Categories
Article blog

DEEMED COLLECTIVE INVESTMENT SCHEME-Everything about the scheme

The Securities Laws (Amendment), Act 2014 states that if more than 100 crore rupees are collected from the contributors in a scheme, it shall be known as a Collective Investment Scheme. For the CISs to function, the Government of India has made it mandatory for every CIS to register with SEBI and obtain a credit rating from a verified rating agency.

Introduction

After the Securities Laws (Amendment) Act, 2014, the concept of ‘Deemed Collective Investment Scheme’ has come into effect. A proviso has been inserted after Section 11AA (1) of the SEBI Act, 1992 where any pooling of funds under any scheme or arrangement, which is not registered with the SEBI or is not covered the exemptions under Section 11AA (3), involving a corpus amount of one hundred crore rupees or more shall be deemed to be a CIS. The Sub-Section (2A) was also inserted to give retrospective effect where any scheme or arrangement made or offered by any person satisfying the conditions as may be specified in accordance with the regulations made under the SEBI Act. The SEBI has been given another additional power to make regulation[1] after the said Amendment to the fulfilment of other conditions relating to collective investment scheme under subsection (2A) of section 11AA.

After 2014, the concept of ‘Deemed collective investment Scheme’ has been also introduced in the SEBI (Collective Investment Schemes) Regulations 1999. The Amendment[2] inserted Regulation 4A where Any person proposing to carry on or sponsor or launch any scheme or arrangement which would be deemed to be a collective investment scheme under the proviso to sub-section (1) of section 11AA of the Act, shall make an application for grant of registration as a Collective Investment Management Company in Form A in the Schedule I of the Regulations. But any scheme or arrangement which is otherwise regulated or prohibited under any other law shall not be deemed to be a collective investment scheme. All other provisions of the SEBI (Collective Investment Schemes) Regulations 1999 and the guidelines and circulars issued thereunder, shall apply to any scheme or arrangement deemed to be a collective investment scheme under the provision to section 11AA(1) of the SEBI Act.

According to Section 11AA of the SEBI Act, CIS can be any kind of scheme or project which satisfies the below mentioned criterion:

The total contribution of the investors are used only for the concerned scheme;

  • The investors have made payments to the scheme hoping to receive profits on their investments;
  • The total sum of the investments is managed by the Collective Investment Management Company on behalf of the contributors;
  • The investors are in no way involved in the internal management and functioning of the scheme.

The Securities and Exchange Board of India (Collective Investment Schemes) (Amendment) Regulations, 2014 also inserted a new ‘CHAPTER IX A’ relating to “Existing Schemes or Arrangements Deemed to be a Collective Investment Scheme. According to this section any person who has been operating a scheme or arrangement deemed to be a collective investment scheme under the proviso to sub-section (1) of section 11AA of the Act at the time of commencement of the SEBI (Collective Investment Schemes) (Amendment) Regulations, 2014 shall be deemed to be an existing collective investment scheme and shall also comply with the provisions of Chapter IX Regulations. But any scheme or arrangement which is otherwise regulated or prohibited under any other law shall not be deemed to be a collective investment scheme. The expression ‘operating a scheme or arrangement deemed to be a collective investment scheme’ shall include carrying out the obligations undertaken in the various documents entered into with the investors who have subscribed to the scheme or arrangement. An existing collective investment scheme shall make an application to the Board in the manner specified in regulation 5 of the SEBI (Collective Investment Schemes) Regulations, 1999.

Existing Collective Investment Schemes

Any person who has been operating a collective investment scheme at the time of commencement of these regulations shall be deemed to be an existing collective investment scheme and shall also comply with the provisions of Chapter IX of the SEBI (Collective Investment Schemes) Regulations, 1999 which deals with ‘Existing Collective Investment Schemes’. Here the expression ‘operating a collective investment scheme’ shall include carrying out the obligations undertaken in the various documents entered into with the investors who have subscribed to the scheme[3].

The existing collective investment scheme shall not launch any new scheme or raise money from the investors even under the existing scheme unless a certificate of registration is granted under Regulation 10 of the SEBI (Collective Investment Schemes) Regulations, 1999 to it by the SEBI[4].

References:
1. Section 30 (2) (cb) of the SEBI Act, 1992
2. The Securities and Exchange Board of India (Collective Investment Schemes) (Amendment) Regulations, 2014
3. Regulation 68 of the Securities and Exchange Board of India (Collective Investment Schemes) Regulations, 1999
4. Regulation 69 of the Securities and Exchange Board of India (Collective Investment Schemes) Regulations, 1999

About the Author:-

This Article has been written by Aryan Sinha, 4th Year law (BBA+LLB(H) student at Galgotias University, Greater Noida.

Categories
blog

Gift Deed Vs WILL: Which is a better option for property transfer

What is a WILL and a gift deed?

A WILL is made by the testator while alive and comes into effect after his/her demise.

A gift under Section 122 of the Transfer of Property Act is a transfer of asset/property by a donor (asset owner) out of his own free WILL (voluntarily and Willingly) to a donee (recipient) without any consideration.

Gift Deed vs WILL:

You can take recourse to gift deed or WILL to transfer property to any of your relatives such as children or spouse. However, both these options have their own merits. Apart from this, taxation is also an important point. If you want to understand the difference between gift deed and WILL in simple words, then it can be said that if someone wants to transfer property immediately, then it can be done through gift deed. Whereas property is transferred only after death through a WILL. Which option to choose in gift deed or WILL to transfer property, it is important to consider many aspects apart from tax.

A gift deed requires to be stamped and registered, whereas, a WILL need not be stamped or registered.

The option of gift deed can be adopted for immediate property transfer whereas property transfer takes place only after death through via WILL.

In some cases, it has been heard that children were thrown out of the house by the children on transfer of property through gift deed and they are somehow making their living. In such a situation, tax and investment expert Krishan Joshi says that if there is no great need like in many cases it is necessary to transfer the property immediately, then except in such cases, the property should be transferred only through a WILL so as to evict from one’s own property. Don’t let it happen.

Are Gift deeds/WILL taxable?

Under the Income Tax Act, gifts between specified relatives i.e. – between spouses, from parents to children (including step children and adopted children), among siblings or any other lineal ascendants or descendants — are fully exempted from tax, but need to be documented through a deed if the value of the gift is above Rs.50,000.

A WILL is not required to be registered, due to which it is a cheap way to transfer property, but it should be registered to avoid any problems related to succession. There is no tax liability on transfer of property through a WILL and no tax liability is applicable on transfer of property through gift deed also to relatives like spouse or children. This is how tax liability arises on gifting to non-relatives.

Categories
Legal

IDRC and LatestLaws present 1st National ADR Tournament, 2022, Cash Prizes Worth Rs. 1 Lakh (28th – 29th May 2022)

The Indian Dispute Resolution Centre and LatestLaws.com are organizing the 1st National ADR Tournament, 2022, from 28th to 29th May, 2022.

The ADR problem is on contemporary legal issues. Eminent Judges, Lawyers & Academicians of the highest standing in India, converge to adjudicate the various rounds of the competition. The said event shall be conducted virtually.

Law School Partner: Vivekananda Institute of Professional Studies (VIPS), Northcap University

Law Firm Partner: Lexidem & Rathi

Dates: The dates of the said competition shall be May 28th & 29st, 2022 (Saturday & Sunday).

Venue: The event shall be conducted on a Virtual Platform, the details of which shall be conveyed along with the final invite.

Eligibility:

This competition is open for all bonafide students pursuing the LLB three years or B.A./B.B.A. LLB five years course or LLM during the current academic year from any recognized law college.

Registration link: https://forms.gle/DDQyYXc6XW8pWDHP7

List of Important Dates:

Registration opens: 24th April 2022
Registration Closes: 10th May 2022

Last date to seek Clarifications: 15th May 2022
Last date to Submit Case File: 22nd May 2022
Researcher Test 28th May 2022
Cash Prizes
Winner: INR 50,000/-
First Runner up: INR 25,000/-
Second Runner up: INR 15,000/-
Best Speaker: INR 5,000/-
Best Speaker Runner up: INR 3,000/-
Best Memorial: INR 3,000/-

Contact Information: In case of queries, visit the website or feel free to write to mootcourt@latestlaws.com

For any registration related queries:

For Registration: +91- 89203-83947

For ADR Problem: +91-95631-41414

Technical Support: +91-9650075373

Moot Proposition, Rule Book, Registration Form, Registration Fee, etc. can be found in the Brochure attached below.

For Brochure: Click Here 

Categories
Legal

Summer Internship Opportunity 2022 at Delhi State Legal Services Authority (DSLSA) [150 Seats]: Apply by May 15

About the DSLSA Summer Internship

Delhi State Legal Services Authority invites online applications for the Summer Internship Programme 2022 for law students of Law Universities/Colleges of India.

Number of Seats
150

Eligibility
3rd and 4th Year Law students (in case of 5-year LLB) AND 1st and 2nd-year law students (in case of 3-year LLB)

Duration of the Summer Internship
The internship period will be of 21 days.

Suggested field areas for visit during Internship period
While interning with Authority the students will have an opportunity to visit the
authorities/places mentioned below:
A. Department of Family Welfare, GNCTD of Delhi
B. Special Courts dealing with cases under Section 138 N.I.Act
C. Observation Homes for Juveniles.
D. Mental Health Institution (IHBAS)
E. Delhi Commission for Women
F Legal Services Clnics
G. Mediation Centres
H. Family Courts
I. Labour Courts & Tribunals inclucing Armed Forces Tribunal, Debt Recovery
Tribunal, MCD Appellate ‘Tribunal, Consumer lForums etc.
J. Juvenile Justice Boards

K. Children Homes & Child Welfare Committees

L. (Civil & Crminal Sides) District Courts
M. Lok Adalats
N. Tihar & Rohini Jails O. Special Juvenile Police Unit, Delhi Police.
P. Police Stations/ Forensic Science Laboratory Q. National Commission for Protection of Child Rights/ Delhi Commission for Women.
R. Protection of Child Rights S. National Commission for Women/ Delhi Commission for Women
T. National Commission Dispute Redressal Commission/ State Commission
U. Dispute Redressal Commission
V. Old Age Homes
W.Society for Promotion of Youth & Masses (SPYM)
X. All the DLSAs for Door to Door Campaign

Application Deadline
May 15, 2022

Click here for the official Summer Internship notification by DSLSA.

Categories
Article blog

RAMIFICATIONS OF TAX EVASION & TAX AVOIDANCE ON ECONOMIC GROWTH & DEVELOPMENT

-Aryan Sinha

Abstract

Tax evasion and tax avoidance is a big problem in our country. There are many people in our country who are eligible &liable to pay tax, but they are not paying tax. As a result, government’s developments activities are jeopardized. So, we should know about the mechanisms of tax evasion, tax avoidance and its preventives measures. Tax evasion and tax avoidance are practices that have rotten out the revenue that ought to be generated by the government, and hence affect the economy of the country as a whole, in view of this, this research paper seeks to examine the reasons why people evade and avoid taxes, the methods used by people to achieve these.
Keywords: Tax Evasion, Tax Avoidance, Economic Development.

Introduction to Tax:

Taxes are the most important & major source of revenue of the modern governments. It is a compulsory levy, to be paid by the citizens who are liable to pay it which is imposed by the government. Let’s discern some important definition of Tax-

1. P.E. Taylor: “Taxes are compulsory payment to government without expectation of direct return in benefit to the tax payer”[1] .
2. Seligman: A tax is a compulsory contribution from the person to the government to defray the expenses in the common interest of all without reference to special benefits.
The above definitions makes it clear that taxes are compulsory contribution by the taxpayer to the government.

Characteristics of Tax:

“Characteristics of tax are as follows:
1. Tax is a compulsory contribution.
2. The assesses will be required to pay tax if is due from him.
3. Taxes are levied from government.
4. Common benefits to all.
5. No direct benefit.
6. Certain taxes levied for specific objectives.
7. Good tax system should be in harmony with national objectives.”[2]

Objectives of Taxation:

“Taxation is an integral source of revenue for the government. In order to accelerate economic development as well as to ensure the defense, administration, social welfare and other development activities government needs huge amount of resources. So the main objectives of tax are mentioned below:-

1. Raising revenue.
2. Removal of inequalities in income & wealth.
3. Implementing economic stability.
4. Control regional imbalances.
5. Capital accumulation.
6. Employment opportunities.
7. Preventing harmful conventions.
8. Diversification of resources.
9. Exports.
10. Healthy standard of living.”[3]

Introduction to Tax Evasion:

Tax evasion may be defined either as the concealment of taxable object and the failure to pay tax in time either by the assessee or his representative. So it is illegal. In case of tax evasion, tax liability is reduced or tax is not paid at all. Tax evasion is an attempt to escape tax liability whether wholly or partially by breaking the tax law and it is a criminal act since it is achieved by making false declarations such as under reporting income or over reporting relieves and allowances. Tax evasion usually entails taxpayers deliberately misrepresenting the true state of their affairs to the tax authorities to reduce their tax liability, and includes, dishonest tax reporting such as declaring less income, profits or gains than actually earned; or overstating deductions.

Methods of Tax Evasion:

“Generally, any person adopts the following methods to evade tax:
1. Delay in paying dues.
2. Declaration of false Income Tax Returns (ITR).
3. Forged financial statements.
4. Using forged documents to claim exemption.
5. Not declaring annual income.
6. Bribing Taxation Officials
7. Storing wealth outside the country.”[4]

Causes of Tax Evasion:

“The followings are the main causes of tax evasion by the tax payers:
1. The weak structure of the countries’ tax system.
2. Lack of implementation of the tax legislation.
3. Inflation.
4. High tax rates.
5. Informal economy.
6. Permanent regularization regimes like moratoriums, whitewashing, etc.
7. Promotional regimes like tax incentives, exemptions and tax expenses.
8. Lack of peoples’ tax integrity.
9. Inefficiency of the functioning of the Tax Administrations.
10. Proliferation of special tax regimes for attracting investments like tax rulings.
11. Digital economy, with the significant technological development.
12. Maximum people of our country, who are liable to pay tax, are not conscious about to pay tax.
13. Due to critical tax rules in our Tax legislations, alike some other countries a tax payer can take advantages of these rules to his own benefit.
14. Loyal tax payers do not get any benefit directly. So, others people are not encouraged to pay tax.
15. Non-enforcement of measures relating to appropriate punishment.
16. High tax rate discourages taxpayers to pay tax.”[5]

Introduction To Tax Avoidance

Tax avoidance is the minimization of tax liability by the tax-payer or his agent by efficient tax planning. It is possible by fully abiding with the tax laws and meeting tax liabilities. Thus tax avoidance takes the advantages of the loopholes in the existing taxation laws. The avoider is a smart taxpayer who finds loopholes in the taxation laws (and related laws) to reduce tax liability.Usually the avoidance of tax is done by the people who opt to keep their money with themselves and not it to the governments.

Common Methods of Tax Avoidance:

“Tax avoidance can be adopted by any of the following way:
• Reduce the tax bill is by making a contribution to Individual Retirement Account (IRA). In IRA either you deposit your money as a contribution or pay for your taxable income. A well informed person would obviously choose investment over expenditure.
• Deduct the direct or indirect expenses which are incurred in making investments.
• The tax rate on short term capital gain is always higher than long term capital gain held assets. If you are making up mind to sell the assets, make sure you sell the old ones first.
• If your property value can be reduced by any of the reasons with the help of local valuers, you can reduce the tax arising on real estate taxes.
• If possible, install the energy-efficient components in your home as well as offices. These installations help you gain on the tax credits. Tax credits can be used to reduce your tax invoice. Energy-efficient components save on your energy bill in the long term duration.
• If you can get home finance easily, then you should take a home loan to reduce your tax liability by allowing the interest paid part as your expense.”

Effects of Tax Avoidance:

“By analyzing the loopholes of taxation, the tax payers can reduce their tax liability. This concept is known as tax avoidance.There can be multiple effects of tax avoidance. The following effects are:
• Reduction in public revenue collection which jeopardizes the growth of a country.
• There is a serious impact on the black money which is piled up due to tax avoidance, and can lead to inflation.
• Loyal Taxpayers start having a sense of inequality as compared to those who are avoiding tax and not facing any repercussions.
• Delay in government projects due to restrictions in the amount of spending”[7]

Definition of Economic Development:

Economic development is a term that generally refers to the sustained, concerted effort of “policymakers” [8]and “community”[9] to promote the “standard of living”[10] and “economic expansion”[11] in an adequate area.

Indicators of Economic Development:

• “Real GDP per capita.
• GDP at purchasing power parity (PPP).
• Levels of absolute poverty.
• Starvation levels.
• Safe Water
• Employment rate.
• Initial years of education.
• Number of doctors available for the country.
• Average life expectancy.
• Applicability of international trade.
• Infrastructure Development
• Share of agriculture in economy.”

Repercussions of Tax Avoidance & Tax Evasion in Economic Development:

Tax revenue/income is used to build the infrastructure, to invest in social security programs, in various poverty elevation program(s). But due to tax evasion and tax avoidance above the development activities are jeopardized. Both hamper the social welfare. It obliges the government to borrow loan that affects the economic development.Economic growth is linked with budget. It is evident that higher government`s income support to do large budget and large budget helps to accelerate economic development of a country. But due to tax avoidance and tax evasion a lot amount of revenue is not collected. As a result the government has to shortcut the budget.In capitalist and mixed economy, private sector is supposed to play an important role in investment and development. But sometimes direct investment by the governments is a necessity. Due to tax evasion and tax avoidance the government cannot supply the expected fund for investment.The government has to take various plans for economic development. But lack of fund the plan cannot be implemented. If the people would not avoid tax, the government could implement the plans. Due to this the government cannot ensure the employment opportunity. Because the government needs financial assistance to create employment opportunity. It also disrupt the structural development such as roads, bridges, transportation, industrial development etc.Social security schemes cannot be provided fully by the government due to lack of fund. Tax evasion and tax avoidance is the main obstacle to create sufficient fund.If the taxation laws are not sufficient to check the tax evasion and avoidance, it may lead to the development of a culture of evasion. So a vicious cycle of tax evasion may take place.Tax evaded incomes are used for conspicuous consumption in the form of buying luxurious goods. As a result honest tax payers find various methods of tax evasion and tax avoidance. So the stability of the society will be affected. Such illegal money is also transferred abroad weakening the economy of the country.Due to tax evasion and tax avoidance, a huge amount of tax revenue is lost. As a result the government cannot provide basic needs for mass people.Infrastructure Development expenses fall due to tax evasion and tax avoidance. It affects the distribution function of wealth of the government and adversely affects the economic development of a country.From the above discussion it is evident that tax evasion and tax avoidance affect the economic development of a country severely. Because a large part of the government income is collected by tax revenue.

Case Laws

R.K Garg vs. Union of India” [13]In this case government highlighted the disclosures of having possession of black money, was challenged. In this case the contention was raised that this measure is taken only to avoid the crime related to tax evasion which are becoming the white collar crimes and this is not to encourage such kind of activities because this will help only to get back all the money which has been taken over and hide by the people.This was just an initiative to disclose all that money which has been taken wrongfully by the criminals through tax evasion. This was later considered as an important measure because it ultimately helps in stopping such kind of things as the Indian govt. does not have complete set of effective rules that is why it is to be considered a good method.

Mc Dowell& Company Limited Vs. The Commercial Tax Officer” [14]and “Azadi Bachao Andolan Vs. Deputy Commissioner Of Income Tax”[15] :In both of these cases, the territoriality on tax laws of India was highlighted and these both were in contrary to each other because the ratios given in there were totally different.The Supreme Court held that India doesn’t have any jurisdiction over the matters of tax evasion in these cases because the question of territoriality is there and since the tax evasion has taken place outside the territory of India then the tax authorities of India cannot exercise their jurisdiction in the present case.

Similarly, in Birla & Star controversy cases, the subject of tax planning was highlighted and supreme court gave its verdict that organizing of such commercial affairs in order to avoid taxes and distribution of taxes in such order is not at all prohibited. Because they ultimately help in removing such crimes.

Conclusion:

The effect of tax evasion and tax avoidance in our economy cannot be overemphasized. The revenue of government has been affected the current taxation system being used gives room for loopholes, the corrupt tax officials, the lack of adequate information and many more have worsened the situation. In addition, a reduction in tax rate is even not an optimum solution to the problem, simply because some people would still attempt to evade or avoid taxes no matter the rates of taxes. The fact is that the change of mentality of tax payers is the main solution of tax evasion and tax avoidance

References:
1. Moheeth M, “Tax: Characteristics, Objectives & Canons”, Accounting Notes https://www.accountingnotes.net/financial-management/public-revenue/tax-characteristics-objectives-and-canons/10021(Visited on 11:24 AM, Jan 21).
2. Ethiopian Public Finance & Taxation, “Chapter II: Meaning & Characteristics of Taxation”, Hahu Zone https://hahuzone.com/meaning-and-characteristics-taxation(Visited on 12:41 PM, Jan 22).
3. Ethiopian Public Finance & Taxation, “Chapter II: Meaning & Characteristics of Taxation”, Hahu Zone https://hahuzone.com/meaning-and-characteristics-taxation (Visited on 01:19 PM, Jan 22).
4. Methods of Tax Evasion”, BankBazaar https://www.bankbazaar.com/tax/tax-evasion.html (Visited on 02:40 PM, Jan 23).
5. Alfredo Collosa, “Which are the causes of Tax Evasion ?”, Inter-American Center of Tax Administrations (CIAT) https://www.ciat.org/which-are-the-causes-of-tax-evasion/?lang=en (Visited on 03:33 PM, Jan 24).
6. Common Methods of Tax Evasion”, EDUCBA https://www.educba.com/tax-avoidance/ (Visited on 04:01 PM, Jan 25).
7 . Sannihitha Ponaka, “Effects of Tax Avoidance”, Nov 18 2021, Scripboxhttps://scripbox.com/tax/tax-avoidance/#What_are_the_effects_of_tax_avoidance (Visited on 04:38 PM).
8. “Policymaker”, Collins Dictionary https://www.collinsdictionary.com/dictionary/english/policymaker(Visited on 05:20 PM, Jan 25 PM).
9. “Community” Cambridge Dictionary https://dictionary.cambridge.org/dictionary/english/community (Visited on 05:55 PM, Jan 25).
10. Michael J Boyle, “Standard of Living”, Feb 11 2021, Investopedia https://www.investopedia.com/terms/s/standard-of-living.asp (Visited on 06:17 PM, Jan 25).
11. “Economic Expansion”, Wikipedia https://en.wikipedia.org/wiki/Economic_expansion (Visited on 06:42 PM, Jan 25).
12. “Indicators of Economic Development”, Economics Help https://www.economicshelp.org/blog/glossary/indicators-of-economic-development/ (Visited on 07:11 PM, Jan 26).
13. R.K Garg Vs. Union of India 1981 133 ITR 239 (India).
14. Mc Dowell & Company Ltd. Vs. The Commercial Tax Officer 154 ITR 148 (India).
15. Azadi Bachao Andolan Vs. Deputy Commissioner of Income Tax 263 ITR 706 (India).

About the Author:-

This Article has been written by Aryan Sinha, 4th Year law (BBA+LLB(H) student at Galgotias University, Greater Noida.

Categories
LEGAL FORMATS

Legal Notice Format: Vacating the property given on the lease (Tenant Eviction)

REGD.A.D.

To,
_____________

SUB.: LEGAL NOTICE

Dear Sir/Madam,

Under to the instructions of my client ___________________, resident of _________________ I do hereby serve you with the following Legal Notice: –

1. That interalia my client is the co-owners of ……………………………………

2. That the lease deed dated ……………………. made between my client of the ONE PART and you on the OTHER PART in respect of premises No. ………………………………….. (hereinafter referred to as demised premises).

3. That the lease deed has expired by efflux of time on the ………….. day of ……………, 202_.

I hereby call upon you to quit, vacate and deliver quiet and peaceful possession of the demised premises on or before the ………………….. day of …………………., 202_, failing which my client will file a suit against you for recovery of possession of the demised premises and for damages, which may be sustained by her by reason of your willfully retaining possession thereof and for breach by you of the covenants contained in the lease deed.

A copy of this Notice is kept in my office for record and further necessary action and you are also advised to keep the copy safe as you would be asked to produce in the court.

____________
ADVOCATE

Categories
Legal

Indian Army JAG 2022 recruitment process begins; how to apply

The Indian Army has invited applications from unmarried law graduates for the Short Service Commission course in the department of Judge Advocate General.

Age: 21 to 27 years

Educational Qualification:

• Law Graduate (3 year/5 year course) with minimum 55% aggregate marks.
• The candidates should be eligible for registration as an advocate with the Bar Council of India/State.
• The candidate should be from a College/University recognized by the Bar Council of India.

Tenure of service

Short Service Commission will be granted to candidates for 14 years i.e. for an initial period of 10 years extendable by a further period of four years.

Officers who are willing to continue to serve in the Army after the expiry of the period of ten years of Short Service Commission may, if eligible and suitable in all respects, be considered for the grant of Permanent Commission (PC) in the tenth year of their service.

Those SSC officers who are not selected for grant of PC but are otherwise considered fit and suitable, will be given options to continue as SSCOs for a total period of 14 years (including the initial tenure of 10 years) on expiry of which they will be released from the army.

Salary structure

Those selected for the post of lieutenant will be paid between ₹56,100 and 1,77,500; Captain (Rs61,300 – Rs1,93,900); Major (Rs69,400 – ₹2,07,200); Lieutenant Colonel ( ₹1,21,200 – ₹2,12,400); Colonel ( ₹1,30,600 – ₹2,15,900); Brigadier ( ₹1,39,600 – ₹2,17,600) and Major General ( ₹1,44,200 – ₹2,18,200).

How to Apply

• Applications will only be accepted online on the official website.
• Click on ‘Officer Entry Apply/Login’ and then click ‘Registration’ (Registrations not required, if already registered on the website.
• Fill the online registration form after reading the instructions carefully.
• After getting registered, click on ‘Apply Online’ under the Dashboard.
• A page ‘Officers Selection – ‘Eligibility’ will open. Then click ‘Apply’ shown against Short Service Commission JAG Entry Course. A page ‘Application Form’ will open.
• Candidates must click on ‘Submit Now’ each time they open the application for editing any details.
• The candidates are required to take out two copies of their application having Roll Number, 30 minutes after the final closure of the online application on the last day.

For complete Application Guidelines, click here. 

Deadline:  February 17th, 2022

Categories
Article

All you Know about Vakalatnama

What is Vakalatnama?

A Vakalatnama is a document submitted in the court authorised by the client to represent or plead before any court, hearing or other authority.

The Vakalatnama is valid till the death of the client or advocate. In Urdu language Vakalatnama means power of an attorney.

Vakalatnama is signed by the party and its lawyer, if the party is illiterate then its thumb impression is put.
In case of more than one party, all the signatures are signed on the Vakalatnama.

How is Vakalatnama filled?

Vakalatnama is the document will be presented to the court under the Advocates Act, 1961 by the lawyer to declare the consent of the applicant. Vakalatnama authorizes the lawyer to represent the applicant in the court and to be filed with appearance in court. It is a legal document and through Vakalatnama, the person on his behalf authorizes the advocate to act in the legal proceedings of the court. Vakalatnama containing the details related to the plaintiff, the defendant and the advocate, with the signature or thumb impression of the advocate and the appointment of the advocate.

Important things:

It is necessary to file any suit before the Advocate Court before it is presented by the advocate.
Vakalatnama is filed by a registered advocate only.
If the party is unable to attend for any reason, the lawyer forgives the attendance by a waiver.
The time limit for the advocacy is until the death of the client or the lawyer or till the end of the case or the cancellation by the party.

According to Order 3 Rule 4 of the Code of Civil Procedure 1908.

The name of the court to which the suit is to be filed.

Name of the party.

Full name of the plaintiff or defendant, name and full address of his father or husband or guardian.

Name of the advocate who is being appointed to appear before the court.

Signature of plaintiff or defendant (in case of more than one plaintiff or defendant, signature of all).

Signature of Advocate.

Decisions:

Baru Singh V/s Babu Ram Sharma, 1997 All L J 842

“Signed Vakalatnama is required to be obtained by an advocate from his client when it is to be filed in Court or Tribunal to plead on behalf of his client. There is no need for Vakalatnama in case of performing any other legal work like drafting, opinion etc.

Uday Shanker Triyar v. Ram Kaleshwar Prasad Singh and Anr.SC 2005
“Vakalatnama, a type of Power of Attorney, is an important document, which allows and authorizes the advocate appearing for a petitioner to do several acts as an Agent, which are binding on the petitioner who is the principal.”

About the author –

This article is authored by Prabhjot Singh, third year B.B.A. LL.B. (H) student at Galgotias University, Greater Noida.

Categories
Article

CONCEPT OF GIFT UNDER HINDU LAW

Abstract

A Very Short Introduction provides insight into what hindu law is, but why it is the way it is. How have laws had to respond to social changes when it comes to the distribution of gift? Since ancient times we have seen rising problems related to the gift distribution among hindu law. How do families deal with the chaos of distribution of gifts? Family law has recently been challenged to keep up-to-date with the social and scientific changes which affect it. What is a gift? What leads to distribution of gift? What rights should they have? What are the essentials of Gift? What are the ways of accepting Gifts? What are the new dilemmas which will be faced by families?

Keywords: Hindu law, Gift, Revocation of Gift.

Introduction:

Hindu Law defines gift as “the creation of another person’s proprietary right after the extinction of one’s own proprietary right within the material of the gift.” Gift under Shastric Hindu law needn’t be writing, but a present there under law isn’t valid unless it’s amid delivery of possession of the themes of the gift from donor to the donee. Mere registration of a deed of a present isn’t like delivery of possession; it’s not therefore sufficient to pass the title of the property from the donor to the donne.

Definition of Gift:

According to the Mitakshara, “A gift consists within the relinquishment inconsiderately of one’s title of property, and therefore the creation of the proper of another. The creation of another man’s right is completed or that other’s acceptance of the gift, but not otherwise.

Perquisites of Gift under Hindu law:

1. Donor

The one that makes a present within the property is mentioned as donor. He should be of sound mind and major. He should possess die right to form the gift i.e., he must have absolute ownership over the topic matter of gift.

2. Donee

The one that receives the gift is mentioned as donee. The gift is completed by the acceptance of the donee. He must be alive . He can even be an incapacitated person, however therein case somebody else should accept the gift on his behalf.

3. Subject Matter of the Gift

Following properties are often validly and legally gifted to a person—

  • Separate or self-acquired property, whether governed by Mitakshara or Dayabhaga.
  • Stridhan.
  • Impartible estate if not prohibited by custom.
  • Coparcenary interest under Dayabhaga.
  • Whole of the ancestral property by the daddy in Dayabhaga.
  • Any a part of the property received by a Hindu widow in inheritance, which may tend by her to her daughter or son-in-law at the time of marriage.
  • Movable properties inherited by a widow under Mayukhavidhi.

4. Acceptence:

There is difference of opinion between Dayabhaga and Mitakshara with reference to the need of acceptance for a present . Under Mitakshara law the acceptance is must for the completions of a present whereas it’s not so under Dayabhaga.

5. Formalities

Possession of the property was treated necessary to be transferred to the donee. With reference to movable properties, the transfer of possession to the donee was sufficient. Except for immovable property, Vijnaneshwara has addressed some special formalities for a legitimate gift. He has emphasised the necessity of consent of villagers, relatives, neighbours and heirs and gold and water for the gift of property (land). During this way the consent of the persons of those categories was necessary from several angles. If a person of the above category raised any objection to the gift he could catch on decided during a court of law in his favour.

Modes of Acceptance of Gift under Hindu Law:

1. Mental Acceptance

2. Verbal Acceptance

3. Corporeal Acceptance

Under Hindu law, the following property can be disposed of by Gift:-

1. A Hindu entitled to eliminate his separate or self-acquired property by gift. As long as if the members of the family who are legally entitled to urge maintenance from that person, claim against that gift, then the Hindu cannot dispose his property by gift.

2. Under Dayabhaga School, a coparcener can gift away his coparcenary interest, subject to the claims for maintenance of these members who are entitled to be maintained by him. Under Mitakshara School, A coparcener cannot do so except when he’s the only surviving coparcener.

3. Under Dayabhaga law, a father can eliminate even the entire of the property by gift, subject to the claims of these who are entitled to be maintained by him.

4. Consistent with Section 14 of the Hindu Succession Act, 1956[1]. A female Hindu can eliminate all her property by gift. But in ancient Hindu law, she was entitles to eliminate only her stridhana property by gift.

5. A widow can eliminate a neighbourhood of her widow’s estate by gift to her daughter or son-in-law on the occasion of the daughter’s marriage. But it can’t be done by a will.

Revocation of Gift:

Under Hindu law, once a present is complete, it’s binding on the donor, and it can’t be revoked by him, unless it’s been obtained by fraud or under influence. Ganga Bakash vs. Jagat Bahadur[2]. The courts have also observed that where a present is formed by a Hindu widow, the burden lies upon the donee to point out that the widow made the gift with a full understanding. In Deo kura vs. Man kura[3] , a present was put aside during a suit brought eight years after the date of the gift on the bottom that the document of the gift wasn’t explained to the donor.

References:
1.Raman Devgan, No Petition for divorce to be presented within one year of marriage, Devgan https://devgan.in/hma/section/14/ (Visited on Apr 20, 08:03 PM)
2. Ganga Baksh V. Jagat Bahadur (1914) 16 BOMLR 306 (India)
3. Deo Kura V. man Kura (1894) (India)

About the Author:-

This Article has been written by Aryan Sinha, 4th Year law (BBA+LLB(H) student at Galgotias University, Greater Noida.

Categories
Article blog

INEQUALITY IN THE MARRIAGEABLE AGE FOR MEN AND WOMEN

Introduction

Child marriage is one of the many social evils prevailing around the globe. Child marriages throughout history have inflicted horror on women and children majorly. It is a sad truth that every one in five girls is married off before she attains the age of 18 and in the least developed countries about 40% girls and about 12% girls are married before attaining 18 years and 15 years of age respectively [1].

India being home to diversity in culture, traditions and religions is home to people who are governed by the personal laws or/and the secular laws. Marriage is one such part of life which is governed by these laws to prevent any wrong or crime.

Women empowerment and gender equality are the two terms which cover not only a prominent and serious set of challenges but also trivial sets of challenges which may get ignored on a daily basis. The Parliament has given us laws to uphold the fundamentals of the Constitution of India but the question whether it is constitutional and just to have different marriageable ages for men and women is relevant and requires attention.

The Laws Prevailing

Child marriage is a gross human rights violation which has been prohibited by laws but still remains prevalent among community customs and patriarchal mindset. With deteriorating status of women in India, whether it be social, economic or political, instances of child brides and child marriages increased rampantly. This ignited a nation-wide campaign for various social reforms and led to legislative measures in the 18th century, Age of Consent for Marriage [2]. The Indian Penal Code, 1860 accredited penal obligations on consummation of marriage with girls who had not attained puberty.

The Indian Christian Marriage Act, 1872 under section 60 (1) limited the age for marriage at 21 years and 18 years for men and women respectively. In view of the ill-effects of child marriage, various states also made efforts to curb the problem by setting marriageable ages. The first state to do so was Mysore, through the Mysore Infant Marriage Prevention Act, 1894 which set a minimum age of marriage for girls, followed by Baroda Early Marriage Prevention Act, 1904.

The Child Marriage Restraint Act, 1929 or Sarda Act was enacted which provided for 18 years and 14 years of for marriage of men and women respectively. On the contrary, in 1936 the Parsi Marriage Act provided for 21 years and 18 years for men and women respectively. After independence, the Special Marriage Act, 1954 set this bar at 21 years and 18 years and with the codification of Hindu law, the Hindu Marriage Act in 1955 followed the same. The Sarda Act and its amendments of 1978 were replaced by the Prohibition of Child Marriage Act, 2006 while maintaining the same ages of 21 years for men and 18 years for women.

The Fundamental Rights

In the current legal scenario, with heightened sensitisation about gender justice and equality and with current progression in social, economic and political aspects, the tree of disparity in marriageable age for men and women finds its roots in the soil of patriarchy. As the years pass-by the soil gets watered by narrow-mindedness, social conditioning and negligence of the society.

i. Article 14

In our society, there are notions and beliefs which are a result of patriarchal conditioning, the wife being younger than the husband is a result of such conditioning. This conditioning further gets divided into-
rational of protecting virginity and sexuality of a girl and thereby getting her married at an early age, and
rational of a girl reaching maturity at a younger age than a boy and thereby handle the matrimonial caregiving duties.

It can be agreed that the onset of puberty differs from child to child but the assumption of a woman attaining psychological, emotional and physiological maturity to handle matrimonial responsibility earlier in comparison to a man let alone educational and economic capability is equal to turning a blind eye on the equality before law to all persons guaranteed under Article 14.

The 13th Report of Parliamentary Standing Committee, noted that there are physical, intellectual, psychological and emotional differences between the sexes. This takes a very narrow understanding of individual competency and the gender roles. It can be understood that the requirement for attaining educational and economic independency is a necessity for a man, bread-earner of the family, and not for a woman, child-bearer and caregiver, in order to conform to their gender specific roles in a matrimony.

Justice Sikri in NALSA v. UOI opined, “Anything which is not reasonable, just and fair is not to be treated equally and therefore is violative of Article 14” [3].

Class legislation under Article 14 is forbidden but it does not forbid reasonable classification which satisfies:
a) The classification should not be arbitrary, artificial or evasive and be based on an intelligible differentia.
b) The differentia adopted must have a reasonable or rational nexus for the object which is sought to be achieved.

Prohibition of Child Marriage Act has the object to prevent the child marriages primarily with the aim of protecting young girl from becoming bride but this gender based classification goes on to frustrate this object rather than facilitating it. It assumes that a young age as 18 is enough to attain economic and educational capabilities for a woman while for a man the extended 3 years provides him with more time for receiving education, realization of dreams and finding economic outlook of the world per se. The section 4(c) of Special Marriage Act sets a minimum age for the parties to achieve a certain level of developmental capacity necessary for marriage. The requirement of gender based classification is the nexus of the developmental capacity necessary and the gender of the person. This linkage is based on the rationality of stereotypical gender roles of a husband and wife in a household and thus lacks reasonability.

As per Justice Mukherjee in Anwar Ali Sarkar case, the well settled principle of law underlying Article 14 is not the application of sale rules of law to all persons within Indian Territory or the availability of same remedies but that persons similarly circumstanced shall be treated alike in the instance of both privileges and liabilities [4].

The Supreme Court’s opinion in Anuj Garg case can be interpreted that by setting different minimum ages of marriage for men and women ends ups victimizing women in the name of protection against child marriage or early marriage which may subject them to abuse, harassment or other evils. Also, with the advent of modern State and sensitization of gender equality, new models of security must be developed [5].

ii.  Article 15

The age disparity for marriage provided in the sections of the statutes is a discrimination based on the ground solely of ‘gender’. The three year difference provides an advantage to a man to grow, learn and become independent and a rational adult over a woman.

As per the data of National Family Health Survey 2015-16, 6% of women who were currently in the age group of 20-24 years got married at the age of 15, 26.8% of women by the age of 18 years and 48% by the age of 20 years. On the same lines, a man can be said to be discriminated against for he has to wait for 3 more years to get married in comparison to a woman irrespective of the fact that 18 is considered as the age of majority for both the genders in majority provisions except marriage.

As per Navtej Singh Johar case, discrimination grounded in and perpetuating from stereotypes about a class constituted by the grounds prohibited under Article 15(1) will not survive the constitutional scrutiny. A ground of discrimination, direct or indirect narrow or stereotypical understanding of the role of the sex, will not be distinguishable from the discrimination which is prohibited under Article 15 of Constitution on the grounds of ‘sex’ only. It is also to be understood that the characteristics grown from stereotypes if associated with an entire class of people which are constituted as groups under the prohibited grounds of Article 15 will not be considered as a permissible reason to be discriminated against. Such kind of discrimination is nothing but the violation of constitutional guaranteed against discrimination under Article 15(1).

iii.  Article 21

Right to life is fundamental to human existence and it contains all those ingredients which makes a human’s life meaningful, worth living and complete. The parties to a contract should have equal rights and so the people entering in a marriage should be bestowed with equal rights.

Justice Dipak Misra concurring in the Voluntary Health Association case, mentioned the words stated by Charles Fourier, “The extension of women’s rights is the basic principle of all social progress” [6]. In this context it is also relevant to Justice Sikri’s concurring opinion in NALSA v UOI case. He emphasised on the concept of dignity and opined that all democratic nations are familiar to the basic principle of dignity and freedom. Democracy is required to respect and develop the free spirit of human beings which is responsible for all progress in human history and democracy is also a method by which an attempt can be made to raise the living standard of the people and provide opportunities to every person to develop his/her personality.

In the present issue, the age disparity on the basis of gender under various provisions goes on to solidify gender roles in the society. Such a solidification, places women on a lower ground than men and in a state of dependency to the husband in the matrimony and thereby violates the right to live with ‘dignity’.

International Obligation of India

Article 16 of Universal Declarations of Human Rights provides for the equal right to marry and the Convention on the Elimination of all Forms of Discrimination against Women was accepted and ratified by India in the year 1993.
The international conventions and declarations comprise diverse human rights elements that can provide an efficient framework to address the complexity of the inequality faced by women. They bring together the formal and substantive equality and define discrimination in terms of purpose and effect and indivisibility of all human rights when framing these rights in the terms of non-discrimination and equality.

From the Law Commission’s Consultation Paper, it can be derived that an international convention which is consistent with the fundamental rights of our Constitution, can be interpreted into the Article 14, 15, 19 and 21 in order to enlarge their meaning and intent and promote the constitutional philosophy [7].

Conclusion

Marriage is an institution which is highly affected by the cultural and social norms and beliefs. Child marriage is a human rights violation but they should also be considered as a health issue which not only impacts the physical well-being but also the mental health of a woman or child. The social conditioning and biases regarding the ‘desirable age’ at which a woman should be married off is facilitated by the laws backing them. As our country is progressing, it is appropriate to adopt the viewpoint of around 125 countries which have universal age of marriage in their country. There is a need to bring parity in the minimum age of marriage for men and women to take a step towards equality. At last one can be hopeful that empowering women legally will help in empowering women socially.

References:
[1]. www.unfpa.org/child-marriage
[2]. Siba Pada Sen, Social and Religious Reform Movements in the Nineteenth and Eighteenth Centuries.
[3]. National Legal Services Authority v Union of India (2014) 5 SCC 438 [99].
[4]. State of West Bengal v Anwar Ali Sarkar AIR 1952 SC 75.
[5]. Anuj Garg v Hotel Association of India (2008) 3 SCC 1.
[6]. Voluntary Health Association of Punjab v Union of India (2013) 4 SCC 1.
[7]. Law Commission, Reform on Family Law (Law Com, 2018) para 1.38.

About the author –
This article has been written by Shivangi Kale, Third year B.A.LL.B. (Hons) student at Dr. Ram Manohar Lohiya National Law University, Lucknow.