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Rape is a heinous Crime : Whether the punishment for Rape in India is severe?Rape is undoubtedly a heinous crime and an issue of great concern in India today. Despite enacting new read more
Rape is a heinous Crime :
Whether the punishment for Rape in India is severe?
Rape is undoubtedly a heinous crime and an issue of great concern in India today. Despite enacting new laws with stringent punishments and setting up fast-track courts, things have not changed much. With more rape cases are coming to the fore and covered in the news, few questions always come to our mind.
Is it only the pervert individuals who are responsible for rape cases or is it that our criminal justice system is inept? The question that follows is even more thought-provoking. Is it not because of the delay in legal proceedings that make criminals feel that they will not be convicted in their lifetime?
India’s New Anti-rape Law
Considering the punishments meted out in other countries, India is too soft on convicts. In fact, before 2013, rape was not considered a major crime. The highest degree of punishment that could be given to the convict was imprisonment for seven years This was possible only when the culprit was arrested and proved guilty.
After the Nirbhaya incident, the Parliament passed the Anti-rape Bill. Now, an act of rape is liable to life-long imprisonment and even death penalty in extreme cases. According to the new law, not only rape but other acts like sexual harassment, molestation, acid attacks, stalking and voyeurism are also liable to stringent punishments. The new law has the provision of awarding minimum 20 years of rigorous imprisonment, which can extended to life imprisonment to those found guilty of gang-rape.
Out of the six men arrested in the infamous Nirbhaya rape case of December 2012, four of the accused adults were awarded death penalty in March 2014. It took almost two-and-half years for the judiciary to give the verdict.
Punishments Across the Globe
Let us look at the punishments for rape convicts in different countries:
1.Saudi Arabia:
Being an Islamic country, the legal system of Saudi Arabia is based on Sharia – Islamic law. The punishment for rape, or for that matter any other crime like murder, drug trafficking, sodomy, robbery, and apostasy is public beheading. It is said that while beheading, the victim is given a sedative. This is done in a public place where the victim is made to kneel down facing Mecca and his head is beheaded with a single stroke by the police.
2. China:
In China too, strict punishment is given to rapists. Rape is a brutal crime and a death penalty is declared once the rapist is convicted. This is done by firing a single bullet at the spinal cord joining the neck. Another punishment given to the rapists in China is castration. The same punishment is given for other heinous crimes too. It is worth noting that the court proceedings are very quick.
3. North Korea:
In North Korea too, there is no leniency when it comes to punishing a rapist. The offender is either shot in his head or vital organs by a firing squad. This kills the convict relatively quickly and provides instant justice to the victim.
4. Afghanistan:
Even in Afghanistan, the Islamic law is followed for punishing the rape accused. The rapist is either hanged to death or shot dead by a bullet in the head. The punishment is given within four days of the crime.
According to Islamic law, death penalty is essential for rapists. In Iran too, a rapist is given a death sentence. Even for other crimes, death is the penalty. Sometimes, the rape victim settles the case by taking compensation. In such a case, the rapist gets away with 100 lashes and sometimes imprisonment.
6. France:
The rape laws and punishments are more defined and extensive in France. An individual, if found guilty of aggravating a rape incident, is liable to 10 years of imprisonment. If the rape victim dies, the term is increased to 30 years. A rapist is given a life imprisonment if the victim undergoes any kind of torture and is subjected to acts of barbarism even after the rape.
7. USA: In USA, punishments are enacted depending on the different types of sexual assault, which also include rape. Punishment is categorised as 1st, 2nd and 3rd degree rape punishments. The maximum sentence for rape is life imprisonment, which could be 30 years in jail.
8.Greece:
In Greece, the rapist is punished with incarceration.
9. Russia:
In Russia, the years of imprisonment for a rapist is three to six years. If the victim is below 18 years or suffers from any health problem after the rape, the period of imprisonment becomes four to 10 years. If the victim dies after rape, the imprisonment years increases from eight to 15 years. The convict is also banned from taking up any occupation or job for 20 years. The rapist would get 12 to 20 years of imprisonment if the victim is under 14 and she dies after the rape.
10. Israel:
In Israel, a rape convict gets imprisoned for minimum four years and a maximum of 16 years.
11. United Arab Emirates:
In United Arab Emirates too, the punishment, is death. The rapist is hanged till death and this punishment is meted out within seven days of the crime.
12. Egypt:
In Egypt too, the culprit is hanged till death.
13. Netherlands:
Any kind of sexual assault or forced sex, including a French kiss, is considered as a rape in Netherlands. The punishment for the rapist ranges from four to 15 years of imprisonment depending on the age of the victim. Even the rape of a prostitute or any harassment done to her is given much priority in Netherlands.
Conclusion
What we can make out from the above is that every country has a strict legal policy in place and the punishments for the culprit are clearly defined. While the punishment in the Muslim-dominated countries is instant death, in other countries, the punishment extends from few years of jail to life imprisonment depending on the extremity of the case. It’s good that India, too, has come up with the new anti-rape law. To what extent it will be successful, only time will tell.
By MR.KALYAN RAO PEDDI REDDI B.COM (HONS) IN COMPANY LAW & SECRETARIAL PRAC. & BUSINESS ADMINISTRATION & ECONOMICS, ECONOMIC DEVELOPMENT; LL.M (CONSITUTIONAL LAW of India), COMPARATIVE STUDY IN (U. S. American Constitution, Swiss Constitution, FRENCH CONSTITUTION & British Constitution),
C.E.O OF KALYAN LEGAL EXCEL CARE SERVICES ONLINE FOR CITIZENS & N.R.Is.
www.legalexcelcare.com
(LAUNCH: 1.1.2018),
Former District & Sessions Judge, now lives at HYDERABAD, INDIA
Spanish brand, Zara has helped considerably in resolving legal complexities of the fashion industry and Haute Hippie’s allegation of Zara’s copyright infringement is the latest addition to it. Haute Hippie read more
Spanish brand, Zara has helped considerably in resolving legal complexities of the fashion industry and Haute Hippie’s allegation of Zara’s copyright infringement is the latest addition to it. Haute Hippie has claimed infringement of a design print by Zara which has fetched the latter huge profits. It claims that Zara “intentionally copied [Haute Hippie’s] Royal Paisley [print] … without license or authority from [Haute Hippie].”
The US law defines copyright as any tangible medium of expression, including the design of a “useful article”. Recognising the definition’s limited scope and growing garment industry, there has been substantial recognition of design rights under the Act. The U.S Copyright law is based on functionality, an essential component of a copyright to be registered. Increasing the ambit of copyrights, all clothing is recognized as functional and can be registered by the Copyright Office.
However, there continues to be a growing demand from the fashion industry to increase protection for its designs, often citing the strict legal remedies in the global fashion capital, Europe. EU law has a very wide definition of design and includes the appearance of the whole or a part of a product resulting from the features of the lines, contours, colors, shape, texture or its ornamentation.
Encouraged by the same designers in the U.S argue that fashion is also a form of ‘artistic expression’ and the lack of recognition has led to perpetual losses being borne by the industry. As a result of the same, a recent effort has been made in the form of Innovation Design Protection Act, 2012 which proposes an extension of copyright protection of fashion designs for 3 years.
The Indian Perspective
The Indian Copyright Act, 1957 vests in original, literary, dramatic, musical and artistic works. The Act is in harmony with the Berne Convention for the Protection of Literary and Artistic Works, 1886 and the Universal Copyright Convention, the Geneva Act, 1952.
Beyond the legal framework, the Indian judiciary has also played an active role in shaping copyright law in the country, allowing wider interpretation to definitions and enabling greater protection to designers. The Delhi High, for instance, in the case of Louis Vuitton Malletier v. Atul Jaggi recognized copyright of plaintiff in ‘Toile Monogram’ pattern as well as in the ‘Murakami’ monograms of the plaintiff.
The application of law to fashion has been extremely painstaking. Every new case brings with it a different aspect of the law, helping it to adapt to the industry, one case at a time.
This roar is just to advice people at a large. Lots of people have booked flats in real estate companies but the companies are delaying the possession and making fool of the customers. Incase you sense read more
This roar is just to advice people at a large. Lots of people have booked flats in real estate companies but the companies are delaying the possession and making fool of the customers. Incase you sense that there is something wrong and your possession has been delayed, please take immediate steps or else you will make your case weak. People can file a consumer case under deficiency of services against the builder/company. And also people can file a criminal complaint under section 420 ipc against the builder/ company.
1- Send a legal notice to the builder/ company.
2- Give them 30 days time to settle the issue.
3- File a consumer complaint u/s 12 of consumer protection act.
4- File a criminal complaint in police station u/s 420 i.e cheating and fraud.
Start the proceedings immediately which will in turn help you to win the case.
In case of a cheque bounce, it is mandatory to send a legal notice within 15 days from the date of returning memo. It is also mandatory to give 15 days time to the accused to settle the issue. Without read more
In case of a cheque bounce, it is mandatory to send a legal notice within 15 days from the date of returning memo. It is also mandatory to give 15 days time to the accused to settle the issue. Without issuing a legal notice, you cannot file a cheque bounce case against the accused.
Incase the time limit has been crossed, then you will not be able to file a criminal case against the accused. Then the only way to get the money back will be via recovery suit which is a civil suit.
Thus, it is advisable to take immediate steps in case of cheque bounce to secure your right to file a criminal case. Any delay in taking action in case of cheque bounce can bar you from filing a criminal case.
The white soft mithai doused in a sugary syrup was the subject matter of tussle between West Bengal and Odisha. West Bengal government has filed a court petition along with an application for a Geographical read more
The white soft mithai doused in a sugary syrup was the subject matter of tussle between West Bengal and Odisha. West Bengal government has filed a court petition along with an application for a Geographical Indication (GI) recognition for the Rasgolla. Odisha too applied for a Geographical Indication tag for the sweet.
The Odisha government even formed a committee Odisha's science and technology minister Pradip Kumar Panigrahi to claim that the desert had its roots in Odisha. Rhetorics were high in both the neighboring states as Odisha step further and declared 30 July as 'Rasagolla Dibasa' to celebrate its origin. Odisha had claimed that the sweet originated from the Jagannath Temple in Puri, where it has a part of the religious rituals since the 12th century. Odisha called it 'Pahala Rasgulla' but in its original application to the Geographical Indication, West Bengal had sought the Geographical Indication tag on what they call it as "Banglar Rasogolla" (Bengal's Rasgulla) which was different from that of Odisha in terms of colour, texture, taste, juice content and the manufacturing process.
West Bengal claimed that confectioner Nobin Chandra Das is widely known as the one, who created Rasgolla in the 1860s.The GI Registrar Office settled the issue once and for all granting West Bengal the desired GI tag.
Did You Know - Darjeeling tea became the first Geographical Indication tagged product in India with the enactment of Geographical Indications of Goods (Registration and Protection) Act, 1999. Since then nearly 300 goods have been added to the list. So, what is a Geographical Indication Tag and why were the stakes so high? As defined by the section 2 (3)(e) of the Act, Geographical indication has been defined as "an indication which identifies such goods as agricultural goods, natural goods or manufactured goods as originating, or manufactured in the territory of a country, or a region or locality in that territory, where a given quality, reputation or other characteristics of such goods is essentially attributable to its geographical origin and in case where such goods are manufactured goods one of the activities of either the production or of processing or preparation of the goods concerned takes place in such territory, region or locality, as the case may be." Essentially, the GI tag is an intellectual property identifier recognizing the origin of a product and providing an assurance of quality and uniqueness, which are attributable to the place of its origin. Once the GI tag is granted to a product, it prevents unauthorized use of the geographical indication by producers elsewhere.
Under Section 39 of the Act anyone who falsely applies or falsifies any geographical indication, tampers the origin of a good or even makes or has in possession machines or other accessories to use in the falsification of GI is an offender. This helps in boosting the business in its indigenous place due to higher export demands owing to its unique identity. A GI is registered for an initial period of ten years, which may be renewed from time to time.
For now, with bragging rights secured over the sweet West Bengal can help manufacturers with better incentives. For Odisha with all the hype it created, the Sweet has left a bitter taste in their mouth. Kolkata the city of Joy can now rejoice even more over its blue-eyed sweet “Rasgolla”.
INDEX · read more
INDEX
·
INTRODUCTION
·
INTERCONNECTED GLOBAL ISSUES
·
CLIMATE CHANGE, NCDS AND SUSTAINABLE HUMAN
DEVELOPMENT
·
AIR POLLUTION
·
TRANSPORT
·
FOOD
AND AGRICULTURE SYSTEMS
·
MEETING
THE CHALLENGES OF CLIMATE CHANGE.
·
CONSLUSION
Introduction.
Climate change is debatably the most
severe challenge facing our planet during the 21st century. Person meddling
with the climate system mainly through the emission of conservatory gases and
changes in land use has increased the global and annual mean air temperature at
the Earth's surface by approximately 0.8 °C since the 19th century. The spatial
and temporal degree of the climate challenge intensely connects it to ethical
questions as well. These arise both from the fact that the poorest people on
Earth are not considerably contributing to global emissions but may well feel
the impacts most harshly and from the long-term commitment to future warming
and climate change impacts like sea level or the prejudiced melting of the
large ice sheets which will be felt by future generations.
INTERCONNECTED GLOBAL ISSUES:
Notwithstanding the worsening health impacts
of climate change, the links flanked by these two areas create as much an
occasion as a danger. NCDs split ordinary risk factors, of which air stain,
bodily idleness and poor diet are major causes of morbidity and mortality.
These three risk factors share some of the same origins and solutions as
climate change, diagonally sectors including energy, transport systems, food
and agriculture, and production from industry, commerce and workplaces.
CLIMATE CHANGE, NCDS AND SUSTAINABLE HUMAN
DEVELOPMENT:
In
September 2015, 193 world leaders committed to achieving seventeen Sustainable
Development Goals (SDGs) and 169 targets to end extreme poverty, fight
inequality and injustice, and protect our planet by 2030. Referred to as Agenda
2030 for Sustainable Development, health, NCDs and climate change feature
prominently in this new set of goals. There is a devoted target on NCDs under
goal 3 for health, and goal 13 focuses exclusively on climate action.
AIR POLLUTION:
According to the World Health Organization,
air pollution causes 7 million premature deaths annually. Of these,
approximately 4 million are attributable to indoor air pollution, due primarily
to unclean cook stoves, heating and lighting methods (using solid fuels such as
charcoal, wood and crop waste . Around 3 billion people worldwide use
unimproved cook stoves , and the resulting smoke inhalation is comparable to
smoking two packets of cigarettes daily , significantly increasing the risk of
stroke, respiratory diseases, is chaemic heart disease and lung cancer.
TRANSPORT:
Urbanisation has brought with it changes in
occupation and ways of life, leading to lower levels of physical activity and
higher car use. Physical inactivity causes 3.2 million deaths annually and
correlates directly with car ownership, which also contributes to rising
emissions. Total global annual passenger transport is set to more than double
from from 33 trillion to 74 trillion km from 2000 to 205023. Promoting active
transport (i.e. forms of transport which involve physical activity, such as
cycling and walking) has the dual benefit of reducing emissions and
incorporating exercise into daily routine.
Extreme
Weather-
Many
scientists believe that the increase in heat waves, episodes of extreme
rainfall, and the intensity of hurricanes may be related to climate changes
caused by global warming, and that we can expect harsher weather if the warming
trend is allowed to continue.
Droughts
Rising-Temperatures may increase the number of droughts,
which will in turn affect food crops and water availability across the globe.
Many scientists are warning that we may already be seeing agricultural problems
as a result of global climate change.
Economic
Downturn-In addition, recent economic studies warn of the
economic consequences of climate change. One warns that they could be as bad,
or worse, than the Great Depression of the 1930s.Of course, there continues to
be uncertainty about what the exact consequences of global warming will be, but
an overwhelming majority of scientists and leaders are warning that since
higher global temperatures and sea levels are a virtual certainty, we cannot
afford to wait to see exactly what happens. Uncertainty should not be treated
as a reason to sit on our hands and hope that the problem resolves itself.
Instead, we must roll up our sleeves and take steps to address this problem
now.
Meeting
the Challenges of Climate Change.
As both the leading producer of greenhouse gas emissions and the world’s
most powerful country, the United States has a special responsibility to lead
the way in the search for solutions. Fortunately, we have a long tradition of
solving big problems and meeting new challenges. It is high time for the
American spirit of innovation to be put to work on meeting the challenges of
climate change. A final section of this guide suggests a few of the ways that
you, as a citizen, can make a difference.
CONCLUSION:
After
studying the whole topic we would like to conclude that climate change is a
very biggest problem in 21st century. In the recent years there are
many type of pollutions which affecting the environment. And it is also
considered that ozone layer is 75% damaged by which the rain is very dangerous
and gives birth to many diseases.
Urbanisation has brought with it changes in occupation and ways of life,
leading to lower levels of physical activity and higher car use. Physical
inactivity causes 3.2 million deaths annually and correlates directly with car
ownership, which also contributes to rising emissions. Total global annual
passenger transport is set to more than double from from 33 trillion to 74
trillion km from 2000 to 205023. According
to the World Health Organization, air pollution causes 7 million premature
deaths annually. Of these, approximately 4 million are attributable to indoor
air pollution, due primarily to unclean cook stoves, heating and lighting
methods..
KDK_1_GUJ_122773 Motor Vehicles – Motor Vehicles Act, 1988 S 173 – Motor Vehicles Accident – Liability of Insurer when claimant is not third party - Held, claimant stands as driver, owner, read more
KDK_1_GUJ_122773
Motor
Vehicles – Motor Vehicles Act, 1988 S 173 – Motor Vehicles Accident – Liability
of Insurer when claimant is not third party -
Held, claimant stands as driver, owner, tortfeasor, insured and the
claimant also claimed compensation
against his own insurer which is not maintainable - Claimant himself is
registered owner of vehicle - Statute
has made it compulsory for securing risk of third party - Claim petition
preferred by respondent - Original claimant is not maintainable under
provisions of 1988 Act - Tribunal
committed manifest error in entertaining claim petition and making award
- For breach of contract, respondent
cannot maintain claim petition
before Tribunal – Judgment and Award of
Tribunal set aside – Appeal allowed ( P 5, 8, 9 and 10)
1_GUJ_122773
The Judgment of the Court was delivered by
R.P. Dholaria, J.:— This appeal is preferred by the appellant against the judgment and award dated 24.9.2014 passed by learned Motor Accident Claims Tribunal (Aux.), Sabarkantha District at Modasa below Exh.47 in Motor Accident Claim Petition No. 1705 of 2013 whereby learned Tribunal was pleased to award compensation of Rs. 3,35,600/- with interest and cost proportionately in favour of the respondent herein - original claimant.
2. The appellant - insurance company has preferred the present appeal, inter alia, contending that the award passed by learned Tribunal is contrary to the provisions of law, the claimant is indisputably not the third party and he cannot maintain the claim petition before the learned Tribunal under the provisions contained under Chapter XI of the Motor Vehicles Act 1988 (“the Act” for short). It is further contended that learned Tribunal fallen in error in holding that as the insurance company has recovered Rs. 50/- towards coverage of personal accident and, therefore, the insurance company is bound to compensate the insured/owner as such.
3. The facts necessary for disposal of this appeal are narrated as under.
3.1 That the respondent - original claimant who is the owner of motor cycle No. GJ 9 AG 7615 himself was proceeding upon his motor cycle on 6.12.2010 at about 6.00 hours in the morning from Modasa to Himatnagar and while the motor cycle was proceeding within vicinity of Lalpura Kampa Na Patiya, at that time, one truck was coming from opposite direction in full light, due to dazzling effect, he fell down and sustained injuries and ultimately, he received permanent disability which led to filing of the claim petition against the appellant - insurance company making the claim that the insurance company has recovered additional amount of premium of Rs. 50/- and, therefore, the insurance company should compensate for the injuries sustained by him.
3.2 Learned Tribunal, after conclusion of trial and hearing, awarded compensation of Rs. 3,35,600/- and along with interest at the rate of 8% and cost proportionately.
4. This Court has heard Mr. Rathin Raval, learned advocate for the appellant - insurance company and Mr. Abhishek Joshi, learned advocate for the respondent - original claimant.
5. Mr. Raval, learned advocate for the appellant - insurance company has submitted that since the claimant himself is registered owner of the vehicle being Morot Cycle No. GJ 9 AG 7615 which is involved in the accident in question and while the accident occurred, he himself was driving. In his submission, the claimant stands as driver, owner, tortfeasor, insured and the claimant also who claimed the compensation against his own insurer for the injuries and damages sustained by him by way of invoking the provisions of Chapter XI of the Act before learned Tribunal.
5.1 Mr. Raval, learned advocate for the appellant submitted that in view of several decisions, the issue involved in the present appeal has been discussed and decided and hence, this issue remains no longer res integra. In support of his submissions, Mr. Raval has placed reliance on the following decisions.
5.2 In 1986 GLH 573 (United India Ins. Company Ltd. v. Jagatsinh Valsinh, this Court has held as under.
“The claimant is held to be tort feasor. It is beyond comprehension as to how a tort-feaser can be awarded compensation for the tortious act committed by him. If the claimant sustained injuries and suffered disablement as a result of such injuries he has to blame himself for it was his own negligence which caused these injuries. If the claimant was negligent he cannot come forward and say “pay me compensation for my own negligence”. The Tribunal has not examined whether the position of a tort-feaser who is employee', would be different from other tort-feasers. (Para 7)”
“The owner has not been found to be liable to pay compensation to the claimant. Thus what is startling is that without holding the owner liable, the insurance company is made liable to pay compensation to the claimant. In fact, award has been passed against the appellant insurance company alone and the claimant's application as against respondent No. 2 owner has been dismissed. The insurance policy taken out by the owner of the vehicle is a contract of indemnity and liability of the Insurance Company, if any is to indemnify the owner of the vehicle to the extent he is made liable to pay damages or compensation. Therefore, unless the owner is made liable, the insurance company cannot be held liable. Unfortunately, we find that the Tribunal has lost sight of this elementary principle and passed award against the appellant insurance company without making respondent No. 2 liable to pay compensation, to the claimant. (Para 9).”
5.3 In 2007 V (0) GLHEL-SC 38690 (Oriental Insurance Company Limited v. Jhuma Saha, the Honourable Supreme Court has held as under.
“Motor Vehicles Act, 1988 - S.147, 166-motor accident - owner himself involved in accident, resulting in his death - he himself was negligent - accident did not involve any othr motor vehicle liability of Insurance Company - claim petition under S.166 - maintainability of - held, liability of insurer-company is to the extent of indemnification of insured against injured persons, a third person or in respect of damages of property - if insured cannot be fastened with any liability, question not arise-additional premium under the insurance policy was not paid in respect of entire risk of death or bodily injury of owner of vehicle - present case did not fall under S.147(b) as it covers a risk of a third party only - impugned judgment, being unsustainable, set aside - appeal allowed.”
“3. The deceased was the owner of an insured vehicle bearing Registration No. TR 03-2304, a maruti van. While he was driving the said vehicle, allegedly, in olrder to save a goat which was running across the road, the steering of the vehicle failed and it dashed with a tree on the road side. He suffered injuries. He later on succumbed thereto.”
“10. The deceased was the owner of the vehicle. For the reasons stated in the claim petition or otherwise, he himself was to be blamed for the accident. The accident did not involve motor vehicle other than the one which he was driving, the question which arises for consideration is that the deceased himself being negligent, the claim petition u/s 166 of the Motor Vehicles Act, 1988 would be maintainable.
11. Liability of the insurer-Company is to the extent of indemnification of the insured against the respondent or a injured person, a third person or in respect of damages of property. Thus, if the insured cannot be fastened with any liability under the provisions of Motor Vehicle Act, the question of the insurer being liable to indemnify insured, therefore, does not arise.”
5.4 In 2004 (0) GLHEL-SC 7855 (Dhanraj v. New India Assurance Company Limited, the Honourable Supreme Court has held as under.
“8. Thus, an insurance policy covers the liability incurred by the insured in respect of death of or bodily injury to any person (including an owner of the goods or his authorised representative) carried in the vehicle or damage to any property of a third party caused by or raising out of the use of the vehicle. Section 147 does not require an insurance company to assume risk for death or bodily injury to the owner of the vehicle.
9. In the case of Oriental Insurance Co. Ltd. v. Sunita Rathi, 1988 0 ACJ (SC) 121, it has been held that the liability of an insurance company is only for the purpose of indemnifying the insured against liabilities incurred towards third person or in respect of damages to property. Thus, where the insured, i.e., an owner of the vehicle has no liability to a third party the insurance company has no liability also.”
5.5 In 2009 (0) GLHEL-SC 43604 (Ningamma v. United India Insurance Company Limited), the Honourable Apex Court has held as under.
“19. We have already extracted Section 163-A of the MVA hereinbefore. A bare perusal of the said provision would make it explicitly clear that persons like the deceased in the present case would step into the shoes of the owner of the vehicle. In a case wherein the victim died or where he was permanently disabled due to an accident arising out of the aforesaid motor vehicle in that event the liability to make payment of the compensation is on the insurance company or the owner, as the case may be as provided under Section 163-A. But if it is proved that the driver is the owner of the motor vehicle, in that case the owner could not himself be a recipient of compensation as the liability to pay the same is on him. This proposition is absolutely clear on a reading of Section 163-A of the MVA. Accordingly, the legal representatives of the deceased who have stepped into the shoes of the owner of the motor vehicle could not have claimed compensation under Section 163-A of the MVA.
20. When we apply the said principle into the facts of the present case we are of the view that the claimants were not entitled to claim compensation under Section 163-A of the MVA and to that extent the High Court was justified in coming to the conclusion that the said provision is not applicable to the facts and circumstances of the present case. However, the question remains as to whether an application for demand of compensation could have been made by the legal representatives of the deceased as provided in Section 166 of the MVA. The said provision specifically provides that an application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made by the person who has sustained the injury; or by the owner of the property; or where death has resulted from the accident, by all or any of the legal representatives of the deceased; or by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be. When an application of the aforesaid nature claiming compensation under the provisions of Section 166 is received, the Tribunal is required to hold an enquiry into the claim and then proceed to make an award which, however, would be subject to the provisions of Section 162, by determining the amount of compensation, which is found to be just. Person or persons who made claim for compensation would thereafter be paid such amount. When such a claim is made by the legal representatives of the deceased, it has to be proved that the deceased was not himself responsible for the accident by his rash and negligent driving. It would also be necessary to prove that the deceased would be covered under the policy so as to make the insurance company liable to make the payment to the heirs……”
5.6 In III (2007) CPJ 12 (SC) (National Insurance Co. Ltd. v. Laxmi Narain Dhut), the Honourable Apex Court has held as under.
“21. Where the claim relates to own damage claims, it cannot be adjudicated by the insurance company. But it has to be decided by an other Forum i.e. Forum created under the Consumer Protection Act, 1985 (in short the ‘CP Act’). Before the Tribunal, there were essentially three parties i.e. the insurer, insured and the claimants. On the contrary, before the Consumer Forums there were two parties i.e. owner of the vehicle and the insurer. The claimant does not come in to the picture. Therefore, these are cases where there is no third party involved.
22. According to learned Counsel for the appellants, in such cases the logic i.e. let the insurer pay and recover from the insured company does not apply.
23. As noted above, there is no contractual relation between the third party and the insurer. Because of the statutory intervention in terms of Section 149, the same becomes operative in essence and Section 149 provides complete insulation.
24. In the background of the statutory provisions, one thing is crystal clear i.e. the statute is beneficial one qua the third party. But that benefit cannot be extended to the owner of the offending vehicle. The logic of fake licence has to be considered differently in respect of third party and in respect of own damage claims.”
5.7 Relying upon the aforesaid decisions, Mr. Raval, learned advocate for the appellant has submitted that since in the present case, two parties are involved and there is no third party, learned Tribunal has no jurisdiction to decide the claim itself. He further submitted that insured/owner of the offending vehicle cannot maintain the claim invoking the provisions of section 166 of the Act before learned Tribunal against his own insurance company for claiming compensation for the injuries sustained by him. He submitted that even on perusal of the provisions of law contained in Chapter XI of the Act itself, it is amply clear that learned Tribunal has wrongly exercised the jurisdiction though learned Tribunal is not having any authority to decide the claim petition when the third party I is not involved in such claim petition and wrongfully awarded the compensation which is required to be set aside as such.
6. On the other-hand, Mr. Abhishek Joshi, learned advocate for the respondent - original claimant has supported the judgment and award passed by learned Tribunal. He submitted that since the insurance company has already recovered additional premium of Rs. 50/- for coverage of risk of the owner/driver himself, the award passed by learned Tribunal is in consonance with the contractual liability undertaken by the insurance company. In support of his submission, Mr. Joshi has relied upon the following decisions.
6.1 In (2008) 5 SCC 736 (Oriental Insurance Company Limited v. Rajni Devi), the Honourable Apex Court has held as under.
“12. According to the terms of contract of insurance, the liability of the Insurance Company was confined to Rs. 1,00,000 (Rupees one lakh only). It was liable to the said extent and not any sum exceeding the said amount.”
6.2 In 2009 (0) GLHEL - SC - 44069 (Bhagyalakshmi v. United Insurance Co. Ltd.), the Honourable Apex Court has held as under.
“Before this Court, however, the nature of policies which came up for consideration were Act polices. This Court did not deal with a package policy. If the Tariff Advisory Committee seeks to enforce its decision in regard to coverage of third party risk which would include all persons including occupants of the vehicle and the insurer having entered into a contact of insurance in relation thereto, we are of the opinion that the matter may require a deeper scrutiny.”
6.3 In 2012 (0) GLHEL - SC 52350 (Oriental Insurance Company Ltd. v. Surendra Nath Loomba), the Honourable Apex Court has held as under.
“14. We have quoted in extenso to reiterate the legal position. In the case at hand, the policy has not been brought on record. The learned counsel for the appellant - insurer would submit that it is an “Act Policy”. The learned counsel for the respondent would seriously dispute and submit that extra premium might have been paid or it maybe a “Comprehensive/Package Policy”. When Certificate of Insurance is filed but the policy is not brought on record it only conveys that the vehicle is insured. The nature of policy cannot be discerned from the same. Thus, we are disposed to think that it would be appropriate to remit the matter to the tribunal to enable the insurer to produce the policy and grant liberty to the parties to file additional documents and also lead further evidence as advised, and we order accordingly.”
7. The precise contention of Mr. Joshi, learned advocate for the respondent - original claimant is such that if learned [Tribunal having no jurisdiction, in that case also, once the insurance company has recovered additional premium of Rs. 50/- for personal accident coverage of the owner himself in terms of the contract of the insurance, liability of the insurance company is already confirmed to Rs. 1,00,000/- for the coverage of personal accident insurance and in that case, learned Tribunal can surely make the award to the extent of Rs. 1,00,000/-.
8. Taking into consideration the rival submissions made by learned advocates for both the sides, ratio laid down in the above referred decisions by the Honourable Apex Court in light of the peculiar facts and circumstances of the case, indisputably, the claimant himself stands as registered owner and he himself was driving the offending vehicle as well as he himself has preferred the claim petition against his own insurance company claiming compensation for injuries sustained by him and resultant damages suffered by him. Indisputably, the claimant is not the third party. He is insured and the respondent insurance company is the insurer. Chapter XI of the Act makes the provision for insurance of the motor vehicle against the third party risk and the statute has made it compulsory for securing the risk of the third party and in the case on hand, if the injury or damage is suffered by the third party, then the third party can claim and maintain the claim petition before the Motor Accident Claims Tribunal constituted under the said Chapter.
9. In view of the ratio laid down by the Honourable Apex Court in the above referred decisions, the claim petition preferred by the present respondent - original claimant is not maintainable under the provisions of the Act and learned Tribunal has committed manifest error in entertaining the claim petition and making the award, as such.
10. So far as the argument of Mr. Joshi as regards to passing the award to the extent of contractual insured amount of Rs. 1,00,000/- is concerned, the said liability arises between the parties by virtue of the contract and in case of breach of contract, party to the contract can avail legal remedy either before the competent civil court or before the consumer forum as may be advised, but surely for breach of such contract, he cannot maintain the claim petition before the learned Tribunal constituted under the Act.
11. For the reasons recorded above, the appeal succeeds. The impugned judgment and award dated 24.9.2014 passed by learned Tribunal is quashed and J set aside. If any amount is deposited by the appellant insurance company either before the registry of this Court or before the learned Tribunal, the same shall be refunded to the insurance company forthwith. Record and Proceedings, if any, be sent back to the lower court forthwith. No order as to costs.
12. In view of the above order, the Civil Application does not survive and the same stands disposed of accordingly.
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KDK_1_KER_247502 Kerala High CourtAgarwal Yuva Mandal (Kerala) vs Union Of India on 11 December, 2014Taxation – Direct Taxation – Income Act, 1961 S 264 – Claim for deduction – Held, if there is read more
KDK_1_KER_247502
Taxation
– Direct Taxation – Income Act, 1961 S 264 – Claim for deduction – Held, if
there is failure on part of petitioner in making claim for deduction, whether
it is possible for Commissioner to grant one more opportunity - Petitioner sought
for deduction of Rs. 4,60,617/- on premise that said expenditure was claimed as
application for purpose of charitable purpose - Commissioner in Ext. P1
observed that intimation under S 143(1) of 1961 Act is not order of assessment for purpose of S 264 of
1961 Act - Statutory provisions that
mere intimation does not amount to order
which could be revised under S 264 of 1961 Act - Revisional powers are very
wide - Even if no such claim has been made earlier, such a claim can be
entertained by Commissioner under S 264 of 1964 Act - Commissioner of Income Tax is directed to reconsider matter –
Petition disposed (P 13, 16, 17 and 19)
1_KER_247502
The Judgment of the Court was delivered by
A.M. Shaffique, J.:— This writ petition is filed challenging Ext. P1 by which the Principal Commissioner of Income Tax, Kochi-2 has issued an order under Section 264 of the Income Tax Act, 1961 dismissing a petition for revision filed by the assessee. Petitioner also seeks for a direction to hear him and pass appropriate orders.
2. The short facts involved in the writ petition would disclose that the petitioner is a society registered under the Travancore Cochin Literary Scientific and Charitable Societies Registration Act, 1955. Return was filed for the assessment year 2013-14 on 26/12/2013 showing the taxable income of Rs. 3,03,183/-. Petitioner received an intimation under Section 143(1) of the Income Tax Act, 1961 on 16/11/2014 disallowing the claim of expenses for the reason that petitioner does not have registration under Section 12A of the Act. Petitioner was assessed to a liability of Rs. 2,85,190/-. Petitioner filed an objection to the proposed assessment. Thereafter no response was received. Petitioner later revised its return on 3/2/2015. Ext. P9 is the revised return. No action was taken by the revenue based on the revised return. Petitioner thereafter received a reminder dated 19/2/2015 for non payment of the outstanding amount of Rs. 2,85,190/-. Petitioner sent a reply requesting to consider his revised return. Since there was no response, he filed a revision petition under Section 264 of the Act (Ext. P12). It was heard by the Principal Commissioner of Income Tax Kochi on 23/3/2016 and by Ext. P1 order dated 28/3/2016, he declined to exercise the revisional authority.
3. The main contention urged by the petitioner is that revenue has assessed the petitioner to tax without affording him an opportunity of being heard. The assessing officer has not responded to his claim to consider the clarifications on the income and expenditure. He is prejudiced on account of the failure of the 2nd respondent to entertain the revision petition under Section 264 and hence challenging the impugned order, this writ petition is filed.
4. Heard the learned counsel for the petitioner and the learned Standing Counsel appearing on behalf of the respondents. Several judgments have been cited which are dealt hereunder:—
5. In Parekh Brothers v. Commissioner of Income Tax [1983 (15) Taxman 539 (Kerala)], a Division Bench of this Court had occasion to consider a question regarding the scope of revisional power of the Commissioner under Section 264 of the Income Tax Act, 1961. After an evaluation of the various judgments, it was held that even though a mistake was committed by the assessee and it was detected by him after the order of assessment, and the order of assessment is not erroneous, nonetheless it is open to the assessee to file a revision before the Commissioner under Section 264 and claim appropriate relief. In the said case, the question under consideration was whether the Commissioner can exercise the revisional jurisdiction, when the assessee having included the income for assessment, can claim the relief of weighted deduction under Section 35B for the first time in a petition filed under Section 264. It was held that the Commissioner has jurisdiction to entertain a revision under Section 264.
6. In S.R. Koshti v. Commissioner of Income Tax [2005 (146) Taxman 335 (Guj.)], a Division Bench of the Gujarat High Court held that an intimation under Section 143(1) of the Act is not an order of assessment. However, regardless of whether revised return was filed or not, once an assessee is in a position to show that he had been over assessed under the provisions of the Act, regardless of whether the over assessment is a result of assessee's own mistake or otherwise, the Commissioner of Income Tax has the power to correct the assessment as per Section 264(1) of the Act.
7. In Manoharlal Agarwal v. Commissioner of Income Tax (2014 (222) Taxman 138 (Guj)), a revision under Section 264 was rejected and one of the grounds was that the petitioner's return under Section 143(1) of the Act cannot be described as an order which is subject to revision under Section 264. It was held that if any person having furnished a return under sub section (1), or in pursuance of a notice issued under sub section (1) of Section 142, discovers any omission or any wrong statement therein, he may furnish a revised return at any time before the expiry of one year from the end of the relevant assessment year or before the completion of assessment, whichever is earlier. It was held that the revised return submitted by the petitioner was within time and therefore he was entitled for refund of the TDS already deposited with the Department.
8. Yet another judgment relied upon is Assam Roofing Ltd. v. Commissioner of Income Tax [2014 (43) Taxman.com 316 (Gauhati)]. In this case, placing reliance upon judgment in Parekh Brothers (supra), the High Court held that intimation passed under Section 143(1) by the assessing authority is equally an order which can be questioned and can be made subject matter of revision under Section 264 before the Commissioner for deciding the issues raised therein by the assessee on merits.
9. The Delhi High Court in Vijay Gupta. v. Commissioner of Income Tax [2016 (238) Taxman 505 (Delhi)], held that intimation under Section 143(1) is regarded as an order for the purpose of Section 264 and therefore an application under Section 264 is maintainable against such an intimation.
10. In Larsen and Toubro Ltd. v. Asst. Commissioner of Income Tax [2010 (190) Taxman 373 (Bombay)], it was held that rejection of an application under Section 197 amounts to an order and the expression “order” for the purpose of section 264 has a wide connotation. Any order passed by an authority subordinate to the Commissioner, other than an order to which Section 263 applies, is subject to the revisional jurisdiction under Section 264.
11. On the other hand, learned standing counsel for the revenue placed reliance on the judgment of this Court in Commissioner of Income Tax v. K.V. Mankaram and Company [2000 (245) ITR 353]. In this case, the Division Bench considered the question as to whether a proceeding under Section 143(1)(a) amounts to an order of assessment. It is held that the expression “assessment” is clearly referrable to sections 143, 144 and 147 of the Act. A proceeding under Section 143(1)(a) does not result in an order of assessment. For the purpose of Sections 154, 246 and 264, proceeding under 143(1)(a) is treated as an order by the assessing authority. However, the intimation given under Section 143(1)(a) cannot be treated to be an order of assessment. It is only to be deemed as an order for the limited purpose of sections 246 and 264 of the Act. Under section 143(1)(a)(i), the intimation is deemed to be a notice of demand under Section 156 of the Act and it is not treated as an order of assessment. The two are conceptually different and except intimation, no other order is contemplated under 143(1)(a). It was also held that there is a distinction between an order of assessment and a notice of demand and an intimation under Section 143(1)(a) is deemed to be a notice of demand. However, in the judgment, it is held that an intimation under 143(1)(a) is deemed to be an order for the limited purpose of Section 264 of the Act as well.
12. In Asst. Commissioner of Income Tax v. Rajesh Jhaveri Stock Brokers Private Ltd. (2007 (291) ITR 500 SC), the Apex Court had occasion to consider the scope of Section 143(1)(a). It was observed that as a result of the insertion of Explanation to Section 143 by the Finance Act, 1991 from October 1st 1991 and subsequently with effect from 1st June, 1994 by the Finance Act, 1994 and ultimately omitted w.e.f. 1st June, 1999, an intimation sent to the assessee under Section 143(1)(a) was deemed to be an order for the purposes of Section 246 between 1st June, 94 and 31/5/1999 and under Section 264 between 1st October, 91 and 31st May 1999. It is held that the expressions “intimation” and “assessment order” have been used at different places. Assessment is used as meaning sometimes “the computation of income” sometimes “the determination of the amount of tax payable” and sometimes “the whole procedure laid down in the Act for imposing liability upon the tax payer”. It is held that in the scheme of things, the intimation under Section 143(1)(a) cannot be treated to be an order of assessment.
13. Coming back to the facts, Ext. P7 is the intimation received by the petitioner under Section 143(1) of the Act. Pursuant to Ext. P7, petitioner submitted Ext. P8 reply on 11/12/2014 indicating that receipt of Rs. 7,63,800/- consists of voluntary contribution of Rs. 7,41,300/- and its interest. The sum of Rs. 7,41,300/- was received towards specific projects or activities and not a blanket contribution against which the petitioner had incurred the expenditure as directed by the donor. The relevant details were also furnished. Hence, the petitioner sought for deduction of Rs. 4,60,617/- on the premise that the said expenditure was claimed as an application for purpose of charitable purpose. Petitioner also sought for rectifying the return and accordingly a rectified return had been furnished as Ext. P9. Ext. P12 dated 22/4/2015 is the revision filed before the Commissioner. The Commissioner in Ext. P1 observed that intimation under Section 143(1) is not an order of assessment for the purpose of Section 264 whereas it is deemed to be a notice of demand under Section 156 as held by the Karnataka High Court in Avasaraja Automation Ltd. v. Deputy Commissioner of Income Tax (2004 (269) ITR 163).
14. The power of the Commissioner of Income Tax to revise orders is dealt with under Section 264. The short question involved in the present lis is whether an intimation issued under Section 143(1) amounts to an order which could be revised under Section 264. In fact, it is relevant to note that there had been some changes in the statutory format over a period of time. Section 143 has undergone certain changes w.e.f. 1/6/1999. The statute uses the word intimation and not order. Section 143(2) further provides that in an instance where a return has been furnished or in response to a notice under Section 142(1), the assessing officer has reason to believe that any claim of loss exemption, deduction, allowance or relief made in the return is inadmissible, it is open for him to serve on the assessee a notice specifying particulars of such claim, loss, exemption, etc. and after conducting such enquiry in terms with sub section (2), the assessing officer can pass an order under Section 143(3). It is in the light of the aforesaid change in the statutory provision that one has to consider the scope and effect of the revisional powers under Section 264. The Delhi High Court in Vijay Gupta (supra) held that an intimation under section 143(1) is regarded as an order for the purpose of section 264 of the Act. Reference was made to the judgments in K.V. Mankaram and Co. (supra), Assam Roofing Ltd. (supra) and S.R. Koshti (supra). But it is relevant to note that there is a modification or change in the statutory format where an intimation under Section 143(1) was deemed to be an order for the purpose of Section 264 at some point of time. This aspect of the matter has been explained by the Kerala High Court in K.V. Mankaram and Co. (supra), wherein, it was held that a proceeding under Section 143(1)(a) is treated as an order by the assessing authority for the purpose of Section 264. The Division Bench was considering the question relating to assessment year 1995-96. The change in the statutory provision had been explained by the Apex Court in Rajesh Jhaveri Stock Brokers P. Ltd. (supra) wherein it is clearly indicated that an intimation sent to the assessee under Section 143(1a) was deemed to be an order for the purpose of Section 264 from 1st October 1991 to 31st May 1999. The Apex Court was in fact considering the question relating to assessment year 2001-02. It was held at paras 12 and 13 as under:—
“12. What were permissible under the first proviso to section 143(1)(a) to be adjusted were, (i) only apparent arithmetical errors in the return, accounts or documents accompanying the return, (ii) loss carried forward, deduction allowance or relief, which was prima facie admissible on the basis of information available in the return but not claimed in the return and similarly (iii) those claims which were on the basis of the information available in the return, prima facie inadmissible, were to be rectified/allowed/disallowed. What was permissible was correction of errors apparent on the basis of the documents accompanying the return. The Assessing Officer had no authority to make adjustments or adjudicate upon any debatable issues. In other words, the Assessing Officer had no power to go behind the return, accounts or documents, either in allowing or in disallowing deductions, allowance or relief.
13. One thing further to be noticed is that intimation under section 143(1)(a) is given without prejudice to the provisions of section 143(2). Though technically the intimation issued was deemed to be a demand notice issued under section 156, that did not per se preclude the right of the Assessing Officer to proceed under section 143(2). That right is preserved and is not taken away. Between the period from April 1, 1989 to March 31, 1998, the second proviso to section 143(1)(a), required that where adjustments were made under the first proviso to section 143(1)(a), an intimation had to be sent to the assessee notwithstanding that no tax or refund was due from him after making such adjustments. With effect from April 1, 1998, the second proviso to section 143(1)(a) was substituted by the Finance Act, 1997, which was operative till June 1, 1999. The requirement was that an intimation was to be sent to the assessee whether or not any adjustment had been made under the first proviso to section 143(1) and notwithstanding that no tax or interest was found due from the assessee concerned. Between April 1, 1998 and May 31, 1999, sending of an intimation under section 143(1)(a) was mandatory. Thus, the legislative intent is very clear from the use of the word intimation as substituted for assessment that two different concepts emerged.
While making an assessment, the Assessing Officer is free to make any addition after grant of opportunity to the assessee. By making adjustments under the first proviso to section 143(1)(a), no addition which is impermissible by the information given in the return could be made by the Assessing Officer. The reason is that under section 143(1)(a) no opportunity is granted to the assessee and the Assessing Officer proceeds on his opinion on the basis of the return filed by the assessee. The very fact that no opportunity of being heard is given under section 143(1)(a) indicates that the Assessing Officer has to proceed accepting the return and making the permissible adjustments only. As a result of insertion of the Explanation to section 143 by the Finance (No. 2) Act of 1991 with effect from October 1, 1991, and subsequently with effect from June 1, 1994, by the Finance Act, 1994, and ultimately omitted with effect from June 1, 1999, by the Explanation as introduced by the Finance (No. 2) Act of 1991 an intimation sent to the assessee under section 143(1)(a) was deemed to be an order for the purposes of section 246 between June 1, 1994, to May 31, 1999, and under section 264 between October 1, 1991, and May 31, 1999. It is to be noted that the expressions intimation and assessment order have been used at different places. The contextual difference between the two expressions has to be understood in the context the expressions are used. Assessment is used as meaning sometimes the computation of income, sometimes the determination of the amount of tax payable and sometimes the whole procedure laid down in the Act for imposing liability upon the tax payer. In the scheme of things, as noted above, the intimation under section 143(I)(a) cannot be treated to be an order of assessment. The distinction is also well brought out by the statutory provisions as they stood at different points of time. Under section 143(I)(a) as it stood prior to April 1, 1989, the Assessing Officer had to pass an assessment order if he decided to accept the return, but under the amended provision, the requirement of passing of an assessment order has been dispensed with and instead an intimation is required to be sent.
Various circulars sent by the Central Board of Direct Taxes spell out the intent of the Legislature, i.e., to minimize the departmental work to scrutinize each and every return and to concentrate on selective scrutiny of returns. These aspects were highlighted by one of us (D.K. Jain J.) in Apogee International Limited v. Union of India [(1996) 220 ITR 248]. It may be noted above that under the first proviso to the newly substituted section 143(1), with effect from June 1, 1999, except as provided in the provision itself, the acknowledgment of the return shall be deemed to be an intimation under section 143(1) where (a) either no sum is payable by the assessee, or (b) no refund is due to him. It is significant that the acknowledgment is not done by any Assessing Officer, but mostly by ministerial staff. Can it be said that any assessment is done by them? The reply is an emphatic no. The intimation under section 143(1)(a) was deemed to be a notice of demand under section 156, for the apparent purpose of making machinery provisions relating to recovery of tax applicable. By such application only recovery indicated to be payable in the intimation became permissible. And nothing more can be inferred from the deeming provision. Therefore, there being no assessment under section 143(1)(a), the question of change of opinion, as contended, does not arise.”
15. The next question to be considered is whether the said intimation being a demand under Section 156 of the Act, can a revision under 264 be filed. Section 156 reads as under:—
“156. Notice of demand.- When any tax, interest, penalty, fine or any other sum is payable in consequence of any order passed under this Act, the Assessing Officer shall serve upon the assessee a notice of demand in the prescribed form specifying the sum so payable.”
16. It is clear therefore from the statutory provisions that a mere intimation does not amount to an order which could be revised under Section 264. In Parekh Brothers (supra), the question which was considered was whether Section 264 can be invoked for the purpose of making a claim of deduction under Section 35B.
17. The argument is that independent of the notice issued under Section 143(1)(a), if there is failure on the part of the petitioner in making a claim for deduction, whether it is possible for the Commissioner to grant one more opportunity in the matter. It is settled law that the revisional powers are very wide. Petitioner is now faced with a demand which according to the petitioner is liable to be reduced on specific reasons. In Parekh Brothers (supra), this Court held that even if no such claim has been made earlier, such a claim can be entertained by the Commissioner under Section 264. Viewed in that angle, I am of the view that though not as a challenge to Section 143(1) notice, when the petitioner has filed a revised return and has sought for interference by the Commissioner, necessarily the claim has to be considered in accordance with law.
18. In the result, I am of the view that taking cue from Parekh Brothers (supra), the Commissioner will be justified in considering the claim for deduction by the petitioner in accordance with law under Section 264 of the Act.
19. Accordingly, this writ petition is disposed of as under:—
(i) Ext. P1 is set aside.
(ii) The Commissioner of Income Tax is directed to reconsider the matter in accordance with law. This shall be completed within a period of three months from the date of receipt of a copy of this judgment after hearing the petitioner.
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5. Any Registered User/ Consultant wishes to discontinue with this, such Registered User/ Consultant shall send email to SoOLEGAL and such account will be closed and all credits will be refunded to such Registered User/ Consultant after deducation of all taxes and applicable fees within 30 days. Other than as described in the Fulfilment by SoOLEGAL Terms & Conditions (if applicable to you), for the SoOLEGAL Site for which you register or use the Transacting on SoOLEGAL Service, you will: (a) source, fulfil and transact with your Documents/ Advices, in each case in accordance with the terms of the applicable Order Information, these Transaction Terms & Conditions, and all terms provided by you and displayed on the SoOLEGAL Site at the time of the order and be solely responsible for and bear all risk for such activities; (a) not cancel any of Your Transactions except as may be permitted pursuant to your Terms & Conditions appearing on the SoOLEGAL Site at the time of the applicable order (which Terms & Conditions will be in accordance with Transaction Terms & Conditions) or as may be required Transaction Terms & Conditions per the terms laid in this Documents/ Advice; in each case as requested by us using the processes designated by us, and we may make any of this information publicly available notwithstanding any other provision of the Terms mentioned herein, ensure that you are the REGISTERED USER of all Documents/ Advices made available for listing for Transaction hereunder; identify yourself as the REGISTERED USER of the Documents/ Advices on all downloads or other information included with Your Documents/ Advices and as the Person to which a customer may return the applicable Documents/ Advices; and
S-2.2 Returns and Refunds. For all of Your Documents/ Advices that are not fulfilled using Fulfilment by SoOLEGAL, you will accept and process returns, refunds and adjustments in accordance with these Transaction Terms & Conditions and the SoOLEGAL Refund Policies published at the time of the applicable order, and we may inform customers that these policies apply to Your Documents/ Advices. You will determine and calculate the amount of all refunds and adjustments (including any taxes, shipping of any hard copy and handling or other charges) or other amounts to be paid by you to customers in connection with Your Transactions, using a functionality we enable for Your Account. This functionality may be modified or discontinued by us at any time without notice and is subject to the Program Policies and the terms of thisTransaction Terms & Conditions Documents/ Advice. You will route all such payments through SoOLEGAL We will provide any such payments to the customer (which may be in the same payment form originally used to purchase Your Documents/ Advices), and you will reimburse us for all amounts so paid. For all of Your Documents/ Advices that are fulfilled using Fulfilment by SoOLEGAL, the SoOLEGAL Refund Policies published at the time of the applicable order will apply and you will comply with them. You will promptly provide refunds and adjustments that you are obligated to provide under the applicable SoOLEGAL Refund Policies and as required by Law, and in no case later than thirty (30) calendar days following after the obligation arises. For the purposes of making payments to the customer (which may be in the same payment form originally used to purchase Your Documents/ Advices), you authorize us to make such payments or disbursements from your available balance in the Nodal Account (as defined in Section S-6). In the event your balance in the Nodal Account is insufficient to process the refund request, we will process such amounts due to the customer on your behalf, and you will reimburse us for all such amount so paid.
S-5. Compensation
You will pay us: (a) the applicable Referral Fee; (b) any applicable Closing Fees; and (c) if applicable, the non-refundable Transacting on SoOLEGAL Subscription Fee in advance for each month (or for each transaction, if applicable) during the Term of this Transaction Terms & Conditions. "Transacting on SoOLEGAL Subscription Fee" means the fee specified as such on the Transacting on SoOLEGALSoOLEGAL Fee Schedule for the SoOLEGAL Site at the time such fee is payable. With respect to each of Your Transactions: (x) "Transactions Proceeds" has the meaning set out in the Transaction Terms & Conditions; (y) "Closing Fees" means the applicable fee, if any, as specified in the Transacting on SoOLEGAL Fee Schedule for the SoOLEGAL Site; and (z) "Referral Fee" means the applicable percentage of the Transactions Proceeds from Your Transaction through the SoOLEGAL Site specified on the Transacting on SoOLEGAL Fee Schedule for the SoOLEGAL Site at the time of Your Transaction, based on the categorization by SoOLEGAL of the type of Documents/ Advices that is the subject of Your Transaction; provided, however, that Transactions Proceeds will not include any shipping charge set by us in the case of Your Transactions that consist solely of SoOLEGAL-Fulfilled Documents/ Advices. Except as provided otherwise, all monetary amounts contemplated in these Service Terms will be expressed and provided in the Local Currency, and all payments contemplated by this Transaction Terms & Conditions will be made in the Local Currency.
All taxes or surcharges imposed on fees payable by you to SoOLEGAL will be your responsibility.
S-6 Transactions Proceeds & Refunds.
S-6.1.Nodal Account. Remittances to you for Your Transactions will be made through a nodal account (the "Nodal Account") in accordance with the directions issued by Reserve Bank of India for the opening and operation of accounts and settlement of payments for electronic payment transactions involving intermediaries vide its notification RBI/2009-10/231 DPSS.CO.PD.No.1102 / 02.14.08/ 2009-10 dated November 24, 2009. You hereby agree and authorize us to collect payments on your behalf from customers for any Transactions. You authorize and permit us to collect and disclose any information (which may include personal or sensitive information such as Your Bank Account information) made available to us in connection with the Transaction Terms & Conditions mentioned hereunder to a bank, auditor, processing agency, or third party contracted by us in connection with this Transaction Terms & Conditions.
Subject to and without limiting any of the rights described in Section 2 of the General Terms, we may hold back a portion or your Transaction Proceeds as a separate reserve ("Reserve"). The Reserve will be in an amount as determined by us and the Reserve will be used only for the purpose of settling the future claims of customers in the event of non-fulfillment of delivery to the customers of your Documents/ Advices keeping in mind the period for refunds and chargebacks.
S-6.2. Except as otherwise stated in this Transaction Terms & Conditions Documents/ Advice (including without limitation Section 2 of the General Terms), you authorize us and we will remit the Settlement Amount to Your Bank Account on the Payment Date in respect of an Eligible Transaction. When you either initially provide or later change Your Bank Account information, the Payment Date will be deferred for a period of up to 14 calendar days. You will not have the ability to initiate or cause payments to be made to you. If you refund money to a customer in connection with one of Your Transactions in accordance with Section S-2.2, on the next available Designated Day for SoOLEGAL Site, we will credit you with the amount to us attributable to the amount of the customer refund, less the Refund Administration Fee for each refund, which amount we may retain as an administrative fee.
"Eligible Transaction" means Your Transaction against which the actual shipment date has been confirmed by you.
"Designated Day" means any particular Day of the week designated by SoOLEGAL on a weekly basis, in its sole discretion, for making remittances to you.
"Payment Date" means the Designated Day falling immediately after 14 calendar days (or less in our sole discretion) of the Eligible Transaction.
"Settlement Amount" means Invoices raised through SoOLEGAL Platform (which you will accept as payment in full for the Transaction and shipping and handling of Your Documents/ Advices), less: (a) the Referral Fees due for such sums; (b) any Transacting on SoOLEGAL Subscription Fees due; (c) taxes required to be charged by us on our fees; (d) any refunds due to customers in connection with the SoOLEGAL Site; (e) Reserves, as may be applicable, as per this Transaction Terms & Conditions; (f) Closing Fees, if applicable; and (g) any other applicable fee prescribed under the Program Policies. SoOLEGAL shall not be responsible for
S-6.3. In the event that we elect not to recover from you a customer's chargeback, failed payment, or other payment reversal (a "Payment Failure"), you irrevocably assign to us all your rights, title and interest in and associated with that Payment Failure.
S-7. Control of Site
Notwithstanding any provision of this Transaction Terms & Conditions, we will have the right in our sole discretion to determine the content, appearance, design, functionality and all other aspects of the SoOLEGAL Site and the Transacting on SoOLEGAL Service (including the right to re-design, modify, remove and alter the content, appearance, design, functionality, and other aspects of, and prevent or restrict access to any of the SoOLEGAL Site and the Transacting on SoOLEGAL Service and any element, aspect, portion or feature thereof (including any listings), from time to time) and to delay or suspend listing of, or to refuse to list, or to de-list, or require you not to list any or all Documents/ Advices on the SoOLEGAL Site in our sole discretion.
S-8. Effect of Termination
Upon termination of this Contract, the Transaction Terms & Conditions automatiocally stands terminated and in connection with the SoOLEGAL Site, all rights and obligations of the parties under these Service Terms with regard to the SoOLEGAL Site will be extinguished, except that the rights and obligations of the parties with respect to Your Transactions occurring during the Term will survive the termination or expiration of the Term.
"SoOLEGAL Refund Policies" means the return and refund policies published on the SoOLEGAL Site.
"Required Documents/ Advices Information" means, with respect to each of Your Documents/ Advices in connection with the SoOLEGAL Site, the following (except to the extent expressly not required under the applicable Policies) categorization within each SoOLEGAL Documents/ Advices category and browse structure as prescribed by SoOLEGAL from time to time, Purchase Price; Documents/ Advice Usage, any text, disclaimers, warnings, notices, labels or other content required by applicable Law to be displayed in connection with the offer, merchandising, advertising or Transaction of Your Documents/ Advices, requirements, fees or other terms and conditions applicable to such Documents/ Advices that a customer should be aware of prior to purchasing the Documents/ Advices;
"Transacting on SoOLEGAL Launch Date" means the date on which we first list one of Your Documents/ Advices for Transaction on the SoOLEGAL Site.
"URL Marks" means any Trademark, or any other logo, name, phrase, identifier or character string, that contains or incorporates any top level domain (e.g., .com, co.in, co.uk, .in, .de, .es, .edu, .fr, .jp) or any variation thereof (e.g., dot com, dotcom, net, or com).
"Your Transaction" is defined in the Transaction Terms & Conditions; however, as used in Terms & Conditions, it shall mean any and all such transactions whereby you conduct Transacting of Documents/ Advices or advice sought from you by clients/ customers in writing or by any other mode which is in coherence with SoOLEGAL policy on SoOLEGAL site only.
Taxes on Fees Payable to SoOLEGAL. In regard to these Service Terms you can provide a PAN registration number or any other Registration/ Enrolment number that reflects your Professional capacity by virtue of various enactments in place. If you are PAN registered, or any professional Firm but not PAN registered, you give the following warranties and representations:
(a) all services provided by SoOLEGAL to you are being received by your establishment under your designated PAN registration number; and
SoOLEGAL reserves the right to request additional information and to confirm the validity of any your account information (including without limitation your PAN registration number) from you or government authorities and agencies as permitted by Law and you hereby irrevocably authorize SoOLEGAL to request and obtain such information from such government authorities and agencies. Further, you agree to provide any such information to SoOLEGAL upon request. SoOLEGAL reserves the right to charge you any applicable unbilled PAN if you provide a PAN registration number, or evidence of being in a Professional Firm, that is determined to be invalid. PAN registered REGISTERED USERs and REGISTERED USERs who provide evidence of being in Law Firm agree to accept electronic PAN invoices in a format and method of delivery as determined by SoOLEGAL.
All payments by SoOLEGAL to you shall be made subject to any applicable withholding taxes under the applicable Law. SoOLEGAL will retain, in addition to its net Fees, an amount equal to the legally applicable withholding taxes at the applicable rate. You are responsible for deducting and depositing the legally applicable taxes and deliver to SoOLEGAL sufficient Documents/ Advice evidencing the deposit of tax. Upon receipt of the evidence of deduction of tax, SoOLEGAL will remit the amount evidenced in the certificate to you. Upon your failure to duly deposit these taxes and providing evidence to that effect within 5 days from the end of the relevant month, SoOLEGAL shall have the right to utilize the retained amount for discharging its tax liability.
Where you have deposited the taxes, you will issue an appropriate tax withholding certificate for such amount to SoOLEGAL and SoOLEGAL shall provide necessary support and Documents/ Adviceation as may be required by you for discharging your obligations.
SoOLEGAL has the option to obtain an order for lower or NIL withholding tax from the Indian Revenue authorities. In case SoOLEGAL successfully procures such an order, it will communicate the same to you. In that case, the amounts retained, shall be in accordance with the directions contained in the order as in force at the point in time when tax is required to be deducted at source.
Any taxes applicable in addition to the fee payable to SoOLEGAL shall be added to the invoiced amount as per applicable Law at the invoicing date which shall be paid by you.F.11. Indemnity
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Category and Documents/ Advice RestrictionsCertain Documents/ Advices cannot be listed or sold on SoOLEGAL site as a matter of compliance with legal or regulatory restrictions (for example, prescription drugs) or in accordance with SoOLEGAL policy (for example, crime scene photos). SoOLEGAL's policies also prohibit specific types of Documents/ Advice content. For guidelines on prohibited content and copyright violations, see our Prohibited Content list. For some Documents/ Advice categories, REGISTERED USERS may not create Documents/ Advice listings without prior approval from SoOLEGAL. |
In addition to your obligations under Section 6 of the Transaction Terms & Conditions, you also agree to indemnify, defend and hold harmless us, our Affiliates and their and our respective officers, directors, employees, representatives and agents against any Claim that arises out of or relates to: (a) the Units (whether or not title has transferred to us, and including any Unit that we identify as yours pursuant to Section F-4 regardless of whether such Unit is the actual item you originally sent to us), including any personal injury, death or property damage; and b) any of Your Taxes or the collection, payment or failure to collect or pay Your Taxes.
Registered Users must at all times adhere to the following rules for the Documents/ Advices they intend to put on Transaction:
The "Add a Documents/ Advice" feature allows REGISTERED USERS to create Documents/ Advice details pages for Documents/ Advices.
The following rules and restrictions apply to REGISTERED USERS who use the SoOLEGAL.in "Add a Documents/ Advice" feature.
Using this feature for any purpose other than creating Documents/ Advice details pages is prohibited.
Any Documents/ Advice already in the SoOLEGAL.in catalogue which is not novel and/ or unique or has already been provided by any other Registered User which may give rise to Intellectual Property infringement of any other Registered User is prohibited.
Detail pages may not feature or contain Prohibited Content or .
The inclusion of any of the following information in detail page titles, descriptions, bullet points, or images is prohibited:
Information which is grossly harmful, harassing, blasphemous, defamatory, pedophilic, libelous, invasive of another's privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, pornographic, obscene or offensive content or otherwise unlawful in any manner whatever.
Availability, price, condition, alternative ordering information (such as links to other websites for placing orders).
Reviews, quotes or testimonials.
Solicitations for positive customer reviews.
Advertisements, promotional material, or watermarks on images, photos or videos.
Time-sensitive information
Information which belongs to another person and to which the REGISTERED USER does not have any right to.
Information which infringes any patent, trademark, copyright or other proprietary rights.
Information which deceives or misleads the addressee about the origin of the messages or communicates any information which is grossly offensive or menacing in nature.
Information which threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or public order or causes incitement to the commission of any cognizable offence or prevents investigation of any offence or is insulting any other nation.
Information containing software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource.
Information violating any law for the time being in force.
All Documents/ Advices should be appropriately and accurately classified to the most specific location available. Incorrectly classifying Documents/ Advices is prohibited.
Documents/ Advice titles, Documents/ Advice descriptions, and bullets must be clearly written and should assist the customer in understanding the Documents/ Advice. .
All Documents/ Advice images must meet SoOLEGAL general standards as well as any applicable category-specific image guidelines.
Using bad data (HTML, special characters */? etc.) in titles, descriptions, bullets and for any other attribute is prohibited.
Do not include HTML, DHTML, Java, scripts or other types of executables in your detail pages.
Prohibited REGISTERED USER Activities and Actions
SoOLEGAL.com REGISTERED USER Rules are established to maintain a transacting platform that is safe for buyers and fair for REGISTERED USERS. Failure to comply with the terms of the REGISTERED USER Rules can result in cancellation of listings, suspension from use of SoOLEGAL.in tools and reports, or the removal of transacting privileges.
Attempts to divert transactions or buyers: Any attempt to circumvent the established SoOLEGAL Transactions process or to divert SoOLEGAL users to another website or Transactions process is prohibited. Specifically, any advertisements, marketing messages (special offers) or "calls to action" that lead, prompt, or encourage SoOLEGALusers to leave the SoOLEGAL website are prohibited. Prohibited activities include the following:
The use of e-mail intended to divert customers away from the SoOLEGAL.com Transactions process.
Unauthorised & improper "Names": A REGISTERED USER's Name (identifying the REGISTERED USER's entity on SoOLEGAL.com) must be a name that: accurately identifies the REGISTERED USER; is not misleading: and the REGISTERED USER has the right to use (that is, the name cannot include the trademark of, or otherwise infringe on, any trademark or other intellectual property right of any person). Furthermore, a REGISTERED USER cannot use a name that contains an e-mail suffix such as .com, .net, .biz, and so on.
Unauthorised & improper invoicing: REGISTERED USERS must ensure that the tax invoice is raised in the name of the end customer who has placed an order with them through SoOLEGAL Payment Systems platform . The tax invoice should not mention SoOLEGAL as either a REGISTERED USER or a customer/buyer. Please note that all Documents/ Advices listed on SoOLEGAL.com are sold by the respective REGISTERED USERS to the end customers and SoOLEGAL is neither a buyer nor a REGISTERED USER in the transaction. REGISTERED USERS need to include the PAN/ Service Tax registration number in the invoice.
Inappropriate e-mail communications: All REGISTERED USER e-mail communications with buyers must be courteous, relevant and appropriate. Unsolicited e-mail communications with SoOLEGAL , e-mail communications other than as necessary and related customer service, and e-mails containing marketing communications of any kind (including within otherwise permitted communications) are prohibited.
Operating multiple REGISTERED USER accounts: Operating and maintaining multiple REGISTERED USER accounts is prohibited.
In your request, please provide an explanation of the legitimate business need for a second account.
Misuse of Search and Browse: When customers use SoOLEGAL's search engine and browse structure, they expect to find relevant and accurate results. To protect the customer experience, all Documents/ Advice-related information, including keywords and search terms, must comply with the guidelines provided under . Any attempt to manipulate the search and browse experience is prohibited.
Misuse
of the ratings, feedback or Documents/ Advice reviews: REGISTERED
USERS cannot submit abusive or inappropriate feedback entries,
coerce or threaten buyers into submitting feedback, submit
transaction feedback regarding them, or include personal information
about a transaction partner within a feedback entry. Furthermore,
any attempt to manipulate ratings of any REGISTERED USER is
prohibited. Any attempt to manipulate ratings, feedback, or
Documents/ Advice reviews is prohibited.
Reviews: Reviews
are important to the SoOLEGAL Platform, providing a forum for
feedback about Documents/ Advice and service details and reviewers'
experiences with Documents/ Advices and services –
positive
or negative. You may not write reviews for Documents/ Advices or
services that you have a financial interest in, including reviews
for Documents/ Advices or services that you or your competitors deal
with. Additionally, you may not provide compensation for a review
(including free or discounted Documents/ Advices). Review
solicitations that ask for only positive reviews or that offer
compensation are prohibited. You may not ask buyers to modify or
remove reviews.
Prohibited Content
REGISTERED USERS are expected to conduct proper research to ensure that the items posted to our website are in compliance with all applicable laws. If we determine that the content of a Documents/ Advice detail page or listing is prohibited, potentially illegal, or inappropriate, we may remove or alter it without prior notice. SoOLEGAL reserves the right to make judgments about whether or not content is appropriate.
The
following list of prohibited Documents/ Advices comprises two
sections: Prohibited Content and Intellectual Property
Violations.
Listing
prohibited content may result in the cancellation of your listings,
or the suspension or removal of your transacting privileges.
REGISTERED USERS are responsible for ensuring that the Documents/
Advices they offer are legal and authorised for Transaction or
re-Transaction.
If
we determine that the content of a Documents/ Advice detail page or
listing is prohibited, potentially illegal, or inappropriate, we may
remove or alter it without prior notice. SoOLEGAL reserves the right
to make judgments about whether or not content is appropriate.
Illegal and potentially illegal Documents/ Advices: Documents/ Advices sold on SoOLEGAL.in must adhere to all applicable laws. As REGISTERED USERS are legally liable for their actions and transactions, they must know the legal parameters surrounding any Documents/ Advice they display on our website.
Offensive material: SoOLEGAL reserves the right to determine the appropriateness of listings posted to our website.
Nudity: In general, images that portray nudity in a gratuitous or graphic manner are prohibited.
Items that infringe upon an individual's privacy. SoOLEGAL holds personal privacy in the highest regard. Therefore, items that infringe upon, or have potential to infringe upon, an individual's privacy are prohibited.
Intellectual Property Violations
Counterfeit merchandise: Documents/ Advices displayed on our website must be authentic. Any Documents/ Advice that has been illegally replicated, reproduced or manufactured is prohibited.
Books - Unauthorised copies of books are prohibited.
Movies - Unauthorised copies of movies in any format are prohibited. Unreleased/prereleased movies, screeners, trailers, unpublished and unauthorized film scripts (no ISBN number), electronic press kits, and unauthorised props are also prohibited.
Photos - Unauthorised copies of photos are prohibited.
Television Programs - Unauthorised copies of television Programs (including pay-per-view events), Programs never broadcast, unauthorised scripts, unauthorised props, and screeners are prohibited.
Transferred media. Media transferred from one format to another is prohibited. This includes but is not limited to: films converted from NTSC to Pal and Pal to NTSC, laserdisc to video, television to video, CD-ROM to cassette tape, from the Internet to any digital format, etc.
Promotional media: Promotional versions of media Documents/ Advices, including books (advance reading copies and uncorrected proofs), music, and videos (screeners) are prohibited. These Documents/ Advices are distributed for promotional consideration and generally are not authorized for Transaction.
Rights of Publicity: Celebrity images and/or the use of celebrity names cannot be used for commercial purposes without permission of a celebrity or their management. This includes Documents/ Advice endorsements and use of a celebrity's likeness on merchandise such as posters, mouse pads, clocks, image collections in digital format, and so on.
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