Tuesday, December 15, 2009

CCD HIGHLIGHTS ISSUE Dt.15.12.2009 Volume 24 Part 8










Analysis of DIPP's Press Notes Nos. 2, 3 and 4 of 2009-Amit Kumar and Vinay V. Mishra, Gujarat National Law University, Gujarat

Foreign investment is one sector which has always been looked at with critical eyes. It is governed by a combination of the prevailing foreign investment policy of the Government of India, the Foreign Exchange Management Act, 1999 and regulations and notifications issued by the Reserve Bank of India, under the FEMA.


The 2009 Press Notes Nos. 2, 3 and 4 changed the scenario and method by which foreign investment is calculated for downstream investment of foreign companies. This has given rise to various confusions and still requires clarifications as to the exact intent of the policy. There is both support for and opposition to the policy. Whatever may be the situation, these press notes have created an entirely new environment for foreign investment.


This article attempts an analysis of the same by comparing the previous and present position with some recent examples. P. 618


Find out answers to your queries on the following subjects:


Claim of deduction under sections 80DD and 80U -- certificate required from medical authority P. 626


FBT on expenses reimbursed by customer P. 627

Service tax

Clearing and Forwarding Services P. 628

Maintenance and Repair Services P. 629

Bottling of liquor P. 630

Authorized service stations P. 630

Mining services P. 631





Digest of recent decisions

Corporate Law

Scheme of amalgamation-Could a scheme of amalgamation be sanctioned without notice to the secured creditors when public interest is at stake?--Ramco Super Leathers Ltd. v. Dhanalakshmi Bank Ltd. [2009] 152 Comp Cas 437 (Mad). P. 642


Winding up-Could a winding up petition be dismissed on the ground that amount claimed in statutory notice was larger than amount claimed to be admittedly due in the petition?--Lecoanet Hemant India P. Ltd. v. Interglobe Aviation Ltd. [2009] 152 Comp Cas 495 (Delhi). P. 642


Appeal to Appellate Tribunal-Could an appeal filed by the Department be dismissed on ground of low tax effect? Would an order of rectification under section 154 be passed when on facts there was no error apparent on the records?--CIT v. Chandulal alias Vallabhdas Damji [2009] 317 ITR 426 (Guj). P. 643


Penalty-Can penalty proceedings be initiated under section 271(1)(c) of the Income-tax Act, 1961 for failure to disclose capital gains from the sale of property although the sale agreement was filed alongwith the application seeking the clearance certificate?--Smt. Ram Piari v. CIT [2009] 225 CTR (P&H) 330 P. 644

Intellectual Property Rights


Trademark-For an action against "passing off" to succeed under the Trade Marks Act, what constitutes the burden of proof on the plaintiff? Could the plaintiff, having registered a trademark overseas without significant sales turnover, claim prior use of the trademark against an Indian company having an identical trademark in India, which was registered prior to the plaintiff's entry into the Indian market?--UAS Pharmaceuticals Pty. Ltd. v. Ajantha Pharma Ltd. 2009 (41) PTC 234 (Mad). P. 645

Labour Law


Dismissal-Under the A. P. Civil Services (Classification, Control and Appeal) Rules, 1963, could an order of dismissal against an errant employee passed by an authority superior to the appointing authority be set aside on the ground that it deprived the employee's right of appeal?--Government of A. P. v. N. Ramanaiah 2009 IV LLJ 621 (SC). P. 646

Sales tax and VAT


Exemption-Can exemption granted to new industrial units of medium and large scale for a period of seven years as a policy decision of the Government to extend promotional support to new ventures be denied to an industry which had started its commercial production nine months prior to the cut-off date?--Pepisco India Holdings P. Ltd. v. State of Kerala [2009] 24 VST 67 (SC). P. 647



Tender-Work of setting up electrical transmission-Is a company justified in challenging the refusal to award contract to it on the ground that it lacked the necessary technical expertise when it had surveyed, optimised tower locations, erected and strung with tension stringing equipment which were sufficient proof of its requisite technical experience to be eligible for the contract?--Electrical Manufacturing Co. Ltd. v. Power Grid Corporation of India Ltd. [2009] AIR 2009 SC 3001. P. 647

Digest of decisions of Tribunal and other Forums

Central Excise & Customs

Merchant Overtime charges-Would an appeal be maintainable against the order of short-paid MOT charges?--CCE v. Wolkem India Ltd. 2009 (238) ELT 370 (CESTAT-Delhi). P. 648

National Calamity Contingent Duty (NCCD)-Could exemption from payment of National Calamity Contingent Duty be claimed on captively consumed items of manufacture?--Paras Petrofils Ltd. v. CCE 2009 (237) ELT 367 (CESTAT-Ahmedabad). P. 649



Business income-Could the provisions of section 50C of the Income-tax Act be invoked on the sale consideration received on sale of two flats by the assessee-company, involved in the business of construction of residential flats, and which was treated as business income?-Inderlok Hotels Pvt. Ltd. v. ITO [2009] 318 ITR (AT) 234 (Mumbai). P. 650

Service tax


Business Auxiliary Services-Does the activity of maintenance of roads, toll booths and collection and remittance of toll amount, amount to Business Auxiliary Services?--PNC Construction Co. Ltd. v. CST 2009 (15) STR 42 (CESTAT-Delhi). P. 651

Clearing and Forwarding Agent service-Valuation-Where the gross amount charged is inclusive of service tax, would the cum-tax benefit be available for the period before insertion of Explanation 2 to section 67?--Abirami Associates v. CCE 2009 (14) STR 801 (CESTAT-Chennai). P. 651

Consumer Disputes


Banking-Where a credit-card holder dies before paying his dues on the card, leading to cancellation of the card, would the life insurance offered by the card continue to be valid?--Kavita Sharma v. American Express Bank Ltd. IV [2009] CPJ 203 (NC).P. 652


Interest-Upon cancellation of a booking for a flat, would not refunding the amount as per the terms of the agreement amount to deficiency in service on the part of the seller under the Consumer Protection Act, 1986?--DLF Commercial Developers Limited v. Ravinder Zutshi IV [2009] CPJ 163 (NC). P. 652





Summary of recent statutory changes

Commercial Law

Securities and Exchange Board of India

Securities and Exchange Board of India Act, 1992-Market access through authorised persons-Ref. MIRSD/DR-1/Cir-16/09, dated November 6, 2009. P. 653

Special Economic Zones

Special Economic Zone Authority Rules, 2009-Coming into force-Notification G. S. R. 811(E), dated November 11, 2009 P. 653

Direct Taxes

Income-tax Act, 1961-Applicability of provisions under section 194J of Income-tax Act, 1961, in the case of transactions by the Third Party Administrators (TPAs) with hospitals, etc.-Circular No. 8 of 2009, dated November 24, 2009 P. 653

Income-tax Act, 1961-Authorities to issue authorisation-Notification No. S. O. 2879(E), dated November 11, 2009 P. 655

Income-tax (Dispute Resolution Panel) Rules, 2009-Coming into force-Notification No. S. O. 2958(E), dated November 20, 2009 P. 655


Indirect Taxes

Foreign Trade

Handbook of Procedures Vol. 1-Para 4.21 Amended-Public Notice No. 15 (RE-2009)/2009-14, dated October 27, 2009 P. 655

Service Tax

Finance Act, 1994-Exempts the taxable service during the course of manufacture of parts of cycles or sewing machines-Notification No. 42/2009-ST, dated November 12, 2009 P. 656


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