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Our attorneys and specialists remain up-to-date with the latest legal developments and offer their perspectives and critical commentary.

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Direct Tax

Deemed application provision causes uncertainties for donation aggregators

26 五月 2023

Charitable entities set up for different charitable causes such as education, yoga, relief of poor, medical relief, advancement of any general public utility etc., receive a tax-exempt status under Section 10(23C) and Section 11 of the Income-tax Act, 1961 (‘Act’). As per Section 11 of the Act, the trusts or charitable institutions are subject to following conditions to obtain tax exemption:

Arbitration

Arbitration agreement, which is part of an unstamped contract, has no existence

25 五月 2023

The Constitutional Bench of the Supreme Court has held that arbitration cannot be invoked when the arbitration agreement or clause is contained in an unstamped or insufficiently stamped agreement or contract. According to the authors, even though this issue arises at the preliminary stage of the arbitration, the Apex Court had ordered to ensure sufficient stamping of the instruments.

Intellectual Property

De-blurring Section 59 of the Indian Patents Act 1970

23 五月 2023

The article examines a recent decision of the Delhi High Court, where the High Court has redefined the boundaries of permissible claim amendments for overcoming the objections on non-patentability especially Section 3(i) of the Patents Act, 1970, without jeopardizing the requirements of Section 59. The primary focus of this article is on the interpretation of Section 3(i) and Section 59 of the Act as provided by the High Court

Goods and Services Tax

Eligibility of Input Tax Credit vis-à-vis inherent loss of inputs during manufacture

22 五月 2023

The Madras High Court recently in the case of Eastman Exports Global Clothing, settled an interesting question of law pertaining to the reversal of Input Tax Credit on the loss of inputs which is inherent to the process of manufacturing. Although the judgment pertains to the treatment of manufacturing loss under Section 19(9)(iii) of the Tamil Nadu VAT Act, the principle enunciated by the Court is very helpful in determining the entitlement of ITC vis-à-vis Section 17(5)(h) of the CGST Act.

International Trade & WTO

Anti-dumping duty – CESTAT establishes important jurisprudence on commercial quantities

02 五月 2023

The article analyses a recent CESTAT decision relating to the threshold for considering a product within the scope of the product under consideration (‘PUC’) in anti-dumping investigations. The Hon’ble CESTAT has held that mere production of a product is not enough for it to be included in the scope of the PUC; the domestic industry must show that it has catered to a certain amount of demand for that product for it to be included. The article in this regard notes that ...

Goods and Services Tax

Withholding Income Tax: Withholding the ambiguity in GST Valuation?

28 四月 2023

The article highlights the intricacies of TDS withholding, under the income tax provisions, which appear to impact the taxable value under GST in case of import of services. The moot question is whether the taxable value for discharging GST should be confined only to the contractual payment qua the foreign service provider or the amount of TDS, paid by the Indian service recipient as additional statutory obligation, should also be added. Analysing various Court and Tribunal decisions, the...

Insolvency

Interest as part of Operational Debt: A conundrum

25 四月 2023

While the inclusion of interest amounts in ‘financial debt’, for the purposes of the Insolvency and Bankruptcy Code, 2016, is clearly provided for, the interest component in the case of ‘operational debt’ has always been a point of contention. Pointing out that there appears to be a deliberate difference in the language used for both terms – ‘financial debt’ and ‘operational debt’, the article also discusses many specific judgments of NCLT and NCLAT, delivered on the aforesaid quandary.

Direct Tax

Navigating the exemption labyrinth – Pitfalls in the way of charitable institutes

19 四月 2023

Considering the changing landscape of the exemption regime, right from Finance Act, 2014 till the recent Finance Act, 2023, the article notes that the provisions relating to the exemption regimes under Sections 10(23C) and 11 of the Income Tax Act have undergone wide-ranging changes having an impact on nearly every aspect associated with the operation of charitable institutes, resulting in a situation where a mere procedural lapse can have far reaching consequences.

Intellectual Property

Patentability of Selection Inventions – Analysis of recent Delhi High Court decisions

18 四月 2023

The article analyses two decisions of the Delhi High Court which have adjudicated patentability of the species patent with respect to the genus patent. The Court in one of the case disapproved the existence of dichotomy between ‘coverage’ and ‘disclosure’, and stated that when a product is covered in the genus patent, the specific disclosure of the same is immaterial. However, the Court in a different decision acknowledged the distinction between ‘coverage’ and ‘disclosure’ ...

International Trade & WTO

Is export restraint a countervailable subsidy? – Strict to liberal approach

03 四月 2023

The article discusses as to whether government action in the form of an export restraint on the export of a product results in a subsidy to the domestic producers of downstream products. It elaborately analysis WTO Panel report in United States - Measures treating export restraints as subsidies and the Appellate Body report in the dispute United States- Countervailing duty investigation on dynamic random-access memory semiconductors (‘DRAMS’) from Korea, and discuss how the trade authorities...

Goods and Services Tax

Dry lease of aircrafts under GST: A classification conundrum

30 三月 2023

The article discusses elaborately the problems of classification and rate of GST in case of dry leasing of an aircraft. In respect of classification, the authors note that there is no specific mention of aircrafts under the Explanatory Notes to sub-heading 997311 or under the residuary entry 997319, though the Service Code 7311 of the UNCPC provides for transport equipment and specifically includes aircrafts. For rate of tax, the authors note that though it can be argued...

Securities Laws

Fund raising challenges of startups under the Companies Act

27 三月 2023

The article discusses a recent decision of the Registrar of Companies, NCT of Delhi and Haryana relating to Section 42 of the Companies Act, 2013 (private placement of shares). The Adjudicating Officer has in this decision observed that the provision requires that the company should adhere to the limit of 200 persons not just with respect to the number of persons who ultimately subscribe to the securities of the company, but also that this limit cannot be exceeded at the time of making an offer

Regulatory

Digital India Act: Evolving clarity & challenges

27 三月 2023

The Digital India Act (DIA) is set to replace the Information Technology Act, 2000 (IT Act) on account of a transformed internet landscape today, with significant internet penetration, multiple intermediaries operating across the internet and complex forms of user harms. The article hence discusses the glimpse into the Digital India Act, as presented recently by the Minister of State for Electronics & Information Technology. The authors in this regard discuss how the DIA lays importance...

Direct Tax

Tax on ‘Cash’ benefits and perquisites – Applicability on waiver of debts

22 三月 2023

Amongst various tax amendment proposals announced this year, proposal for taxing ‘cash’ benefits and perquisites is likely to have a wide-reaching impact on the taxpayers, especially in the context of waiver of debts due from a corporate debtor. More than the corporate debtor, the amendment may prove to be burdensome for the lender waiving such debts due to withholding tax liability imposed upon such lender. The article aims to discuss the proposed amendment and its impact.

Intellectual Property

A ray of hope: Delhi High Court allows amending method claims to product claims

16 三月 2023

The article discusses a landmark Judgement passed by the Delhi High Court in the matter of Allergan Inc v. Controller of Patents. With this judgement, the Court has allowed amendments made by the Appellant for converting the method of treatment claims to product claims. Capturing the facts of the case, the appeal proceedings, and the decision including the essence of the order, the authors conclude that the present order will serve to be a significant milestone in patent prosecution in India.

International Trade & WTO

Retrospective amendments to Tribunal’s appellate jurisdiction under trade remedy laws: To be or not to be!

03 三月 2023

The retrospective amendments proposed by the Finance Bill, 2023 to Section 9C and other related provisions of the Customs Tariff Act, 1975 have tried to resolve the dispute regarding powers of the CESTAT to entertain appeals against the Ministry of Finance’s refusal to impose trade remedy measures despite positive recommendations from the DGTR. The article traces the background of the issue, the previous jurisprudence, the recent amendments proposed, and concludes with some comments.

Corporate

Energy Conservation (Amendment) Act, 2022: An overview

27 二月 2023

In the backdrop of India’s commitments made in the UN Climate Change Conference in 2021, the Central Government has recently enacted the Energy Conservation (Amendment) Act, 2022 (‘Amendment Act’) to amend the two decades old Energy Conservation Act, 2001. The move aims to strengthen the regulatory framework on energy consumption and promote energy efficiency in the country. The article highlights the significant features...

Goods and Services Tax

Classification of indigenous ‘Rab’ prepared from sugar cane: The final decision

23 二月 2023

The issue of classification of the product ‘Rab’ (semi-solid sugarcane juice) and applicable rate of tax on its supply has been a subject matter of dispute for a long time. The article intends to highlight the divergent practices followed by the industry and analyse if the CBIC Circular No. 189/01/2023-GST, dated 13 January 2023 has resolved the issue in entirety. Elaborately analysing the issues and concerns...

Intellectual Property

Assessment of the inventive step in India

16 二月 2023

The article examines a Delhi High Court decision against an order passed by the Controller of Patents and Designs refusing the grant of the patent application for lacking inventive step. It further highlights the fundamental principles discussed by the High Court for analysis of an ‘inventive step’ in India. The article notes how the High Court discussed the various approaches available for determining the inventive step which were followed across various jurisdictions...

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