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Assets and Taxation on Income of Hindu Undivided Family (HUF)

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Visible through the lobby window at the Hong Kong Convention and Exhibition Centre are skyscrapers of Hong Kong, and Victoria Harbour. ca. 1980-2000 Hong Kong, China
Visible through the lobby window at the Hong Kong Convention and Exhibition Centre are skyscrapers of Hong Kong, and Victoria Harbour. ca. 1980-2000 Hong Kong, China
                              

This article is written by Shruti Pandey, a student of Campus Law Center, Delhi University.

What is Hindu Undivided family (HUF)?

The term ‘Hindu Undivided Family’ has not been defined under Income Tax Act. It is defined under the Hindu Law as a family that consists of all persons lineally descended from a common ancestor, including wives and daughters. HUF’s are recognised all over the India except Kerala where it was derecognized by the Kerala Joint Family system (Abolition) Act, 1975. After 2005 amendment, married daughters are also the members of HUF and have rights as that of a son. An adopted child can also become the member of HUF (but he cannot ask for the partition of HUF).

HUF is purely a creature of law and not acts of parties, this means that the membership of a HUF does not come from a contract but from status of the person in such families. A HUF cannot be formed by a group of people who do not constitute a family. Lineal descendents with a common ancestor is a must.

Karta manages the affairs of the Hindu Undivided Family. Normally, the senior- most member of the family is the karta. However, a junior male member can also act as karta with the consent of the other members.  When an existing HUF is reduced to only female members, one of the females as karta. This is in view of the existence of a potential coparcener by adoption. If the sons are minors, the widow of the deceased karta or a female member of the HUF can act as karta of the HUF and deal with the properties of the HUF.

HUF for tax benefit

A Hindu Undivided Family (HUF) offers specific advantages as far as taxation is concerned. The Income Tax Act and Wealth Tax Act recognise the HUF as an independent assessable or taxable entity. Hence, HUFs enjoy all deductions and exemptions under the IT Act independent of the income and tax liabilities of its members.  An HUF has a separate PAN and the karta must apply for one. The PAN needs to be quoted while making investments and carrying out financial transactions of the HUF. Also, the karta must file the income tax and wealth tax returns on behalf of the HUF, in addition to his personal tax returns.

What assets can be regarded assets of HUF?

  1. Assets received on the partition of a larger HUF of which the coparcener was a member, like an HUF in which the coparcener’s father or grandfather was the karta.
  2. Assets received as gifts by the HUF. Such gifts could be received from close relatives or close friends.

Where a gift in cash or in kind, it might be taxable in the hands of the HUF. If the donor gifts movable or immovable property for less than its market value to the HUF, the HUF has to pay taxes on the deemed fair value of the gift.

Previously, cash gifts under Rs. 50,000 were tax free. If the gift was more than Rs. 50,000, then the entire amount was taxable. Now, any gift received either in cash or in kind of a value more than Rs. 50,000 is taxed in the hands of the HUF as Income from Other Sources. However there are some exceptions that the gifts from relatives of members of the HUF are exempt from this rule. Relatives here includes the Spouse of the donee, Spouse’s brother or sister, Brother or sister of the donee, Spouse of brother or sister of the donee,  Donee’s parent’s brother or sister,  Donee’s parent’s brothers or sisters spouse, Lineal ascendant or descendent of the donee or donee’s spouse.

Gifts at the time of marriage are exempt from tax, whether from a friend, relative or colleague. Hence if a member of the HUF is getting married, the gift can be made to the HUF, and it will be exempt from tax in the hands of the HUF.

Any income received by the HUF can be further invested into various investment avenues such as shares, mutual funds, fixed deposits, property and so on, and the profit or interest earned will be taxable in the hands of the HUF, as it is income of the HUF.

  1. Assets bequeathed by a will that specifically in favour of the HUF. Movable or immovable property received through a Will by way of inheritance is exempt from tax. In the absence of a will, assets received on the death of a benefactor after 1956 (when the Hindu Succession Act came into force) would not be regarded as HUF property, but as individual property.
  2. A member of the HUF can transfer his or her individual assets to the HUF.

While creating capital or infusing capital into HUF do not transfer your own assets or funds because any income arising from this assets or fund will be clubbed with individual income and will be taxable, therefore, such a transfer isn’t beneficial from the tax point of view.

Which income is regarded as HUF income?

Income derived from the following heads may be regarded as HUF income if the same has been classified under HUF.

  1. Profits from business or profession
  2. Income from house property
  1. Capital gains
  1. Income from other sources

Since the HUF is a separate entity, it cannot earn income from salary. All income that arises on the investment of the HUF’s funds and utilization of its assets is regarded as income and is separately assessed and taxed.

Deductions and exemptions available to HUF

HUF is entitled to a basic exemption of Rs.2, 50,000 just like a resident Indian male. Where the taxable income exceeds Rs. 2,50,000 but does not exceed Rs. 5,00,000, 10% of amount by which the taxable income exceeds Rs. 2,50,000. Where taxable income exceeds Rs. 5, 00,000 but does not exceed Rs. 10, 00,000, Rs. 25,000 + 20% of the amount by which the taxable income exceeds Rs. 5,00,000. Where the taxable income exceeds Rs. 10, 00,000, Rs. 125,000 + 30% of the amount by which the taxable income exceeds Rs. 10, 00,000.

Apart from basic exemption of Rs. 2, 50,000, a HUF is eligible to all those exemptions which are available to a male resident.

By setting up an HUF an individual divides his income between two entities which cuts down the annual tax.

 

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10 Legal Rights Every Indian Should Be Aware About

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This article is written by Devashish Jain,  a student of UPES, Dehradun.

The following documents stipulates 10 general rights that every person should be aware of during the course of living. Most of the citizens are not aware of the general rights that are presented in the system for their benefit which has led to the exploitation of the general public by the administrator. This document will enumerate few of such general right

The main purpose of this is to bring awareness and educate the general public about their rights.

  1. Right to FILE an F.I.R

 Any person who is the victim or witness of the incident or mishappening can file an F.I.R. but police can file an F.I.R only for the cognizable offences. Such cognizable offences include the incidents like rape, murder, attacks which includes force, theft etc. Though F.I.R have to be registered as soon as possible after the occurrence of the incident, though a small delay does not give the power to the administrator to put a bar from filing of the F.I.R. though as per the procedure the F.I.R is to be filed at the place of occurrence of the mishappening but there is no geographical bar on filling of an F.I.R at any other place during the course of emergencies, because as per the procedure, the F.I.R can be transferred from one police station to other only later. The procedure is well protected under section 154 Code of Criminal Procedure, 1973 for the purpose of filing of F.I.R for cognizable offences.

In case any police officer does not file the F.I.R for the cognizable offence, the victim can go to Superintendent of Police and write an application regarding the same. In case even he doesn’t take an action the victim has the power to go to the magistrate who will give order with regard to investigating the said case.

  1. Arrest and investigation:-

 For the purpose of investigation and checking the premises of an individual, the police officer should have the warrant for the said purpose. So, for an instance, if a person is having a party in his/her house and in case police officer drops by at their door steps and ask them whether they can enter the premises. Generally people get scared for the said purpose and are left with no option but to allow them to enter the premises but as per the law any police officer cannot enter the house or the property of an individual without having the warrant for the same. But as far as arresting is considered for the purpose of the cognizable offences no such warrant is needed, but while arresting the person in case of incognizable offence there is a serious need of the warrant and no police officer can arrest the said person without having the warrant for the said purpose.

  1. Right of women for arrest and enquiry

 As far as right of women are considered for the purpose of arrest, no male police officer can arrest the women for the said purpose and only a women officer is allowed to arrest a woman. Moreover, the woman can only be arrested by the women officer before the sunset and generally 5 p.m. is considered as a bar for the said purpose. Under section 160 of Code of Criminal Procedure, 1973 a women cannot be called at the police station for the purpose of inquiry. And for the purpose of investigation, enquiry where women are involved such enquiry must be conducted at her residence that too in the presence of the women constable at that time.

  1. Cylinder explosion

In case of an explosion of the LPG gas cylinder and the person who has suffered the loss of property or life for the said purpose is entitled to get compensation of about 40 lakhs for the said purpose.

  1. No liability for non-motor vehicle

In a recent judgment it was held that non-motorized vehicles do not fall within the category of motor vehicles act and thus are not entitled to pay any sort of penalties which is stipulated in Motor Vehicles Act, 1986 like crossing of red light etc. However, certain Police Acts/Municipal Acts have provisions for imposing penalty for offences like jaywalking, etc.

  1. Free Legal Aid

Under Article 39-A of the Constitution of India, the government has enacted an act named Legal services Authorities Act, 1987 to provide free legal aid service to all those who cannot afford to opt for the services of lawyer. In the recent Delhi High Court judgment, it was held that in case any women come to file an F.I.R for Rape and she is not accompanied by the lawyer for the same. The SHO has to bring the same in the notice of the legal services Authority which in turn will arrange for the lawyer for the said purpose.

  1. Produce before the magistrate in 24 hours

 In case of arrest of a person by a police officer in a cognizable offence the same person must be produced before the magistrate in 24 hours and failure to do so will lead to release of the said person no matter what was his offence.

  1. Right to privacy while recording statement

As per section 164 of Code of Criminal Procedure, 1973, the statement of a rape victim can be given to the district magistrate in private and there is no need that the statement should be made in the presence of 3rd person.

  1. Woman to be searched by another woman: –

Under section 51(2) of Code of Criminal Procedure, 1973 when a woman is arrested, she is to be searched by another woman only and such search should also be with regard to strict decency.

Though the list continues but these are the few rights that every person should be aware of so that they aren’t subjected to exploitation by the police authorities.

Few of other law related information are as follows:-

  1. In case the person has got a challan for certain offences under MV Act (like not having a DL/helmet) he won’t be fined again for the same till mid-night.
  2. As per the Prevention of the corruption Act, if a person is found to be giving or taking bribe he will be penalized for the same.
  3. As per the Delhi Police Guidelines, a woman can also file a complaint either through post or email.
  4. India, though being a secular country respects all the traditions of various religious group, none of them promotes live-in relationship but the same is not barred by the judiciary till date in India. Even though it is criticized by various section of the society
  5. In case an employee or any person who as per the contract is entitled to receive stipend or salary, if the same is not paid, the employee can file a case, but the same is also barred by limitation in case within 3 year of time the same is not filed.
  6. No sex is a viable reason for divorce after the marriage is consummated. So for instance, if husband or wife refuse to have sex with his life partner without having any viable reason, it is a valid ground for filing of divorce
  7. No person can be barred from entering a public place on the basis of religion, caste, sex, etc.
  8. As per article 21-A, every person of age between 6 to 14 has the fundamental right to education
  9. Under article 21, which constitutes right to life and live with dignity includes the right to privacy, livelihood, clean environment, etc.
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Classroom Learning or E-Learning?

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workstation-405768_1280

This article is written by Diksha Chandok,  a student of Amity Law School, Noida.

This is an issue of debate wherein people find it difficult to figure out the differences between traditional classroom learning and E-learning. E-learning has transformed the education system of the world very significantly. Pace to learn has increased due to E-learning. The accelerating pace of knowledge growth and change, as well as increasing pressures of the marketplace requires researchers to look for innovative approaches to complement training. Learning should not stop at the end of class. On the other hand, Rosenberg (2006) claims that classroom will continue to serve as a critical function in any learning strategy. It provides a place where students, teachers can interact, experiment, collaborate and create. It is worth noting that the goal of this study is to provide hints and clues to policy makers as to how they can administer online learning. In the next paragraph, the writer has illustrated about what exactly is E-learning and what are its components.

Both online and offline programs have loads of things in common, but at the same time they are poles apart. A person may prefer E-learning because of the flexible schedule. Plus, it provides us 24*7 facility and accessibility.

What is the concept of E-learning?

This concept basically focuses on electronic learning, training etc. through internet. In this kind of training, people basically learn, collect information through internet. It is a form of training over intranet and internet. It is a tool used in both academics and corporations.

Active participation is a learning process which enhances your knowledge and skills. It basically teaches you the skills and tactics for smart work. This contributes to the ability of the learner. This is a tool which supports creative thinking and fill the gaps between thinking and ideas which basically helps us to implement in the present environment. It supports the learner’s new idea, risk taking factor and also pack of other things. This can help them to solve their problem.

How E-learning works?

It is a new form of educating students and done through intranet and internet. This form of learning educates different age groups.

This is done to measure the performance of the student and to see the interaction and efficiency of the class. E-learning also gives all sorts of online program. Some companies train their employees through these online programs. A student has to choose between the two options.

What is the concept of classroom learning?

This is a kind of learning which students get from the active participants and live trainer. The physical environment is present in the case of traditional classroom learning. Generally, one teacher is present so as to educate and guide the students.

Comparison between E-learning and classroom learning

  • The best part about E-learning is that you can learn anytime and anywhere you want, but classroom learning has a specific duration and time.
  • You can yourself figure out the pace at which you want to learn. There is no need to wait for anyone in the class nor you need to match anybody’s pace.
  • One lecture hall can gather many students, but it is very difficult to interact with all of them. Plus,the information communicated to them is not always properly conveyed.
  • E-learning can be more of an interactive session, rather than classroom training or classroom learning. Interaction is very important part of learning.
  • Sometimes in classroom learning you’re scared to ask a question because you think how will other people react to your question, but in E-learning your face is hidden so there is no need to be scared about your image.
  • Course material is updated quickly and communication is also made at much faster speed regardless of the time.
  • It is cost effective and less expensive as there is no need to manage external environment.
  • E-learning not only provides information through online courses, modules, etc., but also include an attractive way of learning like videos, exercises, various activities etc.

Blended Learning

It is a form of method where learning is possible with the amalgamation of both online and offline learning. This method can be very useful as the instructor can use the best features of both the methods, that can use them in their favor. It can be an effective form of learning wherein you can study both offline and online.

Conclusion

There is no short method or shortcut for training. The effective package is to use a mixture of both the kinds as mentioned above, but an organization can choose the method according to its requirement, budget and needs. A balanced approach should be adopted. E-learning effect students, teachers, employees, etc. In other words, it is on a global level wherein every person can acquire knowledge and in turn be trained in any field they wish to pursue.

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A Basic Guide To Consumer Redressal Mechanisms

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This article is written by Raghav Nagar, a student of Campus Law Center, Delhi University.

In light of the recent controversy surrounding Nestle Maggi, the spotlight is back on the way the packaged food industry is regulated. The issue of packaged foods has rekindled some old questions that need to be addressed, such as-

  1. Don’t consumers have the right to expect some basic standards of responsibility and honesty from these companies?
  2. What recourse does a consumer have when these standards are not followed?

Maybe the only way to ensure accountability and responsible conduct by these companies is to crack the whip. Thankfully, government agencies such as The Ministry of Health and The Food Safety and Standards Authority of India seems to be doing just that. As of mid-June, 2015 the whip cracking has extended to about 18 instant noodles brands and a range of other food items.

The old saying, about how history repeats itself, is quite true for the packaged food and beverage industry. For example, in 2006 sales of Coca Cola and Pepsi plummeted across the country when an advocacy group claimed that their soft drinks contained traces of pesticide.

When these MNCs do not adhere to even the most basic standards of quality and safety in their pursuit of greater profits. It is up to us, the consumers, to ensure that these companies are held accountable. As consumers, we need to be aware of our rights. By the end of this article, you should be able to stand up for your rights. Remember, Goliath was a great warrior and yet David defeated him in battle.

The options

  1. Contact the company/manufacturer

 According to the Consumer Protection Act, this is a mandatory first step for every consumer.

Check the packaging of the product for the ‘customer care’ number and email id. Call/email and inform the company of your complaint. This will act as evidence that you had given the company prior notice before going to the consumer forum and will help in making your case stronger in the said forum.

  1. Get the food sample analyzed under the Food Safety and Standards Act

This direction is not to be explicitly complied with under the Consumer Protection Act. But under the Food Safety and Standards Act you can get your food analyzed by any of the designated food analysts[1]. If the sample is in contravention of the provisions of the Act i.e. found to be adulterated, then the Food Analysts shall forward the report to the Designated Officer to follow the procedure laid down in section 42 of the FSSA for prosecution.  Which empowers the Food Safety Officer to inspect, collect samples and send them to Food Analyst for analysis.

The Designated Officer, after scrutiny of the report of Food Analyst shall decide as to whether the contravention (if the sample tested is adulterated or not) will be punishable with imprisonment or fine only. In the case of contravention punishable with imprisonment, he shall send his recommendations to the Commissioner of Food Safety for sanctioning prosecution.

Thus your complaint will help to ensure action.

  1. File a complaint with the consumer protection forum

What if you find yourself no closer to the solution even after taking the first two steps? You still have the option to file a complaint in the consumer forum. To do this, you will not need a lawyer or any other form of legal assistance (though you have the option to do so).

In the forum your responsibility as a consumer is to prove that the product was sub-standard.

Here your previous step to get your food sample analyzed will serve as proof for the same.    Also During the proceedings the question of evidence may arise. Thus It is a good idea to keep all the related food, bills, invoices, records of telephonic conversations (if possible), email exchanges, etc. to satisfy the question of reasonable doubt i.e. whether your right to safe food was violated or not.

The procedure

  1. How to contact the company

As pointed out above, the first thing a consumer must do is to contact the concerned company directly.

  • Firstly you should write an email to their customer care department and then call them. The contact details can be taken from their website or the packaged product.
  • Secondly send an email to the other top officials as your complaint might be addressed quickly, this is a personal anecdote which entails no guarantee.
  • Thirdly remember to keep the copies of the emails sent and received; records of telephonic conversations (if possible). You can use them as evidence to prove your case in the consumer court.
  1. How to get the food sample analyzed

Under FSSA, food laboratories and research institutions that are accredited by National Accreditation Board for Testing and Calibration Laboratories or any other accreditation agency are to be used for the purposes of carrying out analysis of samples by the Food Analysts. The sampling and analysis should be done according to section 47 of this act.

Click here to get the details of the accredited testing laboratories.

  • How to file a complaint in the consumer courts

 Complaints can be filed by

  • either the consumer himself ;
  • one or more consumers in cases where there are numerous consumers having the same interest;
  • The Central/State Government, as the case may be, either in its individual capacity or as a representative of interests of the public.

                       The procedure of filing a complaint is as follows[2]:

  1. Pecuniary jurisdiction or monetary jurisdiction of a particular forum is decided by the value of the goods, services and compensation sought by you. It specifically refers to the monetary value of the suit. Each forum is competent to hear the cases regarding certain monetary value. A matter where the monetary value claimed is higher than what the forum is competent to hear, the parties must approach a higher forum. At the same time they should approach the lowest forum which is competent to hear the suit.

The pecuniary jurisdiction of each of the consumer forums, district, state and national, is clearly defined in the Consumer Protection Act, 1986.

  • If the relief claimed in the complaint is less than Rs. 20, 00,000/-, then the complaint must be filed before the District Consumer Forum.
  • If the relief claimed is between Rs. 20, 00,000/- and Rs. 1, 00, 00,000/-, then the complaint must be filed before the State Commission.
  • When the relief claim exceeds Rs. 1, 00, 00,000/- then the complaint must be filed before the National Commission at New Delhi.
  1. The complainant needs to pay a fee for filing a complaint before the District Forum, State Commission or National Commission
  2. Another important facet of court fees is the manner in which these are to be paid which too is laid out in Rule 9A of The Consumer Protection Rules, 1987. The Rules provide the following methods of payment:
  • Crossed Demand Draft drawn on a nationalized bank or
  • Crossed Indian Postal Order;

These have to be drawn in favor of the President of the District Forum, Registrar of the State Commission or the Registrar of the National Commission as the case may be, and payable at the respective place where the District Forum, State Commission or the National Commission is situated.

  1. The complaint can be sent by Registered Post to the District Forum/ State / National Commission.

 A minimum of 5 copies of the complaint have to be filed.  This includes-

  1. a) Three copies for the Forum [in green (Court) paper]
    1. One for the Office of the Forum and
    2. One for the opposite party.

(Hint-Remember to keep one copy for yourself and ensure that you carry out regular follow-ups after filing the complaint.)

  1. The complaint should be signed by you. If you authorize someone to represent you, give him / her a signed authorization letter. In the event of the death of a complainant, his/her legal heir or representative can continue as the complainant. The format of the complaint should be in this specific manner
  1. A list of documents supporting the allegations should also be furnished along with the complaint, duly signed by you.
  2. The value of the relief includes (where applicable) refunds, damages, litigation costs and interest. The Consumer Protection Act provides for adequate litigation costs to the parties. If you are asking for compensation, quantify the amount and state the break-up i.e., how the amount is arrived at and under what heads. If the relief cannot be quantified, give a notional value.
  3. The limitation period for filing complaint is two years from the date of the cause of action. In case the limitation period expires, the Forum or Commission may still take your complaint, if they are convinced about the reasonableness of the cause for the delay. However, do avoid delays, since you will be required to provide explanations for every single day.

Conclusion

The habit of conforming to the ‘Chalta Hai’ attitude has done us no good. Over and over our health is being jeopardized, to put a stop to this we must wield the sword of collective action and make an effort to create awareness about the redressal mechanisms. Only then can this impending and recurring problem can be rectified once and for all.

[1] List of food analysts http://www.fssai.gov.in/Portals/0/Pdf/List_of_Food_Analyst.pdf

[2] http://www.cag.org.in/guidelines-filing-complaint

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Alternate Minimum Taxation (AMT) On Limited Liability Partnership

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alternate minimum taxation

This article is written by Ruchi Jain, a student of MATS Law School, Raipur, on Alternate Minimum Taxation on Limited Liability Partnership.

Introduction

LLP or Limited Liability Partnership is a form of business having features of both partnership and of a company. As soon as the LLP Act came into existence the need for the change in taxation regime in respect of the income of LLP was essential to give certainty. All the provisions of Income Tax Act, 1961 which are applicable on firm, partner and partnership shall also be applicable on LLP and partner of LLP unless otherwise provided in the Act.

Therefore LLP shall pay tax @ 30.09% (30% + 3% education cess) on its profit earned during any previous year. Since the LLP was treated same as Partnership in the matter of taxation, the provisions of MAT and Dividend Distribution Tax will not be applicable for LLP.

Profit of LLP credited to the partners’ account shall be exemption to tax under Section 10(2A) to avoid double taxation. However, remuneration and interest paid by the LLP to its partners shall be liable to tax under Section 40(b) of the Income Tax Act.

The provisions of AMT or Alternate Minimum Taxation are applicable to non-corporate taxpayers in a modified pattern. AMT applies to a person other than a company. The provisions relating to AMT is given under Sections 115JC to 115JF.

With the help of this article, the author will explain the concept of Alternate Minimum Taxation in respect of Limited Liability Partnership and its applicability with the same.

Basic provisions relating to Alternate Minimum Taxation

Alternate Minimum Tax means the amount of tax computed on the adjusted total income. AMT is a way to collect the minimum tax from the zero tax payers. Under it, the assessee is liable to pay tax at rate of 18.5%. It is not an additional tax levied on the taxpayers. The provision of AMT is given under Section 115JC of the Income Tax Act.

The word Adjusted Total Income has been defined under Section 115JC (2) of the Income Tax Act as the total income of the assessee on which he is liable to pay income tax, is increased by-

  • Deduction claimed under Sections 80H to 80RRB, except Section 80P.
  • Deduction claimed under Section 10AA.
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How to determine Alternate Minimum Taxation

In order to determine AMT, the following steps need to be followed:

  • Find out the income tax liability of the LLP as per the normal provisions of the Income Tax Act.
  • Calculate the adjusted total income of the LLP under Section 115JC (2).
  • Calculate AMT on the adjusted total income of the LLP @18.5% + 3% education cess, the effective rate is 19.05%. The surcharge in tax rate is not applicable in case of LLP.
  • If the income tax liability of the LLP under the normal provisions is equal to AMT, then AMT will not apply. And if the amount of AMT is more, then
  • The adjusted total income determined will be deemed as total income of the LLP for such previous year.
  • Tax liability on adjusted income will be deemed as tax liability of the LLP of such previous year.

Difference between MAT (Minimum Alternate Tax) and AMT (Alternate Minimum Tax)

  • MAT is applicable on companies whereas AMT is applicable to LLPs and Non-corporate assessee.
  • The provision of MAT is given under Section 115JB under chapter XII-B of the Income Tax Act, whereas the provision of AMT is given under Section 115JC under Chapter XII-BA of the Income Tax Act.
  • MAT is taxable on book profits, while AMT is taxable on adjusted total income. Book profit means the net profit as shown in the Profit & Loss Account as increased/decreased by certain items specified under explanation to Section 115JB. Adjusted total income means the total income computed under the normal provisions of the Income tax Act as increased by the deductions claimed, if any, under Chapter VI-A (C) or Section 10AA.
  • The companies are required to pay MAT on book profits if the income tax payable on the total income, computed under the Income Tax Act, is less than MAT. Where the regular income tax payable for a previous year by a LLP is less than AMT payable for such previous year, adjusted total income shall be deemed to be the total income of the LLP for such previous year and LLP will be liable to pay income tax on such adjusted total income.
  • The rate of tax of MAT is 18% + surcharge @5% if book profit exceeds Rs. 1 Crore + Education cess@ 3%. Effective Rate including surcharge is 19.5%, whereas the rate of tax of AMT is 18.5% + education Cess@ 3%. Effective rate 19.05%.

Conclusion

In order to save revenue on account of companies converting to LLPs to take benefits of tax exemptions and to rationalize taxation of LLPs with companies, the Union Budget has proposed to introduce a new chapter XII-BA under the Income Tax Act 1961 which provides for levy of AMT @ 18.5 % + 3% education cess on the adjusted total income of the LLP.

 

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A Note On The ‘Jurisprudence Of Speedy Justice’ In India

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This article is written by Bharat Kumar Singh and Aman Pratap, both students of National University of Study and Research in Law, Ranchi.

There is a famous phrase that, “Justice Delayed is Justice Denied”. This gains importance when in India at present, there are nearly 19,000 judges, including 18,000 in trial courts who are dealing with a pendency of 3 crore cases. The penal process in India- the world’s largest democracy is very much similar to that of United States where the American prisons are termed as over- crowded and that defendants in custody do need to wait for prolonged intervals before their actual cases are tried as trials in the courts of law. However, in reality, the condition is much worse. The accused are locked up behind the bars and then these prisoners have to wait nearly for decades and years for that good day when their turn will come up and their trial shall begin. A research study done in India also shows that most of the prisons are overcrowded and furthermore no special care are being taken by the authorities in regard to the condition of the prisoners. In Indian prisons, the basic fundamental human rights are being contravened every now and then where the prisons have procured a squalid malaise and as a result, the inmates at prisons face multiple serious physical sufferings. The next strata of justice i.e. the courts have again too many of open cases to deal with. If the courts were to speed up and clear these cases, what could be the strategy is an underlying question. In India, all the non-convicted defendants have to undergo within the Indian criminal justice process i.e. “under trial” which in itself is a staggering process for which partially the high ranking government officials, the lawyers and the judges seem to be responsible. Hence there is a need of massive reforms in the country’s penal process. In this study, the researcher is examining the current state of the Indian criminal justice system. Incepted in 1979, the Indian Supreme Court for the first time referred to the American Constitution’s Sixth Amendment, and held that the defendants had a fundamental right to a speedy trial. The researcher is examining the evolution of the Indian jurisprudence on this matter. As the findings suggest, there exists a major gap in India between these encouraging judicial pronouncements and how the right plays out in reality. The crises we are referring to in the present context is occurring against a paradoxical Indian landscape that on the one hand is characterized as one of the most dominant powers in the world stage and has the potential of high economic growth. However at the same time, the country suffers from disparate backlogs. Counting it may lead us to the corruption muddles, severe poverty, daunting challenges of population explosion and the lacking strength of good educational institutions that are all assaulting the present Indian State. When these hardships are already present, it is strenuous to invade as to how the country can reconcile the brawl of underperforming criminal justice system. For a country that targets democracy, their seems an enigma how such grail can be secured when the objective of speedy trials has gone astray from the desired procedure.

In 1950, the Indian Constitution came into force and in 1947 it achieved its independence from the Great Britain. However, while this hefty task was performed, the drafters did not explicitly mention anything about an individual’s right to undergo or execute a trial in the most preferred manner.[3]

Now it was a very common practice for the prisoners that were under any sort of trial to undergo several long periods in dark prisons and furthermore in most of the Indian Supreme Court pronouncements in the earlier 1952, the prisoners under trial were to deal with situations in the same landscape which for the present era approaches of a standard ‘Human Rights’ seems slightly though. In one of the cases of Lachmandas Kewalram Ahuja, the defendants were generally convicted under the system of criminal justice of the pre-1950’s. However after the formation of the new Constitutional provisions, the guarantees that directed towards the fundamental structure[4] made the court order that till the time duration the court inaugurates a newer version of the case in order to ensure the defendants appearance at  trial, they are needed to be retained as under trial prisoners and hence in custody.[5]

Two decades after independence have occurred and the concern for the issue still remains at dark. On numerous occasions, the court collected less focus in directing the prosecution to justify the under trial prisoners continued detention[6]. Also when the Prime Minister Indira Gandhi imposed the emergency Rule while suspending the Constitution, the court acted upon the government’s specific demand not to provide with the measures of speedy trial to the political prisoners that were jailed at that time.[7] It was only possible after the Mrs. Gandhi hearing to defeat in the furthermore elections that the Court gained concerned to examine as to why the political leaders should not be moved outside the bars un order to make itself in the area of legitimacy.[8]

In the landmark case decision of Hussain Khatoon v. Home Ministry[9], Justice P.N. Bhagwati opined in the case that the defendants had under article 21 of the Indian Constitution the right to speedy trial.[10]

Concerned about the past time, Justice P.N. Bhagwati’s ruling up roared great media attention and then a massive reconditioning was followed as to how the population of the prison was to be cared.[11] The court’s ruling was based majorly on the United States procedure of Criminal System[12] and also on an earlier case decision of Maneka Gandhi v. Union of India.[13] The court in this case directed to the ruling that “substantive due process shall be recognized as a fundamental aspect of Article 21.”[14] Subsequently the court in the later of its judgments in 1980 prohibited acts of hand cuffing the undertrial prisoners unless there seemed to be a clear danger of escaping of the prisoner.[15] The same year, after the grievous efforts of Justice P.N. Bhagwati, four boys- all aged around twelve of age were finally acquitted of their charges in 1981[16] who were being dragged for about eight years of awaiting trial.[17] Similarly there were multifarious cases during the 1980’s where the juveniles were remedied from the clutches of the undertrial period of waiting for the judgment day.[18]

During this era of 1980, the court generally focused on the region of North Indian Jail and also widely dealt with the issue as to whether the time that is already spent in prison waiting for trail could be deducted from the final sentence period?[19]

With this respect the court turned its decision in 1985 and hold that the ones who are facing the trail for lifelong imprisonment can be dealt in the manner as provided in the earlier paragraph.[20] In a landmark case of 1994, the Indian Courts turned their decision accepting that the undertrial prisoners who spent maximum time waiting for their turn to come up and then are further stretched in prisons as a part of the sentence[21] that is awarded to them by the courts of law strictly is violative of their fundamental right enshrined under article 21.[22] There’s a 2010 survey data submitted by the Indian Government which speaks that seventy percent of the under trial prisoners locked up in jails are still to be incarcerated.[23] This government’s most recent data of the issue concludes that from the earlier digits, the strength of under trial prisoners has just increased to fifty thousand people instead of declining in just two years.[24] This fact in itself helps us contend that all the age old Supreme Courts verdicts dealing with the issues of under trials have not been functionally implemented. Furthermore, over 1/3rd of the 2007 population of the under trial’s population lowers the literacy rate. Most of them are backing with a lesser education degree and these ones are not even qualified for the 10th grade examination.[25]

The 2007 data on which our analogy is based speaks of a very unique but different version as to the issue of the under trials. Is displays that most of the SC’s, ST’s and OBC’s (Backward Classes) are making up the under trial population. Furthermore, 2/3rd of the undertrial population backs form one of the three classes as mentioned above.[26] Hence the backward classes gain another platform where there is a great need for working for their upliftment.[27] Further if we choose state wise categorical explanation, then West Bengal, Jammu & Kashmir, Goa, Karnataka and Himachal Pradesh) bags fifty percent of the list of 2007 under trial population and then again belonging to backward classes. One can easily sense that while these under trail complications are being majorly faced by the lower strata of the society, the criminal justice system seems to be unfair in consideration to these lower caste people.[28] The next impressing data we are going to forecast from those of 2007 list of surveys performed is that while most of the under trial prisoners are facing ‘murder charges’, it represents a silent history  of the old collage of legal presumptions where murder charges are still treated as consequential misdemeanors.[29] The next towering under trial prisoners are that of facing theft charges.[30] The Narcotic Drugs and Psychotropic Substances (NDPS) Act has also breached its limit by getting placed in the third position while accumulating 11, 108 under trial prisoners facing charges under the act.[31] And very next to it we have charges of arms conflict whereby nearly six thousand under trail prisoners are being taken care of.[32] Now consider the data where from the end of two thousand and seven, nearly 103,624 under trail prisoners have been waiting for their trial for 3 months or less.[33] All these muscular data leads us to the conclusion that the Indian Penal Justice system is probable the biggest black hole in case surviving and again it favors class division of the society and hence leading us towards a stereotype.  In one of the statements form 2010 as given by the CJI, who denoted that almost all the undertrial Judges need to be praised for their high disposal of cases, however the data needs to be properly analyzed before applauding for it.[34]

There are multifarious question in relation to the present issue. First of them is that how many of the under trail prisoners as mentioned in the above data are currently facing their hearing? Or how many of them have already been provided with the bail?[35] Normally, as the procedures of Criminal Procedure of India provide for, an individual arrested must be made available for hearing before the magistrate within twenty-four hours of the time synapse (excluding the time made for the travel purpose)[36] and at that time, the magistrate shall make on the decision as to grant bail to the accused or not. Apart from the trail decision, the police bear the responsibility to continue with the investigation process so as to timely determine whether the charge-sheet with the prosecutors is filed or not.[37] Then the next procedure stands to the point of determination whether to proceed for a trail or not. However the above mentioned data does not guarantees whether the under trail prisoners who are being counted have been denied with their bail applications or not.[38] Ultimately, from the issues and factual data as represented above, a worsened condition of Indian Penal System can be assured of.

Supporting the same cause on which the present theme is based upon is not something new on its own. Once, Jagmohan Singh, empirically detailed a rich scholarly book presenting his opinion on the under trials situation of the country.[39]His experiences as he shared in his book were centered to North Kashmir.[40] His initial chapters of the book focused on the ancient adjudicators who were the law givers of the country. They not only focused on the framing of a standard legal opinion on every issue the man kind faced and dealt with at that time but they were also very peculiar with the time limits under which their law had to take its course and fulfill the function of granting of the Justice.[41]

Singh then goes on further arguing that in the ancient period of India and generally in the era of the Mughal’s (16th to 18th Cent.), the provisions of speedy trial were great into action. At that time the kings were praised and ranked on the basis of their quick ability of disposing the cases. Moreover, it was dealt as an act of high esteem[42] by various rulers.[43] Yet at the end of the Mughal’s dynasty, the criminal justice delivering system became sluggish and was characterized with corruption.[44] This was the very similar system that the British inherited during their arrival and propounded most of their policies.[45] The Britishers in their era established numerous Law Commissions to study and make the best of the law in order to tackle the problems.[46] The Indian Jails Committee (1919- 1920) proposed first of its proposals to address the backlog[47] and suggested that the convicted must be heard in the proper allocated time interval so as to prevent backlog.[48] In the post-independence[49] state of affairs, similar recommendations were made.[50] It was in 1979, when a 4 membered law commission suggested resolving the problem of decreasing the “prison population”.[51] Again in 1983, the Mulla Committee devoted a time of 3 years of empirical study in understanding the problems of under trials.[52] In 1993, the NHRC (National Human Rights Commission) issued several directives for ensuring that all the under trial prisoners are treated in a humane manner.[53]

Following are some of the major recommendations in relation to resolve the issue of under trials and hence in way to achieve the path of speedy justice, the following proposals have been enshrined:

  1. The number of judges in the courts must be increased so as to decrease and minimize the burden of resolving the cases on every particular judge;[54]
  2. The courtroom process has to be enhanced technically so as to make the court room, a sound space to resolve the disputes with no difficulty;[55]
  3. The police must be encouraged to accelerate the investigation procedure;[56]
  4. The criminal cases must be continued in no time when in between of the cases, the hearing judge is made transferred;[57]
  5. Promoting the government with unnecessary adjournments in the hands of the judiciary must be stopped;[58]
  6. The bail opportunities for less grave offences must be increased;[59] and
  7. The under trial prisoners must be separated from the ones who have already being convicted by the court and hence must be treated softly since they are still considered innocent in the eyes of the law.[60]

For the world to be called an ideal place for the under trials to stay, the following recommendations shall help in resolving the dilemma. Alongside with the persistent issues, the lack of political will to resolve the issues existing in the society and the insufficient devotion to allocate resources and funds in the right place also needs to be resolved hand in hand.

[3] For reference see the document of the Constituent Assembly at supra note 20

[4]  Lachmandas Kewalram Ahuja v. Bombay, (1952) S.C.R. 710

[5]  Id.

[6] Madhu Limaye v. Magistrate, (1971) 2 S.C.R. 711; Ranbir, Singh Sehgal v. Punjab, (1962) S.C.R. Supl. (1) 295; Leo Roy Frey v. Superintendent, (1958) S.C.R. 822; Kanta Prashad v. Delhi Admin., (1958) S.C.R. 1218

[7]  Upendra Baxi, The Indian Supreme Court and Politics, Eastern Book Co. (1980)

[8] See Carl Baar, Social Action Litigation in India: The Operations and Limitations on the World’s Most Active Judiciary, 19 POL’Y STUD. J. 140–50 (1990)

[9] (1979) 3 S.C.R. 169

[10] See Upendra Baxi, The Supreme Court Under Trial: Undertrials and the Supreme Court, 1 S.C.C. (JOUR.) 35, 35–51 (1980); A.D.M. Jabalpur v. Shukla, A.I.R. 1976 S.C. 1207

[11]  Furthermore in the decision, the court directed towards some of the concerning issues in respect to the undertrial prisoners. The court became focusing towards the Humane approach, greater preference to bail options, reduction in the time one has to undergo from the arrest to the trial etc.

[12]  See Khatoon v. Home Ministry, (1979) 3 S.C.R. 169

[13] See Maneka Gandhi v. India, (1978) 2 S.C.R. 621

[14] Id.

[15] Shukla v. Delhi Admin., (1980) 3 S.C.R. 855

[16] See Pehadiya v. Bihar, A.I.R. 1981 S.C. 939; Bir v. Bihar, A.I.R. 1982 S.C. 1470

[17] See Batra v. Delhi Administration, (1979) 1 S.C.R. 392 (1978)

[18]  See, e.g., Munna v. Upper Pradesh, (1982) 3 S.C.R. 47; see also Supreme Court Legal Aid Comm. v. India, (1989) 2 S.C.R. 60

[19] See Yadav v. Bihar, (1982) 3 S.C.R. 533.

[20] See Kartar Singh v. Haryana, (1983) 1 S.C.R. 445; Sethi v. Bihar, A.I.R. 1982 S.C. 339

[21] See Bhagirath v. Delhi Admin., (1985) 3 S.C.R. 743

[22] See Supreme Court Legal Aid Comm. v. India, (1994) Supp. 4 S.C.R. 386

[23]See, e.g., Sarkar v. Ranjan, A.I.R. 2005 S.C. 972

[24] Id.

[25]  http://www.indiastat.com/crimeandlaw/6/whatsnew.aspx

[26] Id.

[27] See Id. At 28

[28] See Marc Galanter, Competing Equalities: Law and Backward Classes in India (1984); Timothy Lubin, Donald R. Davis & Jayanth K. Krishnan: Hinduism and Law (2010)

[29] Id.

[30] Hari Om Maratha: Law of Speedy Trial- Justice Delayed is Justice Denied (2008)

[31] See Id. at 28

[32] See Id. At 28

[33] http://www.indiatogether.org/ 2007/may/rvw-judreform.htm

[34] See Id. At 28

[35]http://barandbench.com/brief/2/882/ litigation-statistics-debate-continue-all-india-seminar-on-judicial-reforms-looks-at-real-statistics- and-real-numbers654425

[36] Id.

[37] http://mahapolice.gov.in/ mahapolice/jsp/temp/arrestfaq.jsp

[38] Id.

[39] http://lawcommissionofindia.nic.in/51-100/Report78.pdf

[40]  See Jagmohan Singh: Right to Speedy Justice for Undertrial Prisoners (1997)

[41] Id.

[42] See id. at 20

[43] See id. at 29

[44]  See     Robert Lingat: The Classical Law of India, 67, 219–22

[45]  Id.

[46]  See Surendra Kumar Pachauri: Prisoners and Human Prison System, 77–83 (1999)

[47] http://humanrightsinitiative.org/publications/prisons/prisons_visiting_system_in%20India.pdf

[48] See F.A. Barker: The Modern Prison System of India, 1919–1920, Indian Jails Committee (1944)

[49] Id.

[50]  These reports by the Law Commission of India typically focused on the defendants already convicted

[51] http://www.humanrightsinitiative.org/artres/Access%20to%20Justice%20for%20Undetrial%20 Prisoners.pdf

[52] See Government of India , Ministry of Home Affairs, All India Commission on Jail Reforms (1980–83)

[53]http://nhrc.nic.in/faq.htm

[54]  Id.

[55]  Id. at 62

[56] Id. at 62

[57] Id. at 62

[58] Id. at 62

[59]  The 78th Law Commission pointed out that there must be surety granted for the offenders with less serious offences and hence in these cases, the bail ought to be provided. Also some circumstances can occur where the defendant has failed to appear and hence in such circumstances, the defendant shall automatically be considered guilty of an offence

[60] Id. at 62

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How startups should prepare while expecting a investor due diligence?

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This article is written by Rithi Mukherjee, a graduate of Delhi University, currently a fraud investigation professional

Starting a business is not for the faint of heart. But if you are ready to turn your idea into reality, entrepreneurship is an exciting journey that will forever change your life. From overcoming challenges to landing your first client and actively managing risk.Starting a business and becoming an entrepreneur is exciting — it is also terrifying. After you leave your full-time job, you will face several common challenges that all entrepreneurs face–chief among them instability, stress, and solitude.One of the most important lessons a successful entrepreneur has learned is the ability to manage risk. The ability to manage risk is what sets an entrepreneur with an idea apart from one that actually builds a business from it. The greatest risk any startup could run into is running out of cash or available credit. Entrepreneurs should relentlessly concentrate on controlling costs and managing this risk.

For the elite startups and entrepreneurs who manage to attract the investor they dream of and survive the term sheet negotiation, there is still one more hurdle before the money is in the bank. This is the mysterious and dreaded due diligence process, which can kill the whole deal. In reality, it is nothing more than a final integrity check on all aspects of the business and the team.

First of all, what is due diligence?

“Due diligence” is just the fancy name given to the research process that is carried out prior to making an investment. It usually involves an investigation into a person or people, a business, or a marketplace.

Some entrepreneurs do very little to prepare for due diligence, assuming all the talking has already been done, and the business plan and results to date tell the right story. Others schedule exhaustive training sessions for the team.If there are conflicts within the team, differing views of the strategy, or evidence of missing processes and tools, the investment process will likely be terminated.The key theme for a successful due diligence is full disclosure and no surprises before or after the commitment.

Startup-equity investments imply a long-term business relationship, lasting an average of five years. During that period, it is very difficult for either party to get out of the deal, since there is no public market for the stock, and business divorces normally mean bankruptcy. It’s worth your time to do a little extra work here, and make this phase a win-win one for both sides.

Why does it need to be done?

As an investor, you want to know that the money you put into a business will be used in order to deliver whatever plan has been set out in the company’s business plan, investor presentation, etc.Sometimes, start up, early stage, and even some established business fail for reasons outside of the business  owners’s control. These things, unfortunate as they are, are usually the result of a sector crash or more general economic downturn.

This is why due diligence is carried out. So that , the investor, can gather all the facts and information you need in order to decide whether or not the product, service, or venture you invest into is right before you part with your money.

Although investing online through an equity crowdfunding platform is still a relatively new process, investors of all types, from the new business angel to experienced angels, and those in networks, have found ways of utilising the web in order to conduct their own due diligence

Online Due Diligence?

In a number of different ways. Just as finance is crowd-sourced on an equity crowdfunding platform, so too is due diligence.

Director checks Prior to listing  the owners of the business looking to raise equity finance, are required to undertake a director check. This is a background check into the people themselves, rather than the business. The main reason for this is that in a lot of the cases we see that the company either isn’t running yet or if it is, it hasn’t been operational for very long.

Then you can have the overview of the business: meet the team, and download resources such as their business plan, investor presentation, and financial forecast.

You can check business owners out via their social media channels (both professional and personal.  Use Twitter, Facebook, LinkedIn, Google+, and Pinterest, etc to see how they interact with their audience. You can often get a fair sense of who a person is and what they’re like by looking at their social media activity.

Do it face-to-face Contact with the business owner or arrange a Skype or telephone call, or enter into an email exchange with the business owner. If you’re making a larger investment, you may like to arrange a real face-to-face meeting.

Key elements of due diligence process

For reference, here is a quick summary of key elements that most investors include in their due diligence process:

  • Competitive landscape: They prepare a summary of local and global players in the same/similar area and collect as much information as possible.
  • Exit potential: There is also a list of potential acquirers and document why they would acquire a company like this.
  • Founder’s pre-nuptial: Co-working arrangements terms should be documented by the founders. Verbal agreements or inappropriate drafting of these arrangements can cause lot of disturbance for the company. If possible, also need to get founders to sign a non-disclosure and non-compete in case of a break-up.
  • Employee contracts: Employment, non disclosure and non-compete agreements duly signed by all part-time as well as full time If there are non-local employees, their legal employment status should be duly signed.
  • Pre-existing liabilities: Founders should disclose all pre-existing liabilities including options granted and/or notes issued to third parties. Get them to sign an undertaking.
  • Licensing agreements: If the entire technology of a part of that technology is licensed from an external party, the terms and conditions of usage of technology should be properly documented.

Legal and Secretarial

  • Memorandum and Articles of association should be up to date to ensure that they reflect all the changes made during the previous investment rounds.
  • Minutes of all previous board and shareholders meetings should be up to date.
  • Details of all existing/previous/threatened legal disputes, litigation, arbitration or judgement/s should be present (certified copy). A declaration/undertaking from the founders that information provided is complete to the best of their knowledge is also desirable.
  • Details of all Patent, trademark, copyright applications (in-progress and/or granted).

Financial performance

  • Copy of latest board approved budget, management accounts and audited financials (if available). Compare revenue and expenses between budget and actual accounts to identify and explore deviations. This can also be used to analyse future projections.
  • Review gross margins and net margins for each product line and assess if direct expenses have been pushed below the line as overheads.
  • Analyse working capital items (debtors, creditors and inventory). Ageing list can be very helpful.
  • Ensure that amounts due to technology and other service providers are accrued and recorded in accordance with agreements as liability even though they are not paid out.
  • Details of bank mandates and signatory limits.
  • Copy of bank statements for all the accounts held in company’s name. Match bank balances with the latest audited/unaudited financials provided.
  • Ensure that the company has filed all its tax and annual returns with relevant authorities. Get copies of tax assessment notices.
  • Carefully look for related party transactions and ensure that they were conducted at arms
  • Go through the list of fixed assets and verify material items. If there are huge intangible assets capitalized in the balance sheet, make sure that they are valued realistically.

 

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Supreme Court Guidelines For Publication of Advertisement by Government

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This article is written by Devashish Jain, a student of UPES Dehradun.

In the recent decision of the Supreme Court, while deciding the writ petition filed by the Common Cause in 2003, Writ no. 13 of 2003. Supreme Court after forming a drafting committee who in turn gave some suggestion, most of them were adopted as it is along with the guidelines of Directorate of advertising and visual publicity (DAVP), that are currently present to govern the said issue of the governmental advertising.

The writ petition was first filed by Common Cause in 2003 which further lead to filing of 2 more Writs in the same issue all the parties who filed the writ had a clear view that government is spending too much of the public funds on advertisements which is not leading to anything productive. Further is only led to wastage of resources which could be very well utilized in some productive activity.

But the respondent had a complete opposite view and they put forth the contention that advertisement is not wastage of resources rather they are a means through which the society at large is able attain the knowledge of the work that is being done by the government moreover most of the time these advertisements are for the purpose of the awareness. By the virtue of the advertisement, society gets to know what the legal rights of the individuals are and how the government is taking various steps for protecting the same. Moreover, the government advertisement are done for the purpose of informing the public about the various schemes that are launched by the government for their welfare.

Supreme Court while maintaining a balance in the present writ allowed the following:-

  1. Advertisement highlighting completion of a fixed period of the government tenure
  2. Advertisements announcing projects
  3. Governmental Advertisement issued in the memory of great personalities, but a limit of 1 advertisement has been set as the bar on the said issue
  4. Advertisement announcing policies and benefits for public

Guideline that were issued regarding the parts that government will now be focusing on are as follows:

  1. Those advertisement which stress upon the rights and obligations of the people of the society
  2. Government will focus on advertising considering the target audience of that area
  3. The third guideline states that advertisement material must not:-
  4. Mention the name of the party currently constituting the government
  5. Criticize the view and object of other parties either in opposition or elsewise

iii.      Include any symbol or logo of any private entity or political party

Iv.     For the purpose of promotion of any political party or candidate

  1. Include any sort of link to websites of the political parties.
  2. Government should look for best possible cost effective method of advertisement which should lead to maximum effectiveness

But due to widespread agitation both by the government and state-level parties in association with government view proposed various different view and guideline while changing their ambit, but the court held that as most of them were in accordance with those issued by the draft committee hence all except a few were passed namely:-

  1. Publication of photograph of politician and party leaders with the advertisement, in which the maximum photos of political individual could not exceed 3 in any case
  2. Recommendation for the purpose of the performance audit by different ministry
  3. Complete stop of the advertisements by the government when the elections are at a verge

By the virtue of the decision of this writ petition for the first time a proper set of guidelines had been issue to deal with this regard. Moreover while giving the decision court also stated that nowhere in the DAVP guideline there is any procedure of guideline which deal the process of giving the advertisement work to particular organization or firm and the criteria to decide the same. But now the court have stipulated in their guideline only that now the advertisement of government will be giving on democratic ground so that each and every company which have equal opportunity regarding the same and thus leading to fulfillment of the purpose of the government without breaching Article 14 of the constitution of India, which talks about the right to equality.

Court further held that they have jurisdiction to stipulate the guideline for the said issue under article 142 of the constitution of India. As per the author’s opinion the same was invoked while stipulate the Vishakha guideline regarding the sexual harassment at the workplace. Hence what the Supreme Court did was very well under their jurisdiction as stipulated under article 142.

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Can the state interfere in how much we spend for our marriage?

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This article is written by Shashank Sharma, a student of UPES, Dehradun

There are some moments in a man’s life that are truly special. He works hard and saves his money for years just to spend it all for that special moment. The question that arises here is a simple one- ‘If someone wishes to spend his hard earned money in a specific way, why should the state try to stop him?’ Indeed, where is the line that separates the state’s intervention fo?

The Kerala State Women’s Commission has recently proposed that marriage expenses should be capped so that unnecessary and wasteful expenditure can be curbed marriages. At first glance, it seems like a very noble cause and an effective idea to prohibit wasteful expenditure and reduce social pressure on people who can’t afford to spend so much.

Upon further analysis, the state is not actually infringing upon a person’s right to marriage. Even today in India, a second marriage or remarriage is still frowned upon by society and a person plans and waits a lot for this and in such a scenario if a person who earn well want to spend money on his wedding how can the state question him or ask him to cut down his expenses. Even if we assume that the cause is a good one, spreading awareness about the issue would be a better way to achieve this goal, as opposed to legislation. With legislation, the state infringes upon the individual’s rights, whereas with sensitization, the individual makes an informed choice.

Article 21 of our constitution gives us the fundamental right to live and with personal liberty. This right is not limited to just life,it extends to the right to live with dignity and freedom. The reason why some rights were deemed to be fundamental was to ensure that these rights are protected, especially from infringement by the state. Does the Women Commission’s recommendation not violate this right? How can the state mandate that a person not spend money because it is ‘not suitable for other people in society’ who can’t afford this luxury?  The commission’s proposed limit of 5 lakh rupees for marriage expenses, and 80 grams of jewellery , Rs. 10,000 on bridal wear , 5,000 on the groom’s clothing, and lastly a per plate cost of Rs 100. If you don’t comply with these limits, you will be penalize with 25% of the total expenditure.

The wedding industry is opposing this recommendation on the ground that this law if passes will be great job-killer. Meanwhile, social activists are divided on whether this  policy will yield any results at all. A Dubai based businessmen says that “this is a great initiative but should not be followed by some arbitrary or dismissive laws instead by spreading awareness”. He further added that,“The ceilings suggested for gold ornaments betray a sense of high moral posturing that even the members of the commission may be incapable of practicing”.

KT George, the owner of a posh convention Centre in Thiruvananthapuram, says that he will be forced to lay off at least 25 permanent workers if a limit is fixed on the rent of the hall that currently stands at Rs 1.5 lakh. It will affect another 100 workers since the 2,500-seater hall that he built at a cost of Rs 10 crore survives solely on weddings.

George, a former NRI, points out that a previous attempt by the government to impose a cess on wedding halls has failed. The High Court struck down that order as it was unconstitutional and ordered a refund of the cess collected from wedding hall owners.

A study by the Kerala Sastra Sahitya Parishad in 2006 revealed that Keralites were spending about 15% of the family income on weddings.

How can Kerela, a state with a weak industrial base, afford the level of unemployment  if this law is implemented?

Kerela is a state that claims a  90% literacy rate and yet is among the worst states in term of employment rate. As such, Kerala can’t  afford to implement a law which creates unemployment for a marginal social benefit.

People of India are progressing and living in a country with one of the highest developing rate they earn money to spend and marriage is a kind of affairs on which everyone has their own dreams and wishes although despite that the negatives of a marriage like dowry should never be accepted but if a person wishes to spend on his wedding and make it a memorable day for the rest of his life. There is definitely no reason and right the state possess to stop him and make him have a below standard wedding just because it does not go with the common strata of the society or everyone can’t afford it.

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Unnita Bhattacharya, Associate at Innove Law on how the NUJS business law diploma course helped her in dealing with a 30 million venture capital fund investment

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“Online course and placements? You must be kidding.”

This is what we have heard often from many of our prospective students, business clients or any other person that we have met in our lives.

However, sometimes the truth is stranger than fiction.

The one year Diploma in Entrepreneurship and Business Laws offered by NUJS Kolkata, is one of a kind online course in India which not only offers career counselling and assistance but have actually placed its students in law firms and companies in full time lucrative jobs.

Unnita Bhattacharya, a 2014 graduate from KIIT Law School, Bhubaneswar signed up for the Diploma course in Entrepreneurship Administration and Business Laws offered by NUJS when she was in the 4th year of her college. Unnita bagged her first job from Innove Law, a Mumbai-based law firm through the recruitment and placement assistance provided by the diploma course.

Unnita has agreed to share her insights how she uses the course in her day to day transactions at her job, where she handles complex investment deals.

Let’s hear what Unnita have to say about the course. Over to Unnita

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When you are in law college and you find every other student going for some certification course, you feel you are lagging behind if you are just pursuing LLB.  Similarly when I was in my fourth year and everyone was pursuing some or the other course, I dug a lot on the internet just to make sure that I don’t end up going for something useless. Then I found this NUJS Business Law diploma course.

I preferred this course over the others because of few reasons:

(a) Course is being provided in association with NUJS, which is one of the reputed law schools in India,

(b) The course has been concentrated on Business laws, something about which I was already determined.

(c) The brief introduction on the practical aspects of law which are not taught in any semester of any law school was really appealing.

Hence, I expected this course won’t be a repetitive of what is being taught in our everyday classes and I definitely now know that it did not disappoint me.

The course at the beginning took me some time to understand especially the way it works. You don’t get to know the usefulness of the course unless you confront a situation which tests you. However, apart from the contents which were provided to me, I feel the webinars were really helpful. Overall, everything was new to me and I had a good experience pursuing this course.

Eventually this course was immensely helpful while I was preparing for job interviews as the course provided me with knowledge which is core practical in nature. The academics and the timely assistance of the course ensured that I do fairly well in each of the interviews, I appeared for.  Not only the course prepared me for the interviews but have provided me the opportunity to get my first job at Innove Law, Mumbai.

After my graduation in law from KIIT Law School, I applied for a six-month long internship at Dhir & Dhir Associates, Delhi where I got an opportunity to work with general corporate, infrastructure and banking & finance team. Although I wanted to pursue my career in corporate law but usually in college, students are not exposed to various fields of corporate law. This six-month long internship not only helped me to decide which field I want to go for but even taught me professionalism, commitment and other interpersonal skills.

Since December 2014, I am working as an Associate with Innove Law, a Mumbai based law firm dealing in private equity & venture capital and  general corporate. Currently I am working on advising few clients in relation to closed loop wallet payment settlement system for an e-commerce platform and import and sale of nicotine in the Indian market.  Apart from that, I have closed a private equity fund raise.

Considering the fact that this is my first job, I believe I have been given an incredibly unique opportunity. Right from 30 million venture capital fund raise to foreign investment advisory, I have had my hand in every kind of work. This way, it allows me think out of the box and a day at work is not at all boring as its giving me a whole new experience almost every day.

When I joined Innove law, the first thing which landed on my plate was a 30 million venture capital fund raise. I was a fresher and I had no experience in dealing with termsheets, shareholders agreement and other related documents. To my relief, I had pursued this course and had idea about them. Apparently, the best part of this course is that I have access to the study materials even after a year of completion.

Even today, whenever I am stuck at work, be it negotiating term sheets or in relation to reviewing of shareholders agreement from a promoter’s perspective, I know where to look at.  The materials provided by this course on fund raising has been immensely useful in my day to day work, where I primarily work on deals related to raising funds and its other related aspects. Other modules are equally knowledge building.

I will highly recommend this course to anyone who wants to learn and willing to spend time on this course. The course is well-organised and gives a better understanding of the various aspects of law.

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