all Law.

The tax treaties entered between India and other countries aims to avoid double taxation of income in the hands of a person (taxable in multiple countries) by providing him with an option to claim credit of the tax paid in a foreign country (FTC) against his tax liability in India. Rule 128 of the IT Rules provides that FTC to be allowed in India would be equivalent to the lower of the tax payable on a foreign income in India and in that foreign country.Now, taking benefit from the language of the articles pertaining to FTC in some of the tax treaties, taxpayers have contended that the entire tax paid in the foreign country should be allowed as FTC in India without restricting it to income-tax payable in India. This view has been upheld by the Hon'ble Karnataka High Court in the case of Wipro Ltd. Vs DCIT: [2016] 382 ITR 179 (Kar) while interpreting India -USA DTAA. However, many courts have taken a divergent view.

This podcast discusses and understand the dispute on this issue and analyse the divergent views taken by various courts with a hope that a much-needed conclusion is provided by the Hon’ble Supreme Court.

Audio Source: https://www.lakshmisri.com/insights/articles/a-quandary-of-claim-of-foreign-tax-credit/

Authors: Sanjhi Agarwal Snehal Shukla

Can trademark infringement be established in cases where recycled bottles with the trademark of one party embossed on such bottles are used by the other party for the sale of their goods? This issue was discussed by the Delhi High Court in the recent case, Anheuser-Busch LLC v. Mr. Surjeet Lal and Anr. decided on March 14, 2022. In this case, the Defendants were using the bottles of the plaintiff bearing their trademark BUDWEISER embossed on such bottles after recycling and relabeling them with their own trademarks BLACK FORT and POWER COOL to sell their own beer. The Court such an act of the Defendant for the purpose of sale of their own products was likely to cause confusion as to its source among the consumers, resulting in the Defendant’s products likely to be confused as that of the Plaintiff’s. The Court held that all the Plaintiff’s registered trade mark ‘BUDWEISER’ was being used by the Defendants who were not its registered proprietor and were also not entitled to permissive use in relation to their own beer. Such use would cause irreparable loss to the Plaintiff and dilution of its goodwill and reputation. Therefore, it was held that such sale resulted in infringement and passing off and the Court granted a permanent injunction in favour of the Plaintiff henceforth restraining them from using, manufacturing or selling their products under the mark ‘BUDWEISER', even in recycled bottles, or in any manner whatsoever, in respect of beer manufactured and sold by the Defendants.

Audio Source: An article published on the LKS website in October 2022
https://www.lakshmisri.com/insights/articles/recycle-with-care/

Author:  Pulkit Doger, Niharika Tiwari

Telecommunications Law in India is currently governed by the Telegraph Act, Wireless Telegraphy Act and various licenses issued by Department of Telecommunications. Recently, the Government released the Draft Indian Telecommunication Bill, 2022 which proposed a renewed and future-ready framework governing the sector and provision of telecommunications services. This article discusses the expanded definition of telecom services, easing of certain controls around mergers, acquisitions and insolvency of licensees, provision of legal recognition to right-of-way for telecom infrastructure and retention of core features around exclusive privilege and licensing regime. It also discusses key changes, retentions and powers in the context of interception, monitoring, unsolicited communications and interactions between Government agencies as sectoral regulators.

Audio Source: An article published on the LKS website in September 2022
https://www.lakshmisri.com/insights/articles/draft-telecommunications-bill-an-explainer/#

Author: Prashant Phillips, Sameer Avasarala

The Hon’ble Gujarat High Court in Real Strips Ltd. v. Union of India recently held that the nature of levy and revocation of Countervailing Duty is Quasi-Judicial. The Court relied on PTC India v. CERC to hold that the appeal provision in section 9C would make the levy of duty by the Central Govt. a quasi-judicial function. This podcast discusses the contrary views that may be considered in this regard. Firstly, the applicability of the PTC case can be distinguished from the current context for having different policy considerations as compared to levy of duties. Further, Section 9C is a highly narrow appeal provision to which the PTC ruling must not be applied. Secondly, referring to the Paper submitted by India to the WTO Working Group regarding implementation of Article 13 of the Anti-Dumping Agreement states that the appeal in Section 9C is against the decisions of Designated Authority. Reliance may also be placed on the Hon’ble Supreme Court’s ruling in Haridas Exports v. All India Float Glass MFRS. Association which held that the imposition of duties is a legislative function. The debate on the issue is far from settled and we look forward to a conclusive end to the issue in future litigations.

Audio Source: An article published on the LKS website in September 2022

https://www.lakshmisri.com/insights/articles/powers-of-central-government-in-imposing-trade-remedial-measures/

Author: Utkarsh Khandelwal, Associate
Voice: Sahana Rajkumar

Focusing on the exporters’ obligations upon non-realization of export payments from erring foreign importers, this article discusses at length the legal and other remedies available with the exporters where the export transactions are not secured in any manner. The article in this regard analyses the civil remedies, remedy through alternative dispute resolution mechanism, remedy through Directorate General of Foreign Trade, and remedy by filing suit against the erring foreign importers in the subject foreign country. Further, since the non-realization/ repatriation of export proceeds is considered a contravention, the options like, representation before the Authorised Dealer Bank and/ or the RBI, write-off and compounding, under the FEMA laws have also been discussed here.

Audio Source : An article published on the LKS website in August 2022
https://www.lakshmisri.com/insights/articles/payment-recovery-mechanism-against-erring-foreign-importers/

Authors: Aman Gupta, Associate (LKS)
Voice : Anushka Verma, Associate (LKS) 

The Income-tax Act, 1961 seeks to levy tax on a non-resident (including a foreign company) only on that income which accrues or arises or is received in India. The Act also requires every company (including a foreign company) to furnish an annual return of income. In this background, one of the issues which has been of wide interest and contemplation is, whether a foreign company is liable to file an annual return of income in India, when there is income accruing or arising in India which is not liable to tax in India either on account of an exemption under the Act or under the Tax Treaty. This Article analyses the two possible views in the said factual scenarios.

Audio Source : An article published on the LKS website in August 2022
 https://www.lakshmisri.com/insights/articles/foreign-companies-obligation-to-file-tax-return-in-india/

Authors: Neha Sharma, Principal Associate (LKS)

Voice : Yashraj Chauhan, Associate (LKS) 

The recently announced Indo-Pacific Economic Framework (IPEF) includes commitments on four pillars, one of which relates to building an inclusive, free and fair trade in digital markets, also on free cross-border data flow. India decided against engaging on the fourth pillar of the IPEF at the moment, waiting for emerging contours and owing to ongoing process of firming up digital framework laws. The article discusses existing and forthcoming laws on data protections, judicial precedents and reports with specific emphasis on cross-border transfer conditions in light of the importance that trade agreements relating to digital economies such as IPEF accord to free flow of information, while protecting individual privacy.

Audio Source : An article published on the LKS website in August 2022
 https://www.lakshmisri.com/insights/articles/indo-pacific-economic-framework-and-future-of-cross-border-data-flows/#

Authors: Prashant Phillips, Partner (LKS),  Sameer Avasarala, Senior Associate (LKS)

Voice : Dikshita Damodaran, Senior Associate (LKS) 

The Government is set to revamp the landscape of information technology law in India through the introduction of the Digital India Act("DIA") which would replace the Information Technology Act, 2000. While the DIA is proposed to be a comprehensive framework which will cover different aspects of digital space including modern technologies like Artificial Intelligence and Internet of Things, it remains to be seen, how the government shapes this legislation in times to come. Amidst reports that other pieces in the technology law framework could include a Data Protection Bill which will deal with protecting privacy of individuals in digital space and propose a data protection framework, this podcast highlights what's expected as part of these legislations, and the focal points of what these legislations should address.

Competition Regulators try to restrict practices such as exclusive arrangements or refusals to deal with certain parties, as they may be anti-competitive in nature. This is often seen as interference with the commercial wisdom and autonomy of running a businesses. In this podcast, we will look at this conflict in closer detail, in light of CCI's recent judgements in two similar cases against Britannia & Parle, discussing the objectivity of selective distribution by enterprises as part of their right to freedom of trade.

Due to periodical amendments, the provisions relating to levy of interest under GST has been the subject matter of varied interpretations. Recently, the Central Goods and Services Tax Rules, 2017 (‘CGST Rules’) have been amended vide the Amendment Rules, 2022 to introduce a new Rule 88B, retrospectively with effect from 1 July 2017. The said rule provides for the manner of calculating interest on delayed payment of tax. In this Article, the authors intend to analyze the nuances of the new Rule 88B and the implications arising therefrom.

Audio Source : An article published on the LKS website in August 2022
https://www.lakshmisri.com/insights/articles/new-rule-88b-providing-for-manner-of-calculating-interest-susceptible-to-challenge/#

Authors: Sahana Rajkumar, Principal Associate (LKS),  Balaji Sai Krishnan Principal Associate  (LKS)

Voice : Sahana Rajkumar, Principal Associate (LKS)