articles
Direct Tax
Equalisation levy on non-resident e-commerce facilitators – Analysing ‘amount’ for tax
16 October 2020
The article discusses at length a peculiar issue relating to Equalisation levy on non-resident e-commerce facilitators, regarding the amount on which the such e-commerce facilitators should charge such levy. Analysing the question as to whether the ecommerce operator should calculate the levy on the entire sale value of the goods/services or only on the commission amount, the author observes that the provisions do not provide a clear answer
Banking & Finance, Corporate
Regulating the foreign contribution: Changing regime
14 October 2020
The Foreign Contribution (Regulation) Act, 2010 was enacted to regulate the acceptance and utilization of foreign contribution. Foreign contribution refers to the donation, delivery or transfer of any article, currency or security by any foreign source. With an objective to streamline the provisions under FCRA by enhancing transparency and accountability in the receipt and utilization of foreign contributions, the Foreign Contribution (Regulation) Amendment Bill, 2020 was passed by recently.
Intellectual Property
Inventive step assessment – IPAB elucidates important principles
12 October 2020
The Intellectual Property Appellate Board (‘IPAB’) in a recent order dated 29-09-2020 allowed the appeal filed by Pharmacyclics, LLC challenging the revocation of Indian Patent No. 262968 by the Joint Controller of Patents and Designs, New Delhi following post-grant opposition proceedings initiated by Laurus Labs Pvt. Ltd.; and has set aside the revocation order as being ‘devoid of merit’.
Corporate
Code on Wages, 2019 – An overview
02 October 2020
The Second National Commission on Labour Laws, which submitted its report in June 2002 had recommended that the existing set of labour laws should be broadly divided and grouped into the four groups. Acting on the recommendations, the Union Government has proposed to enact four labour codes, subsuming 29 labour law legislations. The Code on Wages, 2019 (‘Wage Code’) is the first of the lot to get the legislative approval and subsequently, the assent of the President of India on August 8, 2019.
Corporate
Industrial Relations Code, 2020 – An overview
02 October 2020
The Industrial Relations Code, 2020 (“IRC 20”) has been introduced as a part of the labour legislations consolidations, in terms of the recommendation of the Second National Commission on Labour (2002). Accepting their recommendations, the Ministry of Labour and Employment has consolidated labour code in to four labour codes of (i) Industrial Relations (ii) Wages (iii) Social Security (iv) Welfare and Safety.
Corporate
Code on Social Security, 2020 – An overview
02 October 2020
• The purpose of Code on Social Security, 2020 (‘SS Code’) is to amend and consolidate the laws relating to social security with the goal to extend social security to all employees and workers either in the organized or unorganized or any other sectors and for matters connected therewith or incidental thereto.
Corporate
Occupational Safety, Health and Working Conditions Code, 2020 – An overview
02 October 2020
Pursuant to the recommendations of Second National Commission on Labour, the Ministry of Labour and Employment had introduced the Occupational Safety, Health and Working Conditions Code, 2020 (‘OSHW’) Code in the Lok Sabha in order to consolidate and amend the laws regulating the occupational safety, health and working conditions of the persons employed in an establishment.
International Trade & WTO
The ‘Mutuality’ of a mutually agreed solution under the Dispute Settlement Understanding
30 September 2020
The article discusses an interesting proposition which arose in a recent dispute before the WTO’s DSB in the case United States - Tariff Measures on Certain Goods from China (DS543). According to the author, the Panel has clarified that for a solution to be accepted as a mutually agreed solution within the meaning of Article 12.7, the solution must be acceptable to both parties, i.e. should be mutual, and must resolve the issue at hand.
Goods and Services Tax
Tata Motors’ AAR decision: A fix to the age-old strife?
25 September 2020
Employee recoveries have always been a contentious issue, both in pre-GST era and under GST. The article elaborately analysis a recent decision of Maharashtra AAR in the case of Tata Motors, where the Authority has held that the provision of bus facilities by the employer to the employee on a nominal price falls under ‘employer-employee’ relation and is not a ‘supply’. Analysing whether the said ruling will be beneficial for the assessees, the author discusses the effect on other doctrines
Direct Tax
TCS on sale of goods – Practical nightmare
21 September 2020
Sub-section (1H) introduced in Section 206 of the Income-tax Act, 1961 by the Finance Act, 2020, seeks to extend the ambit of Tax Collection at Source (‘TCS’) to consideration received from sale of goods. The article seeks to address certain practical issues that would be faced by tax payers in following the law effective from 1-10-2020. It discusses that the meaning of ‘goods’ must be derived from the Sale of Goods Act and not from…
Corporate
Understanding cross border social security obligations
14 September 2020
The article notes that many countries with which India has SSAs have clarified that the work from home scenarios arising out of COVID-19 would not be considered for determining the eligibility of payment of social security obligations, but in the absence of any clarification from Employees Provident Fund Organisation, there exists an ambiguity on the status of foreign workers who are currently working remotely from their home country…
Intellectual Property
Patents – Patentability with respect to inventive step and proof of right
13 September 2020
In this case [Stempeutics Research Pvt. Ltd. v. The Assistant Controller of Patents & Designs ], the Intellectual Property Appellate Board (‘IPAB’) adjudicated patentability with respect to inventive step under Sections 2(1)(ja) and 3(e) of the Patents Act, 1970 (‘Act’). The IPAB also addressed the issue of submission of proof of right under Section 7(2) of the Act.
Intellectual Property
Trademarks “Your Wings to Life” and “Gives You Wings” are neither deceptively similar nor identical
10 September 2020
In the present case [Red Bull AG v. Dr. Reddy’s Laboratories Limited & Ors. ], the Intellectual Property Appellate Board (“IPAB”), determined whether a registered trademark of a sub-brand, if not in use, can be removed from the trademark register on the request of a non-aggrieved party.
Intellectual Property
Trademarks – Prior use holds precedence over prior registration
10 September 2020
In the present case [Mandom Corp v. Fem Care Pharma Limited & Ors. ], the Intellectual Property Appellate Board (“IPAB”) examined one aspect of the often ambiguous issue in trademark law of prior use versus prior registration. It also clarified certain procedural law principles like res judicata, locus standi, and burden of proof.
International Trade & WTO
Suspension of lesser duty rule by the EU in anti-dumping investigations
28 August 2020
The lesser duty rule may be suspended by the EU if there are distortions of raw materials price. Moreover, as per Article 7(2a), the lesser duty rule can only be suspended when a single raw material for which distortion is found accounts for not less than 17% of the cost of production of the product concerned. After these requirements of Article 7(2a) are met, it still has to go through the rigours of the Union interest test.
Goods and Services Tax
‘Intermediary’ – Mediating required for intermediary
26 August 2020
The article discusses at length the issue as to whether an intermediary suppling service to a foreign customer should discharge CGST+SGST or IGST. The authors are of the view that in such case, the transaction would be covered under Section 13(8)(c) and be deemed as inter-State supply as per Section 7(5)(c). They also state that the Gujarat High Court’s observation in the case of Material Recycling Association of India, that CGST+SGST would be liable in such case, is a mere obiter dicta.
Goods and Services Tax
Contractual payment = Consideration?
26 August 2020
The article elaborately discusses the thin line which a payment needs to cross in order to become a consideration. Discussing the definitions of ‘consideration’ under GST law and Indian Contract Act, 1872, the article states that payment should have a direct and sufficient nexus with the supply and be at the desire of the promisor.
Competition and Antitrust
CCI’s changed approach to enforcement amidst the pandemic
26 August 2020
The Competition Commission of India’s (“CCI”) regular functioning continues to stand suspended amid the COVID-19 pandemic since March 2020. The Indian antitrust regulator however was quick to adapt to the changed circumstances and adopted a modus operandi which allowed for parties to submit merger notifications as well as responses in on-going investigations and new informations online.
Direct Tax
Doctrine of Merger and its application to orders passed under Income Tax Act, 1961
18 August 2020
Doctrine of Merger is not applicable in all scenarios and to all the orders passed under the Income Tax Act. The Courts have been playing a vital role by applying this doctrine on case to case basis to determine whether or not the powers under Section 263 and 154 have been exercised within the time limits prescribed and also in certain cases to determine if the appeals have been filed within the condonable period.