Corporate and Commercial Law FAQ
Commercial Dispute Resolution (“CDR”) means resolving a dispute, that has arisen between the parties in the course of commercial transaction or deal, through court proceedings or consensus between parties which is commonly referred as Alternative Dispute Resolution. Commercial Dispute Resolution involves dispute of commercial nature. Recently On 23rd October 2015, The President of India promulgated two ordinances dealing with Commercial Dispute Resolution. These were:
- The Arbitration and Conciliation (Amendment) Ordinance, 2015 (“Arbitration Ordinance“)
- The Commercial Courts, Commercial Division and Commercial Appellate Division of the High Court’s Ordinance, 2015 (“Commercial Courts Ordinance“)
These two ordinances brought changes with respect to time limit for resolution, provisions relating to interim relief, the scope of court’s intervention, etc.
International Trade and Business Agreement refers to an agreement of trade between the subject of International Law i.e., agreement between two or more states or international organization. World Trade Organization (“WTO’) regulates the conduct of the subjects of international law with respect to international trade and business. It creates legal framework for 164 countries around the world. These Agreements cover goods, services, intellectual property, standards, investment and other issues that impact the flow of trade
A licensing agreement is a legal contract between two parties, known as the licensor and the licensee. In a typical licensing agreement, the licensor grants the licensee the right to produce and sell goods, apply a brand name or trademark, or use patented technology owned by the licensor. The licensee pays the owner in exchange for the right to sell the product or use the technology. The person who grants license is known as licensor and the party who is permitted to have the right over licensor’s property is known as licensee.
The license agreement contains the terms of usages and particulars like the geographical limit within which the property may be utilised, the time period for which the parties are allotted to use the property, scaling terms, etc. An example of license agreement is entertainment companies like Netflix who enters into an agreement with other companies to broadcast their shows for a particular time period.
Registration of Company implies Registration of Company with the Registrar of Companies (“ROC”). As per Section 2(74) of the Companies Act, 2013 “register of companies” means the register of companies maintained by the Registrar on paper or in any electronic mode under this Act. Section 7 of the Companies Act, 2013 provides for incorporation of company which requires various documents and information of company to be filed with Registrar for the purpose of registration.
Requirements and process of registration depends on the type of company. These are minimum shareholders and directors, etc for different types of Companies. Section 7 of the Companies Act, 2013 provides for incorporation of company which requires various documents and information of company to be filed with Registrar for the purpose of registration The Pre-Requisites for Company Registration are:
- The particulars of Shareholders of the company.
- The particulars of Directors of the Company.
- Share Capital of Company
- Digital Signature Certificate
- Company Name
- Registered Office Address of Company
- Memorandum and article of Association
- A declaration from the advocate, Chartered Accountant or Company Secretary involved in the proves of Formation of the Company.
- A declaration from director and subscriber of the memorandum of the company.
The registrar then register all these documents and information and issue a certificate of incorporation of the company and shall allot a corporate identity to the company.
Winding up of a company implies dissolution of a Company. In the case of Pierce Leslie & Co Ltd v. Violet Ouchterlong Wapshare, it was held that “Winding up precedes dissolution”. Winding Up is provided under Chapter XX of the Companies Act, 2013, from Section 270 to Section 365 of the Companies Act, 2013. There are two modes of Winding up of a company. These are:
- Compulsory Winding up by Tribunal
- Voluntary Winding up.
PROCEDURE FOR VOLUNTARY WINDING UP
- Conduct a board meeting with 2 Directors and thereby pass a resolution with a declaration given by directors that they are of the opinion that company has no debt or it will be able to pay its debt after utilizing all the proceeds from sale of its assets.
- Issues notices in writing for calling of a General Meeting proposing the resolution along with the explanatory statement.
- In General Meeting pass the ordinary resolution for the purpose of winding up by ordinary majority or special resolution by 3/4th majority. The winding up shall be started from the date of passing the resolution.
- Conduct a meeting of creditors after passing the resolution, if majority creditors are of the opinion that winding up of the company is beneficial for all parties then company can be wound up voluntarily.
- Within 10 days of passing the resolution, file a notice with the registrar for appointment of liquidator.
- Within 14 days of passing such resolution, give a notice of the resolution in the official gazette and also advertise in a newspaper.
- Within 30 days of General meeting, file certified copies of ordinary or special resolution passed in general meeting.
- Wind up the affairs of the company and prepare the liquidators account and get the same audited.
- Conduct a General Meeting of the company.
- In that General Meeting pass a special resolution for disposal of books and all necessary documents of the company, when the affairs of the company are totally wound up and it is about to dissolve.
- Within 15 days of final General Meeting of the company, submit a copy of accounts and file an application to the tribunal for passing an order for dissolution.
- If the tribunal is of the opinion that the accounts are in order and all the necessary compliances have been fulfilled, the tribunal shall pass an order for dissolving the company within 60 days of receiving such application.
- The appointed liquidator would then file a copy of order with the registrar.
- After receiving the order passed by tribunal, the registrar then publish a notice in the official Gazette declaring that the company is dissolved.
Chapter XXII of the Companies Act, 2013 from Section 379 to Section 392 provides provisions that regulates the conduct of companies incorporated outside India but having its place of business in India. Apart from this Foreign Exchange Management Act also controls the activities of Foreign Companies. Under FEMA rules branch of the Foreign Company can undertake very limited prescribed following activities:
- Export / Import of goods.
- Rendering professional or consultancy services.
- Carrying out research work, in areas in which the parent company is engaged.
- Promoting technical or financial collaborations between Indian companies and parent or overseas group company.
- Representing the parent company in India and acting as buying / selling agent in India.
- Rendering services in information technology and development of software in India.
- Rendering technical support to the products supplied by parent/group companies.
- Foreign airline / shipping company.
Normally, the Branch Office should be engaged in the activity in which the parent company is engaged. Therefore, activities which can be undertaken by these branches are very limited.
MINIMUM NUMBER OF DIRECTORS:
Section 149 of Companies Act 2013 provides for the number of directors in a company. The law requires that every company must have at least 3 directors in case of public limited companies, minimum 2 directors in case of private limited companies and a minimum 1 director in case of one-person companies. A company can have a maximum of 15 directors. The company could appoint more directors by passing the special resolution in its general meeting.
MINIMUM NUMBER OF SHAREHOLDERS:
Section 3 of Companies Act 2013 provides for the number of shareholders in a company. The law requires that every company must have at least 7 person in case of public limited companies, minimum 2 person in case of private limited companies and a minimum 1 person in case of one-person companies.
The structure of Directors mentioned under the Companies Act, 2013 is:
- Residential Director [Section 149(3)]: As per the law, every company needs to appoint a director who has been in India and stayed for not less than 182 days in a previous calendar year.
- Independent Director [Section 149(6)]: Independent directors are non-executive directors of a company and help the company to improve corporate credibility and enhance the governance standards. In other words, an independent director is a non-executive director without a relationship with a company which might influence the independence of his judgment.
The tenure of the Independent directors the hall up to 5 consecutive years; however, they shall be entitled to reappointment by passing a special resolution with the disclosure in the Board’s report. Following companies need to appoint at the least two independent directors:
Public Companies with Paid-up Capital of Rs.10 Crores or more,
Public Companies with Turnover of Rs.100 Crores or more,
Public Companies with total outstanding loans, deposits, and debenture of Rs.50 Crores or more.
- Small Shareholders Directors: A listed company, could upon the notice of minimum 1000 small shareholders or 10% of the total number of the small shareholder, whichever is lower, shall have a director which would be elected by small shareholders.
- Women Director [[Section 149(1)(a)]: A company, whether be it a private company or a public company, would be required to appoint minimum one woman director in case it satisfies any of the following criteria:
The company is a listed company and its securities are listed on the stock exchange.
The paid-up capital of such company is Rs.100 crore or more with a turnover of Rs.300 crores or more.
- Additional Director [Section 161(1)]: A person could be appointed as an additional director and can occupy his post until next Annual General Meeting. In absence of the AGM, such term would conclude on the date on which such AGM should have been held.
- Alternate Director [Section 162(2)]: Alternate director refers to a personnel appointed by the Board, to fill in for a director who might be absent from the country, for more than 3 months.
- Nominee Directors: Nominee directors could be appointed by a specific class of shareholders, banks or lending financial institutions, third parties through contracts, or by Union Government in case of oppression or mismanagement.
A foreign company is considered resident in India if the control and management of its affairs is situated wholly in India. A company incorporated in India by foreign shareholders shall be treated as an Indian company for all purposes including from the perspective of Companies Act or Income Tax Act. Further, a company is a separate legal entity irrespective of the nationalities of its stakeholders. A company holds its properties in its own name and not in its shareholders’ names.
The main intellectual property rights companies should be aware of are:
- Trade Secrets
- Database Rights
- Confidential Information
The key laws and regulations on employment in India that companies should be aware of are:
1. The Minimum Wages Act, 1948
2. The Employees Provident Fund Act, 1952
3. Payment of wages Act, 1936
4. Equal remuneration Act, 1976
5. Maternity Benefit (Amendment) Act, 2017
6. Payment of Bonus Act, 1965
7. Code on wages Act, 2019
8. The Industrial Disputes Act, 1947
9. Payment of Gratuity Act, 1972
10. The Factories Act, 1948
11. The Apprentices Act, 1961
12. The Workmen’s Compensation Act, 1923
13. The Payment of Bonus Act, 1965
14. The Employees State Insurance Act, 1948:
15. Child Labour Regulations (CLR)
Labour Law FAQ
Labour Laws are the legislations enacted by the Parliament for safeguarding the rights of the people who are employed for labour, these legislative enactments are made in order to define a clear and unambiguous relation between the employer and employee. These are certain legislations that substantially governs the rights and liabilities of the labours in India-
- The Industrial Disputes Act, 1947
- The Trade Unions Act, 1926
- The Payment of Wages Act, 1936
- Minimum Wages Act, 1948
Last year, the Government of India came up with three new legislations to effectuate the labour law reforms that were pending for so long. These legislation were namely-
- The Code on Social Security, 2020
- The Occupational Safety, Health and Working Conditions Code, 2020
- The Industrial Relations Code, 2020
The Constitution of India is the grundnorm of the specific legislative enactments our country has to govern the rights and duties of labour laws, and none other than Part- III i.e. Fundamental Rights safeguard the rights of a labour. Article 14 i.e. equality before law leads the way in furtherance of this objective and the extent of its application is such that it is applicable on an alien or non- citizen, the concept of equal pay for equal work has taken birth from Article 14 and forms an integral as well as inseparable part of it, as said by the Supreme Court in Randhir Singh v. Union of India.
Similarly, Article 19(1)(c) of the Constitution endows upon every citizen the right to form associations or unions, the Supreme Court in its recent judgment in Bajaj Auto Ltd. v. State of Maharashtra (2018) opined that it is a fundamental aspect to the working of a person under industrial establishment as such Unions formed aid in protecting the rights of the labours. The Trade Unions in any industrial establishment represents the unity of the labours, the essence of the Unions is such that it has been recognized through Trade Union Act in the year 1926 and was later confirmed by the Constitution of India.
Article 23 of our Constitution prohibits traffic in human beings and forced labour, this article finds its relevancy in contemporary times as well, as the COVD- 19 lockdown in the past two years has grievously affected the migrant labours which can be easily carved out from the recent judgment of the Supreme Court in Bandhua Mukti Morcha v. Union of India (2021) where the Court while pointing out to the Inter- State Migrant Workman (Regulation of Employment and Condition of Service) Act, 1979 issued directions to all the State Governments to comply strictly with it, as the system of employment of inter-State migrant labour (known in Orissa as Dadan Labour) is an exploitative system prevalent in Orissa and in some other States.
And, the fact cannot be ignored that all these rights emanate from Right to Life under Article- 21 and without this right, other rights find no relevance in the life of labour, and the Supreme Court in Bandhua Mukti (supra) while standing for the cause of distribution of free dry rations as well as rations through Ration Cards should be the utmost priority of all the Governments throughout the country.
Article- 24 of the Constitution prohibits child below 14 years of age under labour and the letter and spirit of this provision is reflected under a number of legislative enactments such as Child Labour (Prohibition and Regulation) Act, 1986; Factories Act etc, and the Supreme Court in the year 1996 in M.C. Mehta (Child Labour matter) v. State of Tamil Nadu labeled it as a matter of great public concern and significance.
Apart from the Fundamental Rights, Article 39, 41, 42 and 43 have played an important role in expanding the scope of the Fundamental Rights.
Section- 2(k) of the Industrial Dispute Act, 1947 defines Industrial Dispute as ” industrial dispute” means any dispute or difference between employers and employers or between employers and workmen, or between workmen and workmen, which is connected with the employment or non- employment or the terms of employment or with the conditions of labour, of any person.
The disputes can be categorised under Individual Dispute and Collective Dispute.
This section has been interpreted by the Supreme Court and other Constitutional Courts of our country from time to time as in Bombay Union of Journalists v. The Hindu (1962), the Supreme Court opined that the test to determine whether an individual test is an industrial dispute is whether at the date of reference the dispute was taken up as supported by the Union of the workmen of the employer against whom the dispute is raised by the individual workman
Basically Industrial Disputes can be categorised into- Strikes and Lockouts
Strike is the most common and well known method that is resorted by the labours to make their demands met. It is a sort of temporary suspension of work by the workers in order to impose pressure on the employer. Indsutrial Disputes Act defines strike as “cessation of work by a body of person employed or a concerted refusal of any number of persons who are of who have been employed or refusal under a common understanding”
It can be further classified into Primary, Secondary and other Strikes. Stay Away strike, stay in or sit down strike, pen down strike, go slow strike etc. forms a part of Primary Strike and is against the employer. While Secondary strike includes sympathetic strike and is against a 3rd party.
Lockouts can be said to be the opposite of Strike as it is initiated by the Employer and the employees or workers are prevented from working. The Industrial Disputes Act 1947 defines it as “temporary closing of a place of employment or the suspension of worker or the refusal by an employer to continue to employ any number of persons employed by him”
The Child Labour (Prohibition and Regulation) Act of 1986 is the basic structure of all the rules, regulation and policies that are framed by Government of India to prevent Child Labour in India. In India, the meaning of Child Labour has been given under Article 24 of the Indian Constitution which states that “no child below the age of 14 years shall be employed to work in any factory or mine or engaged in any other hazardous employment”.
Ministry of Labour & Employment is the nodal ministry that governs the aspect of Labour Legislations and Executive Framework, and therefore it is the one that regulates the mechanism to prohibit child labour in India.
The National Policy on Child Labour 1987 is the action plan for tackling this menace and through the act of 1986 prohibits employment of children below 14 years in 18 occupations and 65 processes.
- A number of welfare measures have been instituted for the families affected by child labour by providing educational and economic rehabilitation.
- Ministry of Women and Child Development if providing food and shelter to the children withdrawn from labour activities.
- Ministry of Human Resource Development is engaged in providing mid-day meal to the school children, teachers training, supply of books etc. under Sarva Shikhsha Abhiyan.
- In each State one officer from the State Department of Labour has been nominated as Anti Human Trafficking Unit (AHTU) to act as link officer for co-ordinating with Ministry of HRD in that state for prevention of trafficking of children. CBI is the nodal anti trafficking agency.
- Ministry of Railways is also taking steps to combat this issue
A Workman of a factory or any industrial establishment can raise an industrial dispute before a Conciliation Officer. At the Central Level, Chief Labour Commissioner is the primary conciliatory agency, apart from this there are regional labour commissioners and assistant labour commissioner that act on behalf of the Chief Labour Commissioner in different parts of the country.
They try to resolve the disputes at an initial stage where the issue is still at the nascent stage and is more in the character of a difference between the parties. The conciliation often proves helpful as it prevents the issue to escalate.
In cases where the process of Conciliation fails, then a Failure of Conciliation Report is sent to the Government regarding the issues and then by exercising the power under Section 10 of the Industrial Disputes Act, it can send the matter for adjudication.
The body constituted for taking cognizance of these matters is none other than “Central Government Industrial Tribunal cum Labour Courts” and currently there are 17 of it in different parts of our country. The function of the body is adjudication on the matters that are referred to it by the Central Government and once it ends its proceedings the awards are published within a period of 30 days from the date of receipt of the award by the Ministry of Labour under Section 17 of the Industrial Disputes Act.
International Labour Organization (ILO), specialized agency of the United Nations (UN) dedicated to improving labour conditions and living standards throughout the world. Established in 1919 by the Treaty of Versailles as an affiliated agency of the League of Nations, the ILO became the first affiliated specialized agency of the United Nations in 1946.
The functions of the ILO include-
- the development and promotion of standards for national legislation w.r.t labour to protect and improve working conditions and standards of living
- to provide technical assistancein social policy and administration and in workforce training; fosters cooperative organizations and rural industries
- to compiles labour statistics and conduct research on the social problems of international competition, unemployment and underemployment, labour and industrial relations, and technological change (including automation), and
- help to protect the rights of international migrants and organized labour.
The Conventions can be categorised into Fundamental Conventions and Priority or Governance Conventions.
- Freedom of Association and Protection of the Right to Organise Convention, 1948
- Right to Organise and Collective Bargaining Convention, 1949
- Forced Labour Convention, 1930 (No. 29) (and its 2014 Protocol )
- Abolition of Forced Labour Convention, 1957
- Minimum Age Convention, 1973
- Worst Forms of Child Labour Convention, 1999
- Equal Remuneration Convention, 1951
- Discrimination (Employment and Occupation) Convention, 1958
- Labour Inspection Convention 1947
- Employment Policy Convention 1964
- Labour Inspection (Agriculture) Convention 1969
- Tripartite Consultation Convention 1976
Property Law FAQ
- The laws governing Real Estate in India are:
- The Transfer of Property Act, 1882
- RERA (Real Estate Regulatory Authority) Act, 2016
- The Registration Act, 1908
- Stamp duty has to be paid as per state requirements
- For Non-Resident Indians (NRIs) FEMA (Foreign Exchange Management Act, 1999) also apply
- Investors have to abide by local laws and bylaws
- Clearance as per environmental laws have to be taken before starting with any project for construction of immovable property
- The specific relief Act, 1963
- Other labour laws including for regulating minimum wages and safety insurance provisions
- Land Acquisition Act, 2013
The essential ingredients of sale of property are:
- There must be a property in existence.
- The property must have a saleable nature.
- There must be parties to the sale i.e., buyer and seller.
- The parties to sale must be competent to transfer property.
- There should be absolute transfer of ownership.
- There must be consideration which is paid or promised or partly paid or party promised.
Following are the documents a buyer would need from seller:
- Sale deed
- Payment Receipt
- Encumbrance Certificate
Yes, Registering the documents relating to the transfer, sale, lease or any other form of disposal of a property is compulsory under section 17 of the Indian Registration Act, 1908.
Under the laws currently in force in India, there are no restrictions in relation to the number of properties that can be held by any one person. However, there are some tax implications under the provisions of income tax laws and wealth tax laws for owning more than one houses.
Capital gain refers to an increase in a capital asset’s value and is considered to be realized when the asset is sold. This gain or profit comes under the category ‘income’, and hence you will need to pay tax for that amount in the year in which the transfer of the capital asset takes place. If a property is sold within three years of buying it, any profit from the transaction is treated as a short-term capital gain. This is why it is advisable to hold a property for at least three years. If you sell after three years, the profit is treated as long-term capital gains and taxed at 20% after indexation.
The exemptions on the Capital Gains Tax is provided under Section 54 of Income Tax Act. Here is a list of exemptions:
- Section 54 E, 54EA, 54EB – Proceeds earned through investment in certain securitie
- Section 54EC – Proceeds earned through the sale of a long-term capital asset is exempted when reinvested in specified long-term assets
- Section 54EE – Proceeds earned through a transfer of investments.
- Section 54 – Proceeds earned through the sale of a residential housing property
- Section 54F – Proceeds earned through the sale of capital assets besides a residential housing property.
There is no tax to be paid if you use the entire gain from the transaction to buy another house within two years or construct one within three years. The two- and three-year period applies even if you bought another house a year before selling the first one. But the property should have been bought in the name of the seller.
You can claim exemption under Section 54 (EC) by investing the long-term capital gains for three years in bonds of the National Highways Authority of India and Rural Electrification Corporation Limited within six months of selling the house. However, one can invest only up to Rs 50 lakh in these bonds in a financial year.
The difference is as follows:
Short term capital gains
- Held for less than a year or a period and then sold off.
- If the asset is owned for less than 24 months it is considered as immovable property and if it is owned for less than 36 months it is termed movable property.
- Easily tradable and liquid assets.
- Lesser profits compared to long term gains.
- Less risk.
- Tax rates are same as income tax for individuals.
- Taxes may be reduced by including short term capital loss in the same year.
Short term capital gains = total value of sale consideration – (acquisition cost + improvement cost + total expenditure with transfer) – reinvestment is specific asset.
Long term capital gain
- Held more than a year of time and then sold off.
- If the asset is owned for more than 24 months it is considered as immovable property and if an asset is owned for more than 36 months movable property.
- Includes all liquid and easily tradable and other long term assets (machinery, gold etc.).
- Risk is higher compared to short term capital gains.
- Tax rate is 20% + cesses (if capital gain on sale of equity asset is more than 1 lac, then it is charged 10%).
- Different tax rates for different slabs (for 10% to 15% tax rate is 0%, for 20% to 35% tax rate is 15%, above 39.6% tax rate is 20%).
Long term capital gain = total value of sale consideration – (acquisition cost with indexation + improvement cost with indexation + total expenditure with transfer) – reinvestment is specific asset.
Stamp Duty is a tax, similar to sales tax and income tax collected by the government, and must be paid in full and on time. Stamp duty is levied by the Government on specified transactions and documents. Under the constitution, levy of stamp duty is a State subject. Unless there is an agreement to the contrary, it is the purchaser/ transferee of the property has to pay the stamp duty. However, in the case of exchange of properties, both parties are liable to pay stamp duty equally.
Yes, Section 80C of Income Tax Act provides various expenditures and investment that are exempted from Income tax. Stamp duty and registration charges and other expenses which are directly related to the transfer are allowed as a deduction under Section 80C. The maximum deduction amount allowed under this section is capped at Rs.1,50,000.
It is not necessary to pay stamp duty if the property is transferred or is a gift. But, stamp duty is required in order to give the transaction a legal validity. if the gift deed is executed between some specified close relatives, some states provide concessions in stamp duty.
NRI Property law FAQ
The tax benefits are similar to a resident Indian. A Non-residential Indian (NRI) is entitled to all tax benefits related to purchase of property that a resident Indian is. So, you can claim an Rs 1 lakh deduction under 80C. There are added advantages of buying a house on loan if you are an NRI. Unlike a resident Indian, who can claim a deduction only up to Rs 1.5 lakh for home loan interest, there is no upper limit on this for an NRI
The documents required for obtaining NRI Home Loans are:
- Employer Identity Card
- Attested copy of valid Passport and visa.
- Address proof mentioning the current overseas address
- Copy of Continuous Discharge Certificate (CDC)-for applicants employed in the merchant navy.
- PIO Card issued by Government of India. (in case of PIOs)
- The attestation of documents may be done by FOs/Rep. Offices or Indian Embassy/Consulate or Overseas Notary Public or officials of Branch/Sourcing outfits based in India.
- Loan Application: Completed loan application form duly filled with 3 Passport size photographs
- Proof of Identity (Any one): PAN/ Passport/ Driver’s License/ Voter ID card
- Proof of Residence/ Address (Any one): Recent copy of Telephone Bill/ Electricity Bill/Water Bill/ Piped Gas Bill or copy of Passport/ Driving License/ Aadhar Card
- Property Papers
- Account Statement:
- Income Proof for Salaried Applicant/ Co-applicant/ Guarantor:
- Income Proof for Non-Salaried Applicant/ Co-applicant/ Guarantor:
The housing loan needs to be paid upfront for the entire tenure of the loan by way of direct remittances from abroad through normal banking channels or from other financial accounts as may be permitted by RBI. Generally, payments are done through NRO, NRE, NRNR and FCNR accounts. These accounts change on the basis of RBI regulations.
Different bank prescribes different eligibility criteria for obtaining NRI home loan. Below are the basic eligibility criteria.
- Resident Type: Non Resident Indians (NRIs) or Persons of Indian Origin (PIOs)
- Minimum Age: 18 years
- Maximum Age: 60 years
- Loan Tenure: up to 30 years.
To purchase a house which is either ready to move in, under construction or bought from another owner, an NRI is eligible to apply for home loans. Additionally, NRIs can apply for home loans –
- For construction of a property on a plot of land by self
- To purchase a plot allotted by a society/development authority
- For the purpose of renovation or improvement of an existing property in India