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NEWS ALERTS

TAX

Cabinet approves revision of the Agreement between India and Qatar for the avoidance of double taxation and for the prevention of fiscal evasion with respect to taxes on income

Cabinet approves Agreement for the Avoidance of Double Taxation and Prevention of Fiscal Evasion between India and Iran

The Union Cabinet has approved an Agreement for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to taxes on income between India and Iran. The Agreement will stimulate flow of investment, technology and personnel from India to Iran & vice versa, and will prevent double taxation. The Agreement will provide for exchange of information between the two contracting parties as per latest international standards. It will thus improve transparency in tax matters and will help curb tax evasion and tax avoidance. The Agreement is on similar lines as entered into by India with other countries. The proposed Agreement also meets treaty related minimum standards under G-20 OECD Base Erosion & Profit Shifting (BEPS) Project, in which India participated on an equal footing. In so far as India is concerned, the Central Government is authorized under Section 90 of the Income Tax Act, 1961 to enter into an Agreement with a foreign country or specified territory for avoidance of double taxation of income for exchange of information for the prevention of evasion or avoidance of income-tax chargeable under the Income-tax Act, 1961.

The Cabinet has given its approval for revision of the Agreement between India and Qatar for the avoidance of double taxation and for the prevention of fiscal evasion with respect to taxes on income. The existing Double Taxation Avoidance Agreement (DTAA) with Qatar was signed on 7thApril, 1999 and came into force on 15thJanuary, 2000.The revised DTAA updates the provisions for exchange of information to latest standard, includes Limitation of Benefits provision to prevent treaty shopping and aligns other provisions with India's recent treaties. The revised DTAA meets the minimum standards on treaty abuse under Action 6 and Mutual Agreement Procedure under Action 14 of G-20 OECD Base Erosion & Profit Shifting (BEPS) Project, in which India participated on an equal footing.

CONTENTS

— News AlertsTax 1Real Estate 1Legislations/Notifications 1Judgments 3

— Article 5Amendment through “Removal of Difficulty”By Shashwat Nigam, Associate, Kanth & Associates

REAL ESTATE

LEGISLATIONS/NOTIFICATIONS

Environment Ministry eases rules for Construction companies

Cabinet approves the Arbitration and Conciliation (Amendment) Bill, 2018

The Government has eased environmental clearances for buildings and construction sector, with the Environment Ministry more than doubling the threshold for construction projects requiring environmental clearances from the Centre to 50,000 square meters of built-up area from 20,000 sq. meters. As a result, developers of an average sized mall with three floors or an apartment complex with 300 three-bedroom flats would be able to start construction with online submission of a self-certification that all environmental obligations would be met. A developer would fill a form online to the local authority and then a building permit would be issued for construction. So far, this was followed by all projects with less than 20,000 sq. meters of built-up area. Now, the Ministry of Environment, Forests and Climate Change has issued a draft notification amending its earlier notification that required projects with built-up area above 20,000 sq. meters to take environmental clearances by applying separately to environmental impact assessment committees formed at the state level. The limit has been increased to 50,000 sq. meters.

The Union Cabinet has approved the Arbitration and Conciliation (Amendment) Bill, 2018 for introduction in the Parliament. The amendments in the Act of 1996 will facilitate achieving the goal of improving institutional

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arbitration by establishing an independent body to lay down standards, make arbitration process more party friendly, cost effective and ensure timely disposal of arbitration cases. The salient features of the Bill are: (a) To facilitate speedy appointment of arbitrators through designated arbitral institutions by the Supreme Court or the High Court, without having any requirement to approach the court in this regard. (b) The amendment provides for creation of an independent body namely the Arbitration Council of India (ACI) which will grade arbitral institution and accredit arbitrators by laying down norms and take all such steps as may be necessary to promote and encourage arbitration, conciliation, mediation and other ADR Mechanism and for that purpose evolve policy and guidelines for the establishment, operation and maintenance of uniform professional standards in respect of all matters relating to arbitration and ADR mechanism. The Council shall also maintain an electronic depository of all arbitral awards. (c) The ACI shall be a body corporate. The Chairperson of ACI shall be a person who has been a Judge of the Supreme Court or Chief Justice or Judge of any High Court or any eminent person. Further, the other Members would include an eminent academician etc. besides other Government nominees. (d) It is proposed to amend sub section (1) of Section 29A by excluding International Arbitration from the bounds of timeline and further to provide that the time limit for arbitral award in other arbitrations shall be within 12 months from the completion of the pleadings of the parties. (e) A new section 42A is proposed to be inserted to provide that the arbitrator and the arbitral institutions shall keep confidentiality of all arbitral proceedings except award. Further, a new section 42B protects an Arbitrator from suit or other legal proceedings for any action or omission done in good faith in the course of arbitration proceedings. (f) A new section 87 is proposed to be inserted to clarify that unless parties agree otherwise the Amendment Act 2015 shall not apply to (i) Arbitral proceedings which have commenced before the commencement of the Amendment Act of 2015; (ii) Court proceedings arising out of or in relation to such arbitral proceedings irrespective of whether such court proceedings are commenced prior to or after the commencement of the Amendment Act of 2015 and shall apply only to Arbitral proceedings commenced on or after the commencement of the Amendment Act of 2015 and to court proceedings arising out of or in relation to such Arbitral proceedings.

Cabinet approves Fugitive Economic Offenders Bill, 2018

Cabinet approves the Commercial Courts, Commercial Division and Commercial Division of High Courts (Amendment) Bill, 2018

The Union Cabinet has approved the proposal of the Ministry of Finance to introduce the Fugitive Economic Offenders Bill, 2018 in the Parliament. The Bill would help in laying down measures to deter economic offenders from evading the process of Indian law by remaining outside the jurisdiction of Indian courts. The cases where the total value involved in such offences is Rs.100 crore or more, will come under the purview of this Bill.The Bill is expected to re-establish the rule of law with respect to the fugitive economic offenders as they would be forced to return to India to face trial for scheduled offences. This would also help the banks and other financial institutions to achieve higher recovery from financial defaults committed by such fugitive economic offenders, improving the financial health of such institutions.It is expected that the special forum to be created for expeditious confiscation of the proceeds of crime, in India or abroad, would coerce the fugitive to return to India to submit to the jurisdiction of Courts in India to face the law in respect of scheduled offences. The salient features of the Bill includes: (a) Application before the Special Court for a declaration that an individual is a fugitive economic offender; (b) Attachment of the property of a fugitive economic offender; (c) Issue of a notice by the Special Court to the individual alleged to be a fugitive economic offender; (d) Confiscation of the property of an individual declared as a fugitive economic offender resulting from the proceeds of crime; (e) Confiscation of other property belonging to such offender in India and abroad, including benami property; (f) Disentitlement of the fugitive economic offender from defending any civil claim;and (g) An Administrator will be appointed to manage and dispose of the confiscated property under the Act.

The Union Cabinet has approved the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts (Amendment) Bill, 2018 for introduction in the Parliament. The Bill seeks to achieve the following objectives: (a) The Bill brings down the specified value of a commercial dispute to 3 Lakhs from the present one Crore. (b) The amendment provides for establishment of Commercial Courts at district Judge


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level for the territories over which respective High Courts have ordinary original civil jurisdiction. (c) The introduction of the Pre-Institution Mediation process in cases where no urgent, interim relief is contemplated will provide an opportunity to the parties to resolve the commercial disputes outside the ambit of the courts through the authorities constituted under the Legal Services Authorities Act, 1987. (d) Insertion of new Section of 21A which enables the Central Government to make rules and procedures for PIM. (e) To give prospective effect to the amendment so as not to disturb the authority of the judicial forum presently adjudicating the commercial disputes as per the extant provisions of the Act.

The Union Cabinet has given its approval for moving official amendments in the "Surrogacy (Regulation) Bill, 2016". The Surrogacy (Regulation) Bill, 2016 proposes to regulate surrogacy in India by establishing National Surrogacy Board at the Central level and, State Surrogacy Boards and Appropriate Authorities in the States and Union Territories. The proposed legislation ensures effective regulation of surrogacy, prohibit commercial surrogacy and allow altruistic surrogacy to the needy Indian infertile couples. Once the Bill is enacted by the Parliament, the National Surrogacy Board will be constituted. The States and Union Territories shall constitute the State Surrogacy Board and State Appropriate Authorities within three months of the notification by the Central Government. The Act, after coming into effect, will regulate the surrogacy services in the country and will control the unethical practices in surrogacy, prevent commercialization of surrogacy and will prohibit potential exploitation of surrogate mothers and children born through surrogacy. While commercial surrogacy will be prohibited including sale and purchase of human embryo and gametes, ethical surrogacy to the needy infertile couples will be allowed on fulfillment of certain conditions and for specific purposes. All Infertile Indian married couple who want to avail ethical surrogacy will be benefitted. Further, the rights of surrogate mother and children born out of surrogacy will be protected. The Bill shall apply to whole of India, except the State of Jammu and Kashmir.

Cabinet approves moving official amendments in the "Surrogacy (Regulation) Bill, 2016"

Payment of Gratuity (Amendment) Bill, 2018 passed by Parliament

Passive Euthanasia is legal: SC

Courts can't refer parties to arbitration on oral consent given by their counsel: SC

The Payment of Gratuity (Amendment) Bill, 2018 has been passed by the Parliament. The Bill ensures harmony amongst employees in the private sector and public sector undertakings/autonomous organizations under Government who are not covered under CCS (Pension) Rules. These employees will be entitled to receive higher amount of gratuity at par with their counterparts in Government sector. The Bill will entitle a woman to 26 weeks of maternity leave from present 12 weeks and also double the ceiling of gratuity from Rs.10 Lakhs to Rs.20 Lakhs.

The Supreme Court, in a landmark judgment, has allowed the withdrawal of all life support systems if in the opinion of the doctors a patient has reached an irreversible stage of terminal illness. The Court has also allowed the recognition of advance directive (living-will) with guidelines. The Court has also laid guidelines for cases when there is no advanced directive. It stated that in cases where there are no immediate family members, the next of friend can approach the concerned High Court, which in turn will then set up a medical board to determine whether the concerned patient can be allowed passive euthanasia. The Court said the relatives of a patient who has not written a 'living will' can approach High Courts asking for passive euthanasia. It must be noted that a living will is simply a written instruction spelling out any treatments you want or don't want if you are unable to speak for yourself when terminally ill or permanently unconscious. A living will allow people to decide in advance whether or not they want to be put on life support in cases of terminal illness.

The Supreme Court recently stated that in the absence of arbitration agreement, the Court can refer parties to arbitration only with written consent of parties either by way of a joint memo or joint application and not on oral consent given by their counsel. The Court observed that reference of the parties to arbitration based on oral consent given by the counsel without a written

JUDGMENTS




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memo of instructions does not fulfill the requirement under Section 89 CPC. The Court further observed that since referring the parties to arbitration has serious consequences of taking them away from the stream of civil courts and subject them to the rigour of arbitration proceedings, in the absence of arbitration agreement, the Court can refer them to arbitration only with written consent of parties either by way of joint memo or joint application; more so, when government or statutory body like the Appellant-Board is involved.

The Supreme Court has held that an Arbitration Clause cannot curb the rights of a consumer to approach consumer forum. The real estate buyers often have an arbitration clause in their agreement with the real estate companies. The said arbitration clause lays down a condition that in case of a dispute, the consumers will have to settle the dispute through arbitration and civil courts. The rights of the consumers to approach the consumer courts are prejudiced by such clauses. The Court observed that despite an arbitration clause in the agreement, consumers could directly approach the consumer forums for redressal. The Court agreed with the view taken by the National Consumer Disputes Redressal Commission (NCDRC) which had stated that the consumer disputes are not capable of being settled by arbitration and that the jurisdiction of the consumer fora to adjudicate upon consumer disputes is not affected by Section8 of the Arbitration and Conciliation Act, 1996 which makes mandatory reference to arbitration. The Supreme Court stated that the judgment delivered by the National Commission was in line with the purpose and objective of the Consumer Protection Act. The NCDRC had observed that if the consumers are deprived of the remedy to approach the consumer forum, the entire purpose and object of the consumer law would be of no use. The NCDRC stated that the purpose of the consumer courts was to ensure speedy, just and expeditious resolution and disposal of consumer disputes.

The Supreme Court held that foreign law firms cannot set up offices and their lawyers cannot practice in India but they can give legal advice on foreign laws. It allowed casual visits by foreign lawyers on fly in and fly out (FIFO) basis for rendering legal advice to clients in

Consumer Forums need not refer parties to arbitration in terms of valid arbitration agreement: SC

Foreign lawyers, law firms cannot practice in India:SC

India. In this case, expression FIFO will only cover casual visit not amounting to 'practice' or for purpose of giving legal advice to clients in India regarding foreign law or their own system of law and on diverse international legal issues. The Bar Council of India (BCI) or the Central Government can make appropriate rules in this regard including extending the code of ethics being applicable to foreign lawyers and entities. The Apex Court, however, permitted foreign lawyers to conduct arbitration proceedings in disputes involving international commercial arbitration, after following the code of conduct applicable to the legal profession in India. The Supreme Court held that the prohibition (on practicing law) applicable to any person in India other than an advocate enrolled under the Advocates Act, 1961 certainly applies to any foreigner also. So foreign lawyers or law firms cannot practice in India without fulfilling the requirements of Advocates Act, 1961 and the BCI rules. The Supreme Court clarified that 'practice of law' to include litigation as well as non-litigation; not only appearance in courts but also giving of opinion, drafting of instruments, participation in conferences involving legal discussion amount to practice. The Apex Court rejected the plea that a foreign lawyer is entitled to practice foreign law in India without subjecting himself to the regulatory mechanism of the BCI rules. The Advocates Act, 1961 applies equally to firms and individuals. The Court however held that BPO companies providing services like word processing, transcription services, secretarial support and proof-reading services do not come within purview of Advocates Act, 1961 so are allowed to function from India.

The Supreme Court has introduced the provision of anticipatory bail to curb down rampant misuse of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, while also directing that there would be no automatic arrest on any complaint filed under the law and a preliminary inquiry must be conducted by police within 07 days before taking any action. The Court introduced the provision of anticipatory bail despite Section18 of the Act denies pre-arrest bail. The Court also, stated that such a protective provision was required to safeguard the interest and dignity of innocents and prevent the misuse of the act as an instrument to blackmail or wreak personal vengeance. The Court further observed that working of the SC/ST Act should not result in perpetuating casteism which

Supreme Court bans automatic arrest under SC/ST Act




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can have an adverse impact on the integration of society and constitutional values. The Court further stated that in view of the acknowledged abuse of law of arrest in cases under the said Act, the arrest of a public servant can only be after approval of the appointing authority and of a non-public servant after approval by the SSP, which may be granted in appropriate cases if considered necessary for reasons recorded. Such reasons must be scrutinized by the Magistrate for permitting further detention. To avoid the false implication of an innocent, a preliminary inquiry may be conducted by the DSP concerned to find out whether the allegations make out a case under the act and that the allegations are not frivolous or motivated.

The Delhi High Court has held that the Maintenance Tribunal has complete jurisdiction to pass an order of eviction under the Maintenance and Welfare of Parents and Senior Citizens Act. The Court, while interpreting the Maintenance and Welfare of Parents and Senior Citizens Act, said that the object for which the Act as well as the subject Rules, were brought into force, namely, for the welfare of parents and senior citizens and for protection of their life and property, leave no manner of doubt that the Maintenance Tribunal constituted under the Act has the power and jurisdiction to render the order of eviction. The said judgment would provide relief to unloved senior citizen couples fighting legal battle with their ill-treating sons and daughters-in-law who refuse to vacate parents' house despite court orders.

The Hon'ble National Company Law Tribunal (NCLAT), New Delhi in the case of Hada Textile Industries Limited Vs. Commercial Taxes, Kolkata &ors. (“Hada case”) questioned the jurisdiction of Central Government (Govt.) to amend an act passed by the Parliament. The questioned was raised pursuant to the amendment made by 8th Schedule under section 252 of the Insolvency and Bankruptcy Code, 2016 (I&B Code).

India is in the process of laying the foundations of a mature market economy. The legislature has

Maintenance Tribunal empowered to order eviction of legal heir if parents are ill-treated: Delhi HC

ARTICLE

Amendment through “Removal of Difficulty”

By Shashwat Nigam, Associate, Kanth & Associates




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endeavored to provide one critical building block of this process, with a modern insolvency and bankruptcy code, and the design of associated institutional infrastructure which reduces delays and implementation costs. The idea behind I&B Code was to come up with single unified framework which deals with Bankruptcy and Insolvency by persons other than financial firms. The strategy was to repeal many existing laws on bankruptcy and insolvencyand formulating a simple yet effective law consisting of a resolution in accordance with the Indian scenario. This new legislation consolidated and amended the laws relating to reorganization and insolvency resolution of corporate persons, partnership firms and individual in a time bound manner for maximization of value of assets of such person, to promote entrepreneurship, availability of credit and balance the interests of all the stakeholders including alteration in the order of priority of payment of Government dues and to establish an Insolvency and Bankruptcy Board of India. The I&B Code brought the laws pertaining to above mentioned under its ambit ranging from the Partnership Act, 1932; The Central Excise Act, 1944; The Income-Tax Act, 1961; The Customs Act, 1962; The Recovery of Debts due to Banks and Financial Institutions Act, 1993; the Finance Act, 1994; The Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002; the Sick Industrial Companies Repeal Act, 2003; the Payment and Settlement System Act, 2007; the Limited Liability Partnership Act, 2008 and the Companies Act, 2013.

The NCLAT in Hada case gave the view that the Central Government has no jurisdiction to amend the legislation and asked the assistance from the Central Government with respect to aforesaid issue. There was an amendment brought by the Central Government to the 8th Schedule through a Removal of Difficulties (Section 242 of I&B Code). Section 4 (b) of the Sick Industrial Companies (Special Provisions) Repeal Act, 2003 (hereinafter referred to as “the SICA Repeal Act”)provided that all the proceedings before the Board for Industrial and Financial Resolution (BIFR) and AAIFR (Appellate Authority for Industrial and Financial Resolution) under the SICA Repeal Act shall abate. The said sub clause (b) of section 4 was substituted by new clause provided in the form of 8th schedule to the I&B Code. As the provisions of the SICA Repeal Act came into effect, as amended by schedule eight of the Code, the provisions relating to review and monitoring of schemes sanctioned under section 18 of the SICA was uncertain and undefined. Consequently, the Central




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Government passed an ordinance dated 24.05.2017 in exercise of power conferred by sub-section (1) of section 242 of the Insolvency and Bankruptcy Code, 2016, thereby adding following two provisos in the eight schedule of the Insolvency and Bankruptcy Code, 2016:

1"Provided also that any scheme sanctioned under sub-section (4) or any scheme under implementation under sub-section (12) of section 18 of the Sick Industrial Companies (Special Provisions) Act, 1985 shall be deemed to be an approved resolution plan under sub-section (1) of section 31 of the Insolvency and Bankruptcy Code, 2016 and the same shall be dealt with, in accordance with the provisions of Part II of the said Code:

Provided also that in case, the statutory period within which an appeal was allowed under the Sick Industrial Companies (Special Provisions) Act, 1985 against an order of the Board had not expired as on the date of notification of this Act, an appeal against any such deemed approved resolution plan may be preferred by any person before National Company Law Appellate Tribunal within ninety days from the date of publication of this order."

In the light of the above, the Union of India through Ministry of Corporate Affairs relied on the following contentions before NCLAT:

a) The Central Government has been provided the jurisdiction with the introduction of the 8th Schedule in to the I&B Code, where the Sick Industrial (Special Provisions) Repeal Act, 2003 (SICA Repeal Act) was brought into the ambit of the I&B Code under Section 252. The I&B Code has a clause under Section 242 to remove the difficulties so as to supply the deficiency in an act by way of an executive order provided that the removal of difficulty is not unguided and arbitrary. The purpose of the 8th Schedule was to effectively amend the SICA Repeal act, so as to ensure the objectives of the said act are met through I&B Code that the unfinished objectives are brought to a conclusion. To ascertain that the above objectives are met, the Central Government took the route of Removal of Difficulties under Section 242 to supply the needed deficiency through an appropriate order passed on 24.05.2017. Thus, empowering the NCLAT to hear the appeal. This was supported by a judgement passed in the case of Madeva Upendra Sinai v. Union

2of India , where Hon'ble Supreme Court upheld the power of Central Government to supply a deficiency in an Act by way of an executive order, passed in exercise of power contained in 'removal of difficulty clause'. The relevant portion of the judgement are as under:

“36. This raises two questions: (1) Is this a 'difficulty' within the contemplation of Clause (7) of the Regulation? (2) Is the Central Government in the exercise of its power under that clause competent to supply a deficiency or casus omissus of this nature?

***38. For a proper appreciation of the points involved, it is necessary to have a general idea of the nature and purpose of a 'removal of difficulty clause' and the power conferred by it on the Government.

39. To keep pace with the rapidly increasing responsibilities of a welfare democratic State, the legislature has to turn out a plethora of hurried legislation, the volume of which is often matched with its complexity. Under conditions of extreme pressure, with heavy demands on the time of the legislature and the endurance and skill of the draftsman, it is well nigh impossible to foresee all the circumstances to deal with which a statute is enacted or to anticipate all the difficulties that might arise in its working due to peculiar local conditions or even a local law. This is particularly true when Parliament undertakes legislation which gives a new dimension to socio-economic activities of the State or extends the existing Indian laws to new territories or areas freshly merged in the Union of India. In order to obviate the necessity of approaching the legislature for removal of every difficulty, howsoever trivial, encountered in the enforcement of a statute, by going through the time-consuming amendatory process, the legislature sometimes thinks it expedient to invest the executive with a very limited power to make minor adaptations and peripheral adjustments in the statute, for making its implementation effective, without touching its substance. That is why the 'removal of difficulty clause', once frowned upon and nick-named as 'Henry VIII clause' in scornful commemoration of the absolutist ways in which that English King got the 'difficulties' in enforcing his autocratic will removed through the instrumentality of a servile Parliament, now finds

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acceptance as a practical necessity, in several Indian statutes of post-independence era.

……………”

b) Further, the Hon'ble High Court of Delhi in a recent case of “Ashapura Minechem Ltd Vs. Union Of India

3& Ors.” on parallel subject lines as of this very matter, delivered the judgement on 01.11.2017 saying:

“51. The petitioner, we may notice, has not challenged Section 252 of the Code which had the effect of amending, in the manner as specified in the Eighth Schedule, the provisions of the Repeal Act.

52. In view of the above discussion, it is held that the Central Government, in exercise of power conferred under Section 242 of the Code could have removed the difficulties which came to its notice upon enforcement of the Code and its implementation. Clause (b) to Section 4 of the Repeal Act, in fact, was substituted in terms of Eighth Schedule inserted by Section 252 of the Code.

53. To summarise -

(i) the classification of cases where draft schemes for reconstruction have been sanctioned and those cases where schemes a re pend ing i s nondiscriminatory and is based on intelligible differentia as also has nexus to the object sought to be achieved by enacting the Code;

(ii) the inclusion of the Eighth Schedule to the Code is in exercise of powers under Section 242 and Section 252 and is thus not ultra vires;

(iii) the prescribing of a cut-off date by way of notifications i.e. 1stDecember, 2016 is not contrary to law;”

Accordingly, the pleadings were concluded on the above mentioned submissions and the judgement was thereafter reserved by the Hon'ble NCLAT. The awaited judgement will hopefully provide clarity on the matter provided the same is not challenged by either of the parties who would be aggrieved by the outcome.

1. Company Appeal (AT) (Insolvency) No. 325 of 2017

2. (1975) 3 SCC 765

3. W.P.(C) 9674/2017

Reference:

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