Corpolexindia ( Indian Corporate Law )

Stay Home and Save Lives: Prevention is Better Than Cure from the Corona Virus Lead Disease of COVID-19

noreply@blogger.com (Dr. Tabrez Ahmad) — Sun, 29 Mar 2020 10:07:00 +0000

It is challenging to know at early stages when you are infected by the novel coronavirus that causes the COVID-19 disease. There is a most common and rare symptom loss of smell that could signal you must be tested. According to Harvard T.H. Chan School of Public Health epidemiologist Marc Lipsitch, the virus could ultimately infect between 40% and 70% of the population worldwide. Some people might show no symptoms at all but many of those cases would be mild, while the prospect of being infected with a new virus can be devastating. The most symptoms, as per the Centre for Disease Control and Prevention (CDC), are fever, coughing and shortness of breath. These symptoms usually appear between two days and two weeks of exposure to the virus. Doctors recently added "loss of smell" as a potential symptom that may show up alone without any other symptoms, Live Science reported.

As per the Journal of the American Medical Association, as many as 98% of COVID-19 patients who were hospitalized had a fever, between 76% and 82% had a dry cough, and 11% to 44% reported exhaustion and fatigue. As per the current WHO ( World Health Organisation ) reports the coronavirus pandemic has killed more than 21,000 people worldwide, most of them in Europe. Most affected nations have called for complete lockdown to stop spread of the deadly virus.

The WHO said on 25^th March, 2020 that countries which have locked down their populations to prevent the spread of the coronavirus need to use the time to find and attack the virus. With 7,503 deaths, Italy is the most affected country ahead of Spain with 3,434 and China with 3,281, the country where the initial outbreak occurred. The United States has also seen over 900 deaths and some 60,000 infections.

Coronavirus has now spread to over 190 countries across the world affecting billions of people. "Asking people to stay at home and shutting down population movement is buying time, and reducing pressure on health systems. On their own these measures won't extinguish epidemics," said WHO Director-General Tedros Adhanom Ghebreyesus*. *As per the Reports from India Today.

Physicians work with state health departments and the CDC to determine who should be tested for the new virus. However, the CDC also recommends that people with COVID-19 or any respiratory illness monitor their symptoms carefully. If you become ill with the said symptoms and think you have been exposed to the virus, the CDC recommends calling your doctor first rather than traveling to a clinic Worsening shortness of breath is reason to seek medical care, particularly for older individuals or people with underlying health conditions. The CDC information page has more information on what to do if you are sick.

The disease appears to become more severe with age, with the 30- to 79-year-old age range predominating the detected cases in Wuhan, where the outbreak began, according to a study in JAMA. Children seem to be at less risk of suffering noticeable symptoms of the disease. However, a recent study of 2,000 children confirmed or suspected to have COVID-19 found that 6% developed severe or critical illness. The study is detailed in the March 16 issue of the journal Pediatrics.

In more serious cases of COVID-19, patients experience pneumonia, which means their lungs begin to fill with pockets of pus or fluid. This leads to intense shortness of breath and painful coughing.

Ultimately, the decisions about who should be tested are left to the discretion of state and local health departments, according to the CDC. However Govts in various countries have taken right decision to lock down. This is one of the best strategy to control the further spread of the Corona Virus. But the problem is that few people in general not observing it seriously and taking it casual.

For the specific details and news please click the following links.

ü Coronavirus in the US: Map & cases

ü How long does virus last on surfaces?

ü How does the coronavirus spread?

ü How deadly is the new coronavirus?

ü Is there a cure for COVID-19?

ü How does it compare with seasonal flu?

Please click here for current Global updates on Covid-19

Please click here for current update in India of Covid-19

Wish all the Blog Readers a Very Happy New Year 2015

noreply@blogger.com (Dr. Tabrez Ahmad) — Sun, 28 Dec 2014 15:11:00 +0000

If we could stop for a minute to solve real problems facing humanity, instead of imaginary problems mystified with complex mathematics and vocabulary, we may be convinced to realize that education would have been one of the most luxurious adventures of mankind. If we don't have time to read a book in the New Year 2015, at least let us read and inculcate the thoughts of this message. It may make us think, to think is to expand, to expand is to gain and the thought process goes on. If we look on the bright side of things, we shall find enough to make us cheerful and happy. The most powerful thing in life... is our thinking, which has ability to change any situation. We often make two mistakes in our search of inner peace... focusing on things we cannot change, and ignoring things we can change.

As we all know that if we give smiles, they will be returned to us; if we speak pleasant, cheerful words, they will be spoken to us again. Our own words are the bricks and mortar of the dreams we want to realize. Our words are the greatest power we have. The words we choose and their use establish the life we experience. Therefore let us live our moments for what we are, not for what we may become. Let us always find time to tell those people we love, that we love them, care for them, or whatever they mean to us in our life. Life is precious, and we need to be grateful for each day we are given. We should not have only dreams but set goals and achieve what we would otherwise dream! Let us smile in trouble that can gather strength from distress, and grow brave by reflection. Time heals all wounds, but only wisdom keeps them from reopening.

Making hundreds of friends is not a miracle. The miracle is to make a single friend like you who will stand by our side even when thousands are against us. The limitations of us are our own creation, designed to provide cover for our unwillingness to try. We should never be afraid to change our vision, set new goals, and challenge ourselves. Life is best experienced without boundaries; so let us live each day ceremoniously. In fact we are not bound to succeed, but we are bound to live by the light that we have. Let us stand with those whose stands are right, and remain with them while they are right. Let us seize the present opportunity; work with dedication and sincerity and enjoy it; this is the best reward that we can give to ourselves. As we all came here, into this life, with our own music to play; each of us our own set of notes. Let's all play together nicely so that the world becomes a sweet music along the manuscript of life.

With these few words i wish you, your family and friends a very happy and successful year ahead.

Companies Act 2013- Lessons for Indian Corporate Sector

noreply@blogger.com (Dr. Tabrez Ahmad) — Mon, 30 Jun 2014 13:15:00 +0000

The Indian corporate sector is very positive since the Modi Govt. has assumed power in the center. But to maintain the positivism the Govt. has to some policy decision without delay. The current working of 2013 Companies Act and its impact on corporate world has brought some new lessons for corporate India. The views expressed by various CEOs, CFOs, company secretaries, finance and accounting professionals provide thought-provoking insights which may be useful for Indian Corporate world. We know that the 2013 Act has introduced several onerous requirements, but the companies were not provided sufficient time to prepare. As the majority of the sections and the related rules were notified during the last week of March 2014 and have an applicability date of 1 April 2014. Moreover, a considerable number of interpretative issues and concerns continue to arise from implementation of the new Act.

The new Act empowers and strengthens shareholders’ democracy. Duties/responsibilities and liabilities of directors (including independent directors) and auditors have been significantly enhanced. Now the private companies will be subjected to several onerous requirements such as preparation of consolidated financial statements, internal financial control reporting, auditor rotation and approval of related party transactions, which were hitherto not applicable to such companies. The Act also has significantly enhanced disclosures to bring greater transparency in corporate reporting and self-governance. On many matters, requirement to obtain the Central Government’s approval has been replaced with the approval by shareholders. The Act further introduced several new concepts such as corporate social responsibility, requirement for woman director, rotation of auditors, class action suits, etc. The Modi Govt. should address the genuine concerns to keep the Indian corporate sector on track.

Recently the Earnest & Young has done a survey which has highlighted some of the very crucial points as follows: Regarding the enforcement of only 283 sections out of total 470 sections, has mixed views. The 47% participants were of the view that it would have been better to implement all the sections of the 2013 Act at one go. Immediate application of notified sections leaves companies without any time to prepare for the new requirement. Overwhelming majority (85%) participants were of the view that they need minimum three months to one year time to prepare for new requirements.

Most of the participants were agreed with the auditor’s reporting on fraud directly to the Central Government, an overwhelming majority (80%) felt that there should be materiality limit for such reporting. Reporting of immaterial frauds to the Government may impose significant additional cost and burden on all parties and yet achieve nothing. 68% participants were not in favor of applying any or all of the onerous requirements, e.g., preparation of CFS, internal financial control reporting, auditor rotation and approval of related party transactions, etc., to a private company. 44% participants felt that some of these requirements can apply to a private company, while 32% participants were of the view that all these requirements should apply to private companies. Out of companies who have decided to spend 2% amount on CSR activities, 52% companies have also identified activities or projects on which they will spend the prescribed amount. 48% companies have still not identified these activities or projects.

From participants representing companies with non-31 March year-end, 41% have already decided to comply with 31 March year-end requirement. There is an almost equal number, which has not decided its approach yet. 22% participants want to retain their current financial year (i.e., year-end other than 31 March) and would seek tribunal/ MCA approval for the same. 87% survey participants felt that minority protection will increase, if all related party transactions not meeting exemption criteria are approved by special resolution of disinterested shareholders. However, out of these participants, 26% participants felt that it may impede business activity and 17% participants were concerned that it will significantly impede business activity. Out of companies covered under CSR requirement, 55% have already decided to spend 2% amount of CSR activities. Approx. 34% companies are waiting for practices to emerge before they take a call on this matter.

Keeping in mind the said reflections the govt. should take immediate measures in notifying the remaining sections of the Companies act 2013 and overview the working of the notified sections to avoid the worrisome situation.

Source: http://www.moneycontrol.com/news, Earnest & Young Survey 2014.

GPMLex (Global Peace Movement): Wish All the Blog Readers a Very Happy New Year 2014

noreply@blogger.com (Dr. Tabrez Ahmad) — Sat, 28 Dec 2013 06:29:00 +0000

GPMLex (Global Peace Movement): Wish All the Blog Readers a Very Happy New Year 2014

Growing Demand of Corporate Lawyers

noreply@blogger.com (Dr. Tabrez Ahmad) — Sat, 23 Nov 2013 18:29:00 +0000

There is a growing demand of corporate lawyers due to change in attitude of corporate sector.
The old practice of having panel lawyers is decreasing and having a full fledged legal division in a company is growing. All the good companies generally have variety of lawyers in corporate law. This is really a great news for those who are specialising in corporate law. It is suggested to those who are aspiring to become a successful corporste lawyers that they must get mastery in contract law, company law, banking law, IPR, Mergers and equisitions, corporate governace , tax law, international trade law, commercial transaction law. Law of corporate finance , securities law etc.

Cabinet approves Amendments to the Companies Bill, 2011

noreply@blogger.com (Dr. Tabrez Ahmad) — Wed, 19 Dec 2012 08:07:00 +0000

The Union Cabinet today approved the proposal to make official amendments to the Companies Bill, 2011.

The Companies Bill, 2011, on its enactment, would allow the country to have a modern legislation for growth and regulation of corporate sector in India. The existing statute for regulation of companies in the country, viz. the Companies Act, 1956 had been under consideration for quite long for comprehensive revision in view of the changing economic and commercial environment nationally as well as internationally. In view of various reformatory and contemporary provisions proposed in the Companies Bill, 2011 together with omission of existing unwanted and obsolete compliance requirements, the companies in the country would be able to comply with the requirements of the proposed Companies Act in a better and more effective manner.

The Salient features of amendments approved by the Cabinet are as follows:

1. The words 'make every endeavour to' omitted from Clause 135(5). Such clause is also amended to provide that the company shall give preference to local areas where it operates, for spending amount earmarked for Corporate Social Responsibility (CSR) activities, The approach to 'implement or cite reasons for non implementation1 retained. (Amendment of Clause 135).

2. To help in curbing a major source of corporate delinquency, Clause 36 (c) amended, to also include punishment for falsely inducing a person to enter into any agreement with bank or financial institution, with a view to obtaining credit facilities. (Amendment in Clause 36).

3. Provisions relating to audit of Government Companies by Comptroller and Auditor General of India (C&AG) modified to enable C&AG to perform such audit more effectively. {Amendment in Clauses 143(5) and (6)}.

4. Clause 186 amended to provide that the rate of interest on inter corporate loans will be the prevailing rate of interest on dated Government Securities. (Amendment in Clause 186).

5. Provisions relating to restrictions on non audit services modified to provide that such restrictions shall not apply to associate companies and further to provide for transitional period for complying with such provisions. (Amendment in Clause 144).

6. Provisions relating to separation of office of Chairman and Managing Director (MD) modified to allow, in certain cases, a class of companies having multiple business and separate divisional MDs to appoint same person as 'chairman as well as MD. (Amendment in Clause 203).

7. Provisions relating to extent of criminal liability of auditors particularly in case of partners of an audit firm reviewed to bring clarity. Further, to ensure that the liability in respect of damages paid by auditor, as per the order of the Court, (in case of conviction under Clause 147) is promptly used for payment to affected parties including tax authorities, Central Government has been empowered to specify any statutory body/authority for such purpose. (Amendments in Clause 147 and 245).

8. The limit in respect of maximum number of companies in which a person may be appointed as auditor has been proposed as twenty companies. {Amendment in Clause 141(3) (g)}.

9. Appointment of auditors for five years shall be subject to ratification by members at every Annual General Meeting (Amendment of Clause 139(1).

10. Provisions relating to voluntary rotation of auditing partner (in case of an audit firm) modified to provide that members may rotate the partner 'at such interval as may be resolved by members' in stead of 'every year' proposed in the clause earlier. {Amendment in Clause 139(3)}.

11. 'Whole-time director' has been included in the definition of the term 'key managerial personnel' {Amendment of Clause 2(51)}.

12. The term 'private placement' has been defined to bring clarity. (Amendment in Clause 42).

13. Approval of the Tribunal shall be required for consolidation and division of share capital only if the voting percentage of shareholders changes consequent on such consolidation {Amendment of Clause 61(1) (b)}.

14. Clarification included in the Bill to provide that 'Independent Directors' shall be excluded for the purpose of computing 'one third of retiring Directors'. This would bring harmonisation between provisions of Clause 149(12) and rotational norms provided in clause 152. (Amendment in Clause 152).

15. Provisions in respect of removal of difficulty modified to provide that the power to remove difficulties may be exercised by the Central Government upto 'five years' (after enactment of the legislation) in stead of earlier upto 'three years'. This is considered necessary to avoid serious hardship and dislocation since many provisions of the Bill involve transition from pre-existing arrangements to new systems. (Amendment in Clause 470).

Background:

(i) The Companies Bill, 2011 was introduced in the Lok Sabha on 14th December, 2011 and was considered by the Parliamentary Standing Committee on Finance which submitted its report to the Honourable Speaker, Lok Sabha on 26th June, 2012. The report was laid in Parliament on 13th August 2012. Keeping in view the recommendations made by such Committee it was decided to make certain modifications in the Companies Bill, 2011 through official amendments.

(ii) In view of the developments taking place nationally as well as internationally, and with the intent to modernize the structure for corporate regulation in India and also to promote the development of the Indian corporate sector through enlightened regulation and good corporate governance practices, a decision has been taken to revise the existing Companies Act, 1956 comprehensively. Various stakeholders viz Industry Chambers, Professional Institutes, Government Departments, Legal Experts and Professionals etc. were consulted in the process and accordingly, the Companies Bill 2009 was introduced in the Lok Sabha on 3rd August, 2009 which was referred to Parliamentary Standing Committee on Finance for examination and report, which submitted its report to the Parliament on 31st August, 2010.

(iii) Keeping in view the recommendations made by the Standing Committee and consultation with various Ministries/Departments etc. a revised Companies Bill, 2011 was prepared which was approved by the Cabinet on 24th November, 2011. The revised Bill was introduced in the Lok Sabha on 14th December, 2011. On introduction of the Companies Bill, 2011, the Companies Bill, 2009 was withdrawn.

(iv) The Companies Bill, 2011 was referred to the Parliamentary Standing Committee on Finance for examination and report. The Committee examined the Bill and presented its report/ recommendations to the Speaker, Lok Sabha on 26th June, 2012. The report was laid in the Parliament on 13th August, 2012. Keeping in view the recommendations made by the Committee and the inter-ministerial consultation held with concerned Ministries/Departments, it has been decided to make official amendments to the Companies Bill, 2011.

Source: http://pib.nic.in/newsite/ Accessed on 19th December, 1.30 PM

The government has decided to crack the whip on fraudulent multi-level marketing companies (Ponzi)

noreply@blogger.com (Dr. Tabrez Ahmad) — Thu, 08 Nov 2012 05:09:00 +0000

Ponzi, that have duped hundreds of investors in the country by blocking their websites and tracking their online transactions.

Corporate Affairs Ministry, the nodal department in this regard, has decided that its investigative arm - Serious Fraud Investigation Office (SFIO) - will coordinate with Department of Information Technology and Central Economic Intelligence Bureau (CEIB) to identify suspect websites and transactions and take strict legal action.

Sources said such companies, operating from various locations within the country, have defrauded the public for amounts which could easily run into hundreds of crores.

"There are various entities (multi-level marketing) doing business in India through websites and many such entities do not have a registered office within India. Therefore, in order to prevent funds being transferred outside India, the website of major establishments doing multi-level marketing business need to be stopped through gateways by Department of Information and Technology (DIT).

"This issue will be taken up with DIT very soon and details of such companies will be provided to it for blocking the payments," an official privy to the development said.

For multi-level marketing websites operating clandestinely and conducting hidden transactions, the Ministry will ask the Financial Intelligence Unit under Finance Ministry to track and supply snoop data on them so that SFIO can take action.

The FIU is mandated to generate suspicious transaction reports based on inputs provided by banks and other financial and economic bodies.

The Ministry is mulling adding an enabling provision in the Companies Act to initiate legal action of attachment of properties of individual directors of such companies by moving the Company Law Board (CLB) in this regard.

The Ministry, during a recent meeting of the SFIO and its regional directors, mooted a plan to activate its marketing intelligence unit to keep a tab on fraudulent innovative systems developed by such companies to cheat the public and investors.

Source: http://www.indianexpress.com/news7th Nov. 2012

Selected Companies are Required to File Statements in XBRL format

noreply@blogger.com (Dr. Tabrez Ahmad) — Wed, 07 Nov 2012 10:12:00 +0000

Final version of the MCA XBRL Validation Tool (for Financial Statements based upon new Schedule VI of the Companies Act, 1956) has been released. XBRL filings of financial statements for accounting year commencing on or after 01.04.2011 have been enabled on MCA website with effect from 14.10.2012. Stakeholders are also advised to refer to the ‘Filing Manual’ available on the XBRL portal for filing the financial statements in XBRL format.

Many organizations have been looking to the internet to bring the long-heralded promises of “better, faster, cheaper” data to organizational decision-making, and specifically to business and financial reporting. An emerging technology standard, eXtensible Business Reporting Language (XBRL), promises to web-enable the financial reporting process for both preparers and consumers.

Instead of treating financial information as a block of text, XBRL provides a computer-readable tag to identify each individual item of data. By attaching identifying tags to individual pieces of data, a business reporting document becomes “intelligent” data, allowing the exchange of business reporting data by encoding the information in a meaningful way.

Computer applications can use the XBRL data to recognize the information in an XBRL document - selecting, analyzing, storing, and exchanging it with other computers and present it in a variety of ways for users. As companies review their business reporting disclosure controls and procedures and begin to comply with new filing requirements, XBRL is becoming the chosen tool to help facilitate and restore confidence in business reporting and in turn, to communicate accurately the value of the company.

XBRL is:

· An open technology standard for reporting and analyzing business and financial information

· Software agnostic, or independent

· Accounting framework neutral

XBRL is not:

· A standardized chart of accounts

· A way to require the reporting of specific information

· A transaction level activity (although it can summarize general ledger transactions)

For more information, see our publication Addressing XBRL.

In recent years, XBRL has seen rapid expansion as an enabling technology around the world. XBRL is a “network innovation” which requires concerted action from a number of different stakeholders to be widely adopted. For this reason, its development has been, and continues to be, facilitated through the voluntary and collaborative efforts of key stakeholders — currently driven principally by local government and regulatory agencies, the most notable of which is US Securities and Exchange Commission (SEC) which is requiring filings in this standardized electronic format.

We hope this site will add to the public dialogue now taking place about the merits of XBRL and about the promise of XBRL specifically. To that end, we have outlined the ways we think you can benefit from adopting XBRL now for your key business-reporting processes and provided a road map that can move you toward these ends.

On 30 January 2009, the US Securities and Exchange Commission (SEC) published a final rule for the mandatory use of eXtensible Business Reporting Language (XBRL) in reporting financial information to the SEC.

Source: http://www.ey.com/GL/en/Services

http://www.mca.gov.in/Ministry/pdf/General_Circular_34_2012.pdf

CORPORATE SOCIAL RESPONSIBILITY

noreply@blogger.com (Dr. Tabrez Ahmad) — Wed, 07 Nov 2012 09:51:00 +0000

The 21st century is characterized by unprecedented challenges and opportunities, arising from globalization, the desire for inclusive development and the imperatives of climate change. Indian business, which is today viewed globally as a responsible component of the ascendancy of India, is poised now to take on a leadership role in the challenges of our times. It is recognized the world over that integrating social, environmental and ethical responsibilities into the governance of businesses ensures their long term success, competitiveness and sustainability. This approach also reaffirms the view that businesses are an integral part of society, and have a critical and active role to play in the sustenance and improvement of healthy ecosystems, in fostering social inclusiveness and equity, and in upholding the essentials of ethical practices and good governance. This also makes business sense as companies with effective CSR, have image of socially responsible companies, achieve sustainable growth in their operations in the long run and their products and services are preferred by the customers.

Indian entrepreneurs and business enterprises have a long tradition of working within the values that have defined our nation's character for millennia. India's ancient wisdom, which is still relevant today, inspires people to work for the larger objective of the well-being of all stakeholders. These sound and all-encompassing values are even more relevant in current times, as organizations grapple with the challenges of modern-day enterprise, the aspirations of stakeholders and of citizens eager to be active participants in economic growth and development.

CSR is not philanthropy and CSR activities are purely voluntary- what companies will like to do beyond any statutory requirement or obligation. To provide companies with guidance in dealing with the abovementioned expectations, while working closely within the framework of national aspirations and policies, following Voluntary Guidelines for Corporate Social Responsibility have been developed.

While the guidelines have been prepared for the Indian context, enterprises that have a trans-national presence would benefit from using these guidelines for their overseas operations as well. Since the guidelines are voluntary and not prepared in the nature of a prescriptive road-map, they are not intended for regulatory or contractual use. While it is expected that more and more companies would make sincere efforts to consider compliance with these Guidelines, there may be genuine reasons for some companies in not being able to adopt them completely. In such a case, it is expected that such companies may inform their stakeholders about the guidelines which the companies have not been able to follow either fully or partially. It is hoped that “India Inc.” would respond to these Guidelines with keen interest.

After considering the experience of adoption of these guidelines by Indian Corporate Sector and consideration of relevant feedback and other related issues, the Government may initiate the exercise for review of these Guidelines for further improvement after one year.

Source: CORPORATE SOCIAL RESPONSIBILITY VOLUNTARY GUIDELINES 2009, MCA, Govt. of India

India ranks 7th in corporate governance in Asia-Pacific

noreply@blogger.com (Dr. Tabrez Ahmad) — Wed, 07 Nov 2012 09:32:00 +0000

India has been ranked in the seventh place in terms of corporate governance score in Asia Pacific region, says a report by global brokerage firm CLSA.

According to the CLSA Corporate Governance Watch 2012 list, produced in collaboration with the Asian Corporate Governance Association, India's corporate governance score has improved by 3 percentage points but ranking has remained the same.

"This is not due to a lack of awareness by the regulators, but rather a piecemeal approach to reform and a lame duck government unable to do anything meaningful given infighting among its allies," ACGA Research Director Sharmila Gopinath said in the report.

Among the market rankings, Singapore was at the top in 2012 followed by Hong Kong and Thailand in the second and third position respectively. In the fourth position there is a tie between Japan and Malaysia, the report said.

Others in the top include Taiwan at the 6th place, followed by India (7th), Korea (8th), China (9th), Philippines (10th) and Indonesia (11th).

The report which analysed as many as 864 listed companies across Asia-Pacific markets, including Japanese and Australian firms, said that Infosys was the only Indian company that was featured in the top 20 corporate governance large caps.

Moreover, there were just five Indian companies which got featured in the top 50 league table. Besides, Infosys the other four include HUL, Wipro, Titan Industries and Yes Bank.

"Despite efforts made by the corporate sector and individual regulators to raise corporate governance standards, these mostly fail to address core governance issues such as accounting standards, the regulation of auditors and obstacles to voting for investors who are unable to attend company meetings," Gopinath added.

The report, entitled "Tremors and cracks", noted that cracks in Asian corporate governance have become more apparent with corporate scores slipping since the previous CG Watch report was issued in 2010.

Investors have faced issues ranging from relatively minor corporate transgressions to growing concerns about the reliability of financial statements and, at the extreme, outright fraud.

"Corporate governance is largely about checks and balance," CLSA Head of Asia Research Amar Gill said in a statement, adding that "Investors will need to swerve and get a tighter grip when dealing with the cracks in governance and the tremors in Asian investing."

Source: http://profit.ndtv.com/news

Silicon Valley lawyers are highest paid

noreply@blogger.com (Dr. Tabrez Ahmad) — Wed, 07 Nov 2012 02:22:00 +0000

When it comes to lawyer pay, no one beats Silicon Valley.

A survey by legal recruiting firm Major Lindsey & Africa shows that average partner compensation for attorneys in Silicon Valley is $1.2 million annually, beating all other major legal centers in the country, including New York, Washington D.C., Boston, San Francisco and Los Angeles.

The survey did not explain why Silicon Valley attorneys are tops in partner pay. But it likely has a great deal to do with the fact that corporate law and intellectual property law — both high compensation practices — are quite prevalent in the region.

Silicon Valley partners are earning — on average — much more than their counterparts in New York, where partners ranked second in the survey. New York partners earned on average slightly more than $1 million.

San Francisco partners came in seventh in the survey, collecting an average of $723,000.

The lowest ranking city for law firm partners in the survey was Philadelphia, where they were collecting $478,000 on average.

Eric Young covers law, government and the business of sports for the San Francisco Business Times.

Source: http://www.bizjournals.com/sanfrancisco

RSS leader says law will take its own course against Gadkari

noreply@blogger.com (Dr. Tabrez Ahmad) — Tue, 06 Nov 2012 17:54:00 +0000

The Joint General Secretary of the Rashtriya Swayamsevak Sangh (RSS), Dattatreya Hosabale, has said that the law will take its course on allegations of corruption levelled against Bharatiya Janata Party president Nitin Gadkari, and added that those who are found guilty, should be punished.

He was speaking on trhe sidelines of a three-day RSS Executive Council meeting here on Friday.

The RSS leadership is meeting to deliberate on various issues of national importance, including illegal migration from Bangladesh and security situation in the country.

Hosabale said they are not discussing issues related to BJP in this meeting.

"The General Secretary of RSS has already issued a statement that if there is any allegation against anybody, the due process of law should take place and those who are found guilty should be punished according to the law. The same stand continues and we are not going to discuss the BJP issues here," said Hosabale.

According to media reports, Gadkari was alleged of having business links with Ajay Sancheti, a lawmaker. Also, that Sancheti was given a special deal for a coalmine in the BJP-ruled central Madhya Pradesh state because of his association with Gadkari.

Recently, a coal scam had hit the country and the affair had washed out the just concluded monsoon session of parliament over the report of the Comptroller and Auditor General (CAG) tabled in the upper house of Indian parliament.

The CAG had alleged under-priced sales of coalfields that may have cost the exchequer as much as $33 billion in revenues.

On this issue, the Bharatiya Janata Party had demanded the resignation of Prime Minister Manmohan Singh, who handled the portfolio of Coal Ministry between 2006-2009, when a majority of the allocations were sanctioned.

Hosabale said that there was need to take stringent action against the corrupt irrespective of their political parties.

"Nitin Gadkari is a Sangha swayamsevak (volunteer) and like in the family, Nitin Gadkari also meets RSS office bearers and talk to people of RSS and such discussions take place. It is not a child's play anyhow, if something is happening in the society, we also discuss. But as far as the issues of corruption by anybody, whether it is Congress or any other person or BJP, we have been always been telling that the due process should take place, allegations should be answered properly and that we have already said," Hosabale said.

Hosabale added that the RSS has no soft corner for anybody and their yardstick for corruption is same for everyone.

"Why single out Gadkari about the land acquisition. There may be hundred others also. We are not going to discuss case wise or person wise. We are going to discuss the policy of the land acquisition. Who ever come within that will have to stand before the law. We are not giving any soft corner to anybody. We go by the policy and we have been stressing on that. Land acquisition or corruption or any other issue, we don't have different yardsticks. RSS views are that the country's interest and the nation's interest is supreme, public morality is supreme for us and accordingly we deal with things," said Hosabale.

Kejriwal had recently accused Gadkari of having a huge business empire in Maharashtra, and alleged that the former and NCP leader Ajit Pawar were hand-in-glove with each other in the irrigation scam.

Earlier Anjali Damania, close aide of anti-graft crusader cum politician Arvind Kejriwal had alleged that Gadkari had acquired 100 acre of farmers' land through dubious means for his private trust although he refuted these charges.

Gadkari was recently charged for illegally acquiring government land and for running a fake investment company.

A probe is being undertaken by the ministry of corporate affairs and income tax officials on whether the BJP party chief's vast financial empire is funded by ghost investors.

According to the report in the media, 18 companies which own 80 percent of the shares in Purti Group, owned by Gadkari, are not located on the addresses mentioned on the website of the company.

Managing director of Purti group, Sudhir Dive had out rightly dismissed corruption allegations against Gadkari, adding that he resigned from the company 14 months ago.

Hosabale said the country needs a change for the better.

"The people of this country want a change, change for the better and earlier it was the best that is what the RSS feels," said Hosabale.

Over the past few months, a string of recent multi-billion dollar corruption scandals have sparked Indian middle class anger over the federal government's abysmal track record in curbing graft.

Corruption is part of daily life in India - from bribes paid for something as simple as getting a gas connection, passport or avoiding a traffic violation, to multi-billion-dollar scandals.

Political parties are perceived to be the most corrupt institutions by Indians, according to Transparency International's Global Corruption Barometer in 2011.

A recent survey of upper house lawmakers by National Election Watch found their average net worth stood at around USD 2.3 million. Lawmakers earn around USD 900 a month. (ANI)

http://www.newstrackindia.com/news

AGGREGATE STATISTICS ON Dr. Tabrez Ahmad's PAPERS

noreply@blogger.com (Dr. Tabrez Ahmad) — Sun, 04 Nov 2012 06:34:00 +0000

Social Science Research Network (www.ssrn.com) is sending Dr. Tabrez Ahmad's information on his papers in the eLibrary as of 10/29/2012.

AGGREGATE STATISTICS ON Dr. Tabrez Ahmad's PAPERS

The Publicly Available (Scholarly and Other Papers) and Privately Available Papers on SSRN as of 10/29/2012 have:

6,693 TOTAL DOWNLOADS
3,425 DOWNLOADS IN THE LAST 12 MONTHS
45,261 TOTAL ABSTRACT VIEWS

(Note: The totals above are calculated specifically for this author letter as of 10/29/2012 for all your papers on SSRN (summing the data on both your publicly and privately available papers) and therefore may differ slightly from the numbers on the SSRN site.)

Your Author Statistics as of 10/02/2012 (out of 209,432 authors in SSRN, based only on Publicly Available, Downloadable Papers)

2,600 is your AUTHOR RANK, based on 6,408 TOTAL DOWNLOADS.
394 is your AUTHOR RANK, based on 3,306 DOWNLOADS IN THE LAST 12 MONTHS.
71,418 is your AUTHOR RANK, based on 0 TOTAL CITATIONS.

You can find the complete table of the Top Authors Ranking by Downloads and Citations athttp://hq.ssrn.com/rankings/Ranking_display.cfm?TRN_gID=7

YOUR CONTACT AND AUTHOR PAGE INFORMATION
Your contact and paper information can be edited at http://hq.ssrn.com; click Affiliations or My Papers in the left-hand column.

The contact information we have for you in our records:

Director
Alliance College of Law, Alliance University
Anekal Main Road
Chandapura
Bangalore, Karnataka, 562106
India
080-30938237 (Phone)
tabrezahmad7@gmail.com

The URL for your SSRN Author Page is: http://ssrn.com/author=1189281

Analysis of the Sahara case Judgment of the Supreme Court of India and the standard set by the International Organization of Securities Commissions

noreply@blogger.com (Dr. Tabrez Ahmad) — Sun, 21 Oct 2012 18:26:00 +0000

The Supreme Court of India on 31^stAugust, 2012 in the case of Sahara India Real Estate Corporation Limited & Ors. .. Appellants versus Securities and Exchange Board of India & Anr. .. Respondents held that the SEBI has power to regulate even unlisted securities.

The regulatory responsibility of the securities market is vested in the SEBI, the RBI, and two government agencies—Ministry of Corporate Affairs and Department of Economic Affairs. Investigative agencies such as Serious Fraud Investigation Office (SFIO), Economic Offences Wing of the government and consumer grievance redressal forums also play a role. The Ministry is primarily concerned with the administration of the Companies Act, 1956, other allied Acts and rules & regulations framed there-under mainly for regulating the functioning of the corporate sector in accordance with law. The SEBI, established under the SEBI Act, is the apex regulatory body for the securities market which works in coordination with Ministry of Corporate Affairs. Besides regulation, the SEBI's mandate includes responsibilities for ensuring investor protection and promoting orderly growth of the securities market. The RBI, on the other hand, is responsible for regulation of a certain well-defined segment of the securities market. To ensure operational independence and accountability in the exercise of functions and powers by the regulators, SEBI and RBI have been constituted as autonomous bodies and are established under separate Acts of the Parliament. Both regulators are accountable to the Parliament through Central Government and the regulations framed by them are required to be laid before Parliament by the Central Government. There is also a system of independent judicial review of the decisions of SEBI and RBI. Although the SEBI and the RBI are operationally independent, the government can issue directions to both in policy matters.

The member agencies of the International Organization of Securities Commissions have resolved, through its permanent structures: to cooperate in developing, implementing and promoting adherence to internationally recognised and consistent standards of regulation, oversight and enforcement in order to protect investors, maintain fair, efficient and transparent markets, and seek to address systemic risks; to enhance investor protection and promote investor confidence in the integrity of securities markets, through strengthened information exchange and cooperation in enforcement against misconduct and in supervision of markets and market intermediaries; and to exchange information at both global and regional levels on their respective experiences in order to assist the development of markets, strengthen market infrastructure and implement appropriate regulation.

The Section 55A of the Companies Act gives SEBI enough powers to regulate unlisted companies if such entities have a public offer and dressed up as a private placement. And have raised funds from the public. In those situations intention of the legislature is very important to interpret private placements as public offer.

If an instrument is a security under the Securities Contract Regulations Act 1956, then it comes under the SEBI Act. And if it comes under the SEBI Act, then SEBI has jurisdiction. SEBI can (therefore) pass a special order to regulate unlisted companies.

If it is a public issue, they should have gone to the stock exchange, and so Section 73(2) of the Companies Act follows. The necessary consequence is a refund of the money under Section 73(2). But who will give such a direction to refund in an important question of law.

Section 55-A of the Companies Act will have the answer as to who can issue such a direction. The Section 73 (1) of the Companies Act ought to be read in consonance with Section 55-A Clause B, which deals with intention of the company, under Section 245 AA of the Companies Act, securities include “hybrid” financial instrument.

Issues:

a. Whether SEBI has jurisdiction or power to administer the provisions of Sections 56, 62, 63, 67, 73 and the related provisions of the Companies Act, after the insertion of Section 55A(b) w.e.f. 13.12.2000, by the Companies (Amendment) Act, 2000, so far as it relates to issue and transfer of securities by listed public companies, which intend to get their securities listed on a recognized stock exchange and public companies which have issued securities to fifty persons or more without listing their securities on a recognized stock exchange;

(b) Whether the public companies referred in question no. (a) is legally obliged to file the final prospectus under Section 60B(9) with SEBI and whether Section 60B, as it is, falls under Section 55A of the Companies Act;

(c)Whether Section 67 of the Companies Act implies that the company’s offer of shares or debentures to fifty or more persons would ipso facto become a public issue, subject to certain exceptions provided therein and the scope and ambit of the first proviso to Section 67(3) of the Act, which was inserted w.e.f. 13.12.2000 by the Companies (Amendment) Act, 2000;

(d) What is the scope and ambit of Section 73 of the Companies Act and whether it casts an obligation on a public company intending to offer its shares or debentures to the public, to apply for listing of its securities on a recognized stock exchange once it invites subscription from fifty or more persons and what legal consequences would follow, if permission under sub-section (1) of Section 73 is not applied for listing of securities;

(e) What is the scope and ambit of DIP (Guidelines) and ICDR 2009 and whether Sahara had violated the various provisions of the DIP (Guidelines) and ICDR 2009, by not complying with the disclosure requirements or investor protection measures prescribed for public issue under DIP (Guidelines) and ICDR 2009, thereby violating Section 56 of the Companies Act;

(f)Whether Rules 2003 framed by the Central Government under Section 81(1A) of the Companies Act read with Section 642 of the Act are applicable to any offer of shares or debentures to fifty or more as per the first proviso to sub-section (3) of Section 67 of the Companies Act and what is the effect of UPC (PA) Amendment Rules 2011 and whether it would operate only prospectively making it permissible for Saharas to issue OFCDs to fifty or more persons prior to 14.12.2011;

(g) Whether after the insertion of the definition of ‘securities’ in Section 2(45AA) as “including hybrids” and after insertion of the separate definition of the term “hybrid” in Section 2(19A) of the Act, the provision of Section 67 would apply to OFCDs issued by Saharas and what is the effect of the definition clause 2(h) of SCR Act on it;

(h) Whether OFCDs issued by Saharas are convertible bonds falling within the scope of Section 28(1)(b) of the SCR Act, therefore, not ‘securities’ or, at any rate, not listable under the provisions of SCR Act;

(i)Whether SEBI can exercise its jurisdiction under Sections 11(1), 11(4), 11A(1)(b) and 11B of the SEBI Act and Regulation 107 of ICDR 2009 over public companies who have

issued shares or debentures to fifty or more, but have not complied with the provision of Section 73(1) by not listing its securities on a recognized stock exchange.

(j)Scope of Section 73(2) of the Companies Act regarding refund of the money collected from the Public;

(k) Civil and Criminal liability under the various provisions of the Companies Act.

The court has decided as followse:



1. Saharas (SIRECL & SHICL) would refund the amounts collected through RHPs dated 13.3.2008 and 16.10.2009 along with interest @ 15% per annum to SEBI from the date of receipt of the subscription amount till the date of repayment, within a period of three months from today, which shall be deposited in a Nationalized Bank bearing maximum rate of interest.

2. Saharas are also directed to furnish the details with supporting documents to establish whether they had refunded any amount to the persons who had subscribed through RHPs

dated 13.3.2008 and 16.10.2009 within a period of 10 (ten) days from the pronouncement of this order and it is for the SEBI (WTM) to examine the correctness of the details furnished.

3. The court made it clear that if the documents produced by Saharas are not found genuine or acceptable, then the SEBI (WTM) would proceed as if the Saharas had not refunded any amount to the real and genuine subscribers who had invested money through RHPs dated 13.3.2008 and 16.10.2009.

4. Saharas are directed to furnish all documents in their custody, particularly, the application forms submitted by subscribers, the approval and allotment of bonds and all other documents to SEBI so as to enable it to ascertain the genuineness of the subscribers as well as the amounts deposited, within a period of 10 (ten) days from the date of pronouncement of this order.

5. SEBI (WTM) shall have the liberty to engage Investigating Officers, experts in Finance and Accounts and other supporting staff to carry out directions and the expenses for the same will be borne by Saharas and be paid to SEBI.

6. SEBI (WTM) shall take steps with the aid and assistance of Investigating Authorities/Experts in Finance and Accounts and other supporting staff to examine the documents produced by Saharas so as to ascertain their genuineness and after having

ascertained the same, they shall identify subscribers who had invested the money on the basis of RHPs dated 13.3.2008 and 16.10.2009 and refund the amount to them with interest on their production of relevant documents evidencing payments and after counter checking the records produced by Saharas.

7. SEBI (WTM), in the event of finding that the genuineness of the subscribers is doubtful, an opportunity shall be afforded to Saharas to satisfactorily establish the same as being legitimate and valid. It shall be open to the Saharas, in such an eventuality to associate the concerned subscribers to establish their claims. The decision of SEBI (WTM) in this behalf will be final and binding on Saharas as well as the subscribers.

8. SEBI (WTM) if, after the verification of the details furnished, is unable to find out the whereabouts of all or any of the subscribers, then the amount collected from such subscribers will be appropriated to the Government of India.

9. The court also appointed Mr. Justice B.N. Agrawal, a retired Judge of this Court to oversee whether directions issued by this Court are properly and effectively complied with by the SEBI (WTM) from the date of this order. Mr. Justice B.N. Agrawal would also oversee the entire steps adopted by SEBI (WTM) and other officials for the effective and proper implementation of the directions issued by this Court. We fix an amount of Rs.5 lakhs towards the monthly remuneration payable to Mr. Justice B.N. Agrawal, this will be in addition to travelling, accommodation and other expenses, commensurate with the status of the office held by Justice B.N. Agrawal, which shall be borne by SEBI and recoverable from Saharas. Mr. Justice B.N. Agrawal is requested to take up this assignment without affecting his other engagements. We also order that all administrative expenses including the payment to the additional staff and experts, etc. would be borne by Saharas.

10. We also make it clear that if Saharas fail to comply with these directions and do not effect refund of money as directed, SEBI can take recourse to all legal remedies, including attachment and sale of properties, freezing of bank accounts etc. for realizations of the amounts.

11. The court also directed SEBI(WTM) to submit a status report, duly approved by Mr. Justice B.N. Agrawal, as expeditiously as possible, and also permit SEBI (WTM) to seek further directions from the Court, as and when, found necessary. Appeals are accordingly dismissed subject to the above directions.

This judgment is a good one and as per the standard norms set by the International Organization of Securities Commissions. But even if the cash is recovered, there’s still the tricky question of why such a huge mobilization of funds was allowed to take place. Why the authorities missed opportunities to take immediate measures in time. Now the question is how to better serve India’s rural investors. The Sahara case highlights that there is a large amount of cash in rural India looking for a safe harbor. One positive development could be the proposed introduction of a unique identity number for every Indian, which could allow more investors to open a bank account and boost confidence in them.

ConferenceLex (Call for Papers): Emerging Issues of Corporate Social Responsibility

noreply@blogger.com (Dr. Tabrez Ahmad) — Wed, 17 Aug 2011 17:06:00 +0000

ConferenceLex (Call for Papers): Emerging Issues of Corporate Social Responsibility

Dr. Mrinal S. Raste Joined KIIT Law School as Director

noreply@blogger.com (Dr. Tabrez Ahmad) — Fri, 01 Jul 2011 09:30:00 +0000

Dr. Raste Mrinal Sankar is a well-known law academician of the country. He obtained LL.M. and Ph.D. from University of Pune and has a rich academic and academic administration experience spanning more than 27 years. Prior to joining KIIT, he was Vice-Chancellor of Symbiosis International Educational Center (SIEC), Pune. Dr. Raste has worked in other responsible capacities such as Principal, Symbiosis Society's Law College, Dean, Faculty of Law, University of Pune and Academic Council Member, University of Pune. He is a member of several academic and professional bodies like Research & Recognition Committee, Dr. Ambedkar University, Syllabus Reform Committee, University of Pune, Institute of Criminology and the World Jurist Organisation, to name a few. An avid academician, he has edited many journals and participated and presented papers in a large number of national and international level seminars and conferences.

Assuming of office on 2nd June, 2011 as a director re-energized the entire KIIT family. Now we have great hope and belief that KIIT Law School under his able leadership certainly become soon one of the best law school in the country.

Dr.Tabrez Ahmad,
Associate Professor , KIIT Law School,
Coordinator BCI Moot Court Competition
Coordinator Intellectual Property Law (Hons) Programme
Campus-16,KIIT University, PATIA, Bhubaneswar, Odisha, India, 751024.
Website: www.technolexindia.co <http://www.technolexindia.co.cc>m,
www.tabrez.org
Blog: http://tabrezahmad.technolexindia.com http://iplexindia.blogspot.com
Profile: http://www.google.com/profiles/tabrezahmad7.
Blogs: http://www.blogger.com/profile/15337756250055596327
Research Papers: http://ssrn.com/author=1189281
Mobile: +91 9438303042

Issues of Taxation on Intellectual Property Transactions

noreply@blogger.com (Dr. Tabrez Ahmad) — Fri, 01 Apr 2011 12:19:00 +0000

Intellectual property is one of the most important assets of many well-known major companies. However, in India the role and value of intellectual property in business is not fully understood yet. The taxation of intellectual property is a rapidly developing ﬁeld requiring both intellectual property and tax practitioners to keep up with latest developments. Recent years especially have seen dramatic changes in tax laws affecting intellectual property transactions and litigation.

The cross border movement of multinational companies with their Intellectual Property rights (IPRs) offers much scope for the taxation of these rights and thus a considerable income for technology receiving countries. India opened its economy in 1991 with a bundle of tax reductions in customs and central excise duties, lowering the corporate tax, widening the tax net and is also one of the founding members of the WTO in 1995. The taxation of goods, services and income is a concept that has been prevalent for a long time, all over the world. Different categories are taxed with different objectives and purpose. Sometimes economies may want to discourage the use of foreign goods within their countries and consequently therefore the tax on imported goods will be high. However, interestingly, taxing of intellectual property is a recent phenomenon across the globe. Developments in science and technology and rapid communication have made it accessible to every country. In India intellectual property is taxed in many ways, though indirectly.

Technology transactions have been intensified with the advent of more and more foreign collaborations and technologies coming into the country. Technology transaction including commercialisation, licensing and assignment are another grey area where the industry needs clear guidelines and expert assistance, in taking decisions in technology transfer. Tax treatment and tax incentives differ according to the type of taxation. IP transfer and mode of payment may increase the tax liability. When the interest in the intellectual property is transferred to others and is treated as a transfer of ‘property’ for tax purposes, it can significantly affect technology transfers. Share transfer in the exchange of IP rights could have tax implications.

There are a number of corporate routes that a foreign company could adopt to enter the Indian market. Licensing the use of trademarks and technical know-how is the most easy and indirect among these corporate routes. Ordinarily licensing involves two parts: Licensing of technical know-how, Licensing of Intellectual Property Rights. The technical licensing between Indian Companies and foreign companies come under the Automatic Approval Route, if the payment terms satisfy the Government of India Guidelines. The Press Note(No.12 of 1991 Series dated 31.8. 1991) by the Indian Govt. has clarified the procedure in respect of foreign technology collaborations: Procedure in respect of foreign technology agreements. The government of India tabled a Statement on Industrial Policy in both the Houses of Parliament 24.7.1991. The statement has substantially liberalized the provisions and simplified the procedure governing Foreign Technology Agreements. The relevant portion of the Statement dealing with Foreign Technology Agreements is 39C, Foreign Technology Agreements:

1. Automatic permission will be given for foreign technology agreements in high priority industries upto a lump sum payment of Rs. 1 Crore, 5 per cent royalty for domestic sales and 8 per cent for exports, subject to total payments of 8 per cent of sales over a 10- year period from the date of agreement or 7 years from commencement of production. The prescribed royalty rates are net of taxes and will be calculated according to standard procedures.

3. In respect of industries other than high priority industries, automatic permission will be given subject to the same guidelines as above if no free foreign exchange is required for any payments.

4. All other proposals will need specific approval under the general procedures in force.

5. No permission will be necessary for hiring of foreign technicians, foreign testing of indigenously developed technologies. Payment may be made from blanket permits or free foreign exchange according to RBI guidelines".

Press Note No. 10 of 1991 Series issued on 14.8.1991, set out the procedures for approval of foreign technology agreements, hiring of foreign technicians and foreign testing of indigenous raw materials and products and indigenously developed technologies. In that Press Note, it has been stated that applications for automatic approvals under paras 39C (i) and (ii) referred to above would be made to the Secretariat for Industrial Approvals (SIA) in the Department of Industrial Development. In the interests of entrepreneurs, this procedure has now been modified as below. Procedures relating to other matters, however, remain the same as in Press Note No.10.

The position of the Tax Code on the tax consequences of transactions involving goods, works and services leaves ambiguities for the taxation of transactions involving intellectual property. For example, in the case of export of intellectual property rights through electronic communication channels, whether the supplier can receive VAT deductions. At the same time, VAT deductions may be received in the case of export of intellectual property rights as a part of goods or equipment.

It is important to note the significant additional tax sums charged by the tax authorities and challenged in court cases connected to usage of trademarks by distributors, or cases of the tax inspectorates challenging the expenses or pricing model of intellectual property. The lack of clarity in legal procedures in Indian tax law for reclassifying transactions for tax purposes also significantly complicates the issue of assessing the tax consequences of transactions involving intellectual property.

At the same time, even in Indian practice, issues surrounding the taxation of intellectual property rights are exerting a greater influence on purchasing and sales structuring and pricing, and on the tax consequences of transactions. For example, the introduction of VAT exemption for the sale of rights to use the results of intellectual activity under license may influence the system of establishing relations by contract between the parties of such a transaction. This exemption may significantly simplified delivery of software products through electronic communication channels, because it may cancel the duty of the buyer to act as tax agent for VAT.

Also, the possibility of applying the exemption has raised the competitiveness of suppliers who can offer customers the opportunity to purchase the rights to software products without VAT. Many of India's international agreements on avoiding double taxation contain special articles releasing royalties from taxation at the source of payment. This allows us to consider intellectual property rights as a convenient tool for tax planning.

Intellectual property rights therefore have more value than any other asset for the company that possesses them. For example, intellectual property rights can simultaneously be used as a source of current income, an element of tax planning and an important reserve to increase the company's capitalization.

This means that the issue of determining the tax consequences for transactions involving intellectual property rights, and the legal procedures for reclassifying transactions for tax purposes in the Tax Code, are rather pressing. It is absolutely necessary to bring these questions to the attention of the professional community and the authorities.

The global scenario of IP taxation affected considerably with the enactment of the American Jobs Creation Act of 2004, Tax Relief and Health Care Act of 2006, Congress created and/or the Tax Increase Prevention and Reconciliation Act of 2005, and the extended a host of new tax incentives and planning opportunities for intellectual property development, acquisitions, and assignments. Congress inaugurated favorable rules for musical copyrights and new incentives for ﬁlm production. The legislators also extended tax breaks for computer software, and instituted new tax rules governing charitable donations of intellectual property. Congress also enacted a myriad of international tax rules affecting intellectual property, including new tax breaks for U.S. software developers. This cumulative supplement provides comprehensive coverage of these and other major congressional changes, including a new chapter dealing with charitable contributions of intellectual property.

The Internal Revenue Service and Treasury Department have issued a stream of new regulatory and administrative materials providing necessary guidance for planning intellectual property transactions. Shortly after the main text was published, the Treasury Department promulgated comprehensive regulations on the capitalization and amortization of intellectual property creation and acquisition costs, as well as new regulations dealing with the research and development credit. More recently, the Treasury Department promulgated a host of new regulations impacting international transactions, many of which relate to transfer pricing rules for controlled intellectual property transactions. For example, the Treasury Department has issued new regullations on the treatment of services transactions that affect a transfer of intellectual property and on the difﬁcult issues of ownership and developer-assister determinations under section 482. This cumulative supplement summarizes these and other recently promulgated regulations, as well as the latest IRS rulings governing domestic and international intellectual property transactions. Additionally, in recent years, states have been more aggressive in addressing intellectual property holding companies, trademark holding companies, and electronic commerce transactions. This supplement summarizes recent state legislation, court decisions and administrative rulings impacting the popular intellectual property holding company.

In relation to general tax law in India, there is no specific definition of intellectual property in the Income Tax Act, 1961 (the “Act”). However, the Act differentiates between tangible and intangible assets in the definition of “block of assets” which is used for the purpose of computing depreciation on a class of assets and which may comprise of both of those types of assets. ‘Intangible assets’ are defined to include ‘know-how, patents, copyrights, trademarks, licenses, franchises or any other business or commercial rights of similar nature. While in the Income Tax Rules, 1962, (“Rules”) relevant to transfer pricing, the definition of ‘property’ includes ‘intangible property’ but intangible property has not been separately defined. However, in the form that needs to be submitted to the tax authorities called ‘particulars relating to international transactions required to be furnished under the Income Tax Act’, transactions in intangible property are described as those which relate to ‘know-how, patents, copyrights, licenses, etc’.

In a recent decision by the Delhi High Court in Commissioner of Income Tax v. M/s Eicher Limited (formerly Royal Enfield Ltd.), it was held that the payment of non compete fee by the assessee was a business expenditure and not a capital expenditure. Direct expenditures are involved in case of creating know-how. In most jurisdictions of the world it is written off as revenue expenditure for business. Companies can treat the expenses for creating intellectual property as a capital expenditure and write it off over a period of time. It will show intellectual property as an asset. Whenever there is acquisition or creation of intellectual property, the money flow will be shown as an asset. The R&D expenses are usually written off by the companies under the concept of materiality.

The lack of a comprehensive policy on intellectual property taxation acts as a disincentive to technology transfer and IP creation in India. So a comprehensive Intellectual Property taxation regime should be developed, that could achieve a pro-growth momentum in the country. A uniform IP tax policy should be adopted throughout the states. All the present taxing system in different statutes and various landmark court decisions may be incorporated in the new legislation.

Wish all the Blog Readers a Very Happy Colourful & Safe Holi

noreply@blogger.com (Dr. Tabrez Ahmad) — Sat, 19 Mar 2011 02:46:00 +0000

Dr. Tabrez Ahmad on behalf of all the authors Wishes the Blog Readers a Very Happy Colourful & Safe Holi. Due to the kind of faith and confidence shown by various readers to us within a short time almost all the blogs and specially Technolexindia, IPlex, and Tabrezahmda's Blog have got lot of name and fame not only in India but also in different parts of the world. There are around 1.5 Thousand e-mail subscribers of our various blogs. Hope the same kind of cooperation, comment and suggestion will be provided to us and that will further help to upgrade the standard of blog postings.

Thanks all of you once again on the eve of Holi for all cooperation and encouragement shown to us in the last one year.

--
Dr.Tabrez Ahmad,
Associate Professor , KIIT Law School,

Coordinator BCI Moot Court Competition

Coordinator Intellectual Property Law (Hons) Programme
Campus-16,KIIT University, PATIA, Bhubaneswar, Odisha, India, 751024.
Website: www.technolexindia.com, www.tabrez.org
Blog: http://tabrezahmad.technolexindia.com http://iplexindia.blogspot.com
Profile: http://www.google.com/profiles/tabrezahmad7.
Blogs: http://www.blogger.com/profile/15337756250055596327
Research Papers: http://ssrn.com/author=1189281

Mobile: +91 9438303042

New Year 2011, Greetings

noreply@blogger.com (Dr. Tabrez Ahmad) — Fri, 31 Dec 2010 04:59:00 +0000

It is easy to be overwhelmed by the negatives. We cannot deny economic realities, uncertainties, wrongdoings and sufferings. Yet, there is always the silver lining of hope, achievement and the triumph of human spirit. And it all starts with a positive energy and wishes for the future from each of us. Because Sun glows for a day, Candle for an hour, Matchstick for a minute. But a wish can glow days forever. So here is Tabrez Ahmad on behalf of all the authors Wishes the Blog Readers a Very happy and prosperous New Year. Due to the kind of faith and confidence shown by various readers to us within a short time almost all the blogs and specially Technolexindia, IPlex, and Conferencelex have got lot of name and fame not only in India but also in different parts of the world. There are around one thousand and five hundred e-mail subscribers of our various blogs. Hope the same kind of cooperation, comment and suggestion will be provided to us and that will further help to upgrade the standard of blog postings.

My wishes for your glowing life in NEW YEAR, 2011.

Oh my Dear, Forget ur Fear,
Let all ur Dreams be Clear,
Never put Tear, Please Hear,
I want to tell some thing in ur Ear
I pray! This New Year may bring to you.
The joy that never sees the eclipse,
The hope which never meets the despair,
The mind that fastens human bonds,
The heart which bleeds for the love of man,
The soul that buries all its ills,
The world which aspires for the lasting peace,
The passion that even the angels envy,
The humility which placates the Divine Wrath,

This is beginning of a new year!
Like birds, let us, leave behind what we don't need to carry…
GRUDGES, SADNESS, PAIN, FEAR and REGRETS
Life is beautiful, Enjoy it.

Thanks all of you once again for all cooperation and encouragement shown to us in the last one year.

Bye. Take care.

--
Dr.Tabrez Ahmad,
Associate Professor of Law, KIIT Law School,
Campus-16,KIIT University, PATIA, Bhubaneswar, Odisha, India, 751024.
Website: www.site.technolexindia.com
Blog: http://tabrezahmad.technolexindia.com http://iplexindia.blogspot.com
Profile: http://www.google.com/profiles/tabrezahmad7.
Blogs: http://www.blogger.com/profile/15337756250055596327
Blog: http://drtabrez.wordpress.com http://tabrezahmad.typepad.com/blog/
Research Papers: http://ssrn.com/author=1189281

Mobile: +91 9438303042

ConferenceLex (Call for Papers): 1st GNLU International Conference on Trade & Competition Law

noreply@blogger.com (Dr. Tabrez Ahmad) — Mon, 20 Dec 2010 13:22:00 +0000

ConferenceLex (Call for Papers): 1st GNLU International Conference on Trade & Competition Law

Faulty Management Education is Responsible for the Financial Crises

noreply@blogger.com (Dr. Tabrez Ahmad) — Thu, 08 Jul 2010 09:15:00 +0000

Image via Wikipedia

The different management theories which the companies and B-schools used to swear by have fell flat in the real world. Companies are also looking for talent from varied fields and not just going on a spree of hiring prodigies from leading Business schools. In fact experts from the field believe that the way management is taught is partly responsible for the ensuing financial crisis. The management education should focus more on real and future market situation than on the bookish knowledge. The teachers who teach the management some times dont have any real market's practical experience. So a real mixture of theory and practical with well balanced training of teachers are also a must. Now it is time to overhaul the management education, upgrade the syllabus and train the teachers so as to bring out a healthy combination of the hard and soft skills for well rounded development of managers?.Hope the management education planners will realise the importance and take serious steps so the financial crises can be avoided in future.

ICC and INTA Oppose De Minimis Provision in ACTA

noreply@blogger.com (Dr. Tabrez Ahmad) — Tue, 06 Jul 2010 13:07:00 +0000

The International Trademark Association (INTA) and International Chamber of Commerce have issued a notice on ACTA urging countries to drop the de minimis provision that is designed to allay fears of iPod searching border guards. The two associations argue that the exception "sends the wrong message to consumers."

For Further details click here

--
Dr.Tabrez Ahmad,
Associate Professor of Law, KIIT Law School
KIIT University, PATIA, Bhubaneswar, Odisha, India, 751024.
Website: www.site.technolexindia.com
Blog: http://tabrezahmad.technolexindia.com http://iplexindia.blogspot.com
Profile: http://www.google.com/profiles/tabrezahmad7.
Blogs: http://www.blogger.com/profile/15337756250055596327
Blog: http://drtabrez.wordpress.com
http://tabrezahmad.typepad.com/blog/
Research Papers: http://ssrn.com/author=1189281

The Bilski Case is Finally Decided

noreply@blogger.com (Dr. Tabrez Ahmad) — Tue, 29 Jun 2010 04:27:00 +0000

The court held that the Bilski's application was not statutory subject matter:

Petitioners' remaining claims are broad examples of how hedging can be used in commodities and energy markets. Flook established that limiting an abstract idea to one field of use or adding token post solution components did not make the concept patentable. That is exactly what the remaining claims in petitioners' application do. These claims attempt to patent the use of the abstract idea of hedging risk in the energy market and then instruct the use of well-known random analysis techniques to help establish some of the inputs into the equation. Indeed, these claims add even less to the underlying abstract principle than the invention in Flook did, for the Flook invention was at least directed to the narrower domain of signaling dangers in operating a catalytic converter.

* * *
Today, the Court once again declines to impose limitations on the Patent Act that are inconsistent with the Act's text. The patent application here can be rejected under our precedents on the unpatentability of abstract ideas. The Court, therefore, need not define further what constitutes a patentable "process," beyond pointing to the definition of that term provided in §100(b) and looking to the guideposts in Benson, Flook, and Diehr.

And nothing in today's opinion should be read as endorsing interpretations of §101 that the Court of Appeals for the Federal Circuit has used in the past. See, e.g., State Street, 149 F. 3d, at 1373; AT&T Corp., 172 F. 3d, at 1357. It may be that the Court of Appeals thought it needed to make the machine-or-transformation test exclusive precisely because its case law had not adequately identified less extreme means of restricting business method patents, including (but not limited to) application of our opinions in Benson, Flook, and Diehr. In disapproving an exclusive machine-or-transformation test, we by no means foreclose the Federal Circuit's development of other limiting criteria that further the purposes of the Patent Act and are not inconsistent with its text.

The judgment of the Court of Appeals is affirmed.

Source: The 271 Patent Blog By Peter Zura

For a copy of the opinion, click here (link)

--
Dr.Tabrez Ahmad,
Associate Professor of Law, KIIT Law School
KIIT University, PATIA, Bhubaneswar, Odisha, India, 751024.
Website: www.site.technolexindia.com
Blog: http://tabrezahmad.technolexindia.com http://iplexindia.blogspot.com
Profile: http://www.google.com/profiles/tabrezahmad7.
Blogs: http://www.blogger.com/profile/15337756250055596327
Blog: http://drtabrez.wordpress.com
http://tabrezahmad.typepad.com/blog/
Research Papers: http://ssrn.com/author=1189281

Wipro and Microsoft Join Hands to Deliver Global Legal Process Outsourcing Efficiencies

noreply@blogger.com (Dr. Tabrez Ahmad) — Wed, 16 Jun 2010 08:38:00 +0000

As per the Businesswire ( A Birkshire Hathaway Company ), WIPRO Technologies, the global IT services business of Wipro Limited , yesterday announced that its Business Process Outsourcing division has partnered with Microsoft Corporation to provide global Legal Process Outsourcing (LPO) for Microsoft's Intellectual Property (IP) portfolio.

In July 2008, Wipro began providing U.S. Patent and Trademark filing and docketing services to Microsoft's Intellectual Property & Licensing group. Microsoft previously had used a mix of in house resources, outside law firms and offshore vendors to perform these IP services. Moving to Wipro, with its extensive BPO experience, international reach and global delivery capabilities, ensured not only efficiency but also consistency in the way Microsoft does business.

Microsoft facilitated the transition of processes to Wipro by leading domain training for Wipro's team. Wipro correspondingly developed the LPO framework, tools, trainings, controls and metrics required to drive high productivity and reduced costs for Microsoft. Wipro's operational rigor, application of tools and various quality improvement methodologies has led to significant gains in both quality and efficiency of the transferred processes. These results have led Microsoft to add international docketing and filing processes to the original US-only processes at Wipro.

Over the past two years, Wipro has developed an impressive IP domain expertise and ability to work on a scale required for Microsoft's vast IP portfolio. Wipro and Microsoft continue to jointly develop improved domain expertise, processes and case management and work allocation tools to further streamline IP processes.

"The dedicated Microsoft team at Wipro has become a fundamental component of our global Patent operations function," said Martin Shively, GM of Patent Operations at Microsoft. "The Wipro team works closely with our in-house team to manage one of the world's largest and most valuable patent portfolios."

"The success of this partnership is testament to the innovation and dedication demonstrated by Microsoft's IP team and Wipro's LPO solutions professionals," said Saju A. Joseph, General Manager KPO & LPO solutions, Wipro Technologies. "Wipro will continue to integrate legal expertise with process and technology to reduce overall legal cost for its clients," he added.

Today Wipro and Microsoft continue to work together to expand their global delivery partnership.

This is a good news for young law professionals who want to make their career in Legal Process Outsourcing.They can specialise in IPR and Technology law and target the WIPRO LPO for a handsome starting salary.

Specialist Legal Recruitment Website in Asia Pacific for Legal Professionals and IP Lawyers

noreply@blogger.com (Dr. Tabrez Ahmad) — Tue, 16 Mar 2010 16:46:00 +0000

Hong Kong based online recruitment specialists CQrecruit have launched a new online recruitment portal focused on the legal profession across the Asia Pacific region. https://www.cqrecruit.com will carry positions for both lawyers and legal support staff including legal secretaries, paralegals, H.R. and marketing professionals and other key support functions. Press Release http://tinyurl.com/ykkqgvv

--
Dr.Tabrez Ahmad,
Associate Professor of Law, KIIT Law School
KIIT University, Bhubaneswar, Odisha, India, 751024.
Website: www.site.technolexindia.com
Blog: http://tabrezahmad.technolexindia.com http://iplexindia.blogspot.com
Profile: http://www.google.com/profiles/tabrezahmad7.
Blogs: http://www.blogger.com/profile/15337756250055596327
Blog: http://drtabrez.wordpress.com
http://tabrezahmad.typepad.com/blog/
Research Papers: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1189281

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Source: The 271 Patent Blog By Peter Zura

Wipro and Microsoft Join Hands to Deliver Global Legal Process Outsourcing Efficiencies

Specialist Legal Recruitment Website in Asia Pacific for Legal Professionals and IP Lawyers