India: Tax & Corporate News Bulletin - Vol. XI, No. 1 - April-May 2015

INCOME TAX

Finance Act, 2015

On May 14, 2015, the Finance Bill, 2015 got assent of the President and enacted as the Finance Act, 2015 (No.20 of 2015) vide Gazette Notification dated May 14, 2015.

Income from letting to be taxed under the head "business income" where the main object were to acquire properties and let out the same

The Supreme Court in the case of Chennai Properties & Investments v. CIT: 56 taxmann.com 456 (SC) relying on its decision of Karanpura Development Co. Ltd. vs. CIT : 44 ITR 362 (SC), observed that the deciding factor for determination of nature of income is the activity/ operations of the assessee which can be judged from the objects of the assesseecompany, and accordingly held that since the assessee was engaged in the business of letting of properties, the income arising therefrom was taxable under the head "Income from business" and not "Income from house property" as contended by the Revenue.

The aforesaid decision of the apex Court provides valuable guidance as to head of income under which rental income is to be taxed, as it has been a vexed issue as to whether rental income is assessable under the head "income from house property" or as "business income".

In several decisions, the Courts/ Tribunal have held that the income derived by the company from letting/ exploiting the property was income received from property and fell under the specific head of "Income from house property" [refer East India Housing and Land Development Trust Ltd. v. CIT: 42 ITR 49 (SC); National Storage Private Limited vs. CIT: 66 ITR 596(SC); Shambhu Investments Pvt Ltd vs. CIT: 263 ITR 143(SC)].

The current judicial thinking however appears to be veering towards the view that income derived from letting out of space along with host of services and facilities, where the intention is not to provide space simplicitor but a composite facility in an organized manner, should constitute business income, by considering the activities holistically as constituting business venture for earning profits [refer - ACIT v. Saptarshi Services Ltd: 265 ITR 379 (Guj); CIT vs. Pateshwari Electrical & Associates Industries Ltd: 197 CTR 353 (All); Goel Builders: 331 ITR 344 (All.); Sane & Doshi Enterprises [TS-224- HC-2015(BOM)]

On the basis of the decision of the apex Court in Chennai Properties (supra), the assessees engaged in the business of renting out properties, can contend that income from lease of property is to be assessed as income from business and not income from house property.

No requirement to deduct tax at source on additional liability arising due to foreign exchange fluctuation

In the case of Honda Motorcycle & Scooters India (P.) Ltd v. ACIT: 56 taxmann.com 238 (Del Tri), the Delhi Bench of the Tribunal examined the issues relating to disallowance of proportionate amount of depreciation under Section 40(a)(i) of the Income Tax Act, 1961, on intangible assets, being technical know-how acquired from outside India in view of non-deduction of tax at source in respect of additional cost paid by the assessee due to change in the foreign currency rate.

The Tribunal observed that in terms of the provisions of section 195 of the Income Tax Act, tax is required to be deducted at the first stage itself, when the amount of income is either credited to the account of payee or at the time of payment itself, whichever is earlier. The Tribunal held that once the deduction of tax at source has been made at the time of credit, which event occurs first, there can be no question of once again making deduction of tax at source on full or in part at the time of payment thereof and accordingly, there would be no warrant for making disallowance under Section 40(a) (i) of the Act.

Airline revenue under Code Sharing Agreement outside the purview of Article 8 of Indo-US Tax Treaty

In the case of Delta Airlines Inc. vs. ADIT : ITA No. 1256/ Mum/ 2014, the Mumbai Bench of Tribunal denied relief under Article 8 of Indo-US Tax Treaty to the assessee, a US company engaged in carriage of cargo/ passengers through air in International Traffic, on revenue derived from code sharing arrangement, on the ground that the crucial test for application of Article 8, viz., the aircraft to be owned/ leased/ chartered by the assessee was not satisfied in the facts of the case. It was observed that the assessee was merely booking its customers under the code sharing agreement, on non-exclusive basis, for international traffic on the flights operated by third parties from India essentially as an agent and not as charterer, and the code sharing agreement could not be regarded as space/ slot charter falling within the purview of Article 8 of Indo-US Tax Treaty.

Central Board of Direct Taxes (CBDT) notifies Income Computation and Disclosure Standards (ICDS)

By Notification no. 33/2015 dated March 31, 2015, the CBDT has notified 10 (Ten) ICDS, which are effective from April 1, 2015 and required to be followed by all assesses following the mercantile system of accounting for the purposes of computation of income chargeable to tax under the heads "Profit and gains of business or profession" or "Income from other sources". The notified ICDSs would have a material bearing on the computation of total income.

INDIRECT TAX

GST Constitutional Amendment Bill passed by the Lok Sabha

On May 6, 2015, the Constitution (122nd Amendment) (GST) Bill, 2014 ("GST Constitutional Amendment Bill") was passed by the Lok Sabha. The proposed Goods and Services Tax (GST) seeks to harmonise the mosaic of state and central levies into a single national level tax. The Bill now needs to pass muster in the Rajya Sabha. GST is planned to be rolled out from April 1, 2016.

RBI/ FEMA/ FDI POLICY

Consolidated FDI Policy Circular of 2015

The Department of Industrial Policy and Promotion, Ministry of Commerce and Industry, Government of India ("DIPP") has issued Consolidated FDI Policy Circular of 2015 on May 12, 2015 which subsumes all press notes/ clarifications/ press release in relation to Foreign Direct Investment (FDI) issued by DIPP, which were in force as on May 11, 2015 and reflects the FDI policy as on date.

The said Consolidated Policy Circular of 2015 is accessible at http://dipp.nic.in/English/policies/FDI_Circular_2015.pdf

Review of FDI Policy for Insurance sector

RBI has reviewed the FDI Policy for Insurance sector. Accordingly, with immediate effect, FDI in Insurance sector shall be permitted up to 49% subject to the revised conditions specified in the Press Note 3 (2015 Series) dated March 2, 2015. Also, a new activity, viz. "Other Insurance Intermediaries appointed under the provisions of Insurance Regulatory and Development Authority Act, 1999 (41 of 1999)" has been included within the definition of 'Insurance'.

The salient features of FDI Policy for Insurance sector are as under:

  • FDI in Indian insurance company shall be limited up to 49% of the paid-up equity capital.
  • FDI up to 26% shall be under automatic route, and beyond 26% and up to 49%, shall be with Government approval.
  • FDI in Insurance sector is subject to the Insurance Act, 1938 and that the companies bringing in FDI shall obtain necessary license from the IRDA for undertaking insurance activities.
  • the Indian insurance company shall ensure that its ownership and control remains at all times in the hands of resident Indian entities.
  • Foreign portfolio investment in an Indian insurance company shall be governed by FEMA (Transfer of issue of security by a person resident outside India) Regulations, 2000 and SEBI (Foreign Portfolio Investors) Regulations.
  • Any increase of foreign investment of an Indian insurance company shall be in accordance with the pricing guidelines specified by RBI under FEMA.

The Circular may be accessed at the following link:

http://rbidocs.rbi.org.in/rdocs/Notification/PDFs/94APDIR080415.pdf

[Source: A.P. (DIR Series) Circular No. 94 dated April 8, 2015]

Operational Guidelines for International Financial Services Centre (IFSC)

In furtherance to the Foreign Exchange Management (International Financial Services Centre) Regulations, 2015 dated March 2, 2015, RBI has by Circular no. 92 dated March 31, 2015, framed the following operational guidelines:

  • A financial institution or a branch of a financial institution set up in the IFSC and permitted/ recognized as such shall be treated as person resident outside India. Therefore, their transaction with a person resident in India shall be treated as a transaction between a resident and nonresident and shall be subject to the provisions of Foreign Management Act, 1999 (FEMA) and the Rules/ Regulations/ Directions issued thereunder.
  • The financial transaction in this context shall mean making or receiving payment, drawing, issuing or negotiating any bills of exchange or promissory note, transferring any security or acknowledging any debt. Similarly, financial service shall mean any activity which a financial institution is permitted to carry on by the respective Act of the Parliament or Government of India or any Regulatory Authority empowered to regulate the concerned financial institution.
  • Subject to the provisions of Section 1(3) of FEMA, nothing contained any other Regulations shall apply to a financial institution or a branch of a financial institution set up in an IFSC unless there is some express and specific provision to that effect in Foreign Exchange Management (IFSC) Regulations 2015, or the other Regulations.

IFSC shall have the same meaning given in Section 2(q) of the Special Economic Zones Act, 2005 (28 of 2005). Accordingly, the Central Government may approve the setting up of an IFSC in a Special Economic Zone (SEZ) and may prescribe the requirements for setting up and operations of such IFSC.

The Circular may be accessed at the following link:

http://rbidocs.rbi.org.in/rdocs/Notification/PDFs/92APDIRIFSC0104.pdf

[Source: A.P. (DIR Series) Circular no. 92 dated March 31, 2015]

Highlights of the Foreign Trade Policy, 2015-2020

By Notification no. 1/2015-2020 dated April 1, 2015, the new Foreign Trade Policy (2015-2020) has been notified by the Ministry of Commerce & Industry, Department of Commerce, Director General of Foreign Trade (DGFT), the new Foreign Trade Policy (2015-2020). The following are the salient features of the new Foreign Trade Policy:

A. Simplification of Reward Schemes

1. Merchandise Exports from India Scheme (MEIS)

(a) Earlier, there were 5 different schemes (Focus Product Scheme, Market Linked Focus Product Scheme, Focus Market Scheme, Agri. Infrastructure Incentive Scrip, etc.) for rewarding merchandise exports with different kinds of duty scrips with varying conditions (sector specific or actual user only) attached to their use. Now all these schemes have been merged into a single scheme, namely - 'Merchandise Exports from India Scheme' and there would be no conditionality attached to the scrips issued under the scheme.

(b) Rewards for export of notified goods to notified markets under MEIS shall be payable as percentage of realized FOB value (in free foreign exchange). The debits towards basic customs duty in the transferable reward duty credit scrips would also be allowed adjustment as duty drawback. At present, only the additional duty of customs / excise duty / service tax is allowed adjustment as CENVAT credit or drawback, as per Department of Revenue (DoR) Rules.

2. Service Exports from India Scheme (SEIS)

(a) Served from India Scheme (SFIS) has been replaced with Service Exports from India Scheme (SEIS). SEIS shall apply to 'Service Providers located in India' instead of 'Indian Service Providers'. Thus, SEIS provides for rewards to all Service providers of notified services, who are providing services from India, regardless of the constitution or profile of the service provider.

(b) The rate of reward under SEIS would be based on net foreign exchange earned. The reward issued as duty credit scrip, would no longer be with actual user condition and will no longer be restricted to usage for specified types of goods but be freely transferable and usable for all types of goods and service tax debits on procurement of services / goods. Debits would be eligible for CENVAT credit or drawback.

3. Duty credit scrips to be freely transferable and usable for payment of custom duty, excise duty and service tax

(a) All scrips issued under MEIS and SEIS and the goods imported against these scrips would be fully transferable.

(b) Scrips issued under exports from India schemes can be used for the following:-

(i) Payment of customs duty for import of inputs/ goods including capital goods, except items listed in Appendix 3A.

(ii) Payment of excise duty on domestic procurement of inputs or goods, including capital goods as per DoR notification.

(iii) Payment of service tax on procurement of services as per DoR notification.

(c) Basic Customs Duty paid in cash or through debit under Duty Credit Scrip can be taken back as Duty Drawback as per DoR Rules, if inputs so imported are used for exports.

4. Status Holders

Criteria for export performance for recognition of status holder have been changed from Rupees to US dollar earnings. The new criteria are as under:-

B. Boost to "MAKE IN INDIA"

1. Reduced Export Obligation (EO) for domestic procurement under EPCG scheme: Specific Export Obligation under EPCG scheme, in case capital goods are procured from indigenous manufacturers, which is currently 90% of the normal export obligation (6 times at the duty saved amount) has been reduced to 75%, in order to promote domestic capital goods manufacturing industry.

2. Higher level of rewards under MEIS for export items with high domestic content and value addition: It is proposed to give higher level of rewards to products with high domestic content and value addition, as compared to products with high import content and less value addition.

C. Trade Facilitation & Ease of Doing Business

1. Online filing of documents/ applications and paperless trade in 24x7 environment

2. Simplification of procedures/ processes, digitisation and egovernance

Besides, the new FTP includes new initiatives for EOUs, EHTPs and STPs; measures for facilitating & encouraging Export of defence exports; promotion of e-Commerce exports, etc.

For more details, please refer the following URL: http://dgft.gov.in/

SEBI/ CAPITAL MARKETS

SEBI (Delisting of Equity Shares) Regulations, 2009

SEBI has amended the SEBI (Delisting of Equity Shares) Regulations, 2009.

Under Delisting Regulations, a delisting offer is considered successful if post-offer shareholding of the promoters is higher of (a) 90% of total shares, or (b) aggregate percentage of promoter's preoffer shareholding and 50% of the offer size. The amendment specifies that an offer for delisting would be considered successful if post-offer shareholding of promoter, along with persons acting in concert, is 90% of total issued shares, excluding shares held by custodian towards issue of depository receipts, and, at least 25% of the public shareholders (holding shares in demat account) on the date on which the Board of Directors of the company approves the delisting, should have participated in the Reverse Book Building process. However, this condition shall not apply if it is shown to the stock exchanges that the promoters/ acquirers have delivered the letter of offer to all public shareholders through registered/speed post/courier/hand delivery with a proof of delivery or through email with a read receipt.

Under the prior Delisting Regulations, the final price at which the promoter was required to facilitate other shareholders to exit was the price at which the maximum shares were tendered under the Reverse Book Building process. This has been amended to provide that the final price shall be the price up to which the aggregate number of shares offered, if accepted, will enable the promoter along with persons acting in concert to reach the threshold of 90%.

Prior to approval of the delisting proposal, the Board of Directors of the company must make disclosure to the recognized stock exchanges that the promoters or acquirers have proposed to delist the company and must also appoint a merchant banker to conduct a due diligence of trading in shares or off market transaction, during the preceding 2 years, by top 25 shareholders as on the date of meeting convened to approve the delisting proposal.

SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 2011

SEBI has amended the SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 2011.

Under the amended Takeover Code, in the event the acquirer makes a public announcement of an open offer for acquiring shares of a target company in terms of regulations 3, 4 or 5, he may instead delist the company in accordance with the provisions of the Securities and Exchange Board of India (Delisting of Equity Shares) Regulations, 2009, provided that the acquirer shall have declared upfront his intention to so delist at the time of making the detailed public statement.

Where an offer to delist the target company has failed, the acquirer is required to make an announcement within 2 working days in respect of such failure. Thereafter, the acquirer shall be liable to proceed with the open offer as per the Takeover Regulations.

Consequently, the acquirer will file the draft letter of offer with SEBI within 5 working days of the announcement. Shareholders who have tendered shares in the delisting offer can withdraw their shares, within 10 working days from the date of such announcement.

Shareholders who have not tendered their shares in acceptance of the delisting offer shall be entitled to tender their shares in acceptance of the open offer.

In case of failure of delisting offer, offer price shall stand enhanced by an amount equal to a sum determined at the rate of 10% per annum for the period between the scheduled date of payment of consideration to the shareholders and the actual date of payment of consideration to the shareholders. For this purpose, the scheduled date shall be the date on which the payment of consideration ought to have been made to the shareholders in terms of the timelines in these regulations.

In a manner similar to Delisting Regulations, amendment to the Takeover Code has permitted tendering of shares and their settlement through the stock exchange mechanism.

COMPANIES ACT

The Companies (Amendment) Bill, 2014

On May 13, 2015, the Companies (Amendment) Bill, 2014 was passed by the Rajya Sabha. The Bill was earlier passed by the Lok Sabha on December 17, 2014. The Amendment Bill introduces certain amendments in the provisions relating to removal of minimum paid up share capital, punishment for contraventions for acceptance of deposits from the public, reporting of fraud by auditors, related party transactions, jurisdiction of special courts to try certain offences, etc.

Supreme Court upholds the constitutional validity of National Company Law Tribunal (NCLT) and National Company Law Appellate Tribunal (NCLAT)

On May 14, 2015, the Constitution Bench of the Supreme Court passed a historic judgment in Madras Bar Association v. Union of India and Anr. upholding the validity of the 2002 amendment with certain conditions. The Supreme Court has held the provisions of Section 409(3)(a) and Section 409(3)(c) of the Companies Act, 2013 to be invalid. The Supreme Court addressed the issues of –

(i) constitutional validity of NCLT and NCLAT;

(ii) qualification of technical members of NCLT/ NCLAT; and

(iii) constitution of Selection Committee.

Earlier, the amendment to the Companies Act 1956 to set up the NCLT was rendered unconstitutional by the Madras High Court on several counts. The judgement further mentions that it is the high time that these Tribunals start functioning now and the Government shall take remedial measures as per the directions contained in this judgment at the earliest, so that the NCLT and NCLAT are adequately manned and start functioning in near future. Now, the Companies Act, 2013 need minor amendment to be in line of Supreme Court decision.

By this judgment, the apex court has cleared the way for operationalisation of National Company Law Tribunal (NCLT) and National Company Law Appellate Tribunal (NCLAT). This, in turn, would fully operationalise the Companies Act, 2013.

The Companies (Incorporation) Rules, 2015

Ministry of Corporate Affairs (MCA) by Notification dated May 1, 2015 has notified the Companies (Incorporation) Amendment Rules, 2015. Salient features of the amended Rules are as under:

Rule 5 of the Companies (Incorporation) Rules, 2014 ["Incorporation Rules"] which provided for fine on One Person Company (OPC) or any officer thereof for contravention of the Companies (Incorporation) Rules, has been omitted and new Rule 7A has been inserted in the Incorporation Rules to provide that if OPC or any officer of such company contravenes the provisions of these rules, the OPC or any of its Officers shall be punishable with a fine which may extend to INR 5,000/- and with a further fine which may extend to INR 500/- for every day after the first offence during which such contravention continues.

Criteria for conversion of Private Company into OPC (Rule 7(1)

Position before amendment

A private company other than a company registered under Section 8 of the Act having –

  • paid up share capital of fifty lakh rupees or less, or
  • average annual turnover during the relevant period is two crore rupees or less,

may convert itself into one person company by passing a special resolution in the general meeting .

Position after amendment

A private company other than a company registered under Section 8 of the Act having –

  • paid up share capital of fifty lakh rupees or less, and
  • average annual turnover during the relevant period is two crore rupees or less.

may convert itself into one person company by passing a special resolution in the general meeting

Integrated process for incorporation

A new Rule 36 has been inserted to provide for integrated process for incorporation whereby application for allotment of Director Identification Number (DIN) up to three directors, reservation of a name, incorporation of company and appointment of directors of the proposed company shall be filed in Integrated Form No. INC 29, for OPC, Private Company, Public Company and Producer Company, with the jurisdictional Registrar, along with the fee of INR 2,000/- in addition to the registration fee as specified in the Companies (Registration of Offices and Fees) Rules, 2014. The jurisdictional Registrar shall process INC-29 including application for allotment of Director Identification Number. The Certificate of Incorporation shall be issued by the Registrar in Form No. INC-11.

The facility to file integrated application for incorporation in Form no. INC-29 is optional and has come into force with effect from May 1, 2015.

For more details, please refer the Notification at the following URL: http://www.mca.gov.in/Ministry/pdf/AmendmentRules_01052015.pdf

The Companies (Auditor's Report) Order, 2015

The Central Government has notified the Companies (Auditor's Report) Order, 2015 dated April 10, 2015 {"CARO-2015"} specifying the matters required to be specified in the Auditor's Report for the financial year ending March 31, 2015. CARO shall apply to every company, including a foreign company as defined under Section 2(42) of Companies Act, 2013. Exemptions from applicability of CARO has been granted to:

i. banking company as defined in Clause (c) of Section 5 of the Banking Regulation Act, 1949

ii. insurance company as defined under the Insurance Act, 1938

iii. company licensed to operate under Section 8 of the Companies Act, 2013

iv. One Person Company as defined under clause (62) of Section 2 of the Companies Act, 2013

v. Small Company as defined under clause (85) of Section 2 of the Companies Act, 2013

vi. Private limited company with a paid up capital and reserves not more than rupees fifty lakh; and which does not have loan outstanding exceeding rupees twenty five lakh from any bank or financial institution; and does not have a turnover exceeding rupees five crore at any point of time during the financial

As compared to CARO-2003, the reporting requirements under the CARO- 2015 have been reduced considerably (i.e., from 21 Clauses to 12 Clauses). The said Order is accessible at:

http://www.mca.gov.in/Ministry/pdf/Companies_Auditors_Report_Order_2015.pdf

Clarification w.r.t. Loan and Investment by a Company under Section 186(7) of the Companies Act, 2013

  • Section 186 (7) of the Companies Act, 2013 states that no loan shall be given under this section at a rate of interest lower than the prevailing yield of one year, three year, five year or ten year Government Security closest to the tenor of the loan. The Ministry of Corporate Affairs has now clarified vide General Circular no. 6/2015 dated April 9, 2015 that in cases where the effective yield for the tax free bonds is greater than the yield on the one, three, five, ten year Government security, there shall be no violation of the Section 186 of the Companies Act, 2013.

The said General Circular is accessible at: http://www.mca.gov.in/Ministry/pdf/General_Circular_06_2015.pdf

Clarification w.r.t. Payment of Managerial Remuneration by Listed Companies and their Subsidiaries in terms of Schedule XIII of the Companies Act, 1956

  • By General Circular no. 07/2015 dated April 10, 2015, Ministry of Corporate Affairs (MCA) has issued a clarification about the managerial person(s) of listed companies and their subsidiaries who, subject to meeting conditions prescribed, were allowed to pay remuneration in excess of limits prescribed in Para C, Part II, Schedule XIII of the erstwhile Companies Act, 1956, without approval of the Central Government.
  • Accordingly, the managerial person of such companies may continue to receive remuneration for his/ her remaining term in accordance with the terms and conditions approved by company in terms of the provisions of Schedule XIII of the erstwhile Companies Act, 1956 even if the part of his/ her tenure falls after April 1, 2014.

The said General Circular is accessible at: http://www.mca.gov.in/Ministry/pdf/General_Circular_07_2015.pdf

SPECIAL ECONOMIC ZONE (SEZ)

Incentives to SEZ Units under Foreign Trade Policy

By Notification no. 1/2015-2020 dated April 1, 2015, the new Foreign Trade Policy (2015-2020) has been notified by the Ministry of Commerce & Industry, Department of Commerce, Director General of Foreign Trade (DGFT), the new Foreign Trade Policy (2015-2020).

Under the new Foreign Trade Policy (April 1, 2015 to March 31, 2020), which comes has into force w.e.f. April 1, 2015, the incentives provided under Chapter 3 have been extended to SEZ units.

Accordingly, the SEZ Units would be eligible to avail incentives under Merchandise Exports from India Scheme (MEIS) and Service Exports from India Scheme (SEIS).

Guidelines for Power Generation in Special Economic Zones (SEZs)

By Directive no. P.6/3/2006-SEZ dated April 6, 2015 issued by Ministry of Commerce & Industry, Department of Commerce (SEZ Division), it has been decided that –

  • the Guidelines for Power Generation in SEZ issued on March 21, 2012 stand withdrawn with effect from April 1, 2015, and
  • the Guidelines for Power Generation issued on February 27, 2009 stand resorted.

In pursuance of the above decision, henceforth setting up of power plants shall be allowed only in the non-processing area of SEZs. Further, those power plants which are presently situated in processing areas of SEZs, shall be demarcated as nonprocessing areas and no operation and maintenance benefits will now be available for such power plants.

The said Notification is accessible at: http://sezindia.nic.in/writereaddata/GeneralNotifications/1111.pdf

BIOGRAPHY RELEASE

"THE JOURNEY OF O P VAISH – CELEBRATING LIFE WITH GRATITUDE"

The biography of Founder of the Firm, Late Shri O. P. Vaish titled 'Celebrating Life with Gratitude' was released on April 29, 2015 by Hon'ble Justice Mrs. Leila Seth at New Delhi.

'Celebrating Life with Gratitude' tells the evocative story of Senior Advocate and social activist, O P Vaish, who battled difficult circumstances in his childhood to study and dream big despite humble beginning. The book details his journey as an officer in the prestigious Indian Revenue Service, his forays into the private sector when few would have given up a government job with its clout, and later by diving into the world of tax law.

He built Vaish Associates into one of India's eminent full service law firms that attracted some of the top national and international clients. His values and insistence upon caring for his employees ensured that they stayed on with him for decades. His philosophy of being grateful for everything he had, gave him a different lens to look at the people around him. He was an active Rotarian and led Rotary in its efforts to eradicate polio. He actively campaigned to make body donation popular. He led from the front by donating his body for medical research. He was a role model for many.

© 2013, Vaish Associates, Advocates,
All rights reserved with Vaish Associates, Advocates, 10, Hailey Road, Flat No. 5-7, New Delhi-110001, India.

The content of this article is intended to provide a general guide to the subject matter. Specialist professional advice should be sought about your specific circumstances. The views expressed in this article are solely of the authors of this article.

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Vinay Vaish, Partner, Vaish Associates Advocates
 
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however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

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