BIMONTHLY LEGAL TABLET
Volume 3, Issue 4
July 05, 2013
The law is the only profession which records its mistakes carefully, exactly as they occurred, and yet does not identify them as mistakes.
Elliott Dunlap Smith, American Writer
Contents
- Law & Policy
- Notifications, Circulars (May – June, 2013)
- Bills Passed in the budget session of Parliament for 2013
- Legal Pronouncements
- Supreme Court Judgements
- Competition Commission of India Orders
- Legal News
LAW & POLICY
A.P. (DIR Series) Circular No. 104
May 17, 2013
Issued by the Reserve Bank of India, Foreign Exchange Department regarding ‘FDI in India – Issue of equity shares under the FDI scheme allowed under the Government route against pre-operative/pre-incorporation expenses’
Para 3(II) of A.P. (DIR Series) Circular No. 74 dated June 30, 2011 read with A.P. (DIR Series) Circular No. 55 dated December 09, 2011 allowed issue of equity shares/ preference shares under the Government route by conversion of import of capital goods, etc., subject to terms and conditions stated therein. On review, it has been decided to amend condition at (c) in the said Para 3(II), which shall read as below:
| c.f. A.P.(DIR Series) Circular No. 74 dated June 30, 2011 | Earlier Condition | Revised condition |
| Para 3(II)(c) | Payments should be made directly by the foreign investor to the company. Payments made through third parties citing the absence of a bank account or similar such reasons will not be eligible for issuance of shares towards FDI; | Payments should be made by the foreign investor to the company directly or through the bank account opened by the foreign investor as provided under FEMA Regulations; |
All the other conditions contained in the A.P. (DIR Series) Circulars No. 74 dated June 20, 2011 and No. 55 dated December 09, 2011, shall remain unchanged.
Necessary amendments to Foreign Exchange Management (Transfer or Issue of Security by a Person Resident outside India) Regulations, 2000 have been notified.
A.P. (DIR Series) Circular No. 105
May 20, 2013
Issued by the Reserve Bank of India, Foreign Exchange Department regarding ‘Export of Goods and Software – Realisation and Repatriation of export proceeds – Liberalisation’
A.P. (DIR Series) Circular No. 52 dated November 20, 2012 extended the enhanced period for realization and repatriation to India, of the amount representing the full value of goods or software exported, from six (6) months to twelve (12) months from the date of export. This relaxation was available up to March 31, 2013.
It has been decided, in consultation with the Government of India, to bring down the above stated realization period from twelve (12) months to nine (9) months from the date of export, with immediate effect, valid till September 30, 2013.
The provisions in regard to period of realization and repatriation to India of the full export value of goods or software exported by a unit situated in a Special Economic Zone (SEZ) as well as exports made to warehouses established outside India remain unchanged.
Press Note No. 1 (2013 Series)
June 03, 2013
Issued by the Government of India, Ministry of Commerce & Industry, Department of Industrial Policy & Promotion regarding ‘Review of the policy on foreign direct investment in the Multi Brand Retail Trading Sector – amendment of paragraph 6.2.16.5(2) of Circular 1 of 2013 – Consolidated FDI Policy’
As per paragraph 6.2.16.5 of Circular 1 of 2013 – Consolidated FDI Policy, effective from April 05, 2013, FDI up to 51% under the government approval route, is permitted in the multi-brand retail trading sector, subject to specified conditions. The list of States/Union Territories which have conveyed their agreement for the policy in multi-band retail trading is contained in paragraph 6.2.16.5(2) of the said Circular 1 of 2013.
As per the revised position, the Government of Himachal Pradesh has given its consent to implement the policy on multi-brand retail trading in Himachal Pradesh in terms of paragraph 6.2.16.5 (1) (viii). Accordingly, the list of States/Union Territories which have conveyed their agreement for the policy in multi-band retail trading as contained in paragraph 6.2.16.5(2) stands amended.
Press Note No. 2 (2013 Series)
June 03, 2013
Issued by the Government of India, Ministry of Commerce & Industry, Department of Industrial Policy & Promotion regarding ‘Foreign Direct Investment Policy – definition of group company’
The Government has decided to incorporate the following definition of ‘group company’ in the Consolidated FDI Policy contained in Circular 1 of 2013, effective from April 05, 2013:
| 2.1 | Definitions |
| 2.1.15 bis | “Group Company” means two or more enterprises which, directly or indirectly, are in a position to: (i) exercise twenty-six per cent, or more of voting rights in other enterprise; or (ii) appoint more than fifty per cent, of members of board of directors in the other enterprise. |
A.P. (DIR Series) Circular No. 108
June 11, 2013
Issued by the Reserve Bank of India, Foreign Exchange Department regarding ‘Export of Goods and Software – Realization and Repatriation period for units in Special Economic Zones (SEZ)’
In terms of A. P. (DIR Series) Circular No. 91 dated April 1, 2003, time limit for realization and repatriation of export proceeds, for the exports made by units in Special Economic Zones (SEZs), was done away with.
It has now been decided that the units located in SEZs shall realize and repatriate, full value of goods/software/services, to India within a period of 12 months from the date of export. Any extension of time beyond the above stipulated period may be granted by the RBI, on case to case basis. Necessary amendments have been made in Foreign Exchange Management (Export of Goods and Services) Regulations, 2000.
A.P. (DIR Series) Circular No. 109
June 11, 2013
Issued by the Reserve Bank of India, Foreign Exchange Department regarding ‘Processing and Settlement of Export related receipts facilitated by Online Payment Gateways – Enhancement of the value of transaction’
In terms of A.P. (DIR Series) Circular No.35 dated October 14, 2011, AD Category I banks have been permitted to offer the facility to repatriate export related remittances by entering into standing arrangements with Online Payment Gateway Service Providers (‘OPGSPs’) for export of goods and services for value not exceeding USD 3000 per transaction, subject to the conditions stipulated therein.
It has now been decided to increase the value per transaction from USD 3000 to USD 10,000 for export related remittances received through OPGSPs. The revised limit will come into force with immediate effect. All other terms and conditions issued, vide A.P. (DIR Series) Circular No.17 dated November 16, 2010, shall remain unchanged.
A.P. (DIR Series) Circular No. 110
June 12, 2013
Issued by the Reserve Bank of India, Foreign Exchange Department regarding ‘Foreign Direct Investment – Reporting of issue/ transfer of Shares to/by a FVCI’
In terms of Regulations 9 and 10 and para 9 of Schedule I to the Foreign Exchange Management (Transfer or Issue of Security by a Person Resident outside India) Regulations, 2000 read alongwith A. P. (DIR Series) Circular No. 44 dated May 30, 2008 and A.P. (DIR Series) Circular No.63 dated April 22, 2009, transfer of equity shares/fully and mandatorily convertible debentures/fully and mandatorily convertible preference shares (‘shares’) of an Indian company, from a person resident outside India (‘non-resident’) to a person resident in India (‘resident’) or vice versa, has to be reported to an AD bank within 60 days of transactions. Further, the receipt of consideration for issue of shares as well as the issue of shares of an Indian company, to a non-resident has to be reported to the RBI through an AD bank within 30 days of the transaction.
It has been observed that SEBI registered FVCIs making investments in an Indian Company under FDI Scheme in terms of Schedule 1 of Notification No. FEMA.20 / 2000 – RB dated May 3, 2000, also report the same transaction under Schedule 6 of the Notification, resulting in double reporting of the transaction.
It is clarified that wherever a SEBI registered FVCI acquires shares of an Indian company under FDI Scheme in terms of Schedule 1 of Notification No. FEMA 20 / 2000-RB dated May 3, 2000, such investments have to be reported in form FC-GPR/FC-TRS only, as applicable. Where the investment is under Schedule 6 of the Notification, no FC-GPR/FC-TRS reporting is required. Such transactions would be reported by the custodian bank in the monthly reporting format as prescribed by RBI from time to time. Revised forms FC-GPR and FC-TRS have been annexed to this A.P. (DIR Series) Circular No. 110 dated June 12, 2013.
A SEBI registered FVCI while making investment in an Indian company may determine upfront whether the said investment is under FDI or FVCI scheme and report accordingly.
A.P. (DIR Series) Circular No. 113
June 24, 2013
Issued by the Reserve Bank of India, Foreign Exchange Department regarding ‘External Commercial Borrowings (ECB) for the low cost affordable housing projects’
In terms of A.P. (DIR Series) Circular No. 61 dated December 17, 2012, ECB for low cost affordable housing projects is allowed as a permissible end-use under the approval route. The policy regarding ECB for the low cost affordable housing projects has been reviewed and it has been decided to modify the guidelines contained in the said Circular as follows:
- Developers/builders should have a minimum of three (3) years experience in undertaking residential projects as against five (5) years prescribed earlier and should have good track record in terms of quality and delivery.
- The condition of minimum paid-up capital of not less than INR 50 Crore, as per the latest audited balance sheet, for Housing Finance Companies (‘HFCs’) stands withdrawn. However, the condition of the minimum Net Owned Funds (‘NoF’) of INR 300 Crore for the past three (3) financial years remains unchanged.
- The aggregate limit for ECB under the low cost affordable housing scheme is extended for the financial years 2013-14 and 2014-15 with a ceiling of USD 1 billion in each of the two years, subject to review thereafter.
- The ECB availed of by developers and builders shall be swapped into Rupees for the entire maturity on fully hedged basis.
Regarding issue of fixation of spread for on-lending by National Housing bank (‘NHB’); interest rate spread to be charged by NHB may be decided by NHB taking into account cost and other relevant factors. NHB shall ensure that interest rate spread for HFCs for on-lending to prospective owners’ of individual units under the low cost affordable housing scheme is reasonable.
Further, HFCs while making the applications shall;
- submit a certificate from NHB, the nodal agency, that the availment of ECB is for financing prospective owners of individual units for the low cost affordable housing;
- ensure that cost of such individual units does not exceed INR 30 Lac and loan amount does not exceed INR 25 Lac;
- ensure that the units financed are having maximum carpet area of 60 sq. mtrs.; and
- ensure that the interest rate spread charged by the HFCs to the ultimate buyer is reasonable.
All other aspects of the scheme mentioned in the said Circular remain unchanged.
A.P. (DIR Series) Circular No. 115
June 25, 2013
Issued by the Reserve Bank of India, Foreign Exchange Department regarding ‘Buyback/prepayment of Foreign Currency Convertible Bonds (‘FCCBs’)’
On a review it has been decided that the existing scheme of Buyback / Prepayment of FCCBs under the approval route which expired on March 31, 2013 may be continued till December 31, 2013 and shall stand discontinued thereafter.
A.P. (DIR Series) Circular No. 116
June 25, 2013
Issued by the Reserve Bank of India, Foreign Exchange Department regarding ‘External Commercial Borrowings (‘ECB’) for Civil Aviation Sector’
In terms of paragraph 2 (iii) of A.P. (DIR Series) Circular No. 113 dated April 24, 2012, the ECB for working capital for civil aviation sector should be raised within twelve (12) months from the date of issue of the Circular. On a review, it has now been decided that the scheme of availing of ECB for working capital for civil aviation sector will continue till December 31, 2013. All other aspects of the ECB Policy shall remain unchanged.
A.P. (DIR Series) Circular No. 117
June 25, 2013
Issued by the Reserve Bank of India, Foreign Exchange Department regarding ‘External Commercial Borrowings (‘ECB’) in Renminbi (‘RMB’)’
In terms of A.P. (DIR Series) Circular No. 30 dated September 27, 2011, Indian companies in the infrastructure sector are allowed to avail of ECB in RMB under approval route subject to an annual cap of USD one billion pending further review. It has been observed that the facility of ECB in RMB had remained unused so far. Accordingly, it has been decided that this scheme of ECB in RMB may be discontinued from the date of issue of this Circular, i.e., June 25, 2013.
A.P. (DIR Series) Circular No. 118
June 26, 2013
Issued by the Reserve Bank of India, Foreign Exchange Department regarding ‘Export of Goods and Services – Project Exports’
On a review, it has been decided to increase the time limit and henceforth the exporter undertaking Project Exports and Service contracts abroad should submit form DPX1, PEX-1 and TCS-1 to the Approving Authority, i.e., AD Bank / Exim Bank / Working Group, within thirty (30) days of entering into contract for grant of post-award approval. All other instructions issued in terms of Memorandum of Instructions on Project and Service Exports (‘PEM’), notified vide A. P. (DIR Series) Circular No. 32 dated October 28, 2003, shall remain unchanged.
A.P. (DIR Series) Circular No. 119
June 26, 2013
Issued by the Reserve Bank of India, Foreign Exchange Department regarding ‘External Commercial Borrowings (‘ECB’) Policy – Import of Services, Technical know-how and License Fees’
In terms of Foreign Exchange Management (Borrowing or Lending in Foreign Exchange) Regulations, 2000 and the A.P. (DIR Series) Circular No. 5 dated August 1, 2005, as amended from time to time, eligible borrowers can raise ECB for investment such as import of capital goods, new projects, modernization/ expansion of existing production units in the real sector, infrastructure sector and entities in service sector.
On a review, it has been decided to include import of services, technical know-how and payment of license fees as part of import of capital goods by the companies for the use in the manufacturing and infrastructure sectors as permissible end-uses of ECB under the automatic/ approval route as the case may be subject to:
- There should be a duly signed agreement between the service provider and the borrower company;
- The original invoice raised by the service provider as per the payment schedule in the agreement should be duly certified by the borrower company;
- Declaration by the importer that the entire expenditure on import of services will be capitalized;
- Declaration by the importer that entire expenditure on import of services forms part of project cost; and
- AD Category-I bank has to ensure the bonafides of the transaction.
The above modifications to the ECB Policy will come into force with immediate effect. All other aspects of the ECB Policy shall remain unchanged.
A.P. (DIR Series) Circular No. 120
June 26, 2013
Issued by the Reserve Bank of India, Foreign Exchange Department regarding ‘External Commercial Borrowings (ECB) Policy – Structured Obligations’
On a review, it has been decided that credit enhancement can be provided by eligible non-resident entities to the domestic debt raised through issue of INR bonds/debentures by all borrowers eligible to raise ECB under the automatic route.
It has also been decided to reduce the minimum average maturity of the underlying debt instruments from seven (7) years to three (3) years. Prepayment and call/put options, however, would not be permissible for such capital market instruments up to an average maturity period of three (3) years.
On invocation of such credit enhancement, if the guarantor meets the liability and if the same is permissible to be repaid in foreign currency to the eligible non-resident entity, the all-in-cost ceilings, as applicable to the relevant maturity period of the Trade Credit/ECBs as per extant guidelines, would apply to the novated loan.
The amended policy will come into force with immediate effect.
Upcoming RBI Master Circulars
Effective July 01, 2013
RBI has issued Master Circulars under the following 7 categories:
- Banking Regulation: 21 in number
- Co-operative Banking: 16 in number
- Currency: 1 in number
- Financial Institutions: 3 in number
- Foreign Exchange: 15 in number
- Government Business: 2 in number
- Special Programmes: 1 in number
The details of the Master Circulars issued under ‘Foreign Exchange’ category shall follow shortly in our ‘Alerts’.
Bills
Budget Session of Parliament, 2013
The Budget Session of the Parliament was held between February 21 and May 10, 2013. However it was convened for 32 days and adjourned sine die on May 8, 2013 two days ahead of schedule.
The Finance Bill and 10 Appropriation Bills were also introduced and passed. A total of 116 Bills are pending at the end of the budget session.
Finance Bill 2013
Assent received on May 10, 2013
The Finance Bill 2013 received the assent of the President on 10th May 2013 and has been enacted as the Finance Act 2013 (No. 17 of 2013).
The Act has given effect to the financial proposals of the Central Government for the financial year 2013-2014. The Finance Act, 2013 contains the amendment in Income Tax Rates, Section wise Amendment in Income Tax Provisions, General Anti Avoidance Rules, Rate of TDS on Payment to Resident and Non Residents, New Rule for Computation of Agricultural Income etc.
LEGAL PRONOUNCEMENTS
Supreme Court of India’s Judgements
Arun Kumar Agrawal Vs. Union of India and Ors.
MANU/SC/0490/2013
Held: The Hon’ble Supreme Court of India has held that the scope of the decision making process concerning economic and commercial matters gives liberty to States and its instrumentalities to take appropriate decision after weighing advantages and disadvantages of the same.
The Apex Court while exercising its jurisdiction is not justified in interfering with such decisions, especially when there is nothing to show that such decisions are contrary to law or actuated to mala fide or irrelevant considerations.
Antrix Corp. Ltd. Vs. Devas Multimedia P. Ltd.
MANU/SC/0514/2013
Held: The Hon’ble Supreme Court of India has held that where an Arbitrator had already been appointed and intimation thereof had been conveyed to the other party, a separate application for appointment of an Arbitrator is not maintainable.
Once the power has been exercised under the Arbitration Agreement, there is no power left to, once again, refer the same disputes to arbitration under Section 11 of the 1996 Act, unless the order closing the proceedings is subsequently set aside.
Competition Commission of India’s Orders
Ashtavinayak Cine Vision Limited vs. Northern India Motion Pictures Association and others
Case No. 71 of 2011 | Dated: 10/01/13
Held: The Competition Commission of India found Northern India Motion Pictures Association (NIMPA) in contravention of the provisions of Section 3(3)(b) read with section 3(1) of the Competition Act.
The Commission observed that the acts and conduct of the NIMPA have caused appreciable adverse effect on competition by laying condition on every film distributor to become their member and/or register its film with the Association before the exhibition of such films.
Further, the Commission directed NIMPA, to suitably modify its Articles of Association, rules and regulations to remove the condition of compulsory registration of films as a pre-condition for release of any film.
The Commission had also passed a compliance order dated, 08th May, 2013 whereby, it has been asked from NIMPA to give an undertaking to the effect that the Association shall have no rules and regulations governing registration/release of the picture which discriminates the films on the basis of registration, release, language of films and number of screens relating the release of the films.
Dhanraj Pillay and others vs. Hockey India
Case No. 73 of 2011 | Dated: 31/05/13
Held: The Competition Commission of India in this case has analysed the scope of jurisdiction of the Competition Act over sports federation.
The Commission considered the international jurisprudence and literature on sports sector to draw relevant broad principles. The Commission observed that pleas of sports federations not being subject to Competition laws, is based on that they are non-profit organizations.
The Commission in this case has taken into consideration similar cases in other jurisdictions of the world, where the Courts have held that such organizations have no immunity from antitrust or competition law based on their non-profit status.
Therefore, on the basis of principles emerging from international jurisprudence, the provisions of the Act are applicable to such sports federations.
LEGAL NEWS
May 1, 2013
- Competition Commission has dismissed charges of alleged cartelisation by five firms, including Tata Chemicals and Nirma in manufacturing and sale of soda ash.
- The Government of India has announced a scheme through which it will provide financial support to young technology companies filing international patents. The five-year scheme that comes into force from this fiscal year will provide half the amount incurred in filing a patent and reimburse fees paid to an attorney.
May 6, 2013
As per a list compiled by the Home Ministry of India as on April 23, as many as 85 bills submitted by various states since 2010 under Article 200 read with Article 254(2) of the Constitution of India remain pending for consideration of the President.
May 7, 2013
- The Government of India has started a project called the Central Monitoring System which would be a single window from where the government arms such as the National Investigation Agency or the tax authorities will be able to monitor every byte of communication. The System will lawfully intercept internet and telephone services. It is being set up by the Centre for Development of Telematics.
- The Government of India is planning to introduce a new classification for investors that do not come under the foreign direct investment (FDI) route. These investors will now be classified as foreign portfolio investors.
May 8, 2013
- Finland has invoked an alternate dispute resolution provision in its double taxation avoidance agreement with India against the ₹2,000-crore demand slapped on handset maker Nokia, as it seeks to arrive at a negotiated settlement over the tax dispute.
- The Government approved the National Cyber Security Policy that aims to create a secure computing environment in the country and build capacities to strengthen the current set up with focus on manpower training.
May 10, 2013
- The Supreme Court of India dismissed a petition challenging the $8.5-billion Cairn-Vedanta deal, and ruled that a commercial decision cannot be regarded as mala fide or driven by ulterior motives merely on the grounds that it looks wrong in hindsight.
- The Finance Ministry of India has tightened norms for application of lower rate of service tax on construction, dealing a blow to buyers purchasing houses above a certain size or value.
- The Competition Commission of India has ordered a probe against four pharmaceutical entities including drug-maker Cipla and one person for anti-competitive practices in Himachal Pradesh.
May 13, 2013
Departmental enquiry and proceedings against government employee must be done in the language of his preference, the Supreme Court has said while setting aside punishment meted out to an official on the ground that proceedings were not conducted in Hindi as sought by him.
May 15, 2013
- In a setback to the Unique Identification Authority of India initiative, the government has put on the back burner a law to give statutory powers to the body that issues Aadhaar numbers.
- UK clothing chain Marks & Spencer may have to seek approval under the multi-brand retail policy to continue to do business in India as its current business model of selling sub-brands does not seem to meet the country’s single brand retail policy.
- The Supreme Court of India has agreed to hear a plea seeking to restrain government authorities from taking any coercive action against anyone for posting alleged objectionable comments on social networking sites.
May 16, 2013
The Supreme Court of India has said that all states and union territories must follow the Centre’s advisory and refrain from arresting people for posting allegedly objectionable comments on social networking sites unless senior police officials have given their approval.
May 17, 2013
Prime Minister Manmohan Singh initiated work on a new law to resolve disputes in public contracts being executed on a PPP (Public Private Partnership) basis in order to revive India’s core sector investments.
May 18, 2013
The Standing Committee on Finance recommended the scrapping of the Chit Fund Act, 1982, in the wake of the collapse of the Saradha chit fund in West Bengal.
May 19, 2013
- The Government will bring in a new legislation to deal with all kinds of betting in sports.
- Foreign institutional investors are holding back from buying Indian corporate bonds despite the best rally in five years due to confusion regarding withholding tax provisions.
- Revenue department officials can now arrest a person for non-payment of collected service tax after passage of the Finance Bill 2013.
- The Department of Pharmaceuticals notified the Drugs (Prices Control) Order, 2013 bringing prices of 348 medicines under price control.
May 20, 2013
- The Finance Ministry implemented a one-time amnesty scheme for service tax defaulters called the Voluntary Compliance Encouragement Scheme.
- SEBI is considering introducing a separate set of rules for foreign intermediaries soliciting business from Indian investors.
May 21, 2013
SEBI revised guidelines for algorithmic trading by introducing additional safety measures including half-yearly auditing of algorithmic trading systems by certified auditors.
May 24, 2013
- The Supreme Court ruled that anyone can record a dying declaration.
- The Government issued new guidelines requiring pharmaceutical companies to comply with European Union Good Manufacturing Practice (GMP) standards.
- India requires stronger domestic anti-bribery laws before becoming a signatory to the OECD Anti-Bribery Convention.
May 25, 2013
TRAI decided that telecom facilities given to subscribers would be immediately disconnected if they were found sending unsolicited communications. Such subscribers would be blacklisted for two years.
May 26, 2013
The Government intended to bring a law that would deal with all dishonest practices in sports, including cricket, and cover foreign players, bookies, conduits and spectators attempting to influence outcomes.
May 30, 2013
The Government of India examined the possibility of establishing a formal framework for resolving tax disputes, including cases similar to the Vodafone tax dispute.
May 31, 2013
The Bombay High Court held that liability towards an employee engaged by a contractor or managing agent is on the principal employer.
June 3, 2013
The United States expressed inability to compel internet companies such as Google and Facebook to provide Indian agencies with access to private user content.
June 4, 2013
- More than 65 countries signed the landmark treaty regulating the global arms trade.
- The Union Cabinet approved the Real Estate (Regulation and Development) Bill providing for regulation of the real estate sector.
June 5, 2013
The Enforcement Directorate issued a show-cause notice to Emaar MGF Land for alleged FEMA violations amounting to ₹8,600 crore.
June 6, 2013
- The Competition Commission of India rejected allegations of anti-competitive conduct against SABMiller India.
- The Department of Telecommunications was expected to finalize the unified licensing regime allowing telecom operators to offer multiple communication services under a single licence.
June 7 – June 30, 2013
- Commodity Transaction Tax became effective from July 1, 2013.
- SEBI was proposed to receive powers to summon phone records, emails and SMS messages.
- US Supreme Court restricted patentability of naturally occurring human DNA.
- SEBI worked on stronger Anti-Money Laundering guidelines.
- PIL filed before Supreme Court concerning NSA internet surveillance.
- Google sought permission from a US court to disclose government data requests.
- France threatened Google with penalties over privacy law violations.
- European Commission pursued member states over tax evasion directives.
- CCI approved Mylan’s acquisition involving Strides Arcolab subsidiary.
- Government ordered blocking of several websites hosting pornographic content.
- Income Tax Department withdrew and modified circulars relating to R&D centre taxation.
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