U.S. Shut Down 1677 Illegal Online Pharmacies Websites But India Still Indifferent

The problem with the online pharmacies is that a dominant majority of them do not follow the laws of various jurisdictions and they sell spurious and counterfeit medicines. For instance, online pharmacies in India are openly violating the laws of India and they have become a real health hazard.

In fact, an official at the Indian Directorate of Drugs Control has said in the past that they have taken some steps and are working to curb online pharmacies. However, till now India has not taken any significant step to show its commitment to fight against fake medicines and illegal online pharmacies.

On the other hand, the United States has taken some very effective steps to curb illegal online pharmacies and to minimise the risks to lives of millions due to such illegal pharmacies and fake drugs.

It has been reported that U.S. and international regulators have seized more than $41 million in illegal medicines worldwide and shut down 1,677 websites as part of their ongoing fight against counterfeit drugs sold over the Internet.

The US Food and Drug Administration on Thursday said it used federal court warrants to seize website domain names and post messages letting visitors know that people who traffic in counterfeit drugs may face severe penalties under federal law.

Central Monitoring System (CMS) For Telephone Tapping In India

The Central Monitoring System (CMS) Project of India is a “centralised mechanism” where telecommunications and Internet communications can be analysed by the Indian Government and its Agencies.

The CMS project of India is a good and ambitious project that is required to manage national security and law and enforcement requirements of the country. However, adequate “procedural safeguards” must also be established in the system so that it is not abused for political and personal reasons.

The telephone tapping laws in India are already weak and violative of constitutional protections. We are still following the colonial telegraph act that requires an urgent repeal. Further, the information technology amendment act 2008 made e-surveillance in India a regular phenomenon. The big brother in India must not overstep the limits.

We at Perry4Law Organisation and Perry4Law’s Techno Legal Base (PTLB) believe that a holistic and comprehensive law on telephone tapping in India as well as governing related aspects must be formulated in India. For instance, the cell site data location laws in India and privacy issues must also be covered by the proposed law. Similarly, the cell site location based e-surveillance in India and surveillance of internet traffic in India must also be part and parcel of the new legislation.

A national e-surveillance policy of India must be formulated that should cover both policy and legislative issues pertaining to CMS project and telephone tapping relating issues. Call data record (CDRs) must also be regulated and protected by adequate and strong laws.

Indian government has already started working in the direction of making the CMS project operation in the month of April 2013. A new mechanism will be put in place by the Indian government to eliminate the loopholes in authorised phone tapping by intelligence and enforcement agencies.

Under the proposed framework, a centralised mechanism would be adopted where the need to approach individual telecom service providers would be obviated. This would exclude the interaction with these service providers and make the entire process of telephone tapping more secure and leak proof. However, this would also result in abusing the telephone tapping mechanisms in the absence of adequate procedural safeguards.

The CMS project would be brought under the Department of Telecom (DoT) and will be manned by the Intelligence Bureau (IB). Some procedural changes have also been introduced in this process. For instance, a clear electronic audit trail of the phones tapped would be maintained. This would eliminate the traditional paper based trail procedure that is cumbersome and prone to leak. The entire phone-tapping system will also move to an electronic platform from the current manual system.

The CMS project, based in New Delhi, would also have four hubs in major cities of India. Proposal to curtail the discretionary power of agencies to listen into phone calls may also be implemented. The telegraph act may be suitable amended to reflect these changes.

As per the present regulatory framework, in cases of urgency the agencies can tap phones for seven days without obtaining permission. With the migration to electronic platform and adoption of CMS project, the request for sanctions will also be sent electronically which will cut down the time to obtain permission.

At Perry4Law and PTLB we believe that it would be even better if we ensure parliamentary oversight of intelligence agencies of India as well. Further, we also believe that it is high time to formulate a comprehensive and holistic telephone tapping and related law for India. We also understand that this is a very difficult and delicate task and may face stiff resistance from various quarters but the tough call has to be taken by Indian government immediately.

Source: Perry4Law Organisation Blog.

Online Brand Protection Law Firms In India

Brands and Trademarks are playing a major role in commercial activities world over. Big organisations are fighting legal battles to protect and enforce their brands and Trademarks. For instance, Financial Times and Times of India have been fighting a Trademark battle in Supreme Court of India. Similarly, USPTO granted Apple Trademarks for its retail outlets designs and layout.

Novel and unexplored avenues like new GTLDs by ICANN would further raise Trademark and brand disputes in future. Legal issues of new GTLDs applications and registrations are well known. The objection and dispute resolution for ICANN’s new GTLDs registrations is the recognition of possible legal disputes in this regard. Thus, Trademark and brand protection under new GTLDs registration by ICANN must be suitably planned.

More and more individuals and companies are interested in brand protection and management in India. This is evident from the increased numbers of Trademark registrations in India. The Trademarks registration procedure in India is well established and there are many good Trademark IP law firms and lawyers in India.

Even many companies and firms are offering brand protection and enforcement services in India. However, some of these companies are engaging in illegal and unethical activities while protecting brands of others. This can cause trouble for both these company ies and their clients. The truth is that online brand and reputation protection got nasty and law enforcement agencies must take notice of these illegal activities.

At Perry4Law and Perry4Law’s Techno Legal Base (PTLB) we believe that online brand and trademark protection in India must be done in a techno legal manner. Companies and firms engaging in illegal and unethical methods must stop using the same immediately as they may bring short term benefits but would be detrimental in the long run.

If you are interested in techno legal online and trademark protection in India, you may contact us in this regard for your professional needs.

Source: IPRs Services In India.

Transfer Pricing Laws And Regulations In India Need Clarification

Foreign direct investment (FDI), foreign exchange management and transfer pricing laws in India are in limelight these days. For instance, transfer pricing order has been issued against Vodafone India. Similarly, Nokia has been accused of violating income tax and transfer pricing laws of India. Shell India also received a transfer pricing order from Indian tax authorities.

Further, Income Tax Act, 1961 of India also incorporates provisions pertaining to avoidance of income-tax by transactions resulting in transfer of income to non residents and avoidance of tax by certain transactions in securities. Despite all these provisions, the transfer pricing regulatory framework of India needs further clarification form Indian government.

The finance ministry is now in the process of devising clear guidelines for contentious transfer pricing cases, especially for handling the grey areas. We at Perry4Law and Perry4Law’s Techno Legal Base (PTLB) believe that this clarification of the transfer pricing laws and regulations of India would be beneficial for both foreign companies and FDI entities and Indian government.

We also welcome the move of Indian government and Central Board of Direct Taxes (CBDT) for analysing the modalities for handling transfer pricing cases in India. An I-T department’s committee has been assigned with the task of drafting rules for foreign tax credit and it is also looking at transfer pricing issues. The committee will work out the modalities for handling such cases and submit its report to the finance ministry.

Source: Corporate Laws Of India.

Right To Education Act Of India: Success Or Failure

In this Guest Post, Praveen Dalal, managing partner of law firm Perry4Law and a Supreme Court Lawyer, is discussing about the implications of the Right to Education Act in India.

In Unni Krishnan v. State of Andhra Pradesh (1993) the Supreme Court of India held that Right to education is a Fundamental Right. Reacting to this judgment and similar judgements of Supreme Court of India, Article 21A of the Constitution, through Constitution (Eighty-Sixth Amendment) Act, 2002, was inserted into the Constitution of India.

Article 21 A provides that the State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine. Article 45 of the Constitution of India has also been reframed and substituted and it provides that the State shall endeavour to provide early childhood care and education for all children until they complete the age of six years.

In Article 51A of the Constitution, after clause (k) has been added that mandates that a parent or guardian has to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years.

The Right to Education Bill, 2005 was introduced to give effect to the Constitution (Eighty-Sixth) Amendment Act. The Right of Children to Free and Compulsory Education Act 2009 finally came into force on 1st April 2010.

The Constitution validity of the Act was challenged before the Supreme Court that upheld its Validity and dismissed a Review Petition. From here starts the real problem as the Act has now become Constitutionally Valid and subject to Constitutional Attack only when a Constitution Bench of Supreme Court hears the case again.

In my personal opinion, the Right to Education Act was drafted in haste and without many deliberations. The Act has also “Diluted” the “Protections” available under the Constitution of India.

For instance, the original Article 45 of the constitution provided that the State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years.

The Directive is very clear. There is no age slab of 6 to 14 years rather the Directive covers all Children even before 6 years. The Right to Education Act has unnecessarily diluted this Principle and has artificially created an age slab of 6 to 14 years.

Of course, the State is under an obligation to provide early childhood care and education for all children until they complete the age of six years under the reframed Article 45.  This would again create a conflict between The Right to Act, Article 21A, Article 45 and Article 51A (k).

The best example of this conflict is the Pre School Admissions Procedure that starts at the age of 4 in New Delhi. Various schools have framed their own “Point Criteria” that is going against the mandates of Article 21A, 45 and 51A (k).

If the State is under an Obligation, to provide early childhood care and education for all children until they complete the age of six years, the Pre School/Nursery admissions are clearly its obligation. Till now the State has failed to fulfill this obligation.

Further, by introducing the age slab of 6 to 14, all Inconsistencies, Violations and Corrupt Practices happening at the Pre School/Nursery Admission stage have also been “Ignored” by the State. This is encouraging the Schools to openly ask for “Donations” during Pre School/Nursery Admission Stage.

The Act is also discouraging filing cases and taking legal actions against Schools/Individuals that violate all the basic norms of Education and indulge in “Corrupt Practices”.

It seems the net result of the Right to Education Act is to give “Full Leverage” to Schools, imposing “Obligations” upon the Parents and “Abdicating” the Constitutional Duties on the part of the State.

Fortunately, the Delhi High Court is presently considering many of these aspects and I hope it would come up with some good “Solution” in this regard that was expected from the Supreme Court and Central Government and State Governments.

Meanwhile we have to ask ourselves a simple question. Do we really need such an Onerous, Biased and Burdensome Right to Education Act in India? Let the Readers and Delhi High Court decide.

Source: Cjnews India.

Avoidance Of Tax By Certain Transactions In Securities

Perry4Law and Perry4Law’s Techno Legal Base (PTLB) have already discussed the legal issues pertaining to transfer pricing laws in India. We have also discussed avoidance of income-tax by transactions resulting in transfer of income to non residents.

In this article we would discuss a related concept that results in tax evasion by mode of certain transactions in securities.

Section 94 (1) of the Act provides that where the owner of any securities (in this sub-section and in subsection (2) referred to as “the owner”) sells or transfers those securities, and buys back or reacquires the securities, then, if the result of the transaction is that any interest becoming payable in respect of the securities is receivable otherwise than by the owner, the interest payable as aforesaid shall, whether it would or would not have been chargeable to income-tax apart from the provisions of this sub-section, be deemed, for all the purposes of this Act, to be the income of the owner and not to be the income of any other person.

Explanation.-The references in this sub-section to buying back or reacquiring the securities shall be deemed to include references to buying or acquiring similar securities, so, however, that where similar securities are bought or acquired, the owner shall be under no greater liability to income-tax than he would have been under if the original securities had been bought back or reacquired.

Section 94 (2) of the Act provides that where any person has had at any time during any previous year any beneficial interest in any securities, and the result of any transaction relating to such securities or the income thereof is that, in respect of such securities within such year, either no income is received by him or the income received by him is less than the sum to which the income would have amounted if the income from such securities had accrued from day to day and been apportioned accordingly, then the income from such securities for such year shall be deemed to be the income of such person.

Section 94 (3) of the Act provides that the provisions of sub-section (1) or sub-section (2) shall not apply if the owner, or the person who has had a beneficial interest in the securities, as the case may be, proves to the satisfaction of the Assessing Officer-

(a) That there has been no avoidance of income-tax, or

(b) That the avoidance of income-tax was exceptional and not systematic and that there was not in his case in any of the three preceding years any avoidance of income-tax by a transaction of the nature referred to in sub-section (1) or sub-section (2).

Section 94 (4) of the Act provides that where any person carrying on a business which consists wholly or partly in dealing in securities, buys or acquires any securities and sells back or retransfers the securities, then, if the result of the transaction is that interest becoming payable in respect of the securities is receivable by him but is not deemed to be his income by reason of the provisions contained in sub-section (1), no account shall be taken of the transaction in computing for any of the purposes of this Act the profits arising from or loss sustained in the business.

Section 94 (5) of the Act provides that sub-section (4) shall have effect, subject to any necessary modifications, as if references to selling back or retransferring the securities included references to selling or transferring similar securities.

Section 94 (6) of the Act provides that the Assessing Officer may, by notice in writing, require any person to furnish him within such time as he may direct (not being less than twenty-eight days), in respect of all securities of which such person was the owner or in which he had a beneficial interest at any time during the period specified in the notice, such particulars as he considers necessary for the purposes of this section and for the purpose of discovering whether income-tax has been borne in respect of the interest on all those securities.

Section 94 (7) of the Act provides that where-

(a) Any person buys or acquires any securities or unit within a period of three months prior to the record date;

(b) Such person sells or transfers-

(i) Such securities within a period of three months after such date; or

(ii) Such unit within a period of nine months after such date;]

(c) The dividend or income on such securities or unit received or receivable by such person is exempt, then, the loss, if any, arising to him on account of such purchase and sale of securities or unit, to the extent such loss does not exceed the amount of dividend or income received or receivable on such securities or unit, shall be ignored for the purposes of computing his income chargeable to tax.

Section 94 (8) of the Act provides that where-

(a) Any person buys or acquires any units within a period of three months prior to the record date;

(b) Such person is allotted additional units without any payment on the basis of holding of such units on such date;

(c) Such person sells or transfers all or any of the units referred to in clause (a) within a period of nine months after such date, while continuing to hold all or any of the additional units referred to in clause (b), then, the loss, if any, arising to him on account of such purchase and sale of all or any of such units shall be ignored for the purposes of computing his income chargeable to tax and notwithstanding anything contained in any other provision of this Act, the amount of loss so ignored shall be deemed to be the cost of purchase or acquisition of such additional units referred to in clause (b) as are held by him on the date of such sale or transfer.

Explanation.-For the purposes of this section,

(a) “Interest” includes a dividend;

(aa) “Record date” means such date as may be fixed by-

(i) A company for the purposes of entitlement of the holder of the securities to receive dividend; or

(ii) A Mutual Fund or the Administrator of the specified undertaking or the specified company as referred to in the Explanation to clause (35) of section 10, for the purposes of entitlement of the holder of the units to receive income, or additional unit without any consideration, as the case may be;

(b) “Securities” includes stocks and shares;

(c) Securities shall be deemed to be similar if they entitle their holders to the same rights against the same persons as to capital and interest and the same remedies for the enforcement of those rights, notwithstanding any difference in the total nominal amounts of the respective securities or in the form in which they are held or in the manner in which they can be transferred;

(d) “Unit” shall have the meaning assigned to it in clause (b) of the Explanation to section 115AB.

Source: Corporate Laws In India.

Avoidance Of Income-Tax By Transactions Resulting In Transfer Of Income To Non Residents

So far Perry4Law and Perry4Law’s Techno Legal Base (PTLB) have discussed the legal issues pertaining to transfer pricing laws in India. In this post we would discuss a related concept that results in tax evasion by transferring income to non residents.

Section 93 of the Income Tax Act, 1961 deals with the provision pertaining to avoidance of income-tax by transactions resulting by transfer of income to non residents. This way income tax liability is reduced that is otherwise payable.

Section 93 (1) of the Act provides that where there is a transfer of assets by virtue or in consequence whereof, either alone or in conjunction with associated operations, any income becomes payable to a non-resident, the following provisions shall apply-

(a) Where any person has, by means of any such transfer, either alone or in conjunction with associated operations, acquired any rights by virtue of which he has, within the meaning of this section, power to enjoy, whether forthwith or in the future, any income of a nonresident person which, if it were income of the first-mentioned person, would be chargeable to income-tax, that income shall, whether it would or would not have been chargeable to income-tax apart from the provisions of this section, be deemed to be income of the first mentioned person for all the purposes of this Act;

(b) Where, whether before or after any such transfer, any such first mentioned person receives or is entitled to receive any capital sum the payment whereof is in any way connected with the transfer or any associated operations, then any income which, by virtue or in consequence of the transfer, either alone or in conjunction with associated operations, has become the income of a non-resident shall, whether it would or would not have been chargeable to income-tax apart from the provisions of this section, be deemed to be the income of the first mentioned person for all the purposes of this Act.

Explanation.-The provisions of this sub-section shall apply also in relation to transfers of assets and associated operations carried out before the commencement of this Act.

Section 93 (2) of the Act provides that where any person has been charged to income-tax on any income deemed to be his under the provisions of this section and that income is subsequently received by him, whether as income or in any other form, it shall not again be deemed to form part of his income for the purposes of this Act.

Section 93 (3) of the Act provides that the provisions of this section shall not apply if the first-mentioned person in sub-section (1) shows to the satisfaction of the [Assessing] Officer that-

(a) Neither the transfer nor any associated operation had for its purpose or for one of its purposes the avoidance of liability to taxation; or

(b) The transfer and all associated operations were bona fide commercial transactions and were not designed for the purpose of avoiding liability to taxation.

Explanation.-For the purposes of this section,

(a) References to assets representing any assets, income or accumulations of income include references to shares in or obligation of any company to which, or obligation of any other person to whom, those assets, that income or those accumulations are or have been transferred;

(b) Any body corporate incorporated outside India shall be treated as if it were a non-resident;

(c) A person shall be deemed to have power to enjoy the income of a nonresident if-

(i) The income is in fact so dealt with by any person as to be calculated at some point of time and, whether in the form of income or not, to enure for the benefit of the first-mentioned person in sub-section (1), or

(ii) The receipt or accrual of the income operates to increase the value to such first-mentioned person of any assets held by him or for his benefit, or

(iii) Such first-mentioned person receives or is entitled to receive at any time any benefit provided or to be provided out of that income or out of moneys which are or will be available for the purpose by reason of the effect or successive effects of the associated operations on that income and assets which represent that income, or

(iv) Such first-mentioned person has power by means of the exercise of any power of appointment or power of revocation or otherwise to obtain for himself, whether with or without the consent of any other person, the beneficial enjoyment of the income, or

(v) Such first-mentioned person is able, in any manner whatsoever and whether directly or indirectly, to control the application of the income;

(d) In determining whether a person has power to enjoy income, regard shall be had to the substantial result and effect of the transfer and any associated operations, and all benefits which may at any time accrue to such person as a result of the transfer and any associated operations shall be taken into account irrespective of the nature or form of the benefits.

Section 93 (4) of the Act provides that-

(a) “Assets” includes property or rights of any kind and “transfer” in relation to rights includes the creation of those rights;

(b) “Associated operation”, in relation to any transfer, means an operation of any kind effected by any person in relation to-

(i) Any of the assets transferred, or

(ii) Any assets representing, whether directly or indirectly, any of the assets transferred, or

(iii) The income arising from any such assets, or

(iv) Any assets representing, whether directly or indirectly, the accumulations of income arising from any such assets;

(c) “Benefit” includes a payment of any kind;

(d) “Capital sum” means—

(i) Any sum paid or payable by way of a loan or repayment of a loan; and

(ii) Any other sum paid or payable otherwise than as income, being a sum which is not paid or payable for full consideration in money or money’s worth.

Source: Corporate Laws In India.

Brand Protection And Management In India

Brand protection and management in India is a new concept. As more and more companies and individuals have started using information and communication technology (ICT), brand protection and management in India has become essential.

Brand protection and enforcement is generally managed by the intellectual property (IP) laws of India, especially Trademarks law of India. The Trademarks registration procedure in India is governed by the Trademarks Act, 1999 of India.

Recently ICANN has initiated the procedure to allot new GTLDs. The process is still on and objection and dispute resolution for ICANN’s new GTLDs registrations can still be undertaken by individuals and companies. The trademark and brand protection under new GTLDs registration by ICANN are complicated in nature. Even stakes are very high in the new GTLDs allotment. There is a dire need to have an effective brand enforcement policy in India on the part of Indian entrepreneurs and brand stakeholders.

At Perry4Law and Perry4Law’s Techno Legal Base (PTLB) we have been providing exclusive techno legal brand protection and enforcement services in India. Besides we are also one of the most prominent IPRs law firms of India. Our specialty includes online brand protection and management in India and abroad.

We use only legally permissible and ethical methods to ensure online brand protection and management in India. In recent times, online brand and reputation protection has got nasty and many online brand and reputation companies are using illegal and unethical means to protect brands of their clients.

Instead of engaging in illegal and unethical brand protection and management methods, stakeholders must engage in constructive, productive and sound planning and strategy making.

You may contact us for professional brand protection and management services in India in general and techno legal services in particular.

Source: IPRs Services In India.

E-Discovery Outsourcing To India

Electronic discovery (e-discovery) in India is yet to be accepted as a part of organisational practice. However, e-discovery is widely used in developed nations. E-discovery in India and its uses must be explained to business houses and individuals so that the potential of e-discovery can be utilised to the maximum possible extent.

Although Indian companies and organisations are still exploring use of e-discovery in their business models yet e-discovery outsourcing, LPO and KPO services in India has great potential. However, e-discovery services require techno legal expertise that very few individuals and firms possess. Electronic discovery and litigation support services in India are, therefore, still evolving.

At Perry4Law and Perry4Law Techno Legal Base (PTLB) we believe that electronic discovery (e-discovery) services in India can be used by organisations, law enforcement agencies, lawyers, public prosecutors, defense attorney, etc. Similarly, e-discovery services in India may also be required in civil and criminal cases.

Virtual data rooms and legal compliances in India have further increased the scope of e-discovery in India. E-discovery for cloud computing in India is another are that would emerge. Even e-discovery for social media in India would be required.

Perry4Law and PTLB believe that e-discovery in India needs to be developed so that various stakeholders can be benefited from it. Further, if India wishes to be an e-discovery outsourcing hub of the world, India must concentrate further upon e-discovery.

Source: LPO And KPO In India.

Legal Cyber Security Services In India

Cyber security has become inevitable and essential for individuals and companies dealing in an online environment. Whether it is e-banking, e-commerce, e-governance, online ticket booking or any other similar online transaction, cyber security is not only a safety requirement but also a legal requirement.

Of late, cyber law due diligence and cyber security due diligence has been mandated by the information technology act 2000 (IT Act 2000) for various stakeholders. IT Act 2000 is the Cyber law of India that prescribes that Internet intermediaries and Indian companies are required to follow due diligence while dealing in an online environment and while providing online services.

Cyber security in India is still not significantly followed by individuals and companies. Individuals and companies in India are frequently targeted by cyber criminals and these individuals and companies suffer looses due to the cyber crimes committed by cyber criminals. The cyber security trends in India 2011 by Perry4Law and Perry4Law Techno Legal Base (PTLB) have proved that India has been lax on the part of adoption of cyber security. Even cyber forensics in India has not been adopted well in India.

The problem lies with India’s national cyber security policy. The national cyber security policy of India has not been formulated keeping in mind the techno legal requirements of present and future India. Further, we have no dedicated computer security laws in India. Although the cyber law of India covers few provisions in this regard yet they are not sufficient to address the requirements of cyber security in India.

We have very few cyber law firms in India and cyber security law firms in India are almost missing. Further, we have very few ICT and cyber law lawyers in India that understand the nuances of information technology. Lack of expertise is the main reason that we have almost nil cyber security laws, lawyers and law firms in India. Of course, at Perry4Law and PTLB we have been providing the exclusive techno legal cyber security services in India.

Cyber security legal practice in India and abroad has great potential and lawyers and law firms must not waste this opportunity. Lawyers and other professionals must undergo practical cyber security courses in India. In fact, PTLB e-learning platform is providing techno legal cyber security courses, education and trainings to various stakeholders. PTLB is also managing a techno legal online lawyers training institute in India. We hope lawyers and law firms would not hesitate to capatilise the emerging cyber security legal practice in India and abroad.

Source: LPO And KPO In India.