Perspectives on Law

One of the most controversial areas in taxation under the Indian Income Tax Act, 1961 (“the Act”) in recent days has been the Vodafone tax controversy. Several important questions of law in the area of taxation of non-residents – pertaining to both chargeability and machinery provisions – are at issue in the Vodafone controversy. The Bombay High Court in its recent judgment in  Vodafone has commented on the merits of some of these issues (please see  Vodafone International Holdings BV  v.  Union  of  India , WP No. 2550 of 2007 (Bombay High Court) . The case provides a useful backdrop for anchoring the theoretical arguments on the taxation of non-residents. For a detailed discussion of the theoretical arguments, reference may be made to  Geoffrey Loomer, ‘The Vodafone Essar Dispute’ (2009) 21 (1)  National   Law   School  of India Review 89.  In the following couple of posts, I will look at the various arguments on both sides o...

The Bar Council of India has announced that an all India Bar exam will be conducted from now onwards for law graduates who intend to practice in courts and this includes graduates of 2009-2010. The examination will have 100 multiple choice questions from the syllabus prescribed for 3 and 5 year LLB courses and the duration of the exam will be 3 hours 30 minutes. The Bar Council will provide necessary reading material to the applicants and the applicants are allowed to refer to books, notes etc. during the examination.The first exam is going to be conducted on 5th December 2010. The results of this examination will be released on 31st December 2010. The results will only announce if the advocate has passed or failed i.e. it will only inform the person whether he/she is eligible to practice in courts or not and marks or ranks will not be disclosed. Details of the examination, application procudure and schedule (relevant dates) for the graduat...

In my earlier post  I discussed the recent judgment of the Bombay High Court, Harsha Nitin Kokate Vs. The Saraswat Co-op. Bank Limited & Others that gave an elevated status to a nominee u/s. 109A Companies Act. I will now examine provisions in respect of nomination found in laws, such as Insurance, Banking, Co-operative Societies, etc. Though the provisions in respect of nomination, in each statute may be worded differently, the legal position of a nominee has always been accepted to be that of a trustee and nomination is not considered to be a kind of testamentary succession. Since the function of a nominee in respect of a certain property, springs into operation on the death of the person nominating, enormous disputes have arisen between the legal heirs of the deceased on one hand and the nominee on the other, in respect of such property. Let us see the provisions in respect of nomination in areas other than Company Law. INSURANCE: The first of these disputes ...

The Hon'ble Bombay High Court in its very recent decision, Harsha Nitin Kokate Vs. The Saraswat Co-op. Bank Limited & Others , held that position of a nominee under section 109A of the Companies Act is not merely that of a trustee for the estate of the deceased, and it further held that, "  on the death of the share holder, the nominee would become entitled to all rights in the shares to the exclusion of all other persons ." This means that, the nominee will be made the beneficial  owner thereof and all the rights incidental to ownership of shares would follow i.e. the right to transfer, pledge or hold the shares. The court based its decision on the express provisions of the section which provide as follows: ­S. 109A. Nomination of shares – (1) Every holder of shares in, or holder of debentures of a company may, at any time, nominate, in the prescribed manner, a person to whom his shares in or debentures of,...

Access earlies posts on this dicussion here and here . Argument 3: Comparison to UNCITRAL Model Law The arbitration act has adopted the UNCITRAL Model Law on International Commercial Arbitration. However, the Arbitration and Conciliation Act, 1996, has made some departures from the Model Law. One such departure, relevant to the present dispute is the use of term "Chief Justice" instead of "Court" in Sec. 11. Article 11 of the Model Law which is the corresponding provision to Section 11 of the Act, reads as follows: “…2. The parties are free to agree on a procedure of appointing the arbitrator or arbitrators, subject to the provisions of paragraphs (4) and (5) of this article. 3. Failing such agreement, (a) in an arbitration with three arbitrators, each party shall appoint one arbitrator, and the two arbitrators thus appointed shall appoint the third arbitrator; if a party fails to appoint the arbitrator within thirty days of receipt of a request to do s...

I write this post in continuation to an earlier post which introduces the question - whether the decision of the Chief Justice in appointing an arbitrator is a judicial or administrative order? The earlier post may be accessed here. Unlike other issues, where I discuss arguments from one side completely and then the other, for this issue, I would address each argument and its counter argument at the same time. Argument 1: Purpose of Highest Judicial Authority. The major thrust by the majority in the Patel Engineering Case , was that, when a statute confers a power or imposes a duty on the highest judicial authority in the State or in the country, and has made its decision final on matters its decides, then that decision cannot be purely administrative and that the authority has to act judicially. Honb'le C.K Thakker J. gave a dissenting opinion on this argument, and explained that the purpose of selecting the Chief Justice and in conferring upon him the...

In my earlier post , I proposed an argument that, being a remedial statute, the PWDV Act may be applied retrospectively. In this post, I propose an argument based on the wordings/language of the PWDV Act. Though the inhibition against retrospective construction has been applied with less insistence in case of remedial statutes, there is no such rule that all benevolent measures are retrospective. ( G.P Singh, Interpretation of Statutes .) Thus, I present another argument in favour of the retrospective application of the Act. The Supreme Court made an interesting observation in T.K. Lakshmana v. State of Madras , AIR 1968 SC 1489. It held that Section 44-B (2)(a)(i) Madras Hindu Religious Endowments Act, 1926, applies retrospectively because of the use of the words 'has made,' 'has failed,' 'has ceased,' 'has become,' as these words are capable of denoting events happening before or after coming into force of the statute.  Similarly, under the PWDV Ac...

Amongst the many conflicting decisions arising out the application of Protection of Women Against Domestic Violence Act, one of them, is in respect of the operation of the Act. The Andhra Pradesh High Court held that the PWDV Act does not apply retrospectively and that an action under the Act can lie only if the acts of domestic violence are committed on or after 26 Oct 2006, i.e. the date on which the Act came into force. Similarly, a Delhi Metropolitan Court  and a JMFC in Goa also took the view that this Act will not be applicable if the acts complained of have been committed prior to the passing of the Act. On the other hand the Bombay High Court and Madras High Court have taken a different view. They held that, the court is competent to take cognizance of the act of domestic violence committed even prior to the Act came into force and pass necessary protection orders. The Act can be applied retrospectively to take cognizance of the ac...

Section 11 of the Arbitration and Conciliation Act, 1996 governs the law relating to Appointment of Arbitrators. It provides that, if the parties fail to appoint an arbitrator or when the two appointed arbitrators fail to decide upon the third arbitrator, then the appointment shall be made by the Chief Justice or any person or institutition designated by him. This provision, empowering the Chief Justice to appoint an arbitrator gave rise to the question whether the order passed by the Chief Justice in appointing an arbitrator is an administrative or a judicial order. Until the Judgment of the Hon'ble Supreme Court in S.B.P. and Co. v. Patel Engineering Ltd. and Anr , the position that prevailed was that the order is an 'administrative order.' However, the SC in  Patel Engineering overruled Konkan Railway Corporation Ltd. and Anr. v. Rani Construction Pvt. Ltd . to hold that, the power exercised by Chief Justice of High Court or India under Section 11of the Arbitr...