by LFIAdmin | Jul 6, 2021 | Home
By Jaisal Baath, BBA LL.B. (Hons)
jaisalbaath@hotmail.com | Jul 06, 2021
Introduction
In the 21st Century, cross border business is the highest it’s ever been and as such, disputes relating to which jurisdiction will have the taxing right on the cross border transactions being performed are also on the rise. The BEPS Action 14 Minimum Standard aims to improve the resolution of tax related disputes between jurisdictions. Article 25 of the OECD Model Tax Convention brings about a Mutual Agreement Procedure (MAP) mechanism using which, the taxing authorities of the contracting states can resolve treaty disputes concerning the interpretation or application of the treaty by agreement[1].
The main aim of the BEPS Action 14 is to ensure a timely, efficient and effective operation of MAP by addressing the obstacles that hinder the operation of MAP. The OECD is of the view that peer reviews and continuous monitoring will help in ensuring that the final resolution delivered will be more transparent and effective.
BEPS Action 14: Aims and Objectives
The BEPS Action 14 is two-fold. The first sets out the minimum standards, monitoring processes and best practice which are to be followed in order to ensure optimal resolution of treaty disputes. To satisfy the first aspect of Action 14, the member countries must strive to ensure that:
- treaty obligations relating to MAP are implemented in good faith and to ensure that the disputes relating to MAP are resolved in a timely manner;
- putting in place administrative processes so as to ensure the timely resolution and prevention of disputes;
- taxpayers should have the ability to access the MAP to resolve disputes when eligible.
The second fold is the introduction of mandatory binding arbitration of disputes which remain unresolved[2]. This provision for the introduction of a binding arbitration in certain cases is also provided for under the “Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting (MLI)”[3]. In relation to this provision, the OECD and G20 countries are yet to reach a consensus for its implementation. However, the US is among the 20 countries who are in favour of mandatory binding arbitration and these 20 countries together account for approximately 90% of the outstanding MAP cases, as at the end of 2013[4].
The 20th October 2016 OECD Publication has several parts. The Terms of Reference has translated the Action 14 minimum standards into 21 elements which helps in analysing a countries administrative and legal MAP frameworks and helps in analysing the effectiveness of the MAP provisions being implemented by the country. These 21 elements assess the countries on the basis of 4 (four) key areas:
- preventing disputes which consists of 2 elements;
- availability and access to MAP which consists of 10 elements;
- resolution of MAP cases which consists of 6 elements;
- implementation of MAP agreements which consists of 3 elements[5].
Furthermore, an assessment methodology was also enacted that provides for the procedures and guidelines to be followed for the peer review process which comprises of a 2 (two) stage process.
Under stage 1, jurisdictions’ implementation of the Action 14 Minimum Standard is reviewed on the basis of the legal and administrative framework of their MAP programmes and the application of this framework in practice, as well input from peers and taxpayers and reported MAP statistics[6]. For countries that have not implemented all of the 21 elements, recommendations are made so as to ensure, the Countries are able to meet all 21 elements. Follow-up on the stage 1 recommendations is reviewed in stage 2 of the process, which is initiated within one year after the approval of a jurisdiction’s stage 1 peer review report by the BEPS Inclusive Framework[7].
The OECD Consultation on the BEPS Action 14 (MAP)
The Public Consultation undertaken has provided the member countries with various suggestions so as to ensure the strengthening of the Minimum Standard. The following are the proposals introduced:
Proposal 1: Increase the use of Bilateral APAs:
An Advance Pricing Agreement (APA) is an agreement between the taxing authority and the tax payer with a view to determining the transfer pricing methodology so as to identify the pricing for the tax payers international transactions for the future. It is recommended that member countries establish bilateral APA programme so as to ensure the prevention of disputes and to provide the tax-payers with certainty.
The peer review process has indicated that a majority of the member countries which were assessed had some form of a bilateral APA programme in place. The countries with a low MAP case burden can forego this recommendation of enacting bilateral APA programmes till the time the countries MAP burden reaches a certain level[8].
Proposal 2: Expand access to training on international tax issues for auditors and examination personnel:
As stated before, the aim of the BEPS Action 14 is to make the dispute resolution mechanisms as effective as possible. Even-though, the OECD lays importance on the existence of an effective MAP policy to realise this aim, not all cases have to enter the MAP process. Mandatory training for audit/examination personnel would increase auditors’ efficacy and would result in[9]:
- better-trained auditors and examiners and
- (ii) fewer adjustments that lead to long discussions in MAP or situations where the case is closed by providing unilateral relief in the jurisdiction that made the adjustment at issue.
This in turn can have the effect of reducing the overall number of MAP cases being initiated every year.
Proposal 3: Define criteria to ensure that access to MAP is granted in eligible cases and introduce standardised documentation requirements for MAP requests:
There are currently no commonly agreed criteria specifying when exactly a case will be eligible to be instated under the MAP process, as well as what information and documentation the tax payer is supposed to file in order to initiate the MAP process. Action 14 Minimum Standard defines the situations in which MAP should be given such as:
- transfer pricing cases;
- cases concerning the application of treaty and domestic anti-abuse provisions;
- cases in which there has been an audit settlement, and
- cases in which taxpayers have provided in the MAP request the required information and documentation as set out in a jurisdiction’s MAP guidance[10].
The peer review process identified that there are certain instances in which the MAP process is denied when it should have been allowed and vice versa. A few of such situations are as follows:
- cases in which there was no double taxation;
- cases in which there was already a final court decision but correlative relief might be obtained, and
- cases where a PE no longer existed at the time the MAP request was submitted[11].
Due to the above stated reasons, it is submitted that there is a need to adopt a standard for deciding which cases warrant a MAP process and which don’t. At the same time, to make the access to MAP easier for the tax payer as well as to ensure that no tax payer wanting to opt for MAP is wrongly denied access.
Proposal 4: Suspend tax collection for the duration of the MAP process under the same conditions as are available under domestic rules:
The MAP process usually lasts for a very long time, during the pendency of which, the jurisdictions laying claim to the taxable income, should put their call for the payment of the disputed income on hold, till the time the process of MAP comes to a final conclusion and the award is made in favour of one of the interested parties. This is done to ensure that their is no financial hardship on the tax payer during the pendency of the suit as by being forced by both the jurisdictions to pay their respective alleged claims pertaining to the taxable income, a case of double taxation is born which financially frustrates the tax payer and defeats the purpose of opting for the MAP process in the first place. This requirement for the suspension of the claims being made by both the jurisdictions is in line with the domestic laws of most jurisdictions, under which a suspension of tax collection is available when domestic remedies are initiated to challenge the tax assessment[12].
Proposal 5: Align interest charges / penalties in proportion to the outcome of the MAP process:
Proposal 5 also follows the same line of reasoning as Proposal 4. The penalties and interest charges that are levied against a tax payer can be substantially high and in some cases can also be more than the taxes actually under dispute. This is highly biased against the tax payer as if after the final decision of the MAP process, the adjustment that made the basis for the interest being levied stands reversed, the tax payer can legitimately ask as to why is he still supposed to pay the interest even when the tax adjustment stands reversed as part of the MAP agreement. Currently, Jurisdictions don’t have to align such interests in line with the final outcome of the MAP process and this can result in significant financial hardships on the tax payer. This can effectively constitute as a roadblock in the effective function of the MAP process as tax payers maybe discouraged from going for MAP.
Proposal 6: Introduce a proper legal framework to ensure the implementation of all MAP agreements:
The peer review process shows that domestic time limits in approximately one-third of the reviewed jurisdictions may jeopardize the implementation of MAP agreements, in cases where the applicable tax treaty does not contain the equivalent of Article 25(2), second sentence, of the OECD Model Tax Convention (which ensures that MAP agreements can be implemented notwithstanding domestic time limits)[13]. In a number of jurisdictions assessed, the MAP process is still not fully implemented due to either the jurisdictions not being able to implement the MAP agreement or due to the tax payer not being able to initiate a MAP process due to the expiration of the domestic timelines.
As such, there are several options to address the risk of non-implementation, amongst which the following three introducing the obligation for jurisdictions that:
- All of their tax treaties contain the equivalent of Article 25(2), second sentence;
- All of their tax treaties contain the equivalent of Article 25(2), second sentence, supplemented, if requested by one State, with a provision limiting the time during which a primary adjustment or an assessment is made; or
- Their domestic legislation includes a mechanism that fiscal years are kept open until the MAP proceedings have been finalised or they have administrative procedures that allow for implementation notwithstanding domestic time limits for at least as long as not all treaties contain the equivalent of Article 25(2), second sentence[14].
Proposal 7: Allow multi-year resolution through MAP of recurring issues with respect to filed tax years:
In cases where the MAP process being initiated is exactly similar to a MAP process that has already been decided upon before, provided the facts and circumstances of both the MAP processes is the same, the tax payer should be allowed to rely on the the decision arrived in the similar MAP process already decided. While doing this, the authorities should make sure that the facts and circumstances of the two MAP processes is the same and as such a multi-year resolution through the MAP process should be allowed. This may help to avoid duplicative MAP requests and permit a more efficient use of competent authority resources[15].
Proposal 8: Implement MAP arbitration or other dispute resolution mechanisms as a way to guarantee the timely and effective resolution of cases through the mutual agreement procedure:
MAP Arbitration ensures that the cases filed under the MAP process are adjudicated upon in a timely manner. Implementing MAP arbitration could be an incentive to reduce the number of MAP disputes that are closed with no or only partial resolution but may also have a positive impact on more timely resolution of all pending MAP cases[16]. A number of jurisdictions have adopted the process of MAP Arbitration after seeing the benefits of the same whereas, some jurisdictions have raised concerns such as constitutional and sovereignty concerns and also concerns relating to the cost and resource constraints of such an Arbitration.
Conclusion
The OECD Consultation Documents on the BEPS Action 14 (MAP) shows that there still are significant shortcomings in the MAP process as being implemented by Jurisdictions. A majority of the recommendations arrived at after the Consultation aim towards making the MAP process more tax payer friendly and aims to reduce the burdens, specially financial burdens, on the tax payer. The recommendations also ensure that the the member countries implement the MAP process with certainty so that the case load on the country is reduced and only those cases that genuinely deserve to be instituted under the MAP process get the time and attention. The MAP process is very helpful in adjudicating and eliminating instances of double taxation and although it has so far been able to realise its aim of providing a fair and just platform, the recommendations brought about in the Public Consultation process will ensure that the shortcomings of MAP will stand eliminated and both, tax payers as well as the jurisdictions will have more faith in the working of the entire MAP process.
[1]Brown, J. and Shiers, R., 2016. BEPS Action 14: OECD detail on ‘MAP’ procedures. (1).
[2] Oecd.org. 2016. BEPS ACTION 14: MAKE DISPUTE RESOLUTION MECHANISMS MORE EFFECTIVE. [online] Available at: <https://www.oecd.org/ctp/dispute/discussion-draft-action-14-make-dispute-resolution-mechanisms-more-effective.pdf> [Accessed 25 March 2021].
[3]Un.org. 2020. Committee of Experts on International Cooperation in Tax Matters. [online] Available at: <https://www.un.org/development/desa/financing/sites/www.un.org.development.desa.financing/files/2020-07Revised%20CRP2%20Chapter%205%20%28MAP%20Arbitration%29%20adopted%2026%20June%202020%5B1%5D.pdf> [Accessed 22 March 2021].
[4] Brown, J. and Shiers, R., 2016. BEPS Action 14: OECD detail on ‘MAP’ procedures. (1).
[5] Oecd.org. 2021. BEPS Action 14: Making Dispute Resolution Mechanisms More Effective – 2020 Review. [online] Available at: <https://www.oecd.org/tax/beps/public-consultation-document-beps-action-14-2020-review-november-2020.pdf> [Accessed 25 March 2021].
[6] Id. at 2
[7] Id. at 2
[8] Id. at 7
[9] Id. at 8
[10]Id. at 9
[11] Id. at 9
[12] Id. at 11
[13] Id. at 13
[14] Id. at 13
[15] Id. at 14
[16] Id. at 15
by LFIAdmin | Apr 21, 2021 | Home
By Nazaqat Lal, Advocate & Solicitor, Bombay High Court
nazaqat_lal@hotmail.com | April 21, 2021
The question of the grant of probate by a testamentary court conferring title of a property to a person is a question interlinked with the jurisdiction of a testamentary court. This question was succinctly answered in the negative by the Bombay High Court in the case of Balan Alias Balendu Jayant Sawant v. I.K. Agencies Pvt. Ltd.[1],
“6. It is settled principle in law that the Testamentary Court is not required to go into the question of ownership or title to the property which forms the subject matter of bequest under the Will. The Testamentary Court is only required to see whether the deceased had the capacity to make the Will and whether the Will has been made in accordance with the provisions of law. Testamentary Court only considers whether the Will is the last testamentary instrument of the deceased, whether the deceased was in sound state of mind when he made the Will and whether the Will was made in accordance with, law that is to say whether it was properly executed and attested as per law. The Testamentary Court is not required to see whether the deceased was the owner of the property which he sought to bequeath under the Will. The decision of the Testamentary Court granting the probate does not confer any title to the property on the legatee if the deceased had none. Issue of title, if raised, is required to be decided by the Court of competent jurisdiction.”
As a legal practitioner, this question becomes important because it not only forms the framework within which a testamentary court exercises jurisdiction, but also, the framework within which a legal practitioner works. A legal practitioner is not required to investigate, ascertain or verify the title of the testator/testatrix to the properties mentioned in the Will before initiating proceedings for grant of probate.
Disputes of title, if any, relating to the property of the testator/testatrix may be raised by way of filing a separate civil suit. The outcome of such civil suit will not be affected by the pendency or final determination of probate proceedings. In a similar situation, the Bombay High Court [2] held as under –
“3. I understand the submission on behalf of the Respondent brother to be that there is some property to which the deceased did not have title. At the cost of repetition, this is not a question that can ever be decided by a Probate Court. If the brother believes that he has title to any property, he must adopt appropriate proceedings in a Civil Court of competent jurisdiction to establish that title. The grant of Probate will neither convey nor confer title to any property on any person. Therefore, the Respondent-brother is at liberty to adopt such proceedings as he is advised in regard to any particular property and all contentions in that behalf are kept open. That action or proceeding will remain unaffected by the grant of Probate or Letters of Administration with Will annexed.”
Grant of probate by the testamentary court simply establishes the genuineness and authenticity of a Will, grants administration to the estate of the testator/testatrix and enables the executor and legatee to establish their right as executor and/or legatee in a court of law. Grant of probate does not convey or confer title to any property to any person if the deceased testator/testatrix had none. The grant of Probate by a testamentary court does not confer title to property but merely enables administration of the estate of the deceased.
[1] Judgment dated 19th March 2010 in Notice of Motion No. 20 of 2010 in Testamentary Suit No. 40 of 2004 in Testamentary Petition No. 67 of 1998
[2] Rajkumar B Hemrajani v. Jyoti R. Hemrajani, Order dated 21st March, 2018 in Testamentary Petition No. 749 of 2017 with Testamentary Petition No. 785 of 2016 in Testamentary Suit No. 6 of 2018
by LFIAdmin | Mar 10, 2021 | Home
By PRAJJWAL SHARMA, Law Student, HPNLU, SHIMLA
prajjwalsharma590@gmail.com| March 10, 2021
What are the new social media regulations called?
The new social media regulation is called, “The Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021”.
What are these “Intermediaries”?
The term “intermediary” has been defined under the Information Technology Act, 2002 (“IT Act”) with respect to any particular electronic message and means any person who on behalf of another person receives, stores or transmits that message or provides any service with respect to that message.
Like vicarious liability, their arises a liability on the side of the intermediary if any illegal activity is observed by any party on the particular platform.
It can be referred as Intermediary liability- it means that the intermediary, a service that acts as ‘intermediate’ conduit for the transmission or publication of information, is held liable or legally responsible for everything its users do.
What changes are bought in by these rules?
(1) Intermediaries must identify the originator of any malicious content and pull it down within 36 hours of it being flagged. Flagging can be done through a court order or from a competent government agency after which the unlawful information has to be disabled.
(2) Platforms will be required to provide information including related to verification of identity, to lawfully authorized agencies within 72 hours.
(3) Streaming platforms have to classify content into five categories-
(i) U (Universal)
(ii) U/A (7+)
(iii) U/A (13+)
(iv) U/A (16+)
(v) A (Adult)
(4) Digital News Media Organisations can be directed to remove any content which falls under section 69A of the IT Act, 2000.
(5) Stand-alone digital media organisation need to follow the code of journalistic ethics, laid down by the Press Council of India, currently observed by print media and the cable and TV regulation act, which applies to television news.
(6) The intermediaries have to appoint a grievance redressal officer who will deal with complaints and also have to share the name and details of such an officer.
(7) Social Media Intermediaries have to appoint a chief compliance officer, nodal contact person, a resident grievance officer, all of whom should be resided in India.
What are the offences to be curbed under this regulation?
All the sections mentioned below are from the Information Technology Act, 2000
(1) Section 66A-This section provides the punishment for sending offensive messages through communication services etc.
“Any person who sends, by means of a computer resource or a communication device, –
(a) any information that is grossly offensive or has menacing character; or
(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device;
(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages,
Here, the terms “electronic mail” and “electronic mail message” is referred to texts, audios, videos received on a computer system.
(2) Section 67- It states the punishment for publishing or transmitting obscene material in electronic form. “Obscene”, here is defined as any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.
(3) Section 67A- It defines punishment for transmitting or publishing material containing sexually explicit act etc in electronic form.
(4) Section 67B- Imprisonment of five years or fine upto ten lakh rupees for publishing or transmitting of material depicting children in sexually explicit act etc. in electronic form. For the purpose of explanation of this section, “children” is defined as a person who has not completed 18 years of age.
(5) Section 69A- It defines the power to issue directions for blocking for public access of any information through any computer resource, where-
“The Central Government or any of its officers specially authorised by it in this behalf is satisfied that it is necessary or expedient so to do, in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above.”
What if the origin of the content is from outside the territory of India?
In the case where the initial origin of the content is from another another nation or outside the territorial jurisdiction of India. The intermediaries have to declare the identity of the user which was the first to forward it into the nation.
For example, an offensive post is originated from a European country. The individual to transmit the post from that country to India has to be held accountable for the same.
Does it violate the immunity provided to intermediaries in section 79 of IT Act?
The intermediaries are provided some immunity in the section 79 of the IT act. It gives exemption to the intermediaries in some certain cases.
(1) Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third-party information, data, or communication link made available or hosted by him.
(2) The provisions of sub-section (1) shall apply if–
(a) the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hosted; or
(b) the intermediary does not–
(i) initiate the transmission,
(ii) select the receiver of the transmission, and
(iii) select or modify the information contained in the transmission;
(c) the intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf.
(3) The provisions of sub-section (1) shall not apply if–
(a) the intermediary has conspired or abetted or aided or induced, whether by threats or promise or otherwise in the commission of the unlawful act;
(b) upon receiving actual knowledge, or on being notified by the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit the unlawful act, the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner.
The only point to note while talking about the debated collision of section 79 and the new rules is clause (b) of the sub-section 3 of the same. The highlighted text states that upon receiving actual knowledge or after being notified by the government authorities if the intermediary fails to disable the access to the controversial data, the exemption will not be provided to the intermediary.
If we look again at the new rules, it is just compulsory for the intermediaries to share the origin of the post which are against the public morality, interest as well as the one which is against sovereignty and integrity of the nation.
Does it curb the individual’s free speech?
As long as we are on the topic of individual’ freedom of speech being restraint with the new regulation being implemented, it can be said that there are meagre chances of that event to happen. Even before the implementation of this rule, section 66A, 67, 67B & 69A were in existence which put same level of vigilance on social media posts as they will do now.
Free speech though provided to the citizens is restrictive in nature. Freedom of speech is a form of liberty provided to the citizens of the land. One of the two types of liberty is- negative liberty, which states that liberty is absence of restraints.
Such a situation leads to social catastrophes. Thus, not restraining the freedom of speech to an extent is also dangerous to the integrity and sovereignty of the nation.
by LFIAdmin | Dec 8, 2020 | Home
By Admin, LegalFormatsIndia.com
Dec 8, 2020
This Article is only to highlight the general information and concept of a valid “WILL”.
“Will” is defined in Section 2 (b) of the Indian Succession Act, 1925 as “the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death”.
The maker of the Will is called the “Testator”; the persons appointed under the Will to administer the estate of the Testator are called the “Executor/s”; and the persons receiving benefit thereunder are called the “Beneficiaries”.
A Will takes effect not from its execution, but on the death of the Testator and therefore the draftsman has to consider not only the circumstances of the Testator at the time when the Will is prepared but also what they may possibly be at the time of his death.
As a general rule for a Will to be valid it must be written. The only exception provided under the law exempts members of the armed forces employed in an expedition or engaged in actual warfare and mariners at sea who are permitted to make an oral Will. Such a Will is known as a “Privileged Will”. Muslims are permitted by their personal law to make an oral Will that need not be in writing.
A Will is the desire/intention of the Testator and under the law, he has, full freedom to give his personal property to any one and whomsoever he wants. The Testator should also make a provision in the Will about the future properties which he/she may acquire during his/her lifetime after the date of the Will as also about his/her residual properties which may not have been specifically mentioned in the Will.
If a person dies leaving properties in that case it is possible that in the absence of a valid Will his/her legal heirs will fight for their share in his/her properties. Hence, it is very essential that to maintain peace in the family and to avoid future conflicts between legal heirs every person should make a Will. If a person dies without leaving a Will in that event his/her estates/properties shall devolve on his/her legal heirs as per applicable Succession Act.
FEATURES OF A VALID WILL:
1. Every person of sound mind, not being a minor, may dispose of his property by a Will. A married woman may dispose of by her Will any property which she could alienate by her own act during her life. Persons who are deaf or dumb or blind are not thereby incapacitated for making a Will if they are able to know what they do by it.
2. For the due execution of a Will:
(a) the Testator should sign or affix his mark (i.e., signature) to the Will. The Testator has to affix his/her signature or thumb impression (if illiterate) in such a manner that it should appear that it was intended thereby to give effect to the writing as a Will. It is suggested that to give proper authenticity to the document, the Testator should sign on all pages of the Will. If the Will is made in any other language which is normally not well understood by the Testator, in that event the witness attesting the Will and before its execution should explain the entire Will in the language understood by the Testator and endorse the fact of explanation on the Will before its attestation by him.
(b) the signature or the mark of the Testator should be so placed that it should appear that it was intended thereby to give effect to the writing as a “Will”.
(c) the execution of the Will should be attested by two or more witnesses.
(d) All the 3 persons namely person executing the Will and the two attesting witnesses must simultaneously and at one time sign and execute the Will in presence of all three of them. Each of the said witnesses must have seen the Testator signing or affixing his mark to the Will and each of them should attest his signature as having been affixed in their presence and they having put their signatures in presence of all three of them.
3. A Will can be made on any plain sheet and need not be on a stamp paper. Registration of a Will is not compulsory but is merely optional. Even though a Will may create or purport to transfer or bequeath an interest in an immovable property it does not require registration. The reason is that on the date of the execution of the Will it does not effect any transfer.
4. A Will only comes into effect only upon the demise of the Testator. Hence, until then, the Testator can revoke and cancel the same any number of times and prepare a new Will in its substitution. It is only the last Will in time that will prevail and be treated as valid. Registration of a will is not compulsory but is merely optional as though a Will may create an interest in an immovable property, however as on the date of the Will it does not effect any transfer.
5. The Attesting Witnesses to the Will preferably should be respectable persons having good reputation in the society. The Executors and the beneficiaries under the Will should be avoided as being witnesses to the Will. The idea behind this is to avoid an attesting witness, who is also a beneficiary under the terms of a Will, from deposing falsely regarding the manner and method of execution of the Will. It is also not necessary that a Doctor and/or an Advocate and/or Notary Public should attest the Will. If the family Doctor or a family lawyer witnesses the Will it would be a plus point. However, if the Testator opts to register the Will in that event the Registering Authority insists that the Doctor’s Certificate should be attached to the Will certifying that prior to execution of the Will he had physically examined the Testator and found him mentally fit to understand and execute the Will. This is to ensure that the Testator had sound disposing state of mind to execute the Will.
1. In the event that the Testator desires to make some change or modification and that a part of the Will needs to be altered, another document effecting such change can be prepared and attached to the Will to be executed in the same manner as that of the Will. This document is called a Codicil and shall form part of the Will. Both the Will and the Codicil are to be read together for the purpose of giving effect to the provisions contained therein after the death of the Testator.
2. If many changes are required to be effected in the main provisions of the Will, it is desirable to make another Will revoking the previous Will so that it becomes easy to follow the provisions contained in the Second Will instead of looking into two documents viz. Will and Codicil and the difficulty in co-relating both such documents can be avoided.
HOLOGRAPHIC WILLS:
A holographic will is a will which is wholly handwritten by the Testator himself in his own handwriting. Holographic Wills are valid in India. The primary requirement that a Holographic Will must satisfy is that it needs to be expressly in the nature and form of a Will, bequeathing the estate of the Testator and should meet with other formal requirements of a valid Will. The Will must designate itself to be a testamentary document expressly stating on the first page the same to be the “last will and testament of the Testator”. Even in respect of a Holographic Will, quite contrary to the popular belief that Holographic Wills being handwritten by the Testator himself, do not require two attesting witnesses, there is no exemption from the requirement of two attesting witnesses which is a must.
It is difficult to challenge the validity of a properly executed Will before a Court of Law. However, the Will can be challenged before a Court of Law mainly on the following amongst various other grounds available in law, namely: –
(a) The Will is not executed by the Testator. His signature is forged and/or fabricated.
(b) The special requirement of attestation by two witnesses are not met with.
(c) The Will is executed under undue influence, fraud and coercion. It is held by our courts that “it is open to a person to plead his case before the testator and to persuade him to make a disposition in his favour, and if the testator retains his mental capacity, and there is no element of fraud or coercion, the Will cannot be attacked or challenged on the ground of undue influence.”
(d) The Testator had no sound disposing state of mind to execute the Will.
(e) The circumstances under which the Will is executed are suspicious. The suspicious circumstances may be as to the genuineness of the signature of the Testator, the condition of the Testator’s mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances or there might be other indication in the Will to show that the Testator’s mind was not free.
(f) That the Will is not the last Will of the deceased and that there is a subsequent valid Will.
The burden to prove the aforementioned allegations is on the person making the same.
by LFIAdmin | Dec 8, 2020 | Home
By Ramesh Gajria, Advocate and Solicitor, Gajria and Co.,
rameshg@gmail.com | Dec 8, 2020
A major part of growing your business is developing a strong brand and, thereafter, protecting it.
What is a Mark?:
• The Trade Marks Act, 1999 defines a “mark” to includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof.
• “Trade mark” means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours;
Benefits:
There are several benefits to trademarking.
• The main purpose of a trademark is that it distinguishes the goods/services of one person from those of another.
• It builds customer recognition and brand loyalty.
• It can become a valuable asset over the years, if proper care is taken of its use and protection.
• It provides the purchaser an indication of the quality of the goods/services that you provide.
• A trade mark can last forever if it is renewed regularly from time to time.
Selecting a Trade Mark:
• There are various categories of trade marks with varying levels of strengths and distinctiveness.
FANCY:
• These are the marks which have no meaning and are not dictionary words eg. KODAK, BATA or EXXON. These are considered to be strong and highly distinctive of all marks.
ARBITARY:
• These are dictionary or known words but have no connection with the goods/services. Eg. APPLE for Computers, MANGO for readymade garments.
SUGGESTIVE:
• These suggest a meaning or relationship with the goods/services but do not describe them. Eg. AIRBUS or NETFLIX.
DESCRIPTIVE:
• These marks are very weak as they describe the goods/services or its characteristics and it may not be possible to enforce such marks. Descriptive marks, however, may acquire distinctiveness and secondary meaning by long use. Eg. SHOELAND for a shoe shop.
LAUDATORY:
• Are words that express praise or commendation. Marks like BEST, SUPER, A-1 are laudatory and are considered to be descriptive.
GENERIC:
• A generic term is a commonly used term that describes the product or service. These marks are the weakest and can never acquire any distinctiveness. Eg. Salty for salted biscuits.
• The Trade Marks Act, 1999 also lists out trade marks that cannot be registered. Viz. – marks that are devoid of any distinctive character – marks which designate the kind, quality, quantity, intended purpose, value, geographic origin of the goods or services – marks that have become customary in the current language or in the bonafide or established practice of the trade – marks containing scandalous matter – marks which will deceive the public – marks that will hurt public sentiments – marks prohibited under the Emblems and Names Act – the shape of goods which results from the nature of the goods themselves or which is necessary to obtain a technical result or where the shape gives substantial value to the goods.
• A mark will also not be allowed to be registered if it is:
identical with another mark already on the register for similar goods
similar to another mark already on the register for identical goods and there is likelihood of confusion
identical with or similar to a mark already on the register and the goods are not similar but the earlier mark is a well known mark and the use of the latter without due course will take unfair advantage of the well known mark or is detrimental to the distinctive character or repute of the well known mark.
The trademarking process
• The first step is to ascertain under which class the goods/services can be categorised. There are 45 different classes out of which 11 classes i.e. classes 35 to 45 are service classes. This can be ascertained from the link provided on the website of the Trade Mark Registry.
• The next step is to take a search of the TM records from the link also provided on the TM Registry. However, this may not be sufficient and one must also conduct an independent search on the web to ascertain whether any other person is using the same or similar trade mark.
• Once satisfied that the mark does not offend any existing mark, one can start the process for filing the trade mark application.
• Form TM-A which is the form of application for registration of the Trade Mark has to be filled up and filed before the relevant Trade Mark Registry along with payment of the requisite fees as per the Schedule. Currently individual applicants pay 50% of the fees paid by partnerships, LLP’s and Companies. There is also a rebate for MSME’s. The Application is to be filed in the appropriate office of the Trade Mark Registry having jurisdiction. Presently the TM Registry is situate at N. Delhi, Mumbai, Calcutta, Chennai and Ahmedabad.
• Once filed, the application is examined by an Examiner who issues his Examination Report setting out his objections, if any. A reply is to be filed within a period of 1 month. If the Registrar is not satisfied with the compliance, a show cause hearing is fixed. After the hearing, the application is either accepted or rejected or may be withdrawn. If it is accepted, the mark is advertised in the Trade Mark Journal which is published every 15 days and is available on the website of the Registry. After the mark is advertised, if the mark is unopposed within 4 months, it proceeds for registration. If it is opposed, then parties have to file their respective Counter Statements and Affidavits of Evidence. Once the pleading are complete the Opposition is fixed for hearing. If the mark is not opposed, it proceeds for registration and Registrar issues the Registration in due course.
Protection and enforcement of Trade Mark Rights
• Once registered a trade mark may become generic over the years because of various reasons and the owner fails to take steps to prevent it e.g. ESCALATOR. “The loss of the brand name was partly the company’s own fault — it was ruled that Otis had used the term “escalator” generically in its own advertising.”
If the mark is used as a verb, there is a risk of it becoming generic. If a trade mark is being used in a generic manner e.g. XEROX (instead of Photocopy), the owner must take immediate steps to correct the same and educate the consumer. Non-enforcement of trade mark rights may also lead to a mushrooming effect where several persons copy the mark and the mark ultimately becomes common to the trade. Generic use presents an inherent risk to effective enforcement of trademark rights.
