NATIONAL GREEN TRIBUNAL HAS BANNED THE USE OF DIESEL GENERATORS IN DELHI AND OTHER SURROUNDING PLACES

The Dakshin Haryana Bijli Vitran Nigam (DHBVN) has recently initiated legal action in the National Green Tribunal (NGT), Delhi, against an order passed by the Environmental Pollution (Prevention and Control) Authority dated 09-10-2019, which has banned the use of diesel generators (DG) in Delhi, Ghaziabad, Noida, Greater Noida, Faridabad, Gurgaon, Sonipath, Panipath and in Bahadurgarh.

The NGT Bench led by Chairperson, Justice Anand Kumar Goel, has passed an Order dated 18-10-2019 and held ‘that the Order passed by the Environmental Pollution (Prevention and Control) Authority is an undoubted need for protection of environment and public health.’ The Court further held that if the Appellant is unable to provide electricity, it is for the Appellant to find other ways and means to generate and provide electricity within the purview of law. This could not be a ground to use DG for generation of electricity as it violates the air protection laws.

Further, upon advice of the Central Pollution Control Board (CPCB), the NGT also banned the use of DG for generation of electricity, as the air quality in the cities has been ranging between moderate to poor and there is an undoubted need to protect the environment and public health.

Govind Gupta

Associate

The Indian Lawyer

GOVERNMENT OF INDIA HAS PLANNED TO ADDRESS THE ISSUE OF ECONOMIC SLOWDOWN

According to various newspaper reports dated 14th August 2019, recently there has been a sharp depression in the Indian economy owing to reduced investments and, reduced consumer demand in automobile and real estate sectors, etc as given below. As a result, the Gross Domestic Product (GDP) has reduced to 6.8 percent in 2018-19.

1- Automobile sector

The automobile sector in India is said to have been facing the worst crisis in 20 years. In the recent years, approximately 2.30 Lakhs people in India have reportedly lost jobs in this sector, 300 dealerships have shut down, and sales of cars, tractors, and two-wheelers have declined considerably.

2- Real Estate

The declining health of the real estate sector is a massive indicator of the falling Indian economy. According to various experts, the volume of unsold houses over the past one year has increased in the top cities of the countries. As a result, around 250 ancillary industries — bricks, cement, steel, furniture, electrical, paints etc – have been adversely affected.

3- Fast moving consumer goods

The fast-moving consumer goods (FMCG) companies have reported a decline in the April- June quarter 2019 in both rural and urban areas of the country. For instance, Hindustan Unilever has reportedly posted volume growth of 5.5 per cent in April-June quarter compared to 12 per cent last year, and Dabur has reportedly posted a growth of 6 per cent against 21 per cent last year.

Thus, various experts believe that the growth of the economy would rebound only if companies are able to adapt themselves to the current regime and also, if the Government works harder in the coming quarters to boost up the growth of the Indian economy.

Aakritee Gambhir

Associate

The Indian Lawyer

THE FINANCIAL ACTION TASK FORCE ORGANIZATION HAS ISSUED STERN WARNING TO BLACK LIST PAKISTAN FOR NOT ADDRESSING TERROR FINANCING ISSUES

The Financial Action Task Force (FATF), an inter-governmental body established in 1989 for setting global standards on anti-money laundering and combating the financing of terrorism, has recently listed Pakistan under the Grey List at a Meeting dated 18-10-2019 and issued a warning stating that the country would be blacklisted or declared to be a non-cooperative country, if it fails to take complete action against terror funding and money laundering by February 2020.

India, a member country of FATF since 2010, has, reportedly, been working with FATF to collect credible evidence against Pakistan’s inaction to address the issues of terror funding and money laundering in its country since 2018.

In the said Meeting, FATF made the following observations:

  1. That Pakistan failed to establish that it had addressed various issues pertaining to terror-financing and money laundering such as control of funding to terrorist groups such as Lashkar-e-Taiba and Jaish-e-Mohammad, seizure of terrorist properties, etc in its country.
  • That Pakistan, further, alleged that India has been pushing other countries to black list the country for non-compliance of its 27-point action plan against terror funding and money laundering in its country.

Thereafter, upon conducting various discussions at FATF, Pakistan reportedly managed to secure three votes from Malaysia, Turkey and China to stay out of the black list. However, it was mutually decided that a warning should be issued to Pakistan for complete compliance of its 27-point action plan against terror funding and money laundering by February 2020, failing which, FATF would black list the country.

According to various experts, if Pakistan is declared as a non-cooperative or black listed country by FATF, various banks and investors would withdraw their funding and investments from Pakistan. This would have an adverse effect on the economy of Pakistan.

Thus, various diplomatic officials across the world have expressed their gratitude to FATF for the strongly worded statement issued to Pakistan and further, hoped that Pakistan would either comply with all the 27 tasks assigned to it to address terror funding and money laundering issues in its country by February 2020 or would be black listed by FATF.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

ARTICLE 142 CANNOT BE USED TO MOCK THE LAW

In a recent case heard by the Supreme Court of India, namely Raj Kumar v. State of Uttar Pradesh decided on 04.10.2019 the Petitioner invoked the powers of the Supreme Court under Article 142 of the Constitution.

The Petitioner was selling milk which did not meet the standards prescribed by the Authorities. The sample which was collected in 1995 had the following values. Milk Fat in sample collected from Accused’s concern was found to be 4.6% and Milk Solid Non-Fat was was 7.7%, against the prescribed standard of 8.5%. The inspector therefore prosecuted the Accused and the Trial Court found him guilty. The said Judgement was upheld by Sessions and the High Court of Uttar Pradesh as well.

The Accused pleaded that the Court should give him the benefit of doubt regarding the values in the milk. He pleaded that the case was very old and milk samples had not been properly analyzed. To this the Supreme Court held that if he had doubt regarding the analysis he should have gone for another analysis while the matter was in the Trial Court.

In the Special Leave Petition(SLP) filed in the Hon’ble Supreme Court of India (SC) the Accused Appellant prayed that the Supreme Court should exercise the powers under Article 142 of the Constitution of India that allows the Supreme Court in the exercise of its jurisdiction to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.
Rejecting this prayer, the Bench of Justice Deepak Gupta and Justice Aniruddha Bose held that Article 142 cannot be exercised in a way to “make a mockery of the law”.

The Court held that the power under Article 142, in its considered view, cannot be used in total violation of the law. When a minimum sentence is prescribed by law, the Court cannot, in exercise of its power under Article 142, pass an order totally contrary to law. If such power could be used in a food adulteration case to impose a sentence lower than the minimum prescribed, then even in cases of murder and rape, this Court applying the same principles could impose a sentence less than the minimum.


This, in our opinion, is not the purpose of Article 142. We have no doubt in our mind that powers under Article 142 cannot be exercised in such a manner that they make a mockery of the law itself.”

GOVIND GUPTA

ASSOCIATE

THE INDIAN LAWYER



SUPREME COURT OF INDIA TO SOON HAVE A PERMANENT CONSTITUTIONAL BENCH

As per various newspaper reports, the Supreme Court of India is said to soon have a permanent Constitutional Bench from 01-10-2019, which would comprise of 5 judges who would adjudicate matters involving a substantial question of law relating to the interpretation of the Constitution of India 1950 as amended thereof (the Constitution).

The practice that was prevalent before these amendments was that a divisional bench i.e., a bench comprising two judges, referred a matter involving a substantial question of law to the constitutional bench. The Chief Justice of India then constituted a 5-judge bench after taking into consideration factors such as pendency of cases and engagement of judges in other matters.

But soon the Supreme Court would have a permanent 5 Judge Constitutional Bench, wherein, on a rotation basis, minimum 5 judges would get an opportunity to sit and decide any matter involving a substantial question of law, as per Article 145(3) of the Constitution.

Thus, with the setting up of a permanent 5 judge Constitution Bench and five 3 Judge Benches, a total of 20 out of 34 benches would be adjudicating questions pertaining to the Constitution and other important matters. The remaining 14 judges would continue to work as a 2 Judge benches.

With this permanent Constitutional Bench, one may hope that the system adopted to rotate judges will be fair, so that the opportunity is shared equally by every judge.

Aakritee

Associate

The Indian Lawyer

GOVERNMENT OF INDIA LAUNCHES ‘CONSUMER APP’ FOR SPEEDY REDRESSAL OF GRIEVANCES

The Union Minister of Consumer Affairs, Food and Public Distribution, Shri Ram Vilas Paswan, has recently launched a mobile application, namely, ‘Consumer App’ (App) on 01-10-2019, which would act as a one stop solution for speedy redressal of consumer grievances, in addition to consumer courts and consumer helpline.

Further, the App also enables the consumers to avail information across 42 sectors including consumer durables, electronic products, e-commerce, banking, insurance, etc. Besides a registered consumer may also give suggestions to the Government through the App. The App has been made available on both Android and Apple smartphones in English as well as Hindi languages.

A consumer may, upon registration, file a complaint through the App and track the status of the said complaint. The resolution of complaint is said to be a time bound process, whereby, grievances that are simple in nature would be resolved within 20 days, while those that require a feedback from companies or further enquiries, would be resolved within 2 months/60 days. Upon expiry of the said time period, if such complaint remains unresolved, then the consumer would be directed to approach the consumer forum.

This move is meant to be a step closer to the Government’s Digital India Scheme, whereby information about various sectors, consumer complaints, and grievance redressal would be provided in a speedy and efficient manner.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

MINISTRY OF ROAD TRANSPORT AND HIGHWAYS HAS NOTIFIED A PROCEDURE FOR VALIDATING AND IMPOUNDING ELECTRONIC DOCUMENTS RELATED TO MOTOR VEHICLES

The Ministry of Road Transport and Highways, India has recently issued a statement on 20-09-2019 stating that documents such as driving license, registration certificate, papers related to insurance, fitness and pollution check of motor vehicle, etc, may now be produced by a user of a motor vehicle either in its physical form or in its electronic form, when demanded by a police officer or any other person authorized by the State Government. It has further discussed a detailed Standard Operating Procedure dated 17-12-2018 (SoP) that enables enforcement agencies to validate information or impound various such document(s) in their electronic form.

As per the said SoP, the electronic version of the documents such as driving license, registration certificate, etc would be legally recognized by any enforcement agency in India, only after such documents are verified in the following manner:

  1. Electronic records to be available on DigiLocker Platform

The Ministry requires that a user has to store the electronic records of certain documents in an application (App) called the DigiLocker. This App was launched by the Ministry of Electronics and Information Technology on Android and Apple platforms in various mobile phones.

The said App enables the users to get the electronic version of a particular document such as permanent account number (PAN), driving license, registration certificate, education certificates, etc, verified from the concerned department or agency. Thereafter, the verified electronic document gets stored in the App.

2. Electronic records to be available on mParivahan Platform

The data related to insurance of vehicles, driving license, registration certificate of motor vehicle, etc may also be verified and stored in the mParivahan App launched by the Ministry of Road Transport and Highways.

3. Electronic records to be verified through eChallan Platform

eChallan App is a platform, whereby the concerned enforcement officer may enter the credentials of a particular document and validate the information. The said App may also be used to create an eChallan for any violation or offence committed by the user and update their offence history in the eChallan database. The violator may then pay the penalty online and get the case disposed of at the earliest.

Thus, the Government of India has legally recognized and treated the verified electronic records at par with the original documents as per the provisions of the Information Technology Act, 2000 as amended thereof.

This would enable the user to only carry their mobile phones, and not physical documents, to produce verified e-documents to enforcement agencies and also, reduce the burden and cost of maintaining inventory or physical records, reduce the harassment to collect physical documents after payment of penalties, etc.

Further, such verified electronic records also enable the enforcement agencies across the country to have access to the database of a particular user including his offence history, pending payments of penalties, any other recommendations for suspension or blocking of driving license, etc and further, ensure fast, transparent and accountable system in India.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer

UNITED STATES-CHINA TRADE WAR

United States (US) and China are locked into a bitter trade battle. Trade War is basically a situation where countries restrict each other’s trade by imposing tariff or quota on imports. Over the previous year, the two largest economies in the world have enforced tariffs on billions of dollars’ worth of goods of each countries. US president Donald Trump has long accused China of unfair trading practices and theft of intellectual property. While China on the other side believes that US is trying to curb its rights.

Negotiations are continuous but have proved to be a failure. Both parties avoid roll back on tariff thereby leading to perpetual conflict.

Initially US started by imposing tariffs on as much as 25% on USD 34 billion on Chinese imports to which China responded by retaliatory tariffs of 25% on US goods worth and equivalent USD 34 billion which included inter alia soyabean, automobiles, and marine products. The latest round targeted Chinese imports, from meat to musical instruments with a 15% duty. On the other hand, Beijing hit back with tariffs ranging from 5% to 25% on US goods. Its latest tariff strike included a 5% levy on US crude oil, the first-time fuel has been hit in the trade battle.

Due to this ongoing trade war nine major economies around the world including the United Kingdom, Russia, Singapore are on the brink of recession or already there. According to Bloomberg Economists report, uncertainty over trade could lower world domestic product by 0.6 per cent in 2021. In the recent past, central banks across Europe, Australia and Asia including India, have already cut interest rates in response to the broadening fallout from the trade war, or are preparing to do so.

The tariff imposed by both the countries are said to damage trade agreements under World Trade Organisation. This war could weaken investment, unsettle financial markets and slow the global economy. But while everything is up in the air currently, one thing is for sure: The tariff war between the world’s two biggest economies is going to hurt China more. While the US economic output is expected to dip by 0.6 per cent, China’s GDP is expected to lower by 1 per cent. Meanwhile China is already running out of US imports that it can target here on.

Aakritee Gambhir

Associate

The Indian Lawyer

CORPORATE TAX DEDUCTIONS

On 20 September, 2019, the Indian Government introduced the Taxation Laws (Amendment) Ordinance, 2019 to make certain amendments to the Income Tax Act, 1961 (the IT Act). The changes include a reduced Corporate Tax.

Below are some of the key changes:

In order to promote growth and investment, a new provision has been inserted in the IT Act which will be effective from April 1, 2019, to allow any Indian company an option to pay income tax at the rate of 22%, subject to the condition that they will not avail any tax exemptions or tax incentives that are provided under the IT Act. The effective corporate tax rate for these companies will work out to be 25.17% inclusive of surcharge and education cess. It has also been proposed that such companies will not be required to pay Minimum Alternate Tax (MAT).

Manufacturing Companies:

In order to attract fresh investment in the manufacturing sector and to provide a boost to the “Make in India” initiative, a new provision has been added in the IT Act which will be effective from April 1, 2019, to allow a new Indian company that is incorporated on or after October 1, 2019, making fresh investments in the manufacturing sector, an option to pay income tax at the rate of 15%.

This benefit will be available to companies that do not avail any tax exemptions or tax incentives and commences its production activities on or before March 31, 2023. The effective tax rate for these companies works out to 17.01% inclusive of surcharge and cess. It has also been proposed that such companies shall not be required to pay MAT.

Hotels with room tariffs of up to Rs 1,000 need not pay any GST. For those with tariffs of Rs 1,001-7,500, the tax will be 12%, and for those offering rooms at more than Rs 7,500 a night, the levy will be 18%.

Tax on Buyback of Shares:

Previously, unlisted companies were alone liable for a buyback distribution tax. With effect from July 5, 2019, the IT Act extended this obligation to listed companies as well. In order to provide relief to listed companies that have already made a public announcement of buyback of shares before July 5, 2019, it has been provided that the buyback distribution tax on buyback of shares in case of such companies shall not be charged.

The Indian Government’s proposal to reduce the corporate tax rate for domestic companies is a positive long-term structural move to boost the economy and raise demand across sectors, especially manufacturing. Domestic companies have a lot to cheer about, and hopefully, foreign investments will see a pickup, both in the foreign direct investment and foreign portfolio formats.

GOVIND GUPTA

ASSOCIATE

GOVERNMENT OF INDIA HAS RECENTLY ISSUED BAN ON USE OF ELECTRONIC CIGARETTES

The Union Cabinet of India chaired by Prime Minister Shri Narendra Modi has recently approved the Promulgation of the Prohibition of Electronic Cigarettes (production, manufacture, import, export, transport, sale, distribution, storage and advertisement) Ordinance, 2019 on 18-09-2019. The Government of India has taken this initiative to prohibit the use of e-cigarettes in India, in overall interest of public health as envisaged under Article 47 of the Constitution of India 1950 as amended thereof.

According to the Union Cabinet, e-cigarettes are battery-operated devices that produce aerosol by heating a solution containing nicotine, which is said to be the addictive substance in combustible cigarettes. These products are sold in market with attractive appearances and multiple flavours, which have successfully induced a large of number of people, especially among youth and children, to use battery-operated devices including e-cigarettes, e-hookahs, etc.

As per the Cabinet, the Ordinance recognizes production, manufacture, etc of e-cigarettes as a cognizable offence and provides the following punishment for the same:

A) For production, manufacture, import, export, transport, sale (including online sale), distribution or advertisement (including online advertisement) of e-cigarettes:

  • Imprisonment of up to 1 year or fine up to Rs. 1 Lakh or both for the first offence; and
  • Imprisonment of up to 3 years and fine up to Rs. 5 Lakhs for a subsequent offence.

B) Storage of electronic-cigarettes:

  • Imprisonment of up to 6 months or fine up to Rs 50,000/- or both.

C) Deposit of existing stocks of e-cigarettes in any nearby police stations:

  • The Sub-Inspectors of Police at every police station have been authorized to take action against offenders including those who have not deposited their existing stock of banned e-cigarettes, on the date of commencement of the Ordinance.

This move of the Government is aimed at protecting the younger generation from the increased risk of addiction to e-cigarettes, and further, at controlling and reducing the use of tobacco and associated diseases, etc in the country.

Harini Daliparthy

Senior Legal Associate

The Indian Lawyer