MR. KAVIRAJ SINGH, PRESIDENT OF NBAI (FOUNDING PARTNER – TRUSTMAN & CO) WILL PRESIDE CMS WORLD FORUM AS AN EMINENT SPEAKER, AT MADRID ON OCT 16th – 20th 2012. Mr. Kaviraj Singh will share the will share their experiences on best practices, trends and challenges for the collections industry in the BRIC panel and there will be other senior speakers from different countries, such as Russia, China and Brazil The National Congress of Credit & Recovery becomes this year’s World Forum CMS. From 16 to October 20 inclusive will be held in Madrid two major conferences and a wide range of extracurricular activities, under the slogan “Sharing knowledge on credit.” CMS has coordinated its renowned event with FENCA (European Federation of National Associations of Collection) to generate a unique experience for Credit & Recovery experts around the world: Credit & Collection World Week. More than 800 leaders from more than 30 nationalities will share current knowledge about credit & collections: trends, experiences, success stories, solutions, visits to the major collection agencies in Spain, networking and exclusive content for a demanding audience looking to be always to the forefront. Trustman is a leading law firm in India specializing in Debt Collection, Litigation, Cross border transactions and legal outsourcing. # # # If you’d like more information about this topic, or to schedule an interview with Mr. Kaviraj Singh, please call Ms. Priya Arora on +91-9650345760 or e-mail priya_arora@nationalbarindia.com.
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ABA’s Electronic Discovery in Bankruptcy
Although the Federal Rules of Civil Procedure were updated in 2006 specifically to deal with electronically stored information (“ESI”), Bankruptcy Courts and Bankruptcy practitioners have had little bankruptcy-specific guidelines for managing ESI and electronic discovery issues. As a result, the ABA commissioned the Electronic Discovery (ESI) in Bankruptcy Working Group “to study and prepare guidelines or a best practices report on the scope and timing of a party’s obligation to preserve [ESI] in bankruptcy cases.” On March 15, 2012, the Working Group published their interim report on ESI in bankruptcy cases in an effort to invite and stimulate comments from a wider audience regarding how ESI issues should be handled in (i) large Chapter 11 cases; (ii) middle market and smaller Chapter 11 cases; and (iii) Chapter 7 and Chapter 13 cases
Director DIN Number
General Circular No: 32/2011 dated 31/05/2011, 66/2011 Dated 4/10/2011, 70/2011 dated 15.12.2011 and 04/2012 dated 09.03.2012, Ministry of Corporate Affairs has mandated providing Income-tax Permanent Account Number (Income-tax PAN) for obtaining Director Identification Number (DIN) in case of Indian nationals. All existing DIN holders who have not furnished their PAN earlier at time of obtaining DIN are also required to furnish PAN details by filing DIN-4 form on MCA21 by 30th April, 2012. In addition, in case of those DIN holders who have furnished their PAN earlier, there may be mismatch between particulars provided in their DIN application (i.e. name or father’s name or date of birth) with Income Tax PAN details. Such DIN holders are also required to correct their particulars in DIN data base by filing Form DIN4; In case of correction needed in PAN data base, they need to apply to Income Tax authorities and then file correct information with MCA21 using DIN4 form. This activity is also to be completed by 30th April, 2012. E-mails have been sent to such DIN holders who are covered in the above categories, viz non-availability of PAN or mismatch of PAN with DIN, and whose e-mail addresses are available in the MCA21 system. However, there are such DIN holders also whose e-mail addresses are not available in MCA21 system. All such cases of non-availability of PAN or mismatch between PAN and DIN have been made available in MCA21 Portal. You are advised to visit the MCA21 Portal to check your details and to file the DIN4 form wherever required. Filing information under DIN4 form is free of any charges. Non-provision of PAN details or any mismatch in DIN and PAN information will be treated as default and such DINs may be disabled for
access of MCA21 System after 30th April, 2012.
FINANCE BILL 2012 India
Direct Taxes
Some of the proposals in the DTC such as removal of the cascading effect of the Dividend Distribution Tax, allowing Venture Capital to invest in all sectors, introduction of Advance Pricing Agreements and raising the threshold limit for audit and presumptive taxation to Rs. 1 crore which have been endorsed by the Standing Committee, have already been included in the Finance Bill. In addition, certain provisions relating to a General Anti-Avoidance Rules (GAAR) have also been proposed in the Finance Bill, 2012. After examining the recommendations of the Standing Committee on GAAR provisions in the DTC Bill 2010, I propose to amend the GAAR provisions as follows: (i) Remove the onus of proof entirely from the taxpayer to the Revenue Department before any action can be initiated under GAAR. (ii) Introduce an independent member in the GAAR approving panel to ensure objectivity and transparency. One member of the panel now would be an officer of the level of Joint Secretary or above from the Ministry of Law. (ii) Provide that any taxpayer (resident or non-resident) can approach the Authority for Advance Ruling (AAR) for a ruling as to whether an arrangement to be undertaken by her is permissible or not under the GAAR provisions.
To provide more time to both taxpayers and the tax administration to address all
related issues, I propose to defer the applicability of the GAAR provisions by one year. The GAAR provisions will now apply to income of Financial Year 2013-14 and subsequent years. That clarificatory amendments do not override the provisions of Double Taxation Avoidance Agreement (DTAA) which India has with 82 countries. It would impact those cases where the transaction has been routed through low tax or no tax countries with whom India does not have a DTAA. The retrospective clarificatory amendments now under consideration of Parliament will not be used to reopen any cases where assessment orders have already been finalized. I have asked the Central Board of Direct taxes to issue a policy circular to clearly state this position after the passage of the Finance Bill. Currently, long term capital gain arising from sale of unlisted securities in the case of Foreign Institutional Investors is taxed at the rate of 10% while other non-resident investors, including Private Equity investors are taxed at the rate of 20%. In order to give parity to such investors, I propose to reduce the rate in their case from 20% to 10% on the same lines as applicable to FIIs.
To promote further depth of the capital markets through listing of companies, I propose to extend the benefit of tax exemption on long term capital gains to the sale of unlisted securities in an initial public offer. For this purpose, I propose to provide the levy of Securities Transaction Tax (STT) at the rate of 0.2 per cent on such sale of unlisted securities. It has been proposed in the Finance Bill that any consideration received by a closely held company in excess of the fair market value of its shares would be taxable. Considering the concerns raised by „angel‟ investors who invest in start-up companies, I propose to provide an enabling provision in the Income Tax Act for exemption to a notified class of investors.
In order to augment long-term low cost funds from abroad for the infrastructure sector, Finance Bill proposes a lower rate of withholding tax of 5% for funding specific sectors through foreign borrowings. To further facilitate access to such borrowings, I propose to extend the lower rate of withholding tax to all businesses. This lower rate of tax would also be available for funds raised through long term infrastructure bonds in addition to borrowing under a loan agreement. The Reserve Bank of India is formulating a scheme for subsidiarisation of Indian branches of foreign banks to ring fence Indian capital and Indian operations from economic shocks external to the Indian economic scenario. To support this effort, I propose to provide tax neutrality for such subsidiarisation. The Finance Bill proposes that every transferee of immovable property (other than agricultural land), at the time of making payment for transfer of the property, shall deduct tax at the rate of 1% of such sum. I have received a number of representations pointing out the additional compliance burden this measure would impose. I, therefore, propose to withdraw this provision for levy of TDS on transfer of immovable property. To curb the flow of unaccounted money in the bullion & jewellery trade, the Finance Bill proposes the collection of tax at source (TCS) by the seller at the rate of 1 per cent of the sale amount from the buyer for all cash transactions exceeding Rs.2 lakh. Responding to the representations made by the jewellery industry that this would cause undue hardship, I propose to raise the threshold limit for TCS on cash purchases of jewellery to Rs.5 lakh from the present Rs.2 lakh. The threshold limit for TCS on cash purchase of bullion shall be retained at Rs.2 lakh. However, it is being clarified that bullion will not include any coin or other article weighing 10 gms or less.
Customs and Central Excise
A related proposal that has attracted public attention is the imposition of Central Excise duty on unbranded precious metal jewellery at the rate of 1%. Madam Speaker, I would like to reiterate that the levy was well-intentioned and introduced not so much for raising revenue as for rationalization and movement
towards GST. However, the outpouring of sentiment both within and outside the
House indicates that we are not ready for it. As such, the Government has decided to withdraw the levy on all precious metal jewellery, branded or unbranded, with effect from 17th March, 2012. The House would recall that certain amendments were proposed in the Customs and Central Excise Law in respect of the classification of offences as cognizable and non-bailable. In response to concerns expressed by Members that the proposal regarding grant of bail only after hearing the public prosecutor is too harsh, I propose to omit this provision entirely. In addition, only serious offences under the customs law involving prohibited goods or duty evasion exceeding Rs.50 lakh, shall be cognizable. However, all these offences shall be bailable. There are a few other proposals relating to rationalization and adjustment of central excise and custom duties which I will place before the House while replying to the debate.
Service Tax
As Hon‟ble Members are aware, taxation of services has undergone a paradigm shift with the introduction of a Negative List. This initiative has been widely welcomed. The negative list has been drawn keeping in view the federal nature of the polity. Some of the States, through the Empowered Committee of State Finance Ministers, have expressed their concerns. I have decided to address their concerns by making changes in the definition of “service” which will exclude the activities specified in the Constitution as “deemed sale of goods”. The definition of “works contract” has also been enlarged to include movable properties. Exemption for specified services relating to agriculture in the Negative List has also been extended to agricultural produce enlarging the scope of the entry. There are some other minor changes in the definitions based on the widespread feedbacks and suggestions that we have received from various stakeholders and are specified in the revised draft.
Notifications to give effect to these changes would be issued in due course and laid on the table of the House.
Examination of evidence of use as a Trade Mark India
The “market share” question will generally arise in the case of marks owned by large corporations. In India in a competitive business environment trade marks are used by also small traders in connection with small business. It is impracticable to require them to show “market share” held by the mark. However where claims are made for recognition of a trade mark as wellknown trade mark, it will be appropriate to require details of market share held by the applicant under the mark applied for. Turnover, commencement of use and Period of Use Evidence should be in respect of the user of the mark, when first commenced and the period of use must be before the date of filing. Any use after that date should not be taken into account. If there have been gaps in the use, it will be necessary to consider how this affects the reputation of the mark applied for. For example, a strawberry grower may not be able to demonstrate sales throughout the year, but if he sells his strawberries for two months of the year every year for ten years, that is likely to be sufficient to illustrate continuous use, given the seasonal nature of his product. Another trader might sell goods under a
certain mark for twelve years, but there may be a two year gap leading up to the date of the application in which few or no sales took place. Before a judgement can be made about accepting or refusing the mark, it would be necessary to look at all the surrounding facts to see what effect that gap had. If sales weren’t particularly strong beforehand, the reputation of the mark may have been severely diminished. If, on the other hand, sales were very good both before and after, it may be that the gap would have no negative effects on the reputation at all. Sales turnover figures should normally be given for the sales of goods/services under the mark over a period of about five years before the date of application. If the period of use is shorter, the turn over for the period in question should be considerable, having regard to the nature of goods. The greater the turnover, the more likely it is for the mark to be accepted. Turnover, advertising and period of use are considered together – massive turnover and/or advertising could compensate for a short period of use. Ideally, the turnover figures should be broken down to give the turnover relating to each class of goods/services. However, industry does not group its products according to the WIPO system of classification, so this may not be a practical proposition. There should however be sufficient breakdown of the goods/services to support a finding that the relevant public has been repeatedly exposed to the mark in use as a trade mark for all the goods/services for which acceptance is proposed. In the case of financial services, turnover figures may not always be the appropriate means to gauge the extent of use of the trade mark. For example, turnover figures which are merely the total amount loaned or insured by the applicant will give an inflated picture in relation to how well-known the mark is in terms of exposure to the relevant public. However, a clear indication of the extent of use is required if the applicant is relying on this to demonstrate that the mark has acquired a distinctive character. In the case of financial services the number of account holders or investors and, if appropriate, the number and geographical spread of branches, could be used to demonstrate the extent of the use. Area of use Registration of trade mark is made generally on All India basis, unless otherwise the registration is limited to particular territory such as “for use in the state of ……” or “for use in the district of ………”. Such territorial restriction may be applied generally in the case of perishable goods such as milk products or vegetable products and not in the case of other consumer durables/FMCG. For
export: Occasionally, turnover figures also include goods for export. These figures may also be taken into account when considering the strength of the evidence. If turnover relates to goods manufactured in this country which are only for export, the applicant stands in the same position as a proprietor with a purely local reputation. The evidence will not normally be sufficient to demonstrate that the mark has acquired a distinctive character amongst a significant proportion of the relevant public in India. In such cases, application may be accepted as “only for export”. If the use of the mark is only outside India, such use is irrelevant in this country. Expenditure on advertisement of trade mark Expenditure on advertisement of trade mark are normally provided for a period of 3 years or more prior to the date of filing of the application. The nature of the advertising should be given where possible e.g. television, radio, newspapers, trade magazines, etc. The Registry should see whether the advertising was nationwide or restricted to local areas. The figures should be broken down to show costs in relation to each class of goods/services where this is feasible. The importance to be attached to advertising figures will very much depend on the goods/services at issue. For example, the advertisement expenditure between highly sophisticated goods or fast moving consumer goods would be totally different. There may be little or no advertisement expenditure for highly specialized products with a special market. e.g. aircraft market As against that the expenditure in relation to the promotion of toothpaste or cosmetics may be very high. In the case of some products of small value the company’s promotion of their products may be through catalogue informing the existing clients of their updated products,. It is therefore important to assess the
circusmtances of each case in assessing the quantum of expenditure on advertisement on trade marks. Exhibits – are required to show how the mark has been used and in relation to which goods/services. They may be, for example, brochures, catalogues, price lists, invoices, area of sales, advertisements, etc. All exhibits should be dated prior to the date of application.
