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CAN SOCIETY CHARGE MAINTENANCE CHARGES ON AREA WISE BY WHICH LARGER FLAT OWNERS CONTRIBUTE A LESSER AMOUNT THAN SMALLER UNITS?

September 30, 2022

  Nowadays an ultra-vires method of chargability has been adopted by several societies. The committee uses its majority power and misguides the General Body of members and passes the resolution.  Chargeability on unit-wise results in higher contribution by small flat owners and lower contribution by larger flat owners. Maintenance charges are the foundation to run the expenses of the society. Now first let us see the provisions in the Act of 1960 and the byelaws. Byelaws are contracts between the management and society. Any breach of byelaws amounts to a breach of contract and breach of trust. Any discrimination made is a serious breach of equal rights granted under the constitution of India. BYE-LAWS PROVISIONS FOR CHARGABILITY OF MAINTENANCE: LEVY OF CHARGES OF THE SOCIETY The contribution to be collected from the Members of the Society, towards outgoing and establishment of its funds, referred to in these bye-laws as ‘the charges’ may be in relation to the following : (i) Property Taxes, (ii) Water Charges, (iii) Common Electricity Charges, (iv) Contribution to Repairs and Maintenance Fund, (v) Expenses on repairs and maintenance of the lifts of the Society, including charges for running the lift. (vi) Contribution to the Sinking Fund, (vii) Service Charges, (Viii) Car Parking Charges, (ix) Interest on the defaulted charges, (x) Repayment of the installment of the loan and interest, (xi) Non-occupancy Charges, (xii) Insurance Charges, (xiii) Lease rent, (xiv) Nonagricultural tax. (xv) Education and Training Fund (xvi) Election Fund (xvii) Any Other Charges. The Service charges of the Society referred to at 64 (vii) above shall include the following: Salaries of the office staff, liftmen, watchmen, malis and any other employees of the Society. Where the Society has independent Office, the property taxes, electricity charges, water charges etc. for the same. Printing, Stationery and Postage, Travelling Allowance and conveyance charges to the staff and the Members of the Committee of the Society. Sitting fees paid to the Members of the Committee of the Society, Subscription to the Education Fund of the Maharashtra Rajya Sahakari Sangh Ltd. Annual Subscription of the Housing Federation and any other co-operative institution to which the Society is affiliated. Entrance fees for affiliation to the Housing Federation and any other cooperative institution. Audit Fees for internal, Statutory and reaudit, if any. Expenses incurred at meetings of the general body, the Committee and the Sub-Committee, if any k. Retainer fees, legal charges, statutory enquiry fees. Common electricity charges. Any other charges approved by the General Body at its Meeting. However such charges should not contradict the provisions of the Act, Rules and Bye-laws of the Society. 66. The Committee shall apportion the Share of each Member towards the charges of the Society on the following basis: Property taxes: As fixed by the Local Authority Water Charges: On the basis of the total number and size of inlets provided in each flat. iii. Expenses on repairs and maintenance of the building/buildings of the Society: At the rate fixed at the general body from time to time, subject to the minimum of 0.75 percent per annum, of the construction cost of each flat for meeting […]

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TRANSFER AND TRANSMISSION OF SHARES IN A COOPERATIVE HOUSING SOCIETY.

March 30, 2022

Today we are going to discuss unique issues relating to a housing society. Human beings when getting even a little bit of power, behave like King-Queen. This is normal psychology. Taking into consideration this psychology and jurisprudence every law is enacted. Now we shall deal with the questions individually WHAT ARE THE PROVISIONS AND REQUIREMENTS FOR THE TRANSFER/TRANSMISSION OF SHARES UNDER MAHARASHTRA CO-OPERATIVE HOUSING SOCIETY LAWS? ( MAHARASHTRA) Following are the relevant provisions of the Maharashtra Housing Society for transfer and transmission of shares and interest in the society. Open membership.— (1) No society shall, without sufficient cause, refuse admission to membership to any person duly qualified therefore under the provisions of this Act and its bye-laws. (1-A) Where a society refuses to accept the application from an eligible person for admission as a member, or the payment made by him in respect of membership, such person may tender an application in such form as may be prescribed together with payment in respect of membership, if any, to the Registrar, who shall forward the application and the amount, if any so paid, to the society concerned within thirty days from the date of receipt of such application and the amount; and thereupon if the society fails to communicate any decision to the applicant within sixty days from the date of receipt of such application and the amount by the society, the applicant shall be deemed to have become a member of such society. If any question arises whether a person has become a deemed member or otherwise, the same shall be decided by the Registrar after giving a reasonable opportunity of being heard to all the concerned parties. (2) Any person aggrieved by the decision of a society, refusing him admission to its membership, may appeal to the Registrar. Every such appeal, as far as possible, be disposed of by the Registrar within a period of three months from the date of its receipt: Provided that, where such appeal is not so disposed of within the said period of three months, the Registrar shall record the reasons for the delay. (3) The decision of the Registrar in appeal, shall be final and the Registrar shall communicate his  decision to the parties within fifteen days from the date thereof: (4) Without prejudice to the foregoing provisions of this section, in the case of agro-processing societies or any other society for which a definite zone or an area of operation is allotted by the State Government or the Registrar, it shall be obligatory on the part of such society to admit, on an application made to it, every eligible person from that zone or the area of operation, as the case may be, as a member of such society, unless such person is already registered as a member of any other such society, into the same zone or the area of operation. Restrictions on transfer or charge on share or interest.— (1) Subject to the provisions of the last preceding section as to the maximum holding of shares and to any rules made in this behalf, a transfer of, or charge on, […]

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CAN MINISTER INTERFERE IN INVESTIGATION?

October 25, 2021

We will discuss following issues in this write-up What are the Minister’s general power to review the working of the investigating agency and to give broad policy directions regarding the functioning of the agencies ? What is oath and what are constitutional provisions? Consequences of breach thereof? If Minister exceeds power, does it amount to breach of oath? What recourse open to the Chief Minister /State Government or Governor ? Can they approach Court under Article 226 or Article 32 of the Constitution of India? Let us first learn provisions of the Constitution of India: CONSTITUTIONAL PROVISIONS For State the Constitution provides 159. Oath or affirmation by the Governor.—Every Governor and every person discharging the functions of the Governor shall, before entering upon his office, make and subscribe in the presence of the Chief Justice of the High Court exercising jurisdiction in relation to the State, or, in his absence, the senior-most Judge of that Court available, an oath or affirmation in the following form, that is to say— ―I, A. B., do swear in the name of God that I will faithfully execute the solemnly affirm office of Governor (or discharge the functions of the Governor) of ………(name of the State)and will to the best of my ability preserve, protect and defend the Constitution and the law and that I will devote myself to the service and well-being of the people of ..……(name of the State).‖ Under Article 164 every minister has to take oath before entering into his office it says: 164. (1) Other provisions as to Ministers.—(1) The Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the pleasure of the Governor…. (3) Before a Minister enters upon his office, the Governor shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule… Article 193 provides for penalty Penalty for sitting and voting before making oath or affirmation under article 188 or when not qualified or when disqualified.—If a person sits or votes as a member of the Legislative Assembly or the Legislative Council of a State before he has complied with the requirements of article 188, or when he knows that he is not qualified or that he is disqualified for membership thereof, or that he is prohibited from so doing by the provisions of any law made by Parliament or the Legislature of the State, he shall be liable in respect of each day on which he so sits or votes to a penalty of five hundred rupees to be recovered as a debt due to the State. Form of oath of secrecy for a Minister for a State:— ―I, A.B., do swear in the name of God that I will not directly or indirectly communicate or reveal solemnly affirm to any person or persons any matter which shall be brought under my consideration or shall become known to me as a Minister for the State of ………………..except as […]

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WHETHER UNSTAMPED ARBITRATION AGREEMENT IS EXECUTABLE? THE CONCEPT OF SEPARABILITY OF THE ARBITRATION CLAUSE/AGREEMENT FROM THE UNDERLYING CONTRACT

September 14, 2021

Here we will discuss the following issues: (i) Whether an arbitration agreement contained in an unregistered (but compulsorily registrable) instrument is valid and enforceable? (ii) Whether an arbitration agreement in an unregistered instrument which is not duly stamped, is valid and enforceable? (iii) Whether there is an arbitration agreement between the parties and whether an Arbitrator should be appointed? What is an Arbitration Agreement? Its provided in Section 7 of the Arbitration Act, 1996. It reads as under: Arbitration agreement.—(1) In this Part, “arbitration agreement” means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. (2) An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. (3) An arbitration agreement shall be in writing. (4) An arbitration agreement is in writing if it is contained in— (a) a document signed by the parties; (b) exchange of letters, telex, telegrams or other means of telecommunication 1 [including communication through electronic means] which provide a record of the agreement; or (c) an exchange of statements of claim and defense in which the existence of the agreement is alleged by one party and not denied by the other. (5) The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of the contract. Section 17 of Registration Act provides for compulsory Registration: https://indiankanoon.org/doc/561156/ ( click on the link for detailed provision.) Section 49 of the said Act lays down the effect of the non-registration of documents. https://indiankanoon.org/doc/1768154/ ( click on the link for detailed provision.) Section 49 makes it clear that a document which is compulsorily registrable, if not registered, will not affect the immovable property comprised therein in any manner. It will also not be received as evidence of any transaction affecting such property, except for two limited purposes. First is as evidence of a contract in a suit for specific performance. The second is as evidence of any collateral transaction which by itself is not required to be effected by a registered instrument. A collateral transaction is not the transaction affecting the immovable property, but a transaction which is incidentally connected with that transaction. The question is whether a provision for arbitration in an unregistered document (which is compulsorily registrable) is a collateral transaction, in respect of which such unregistered document can be received as evidence under the proviso to section 49 of the Registration Act. English Law Views on distinct identity and separation of Arbitration Clause: Lord Wright in his opinion stated that: “An arbitration agreement is a collateral to the substantial stipulations of the contract. It is merely procedural and ancillary, it is a mode of settling disputes, though the agreement to do so is itself subject to the discretion of the court.” Lord MacMillan in his opinion stated that “It survives for the purpose of measuring the claims […]

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QUESTION AS TO WHETHER CHILDREN FROM A SECOND MARRIAGE OF A HINDU DIED INTESTED WOULD HAVE A SHARE IN THE ANCESTRAL PROPERTY AN ANALYSIS OF JUDGMENT REFERRED TO LARGER BENCH

August 12, 2021

To understand the question, we must know the law. Preliminary: Point to be considered about Second Marriage is a person is in relation without taking divorce and is not a widower, than what is stated herein is applicable. If Second Marriage is legal than children born out of wedlock have equal rights that of first marriage. Hindu Law: This is pertaining to Hindu succession and testator who died without making a WILL. Such succession is governed by Hindu Succession Act,1956. Who is Hindu? According to Hindu Succession Act it applies to : (a) to any person, who is a Hindu by religion in any of its forms or developments including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj; (b) to any person who is a Buddhist, Jaina or Sikh by religion; and (c) to any other person who is not a Muslim, Christian, Parsi or Jew by religion unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed. The  Explanation says.—The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be:— (a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion; (b) any child, legitimate or illegitimate one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged; (c) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion. It also applies to the members of any Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs and  included a person who, though not a Hindu by religion, is, nevertheless, a person to whom this Act applies by virtue of the provisions contained in this section. Pondicherry: this Act shall apply to the Renouncants of the Union territory of Pondicherry.” [Regulation 7 of 1963, sec. 3 and First Sch. (w.e.f. 1-10-1963).] (a) “agnate”—one person is said to be an “agnate” of another if the two are related by blood or adoption wholly through males; (c) “cognate” — one person is said to be a cognate of another if the two are related by blood or adoption but not wholly through males; (d) the expression “custom” and “usage” signify any rule which having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family: Provided that the rule is certain and not unreasonable or opposed to public policy; and Provided further that in the case of a rule applicable only to a family it has not been discontinued by the family; (e) “full blood”, “half blood” and “uterine blood”— (i) two persons are said to be […]

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ABOUT STRIKING DOWN OF 97TH AMENDMENT TO THE CONSTITUTION

August 9, 2021

Part IXB under the chapter heading ‘The Co-operative Societies’. The Constitution 97th Amendment Act was passed by the requisite majority of the Lok Sabha on 27.12.2011 and the Rajya Sabha on 28th December,2011. The Presidential assent to the aforesaid Amendment followed on 12th January, 2012 and the said Amendment was published in the Official Gazette of India on 13th January,2012, coming into force with effect from 15th February,2012. The 97th Constitutional Amendment was challenged in the matter of Rajendra N Shah v. Union of India 2013 (2) G.L.R.  1698    and the Gujarat High Court allowed the said Public Interest Litigation by declaring that the Constitution 97th Amendment Act, 2011 inserting part IXB containing Articles 243ZH to 243ZT is   ultra vires the Constitution of India for not taking recourse to Article 368(2). The important question raised in these petitions and decided by a division bench of the Gujarat High Court by its judgment dated 22nd April,2013 is whether Part IXB is non est for want of ratification by half of the States under the proviso to Article 368(2). The  judgment of the High Court has declared that the said constitutional amendment inserting Part IXB is ultra vires the Constitution of India for want of the requisite ratification under Article 368(2) proviso, which however will not impact amendments that have been made in Article 19(1)(c) and in inserting Article 43B in the Constitution of India. That is formation of Associations and States endeavor to promote voluntary associations under Directive Principles. The amendment was carried out in The Maharashtra Co-operative Societies Act, 1961 in consonance with the provisions of 97th Constitutional Amendment which came into effect from 12th January, 2012. The Maharashtra Co-operative Societies Amendment Act came into effect from 13th August, 2013. New Model bye-laws came into force from September 2014, duly approved by the Commissioner for Co-operation and Registrar, C.S., Maharashtra State, Pune. The overall enforcement and application of the old Bye-Laws are the same with certain modifications to be in consonance and in agreement of the 97th amendment to the Constitution of India. NOW LET US SEE GIST OF THE AMENDMENTS UNDER 97th CONSTITUTIONAL AMENDMENTS : The Constitution of India is amended by 97th Constitution of Amendment and inserted Part IXB to the Constitution of India, a Chapter relating to the Co-operative Societies. Article 243ZH to 243ZT is inserted by this Amendment Act of 2011 with effect from 15th February 2012. A Chapter defines various terms. Authorized person in Article 243ZH(a). Article 243ZH(b) defined the terms Board and it means the Board of Directors or the Governing body of the Society by whatever name called to whom the control of management of the affairs of the Society is entrusted. Article 243ZH(c) defined the terms Co-operative Society and it means a Society registered or deemed to be registered under any law relating to the Co-operative Societies for the time being in force. Article 243ZH(d) defined the terms Multi-state Co-operative Society and it means whose object is not confined to one State and is registered or deemed to be registered under the law for the time being in force relating to such […]

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THE FOURTH ESTATE : THE POLICE (INCITEMENT TO DISAFFECTION) ACT, 1922 PARALLEL INVESTIGATION AND THE VIEWS OF COURTS

October 28, 2020

The term Fourth Estate or fourth power refers to the press and news media both in explicit capacity of advocacy and implicit ability to frame political issues. Though it is not formally recognized as a part of a political system, it wields significant indirect social influence. Article 19(1) (a) grants every citizen Freedom of Speech and Expression. We hear in News Channel debate that in Mumbai police is using British Era Act. That is The Police (Incitement to Dissatisfaction) Act,1922 ( the said 1922 Act) It was a news for any lawyer. Justice M.C.Chagla had said, there are so many laws in India , that we also come to know when it is argued by an Advocate before us. This was relating to Rationing Law. Under the circumstances its necessary to read and understand the views of the Courts after Independence.  Its relevant for us to study and understand the law and its effectiveness. 1. Short title, extent and commencement.— (1) This Act may be called the Police (Incitement to Disaffection) Act, 1922.  [(2) It extends to the whole of India, except [the territories which immediately before 1st November, 1956, were comprised in Part B States].] (3) It shall come into force in any State or part of a State on such date as the State Government may, by notification in the Official Gazette, direct. State amendments Andhra Pradesh.—In sub-section (2) of section 1, after the expression ‘except the territories which immediately before the 1st November, 1956 were comprised in Part B States’ add ‘other than the territories specified in sub-section (1) of section 3 of the States Reorganisation Act, 1956’. [Vide Andhra Pradesh Act 23 of 1958, sec. 3 and Sch. (1-2-1960)] Madhya Pradesh.—In section 1— (i) in sub-section (2), after ‘Part B States’, add ‘other than the Madhya Bharat and Sironja regions of the State of Madhya Pradesh’; (ii) for sub-section (3), substitute the following:— “(3) It shall be in force in all such areas in Madhya Pradesh in which it was in force immediately before the commencement of Madhya Pradesh Second Extension of Laws Act, 1961 (40 of 1961), and shall come into force in other areas, on such date as the State Government may, by notification, appoint”. [Vide Madhya Pradesh Act 40 of 1961 First Schedule, Part A, Item 5.] Maharashtra, Gujarat.—In its application to the State of Maharashtra in section 1.— (i) To sub-section (2), add the following proviso:— “Provided that on the commencement of the Police (Incitement to Disaffection) (Bombay Extension and Amendment) Act, 1958, it shall extend to the Saurashtra and Hyderabad areas of the State of Bombay”. (ii) To sub-section (3), add the following proviso:— “Provided that on the commencement of the Police (Incitement to Disaffection) (Bombay Extension and Amendment) Act, 1958, it shall come into force in that part of the Saurashtra area of the State of Bombay in which the Police (Incitement to Disaffection) Act, 1922, as modified and applied to that area by the State of Saurashtra (Application of Central and Bombay Acts) Ordinance, 1948, was in force immediately before such commencement.” [Vide Bombay Act 77 of 1958, sec. 3 (7-10-1958): Act 11 of 1960, sec. 87 (1-5-1960)] (Meghalaya) —In […]

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What is TRP Scandal ?What is BARCIndia ? whether there is a scandal?

October 21, 2020

With a panel size of 180,000 individuals, BARC India is the largest measurement company of its kind in the world. Broadcast Audience Research Council (BARC) India is a Joint Industry Company founded by stakeholder bodies that represent Broadcasters, Advertisers, and Advertising and Media Agencies. Built upon a robust and future-ready technology backbone, BARC India owns and manages a transparent, accurate, and inclusive TV audience measurement system. Apart from the currency products to the TV industry, BARC India also provides a suite of Insight products designed for Broadcasters, Advertisers and Agencies. The Big Data and Insights generated by BARC India powers efficient media spends and content decisions in a highly dynamic and growing television sector. Broadcast Audience Research Council India (BARC)  is an industry body set up to design, commission, supervise and own an accurate, reliable and timely television audience measurement system for India. It currently measures TV Viewing habits of 197 million TV households in the country, using 40,000 sample panel homes. This will go up to 50,000 in the next couple of years, as mandated by the Ministry of Information & Broadcasting. Guided by the recommendations of the Telecom Regulatory Authority of India (TRAI )and MIB notifications of January 2014, BARC India brings together the three key stakeholders in television audience measurement – broadcasters, advertisers, and advertising and media agencies, via their apex bodies. BARC India is committed towards establishing a robust, transparent and accountable governance framework for providing data points that are required to plan media spends more effectively. Standardization Certificates obtained by BARC India are CESP France Certification in April 2017 which validates representative-ness of BARC India’s TV Measurement Panel and by ISI, Kolkata in May 2018 certifying the representativeness of BARC India’s Panel Design & Household Selection It has its own Code of Conduct Rules. Excerpts are as under: CODE OF CONDUCT FOR REDRESSING VIEWERSHIP MALPRACTICES (Effective 1st  April 2020)1. Viewership Malpractice(s) “Viewership Malpractice(s)” shall means any activity or abstinence from any activity or abstinence from any activity or a promise to do or abstain from doing any activity whether individually or in a group of persons; whether directly or indirectly; with an aim of manipulating or altering or tampering (i) the viewership pattern(s) and / or (ii) habits of a Panel Household(s), and /or (iii) the viewership data and / or (iv) any of the process leading to generation of Ratings , which does or may potentially result in altering the Ratings of any television channel or television programme or any content or an advertisement or any saleable media content in any manner or in a manner which is in breach of a EULA or BARC policies and includes: a. Attempt to and/or obtain details of the Panel Households, like address, member names, and any/all related information etc. b. Attempt to and/or bribe/influence a Panel Household to watch or not to watch a television programme or Channel or any content; c. Attempt to and/or bribe any of the staff appointed by BARC or its agents, service provider or any other entity in possession of any data relating to Panel Households or Ratings. 2. Vigilance Team […]

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Applicability of Permit to run Diamond Polishing Unit in Residential Zones U/s 390 of BMC Act, 1888 DCR 1991 and DCPR 2034

July 30, 2020

Whether the Q Company sought to have obtained a License under Section 390 of B.M.C. Act, 1888?  For the ready reference we reproduce below the said Section 390 for your ready reference: “390. Factory of not to be newly established without permission of the Commissioner. (1)     No person shall newly establish in any premises any factory, workshop or workplace in which it is intended that stream, water [electrical] or other mechanical power shall be employed, without the previous written permission of the Commissioner, [nor shall any person work, or allow to be worked, any such factory, workshop or workplace without such permission.] (2)     The Commissioner may refuse to give such permission if he shall be of opinion that the establishment of such factory, workshop or workplace in the proposed position is objectionable by reason of the density of the population in the neighbourhood thereof, or will be a nuisance to the inhabitants of the neighbourhood. [(3)    If any written permission for the establishment of a factory, workshop or workplace granted under sub-section (1) be revoked by the Commissioner in the exercise of his powers under sub-section (3) of section 479, no person shall continue or resume the working or use of such factory, workshop or workplace until such written permission is renewed or a fresh written permission is granted by the Commissioner.]” The term “factory” is defined under Factory Act, 1948 as under: Factory Act, 1948 Factory: S.2 (m) – “factory” means any premises including the precincts thereof – (i) Whereon 10 or more workers are working, or were working on any day of the preceding 12 months, and in any part of which a manufacturing process is being carried on with the air of power, or is ordinarily so carried on, or (ii) Whereon 20 or more workers are working, or were working on any day of the preceding 12 months, and in any part of which a manufacturing process is being carried on without the air or power, or is ordinarily so carried on – but does not include a mine subject to the operation of the Mines Act, 1952 (35 of 1962), or a mobile unit belonging to the armed forces of the Union, a railway running shed or a hotel, restaurant or eating place; Explanation I: For computing the number of workers for the purposes of this clause all the workers in different groups and relays in a day shall be taken into account; Explanation II: For the purpose of this clause, the mere fact than an Electronic Data Processing unit or a computer unit is installed in any premises or part thereof, shall not be construed to make it a factory if no manufacturing process is being carried on in such premises or par thereof. The term `factory’ in its general sense is defined as, “a building or buildings where goods are manufactured or assembled in large quantities”. Workplace is defined as, “the office, factory, etc. where you are employed” Workroom is defined a, “a room in which certain work is done”. Service Industry is defined as, “a sector of Industry providing intangibles, not products”. […]

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Opinion on provisions of recovery of Octroi when not paid on demand or short paid Octroi Rule 25 versus GST Section 73

July 29, 2020

 Following queries were raised  in a case for Octroi:- What is the time period for recovery of Octroi not paid or short paid? If adjudicatory proceedings are not completed within a reasonable period, the same are liable to be quashed? Is Municipal Corporation of Greater Mumbai bound to disclose how they have arrived at impugned arrears of octroi and penalty thereon? We will here also discuss provisions of Central  Goods and Service Tax of 2017 ( GST) as today octroi is repealed. First let us see provisions of Octroi Facts of the case an example The “A Company” is listed in Bombay Stock Exchange and National Stock Exchange and Company is engaged in the business of manufacturing of garments and retail sale of garments and various other products having Brand name. “A Company” paid octroi on all the articles which are imported by them within the vicinity of Municipal Corporation of Greater Mumbai (“MCGM”) for sale, use and consumption. Somewhere in the year 2014, the MCGM issued a letter for verification of payment of octroi on electronic goods imported / brought into Mumbai from outside Mumbai vide their letter and called upon the Company to furnish the details of import of mobile, laptop, computer from April 2013 to October 2014. By this letter, the MCGM further threatened the “A Company” that non-compliance of the above requisites warrants action as provided in Mumbai Municipal Corporation Act, 1888 (“the MMC Act”) and Octroi Rules framed thereunder including issuance of stop work notices and/or stopping import of material by the “A Company” into Mumbai. Thereafter once again by their letter the MCGM recorded that the Vigilance Cell is investigating verification of payment of octroi on import of goods into the Mumbai limit for use, sale and consumption. “A Company” was called upon to furnish invoices / octroi paid receipt for the relevant period for verification. Thereafter, “A Company” was threatened of legal action and called upon them to furnish necessary documents. “A Company” furnished the documents once again. The MCGM sent Reminder to “A Company” has not submitted receipt nor any relevant documents though the “A Company” has submitted Purchase List. The MCGM once again demanded Godown Register. Finally, by MCGM  issued a Demand Notice from the “A Company” We now first deal with the provisions of Constitution of India, prior to 101 Amendment Act 2016 to the Constitution of India on introduction of Goods and Services Tax 2017. Please note that Octroi is now Repealed and Government has said that citizens should not be harassed by Tax department by opening old cases. Article 14 – Equality before law – The State shall not deny to any person equality before the law or the equal protection of the law within the territory of India. –    Article – 19 Protection of certain rights regarding freedom of speech, etc. All citizens shall have the right- To freedom of speech and expression; To assemble peaceably and without arms; To form associations or unions; To move freely throughout the territory of India; To reside and settle in any part of the territory of India; [and] to practice […]

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