Ensure That All Police Stations Have Lawyers’ Panel To Aid Sexual Assault Victims: Gujarat HC Directs DGP - The Daily Guardian
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Ensure That All Police Stations Have Lawyers’ Panel To Aid Sexual Assault Victims: Gujarat HC Directs DGP

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In a recent, remarkable, refreshing, rational and robust judgment titled J v. State of Gujarat (name concealed intentionally) in R/Special Criminal Application No. 632 of 2022 delivered as recently as on February 17, 2022, the Gujarat High Court directed the Director General of Police, Gujarat State to ensure that all the police stations in the state have a panel of lawyers to aid the victims of the sexual assault crimes in accordance with the directions issued by the Supreme Court in a 1995 decision titled Delhi Domestic Working Women’s Forum vs Union of India (1995) 1 SCC 14 and which are not being followed in Gujarat. The Bench was dealing with a Habeas Corpus plea that was filed by the family of a minor girl who was allegedly abducted and thereafter, sexually exploited. These directions must be implemented in totality by the DGP as the Gujarat High Court has directed in this leading case.

To start with, this oral order authored by Ms Justice Sonia Gokani for a Bench of Gujarat High Court comprising of herself and Justice Aniruddha P Mayee first and foremost puts forth in para 1 that, “This Court on 04.02.2022 passed the following order:-

“1. This is a petition preferred by the mother for seeking custody of the corpus who has allegedly been taken away by the respondent no.4 with the following prayers:-

“(A) Your Lordships may be pleased to issue a writ of habeas corpus or any other appropriate writ, order or direction directing the respondents no. 2 and 3 to produce minor corpus Anjana before this Hon’ble Court and further the Hon’ble Court may be pleased to set herself free from illegal confinement of respondent no.4 and give the custody of Anjana to the petitioner.

(B) During the pendency and final disposal of this petition Your Lordships may be pleased to direct the respondent authorities to submit action taken report and to produce minor corpus Anjana before this Hon’ble Court.

(C) Your Lordships may be pleased to grant any other and further relief that may be deemed fit and proper in the interest of justice.”

2. It can be noticed from the averments set out in the application that the incident had taken place on 10.06.2021 and the daughter of petitioner was missing. The petitioner contacted Visnagar Taluka Police Station and requested to lodge an FIR, however, it could be lodged only on 02.07.2021 being FIR No. 11206002210669 for the offences punishable under Sections 363 and 366 of the Indian Penal Code.

2.1. The written complaint was given on 14.08.2021 to the Deputy Superintendent of Police, Mehsana and requested to find his daughter.

2.2. It is urged that she was in an illegal custody of the respondent no.4 and eventually they approached this Court under Article 226 of the Constitution of India urging that there are fair possibilities of the girl having been abused sexually.

3. This Court issued notice and directed the corpus to be brought. On 25.01.2022, the corpus was brought before this Court and after a detailed talk with the corpus in presence of Full Time Secretary, District Legal Services Authority, Mehsana, when she insisted to go to the Women Protection Home, certain directions to that effect were issued. It is also revealed to this Court that after about a week’s time, she had shown the desire to join the parents and accordingly, she has been produced today from the District Legal Services Authority, Mehsana in presence of the Full Time Secretary.

3.1. In medical report issued by the Civil Hospital, Ahmedabad, it has been revealed that she carries 10 weeks of pregnancy. She is present with her parents and jointly it is urged that she needs to get her foetus terminated.

4. Considering the provisions of Termination of Pregnancy Act, which provides for such termination when the person is victim of rape, she being extremely young and a victim of rape and victim under POCSO Act, we deem it appropriate to consider such request.

5. This Court in case of Maltidevi Gambhirsingh Sahani vs. State of Gujarat [Special Criminal Application No. 4921/2020] in case of victim of rape had directed the process of termination of pregnancy to be undertaken. 5.1. Section 3 of the Medical Termination of Pregnancy Act, 1971 provides that where length of pregnancy does not exceed 12 weeks and where the length of pregnancy exceeds 12 weeks, but, not 20 weeks and if, not less than two registered medical practitioners are of the opinion, formed in good faith, that the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury, physical or mental health or there is a substantial risk that, if, the child were born, it would suffer from such physical or mental abnormalities, the termination can be directed. However, the very section in the explanation provides that, where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman. Sub-section (3) of Section 3 of the Act also provides that in determining, whether the continuance of pregnancy would involve such risk of injury to the health, as is mentioned in sub-section (2), account may be taken of the pregnant woman’s actual or reasonable foreseeable environment.

5.2. This Court in case of Rekhaben vs. State of Gujarat [2019 SCC OnLine Guj 3239] has discussed the ‘best interest test’ which the Apex Court has given in case of rape victim urging for termination of pregnancy and also her social circumstances, provides that, the Court needs to ascertain the course of action which would serve the best interests of the person concerned. The Court must undertake a careful inquiry of the medical opinion on the feasibility of the pregnancy as well as social circumstances faced by the victim and the victim’s interest alone shall be a guiding factor for the Court and not of any other stakeholders such as guardians or society in general.

19. As evident from its literal description, the ‘Best interests’ test requires the Court to ascertain the course of action which would serve the best interests of the person in question. In the present setting this means that the Court must undertake a careful inquiry of the medical opinion on the feasibility of the pregnancy as well as social circumstances faced by the victim. It is important to note that the Court’s decision should be guided by the interests of the victim alone and not those of other stakeholders such as guardians or society in general. It is evident that the woman in question will need care and assistance which will in turn entail some costs. However, that cannot be a ground for denying the excise of reproductive rights.

Bearing in mind the decision of the Apex Court and keeping the ‘Best interests’ test as the parameter, in the opinion of this Court, in the present set of circumstances, careful inquiry of the medical opinion on the feasibility of the pregnancy as well as social circumstances faced by the victim, if are considered, this Court is of the opinion that termination of pregnancy requires to be permitted, which is in the best interest of the victim. It is to be noted that the team of Doctors have on 18th February 2016 submitted report and opined, thus – After reviewing history and detailed examination, blood reports and sonography done at Civil Hospital, Sola, our opinion is as follow :

Psychiatric evaluation suggest patient is not suffering from any psychiatric disorder and patient is psychiatrically fit. Considering involuntary pregnancy and unwillingness of victim to continue pregnancy her mental trauma may increase if pregnancy continues. Anesthetic evaluation suggest that slightly more risk of anesthesia if pregnancy will terminated at present. Medical and surgical evaluation suggest that if proper nutrition and care is maintained through feeding jejunostomy, there is no physical harm in continuation of pregnancy or termination of pregnancy at present. There is same or slight increase risk to victim if pregnancy is terminated before term than physiological normal delivery at term.

As per MTP Act, termination of pregnancy can be done up to 20 week of pregnancy. At present, patient had 24 week live pregnancy.”

6. Let a joint report be obtained from the Head of Department, Obstetrics & Gynecology, Civil Hospital, Ahmedabad and one Senior Doctor.

6.1. Let the corpus remain present with the parents and the willingness to terminate the pregnancy medically shall be conveyed as provided under the Act and the doctors shall also opine on the psychological and physical examination of the corpus that she can withstand the termination of pregnancy.

7. We could notice the FIR lodged by the parents alleging rape and the subsequent medical report of the victim being pregnant by 10 weeks. So as to ensure that the process may not further enhance the period of pregnancy, once the mental and physical condition is opined to be good for the purpose of termination in the medical opinion, and if there is no threat to her life, she is being permitted to terminate the pregnancy ensuring the best medical facilities, proper care and supervision.

7.1. Let the termination be carried out, once the team of doctors, minimum two in number, is of the opinion that it is feasible to so do it, without further reference to this Court. Unless otherwise opined by the medical experts needing indulgence of this Court, the process of termination shall be expedited and scientifically collected tissues be handed over to the police officer present which shall also be sent for DNA test. Once sent to the FSL, the report shall go to the concerned Court conducting the trial under the POCSO Act for the same to be considered as scientific evidence.

7.2. Rest of the procedure shall be followed in detail, along the line of the directions issued by this Court in case of Bhavikaben d/o Rameshbhai Solanki vs. State of Gujarat [Special Criminal Application No. 1155/2016] while dealing with one such rape victim.

8. Once the entire procedure is over, it shall be reported to this Court for the Court to thereafter pass other and further orders in relation to the compensation and otherwise.

9. As per the decision rendered by the Apex Court in case of Delhi Domestic Working Women’s Forum vs. Union of India [(1995) 1 SCC 14], victim corpus is entitled to the legal aid right from the time the FIR is lodged. It shall be provided without any loss of time by the District Legal Services Authority, Mehsana for the hand-holding till the completion of trial. Periodical vigilance of the DLSA would also be inevitable in all such cases.

10. Matter to appear on 17.02.2022. Copy of the order passed in Special Criminal Application No. 1155/2016 be tagged while sending this order to the learned APP for onward communication and due execution.””

To put things in perspective, the Bench then envisages in para 2 that, “Today the corpus is brought before us. It has been reported to this Court that the foetus has been terminated and the sample has been sent for examination at the Forensic Science Laboratory for the purpose of sessions trial. The condition of the corpus is good. She would need more counseling and the Investigating Officer as well as the Full Time Secretary, District Legal Services Authority shall ensure such periodical counseling at the end of the experts.”

Most significantly, what forms the real crown of this notable judgment is then enunciated in para 3 wherein it is postulated that, “Though directed on the last occasion for the legal aid to be provided to the victim, so far no appointment has been done. We reiterate the directions of the Apex Court in case of Delhi Domestic Working Women’s Forum (supra) and would like to reproduce the same:-

“15. In this background, we think it necessary to indicate the broad parameters in assisting the victims of rape.

(1) The complainants of sexual assault cases should be provided with legal representation. It is important to have someone who is well-acquainted with the criminal justice system. The role of the victim’s advocate would not only be to explain to the victim the nature of the proceedings, to prepare her for the case and to assist her in the police station and in court but to provide her with guidance as to how she might obtain help of a different nature from other agencies, for example, mind counseling or medical assistance. It is important to secure continuity of assistance by ensuring that the same person who looked after the complainant’s interests in the police station represent her till the end of the case.

(2) Legal assistance will have to be provided at the police station since the victim of sexual assault might very well be in a distressed state upon arrival at the police station, the guidance and support of a lawyer at this stage and whilst she was being questioned would be of great assistance to her.

(3) The police should be under a duty to inform the victim of her right to representation before any questions were asked of her and that the police report should state that the victim was so informed.

(4) A list of advocates willing to act in these cases should be kept at the police station for victims who did not have a particular lawyer in mind or whose own lawyer was unavailable.

(5) The advocate shall be appointed by the court, upon application by the police at the earliest convenient moment, but in order to ensure that victims were questioned without undue delay, advocates would be authorised to act at the police station before leave of the court was sought or obtained.

(6) In all rape trials anonymity of the victim must be maintained, as far as necessary.

(7) It is necessary, having regard to the Directive Principles contained under Article 38(1) of the Constitution of India to set up Criminal Injuries Compensation Board. Rape victims frequently incur substantial financial loss. Some, for example, are too traumatised to continue in employment.

(8) Compensation for victims shall be awarded by the court on conviction of the offender and by the Criminal Injuries Compensation Board whether or not a conviction has taken place. The Board will take into account pain, suffering and shock as well as loss of earnings due to pregnancy and the expenses of child birth if this occurred as a result of the rape.”

3.1. First four directions of the Apex Court are often observed in breach. We also noticed that the Investigating Officer when was inquired, she also has pleaded her ignorance. There is no list of empanelled advocates noticed in the police stations. Therefore, it is also necessary for us to show the indulgence by drawing the attention of the Director General of Police for the purpose of issuance of necessary circular/direction/ notification for every police station of the State to maintain, for effective implementation of the directions issued in the year 1995, without further loss of time.

3.2. Let an affidavit be caused to be filed before this Court of due implementation of the directions by the Director General of Police after six weeks.”

Be it noted, the Bench then observes in para 4 that, “Compensation to the victim as per the Victim Compensation Scheme shall be provided within four weeks’. The amount of compensation shall go to the victim’s account directly and she being a minor, the mother can be a joint account holder. The amount shall be used for her further studies and welfare.

4.1. The Member Secretary, High Court Legal Services Authority shall undertake the said exercise of compensation.

4.2. In relation to the appointment of the advocate in the instance case, the Full Time Secretary, District Legal Services Authority, Mehsana shall act expeditiously and report to this Court since penal of advocates is not formed as yet.”

Furthermore, the Bench then noted in para 5 that, “We have spoken to the parents of corpus to take good care of the corpus and streamline her studies as well as extracurricular activities. The District Legal Services Authority, Mehsana and the Police Inspector, Mehsana both can extend necessary assistance whenever the parents would require.”

What’s more, the Bench then observes in para 6 that, “We appreciate the role of Full Time Secretary, District Legal Services Authority, Mehsana in arranging video conference on different dates and for all follow-up actions.”

Finally, the Bench then concludes by holding in para 7 that, “With the above directions, this petition stands disposed of. Copy of this order be given to learned APP for her to communicate to the appropriate authority.”

In conclusion, the DGP of Gujarat must ensure that what the Gujarat High Court has directed in this learned judgment as discussed aforesaid is strictly implemented. To put it differently, it must be ensured that all police stations have lawyers panel to aid sexual assault victims. This is what forms the real essence also of this noteworthy judgment!

Sanjeev Sirohi, Advocate

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NCLT BAR ASSOCIATION’S PLEA CHALLENGING 3-YEAR TENURE OF NCLT MEMBERS IN JUNE: A PLEA IN SUPREME COURT

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The Supreme Court in the case National Company Law Tribunal Bar Association Vs Union Of India observed in a petition filed by the NCLT Bar Association challenging the notification of the Ministry of Corporate Affairs fixing the tenure of the members of National Company Law Tribunal as 3 years, while adjourning the hearing.

It was being argued before the court that the discharge of full five years is necessary for Tribunals to functions effectively and efficiently and by the time the members achieve the required knowledge, efficiency and expertise and a term of three years is very short as one term will be over.

On April 5, a notice is being issued on the petition to the Centre by the bench comprising of Justice L Nageswara Rao.

Further it was argued that the Notification is contrary to the judgments passed by the Supreme Court in Madras Bar Association v. Union of India & Anr. (2010) and Madras Bar Association v. Union of India & Anr. (2021) The Court held that the term of members should be 5 years. It was also being observed in the Madras Bar Association Case in which the Supreme Court observed that a longer term was necessary to ensure independence and the Court disapproved the shorter term.

It was being argued by the Association that the said notification is contrary as according to Section 413 of the Companies Act, 2013 which clearly prescribes the term of members for 5 years and even also the early expiration of the tenure will create a void and will add to the pendency of cases before Tribunals.

The Committee is considering all aspects of the matter including the verification report, assessment of suitability etc As on June 20, one of the members is due to retire and it was being submitted by Solicitor General the matter can be considered on June 15.

Solicitor General Tushar Mehta submitted that a meeting was held by the committee On April 20.

The term prescribed by Companies Act, 2013 is 5 years was being submitted before the court by Senior Advocate Tushar Malhotra, Appearing for the Petitioner.

The Bench comprising of Justice DY Chandrachud and the Justice Bela M Trivedi observed deferred the hearing to June 15 as the bench was being told that a committee chaired by the Chief Justice of India and consisting of Justice Surya Kant and the Secretary of the MCA is holding a meeting to deliberate on the term of 23 NCLT members appointed in 2019 by the Solicitor General of India.

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UNDER COMMERCIAL COURTS ACTS, SC ORDERS EXCLUDING PERIOD FROM 15.03.2020 TILL 28.02.2022 AS PRESCRIBED UNDER THE ACT

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The Supreme Court in the case Babasaheb Raosaheb Kobarne vs Pyrotek India Private Limited observed with respect to the limitation prescribed under the Commercial Courts Act, 2015. The Court observed that for the purposes of limitation the period from 15.03.2020 till 28.02.2022 is also applicable.

In an order dated 10.01.2022, The Supreme Court had issued the following directives:

It is directed from 15.03.2020 till 28.02.2022 the period shall extend stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings and the order dated 23rd March, 2020 is restored and in continuation of the subsequent orders dated 8th March 2021, 27th April 2021 and 23rd September 2021.

It shall become available with effect from 1st March 2022 Consequently, the balance period of limitation remaining as on 3rd October 2021, if any

In the event the actual balance period of limitation remaining, with effect from 01.03.2022 is greater than 90 days, that longer period shall apply and in cases where the limitation during the period between 15th March 2020 till 28th Feb 2022, would have expired all persons shall have a limitation period of 90 days from 01.03.2022, notwithstanding the actual balance period of limitation remaining.

The Sections which prescribe the outer limits i.e., within which the court or tribunal can condone delay and the period(s) of limitation for instituting proceeding includes Section 12 A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and as prescribed Sections 23 (4) and 29A of the Arbitration and Conciliation Act, 1996 including the termination of proceedings and any other laws and it is further being clarified that the period from 15.03.2020 till 28.02.2022 shall also stand excluded in computing the periods, The court observed while referring to the case Centaur Pharmaceuticals Pvt. Ltd. And Anr. v. Stanford Laboratories Pvt. Ltd

Therefore, the bench directed the Trial Court to take on record the written statement filled by the appellant-respondent.

The Commercial Courts Act, 2015 being a Special Law, the said order shall also be applicable with respect to the limitation prescribed under the Commercial Courts Act, 2015 also and the period from 15.03.2020 till 28.02.2022, in the view of this matter and for the purposes of limitation as may be prescribed under any General or SPECIAL LAWS shall have to be excluded as may be prescribed under any General or SPECIAL LAWS with respect to all quasi-judicial or judicial proceedings.

The Bench comprising of Justice MR Shah and the Justice BV Nagarathna observed while allowing the appeal filled by the defendant the purpose of filing the written statement and ought to have permitted to take the written statement on record as the High Court ought to have excluded the aforesaid period.

In the event the actual balance period of limitation remaining, with effect from 01.03.2022 is greater than 90 days, that longer period shall apply and in cases where the limitation during the period between 15th March 2020 till 28th Feb 2022, would have expired all persons shall have a limitation period of 90 days from 01.03.2022, notwithstanding the actual balance period of limitation remaining.

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Supreme Court expresses disapproval of judicial officer for not releasing accused despite order granting bail

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The Supreme Court in the case Gopal Verma v State of UP observed the recently deprecated act of a judicial officer on the release of the accused despite Court’s order of directing his release against whom FIR was registered u/s 498A, 304B of IPC and section 3/4 of Dowry Prohibition Act.

Since October, 2020 the appellant has been in custody and the bench had granted bail to the accused after being apprised of the fact that the charge of the accused was as under Sections 304B and 498A, Indian Penal Code, 1860

In December, 2021, the charge sheet was filed and as yet only one witness had been examined whereas the prosecution had cited 64 witnesses, the counsel argued before the Court.

the bench while considering criminal appeal assailing Allahabad High Court’s order of refusing to grant bail to the accused on 17.05.202, the bench granted bail to the appellant on terms and conditions to the satisfaction of the Trial court and upon hearing learned counsel for both the parties.

The bench comprising of Justice SK Kaul and the justice MM Sundresh while observing in their order said:

the appellant was not released and that should have been the matter of concern by the trial court as from December 2021, only one witness has been examined rather than what is sought to be raised ad the bench have no hesitation in adding those provisions to the order but don’t appreciate the conduct of the judicial officer whereby despite the orders of this Court.

on the pretext that while the order mentions the charges under Sections 304B and 498A, IPC it does not mention Sections 3/4 of the Dowry Prohibition Act, The Judicial Officer refused to release the accused.

The bench further added that the bench has no hesitation in adding those provisions to the order but the conduct of the judicial officer won’t be appreciated despite the order of this courts the appellant was not released.

Further the court added that only one witness has been examined by the trial Court from December 2021 and that should have been the matter of concern rather than what is sought to be raised by the trial Court.

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The Unresolved Issue of AMP Expenses in Transfer Pricing – India

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One of the most perplexing yet significant concepts within the Transfer Pricing Dispute Resolution is with regards to the Advertisement, Marking and Promoting (AMP) Expenses that are drawn by the Indian Entities of a company for the products of its foreign Associate Entity. This concept has been surrounded by controversy and confusion since its inception within the practice and study of Transfer Pricing and this is because of the absence of any statutes or regulations dealing with it and its jurisprudence is built purely on the judicial precedents that have been delivered by the Tribunals and High Courts, however, interestingly even the courts appear to have a tough time dealing with issues pertaining to AMP expenses.

The origin of this dispute can be traced back to the United States Tax Court in the case of United States v. DHL Corporation, after the introduction of the US Regulations of 1968 which introduced an important concept pertaining to “Developer Assister Rules” as per which the entity which has incurred the AMP Expenses (Developer) would be treated as the economic owner of the brand which is being marketed even though it might not be its legal owner, and the legal owner of the Brand i.e., the Assister need not pay any compensation for the use of the brand by the developer. These regulations were grounded on the notion of equitable ownership of a brand on the basis of the fiscal expenditure and the risk incurred by them, and the legal ownership of the brand has not to be taken as one of the criteria for ascertaining who would be considered as the developer of the Brand or the intangible property in question.

However, it is pertinent to consider that the Transfer Pricing Rules in America create a clear distinction between “Routine” and “Non-Routine” expenditure, which is essential to understand the issue of the monetary remuneration that is given to the domestic associated entity for marketing intangibles. In DHL, the court framed the Bright Line Test (BLT) which created a distinction between the routine and non-routine expenses that were incurred by the companies. According to the Bright Line Test, it is necessary to ascertain the non-routine expenses that have been incurred i.e., for marketing purposes in contrast to the routine expenses that the incurred by the brand’s distributor for product promotion while ascertaining the economic ownership of the intangible in question.

The issue pertaining to AMP expenses was first dealt with in the case of Maruti Suzuki India Ltd. v. Additional Commissioner of Income Tax [(2010) 328 ITR 210] before the Delhi High Court, where the Bench held that the Advertisement, Marketing and Promoting Expenses will be considered as an international transaction only in cases where it exceeds the costs and expenses that have been incurred by comparable domestic entities which are similarly situated. However, the Delhi High Court’s judgement was remanded following which it was challenged before the Honourable Supreme Court in Maruti Suzuki v. Additional Commissioner of Income Tax [2011] 335 ITR 121 (SC) where it was overturned by the Apex Court.

In LG Electronics India Pvt. Ltd. v Assistant Commissioner of Income Tax [(2013) 140 ITD 41 (Delhi) (SB)], the Delhi Bench of the ITAT referred to the precedent by the Delhi High Court in Maruti Suzuki and held that the as per Chapter X of the Income Tax Act, 1961 the Assessing Officer has the right to make an adjustment for Transfer Pricing vide application of the Bright Line Test in issues pertaining to the AMP expenses that have been drawn by the Indian Entity, since this would fall within the ambit of an international transaction, and this would be deduced from the proportionally higher AMP expenses that were incurred by the Domestic Entity in contrast to two similarly situated domestic entities. The Revenue’s understanding that the AMP expenses which are incurred by the Domestic Associated Entity will inevitably result in a benefit to the Foreign Associated Entity in terms of increasing its brand value along with the lack of lack adequate compensation to the latter for the same, is the primary reason behind its attempt to bring all expenses pertaining to advertising, marketing and promotion within the ambit of the country’s Transfer Pricing Laws, thus it takes the job of applying an Arm’s Length Prince on such transactions which are used for AMP and the test that is most widely employed for this purpose is the Bright Line Test which used by the court in the case of LG Electronics, where it looked at the Bright Line, which is a line drawn within the total expenditure for the purposes of AMP which signified the average spending for the same purpose by comparable entities and any amount which would exceed the line would be considered as an international transaction which would represent the expenses that were drawn by the domestic entity for the building the brand value of the Foreign Associated Entity’s product.

The precedent in Sony Ericsson proved to be a gamechanger wherein the court went to the extent of overruling all of the abovementioned judgements with regards to whether AMP Expenses by the Domestic Entity would be considered as an internal transaction. In this case, the court did not face any issues in determining whether it would constitute an international transaction since the entities had submitted that the international between the Foreign Associated Entity and the Domestic Entity also included the money for the purposes of AMP. While the Revenue had relied on the precedent in LG Electronics to show cause for their application of the Bright Line Test in determining the part of the expenses towards AMP that would be considered as an international transaction. However, the court reject the Revenue’s submissions and reasoning while holding that the Bright Line Test did not have legislative or statutory backing and thus the precedent in LG Electronics was overruled with regards to the use and applicability of the Bright Line Test for ascertaining international transactions since this would be considered as an outcome of judicial legislation.

After the precedent in Sony Ericsson there has been a drastic change in the judicial approach towards issues pertaining to AMP expenses within the realm of transfer pricing. However, since the Court has failed to elaborate upon what would constitute an international transaction in Sony Ericsson, the courts and tribunals have gone back to the phase of drowning in confusion to deal with cases pertaining to AMP expenses and have struggled with determining a proper method for the same.

A transfer pricing adjustment can only be made when it has met the statutory framework of highlighting the existence of an international transaction, determination of the price and fixing an ALP in compliance with Section 92 C of the Income Tax Act. While the element of the international transaction was not disputed in all of the aforementioned cases, the primary issue was with regards what would constitute an international a transaction. The definition of an international transaction as per the Income Tax Act includes the parties to have an agreement between themselves for such a transaction and a shared understanding with regards to the transaction and its purpose. In LG Electronics and other cases prior to Sony Ericson, the primary criteria that were adopted by the courted in ascertaining international transactions and unsaid understanding, were on the basis of proportionally higher expenses with reference to comparable i.e. the courts had adopted the Bright Line Test which had been deemed incompatible with the Income Tax Act of 1961

At a glance at most of the cases pertaining to this issue, the Revenue has resorted to proving the existence of international transactions on the basis of the Bright Line Test, and most of the revenue’s judgements also fail to highlight or prove the same, otherwise except for the unique cases in which the Assessee Domestic Associated Entity and the Foreign Associated Entity had a written agreement between the two of them. This issue is purely because of the lack of any regulatory or statutory provisions within the Income Tax Act, and this was also brought to attention by the court in Maruti Suzuki(2011). In the absence of Statutory provisions and the inability to apply the Bright Line Test because of the precedent in Sony Ericsson, it becomes impossible for the revenue in such cases, especially in the absence of a written or express agreement between the Domestic and Foreign Associated Entities, where it is forced to assess the Domestic Entity’s subjective intentions however this method was also rejected in Maruti Suzuki(2011).

While the decision in Sony Ericsson has left the Revenue and Courts baffled with regards to the method, they should use to ascertain international transactions in matters pertaining to AMP expenses, hopefully, this will finally come to a conclusion since it is currently being heard by the Country’s Apex Court. It is of the utmost importance for the Apex Court to elaborate upon the method and procedure that must be followed by the revenue in determining cases pertaining AMP expenses and issue guidelines for the same.

The origin of this dispute can be traced back to the United States Tax Court in the case of United States v. DHL Corporation, after the introduction of the US Regulations of 1968 which introduced an important concept pertaining to “Developer Assister Rules” as per which the entity which has incurred the AMP Expenses (Developer) would be treated as the economic owner of the brand which is being marketed even though it might not be its legal owner, and the legal owner of the Brand i.e., the Assister need not pay any compensation for the use of the brand by the developer. These regulations were grounded on the notion of equitable ownership of a brand on the basis of the fiscal expenditure and the risk incurred by them, and the legal ownership of the brand has not to be taken as one of the criteria for ascertaining who would be considered as the developer of the Brand or the intangible property in question.

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INSURANCE COMPANY SHOULD NOT SEEK DOCUMENTS WHICH ARE BEYOND THE CONTROL OF INSURED TO FURNISH, SAYS SUPREME COURT WHILE SETTLING CLAIM

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The Supreme Court in the case Gurmel Singh vs Branch Manager, National Insurance Co. Ltd observed that due to circumstances which is beyond the insured control and which the insured is not in a position to produce while settling the claims, the insurance company need not be too technical and ask for documents.

While settling the claim, it is found that the insurance companies are refusing the claim on flimsy grounds and/ or technical grounds further which the insured is not in a position to produce due to circumstances beyond his control, While settling the claims, the insurance company should not be too technical and ask for the document As the insurance company ought not to have become too technical and ought not to have refused to settle the claim on non­ submission of the duplicate certified copy of certificate of registration as due to the circumstances beyond his control, the appellant could not produce on payment of huge sum by way of premium and the Truck was stolen, once there was a valid insurance. As the appellant was asked to produce the documents which are beyond the control of the appellant to produce and furnish those documents.

An amount of Rs. 12 lakhs along with interest @ 7 per cent from the date of submitting the claim, the appellant is entitled to the insurance and to pay the litigation cost of Rs. 25,000 to the appellant, the court held while allowing the appeal.

the insurance company has become too technical while settling the claim and the insurance company has acted arbitrarily, observed by the court in this case.

As when an appellant produced the registration particulars which has been provided by the RTO and further the appellant had produced the photocopy of certificate of registration and was just being solely on the ground that the original certificate of registration i.e., which has been stolen is not produced and the non-settlement of claim can be said to be deficiency in service. Therefore, the Insurance companies are refusing the claim on flimsy grounds and/or technical grounds, the facts and circumstances of the case. Furthermore, the appellant had tried his best to get the duplicate certified copy of certificate of registration of the Truck. the insurance company must have received the copy of the certificate of registration, even at the time of taking the insurance policy and getting the insurance.

the appellant has not produced either the original certificate of registration or even the duplicate certified copy of certificate of registration issued by the RTO, mainly on the ground the insurance company has not been settled in an appeal before the Apex Court. The bench further noted that the photocopy 5 of certificate of registration and other registration particulars as provided by the RTO, was being produced by the appellant.

The bench comprising of Justice MR Shah and the justice BV Nagarathna observed and contended that, in many cases, it is found that the insurance companies are refusing the claim on flimsy grounds and/or technical grounds.

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Supreme Court seeks response of Union and states on plea for guidelines to prevent sexual harassment of students in schools

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The Supreme Court in the case Nakkheeran Gopal v UOI & Or’s observed that any kind of harassment including the sexual harassment being carried out at educational institutions The Court while allowing the writ petition issued a notice seeking protection of children.

The plea stated that there is a vicarious liability upon the State Government to implement any law for the well-being and also for the protection of the children in their respective states.

the petition states that to implement any law for the well-being of children and also for the protection of the children in their respective states, it is the responsibility of the State Government and the plea further mentioned that it the vicarious liability of the State Government and It will be considered the lapse on the part of the State Government if there is Any lapse on the part of the educational institution as it remains a crucial department in the State Government With respect to the relevant organization, including Educational Institution, stated in the plea before the court.

The petitioner argued that till date no specific mandate or the law or the guidelines have been issued by the respective States and inspire of alarming rate in the offence against the children especially at school premises.

The petition further states with this regard that children can also themselves be coerced into becoming tools in furtherance of illegal and dangerous activities and under this circumstance the Increased online time can lead to grooming and both online and offline exploitation.

It is essential to ensure the constitutional right to dignity of children provided under Article 21 of the Constitution of India, while protecting children against sexual abuse when they are exposed to predators, which is compromised, stated by the petitioner in the plea.

The petition states that it indicates immediate concerns and measures for intervention are of paramount significance and further the court stated that this calls for the implementation of legislative actions and community-based interventions through virtual media to prevent a further rise in the statistics and to ensure child protection and when the safety of the children is at stake especially at educational institutions which is supposedly to be the safest shelter, and that too during this tough time. As it is necessary to Protecting the basic rights of children and is of utmost concern as otherwise there will be a posting of a substantial threat to the future and this would leave a regressive impression.

It is the fundamental right of the children under Constitution of India to engage and study in an environment when he/ she feels safe from any kind of emotional or physical abuse and is free, further being argued in the petition.

The bench comprising of Justice Indira Banerjee and the Justice CT Ravikumar observed and sought responses of the Union and the States for guidelines for the educational institutions for the protection of the children and also for the enforcement of the fundamental rights of Children at the educational institutions.

It is essential to ensure the constitutional right to dignity of children provided under Article 21 of the Constitution of India, while protecting children against sexual abuse when they are exposed to predators, which is compromised, stated by the petitioner in the plea.

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