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[No.70]
December 10, 2003 |
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International Legal News
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Cases
Source:
Westlawinternational.com
Reversing a district court, the Fourth Circuit
held that Section 3 of the Religious Land Use and Institutionalized Persons Act
(RLUIPA), which increases the level of protection of prisoners' religious
rights, did not violate the Establishment Clause. The section had the legitimate
secular purpose of minimizing government burdens on religious exercise.
Furthermore, it did not impermissibly advance religion in according special
protection to religious exercise but not to other fundamental rights. Finally,
RLUIPA minimized the likelihood of government entanglement with religion through
its enforcement provisions.
Madison v. Riter
The North Dakota statute prohibiting an adult
from luring minors by computer did not violate the free speech provisions of the
State and Federal Constitutions. The statute affected only those who willfully
targeted a person believed to be a minor and did not punish those who
inadvertently spoke with minors or who posted messages for all Internet users,
either adult or minors, to seek out and read at their discretion.
State v. Backlund
The waiver of a governmental entity's immunity
from both suit and liability, which occurs when a governmental entity takes,
damages, or destroys property for public use in violation of the Texas
Constitution, does not apply when the governmental entity takes, damages, or
destroys property for private use. Thus, while the taking for private use may be
declared void, the governmental entity is immune from suit for monetary damages.
Osburn v. Denton County
An attorney's misconduct, which included
notarizing the signatures of clients without witnessing them and telling his
clients to lie about the dates they had signed the documents, warranted a
two-year suspension. The Supreme Court, finding that there were no Nebraska
cases in which an attorney had attempted to elicit the aid of his client in his
deception, turned to case law from other jurisdictions to determine an
appropriate sanction.
State ex rel. Counsel for Discipline, Nebraska
Supreme Court v. Mills
The Court held that res judicata, as opposed to
procedural default or waiver, could be the basis, under certain circumstances,
for a first-stage dismissal of a petition for post-conviction relief under the
Post-Conviction Hearing Act (PCHA). The Court reasoned that the PCHA precludes
first-stage dismissal, based on waiver or procedural default, for issues of
procedural compliance or for issues that could have or should have been raised,
which require fact finding, resolution of disputed facts or consideration of
matters outside the record. The Court further opined that res judicata could be
basis for first-stage dismissal where the facts are undisputed regarding an
issue that has in fact been raised and previously ruled upon. However, if is
necessary for the circuit court to go beyond the petition or beyond the record
or resolve the factual disputes, then the petition cannot be resolved at the
first stage based on principles of res judicata.
People v. Etherly
News
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JURIS
INC., based in Brentwood, Tenn., has introduced a new case management
system, based on Microsoft Corp.'s Outlook. Juris Expanded Features for
Outlook delivers case management functionality at very little added
investment. The upgrade adds firm-wide calendar views and docketing
functions that help users track activity by matter, including related
contacts, tasks, appointments, e-mails, documents, notes, spreadsheets,
images, etc.
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Two
owners of The Station nightclub were charged with involuntary manslaughter
in the first criminal counts stemming from a fire that killed 100 people at
a performance by the band Great White. The Station went up in flames on Feb.
20 during a pyrotechnic display at the start of a concert by Great White.
The blaze was the fourth-deadliest nightclub fire in U.S. history.
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The
Supreme Court refused to Review Age Bias Case whereby older people sue over
job layoffs. The court has been looking for the right case to resolve the
standard for age discrimination suits. In 2002, an attempt was made to
settle the age discrimination question, in a challenge by fired utility
workers in Florida. The court refused to hear the appeal of a former
Electronic Data Systems Corp. employee from Alabama who claimed that the
company targeted people over age 40 for layoffs.
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The
Supreme Court is taking another look at its 37-year-old mandate that police
officers give suspects the familiar warning that begins "You have the
right to remain silent ..." before starting interrogations. The
landmark Miranda v. Arizona ruling has been criticized harshly over the
years, and some people believe the court could roll back some of its
protections. The rulings in these cases will clarify rules for police
questioning and let courts know when they must bar confessions or evidence
from trials.
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The
third of six Yemeni-American men accused of training at an al Qaeda camp
months before September 11 was sentenced to eight years in prison for
supporting a foreign terrorist organization. Shafal Mosed, a 25-year-old
American-born citizen, apologized to President Bush, his family and fellow
americans.Earlier, Mukhtar al-Bakri and Yasein Taher, were sentenced to 10
years and eight years, respectively for the same crime.
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SEBI
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Foreign Institutional
Investor
Circular No. IMD/CUST/10/2003
Dated 08.12.2003 : The Foreign Institutional Investors (FIIs) are required
through their domestic custodians to report to SEBI on a daily basis the
transactions entered into by them. In order to ensure integrity of the FII data,
it has been decided to reconcile SEBI FII data with that of the custodians'
records. All FIIs have been advised to submit to SEBI through their custodians'
Half Yearly Reports (HYR) for all the transactions done by them during the half
year. There shall be two different reports for debt and equity. The HYR shall be
submitted in soft format latest by 15th of the following half year. The format
of reporting has been set out.
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Department of Company Affairs
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Notification No. GSR922(E)
Dated 04.12.2003 : The Central Government has issued the Unlisted Companies
(Preferential Allotment) rules, 2003 to be effective from their date of
publication i.e. 04.12.2003.
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CBEC Excise Tariff
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Notification No. 77/2003 Dated
29.11.2003 : The amendments have been made in Notification No. 58/2003 and
59/2003-CENTRAL EXCISE, both dated the 22nd July, 2003. In both the
notifications, in their paragraph 2, for the figures, letters and words
"1st day of December, 2003", the figures, letters and words "1st
day of January, 2004" have been substituted.
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CBEC Excise Non Tariff
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Notification No. 82/2003 NT
Dated 29.11.2003 : In the notification, for the figures, letters and words 1st
day of December, 2003, the figures, letters and words 1st day of January, 2004,
have been substituted.
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CBEC Customs Tariff
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Circular No. 101/2003 Dated
05.12.2003 : The request for services of Customs officer beyond working hours
can be made either by the individual exporter/importer or the custodian of the
ICD, CFS, warehouse, airports or ports as it has been clarified from the scope
of the expression "any person" in regulation 3(1) of Customs (Fees for
Rendering Services by Customs Officers ) Regulation, 1998 which is wide enough
to cover even a custodian of ICD, CFS, warehouse , airport or port. In other
words, the custodians can also requisition the services of Customs officer on
overtime basis on behalf of importers/exporters.. As per regulation 3(2) the
fees will have to be paid (in advance) by the said custodian.
The fees which is required to
be paid by the custodian for the services has to be only for the block periods
for which the services were requisitioned irrespective of the number of
importers/exporters documents handled during that period .
Notification No. 174/2003 Dated
04.12.2003 : In the notification, in the table, after Sr. No. 167A and the
entries relating thereto, the new S. No.167B and entries related to it has been
inserted.
Also, in the Annexure after
condition No. 21A and the entries relating thereto, a new condition no. 21B and
entries related to it has been inserted.
Notification No. 173/2003 Dated
03.12.2003 Anti Dumping Duty has been Imposed On Sodium Hydrosulphite From
Germany and Republic of Korea
Corrigendum No. DRAWBACK/P.N.
04 /2003 Dated 02.12.2003 : In the notification, in clause (ii), the word "substituted"
has been corrected to read as "inserted".
Notification No. 172/2003 Dated
02.12.2003 : In the notification, in the Table, S. No.8 and the entries relating
thereto, has been substituted, by the new S. No. 8 and the entries related to it
Notification No. 171/2003 Dated
29.11.2003 : In the notification, in the paragraph 2, for the figures, letters
and words, "1st day of December, 2003", the figures, "letters and
words 1st day of January", 2004 have been substituted.
Notification No. 170/2003 Dated
29.11.2003 : In the notification, in the paragraph 2, for the figures, letters
and words 1st day of December, 2003 , the figures, letters and words 1st day of
January, 2004 have been substituted.
Notification No. 169/2003 Dated
29.11.2003 : In the said notification, in the paragraph 2, for the figures,
letters and words 1st day of December, 2003 , the figures, letters and words 1st
day of January, 2004 have been substituted.
Circular No. 100/2003 Dated
28.11.2003 : Having regard to obtain the NOC from RBI for re-shipment of the
goods which were shipped contrary to the instructions of the importers, the
matter has been examined in consultation with the Reserve Bank of India who have
opined that the "NOC" from RBI need not be insisted for re-export of
such imported items. Therefore, the Commissioner may use his discretion and
allow re-export without the requirement of a "No Objection
Certificate" from the Reserve Bank of India, on payment of a nominal
penalty or without any penalty as he deems fit, provided that he is satisfied
that the goods have been imported as a result of bonafide mistake and contrary
to the importer's instructions.
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CBEC Customs Non Tariff
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Notification No. 108/2003-N.T.
Dated 29.11.2003 : In the Special Economic Zones (Customs Procedures)
Regulations, 2003, in regulation 1, in sub-regulation (3), for the figures,
letters and words "1st day of December, 2003", the figures, letters
and words "1st day of January, 2004" have been substituted.
Notification No. 107/2003-N.T.
Dated 29.11.2003 : . In the Special Economic Zones Rules, 2003, in rule 1, in
sub-rule (2), for the figures, letters and words "1st day of December,
2003" , the figures, letters and words "1st day of January, 2004"
have been substituted.
Notification No. 106/2003-N.T.
Dated 29.11.2003 : The amendment have been made in ten notifications from
44/2003-Customs N.T. to 51/2003- Customs N.T., 60/2003- Customs N.T and 61/2003-
Customs N.T. There have been made common amendment in all notifications. In all
the notifications, in their paragraph 2, for the figures, letters and words
"1st day of December, 2003", the figures, letters and words "1st
day of January, 2004" have been substituted.
Notification No. 105/2003-N.T.
Dated 29.11.2003 : In the said notification, for the figures, letters and words
"1st day of December, 2003", the figures, letters and words " 1st
day of January, 2004 " have been substituted.
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Service Tax
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Circular No. 68/17/2003 Dated
28.11.2003 : Keeping in view the provisions of "Event Management" , it
has been clarified that for occurrence of taxable event 'provision of event
management service', there has to be a sponsor at whose behest an event is
organized and event manager, who organizes such services. Therefore, it is
clarified that service tax is not on the event but on the service provided on
managing an event. Therefore in case where the event is organized/managed by the
sponsor himself, no service tax is payable as "Event Management."
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RBI
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Circular No. A.P.(DIR Series)
Circular No. 46 Dated 09.12.2003 : It has been decided that the eligible limit
for booking the forward contracts facility would be the average of the past
three years' export/import turnover or the previous year's turnover, whichever
is higher. The forward contracts so booked and outstanding at any point of time
shall not exceed 50% (raised from 25%) of the eligible limit without any cap,
provided that any amount in excess of 25% of the eligible limit shall be only on
a deliverable basis. These limits shall be computed separately for export/import
transactions. All other conditions prescribed for this facility remain the same.
Importers/exporters desirous of availing limits higher than the overall cap of
50% have been requested to forward their applications through their Authorised
Dealer to the Chief General Manager, Exchange Control Department
Circular No. A.P.(DIR Series)
Circular No. 45 Dated 08.12.2003 : Having regard to difficulties faced by Indian
Students studying abroad with respect to their residential status, the Reserve
Bank of India examined the matter keeping in view the definition of residential
status in terms of Section 2(v)(i) of FEMA and clarified that their stay abroad
for more than 182 days in the preceding financial year and their intention to
stay outside India for an uncertain period when they go abroad for their
studies, they can be treated as Non-Resident Indians (NRIs). It is further
clarified that these instructions do not dilute in any way the utilisation of
the existing foreign exchange remittance facilities to students in regard to
their academic pursuits.
Circular No. A.P.(DIR Series)
Circular No. 44 Dated 08.12.2003 : It has been brought to the notice that the
Overseas Corporate Bodies (OCBs) in India are derecognised as an eligible 'class
of investor' under various routes/schemes available under extant Foreign
Exchange Management Regulations. In this connection, the Reserve Bank has issued
Foreign Exchange Management [Withdrawal of General Permission to Overseas
Corporate Bodies (OCBs)] Regulations, 2003 which are notified vide Notification
No. FEMA 101/2003-RB dated October 3, 2003. The facilities for OCBs under
various Foreign Exchange Management Regulations thus stand withdrawn.
Circular No. A.P.(DIR Series)
Circular No. 43 Dated 08.12.2003 : Reserve Bank of India have been releasing
instructions from time to time for modifications and measures for liberalisation
with regard to acquisition of immovable property in India. In this connection
RBI has further released a set of instructions with regard to foreign Investment
in India through acquisition of immovable property in India.
Circular No. A.P.(DIR Series)
Circular No. 42 Dated 06.12.2003 : with a view to liberalise the transfer of
shares by Indian Companies of their JV/WOS abroad by way of sale under Automatic
Route,which is permitted only in case of full repatriation of investment made
and other entitlements, it has been decided to permit Indian listed companies to
disinvest their investment in a JV/WOS abroad even in case where such
disinvestment may result in a write-off of the capital invested to the extent of
10% of the previous year's export realisation.
Circular No. A.P.(DIR Series)
Circular No. 41 Dated 06.12.2003 : With a view to simplifying and liberalising
the present policy of overseas direct investment, the existing guidelines have
been modified.
Circular No. A.P.(DIR Series)
Circular No. 40 Dated 05.12.2003 : With a view to simplifying and liberalising
the procedure, providing full flexibility to all exporters and reducing the
paper work associated with seeking extension of time or reduction in invoice
value or write-off, it has been decided to allow all exporters (including Status
Holder) to : -
(i) write-off (including
reduction in invoice value) outstanding export dues, and
(ii) extend the prescribed
period of realisation beyond 180 days or further period as applicable,
provided, the aggregate value
of such export bills written-off (including reduction in invoice value) and
bills extended for realisation does not exceed 10 per cent of the export
proceeds due during the calendar year and such export bills are not a subject of
investigation by Enforcement Directorate / Central Bureau of Investigation or
any other Investigating Agencies. This facility will be available in respect of
export proceeds falling due from January 1, 2004. In other words, the new
facility will be available for exports made after July 1, 2003 and proceeds due
for realisation on January 1, 2004 (ie., within the prescribed period of 180
days). In the case of exports where Reserve Bank has prescribed longer period of
realisation, the said facility would be available for exports made prior to July
2003, but proceeds of which are due for realisation within the prescribed period
of one year.
Circular No. A.P.(DIR Series)
Circular No. 39 Dated 03.12.2003 : The provisions regarding Foreign Investments
in Proprietorship Concern/ Partnership Firm in India, as amended from time to
time, have been elaborated in the circular. The provisions are related to:-
1. Investment in a firm or
proprietary concern in India by a person resident outside India on
non-repatriation basis
2. Investment in sole
proprietorship concern / partnership firm with repatriation
3. Investment by non-residents
other than NRIs/PIOs
Notification No. DBOD.BP.BC. 51
/21.04.103/2003-2004 Dated 05.12.2003 : In the view of paragraph 64 of the
Mid-term Review of Monetary and Credit Policy for the year 2003- 2004, it has
been decided that, foreign currency loans above US $ 10 million, or such lower
limits as may be deemed appropriate vis-à-vis the banks' portfolios of
exposures, can be extended by banks only on the basis of a well laid out policy
of their Boards with regard to hedging of foreign currency loans to corporates.
Notification No.
DBOD.No.Leg.BC.50 /09.07.005/2003-04 Dated 03.12.2003 : In order to support
broad-based improvement in customer services in relation to various banking
services, each bank is advised to constitute an Ad hoc Committee to undertake
procedures and performance audit on public services rendered by it. The
Committee will be assigned with the different tasks with a view to improve the
services to the customers. The Ad hoc Committee constituted by each bank is
expected to complete its work in six months from the date of its constitution
and submit its Report to the RBI Standing Committee on Procedures and
Performance Audit on Public Services.
Notification No. DBOD.BP.BC. 49
/21.04.141/2003-04 Dated 03.12.2003 : Banks were advised vide circular
DBOD.No.BP.BC.99/21.01.002/2001-02 dated May 3, 2002, to build up an Investment
Fluctuation Reserve (IFR) of a minimum 5 per cent of their investments in the
categories "Held for Trading" (HFT) and "Available for Sale" (AFS)
within a period of five years. As the risk perceptions of individual banks could
differ in accordance with their portfolio composition, banks were also
encouraged to build IFR up to a maximum of 10 per cent with the approval of
their Boards. Although banks have time up to March 2006 to achieve the
stipulated 5 per cent, they are urged to quickly build up IFR so as to be better
positioned to meet interest rate risks.
Press Release No. 2003-2004/710
Dated 08.12.2003 : Taking into account the definition of resident under FEMA and
the intention of the student to stay abroad for uncertain period though not for
permanent settlement, it has been decided to treat them henceforth as
non-residents from the FEMA angle. As non-residents, students will, in any case,
be eligible for receiving remittances from India, as follows : (i) up to USD
100,000 from close relatives from India on self-declaration towards maintenance,
which could include remittances towards their studies also, (ii) up to USD 1
million out of sale proceeds/balances in their account maintained with an AD in
India, (iii) all other facilities available for NRIs under FEMA, (iv)
educational and other loans which were availed (as residents in India) by
students would be allowed to continue.
It has been also clarified that
these instructions do not dilute in any way the utilisation of the existing
foreign exchange remittance facilities to students in regard to their academic
pursuits.
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DGFT
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Public Notice No. 35(RE-
03)/2002-07 Dated 05.12.2003 : Director General of Foreign Trade has made
Amendments/deletions/corrections and additions in the Handbook of Procedures,
Vol.2, 2002-2007, as amended.
Public Notice No.
34(RE-03)/2002-07 Dated 04.12.2003 : Director General of Foreign Trade has made
the addition / correction / amendment in the book titled " Schedule of DEPB
Rates".
Trade Notice No. 08/ 2003 Dated
04.12.2003 : With a view to enhance facilities a new service has been provided
to the Trade. So now they can also know the status of their applications through
SMS service provided by Hutchison Max Telecom Private Ltd. (TM Orange) in
addition to the status provided through internet. Efforts are being made to make
such service available through other Cellular Service Providers also.
Circular No.
21(RE-2003)/2002-2007 Dated 03.12.2003 : Having regard to the rounding off the
fractions occured when calculated as per the formula prescribed by the Policy
Circular No. 20 dated 31.7.2002. in case of export of pharmaceutical
formulations under DEPB, it has been clarified that while calculating the DEPB
rates for export of products covered under formulations under schedule of DEPB
rates, nearest rounded figure should be taken into consideration.
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Department of Commerce
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Notification No.
14/40/2002-DGAD Dated 21.11.2003 : Anti-Dumping Investigation Concerning Imports
of Borax Decahydrate Originating in or Exported from the Turkey and China PR. -
Final Findings
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Department of Agriculture and Cooperation
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Notification No. SO1322(E)
Dated 18.11.2003 : the Central Government has issued Plant Quarantine
(Regulation of Import into India) Order, 2003 to be effective from Ist January,
2004 except the Sub-clause (22) of clause 3 which shall come into force on the
1st day of April, 2004.
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Department of
Telecommunication
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Notification No.
301-56/2003-(Econ) Dated 03.12.2003 : In the Telecommunication Tariff Order,
1999
(i) In Schedule IV (Leased
Circuits) of the Telecommunication Tariff Order, 1999, after clause 3.e, a new
clause "(3.f.) E1/R2 Links for ISPs" has been inserted.
(ii) Clause 4.a of Schedule IV
of the Telecommunication Tariff Order, 1999, has been deleted and has been
substituted by the clause 4(a) "Local leads or end links" and the
entries related to thereto.
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Ministry of Communication and Information
Technology
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Notification No GSR904(E) Dated
27.11.2003 : The Central Government has issued the Information Technology (Other
Standards) Rules, 2003 to be effective from their date of publication i.e. 27th
november, 2003.
Notification No GSR903(E) Dated
27.11.2003 : The Central Governemnt has issued the Information Technology (Other
Powers of Civil Court Vested in Cyber Appellate Tribunal) Rules 2003 to be
effective from their date of publication in the official gaete i.e. 27th
november, 2003.
Notification No GSR902(E) Dated
27.11.2003 : In the Information Technology (Certifying Authorities) Rules,
2000,-
(a) (i) for the words
"submit a performance bond or furnish a banker's guarantee", Wherever
they occur, the words "furnish a performance bond in the form of a banker's
guarantee" have been substituted;
(ii) for the words
"performance bond of banker's guarantee" wherever they occur, the
words "performance bond in the form of banker's guarantee" have been
substituted;
(b) in rule 8, in sub-rule
(2),-
(i) for the words "five
crores", the words "fifty lakhs" have been substituted;
(ii) in the proviso, for the
words "ten crores", the words "one crore" have been
substituted;
(c) in rule 14, in sub-rule
(2), for the words "performance bond submitted or the banker's guarantee
furnished", the words "performance bond in the form of banker's
guarantee furnished" have been substituted;
(d) in Schedule I, in serial
number 33, for the words "Bank Guarantee/Performance Bond", the words
"performance bond in the form of banker's guarantee" have been
substituted.
Notification No. GSR901(E)
Dated 21.11.2003 : The Central Government has issued the Cyber Regulations
Appellate Tribunal (Procedure for Investigation of Misbehaviour or Incapacity of
Presiding Officer) Rules, 2003 to be effective from their date of publication
i.e. 27th november, 2003.
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Ministry of Textiles
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Enforcement of Provisions of
the Textiles (Consumer Protection) Regulation, 1988, in Respect of Indigenously
Manufactured and Imported Textiles, Namely Tops, Yarn and Cloth
Notification No 3/TDRO/9/2003
Dated 25.11.2003 : On the removal of various textile items from the purview of
Essential Commodities Act, 1955 vide S.O.206 (E) & S.O.207 (E) dated
15.2.2002 issued by Ministry of Consumer Affairs, Food and Public Distribution,
Government of India, the provisions of the Textiles (Consumer Protection)
Regulation, 1988, are now applicable only to the following items of textiles :
1) Tops containing wool
2) Yarn made wholly from cotton
3) Cloth containing cotton or
wool
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Press Information Bureau
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Dated 05.12.2003 : The
Government has notified that the amendments to the Infant Milk Substitutes,
Feeding Bottles and Infant Foods (Regulation of production, Supply and
Distribution) Act, 1992 would come into force from 1st January 2004. An earlier
notification had made the amendments effective from 1st November this year.
Advertising for infant milk substitutes and other infant foods will be
prohibited on all forms of mass media from January 1st next year. The ban on
advertising of infant foods is meant to protect and promote breast-feeding.
Dated 04.12.2003 : The Central
Government has approved, in principle, the proposal to amend the Constitution in
order to provide reservation quota in government jobs for people belonging to
economically backward classes (EBCs). The Minister of State for Social Justice
and Empowerment Shri Nagmani in a written reply in the Lok Sabha also stated
that the government has also approved the proposal for setting up a Commission
to study the issue. The Commission would work out the modalities to provide
reservation for EBCs not covered by the existing reservation policy.
Dated 03.12.2003 : The issue of
equity shares against lumpsum free, royalty and External Commercial Borrowings (ECBs)
in convertible foreign currency already due for payment/repayment, subject to
meeting all applicable tax liabilities and procedures has already been
permitted. As a part of the ongoing process of liberalisation, it has been
decided to permit issue of equity shares against all External Commercial
Borrowings (excluding those deemed as ECBs) received in convertible foreign
currency, subject to meeting all tax liabilities and procedures.
Dated 02.12.2003 : The Central
Government has issued a notification prescribing rules and form for the audit
report under section 44DA of the Income-tax Act. The Finance Act, 2003 inserted
a new section 44DA in the Income-tax Act, 1961 relating to special provisions
for computing income by way of royalties, etc. in case of non-residents. Under
this section the non-resident assessees are required to get their books of
account audited and furnish the audit report in the prescribed form with the
return of income.
Dated 02.12.2003 : A WTO
dispute settlement panel established at India's request in January 2003 has
upheld India's contention that the European Communities has violated its GATT/WTO
obligations in granting tariff preferences to 12 countries under the "Drug
Arrangements" window of its GSP scheme without extending these preferences
to other developing countries. The Panel has also ruled that the EC has failed
to demonstrate that the Drug Arrangements are justified under the Enabling
Clause, which otherwise allows the developed countries to grant tariff
preferences to developing countries without allowing the same advantage to
developed countries.
Dated 02.12.2003 : Shri
Vijayendra N. Kaul, Comptroller and Auditor General of India has been
reappointed as the external auditor of the International Maritime organisation
(IMO). The CAG was appointed unopposed by the Assembly of IMO for the four year
period 2004-07. CAG is the current external auditor of IMO for the period
2000-03. CAG is also the external auditor for other important international
organizations like the WHO, the FAO etc.
Dated 28.11.2003 : CAG has
reconstituted the Audit Advisory Board to advise the CAG in matters relating to
audit and suggest improvements in the scope, performance and focus of audit
within the framework of the Constitutional and statutory mandate of the CAG. The
members will function in an honorary capacity for a period of two years from the
date of their nomination. The first meeting of the Board is scheduled to be held
in February 2004.
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Supreme Court |
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Appeals were filed in the Hon’ble Supreme Court involving question about the scope and ambit of Article 161 of the Constitution of India, 1950. The question raised was whether the Governor of a particular State in exercise of clemency powers under Article 161 of the Constitution could grant remission to prisoners convicted by courts outside the concerned States but undergoing sentences in jails of the State.
The Apex Court held that the Governor has to act on the advice of the Council of Ministers. Further the Hon’ble Apex Court was of the view that the Prisoners Act does not throw any light on the controversy and it only enables transfer of prisoners from one State to another. It does not purport to confer jurisdiction on the Transferee State of the power of remission in respect of transferred prisoners. The court also upheld the Government's power to extend the relief of remission to a particular class of prisoners stating that it is a matter of policy and the Government could do so as long as there is no insidious discrimination involved - Appeal Allowed.
The issue, which was debated before the Hon’ble Supreme Court in this appeal, was whether the State Legislature had the legislative competence to impose stamp duty on the order of amalgamation passed by a court.
Apex Court was of the view that laws of incorporation, regulation, winding up and such other actions belong to the Centre, but the follow-up legislation like levying stamp duty and prescribing the rate of stamp duty on documents of compromise or arrangement is different and belong to the state. Thus the state legislature has the power to impose stamp duty on the instrument of amalgamation.
The Apex Court ruled that the jurisdiction of the company court while sanctioning the scheme is supervisory only i.e., to observe that the procedure set out in the Act is met and complied with and that the proposed scheme of compromise or arrangement is not violative of any provision of law, unconscionable or contrary to public policy. The Court is not to exercise the appellate jurisdiction and examine the commercial wisdom of the compromise or arrangement arrived at between the parties. By sanctioning of amalgamation scheme, the property including the liabilities are transferred as provided in Section 394 of the Companies Act and on that transfer instrument, stamp duty is levied. It, therefore, cannot be said that the State Legislature has no jurisdiction to levy such duty.
Rejecting the argument that in the guise of stamp duty, state legislature was imposing a tax on amalgamation of companies, the Hon’ble Supreme Court held that duty charged by the State Legislature is on the instrument of amalgamation and on the execution of the instrument. The measure of charging stamp duty may be fixed or ad-valoram, which is to be determined by the Legislature. The State Legislature can determine the basis for computation of stamp duty and it may be on the basis of the market value of the property transferred or at a fixed amount - Appeal Dismissed.
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