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In this 21st century, whenever we need something, first of all we search about the information in the most used search engine platform like Google etc. Have we ever think that how this search engine results read more
In this 21st century, whenever we need something, first of all we search about the information in the most used search engine platform like Google etc. Have we ever think that how this search engine results work ? Or How much you can rely on this search engine results ?
According to the human psychology, generally we
picked first few search results of google search or any other search engine.
The Cyber fraudsters taking such advantage and use the search engine
optimization techniques to improve search engine results with malicious and
harmful links in the front rows. People without understanding it, get trapped
into such frauds. Cyber fraud in banks is one of such example.
Whether information provided by search engine is
reliable ?
Without going in hurry, always check the sites
starting with “https” and avoid the sites starting with “http” and also verify
the information before acting upon the information.
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https://www.facebook.com/AwarenessAgainstCyberCrimes
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: https://www.cyberchatterjee.com/
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NRIs right to purchase property in India read more
NRIs right to purchase
property in India
-Kishan
Dutt Kalaskar
Can NRIs buy real estate in India? Most
people ask this question, and the answer to this question is yes. The RBI's
circular now allows Non-Resident Indians to purchase certain types of property.
However, other types of property can also be purchased after it is approved by
obtaining special permits.
NRIs buying real estate in India should
understand the legal requirements for owning real estate within the country.
According to the Foreign Exchange Management Act's (FEMA) provisions, Person of
Indian Origin (PIO) and NRIs are treated the same when investing in real estate
in India.
Types of properties where NRIs can invest
NRI investors do not need to request
special permission from RBI, nor do they need to send communications or
intimations regarding the RBI. The RBI, through a circular, has granted general
permission to NRIs for acquiring any number of residential or commercial
properties. The income tax law also allows NRIs to own any amount of
residential or commercial real estate.
Joint ownership
NRIs can act as the sole owner or jointly
purchase real estate with other NRIs. However, Indian residents or other
persons who are prohibited from investing in real estate in India cannot become
the co-owners of the property, regardless of the co-owner's contribution to the
purchase.
Property ownership after becoming NRI
What if someone who owns a property in
India later becomes an NRI? Such a person can still own that property in India
even after residing outside India. NRIs are also allowed to continue to hold
any agricultural land, plantation property, or farmhouse they owned when they
become an NRI, which they are not allowed to purchase otherwise after becoming
an NRI. It depends on when you bought it. The rent received from such property
can be remitted after appropriate Indian taxes have been paid on such rent.
Similarly, any NRI real estate can be sold or let out to anyone living in
India. You can also gift or transfer any property other than agricultural land,
farmhouse or plantation property to any NRI.
Characteristicsof NRI Investment in
India
· NRI cannot purchase
agricultural land or plantation property in India. However, they can buy residential
and commercial properties. If there is a reason behind scouting for
agricultural land, the Reserve Bank of India (RBI) will review such interest on
a case-to-case basis.
· There's no limitation to
the amount of home loan one may take to buy a property in India. If an NRI
wants an agent to conduct transactions on your behalf, such as registering
property, they must provide the agent with a Power of Attorney (PoA). The PoA
holder represents the NRI by submitting a copy of the PoA to the relevant
authority to sign.
· Like any other real
estate purchase in India, NRI is responsible for paying the necessary taxes:
stamp duty, registration fee, annual property tax after purchase, and even
goods and services tax on property construction.
NRIs can also invest in
real estate in India to earn rental income. They would be taxed at 30% via tax
deducted at source (TDS), and the balance can be remitted to the country under
FEMA regulations.
· In the case of proceeds
earned through the sales of immovable properties, it can be repatriated after a
reduction of between 20% and 30% TDS, depending on whether it is long-term or
short-term capital gains.
· For various reasons, NRIs
purchase property in India as a long-term investment, as a place to stay during
their visits home, because they are emotionally connected to India, or for
their families back in India. Once an NRI embarks on the process, they will
realize that buying real estate in India requires them to complete a few formalities
and documentation.
General checklist
What documents are needed before buying a
property?
Passport or OCI card: An NRI must show
their Indian passport. If they hold a foreign passport, they can purchase a
property in India provided they have either of the cards, i.e., a PIO card or
an OCI card.
PAN Card: It is always mandatory for
property-related transactions.
Power of attorney: NRIs must give a
power of attorney if they're outside India for executing the purchase
transaction. It must be noted that the NRIs will need a special power of
attorney registered and notarized and not a general power of attorney to
execute a property transaction. Also, the POA must be signed by the NRI in the
presence of a consulate officer or notary in their country of residence and
also have to be attested by them.
Which property documents are required?
For a smooth purchase transaction and
hassle-free ownership of a property, it is necessary to verify all the
essential papers like:
· Title deed (in the seller's
name). Some states have specific paperwork that the NRIs need to be aware of.
For example, if they plan to buy property in Mumbai, they must check for
e-Khata (in the seller's name) for property taxes.
· Approved plan
· Building permit
· Occupation certificate
(if it is a ready building)
· Older title
deeds(optional)
· Encumbrance certificate
(updated)
· Share certificate (if it
is a cooperative housing society)
· NOC from the society
· RERA registration (if
applicable)
If these documents are in order, an NRI can
prepare the sale agreement for purchasing the property.
What are the documents required for
registration?
Except for the IDs (like passport or PAN
card), an NRI will need to submit their recent address proof documents (like
utility bills) and passport size photographs for the sale deed registration.
Funding and Financial Transactions
When buying a property in India, NRIs must
carry out all transactions in Indian currency and through local banks. It means
NRIs that want to invest in a property in India must have an NRI account in one
of the authorized Indian banks.
NRIs can smoothly obtain funds for buying
properties if the paperwork is as required. Many financial institutions offer
various NRI home loan schemes. However, first, they need to make sure that they
can invest at least 20 per cent of the property value from their sources. It
means that they can get funding for up to 80 per cent of the property's value.
As NRI investors are required to route all
their transactions through Indian banks, they must ensure they use their
NRO/NRE accounts for all inward money remittances. They can also submit
post-dated cheques or opt for Electronic Clearance Service (ECS) from their NRO,
NRE, or Foreign Currency Non-Resident (FCNR) accounts.
Before approaching a bank for funds, NRIs
must get all their documents verified by a competent lawyer to ensure they are
in order. In addition, they should obtain a certificate from the seller stating
that the property that is being purchased has is no lien attached to it. If it
is joint property or inherited by the seller, it is necessary to ensure that
the title deed is cleared. Lastly, NRIs must ensure that no bills or other dues
with any authorities are to be cleared.
What documents are needed for
getting a home loan?
NRIs must furnish the following
documents:
· Copy of Indian passport
and visa
· In case an Indian
passport is unavailable
§ PIO Card if they hold a foreign passport
§ OCI card if their parents are Indian
citizens
· Work permit/employment
contract/appointment letter of the country where they reside.
· Recent salary certificate
/ Payslips for the past six months
· Recent income tax returns
· Bank statements of NRE
and NRO account for the last year
· Bureau report of the
country of residence
· Power of attorney in the
format as given by the bank (in case they are out of India for executing the
purchase transaction)
Tax Benefits: NRIs are
eligible for a major part of the tax benefits available to resident Indian
buyers. If they sell the property they bought within three years; the earnings
will then be taxed as it is deemed to be short-term capital gains. However, if
the property is sold after three years, they can exercise the option of cutting
down the long-term capital gains tax payable by buying another property.
Conclusion
Except for agricultural land, farms and
plantations, NRI has no restrictions on purchasing commercial or residential
properties in India. NRI has different rules and regulations for investing in
Indian real estate; however, this is not as difficult as people think. As a
result, the availability of necessary documents simplifies and speeds up
property purchases.
*****
For the last few weeks, we have seen Twitter versus India battle specially twitter versus Government of India rift and after repeated notices by Government of India to comply rules made under IT Rule read more
For
the last few weeks, we have seen Twitter versus India battle specially twitter
versus Government of India rift and after repeated notices by Government of
India to comply rules made under IT Rule 2021 or Social Media Rules 2021, Twitter
being a social media giant does not care for that as per Government of India
and hence the government announced that thus Twitter loses legal shield in
India and thereby Twitter loses safe harbour in India as per section 79 of
Information Technology Act. Twitter has to comply the IT Act, 2000 and IT Rules
2021 as well as has to appoint a Grievance Officer to deal with complaints
as well as who shall acknowledge the complaint within twenty-four hours for the
purpose of maintaining due diligence.
IT Rule 2021 also specifies that these social media giants have to provide information under its control or possession within 72 hours to the law enforcement agencies on requirement. Rule 2(w) of this Rule signifies the social media intermediary is such a concept through which users primarily or solely enables online interaction between themselves to create, upload, share, disseminate, modify or access information. Furthermore, as per the Rule 3, the intermediary shall remove the objectionable materials specifically obscene materials, within twenty-four hours from the receipt of a complaint made by an individual or any person aggrieved.
For details studies in New Social Media Rules or IT Rules 2021 please follow the articles or videos on New Social Media Rules or IT Rules 2021.
https://www.youtube.com/watch?v=NGDvg8e3r6s&t=2217s
https://www.youtube.com/watch?v=aNRmSXavLHI
https://issuu.com/cyberchatterjee/docs/it_rules_2021_updated.pptx
https://www.youtube.com/watch?v=QxABxZkTE3U
https://www.youtube.com/watch?v=5rwpqbB4r3M
https://www.cyberchatterjee.com/2021/06/twitter-loses-legal-shield-or-safe.html
https://twitter.com/cyberChatterjee/status/1405121071511052288
https://bivas-chatterjee.medium.com/twitter-loses-legal-shield-or-safe-harbour-in-india-e2faa961a2d9
The Single Judge Bench of the Delhi High Court comprising of J. Sanjeev Narula has in a recent case of Krishna Kishore Singh vs Sarla A. Saraogi and Others passed a Judgment dated 10-06-2021 and refused read more
The Single Judge Bench of the Delhi High Court comprising of J. Sanjeev Narula has in a recent case of Krishna Kishore Singh vs Sarla A. Saraogi and Others passed a Judgment dated 10-06-2021 and refused to pass pre-emptory injunction against the release of a film, ‘Nyay: The Justice’ (Film), inspired by certain events in the life of Late Actor Sh. Sushant Singh Rajput (SSR).
To read more, please visit the link below:
#delhihighcourt #nyay #sushantsinghrajput #ssr
The Hon’ble National Company Law Appellate Tribunal (‘#NCLAT’) in the case of Martin S.K. Golla vs. Wig Associates Pvt. Ltd. [CA (AT) (Ins.) No. 121/2019], vide its Judgment dated 04-06-2021 held that read more
The Hon’ble National Company Law Appellate Tribunal (‘#NCLAT’) in the case of Martin S.K. Golla vs. Wig Associates Pvt. Ltd. [CA (AT) (Ins.) No. 121/2019], vide its Judgment dated 04-06-2021 held that #ineligibility to submit #resolutionplan under #Section29A of the Insolvency and Bankruptcy Code, 2016 (‘#IBC’) attaches at the time when the resolution plan is submitted by #resolutionapplicant.
To read more, please visit the link below:
#nclat #retrospective #ibc #section29A #resolutionplan
By: Yug PratikIt is the foremost responsibility of the authorities of the state to keep its citizenry informed regarding the mechanisms devised and enforced for their welfare, for the better administration read more
By: Yug Pratik
It
is the foremost responsibility of the authorities of the state to keep its
citizenry informed regarding the mechanisms devised and enforced for their
welfare, for the better administration of the state. Further, they should also keep
a check on various malpractices and, must expose and eliminate them, whenever
it comes to their knowledge, for the well-being of the society. No democratic
government can survive without accountability and the basic postulate of
accountability is that the people should have the information about the working
of the government.[1]
In
India, the crucial task of keeping the masses informed and updated regarding
the functioning of the government is largely undertaken by the media. This very
task within its broad ambit comprises of ‘sting operation’, a method which is
often employed by the media houses for fetching news for the public. Sting
operations involve high-stake activities by media persons wherein, they garner
information through sub rosa activities. Furthermore, such operations are also
conducted by detectives and undercover law enforcement officers to nab the
offenders red-handed and thus, gather significant evidence of their offences. String
operations are carried out confidentially and certain aspects derived through
them are kept undisclosed.
A
sting operation is an operation designed and exercised to nab an offender by
means of deception. The Delhi High Court recently held that conducting a sting
operation by any citizen is a legitimate exercise. Although there is no clear
law which specifically allows or legalizes sting operation, but the right to
conduct sting operation can be derived under Article 51A (b) of the Constitution
of India.[2]
This particular article imposes a duty upon the citizens to cherish and follow
the noble ideals which inspired our national struggle for freedom. The court
was of the opinion that in order to fulfill this duty, crime and corruption
have to be dealt with heavy hands and by an organized machinery devised for the
purpose, consequently making sting operations legal in the country.
Sting
operations are classified into positive and negative sting operations, based on
their purpose. The former one takes place in the interest of the society and
helps to lift the veil from several malfunctions of the government and private
institutions, while the latter one harms the society and its individuals by
unnecessarily violating the privacy of the citizens.
A
sting operation may be an exhibition of right under freedom of speech and
expression but it is also bound to respect the privacy of others. Though freedom of speech and expression covers freedom
of the press, it is not an absolute right.[3]
Although they have been criticized time and again for the infringement of
privacy rights guaranteed under Article
21 of the Constitution of India but,
a sting operation with genuine motive to create awareness and bring down the
existing nefarious practices should be encouraged or at least, should not be
prohibited.
Time
and again, Courts have regarded the ‘freedom of press’ as an indispensable part
of law. In Romesh Thappar v. The State of Madras[4], the Supreme Court held that “the freedom of press comes under freedom of speech and
expression which is granted to both citizens and non-citizens.” This has encouraged the media units to
exhibit their role of collecting information and imparting it to the society
for their interest, thus being an important role player in democracy.
Though
sting operations are considered to be a legitimate exercise, their execution
and implementation, and the conduct of the persons involved in it should be
regulated by specific legal enactments. Lack of statutory provisions for
governing the purpose and conduct of sting operations points towards a
significant lacuna in the legal system. Hence,
a line has to be drawn between sting operations that invade privacy and those
which expose corruption, which can be thoroughly realized by the formation and
enforcement of a guiding statute. Moreover, it should be ensured that such
operations are backed by bona fide purposes
and are aptly distinguished from mere entrapments. Only then, a definitive
statement regarding the legitimacy of sting operations can be made.
Live-in Relationship in India: Laws and ChallengesProf. (Dr) Priya Sepaha AbstractLive-in relationship is prominently increasing in India as an easy way similar to marriage. It is defined read more
Live-in Relationship in India: Laws and Challenges
Prof. (Dr) Priya Sepaha
Live-in relationship is prominently increasing in India as an easy way similar to marriage. It is defined as a domestic cohabitation between an adult couple who are not married. Apparently, it appears like a stress-free companionship without any legal obligations; conversely, it has many complications, responsibilities and legal liabilities. Recently attempts have been made to bring it in the ambit of some laws. It is no longer an offence in India and many guidelines pertaining to maintenance, property, the legal status of a child have been issued in various decisions of the Apex Court. Still it is a debatable issue in India. There are many grey areas which need appropriate attention like, official documentation, cultural issues, property rights, will and gift rights, anti-religion status, LGBT community and so on.
The primary focus of the article is on to comprehend the concept of live-in relationship with the help of secondary sources. Thereafter, an attempt has been made to study the problems and challenges faced by the couples with the help of descriptive and analytic methodology. Lastly, the article argues on the need for framing a separate, secular and gender-sensitive law for the couple opting to cohabit in a live-in relationship.
For detail paper click the link below:
https://lawcolloquy.com/legal-journals/journal/live-in-relationship-in-india-laws-and-challenges
Article by: Cyril Jacob|| Picture Courtesy: Getty ImagesOne of the most popular words in the cyber world today remains Artificial Intelligence (AI). So I suppose most of you have a fundamental idea of read more
Article by: Cyril Jacob|| Picture Courtesy: Getty Images
One of the most popular words in the cyber world today remains Artificial Intelligence (AI). So I suppose most of you have a fundamental idea of what AI is and how it can dominate the future. To be honest, its presence is clearly felt from the Banking Sector & Financial Sector to Food Delivery services. Be it chatbots or interactive mechanisms being devised by startups to connect with customers and partners, there is an urgency to be part of the big bandwagon of so called intelligence that has the power to disrupt many industries.
The question that pops up is - Are we humans acting in the best of our interests or rather are we contributing to our own downfall? To consider an answer for this we need to delve into different aspects.
1) In the current smartphone and 5G era, millions of jobs are at the risk of being lost. Of course, various factors gave rise to this apart from the Pandemic. From a narrow minded perspective people blame the pandemic alone but this is not the absolute truth. There lies a plethora of contributing factors that can take away your beloved job from you if not now then in the near future and that is the impact that AI has.
2) Personally, being a lawyer I know how smart contracts are being closely studied by lawyers worldwide and the fear it causes them. Truly it is nothing short of a nightmare when a software devised by humans can pose a detrimental concern on the very livelihood of an entire sector. Yes, it is happening faster than one can imagine and here is the catch - it is not limited to one industry.
3) There are optimists and experts who think otherwise and believe that AI may displace employees but at the same time has the potential to generate new employment thanks to the technological progress favouring the developers of computer programs and techies willing to foray into deep learning and AI mechanisms. As per the World Economic Forum (WEF), automation is said to displace approx. 75 million jobs but will generate 133 million jobs by 2022.
4) Considering further statistics in favour of the argument that AI will act as a disruptor, let us observe Mckinsey and Oxford Economics forecasts:
According to Mckinsey Global Institute: "between 40 million and 160 million women worldwide may need to transition between occupations by 2030, often into higher-skilled roles. Clerical work, done by secretaries, schedulers and bookkeepers, is an area especially susceptible to automation, and 72% of those jobs in advanced economies are held by women."
Oxford Economics provides that "up to 20 million manufacturing jobs worldwide will be lost to robots by 2030."
From the above figures, it is obvious that there exists something to be cautious of.
5) The e-commerce giant Amazon has reported that it will be shelling over $700 million in order to train around 100,000 employees by 2025 to be more skilled to cater to the ever changing needs of a competitive world. On the other hand, there are jobs that will not face the heat but who knows what the future may hold?
I am certainly not a pessimist to dismiss each silver lining but well, the statistics from experts who are spending months researching the impact of AI has got me slightly anxious. As of now, I live each moment by catering to as many clients as possible and giving my best. After all, it is not computers who made humans but the other way round.
Give it a thought.
How can litigants list their cases online? Due to COVID-19, the system has become stagnant,leading to the closure ofcourts and urgent cases remaining unlisted. Thus,to encourage paperless read more
How can litigants list their cases
online?
Due to COVID-19, the system has become stagnant,leading
to the closure ofcourts and urgent cases remaining unlisted. Thus,to encourage paperless
filings and
introduce cost-saving efficiencies, theSupreme Court approvede-filing of the
petitions by Advocates onRecord (AoR)
and hearing the cases throughthe
Cisco WebEx application during the lockdown
in the country due to the ongoing
pandemic.
Last year, Chief Justice Bobde
introduced an electronic filing manual developed by the Supreme Council of the
Electronic Court for online case filing in a webinar hosted by
Chief Justice Bobde. During the webinar, theChief Justice stated that
the transition to digitalization would not
be easy, but
it will remain the same for now, and it
is the only way to do justice in the country.
The user manual launched at the webinar is a step-by-step guide
to enable e-filing,
reduce paper consumption, and improve electronic registration.
Not all documents with digital signatures are uploaded to the registration portal. This manual explains in
detail how to create a digital signature and use it for filing
purposes. There are two ways to digitally
sign affirmations,
a formal statement by the parties involved
in the
litigation, in the petition. One way to sign is by
using a digital signature token provided by a Certified
Authority approved by the Information
Technology Act 2000. Another option to sign
the document is to use the electronic signature facility.
This service is provided by
the Indian
government (operated exclusively by CDAC). This electronic signature service is
provided free of charge, especially for litigants and lawyers who do
not have digital
signature tokens or cannot pay for such
signature tokens.
Based on the manual prescribed by the Supreme Court (https://main.sci.gov.in/php/FAQ/5_6246991526434439183.pdf), the Delhi High court has specifically listed the manner in which a case
can be mentioned (http://delhihighcourt.nic.in/efiling.asp)
Similarly, different courts have different methods as prescribed on their
websites.
Procedure for filing urgent
matters in a virtual courtroom.
1.
Procedure of Mentioning
Various courts have
set timings for mentioning. For example, the Delhi High Court has changed timings
to mentionurgent matter to 9 AM to 10.30 AMfrom10.30 AM- 12 PM on all working
days. The applicant is required to prepare a document not exceeding one page explaining
the urgency. This document has to be uploaded in a PDF format, and its size
must not exceed 5MB.
For listing the matter before the Delhi High
Court, the applicant must access the link: https://tinyurl.com/y7se5gl2
and fill in the parties' names, category of the case, name, email ID and contact
number of the counsel for Petitioner/Plaintiff, whether the matter is fresh or
pending and upload the document explaining the urgency. If the formalities are
completed, an SMS indicating the receipt will be received on the phone number
submitted on the link.
2. In case the Requested Matter is Declined
The counsel will receive an SMS on the mobile
number submitted by them on the link informing them that the request has been
declined. There will be an option to request the designated Hon'ble Judge for
reconsideration by 3.00 PM on the same day itself.
3. If Mentioning is Allowed
The counsel will receive an SMS informing the
acceptance of the matter for urgent listing. A reference number and date of
acceptance will be requested, along with a direction to effect advance service
on the opposite party/counsel through email and over mobile. Furthermore, the
contact information and email IDs of the government will be provided for effecting
advance service. The pleadings have to be submitted within two hours of the
receipt of SMS on the given email ID. Details of AOJs to be contacted for
further follow-up will also be given.
The whole set of pleadings have to be served
upon the opposite party through email and over mobile. Proof of advance service
containing email IDs and contact number of the opposite party must be attached
as an annexure to the pleadings. The applicant then has to mail the entire set
of pleadings, a list of advocates for petitioners, a list of advocates for the
respondent, and contact details to the email address given for this
purpose.
4. Procedure
of Listing
If there are any defects in the matter/pleadings,
an SMS will be sent on the mobile number submitted by the counsel informing the
defects, a request to clear defect and the time within which defects have to be
cleared. The matter will be listed only after the defects are cleared.
If there are no defects, SMS informing the
diary number, case number, and tentative date of hearing will be sent to the
counsel. A day before the hearing, Court Master will call on the mobile number
of the counsel confirming the Email IDs of Counsels appearing for the matter.After
that, the Court Master will send the link for the video conference, date and
time of the hearing, meeting number and password, and the iCalender filed,automatically
adding the event to the counsel’s calendar.
5. Procedure
of Hearing
First, download the Application called Cisco
WebEx Meetings from https://www.webex.com/downloads.html/
and log in by entering the name and email ID. Click on the 'join meeting'
button in the link sent to the emailID by the Registry.Some minutes before the
meeting, Court Master will inform the Counsels over a call that the next item
is of them and the meeting is about to start.Finally, the Bench introduces all
the counsels, and the proceedings start.
6. Requisites
of Pleading
-
File
must be in PDF format
-
Scanned soft copy has to be uploaded
-
Application with a prayer forexemption from
filing duly affirmed affidavit(s) and an undertaking to pay the court fees/deficit
court fees within 72 hours from the date of resumption of the regular
functioning of the Court.
-
Filing of Proof of
Service is mandatory and must be marked as the last Annexure.
-
The Party and Counsel should sign pleadings
and Applications.
The entire set of pleading, including
Affidavits, Annexures, Application(s) and Last Annexure (proof of service),
should be sent as one file.It is important to note that the pleading must be
kept ready before submitting the request for Urgent Listing. Once the request
is allowed, the counsel must mandatorily mail the entire set of pleadings
within 2 hours of receipt of acceptance SMS.
Conclusion
For COVID-19, due to the
partial shutdown of the courts, the
system has
become stagnant, and emergency cases have not been resolved. Therefore, in unresolved urgent
cases, the court decided to submit cases
electronically in a virtual model. The initiative
was adopted by
the Supreme Court of India, which allows Advocates on
Record to submitcases electronically because it
saves paper and time and prevents the spread of
COVID-19. It is also a profitable method because it does not use
paper, and urgent cases can be easily filed from anywhere, saving the
litigant's time, and hence the time to list cases is less
than before.
Therefore, electronic filing plays an
important role in continuing judicial work without harming the spread of
the virus effectively and inexpensively.
BENAMI TRANSACTION – ITS IMPLICATIONSWe are all aware of a famous phrase from Shakespeare, “what’s in a name?”, well the Law of the Land says “a lot !!”. And with that thought in mind, along with the read more
BENAMI TRANSACTION – ITS IMPLICATIONS
We are all aware of a
famous phrase from Shakespeare, “what’s in a name?”, well the Law of the Land
says “a lot !!”. And with that thought in mind, along with the essential need
of curbing the increasing ‘Black money’ problem, acts like the ‘Benami
Transactions Act’, our topic for today, was passed.
Benami Transactions Act,
1988, now known as Prohibition of Benami Property Transaction Act, 1988 after
the amendment of 2016, is an Act dealing with the prohibition of certain kinds
of transaction. ‘Benami’ literally means ‘without a name. Benami property
meaning is that it means any property, the owner of which is different from the
person who has consideration for buying it. It may be a movable or immovable,
tangible or intangible asset without a legal owner. ‘Benami’ transaction
is a type of transfer of property in which property is transferred to one
person and the consideration of it is given by another person. This Act was
introduced in order to check the problem of Indian black money. This property
declares Benami transactions as void and the Government can recover such property
without giving any compensation to the holders. This is a very short Act,
consisting of only 9 sections but its impact is far-reaching.
The Benami transactions
act is partly prospective and partly retrospective in nature. For this, we need
to know what prospective law is and what retrospective law is. ‘Retrospective’
are usually those laws that are to take effect before the passing of the law.
Thus, its effect exists on other laws before its passing. ‘Prospective’ laws
have effects in the future but do not interfere with the laws made before the
passing of the concerned Benami Transaction Act.
The law categorizes the
following as a Benami transaction:
1.
A
transfer where the owner of the property is not the person who has given
consideration for the property. However, it is held for the future benefit of
the person providing consideration, directly or indirectly.
2.
A
transaction carried out by using a made-up name.
3.
A
transaction of a property where the owner is not aware of his ownership.
4.
A
transaction where the person giving consideration is not traceable or is
fictitious.
However, in the following
cases, the transaction is not a Benami transaction:
1.
Any
property held by the Karta of a Hindu undivided family for any of the members
of the family and the consideration is given out of the common source of the
family.
2.
An
individual buys a property in the name of his/her spouse or children and the
consideration is given out of the known resources of the individual.
3.
An
individual buys a property in the name of his brother or sister or lineal
ascendants or descendants and they appear as joint- owners and the
consideration is given by the individual.
4.
A
person standing in a fiduciary relationship with any other person receiving the
benefit like a trustee, executor, partner, depository, etc.
The scope of this law can
be divided into 4 categories:
1.
Suits
filed before the Act came into force by the real owner or the plaintiff.
2.
Suits
filed after the Act came into force by the real owner or the plaintiff.
3.
Suits
filed before the Act came into force by the Benami/ ostensible owner or someone
else and the real owner or someone else is the defendant.
4.
Suits
based on Benami transactions that have been filed by the Benami/ ostensible
owner or someone else and the real owner or someone else is the defendant who
has not yet filed the written statement before the Act came into force.
Benefits: It was actually designed
with the noble idea of holding all the black money from India. However, due to
some in-build disputes, it could not be fully implemented before the amendment
of 2016. Benami transactions are also used if they want to hide the true
ownership of the Benami property from their creditors or from the bank. This is
also caught and checked under this Act. It also has a provision in which the
Benami property would automatically vest in the Government, thereby increasing
the profit of the Government. Also, the Benami property vested in the
Government may be given to the landless laborers in need. To cross-check, the
Act prohibits resale of the Benami property from the benamidar to the real
owner and such transfer would be null and void.
Grounds of Offence
Whether a transaction is
Benami or not, the burden of proof is on the person asserting to prove the
same. Such things need to be proven based on legal evidence of a definite
nature. It is a case of ‘men’s rea’ where the intention of the transaction is
important, which is often shrouded by a thick veil. However, the question is
largely based on fact. To determine whether a transaction is Benami or not, the
following guidelines may be followed:
1.
The
source for the consideration of money.
2.
The
nature and possession of the property, after the purchase.
3.
The
motive of the transaction
4.
The
position and the relationship between the claimant and the alleged benamidar.
5.
The
custody of the title deeds after the sale.
6.
The
conduct of the parties dealing with the property after the sale.
CONCLUSION
In case of doubt regarding
the nature of the transaction (whether Benami or not), the ostensible title
cannot be displaced except upon clear evidence. The primary test for Benami
transactions is the source of the consideration money. However, if a female is
accompanied by her husband, it cannot be presumed that it is a Benami
transaction. Spouses and children are an exception to it. Also, there is
nothing to doubt if the custody of the title deed is with the wife after the
purchase. Thus, the Benami Act provides the grounds of offence as the
above-given circumstances.
****
Noida, India
New Delhi, India
Secunderabad, India
Bengaluru, India
Bengaluru, India
Patiala, India
Patiala, India
Kolkata, India
DAYS
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Misuse
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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.
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prohibited content may result in the cancellation of your listings,
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REGISTERED USERS are responsible for ensuring that the Documents/
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If
we determine that the content of a Documents/ Advice detail page or
listing is prohibited, potentially illegal, or inappropriate, we may
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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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