|
Legislative and Regulatory Update
|
You
now have the option of customizing
your manupatra round-up. This means that you get updates
on the areas of interest that you select. You may change your
preferences at any time you wish to. If you do not customize
your round up you will continue to get the updates on all
areas
To
customize your round-up now click here.
_____________________________________________________________________ |
|
India Centric
Online Legal & Business Database
Bringing
forth new efficiency and unparalleled results to research
efforts. |
| In This Issue |
|
[No.179] |
December
20, 2006 |
|
|
|
|
To keep you informed about the latest Legislative
and Regulatory information manupatra.com
publishes this e-roundup highlighting the recent changes
brought about by the Notifications/Acts/Bills /Ordinances
etc.
About
manupatra.com
http://www.manupatra.com/
provides comprehensive and easy to use legal and related
information over the Internet. Our database covers Central
Laws, Judgments of Supreme Court and High Court (full
text of the judgments from 1950 onwards ), Orders of
Tribunals, Bills, Notifications, Circulars and
more
Key features of manupatra are
 |
Content is derived from reliable primary and
secondary sources |
|
Database is updated on a daily
basis |
|
Electronic Ready Reckoner to view the
judgments under a particular section of an Act /
Subject |
|
Powerful search engine with user friendly
interfaces |
|
Search in any one court/year or multiple
courts/year |
|
Hyper-linking of
documents |
|
Updated
modules on WTO, Anti Dumping, Arbitration,
Investment Destinations Abroad, Capital Markets,
Taxation, Environment, Cyber & IT Laws, IPR,
Corporate Laws, Industrial Policies, Foreign
Trade,
Forex & Banking and
more |
For subscription to manupatra.com or for more
details please log onto http://www.manupatra.com/
or call us at 0120 2531811 or send an email to : contact@manupatra.com
If at any stage you wish to stop receiving the
e-roundup please click here to unsubscribe.
|
|
www.manulawjobs.in
A niche for Legal, Tax & Finance Jobs crafted away from the clutter of IT & BPO jobs…
|
| |
|
Supreme
Court |
|
The present petition filed against the Union of India and leading national daily newspapers and news agencies involved a substantial question of law and public importance regarding the freedom of speech and expression under Article 19(1)(a). It was the pointed out by the petitioner that freedom of speech and expression enjoyed by the newspaper industry was not protecting children from harmful and disturbing materials published by the newspapers. The petitioner requested the court to issue directions to the authorities to strike a balance freedom of speech and expression enjoyed by the press and its duty to protect minors from abuse, exploitation and harmful effects of such expression and to provide for a regulatory system.
The Apex Court examining all relevant factors was of the view that the prayer of the petitioner seeking directions to the respondents could not be maintained as sufficient protection has been laid down under the Press Council of India Act, 1978, the Indian Penal Code etc. The court was of the view that if any news item or picture offend any person they may avail of the remedies available under the present legal framework. Dismissing the petition the Supreme Court held that imposition of a blanket ban on the publication of certain photographs, news items etc. would amount to prejudicing the matter and lead to a situation where newspapers would publish materials catering only to children and adolescents, depriving adults of entertainment permissible under the norms of decency. The court held that the fertile imagination of anybody especially of minors should not be a matter that should be agitated in the court of law. The court however noted that the request made by the Press Council of India to amend Press Council Act, 1978 should be seriously looked into and appropriate amendments be made in public interest.
The present petition were filed challenging the legality of orders passed by the Speaker of Haryana Legislative Assembly on 25th June, 2004 disqualifying the petitioners from being members of the Haryana Assembly. The petitioners were elected to the Haryana Assembly in election held in February 2000. The impugned order of disqualification was challenged on the grounds of violation of natural justice. It was contended that the orders of disqualification were made in haste with a view to deprive them of their right to vote on 28th June, 2004 so as to help the Chief Minister whose son was a candidate in elections to Rajya Sabha. The petitioners contended that they were entitled to protection of paragraph 3 of the Tenth Schedule as their original political parties had split and they being single member parties in the Assembly, on joining the Indian National Congress, they had fulfilled the stipulation that when more than one third members join another party, there is a split.
After examining the relevant factors, the Supreme Court was of the opinion that to determine whether an independent member has joined a political party the test that was to be applied was whether the independent member had given up his independent character on which the electorate elected him. Applying that test, the Supreme Court held that Speaker had not committed any illegality in concluding that the petitioners had joined the Indian National Congress. The writ petitions were accordingly dismissed.
The appeal was filed challenging the order passed by the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi whereby it was held that excise duty was not leviable on refrigeration plant/cold storage plant/Central air-conditioning plant/caustic soda plant. It was pointed out by the appellant that the fabrication of such plants out of duty paid bought out amounts to manufacture of a new marketable commodity and therefore, excise duty is payable.
Taking into account several cases in which the issue relating to excisability of plants and machinery assembled at site has been determined, and Circular No. 58/1/2002-CX dated 15th January, issued by the Government of India, Ministry of Finance (Department of Revenue), Central Board of Excise & Customs, New Delhi, the Supreme Court held that the view of the CEGAT cannot be faulted. The appeals were accordingly dismissed.
|
High Courts |
|
Delhi
The petitioner retired from service on 31.12.2004. The petitioner suffered sudden severe heart attack on 11.07.2005. He was admitted in the hospital where he incurred a hospital bill of Rs. 1,31,992/-.The petitioner became a member of CGHS scheme and was issued an identity card by the MCD for the treatment of the petitioner and his family under the monthly pension scheme on 27.07.2005. However, when he submitted the bills, which was incurred by him earlier, before the MCD, they refused to reimburse the same. A writ petition was filed challenging the non-reimbursement.
The issue to be resolved in this writ petition was that whether a pensioner's medical bills should be reimbursed even if he contributes and becomes member of the scheme after the treatment. The precedents regarding this issue states that even if employee contributes after availing medical facilities and becomes member of the scheme after treatment, he is entitled to reimbursement. The writ petition was accepted and the high Court gave directions to the respondent to reimburse the medical bills of the petitioner within a month from today.
Bombay
The Petition was filed for reviewing the existing "Development Control Regulations for Greater Bombay, 1991". The petitioners through a PIL challenged the government’s TDR (Transfer Development rights) policy, which permits the use of TDR anywhere in the Suburbs (and in particular in Suburban wards HW (Bandra), HE (Khar-Santacrus), KE (Andheri) and L (Kurla) while prohibiting the use of TDR in all the Island City wards (on the ground that such island city wards are congested and overcrowded), was ex facie arbitrary, discriminatory and ultra vires Article 14. And further this would result in manifold increase in the population and traffic congestion in the suburbs, which will consequently result in the reduction of open spaces between the buildings and other related problems.
The Court held that the existing infrastructure in terms of parks, playgrounds, open spaces, water supply, sanitation and sewerage disposal, ambient quality of air and public transport was inadequate. There was serious congestion on roads and railways. But bearing the objectives of Slum Rehabilitation Scheme for those residing in slums or protected structures the challenge under Articles 14 and 21 has to be rejected. The exercise of discretionary power under DCR regulations was justified on account of it being reasonably necessary for the public health, safety, morals or general welfare and ecological considerations. And yet another ground for upholding the TDR policy and the discretion to use in certain areas was that chance of decent accommodation should be given to those in the protected slums also.
The Petitioners in the instant writ petitions sought to challenge the constitutional validity of the latter part of clause (v) of the first proviso to Section 17(2) of the Income-tax Act, 1961 to the extent it treats the medical reimbursement above Rs.15,000 per annum as taxable perquisite for the salaried persons. All the three petitions are based on grievances of individual employees who were employees of either reserve bank of India or State bank of India and have undergone treatment in various hospitals and bills of which has been reimbursed by the bank. All the petitions arose when the medical expenses incurred by the bank on their treatment were added to their taxable income and was asked to meet the tax liability.
The High Court observed that the word perquisite would also include all such benefits, amenities, advantages or payments which an assessee gets from his employer. Section 17(2) (iv) includes in the definition of "perquisite" any sum paid by the employer in respect of any obligation which, but for such payment, would have been paid by the assessee. In proviso (ii)(a), it is provided that where an employer incurs the expenditure for an employee or his family member on his medical treatment in a hospital run by the Government or by local authority or any other hospital approved by the Government, that expenditure will not be treated as perquisite. But if the expenses in a private hospital were not to be reimbursed by the employer, the employee would be required to honour the obligation. If the employer reimburses that expenditure, it will have to be included under Sub-clause (iv) of Section 17(2) in view of the wide sweep of this clause and hence has to be treated as a taxable perquisite. The challenge of constitutional validity could not be accepted as there is a reasonable classification in the provision made under the statute and therefore there was no need to set aside clause (v) of the first proviso to Section 17(2) of the Income-tax Act, 1961. Hence all the petitions and applications were dismissed.
|
| Ministry of Finance |
|
Service Tax
Circular No. 89/7/2006-ST Dated 18.12.2006 : The board of Service tax examined functions performed by certain sovereign/public authorities, like issuing of fitness certificate to the vehicles by the Regional Transport Officer (RTO), undertaking verification, approval and calibration of weighing and measuring instruments by the Regional Reference Standards Laboratories (RRSL). And after examination, it concluded that these are the statutory obligations, which have to be fulfilled in accordance with law, and the imposed fee is a compulsory statutory levy that further deposited into the Government treasury. Therefore, such an activity performed by a sovereign/public authority under the provisions of law does not constitute provision of taxable service to a person and, therefore, no service tax is leviable on such activities. However, if such authority performs a service, which is not in the nature of statutory activity and the same is undertaken for a consideration not in the nature of statutory fee/levy, then in such cases, service tax would be leviable, if the activity undertaken falls within the ambit of a taxable service.
|
RBI |
|
RPCD
Circular No. RPCD.CO.RF.BC 38/07.02.01/2006-07 Dated 11.12.2006 : The Reserve Bank of India, under sub-section (1) of Section 42 of the Reserve Bank of India Act, 1934 and in supersession of its notification RPCD.RF.No.6106/07.02.01/2005-2006 dated June 22, 2006 has increased Cash Reserve Ratio (CRR) of all Scheduled State Co-operative Banks (StCBs) and Regional Rural Banks (RRBs) by one-half of one percentage point of their net Demand and Time Liabilities (NDTL) in two stages. In first stage, the CRR on net demand and time liabilities would be 5.25 % and in second stage it would be 5.50% w.e.f. December 23, 2006 and January 06, 2007 respectively.
|
SEBI |
|
Secondary Market Department
Circular No. MRD/Dep/Cir- 20/06 Dated 11.12.2006 : In order to facilitate the comparison of DP tariff/charge structure, SEBI decided that Depository Participants (DPs) must submit to their depository, the tariff/charge structure every year, latest by 30th April, and also inform about the changes in their tariff/charge structure as and when they are effected. The depositories are also advised to make necessary amendments to the relevant byelaws and business rules for the implementation of the above decision immediately and to communicate to SEBI the status of implementation of the provisions of this circular in the Monthly Development Report. Such decision was taken by SEBI keeping in view the investors’ representation that the tariff/charge structure of the various Depository Participants (DPs) is not easily available for comparison so as to enable them to take an informed decision with regard to availing of the services of a particular DP.
Primary Market Department
Circular No. SEBI/CFD/DIL/BOND/1/2006/12/12 Dated 12.12.2006 : SEBI has been decided to establish, in the first phase, a system to capture all information related to trading in corporate bonds as accurately and as close to execution as possible through an authorized reporting platform. In the second phase of development, it is proposed to permit recognized stock exchanges having nationwide access to set up a corporate bond-trading platform to enable efficient price discovery and reliable clearing and settlement in a gradual manner. For the above-mentioned purpose, SEBI issued certain directions w.e.f. January 1, 2007, for example, (a) the term 'Corporate Bonds' shall include all listed debt securities issued by institutions such as Banks, Public Sector Undertakings, Municipal Corporations, bodies corporate and companies; (b) all issuers, intermediaries and contracting parties shall be granted access to the corporate bond-reporting platform for reporting of trades; (c) all Stock Exchanges to compulsorily communicate to SEBI, the status of the implementation of the provisions of this circular in Section II, item no. 13 of the Monthly Development Report from the month of January, 2007.
|
| International Legal
Cases and News |
|
Cases
The plaintiff worked as a car salesman for the defendants for five years. He left the company and later rejoined as a full-time employee. After seven months of his joining he took a medical leave and his employment was terminated after two months. Eligibility for leave under the Family and Medical Leave Act (FMLA)depends in part on an employee having been employed by the relevant employer "for at least 12 months. Whether and under what circumstances an employee who has had a break in service may count previous periods of employment with the same employer toward satisfying this 12-month requirement. The district court did not allow the suit of plaintiff and dismissed the same stating that the plaintiff could not combine his previous period of employment with his more recent period, and thus could not satisfy the FMLA's 12-month employment requirement. But the U.S. 1st Circuit Court of Appeals reversed the decision of the district court and held the since FMLA itself is ambiguous as to whether previous periods of employment count toward the 12-month requirement the regulations promulgated by the United States Department of Labor (DOL), as interpreted by the DOL, establish that previous periods of employment do count.
The plaintiff appellants challenged the logging project in the Glendale Resource Area of the Medford BLM District in Oregon, on the ground that the project violated the National Environmental Policy Act of 1969. The specific violation was alleged to consist of conducting an insufficient Environmental Analysis. The District Court concluded that because logging operations were over the action was mooted. But the U.S. 9th Circuit Court of Appeals reversed the summary judgment in favor of the Bureau of Land Management on mootness grounds and held that an environmental assessment (EA) was inadequate as it: 1) failed to disclose and consider quantified and detailed information regarding the cumulative impact of the logging project combined with past, present, and reasonably foreseeable logging projects; and 2) it was tiered to other documents that did not contain the requisite site-specific information about cumulative effects.
The plaintiff appellant wants to compete with Linux,
either by offering a derivative work or by writing an operating system from scratch,
but maintains that this is impossible as long as Linux and its derivatives are available for free. The plaintiff contended that it is a joint undertaking among users and creators of derivative works to undercut the price of any potential rival. But this was not accepted by the district judge and it was ruled that the plaintiff does not suffer antitrust injury. The issue to be resolved in this case was does the provision of copyrighted software under the GNU General Public License (“GPL”) violate the federal antitrust laws. The U.S. 7th Circuit Court of Appeals on appeal affirmed the dismissal of suit against corporate contributors to, and distributors of, the Linux operating system under the GNU General Public License (GPL) on the following grounds : 1) the distribution of free software does not constitute predatory pricing since prices would will never reach a monopoly stage; 2) individuals and organizations who accept the GPL are not "conspirators" involved in "restraint of trade"; and 3) the "fixing" of the price for software at zero benefits consumers, and thus survives scrutiny under the Rule of Reason.
News
In Libya five Bulgarian nurses and a Palestinian doctor were convicted and sentenced to death by Tripoli court on charges that they deliberately infected hundreds of children with the AIDS virus. The defendants were earlier convicted and sentenced to death. But due to international protests over the fairness of the proceedings a retrial was ordered. Bulgaria contends that the children were infected as a result of the unsanitary conditions in these hospitals. The legal experts also stated that these children were infected with HIV even before these nurses and doctor joined the hospital. The defendants however denied the charges of intentionally infecting the children. The verdict however is appealable.
The new N - deal signed by the President George W. Bush is a variation from the earlier stand taken by US which banned all nuclear relations with countries that were not signatories to the Nuclear Non-Proliferation Treaty. The new deal will let India receive U.S. civilian nuclear technology and fuel. The Indian government has agreed to safeguards and inspections at 14 civilian nuclear plants. Critics are of the opinion that this spark a nuclear arms race in Asia by boosting India's atomic arsenal. In India the deal faces a stiff opposition from the opposition party leaders as they fear that the deal would prevent India from conducting nuclear tests in the future and ultimately eliminate its (India's) nuclear weapons capability.
The French authorities probe into suspected labour code violations by low-cost airline easy Jet PLC and also as to whether the airline violated French law by hiring workers at Orly airport, south of Paris, with British work contracts. As per officials an enquiry has already started and an official was already taken to custody.
|
|
|
|
Disclaimer |
|
(1) While
all reasonable care has been taken to ensure that the
information provided in the "round up" and on the website is
fair and accurate the company and its promoters and employees
shall not in any way be responsible for the consequences of any
action taken on the basis of reliance upon the contents of this
"round up". |
|
(2) This is not a Spam
mail. You have received this mail because you have either
requested for it or someone must have suggested your name under
our various referral programs. Since India has no anti-spamming
law, we refer to the US directive, which states that a mail
cannot be considered Spam if it contains the sender's contact
information, which this mail does. In case this mail doesn't
concern you, please unsubscribe from mailing list.
Feedback
| |
