29 July, 2008

IT’S TIME TO RUSH :I-T defaults can land you in jail

Govt Plans Stern Actions For Non-Filing Of Returns, Including Steep Penalties

If you have not filed income tax (I-T) return till now, you better rush and complete the formalities by July 31. The tax department may impose a penalty of up to Rs 5,000 under section 271F on you for not filing I-T returns.
And, if you have unpaid tax of more than Rs 3,000 but less than Rs 1 lakh, you can be sentenced for a jail term of three months along with the penalty. If the unpaid tax amount is more than Rs 1 lakh, the jail term can increase to a minimum of six months to a maximum of seven years, over and above the penalty, according to Central Board of Direct Taxes (CBDT) spokesperson Shishir Jha. This time CBDT will clamp down on I-T defaulters, said a senior CBDT official.
However, return filing can be extended to till April 2009, the last date of assessment year for 2007-08, if there is a genuine ground, Jha said.
Jha added that the department can find out from its data that a person is not filing I-T returns despite having taxable income from various sources like companies, banks, mutual funds, credit cards, land and other fixed assets. As per government provision, all the entities need to deduct taxes while making payments like salary and interest and deposit the amount with the exchequer.
Not only this, if a person invests more than Rs 2 lakh in mutual fund units, the company shares the information with government along with the client's PAN. The department also collects data from registrar offices of persons involved in large transactions. After collecting these data, the department processes it to catch the defaulters.
In case a person does not file returns but submits documents like Form 16A and other TDS certificates after getting a notice, he can be still asked to pay a penalty of Rs 5,000. But, in most such cases, the department normally asks him to file the return at the first instance. But, Jha said if the default is repeated, then the penalty is imposed. If a person ignores the notice, Jha said the penalty will be increased to Rs 10,000 for each notice.
Filing of return has some other advantages also. Income tax law allows carry forward and set off business losses against the income in the subsequent years. But, these benefits will not be available if the tax return is not filed by the due date.
At the same time, if more taxes than the due amount is deducted from your income, you will get the refund only after filing the returns. If you file the return by July 31, you will also get the interest on the refund amount for the period between April 1, 2008 and the date of refund. But, if you filed the return after the July 31, 2008, you will not get the interest.

With thanks from The Times of India 29 July 2008 P. 25 Delhi
©All rights reserved with the Bennett Coleman & Co. Ltd
For any query:- legalpoint@aol.in

‘No leniency for using forged caste certificates’

This judgment will make those who have cornered jobs with fake caste certificates to live in constant fear, for the Supreme Court has ruled that whatever be the length of service rendered by them, detection of forgery should lead to dismissal.
This legal reality dawned on one Madhulika Guruprasad Dahir, who had produced a fake ST certificate 20 years ago to get a job in Central Bank of India. A Bench comprising
Justices C K Thakker and D K Jain upheld her dismissal from the job saying rendering long years of service to the bank was of no consequence in the face of a serious crime.
“Equity, sympathy or generosity have no place where the original appointment rests on a false caste certificate,” said Justice Jain, writing the judgment for the Bench.
“A person, who enters the service by producing a false caste certificate and obtains appointment for the post meant for SCs/ STs/OBCs, deprives a genuine candidate falling in either of the said categories of appointment to the post. They do not deserve any sympathy or indulgence of this court,” the Bench said.
“He, who comes to the court with a claim based on falsity and deception, cannot plead equity,” it added.
Terming submitting fake certificate as a fraud, the Bench said Madhulika’s conduct rendered her unfit to continue in service.

With thanks from The Times of India 29 July 2008 P. 15 Delhi
©All rights reserved with the Bennett Coleman & Co. Ltd
For any query:- legalpoint@aol.in

Court cancels orphanage licence

The license of an orphanage, Bal Vihar, in Uttam Nagar, which was not recognised by the Child Welfare Committee (CWC), was cancelled on Monday by the guardianship judge at Tis Hazari Court and an inquiry into the discrepancy of their records was ordered.
According to an inspection report, submitted by the CWC about this orphanage, at least 13 children out of the 90 names entered were reportedly missing in July. When asked about this discrepancy, the Sadhu Sunder Singh welfare trust, which runs this orphanage, replied that the children had gone for a vacation to “their relatives’ house”.
“I would want to know that if these children had relatives, why were they kept in an orphanage. Is this a hostel?” said D D Singhla, an advocate at Tis Hazari court. All the children were sent under the protection of CWC.
Singhla had been fighting a case for custody of a fouryear-old boy, Prateek, who went missing four years ago, to be restored to his natural parents. However, Prateek had been taken to Bal Vihar back then by the police (without being produced in front of a magistrate and to an orphanage not recognised by the CWC) and was fraudulently adopted, within 10 days of him going missing, by Anil Jindal in Uttam Nagar.
“The adoption deed had empty columns, no permission from any magistrate, as is mandatory under Juvenile Justice (Care and Protection) Act, 2000, was sought and there was no notice by the police. We challenged the adoption and now Prateek’s parents, Dinesh and Babita Sharma, have been granted his custody,” said Singhla.
Judge Surendra S Rathi also initiated an inquiry against the police. In the case of Bal Vihar, the welfare society running it is registered under the Society’s Act and cannot open up any branch or act as an adoption agency.

With thanks from The Times of India 29 July 2008 P. 5 Delhi
©All rights reserved with the Bennett Coleman & Co. Ltd
For any query:- legalpoint@aol.in

Delhi govt official in a spot for legal opinion

It’s a question of propriety. If a judge has dealt with a criminal case in his career, he is unlikely to deal with it in a different capacity — it’s considered to be an issue of ethics in judicial circles. This golden rule has been allegedly ignored by the principal law secretary of Delhi government G P Mittal who is a serving judicial officer. Mittal is at the centre of a controversy because he advised the prosecution not to appeal against an acquittal order in a dowry death case in which he had granted anticipatory bail to the accused three years ago while presiding over a sessions court.
Incidentally, the principal law secretary to Delhi government is always a senior sessions judge level officer who serves on this post while on deputation from the judiciary. The allegation against Mittal is being examined at the highest quarters of the government with the home secretary assessing the question of propriety raised in this case.
Subhash Arora, the complainant who approached the government, had lost his daughter, Kajal, about three-and-ahalf years ago. She was found hanging from the ceiling fan of her matrimonial home on January 31, 2005. While the husband and in-laws said it was suicide, Arora lodged an FIR of dowry harassment and cruelty against his daughter’s in-laws, alleging she was murdered.
In a detailed order on February 22 the same year, additional sessions judge G P Mittal granted anticipatory bail to Kajal’s brothers-in-law, Amit Chaudhary and Parichay Chaudhary, and a few days later to the parents-in-law, namely Bharat Bhushan and Nirmala Chaudhary. While giving them this protection, the ASJ noted that the in-lwas were staying separately from Kajal and her husband who were in United States for a period of three years before returning to India.
Arora got a further setback when in May this year a Rohini sessions judge acquitted all the accused, observing that there was no evidence that Kajal was subjected to any cruelty. Quoting from verdicts of Supreme Court and Delhi High Court, the trial court assessed that the victim might have been ‘‘hypersensitive to ordinary petulance and discord’’ and then concluded this was not enough to prove Kajal’s husband and in-laws pushed her to hang herself.
Whatever be the merits of the case, Arora planned to appeal in the HC but was shocked to know even though the director of prosecution wanted to go in for an appeal, the principal law secretary refused to grant sanction. A reply from Mittal’s office dated June 20, 2008, to Arora’s enquiries informed him ‘‘the matter has been examined in this department and found not fit for filing appeal...’’
This forced Arora to write to both the L-G and the CM, pointing out since Mittal had dealt with this case earlier, he should not have given a legal opinion on it now. ‘‘It is humbly prayed that Sh G P Mittal be recused from making another opinion in this matter in the interest of justice,’’ says Arora’s letter.
Attempts to reach Mittal for his comments proved futile. His deputy secretary, Chaman Lal, when asked about the allegations refused to comment.

With thanks from The Times of India 29 July 2008 P. 4 Delhi

©All rights reserved with the Bennett Coleman & Co. Ltd

For any query:- legalpoint@aol.in

AFFIDAVITS

Contribute By:- Deepak Miglani Advocate

An affidavit may be defined as a statement or declaration in writing on oath or affirmation before a person having authority to administer oath or affirmation. The term affidavit has been defined by Section 3 and clause 3 of the General Clause Act. The term affidavit defined by this section includes affirmation and declaration in cases of persons by law allowed to affirm or declare instead of swearing.

The deponent is the person who signs a affidavit.

The Indian Oaths Act,1873 govern the law relating to affidavits in India. Two or more persons join in an affidavit subject to the conditions that each should dispose separately to those facts which are within his own knowledge, and such facts should be stated in separate paragraphs.

Affidavit is a solemn declaration on oath all the relevant material facts must be included in it. But no fact which is unverifiable by the deponent should be included in it.

The various part of affidavit are as given below:- a) Introductory para b) Declaration of facts c) Closing para.

a) Introductory para:- In the opening para, name , age, parentage and full address of the deponent must be given. Besides it must disclose that deponent is making a solemn declaration. For example, “I Mr/Mrs X, aged about 35 years, son/daughter of ...., resident at........, do hereby solemnly affirm and state as under:”

b) Declaration of Facts:- The main body of affidavit is the declaration and narration of facts which the deponent wishes to swear on oath. Each facts must, clearly yet briefly, be set forth in separate paras. The parts must be numbered for the sake of convenience and clarity of expression.

c) Closing Para:- The closing para of affidavit contains verification. The deponent has to verify an affidavit.

There are the following points to be remembered while making an affidavit:-

1) First ascertain whether there is any need to submit an affidavit.

2) The proper amount of court fees should be affixed.

3) Ascertain the particulars of the person making declaration.

4) The subject matter of swearing each point must be clearly brought out in separate para.

5) Verification of the contents of affidavit must be properly verified in the manner prescribed.

6) Verification of the affidavit either by an oath commissioner or by a notary.

For any query:- legalbuddy@gmail.com

21 July, 2008

LABOUR COURSTS IN TAMIL NADU GET POWERS OF CIVIL COURT

Labour Minister of Tamil Nadu, Sri T.M. Anbarasan introduced in the Assembly a Bill to grant powers of a Civil Court to Labour Courts and Tribunals for executing their own award as a decree of civil court.

The Bill was later passed by a voice vote.

The amendment to Industries Disputes Act, 1947, in its application to Tamil Nadu was welcomed by members, who also demanded more powers to Labours Courts and Tribunals.

The statement of objects and reasons of the Bill states:

“At present under Industrial Dispute Act,1947 ( Central Act XIV of 1947), Labour Courts and Tribunals are not having the power to execute their own awards like decree of the civil Court in case the award in question is not being implemented by the employer.

In order to alleviate the difficulties experienced by the workmen in getting awards implemented by the employer, the Government has decided to confer powers of Civil Court to Labour Court and the Tribunal to execute their own award as a decree of Civil Court. It is proposed to enable Labour Courts and Tribunals to execute any settlement under the said Act as a decree.”

PF Contribution on Leave Encashment –clarification

No. Coord/3(4)2002/Clarification Dated:- 5.5.2008


To

All Regional PF Commissioner-1,

In-charge of the Regions.

Sub: PF Contribution on Leave Encashment –clarification

Sir,

The dispute before the Hon’ble Supreme Court of India in Appeal (Civil ) No. 1832/2004(Manipal Academy of Higher Education versus Provident Fund Commissioner) was whether the amount received by encashing the earned leave is a part of “basic wage” under section 2(b) of the Employees’ Provident Fund and Miscellaneous Provisions Act, 1952 requiring pro rata employers’ contribution.

Hon’ble Supreme Court of India has delivered the judgment on 12.3.2008 in the case and concluded that the basic wage was never intended to include the amounts received for leave encashments.The appeal has been allowed by the Hon’ble Apex Court but it has also been decided that if any payment has already been made it can be adjusted for future liabilities and there shall not be any refund claim since the fund is running one.

In view of the Hon’ble Supreme Courts’ Judgment dated 12.3.2008 in Appeal (Civil) No. 1832/2004, this is to convey that it is decided (a) to discontinue PF deduction on leave encashment with immediate effect and (b) where PF contribution of the employers’ share has been received in the offices of EPFO, the same shall be adjusted against future liabilities.

Yours faithfully

(K.C.J.P. Narayanan)

Regional P.F. Commissioner –I (Coord)


For any query:- deepakmiglani@hotmail.com

08 July, 2008

PF scam: SC looks to probe judges but avoid scandal

Faced with accusations having the potential to unhinge the traditional public perception of the judiciary’s clean image, the SC on Monday decided to examine the possible mode of probe into the Rs 23 crore illegal PF withdrawal scam allegedly involving 23 judges, including some from the HCs and one from the apex court.
The difficult question on the mode of probe was posed by a petitioner, who is the chairman of Advocates Welfare Trust and Bar Association of Ghaziabad — the place where the scam took place — even as CJI K G Balakrishnan had shown faith in the integrity of the judges by asking the UP police, which is probing the scam, to send questionnaires to the judges, whose names allegedly figured in the scam.
Unwilling to have the judges interrogated by the police at first go, SC had written to the UP police that if the response of those judges to the questionnaire did not satisfy the probe team, then it could send request for personal interrogation. The request for interrogation in person would be considered on merit, the SC had told the police in a communication. Appearing for the Bar, senior advocate Fali S Nariman flanked by senior advocates Anil Divan and M N Krishnamani expressed concern over the scandal and also pointed out the possible dent in the image of the judiciay if an SHO was seen interrogating a judge.
Bench comprising CJI Balakrishnan and Justices P Sathasivam and J M Panchal appeared undecided about the constitution of a committee as suggested by Nariman, it decided to seek the assistance of solicitor general G E Vahanvati to chart out a possible course to deal with the situation.
To keep the proceedings off the media glare, the bench decided to take up the matter in chamber on July 14, when Vahanvati and other senior advocates would make good their assistance to look for a way out of the problematic situation.
The petition said one Ashutosh Asthana, the Central Nazir in the judgeship of Ghaziabad, had allegedly confessed before a magistrate about his role in the PF scam and had allegedly mentioned the names of 23 judges who were beneficiaries of the illgotten money.

With thanks from The Times of India 8 July 2008 P. 14 Delhi
©All rights reserved with the Bennett Coleman & Co. Ltd

03 July, 2008

दूसरी बीवी को मिलेगी फैमिली पेंशन:Second wife will get the pension-Supreme Court

माला दीक्षित, नई दिल्ली आठ साल की कानूनी लड़ाई के बाद तय हो गया है कि शकुन्तला चाहे दूसरी पत्नी ही क्यों न हो, फैमिली पेंशन उसे ही मिलेगी। सुप्रीमकोर्ट ने मंगलवार को शकुन्तला को पेंशन देने के हाईकोर्ट और सिविल जज के फैसले पर अपनी मुहर लगा दी। कोर्ट ने फैमिली पेंशन पर दावा पेश करने से पहले कानूनन पत्नी होने और पहली पत्नी से उसके पति के तलाक ले लेने का सबूत पेश करने की रिजर्व बैंक आफ इंडिया की दलीलें खारिज कर दीं हैं। न्यायमूर्ति अल्तमश कबीर व जीएस सिंघवी की पीठ ने आरबीआई के वकील जयदीप गुप्ता व एचएस परिहार की दलीलें ठुकराते विशेष अनुमति याचिका खारिज कर दी और कहा कि वह हाईकोर्ट के फैसले में दखल नहीं देना चाहते। हालांकि कोर्ट ने आरबीआई की याचिका में उठाया गया कानूनी मुद्दा भविष्य में तय करने के लिए छोड़ दिया है। महाराष्ट्र का यह मामला कुछ पेचीदा था। आरबीआई के रिटायर्ड कर्मचारी गोविन्दा परासू शिराले की मृत्यु के बाद फैमिली पेंशन पाने के लिए उसकी दो पत्नियों ने अलग-अलग दावे पेश किए। बैंक का कहना था कि आरबीआई एक्ट के मुताबिक सिर्फ कानूनन ब्याहता पत्नी को ही फैमिली पेंशन दी जा सकती है। पहली पत्नी तुलसा हिन्दू उत्तराधिकार अधिनियम के तहत उत्तराधिकार सर्टिफिकेट मांगने अदालत पहंुची। कंगल के सिविल जज ने कहा कि वह परासू शिराले की कानूनन ब्याहता पत्नी है लेकिन उसके हक में सक्सेशन सर्टिफिकेट जारी नहीं किया जा सकता क्योंकि वह अपने पति से जीवनभर के भरण पोषण का एक साथ 33 हजार रुपये ले चुकी है। दूसरी पत्नी शकुन्तला ने बैंक के सामने यह आदेश पेश कर उसके हक में पेंशन जारी करने का आग्रह किया। बैंक नहीं माना और उससे पहली पत्नी तुलसा और परासू के तलाक व अपने कानूनन ब्याहता पत्नी होने का कानूनी आदेश पेश करने को कहा। शकुन्तला अदालत पहंुची तो सिविल जज ने उसके हक में सक्सेशन सर्टिफिकेट जारी कर दिया। कोर्ट ने बैंक को फैमिली पेंशन का 1,84,444 रुपये अदा करने का आदेश दिया। लेकिन बैंक की दलील थी कि सक्सेशन सर्टिफिकेट मृतक की संपत्ति में कानूनी वारिस होने के लिए होता है। फैमिली पेंशन इस श्रेणी में नहीं आता। नियम के मुताबिक फैमिली पेंशन पर सिर्फ कानूनन ब्याहता पत्नी का ही अधिकार है। शकुन्तला ने डिक्री लागू कराने की कोर्ट में अर्जी डाली जिस पर अदालत ने एक्जीक्यूशन नोटिस जारी कर बैंक को पैसा देने का आदेश दिया।
With Thanks from the Danik Jagran
Source:- Danik Jagran 2 July 2008 P.1 Delhi
For any query:- legalpoint@aol.in

02 July, 2008

Making any body a Muslim for marriage is crime-Darul Ulum शादी के लिए मुसलमान बनाना गुनाह : दारुल उलूम

दुनिया के मशहूर इस्लामी अध्ययन संस्थान, सहारनपुर स्थित दारुल उलूम देवबंद ने फतवा जारी कर कहा है कि सिर्फ शादी या वासना के लिए किसी हिंदू लड़की का धर्म परिवर्तन करना इस्लाम के खिलाफ है। इस तरह किसी को मुसलमान बनाने वाले व्यक्ति को अल्लाह का कहर झेलना पड़ सकता है। फतवे में कहा गया कि अल्लाह उस लड़की से भी खुश नहीं होगा जिसने सच्चे इरादे से इस्लाम कबूल नहीं किया, बल्कि मुसलमान लड़के से केवल शादी का रास्ता साफ करने के लिए ऐसा किया।
दारुल उलूम से एक व्यक्ति ने सवाल किया था, जिसके जवाब में फतवा जारी किया गया। फतवा मांगने वाले के अनुसार शरीयत में मुस्लिम गर्लफ्रेंड रखने की भी अनुमति नहीं है, जबकि उसके एक मुस्लिम दोस्त की हिंदू गर्लफ्रेंड थी। बाद में यह दोस्ती शादी में बदल गई और उस लड़की ने इस्लाम कबूल कर लिया। इस व्यक्ति ने अपने एक अन्य दोस्त का हवाला दिया, जो दोस्ती तो दूर किसी लड़की से आंख तक नहीं मिलाता। उनसे बात नहीं करता। उसे डर है कि ऐसा करना अल्लाह के निर्देशों का उल्लंघन होगा।
फतवा मांगने वाले ने कहा कि लेकिन ऐसे नेक लड़कों द्वारा किसी लड़की को मुसलमान बनाने जैसे नेक काम की सभी संभावनाएं भी खत्म हो जाती है। उसने सवाल किया कि ऐसे में अल्लाह को गैर-मुस्लिम लड़की से इश्क करके उसे मुसलमान बना शादी करने वाला ज्यादा अजीज़ होगा या वह दूसरा दोस्त जो किसी लड़की से दोस्ती नहीं करने के कारण किसी गैर-मजहब लड़की को मुसलमान बनाने की सारी संभावनाएं खो चुका है।
दारुल उलूम ने कहा कि निस्संदेह अल्लाह को किसी लड़की से इश्क करके उसे मुसलमान बनाने वाले से कहीं ज्यादा प्रिय वह लड़का होगा, जो किसी लड़की के इश्क या वासना का शिकार नहीं हुआ। उसने चरित्रवान रहने के अल्लाह के निर्देशों का पालन किया इसलिए वह उसे किसी हिंदू लड़की को मुसलमान बनाने वाले लड़के के मुकाबले कहीं अधिक प्रिय होगा। दूसरी ओर गैर-मजहबी लड़की को मुसलमान बनाने वाला लड़का वासना का शिकार हुआ और बड़ा पाप किया। ऐसा व्यक्ति अल्लाह का प्रिय होना तो दूर, उसके अभिशाप तक का शिकार बन सकता है।
With Thanks from the नवभारत टाइम्स
Source:-2 July 2008 नवभारत टाइम्स Delhi P. 1
For any query:- legalpoint@aol.in

01 July, 2008

Proposal to amend Section 125 Crpc to provide Maintenance for live-in partner

A woman in a live-in relationship should be entitled to maintenance if she is deserted by her man, the National Commission for Women has said. In far-reaching recommendations to the ministry of women and child development, the commission has sought a change in the definition of ‘‘wife’’ as described in Section 125 of CrPC, which deals with maintenance and suggested that it include women involved in a live-in relationships.
The move aims to harmonize other sections of the law with the Protection of Women from Domestic Violence Act that treats a live-in couple’s relationship on a par with that between a legally married husband and wife. NCW also sought another significant amendment to Section 125, saying that said adultery should no longer be a ground for denying maintenance to a woman. ‘‘We have found in 70% of divorce cases, adultery is used to discredit the woman. Not only is she thrown out of the house, but is also disgraced and denied her rights,’’ NCW chairperson Girija Vyas said.
Section 125 provides for maintenance of wife, children and parents, who cannot maintain themselves. Maintenance can only be claimed by a woman who is a wife, has either been divorced or has obtained divorce, or is legally separated and is not remarried. Pointing to the need for broad-basing the definition of wife in the section, commission officials said there had been many cases where the man led the woman to believe that he was unmarried or was divorced or widowed and went through the formalities required by the Hindu Marriage Act or the custom governing him.
‘Long-term relationship valid to claim alimony’
The move by National Commission for Women to seek a change in the definition of ‘‘wife’’ is aimed at harmonizing other sections of law with the Protection of Women from Domestic Violence Act that treats a live-in couple’s relationship on a par with that between a legally married husband and wife.
NCW chairperson Girija Vyas said, ‘‘Even if the marriage is not registered, if the woman can provide enough proof of a long-term relationship, her claim will stand.’’
Children of such relationships can also claim maintenance from the father, according to the NCW suggestion. This has been supported by several Supreme Court orders too.
The commission has also suggested that parents seeking maintenance from their sons or daughters should be able to file a case from where they reside rather than from where their offspring live.
With thanks from The Times of India 30 June 2008 P. 1 Delhi
©All rights reserved with the Bennett Coleman & Co. Ltd
For any query:- legalpoint@aol.in