Grounds for Divorce in India

Getting a Divorce is a not an easy process. Apart from being financially burdensome, the entire process of dealing with your soon-to-be former spouse and their family can drain you out mentally as well.

The rate of divorce in India is 13 cases of divorce per 1000 marriages, which is extremely low when compared to countries like the US where it is 500 cases of divorce per 1000 marriages.

Despite this low rate, cases of divorce are becoming increasingly common in India. It has increased nearly 4 times during the last four years. However, the sad and unfortunate reality is that in most places in India it is still considered somewhat of a disgrace to openly talk about it.

If you are not happy in your marriage and considering divorce; but are not sure enough to talk to someone about it, read on to ascertain the grounds on which you can file for it.

The Hindu Marriage Act states the following grounds on which you can seek divorce from your spouse.

Adultery: If your marriage has been solemnized i.e. performed with formal and ceremonial rituals, and after solemnizations your spouse has engaged in voluntary sexual intercourse with someone other than you, it is known as adultery and it is a valid ground to seek divorce.

E.g. your marriage ceremony takes place on 21.11.2015. On 30.11.2016, your husband/wife engages in sexual intercourse with your friend. This is adultery.

Cruelty: This is a very commonly used ground to seek divorce. The underlying premise is that your spouse has treated you with cruelty. Cruelty can be both physical as well as mental.

What is worth understanding here is what constitutes cruelty. Some instances are given below.

• Occasional verbal spats are part of every marriage. In a fit of anger, both spouses say some hurtful things to each other and in majority of cases; it does not amount to cruelty.

However, if your spouse is continuously abusive towards you, it might be a case of mental cruelty.

• Cases of physical abuse are covered underas cruelty.

• It might come as a surprise, but denying sexual intercourse is covered under cruelty. The Supreme Court in a recent judgment has held that denying sexual intercourse to your spouse over a prolonged period of time without sufficient reason is mental cruelty.

• Abusing your spouse with sexual slurs without justification has been ruled by the court as mental cruelty and a valid ground for divorce. The reason given was that such unfounded allegations on the spouse’s character leave an indelible mark on his/her mind, making it difficult to continue marital ties.

Desertion: According to law, if your spouse has deserted you for a continuous period of at least two years immediately before presenting the divorce petition, it will be considered a valid ground for divorce.

For the purpose of divorce, desertion means withdrawing from all matrimonial obligations without a just cause.

It is pertinent to mention that merely living does not amount to desertion. If a spouse has completely given up his/her marital duties and responsibilities towards the other person, then only such behavior can be termed as desertion.

It is also important to note that desertion is not a single act, but a continuous course of conduct.

If your spouse has not been heard as being alive for more than 7 years, it constitutes desertion too.

Conversion: If after marriage, your spouse has converted to another religion, you can legally state this reason as the ground for seeking divorce.

Unsound Mind:The expression ‘unsound mind’ means that because of the infirmity of his/her mind, the person is incapable of managing himself and his affairs.

The law states that if your spouse is of an unsound mind, and his/her condition is not curable, you can apply for divorce.

Mental Disorders: If your spouse suffers from such a mental disorder that it is not reasonably possible to live with him/her, you can seek divorce.

Some explanations and inclusions are as follows:

• The term mental disorder has been defined as a mental illness, psychopathic disorder, arrested/incomplete development of mind, psychopathic disorder and any other disorder of mind.
• Mental disorder includes Schizophrenia.
• Psychopathic disorder means that the person suffering from it engages in abnormally aggressive or socially irresponsible behavior. To seek divorce on this ground, it is not relevant that the psychopathic disorder is treatable by medicine or not.

Some other Instances to be considered:

• An incurable and virulent form of leprosy is a ground for divorce.
• If your spouse is suffering from a communicable form of sexually transmitted disease, it is a ground for divorce.
• If your spouse has joined any religious group and completely renounced the world, it is a ground for divorce.

Grounds for Divorce for Wife: The grounds mentioned above can be relied upon by both husband and wife. However, there are some grounds for divorce that can be taken by the wife only and not the husband. These are:

• If the husband has engaged in sodomy or bestiality.
• If the wife was married off before the age of 15 and she has repudiated the marriage after the age of 15, but before attaining the age of 18.
• If the husband has another living wife at the time of presentation of petition for divorce.

Please note that divorce takes place between two human beings and because of the complex nature of interpersonal relationships, there is no strait jacket formula that applies to all cases. You can apply for divorce based on any of the above grounds, but whether it’ll be granted or not depends on the facts and circumstances of each case and also on the evidence provided for the grounds taken for divorce.

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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What is the new Service Tax Rate?

This year, our Hon’ble Finance Minister, Shri Arun Jaitley notified about the increase in service tax by 0.5% during his budget speech on 29th February 2016. In addition to 14% Service Tax and 0.5% Swachh Bharat Cess, there will be an additional Cess of 0.5% known as Krishi Kalyan Cess. This means that the new rate of service tax shall be 15%. The proceeds from the new Cess shall be directed towards promoting agricultural activities. However, following points are to be kept in mind regarding the same-

1. The new rate of Service Tax shall be applicable from 1st June 2016. This means the taxpayers of assessment year 2015-16 shall be subjected to the old rate of 14.5%, which includes the Swachh Bharat Cess of 0.5%.

2. Theoretically, it is not an increase the Service Tax itself, but an addition cess of 0.5% has been implemented. This cess is known as Krishi Kalyan Cess.

3. In the assessment year 2016-17, services provided till 31st May, 2016 shall be chargeable at 14.5% and from 1st June, 2016 the service tax shall be calculated at the rate of 15%.

4. If a service is provided before 1st June, 2016 but the Invoice is raised and payment is made after 1st June, 2016, then Krishi Kalyan Cess shall be applicable.

5. If a service is provided before 1st June, 2016 and either the Invoice is raised or payment is made before 1st June, 2016, then Krishi Kalyan Cess shall not be applicable. The official notification regarding the same can be found here.

6. It is also to be noted in regard to points 5 and 6 that the invoice of services provided must be raised within 14 days to claim exemption of Krishi Kalyan Cess. If an invoice has been raised after 14 days of services provided, the Service Tax shall be applicable at the rate of 15%.

7. Service Tax is applicable only on service providers whose aggregate value of turnover is above Rupees 10 Lakh in a single financial year. The meaning of aggregate value of turnover is prescribed under Section 67.

8. Further, if the value of turnover exceeds Rupees 9 lakh, the service provider must apply for Registration of Service Tax within 30 days of such exceeding.

9. Service Tax in general is applicable on all the services except those in the negative list of the government. Further exemptions from Service Tax are negatively notified by CBEC from time to time. All official notifications regarding service tax can be foundhere.

10. Service Tax is applicable to whole of India except the State of Jammu and Kashmir.

The increment was necessary for the economy since the agricultural sector has been going through the years of bad harvest. The contingencies compelled the government to make provision for the same. Hopefully, there shall be some of our money that we pay for our meals at luxurious hotels, which will certainly go to people behind those meals, that’s our farmers. In my opinion, the implementation date could have been 1st of July, 2016, that is the second quarter, since Service Tax is payable quarterly.

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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NEED TO REGISTER A LOGO

Well the Indian legal system does not make an obligation for a company whether it being a sole proprietorship or a private limited company or any company for that matter to get there logo registered as such but the relevance of a registered logo is something which cannot be ignored with, but before arriving at conclusion as to whether there is need to register a logo or not certain terms and conditions needs to envisaged and clarified with, which are hereby referred to.

• CONCEPTION OF LOGO

Logos are a critical aspect of corporate marketing. As the company’s major graphical representation, a logo facilitates a company’s brand and becomes the single most visible manifestation of the company within the large targeted markets. For this reason, a well-designed logo is an essential part of any company’s overall marketing strategy which can be further enhanced through legal protection. In India for granting legal protection to a logo a company or an individual claiming to be the proprietor of the trademark needs to get it registered under the Trade Marks Act, 1999

• ADVANTAGES OF A LOGO REGISTERED AS A TRADEMARK

• LEGAL SANCTITY- Once a logo is being registered under the Trade Marks Act, 1999 there are various provisions in the act which will provide for a legal protection to it and the infringement of which may confer a right upon the proprietor of the registeredlogo toinitiate action against those responsible, in order to claim monetary compensation. Thus a registered logo provides an exclusive right to the proprietor.

• DISTINCTIVE IDENTIFICATION-The concept of distinctive identification does not  only states that the services given or products manufactured by the company should be different from that of other but in its broader sense its states that the distinction should be such that no other competitor can infringe upon of what a particular company is offering to its customers and this is where a registered logo plays a vital role since it provides a company a distinctive legal identity which cannot be used by any other company.

• GEOGRAPHICAL BANDWITH- When a proprietor gets its logo registered under the Trade Mark Act, 1999 generally the protection granted to it is a nationwide protection which means that he enjoys the exclusive license to market its products and services under the registered logo without any third party intervention. Thus this helps to capture a big market and increase the capital.

• ASSET CREATION– The protection given to a proprietor under the Trade Marks Act, 1999 is an intellectual right which gives him the right of selling, franchising or commercially contracting with other company. Thus a great amount of money is generated which eventually leads to asset creation.

• GOODWILL ENHANCEMENT – When a logo is registered it creates a sense of trustand quality assurance in the minds of the customer of the uniqueness of the product or services of the company. Which eventually leads to enhancement in the goodwill of the company.

• CONSEQUENCES OF NOT REGISTERING LOGO AS TRADEMARK

• NO RECOURSE TO LEGAL ACTIONS – The first and foremost consequence which a proprietor would have to bear is that there will be no recourse to any legal action since because law only provides a remedy when a right subsists but since the logo being unregistered cannot have its recourse to any legal action for any infringement.

• EFFECT ON BALANCE SHEET- A logo registered as trademark is considered to be an asset of the company and is always reflected in the balance sheet but in case it is not being registered it ceases to be included in the balance sheet which can lead to more liabilities and less assets and eventually can affect the profit margin of the firm.

• LOSS OF GLOBAL MARKET- A logo registered in India as trademark could be used as to tool to secure trademark in other countries for carrying out its business. However if the logo is not registered it becomes very difficult to procure a trademark in that respective country in which the proprietor of the trademark professes to carry on its trade and thus it may result in loss of global market.

• LOSS OF UNIQUE SYMBOL IDENTIFICATION- Registered logo grants the proprietor of the trademark  to use the ® symbol when the mark is used for the goods and services listed in the registration which gives him the ultimate sovereignty to use it for commercial purpose and on the other hand unregistered logo are to be designated by a superscript “TM” which can be used by anybody professing to be the proprietor of the trademark. Thus there is a loss in unique symbol identification as far as unregistered logo is concerned.

CONCLUSION 

Thus based on the analysis of the above advantages and the consequences one could infer that it is proximate to get a logo registered since it will help the proprietor to convey the intellectual attributes of the product and services of his firm or company and would also help to gauge more consumer attraction. Thus it is advisable to get a logo registered under the Trade Marks Act, 1999.

Author: This blog is written by  Mr. Rohitesh Tak, student of National University of Advanced Legal Studies, Kochi, a passionate blogger & intern at  Aapka Consultant.

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Direct Tax & Indirect Tax

Direct Tax is a very straightforward method of taxation. Direct taxes have the following characteristics which distinguish them from indirect methods of taxation.

1. It is imposed upon eitheran individual (which can include a person, or even an individual organization or company) or else upon some sort of property (this can include land, or even income such as wages).

1. These taxes are paid to the government directly by the person who is bearing their burden. For example, property tax is paid by the owner of the property.

3. The burden of direct taxes cannot be shifted. This is an important feature of all direct taxes, because it means that the taxpayer cannot shift the burden onto anyone else. Hence if a person has to pay income tax on the income they have earned, then they must pay this amount out of their own pocket. There is no way of shifting the burden onto anyone else. No third person can be asked to pay the tax or bear the burden of the tax. The person earning the income is the only person who can be asked to bear the burden of the income tax. Hence a direct tax is often defined as one whose burden cannot be shifted to anyone other than the taxpayer.

4. Direct taxation applies to all individuals. There is no way in which one can actively avoid direct taxes, or consciously make decisions so as not to pay such taxes. Direct taxes are mostly unconditional.

5. Direct taxes are mostly progressive, meaning that they are levied according to the financial status of a person. In Income tax, people with higher incomes are charged higher percentages of tax while those with extremely low incomes are often exempted from tax altogether.

Indirect Taxes are not as straightforward as direct taxes. They have the following characteristics which can distinguish them from direct taxation.

1. Indirect taxes are not imposed upon individuals or property, but rather upon the transactions between these entities. For example, a sale made between two companies is a transaction which can attract indirect taxes. But this is not the same as the companies themselves paying direct taxes.

2. Indirect taxes are not paid by the person who is bearing the burden. For example, VAT is paid by the manufacturer but the actual burden is on the final consumer who buys the product.

3. The burden of indirect taxes can be shifted away from the taxpayer. For example, even though the manufacturer is liable to pay VAT whenever they sell a product, they need not pay this amount out of their own profits. Rather, the manufacturer will collect the VAT amount from the consumer by adding it to the price of the goods. He will then pay the same to the government. Hence even though the manufacturer is essentially the taxpayer, he is not bearing the burden and is shifting it to the consumer.

4. Indirect taxation does not apply to all individuals. Since it is a tax on transactions, the tax will not arise unless the transaction takes place. Hence if one does not participate in these transactions then they will never have to pay indirect taxes.

5. Indirect taxes are not progressive. For example, the amount of VAT charged from a consumer will always be the same irrespective of the financial situation and earnings of the consumer himself. A poor man pays the same amount of VAT as a rich man.

The biggest source of Direct Taxes in India is Income Tax. This is a tax charged from individuals, on the amount of income that they earn. The percentage of income taxed depends upon the level of income of the person; people who earn more have to pay a larger portion of their earnings as income tax. Income Tax is also a central tax and hence is paid to the central government of India. Corporate Sector tax is also an important source of direct taxes since huge corporations make large profits and are an important source of taxation income for the government. The taxes levied on companies are also direct taxes.

The major source of Indirect taxes in India is VAT or Sales Tax. These are taxes levied on specific transactions and the rates of the same are fixed by the government. They are State taxes and hence are paid to the respective state where the transaction takes place.

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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Company Registration in Delhi

As per law whenever a company has to be registered it has to be registered in accordance with the provision of the Company Law 2013 and the relevant amendments that effect the same. When it comes to Company Registration, all the procedure is defined under the said law along with that the said law also stipulates few requirements such as in case of a private company there should be at least 2 persons and in case of a public company there should be at least 7 people, a new concept has also emerged during the years known as single person company, a single person company is owned and operated by a single individual. Along with that there should be relevant copies of documents such as Adhaar card, pan card, bank account statement, electricity bill, etc. along with that copies of the saledeed, lease deed, rent agreement etc. should be kept in handy as one will require these documents time and again.

Now the procedure that has to be followed when it comes to registration of company is a follows:-

1. Collect the relevant documents and make sure that one of the director of the company has to be present in India for more than 182 days during the previous calendar year.

2. Directors have to attain the DIN (Directors Identifications Number) in the regional office of Ministry of Corporate Affairs.

3. Directors than have to attain the Directors Signature Certification (DSC) which is used to fill the E-Forms and to put their Signature wherever required. Usually they are prepared by third party Company which is thereafter recognized by the government of India.

4. Now one have to select the name of the company and have to submit 4-5 names that they wish to choose. This should be done after cross checking the existing names in the MCA portal.

5. The Regional office of the Ministry of Corporate affairs will take time to verify the same and one it is satisfied it doesn’t match with any other name of the company than they allot you the said name.

6. Now comes the turn to draft heart and soul of the company i.e. MOA, AOA. Memorandum of association and articles of association are important documents as they regulate the framework and regulations of the company.

7. Thereafter one have to fill the relevant forms on the MCA’s website to get the company registered, when it comes to Delhi State.

8. When all the forms are full filed, MCA’s website will take to the payment page where you will have to make the payment of ROC Stamp duty.

A glimpse of the average cost can be seen below[1]:-

SNO	Particulars	Charges or Cost or Fee	Total Amount in INR
1	Getting DIN	500/- INR per DIN	1000 INR
2	DSC Charges(2 Number of the Directors)	1500/- INR per DSC	3000 INR
3	Company Name Approval	1000/- INR per application	1000 INR
4	Stamp Paper and Notary Charges	depend on affidavit, certification	500 INR approx.
5	Company Registration in Delhi Forms, MOA,AOA	(300+2000+300+300+300)	3200 INR approx.
6	Stamp Duty Fee of MOA, AOA and Forms	State wise	700 INR Approx.
	Total Cost or Govt. Fee For Company Registration in Delhi		9400/-

1. Now all the documents submitted will be cross checked by MCA and if they are found to be upto mark they will accept them and if not they will ask you to resubmit the documents so required.

2. After verifying all the documents MCA will issue the Certificate of Incorporation in electronic form.

3. Now when you register your company it becomes evident to get a pan card for the same as generally companies are formed to carry out economic activities which requires one to file Income tax return and to file such a return pan card is essential. Pan Card itself is not enough depending on the type of the business your company undertakes and the turnover of the same one will have to attain necessary registrations under service tax or attain TIN Number to carry out the work in a peaceful manner.

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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What is Trademark Class 35?

The International Trademark classes were established by a multilateral treaty amongst United Nations’ countries under the Nice agreement of 1957. The Nice agreement is an international classification of goods and services applied for the registration of marks under the authority of the World Intellectual Property Organisation.

When you file for a Trademark, you are required to choose from atleast one of the International classes to identify and zero in on from the list of given goods and services for the purpose of your application.

To help you decide what goods or services to list think about the exact nature of your business, you must ask yourself the following questions and arrive at a definitive answer-

• From where do you derive your business income? What is its main source?
• What is the nature of your business and business activities?
• What are you known for by your customers/clients?
• What products or services does your business provide?

If your TM application deals with goods then as per the Nice agreement, classes 1- 34 will apply. However, if your TM application relates to services instead, then classes 35-45 may apply.

While applying for your trademark application, you are also supposed to pay some trademark application fee which depends upon the trademark class you are applying to. It may so happen that the trademarks you are applying for, fall under various different categories, in such a case, your trademark application fee will be calculation by taking into account all the applicable Trademark Classes in the agreement.

In the present post, we shall be discussing in detail Trademark Class 35 of the Nice Agreement which relates to trademark applications in the service sector.

Trademarks Class 35 relates to the (Advertising and business) Advertising; business management; business administration; office functions. Thus it may be seen that Trademark Class 35 basically consists of services that are rendered by an individual or an organization for the purpose of commercial activities, business management of a commercial or an industrial enterprise. It also includes advertisements or declarations made to public at large via various communication channels.

From the first part of the description, one may easily infer that Trademark Class 35, or atleast a part of it relates to advertising or any other related activities like promotion or marketing. However, this too comes with its own set of exceptions. The most glaring of all being, it does not consists of tangible advertising like billboards that you may see on a highway, flyers, pamphlets, brochures etc. This is so because Trademark Class 35 only deals with the aspect of ‘services’ and not goods. This distinction is imperative.

The second part of the definition talks about business activities which may seem easy to decipher at first glance but the reality is far from this. Though theoretically all business activities should have been under the ambit of Trademark Class 35 as per the description but this is not the case.

Not all business related services come under the umbrella of this class but some discernible patterns seems to have been developing in the recent time. Essentially, a service that can be classified solely as a business service would come under the latter part of the definition of the Trademark Class 35. For example services like consulting, administering, managing, developing, researching, organizing etc would be covered in this description.

Further employment and retail services like hiring, recruiting, training, or selling of products would be covered in this definition.

Thus it may be concluded from the above mentioned information that in case of services that fall under the categories of advertising or business management function, an individual or a business should apply under Trademark Class 35 to avail the requisite rights.

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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What is Value-Added Tax?

Value-Added Tax is a type of tax levied in India, which is charged on final goods and services. It is a tax on the sale or purchase of goods, and is collected separately by each State government for the sales made within their State. Hence the rates of VAT may vary between states. However, it still forms an important part of India’s GDP.

Goods and services often go through a long production chain, where value is added at each level. For example, a woodcutter may cut down timber and then sell it to a carpenter. This carpenter will then shape the wood into a chair. After that, he may further sell it to a furniture store, where cushions and linings may be added to the chair. Then, the completed chair will be sold to a consumer. At each stage in this process, certain valueis added to the product. The carpenter adds value to the wood by carving it and then sells it to the furniture store. The price for which he buys the wood will be much lower than the price for which he sells the chair, and this is the measurement of value.

Value Added Tax does not tax the profit, but the value added to the product at each stage of this chain. Hence the tax is multi-staged.The exact VAT to be paid by each intermediary in the production chain is calculated through the following formula:

VAT = Output Tax – Input Tax.

Input tax is the tax that the supplier pays while procuring some sort of good or raw material. For example; the carpenter who purchases the raw wood may be paying Rs. 500 for this wood, out of which the actual cost of the wood is Rs. 450 and the Input tax is Rs. 50. When the carpenter finally sells the furniture, he may sell the chair for Rs. 1000, out of which Rs. 900 is the actual cost of the chair and Rs. 100 is the VAT which he will receive from the furniture shop. This Rs. 100 is the Output tax.

The carpenter will then subtract the tax he paid (Rs. 50 to the woodcutter) from the tax he received (Rs. 100 from the furniture shop owner.) The remaining quantity (Rs. 100 – Rs. 50 = Rs. 50) is the final amount of VAT that he is required to pay. Hence the carpenter is liable to pay a VAT of Rs. 50.

VATis an extremely transparent system since it collects tax from each supplier at every level of the chain and makes compliance easier, as well as reducing the possibility of evasion.The general rule is that any person or firm who earns an annual turnover (sales income) of more than Rs. 5 lakhs by supplying goods or services is required to register and pay VAT. However, since VAT is under individual State governments, the requirements may differ.

Value-Added Tax is  an indirect tax. This means that even though the suppliers/producers of the products are paying the tax, the actual economic burden is on the final consumers of the goods. This means that the last person who purchases the good or service without reselling it is the one who bears the burden. Final consumers pay VAT to the producers/suppliers, who then later pay the same tax to the government. Hence even though the tax is being paid by the producers, they are not the ones actually paying it and the burden is on their customers.

For example:

If the percentage of VAT is 10%, then we can look at the following example.

The woodcutter in this case sells the wood for Rs. 1000, of which 10% is 100. Hence the woodcutter will charge 1100 from the carpenter. The woodcutter pays Rs. 100 VAT from the amount he received from the carpenter, not out of his own profits.

Next, the carpenter may create a chair out of the wood that cost him Rs. 1100. He then sells the good for a price of Rs. 2000, of which 10% is 200. Hence the carpenter will charge 2200 from the customer. He will pay a VAT of (200-100) 100, out of the money he receives from the final customer.

The final customer, here, has paid Rs. 200 VAT. While the woodcutter and the carpenter passed on the burden of their VAT to the next person in the production chain, the final consumer cannot do the same. Hence he bears the burden of the Rs. 200 VAT himself. This is how VAT is an indirect tax, where the tax is paid by the producers but the burden is borne by the final producer.

How VAT is applicable depends on both the State which is levying VAT, as well as the product/service on which it is levied. Certain states have higher VAT rates. Similarly, there are many items on which no VAT is charged such as salt and khadi. Precious stones may have a very low rate of VAT such as 1%. Luxury items often have high VAT rates. These rates are set by the States and vary from time to time.

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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