Read Order:IFGL Refractories Ltd. &Anr v. Union of India &Ors
Chahat Varma
New Delhi, October 10, 2023: The Calcutta High Court has recently held that the Explanation to Section 10AA (1) of the Income Tax Act, 1961, inserted by the Finance Act, 2017, with prospective effect, is constitutional.
In the present writ petition, the petitioner had sought a declaration that the Explanation to Section 10AA (1) of the Income Tax Act, inserted by the Finance Act, 2017, with prospective effect, was unconstitutional, alleging a violation of Articles 14, 19(1)(g), and 265 of the Constitution of India. The petitioner also requested a direction to the tax authority to evaluate the petitioner's claim for deduction under Section 10AA of the Income Tax Act, without applying the aforementioned Explanation.
The brief facts of the case were that the IFGL Exports Ltd. had established its unit at Kandla Special Economic Zone, Gujarat, for the manufacture of specialized refractories and commenced operations from May 2012. It allegedly became eligible for claiming exemption under Section 10AA of the Income Tax Act, from the Assessment Year 2013-14 onwards. The effective date of the amalgamation of the petitioner/IFGL Refractories Ltd. with IFGL Exports Ltd., pursuant to the sanctioned Scheme of Amalgamation by the National Company Law Tribunal, Kolkata, was 1st April 2016. Subsequently, the name of IFGL Exports Ltd. was changed to IFGL Refractories Ltd. On 1st April 2018, an Explanation was inserted after Section 10AA (1) of the Income Tax Act, by the Finance Act, 2017, with effect from the aforementioned date, prospectively. Consequently, from the Assessment Year 2018-19 onwards, due to the said Explanation, the petitioner company was deprived of the exemption or the entire exemption that was available to it under Section 10AA of the Income Tax Act, before the insertion of the Explanation. This change affected the utilization of loss from its ineligible unit and brought forward losses to be adjusted with the total income of the unit/undertaking, before the exemption under Section 10AA of the Income Tax Act.
On the other hand, the department had referred to the case of The State Of Himachal Pradesh And Others v. Goel Bus Service Kullu Etc [LQ/SC/2023/33] and argued that tax legislation should not be easily interfered with by the Courts. They emphasized that judicial restraint should be exercised when considering challenges to tax legislation, and interference should only occur if it can be demonstrated and proven that such a taxing statute is manifestly unjust or glaringly unconstitutional.
The single-judge bench of Justice Md. Nizamuddin observed that the Explanation was not introduced to impose any new tax liability on the assessee. Instead, its purpose was to clarify the legal position that already existed under the parent provision of the Income Tax Act.
The bench also observed that, as held in the case of Sivanandan C T And Others v. High Court of Kerala and Others [LQ/SC/2023/848], legitimate expectations cannot impede the authority of a public body in its capacity to formulate policies, which is the foundation of the legislative function of the legislature.
The bench concluded that the principle of legitimate expectation did not apply to the petitioner's case, and the Explanation inserted after Sub-section (1) of Section 10AA of the Income Tax Act, with prospective effect from April 1, 2018, applicable for the assessment year 2018-19 and subsequent years, was constitutional and valid legislation. It was not arbitrary, discriminatory, and did not violate Articles 14, 19, and 265 of the Constitution of India.
Accordingly, the present writ petition was dismissed.
Read Order:M/s Bhagwati Jewellers and Ors v. Directorate of Enforcement and Ors
Chahat Varma
New Delhi, October 10, 2023: The Rajasthan High Court has directed the tax department to release 3773.52 grams of gold bullion that was seized during a search of M/s Bhagwati Jewellers (petitioners), a business engaged in the gold bullion trade.
Briefly stated, the petitioners, had filed the present writ petition, seeking the release of 3773.52 grams of gold bullion, that was seized during a tax department search. They argued that the seized gold was part of their stock in trade and should not have been confiscated. Despite their requests and representations to the tax department, no action was taken. The petitioners sought a court order for the release of the seized gold bullion.
In response to the writ petition, the department raised a preliminary issue, pointing to Section 16 of the Foreign Exchange Management Act, 1999 (FEMA), which outlines the adjudication process for disputes by the Adjudicating Authority. Additionally, Section 19 of the FEMA allows for an appeal to the Appellate Tribunal. The department denied the allegations made in the petition and asserted that all seizure procedures were conducted in accordance with the established legal procedures.
The single-judge bench of Justice Ganesh Ram Meena considered the argument presented by the counsel for the petitioners, which emphasized that the tax department should have first addressed the petitioners' representation. If the petitioners provided a satisfactory explanation, the seized gold bullion should have been released, and the department could have subsequently pursued any necessary action for contravention and penalties under FEMA, following the prescribed legal procedures. Consequently, the bench rejected the preliminary objections regarding the availability of an alternative remedy, raised by the Additional Solicitor General representing the department, deeming it unsustainable.
The bench highlighted that the provisions of Section 37 of FEMA, read with Sections 132 and 132B of the Income Tax Act, along with their proviso clauses, clearly specify that when bullion, jewellery, or other valuable articles or items constitute the stock-in-trade of a business and are discovered during a search, they shall not be seized. Instead, the authorized officer must create a note or inventory of such stock-in-trade. Additionally, if the person concerned submits an application to the Assessing Officer within thirty days from the end of the month in which the asset was seized and provides a satisfactory explanation regarding the nature and source of acquisition of the asset, the Assessing Officer may recover any existing liability from the asset and release the remaining portion, subject to the prior approval of certain designated authorities.
The bench emphasized that, in accordance with the provisions of Section 132B of the Income Tax Act, the tax department was obligated to examine the application and representation submitted by the petitioners on 19.02.2020. These documents contained information about the credentials of the petitioners and explained that the seized gold bullion was part of their stock-in-trade, duly accounted for in their books of accounts. However, the department failed to consider the representation and the accompanying documents provided by the petitioners, and consequently, failed to determine that the seized gold bullion was indeed stock-in-trade.
As a result, the court ordered the department to promptly return the seized gold bullion, which was confiscated during the search.
Read Order: M.R.J. Trading v. The Additional Commissioner of Customs
Chahat Varma
New Delhi, October 10, 2023: In a relief to M.R.J. Trading (petitioner), the Madras High Court has allowed the provisional release of a consignment of black pepper imported from Sri Lanka, which was prohibited under Notification No. 21/2015-2020 dated 25.07.2018 issued by the Directorate General of Foreign Trade.
In the matter at hand, the petitioner, had imported consignments of black pepper from Sri Lanka. The petitioner had declared the value of the black pepper at Rs. 435 per kg. According to Notification No. 21/2015-2020 dated 25.07.2018, black pepper with an import value below Rs. 500 per kg was prohibited.
The counsel for the petitioner argued that although the validity of Notification No. 21/2015-2020 dated 25.07.2018 had been upheld by the Kerala High Court, it was still possible to allow the clearance of the imported black pepper. It was contended that even if it was eventually concluded that import was prohibited under Section 125 of the Customs Act, 1962, there was discretion to allow the goods upon payment of a redemption fine.
The single-judge bench of Justice C. Saravanan noted that the petitioner had an alternate remedy through an appeal before the Appellate Commissioner. However, it was observed that the Appellate Commissioner, as a statutory authority, would be guided by the Board in Circular No. 35/2017-Cus., dated 16.08.2017, bearing reference F.No.394/13/2016-Cus (AS), which left no discretion with the Appellate Commissioner. The said circular, prima facie, contradicted the proviso to Section 151A of the Customs Act. Therefore, it was held that it would not serve any useful purpose to send the petitioner to pursue the remedy before the Appellate Commissioner unless the circular itself was challenged in this Court.
The bench remarked that Circulars issued by the Board are not binding on the Courts, as established by the Supreme Court in the case of Commissioner of Central Excise, Bolpur v. M/s. Ratan Melting & Wire Industries [LQ/SC/2008/2063].
The bench further relied on the case of M/s. AI Qahir International Vs. The Commissioner of Customs and others [LQ/MadHC/2021/18863] and pointed out that there is no requirement for the goods to be absolutely confiscated and vested with the Government. They can be provisionally released under Section 110-A of the Act pending adjudication.
As a result, the bench was inclined to order the provisional release of the imported consignment of black pepper, provided that the petitioner furnished suitable securities in the form of a guarantee and ensured that the consignment met the standards prescribed by the Food Safety Authority under the provisions of the Food Safety and Standards Act, 2006.
The bench further specified that the Customs department should send the sample of the imported consignment of black pepper to approved testing laboratories recognized by the Food Safety Authorities under the Food Safety and Standards Act. If the consignment meets the safety requirements under the said Act, it shall be allowed to be provisionally cleared at Rs.500 per kg, subject to payment of Customs duty, and the petitioner shall provide the necessary security for any potential redemption fine that may be imposed after proper adjudication under Section 125 of the Customs Act.
Accordingly, the present writ petition was disposed of.
Read Order: M/s. Smart Value Homes V. Joint Commissioner and Others
Chahat Varma
New Delhi, October 10, 2023: The Karnataka High Court has ruled in favour of M/s. Smart Value Homes (assessee), stating that Prime Location Charges (PLC) and Floor Rise Charges (FRC) should not be considered as part of the construction cost, and therefore, the assessee was not obligated to pay Karnataka Value Added Tax (KVAT) on these charges.
The present revision petition revolved around the Karnataka Appellate Tribunal's denial of the petitioner's request for a deduction/exemption related to Prime Location Charges.
In this case, the assessee, a private limited company under the Karnataka Value Added Tax Act (KVAT Act), collected PLC/ FRC for flats in prime locations. The assessee argued that it had already paid service tax on PLC/FRC and thus should be exempt from KVAT Act taxes related to these charges. However, the Assistant Commissioner of Commercial Tax rejected this exemption claim, leading to an appeal to the Joint Commissioner of Commercial Taxes, who also upheld the rejection. The Karnataka Appellate Tribunal (KAT) subsequently confirmed this decision. The crux of the revenue's argument was that PLC/FRC falls within the definition of 'works contract' and was therefore taxable under the KVAT Act.
The division bench of Justice P.S. Dinesh Kumar and Justice T.G. Shivashankare Gowda referred to Section 2(37) of the KVAT Act, which defines 'works contract,' and noted that it pertained to actions undertaken for consideration related to building and construction, among other things.
The bench pointed out that the estimated and actual construction costs are determined by the materials used in construction and are not influenced by factors such as the direction of the flat or the view from a particular flat compared to others on the same floor. The PLC/FRC are determined by the preferences of the buyer and should not be considered as part of the construction cost.
The bench concluded that, as per the definition, ‘works contract’ does not encompass preferential location charges. Therefore, the revenue's rejection of the assessee's request to exempt PLC/ FRC from payment of KVAT was not sustainable in law.
Therefore, the substantial questions of law were answered in favour of the assessee and against the revenue.
Read Order: Anaz Abdul Rahiman Kutty and Ors V. State Tax Officer and Ors
Chahat Varma
New Delhi, October 10, 2023: The Kerala High Court has set aside an order that disallowed an input tax credit of Rs. 4,84,448 to a registered dealer under the provisions of the Central Goods and Services Tax Act (CGST Act). The Court noted that the petitioner faced significant challenges during the initial period of the GST regime, and there was merit in the petitioner's submission that he had difficulty understanding the provisions of the GST Act.
In the case at hand, discrepancies were noticed in the monthly return filed by the petitioner, which were communicated to the petitioner through a notice. The petitioner did not file a reply or remit the tax and interest by the due date. An intimation was sent to the petitioner, determining the tax ascertained and payable under Section 73(5) of the Act, along with defects found in the return of the scrutiny. The petitioner was directed to pay the said amount of tax and interest by a specified date, failing which a show cause notice would be issued under Section 73(1). The petitioner had the opportunity to file objections to the intimation but did not do so. Subsequently, a notice under Section 73(1) of the Act along with DRC 01 was issued to the petitioner. However, the petitioner did not provide any documentary proof to support his claim and did not produce the required documents. As a result, the input tax credit claim of the petitioner was disallowed. The Assessing Authority imposed interest, along with a penalty, each under the CGST and SGST. The total tax, interest, and penalty assessed amounted to Rs. 4,84,448.
The single-judge bench of Justice Dinesh Kumar Singh noted that the period involved was 2017-18 when the GST regime was rolled out. It was acknowledged that the petitioner might have faced enormous difficulty in understanding the provisions of the GST Act. It was also submitted that the tax had been paid to the Government. Therefore, it was noted that the Government was not at a loss for which the petitioner's claim for input tax claim had been disallowed.
Thus, considering the aforementioned facts, the impugned order to the extent of disallowing the input tax credit of Rs.4,84,448 was set aside. The petitioner was directed to appear before the State Tax Officer, with all the relevant documents in his possession to support his claim for the input tax credit. It was directed that the State Tax Officer would, after examining the documents and hearing the petitioner, pass fresh orders in accordance with the law.
Read Order: Rajesh Jain v. Ajay Singh
Chahat Varma
New Delhi, October 10, 2023: The Supreme Court has set aside the acquittal of an accused in a cheque bounce case, holding that he had failed to discharge his evidential burden.
The brief background of the case was that Mr. Ajay Singh, the respondent-accused, approached Mr. Rajesh Jain, the appellant-complainant, seeking a loan. Mr. Jain lent a total of Rs. 6 lakhs to Mr. Singh and additional sums subsequently, believing that the money would be repaid with interest as agreed. However, Mr. Singh failed to honour the repayment timeline, and Mr. Jain's attempts to recover the money were unsuccessful. Mr. Singh later issued a post-dated check for Rs. 6,95,204 to partially repay the outstanding debt. When the check was presented, it bounced due to insufficient funds. Consequently, Mr. Jain filed a complaint under Section 138 of the Negotiable Instruments Act (NI Act). The Trial Court found the accused not guilty, and upon reevaluating the evidence, the Punjab and Haryana High Court upheld the acquittal. The High Court stated that the accused had successfully rebutted the statutory presumption raised under Section 139 of the NI Act, shifting the burden of proof to the complainant. However, the complainant failed to demonstrate that the cheque had been issued in connection with a legally enforceable debt.
The division bench of Justice Aravind Kumar and Justice S.V.N. Bhatti observed that as soon as the complainant discharges the burden to prove that the instrument, such as a cheque, was issued by the accused for the discharge of a debt, the presumptive device under Section 139 of the NI Act shifts the burden onto the accused. The effect of this presumption is to transfer the evidential burden onto the accused to prove that the cheque was not received by the bank towards the discharge of any liability. Until this evidential burden was discharged by the accused, the presumed fact had to be taken as true, without expecting the complainant to do anything further.
In the present case, the bench stated that the case set up by the accused was thoroughly riddled with contradictions. It was apparent on the face of the record that there was not the slightest credibility perceivable in the defence set up by the accused.
The bench held that other than some minor inconsistencies, the case of the complainant had been consistent throughout. In fact, the signature on the cheque had not been disputed, and the presumption under Section 118 and 139 had taken effect, satisfying every ingredient necessary for sustaining a conviction under Section 138. The case of the defence had been limited only to the issue of whether the cheque had been issued in discharge of a debt/liability. The accused had miserably failed to discharge his evidential burden, and that fact had been taken to be proved by force of the presumption, without requiring anything more from the complainant.
The bench remarked that the fundamental error in the approach lay in the fact that the High Court had questioned the lack of evidence on the part of the complainant to support his allegation of having extended a loan to the accused, when it should have instead concerned itself with the case set up by the accused and whether he had discharged his evidential burden by proving that there existed no debt/liability at the time of issuance of the cheque.
Thus, with the above observations, the court proceeded to allow the appeal by setting aside the judgment of the High Court of Punjab and Haryana and allowed the complaint filed under Section 138 of the NI Act, and convicted the respondent accused with a fine of twice the amount of the cheque, i.e., Rs. 13,90,408, failing which he shall undergo simple imprisonment for one year.
Read Order: Naresh @ Nehru and Another V. State of Haryana
Chahat Varma
New Delhi, October 10, 2023: In a recent ruling, the Supreme Court has acquitted three men in a murder case, citing flaws in the prosecution's case.
In this case, the prosecution's narrative revolved around an incident, when ASI Ram Kishan received a telephonic tip-off while on patrolling duty. The information indicated that in the village of Maheshwari, some individuals had fired a gunshot at a boy. Upon arrival at the scene, the statement of a person named Mohit, also known as Kala, was recorded. Mohit's statement revealed that around 6:40 pm, he witnessed his cousins, Ajay and Suraj, being chased by three individuals on a Bullet motorcycle. According to Mohit, Ravi was driving the motorcycle, Shoaib Khan was the pillion rider, and an unknown person was sitting behind them. Additionally, two more motorcycles, each with two riders carrying batons, were following the Bullet motorcycle. Mohit alleged that the unknown person on the Bullet motorcycle dismounted and fired a country-made revolver at Ajay, hitting him in the head. Mohit also claimed that Ajay and Suraj had a prior altercation with Ravi on the day of Dulhandi, during which Ravi had threatened to kill them. Based on Mohit's statement, an FIR was registered under Sections 148, 149, 307 of the Indian Penal Code (IPC), and Section 25 of the Arms Act. After Ajay's death, Section 302 of the IPC was substituted in place of Section 307 IPC. The accused individuals were apprehended and subsequently convicted for the offenses by the Sessions Judge on October 6, 2017. This conviction and the sentences were upheld by the Punjab and Haryana High Court in its judgment dated January 9, 2020.
The division bench of Justice S. Ravindra Bhat and Justice Aravind Kumar observed that despite Suraj's presence in the incident, the police did not record Suraj's statement, and he was not even listed as a witness on behalf of the prosecution. This omission represented a critical deficiency in the prosecution's story and raised concerns about the quality of the investigation.
The bench further observed that the prosecution had heavily relied on the statement of Mohit @ Kala (PW-9) as a key witness, and the lower courts had accepted him as the star witness to convict the accused. However, the bench noted that PW-9's testimony was riddled with inconsistencies.
The bench emphasized that the testimony of an eye-witness should be of exceptionally high quality and credibility. It should not only inspire confidence in the court for acceptance but also be presented in a manner that can be taken at face value.
The bench noted that the lower courts had placed reliance on CCTV footage as evidence to convict the appellants and co-accused individuals. However, the bench expressed the view that this evidence should not have been relied upon because it was tainted with significant doubts. Moreover, the manner in which the footage was obtained raised doubts not only about its source but also about the presence of the appellants at the crime scene.
The bench also observed that in the present case, the confessional statements of the accused and co-accused were recorded while they were in police custody. Such statements, according to Sections 25 and 26 of the Evidence Act of 1872, would be inadmissible. Section 25 explicitly states that no confession made to a police officer shall be proved against a person accused of any offense. Similarly, Section 26 deems such statements inadmissible if given while in police custody.
The bench asserted that the prosecution had not successfully proven that the appellants in this case shared a common object with the other members of the alleged unlawful assembly. To convict a person under Section 149 of the IPC, the prosecution must provide evidence that demonstrates two key elements. First, it must establish that the appellants shared a common object and were part of an unlawful assembly. Second, it must prove that they were aware of the offenses likely to be committed to achieve that common object. In this case, both of these crucial elements were conspicuously absent, and there was no evidence linking the appellants to the deceased or the co-accused.
Therefore, the bench concluded that the prosecution had not successfully proven the guilt of the appellants beyond a reasonable doubt. The failure to adequately consider the flaws in the prosecution's case by the Trial Court and the High Court had led to a miscarriage of justice, specifically the conviction of the appellants, which could not be upheld.
As a result, the appeals were allowed, and the judgment passed by the Sessions Court, as affirmed by the Punjab and Haryana High Court, were set aside. The appellants were acquitted of the alleged offences, and they were ordered to be released forthwith.
Read Order: Chandra Pratap Singh v. State of M.P.
Chahat Varma
New Delhi, October 10, 2023: In a recent decision, the Supreme Court has upheld the conviction of a man for destroying evidence in a triple murder case, while setting aside his conviction for murder.
In the present appeal, the appellant had been convicted by the Madhya Pradesh High Court for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (IPC). The appellant was also convicted for the offence punishable under Section 201 of IPC.
The case involved a triple murder of Uma Prasad, Vinod Kumar, and Munau @ Anant Kishore Khare. The incident took place on 2nd June 1987. Vinod Kumar had taken his brother Munau to the village of Naugaon for medical treatment on a scooter. When they didn't return by 5 pm, Uma Prasad Khare, the father of Vinod Kumar and Munau, organized a search for his sons. During the search near the Hanuman temple, they encountered the accused individuals who were armed with firearms, farsa, axe, and ballam. The appellant (accused no.2) and accused no.16 were armed with spears and stopped Uma Prasad, causing him to fall from his bicycle. Subsequently, accused nos. 3, 5, and 7 (who were later acquitted) exhorted the other accused to chop Uma Prasad into pieces. The actual act of assaulting and killing Uma Prasad was attributed to accused no.1 and accused no.14. Furthermore, the appellant and accused no.1 were accused of dragging Uma Prasad's body and disposing of it in a well.
The division bench of Justice Abhay S. Oka and Justice Pankaj Mithal noted that the High Court had committed an error by rendering a judgment on the appellant's conviction without affording the appellant or their advocate an opportunity to be heard. The bench stated that upon realizing that the appellant's appointed advocate was absent, the High Court should have taken the initiative to appoint legal representation to advocate for the appellant's case.
The bench also pointed out that in accordance with Section 386 of the Cr.P.C., Appellate Courts possess wide powers, including the power to modify or add charges under Section 216. However, when the Appellate Court intends to make such alterations or additions that could potentially prejudice the accused, it is imperative to adhere to basic principles of natural justice. It was observed that in the specific context of this case, where the appellant's advocate was absent during the hearing, the High Court should not have altered the charge from Section 302 read with Sections 148 and/or 149 of IPC to a charge under Section 302 read with Section 34 of IPC without notifying the appellant or their advocate. This lack of notice resulted in significant prejudice to the appellant.
The bench also highlighted that according to Section 141 of the IPC, an unlawful assembly must consist of five or more persons. Given that the High Court had upheld the conviction of only four individuals while acquitting all others, it was clear that the essential requirement of an unlawful assembly under Section 141 was not established. Consequently, the charges under Sections 148 and 149 of the IPC were not applicable in this case.
The bench concluded that there was no evidence to establish the presence of a common intention, which is a fundamental requirement for Section 34 of the IPC. In this case, there was no overlap between a common object and a common intention. As a result, the appellant's conviction under Section 302, read with Section 34, had to be set aside.
However, the bench acknowledged that the testimony of two eyewitnesses was highly consistent regarding the appellant's involvement in dragging the deceased's body and disposing of it in a well. Consequently, there was substantial justification for upholding the appellant's conviction for the offence under Section 201 of the IPC, which pertains to causing the disappearance of evidence related to the crime. Therefore, the appellant's conviction and sentence under Section 201 of the IPC had to be upheld.
As a result, the appeal was partially successful. The court decided to set aside the appellant's conviction for the offence punishable under Section 302, read with Section 34 of the IPC. However, the appellant's conviction for the offence punishable under Section 201 of the IPC was upheld and confirmed.
Read Order: In Re: M/s. Adama India Private Limited
Chahat Varma
New Delhi, October 9, 2023: The Gujarat bench of the Appellate Authorities for Advance Ruling has denied Input Tax Credit (ITC) on Corporate Social Responsibility (CSR) activities.
Briefly the facts of the case were that M/s Adama India Private Limited (applicant), a supplier of insecticides, fungicides, and herbicides, had sought an advance ruling regarding the eligibility of ITC for inputs and input services procured for their CSR activities. They contended that their CSR expenses were in compliance with the Companies Act, 2013, and that they intended to claim ITC on the GST charged by their vendors for these inputs. The question revolved around whether these inputs and services could be considered as part of their business activities under Section 16 of the Central Goods and Services Act, 2017 (CGST Act).
The Gujarat Authority for Advance Ruling had issued a ruling, stating that CSR activities, in accordance with the Companies (CSR Policy) Rules, 2014, are considered as activities excluded from the normal course of business of the applicant. Consequently, they were deemed ineligible for ITC under Section 16(1) of the CGST Act.
The two-member bench of Samir Vakil (SGST) andB.V. Siva Naga Kumari (CGST) noted that CSR activities involve the company providing outputs or output services free of cost. These activities are undertaken not with the motive of earning a profit but to fulfil commitments towards society and the environment. Consequently, the expenses incurred in CSR activities cannot be considered as part of or in furtherance of the business. According to Section 2(108) of the CGST Act, a 'taxable supply' is a supply of goods or services or both that is subject to taxation under the Act. Since the appellant's supplies under CSR activities are not subject to GST, and in light of the provisions of Section 17(2) of the CGST Act, input credit cannot be claimed for CSR activities.
The bench also observed that Section 37 of the Income Tax Act, 1961, specifies that any expenses incurred by an assessee on corporate social responsibility activities as defined in Section 135 of the Companies Act, 2013, shall not be treated as an expense incurred for the purposes of the company or profession. This implies that such expenses are not considered business expenditures. Therefore, in cases where expenses do not qualify as business expenditures, ITC cannot be claimed on those expenses.
The bench also cited the agenda of the 48th GST Council Meeting dated 17.12.2022, which noted that the Law Committee, during its meeting held on 5.12.2022, expressed the opinion that ITC should not be allowed in relation to CSR expenditure incurred by companies under Section 135 of the Companies Act, 2013.
In light of the above findings, the bench dismissed the appeal filed by the appellant against the advance ruling of the Gujarat Authority for Advance Ruling.
Read Order: Bhagat Ram Om Prakash Agro Pvt. Ltd. & Anr V. The Commissioner Central Tax GST Delhi- East
Chahat Varma
New Delhi, October 9, 2023: The Delhi High Court has recently stayed a GST search authorized by a Special Judge and has issued notice to the GST Department. The Court raised concerns over whether a Special Judge can order a roving and fishing inquiry under the Goods and Services Tax Act (GST Act).
The stay order comes in response to a writ petition filed by Bhagat Ram Om Prakash Agro Pvt. Ltd. and Prem Shankar Verma, who had been searched by the GST Department on the basis of directions issued by a Special Judge to the Income Tax Department, GST Department, and Enforcement Directorate. The directions were intended to investigate the source of Rs. 50,00,000 received by the petitioners.
The petitioners argued that the search authorization was illegal as the proper officer had no reason to believe that the conditions specified under Section 67(1) of the GST Act were complied with.
The division bench of Justice Vibhu Bakhru and Justice Tara Vitasta Ganju observed that it had serious reservations whether any such roving and fishing inquiry under the GST Act could have been directed to be conducted by the Special Judge. Further, it was noted that the proper officer can authorize the search only if the conditions specified in Section 67 of the Act are fulfilled.
The court directed the GST Department to file a counter affidavit within two weeks.
The matter has now been listed for further hearing on 17.10.2023.
Read Order: M/s. P. Athimoolam Contractor v. The Appellant Authority and Ors
Chahat Varma
New Delhi, October 9, 2023: The Madras High Court has granted relief to M/s. P. Athimoolam Contractor (petitioner) in a GST case, setting aside the order and remitting the case back to the GST authorities for a fresh order.
In the said case, the petitioner, had belatedly paid the tax due for the month of September 2019 and October 2019 along with the returns filed during the month of March in Form GSTR -3B under Rule 61(5) of the Goods and Services Tax Act (GST Act). A further sum of Rs.4,13,222 was also recovered for the same amount, pursuant to the impugned order dated 06.12.2022. The petitioner challenged the impugned order, arguing that they had discharged the tax liability by paying the amount and filing the return in GSTR - 3B for the period March 2020 on 11.11.2020.
The single-judge bench of Justice C. Saravanan, considering the overall facts and circumstances, set aside the impugned order and remitted the case back to pass a fresh order on merits.
The court also directed that the amount recovered directly from the petitioner's bank account on 05.05.2023 be refunded to the petitioner or adjusted subject to the final outcome of the proceedings.
Time for judiciary to introspect and see what can be done to restore people’s faith – Justice Lokur
Justice Madan B Lokur, was a Supreme Court judge from June 2012 to December 2018. He is now a judge of the non-resident panel of the Supreme Court of Fiji. He spoke to LegitQuest on January 25, 2020.
Q: You were a Supreme Court judge for more than 6 years. Do SC judges have their own ups and downs, in the sense that do you have any frustrations about cases, things not working out, the kind of issues that come to you?
A: There are no ups and downs in that sense but sometimes you do get a little upset at the pace of justice delivery. I felt that there were occasions when justice could have been delivered much faster, a case could have been decided much faster than it actually was. (When there is) resistance in that regard normally from the state, from the establishment, then you kind of feel what’s happening, what can I do about it.
Q: So you have had the feeling that the establishment is trying to interfere in the matters?
A: No, not interfering in matters but not giving the necessary importance to some cases. So if something has to be done in four weeks, for example if reply has to be filed within four weeks and they don’t file it in four weeks just because they feel that it doesn’t matter, and it’s ok if we file it within six weeks how does it make a difference. But it does make a difference.
Q: Do you think this attitude is merely a lax attitude or is it an infrastructure related problem?
A: I don’t know. Sometimes on some issues the government or the establishment takes it easy. They don’t realise the urgency. So that’s one. Sometimes there are systemic issues, for example, you may have a case that takes much longer than anticipated and therefore you can’t take up some other case. Then that necessarily has to be adjourned. So these things have to be planned very carefully.
Q: Are there any cases that you have special memories of in terms of your personal experiences while dealing with the case? It might have moved you or it may have made you feel that this case is really important though it may not be considered important by the government or may have escaped the media glare?
A: All the cases that I did with regard to social justice, cases which concern social justice and which concern the environment, I think all of them were important. They gave me some satisfaction, some frustration also, in the sense of time, but I would certainly remember all these cases.
Q: Even though you were at the Supreme Court as a jurist, were there any learning experiences for you that may have surprised you?
A: There were learning experiences, yes. And plenty of them. Every case is a learning experience because you tend to look at the same case with two different perspectives. So every case is a great learning experience. You know how society functions, how the state functions, what is going on in the minds of the people, what is it that has prompted them to come the court. There is a great learning, not only in terms of people and institutions but also in terms of law.
Q: You are a Judge of the Supreme Court of Fiji, though a Non-Resident Judge. How different is it in comparison to being a Judge in India?
A: There are some procedural distinctions. For example, there is a great reliance in Fiji on written submissions and for the oral submissions they give 45 minutes to a side. So the case is over within 1 1/2 hours maximum. That’s not the situation here in India. The number of cases in Fiji are very few. Yes, it’s a small country, with a small number of cases. Cases are very few so it’s only when they have an adequate number of cases that they will have a session and as far as I am aware they do not have more than two or three sessions in a year and the session lasts for maybe about three weeks. So it’s not that the court sits every day or that I have to shift to Fiji. When it is necessary and there are a good number of cases then they will have a session, unlike here. It is then that I am required to go to Fiji for three weeks. The other difference is that in every case that comes to the (Fiji) Supreme Court, even if special leave is not granted, you have to give a detailed judgement which is not the practice here.
Q: There is a lot of backlog in the lower courts in India which creates a problem for the justice delivery system. One reason is definitely shortage of judges. What are the other reasons as to why there is so much backlog of cases in the trial courts?
A: I think case management is absolutely necessary and unless we introduce case management and alternative methods of dispute resolution, we will not be able to solve the problem. I will give you a very recent example about the Muzaffarpur children’s home case (in Bihar) where about 34 girls were systematically raped. There were about 17 or 18 accused persons but the entire trial finished within six months. Now that was only because of the management and the efforts of the trial judge and I think that needs to be studied how he could do it. If he could do such a complex case with so many eyewitnesses and so many accused persons in a short frame of time, I don’t see why other cases cannot be decided within a specified time frame. That’s case management. The second thing is so far as other methods of disposal of cases are concerned, we have had a very good experience in trial courts in Delhi where more than one lakh cases have been disposed of through mediation. So, mediation must be encouraged at the trial level because if you can dispose so many cases you can reduce the workload. For criminal cases, you have Plea Bargaining that has been introduced in 2009 but not put into practice. We did make an attempt in the Tis Hazari Courts. It worked to some extent but after that it fell into disuse. So, plea bargaining can take care of a lot of cases. And there will be certain categories of cases which we need to look at carefully. For example, you have cases of compoundable offences, you have cases where fine is the punishment and not necessarily imprisonment, or maybe it’s imprisonment say one month or two month’s imprisonment. Do we need to actually go through a regular trial for these kind of cases? Can they not be resolved or adjudicated through Plea Bargaining? This will help the system, it will help in Prison Reforms, (prevent) overcrowding in prisons. So there are a lot of avenues available for reducing the backlog. But I think an effort has to be made to resolve all that.
Q: Do you think there are any systemic flaws in the country’s justice system, or the way trial courts work?
A: I don’t think there are any major systemic flaws. It’s just that case management has not been given importance. If case management is given importance, then whatever systematic flaws are existing, they will certainly come down.
Q; And what about technology. Do you think technology can play a role in improving the functioning of the justice delivery system?
I think technology is very important. You are aware of the e-courts project. Now I have been told by many judges and many judicial academies that the e-courts project has brought about sort of a revolution in the trial courts. There is a lot of information that is available for the litigants, judges, lawyers and researchers and if it is put to optimum use or even semi optimum use, it can make a huge difference. Today there are many judges who are using technology and particularly the benefits of the e-courts project is an adjunct to their work. Some studies on how technology can be used or the e-courts project can be used to improve the system will make a huge difference.
Q: What kind of technology would you recommend that courts should have?
A: The work that was assigned to the e-committee I think has been taken care of, if not fully, then largely to the maximum possible extent. Now having done the work you have to try and take advantage of the work that’s been done, find out all the flaws and see how you can rectify it or remove those flaws. For example, we came across a case where 94 adjournments were given in a criminal case. Now why were 94 adjournments given? Somebody needs to study that, so that information is available. And unless you process that information, things will just continue, you will just be collecting information. So as far as I am concerned, the task of collecting information is over. We now need to improve information collection and process available information and that is something I think should be done.
Q: There is a debate going on about the rights of death row convicts. CJI Justice Bobde recently objected to death row convicts filing lot of petitions, making use of every legal remedy available to them. He said the rights of the victim should be given more importance over the rights of the accused. But a lot of legal experts have said that these remedies are available to correct the anomalies, if any, in the justice delivery. Even the Centre has urged the court to adopt a more victim-centric approach. What is your opinion on that?
You see so far as procedures are concerned, when a person knows that s/he is going to die in a few days or a few months, s/he will do everything possible to live. Now you can’t tell a person who has got terminal cancer that there is no point in undergoing chemotherapy because you are going to die anyway. A person is going to fight for her/his life to the maximum extent. So if a person is on death row s/he will do everything possible to survive. You have very exceptional people like Bhagat Singh who are ready to face (the gallows) but that’s why they are exceptional. So an ordinary person will do everything possible (to survive). So if the law permits them to do all this, they will do it.
Q: Do you think law should permit this to death row convicts?
A: That is for the Parliament to decide. The law is there, the Constitution is there. Now if the Parliament chooses not to enact a law which takes into consideration the rights of the victims and the people who are on death row, what can anyone do? You can’t tell a person on death row that listen, if you don’t file a review petition within one week, I will hang you. If you do not file a curative petition within three days, then I will hang you. You also have to look at the frame of mind of a person facing death. Victims certainly, but also the convict.
Q: From the point of jurisprudence, do you think death row convicts’ rights are essential? Or can their rights be done away with?
A: I don’t know you can take away the right of a person fighting for his life but you have to strike a balance somewhere. To say that you must file a review or curative or mercy petition in one week, it’s very difficult. You tell somebody else who is not on a death row that you can file a review petition within 30 days but a person who is on death row you tell him that I will give you only one week, it doesn’t make any sense to me. In fact it should probably be the other way round.
Q: What about capital punishment as a means of punishment itself?
A: There has been a lot of debate and discussion about capital punishment but I think that world over it has now been accepted, more or less, that death penalty has not served the purpose for which it was intended. So, there are very few countries that are executing people. The United States, Saudi Arabia, China, Pakistan also, but it hasn’t brought down the crime rate. And India has been very conservative in imposing the death penalty. I think the last 3-4 executions have happened for the persons who were terrorists. And apart from that there was one from Calcutta who was hanged for rape and murder. But the fact that he was hanged for rape and murder has not deterred people (from committing rape and murder). So the accepted view is that death penalty has not served the purpose. We certainly need to rethink the continuance of capital punishment. On the other hand, if capital punishment is abolished, there might be fake encounter killings or extra judicial killings.
Q: These days there is the psyche among people of ‘instant justice’, like we saw in the case of the Hyderabad vet who was raped and murdered. The four accused in the case were killed in an encounter and the public at large and even politicians hailed it as justice being delivery. Do you think this ‘lynch mob mentality’ reflects people’s lack of faith in the justice system?
A: I think in this particular case about what happened in Telangana, investigation was still going on. About what actually happened there, an enquiry is going on. So no definite conclusions have come out. According to the police these people tried to snatch weapons so they had to be shot. Now it is very difficult to believe, as far as I am concerned, that 10 armed policeman could not overpower four unarmed accused persons. This is very difficult to believe. And assuming one of them happened to have snatched a (cop’s) weapon, maybe he could have been incapacitated but why the other three? So there are a lot of questions that are unanswered. So far as the celebrations are concerned, the people who are celebrating, do they know for certain that they (those killed in the encounter) were the ones who did the crime? How can they be so sure about it? They were not eye witnesses. Even witnesses sometimes make mistakes. This is really not a cause for celebration. Certainly not.
Q: It seems some people are losing their faith in the country’s justice delivery system. How to repose people’s faith in the legal process?
A: You see we again come back to case management and speedy justice. Suppose the Nirbhaya case would have been decided within two or three years, would this (Telangana) incident have happened? One can’t say. The attack on Parliament case was decided in two or three years but that has not wiped out terrorism. There are a lot of factors that go into all this, so there is a need to find ways of improving justice delivery so that you don’t have any extremes – where a case takes 10 years or another extreme where there is instant justice. There has to be something in between, some balance has to be drawn. Now you have that case where Phoolan Devi was gangraped followed by the Behmai massacre. Now this is a case of 1981, it has been 40 years and the trial court has still not delivered a judgement. It’s due any day now, (but) whose fault is that. You have another case in Maharashtra that has been transferred to National Investigating Agency two years after the incident, the Bhima-Koregaon case. Investigation is supposedly not complete after two years also. Whose fault is that? So you have to look at the entire system in a holistic manner. There are many players – the investigation agency is one player, the prosecution is one player, the defence is one player, the justice delivery system is one player. So unless all of them are in a position to coordinate… you cannot blame only the justice delivery system. If the Telangana police was so sure that the persons they have caught are guilty, why did they not file the charge sheet immediately? If they were so sure the charge sheet should have been filed within one day. Why didn’t they do it?
Q: At the trial level, there are many instances of flaws in evidence collection. Do you think the police or whoever the investigators are, do they lack training?
A: Yes they do! The police lacks training. I think there is a recent report that has come out last week which says very few people (in the police) have been trained (to collect evidence).
Q: You think giving proper training to police to prepare a case will make a difference?
A: Yes, it will make a difference.
Q: You have a keen interest in juvenile justice. Unfortunately, a lot of heinous crimes are committed by juveniles. How can we correct that?
A: You see it depends upon what perspective we are looking at. Now these heinous crimes are committed by juveniles. Heinous crimes are committed by adults also, so why pick upon juveniles alone and say something should be done because juveniles are committing heinous crimes. Why is it that people are not saying that something should be done when adults are committing heinous crimes? That’s one perspective. There are a lot of heinous crimes that are committed against juveniles. The number of crimes committed against juveniles or children are much more than the crimes committed by juveniles. How come nobody is talking about that? And the people committing heinous crimes against children are adults. So is it okay to say that the State has imposed death penalty for an offence against the child? So that’s good enough, nothing more needs to be done? I don’t think that’s a valid answer. The establishment must keep in mind the fact that the number of heinous crimes against children are much more than those committed by juveniles. We must shift focus.
Q: Coming to NRC and CAA. Protests have been happening since December last year, the SC is waiting for the Centre’s reply, the Delhi HC has refused to directly intervene. Neither the protesters nor the government is budging. How do we achieve a breakthrough?
A: It is for the government to decide what they want to do. If the government says it is not going to budge, and the people say they are not going to budge, the stalemate could continue forever.
Q: Do you think the CAA and the NRC will have an impact on civil liberties, personal liberties and people’s rights?
A: Yes, and that is one of the reasons why there is protest all over the country. And people have realised that it is going to happen, it is going to have an impact on their lives, on their rights and that’s why they are protesting. So the answer to your question is yes.
Q: Across the world and in India, we are seeing an erosion of the value system upholding rights and liberties. How important is it for the healthy functioning of a country that social justice, people’s liberties, people’s rights are maintained?
A: I think social justice issues, fundamental rights are of prime importance in our country, in any democracy, and the preamble to our Constitution makes it absolutely clear and the judgement of the Supreme Court in Kesavananda Bharati and many other subsequent judgments also make it clear that you cannot change the basic structure of the Constitution. If you cannot do that then obviously you cannot take away some basic democratic rights like freedom of assembly, freedom of movement, you cannot take them away. So if you have to live in a democracy, we have to accept the fact that these rights cannot be taken away. Otherwise there are many countries where there is no democracy. I don’t know whether those people are happy or not happy.
Q: What will happen if in a democracy these rights are controlled by hook or by crook?
A: It depends upon how much they are controlled. If the control is excessive then that is wrong. The Constitution says there must be a reasonable restriction. So reasonable restriction by law is very important.
Q: The way in which the sexual harassment case against Justice Gogoi was handled was pretty controversial. The woman has now been reinstated in the Supreme Court as a staffer. Does this action of the Supreme Court sort of vindicate her?
A: I find this very confusing you know. There is an old joke among lawyers: Lawyer for the petitioner argued before the judge and the judge said you are right; then the lawyer for the respondent argued before the judge and the judge said you’re right; then a third person sitting over there says how can both of them be right and the judge says you’re also right. So this is what has happened in this case. It was found (by the SC committee) that what she said had no substance. And therefore, she was wrong and the accused was right. Now she has been reinstated with back wages and all. I don’t know, I find it very confusing.
Q: Do you think the retirement age of Supreme Court Judges should be raised to 70 years and there should be a fixed tenure?
A: I haven’t thought about it as yet. There are some advantages, there are some disadvantages. (When) You have extended age or life tenure as in the United States, and the Supreme Court has a particular point of view, it will continue for a long time. So in the United States you have liberal judges and conservative judges, so if the number of conservative judges is high then the court will always be conservative. If the number of liberal judges is high, the court will always be liberal. There is this disadvantage but there is also an advantage that if it’s a liberal court and if it is a liberal democracy then it will work for the benefit of the people. But I have not given any serious thought onthis.
Q: Is there any other thing you would like to say?
A: I think the time has come for the judiciary to sit down, introspect and see what can be done, because people have faith in the judiciary. A lot of that faith has been eroded in the last couple of years. So one has to restore that faith and then increase that faith. I think the judiciary definitely needs to introspect.
‘A major issue for startups, especially during fund raising, is their compliance with extant RBI foreign exchange regulations, pricing guidelines, and the Companies Act 2013.’- Aakash Parihar
Aakash Parihar is Partner at Triumvir Law, a firm specializing in M&A, PE/VC, startup advisory, international commercial arbitration, and corporate disputes. He is an alumnus of the National Law School of India University, Bangalore.
How did you come across law as a career? Tell us about what made you decide law as an option.
Growing up in a small town in Madhya Pradesh, wedid not have many options.There you either study to become a doctor or an engineer. As the sheep follows the herd, I too jumped into 11th grade with PCM (Physics, Chemistry and Mathematics).However, shortly after, I came across the Common Law Admission Test (CLAT) and the prospect of law as a career. Being a law aspirant without any background of legal field, I hardly knew anything about the legal profession leave alone the niche areas of corporate lawor dispute resolution. Thereafter, I interacted with students from various law schools in India to understand law as a career and I opted to sit for CLAT. Fortunately, my hard work paid off and I made it to the hallowed National Law School of India University, Bangalore (NSLIU). Joining NLSIU and moving to Bangalorewas an overwhelming experience. However, after a few months, I settled in and became accustomed to the rigorous academic curriculum. Needless to mention that it was an absolute pleasure to study with and from someof the brightest minds in legal academia. NLSIU, Bangalore broadened my perspective about law and provided me with a new set of lenses to comprehend the world around me. Through this newly acquired perspective and a great amount of hard work (which is of course irreplaceable), I was able to procure a job in my fourth year at law school and thus began my journey.
As a lawyer carving a niche for himself, tell us about your professional journey so far. What are the challenges that new lawyers face while starting out in the legal field?
I started my professional journey as an Associate at Samvad Partners, Bangalore, where I primarily worked in the corporate team. Prior to Samvad Partners, through my internship, I had developed an interest towards corporate law,especially the PE/VC and M&A practice area. In the initial years as an associate at Samvad Partners and later at AZB & Partners, Mumbai, I had the opportunity to work on various aspects of corporate law, i.e., from PE/VC and M&A with respect to listed as well as unlisted companies. My work experience at these firms equipped and provided me the know-how to deal with cutting edge transactional lawyering. At this point, it is important to mention that I always had aspirations to join and develop a boutique firm. While I was working at AZB, sometime around March 2019, I got a call from Anubhab, Founder of Triumvir Law, who told me about the great work Triumvir Law was doing in the start-up and emerging companies’ ecosystem in Bangalore. The ambition of the firm aligned with mine,so I took a leap of faith to move to Bangalore to join Triumvir Law.
Anyone who is a first-generation lawyer in the legal industry will agree with my statement that it is never easy to build a firm, that too so early in your career. However, that is precisely the notion that Triumvir Law wanted to disrupt. To provide quality corporate and dispute resolution advisory to clients across India and abroad at an affordable price point.
Once you start your professional journey, you need to apply everything that you learnt in law schoolwith a practical perspective. Therefore, in my opinion, in addition to learning the practical aspects of law, a young lawyer needs to be accustomed with various practices of law before choosing one specific field to practice.
India has been doing reallywell in the field of M&A and PE/VC. Since you specialize in M&A and PE/VC dealmaking, what according to you has been working well for the country in this sphere? What does the future look like?
India is a developing economy, andM&A and PE/VC transactions form the backbone of the same. Since liberalization, there has been an influx of foreign investment in India, and we have seen an exponential rise in PC/VA and M&A deals. Indian investment market growth especially M&A and PE/VC aspects can be attributed to the advent of startup culture in India. The increase in M&A and PE/VC deals require corporate lawyersto handle the legal aspects of these deals.
As a corporate lawyer working in M&A and PE/VC space, my work ranges from drafting term-sheets to the transaction documents (SPA, SSA, SHA, BTA, etc.). TheM&A and PE/VC deal space experienced a slump during the first few months of the pandemic, but since June 2021, there has been a significant growth in M&A and PE/VC deal space in India. The growth and consistence of the M&A and PE/VC deal space in India can be attributed to several factors such as foreign investment, uncapped demands in the Indian market and exceptional performance of Indian startups.
During the pandemic many businesses were shut down but surprisingly many new businesses started, which adapted to the challenges imposed by the pandemic. Since we are in the recovery mode, I think the M&A and PE/VC deal space will reach bigger heights in the comingyears. We as a firm look forward to being part of this recovery mode by being part of the more M&A and PE/VC deals in future.
You also advice start-ups. What are the legal issues or challenges that the start-ups usually face specifically in India? Do these issues/challenges have long-term consequences?
We do a considerable amount of work with startupswhich range from day-to-day legal advisory to transaction documentation during a funding round. In India, we have noticed that a sizeable amount of clientele approach counsels only when there is a default or breach, more often than not in a state of panic. The same principle applies to startups in India, they normally approach us at a stage when they are about to receive investment or are undergoing due diligence. At that point of time, we need to understand their legal issues as well as manage the demands of the investor’s legal team. The majornon-compliances by startups usually involve not maintaining proper agreements, delaying regulatory filings and secretarial compliances, and not focusing on proper corporate governance.
Another major issue for startups, especially during fund raising, is their compliance with extant RBI foreign exchange regulations, pricing guidelines, and the Companies Act 2013. Keeping up with these requirements can be time-consuming for even seasoned lawyers, and we can only imagine how difficult it would be for startups. Startups spend their initial years focusing on fund-raising, marketing, minimum viable products, and scaling their businesses. Legal advice does not usually factor in as a necessity. Our firm aims to help startups even before they get off the ground, and through their initial years of growth. We wanted to be the ones bringing in that change in the legal sector, and we hope to help many more such startups in the future.
In your opinion, are there any specific India-related problems that corporate/ commercial firms face as far as the company laws are concerned? Is there scope for improvement on this front?
The Indian legal system which corporate/commercial firms deal with is a living breathing organism, evolving each year. Due to this evolving nature, we lawyers are always on our toes.From a minor amendment to the Companies Act to the overhaul of the foreign exchange regime by the Reserve Bank of India, each of these changes affect the compliance and regulatory regime of corporates. For instance, when India changed the investment route for countries sharing land border with India,whereby any country sharing land border with India including Hong Kong cannot invest in India without approval of the RBI in consultation with the central government,it impacted a lot of ongoing transactions and we as lawyers had to be the first ones to inform our clients about such a change in the country’s foreign investment policy. In my opinion, there is huge scope of improvement in legal regime in India, I think a stable regulatory and tax regime is the need for the hour so far as the Indian system is concerned. The biggest example of such a market with stable regulatory and tax regime is Singapore, and we must work towards emulating the same.
Your boutique law firm has offices in three different cities — Delhi NCR, Mumbai and Bangalore. Have the Covid-induced restrictions such as WFH affected your firm’s operations? How has your firm adapted to the professional challenges imposed by the pandemic-related lifestyle changes?
We have offices in New Delhi NCR and Mumbai, and our main office is in Bangalore. Before the pandemic, our work schedule involved a fair bit of travelling across these cities. But post the lockdowns we shifted to a hybrid model, and unless absolutely necessary, we usually work from home.
In relation to the professional challenges during the pandemic, I think it was a difficult time for most young professionals. We do acknowledge the fact that our firm survived the pandemic. Our work as lawyers/ law firms also involves client outreach and getting new clients, which was difficult during the lockdowns. We expanded our client outreach through digital means and by conducting webinars, including one with King’s College London on International Treaty Arbitration. Further, we also focused on client outreach and knowledge management during the pandemic to educate and create legal awareness among our clients.
‘It’s a myth that good legal advice comes at prohibitive costs. A lot of heartburn can be avoided if documents are entered into with proper legal advice and with due negotiations.’ – Archana Balasubramanian
Archana Balasubramanian is the founding partner of Agama Law Associates, a Mumbai-based corporate law firm which she started in 2014. She specialises in general corporate commercial transaction and advisory as well as deep sectoral expertise across manufacturing, logistics, media, pharmaceuticals, financial services, shipping, real estate, technology, engineering, infrastructure and health.
August 13, 2021:
Lawyers see companies ill-prepared for conflict, often, in India. When large corporates take a remedial instead of mitigative approach to legal issues – an approach utterly incoherent to both their size and the compliance ecosystem in their sector – it is there where the concept of costs on legal becomes problematic. Pre-dispute management strategy is much more rationalized on the business’ pocket than the costs of going in the red on conflict and compliances.
Corporates often focus on business and let go of backend maintenance of paperwork, raising issues as and when they arise and resolving conflicts / client queries in a manner that will promote dispute avoidance.
Corporate risk and compliance management is yet another elephant in India, which in addition to commercial disputes can be a drain on a company’s resources. It can be clubbed under four major heads – labour, industrial, financial and corporate laws. There are around 20 Central Acts and then specific state-laws by which corporates are governed under these four categories.
Risk and compliance management is also significantly dependent on the sector, size, scale and nature of the business and the activities being carried out.
The woes of a large number of promoters from the ecommerce ecosystem are to do with streamlining systems to navigate legal. India has certain heavily regulated sectors and, like I mentioned earlier, an intricate web of corporate risk and compliance legislation that can result in prohibitive costs in the remedial phase. To tackle the web in the preventive or mitigative phase, start-ups end up lacking the arsenal due to sheer intimidation from legal. Promoters face sectoral risks in sectors which are heavily regulated, risks of heavy penalties and fines under company law or foreign exchange laws, if fund raise is not done in a compliant manner.
It is a myth that good legal advice comes at prohibitive costs. Promoters are quick to sign on the dotted line and approach lawyers with a tick the box approach. A lot of heartburn can be avoided if documents are entered into with proper legal advice and with due negotiations.
Investment contracts, large celebrity endorsement contracts and CXO contracts are some key areas where legal advice should be obtained. Online contracts is also emerging as an important area of concern.
When we talk of scope, arbitration is pretty much a default mechanism at this stage for adjudicating commercial disputes in India, especially given the fixation of timelines for closure of arbitration proceedings in India. The autonomy it allows the parties in dispute to pick a neutral and flexible forum for resolution is substantial. Lower courts being what they are in India, arbitration emerges as the only viable mode of dispute resolution in the Indian commercial context.
The arbitrability of disputes has evolved significantly in the last 10 years. The courts are essentially pro-arbitration when it comes to judging the arbitrability of subject matter and sending matters to arbitration quickly.
The Supreme Court’s ruling in the Vidya Drolia case has significantly clarified the position in respect of tenancy disputes, frauds and consumer disputes. It reflects upon the progressive approach of the court and aims to enable an efficient, autonomous and effective arbitration environment in India.
Law firms stand for ensuring that the law works for business and not against it. Whatever the scope of our mandate, the bottom line is to ensure a risk-free, conflict-free, compliant and prepared enterprise for our client, in a manner that does not intimidate the client or bog them down, regardless of the intricacy of the legal and regulatory web it takes to navigate to get to that end result. Lawyers need to dissect the business of law from the work.
This really involves meticulous, detail-oriented, sheer hard work on the facts, figures, dates and all other countless coordinates of each mandate, repetitively and even to a, so-called, “dull” routine rhythm – with consistent single-mindedness and unflinching resolve.
As a firm, multiply that effort into volumes, most of it against-the-clock given the compliance heavy ecosystem often riddled with uncertainties in a number of jurisdictions. So the same meticulous streamlining of mandate deliverables has to be extrapolated by the management of the firm to the junior most staff.
Further, the process of streamlining itself has to be more dynamic than ever now given the pace at which the new economy, tech-ecosystem, business climate as well as business development processes turn a new leaf.
Finally, but above all, we need to find a way to feel happy, positive and energized together as a team while chasing all of the aforesaid dreams. The competitive timelines and volumes at which a law firm works, this too is a real challenge. But we are happy to face it and evolve as we grow.
We always as a firm operated on the work from anywhere principle. We believed in it and inculcated this through document management processes to the last trainee. This helped us shut shop one day and continue from wherever we are operating.
The team has been regularly meeting online (at least once a day). We have been able to channel the time spent in travelling to and attending meetings in developing our internal knowledge banks further, streamline our processes, and work on integrating various tech to make the practice more cost-effective for our clients.
Right to Disclosure – Importance & Challenges in Criminal Justice System – By Manu Sharma
Personal liberty is the most cherished value of human life which thrives on the anvil of Articles 14 and 21 of the Constitution of India (“the Constitution”). Once a person is named an accused, he faces the spectre of deprivation of his personal liberty and criminal trial. This threat is balanced by Constitutional safeguards which mandate adherence to the rule of law by the investigating agencies as well as the Court. Thus, any procedure which seeks to impinge on personal liberty must also be fair and reasonable. The right to life and personal liberty enshrined under article 21 of the Constitution, expanded in scope post Maneka Gandhi[1], yields the right to a fair trial and fair investigation. Fairness demands disclosure of anything relevant that may be of benefit to an accused. Further, the all-pervading principles of natural justice envisage the right to a fair hearing, which entails the right to a full defence. The right to a fair defence stems from full disclosure. Therefore, the right of an accused to disclosure emanates from this Constitutional philosophy embellished by the principles of natural justice and is codified under the Code of Criminal Procedure, 1973 (“Code”).
Under English jurisprudence, the duty of disclosure is delineated in the Criminal Procedure and Investigations Act, 1996, which provides that the prosecutor must disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused, except if such disclosure undermines public interest.[2] Fairness ordinarily requires that any material held by the prosecution which weakens its case or strengthens that of the defendant, if not relied on as part of its formal case against the defendant, should be disclosed to the defence.[3] The duty of disclosure under common law contemplates disclosure of anything which might assist the defence[4], even if such material was not to be used as evidence[5]. Under Indian criminal jurisprudence, which has borrowed liberally from common law, the duty of disclosure is embodied in sections 170(2), 173, 207 and 208 of the Code, which entail the forwarding of material to the Court and supply of copies thereof to the accused, subject to statutory exceptions.
II. Challenges in Enforcement
The right to disclosure is a salient feature of criminal justice, but its provenance and significance appear to be lost on the Indian criminal justice system. The woes of investigative bias and prosecutorial misconduct threaten to render this right otiose. That is not to say that the right of an accused to disclosure is indefeasible, as certain exceptions are cast in the Code itself, chief among them being public interest immunity under section 173(6). However, it is the mischief of the concept of ‘relied upon’ emerging from section 173(5) of the Code, which is wreaking havoc on the right to disclosure and is the central focus of this article. The rampant misuse of the words “on which the prosecution proposes to rely’ appearing in section 173(5) of the Code, to suppress material favourable to the accused or unfavourable to the prosecution in the garb of ‘un-relied documents’ has clogged criminal courts with avoidable litigation at the very nascent stage of supply of copies of documents under section 207 of the Code. The erosion of the right of an accused to disclosure through such subterfuge is exacerbated by the limited and restrictive validation of this right by criminal Courts. The dominant issues highlighted in the article, which stifle the right to disclosure are; tainted investigation, unscrupulous withholding of material beneficial to the accused by the prosecution, narrow interpretation by Courts of section 207 of the Code, and denial of the right to an accused to bring material on record in the pre-charge stage.
A. Tainted Investigation
Fair investigation is concomitant to the preservation of the right to fair disclosure and fair trial. It envisages collection of all material, irrespective of its inculpatory or exculpatory nature. However, investigation is often vitiated by the tendencies of overzealous investigating officers who detract from the ultimate objective of unearthing truth, with the aim of establishing guilt. Such proclivities result in collecting only incriminating material during investigation or ignoring the material favourable to the accused. This leads to suppression of material and scuttles the right of the accused to disclosure at the very inception. A tainted investigation leads to miscarriage of justice. Fortunately, the Courts are not bereft of power to supervise investigation and ensure that the right of an accused to fair disclosure remains protected. The Magistrate is conferred with wide amplitude of powers under section 156(3) of the Code to monitor investigation, and inheres all such powers which are incidental or implied to ensure proper investigation. This power can be exercised suo moto by the Magistrate at all stages of a criminal proceeding prior to the commencement of trial, so that an innocent person is not wrongly arraigned or a prima facie guilty person is not left out.[6]
B. Suppression of Material
Indian courts commonly witness that the prosecution is partisan while conducting the trial and is invariably driven by the lust for concluding in conviction. Such predisposition impels the prosecution to take advantage by selectively picking up words from the Code and excluding material favouring the accused or negating the prosecution case, with the aid of the concept of ‘relied upon’ within section 173(5) of the Code. However, the power of the prosecution to withhold material is not unbridled as the Constitutional mandate and statutory rights given to an accused place an implied obligation on the prosecution to make fair disclosure.[7] If the prosecution withholds vital evidence from the Court, it is liable to adverse inference flowing from section 114 of the Indian Evidence Act, 1872 (“Evidence Act). The prosecutor is expected to be guided by the Bar Council of India Rules which prescribe that an advocate appearing for the prosecution of a criminal trial shall so conduct the prosecution that it does not lead to conviction of the innocent. The suppression of material capable of establishment of the innocence of the accused shall be scrupulously avoided. [8]
C. Scope of S. 207
The scope of disclosure under section 207 has been the subject of fierce challenge in Indian Courts on account of the prosecution selectively supplying documents under the garb of ‘relied upon’ documents, to the prejudice of the defence of an accused. The earlier judicial trend had been to limit the supply of documents under section 207 of the Code to only those documents which were proposed to be relied upon by the prosecution. This view acquiesced the exclusion of documents which were seized during investigation, but not filed before the Court along with the charge sheet, rendering the right to disclosure a farce. This restrictive sweep fails to reconcile with the objective of a fair trial viz. discovery of truth. The scheme of the code discloses that Courts have been vested with extensive powers inter alia under sections 91, 156(3) and 311 to elicit the truth. Towards the same end, Courts are also empowered under Section 165 of the Evidence Act. Thus, the principle of harmonious construction warrants a more purposive interpretation of section 207 of the code. The Hon’ble Supreme Court expounded on the scope of Section 207 of the Code in the case of Manu Sharma[9] and held that documents submitted to the Magistrate under section 173(5) would deem to include the documents which have to be sent to the magistrate during the course of investigation under section 170(2). A document which has been obtained bona fide and has a bearing on the case of the prosecution should be disclosed to the accused and furnished to him to enable him to prepare a fair defence, particularly when non production or disclosure would affect administration of justice or prejudice the defence of the accused. It is not for the prosecution or the court to comprehend the prejudice that is likely to be caused to the accused. The perception of prejudice is for the accused to develop on reasonable basis.[10] Manu Sharma’s [supra] case has been relied upon in Sasikala [11] wherein it was held that the Court must concede a right to the accused to have access to the documents which were forwarded to the Court but not exhibited by the prosecution as they favoured the accused. These judgments seem more in consonance with the true spirit of fair disclosure and fair trial. However, despite such clear statements of law, courts are grappling with the judicial propensity of deviating from this expansive interpretation and regressing to the concept of relied upon. The same is evident from a recent pronouncement of the Delhi High Court where the ratios laid down in Manu Sharma & Sasikala [supra] were not followed by erroneously distinguishing from those cases.[12] Such “per incuriam” aberrations by High Court not only undermine the supremacy of the Apex Court, but also adversely impact the functioning of the district courts over which they exercise supervisory jurisdiction. Hopefully in future Judges shall be more circumspect and strictly follow the law declared by the Apex Court.
D. Pre-Charge Embargo
Another obstacle encountered in the enforcement of the right to disclosure is the earlier judicial approach to stave off production or consideration of any additional documents not filed alongwith the charge sheet at the pre-charge stage, as the right to file such material was available to the accused only upon the commencement of trial after framing of charge.[13] At the pre-charge stage, Court could not direct the prosecution to furnish copies of other documents[14] It was for the accused to do so during trial or at the time of entering his defence. However, the evolution of law has seen that at the stage of framing charge, Courts can rely upon the material which has been withheld by the prosecutor, even if such material is not part of the charge sheet, but is of such sterling quality demolishing the case of the prosecution.[15] Courts are not handicapped to consider relevant material at the stage of framing charge, which is not relied upon by the prosecution. It is no argument that the accused can ask for the documents withheld at the time of entering his defence.[16] The framing of charge is a serious matter in a criminal trial as it ordains an accused to face a long and arduous trial affecting his liberty. Therefore, the Court must have all relevant material before the stage of framing charge to ascertain if grave suspicion is made out or not. Full disclosure at the stage of section 207 of the code, which immediately precedes discharging or charging an accused, enables an accused to seek a discharge, if the documents, including those not relied upon by the prosecution, create an equally possible view in favour of the accused.[17] On the other hand, delaying the reception of documents postpones the vindication of the accused in an unworthy trial and causes injustice by subjecting him to the trauma of trial. There is no gainsaying that justice delayed is justice denied, therefore, such an approach ought not to receive judicial consent. A timely discharge also travels a long way in saving precious time of the judiciary, which is already overburdened by the burgeoning pendency of cases. Thus, delayed or piecemeal disclosure not only prejudices the defence of the accused, but also protracts the trial and occasions travesty of justice.
III. Duties of the stakeholders in criminal justice system
The foregoing analysis reveals that participation of the investigating agency, the prosecution and the Court is inextricably linked to the enforcement of the right to disclosure. The duties cast on these three stakeholders in the criminal justice system, are critical to the protection of this right. It is incumbent upon the investigating agencies to investigate cases fairly and to place on record all the material irrespective of its implication on the case of prosecution case. Investigation must be carried out with equal alacrity and fairness irrespective of status of accused or complainant.[18] An onerous duty is cast on the prosecution as an independent statutory officer, to conduct the trial with the objective of determination of truth and to ensure that material favourable to the defence is supplied to the accused. Ultimately, it is the overarching duty of the Court to ensure a fair trial towards the administration of justice for all parties. The principles of fair trial require the Court to strike a delicate balance between competing interests in a system of adversarial advocacy. Therefore, the court ought to exercise its power under section 156(3) of the Code to monitor investigation and ensure that all material, including that which enures to the benefit of the accused, is brought on record. Even at the stage of supply of copies of police report and documents under section 207 of the Code, it is the duty of the Court to give effect to the law laid down by the Hon’ble Supreme Court in Manu Sharma (supra) and Sasikala (supra), and ensure that all such material is supplied to the accused irrespective of whether it is “relied upon” by the prosecution or not.
IV. Alternate Remedy
The conundrum of supply of copies under section 207 of the code abounds criminal trials. Fairness is an evolving concept. There is no doubt that disclosure of all material which goes to establish the innocence of an accused is the sine qua non of a fair trial.[19] Effort is evidently underway to expand the concept in alignment with English jurisprudence. In the meanwhile, does the right of an accused to disclosure have another limb to stand on? Section 91 of the Code comes to the rescue of an accused, which confers wide discretionary powers on the Court, independent of section 173 of the Code, to summon the production of things or documents, relevant for the just adjudication of the case. In case the Court is of the opinion that the prosecution has withheld vital, relevant and admissible evidence from the Court, it can legitimately use its power under section 91 of the Code to discover the truth and to do complete justice to the accused.[20]
V. Conclusion
A society’s progress and advancement are judged on many parameters, an important one among them being the manner in which it administers criminal justice. Conversely, the ironic sacrilege of the core virtues of criminal jurisprudence in the temples of justice evinces social decadence. The Indian legislature of the twenty first century has given birth to several draconian statutes which place iron shackles on personal liberty, evoking widespread fear of police abuses and malicious prosecution. These statutes not only entail presumptions which reverse the burden of proof, but also include impediments to the grant of bail. Thus, a very heavy burden to dislodge the prosecution case is imposed on the accused, rendering the right to disclosure of paramount importance. It is the duty of the Court to keep vigil over this Constitutional and statutory right conferred on an accused by repudiating any procedure which prejudices his defence. Notable advancement has been made by the Apex Court in interpreting section 207 of the Code in conformity with the Constitutional mandate, including the right to disclosure. Strict adherence to the afore-noted principles will go a long way in ensuring real and substantial justice. Any departure will not only lead to judicial anarchy, but also further diminish the already dwindling faith of the public in the justice delivery system.
**
Advocate Manu Sharma has been practising at the bar for over sixteen years. He specialises in Criminal Defence. Some of the high profile cases he has represented are – the 2G scam case for former Union minister A Raja; the Religare/Fortis case for Malvinder Singh; Peter Mukerjee in the P Chidambaram/ INX Media case; Devas Multimedia in ISRO corruption act case; Om Prakash Chautala in PMLA case; Aditya Talwar in the aviation scam case; Dilip Ray, former Coal Minister in one of the coal scam cases; Suhaib Illyasi case.
**
Disclaimer: The views or opinions expressed are solely of the author.
[1] Maneka Gandhi and Another v. Union of India, (1978) 1 SCC 248
[2] S. 3 of the Criminal Procedure and Investigations Act, 1996
[3] R v. H and R v. C, 2004 (1) ALL ER 1269
[4] R v. Ward (Judith), (1993) 1 WLR 619 : (1993) 2 ALL ER 577 (CA)
[5] R v. Preston, (1994) 2 AC 130 : (1993) 3 WLR 891 : (1993) 4 ALL ER 638 (HL), R v. Stinchcome,
(1991), 68 C.C.C. (3d) 1 (S.C.C.)
[6] Vinubhai Haribhai Malaviya and Others v. State of Gujarat and Another, 2019 SCC Online SC 1346
[7] Sidhartha Vashishth alias Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1
[8] R. 16, part II, Ch. VI of the Bar Council of India Rules
[9] Manu Sharma, (2010) 6 SCC 1
[10] V.K. Sasikala v. State, (2012) 9 SCC 771 : AIR 2013 SC 613
[11] Sasikala, (2012) 9 SCC 771 : AIR 2013 SC 613
[12] Sala Gupta and Another v. Directorate of Enforcement, (2019) 262 DLT 661
[13] State of Orissa v. Debendra Nath Padhi¸(2005) 1 SCC 568
[14] Dharambir v. Central Bureau of Investigation, ILR (2008) 2 Del 842 : (2008) 148 DLT 289
[15] Nitya Dharmananda alias K. Lenin and Another v. Gopal Sheelum Reddy, (2018) 2 SCC 93
[16] Neelesh Jain v. State of Rajasthan, 2006 Cri LJ 2151
[17] Dilwar Balu Kurane v. State of Maharashtra, (2002) 2 SCC 135, Yogesh alias Sachin Jagdish Joshi v. State of Maharashtra, (2008) 10 SCC 394
[18] Karan Singh v. State of Haryana, (2013) 12 SCC 529
[19] Kanwar Jagat Singh v. Directorate of Enforcement & Anr, (2007) 142 DLT 49
[20] Neelesh, 2006 Cri LJ 2151
Disclaimer: The views or opinions expressed are solely of the author.
Validity & Existence of an Arbitration Clause in an Unstamped Agreement
By Kunal Kumar
January 8, 2024
In a recent ruling, a seven-judge bench of the Supreme Court of India in its judgment in re: Interplay between arbitration agreements under the Arbitration & Conciliation Act 1996 and the Indian Stamp Act 1899, overruled the constitutional bench decision of the Supreme Court of India in N. N. Mercantile Private Limited v. Indo Unique Flame Ltd. & Ors. and has settled the issue concerning the validity and existence of an arbitration clause in an unstamped agreement. (‘N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – III’)
Background to N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – III
One of the first instances concerning the issue of the validity of an unstamped agreement arose in the case of SMS Tea Estate Pvt. Ltd. v. Chandmari Tea Company Pvt. Ltd. In this case, the Hon’ble Apex Court held that if an instrument/document lacks proper stamping, the exercising Court must preclude itself from acting upon it, including the arbitration clause. It further emphasized that it is imperative for the Court to impound such documents/instruments and must accordingly adhere to the prescribed procedure outlined in the Indian Stamp Act 1899.
With the introduction of the 2015 Amendment, Section 11(6A) was inserted in the Arbitration & Conciliation Act 1996 (A&C Act) which stated whilst appointing an arbitrator under the A&C Act, the Court must confine itself to the examination of the existence of an arbitration agreement.
In the case of M/s Duro Felguera S.A. v. M/s Gangavaram Port Limited, the Supreme Court of India made a noteworthy observation, affirming that the legislative intent behind the 2015 Amendment to the A&C Act was necessitated to minimise the Court's involvement during the stage of appointing an arbitrator and that the purpose embodied in Section 11(6A) of A&C Act, deserves due acknowledgement & respect.
In the case of Garware Wall Ropes Ltd. v. Cosatal Marine Constructions & Engineering Ltd., a divisional bench of the Apex Court reaffirmed its previous decision held in SMS Tea Estates (supra) and concluded that the inclusion of an arbitration clause in a contract assumes significance, emphasizing that the agreement transforms into a contract only when it holds legal enforceability. The Apex Court observed that an agreement fails to attain the status of a contract and would not be legally enforceable unless it bears the requisite stamp as mandated under the Indian Stamp Act 1899. Accordingly, the Court concluded that Section 11(6A) read in conjunction with Section 7(2) of the A&C Act and Section 2(h) of the Indian Contract Act 1872, clarified that the existence of an arbitration clause within an agreement is contingent on its legal enforceability and that the 2015 Amendment of the A&C Act to Section 11(6A) had not altered the principles laid out in SMS Tea Estates (supra).
Brief Factual Matrix – N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd.
Indo Unique Flame Ltd. (‘Indo Unique’) was awarded a contract for a coal beneficiation/washing project with Karnataka Power Corporation Ltd. (‘KPCL’). In the course of the project, Indo Unique entered into a subcontract in the form of a Work Order with N.N. Global Mercantile Pvt. Ltd. (‘N.N. Global’) for coal transportation, coal handling and loading. Subsequently, certain disputes arose with KPCL, leading to KPCL invoking Bank Guarantees of Indo Unique under the main contract, after which Indo Unique invoked the Bank Guarantee of N. N. Global as supplied under the Work Order.
Top of FormS
Subsequently, N.N. Global initiated legal proceedings against the cashing of the Bank Guarantee in a Commercial Court. In response thereto, Indo Unique moved an application under Section 8 of the A&C Act, requesting that the Parties to the dispute be referred for arbitration. The Commercial Court dismissed the Section 8 application, citing the unstamped status of the Work Order as one of the grounds. Dissatisfied with the Commercial Court's decision on 18 January 2018, Indo Unique filed a Writ Petition before the High Court of Bombay seeking that the Order passed by the Commercial Court be quashed or set aside. The Hon’ble Bombay High Court on 30 September 2020 allowed the Writ Petition filed by Indo Unique, aggrieved by which, N.N. Global filed a Special Leave Petition before the Supreme Court of India.
N. N. Global Mercantile Pvt. Ltd. v. Indo Unique Flame Ltd. – I
The issue in the matter of M/s N.N. Global Mercantile Pvt. Ltd. v. M/s Indo Unqiue Flame Ltd. & Ors. came up before a three-bench of the Supreme Court of India i.e. in a situation when an underlying contract is not stamped or is insufficiently stamped, as required under the Indian Stamp Act 1899, would that also render the arbitration clause as non-existent and/or unenforceable (‘N.N. Global Mercantile Pvt. Ltd. v. Indo Flame Ltd. – I’).
The Hon’ble Supreme Court of India whilst emphasizing the 'Doctrine of Separability' of an arbitration agreement held that the non-payment of stamp duty on the commercial contract would not invalidate, vitiate, or render the arbitration clause as unenforceable, because the arbitration agreement is considered an independent contract from the main contract, and the existence and/or validity of an arbitration clause is not conditional on the stamping of a contract. The Hon’ble Supreme Court further held that deficiency in stamp duty of a contract is a curable defect and that the deficiency in stamp duty on the work order, would not affect the validity and/or enforceability of the arbitration clause, thus applying the Doctrine of Separability. The arbitration agreement remains valid and enforceable even if the main contract, within which it is embedded, is not admissible in evidence owing to lack of stamping.
The Hon’ble Apex Court, however, considered it appropriate to refer the issue i.e. whether unstamped instrument/document, would also render an arbitration clause as non-existent, unenforceable, to a constitutional bench of five-bench of the Supreme Court.
N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – II
On 25 April 2023, a five-judge bench of the Hon’ble Supreme Court of India in the matter of N. N. Mercantile Private Limited v. Indo Unique Flame Ltd. & Ors. held that (1) An unstamped instrument containing an arbitration agreement cannot be said to be a contract which is enforceable in law within the meaning of Section 2(h) of the Indian Contract Act 1872 and would be void under Section 2(g) of the Indian Contract Act 1872, (2) an unstamped instrument which is not a contract nor enforceable cannot be acted upon unless it is duly stamped, and would not otherwise exist in the eyes of the law, (3) the certified copy of the arbitration agreement produced before a Court, must clearly indicate the stamp duty paid on the instrument, (4) the Court exercising its power in appointing an arbitration under Section 11 of the A&C Act, is required to act in terms of Section 33 and Section 35 of the Indian Stamp Act 1899 (N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – II).
N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – III
A seven-judge bench of the Supreme Court of India on 13 December 2023 in its recent judgment in re: Interplay between arbitration agreements under the Arbitration & Conciliation Act 1996 and the Indian Stamp Act 1899, (1) Agreements lacking proper stamping or inadequately stamped are deemed inadmissible as evidence under Section 35 of the Stamp Act. However, such agreements are not automatically rendered void or unenforceable ab initio; (2) non-stamping or insufficient stamping of a contract is a curable defect, (2) the issue of stamping is not subject to determination under Sections 8 or 11 of the A&C Act by a Court. The concerned Court is only required to assess the prima facie existence of the arbitration agreement, separate from concerns related to stamping, and (3) any objections pertaining to the stamping of the agreement would fall within the jurisdiction of the arbitral tribunal. Accordingly, the decision in N. N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. – II and SMS Tea (supra) was overruled, by the seven-judge bench of the Supreme Court of India.
Kunal is a qualified lawyer with more than nine years of experience and has completed his LL.M. in Dispute Resolution (specialisation in International Commercial Arbitration) from Straus Institute for Dispute Resolution, Pepperdine University, California.
Kunal currently has his own independent practice and specializes in commercial/construction arbitration as well as civil litigation. He has handled several matters relating to Civil Law and arbitrations (both domestic and international) and has appeared before the Supreme Court of India, High Court of Delhi, District Courts of Delhi and various other tribunals.
No Safe Harbour For Google On Trademark Infringement
By Mayank Grover & Pratibha Vyas
October 9, 2023
Innovation, patience, dedication and uniqueness culminate in establishing a distinct identity. A trademark aids in identifying the source and quality, shaping perceptions about the identity's essence. When values accompany a product or service's trademark, safeguarding against misuse and infringement becomes crucial. A recent pronouncement of a Division Bench of the Delhi High Court dated August 10, 2023 in Google LLC v. DRS Logistics (P) Ltd. & Ors. and Google India Private Limited v. DRS Logistics (P) Ltd. & Ors. directed that Google’s use of trademarks as keywords for its Google Ads Programme does amount to ‘use’ in advertising under the Trademarks Act and the benefit of safe harbour would not be available to Google if such keywords infringe on the concerned trademark.
Factual Background
Google LLC manages and operates the Google Search Engine and Ads Programme, while, Google India Private Limited is a subsidiary of Google that has been appointed as a non-exclusive reseller of the Ads Programme in India. The Respondents, DRS Logistics and Agarwal Packers and Movers Pvt. Ltd. are leading packaging, moving and logistics service providers in India.
On 22.12.2011, DRS filed a suit against Google and Just Dial Ltd. under provisions of the Trademarks Act, 1999 (‘TM Act’) inter alia seeking a permanent injunction against Google from permitting third parties from infringing, passing off etc. the relevant trademarks of DRS. The core of the dispute revolved around Google’s Ads Programme. DRS claimed that its trade name 'AGARWAL PACKERS AND MOVERS' is widely recognized and a 'well-known' trademark. Use of DRS’s trademark as a keyword diverts internet traffic from its website to that of its competitors and they were entitled to seek restraint against Google for permitting third parties who are not authorized to use the said trademark. DRS further argued that Google benefits from these trademark infringements. This practice involved charging a higher amount for displaying these ads, constituting an infringement of their trademarks. Whereas, Google contended that the use of the keyword in the Ads Programme does not amount to ‘use’ under the TM Act notwithstanding that the keyword is/or similar to a trademark. Thus, the use of a term as a keyword cannot be construed as an infringement of a trademark under the TM Act, and being an intermediary, it claimed a safe harbour under Section 79 of the Information Technology Act, 2000. (‘IT Act’).
In essence, the dispute between the parties was rooted in DRS’s grievance concerning the Ads Programme. The Learned Single Judge vide judgment dated 30.10.2021interpreted relevant provisions of the TM Act and drew on multiple legal precedents to arrive at the decision that DRS can seek protection of its trademarks which were registered under Section 28 of the TM Act and issued directions to investigate complaints alleging the use of trademark and/or to ascertain whether a sponsored result has an effect of infringing a trademark or passing off.
Being aggrieved, Google LLC and Google Pvt. Ltd. filed appeals before the Division Bench. Google LLC argued that the Single Judge’s findings were erroneous and the directions issued were liable to be set aside. Google India claimed that it doesn’t control and operate the Search Engine and the Ads Programme making it unable to comply with the directions passed in the impugned judgment.
Analysis & Decision of Court
The Division Bench found Single Judge’s rationale for assessing trademark infringement through keywords and meta-tags valid. Meta-tags are a list of words/code in a website, not readily visible to the naked eye. It serves as a tool for indexing the website by a search engine. If a trademark of a third party is used as a meta-tag, the same would serve as identifying the website as relevant to the search query that includes the trademark as a search term. The use of keywords in the Ads Programme also serves similar purpose. The Division Bench was unable to accept that using a trademark as a keyword, even if not visible, would not be considered trademark use under the TM Act.
Google placed heavy reliance on the decisions rendered by Courts across jurisdictions of United Kingdom, United States of America, European Union, Australia, New Zealand, Russia, South Africa, Canada, Spain, Italy, Japan and China; in the cases of Google France SARL and Google Inc. v. Louis Vitton SA & Ors.[1], Interflora Inc. v. Marks & Spencer Plc.[2], and L’Oreal SA v. eBay International AG[3] in support of the contention that the use of trade marks is by the advertiser and not by Google. However, the Division Bench rejected Google’s passive role; highlighting its active involvement in recommending and promoting trademark keywords for higher clicks in its Ads Programme. Division Bench referred to a few judicial decisions rendered in the United States of America that captured the essence of the controversy for perspective, concluding that Google actively promotes and encourages trademarks associated with major goods and services, rather than having a passive role.
It was held that the contention that the use of trademarks as keywords, per se constitutes an infringement of the trademark is unmerited; the assumption that an internet user is merely searching the address of the proprietor of the trademark when he feeds in a search query that may contain a trademark, is erroneous.
The Doctrine of 'Initial Interest Confusion' addresses trademark infringement based on pre-purchase confusion. The doctrine is applied when meta-tags, keywords, or domain names cause initial confusion similar to a registered trademark. If users are misled to access unrelated websites, trademark use in internet advertising may be actionable and reliance was placed on US precedents. Referring to Section 29 of the TM Act, it was directed that Section 29 does not specify the duration for which the confusion lasts but, even if the confusion is for a short duration and an internet user is able to recover from the same, the trade mark would be infringed and would offend Section 29(2) of the TM Act.
It was held that the Ads Programme is a platform for displaying advertisements. Google, being an architect and operator of its own programme makes it an active participant in the use of trademarks and determining the advertisements displayed on search pages. Their use of proprietary software makes them utilize trademarks and control the distribution of information related to potentially infringing links, ultimately leading to revenue maximization. Hence, a substantial link exists between Google LLC and Google India, rendering it impossible for Google India to deny its role in operating the Ads Programme. It was further held that Google sells trademarks as keywords to advertisers and encourages users to use trademarks as keywords for ads. It is contradictory for Google to encourage trademark use while claiming data belongs to third parties for exemption. After 2004, Google changed policies to boost revenue and subsequently, introduced a tool that searches effective terms, including trademarks. Google's active involvement in its advertising business and online nature does not necessarily qualify it for benefits under Section 79 of the IT Act. The Division Bench agreed with the view of the Single Judge that Google would not be eligible for protection of safe harbour under Section 79(1) of the IT Act, if its alleged activities infringe trademarks.
Conclusion
This is a seminal decision governing (and rather, restricting) the operations of intermediaries and redefining the jurisprudence of safe harbour under the IT Act. The decision is well-reasoned and establishes a significant precedent for safeguarding trademarks by uniquely holding Google accountable under its Ads Programme. The same will prevent usage of tradenames as a third-party trademark in keyword search or metatags by advertisers on Google’s search engine. While keywords and meta-tags have different levels of visibility, their purpose is similar i.e. advertising and attracting internet traffic. The use of trademarks as meta-tags by a person who is neither a proprietor of the trademark nor permitted to use the same leads to confusion amongst public at large due to the automated processes of search engines and consequently, constitutes trademark infringement.
About the Authors: Mayank Grover is a Partner and Pratibha Vyas is an Associate at Seraphic Advisors, Advocates & Solicitors
[1] C-236/08 to C-238/08 (2010) [2011] All ER (EC) 41
[2] [2014] EWCA Civ 1403
[3] 2C- 324/09 (2010)
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