WHAT ARE CHEQUE RETURN CHARGES?

Charges that are levied by bank when there is a fault by the drawer refers to cheque return charges when such a thing happen both the drawer and drawee is liable to pay the cheque return charges. Cheque return and cheque bounce is one of the same thing. Generally the cheque return charges ranges from 200 rupees to 800 rupees depending on various banking company. Even Adhil Shetty, founder & CEO of BankBazaar.com said that “The penalty charges for cheque outward return are close to Rs 300 for most banks, while charges for cheque inward return are about Rs 100. The exact penalty charges vary with banks and are different for different account types. Premium accounts usually have higher penalty charges,”[1].

These charges are present because when a cheque is bounced bank undertakes more work and labour than they usually take thus these charges are the fee for the extra work that has been put by the bank. The charge that drawee’s bank charges the drawer is the known as the outward return cheque & the amount that the presenting bank i.e. where the cheque was deposited, charges the payee for the inward return cheque. Generally the inward return cheque charge are less than the charge that is payable by the drawer.

As per RBI notification[2], the regulating authority have made it clear that the banks cannot impose the cheque return charges when the bank was at fault and there was no mistake from the customers’ side and when there is such a fault than bank must resolve the issue and pass the said cheque within 24 hours all this was done by RBI while exercisingits power under Section 18 of the Payment and Settlement Systems Act, 2007.

A picture speaks louder than a thousand words, following the said quote the following image clearlydisplay what is the cheque return charges policy that is followed by prominent banks in India.[3]

[1]http://articles.economictimes.indiatimes.com/2015-06-19/news/63616968_1_cheque-amount-section-138-cibil

[2]RBI/2012-13/493

[3]http://www.business-standard.com/content/general_pdf/012614_03.pdf

Author: This blog is written by  Mr. Devashish Jain, student of College  of Legal Studies, UPES, a passionate blogger & intern at  Aapka Consultant.

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Startups now eligible for Cheaper and Quicker Patents

Ever since the coming of the NDA government, the business environment in the country has seen a certain buoyant mood. Many governmental schemes like Make in India, Digital India are doing really well especially because of Prime Minister Modi’s personal interest in all these schemes.

The latest development in this has been the latest move of the government that allows startups a speedy and cheaper process for registering patents.

There was a time when startups had to wait for a minimum of 5-7 years to get a patent for their company. Under the newly amended patent rules, this is set to become a thing of the past.

The Department of Industrial Policy and Promotion (DIPP) has notified that the NDA government has opened a special window specifically meant for this process. Via this, the applications will be rerouted to reduce the time to two and a half years at the beginning itself and further will be reduced to one and a half years by March 2018.

A previously missing definition of startups has been added to the rules through which the startups will be able to enjoy special benefits government has in place in the near future. An application by the name of ‘requesting for examination’ would also be expedited. The faster the applicant replies to the queries, the faster it gets to get patent.

Another amendment under this rule would be the reduction in the cost of applying for patents.  The current cost is Rs 1,600 equivalent for an individual person. The fee for request for examination is Rs.4,000. In the new amended rules, startups will be treated in the same bracket as an individual. If the start-up wants to speed up its patent application, it has to pay double the fee.

Not only that, startups will also be allowed to withdraw their applications at any time during the process without any penalty fee and may also be allowed refund of their application fee in certain cases.There are situations where after pursuing an idea for some time a startup may lose interest in it, for that too, they can withdraw their application with 90% refund of their original application fee. This is certainly a step in the right direction.

Further, with the new rules in place, startups from abroad too can apply for patents in India. However, they must satisfy the definition of a startup as under the rules framed by the Department of Industrial Policy and Promotion. As per the updated definition, a startup should be a company that has been in existence since the last 5 years or less and whose annual turnover is less than 25 crores.

However it must be noted that currently there are nearly 240,000 pending applications with the Department of Industrial Policy and Promotion and further around 2 lakh applications waiting in the examination stage, taking up all the applications seems to be a formidable task by all means which may not be a very good news for all startups.

But one must not forget that there is an added option of “tatkal” wherein a startup can expedite its patent registration process by simply paying the double application fee. In such a case, the examination process of such a startup would be given priority and will be completed on an urgent basis.

Further, such startups will also be eligible for an 80% rebate on their patent application as part of the startup action plan which is expected to further boost domestic filings for patents.

The liability of the patent application, however, similar to all cases will lie with the applicant i.e. the startup.

Author: This blog is written by  Ms. Mrinaal Datt, student of  University Institute of Legal Studies, Punjab University, a passionate blogger & intern at  Aapka Consultant.

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Six Abbreviations of Company Registration

Six Abbreviations of Company Registration are:

1. PAN

PAN can be expanded into Permanent Account Number. It is a 10-character identification number which is located on a photo-identity card, that is issued by the Income Tax Department. The main purpose of PANs is to keep a check on income tax transactions and other large financial transactions, while checking the rampant problem of tax evasion.

Any person who is an assessee under the Income Tax Act (this may be an individual, or any judicial entity) requires a PAN number, at the time of filing a return of income. It is necessary to quote the PAN whenever filing income tax returns or any other correspondence with the Income Tax Department. Unlike many similar documents like Aadhar or passports, it is not necessary for an applicant to be an Indian citizen. PAN is concerned only with financial transactions and any person who have financial interests in India may apply for it.

The usage of PAN is not restricted to income tax. Many large financial transactions also require a PAN number before the transaction can be made, in order to maintain transparency. One can now apply for PAN online, and the process has been made much easier.

2. TAN

TAN can be expanded into Tax Deduction and Collection Account Number. Similar to PAN, it is a ten-character number issued under the Income Tax Act, however, the purpose of PAN and TAN are slightly different.

While PAN is meant for individual income tax payments, entities which apply for TAN are those which are liable to deduct TDS, or Tax Deductable at Source. TDS is a certain way of collecting income tax in India. Unlike regular income tax, which is paid out of the income once it is received by the person, Tax Deductable at Source is deducted by the income payer themselves, before the amount is transferred to the payee. For example, a company while paying salary to it’s employees may first deduct their income tax and then pay them only the salary after deduction. In this case, the company is liable to deduct TDS and must have a TAN account. Again, this is another mechanism which helps prevent tax evasion.

3. MOA

An MoA or a Memorandum of Association, is one of the basic and most important documents of a company. When a company is created, or incorporated, then the Memorandum of Association must be filed with the Registrar of Companies. It contains a lot of basic information about the company itself.

The Memorandum of Association contains a number of clauses. Some are mere formalities, such as the name clause, which requires the name of the company and the registered office clause, which mentions the State in which the registered office is to be situated. Most important is the objects clause. This lays down the basic objects of the company and the purpose for which the company is established. The liability clause demarcates the liability of the members of the company, such as shareholders. The capital clause then states the authorized capital of the company and how it divides this capital into shares. Hence, these main clauses are required to the be present in the Memorandum of Association at the incorporation of a company.

4. AOA

The AoA or the Articles of Association are another constitutive document of the company which accompany the Memorandum of Association.

In contrast to the Memorandum of Association, the Articles of Association are a document mostly used for the management of internal affairs and not for the purpose of providing information to the public. While it also needs to the be filed with the Registrar of Companies, the company can use its discretion in the contents of the Articles of Association. It contains information such as the rights, duties and responsibilities of the members of the company. It also deals with the appointment of directors, how meetings are to be conducted by the directors and the internal decision-making powers and processes.

5. DIN

A DIN or a Director Identification Number is an identification number which is given to each director of a company. It is particular to the individual and not to the position. This means that each individual person will have only one DIN, even if he is the director of more than one or multiple companies. This is so that all the activities of this person can be managed and ensures transparency.

The main purpose behind the DIN is to prevent directors from indulging in malpractices and raising capital from investors and then cheating them. It is now mandatory for all new companies to apply for DINs for their directors. The application for a DIN can now even be done online.

6. DSC

A DSC or a Digital Signature Certificate is an essential component during the e-filing of taxes. E-filing is mandatory for those individuals who have an annual gross receipt of above Rs. 25 lakhs or for businesses with an annual turnover of over Rs. 1 crore.

The main purpose of a Digital Certificate is to ensure that all online transactions involving large amounts of money are done in a secure manner by authenticating the identity of the sender. It uses certificates to encrypt information and ensures complete privacy.

Author: This blog is written by  Ms. Sweta Pochiraju, student of National Law University-Delhi, a passionate blogger & intern at  Aapka Consultant.

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What legal action can be taken in case of cheque bounce?

General Provision

The dishonor of cheque is governed by Sec 138 of Negotiable Instruments Act, 1881. The dishonor happens due to insufficiency of funds. However, closure of a bank account before the date of drawing the cheque shall also be covered under this section. As stated in the aforesaid section, the amount subject to which the cheque has been drawn shall be a debt or liability of the drawer. It is presumed in Section 139 that the cheque has been drawn in favor of the holder for the payment of any debt, whole or in part. A complaint of the same can be filed mainly with the Magistrate under whose jurisdiction the drawee’s bank is established.

Punishment

Presently the drawer of such cheque as referred to in Section 138 shall be liable to-

• Imprisonment which may extend to 2 years. Or;
• A fine amounting to twice the amount of cheque. Or;
• Both

The offence under this section is of criminal nature. It is a bailable and non-cognizable offence.

Before filing a complaint

Following points should be considered before the drawee can file a complaint under Section 138-

• The cheque should have been presented in the bank within the period of its validity.

• The payee shall demand for payment of the amount from the drawer within 30 days of receiving notice of dishonor from the bank. The demand must be made by a written notice to the drawer by way of registered post.

• Further, if the drawer pays the amount within 15 days of receiving the notice, the complaint is not to be filed.

• If the above mentioned 15 days have also expired, a complaint can be filed within 30 days. This means that immediately after the expiry of 15 days from receiving the notice by the drawer, cause of action arises.

Remedies for the drawer

To prevent arrest in case the dishonor was not intended by the drawer then he/she can pay the amount within 15 days of receiving notice of dishonor. The following points should also be noted down-

• If you have made any arrangement with your bank regarding the maximum amount that can be withdrawn by way of cheque, never draw any cheque exceeding that amount, since dishonor on this ground shall also be covered under Section 138 of Negotiable Instrument Act.

• If you are a joint holder of an account against which a cheque has been drawn, please note that in case of dishonor only the person whose signature is present on the cheque shall be liable.

• In case, the payment has been stopped by the drawer before the check is presented by the payee for any justifiable reason, the drawer shall have to prove that the account had sufficient funds at the time of drawing the cheque.

• Absence of intention cannot be taken as a defense by the drawer in case of bouncing of cheque.

• If you are in any key position of a company please be extra cautious with cheques. Section 141 of Negotiable Instrument Act places vicarious liability on everyone who is in charge of affairs in the company. This means that a person can be arrested for the fault of others. Therefore, always take due diligence in a company since it stands as a good defense.

Recent developments

The judiciary has been actively debating on the question of jurisdiction under which a complaint is to be filed.

• According to earlier decisions of Supreme Court, the status was as follows. A, whose bank is in Lucknow drew a cheque for paying the debt of B, whose bank is situated in Delhi. When the cheque bounces, B can file a complaint in Delhi itself since his bank is situated in Delhi.

• On 1st August 2014, in Dashrath Rupsingh Rathod vs. State of Maharashtra, the Supreme Court held that a complaint can be filed at the place where drawer’s bank is situated.

• The order was reversed by the Central Government by modifying Section 142 in this regard through an ordinance in 2015. Later it was passed as an act. Therefore, presently a complaint can be filed even at the place where drawee’s bank is situated.

Author: This blog is written by  Mr. Amritanshu Tripathi, student of Shri Ramswaroop Memorial University, a passionate blogger & intern at  Aapka Consultant.

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What is Capital Gains Tax and how to avoid it?

Capital gains tax is a tax that the government levies on the sale of a capital asset. In this article, we break down the capital gains tax and also discuss ways to avoid it:

What is a capital gain?

Any kind of monetary profit or gain that a person obtains on the sale of a capital asset may be termed as a capital gain.

What is a capital asset?

Capital assets may be defined as assets that require some heavy investment, like land, machinery etc.

What is a short term capital asset?

A capital asset that is held for a period of 36 months or less is a short term capital asset.

What is a long term capital asset?

A capital asset that is held longer than a period of 36 months is a long term capital asset.

What is capital gains tax?

Capital gains tax is a tax that a person is supposed to pay on the sale of a capital asset in case the selling price of the asset is higher than the purchase price of the said capital asset.

Does the difference between short term and long term capital assets matter for the purpose calculating capital gains tax?

Yes. Short term capital assets and long term capital assets attract different tax rates so the distinction between the two is important for the purpose of calculating the capital gains tax.

What is the tax rate on long term capital asset?

On the sale of a long term capital asset- the tax rate applicable is 20% in addition to surcharge and education cess.

What is the tax rate on short term capital asset?

The tax rate on short term capital assets can be divided into two categories-

    1.tax rate when securities transaction is not applicable- no direct tax rate is applicable,     instead it is added to your income tax return and you are taxed as per the income slab     that is applicable to you.

2. tax rate when securities transaction is applicable- the tax rate applicable is 15% in addition to surcharge and education cess.

I received a property in inheritance/succession, would I be liable to pay capital gains tax?

No. A capital tax possessed by way of inheritance or succession does not amount to sale of the asset but a mere transfer of the said asset and capital gains tax will not be levied on such a capital asset.

Is there any way I can avoid paying the capital gains tax legally?

Yes, there are many exemptions available under the Income Tax Act to avoid paying capital gains tax:

Section 54- You can be exempted from paying the tax if the profit from the sale of your property is invested in another property within a specific period of time.

Section 54F- Capital gains tax will be waived off if you sale a long term asset other than a house property and purchase a new residential property within the specified time.

Section 54EC- If you invest your amount in capital gains account scheme, your capital gains tax will be waived off. The maximum amount that can be invested is 50 lakhs rupees. However, the said amount can only be redeemed after a period of three years.

Further Section IV exempts capital gains tax on capital gains from the sale of agricultural land. This is so because it is not considered a capital asset for the purpose of taxation in India.

These are the most common provisions to be exempted from paying capital gains tax in India.

Most importantly, one must remember that it is only the net capital gain that is subject to taxation under the income tax act and not the complete amount.

Author: This blog is written by  Ms. Mrinaal Datt, student of  University Institute of Legal Studies, Punjab University, a passionate blogger & intern at  Aapka Consultant.

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Procedure for VAT Registration

Simply put, VAT is a tax on sale of goods in India. It is applicable to goods and other products.

Value-Added Tax is traditionally levied on tangible goods i.e. items that can be seen, touched or felt with hands.

However, it is noteworthy that in light of recent judgments pronounced by various courts in India, intangible goods are also being brought under the ambit of VAT in India. With recent developments in the field of intellectual property, the test for determining the taxability of a good/product has moved from its tangibility to its capability of being used, consumed, transferred and owned/possessed. Therefore, a permanent transfer of any intellectual property is also liable to be scrutinized under VAT.

The salient feature of VAT is that no input gets taxed twice and the ultimate levy of tax is only on the value addition made in the process of producing and/or selling goods.

Unlike a Direct Tax like Income Tax, it is not the seller who has to bear the burden of tax. It is the ultimate consumer who pays the amount of VAT. The seller collects the VAT from the consumer and pays it to the Government.

Registration: Mandatory or Voluntary?

To understand the VAT registration procedure in detail, first we must understand the term ‘goods.’ We are going to do this with the help of an example.

In the context of VAT, traditionally the term ‘goods’ means any item capable of being seen, touched and felt.

Let’s say you have an electronics showroom in Delhi and you are engaged in selling Televisions. Since a television is a tangible good i.e. it can be seen, touched and felt with hands, VAT is payable by you. Now if your annual sales do not exceed INR 20 lakh, you do not need to pay or register under VAT. But, as soon as your annual sales exceed INR 20 lakh, it will be mandatory for you to obtain registration under VAT and to charge VAT from customers and pay it to the Government.

Owing to the rapidly expanding e-commerce world, it is necessary to clarify that even if you do not own a physical shop or showroom, but you are selling goods exclusively online, you will need to get registered under VAT if your turnover exceeds the specified limit. The reason for this is that VAT is a tax imposed on goods, irrespective of the mode of sale.

It is always advisable to apply for registration under VAT before you cross the threshold limit of annual turnover as you might face heavy penalties if you exceed the prescribed limit.

There are some instances where it is compulsory to get registered under VAT irrespective of the annual turnover i.e. it is mandatory to get registered even if your annual turnover is below the threshold limit. The points below neatly summarizes all such instances.

• You are an importer
• You are registered/liable to get registered under CST
• You are liable to pay tax at a special rate e.g. on liquor
• You are engaged in the business of works contract and opt for the composition scheme
• You are carrying business in a state other than the state of your usual residence
• If you are an Agent (by whatever name called
• If you are availing any tax holiday or tax incentive scheme

Registration: Going Through the Process

The process of registration can be summarized with the help of following points below. The entire process is explained in detail later.

• Locating the VAT Office
• Application for Registration
• Physical Inspection
• Payment of Prescribed Fee
• Issue of TIN/VAT Certificate

Step 1: Locate the local VAT registration department e.g. Department of Trade and Taxes in Delhi

Step 2: Obtain the Registration Form, fill it and submit it along with the required documents. Following documents are required to be submitted along with the application:

• Central Sales Tax registration certificate (Form A)
• Professional Tax registration certificate
• Address and ID proof of the Proprietor/Partner/Director
• Four passport-sized photographs, PAN Card and Bank Account Number of the Proprietor/Partner/Director
• Details of business activities
• A copy of the Rental Agreement of the business premises
• Partnership Deed (in case of Partnership Firms)
• Memorandum of Association and Articles of Association (in case of a Private Limited Company)

Step 3: After submission of the completed application form, your business premises will be inspected by the local VAT authorities. This is done to establish the authenticity of the business. The time of inspection is notified by the authorities.

Step 4: After the physical inspection of your premises is complete, you will be required to pay the prescribed fee for registration.

Step 5: After you make the payment, a Taxpayer’s Identification Number (TIN) will be issued to you immediately. A certificate of registration under VAT will be issued within a week’s time.

Now your business is registered under VAT and you can start collecting VAT from your customers on goods sold to them as well as setting off the input VAT paid by you on purchases.

There are several other benefits of registration like:

• No Cascading effect. All inputs will be taxed only once.
• After obtaining registration, you will be known as a registered dealer. A registered dealer can opt for the VAT composition scheme.
• Registration entitles you to a TIN No. and you will be able to issue tax invoices. You cannot issue tax invoices without a TIN Number.

Note:Some states like Delhi have also started the facility of online registration. In this case, the application form can be filled online and a self-attested scanned copy of all the requisite documents is required to be uploaded. The registration will be granted immediately on payment of fee and physical verification of premises by local VAT authorities will take place after the registration is granted.

The advantage of online registration is that you do not need to visit the Department of VAT to obtain registration.

However, your registration is liable to get canceled if any discrepancy is found in the course of physical verification in relation to the information provided online.

VAT registration process is fairly simple and with the introduction of online registration, the process has become even more convenient and easier.

Author: This blog is written by  Ms. Pragya Chaturvedi, student of Faculty of Law, University of Delhi , a passionate blogger & intern at  Aapka Consultant.

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Divorce without Mutual Consent

While considering divorce, when both spouses agree to part amicably it is known as divorce with mutual consent.

However, when one spouse wants to get a divorce and the other spouse does not agree to the divorce, it is known a divorce without mutual consent.

Divorce without Mutual Consent in Hindu Law:

Under Hindu Law, divorce by mutual consent is possible and provisions relating to the same have been provided in the Hindu Marriage Act. However, if your spouse objects to the divorce, you can apply for the same on the basis of any of the grounds mentioned in section 13 of the Hindu Marriage Act.

These grounds are briefly summarized as follows:

• Adultery
• Cruelty; mental as well as physical
• Conversion to another religion
• Mental disorders
• Psychopathic disorders
• Communicable form of sexually transmitted disease
• Unsound mind
• Desertion by spouse
• Bestiality/sodomy by husband
• Another living wife of husband
• Marriage of girl before attaining the age of 15 years

For taking any of the above as ground(s) for divorce, the consent of the other spouse is not necessary. A petition for divorce can be filed even if the other spouse objects to it.

Divorce without Mutual Consent in Muslim Law:

Under Muslim Law, divorce is divided into two categories:

1. Judicial Divorce
2. Extra Judicial Divorce

Judicial Divorce:

Under Muslim Law, this is the only way in which a woman can seek divorce of her own will. A judicial decree of divorce can be sought by the wife on the following grounds:

• If husband has been missing for four years and the wife or any other person who might be reasonably expected to know his whereabouts are unable to locate him
• If the husband has neglected to maintain her or provide her maintenance for two years
• If the husband takes an extra wife in violation of provisions of Muslim Family Laws Ordinance, 1961
• If the husband has been sentenced to prison for a period of 7 years or more
• If the husband has failed to perform his marital obligations without reasonable cause for a period of 3 years
• If, at the time of marriage, the husband was impotent and continues to be impotent
• If the husband has been insane for a period of 2 years
• If the husband suffers from leprosy
• If the husband suffers from a virulent venereal disease
• If she was married before the age of 16 years and repudiates the marriage before attaining the age of 18 years
• If the husband falsely accuses his wife of adultery

Extra Judicial Divorce:

This is further divided into two categories:

1. Extra Judicial Divorce by Husband:

The provisions of divorce or talaq as it is known in Muslim law are majorly patriarchal and the husband enjoys significantly substantial rights and privileges as compared to the wife.

The husband enjoys absolute power to divorce his wife without any cause and end the marriage by simply uttering the word ‘Talaq’ three times.

As per the judgments in some cases, wife’s presence is not necessary for talaq and it will deemed to have come into effect from the day when the wife came to know of it.

It is also not necessary to be in writing. Talaq can take place either in writing or by pronouncing orally.

Constructive Divorce:

Apart from Talaq, there are two more ways in which a husband can repudiate his marriage. These modes are known as Ila and Zihar. Here the husband abstains from having sexual intercourse with his wife for a certain period of time and dissolution of marriage take place after the expiry of that time period.

This is known as constructive divorce. Constructive divorce now exists more in theory than in practice and divorce by pronouncing Talaq is commonly practiced.

2. Extra Judicial Divorce by Wife:

Except for judicial divorce, a wife cannot divorce her husband of her own will. She is allowed to divorce her husband only if her husband has delegated authority to her to do the same.

Divorce without Mutual Consent in Sikhism:

Earlier, the provisions of Sikh marriages were governed by the Hindu Marriage Act but after the Anand Karaj Act, Sikh marriages have their own separate governing provisions.

However, the Anand Karaj Act does not contain any provision for divorce. This means that under the Sikh Marriage law, divorce is not recognized.

Sikh couples can obtain a divorce without mutual consent under the Hindu Marriage Act which lays down the grounds for divorce.

Divorce without Mutual Consent in Christian Law:

Under Christian law, provisions of divorce are governed by Indian Divorce Act, 1869. Most grounds for divorce are similar to Hindu Marriage Act with some additional grounds as well.

As per this act, either spouse can take the following grounds for divorce:

• The other spouse was impotent at the time of marriage and at the time of institution of suit for divorce

• That the spouses are within the prohibited degree of consanguinity or affinity

• Either spouse was an idiot or lunatic at the time of marriage

• Another living husband/wife of either spouse at the time of marriage

Grounds for Divorce for Christian Women:

Apart from the grounds mentioned above, a Christian woman can rely upon following additional grounds as well:

• If her husband ceases to be a Christian and marries another woman
• Incestuous Adultery i.e. adultery with a family member
• Bigamy with adultery
• Marriage with another woman with adultery
• Rape, sodomy or bestiality
• Adultery along with cruelty
• Adultery along with desertion for 2 years

Author: This blog is written by  Ms. Pragya Chaturvedi, student of Faculty of Law, University of Delhi , a passionate blogger & intern at  Aapka Consultant.

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