decides to tie a knot in front of the arya samaj mandir, it shall be the duty of the management to first issue notice to the parents/families at the said addresses with the photographs of bride and bridegroom
2. If any kind of objections has been received that will be dealt by the mandir management by verifying all the facts and if required, help of the local police can be taken.
3. Class 10th marksheet of bride and bridegroom will be taken to verify date of birth of each of them.
4. If the bride and bridegroom are not educated, then there date of birth will be verified from the help of the family members or through the medical ossification at the government hospital or by the medical practitioner recognized by the government with proper seal.
5. The original address of the bride and bridegroom will also be verified by the documents like AADHAR card, PAN card or maybe by an enquiry , and if required by the local police.
6. After considering all the facts as mentioned above by verifying them and observing the bonafide intention of bride and bridegroom to solemnize the marriage, the management of mandir will solemnize the marriage with due observance of the saptapadi, all rites, ritual and ceremonies depending upon the financial status of the bride and the groom. The marriage will take place in presence of two witness of each side with their identity proof and residential proof with personal notarized affidavit and non judicial stamp paper which is value of rupees 100 or more which says that they know bride/bridegroom personally.
7. Every process of solemnization of marriage like saptapadi, any rituals, ceremonies will be recorded by the arya samaj mandir through videography.
8. Thereafter, marriage certificate may be issued to the bride/bridegroom by the authorized signatory of the mandir management.
9. The arya samaj mandir management will also keep a copy of documents and recording of the entire process of the marriage.
10. From the order of district head of police, the station house officers will conduct enquiry and verify from the arya samaj mandir within their jurisdiction, in event complaints are made of missing girl, fraud, manipulation in the matter of solemnization of marriage, in the police stations

Suggested readings.

How to Get Divorce Without Mutual Consent- Complete Guideline

Divorce by Mutual Consent In India- Detailed Report

What fee can one expect to pay for divorce cases in India?

Jewish Law of Marriage & Divorce in India

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In this article, Divya Arora of UILS discusses Top Law Firms for Freshers in India and how to decide the best firm for yourself.

While 62% of lawyers move firms within their first four years of practice, your career path will likely be clearly shaped by your first job as a lawyer![1] 

Today’s Legal market overview

With the country going through metamorphosis each day, each week the legal scenario is bound to be affected. India has a pool of more than 1.4 million enrolled advocates across the nation.[2] The talk of the town in the year 2016 was the entry of various foreign firms in India with the chances of liberization in this Sector as well.  Not only The Government but the Bar Council of India has also been emphasising and initiating discussions with various Stakeholders of the legal Sector on the entry of foreign law firms. Law firms are optimistic that such a move could potentially kick-start a strong flow of investment, thus increasing demand for banking, corporate and capital markets advice.[3] A report prepared by the Bar Council of India analyzes the impact, the trend the entry of foreign firms would have on the legal sector. Taking this into account it seems that the coming times there shall be plethora of options in the legal arena for the freshers in every area of practice. At the same time once the foreign firms pave their way in India there shall be sudden surge in competition which will significantly impact the new entrants as well.

Upcoming Changes in Legislation

One of the major practice and interest areas for Freshers is Dispute resolution which has gone  multifarious changes which include majorly reforms to the arbitration act, which to establish strict timeframes for dispute resolution accelerating the process of resolution and ensuring speedy justice.[4] This has opened up new avenues for Freshers and made practice simpler and lucrative for Professionals.

Law Firms in India[5]

This analysis has been done by RSG where they have categorized the firms as to their current standing. Amarchand Mangaldas continue to be significant players despite their split. Other key firms Include Azb & Partners, Luthra & Luthra Law Offices, Trilegal And Khaitan & Co.

The Elite Firms are any law student’s dream pursuit, yet getting even internships out there could prove to be a herculean task.

The Chasing pack are the  firms where these firms are upcoming and one could see them in the Elite list vey soon.

The others have been categorized on various other aspects.

For a fresher all those firms experience in the Chasing Pack and Established Firms could secure their way to the Elite firms which could be their dream job.

THE OUTLOOK OF A FRESHER

An amateur who has just managed to finish up his law course, interned at a few places, is new to this arena of the Corporate and after his degree is perplexed that how to go about choosing a firm.

The SUCCESS KEY TO  deciding what firm you choose is simple

“MAKE a Choice of your  Interests and carefully chose your Practice area”

1.One must enjoy work in the practice area he chooses to work with.

2. A careful choice is a must for its extremely difficult switching practice areas once your career gets a kickstart.

There exists obviously no formula for choosing a law firm to work with. As goes the old age adage that “knowledge is power”. To make a final opinion and reach on a conclusion one needs to be abreast with the latest developments and the future scope. As students we may consult counselors, talk to lawyers and take steps at our own level to understand our interests and simultaneously analyze the future scope and then enter the arena.[6]

GROUNDS FOR ANALYSING

WORK-ENVIRONMENT: A new entrant to the corporate world, you need to find the work environment suitable and adapt to the work culture of the organization, for if you are uncomfortable then your efficiency and experience as well your performance shall bear the effects.

FUTURE SCOPE: This is one of the most significant factors to be considered that if one plans to continue with the firm, as a fresher, you have ambitions and the firm you chose caters to your expectations and helps you grow professionally as a lawyer and the experience is noteworthy.

PAYSCALE: Although at the initial level one must be prepared to work even on a lower pay scale but yes, do consider that it is commensurate (or atleast somehow equal) to the hard work that one is going to put in.

PRESTIGE: One cannot help but take this into account as well.

Do smaller firms offer more options for growth?

It is a general belief that smaller firms offer more options for learning and training. Freshers may opt out and this may not be a significant factor from the perspective of a fresher. However, from the viewpoint of your next future employer, this can be a game changer. An entry in a  prestigious firm may open diverse and multiple options for one for it naturally speaks about your acumen in the profession and the skills along with the necessary training.[7] On the other hand, if you get to take more responsibility in a smaller organisation and become a skilful professional, that is also very valuable and you can laterally shift into a bigger and more prestigious organisation. Ultimately, brand name counts only as far your ability takes you.

INTEREST AREA

This is of paramount importance. For one’s long-term goals it is extremely vital that you stick to your interest area. Along with that consider the lifestyle factors that may be attached with it. While IPR may seem to be a growing option the times to come, Arbitration may offer lucrative avenues whereas M&A is an evergrowing and an important arena. In the cluster of fields that are increasing each progressing day one needs to ensure that there lies a promising career ahead that calls one forward powerfully so that trifle obstacles do not bog you down. Therefore it would add more value to a law student to do an M&A course or media law course or business law course to get their foot in the door of the law firms.

STRUCTURE OF FIRM

Lockstep firms may tend to foster more cooperation and less competition among partners, a culture that tends to trickle down to the associates as well. However, lockstep firms also tend to have more institutional clients and may not encourage the more junior associates to learn client development skills.

For associates who are more academically oriented, it may be more comfortable to work hard and not feel as much pressure to bring in clients.[8]

FIRMS IN SPOTLIGHT – BEST FOR FRESHERS

As Working at a place involves serious factors the new entrants in a unfamiliar arena, as per the old adage

“one must experience for it is the best teacher, and will remain one always”!.

LIST OF FIRMS

POSITION 1 : TRILEGAL- Winner of the pacific Asia Law firm for the year award-2016. This has immense scope for future growth, categorized in the chasing pack and may prove to be a great option for those who are interested in working in Corporate, M&A and litigation. Another reason is the policy that in case you perform well at internship you might also be considered for a job thereafter.[9] Trilegal is lauded for having a great training system for associates.

Position 2:  Shardul Amarchand and Cyril Amarchand:  Although it’s extremely difficult to build and continue dominance in the extremely competitive world of law firms, Amarchand, which is now broken up into two different firms tend to rule the legal markets.[10] After the break–up we are yet to see which ultimately rises up. They are definitely both highly sought after firms to work in for freshers.

Position 3: Khaitan & Co: The highest paying Law firm in current times, as far as freshers are concerned. It is an old and respected firm which is experienced massive growth in recent years and puts a good work-life balance high on it’s agenda.[11]

Position 4: AZB & Partners: It is probably the biggest law firm in terms of billing and reputation after AMSS breaking up. Salaries are great, and high performers can earn a lot of discretionary bonus as well. This firm is a true meritocracy but known for harsh work culture. Expect tough love.

Position 5: S&R Associates: This Firm received the Asia Pacific Chambers Award for the best Client service. So such a firm may teach a fresher one of the most requires traits in a lawyer on how to deal with a client and satisfy them.[12] They also pay entry level salary a notch above all the top tier firms.

Position 6: JSA & ASSOCIATES: Those in the know will give an arm and leg to work for this firm because of the extremely humane and egalitarian work culture. Out of all the big 6 law firms, this is the one that offers maximum freedom, a percentage of billing done by you as incentives and work life balance. Welcomes people with exceptional talent and has a various practice areas including Arbitration, Banking & Finance, Capital Markets etc.

Position 7: ECONOMIC LAW PRACTICES: This firm offers various training programmes for one months, two months three months where a student is given diverse areas after some time and involves shifting so that he may gain a fair understanding of how the work is done in each sector. Hence for the purposes of growth and training this is a great option.

Position 8: Luthra & Luthra Law Offices:  Also promise an excellent work culture with probably the most diverse practice areas. In the past it would have come in top 2 or 3 workplaces for freshers because of their culture of handholding juniors, but in recent times it has seen some changes. It still is a top firm to work with nonetheless and enjoys tremendous goodwill amongst it’s alumni.

Position 9: Desai & Diwanji: Established since 1930, offers opportunities to those who wish to practice in Private Equity, Capital Markets, Litigation.[13] It is known to be less selective or elitist, but has a great work environment and supportive seniors.

Tied at position 9: Wadia Ghandy & Co: For those who may be interested in working in Aviation or Projects & Infrastructure, this firm offers a lot of opportunities. However, it is general practice firm and has a top notch professional work culture, sterling reputation and it’s a very prestigious place to begin your career.

Position 10: Nishith Desai Associates: The USP of this Firm is that they provide option for Work From Home as well and also have Diverse Practice Areas. So this may be perfect for those who desire the same. Their internal training is one of the best. Along with that they have a developed a transparent system of admission that has been applauded by reputed publications such as the John Wiley.[14]

The rest of the Firms would be:

Bharucha & Partners, Kanga & Co, Pathak & Associates, Talwar Thakore & Associates, Platinum Partners[15]

A NEWLY EMERGING FIRM YOU MAYBE INTERESTED IN: BRUS CHAMBERS

Although not a top tier firm, a specialised Indian Law Firm, Brus Chambers is a dominant force in shipping practice. Brus Chambers team is praised for its knowledge and experience, is powerful and result oriented.^[16]

Conclusion

As 20% of the world’s lawyers are Indians, the nation is emerging as a booming market in this field and has got rich potential to for the future lawyers.[17] The 15th Law Commission of India (chaired by Hon’ble Justice B.P. Jeevan Reddy), had already taken up in the past, the analysis and scheme for regulation of the entry of foreign legal professionals and firms as well as the liberalization of legal practices and profession in India, also keeping up with the procedure evolved by the International Bar Association (IBA), and General Agreement of Trade in Services.[18] Coupled with the government’s recent push to liberalize the corporate legal market to foreign law firms, the map of Indian law firms could end up looking very different in a few years.[19]

In my opinion, a fresher will be able to make a more informed decision if he has interned at such corporate firms! So let’s intern today for making a better choice tomorrow.

[1] Abby Gordon is working along with Lateral Link’s office at New York. She aides in the hiring and placement of law students and bridges the gap between recruiters and the talent they want giving right jobs to the right people. She works essentially in the overseas  in European legal market yet I found her articles and tips much  pragmatic and relevant. Her tips may be accessed here: http://www.laterallink.com/gen/25tips

[2] https://www.indianbarassociation.org/wp-content/uploads/2016/09/Report-on-BCI-Rules-2016-Final-copy.pdf

[3] www.legal500.com/c/india

[4] Ibid

[5] http://rsg-india.com/roving-rsg/analysing-indian-law-firms

[6] http://abovethelaw.com/2014/04/picking-the-right-law-firm-and-practice-area-for-you/2/?rf=1

[7] Supra 6

[8] Ibid

[9] http://economictimes.indiatimes.com/jobs/smaller-law-firms-like-hsa-advocates-phoenix-legal-and-others-look-to-charm-talent-with-attractive-perks/articleshow/53014598.cms

[10] http://www.asialaw.com/general/DRA2016

[11] http://www.legallyindia.com/Law-firms/salary-war-brews-among-top-law-firms-update-amarchand-delhi-may-hike-to-up-to-flat-rs-15-lakh

[12] http://www.chambersandpartners.com/chambers-asia-pacific-awards-2016

[13] http://rsg-india.com/indian-law-firms/profiles/wadia-ghandy-co

[14] www.nishithdesai.com/information/opportunities.html

[15] Disclaimer: This is as in my opinion based on my limited research and understanding.  Just to give a fair idea. For more information on the same refer http://rsg-india.com/rankings

[16] http://www.legal500.com/c/india

[17] http://www.business-standard.com/article/economy-policy/government-mulls-legal-servicesliberalisation-115062900875_1.html

[18] http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=b079546b-f512-43fa- 964d-3f6970127a26&txtsearch=Subject:%20Civil

[19] www.livemint.com/Home-Page/D0A7T3k4PomT0cyPA6JdHJ/Top-40-Indian-law-firms-are-times-achanging.html

In this article, Lavanya Verma put forth the legal point on the recent controversy surrounding TVF’s sexual harassment case. Further, the article also deals with the laws relating to Sexual Harassment at workplace in India.

Sexual Harassment at workplace. TVF’s Case study

Urging gender equality as the elemental human right in all aspects, the Constitution of India guarantees all its citizens equality of status and opportunity. Sexual harassment is a violation of a woman’s fundamental right to equality as guaranteed by Articles 14 and 15 of the Constitution. Sexual harassment at workplace of women creates a hostile and insecure environment which discourages them and adversely affects their social and economic progress.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (“Prevention of Workplace Sexual Harassment Act”) enforced on December 09, 2013 by the Ministry of Women and Child Development is India’s first specific legislation rendering to the issue. The act aims to prevent and protect women from sexual harassment at workplace and for the effective redressal of complaints of sexual harassment at workplace.

The Government has also notified rules under the act titled The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Rules, 2013 (“Prevention of Workplace Sexual Harassment Rules”). The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Rules, 2013 (“Prevention of Workplace Sexual Harassment Rules”)

The Criminal Law (Amendment) Act, 2013 is the promulgation of (“Criminal Law Amendment Act”) which criminalized offences such as stalking, voyeurism, and sexual harassment.

TVF’s Case

• In an anonymous blog posted earlier this month, Arunabh Kumar, CEO, The Viral Fever (TVF) has been alleged of sexual harassment by a woman employee who worked at TVF from 2014 to 2016. This was followed by a series of similar allegations of sexual harassment against Kumar by other women posting anonymously which went viral all over social media.
• On 29th March, a 27-year-old writer-director had lodged the first FIR with the MIDC police station alleging that Kumar made inappropriate gestures and even touched her while shooting a web series production in 2016. Then, on 30th March 2016, another victim joined in to register a sexual harassment case against Kumar at the Versova police station.
• Arun Chavan, Assistant Commissioner of Police (DN Nagar division) confirmed TOI about the FIR lodged by a woman who was formerly employed with the TVF CEO. Chavan further added that “The victim use to work with Kumar in 2014 and she claims that it was then he misbehaved with her. A case against Kumar has been filed under IPC section 354 (A) with the Versova police”.
• In her blog the victim writes about the abuse and harassment she faced, stating that Kumar asked her if she’d be interested in role play, a quickie or a “commercial” transaction at different instances. When she said of informing the police of such remarks and behavior, he told her that the police are “in his pocket.” Adding on the blog had mentioned details of the reactions she faced on speaking about it to the fellow TVF employees. Actor Naveen Kasturia, who has worked in several videos for TVF shared how she continues to receive breach of contract notices from the company as she quit when she just couldn’t bear anymore. Complainant blogger also wrote of wanting to kill hers. Meanwhile, nine other women like actor-director Reema Sengupta made similar allegations on a Facebook post supporting the anonymous blog and said she Kumar made overtures when she was directing a web series for TVF last year.
• TVF spokesperson Aditi Singh told The Indian Express that they have no records of these employees ever working at the company. “There are several other points in the blog which seem factually incorrect. We are preparing an elaborate response to the accusations made in the blog,” Singh said.
• TVF’s response, by saying categorically, that, the allegations mentioned in the post were ludicrous, false, defamatory, baseless and unverified. Also TVF shockingly added that it will leave no stone unturned in locating the author of the article and get her to severe justice.

Sexual Harassment at workplace

A variable range of behaviors is a major reason for difficulty while learning this concept, as even the victims themselves are unable to express their tragic sexual harassment moments. Thus there is no single definition which can define prohibited behavior. 

In general terms, sexual harassment at workplace is referred to the “unwelcome sexual favor and other physical or verbal conduct of a sexual nature that tends to create an offensive work environment.”

The Supreme Court of India defined Sexual Harassment as any unwelcome direct or indirect sexually determined behavior such as;

1. Sexually colored remarks
2. A demand or request for sexual favors
3. Showing pornography
4. Physical contact and advances,
5. Any other unwelcome physical, non-verbal/verbal conduct of sexual nature.

The word “unwelcome” is a vital part of the definition. Any such unwelcome or uninvited act is totally prohibited. Sexual interaction between consenting people at work may be offensive to others or also lead to the violation of the workplace’s policy, but it is not sexual harassment at workplace.

Conduct amounting to Sexual Harassment at workplace

1. Whistling at someone
2. Actual or attempted rape or sexual assault
3. Touching an employee’s clothing, hair, or body
4. Kissing sounds, howling and smacking lips
5. Touching or rubbing oneself sexually around another person
6. Unwanted sexual teasing, jokes, remarks, or questions.
7. Unwanted deliberate touching, leaning over, cornering, or pinching.

Harasser and the Harassed

Unlike the common thought that sexual harassment at workplace is limited to interactions between male superiors and female subordinates, sexual harassment can occur between any co-workers, like,

1. Subordinate harassment of a superior;
2. Same-sex harassment- men can harass men; women can harass women;
3. Men can be sexually harassed by women;
4. Offenders can be co-workers, supervisors, or non-employees as suppliers, customers, and vendors

Indian legal provisions for Sexual Harassment at workplace

• Criminal case under sections of the Indian Penal Code (IPC)

1. Section 294

Any obscene act or song done in public to annoy another is an offence- cognisable, bailable and triable by any magistrate, as prescribed in the provisions in Chapter XVI entitled “Of Offences Affecting Public Health, Safety, Convenience, and Morals.”

2. Section 354

When without the consent of the women, acts of physical attack or intentional force on the person of woman are committed to outrage her modesty, then the offender can be fined or sentenced to two years of imprisonment or convicted with both.

3. Section 509

As in Chapter 22 – “Of Criminal Intimidation, Insult and Annoyance”, commission of act, utterance of words intentional gestures to insult the modesty of a woman or hurt her privacy is an offence which is cognisable, bailable and triable by any magistrate and can be punished by way of  fine or sentence upto two years of imprisonment or with both.

• Criminal case under the Indecent Representation of Women (Prohibition) Act, 1987

Under Indecent Representation of Women (Prohibition) Act, 1987 if any person harasses another by an indecent portrayal of women in books, films, photographs, paintings, etc, can be convicted for minimum two years sentence.

Further, Section 7 says that when found guilty on instances of an indecent depiction of women by way of pornography display etc. on the company premises will be charged with minimum two years sentence.

• Criminal proceedings

Where any such conduct amounts to a specific offence under the IPC, the employer should initiate requisite measures in accordance with the law by making complaint with the appropriate authority. While dealing with sexual harassment complaints in particular, the employer should make sure that the victims or witnesses are not discriminated.

• Filing a civil suit

A civil suit for mental anguish, loss of income and employment caused by the sexual harassment can be instituted for damages under the law of tort.

The Vishaka Judgement – “A milestone for Workplace Sexual Harassment at workplace victims.”

The Honorable Supreme Court laid down mandatory guidelines and norms in Vishaka and others vs. State of Rajasthan and others 1997 to constitute the offence of sexual harassment at workplace.

Duty of the employer or other responsible persons in workplaces is to prevent the commission of acts of sexual harassment and to provide the procedures for the resolution, prosecution or settlement of conduct of sexual harassment by taking all necessary steps.

• Steps to prevent Sexual Harassment at workplace

All persons in charge of workplace whether in public or private sector should take appropriate steps to prevent sexual harassment at work. These steps should be followed without prejudice to the generality of the obligation:

1. Express prohibition of sexual harassment as defined above at the workplace should be notified, published and circulated in appropriate ways.
2. Rules prohibiting sexual harassment to be included in government and public sector code of conduct and discipline mechanism and imposition of appropriate penalties against the offender of such rules.
3. Above mentioned steps must also be included in standing orders passed under the Industrial Employment (Standing Orders) Act, 1946, with regards to the private sector.
4. Suitable working conditions should be established at all aspects of work, health, hygiene and leisure to prevent a hostile environment towards women at workplaces and no woman employee should have reasonable grounds to feel disadvantaged in relation to her employment.
5. The most important way to prevent sexual harassment at workplace is through constant awareness and knowledge upgradation. It can be easily achieved by taking up this course by National University of Juridical Sciences.

• Disciplinary Action

Prescribed disciplinary actions must be initiated by the employer in accordance with the service rules, when dealing with acts amounting to misconducts in employment as defined in these rules.

• Complaint Mechanism

For redressal of the victim’s complaint, an appropriate – time bound complaint mechanism must be established in the employer’s organisation to decide whether the alleged sexual harassment act constitutes an offence under law or a breach of the service rules.

• Internal Complaints Committee

The above-mentioned complaint redressal mechanism must be competent to provide a special counselor or other necessary support service complaints committee in times of need. Also, owing to the sensitivity of the matter, strict confidentiality must be ensured.

The composition of the complaints committee must be not less than half female members of the total, which is to headed by a woman. Additionally, a third party involvement in the form of NGO or other bodies should be arranged to avoid senior level influence or undue pressure at any respect.

Annual reports of the filed complaints and concerned steps taken by the complaints committee must be submitted to the respective government department. Further, the employers must also report on the adherence to the prescribed guidelines, including on the reports of the complaints committee submitted to the government department. All of these are strict compliances a company must adhere to. Non-compliance could lead to a lot of repercussions including fines and loss of goodwill. You can learn more about sexual harassment at workplace by taking up this course. 

The ministry of women and child development has published a handbook on Sexual harassment at workplace (prevention, prohibition, and redressal) act, 2013. The handbook is considered valuable for employers, employees and complaint committees for proper guidance with regard to law and aims to safeguard the interest of women affected with sexual harassment at workplace.

Suggested Readings

Arbitration in the cases of Sexual Harassment

Labour Law Compliances Checklist Under The Sexual Harassment Of Women At Workplace Act, 2013

Suvrajit Bhattacharya, Learning Officer at Hyatt Hotels Corporation, on how he is using the NUJS Executive Certificate Course in Sexual Harassment Prevention and Workplace Diversity in his career

Legal provisions regarding sexual harassment at the workplace

In this article, Anubhav Pandey discusses wife’s right to get alimony in India.

How much alimony should I get if I divorce my husband in India

Alimony is husband’s or wife’s right for maintenance after divorce. In India alimony is governed according to the personal laws as well as under the provision of Special Marriage Act. What are the criteria which decide the alimony which a wife should get? How is alimony decided in India? What is the law which governs matter relating to alimony in India? How is alimony decided in Hindus? What is the criterion to decide how much alimony a wife will get after she divorces her husband in Muslim law?

Hindu divorce and alimony. How much alimony should a wife get

In Hindus, laws regarding alimony are governed by personal as well as central act. The expression used in the opening part of Section 25 of the Hindu Marriage Act, 1955 enables the provision of alimony or maintenance. This provision cannot be restricted only to decree of judicial separation under Section 10 or divorce under Section 13. It encompasses within the expression all kinds of decrees such as restitution of conjugal rights under Section 9, judicial separation under Section 10, declaring marriage as null and void under Section 11, annulment of marriage as voidable under Section 12 and divorce under Section 13.

Alimony under Hindu Marriage Act, 1955

Any court exercising its jurisdiction may, on application made by either the wife or the husband, can order either the husband or the wife as the case may be, to pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant

The things which court keep in mind while deciding the quantum for maintenance are,

• Income of the party against whom alimony has been claimed,
• Property of the party against whom alimony has been claimed,
• The income and other property of the applicant,  
• The conduct of the parties and other circumstances of the case.

If the court is satisfied that there is a change in the circumstances of either party at any time after the quantum of alimony has been fixed by the court. The court may, at the instance of either party, vary, modify or rescind any such order in such manner as the court may deem just.

If the court is satisfied that the party in whose favour an order has been made under this section has remarried or where the husband has had sexual intercourse with any woman outside wedlock may modify the quantum of alimony.

Right of alimony for woman as per the provisions of Hindu Adoption And Maintenance Act, 1956

A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance and alimony will be granted to her on the following ground-

• If the husband is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or willfully neglecting her;
• if the husband has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband;
• if the husband is suffering from a virulent form of leprosy;
• if the husband has any other wife living;
• if the husband keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere;
• if the husband has ceased to be a Hindu by conversion to another religion;
• if there is any other cause justifying her living separately.

A Hindu wife will not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion.

How is the quantum for alimony decided

The following factors are looked at while deciding the quantum for alimony.

• Position and status of the parties,
• The reasonable wants of the person seeking such alimony,
• In case where the claimant is living separately, whether the claimant is justified in doing so,
• The value of the claimant’s property and any income derived from such property, or from the claimant’s own earnings or from any other source

Rights of alimony for woman as per the provisions of Code of Criminal Procedure

Another law regarding alimony is laid down in section 125 CrPc. It talks about alimony rights to wife given by the husband. Section 125, along with several other alimony rights, grants the right of Interim maintenance also. The Supreme Court in various of its judgment has made it clear that interim maintenance can be awarded before the final disposal of a case. Though there is no specific provision in the Code regarding interim maintenance but judicial activism has helped in evolving this law as it respects the rule of law.

Muslim divorce and alimony. How much alimony should I get if I divorce my husband

The first step is to decide whether the maintenance will be as per Section 125 Code of Criminal Procedure or as per the provision of Muslim Women Protection Of Rights On Divorce Act, 1986. Provision of section 125 CrPc is dealt above in detail. Let us take a look at the provision of alimony under Muslim Women Protection Of Rights On Divorce Act, 1986. 

Muslim woman reserves the following rights after getting divorced by their husband

• A reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband
• An amount equal to the sum of mahr or dower agreed to be paid to her at her time of her marriage or later according to Muslim law
• A title to all the properties given to her before or at the time of marriage or after her marriage by her relatives or friends or the husband or any relatives of the husband or his friends.

What to do when your husband refuses to maintain you after divorce

Where a reasonable and fair provision and maintenance or mahr due has not been made or paid or the properties given to the wife before or at the time of marriage or after her marriage by her relatives or friends or the husband or any relatives of the husband or his friends have not been delivered to a divorced woman on her divorce then she has the following rights  available.

1. She or anyone duly authorised by her may, on her behalf, make an application to a Magistrate for an order for payment of such provision and maintenance, mahr or dower or the delivery of properties
2. The following is looked by the Magistrate while deciding such cases

• Whether the husband having sufficient means, has failed or neglected to make or pay her within the iddat period a reasonable and fair provision and maintenance for her and the children or not?
• The amount equal to the sum of mahr or dower has not been paid or that the properties given to her before or at the time of marriage or after her marriage by her relatives or friends or the husband or any relatives of the husband or his friends have not been delivered to her,

Such application have to be disposed within a period of one month.

Does a Muslim woman has any other legal option available when her husband refuses to pay her the alimony

• When a divorced Muslim woman has not re-married and is not able to maintain herself after the iddat period, she may make an order directing such of her relatives as would be entitled to inherit her property on her death according to Muslim law to pay such reasonable and fair maintenance to her
• Where such divorced woman has children, duty is of the children to pay maintenance to her, and in the event of any such children being unable to pay such maintenance, duty lies on the parents of such divorced woman to pay maintenance to her.
• In the case where there is no one to maintain the wife then,  State Wakf Board established under section 9 of the Wakf Act, functioning in the area in which the woman resides, is duty bound to pay such maintenance as determined by the court.

Merits on which quantum of alimony is decided under Muslim Divorce and maintenance laws

• The needs of the divorced woman,
• The standard of life enjoyed by her during her marriage and
• The means of such relatives and such maintenance shall be payable by such relatives in the proportions in which they would inherit her property

Alimony under Christian law

Section 36 of the Indian Divorce Act, 1969 governs the provision of alimony for Christians in India. Under Section 36, a woman can claim her right to alimony and the husband will be entitled to pay the alimony, if directed by the Court.

Section 36 of the Indian Divorce Act, 1969 read as follows:

• In any suit under this Act, whether it be instituted by a husband or a wife, and whether or not she has obtained an order of protection the wife may present a petition for expenses of the proceedings and alimony pending the suit.
• Such petition shall be served on the husband; and the Court, on being satisfied with the truth of the statements therein contained, may make such order on the husband for payment to the wife of the expenses of the proceedings and alimony pending the suit alimony pending the suit as it may deem just.
• Provided further that the petition for the expenses of the proceedings and alimony pending the suit, shall, as far as possible, be disposed of within sixty days of service of such petition on the husband.

These articles might be of your interest.

Divorce by Mutual Consent In India- Detailed Report

Jewish Law of Marriage & Divorce in India

Divorce by Mutual Consent In India- Detailed Report

How Muslim Women Can Divorce Her Husband As Per The Muslim Law

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The article traces the origin of Corporate Social Responsibility in India. The article is also an explanation of few fundamental principles governing Corporate Social Responsibility.

Historical trace of CSR

• The new concept of Corporate Social Responsibility has been introduced by the Companies Act, 2013.
• Under the erstwhile Companies Act, there was no concept of Corporate Social Responsibility.
• The new concept of Corporate Social Responsibility has been introduced under section 135 of the Companies Act, 2013 and Companies (Corporate Social Responsibility) rules, 2014.
• India is the first country in the world to introduce statutory Corporate Social Responsibility (CSR) through the new Companies Act, 2013. Prior to this landmark development, CSR was not a new concept in India and can be traced with historic pieces of evidence.
• While doing web search about CSR and CSR policies apparently one feels that lot many things have been done in foreign countries and India has borrowed the concept from the foreign countries. But, the fact is that the concept of CSR has existed in ancient India and our ancient wisdom has framed a platform for CSR and the proud moment is such ancient wisdom has given direction to the corporate houses and industries. Our rich ancient knowledge and tradition is the very basis of modern corporate level CSR practices. The origin of CSR can be traced from our Upanishads, Puranas and Vedic literature like Ramayana, Mahabharata, and Bhagavad-gita.
• As is common wisdom, Indian companies have been engaged in CSR/charity/philanthropy since time immemorial. Whether it was the factories investing in the communities around them to reduce dependence on a migratory workforce and for having happier families and hence happier employees, or businessmen giving back to their communities or causes near and dear to their hearts, or foundations building places of worship to bring communities together, or a whole host of other methods through which we had corporates giving back to the society in some shape or form. In most instances, these were treated as acts of charity or philanthropy, or the owners giving back to society.

CSR as a strategic philanthropy

• It was more of a philanthropic exercise and had nothing to do with business. It was more like an institution building exercise like building research and educational institutes. The thinking has now changed, and corporates have started to view CSR as strategic philanthropy linked with responsibility and veering towards community development through various projects. So, the thinking now is that it is no longer a forced philanthropy or tick the box responsibility. It is investing hard capital/resources to serve the society and build a company’s reputation.
• The change in the thought process is because CSR, though being a responsibility is not compulsory. It is “comply or explain.” it is not they “must do it” but “will do it or explain why we failed to do it.”
• Corporates are also moving to spend in areas like road safety, pollution control, and slum development. Some corporates have even aligned their CSR spends with the broad objectives of the government in its various social impact schemes like “Skill India,” “Swatch Bharat.” Some have spent through the Prime Minister Relief Fund. The question one may ask is why only in these areas and say why not in areas like arts and culture or conservation of animals which are getting extinct, conservation of national heritage or say development of rural sports or sports which are dying or say building new technologies for the benefit of the poor. The answer to this is that there is a need to spend on the traditional areas as it tends to be beneficial to the larger group/community.
• The larger organizations, some of whom assumed global stature, created their own foundations that were used to by the founders as vehicles for causes they wanted to be a champion. Other corporates also spent money for the upliftment of localities they operated in or for communities they came from.
• Companies that traditionally undertook CSR anyway, with or without the law, used this opportunity to streamline the investments they made in this regard. For these firms, this was a chance to re-review and re-strategise what they had already been doing in order to fit into the requirements of the law.

Provisions of corporate social responsibility under Companies Act, 2013 and rules made thereunder

Applicability of Corporate Social Responsibility

According to section 135 of the Companies Act, 2013 below mentioned companies shall constitute a corporate social responsibility committee of the board

• Having net worth of rupees five hundred crores or more;

OR

• Turnover of rupees one thousand crores or more;

OR

• A net profit of rupees five crores or more;

It is applicable to every company including its holding company, subsidiary company, foreign company including its branch office or project office in India.

Non-applicability

Any company which ceases to be a company covered as per criteria mentioned under sub-section (1) of section 135 of the Companies Act, 2013 as mentioned above for three consecutive financial years shall not be required to –

• Constitute a CSR committee, and
• Comply with the provisions contained in sub-section (2) to (5) of the Companies Act, 2013 till such time it meets the criteria specified in sub-section (1) of section 135.

The composition of Corporate Social Responsibility Committee, meetings of committee and functions of committee

• Corporate Social Responsibility Committee shall consist of three or more directors, out of which at least one director shall be an independent director, in case of companies where independent director is mandatory to appoint.

Private company with only two directors

In the case of private companies where only two directors are required to be appointed above requirement can be disposed of and they need not appoint an independent director.

Constitution of CSR committee in case of foreign company

In case of foreign companies, Corporate Social Responsibility Committee shall comprise of at least two persons of which one person shall be residing in India and appointed as authorized signatory by the foreign company.

• The Corporate Social Responsibility committee shall institute a transparent monitoring mechanism for implementation of the projects or programs or activities undertaken by the company.

Function to be performed by CSR committee of any company

1. They shall formulate and recommend to the board of directors of the company, a Corporate Social Responsibility policy which shall indicate the activities to be undertaken by the company as specified and it shall be within the purview of Schedule VII of the Companies Act, 2013;
2. They shall recommend the amount of expenditure to be incurred on the activities referred to them and;
3. They shall monitor the Corporate Social Responsibility policy of the company as may be required from time to time.

Functions of the board of directors of the company

• The board of directors of the company performs the following functions in relation to Corporate Social Responsibility

1. They shall after taking into account the recommendations made by the Corporate Social Responsibility Committee, approve the Corporate Social Responsibility policy for the company.
2. They shall disclose the contents of Corporate Social Responsibility policy in the board of director’s report which forms the part of an annual report of the company.
3. They shall take care that Corporate Social Responsibility policy of the company shall be placed on the website of the company if any and also it shall be updated on the website of the company as and when any changes are made.
4. They shall ensure that the activities which are included in Corporate Social Responsibility policy of the company are undertaken by the company and not only they shall be on paper.

Quantum of CSR expenditure

• Every company which triggers the limits of section 135 shall spend in every financial year, at least two percent of the average net profits of the company made during the three immediately preceding financial years.
• Average net profits of the company shall be calculated as per the provisions of section 198 of the Companies Act, 2013.
• If the company fails to spend the amount earmarked as CSR expenditure then the company needs to explain the reason behind not spending on the board of directors report.
• Till now no penalty had been prescribed under the Companies Act, 2013 and rules made thereunder regarding non-compliance of section 134 or for not spending the prescribed amount. But it has been noted after passing of the first financial year 2014-15 that many of the companies covered under the purview of CSR who failed to spend the amount were served with the notices by the respective registrar of companies and they were asked for an explanation for not spending the amount along with documentary evidence. Further, they may impose a penalty if deemed fit by them.
• Provided that net worth, turnover or net profit of a foreign company of the Act shall be computed in accordance with balance sheet and. Profit and loss account of such company prepared in accordance with the provisions of clause (a) of sub-section (1) of Section 381and Section 198 of the act.

CSR activities

• Every company shall give preference to the local areas and areas where they operate for spending the amount earmarked for Corporate Social Responsibility activities.
• The CSR activities shall be undertaken by the company, as per its CSR policy, as projects or programs or activities (either new or ongoing), excluding activities undertaken in pursuance of its normal course of business.

The board of directors of the company may decide to undertake its CSR activities approved by the CSR committee of the company by any of the below-mentioned ways,

1. Through a registered trust or;
2. A registered society or a section 8 company established under Companies Act, 2013 either singly or along with its holding or subsidiary or associate company, or along with any other company or holding or subsidiary or associate company of such other company;

• But if such trust, society or company is  not established by the company, either singly or along with its holding or subsidiary or associate company, or along with any other company, or holding or subsidiary or associate company of such other company it shall have an established track record of three years in undertaking similar programs or projects.
• Every company has to specify the projects or programs to be undertaken through any of the above-mentioned entities, the modalities of utilization of funds on such projects and programs and the monitoring and reporting mechanism.
• Every company may also collaborate with other companies for undertaking projects or programs or Corporate Social Responsibility activities in such a manner that the CSR committees of the companies are in a position to report separately on such projects or programs.
• According to sub-section (5) of Section 135of the Act, the Corporate Social Responsibility projects or programs or activities undertaken in India only shall amount to Corporate Social Responsibility expenditure.
• The Corporate Social Responsibility projects or programs or activities shall not benefit only the employees of the company and their families shall not be considered as Corporate Social Responsibility activities. It means that employees can form part of the project or program or activities but any project or program of activity cannot be exclusively held for the benefit of employees and its families.
• Any company may build CSR capacities of their own personnel as well as those of their implementing agencies through institutions with established track records of at least three financial years but such expenditure including expenditure on administrative overheads shall not exceed five percent of total corporate social responsibility expenditure of the company in one financial year.
• If any company contributes any amount directly or indirectly to any political party then it shall not be considered as Corporate Social Responsibility activity.

CSR policy

Every company shall form the CSR policy of the company and it shall include the following things in it namely:-

• A list of CSR projects or programs which a company plans to undertake falling within the purview of the schedule vii of the Companies Act, 2013 specifying modalities of execution of projects or programs and implementation schedules for the projects or programs; and
• Monitoring process of projects or programs,
• The CSR activities or projects or programs shall not include the activities undertaken by the company in pursuance of its normal course of business.
• The board of directors of the company shall ensure that activities or projects or programs included by a company in its Corporate Social Responsibility policy are related to the activities included in schedule vii of the Companies Act, 2013.
• The CSR policy of the company shall clearly specify that any surplus arising out of the CSR projects or programs or activities shall not form part of the business profit of a company.

Core elements of the CSR policy shall include the following

• Care for all stakeholders
• Ethical functioning
• Respect for workers’ rights and welfare
• Respect for human rights
• Respect for environment
• Activities for social and inclusive development

Corporate Social Responsibility expenditure

Corporate Social Responsibility expenditure shall include all expenditure including contribution to corpus, or on projects or programs relating to CSR activities approved by the board of directors of company on the recommendation of its Corporate Social Responsibility committee, but it shall not include any expenditure on an item not in conformity or not in line with activities or programs or projects which fall within the purview of Schedule VII of the Companies Act, 2013.

Yearly annual compliances/disclosure

• The board report shall include an annual report on CSR in the format as prescribed in the Companies (Corporate Social Responsibility Policy) Rules, 2014, which contains particulars as mentioned under.

1. A brief outline of the company’s Corporate Social Responsibility Committee policy, including an overview of projects or programs or activities, proposed to be undertaken and a reference to the web-link to the CSR policy and projects or programs or activities.
2. The composition of CSR committee.
3. Average net profit of the company for last three financial years.
4. Prescribed CSR expenditure for the financial year.
5. Details of CSR spent during the financial year:
6. Total amount to be spent for the financial year;
7. Amount unspent, if any;
8. CSR project or program or activity identified by the company;
9. Sector in which the project or program or activity is covered;
10. Name of state in which project or program or activity is undertaken whether it is local area or other areas;
11. Budget project or program or activity wise;
12. Direct and indirect expenditure on projects or programs or activities;
13. Cumulative expenditure upto the reporting period. For companies carrying projects or programs or activities for a period of more than one year or more cumulative expenditure needs to be mentioned upto the reporting period.
14. Whether the amount is spent directly or through any implementing agency or through collaboration with any other company.

• The company which has failed to spend 02% of the average net profits of the company of the last three financial years they need to disclose the reason for not spending such amount.
• It shall also contain the responsibility statement of the CSR committee that the implementation of CSR policy is in compliance with CSR objectives CSR policy of the company.
• It shall be signed by the chairman of the CSR committee, chief executive officer or managing director of any director of the company. In case of foreign company, it shall be signed by the authorized representative of the company.

Display of CSR activities on its website

The board of directors of the company shall after taking into account the recommendations of CSR committee approve the CSR policy of the company and they shall display the CSR policy of the company on its website if any and shall update the CSR policy of the company as and when it is amended.

• In March, this year Shri Arun Jaitley has said as many as 460 companies have disclosed spending of INR 6337.36 crores towards CSR activities during 2014-2015.

Accounting treatment of expenses incurred on CSR activities

• Accounting treatment usually differs with route which the company adopts for CSR activities. Depending upon the policy, accounting treatment is given in the books of accounts of the company.

Various accounting treatment is as follow:-

1. Expenses incurred by the company itself

• Under this situation, the first classification is required to be made in relation to whether it is revenue or capital expenditure. When expenditure does not give rise to an asset it would be treated as revenue expenditure which is a charge against profit of the company and when an asset is generated i.e., when the company has controlling power and derives future economic benefits out of that asset, it would be treated as capital expenditure in the books of accounts.

2. Expenses incurred by the company through trust, NGOs

• Under this situation, amount spent on CSR activities would be treated as expense and charged to profit and loss account.

3. Expenses in relation to supply of goods manufactured by the company

• Where the company supplies the goods manufactured by it or renders the services as CSR activities, treatment in the books of account shall be provided when the control of goods is transferred. Manufactured goods shall be valued at cost or market price whichever is lower as per as-2 and services to be valued at cost.

Tax benefits

• No specific tax exemptions have been extended to CSR expenditure per se. While no specific tax exemption has been extended to expenditure incurred on CSR, spending on several activities like contributions to Prime Minister’s Relief Fund, scientific research, rural development projects, skill development projects, agricultural extension projects, etc. Which find place in Schedule VII, already enjoy exemptions under different sections of the income tax act, 1961.

Schedule VII of the Companies Act, 2013

Following are the activities or programs or projects which may be included by the companies in their Corporate Social Responsibility policies relating to:—

1. Eradicating hunger, poverty, and malnutrition, promoting health care including preventive health care and sanitation including contribution to the Swach Bharat Kosh set-up by the central government for the promotion of sanitation and making available safe drinking water;
2. Promoting education, including special education and employment enhancing vocation skills especially among children, women, elderly and the differently abled and livelihood enhancement projects;
3. Promoting gender equality, empowering women, setting up homes and hostels for women and orphans; setting up old age homes, day care centers and such other facilities for senior citizens and measures for reducing inequalities faced by socially and economically backward groups;
4. Ensuring environmental sustainability, ecological balance, protection of flora and fauna, animal welfare, agroforestry, conservation of natural resources and maintaining quality of soil, air, and water including contribution to the clean Ganga fund set-up by the central government for rejuvenation of river Ganga;
5. Protection of national heritage, art, and culture including restoration of buildings and sites of historical importance and works of art; Setting up public libraries; Promotion and development of traditional art and handicrafts;
6. Measures for the benefit of armed forces veterans, war widows, and their dependents;
7. Training to promote rural sports, nationally recognised sports, Paralympic sports and Olympic sports;
8. Contribution to the Prime Minister’s National Relief Fund or any other fund set up by the central government for socio-economic development and relief and welfare of the schedule caste, tribes, other backward classes, minorities, and women;
9. Contributions or funds provided to technology incubators located within academic institutions which are approved by the central government;
10. Rural development projects;
11. Slum area development.

• CSR has gone through many phases in India. The ability to make a significant difference in the society and improve the overall quality of life has clearly been proven by the corporates. Not one but all corporates should try and bring about a change in the current social situation in India in order to have an effective and lasting solution to the social woes.
• So according to the above study Corporate Social Responsibility is not mandatory for every company but the company’s which are covered under the ambit of Section 135 of the Companies Act, 2013 are only required to spend 2 % of average net profits earned for last three financial years.

Hope the article elucidated our viewers on the subject of Corporate Social Responsibilities.

In this blog post, Shambhavi Bundela, a student at New Law College Bharati Vidyapeeth, Pune and pursuing a Diploma in Entrepreneurship Administration and Business Laws from NUJS, Kolkata, writes about regulation and laws regarding investment advisors in India.

Introduction

In India, in order to offer investment advice one has register as an investment adviser (RIA) with SEBI. Once they are registered, they shall act in a fiduciary capacity towards its clients. Till 2013 there were no clear regulations regarding an Investment Adviser and anybody would claim himself as an adviser. There was a need for a proper regulation and SEBI came out with IA Regulations 2013 in the interest of the investors.

Investment Adviser

Investment advisor is any person or group that makes investment recommendations or conducts securities analysis in return for a fee, they are also referred as a financial advisor. Investment advisors provide guidance to clients working as a professional within financial industry. Certain persons such as insurance agents, pension advisers, stock brokers, mutual fund distributors ,fund manager, advocate, law firm etc. are exempted . Clients are the customers using the investment adviser’s services.

Under the Regulation of 2013 “Investment adviser” means any person , who for consideration, is engaged in the business of providing investment advice to clients or other persons or group of persons and includes any person who holds out himself as an investment adviser, by whatever name called.

“Investment advice” means advice relating to investment in, purchasing, selling or otherwise dealing in securities or investment products, and advice on investment portfolio containing securities or investment products, whether written , oral any other means. Provided any advice given through newspaper, magazines , any electronic medium shall not be considered as investment advice.

Under the Investment Adviser Regulations, no personal shall act as an investment adviser unless he has obtained a certificate of registration from the Securities and Exchange Board of India ( SEBI) Established under The Securities and Exchange board of India Act, 1992. If any person found to be engaged in providing investment advisory services without getting registered with SEBI , appropriate actions as deemed fit may be initiated under the Act of 1992.

Qualification and Certification Requirement

An individual shall have the following minimum qualifications:

1. Professional qualification or post-graduate degree or diploma in finance, accountancy, business management, commerce, economics , capital market , banking,insurance or
2. Graduate in any discipline with at least 5 year experience relating to advice in financial products or securities or funds Or assets or portfolio management.

He shall have a certification on financial planning or fund or asset or portfolios from (a)National Institute of Security Markets (NISM) , (b) Or any other organization including Financial Planning Standards Board India (FPSB) accredited by NISM

In simple words, a post-graduate in finance related topics or graduate in any discipline with five year experience in financial sector can pass the following 2 examinations Level-1 and Level-2 by NISM and apply to SEBI for registration as an Investment Adviser.

The SEBI (Investment Advisers) Regulation, 2013 ( “IA Regulations”) notified on January 2013 which regulates conditions for registration, certification, capital adequacy, code of conducts , etc.

The list of SEBI registered advisers are available on SEBI website www.sebi.gov.in

The Regulation require the Investment Advisers – banks, non-banking financial companies ( NBFCs ) and corporates to segregate their investment advisory services

Procedure for Registration

To register as an Investment adviser an Application shall be made in Form A as under First Schedule of IA Regulations with supporting documents and Application fees of Rs. 5,000/- by way of bank draft. The procedure is also given on SEBI website. The applicant receive a reply from SEBI within a month.

To make it more convenient for genuine entities, the application shall be filed with the Head office (HO) or the concerned Regional Office or Local office of SEBI under the Jurisdiction where the applicant is located. SEBI shall approve the application on being satisfied and shall grant certificate of registration.

The certificate of registration remains valid for five years and has to be applied for renewal three months before the expiry.

Body Corporates

Under the regulation, body corporates shall have the meaning assigned to it as under the Companies Act,1956

Section 2 provides that body corporate includes a company incorporated outside India, but does not include- (i)  a co-operative society registered under any law relating to co-operative societies and (ii) any other body corporate (not being a company as defined in this act).

In case of a body corporate which proposes to undertake investment advisory services in addition to its existing activities the application has to be made through a separately identified division. But, if the body corporate proposes to undertake only advisory activities no separate division is to be identified. The SEBI board may recognize any body corporate for the purpose of regulating investment advisers and at the time of recognition of such body corporate delegate administration and supervision of investment advisers to such body on such terms and condition as specified.

The Board also has the power to specify that no person shall act as Investment Adviser unless he is a member of a recognized body corporate in such events, provisions of this regulation shall apply mutatis mutandis.

Investment Advisers which are body corporate shall have a net worth of not less than twenty five lakh rupees, net worth means the aggregate value of paid up capital plus free reserved reduced by the aggregate value of accumulated losses. The Registration or Renewal fee for body corporate is 5,00,000/- Rs.

An Investment Adviser which is a Body Corporate or a partnership firm is required to appoint a compliance officer who shall be responsible for monitoring the compliance by the Investment adviser in respect of the Act.

In this blog post, Konika Mitra, an Associate at Vikas Pahwa & Associates and pursuing a Diploma in Entrepreneurship Administration and Business Laws from NUJS, Kolkata, describes the procedure of tax appeals in India.  

INTRODUCTION:

Appeal is a proceeding resorted to rectify an erroneous decision of a court by submitting the question to a higher court, or court of appeal. It means ‘making a request’ and in legal parlance, it means ‘apply to a higher court for a reversal of the decision of a lower court.

Income tax liability is primarily determined at the level of Assessing Officer. Where the Income Tax department (the government) disagrees with the tax computed by the taxpayer, they can levy an additional tax. In such a situation, as per Income Tax Act, 1961 the liability is determined at the level of Assessing Officer. Where a taxpayer is aggrieved certain action of Assessing Officer, he can move an appeal.

The assignment herein deals exhaustively with procedure for such appeal as provided by Income Tax Act, 1961. 

APPEALS BEFORE COMMISSIONER:

• WHEN CAN BE FILED:

As provided by S. 246 of the IT Act, an assessee who is aggrieved by an order, passed by Assessing Officer may prefer an appeal to the Commissioner of Income- Tax. Such Commissioner may admit an appeal, even beyond period of limitation, if satisfied that there was a sufficient cause for not presenting the appeal. Within time.

An appeal before ITAT can be filed by a taxpayer against;

• an intimation issued u/s 143(1)/ (1B), where adjustments have been made in income offered to tax in the return of income,
• an assessment order passed u/s 143(3) except in case of an order passed in pursuance of directions of the Dispute Resolution Panel,
• an assessment order passed u/s 144 or an order assessment, reassessment or re- computation passed after reopening the assessment u/s 147 except an order in pursuance of directions of the Dispute Resolution Panel,
• an order referred to inspection u/s150,
• order passed against the taxpayer in a case where the taxpayer denies the liability to be assessed under Income Tax Act,
• intimation issued u/s 200A(1) where adjustments are made in the filed statement,
• an order of assessment or reassessment passed u/s 153A or 158BC in case of search/seizure,
• an assessment or reassessment order passed u/s 92CD(3),
• a rectification order passed u/s 154 or 155,
• an order passed u/s 163 treating the taxpayer as agent of non-resident,
• an order passed u/s 170(2)/(3) assessing the successor of the business in respect of income earned by the predecessor,
• an order passed u/s 171 recording the finding about partition of a Hindu Undivided Family,
• an order passed by Joint Commissioner u/s 115VP(3) refusing approval to opt for tonnage-tax scheme to qualifying shipping companies,
• an order passed u/s 201(1)/206C(6A) deeming person responsible for deduction of tax at resource as assessee-in-default due to failure to deduct tax at source or to collect tax at source or to pay the same to the credit of the Government,
• an order determining refund passed u/s 237,
• an order imposing penalty u/s 221/  271/ 271A/ 271AAA/ 271F/ 271FB/ 272A/ 272AA/ 272B/ 272BB/ 275(1A)/ 158B FA(2)/ 271B/ 271BB/ 271C/ 271CA/ 271D/ 271E/ 271AAB,
• an order imposing a penalty under Chapter XXI.

An appeal to the Commissioner of Income-tax must be filed within 30 days from the date of service of notice of demand relating to assessment or penalty order.

• PROCEDURE FOR APPEAL:

An appeal to Commissioner of Income-tax must be in Form No. 35 along with details of “Relief claimed in appeal”, “Statement of Facts” and “Grounds of appeal”, signed and verified by the individual taxpayer himself or by a person duly authorized by him holding valid power of attorney. Further, e-filing of Form has been made mandatory by Income-tax (3rd Amendment) Rules, 2016, for persons for whom e-filing of return of income is mandatory.

The prescribed fees for any such appeal is as under:

• Rs. 250, where the assessed income is Rs 1lakh or less
• Rs. 500, where assessed income is more than Rs. 1 lakh but less than Rs. 2 lakhs
• Rs.1,000, where assessed income is more than Rs. 2 lakhs

On receipt of Form no. 35, Commissioner of Income-tax fixes date and place for hearing the appeal by issuing notice to the taxpayer and the Assessing Officer, against whose order appeal is preferred. Before passing the order, the Commissioner of Income-tax may make such further inquiries as he thinks fit, or may direct the Assessing Officer to make further inquiry and report the result to him.

As a rule, a taxpayer is not entitled to produce any evidence, whether oral or documentary other than what was already produced before the Assessing Officer. However, in certain exceptional circumstances as provided below, additional evidence are accepted by the Commissioner of Income-tax (Appeals);

• Where the Assessing Officer has refused to admit evidence which ought to have been admitted; or
• Where the appellant was prevented by sufficient cause from producing the evidence which he was called upon to be produced by the Assessing Officer; or [As amended by Finance Act, 2016]
• Where the appellant was prevented by sufficient cause from producing any evidence before the Assessing Officer which is relevant to any ground of appeal; or
• Where the Assessing Officer has made the order appealed against without giving sufficient opportunity to the appellant to adduce evidence relevant to any ground of appeal.

• ORDER OF COMMISSIONER OF INCOME- TAX:

After hearing the case/arguments, the Commissioner of Income-tax passes his order, and the same is recorded in writing. Where the order passed is that for disposal of the appeal and the Commissioner must supply reasons for the same. While disposing of an appeal, the Commissioner of Income-tax may consider and decide any matter arising out of the proceedings in which order appealed against was passed, even if such matter was not raised by the taxpayer before the Commissioner of Income-tax. The order should be issued within 15 days of last hearing.

• APPEALS BEFORE INCOME TAX APPELLATE TRIBUNAL:

Income Tax Appellate Tribunal (ITAT) is the second appellate authority in order after The Commissioner of Income Tax.  This body is constituted by the Central Government, and functions under the Ministry of Law. It consists of 2 classes of member, i.e., Judicial and Accountant. An appeal to ITAT can be filed either by the taxpayer or by the Assessing Officer.

• WHEN CAN BE FILED:

An appeal before ITAT can be filed by a taxpayer against;

• an order passed by the Commissioner of Income-tax (Exemption), u/s 10 (23C)(vi), which provides for filing of application by the educational institute or hospital for the purpose of grant or exemption;
• an order passed by the Principal Commissioner of Income-tax or Commissioner of Income-tax with respect to registration application made by a charitable or religious trust as provided u/s 12AA
• an order passed by the Principal Commissioner of Income-tax or Commissioner of Income-tax with respect to the approval of a charitable trust for donations made to it which would be eligible for deductions in the hands of the donor, as provided u/s 20G(5)(vi)
• an order passed by the assessing officer u/s 143(3) or 147 or 153A or 153C, either in pursuance of direction given by Dispute Resolution Panel or with approval of the Principal Commissioner of Income- Tax or Commissioner of Income- Tax as provided u/s 144BA(12);
• a ratification order passed by the Commissioner of Income- tax u/s 154;
• an order passed by a Principal Commissioner of Income- Tax or Commissioner of Income- Tax u/s 263, which relates to revision of the order of Assessing Officer which is considered as prejudicial to the interest of revenue;
• An order by the Assessing Officer u/s 115VZC(1), which provides for order of excluding the taxpayer from tonnage tax scheme;
• an order passed by the Commissioner of Income-tax u/s 250, 270A, 271, 271A or 272A;
• an order of penalty by a Principal Commissioner of Income- Tax or Commissioner of Income- Tax u/s 270A, 271 or 272A;
• an order or penalty by a Principal Chief Commissioner or Chief Commissioner or a Principal Director General a Director General or a Principal Director or Director under section 272A.

A Principal Commissioner of Income-Tax or Commissioner of Income-Tax, may direct the Assessing Officer to make an appeal to ITAT, if he objects the order passed by the Commissioner of Income-Tax (in appeals) under section 154 or section 250. Such an appeal is also called a Departmental Appeal, i.e., the Income-Tax department moving to ITAT against the order of the Commissioner of Income-Tax. However, Departmental Appeals are allowed only in cases where the tax effect involved in the appeal exceeds Rs. 10,00,000.

Notwithstanding the limit above mentioned, adverse judgements relating to following issues should be contested on merits, even when the tax effect is less than the mandatory limits specified above;

• Where the Constitutional validity of the provisions of an Act or Rule is under challenge, or
• Where Board’s order, Notification, Instruction or Circular has been held to be illegal or ultra-vires, or
• Where Revenue Audit’s objection in the case has been accepted by the Department.
• Writ matters
• Matters pertaining to other direct taxes, i.e., other than Income-Tax
• Where the tax effect is not quantifiable or not involved, such as case of registration of trust or institution under section 12A.
• Where the addition relates to undisclosed foreign assets/bank accounts.

Any appeal to ITAT must be filed in 60 days of the date on which order appealed against is communicated to the taxpayer or the Commissioner.

• PROCEDURE FOR APPEAL:

An appeal to ITAT must be in Form No. 36- in triplicate. The prescribed fees for any such appeal is as under:

• Rs. 500, where the assessed income is Rs 1lakh or less
• Rs. 1,500, where assessed income is more than Rs. 1 lakh but less than Rs. 2 lakhs
• 1% of assessed income, subject to maximum of Rs.10, 000, where assessed income is more than Rs. 2 lakhs

Where the subject matter of appeal relates to any other matter, fee of Rs 500/- is to be paid. An application for stay of demand is to be accompanied by fee of Rs. 500

The appellant may submit a paper book in duplicate containing documents or statements or other papers referred to in the assessment or appellate order, which it may wish to rely upon, at least a day before the hearing of the appeal along-with proof of service of copy of the same on the other side at least a week before. Parties to the appeal are neither entitled to produce additional evidence of any kind, nor oral or documentary before the Tribunal.

The Appellate Tribunal then fixes the date for hearing the appeal and notifies the parties specifying date and place of hearing of the appeal. A copy of memorandum of appeal is sent to the respondent either before or along with such notice. The appeal is heard on the date fixed and on other dates to which it may be adjourned.

• ORDER OF ITAT:

The Appellate Bench comprises of one judicial member and one accountant member. Appeals where total income computed by the Assessing Officer does not exceed Rs. 5lakh may be disposed of by single member Bench.

If members are equally divided in their opinion, the points of difference are stated by each member and the case is referred by the President of the ITAT for hearing such points by one or more of other members of the ITAT. Such point or points is decided according to opinion of majority of the members of ITAT who have heard the case, including those who first heard it.

• APPEALS BEFORE HIGH COURT:

Where the High Court is satisfied that the case involves substantial question of law, an appeal shall lie against the order/ judgment of ITAT. Such appeal may be filed either by the taxpayer or the Chief Commissioner/Commissioner. An appeal against order of ITAT shall lie only within 120 days of receipt of such order and in the form of memorandum of appeal, precisely stating the substantial question of law. The High Court then goes on to formulate the question. An appeal filed before the High Court is heard by a bench of not less than two judges.

• APPEALS BEFORE SUPREME COURT:

Appeal against an order of High Court in respect of Appellate Tribunal’s order lies with the Supreme Court. Appeal lies only against cases, which are certified to be fit one for appeal to the Supreme Court. Special leave can also be granted by the Supreme Court under Article 136 of the constitution of India against the order of the High Court.

REFERENCES:

• Act, The and +CA Accountant. “The Appeal Procedure Under Income Tax Act”. Guide to Taxation and Legal Concern |Simplified Laws. N.p., 2015. Web. 30 Sept. 2016.
• “Appeal to Commissioner of Income-Tax (Appeals)”Income Tax Department, Govt. of India, 2016.
• Appeal to the Income Tax Appellate Tribunal” Income Tax Department, Govt. of India, 2016.
• “Income Tax Appeal Filing Procedure in Brief”. Taxguru.in. N.p., 2014. Web. 30 Sept. 2016.
• “Appeal Under Income Tax Act -I”. CAclubindia. N.p., 2016. Web. 30 Sept. 2016.

In this blog post, Meet Kachhy, pursuing M.A. in business law from NUJS, Kolkata, analyses the requisite labour law compliance necessary for a smooth functioning of start-ups in India.