by LFIAdmin | May 20, 2021 | Uncategorized
By Milisha K. Shah, B.Com, Final CA Student,
milisha82@gmail.com | May 20, 2021
Exemptions under Income from Capital Gains under the Income Tax Act, 1961.
The following exemptions available under the head of income “Income from Capital Gains” can be used for the purpose of Tax Planning, well within the scope of the Act and without any misuse of the provisions of the Income Tax Act, 1961: –
1. Sec. 54: Exemption for Residential House Property.
(a) Eligible Assessee: Individual/Hindu Undivided Family (HUF) only.
(b) Asset to be transferred: Residential House Property (should be a Long Term Capital Gain (LTCG).
(c) Asset to be acquired: One Residential House Property in India. If the LTCG is up to Rs. 2 Crore, two Residential House Properties can be acquired.
(d) Time Limit: The Residential House Property must be purchased within 1 year before or within 2 years after the date of transfer, or constructed within 3 years after the date of transfer.
(e) Capital Gain Account Scheme (CGAS)/Deposit Scheme: The Assessee (Individual/HUF) should either acquire house property or deposit desired amount in CGAS up to the due date of filing the return. The amount deposited should be utilized for the purpose of residential House Property only. If the deposited amount is misused, then the exemption claimed earlier shall be withdrawn.
(f) Amount of Exemption: Long Term Capital Gain; or Cost of new assets/Deposit Amount, whichever is lower.
(g) Lock-in-period: The new residential house property should not be transferred within 3 years from the date of its acquisition. If it is transferred, the exemption claimed earlier shall be withdrawn and it has to be reduced from the Cost of Acquisition (COA) of the new house property, i.e. the reduced cost system is followed u/s. 54 of the Income Tax Act, 1961.
2. Sec. 54B: Exemption for Urban Agricultural Land:
(a) Eligible Assessee: Individual/HUF only.
(b) Asset to be transferred: Urban Agricultural Land which was used by the Assessee or his/her parents for a period of 2 years immediately before the date of transfer took place (can be Short Term Capital Gain (STCG) or LTCG).
(c) Asset to be acquired: Urban/Rural Agricultural Land.
(d) Time Limit: The agricultural land should be purchased within 2 years after the date of transfer.
(e) Capital Gain Account Scheme (CGAS)/Deposit Scheme: The Assessee (Individual/HUF) should either acquire agricultural land or deposit desired amount in CGAS upto the due date of return filing. The amount deposited should be utilized for the purpose of an urban/rural agricultural land only. If the deposited amount is misutilized, the exemption claimed earlier shall be withdrawn.
(f) Lock-in-period: The urban/rural agricultural land should not be transferred within 3 years from the date of its acquisition. If it is transferred, the exemption claimed earlier shall be withdrawn and it has to be reduced from the Cost of Acquisition (COA) of the new house property, i.e. the reduced cost system is followed u/s. 54 of the Income Tax Act, 1961.
(g) Amount of Exemption: Lower of the following: LTCG/STCG; or Cost of new assets/Deposit Amount
3. Sec. 54D: Exemption for Industrial Land and Building:
(a) Eligible Assessee: Any person under the Income Tax Act.
(b) Asset to be transferred: Compulsory acquisition of land or building which was used by the Assessee in the business of industrial undertaking for a period of 2 years immediately prior to the date of transfer (STCG/LTCG).
(c) Asset to be acquired: New land or building for industrial undertaking.
(d) Time Limit: New industrial land or building should be acquired/constructed within 3 years from the receipt of compensation due to the compulsory acquisition.
(e) Capital Gain Account Scheme (CGAS)/Deposit Scheme: The Assessee (Individual/HUF) should either acquire new asset or deposit desired amount in CGAS upto the due date of return filing. The amount deposited should be utilized for the purpose of industrial land or building only. If the deposited amount is misutilized, the exemption claimed earlier shall be withdrawn.
(f) Amount of Exemption: Lower of the following: STCG/LTCG; or Cost of New Assets/Deposit Amount
(g) Lock-in-period: The industrial land or building should not be transferred within 3 years from the date of its acquisition. If it is transferred, the exemption claimed earlier shall be withdrawn and it has to be reduced from the Cost of Acquisition (COA) of the new house property, i.e. the reduced cost system is followed u/s. 54 of the Income Tax Act, 1961.
4. Sec. 54EC: Exemption for immovable property:
(a) Eligible Assessee: Any person.
(b) Asset to be transferred: Land or Building or both (LTCG only).
(c) Asset to be acquired: Bonds redeemable after 5 years, issued by:
(i) National Highway Authority of India (NHAI); or
(ii) Rural Electrification Corporation Limited (RECL); or
(iii) Power Finance Corporation Limited (PFCL); or
(iv) Indian Railway Finance Corporation Limited (IRFCL).
(d) Time Limit: The above mentioned bonds should be acquired within 6 months from the date of transfer.
(e) CGAS: Not Applicable
(f) Amount of Exemption: Lower of the following: LTCG; or Cost of New Assets
Maximum exemption limit is Rs.50,00,000 for bonds acquired within prescribed time limit.
(g) Lock-in-period: New Assets should not be transferred/converted into money within 5 years from the date of its acquisition. If it is transferred/converted into money within 5 years, then the exemption claimed earlier shall be withdrawn and treated as LTCG in the year in which bonds are transferred/converted into money i.e. full cost system is followed u/s. 54 EC of Income Tax Act, 1961.
5. Sec. 54F: Exemption for Any Long Term Capital Asset (LTCA) (other than residential house property)
(a) Eligible Assessee: Individual/HUF
(b) Asset to be transferred: any LTCA (except residential house property)
(c) Asset to be acquired: One Residential House Property in India.
(d) Time Limit: One residential house property should be purchased within 1 year before or 2 years after the date of transfer or constructed within 3 years after the date of transfer.
(e) Capital Gain Account Scheme (CGAS)/Deposit Scheme: The Assessee (Individual/HUF) should either acquire house property or deposit desired amount in CGAS up to the due date of return filing. The amount deposited should be utilized for the purpose of residential House Property only. If the deposited amount is misutilized, the exemption claimed earlier shall be withdrawn.
(f) Amount of Exemption: (i) if net consideration is fully utilized then capital gain is fully exempt; (ii) if net consideration is partly utilized then capital gain is partly exempt as per the following formula:-
(g) Lock-in-period: New Asset should not be transferred within 3 years from the date of purchase/construction. If it is transferred then exemption claimed earlier shall be withdrawn and treated as LTCG in the year in which new house property is transferred.
Additional conditions to be fulfilled for Sec. 54F:
1. On the date of transfer of LTCA, assesse should not own more than one residential house property; and
2. Assessee should not purchase another house within 2 years or construct within 3 years after the date of transfer.
If the above conditions are not satisfied then exempt capital gain shall be treated as LTCG in the year in which such violation is done.
6. Sec. 54G: Exemption for Land/Building/Plant/Machinery while industry transfer from Urban Area to Rural Area:
(a) Eligible Assessee: Any person.
(b) Transferred Asset: Land/Building/Plant/Machinery (except furniture) in urban area of an industrial undertaking (LTCG and STCG).
(c) Asset to be acquired: New Land/Building/Plant/Machinery (except furniture) in rural area and shifting expenses.
(d) Time Limit: New asset should be acquired within 1 year before the date of transfer or 3 years after the date of transfer.
(e) Capital Gain Account Scheme (CGAS)/Deposit Scheme: The Assessee should acquire the above mentioned assets only or deposit such amount up to the due date of return filing. If it is misutilized, the exemption claimed earlier shall be withdrawn.
(f) Amount of Exemption: Lower of the following: LTCG/STCG; or Cost of new assets/Deposit Amount
(g) Lock-in-period: The new assets should not be transferred within 3 years from the date of its acquisition. If it is transferred, the exemption claimed earlier shall be withdrawn and it has to be reduced from the Cost of Acquisition (COA) of the new house property, i.e. the reduced cost system is followed u/s. 54 of the Income Tax Act, 1961.
7. Sec. 54GA: Exemption for Land/Building/Plant/Machinery while industry transfer from Urban Area to Special Economic Zone (SEZ).
All the points are the same as Sec. 54G (above). The only difference between Sec. 54 G and sec. 54 GA. u/s. 54GA, U/s. 54 G, Plant and machinery acquired in rural area should be new.
U/s. 54GA, Plant and machinery acquired in SEZ may be new or second hand.
8. Sec. 54GB: Exemption for Residential Property or Plot of Land:
(a) Eligible Assessee: Individual/HUF
(b) Transferred Asset: Residential House Property/Residential Plot of Land (LTCG).
(c) Asset to be acquired: Assessee should acquire equity shares of a “new eligible startup company” {defined u/s. 54GB(6)} upto the due date of return filing and company should acquire new plant and machinery {defined u/s. 54GB (6)(d)} within 1 year from the date of subscription of shares.
(d) CGAS:
(i) For Assessee: Not Applicable;
(ii) For eligible startup company: Company should acquire new plant and machinery or deposit desired amount in CGAS upto the due date of return filing of Assesse.
(e) Amount of Exemption:
(i) If net consideration is fully utilized, the capital gain is fully exempt.
(ii) If net consideration is partly utilized, the capital gain is partly exempt as per the following formula.
(f) Lock-in-period: If the equity shares or new plant and machinery are transferred within 5 years from the date of subscription/acquisition, then exempt capital gains taxable in the previous year of transfer of equity share by Assessee or new plant and machinery by company in the hands of eligible assesse as LTCG.
In case of a technology-driven start-up, the lock-in-period for Computer and Computer Software is 3 years and not 5 years.
The idea behind allowing these deductions is that the tax on capital gains tends to erode a substantial amount from the assessee’s income. However, an assessee has the right to plan its affairs in such a manner that may result in as minimum tax as possible. Hence, these deductions in respect of the investments made into a new capital asset, if strategically done, reduces the tax liability of the Assessee.
by LFIAdmin | May 11, 2021 | Uncategorized
By Amrutha Bawgi and co-authored by Thanmai Sree, Presidency University, Bangalore
amruthabawgi@gmail.com, thatha.thanmai@gmail.com| May 11, 2021
ABSTRACT
It is a known fact that India is a country rich in culture and history. We also know that India has been embracing western culture in recent years, whether in science, technology, education, politics, or even marriage. In India, the term “live-in relationship” has become something of a trend. Two people who live together without being married and who do not share the same obligations as a married couple. However, many people regard this as a taboo that offends Indian culture. This article discusses whether such relationships are against Indian culture and whether they are legal.
Introduction
India is a country with different religions and cultures. Different part of the country has a different culture. Indians are very conservative they abide by the rules of their Gods which again differ based on religion. In India especially Hindus treat marriage as sacramental bonding between two people. The concept of husband, wife and family is still given utmost importance in many communities of the country. Cohabitation had been a taboo since British rule.
These days younger generations are following this western culture called live-in relationship which means basically a relationship in which a man and a woman mutually decide to live together under one roof without getting married to each other. This is a common concept I western culture which is being adopted by Indians these days.
Younger generations or few set of people in the country have a really good opinion on these relationships. They believe that live relationships help them to check their compatibility before marriage. To test whether they really can stay together or whether they can adjust to their partner’s requirement. Live-in-relationship is a de facto union in which couple shares common bedroom without solemnizing marriage. It is to determine whether they could live with each other for their entire lives. And these people believe is that it does not involve families as to the way related to families in marriage. If the couple decide not to live together anymore then they mutually break up without really involving the families.
But again, there is large percent of population in the country which believes that live-in relationships are against Indian culture. Because in India especially, the Hindu religion prefers ‘One man, one wife’ as the most sacred form of matrimony. Indian believe that people should use traditional way of knowing each other that is arrange marriage, dating, texting, meeting up frequently to get to each other. But not to the cross the line drawn by the society in terms of marriage and sex [1]. Marriage is sacred bonding between a couple who have taken the marriage vows to be with each other no matter whatever happens and seek the blessings of elders. Because in the case of live-in relationship if the girl gets pregnant and they decide to break up it will lead to humiliation and troubles to the girl.
Generally, in India men do not want to marry a girl who is pregnant before marriage in most cases this will lead to abortion which is again illegal. Indians try to pretend like Western people but 90% of the men are obsessed with “virginity”, they fail to think beyond that. They will easily tag a non-virgin girl as bad, because she has crossed her limit to go and live-in with a guy who wasn’t her husband. Marriage is socially and morally binding on couples so they think twice before filing divorce, but live-in relationships may or may not work.
Difference between live-in relationship and marriage
The main difference between live-in relationship and marriage is the matrimony or the wedlock, a recognized action in which both parties create a union or sign contracts which establishes certain rights and obligations. Whereas live-in relationship nature of marriage where both partners enjoy individual freedom and live in a shared household without being married to each other [2]. It involves continuous cohabitation between the parties without any responsibilities or obligations towards one another. There is no law tying them together and consequently either of the partners can walk out of the relationship, as and when, they will do so [3].
Legality of live-in relationship in India
Indian judiciary have never clearly showed whether these relationships are legal or not but neither did it deny. It focused giving justice to the parties. It decides cases depending on the circumstances and social morals.
But in these recent years there have been few landmark judgments by the judiciary which deals with live-in relationship and in some circumstances considers it as a legal relationship. In Payal Katara v. Superintendent Nari Niketan Kandri Vihar Agra and Others [4] the high court of Allahabad ruled out that a lady of about 21 years of age being a major, has right to go anywhere and that anyone, man and woman even without getting married can live together if they wish. In Patel and others case the apex court observed that live- in –relationship between two adults without formal marriage cannot be construed as an offence.
Also, the judiciary recognized the child out of these relationships legitimate if they are together for a very long time. This was decided in the case of In Radhika v. State of M.P. [5] the apex court observed that a man and woman are involved in live-in-relationship for a long period, they will be treated as a married couple and their child would be called legitimate [6].
Maintenance of Women
The Right of maintenance is granted in all the personal laws i.e., Hindu law, Muslim Law, Christianity, or Zoroastrianism. However, these rights are only applicable for a married woman i.e., the wife. None of these regions consider a live-in relationship as a marriage. Instead, if a woman lives with a man without marring that women is considered as an unchaste. But this is not the situation of the judicial system, the judicial system has made a remedy available for woman in such situations under Section 125 of the Crpc [7]. In the beginning a woman who was in a live-in relationship was not considered as a wife and was not allowed to use this provision, later on, Malimath committee report and the 8th Law commission recommended to include woman are in a live-in relationship within the purview of Section 125. In Abhijit Bhikaseth Auti v. State of Maharashtra and Others [8] the supreme court accepted this principle and asserted that marriage in a strict form need not be shown to claim maintenance under section 125 of the CrPC. Women can also seek for additional maintenance under any other law as per section 20(1) of the Protection of Women from Domestic Violence Act [9].
Maintenance of Children
The maintenance of the child born from the parents who are in a live-in relationship is also considered equally as of how a child is born out of martial relations according to the judiciary. According to Hindu law the father has to maintain the child, whereas according to Muslim law the father has no such obligation. But section 125 of the CrPC provides a legal right to children to claim for maintenance even if the personal laws do not consider them as a legitimate child.
Section 21 of Hindu Adoption Act, 1956 says that a son whether legitimate or illegitimate till the time he is minor and so long the daughter is unmarried she shall be entitled to maintenance by his/her father or from his estate of his/her deceased father. And if there is any denial of maintenance rights to children who are born out of live-in relationship it could be challenged in the court for their rights under Article 21 [10]. This decision was upheld in the Kerala High court.
In case of the woman and man separating from a live-in relation and they have a child, then the custody of the child will be decided by the court on the bases of the facts and circumstances. This was decided in the case of Gita Hariharan v. RBI [11].
Domestic Violence Act, 2005
The domestic violence Act was enforced in 2005 as an attempt to protect women from physical, mental, verbal, and economic abuse in marital relationships. In the beginning this act was only applied to the married couple according to Section 2(f) of the DV Act. Later on, the supreme court noticed the fact that the definition also includes that this not only applies to married couple but also to a ‘relationship in the nature of marriage’.
According to Section 2(f) of the Act the term “domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family [12]. Many courts have tried to interpret the term ‘a relationship in the nature of marriage’. This issue was discussed in length in the case of Indra Sharma v. VK Sharma [13]. In this case the supreme court defined the term marriage and explained how a man and woman is recognised as husband and wife. It further laid down 8 guidelines that are to be followed to decide whether the relationship of the women and man can consider as a relationship in the nature of marriage. This term has been mentioned and explained in many other cases after these 8 guidelines were laid down. Therefore, considering all this even the Supreme Court in a couple of cases has allowed live-in relationships to be covered within the ambit of the law specified.
Conclusion
The Indian culture does not like pre-marital sex; therefore the legislature also cannot promote it, though at times the couple may express their opinions intensively personal and go against it. Thus, the judiciary has to ponder over such controversies and issues and bring a proper rule and amend the act in such a way that the women and the child born out of live-in relationship are protected and are given equal rights like a marital relationship.
[1] https://www.careerride.com/view/live-in-relationships-are-against-indian-culture-9084.aspx
[2] https://www.legallyindia.com/views/blogger/abhay-nevagi-associates?format=feed
[3] https://www.legallyindia.com/views/entry/right-of-maintenance-to-women-in-live-in-relationships
[4] AIR 2001 ALL 254
[5] ILR [2008] MP 58
[6] http://www.legalserviceindia.com/legal/article-2159-present-scenario-of-live-in-relationship-and-its-judicial-findings-an-analysis.html
[7] CrPC 1973
[8] Crl. W.P. No. 2218 of 2017
[9] DV Act, 2005
[10] Indian Constitution Of India
[11] AIR 1999, 2 SCC 228)
[12] Section 2(f), The Protection of women from Domestic Violence Act, 2005.
[13] (2013) 15 SCC 755
Bibliography
• http://www.legalserviceindia.com/legal/article-2159-present-scenario-of-live-in-relationship-and-its-judicial-findings-an-analysis.html
• https://www.legallyindia.com/views/blogger/abhay-nevagi-associates?format=feed
• https://www.legallyindia.com/views/entry/right-of-maintenance-to-women-in-live-in-relationships
• https://www.careerride.com/view/live-in-relationships-are-against-indian-culture-9084.aspx
• http:// Live-in-Relationships: The Indian Perspective, India Law Journal
• Ms. Githa Hariharan & Anr vs Reserve Bank of India & Anr on 17 February 1999 (indiankanoon.org)
• (thebetterindia.com)
• Anuja Agarwal, “Law and Live-in Relationships in India”, Economic & Political Weekly
by LFIAdmin | May 5, 2021 | Uncategorized
By Deobrat.S.Gaur, Student, University Of Petroleum And Energy Studies, Course-Bcom LLB(Hons) Specialization in Taxation Laws
deobrat11gaur@gmail.com | May, 5 2021
The tax incidence and imposition of tax is dependent upon the residential status of a person. Therefore, the identification and classification of the residence of a person is one of the first steps to be carried out in order to proceed with the assessing of income of a person. The rules for determining the residential status of a person is governed by Section 6 of Income-tax Act.
For the purpose of determination of the place of residence of the companies the concept of POEM is been introduced in Finance Bill 2015 which amended the Section 6 of the existing Income Tax Act, 1961, replacing the words stated there control and management by Place of Effective Management.
The condition for determination of residential status of the company will be on:
1) If A the company is Indian company – then it is presumed to be Resident of India
2)The foreign company- then the test of POEM is applied.
Poem is universally recognised test for the purpose of determination of the residential status of the company, which is either incorporated in a foreign Jurisdiction, as per the explanation facilitated in section 6(3) POEM mean, any place where key management and commercial decision that are of quitessential importance taken or decisions which are necessary for the conduction of a business.
Hence, foreign company is considered resident in India if the place where key management and commercial decision that are of quitessential importance taken or decisions which are necessary for the conduction of a business are taken in India. To bring to tax those companies that are incorporated outside India but controlled from India, the condition of POEM has been introduced.
CBDT issued guidelines for determining POEM by way of Circular No 6 of 2017 dated jan 23 2017 states that:-
The foreign company whose turnover is 50 crore or more , its POEM will have to be seen.
For the purpose of determination of POEM, we need to see:
A) ABOI .i.e the test which check whether the company is engaged in an active business outside India or not , and if it satisfied, then POEM is outside India
And
B) Majority of Board meeting Held Outside India:
The ABOI test lays down that, for the purpose of sound determination active business outside India following is to be analyzed:
a) The company’s passive Income is not more than 50% of its total income
b) The 50 % or more of the aggregate assets of the company are situated outside India.
c) The 50 % or more of the total no of Employees employed in the company are situated outside India , or 50% or more are not the resident in India
d) The aggregate or the total pay roll expenses of those employees are less than 50%
Passive Income would mean income generated from the Transaction where Both the sales and Purchase of good is conducted from and enterprise to its related enterprises
Income from Interest, Dividend, Rental Income , Income from Capital Gains etc..
If Aboi i.e all the 4 test laid down and Majority of Board meeting Held outside India, if both are outside India, then the company is outside India, hence a Non Resident.
CASES IN WHICH ABOI is not situated Outside India , – in such scenario The POEM will be determined after analyzing the following.
• To determine the person who is actually responsible in making the key managerial or the commercial decision
• And identification of the place where the decision are taken meaning of the term “Business Connection”.
Section 9 talks about income which is deemed to accrue or Arise in India
A relationship of business of Non- resident with Indian Territory which yields profits or gains to NR, then such income will be deemed to accrue or Arise in India. The connection between the business of NR and India is known as business connection.
Non Resident will have business connection in India if
a) If an agent or any person habitually conclude contract on behalf of Non Resident, or
b) If the agent or the person plays principal role in concluding contract on behalf of Non Resident, or.
c) If the agent or the person maintains stocks and delivers in India on instructions of Non Resident ,or
d) The agent or person habitually secures orders mainly and fully for the Non Resident,
Income from such business connection to the NR will be income deemed to accrue or arise in India, even if it arise outside, Provided the Agent should have dependent status and not the independent status
E.g. if agent has independent status where he is securing order for many Non-Resident and having independent status, then there will be no business connection, hence only if the agent secures orders mainly and fully for the Non Resident,
Explanation 2A attached to section 9(1) states applicable from 1st march 2019, significant economic presence of a particular NR in India then , the NR will have business connection in India, nature of transaction should be such that transaction in respect or good service which includes download of data etc. in respect.
The cases in which the business connection of NR will not be considered to have business connection in India
a) If the agent /person is just purchasing in India and exporting, neither selling, nor concluding any contract in India
b) If the agent or person is just collecting news and views in India , for transmission outside India
c) If the person is NR and also not a citizen he comes to India to shoot cinematographic flim or movie in India
In case of partnership, all the partners, should be Non Resident and not a citizen
In case of company all the shareholders Non Resident and not a citizen
d) If the foreign company is mining diamond outside India, and just displaying raw uncut diamond in India , in the specific zones notified by Indian government in India.
by LFIAdmin | Jun 8, 2021 | Uncategorized
By Manju Hirani,
Hirani Canadian Immigration and Consultancy Solutions Inc,
Canada
hiraniimmigration@hotmail.com, Ph:001(778) 8962567| June 08, 2021
The US News & World Report in its “2021 Best Countries Report” recently announced Canada as the best country in the world.
Canada has a very friendly attitude towards immigrants and it is one of the most popular choices for immigrants from across the world.
Canada is a safe country to live in and raise a family. Canada offers the best combination of urban life with a laid-back rural lifestyle. It is a country where you can get both professional growth as well as work – life balance. Canada offers better quality of life with more earning and more savings.
The underlying principle of Canadian Immigration Law is the belief that skilled workers are the major contributory factor for taking Canada to the path of prosperity. Foreigners with work permits and international students can easily apply for permanent residency after meeting the minimum eligibility requirements.
Skilled workers who can contribute to the Canadian economy are welcomed with open arms. The following are the requirements for immigration of skilled workers:
• Good health
• No criminal history
• Bachelor’s degree in any stream
• Minimum one years’ continuous work experience (more experience will get you extra points)
• Ability to speak, read and write English or French or both languages (language test is mandatory)
• A score of 67 points in Canada’s point based immigration selection system
• One can apply for Permanent Residence (PR) in Canada from India( with skilled work experience of minimum one year)
• If married, spouse and children under 21 years of age can also migrate along with the principal applicant
• Spouse gets right to work
• After three years, can apply for Canadian citizenship
Canada offers plenty of opportunities for those looking to migrate to the country. One can work in Canada as a Skilled Worker under the Temporary Foreign Worker Program and apply for permanent residency through the Express Entry Programs: Federal Skilled Worker, Federal Skilled Trades or Canadian Experience Class.
One can study in Canada and apply for permanent residency through the Canadian Experience Class after meeting the minimum eligibility requirements.
Another way is to immigrate through the Provincial Nominee Programs. Our provinces offer several paths for qualified immigrants looking to make Canada their home.
When you become a permanent resident of Canada, you are entitled to the same rights and privileges as a Canadian citizen except for the right to vote and the right to apply for a Canadian passport , are entitled to equal treatment and equal protection.
There are excellent schemes such as Old Age Security, Guaranteed Income Supplement, and Canada Pension Plan – all three of these programs are designed to provide financial support to workers after they reach retirement age – currently age 65. To be eligible, you have to meet specific residency requirements and to have contributed to the system by paying taxes in Canada.
Medical expenses are covered through the Canadian health care program on payment of nominal amount and in certain cases no amount is payable. These expenses include visits to emergency room, immunizations, yearly exams, etc.
All children under 18 are entitled to a free education in the Canadian Public School System, which provides world class education.
In Canada, working parents are given time off when a new baby is born or adopted. Parents can opt to take leave up to 12 months and split the leave between parents.
Canada is the perfect destination for you and your family to move to. The government of Canada believes that emigration to Canada is a major driving factor of economic growth; it welcomes the diverse traditions, rituals, and customs that immigrants bring into the cultural fabric of this evolving nation.
by LFIAdmin | May 1, 2021 | Uncategorized
By Jineshi Thakar, Advocate
jineshi1010@gmail.com | May 1, 2021
Over the years, whenever laws relating to arbitration have been discussed upon, legal concept of seat of arbitral proceedings and territorial jurisdiction of courts thereto has always been debated at length. The courts have exhaustively scrutinized the concept through its several judgments; In yet another case before the Hon’ble Apex Court, it had to juxtapose the aforesaid legal concepts in the matter of M/S. Inox Renewables Ltd. v. Jayesh Electricals Ltd.
In order to resolve the dispute amongst themselves, the Parties had mutually agreed to change the place of arbitration from Jaipur to Ahmedabad, irrespective of the specific clause as to the same, which was recorded by the Arbitrator in the award. Pursuant thereto, the Arbitrator passed an award in favour of Jayesh Electricals Ltd. Thereafter, M/S. Inox Renewables Ltd. filed a petition under Section 34 of the Arbitration and Conciliation Act, 1996 before the Commercial Court at Ahmedabad and the judgment was passed in favour of Jayesh Electricals Ltd. M/S. Inox Renewables Ltd, thereafter filed a Special Civil Application bearing No. 9536 of 2019, before the Hon’ble Gujarat High Court, against the order of the Commercial Court, Ahmedabad which was dismissed, holding that the courts at Rajasthan would have jurisdiction to the petition under Section 34. Subsequent to the said judgment, M/S. Inox Renewables Ltd filed an appeal before the Hon’ble Supreme Court.
The Supreme Court whilst determining the issue pertaining to the jurisdiction was posed with the following propositions on behalf of Jayesh Electricals Ltd:-
(i) The place of arbitration cannot be changed without a written agreement between the parties;
(ii) The shift in the place of arbitration by mutual consent does not amount to the change in the seat of arbitration and that the same is done under Section 20(3) of The Arbitration and Conciliation Act, 1996; and
(iii) The arbitration clause shall be read independently from that of the clause pertaining to the jurisdiction of the court before which further remedies may be sought.
The Supreme Court disproved the above propositions whilst relying on the judgment of BSG SGS SOMA JV v. NHPC Limited [1] as well as Indus Mobile Distribution Private Limited v. Datawind Innovations Private Limited [3]. The Court observed that since the change in the place of arbitration was recorded with the consent of both the parties and the same remained undisputed by them, a separate agreement isn’t required to record the same. Secondly, the Court opined that the change in the venue of arbitration is by mutual consent and therefore it is as per Section 20(1) of the Arbitration and Conciliation Act, 1996 and not as per Section 20(3) and the same amounts to the seat of arbitration. The court relied on the judgment of BSG SGS SOMA JV [3] which read as under:-
“53. In Indus Mobile Distribution (P) Ltd., after clearing the air on the meaning of Section 20 of the Arbitration Act, 1996, the Court in para 19 (which has already been set out hereinabove) made it clear that the moment a seat is designated by agreement between the parties, it is akin to an exclusive jurisdiction clause, which would then vest the courts at the “seat” with exclusive jurisdiction for purposes of regulating arbitral proceedings arising out of the agreement between the parties.”
Lastly, the Court observed that the entire arbitration clause has to be read as a whole alongwith the clause pertaining to the jurisdiction of the court and further noted that, “the moment the seat is chosen as Ahmedabad, it is akin to an exclusive jurisdiction clause, thereby vesting the courts at Ahmedabad with exclusive jurisdiction to deal with the arbitration.”
The Court through this judgment highlighted distinctly that the venue of arbitral proceeding mutually agreed by the parties amounts to the seat of arbitration and hence the exclusive jurisdiction then vests with the court wherever the seat of arbitration is. The appeal was allowed and it was held by the Supreme Court that the court in Ahmadabad had the jurisdiction to deal with the Section 34 petition.
[1] (2020) 4 SCC 234
[2] (2017) 7 SCC 678
[3] supra
