all Law.

Here is another episode of LKS' all Law., where Mr. Devesh Aswal and Ms. Neha Jain discuss the topic “Cross-Border Share Sale – Eligibility for Tax Treaty Benefit”. The benefit under the tax treaty is subject to provisions of General Anti Avoidance Rules (GAAR) enacted under the domestic law and Principal purpose test (PPT) embedded in tax treaties. Under both GAAR and PPT, the benefit of tax treaties should be available only for transactions having commercial substance. Though both GAAR and PPT are relatively new, the Courts in India have been applying judicial anti-avoidance tests existing prior to the introduction of GAAR. In this podcast, we will cover the jurisprudence and the key issues surrounding the application of GAAR and PPT.This podcast is based on a recent article by Mr. Harshit Khurana and Ms. Sonali Bansal.Link to the article: https://www.lakshmisri.com/insights/articles/cross-border-share-sale-eligibility-for-tax-treaty-benefit/

Here is another episode of LKS' all Law., where Ms. Anshita Khandelwal and Mr. Arpit Mehra discuss the topic “EU'S NON-PREFERENTIAL RULES OF ORIGIN: A TOOL FOR DETERMINING ORIGIN OF GOODS AND PROMOTE FAIR TRADE”Recently, EU has been focusing on strengthening its non-preferential rules of origin by prescribing tighter norms for the determination of the origin of goods. These rules are enforced by the customs authorities at the border, thereby ensuring origin is properly declared in the entry documents filed before customs authorities for all regulatory purposes and duties, including trade remedial duties, are appropriately paid by the importers.This podcast is based on a recent article authored by Mr. Arpit MehraLink to the article: https://www.lakshmisri.com/insights/articles/eu-s-non-preferential-rules-of-origin/ 

Here is another episode of LKS' all Law., where Mr. Prashant Pratyay and Mr. Gaurav Tiwari discuss the topic “Digital Personal Data Protection Act – Implications for financial entities and fin-tech sector”The Digital Personal Data Protection Act, 2023 introduces a comprehensive framework on data protection applicable to entities processing personal data across all sectors. Some of the key obligations include notice, consent requirements, relying on legitimate purposes (where applicable), implementation of technical and organizational measures and security measures for preventing data breach. Link to the article:  Digital Personal Data Protection Act – Implications for financial entities and fin-tech sector Authors:  Prashant Phillips and Sameer Avasarala

Here is another episode of LKS' all Law., where Mr. Aman Joshi and Ms. Mehak Mehra discuss “Key Issues Impacting the Pharmaceutical Sector Classification, Human Resources & Investigations”Since the introduction of Goods and Services Tax (GST), Indian pharmaceutical companies have faced significant challenges in implementing their operations, revamping their systems, understanding the law, complying with various law provisions, claiming refunds, and handling audits and investigations in an uncertain environment. In this podcast, we will cover key issues relevant to the Indian pharmaceutical industry from a Classification, Human Resources & Investigations perspective. This podcast is based on a recent article by Mr. Satya Sai, Associate Partner, and Satish Gandla, Principal Associate.Link to the article: https://www.lakshmisri.com/insights/articles/key-issues-impacting-the-pharmaceutical-sector-1/ 

Here 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 formation of committee of creditors | Lakshmikumaran & Sridharan Attorneys (lakshmisri.com)Authors: Abhilasha Jha

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 the assessment of the claimed invention by the Respondent was erroneous and remanded the application back to the Respondent to examine the subject patent application afresh including the question of patentability, after giving an opportunity of hearing to the appellant. This podcast specifically focuses on the opinion of the High Court with respect to the assessment of inventions under Section 3(h) of the Act. This podcast is based on a recent article by Srinivasan T. and Eeshita Das.Link to the article: Patent of method of treating a plant – Interpretation of Section 3(h) | Lakshmikumaran & Sridharan Attorneys (lakshmisri.com)Voice: Nikita Chauhan and Devesh Aswal

Here 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 (lakshmisri.com)

Here 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 article by Mr.  Brijesh Kothary, Ms. Padmasri Manyam, and Ms. Ananya Raghavendra. Link to the article: Leasing of capital goods between two GSTINs | Lakshmikumaran & Sridharan Attorneys (lakshmisri.com)

This 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 recipients outside India, with consideration received in convertible foreign exchange, qualifies as an export of service. The Tribunal clarified the term "service recipient" and determined that the location of the service recipient being outside India is crucial for fulfilling the export condition. The impact of this decision on the GST regime and its implications for businesses engaged in cross-border transactions remains to be seen, as it may influence the interpretation of GST provisions as well. Link: Export of services: Settled, yet unsettled | Lakshmikumaran & Sridharan Attorneys (lakshmisri.com)Source: An article published on the LKS website in June 2023Authors:  Shrishti Agarwal, Disha Jain, and Narendra Singhvi Voice: Ananya Raghavendra and Saundarya Sinha

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 information can result in a valid reopening. This Podcast seeks to discuss this crucial aspect of the new reassessment provisions.Link: Change of opinion: Whether permissible under the new provisions of reassessment? | Lakshmikumaran & Sridharan Attorneys (lakshmisri.com)Source: An article published on the LKS website in July 2023Authors: Neha Sharma Voice: Arpit Mehra and Kanishka Sihare

In 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 honoured  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 on to examine the effect of the settlement agreement on the nature of debt if the settlement was entered between the parties after the IBC Proceeding was initiated. We have concluded that (a) revival of IBC Proceeding is permitted on certain conditions; (b) by virtue of entering into Settlement after IBC Proceeding is initiated would not change the nature of the debt.Link: Revival of insolvency proceedings: Analysis and way forward | Lakshmikumaran & Sridharan Attorneys (lakshmisri.com)Source: An article published on the LKS website in June 2023 Authors: Aman Gupta Mayank KumarVoice: Pratyush Jain and Falguni Gupta 

The 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 products were not in existence at the time of India's commitments, and they got included in India's commitment by an inadvertent oversight. Although the arguments advanced were insightful & contained merit, the Panel was of the view that India's primary obligations stem from her WTO Agreements and not from the commitments under the ITA which formed the fulcrum of India's arguments. While the industry may face headwinds in the short term, the government will find alternative measures to keep the electronics industry competitive in the long term as envisioned.Link: India loses the fight for electronic goods against EU at the WTO | Lakshmikumaran & Sridharan Attorneys (lakshmisri.com)Audio Source: An article published on the LKS website in June 2023Authors: Rizwan ShahVoice: Sanjhi Agarwal and Gaurav Tiwari

The Hon'ble Supreme Court of India (“Hon'ble SC”) in the recent decision in Saraf Exports v. CIT settled the issue of entitlement of deduction as per Section 80IB of the Income Tax Act, 1961 (‘IT Act'). The issue was pertaining to the receipts under Duty Drawback scheme (‘DDS') and transfer of Duty Entitlement Pass book scheme (‘DEPB'). During the subject period, the taxpayer received certain incentives under DDS and DEPB. These said benefits were claimed as deduction u/s Section 80IB of the IT Act, as being ‘derived from' its industrial undertaking of manufacturing wooden handicrafts. The Hon'ble Supreme Court held that export incentives will not qualify as first-degree nexus for the purposes of claim of deduction under Section 80-IB.  The decision has reiterated the principle laid down earlier that restrictive meaning must be given to the expression ‘derived from'. Link: Impact analysis of the Supreme Court decision in Saraf Exports v. CIT: Worth the wager? Audio Source: An article published on the LKS website in June 2023.Authors: Krishna Laasya V Voice: Dikshita Damodaran, Amrusha Monga

When 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 investigation and getting the best results.Link: Becoming trade remedies-ready – A practical guide for producers and exporters | Lakshmikumaran & Sridharan Attorneys (lakshmisri.com)Audio Source: An article published on the LKS website in May 2023.Authors: Devinder Bagia Jayant Raghu Ram Voice: Prashant Phillips and Bhavya Shukla  

 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 charitable entities engaged in actual application towards end causes. Thus, these charitable entities that act as aggregators can be subject to taxation at maximum marginal rates in spite of applying almost 100% of the donations received by it by way of donations to other charitable entities. This deeming provision causes uncertainty for the charitable entities, and a clarification from CBDT in this respect would be welcome. Link:  Deemed application provision causes uncertainties for donation aggregators | Lakshmikumaran & Sridharan Attorneys (lakshmisri.com) Audio Source: An article published on the LKS website in May 2023.Authors:  Sanjhi Agarwal and Prachi Bhardwaj Host: Arpit MehraExpert: Sanjhi Aggarwal  

The 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 appointment of arbitrator under Section 11 of the Arbitration and Conciliation Act, 1996 (“Arbitration Act”) cannot be invoked if the arbitration agreement or clause is contained in an unstamped or insufficiently stamped agreement or contract. Link: Arbitration agreement, which is part of an unstamped contract, has no existence | Lakshmikumaran & Sridharan Attorneys (lakshmisri.com)Audio Source: An article published on the LKS website in May 2023.Authors: Manasa Tantravahi Aman GuptaExpert: Dhruv Matta 

This 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 assessment of the claimed invention by the Respondent was erroneous and directed that the Patent Application may proceed for a grant. The High Court has redefined the boundaries of permissible claim amendments for overcoming the objections on non-patentability especially Section 3(i) of the Act without jeopardizing the requirements of Section 59 of the Act. Therefore, the primary focus of this podcast is on the interpretation of Section 3(i) and Section 59 of the Act provided by the High Court.Link: De-blurring Section 59 of the Indian Patents Act 1970 | Lakshmikumaran & Sridharan Attorneys (lakshmisri.com) Audio Source: An article published on the LKS website in May' 2023Authors:  Malathi Lakshmikumaran, Srinivasan T, Eeshita Das, and Aashmeen Kaur  Expert:  Falguni GuptaHost:  Arnab Bhattacharya

This 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 principles of indispensability and commercial expediency of the inputs to arrive at the aforesaid conclusion. The Article also focuses on the ratios laid down in the subsequent decisions under diverse indirect tax legislations, wherein, similar conclusions were arrived at. The Article also compares S.19(9)(iii) of the TNVAT Act with Section 17(5)(h) of the CGST Act and opines that the Impugned Judgement might come to assistance if similar demands are raised under the GST regime. The Podcast ends on a cautious note that each claim/reversal of ITC must be independently dealt with.Link:Eligibility of Input Tax Credit vis-à-vis inherent loss of inputs during manufacture | Lakshmikumaran & Sridharan Attorneys (lakshmisri.com) Audio Source:  An article published on the LKS website in May 2023.Authors: Charulatha R Nimrah Ali

While 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 be included as a part of the debt. There appears to be a deliberate difference in the language used for both terms. Accordingly, the understanding between the parties over levy of interest plays a key role while computing the amount of ‘operational debt'.Link: Interest as part of Operational Debt: A conundrum | Lakshmikumaran & Sridharan Attorneys (lakshmisri.com)Audio Source:  An article published on the LKS website in April 2023.Authors: Noorul Hassan Aishwarya Narasimhan

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 the transaction. The issue is whether the taxable value for discharging GST should be confined only to the contractual payment or whether the amount of TDS should also be added. The podcasr discusses court decisions on the valuation provisions in the Finance Act, 1994, and the GST law. The author highlights the intricacies of TDS withholding, which has been a matter of dispute in the past. While some court decisions have held that TDS should not be added to the taxable value, the podcast suggests that the valuation provisions under the GST law require a closer examination of whether the contractual payment made to the supplier can be equated with 'sole consideration.' While the Finance Act considers the contractually agreed amount as the gross amount charged, the GST law provides that the taxable value shall be the transaction value, i.e., the price actually paid or payable. However, the presence of 'sole consideration' would depend on the facts and circumstances of each case, and it needs to be examined whether the contractual payment made to the supplier can be equated with 'sole consideration', wherein TDS is borne by the service recipient.The podcast concludes that the presence of 'sole consideration' would largely depend on the facts and circumstances of each case.Link:Withholding Income Tax: Withholding the ambiguity in GST Valuation? | Lakshmikumaran & Sridharan Attorneys (lakshmisri.com)Audio Source:  An article published on the LKS website in April 2023.Authors:  Shiwani Kaushik, Associate LKS

Patentability 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 infringement proceedings.Link: Patentability of Selection Inventions – Analysis of recent Delhi High Court decisions | Lakshmikumaran & Sridharan Attorneys (lakshmisri.com)Audio Source:  An article published on the LKS website in April 2023.Authors: Gursimran Singh Narula, Associate and Vindhya S. Mani Associate Partner, LKS

Every 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 discuss the proposed amendment and its impact in the context of waiver of debt.Link: Tax on ‘Cash' benefits and perquisites – Applicability on waiver of debts | Lakshmikumaran & Sridharan Attorneys (lakshmisri.com)Audio Source:  An article published on the LKS website in March 2023.Authors: Harshit Khurana, Principal Associate, LKS

This 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 the Applicant is well within its right to claim for such an implant. Ayyangar Committee Report, which forms the basis of our current act was also discussed and the Justice noted that the intention of the report was to allow wider permissibility in claim amendments before the grant and it is not needed for the invention to be identical before and after the amendment. Special reliance was also placed on different case laws and orders which altogether suggest that the object of patent law is to encourage scientific research, new technology and industrial progress. Therefore, rejecting the claims outright under Section 59 without substantial examination will be against the very purpose of the Act.Link: A ray of hope: Delhi High Court allows amending method claims to product claims | Lakshmikumaran & Sridharan Attorneys (lakshmisri.com)Audio Source: An article published on the LKS website in March 2023.Authors: Prosenjit Chattopadhyay, Partner and Swati Upadhyay, Assoicate  LKS

The imposition of trade remedial measures in India is a two-step process – the investigation conducted by the Directorate General of Trade Remedies (‘DGTR') under the Ministry of Commerce and the final imposition of measures by the Department of Revenue under the Ministry of Finance (‘MoF'). This division of powers is clearly laid out in the Customs Tariff Act (‘CT Act').Audio Source: An article published on the LKS website in March 2023.Authors: Devinder Bagia, Partner, and Aayush Rastogi, Senior Associate LKS.

With India setting ambitious target to become net zero by 2070, the recent amendments to the Energy Conversation Act, 2001 brings in a regulatory framework in moving towards the stated goal of becoming a low carbon intense economy. A significant introduction in this amendment is the introduction of carbon markets that would enable entities to trade credits earned from conservation of energy in line with the Paris Agreement (COP21). The practical and implementation aspects of the carbon credit trading will be clearer once the trading scheme is notified in future. With renewed focus on sustainable development goals to secure future generations, we may see more similar policy reforms in the future and this amendment to Energy Conversation Act, 2001 is only a first in the lot. Audio Source: An article published on the LKS website in February 2023.Authors: Kumar Panda, Senior Associate LKS.

This podcast examines the decision made by the Hon'ble High Court of Delhi (‘High Court') on an appeal (2022/DHC/004697) filed under Section 117A(2) of the Patents Act, 1970 (‘Patents Act'). The appeal was filed by Avery Dennison Corporation (‘Appellant') seeking to set aside an order passed by the Controller of Patents and Designs (‘Respondent') refusing the grant of the Appellant's patent application for lacking inventive step. The High Court, after considering the facts of the case, decided that the assessment of the claimed invention by the Respondent was erroneous and directed that the patent application may proceed for a grant. The podcast also  highlights the fundamental principles discussed by the High Court for analysis of an ‘inventive step' in India.Audio Source: An article published on the LKS website in February 2023.Authors: Eeshita Das, Senior Patent Analyst and  Archana Viswanathan, Principal Associate.

Section 11 of the Income-tax Act, 1961 inter alia exempts the income of a registered Trust, earned from property held under Trust, while Section 13 of the Act contains certain anti-abuse provisions to deny exemption upon certain applications of the Trust income. Where any part of Trust income is applied / invested directly or indirectly, for the benefit of specified person is violative of Section 13(1)(c) while investment of any part of Trust income other than in public sector company or modes specified under Section 11(5) is violative of Section 13(1)(d).This podcast firstly addresses the controversy regarding the expansiveness of Section 13(4). Notably, Section 13(1)(c) and Section 13(1)(d) function as independent bars on Section 11 exemption. Section 13(4) has been drafted in such a manner that any protection guaranteed by Section 13(4) may relax requirements of Section 13(1)(c), but Section 13(1)(d) will continue to apply towards any exempted income under Section 11.The other issue addressed by the podcast is pertaining to historical disputes around the denial of exemption vide Section 13, i.e., whether violation of Section 13 results in denial of exemption under Section 11 in toto, or only to the extent of such violation. Conflicting judicial views persisted on either position of law. The Finance Act 2022 seeks to put an end to this conflicting view by clarifying that only that part of income which has been applied / invested in violation of the Section 13(1)(c) / Section 13(1)(d) shall be liable to denial of Section 11 exemption and be taxable under the newly introduced Section 115BBI of the Act.Audio Source: An article published on the LKS website in February 2023.Taxation of unexempt income of Public Charitable TrustsAuthors:  Samyak Navedia , Associate LKS,

The 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 contract and such amount shall not qualify as consideration towards supply of any goods or services. However, the Circular has not been expressive with respect to various reasons for which the arbitral award is granted and thus the direct approach that the award is in the nature of damage and that the GST is not applicable would jeopardize the actual GST implication on such award. Audio Source: An article published on the LKS website in December 2022.Arbitral award: Compensation or consideration | Lakshmikumaran & Sridharan Attorneys (lakshmisri.com)Authors:  Jagannadh Grandhi, Associate Partner LKS, and Kumari Nivedita, Associate LKS

GST 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 administer tax on local supply of goods under Article 246A and hence, VAT amendment was held valid.  However, Article 246A empowers States only for administering GST and not VAT. Hence, amendment in limitation period after 16.09.2017 may not be legally sustainable.Audio Source: An article published on the LKS website in January 2023Value addition' in Value Addition Tax: Extension of limitation period | Lakshmikumaran & Sridharan Attorneys (lakshmisri.com)Author: Rinku Panbude 

The previous article published in our firm's IPR Amicus, Issue No. 135 (December 2022)[1] highlighted evolving jurisprudence and the principles for filing divisional applications in India as laid out by the erstwhile Intellectual Property Appellate Board (‘IPAB') and the Delhi High Court.A key prerequisite for filing a divisional application, as mentioned in the previous article, is that the presence of plurality of invention has to exist, not just in the specification, but also in the claims of the parent (first mentioned) application.This prerequisite can be clearly drawn from the following orders:(1) Order No. OA/66/2020/PT/DEL dated 27 October 2020, of IPAB, Esco Corporation v. Controller of Patents & Designs[2];(2) Order No. OA/3/2015/PT/MUM dated 27 October 2020, of IPAB, UCB Pharma S.A. v. Controller of Patents & Designs[3]; and(3) Boehringer Ingelheim International GMBH v. The Controller of Patents & Anr., dated 12 July 2022, of the Delhi High Court[4].Emphasis is drawn on to some excerpts of the above-mentioned orders:Aythors: Gaurav Gupta, Director and Shashank Kinra, Senior Patent Analyst   LKS

The 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 clause XXI. The panel in Russia – Traffic in Transit has also explained what might constitute an 'essential security interest ‘While it has recognized that every Member has the discretion to define what it considers to be its essential security interests, it has drawn a red line by stating that this does not mean that a Member is free to elevate any concern to that of an 'essential security interest', and the designation of any concern as an essential security interest must be in 'good faith ‘In this context, the panel's ruling in Russia – Traffic in Transit set an important precedent for the present dispute in holding that the measure must be connected and be plausible in relation to the essential security interest articulated by the defending Member. This excess capacity, according to the US, constituted an 'emergency in international relations'. The panel further held that the Section 232 steel and aluminum reports issued by the US Department of Commerce did not identify or address the existence of an 'emergency in international relations'. It was expected that the US Government would tone down its nihilistic rhetoric towards the multilateral trading system and withdraw measures that seemingly violate WTO law. The US is quite likely to appeal the panel report to the Appellate Body, which ironically, the US has driven to the ground.Audio Source: An article published on the LKS website in December 2022Playing on the wrong side – United States' Section 232 measures held inconsistent with WTO law | Lakshmikumaran & Sridharan Attorneys (lakshmisri.com)Author: Jayant Raghu Ram, Partner (LKS) 

The 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 essentially held that the GPU entity earning nominal profits will not be debarred from claiming exemption on its incidental business income. However, a GPU entity earning substantial profits can claim exemption only if the prescribed threshold (i.e., business receipts not exceeding 20% of the total receipts of such entity) is adhered to. The authors through this podcast have analyzed the key findings of the judgment and the ramifications it may have on the GPU entities going forward. Audio Source: An article published on the LKS website in December 2022Normal and substantial profits – A new yardstick for charitable purpose | Lakshmikumaran & Sridharan Attorneys (lakshmisri.com)Authors: Prachi Bhardwaj, Associate LKS) and  Sanjhi Agarwal Associate (LKS)

The 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 be well-equipped with similar exercises and prepared to discuss and advise concerned officials of the organization on the future course of action, as recommendation measures. According to the authors, proper policies need to be put in place and it is to be also ensured, that the stakeholders are made aware of the same, including any amendments thereto, as this may not only assist in creating a better work environment but also in investigating allegations later.Audio Source: An article published on the LKS website in December 2022Navigating a workplace investigation | Lakshmikumaran & Sridharan Attorneys (lakshmisri.com)Authors:  Sudish Sharma, Executive Partner and Ayushi Agrawal, Associate

Recent 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 divisional applications thereon.Audio Source: An article published on the LKS website in December 2022Divisional Applications in India: Evolving jurisprudence | Lakshmikumaran & Sridharan Attorneys (lakshmisri.com)Author: Prosenjit Chattopadhyay, Partner LKS and Supriya Ramacha, Principal Associate  

In 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. The podcast discusses some of the salient aspects of the US sanctions regime as administered by the OFAC. It also discusses how can Indian businesses provide more attention to the implications of sanctions on them, the challenges that Indian businesses face, and how they comply with provisions of OFAC to overcome these challenges.Audio Source: An article published on the LKS website in December 2022OFAC - Insights into the US sanctions regime | Lakshmikumaran & Sridharan Attorneys (lakshmisri.com)Author: Arpit Mehra, Associate LKS

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 and concentrates was increased with the objective of checking on the rising steel prices in the Indian market, addressing shortages and curbing inflation. The move to roll back the export duty within a period of six months is taken considering the stability in domestic prices of the steel products and taking all stakeholders' concerns into account because the inventory of steel products has risen drastically, and India has become a net importer of steel in October 2022 due to curtailed exports. In this podcast, the authors are explaining the impacts and implications of why the government has withdrawn the export duty imposed on Iron and Steel items.   Audio Source: An article published on the LKS website in November 2022Export duty on iron ore and steel intermediaries – An industry perspective! | Lakshmikumaran & Sridharan Attorneys (lakshmisri.com) Author: Ravi Raghavan, Senior Partner (LKS) and Brijesh Kothary, Associate Partner (LKS)   

The 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 an appeal before the SAT which examined the provisions of the 1956 Act under Section 68 and Section 77. Section 68 provides that 'any person knowingly or recklessly makes a statement which is false, deceptive, or misleading he would be punishable with imprisonment for a term which may extend to five years or with fine or both'. The tribunal also examined the provision laid under Section 215 (Authentication of balance sheet and profit and loss account) of the 1956 Act. A company secretary is under no obligation to undertake utmost due diligence to check the veracity of the buyback offer before ascribing his signatures to the same. Once the balance sheet or profit and loss account are approved by the Board of Directors, the role of a company secretary in signing them is merely Administrative in nature. NCLT earlier this year in Technology Frontiers (India) Private Limited v. Global Sports Commerce Pte Ltd & Ors. took an alternative stance and held that a company Secretary is a 'Watchdog of protecting the Principles of Corporate Governance.Audio Source: An article published on the LKS website in November 2022Company Secretary whether liable for misleading financial information given by a company | Lakshmikumaran & Sridharan Attorneys (lakshmisri.com)Author: Manan Chhabra, Senior Associate (LKS)

In the context of dividend income of French and Netherlands shareholders, the applicability of MFN clause has been a subject matter of dispute between the taxpayers and the Revenue authorities. The taxpayers have argued that MFN clause is applicable on dividend income received by Netherlands and French shareholders, and as a result, the dividend income is taxable in India at the rate of 5% (provided in tax treaty with Slovenia) instead of the higher rate of 10% provided in respective treaties.The High Court of Delhi has decided the above matter in favour of the taxpayers. The Revenue authorities have preferred SLP against said Orders which is pending for consideration before the Supreme Court. The Revenue authorities have also clarified their stance by issuing a circular.In this podcast, the authors attempt to explain the controversy and the key arguments which in the authors' view weigh in favour of both the taxpayer and the Revenue authorities.Audio Source: An article published on the LKS website in November 2022https://www.lakshmisri.com/insights/articles/benefit-of-most-favoured-nation-clause-for-dividend-income-of-non-resident-interesting-battle-to-watch-out-for-before-apex-court/#Author: Harshit Khurana, Principal Associate (LKS), Devashish Jain, Senior Associate (LKS)

The Ministry of Electronics & Information Technology notified an amendment to the Intermediary Guidelines proposing certain enhanced due diligence obligations for intermediaries apart from introducing grievance appellate committees. In this podcast, the authors discuss the amendment in light of enhanced obligations such as publication of policies in other languages and enhanced content restrictions apart from compliance with expectations of privacy, transparency and respect of fundamental rights of citizens, typically enforceable against the State in terms of the impact of these additional obligations on intermediaries and their functioning. The amendment also establishes grievance appellate committees (GACs) which may be set up by the Central Government as appellate mechanisms against decisions of grievance officers of intermediaries.Audio Source: An article published on the LKS website in November 2022https://www.lakshmisri.com/insights/articles/amendment-to-the-intermediary-guidelines-increased-due-diligence-and-grievance-redressal/Author: Prashant Phillips, Partner (LKS) and Sameer Avasarala, Senior Associate (LKS) Voice: Yashraj Chauhan, Associate (LKS)

The outbreak of the war in Ukraine has brought into focus the use of sanctions as a tool by Western countries to punish Russia and Russian entities. While the use of sanctions as a tool to achieve foreign policy and military objectives is well known, Indian businesses are less aware of the implications of Western unilateral sanctions for dealing with sanctioned countries and sanctioned entities. After providing an introduction to the origin and nature of sanctions, this article also provides an overview of the legal framework of Western unilateral sanctions and their extra-territorial operation with the objective of sensitizing Indian businesses.Audio Source: An article published on the LKS website in October 2022Beware of sharks in the water – Navigating trade in a world of sanctionsAuthor: Jayant Raghu Ram, Principal Associate (LKS) Voice: Yashraj Chauhan, Associate (LKS)

The tax treaties entered between India and other countries aims to avoid double taxation of income in the hands of a person (taxable in multiple countries) by providing him with an option to claim credit of the tax paid in a foreign country (FTC) against his tax liability in India. Rule 128 of the IT Rules provides that FTC to be allowed in India would be equivalent to the lower of the tax payable on a foreign income in India and in that foreign country.Now, taking benefit from the language of the articles pertaining to FTC in some of the tax treaties, taxpayers have contended that the entire tax paid in the foreign country should be allowed as FTC in India without restricting it to income-tax payable in India. This view has been upheld by the Hon'ble Karnataka High Court in the case of Wipro Ltd. Vs DCIT: [2016] 382 ITR 179 (Kar) while interpreting India -USA DTAA. However, many courts have taken a divergent view.This podcast discusses and understand the dispute on this issue and analyse the divergent views taken by various courts with a hope that a much-needed conclusion is provided by the Hon'ble Supreme Court.Audio Source: https://www.lakshmisri.com/insights/articles/a-quandary-of-claim-of-foreign-tax-credit/Authors: Sanjhi Agarwal Snehal Shukla

Can trademark infringement be established in cases where recycled bottles with the trademark of one party embossed on such bottles are used by the other party for the sale of their goods? This issue was discussed by the Delhi High Court in the recent case, Anheuser-Busch LLC v. Mr. Surjeet Lal and Anr. decided on March 14, 2022. In this case, the Defendants were using the bottles of the plaintiff bearing their trademark BUDWEISER embossed on such bottles after recycling and relabeling them with their own trademarks BLACK FORT and POWER COOL to sell their own beer. The Court such an act of the Defendant for the purpose of sale of their own products was likely to cause confusion as to its source among the consumers, resulting in the Defendant's products likely to be confused as that of the Plaintiff's. The Court held that all the Plaintiff's registered trade mark ‘BUDWEISER' was being used by the Defendants who were not its registered proprietor and were also not entitled to permissive use in relation to their own beer. Such use would cause irreparable loss to the Plaintiff and dilution of its goodwill and reputation. Therefore, it was held that such sale resulted in infringement and passing off and the Court granted a permanent injunction in favour of the Plaintiff henceforth restraining them from using, manufacturing or selling their products under the mark ‘BUDWEISER', even in recycled bottles, or in any manner whatsoever, in respect of beer manufactured and sold by the Defendants. Audio Source: An article published on the LKS website in October 2022https://www.lakshmisri.com/insights/articles/recycle-with-care/Author:  Pulkit Doger, Niharika Tiwari

Telecommunications Law in India is currently governed by the Telegraph Act, Wireless Telegraphy Act and various licenses issued by Department of Telecommunications. Recently, the Government released the Draft Indian Telecommunication Bill, 2022 which proposed a renewed and future-ready framework governing the sector and provision of telecommunications services. This article discusses the expanded definition of telecom services, easing of certain controls around mergers, acquisitions and insolvency of licensees, provision of legal recognition to right-of-way for telecom infrastructure and retention of core features around exclusive privilege and licensing regime. It also discusses key changes, retentions and powers in the context of interception, monitoring, unsolicited communications and interactions between Government agencies as sectoral regulators.Audio Source: An article published on the LKS website in September 2022https://www.lakshmisri.com/insights/articles/draft-telecommunications-bill-an-explainer/#Author: Prashant Phillips, Sameer Avasarala

Telecommunications Law in India is currently governed by the Telegraph Act, Wireless Telegraphy Act and various licenses issued by Department of Telecommunications. Recently, the Government released the Draft Indian Telecommunication Bill, 2022 which proposed a renewed and future-ready framework governing the sector and provision of telecommunications services. This podcast discusses the expanded definition of telecom services, easing of certain controls around mergers, acquisitions and insolvency of licensees, provision of legal recognition to right-of-way for telecom infrastructure and retention of core features around exclusive privilege and licensing regime. It also discusses key changes, retentions and powers in the context of interception, monitoring, unsolicited communications and interactions between Government agencies as sectoral regulators.Audio Source: An article published on the LKS website in September 2022https://www.lakshmisri.com/insights/articles/powers-of-central-government-in-imposing-trade-remedial-measures/Author: Utkarsh Khandelwal, AssociateVoice: Sahana Rajkumar

Focusing on the exporters' obligations upon non-realization of export payments from erring foreign importers, this article discusses at length the legal and other remedies available with the exporters where the export transactions are not secured in any manner. The article in this regard analyses the civil remedies, remedy through alternative dispute resolution mechanism, remedy through Directorate General of Foreign Trade, and remedy by filing suit against the erring foreign importers in the subject foreign country. Further, since the non-realization/ repatriation of export proceeds is considered a contravention, the options like, representation before the Authorised Dealer Bank and/ or the RBI, write-off and compounding, under the FEMA laws have also been discussed here.Audio Source : An article published on the LKS website in August 2022https://www.lakshmisri.com/insights/articles/payment-recovery-mechanism-against-erring-foreign-importers/Authors: Aman Gupta, Associate (LKS)Voice : Anushka Verma, Associate (LKS) 

The Income-tax Act, 1961 seeks to levy tax on a non-resident (including a foreign company) only on that income which accrues or arises or is received in India. The Act also requires every company (including a foreign company) to furnish an annual return of income. In this background, one of the issues which has been of wide interest and contemplation is, whether a foreign company is liable to file an annual return of income in India, when there is income accruing or arising in India which is not liable to tax in India either on account of an exemption under the Act or under the Tax Treaty. This Article analyses the two possible views in the said factual scenarios. Audio Source : An article published on the LKS website in August 2022 https://www.lakshmisri.com/insights/articles/foreign-companies-obligation-to-file-tax-return-in-india/Authors: Neha Sharma, Principal Associate (LKS)Voice : Yashraj Chauhan, Associate (LKS) 

The recently announced Indo-Pacific Economic Framework (IPEF) includes commitments on four pillars, one of which relates to building an inclusive, free and fair trade in digital markets, also on free cross-border data flow. India decided against engaging on the fourth pillar of the IPEF at the moment, waiting for emerging contours and owing to ongoing process of firming up digital framework laws. The article discusses existing and forthcoming laws on data protections, judicial precedents and reports with specific emphasis on cross-border transfer conditions in light of the importance that trade agreements relating to digital economies such as IPEF accord to free flow of information, while protecting individual privacy.Audio Source : An article published on the LKS website in August 2022 https://www.lakshmisri.com/insights/articles/indo-pacific-economic-framework-and-future-of-cross-border-data-flows/#Authors: Prashant Phillips, Partner (LKS),  Sameer Avasarala, Senior Associate (LKS)Voice : Dikshita Damodaran, Senior Associate (LKS) 

The Government is set to revamp the landscape of information technology law in India through the introduction of the Digital India Act("DIA") which would replace the Information Technology Act, 2000. While the DIA is proposed to be a comprehensive framework which will cover different aspects of digital space including modern technologies like Artificial Intelligence and Internet of Things, it remains to be seen, how the government shapes this legislation in times to come. Amidst reports that other pieces in the technology law framework could include a Data Protection Bill which will deal with protecting privacy of individuals in digital space and propose a data protection framework, this podcast highlights what's expected as part of these legislations, and the focal points of what these legislations should address.

Competition Regulators try to restrict practices such as exclusive arrangements or refusals to deal with certain parties, as they may be anti-competitive in nature. This is often seen as interference with the commercial wisdom and autonomy of running a businesses. In this podcast, we will look at this conflict in closer detail, in light of CCI's recent judgements in two similar cases against Britannia & Parle, discussing the objectivity of selective distribution by enterprises as part of their right to freedom of trade.

Due to periodical amendments, the provisions relating to levy of interest under GST has been the subject matter of varied interpretations. Recently, the Central Goods and Services Tax Rules, 2017 (‘CGST Rules') have been amended vide the Amendment Rules, 2022 to introduce a new Rule 88B, retrospectively with effect from 1 July 2017. The said rule provides for the manner of calculating interest on delayed payment of tax. In this Article, the authors intend to analyze the nuances of the new Rule 88B and the implications arising therefrom.Audio Source : An article published on the LKS website in August 2022https://www.lakshmisri.com/insights/articles/new-rule-88b-providing-for-manner-of-calculating-interest-susceptible-to-challenge/#Authors: Sahana Rajkumar, Principal Associate (LKS),  Balaji Sai Krishnan Principal Associate  (LKS)Voice : Sahana Rajkumar, Principal Associate (LKS) 

The Question of whether amalgamation would per se invalidate an ‘assessment order' issued in the name of the Transferor company was clarified by the Hon'ble Supreme Court in PCIT (Central) v. Mahagun Realtors (P) Ltd (2022 SCC Online SC 407). Through this article the Authors capture and reflect on the peculiar aspects of the Judgement.