lks podcast

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 2022
https://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 2022
https://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 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 2022
https://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 2022
https://www.lakshmisri.com/insights/articles/draft-telecommunications-bill-an-explainer/#

Author: Prashant Phillips, Sameer Avasarala

The Hon’ble Gujarat High Court in Real Strips Ltd. v. Union of India recently held that the nature of levy and revocation of Countervailing Duty is Quasi-Judicial. The Court relied on PTC India v. CERC to hold that the appeal provision in section 9C would make the levy of duty by the Central Govt. a quasi-judicial function. This podcast discusses the contrary views that may be considered in this regard. Firstly, the applicability of the PTC case can be distinguished from the current context for having different policy considerations as compared to levy of duties. Further, Section 9C is a highly narrow appeal provision to which the PTC ruling must not be applied. Secondly, referring to the Paper submitted by India to the WTO Working Group regarding implementation of Article 13 of the Anti-Dumping Agreement states that the appeal in Section 9C is against the decisions of Designated Authority. Reliance may also be placed on the Hon’ble Supreme Court’s ruling in Haridas Exports v. All India Float Glass MFRS. Association which held that the imposition of duties is a legislative function. The debate on the issue is far from settled and we look forward to a conclusive end to the issue in future litigations.

Audio Source: An article published on the LKS website in September 2022

https://www.lakshmisri.com/insights/articles/powers-of-central-government-in-imposing-trade-remedial-measures/

Author: Utkarsh Khandelwal, Associate
Voice: 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 2022
https://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 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 2022
https://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.

The Income Tax Act, 1961 (‘IT Act’) provides for various benefits for trusts which are established for charitable or religious purposes and registered under the IT Act. Sections 11 and 12 of the IT Act are the substantive provisions for exemptions available to religious and charitable trusts. The exemption provided for under Sections 11 and 12 is, however, subject to certain restrictions provided under Section 13 of the said Act. This week’s podcast discusses the implications of Section 13 which purports to deny the exemption available in certain scenarios.
 
 Audio Source : An article published on the LKS website in August 2022
 https://www.lakshmisri.com/insights/articles/violation-of-section-13-of-the-income-tax-act-denial-of-entire-exemption-vs-partial-exemption/

Authors: Abhinov Vaidyanathan

Voice : Dikshita Damodaran

Under the Cenvat and Modvat regime as well as under various incentive schemes under the Customs law/FTDRA, there were unscrupulous persons, who created various firms/companies in the name of other individuals, existing or non-existing, for the purposes of undertaking fraudulent paper transactions. These companies/firms may be referred to as "dummy companies/firms." Invoices were made in these companies' names under the Cenvat and Modvat schemes to transfer duty and tax credits without paying the associated tariffs and taxes to the government. This week's podcast talks about different scenarios and punishments for such offences.

Audio Source: An article published on the LKS website in July 2022
https://www.lakshmisri.com/insights/articles/arrest-of-perpetrators-for-fraudulent-passing-and-availing-itc-in-gst-some-issues/

Authors: Atul Gupta, Partner (LKS)

Voice: Neelambera Sandeepan 

https://www.lakshmisri.com/

Despite not being a party to WTO’s Agreement on Government Procurement, India agreed for commitments in government procurement in the India-UAE Comprehensive Economic Partnership Agreement. This Podcast discusses the features of chapter 10 of the CEPA, benefits of inclusion, how India has safeguarded its interest in negotiations, the aspects that are yet to be negotiated and the impact of such incorporations on India’s current and future FTAs.

Audio Source: An article published on the LKS website in July 2022
https://www.lakshmisri.com/insights/articles/opening-market-access-in-government-procurement-through-india-uae-fta/

Authors : Aayush Rastogi, Associate ( LKS) ; and Ashutosh Arvind Kumar, Associate (LKS)

Voice: Dikshita Damodaran

https://www.lakshmisri.com/

Special Economic Zones (‘SEZ’) were introduced with an intent to drive economic growth along with quality infrastructure complemented by attractive fiscal package. Initially introduced in the form of SEZ Policy in 2000, the scheme was subsequently formalised in the form of SEZ Act, 2005 (‘SEZ Act’). SEZ has, in today’s world, become a very familiar terminology to the larger public/ layman because of growing interest of the public in tax debates and economic development of the country.  This week's podcast talks about the eligibility to claim deduction under income-tax post business re-structuring that impacts SEZ developers and entrepreneurs.

Audio Source : An article published on the LKS website in July 2022
https://www.lakshmisri.com/insights/articles/deduction-under-10aa-benefit-available-even-after-sunset-date/#

 Authors: Karanjot Singh, Joint Partner (LKS) and; Parvathy Kartha, Principal Associate (LKS)

Voice: Anushka Verma

https://www.lakshmisri.com/

This week's podcast talks about the dilemma in affording protection to single colour trademarks in India. The authors discuss the protection granted to single-colour trademarks across various jurisdictions by taking the example of the famed red-soled Louboutin shoes. Further, the dissenting views of the Indian judiciary have also been discussed. Lastly, the authors opine on the criteria on which single-colour trademarks can be protected in India.

Audio Source: An Article Published on LKS Website on 18th July 2022 Single colour trademarks – A ‘grey’ area | Lakshmikumaran & Sridharan Attorneys (lakshmisri.com)
 
Author : Anushka Verma, Associate(LKS);  Rajalakshmi R, Partner (LKS)
 
Voice: Anushka Verma,  Associate(LKS)

https://www.lakshmisri.com/

The Competition Commission of India (“CCI”) in recent years, has become a vigorous regulator. Bid-rigging in public procurement is one of the areas where the CCI has consistently investigated and penalized enterprises in the past decade. This podcast explains the concept of bid-rigging, the different types of bid-rigging practices, and how jurisprudence has evolved in this area of economic activity.

Audio Source: An article published on the LKS website in July 2022 https://www.lakshmisri.com/insights/articles/bid-rigging-in-public-procurement-an-indian-perspective/#

Authors: Neelambera Sandeepan, Joint Partner (LKS); and Amruta Pradhan, Associate (LKS)

Voice: Neelambera Sandeepan, Joint Partner (LKS)

https://www.lakshmisri.com/

The podcast focuses on and discusses the major changes in relation to the Contract Labour regime under the new ‘The Occupational Safety, Health, and Working Conditions Code, 2020’ (OSHW Code).

Audio Source: An article published on the LKS website in June 2022 https://www.lakshmisri.com/insights/articles/contract-labour-under-the-new-regime-an-overview/#

Author: Manan Chhabra, Sr. Associate (LKS)

Voice: Disha Agarwal, Senior Executive - PR & Corporate Communications (LKS)

www.lakshmisri.com

Recently, the Supreme Court in Apex Laboratories (P.) Ltd. finally settled the controversy regarding the allowance of expenditure incurred by pharmaceutical companies on the gifting of freebies to doctors under the IT Act. By holding that the practice is opposed to the MCI Regulations and consequently to public policy, this decision has created new challenges for the pharmaceutical and allied health sector companies.

Audio Source: An article published on the LKS website in May 2022 https://www.lakshmisri.com/insights/articles/apex-laboratories-a-bitter-pill-to-swallow-for-the-healthcare-sector/

Author: Tanmay Bhatnagar, Sr. Associate (LKS)

Voice: Anushka Verma, Associate (LKS)

www.lakshmisri.com