Whether officials of pvt banks can be treated as public servants and prosecuted

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CS (Dr)Rajeev Babel

My Article published in Taxmann's Journal SEBI & Corporate Laws

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Whether officials of pvt banks can be treated as public servants and prosecuted

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Section 3(3)(b) of the Competition Act, 2002, inter-alia, creates a presumption that an agreement, or practice carried on, or decision taken ,which limits or controls production, supply, markets, technical development, investments or provision of services has an appreciable adverse effect on competition and is to be treated as a prohibited agreement in terms of Section 3(1) of the Act. The Supreme Court in the case of Competition Commission of India vs. Co-ordination Committee of Artists and Technicians of W.B. Film and Television and others, had already affirmed that once an agreement falls under Section 3(3)(b) of the Act, appreciable adverse effect on competition is presumed. Therefore, if a particular agreement comes in any of the said categories, it is per se treated as adversely effecting the competition to an appreciable extent and comes within the mischief of sub-section (1).

Presumption of appreciable adverse effect on competition- A case of TV serial...

CS (Dr)Rajeev Babel

My article published in the Manupatra's Journal 'Chartered Accountants Practice Journal' in April 2017 issues. SUMMARY: SARFAESI Act does not destroy the pre- existing rights that were created prior to the creation of the mortgage/security was clearly laid down by the Supreme Court in the cases of Harshad Govardhan Sondagar (supra) and Vishal N. Kalsaria (supra) and the High Court of Bombay relied on the decision given in the instant case. While the SARFAESI Act is concerned with non-performing assets of the banks, the Rent Control Act governs the relationship between a tenant and the landlord and specifies the rights and liabilities of each as well as the rules of ejectment with respect to such tenants. The provisions of the SARFAESI Act cannot be used to override the provisions of the Rent Control Act.

Sarfaesi act can not override the provisions of the rent control act

CS (Dr)Rajeev Babel

My Article published in Competition Law Reports-April 2017 issue. Highlights: The purpose of defining the 'relevant market' is to assess with identifying in a systematic way the competitive constraints that undertakings face when operating in a market. This is the case in particular for determining if undertakings are competitors or potential competitors and when assessing the anti-competitive effects of conduct in a market. The concept of relevant market implies that there could be an effective competition between the products which form part of it and this presupposes that there is a sufficient degree of interchangeability between all the products forming part of the same market insofar as specific use of such product is concerned. When trade union is of 'enterprises' and its action of boycott is reflecting the collective intent of its members, its action would violate Competition Act, 2002 even if the union itself is carrying on no economic activity by itself. When some of the members are found to be in the production, distribution or exhibition of films/serials line, the matter could not have been brushed aside by merely giving it a cloak of trade unionism.

Story of dubbing of tv serial mahabharat i bangla a cs ase on competition act

CS (Dr)Rajeev Babel

My article displayed by the well known publisher MANUPATRA on 23rd February, 2017. http://www.manupatrafast.com/articles/ The purpose behind the enactment of the COFEPOSA was to provide for preventive detention in certain cases for the purposes of conservation and augmentation of Foreign Exchange and prevention of smuggling activities and for matters connected therewith. The Supreme Court, in its landmark decision very well interpreted section 3 read with section 5A of the COFEPOSA and opined that where the detention order is based on more than one grounds, independent of each other, then detention order will still survive even if one of grounds found is non-existing or legally unsustainable.

Grounds of detention under cofeposa is valid even if one of grounds is legall...

CS (Dr)Rajeev Babel

My Article published in the Manupatra's Competition Law Review- Jan 2017 issue. SUMMARY: The Supreme Court in the case titled Chairman, SEBI v. Shriram Mutual Fund has opined that mens rea is not an essential ingredient for contravention of the provisions of a civil act. The penalty is attracted as soon as contravention of the statutory obligations as contemplated by the Act is established and, therefore, the intention of the parties committing such violation becomes immaterial. In other words, the breach of a civil obligation which attracts penalty under the provisions of an Act would immediately attract the levy of penalty irrespective of the fact whether the contravention was made by the defaulter with any guilty intention or not. The Tribunal opined that the CCI has power to approve a combination under section 31 and such approval neither obliterates nor condones contravention, for which penalty is to be imposed under section 43A and, thus, penalty under section 43A is leviable even if combination has no appreciable adverse effect on competition. The Tribunal held that the Appellants failed to notify proposed combination to CCI as required under section 6(2), penalty under section 43A was to be imposed upon appellant even though combination was approved by CCI.

Penalty for non furnishing of information on combination under section 42 a o...

CS (Dr)Rajeev Babel

My Article published in Manupatra's Chartered Accountant Practice Journal, Jan 2017: The Registrar of Companies has been empowered under section 248 of the Companies Act, 2013, for the removal of names of companies from the Register of Companies. This section corresponds to section 560 of the old Companies Act, 1956 and its sub-section (6) have a clause for restoration of the name of the company after it has been struck off and a time limit of 20 years from the date of struck off, has been prescribed. The prayer for the restoration of name of the company may be made by the aggrieved person (i.e. a company or any member or creditor thereof), however where the company/ its directors, itself had made the application for struck off the name, whether the restoration of the name of such company is allowable. This article narrates the circumstances under which the restoration of name can be allowed under section 560(6) of the old CA 1956.

Restoration of name of company not allowable...

CS (Dr)Rajeev Babel

The second proviso to section 15(1) of the SICA, 1985 as introduced by the provisions of the SARFAESI Act applies specifically to a situation where financial assets have been acquired by any securitisation company or by a reconstruction company under section 5(1) of the SARFAESI Act. Thus in view of this a reference cannot be filed by a company before the BIFR after its debts or part thereof, have been assigned in favour of a securitisation or reconstruction company.

After assignment of debts to arc no reference can be filed before bifr

CS (Dr)Rajeev Babel

My Article published by the TAXMANN in Oct 2016. Section 28 of the Indian Contract Act, 1872 had drawn attention of the Law Commission of India, which was reflected in its 13th Report (Sept- 1958) and 97th Report (March 1984). The said section was amended on the recommendation of the 97th Report, by the Indian Contract (Amendment) Act, 1996, and came into force w,e,f, 8th January, 1997. This paper narrates the situation of the case pertaining to bank guarantee executed prior to this amendment. The Apex Court has very rightly observed that 1997 amendment to section 28 of the Indian Contract Act, 1872, which made certain agreements covered by section 28(b) void does not purport to be either declaratory or clarificatory, it being substantive law operates prospectively.

Section 28 of the contract act

CS (Dr)Rajeev Babel

My Article published in TAXMANN in Oct 2016. The amortization of preliminary expenses is permitted under Section 35D of the Income Tax Act, 1961. The Supreme Court has rightly opined that once, this position is accepted and the clock had started running in favour of the assessee, it had to complete the entire period and benefit granted in first two years could not be been denied in the subsequent years. The Apex Court also stated that where there is any dispute with employees over quantum of bonus, the amount of bonus paid to the Trust (formed for benefit of employees) and after the settlement of the dispute the trust paid the bonus amount to employees before the due date disallowance of the same, cannot be made by invoking the provisions of section 40A(9) or section 43B(b). Nor any disallowance can be made for the reason that bonus was not paid by the employer-assessee directly in cash to employees and payment was made to employees by the trust.

Amortization of preliminary expenses cannot be stopped if the clock has start...

CS (Dr)Rajeev Babel

My article published by the TAXMANN in Oct 2016. SUMMARY The object of the SAFEM Act is to ensure that the properties purchased out of smuggling activities or by illegal means in violation of the provision of the SAFEM Act cannot be permitted to be enjoyed by the convict/detenu or a relative holding the property as benami. However, It is only when link or nexus of properties with convict/detenue or to income from such illegal activity is established, properties standing even in name of a relative can be forfeited. The article highlights a case recently decided by the High Court of Madras, in which Court has opined that where properties of respondent were his individual properties without any nexus to his wife, who was convict/detenue for violation of FERA, properties of respondent being spouse of convict could not be forfeited.

Forfeiture of properties of relatives of convct under safem act

CS (Dr)Rajeev Babel

My Article published in 'Chartered Accountant Practice Journal', Sept 2016 issue. The definition of “debt”, has been given a very wide meaning under section 2(g) of the RDB Act, but Section 17, which prescribes the jurisdiction of the Tribunal, has not amended. Therefore, when a debenture trustee wants to file a proceedings for recovery of the amounts payable to the debenture holders or for the benefits of debenture holders, Section 17 will not apply and hence, the jurisdiction of regular civil court is not excluded. The reason is that in such a case, the bank which is a debenture trustee does not claim recovery of a debt due to itself.

Whether bank acting as debenture trustee can file proceedings under drt

CS (Dr)Rajeev Babel

Whenever a company opt the IPO route for raising of funds, there should be material disclosure in the Offer documents. The ICDR Regulations provides the manner of disclosure in the offer document. What facts are material in terms of disclosure requirements, is a question of facts. The present article discusses the issues relating to it, findings of the SEBI, imposing of penalty on the company concerned to debar from the securities market and the final verdict of the SAT, in reducing the penalty.

Non disclosure of material facts in the offer doc may debar from assessing th...

CS (Dr)Rajeev Babel

Non disclosure of material facts in the offer doc may debar from assessing th...

CS (Dr)Rajeev Babel

My Article published and displayed by the Taxmann. Citation: [2016] 68 taxmann.com 440 (Article) SEBI (Collective Investment Schemes) Regulation, 1999 provides details of compulsory registration, business activities and obligations, trustees and their obligations, collective investment scheme, general obligations, inspection and audit, etc., of Collective Investment Management Company. The present article is a case study of PACL Ltd., which in guise of running real estate business, was actually running sham Collective Investment Schemes (CIS) which were detrimental to interest of investors. SEBI directed PACL to wind up its existing CIS and to refund money collected from investors with promised return, which was challenged in SAT by the company, but SAT justified the decision given by the SEBI.

Doing cis activity in guise of running real estate business a case study

CS (Dr)Rajeev Babel

My Article published and displayed by the Taxmann. Citation: [2015] 64 taxmann.com 232 (Article) The main aim behind the enactment of the Competition Act, 2002 was to promote efficiency using competition as one of the means of assisting in the creation of market responsive to consumers' preferences. Section 4 of the said Act prohibits abuse of dominance by any enterprise or group. Abuse of dominance has been dealt with in sub-sections 2(a) to 2(e) of section 4.

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CS (Dr)Rajeev Babel

Doing CIS activity in Guise of Running Real Estate Business: A Case Study

CS (Dr)Rajeev Babel

Remembering the old days - 32 years back - My Article on 'Goodwill: Tax Treatment' which was published in 1984 in Taxmann. Editorial Comments: Taxation of goodwill in cases involving its transfer has often presented innumerable problems culminating in the Supreme Court decision in the case of B.C. Srinivasa Setty holding that goodwill generated in a newly commenced business is not subject to capital gains tax. The author of this article first explains the meaning and nature of goodwill and thereafter discusses the debatable question as to whether goodwill can be regarded as a capital asset. He also goes into the question as to whether and when goodwill can be regarded as having a cost of acquisition. A typical case discussed by the author is of payment for goodwill in instalments acquired by a chartered accountant in which case the question arose whether the payments so made were deductible as business-expenditure. Thus, in this article, nearly all controversial aspects of tax treatment of goodwill have been dwelt on with reference to the relevant case law on the subject - Editor

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