E-Passbook scheme for the Employees' Provident Fund Organisation to be launched today

E-Passbook scheme for the Employees' Provident Fund Organisation to be launched today

Subscribers to the Employees’ Provident Fund Organisation will now be able to download their e-pass book each month, if they are active members and if their electronic challan-cum-return is uploaded. 

In the case of members who are not active (left service) and have not settled their account or have not become inoperative, the facility to download the pass book on request basis shall be available, it said. 

The facility shall be available on www.epfindia.gov.in. 

Once the facility comes into operation, PF members can register on the Member Portal by using his/her photo identification number, such as PAN, Aadhaar, National Population Registry, driving licence, passport, voter ID, ration card and use the mobile number as password. This way, the member will not be required to remember any user ID/password, the Ministry said. Once registered, a member can download the pass book by entering his/her account number. If available, the pass book will appear for download. 

“The e-pass book shall contain the transaction-wise details in the member’s account (all credits and debits) since the month for which the details for the establishment have been processed in the new application software at the field offices,” the Ministry added. 

The facility, however, will not be available for members under exempted establishments under the EPF Scheme 1952 (as the fund details are maintained by the Trust), inoperative members (i.e. in accounts where no contribution has been received during preceding 36 months). 

However, there will be some restrictions, as only one registration will be allowed against one mobile number, and a member can download the passbook for only one account number under one establishment.

source – www.thehindubusinessline.com

CIT vs. Solar Exports - Proviso to Section - 43B - Supreme court recently in case C.I.T. vs. Solar Exports has held that Finance Act, 2003 is curative in nature & has retrospective operation from 1st April 1988

Once again Supreme court had settled he issue pertaining to the question of allowability of deduction of PF, ESI, etc being paid subsequent to the close of the accounting period but before the due date of filing of return in the case of Commissioner of Income Tax vs. Solar Exports. 

The term certain deductions be allowable only on actual payment related to provident fund payments as per section - 43B of the Income Tax Act, 1961 has been quite a topic in income tax litigation. This case relates to the assessment year 2000-01 and 2001-02. 

Supreme court held that this case was squarely covered by the decision of the Apex court in the case of CIT vs. Alom Extrusions Ltd. [2009] 319 ITR where it was held that the Finance Act, 2003 is curative in nature and that the same is applicable from 1st April 1988 when the proviso was first inserted. 

Held that, revenue has to accept the payment of ESI, PF etc, paid by the assessee and shall give deductions of that amount in favor of assessee as claimed in the income tax return. 

This special leave to appeal rose out of the judgment & order of Karnataka High Court.

Challenges faced by women in legal profession

Major Challenges confronted by Women in Legal Profession

Life is either a daring adventure, or it is nothing . . .

Women in legal profession who have very little support in litigation & insufficient professional network face indefinite struggle in the field of legal practice, and gradually with time it becomes tough for many to pursue further. Like many other working women in other jobs or profession, women lawyers are also forced to choose between their careers and family. 

Here are some major challenges faced by women in legal profession in India,-

1) Gender bias & discrimination at workplace: It is often seen that women are underestimated while allocating challenging tasks at work. They are forced to be contend with lesser professional fees in compare to their male counterparts. Women are also denied benefits, bonuses and promotions at times. They are made to feel like to be less competent and less reliable and hence employers don't confide on them or neither wants to invest on them; especially when women take maternity leave. Also it has been unearthed during interview that, they are being asked questions pertaining to marriage plans, family plans etc. which eventually becomes one of the criteria for an employer to to take a call during hiring process. Questions related to travelling to different places in connection to work is also asked in an interview. Some agrees to take the challenge and some back out due to social and family constraints. Women are continuously being doubted and challenged of their competency and sincerity. 

2) Marriage & Maternity breaks: Often women sacrifice their personal needs while coping up with never-ending professional responsibilities. They are equally concerned about achieving and meeting the challenging professional responsibilities and in a way things get complex and tough while pursuing long hours of work. Therefore, women lawyers struggle a lot in maintaining a balance alongside a demanding career. Professionally, it is humiliating for a woman lawyer who is questioned of her dedication, sincerity & commitment towards work when she gets married or take maternity leave. It seems that women in the law firm and corporate sector is the worst effected. Even though however competent or deserving candidate she may be, they are victim of prejudice when they are denied of their earned entitled promotion or many other benefits. In a way they loose out opportunities to climb a ladder of success in reaching up to upper ranks of the legal structure of a Law firm/ corporate sector. 

On the other hand women in litigation also find it extremely difficult to cope with the gap that is created due to maternity break. It is a known fact that, being visible in courts is a part of the deal in becoming a successful lawyer. Women in litigation has certain freedom to work as there is no fixed hours or deadlines to follow. However, the independent practitioners sacrifice their earnings during this period as they are not in a position to reach out to work hard to acquire clients and work. In legal sector continuity in legal practice is highly appreciated by employers and clients, & these are the major reasons of setbacks for a women in legal profession in order to pursue their career with full control. Long absence from the court room corridors which is considered to be "the integral place" is certainly a doom for their legal career. 

By the way what difference does it make for a women lawyer in Law firm/ corporate sector to that of women in litigation!  

3) Denied of rightful fees: It is extremely humiliating to find, when women legal professionals are denied of their rightful fees. Independent women legal practitioners often have to face a very difficult time in procuring clients and professional fees.

4) Gender Preferences while recruiting a lawyer in corporate: Many a times while applying for a position with a respectable company via job portals, the requirement for the position reads- "Only Male Candidates shall apply for the post" or "Preferably male candidates". This is humiliating, disheartening and gender discrimination. 

5) Family & Social pressure: Mainly, the problem begins post-marriage. At this stage things get difficult in maintaining a fine balance between legal practice and family obligations. Marriage to someone who is in the same profession could be advantageous for a woman legal practitioner or else things could get difficult. Hectic work schedules, late night shifts, attending meetings at odd hours, travelling to places due to work are few of the major reasons for woman lawyers to quit their jobs and stop practicing. Another reason is when there is a lack of family support post maternity and lack of creche facilities, which are also few of the reasons for setback in their legal career. 

To the extent, such circumstances forces a woman legal professional to sacrifice their career at the end.     

...xxx...

The desirability of ethics in Legal profession

THE DESIRABILITY OF ETHICS IN LEGAL PROFESSION

the practice of securing harmonious co-operation between the Bar & the Bench & establishing the promotion of highest standards in fair dealings with ones clients, opponent & witnesses

“With great power comes great responsibility”… but the question is, how far the proverb stands to be true when compared to the legal profession?

Our Indian Constitution has prescribed in Article 22(1), -

“No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for which arrest nor shall he be denied the right to consult and to be defended by, a legal practitioner of his choice”.

Bar Council of India Rules explicitly states the “Standards of Professional Conduct and Etiquettes”, where an Advocate is bound to accept any brief in the Courts or Tribunals or before any other authorities in or before which he proposes to practice at a fee consistent with his standing at the Bar and the nature of the case with an exception to special circumstances, where he may refuse to accept a particular brief. Section 49(1)(c) of The Advocates Act of 1961 empowers the Bar council of India to make rules so as to prescribe the standards of professional conduct and etiquette desired to be observed and practiced by the advocates. To sum up, legal professionals have a vital role to play on social dimension.

Every profession has its own sets of ethics, set of norms & code of conduct codified for correct approach. For instance, writing an article in a newspaper or magazine, a journalist is expected to follow basic prescribed code of ethics i.e. verification of facts before putting it into writing before publishing the same for public. Doctors, if simply put are also expected not to refuse with medical help at the time of dire emergency. No wonder why they are considered as “next to god”. If simply put, the lawyers are also bound by certain professional ethics and guidelines, in order to safeguard the interest of a common man.

Legal profession is highly dynamic and competitive. In this 21^st century and expanding globalization, the profession has ceased to be referred “a traditional profession”. With increasing globalization mobility of lawyers have become frequent, and with time and pace the legal practice has also become more complex. It is seen that there is a constant conflict of approach between a conventional lawyer and street-smart lawyer, both struggling through the cutthroat competition. Practicing law with passion while maintaining integrity is seldom seen admired and valued. The public image of legal professionals is far from flattering as they are referred as “fortune seekers” instead of being someone who seeks to serve.

In the recent past, there had been an utter rage when lawyers challenged Rule 36 of the Bar Council of India Rules before the Supreme Court on the issue of blanket ban on “advertising services”. Rule 36 prohibits lawyers from advertising to get clients, either directly or indirectly and the prohibition extended to include websites and also online directories. A simple law degree would not suffice if larger public interests were to be taken into consideration.

Lawyers cannot be termed as businessmen! Mere solicitation of their legal specialization, skills and information can never be equated with profit making. With diversified areas of legal practice, nobody is expected to be master of every sphere of law.

Hence, making available of relevant information regarding their work and expertise on websites, online directories etc for the consumers cannot be termed as commercialization of legal services. Every citizen who seeks for legal service/legal help is rightly entitled to know about his/her lawyer and ones expertise, because at the end of the day a fee is charged by the lawyer for rendering legal service. “Lawyers cannot attract business through advertisements” is a conventional opinion. What about circulation of personal visiting cards by the professionals? Wouldn’t it be referred as solicitation of their legal service only to get more clients? The difference is embracement of the modern tool or medium of providing information to public by way of advertisement on websites / online-portals, directories etc instead of a usual conventional approach of distributing ones visiting cards. In the end resolution to amend Rule 36 were sorted and advocates are now allowed to provide information on websites under intimation and as approved by the Bar Council of India.

Now, if an ethical approach in legal practice is so much desired and Bar Council of India is active in maintaining the integrity of this profession by safeguarding the same from getting commercialized, then why this profession is no longer regarded as a noble one? What are the reasons for this outright decline by the public? Why people are loosing faith in lawyers and judiciary? As far as practical aspect is concerned, the legal hierarchy and its procedural complexities are the main reasons for indefinite litigation process and a lawyer is always doubted for being unethical and manipulative.

Not to mention of another issue for which people are loosing faith in this so-called noble profession. It is that when “lawyers resort to strike” for disagreement. Considering the exigencies of the profession and speedy disposal of cases in order to achieve justice is the need of an hour. What intrigues me is whether it is socially, morally & ethically acceptable to let an innocent suffer for the want of an immediate legal aid when the lawyers are on strike? This is one of the major facets of this legal profession, which should be obeyed in order to achieve harmonious relationship with the public. 

Hon’ble Supreme Court has out rightly stated that lawyers cannot resort to strike which is illegal. In the case of Ex Capt. Harish Uppal vs Union of India & Anr (2002) Hon’ble Supreme Court has held that,

“if a lawyer, holding a Vakalat of a client, abstains from attending Court due to a strike call, he shall be personally liable to pay costs which shall be addition to damages which he might have to pay his client for loss suffered by him. There will be no strikes and/or calls for boycott. It is hoped that better sense will prevail and self restraint will be exercised.” 

On such occasions Bar Councils are expected to uphold the dignity of courts in order to prevent interference in the smooth functioning of the administration of justice and also to ensure that there shall be no unprofessional or unbecoming conduct from the lawyers. Considering the responsible position and their duty, no Bar Council shall ever consider giving a “call for strike” or “call for boycott”. Considering this situation, Bar councils instead of resorting to strike and protest shall challenge the legality of provisions in court that are binding them.

After all, if the citizens are expected to be law abiding, why an exception shall be made for the legal professionals!

Law is a serious profession and is very different from other professions. It affects not only an individual but also society at large. If the importance of this profession lies in maintaining a discipline and certain code of conduct, then why wouldn't the society rightfully expect an ideal behavior from a lawyer!  

Commissioner of Income Tax vs. Virgin Creations - "matter of review"

Decision of Calcutta High Court in the case of Commissioner of Income Tax vs. Virgin Creations

… Is a matter of review

The decision passed by the Hon’ble Calcutta High Court has created a history of providing relief to the “TDS defaulters” in a very short span of time. The legal applicability of retrospective application of amendment to the provision of sec-40 (a) (ia) of the Income Tax Act, 1961 brought in by the Finance Act, 2010 is said to have sorted out by this Hon’ble High court in the case of C.I.T vs. Virgin creations.

Tax-payers and tax-representatives have considered the said judgment as a “sigh of relief!”. But the question is that, although the amendment in the provision of section 40(a)(ia) of the Act was introduced with an objective to remove hardship faced by the taxpayers, how far an order passed by a Higher judicial authority which is factually erroneous can provide relief to the TDS defaulters?

The Amendment as explained in the Memorandum explaining the provision in Finance Bill, 2010 is as under: -

Disallowance expenditure on account of non-compliance with TDS provisions,

“The existing provisions of section 40(a)(ia) of the Income-tax Act provide for the disallowance of expenditure like interest, commission, brokerage, professional fees, etc. if tax on such expenditure was not deducted, or after deduction was not paid during the previous year. However, in case the deduction of tax is made during the last month of the previous year, no disallowance is made if the tax is deposited on or before the due date of filing of return.

It is proposed to amend the said section to provide that no disallowance will be made if after deduction of tax during the previous year, the same has been paid on or before the due date of filing of return of income specified in sub-section (1) of section 139.

This amendment is proposed to take effect retrospectively from 1^st April, 2010 and will, accordingly, apply in relation to the assessment year 2010-11 and subsequent years.”

The amendment has led to an enormous confusion and controversy in tax litigation. Although this aforesaid provision has been challenged before various court of law since it’s inception vide Finance Act, 2004, the issue of it’s application made with a retrospective effect but with prospective date i.e. w.e.f. 01.04.2010 relevant to A.Y. 2010-11 is the most debated one. Several judicial and quasi-judicial authorities had tried to clarify the position and the applicability of this amendment in number of cases. 

With reference to the already made discussion above, I would like to point out that, Hon’ble High Court while passing the decision in the case of Virgin creations has mentioned that, Hon’ble Supreme Court in the case of Allied Motors Pvt. Ltd. and in the case of Alom Extrusions Ltd. have already decided that sec-40 (a) (ia) has retrospective application”. Relevant extract from the order in the case of Virgin creations is as under, -

“The learned Tribunal on fact found that the assessee had deducted tax at source from the paid charges between the period April 1, 2005 and April 28, 2006 and the same were paid by the assessee in July and August 2006, i.e. well before the due date of filing of the return of income for the year under consideration. This factual position was undisputed.

Moreover, the Supreme Court, as has been recorded by the learned Tribunal, in the case of Allied Motors Pvt. Ltd. and also in the case of Alom Extrusions Ltd., has already decided that the aforesaid provision has retrospective application.”

Now, I would also like to briefly state the relevant paragraph from the judgment passed by Hon'ble Supreme court in the case of Allied Motors Pvt. Ltd. (P) Ltd. vs. Commissioner of Income Tax, -

 “Whether on the facts and in the circumstances of the case, the sales-tax collected by the assessee and paid after the end of the relevant previous year but within the time allowed under the relevant sales-tax law is to be Income-Tax Act, 1961 while computing the business income of the said previous year “?

In this case, the deduction that was claimed by the assessee was disallowed by the Income-tax Officer under Section 43B of the Income-tax Act, 1961 which was inserted in the statute with effect from 1.4.1984.”

Again in the case of Commissioner of Income Tax vs. Alom Extrusions Limited, the issue, which was adjudicated and clarified by Hon'ble Supreme Court of India was that, -

“whether omission [deletion] of the second proviso to Section 43-B of the Income Tax Act, 1961, by the Finance Act, 2003, operated with effect from 1st April, 2004, or whether it operated retrospectively with effect from 1st April, 1988?”

Now, after careful observation of both the afore-mentioned judgments passed by the Hon'ble Supreme Court, I have observed that sec-40 (a) (ia) has in fact not been adjudicated at all by Hon'ble Supreme Court. Therefore, Hon'ble High Court of Kolkata in the case of Virgin Creations has indeed erred in its factual observation while passing the decision, and that the same require some serious review.

Till date, no reported judgment challenging the order of the judgment of the said High Court of Calcutta is found and I am of the opinion that the same requires an immediate review.