Monday, January 25, 2021

GST applies to flat buyer’s maintenance deposit: Gujarat bench of Authority for Advance Rulings

The Gujarat bench of the Authority for Advance Rulings (AAR) recently held that goods and services tax (GST) will be applicable to one-time maintenance deposits collected by builders from buyers as it is “non-returnable” in nature and is “for supply of services”.


The AAR bench, though, added that the amount will be subject to GST at the time of actual supply of service — when maintenance services or repairs of common areas and facilities are carried out by use of these deposits. Deposits collected from buyers are typically pooled into a common maintenance deposit fund. In other words, according to this ruling, the buyer’s GST burden is deferred.
Builders usually charge a one-time maintenance deposit, which is computed at a certain per square foot rate for the property purchased. The applicability of GST on this deposit amount and time of such levy has been a contentious issue.

The AAR rejected the arguments of Ahmedabad-based Capital Commercial Coop Service Society, which had sought the advance ruling. This society said maintenance deposits collected are refunded to members as and when they cease to be members. Under GST laws, there needs to be a supply of goods or services for consideration. As the deposit is refunded, it is not a consideration and does not qualify as a “supply”. Hence, no GST can be levied, the society had submitted.

The AAR in its order, though, observed that the maintenance deposit in the name of the member who was leaving the society was transferred to a new member coming in, in his place. In other words, the deposit was not refunded but transferred by passing an accounting entry. Thus, it was non-refundable and taxable under GST.


“Going by this ruling, the builder will collect maintenance deposits and transfer the gross amount to the cooperative housing society (CHS), when the society is set up.” 
“Under service tax law, there have been favourable rulings holding that the builder is not liable for service tax on such maintenance deposits. In practice, though, most builders prefer a conservative approach and collect and pay GST at 18% upfront at the time of receipt of the maintenance deposit. What is therefore handed over to the CHS is the net amount after the discharge of GST.” 



Groping 'Without Skin-To-Skin Contact' Does Not Qualify As Sexual Assault: Bombay HC

The Bombay High Court was hearing the plea of the accused, who was sentenced to jail for sexually assaulting a minor girl.

In a recent ruling by the Nagpur bench of the Bombay High Court, it was observed that there should be "skin-to-skin contact with sexual intent" in order to be considered as sexual assault. The ruling also said that 'mere groping' will not fall under sexual assault.

The Bombay High Court was hearing the plea of the accused, who was sentenced to jail for sexually assaulting the minor girl.

Observing that the prosecution in the case had failed to present the case of the victim properly, Kanoongo has stated that "if the prosecution had made the submissions as per the spirit of the POCSO Act, the accused would not have been acquitted from the series offence against the minor".

He added that the Court's remarks on, "skin to skin with sexual intention without penetration" needs to be reviewed as the said remark is derogatory to the minor victim, which the State should take note of.

Kanoongo further raises concerns about the disclosure of the victim's name in the judgment, which was brought to light after the order copy was circulated in the media.

He opines that the State should take necessary steps to ensure that the original identity of the victim is not disclosed.

Kanoongo has further requested for details of the minor victim (maintaining strict confidentiality) so that the Commission can provide help including legal aid, etc.

In a controversial ruling, Justice Ganediwala of the High Court's Nagpur Bench had ruled that the act of pressing the breast of a child aged 12 years without removing her top will not fall within the definition of ‘sexual assault’ under Section 7 the POCSO Act.The High Court further ruled that mere touching the chest of the minor will not amount to sexual assault unless the accused removes clothes of the victim or slid hands inside the garments, making it a physical contact.

The single-judge bench of Justice Pushpa Ganediwala modified the conviction of a man while pronouncing the ruling.

The sexual assault under the POCSO Act involves committing assault with sexual intent and getting physical without penetration by touching the private parts of the child or making the child touch the private organs of the accused, noted the judge in the court hearing.

"Admittedly, it is not the case of the prosecution that the accused removed her top and pressed her breast. As such, there is no direct physical contact i.e. skin-to-skin with sexual intent without penetration,"

Friday, January 15, 2021

Publication of notice under Special Marriage Act optional; mandatory notice invades privacy: Allahabad HC

The requirement of publication of notice under Section 6 and inviting or entertaining objections under Section 7 can only be read as directory in nature, the court held.

In a significant judgment affecting inter-faith couples seeking to get married under the Special Marriage Act, 1954, the Allahabad High Court has ruled that it would be optional and not mandatory for them to publish a notice about their intended marriage. 

The provision for mandatory publication of notice, derived through “simplistic reading” of the particular law, “would invade in the fundamental rights of liberty and privacy, including within its sphere freedom to choose for marriage without interference from state and non-state actors, of the persons concerned,” the court said in a judgment delivered on January 12.

Since the matter relates to protection of fundamental rights of a large number of persons, the judge directed the senior registrar of the court to send a copy of the order to U.P. Chief Secretary. The same is to be communicated “to all the marriage officers in the State and other concerned authorities as expeditiously as possible”.

Justice Vivek Chaudhary mandated that while giving notice under Section 5 of the Special Marriage Act, 1954 it shall be optional for the parties to the intended marriage to make a request in writing to the marriage officer to publish or not to publish a notice under Section 6 and follow the procedure of objections as prescribed under the Act.

‘Requirement of publication of notice directory’

“In case they do not make such a request for publication of notice in writing, while giving notice under Section 5 of the Act, the Marriage Officer shall not publish any such notice or entertain objections to the intended marriage and proceed with the solemnisation of the marriage,” the court said.

The requirement of publication of notice under Section 6 and inviting or entertaining objections under Section 7 can only be read as directory in nature, to be given effect only on request of parties to the intended marriage and not otherwise, the court observed in a 47-page judgment.

The interpretation of Sections 6 and 7 read with Section 46 containing the procedure of publication of notice and inviting objections to the intended marriage has to be such that would uphold the fundamental rights and not violate them, the court said.

The court was disposing of a habeas corpus writ filed by a Muslim woman who married a Hindu man after converting to his religion and as per Hindu rituals.

The woman’s father, however, objected to her living with her husband, despite the couple getting married on their own free will. The woman and her father appeared in person for the hearing on the direction of the court. The woman expressed her desire of wanting to live with her husband and the father too “fairly accepted” her decision.

The couple told the court they could have solemnised their marriage under the Special Marriage Act, 1954, but for the requirement of 30-days notice. They said such a notice was an invasion of their privacy, drawing unnecessary social pressure and interference in their life.

The personal laws do not impose such a condition before solemnising a marriage, the couple submitted. The counsel for the petitioners also stated that the situation may become more critical with the notification of Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020.

The counsel further said that young couples are not in a position to raise these issues before getting their marriage solemnised as any litigation further attracts unnecessary invasion into their privacy, exerting pressure against their choice of a life partner.

Justice Chaudhary noted that marriages under personal laws were performed by a religious head and did not require publication of any notice or calling for objections with regard to such a marriage. However, under the Special Marriage Act, 1954 any person can object to the marriage on the ground that it violates any of the conditions of Section 4.

“There is no apparent reasonable purpose achieved by making the procedure to be more protective or obstructive under the Act of 1954, under which much less numbers of marriages are taking place, than procedure under the other personal laws, more particularly when this discrimination violates the fundamental rights of the class of persons adopting the Act of 1954 for their marriage,” the court said.

However, if individuals opt for the publication of the notice of their own free will under theSpecial Marriage Act, 1954, such a publication and further procedure would not be violative of their fundamental rights.


Biker In Odisha Fined Whopping Rs 1,13,000 For Violating Motor Vehicle Act

The penalty is believed to be the largest amount that has been levied on a two-wheeler vehicle under the amended Motor Vehicle Act 2019 in Odisha.


A man was punished with an incredibly huge fine of Rs 1,13,000 by the RTO in Odisha's Rayagada district, for allegedly violating the various rules of the new Motor Vehicle Act.

The penalty is believed to be the largest amount that has been levied on a two-wheeler vehicle under the amended Motor Vehicle Act 2019 in Odisha.

The offender Prakash Banjara hails from the Amarpura village in the Mandsaur district of Madhya Pradesh. He was selling water storage drums on a bike when the traffic police caught him during a drive to check documents of motor vehicles near DIB Chhak in Rayagada town today. The Transport Department officials along with Police personnel examined his documents.

As per the challan issued, Prakash was riding his bike without a helmet and his vehicle did not have any registration number.

He had purchased the bike from Madhya Pradesh, and moved to Rayagada for selling water drums, without completing the registration process for the bike.

He was fined Rs 1,13,000 for driving without a registration number, insurance document, and driving license, and also not wearing a helmet. The fine was issued as Rs 1,000 for not wearing a helmet, Rs 2,000 for not having insurance, Rs 5,000 for using a vehicle without registration and Rs 5,000 for not possessing a valid driving license. A huge fine of Rs. 1 lakh was forced over the sale of the vehicle by the dealer for violating CH-VII 182-A1.

Wednesday, January 13, 2021

FAKE DRIVING LICENCE AND INSURANCE CO.'S LIABILITIES



Fake licence and insurance co’s liabilities:

Conclusion of subject matter:

To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding the use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant time.


Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties.


Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of the main purpose" and the concept of "fundamental breach" to allow defences available to the insured under section 149(2) of the Act.


Reference Judgments for Video


1 SKANDIA INSURANCE CO. LTD. V. KOKILABEN 

CHANDRAVADAN01/04/1987 

2 PEPSU ROAD TRAN. V.S NATIONAL INSURANCE CO.LTD. 17/07/1996

3 SOHAN LAL PASSI VS. P.SESH REDDY -17/07/1996 

4 UNITED INDIA INSURANCE COMPANY LTD. V. LEHRU 28/02/2003

5 NATIONAL INSURANCE CO.LTD. V.S SWARAN SINGH 05/01/2004

6 NATIONAL INSURANCE CO. LTD. V. GEETA BHAT31/03/2008

7 NIRMALA KOTHARI V. UNITED INDIA INSURANCE CO.LTD. 8/4/2020


Saturday, January 9, 2021

Bar Council of Delhi increases fees payable at the time of enrolment to Rs 14,300


Read Notice



As per the notice, the Delhi Bar Council has increased the enrolment fees, identity card charges, building and library funds and other relevant services for advocates falling under three slabs which are:

  • For those applying for enrolment immediately after their graduation.
  • For those applying for enrolment after 5 years of graduation.
  • For retired personnel.

For immediate graduates falling in the first slab, a total amount of Rs. 14,300 has to be incurred in completion of the enrolment procedure, which earlier amounted to Rs. 9000. 

For the second category of advocates, a total of Rs. 20,000 has to be paid whereas the third category, having the highest rate of enrolment, states that an amount of Rs. 35,000 has to be paid in the enrolment procedure for retired individuals. 

What fees and charges are getting increased?

The notice provides that there has been increase in charges in the following 7 categories:

  • Enrolment fees
  • Identity card charges
  • Building fund
  • Library fund
  • Indigent charges
  • Welfare fund fees
  • Advocates welfare fund created by Bar Council of Delhi

However, the notice clarifies that there will be no increase in cost of enrolment form which will remain the same on a price of Rs. 1000.

Increase in enrolment fees through "circulation"

The notice also increases the fees taken by the bar council of Delhi for taking enrolments via circulation process. Circulation is the process to enable fast enrolments in the State Bar wherein the intending candidates get their enrolment numbers within 24 hours of the submission of their enrolment application.

This procedure is often undertaken by candidates willing to start their practice on an urgent basis or immediately after their graduation gets completed.

According to the notice, the circulation fees has been increased to Rs. 5000 from the earlier charges that were Rs. 3000.

Wednesday, January 6, 2021

HOW TO CALCULATE INCOME OF WOMEN HOMEMAKER IN CLAIM CASES


[13:17, 06/01/2021] Satish Swami: Fixing notional income for homemaker a step towards Constitutional vision of social equality: Supreme Court in Motor Accident case

There can be no exact calculation or formula that can magically ascertain the true value provided by an individual gratuitously for those that they are near and dear to. The attempt of the Court in such matters should therefore be towards determining, in the best manner possible, the truest approximation of the value added by a homemaker for the purpose of granting monetary compensation", reads the judgment.

"A housemaker often prepares food for the entire family, manages the procurement of groceries and other household shopping needs, cleans and manages the house and its surroundings, undertakes decoration, repairs and maintenance work, looks after the needs of the children and any aged member of the household, manages budgets and so much more," 

"a step towards the constitutional vision of social equality and ensuring dignity of life to all individuals."

"... the conception that housemakers do not 'work' or that they do not add economic value to the household is a problematic idea that has persisted for many years and must be overcome."

Tuesday, January 5, 2021

Motor Accident Case- Fixing notional income for homemaker

Read Judgment 



Fixing notional income for homemaker a step towards Constitutional vision of social equality: Supreme Court in Motor Accident case


There can be no exact calculation or formula that can magically ascertain the true value provided by an individual gratuitously for those that they are near and dear to. The attempt of the Court in such matters should therefore be towards determining, in the best manner possible, the truest approximation of the value added by a homemaker for the purpose of granting monetary compensation", reads the judgment.


"A housemaker often prepares food for the entire family, manages the procurement of groceries and other household shopping needs, cleans and manages the house and its surroundings, undertakes decoration, repairs and maintenance work, looks after the needs of the children and any aged member of the household, manages budgets and so much more," 


"a step towards the constitutional vision of social equality and ensuring dignity of life to all individuals." vision of social equality: Supreme Court in Motor Accident case


There can be no exact calculation or formula that can magically ascertain the true value provided by an individual gratuitously for those that they are near and dear to. The attempt of the Court in such matters should therefore be towards determining, in the best manner possible, the truest approximation of the value added by a homemaker for the purpose of granting monetary compensation", reads the judgment.


"A housemaker often prepares food for the entire family, manages the procurement of groceries and other household shopping needs, cleans and manages the house and its surroundings, undertakes decoration, repairs and maintenance work, looks after the needs of the children and any aged member of the household, manages budgets and so much more," 


"a step towards the constitutional vision of social equality and ensuring dignity of life to all individuals."

Monday, January 4, 2021

FAKE DRIVING LICENCE AND INSURANCE LIABILITY ! All relevant aspect of Law.

If the driver produces a driving licence which on the face of it looks genuine, the owner is not expected to find out whether the licence has in fact been issued by a competent authority or not. The owner would then take the test of the driver. If he finds that the driver is competent to drive the vehicle, he will hire the driver.


If it ultimately turns out that the licence was fake the Insurance Company would continue to remain liable unless they prove that the owner/insured was aware or had noticed that the licence was fake and still permitted that person to drive.


Important judgment to consider the issue:


Sunday, January 3, 2021

Jammu & Kashmir Court on Media Trials

Read Judgment 


An accused person is entitled to fundamental rights and there is no distinction between fundamental rights of an accused and a common person.


“The media has the fundamental right of free speech and expression however, the said right is not greater than the rights of an individual. It is the legally bounden duty of the court to protect the fundamental as well as the legal rights of the parties and in the instant case the fundamental and legal rights of the plaintiff. Every person has a right to life and personal liberty and this right includes life with human dignity and in case any person is defamed or any derogatory statement is made against him that results in violation of fundamental rights,” judge Shabir Ahmad Malik said.


The Court also directed defendants to suspend the links of any derogatory and defamatory statements or contents already published on social media/internet or news portals besides issuing summons to the media organisations for filing written statement.