articles
Direct Tax
Navigating the exemption labyrinth – Pitfalls in the way of charitable institutes
19 April 2023
Considering the changing landscape of the exemption regime, right from Finance Act, 2014 till the recent Finance Act, 2023, the article notes that the provisions relating to the exemption regimes under Sections 10(23C) and 11 of the Income Tax Act have undergone wide-ranging changes having an impact on nearly every aspect associated with the operation of charitable institutes, resulting in a situation where a mere procedural lapse can have far reaching consequences.
Intellectual Property
Patentability of Selection Inventions – Analysis of recent Delhi High Court decisions
18 April 2023
The article analyses two decisions of the Delhi High Court which have adjudicated patentability of the species patent with respect to the genus patent. The Court in one of the case disapproved the existence of dichotomy between ‘coverage’ and ‘disclosure’, and stated that when a product is covered in the genus patent, the specific disclosure of the same is immaterial. However, the Court in a different decision acknowledged the distinction between ‘coverage’ and ‘disclosure’ ...
International Trade & WTO
Is export restraint a countervailable subsidy? – Strict to liberal approach
03 April 2023
The article discusses as to whether government action in the form of an export restraint on the export of a product results in a subsidy to the domestic producers of downstream products. It elaborately analysis WTO Panel report in United States - Measures treating export restraints as subsidies and the Appellate Body report in the dispute United States- Countervailing duty investigation on dynamic random-access memory semiconductors (‘DRAMS’) from Korea, and discuss how the trade authorities...
Goods and Services Tax
Dry lease of aircrafts under GST: A classification conundrum
30 March 2023
The article discusses elaborately the problems of classification and rate of GST in case of dry leasing of an aircraft. In respect of classification, the authors note that there is no specific mention of aircrafts under the Explanatory Notes to sub-heading 997311 or under the residuary entry 997319, though the Service Code 7311 of the UNCPC provides for transport equipment and specifically includes aircrafts. For rate of tax, the authors note that though it can be argued...
Securities Laws
Fund raising challenges of startups under the Companies Act
27 March 2023
The article discusses a recent decision of the Registrar of Companies, NCT of Delhi and Haryana relating to Section 42 of the Companies Act, 2013 (private placement of shares). The Adjudicating Officer has in this decision observed that the provision requires that the company should adhere to the limit of 200 persons not just with respect to the number of persons who ultimately subscribe to the securities of the company, but also that this limit cannot be exceeded at the time of making an offer
Regulatory
Digital India Act: Evolving clarity & challenges
27 March 2023
The Digital India Act (DIA) is set to replace the Information Technology Act, 2000 (IT Act) on account of a transformed internet landscape today, with significant internet penetration, multiple intermediaries operating across the internet and complex forms of user harms. The article hence discusses the glimpse into the Digital India Act, as presented recently by the Minister of State for Electronics & Information Technology. The authors in this regard discuss how the DIA lays importance...
Direct Tax
Tax on ‘Cash’ benefits and perquisites – Applicability on waiver of debts
22 March 2023
Amongst various tax amendment proposals announced this year, proposal for taxing ‘cash’ benefits and perquisites is likely to have a wide-reaching impact on the taxpayers, especially in the context of waiver of debts due from a corporate debtor. More than the corporate debtor, the amendment may prove to be burdensome for the lender waiving such debts due to withholding tax liability imposed upon such lender. The article aims to discuss the proposed amendment and its impact.
Intellectual Property
A ray of hope: Delhi High Court allows amending method claims to product claims
16 March 2023
The article discusses a landmark Judgement passed by the Delhi High Court in the matter of Allergan Inc v. Controller of Patents. With this judgement, the Court has allowed amendments made by the Appellant for converting the method of treatment claims to product claims. Capturing the facts of the case, the appeal proceedings, and the decision including the essence of the order, the authors conclude that the present order will serve to be a significant milestone in patent prosecution in India.
International Trade & WTO
Retrospective amendments to Tribunal’s appellate jurisdiction under trade remedy laws: To be or not to be!
03 March 2023
The retrospective amendments proposed by the Finance Bill, 2023 to Section 9C and other related provisions of the Customs Tariff Act, 1975 have tried to resolve the dispute regarding powers of the CESTAT to entertain appeals against the Ministry of Finance’s refusal to impose trade remedy measures despite positive recommendations from the DGTR. The article traces the background of the issue, the previous jurisprudence, the recent amendments proposed, and concludes with some comments.
Corporate
Energy Conservation (Amendment) Act, 2022: An overview
27 February 2023
In the backdrop of India’s commitments made in the UN Climate Change Conference in 2021, the Central Government has recently enacted the Energy Conservation (Amendment) Act, 2022 (‘Amendment Act’) to amend the two decades old Energy Conservation Act, 2001. The move aims to strengthen the regulatory framework on energy consumption and promote energy efficiency in the country. The article highlights the significant features...
Goods and Services Tax
Classification of indigenous ‘Rab’ prepared from sugar cane: The final decision
23 February 2023
The issue of classification of the product ‘Rab’ (semi-solid sugarcane juice) and applicable rate of tax on its supply has been a subject matter of dispute for a long time. The article intends to highlight the divergent practices followed by the industry and analyse if the CBIC Circular No. 189/01/2023-GST, dated 13 January 2023 has resolved the issue in entirety. Elaborately analysing the issues and concerns...
Intellectual Property
Assessment of the inventive step in India
16 February 2023
The article examines a Delhi High Court decision against an order passed by the Controller of Patents and Designs refusing the grant of the patent application for lacking inventive step. It further highlights the fundamental principles discussed by the High Court for analysis of an ‘inventive step’ in India. The article notes how the High Court discussed the various approaches available for determining the inventive step which were followed across various jurisdictions...
Intellectual Property
Do the trademarks provisions permit registrar to transfer pending petitions to IPD of the Court?
16 February 2023
The article discusses a Delhi High Court decision where one of the questions that came up before the IPD, Delhi was whether the Trade Marks Registry can transfer pending rectification/cancellation petitions to the IPD of the respective Hon’ble High Court. The Court observed that if the court thinks it is necessary to consolidate and hear together all the matters related to the same or related subject matter before the IPD, it may direct so.
Direct Tax
Taxation of unexempt income of Public Charitable Trusts
15 February 2023
Income derived from Trust property has been exempt under Income-tax laws since the Act of 1886. Tracing the legislative history in respect of income from property held under trust, the author examines amendments made by Finance Act, 1970; Taxation Laws (Amendment) Act, 1975; Finance Act, 1983; and Finance Act, 2022, the author concludes that the present iteration of Section 13(1)(c) / Section 13(1)(d) makes it evident that ...
International Trade & WTO
Arresting the distortion – The EU Commission way
01 February 2023
The article elaborately analyses the recent imposition of definitive anti-dumping duty by the European Union on imports of fatty acid originating from Indonesia. The article tries to decode how the EU Anti-dumping Regulation deals with cases where the raw material prices are distorted and how the Commission in the present case implemented the said Regulations.
Goods and Services Tax
‘Value addition’ in Value Addition Tax: Extension of limitation period
25 January 2023
Post introduction of GST, the State Governments of Kerala, Gujarat and Telangana have amended their VAT laws with the objective of enhancing the limitation period in different forms. The said extension of limitation period needs to be tested on the touchstone of the Indian Constitution i.e., whether the States continued to possess ‘power’ under the Constitution to levy and administer VAT with the advent of GST law.
Direct Tax
Penalty under Sections 221 & 271C for non-deduction/ short deduction of tax at source
24 January 2023
The article deals with a peculiar issue of simultaneous applicability of two penal provisions being Sections 221 and 271C of the Income Tax Act, 1961, which may be fastened on the assessee for non-deduction/ short deduction of tax at source. The authors for this purpose consider the relevant provisions, applicability of Rule of Double Jeopardy and various judicial precedents on applicability of two penalty provisions for the short deduction of TDS.
Corporate
E-waste (Management) Rules, 2022 – An analysis
19 January 2023
The new Rules will come into force on 1 April 2023 and will introduce recycling targets in the extended producer responsibility (‘EPR’) plan of the producers of e-waste. The article elaborately discusses major changes and the widened scope as compared to the earlier 2016 Rules. The authors discuss the registration requirements, reduction of compliances on bulk consumers, introduction of recycling certificate, introduction of refurbishing certificate and deferred liability, and penal provisions
Intellectual Property
Divisional Applications in India: Part II
18 January 2023
The article further discusses the evolving law around Divisional Applications in India. Analysing two decisions of the IPAB and one of the Delhi High Court, the article notes that the requirement that the claims of a divisional application have to be based on, more particularly, to have their route, or to be gleaned from, or clearly exist in, the claims of the parent application, appears to be a unique one and such a requirement is not seen in other major jurisdictions, such as Europe or USA.