Archive for July 2008

Service tax on apartments

For a residential complex to be eligible for levy of Service tax, it should have the following three essential features:

 a) Should have more than 12 units

 b) Should have a common area

 c) Should have common facility or services like park, community hall, lift etc.

There are several cases where a person can avail exemption from the imposition of Service tax. Service tax is not applicable, in the following cases.

a) If the residential complex is shaving only 12 or less than 12 units.

b) If the residential complex is constructed by an individual for his personal use.

c) Direct purchase of residential unit from a builder without availing the service of a building contractor.

Post construction services pertaining to residential complex are also treated as construction activity for the purpose of Service tax.

 If the builder constructs a residential complex without engaging the services of a contractor (service provider), then he cannot claim the service tax from the apartment purchasers. Similarly, it is the primary duty of the contractor to pay the service tax, and not the builder or the apartment purchaser. If the condition to pay the service tax is not mentioned in the sale agreement, then the apartment purchasers need not pay the service tax to the builder. 

Divorce Among Muslims

As per traditional rules,a Muslim husband can divorce his wife when ever he desires without assigning any specific reasons. Divorce petition initiated by a Muslim husband is called Talak. The Talak may be oral or in writing. A divorce by Muslim husband through spoken words is oral Talak. When it is through a written document, it is called a Talaknama. For an oral Talak there are no specific words prescribed. The words of Talak should be clear and it should convey the intention of divorce. The Talak need not be pronounced in the presence of the wife.A deed of divorce by a Muslim husband is called a Talaknama. Normally Talaknama is executed in the presence of Kazi or the wife’s father or other witnesses. The Talak may be effected by a simple pronouncement or by three pronouncements. A husband may delegate the power to divorce to the wife or to a third party and such a delegate may pronounce the divorce. In general the Talak is a divorce proceeding that is initiated by a husband wherein the wife has no say in the proceedings.

Supreme Court in Shamim Ara-vs- State of UP and another has held that talak shall be preceded by attempts for reconciliation and shall be for a reasonable cause. The reconciliation between the husband and wife shall be conducted by two arbiters, one chosen by the wife from her family and the other by the husband from his family. Any talak, in violation of the same can be legally challenged by the wife. Hence there is no more absolute power on a Muslim husband to divorce his wife at his whims and fancies. The Karnataka High Court in Zulekha Begum @ Rahmathunnissa Begum -vs-Abdul Raheem held that a Mohammedan husband cannot divorce his wife at his whim or caprice.

A Muslim marriage may also be dissolved by an agreement between the husband and wife. There are two types of divorces by mutual consent: Khula and Mubarat.

 In Khula divorce, the proceedings are at the instance of the wife wherein the wife agrees to give a consideration to the husband to release her from the marriage. 

Mubarrat is another form of consent divorce between a Muslim husband and wife. Here the initiative may be taken from either husband or wife. This also takes place with an agreement.

A Muslim wife may file a suit for the dissolution of marriage before the competent court under the dissolution of Muslim Marriage Act 1939.  The following are the grounds under which a Muslim wife can obtain a decree for the dissolution of her marriage.

1) that the whereabouts of the husband have not been known for a period of four years.

2) that the husband has been sentenced to imprisonment for a period of seven years or upwards

3) that the husband has neglected or has filed to provide her maintenance fir a period of two years.

4) that the husband has failed to perform without reasonable cause his marital obligations for a period    of three years.

5) that the husband was impotent at the time of marriage and continues to be so

6) that the husband is suffering from leprosy or virulent venerable diseases.

7) That she, having been given marriage by her father or other guardian before she attain the age of    fifteen years, repudiated the marriage before attaining the age of eighteen years.

 Another ground for a Muslim wife to approach the court of law for dissolution of marriage is cruelty  from the part of her husband. The court will consider cruelty as a ground to dissolve the marriage if  the husband

a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does     not amount to physical ill-treatment               

b) associates with women of evil repute or leads an infamous life              

c) attempts to force her to lead an immoral life

d) disposes her property  or prevent her exercising her legal rights over it,

e) obstructs her in the observance of her religious profession or practice

f) if he has more wives than one, does not treat her equitably in accordance with the instructions of the Quran.

After the divorce proceedings are completed, the parties have the right to enter into another marriage. If the marriage was consummated the wife has to wait for the completion of iddat before her remarriage. If the marriage is not consummated, she may marry immediately. On divorce being completed the amount of dower due to a wife becomes immediately payable. 

Law of Limitation

There is a prescribed time period within which a person, who has been denied of any rights or who wants any particular relief from a court or an authority shall apply to the concerned authority. Law does not come to the assistance of a person who sleeps over his rights. With these objectives, The Limitation Act, 1963 was enacted.

 There is a bar of limitation for suits, appeals and applications which are made after a prescribed period and if made after the prescribed period, then they will be dismissed. If the prescribed period for a suit, appeal or application expires on a day when the court is closed, the same may be instituted on the day the court re-opens.

 A court has the power to admit an appeal or an application made after the prescribed period, if the party satisfies the court that he had sufficient cause for not preferring the appeal or application within the specified period. If a person has a legal disability, like insanity or minority, he can file a suit or apply to execute a decree, within the period of limitation after the legal disability ceases.

 While computing the period of limitation, the time period spent in obtaining the certified copy of the order of the lower court, which is being challenged, can be excluded.

 In calculating the period of limitation for which a notice has been given or which the previous sanction of the government or any authority is required, the period of such notice or the time required for such consent shall be excluded.

 In computing the period of limitation of any suit the time during which the defendant has been absent from India shall be excluded. If a person who has the right to institute a suit or make an application dies before the right accrues, then the period of limitation will be computed from the time when there is a legal representative of the deceased.

 In the case of any suit or application which is based upon the fraud of the respondent or is based on the consequences of a mistake the period of limitation shall begin from the point the applicant has discovered the fraud or mistake. Where after the institution of the suit, a new plaintiff or defendant is substituted or added, the suit shall as regards him be deemed to have been instituted when he was so made a party.

 In the case of a suit for compensation for an act, which does not give rise to a cause of action unless some specific injury actually results there from, the period of limitation shall be computed from the time when the injury results.


Cyber Offences

Information Technology Act 2000 enlists various cyber offences and their punishments. The Acts gives serious punishment for tampering with computer source documents. Whoever intentionally conceals, destroys or alters any computer source code is liable for punishment with imprisonment up to 3 years or with fine which may extend up to Rs.2 lakh or with both. 

The Act views hacking with utmost seriousness. Whoever with intension to cause a wrongful damage to the public or any person destroys, deletes or alters any information residing in a computer resource commit hacking. Whoever commits hacking shall be punished with imprisonment up to 3 years or with fine which may extend upto Rs.2 lakh or with both.

  Whoever publishes information which is obscene in electronic form shall be punished with imprisonment which may extend to 5 years and with fine which may extend to Rs.1 lakh.  In the event of a second conviction for a similar offence, then imprisonment may extend to 10 years and with fine which may extend to Rs.2 lakhs.

  A certifying authority or any employee of such authority who fails to comply with an order of the controller may be punished with   imprisonment for a term not exceeding 3 years and also with fine not exceeding Rs.2 lakhs or both.

 If the subscriber or any person in-charge of any computer resource fails to assist any agency of the government when ordered to intercept any information transmitted through any computer resource, he may be punished with imprisonment for a term which may extend to 7 years. Similarly any person who secures access or attends to secure access, to a protected system will be punished with imprisonment for a term which may extend to 10 years and also be liable to fine.

Whoever makes any misrepresentation to or suppresses any material fact from the controller or the Certifying Authority for obtaining any license or Digital Signature Certificate, may be punished with imprisonment which may extend to 2 years or with fine which may extend to 1 lakh or with both.

Whoever knowingly creates, publishes or otherwise makes available a Digital Signature Certificate for any fraudulent or unlawful purpose shall be punished with imprisonment for a term which may extend to 2 years or with fine which may extend to 1 lakh or with both. The Information Technology Act also applies to an offence or contravention committed outside India by any person if the act or conduct constituting the offence or contravention involves a computer, computer system or computer network located in India.

 Any computer, computer system, floppies, compact discs, tape drives or any other accessories related thereto, in respect of which any provision of the Information Technology Act, rules, orders or regulations made there under has been or is been contravened, shall be liable to confiscation.

Revised building rates in Karnataka

The Department of Stamps and Registration of the government of Karnataka has revised the valuation of building rates throughout the state. The new rates are applicable from 1-03-08. The increase in the rates has been almost double in some cases. The same rates have to be used as guideline values while registering transactions in buildings and the stamp duty and registration fee has to be paid on the basis of the new revised rates.

The rates range from Rupees 100 to Rupees 950 per square feet. The buildings have been classified as per their locations like those coming under the jurisdiction of BBMP, other corporations in Karnataka, other Municipalities, other TMCs, other Town Panchayaths and other areas of the state. Different rates have been fixed for different areas. Further there is variation in the rates for Ground and Upper Floors. All upper floors within the same area have same rate.

The revisions in the building rates will cause a major setback to genuine home purchasers looking for a shelter. The increase in building rates will set a chain reaction, further increasing the market rates of properties and the registration and stamp duty expenses. This will further burden the overpriced property market in Karnataka.


Criminal Complaints In Matrimonial Matters

There are various legal safeguards for women to rely on, in case they are subjected to cruelty and harassment by husband or in-laws pertaining to matrimonial matters. The teeth of law are very much sharpened to protect the interests of fair sex. 

If a wife reports the incidents of cruelty, mental or physical, or the demand of dowry by her husband or in laws, a police officer is bound to register an FIR and investigate the matter. The police authorities in such cases act in a very mechanical manner. Even if there is no requirement to arrest the accused persons, they tend to immediately arrest the accused persons and put them behind bars. This, many times result in the torture of innocent persons, just because the legal system is weighed in favor of women. There are several instances when women misuse the benefits of law and lodge false complaints to settle personal scores. Though, in the end a court of law may acquit the accused, the trauma in carrying on with the case for years cannot be underestimated.

The accused in matrimonial offences can avail the benefit of anticipatory bail to avoid arrest and resultant torture in the hands of the police. If they sense the possibility of filing of false criminal case by the wife or her relatives, then they are advised to approach the Sessions Court or the High Court for an order of anticipatory bail. As a matter of right, a person cannot ask a court for the grant of anticipatory bail. The court will look into the facts of the case and grant bail in appropriate cases. Once anticipatory bail is granted, the police officials cannot arrest and detain the accused. They can arrest him, but they have to release him immediately.

Some Information About Passports

1)Valid passport is a very essential document for a person to depart from India.

2)There are three types of Passports.
a. Ordinary passport
b. Official passport
c. Diplomatic passport.

3)A passport authority may refuse a passport in the following cases:
a. If an applicant has been convicted by a Court during a period of 5 preceding years.
b. If any criminal proceedings are pending against said person
c. If a warrant or a summons is issued by Court against the applicant.

4)A passport authority may impound a passport in the following cases:
a.If a passport was obtained on the basis of wrong information or suppression of material  information.
b.If the holder of the passport has been convicted by a    Court in India, for any offence involving moral turpitude.
c.If any criminal proceedings are pending against the    passport holder.

5)The Court convicting the holder of a passport for any offence under the Passport Act or the rules made hereunder may also revoke the passport or travel document.

6)There are various offences under the Passport Act which provide punishment for the violation of   various provisions of the Act. It is an offence to furnish false information or ppress any material information while applying for a Passport. Similarly using passport issued to another person, allowing   another person to use one’s passport are all offences under the Passport Act. Customs officers,   Police officers, and Emigration officers are authorized to arrest people who commit offences under the Passport Act.

7)An ordinary passport for persons other than children below the age of 15 years, containing 36 pages  or 60 pages, shall be in force for a period of 10 years or 20 years as the case may be, from the date of  its issue. An ordinary passport for a child below the age of 15 years, containing 36 pages shall be in   force for a period of 5 years, from the date of its issue or until the child attains the age of 15 years,   which ever is earlier.

8)An application for passport may be submitted personally or through a representative carrying an  authority letter, all original documents should be shown and self attested copies attached.

9)Any person having an ECR stamp put on his passport have to get a clearance from the Protector  General of Emigrants,

before they leave the Country. But the passport rules specify a list of persons  for whom ECR stamping is not required. These include all Gazetted governmental officials, all income  tax payers, all professional degree holders, all people with educational qualification of matriculation  and above, all persons above the age of 50, all children up to the age of 18 etc.