Shows
all Law.Withdrawal of corporate insolvency proceeding even prior to formation of committee of creditorsHere is another episode of LKS’ all Law., Ms. Masooma Rizvi. and Ms. Rashi Srivastava discuss the topic “Withdrawal of Corporate Insolvency Proceeding Even Prior to Formation of Committee of Creditors is Permissible” The Honourable Apex Court, in the recent matter of Abhishek Singh vs. Huhtamaki PPL Ltd. and Ors. rendered a significant ruling, establishing that a plea for the withdrawal of the Corporate Insolvency Resolution Process can be allowed by the adjudicating authority even before the establishment of the Committee of Creditors. Link to the article: Withdrawal of corporate insolvency proceeding even prior to...2023-08-2509 minall Law.Patent of method of treating a plant – Interpretation of Section 3 (h)This podcast examines the decision of the Hon’ble High Court of Calcutta (‘High Court’) on an appeal (AID NO. 11 OF 2021) filed by Decco Worldwide Post Harvest Holdings B.V & Anr. (‘Appellant’) seeking to set aside an order (‘impugned order’) passed by the Controller of Patents and Designs (‘Respondent’) refusing the grant of the Appellant’s patent application for being a method of agriculture under Section 3(h) of the Act, apart from lacking an inventive step and having insufficient disclosure. The High Court, after considering the facts of the case, decided that t...2023-08-1810 minall Law.Pacing towards a data protection law: Analysing the Digital Personal Data Protection Bill, 2023Here is another episode of LKS’ all Law., where Ms. Soumya Malhotra and Mr. Gaurav Tiwari speak about the much-awaited digital personal data protection bill 2023.Passed by both Lok Sabha and Rajya Sabha, the Digital Personal Data Protection Bill 2023 finally received assent from the Hon’ble President of India on 11th August 2023. This podcast is based on a recent article authored by Mr. Prashant Phillips, Executive Partner and Mr. Sameer Avasarala, Senior Associate Link to the article: Pacing towards a data protection law: Analysing the Digital Personal Data Protection Bill, 2023 | Lakshmikumaran & Sridharan Attorneys (lakshmi...2023-08-1212 minall Law.Leasing of capital goods between two GSTINsHere is the latest episode of all Law, featuring Ms. Kanika Jain and Ms. Aishwarya Vardhan, as they delve into the recent ruling of the Maharashtra AAAR of CHEP India Pvt Ltd. This ruling examines a transaction and holds that although the supply of goods/services between distinct persons would amount to a supply under GST laws, the mere movement of goods between two GSTINs would not amount to a supply when the GSTIN undertaking such movement is only a bailee of such goods. This podcast is based on a recent ar...2023-08-0712 minall Law.Export of services: Settled, yet unsettledThis podcast addresses uncertainties in tax laws, particularly regarding the interpretation of legal provisions and the ensuing litigation. It focuses on the tax implications of exporting services, treated as tax-free or zero-rated under GST laws. The Export of Services Rules, 2005, have been subject to frequent amendments and litigations due to the interpretational challenges posed by the "used outside India" condition. The podcast highlights a recent decision in Arcelor Mittal Stainless India Private Limited vs. CST, Mumbai-II, 2023-VIL-516-CESTAT-MUM-ST where the Larger Bench of CESTAT ruled in favor of exporters. It held that providing Business Auxiliary Services to...2023-07-2910 minall Law.Change of opinion: Whether permissible under the new provisions of reassessment?The Finance Act, 2021 overhauled the then-existing reassessment provisions under the Income-tax Act. Earlier, the reassessment provisions required the Assessing Officer to form an “independent belief” based on the “new tangible material”. Now, the reassessment provisions have been made information centric. The Assessing Officer is required to possess the information that suggests that the income chargeable to tax has escaped assessment. For that matter, what constitutes information has also been defined under the Act. When the reopening has now been made permissible on the possession of the defined information, the question is whether a change of opinion based on such informat...2023-07-2110 minall Law.Revival of insolvency proceedings: Analysis and way forwardIn this podcast, we have explored how, despite not being a statutory remedy, the revival of Insolvency proceedings is permitted if the same was withdrawn pursuant to a settlement. We have discussed the process of revival. The process of revival would only arise if the terms of the settlement pursuant to which the IBC Proceeding was withdrawn, have not been honored by the parties to the said settlement. We have further examined the concept of ‘liberty’ that is required in the National Company Law Tribunal’s order vide which the withdrawal of the IBC Proceeding was permitted. We further went o...2023-07-1509 minall Law.India loses the fight for electronic goods against EU at the WTOThe Government of India’s consistent push to promote domestic electronic industry’s manufacturing capabilities faced a slight dent due to the recent adverse judgement from the WTO. The judgement held that India’s import duty measures were inconsistent with its commitments & obligations under the WTO Agreements. The complainant’s (EU and several other countries) viewpoint was that India had breached the bound rates under the Schedule of concessions by imposing the disputed custom duties on imports of certain electronic goods. However, India maintained that bound rates in the Schedule were not applicable to the products in question as those pr...2023-07-0710 minall Law.Becoming trade remedies-ready – A practical guide for producers and exportersWhen producers/exporters export goods to other countries, they are likely to face anti-dumping and anti-subsidy investigations. To successfully face such investigations, the producers/exporters need to be trade-remedy ready. This podcast provides a short guide on the certain steps that producers/exporters should take in this regard. One, entities must employ a robust ERP system for reporting their data seamlessly and accurately. Second, entities must ensure support from their traders, especially when the supply chains are complex. Third, they must monitor their export prices regularly. Producers/exporters must aim to secure their market position by participating in the...2023-06-2309 minall Law.Deemed application provision causes uncertainties for donation aggregators. Recently, an amendment was brought in through the Finance Act 2023 in section 11 of the Income Tax Act, 1961, through which only 85% of the total sums paid or credited by one charitable entity to another charitable entity will be deemed to be “application” towards charitable purposes. This amendment was brought in to discourage the practice of forming multiple layers of charitable entities in order to retain more than 15% at each stage. However, it may seriously impact those charitable entities which are working on channelizing the donations by aggregating donations from multiple donors and applying almost whole of the donations by contributing to ch...2023-06-1606 minall Law.Arbitration agreement, which is part of an unstamped contract, has no existenceThe Hon’ble Supreme Court of India (“Court”) in the recent decision by the five-judge Bench in N.N. Global Mercantile Pvt. Ltd. v. Indo Unique Flame Ltd. (Judgment dated 25 April 2023), which is a reference from the decision of three judge Bench delivered by the Court on 1 January 2021 [(2021) 4 SCC 379], clarified the stance on the validity / enforceability of the arbitration agreement or arbitration clause contained in an agreement / contract, which is not stamped in accordance with the Indian Stamp Act, 1899 (“Stamp Act”). The Court finally settled the conundrum and held that the arbitration or the appoin...2023-06-0916 minall Law.De-blurring Section 59 of the Indian Patents Act 1970This podcast examines the decision made by Hon’ble High Court of Delhi (‘High Court’) on an appeal filed under Section 117A of the Patents Act, 1970 (‘Act’). The appeal was filed by Societe Des Produits Nestle Sa (‘Appellant’) seeking to set aside an order passed by the Controller of Patents and Design (‘Respondent’) refusing the grant of the Appellant’s Patent Application for lacking inventive step and for not being patentable under Section 3(i), Section 3(e), and Section 59 of the Act. The High Court after considering the facts of the case, decided that the ass...2023-06-0417 minall Law.Eligibility of Input Tax Credit vis-à-vis inherent loss of inputs during manufactureThis podcast focuses on the interesting issue settled by the Hon’ble Madras High Court in the case of Eastman Exports Case pertaining to the reversal of ITC on the loss of inputs inherent to the process of manufacturing. The Hon’ble Court held that ITC can be claimed on the inputs which are lost in manufacture as such loss is inherent to the process of manufacture itself. To arrive at the decision, the Hon’ble Court primarily relied on the principles laid down in the JK Cotton Spinning & Weaving Mills Case. The Hon’ble Court also resorted to the prin...2023-05-2610 minall Law.Interest as part of Operational Debt: A conundrumWhile the inclusion of interest amounts in ‘financial debt’, for the purposes of the Insolvency and Bankruptcy Code, 2016 (‘IBC’), is clearly provided for in the IBC, the interest component in the case of operational debt has always been a point of contention.Definition of the term ‘financial debt’under Section 5(8) of the IBC expressly includes the term ‘interest’ to be a part of the debt that can form a part of the claim against the corporate debtor. However, the definition of the term ‘operational debt’ under Section 5(21) of the IBC does not specifically mention the term ‘interest’ to b...2023-05-2210 minall Law.Withholding Income Tax: Withholding the ambiguity in GST Valuation?The podcast discusses the intricacies of TDS (tax deducted at source) withholding, which affects the taxable value under the Goods and Services Tax (GST) system in India. Under the Income Tax Act, 1961, TDS is withheld by Indian service recipients on the amount payable to foreign service providers. To clarify the taxable value under service tax, the Central Board of Excise and Customs (CBEC) stated that the taxable value shall be the gross value, including TDS. However, the net receipt in the hands of foreign service providers is reduced to the extent of TDS, which can be overcome by restructuring...2023-05-0510 minall Law.Patentability of Selection Inventions – Analysis of recent Delhi High Court decisionsPatentability of ‘Selection Inventions’ has been a hotly contested issue in India, especially in the context of pharmaceutical inventions. A selection patent is one whose subject matter (compounds or compositions) forms part of a larger known class or Markush structure of compounds which is the subject matter of a prior patent. A selection patent, referred to as species patent, has a specific coverage while the prior patent, referred to as genus patent, has a broader coverage. Recently, two decisions of the Delhi High Court have adjudicated patentability of the species patent with respect to the genus patent as part of i...2023-04-2114 minall Law.Tax on ‘Cash’ benefits and perquisites – Applicability on waiver of debtsEvery year, the announcement of the Union Budget is eagerly awaited as one of the key tax policy events in India. This year was no different.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.This article aims to disc...2023-04-0808 minall Law.A ray of hope: Delhi High Court allows amending method claims to product claimsThis podcast describes the amendment in claims that were allowed by the High Court in Delhi. Justice Hari Shankar in this landmark judgement had allowed amending claims from method of treatment to product (i.e., implant claims). This case will serve as a milestone since till date amending method of treatment claims to any other allowable claim format (such as product) has been considered as non-allowable under Section 57 and 59 of the Act. the Hon' Justice has looked at the facts of the case, such as, the implants per se were well supported and explained in the as-filed specification and...2023-03-2417 minall Law.Arbitral award: Compensation or considerationThe arbitral awards are given for various reasons and to know the GST implications on each of these awards it is pertinent to understand the nature of the awards given. The arbitral award may provide compensation to the parties, in the form of damages or it may be reimbursement of the amount which is incurred by one of the parties to the contract. Recent circular passed by CBIC Circular No. 178/10/2022-GST dated 3.8.2022 clarifies that the damages are amount paid to compensate the injury, loss or damage suffered by one of the parties due to breach of...2023-02-1009 minall Law.Value addition’ in Value Addition Tax: Extension of limitation periodGST was introduced vide 101st Constitutional Amendment Act to provide Center and State Government, the power to levy GST on supply of goods under Article 246A. The States lost power to assess VAT on sale of goods and hence, VAT laws were to be aligned till 16.09.2017. Thus, VAT limitation period could have been amended within above time; however, few State Governments have enhanced limitation period, beyond above time. Various High Courts [Kerala, Gujarat and Telangana] held that States lost their power to administer VAT after above time. However, Bombay High Court observed that States gained power to ad...2023-02-0414 minall Law.Playing on the wrong side – United States’ Section 232 measures held inconsistent with WTO lawThe United States imposed additional duties of 25% ad valorem on steel imports into the country. Section 232 of the Trade Expansion Act of 1962 imposed additional duties. Several provisions of the General Agreement on Tariffs and Trade ('GATT') were violated, most notably the security exception in Article XXI. The US argued that the measures were justified under GATT Article XXI (b)(iii), which allows a WTO Member to take measures necessary to protect its essential security interests. The panel determined that this did not negate the requirement that such action be taken in accordance with the conditions and circumstances specified in...2023-01-1311 minall Law.Normal and substantial profits – A new yardstick for charitable purposeThe Supreme Court’s landmark judgment in Ahmedabad Urban Development Authority laid down new law on claim of tax exemptions by charitable entities engaged in activities of General Public Utility (i.e., GPU) and deriving incidental business income. This judgment overruled the earlier “predominant object test” set by the Supreme Court in Surat Art Silk ruling for checking the eligibility for claiming exemption under section 11 of the Income-tax Act, 1961. The Supreme Court has analyzed section 2(15) of the Income-tax Act, 1961, and replaced the old test of a predominant object with a new test i.e., nominal vs. substantial profits. The Court...2023-01-0612 minall Law.Navigating a workplace investigationThe article discusses workplace investigations in India. It notes that due to the subjective nature of the investigations under consideration, there is no set mechanism or strict procedure which needs to be adhered to, for conducting such investigations. The authors however discuss the broad guidelines related to requisition, review and questionnaire, investigation interviews, transcripts, and preparing the investigation report, which aids the investigation team and is to be read along with the internal policies of the concerned organization. They also note that organizations now prefer the engagement of external lawyers for such investigations, who besides providing credibility would also...2022-12-3107 minall Law.Divisional Applications in India: Evolving jurisprudenceRecent cases on divisional applications, in India, redefine the requirements with respect to divisional applications. An applicant, to whom divisional applications have been invaluable for securing multiple patents arising out of a single inventive platform, the recent decisions may appear more restrictive. To bring uniformity in practice and in the best interest of justice certain principles have been laid down by the courts that are to be adhered to while dealing with divisional applications. In exercising the Applicant’s right to file a divisional application, the principles may be relied upon for guidance in strategizing national phase entries and di...2022-12-2310 minall Law.OFAC - Insights into the US sanctions regimeIn the previous Podcast, we started navigating trade in a world of sanctions. We understood that among the numerous measures adopted by the US, the war has brought into focus the use of sanctions as an instrument to penalize Russia and its allies such as Belarus. As a leading user of sanctions, the United States has one of the most comprehensive legal frameworks for the imposition of sanctions that can be mind-boggling for both US and foreign businesses alike. One of the key agencies implementing sanctions in the United States is the Office of Foreign Assets Control. T...2022-12-1609 minall Law.Export duty on iron ore and steel intermediaries – An industry perspective!The Government has with effect from 19 November 2022 rolled back export duty on iron ore pellets and steel products, including pig iron, flat-rolled products of carbon steel and stainless steel, bars, rods, and non-alloy steel. Export duty on iron ores with a grade higher than 58% has been reduced from 50% to 30%, while the lower grade iron ores no longer attract export duty restoring back the exemption granted up to 21 May 2022.The duty on the export of iron ore pellets and select steel products was imposed with effect from 22 May 2022, and parallelly, the duty on the export of iron ores...2022-12-0913 minall Law.Company Secretary whether liable for misleading financial information given by a companyThe company secretary (CS) of Deccan Chronicle Holding Limited ('DCHL') was absolved by the Securities Appellate Tribunal ('SAT'), Mumbai, from the liability imposed by the Adjudicating Officer ('AO') of the Securities Exchange Board of India ('SEBI') on DCHL for misleading financial statements and information given by the company. Earlier this year, SEBI had investigated the scrip of DCHL to ascertain if the company shares were fraudulently pledged without appropriate disclosures. From the investigation, it was specifically gleaned that the public announcement made in 2011 for buying back its equity shares had misled the investors/shareholders. Mr. Shankar filed a...2022-12-0209 minall Law.Single colour trademarks – A ‘grey’ areaThis week's podcast talks about the dilemma in affording protection to single colour trademarks in India. The authors discuss the protection granted to single-colour trademarks across various jurisdictions by taking the example of the famed red-soled Louboutin shoes. Further, the dissenting views of the Indian judiciary have also been discussed. Lastly, the authors opine on the criteria on which single-colour trademarks can be protected in India. Audio Source: An Article Published on LKS Website on 18th July 2022 Single colour trademarks – A ‘grey’ area | Lakshmikumaran & Sridharan Attorneys (lakshmisri.com) Author : Anushka Verma, Associate(LKS); Rajalakshmi R, Partner...2022-07-2208 minall Law.Competition Law in India – 2021, a year in reviewThe year 2021 has been quite enriching for the competition law regime in India with multiple investigations ordered into varied sectors and commendable changes adopted by the CCI due to the COVID-19 pandemic, such as e-filings, virtual mode of hearings, etc. This podcast briefly discusses the major highlights of the year gone by. Audio Source: An article published on the LKS website in January 2022 https://www.lakshmisri.com/insights/articles/competition-law-in-india-2021-a-year-in-review/# Authors: Charanya Lakshmikumaran, Partner (LKS); Neelambera Sandeepan, Joint Partner (LKS); and Prathamesh Pareek, Associate (LKS) Voice: Sahan...2022-03-1111 minall Law.The Biological Diversity (Amendment) Bill 2021- Implications for Indian entitiesThis week’s podcast focuses on the proposed amendment to the Biological Diversity Act, 2002 by introducing the recent Bill in the Lok Sabha and discusses the implications for Indian entities.Audio Source: An article published in the Bar & Bench in December 2021 https://www.barandbench.com/view-point/biological-diversity-amendment-bill-2021-implications-for-indian-entitiesAuthors: Malathi Lakshmikumaran, Executive Director (LKS), and Vindhya S Mani, Joint Partner (LKS)Voice: Vindhya S Mani, Joint Partner (LKS)www.lakshmisri.com2022-01-2215 min