Mentoassociates.com – Legal Articles

1. Dower is also known as Mahr. It is money or property which a Muslim wife is entitled from the husband in consideration of marriage. A husband can settle any amount he likes by way of dower upon his wife. The amount of dower may be fixed either before the marriage or at the time of marriage or after the marriage. The Dower amount can be increased after marriage. A contract of Dower made by a father on behalf of the minor son is binding on the son.

2. If the amount of Dower is not fixed, the wife is entitled to what is known as Proper Dower. The wife is entitled to Proper Dower even if the marriage was performed with a condition that she should not claim any Dower. The Proper Dower is fixed taking into consideration the amount of Dower settled upon other female members of wife’s family.

3. The Dower becomes confirmed under the following situations:
a. By consummation of marriage.
b. By valid retirement.
c. By the death of husband/wife.

4. The Dower which is payable on demand is known as ‘Prompt Dower’. The Dower which is payable on dissolution of marriage by death or divorce is known as ‘Deferred Dower’

5. The wife may remit the Dower or any part thereof in favour of the husband or his heirs even without consideration. If the Dower is not paid the wife or her heirs can file a suit to claim the same. The Muslim wife may refuse to live with her husband and admit him to sexual intercourse so long as the Prompt Dower is not paid.

6. The heirs of a deceased Mohamadean are liable for Dower debt of the deceased, proportionate to their share in the estate of the deceased. The Dower is a debt, at the same time it is an unsecured debt. The wife is not entitled for a charge on the husband’s property though such a charge may be created by an agreement.

7. A widow who has lawfully obtained possession of the property of her late husband has the right to retain that possession until her Dower is paid. The right to hold possession does not give the widow any title to the property. But if she is disposed she can sue for recovery of Possession. The right to retain the physical possession of the property does not arise to the Muslim wife during the continuation of marriage; it arises only on the dissolution of marriage either by death or divorce. A Muslim widow who retains possession of her husband’s property under a Dower claim has no right to alienate the property by sale, mortgage etc. If she alienates the property, the alienation is valid only to the extent of her share. It does not affect the share of other heirs.

1. Under the Muslim law, the husband is duty bound to maintain wife provided (i) she is faithful to him and (ii) obeys his reasonable orders. If a wife refuses herself to the husband due to non payment of prompt dower or she leaves the house of husband on account of his cruelty, the wife is entitled for maintenance. If the husband does not maintain the wife, the wife is entitled to sue him for maintenance or she can apply for an order of maintenance under the provisions of CrPc, 1974.

2. After divorce, a Muslim wife is entitled for maintenance during the period of iddath. If a wife is not informed about the divorce, she is entitled for maintenance until the same is informed to her. Agreements between husband and wife for future maintenance are perfectly legal.

1. Master Plan -2015 provides a uniform FAR of 2.50 irrespective of road width in the Central Business District of Bangalore.

2. In the Master Plan- 2015, 20% of the residential building is permissible for commercial use.

EMI= (L x I) x (1+I) ^N
———————
[(1+I) ^N]-1

Where L=loan amount
I= Interest rate per annum divided by 12
^= to the power of
N= loan period in months

MARRIAGE UNDER THE MUSLIM LAW

1. Nature: Under the Muslim law, marriage is a contract for the procreation and legalizing of children.

2. Eligibility: Every Mahomedan who has sound mind and who has attained puberty can enter into a contract of marriage. Lunatics and minors who have not attained puberty may be contracted in marriage by their guardian. Puberty is presumed at the age of 15 years.

3. Procedure for a marriage: There should be a proposal made by one or behalf of one of the parties and an acceptance by or behalf of the other party to the marriage. The proposal and acceptance shall be in the presence and hearing of two male or one male and two female adult Mohammedans as witnesses. The proposal and acceptance must be expressed at one meeting. Any writing or religious ceremony is not essential for a Muslim marriage.

4. Presumption of marriage: Under the following circumstances, a marriage is presumed, in the absence of direct evidence.
a. Prolonged and continual co-habitation as husband and wife.
b. Acknowledgement by man of the paternity of the child born to the woman.
c. Acknowledgement by man of the woman as his wife.

5. Irregular marriage: An irregular marriage is not unlawful, in itself, but unlawful for something else. The prohibition may be temporary or relative or the irregularity may arise from accidental circumstances. An irregular marriage has no legal effect before consummation. The children of an irregular marriage are legitimate. It may be terminated by either party before or after consummation. The following marriages are irregular marriages:
a. A marriage without witnesses.
b. If a Mahommedan marries a fifth wife when he already has four wives.
c. A marriage with a woman before completion of her iddat.
d. Marriage of a Mahomedan male with an idolatress or fire worshipper.
e. Marriage of a Mahommedan woman with a Jewish, Christian, an idolator or a fire worshipper.
e. Marriages where there is unlawful conjunction.

6. Void marriages: A void marriage is an unlawful marriage. There is absolute prohibition against such a marriage. It is no marriage at all and does not create any civil rights or obligations between the parties. The children of a void marriage are illegitimate. The following marriages are void:
a. The marriage of Mahommedan who has attained puberty and is of sound mind, but without his consent.
b. A marriage with a woman who has her husband alive or who has not been divorced by him.
c. Marriage of a Mahommedan with his mother, grandmother, daughter, grand daughter, his sister, niece or great niece (consanguinity reasons)
d. Marriage of a Mahommedan with his wife’s mother or grand mother, wife’s daughter or grand daughter, wife of his father or paternal grandfather, wife of his son, son’s son or daughter’s son(affinity reasons)
e. A marriage prohibited by fosterage.

7. Iddat: Iddat is the period during which a woman who is divorced or whose husband is dead is prohibited from remarrying. The prohibition is imposed to ascertain whether she is pregnant by her husband to avoid the confusion of parentage.

8. Inter religious marriages:
a. A Mahomedan male may marry a Jewish or Christian woman but not an idolatress or fire worshipper.
b. A Mahommedan woman cannot marry a Jewish, Christian, an idolator or a fire worshipper.

9. Sunni Shia marriages: A Sunni can marry a Shia.

10. Muta Marriage: a. Muta marriages are temporary marriages practised among Shias.
b. A Shia male may contract a muta marriage with a woman professing Mahomedan, Christian, Jewish or a fire worshipper.
c. A Shia woman cannot contract muta marriage with a non Muslim.
d. Conditions for the muta marriage: The period of co habitation and the amount of dower shall be fixed.
e. A muta marriage does not create mutual rights of inheritance between the man and woman, but the children are legitimate and can inherit from both the parents. A muta marriage is dissolved on the expiry of the term. A husband can put an end to the contract of marriage even before the expiration of the period.

11. Marriage of minors:

a. Minors (who have not attained puberty) are not competent to enter into a contract of marriage. They may be contracted in marriage by their guardian.

b. The right to contract a minor in a marriage lies successively to father, paternal grandfather, brother and other male relations on the father’s side. Thereafter the right lies on mother, maternal uncle or aunt and other maternal relations.

c. A minor girl can dissolve her marriage, on attaining puberty, under the provisions of the Dissolution of Muslim Marriages Act, 1939. Any repudiation must be confirmed by the court.

In Javed-vs- State ofr Haryana, AIR 2003 SC 3057, Supreme Court has held that Polygamy can be regulated or prohibited by legislation in the interests of public order, morality and health or by any law providing for social reform or welfare.

For example, Rule 28 of the Karnataka Civil Service Conduct rules, 1966 prohibits the second marriage for a government servant, who has a wife living, without the permission of government, even though the second marriage is permitted under his personal law. Similarly no female government servant shall marry any person, who has a wife living, without the permission of the government.

1) Does Karnataka Apartment ownership Act (hereinafter referred to as Act) apply to all apartments in Karnataka?

No. It only applies to those apartments where the property is submitted to the provisions of this act by duly executing and registering a Declaration.

2) What is property as per the Karnataka Apartment ownership Act?

Property under the act means the land, building, all improvements and structures thereon, all easements, rights and appurtenances thereto.

3) Can commercial property be submitted to the provisions of the Act?

No. The property shall be mainly used for residential purposes.

4) Who is the competent authority under the act?

The Registrar of Co-operative societies.

5) What forms the majority of apartment owners?

The apartment owners with 51 % or more of the votes in accordance with the percentage assigned in the declaration to the apartments for voting purposes.

6) Whether each apartment owner is required to execute a declaration under the act?

Yes, each apartment owner is required to execute a declaration under sec. 5(2) of the act. This is different from the declaration u/s. 2 of the act.

7) How is the undivided interest of an apartment owner in the common areas and facilities calculated?

It is calculated as a percentage by taking as a basis the value of the apartment in relation to the value of the property.

8) Is it mandatory to file the copy of declaration and bye-laws in the office of competent authority?

Yes.

9) Is it mandatory to register the declaration and deed of apartment in respect of each apartment?

Yes.

10) Can a property be removed from the provisions of the act?

Yes, all the apartment owners can remove a property from the provisions of the act by an instrument to that effect duly executed.

11) What happens to the status of the property once it is removed from the provisions of the act?

Once it is removed from the provisions of the act the property shall be deemed to be owned in common by the apartment owners.

12) On whom the act is binding?

The act is binding on all apartment owners, tenants of owners, employees of owners and tenants or any other person who may in any manner use the property or any part thereof.

13) In what form the declaration under section 2 needs to be executed and registered?

In form ‘A’

14) In what form the declaration under section 5(2) needs to be executed?

In Form ‘B’

15) Within how many days the declaration u/s 5(2) needs to be filed with the competent authority?

Within 30 days from the date of execution.

16) Within how many days shall the apartment owner file the true copy of deed of apartment in the office of the competent authority?

Within 30 days from the date of execution.

1. After the religious ceremony of change, the individual concerned has to notify the change of religion in one of the local leading newspapers.
2. The individual has to make an affidavit on a non-judicial stamp paper attested by First class Magistrate/ Notary/ Oath Commissioner.
3. A printing matter needs to be prepared in the form of a specimen provided by the department of Publication of the Central Government.
4. The news paper publication (in Original), the Affidavit in Original, two Passport size photographs and the printing matter in original should be sent to the controller of publication, the department of publication, civil lines, Delhi-54, along with applicable fees for publication in Official gazette of India, Part IV.

1. The Father or Mother of the Minor has to notify the name change of the minor in one of the daily leading newspaper.
2. Prepare an original affidavit from the side of the guardian attested by First class Magistrate/ Notary/ Oath Commissioner, showing the details of father’s/husband’s name along with the residential address.
3. A printing matter needs to be prepared in the form of a specimen provided by the department of Publication of the Central Government.
4. The news paper publication (in Original), the Affidavit in Original, two Passport size photographs of the parent and the printing matter in original , along with applicable fee, should be sent to the Controller Of Publication, the Department Of Publication, civil lines, Delhi-54, for publication in Official gazette of India, Part IV.

A person who has attained the age of 18 years of age needs to follow the following procedure for change his name:-
1. The Person has to advertise his change of name in one of the daily local leading newspapers.
2. Person has to prepare an affidavit sworn before a First class Magistrate/ Notary/ Oath Commissioner showing details of father’s name/husband’s name along with residential address.
3. A printing matter needs to be prepared in the form of a specimen provided by the Department of Publication of the Central Government.
4. The news paper publication (in Original), the Affidavit in Original, two Passport size photographs and the printing matter in original, along with applicable fee should be sent to the controller of publication, the department of publication, civil lines, Delhi-54, for publication in Official gazette of India, Part IV.

Introduction:

Service tax was 1st time introduced in the year 1994. In the 1st year there were only 3 services under the service tax net. With the 2010 budget, there are altogether 117 services under the service tax net as on 31.07.10.

Service tax is a tax on services. It is an indirect tax which means that the service provider pays the tax and recovers the same from the recipients of the taxable service. Service Tax is levied on specific services and responsibility of payment of tax is generally cast on the service provider but for few exceptions.

Service tax is administered by Central Excise and Service Tax Commissionerates and the Service Tax Commissionerates working under the Central Board of Excise and Customs, Department of Revenue, Ministry of Finance. Presently there are 7 service tax Commissionerates established at Mumbai (2), Delhi, Kolkatta, Chennai, Ahmedabad & Bangalore. Also there are 5 large tax payer units (LTU) at Mumbai, Delhi, Kolkatta, Chennai, Ahmedabad & Bangalore. The office of the Director General of Service Tax (DGST) was formed in the year 1997. The office of DGST is located at Mumbai.

System of self assessment of service tax was introduced with effect from 1.04.2001.These tax returns have to be filed half yearly.

Under Rule 6 of Service Tax Rules the tax is permitted to be paid on the value received. This is because in many cases the entire amount charged/ billed may not be received by the service provider.

There are Penal Provisions in respect of Service Tax. Failure to obtain registrations, failure to pay tax, failure to furnish prescribed returns, suppression of the correct value of the taxable service and failure to comply with notice attract penal provisions.

Normally the person who provides the service is responsible for paying service tax. However the receiver of the services is responsible to pay service tax in the following cases:
a. Where taxable services are provided by Foreign Service providers.
b. For Insurance auxiliary service by an Insurance agent.
c. For a goods transport agency for transport of goods by road.
d. For Mutual fund distributors.

The present rate of service tax is 10.3% which comprises of 10% of Service tax on the gross value of taxable service, 2% education cess on the tax amount and 1% secondary and higher education cess on the service tax amount.

Registration:
Application for registration under Service tax has to be filed in FORM ST-1 (in duplicate) before the jurisdictional service tax office. It should be supported by documents such as copy of PAN card, Proof of Address, Constitution documents of the business etc. The registration should be issued within a period of 7 days from the date of submission of application ST-1, along with all details and documents. Centralised registration of service tax is possible for service providers who have a centralised billing system or who are located in one or more premises. It is enough to take only one registration certificate even if the person provides more than one service from the same premises for which registration is sought.

A person who commences a business for providing taxable service shall register himself within 30 days of such commencement of business. If the service tax is extended to new service, the existing service provider must register himself within 30 days from the date of new levy. If an existing assessee, starts providing a taxable service not mentioned in the registration certificate, he shall immediately intimate the same to the jurisdictional service tax office. Similarly any other changes to the information provided during registration shall be brought to the notice of the service tax office. In case of closure of the business, the registration certificate should be surrendered to the jurisdictional service tax office. In case of transfer of the business, the transferee shall obtain a fresh certificate of registration.

Failure to register under service tax may attract penalty up to Rs. 5000/- or Rs. 200/- for every day during which such failure continues. In case of loss of Registration Certificate a duplicate is normally issued.

Payment of Service Tax:
Service tax is paid through FORM GAR 7 at designated banks. It can also be paid electronically using e-payment facility. E-Payment of service tax is mandatory for assesses who have paid service tax of Rupees Ten lakhs or more in the preceding financial year. Individuals, sole proprietorship firms and partnership firms shall pay service tax every quarter.

Companies, trusts etc shall pay the service tax every monthly. An assessee is eligible to make provisional assessment and pay the service tax if he is unable to correctly estimate the actual amount to be paid as service tax. With effect from 1.03.2008 provision has been made to pay service tax in advance. Service tax is payable on the gross amount including the TDS deducted by the client. 13% interest will be charged for delayed paymentof service tax. Interest cannot be waived by any authority.

Filing of returns:
Service tax assessee has to file 2 returns ST-3 and ST-3A. ST-3 returns are to be filed half yearly by every assessee. Under Rule 7B of Service Tax Rules, an assessee may submit a revised return to correct mistakes or omissions with in a period of 90 days from the date of submission. E-filing of returns is compulsory for assessees who have paid service tax of rupees ten lakhs or more in the preceding financial year. Filing of returns is compulsory even if no tax service is provided or no payment is received during a period. If a person fails to file the return by due date he shall be liable to penalty which may extend to Rs.5,000/-. It is compulsory to indicate the amount of service tax charged from the client in the bills/invoices. All records and documents concerning service tax must be preserved for minimum period of 5 years.

Exemptions:
Small scale service providers whose aggregate taxable value is less than Rs.10 lakhs are exempted from payment of service tax. However this exemption is not applicable if a person provides a service under the brand or trade name. The aggregate taxable value means the sum total of first consecutive payments received during financial year towards gross amount under the taxable services. There is no exemption for Central/ State Government organisations, public sector under takings from the liability to pay service tax.

Adjudication:

Show cause notices or notices are usually issued under provisions of the Finance Act, 1994 charging any person for contravention of any provisions or rules or notifications under the said act and proposing penal action.Thereafter the competent officers of the department adjudge the case and issue orders. The said process is called adjudication. The adjudicating authorities have different monetary limits of adjudication. Lawyers and
chartered accountants can represent the parties before the adjudicating officers.

Appeals:
An assessee aggrieved by the order or decision of an adjudicating officer can file an appeal before Commissioner (Appeals) within 3 months from the date of receipt of the decision or order. There is no fee for filing an appeal. Against an order of Commissioner(Appeals), an appeal can be filed before the Customs, Excise and Service Tax Appellate Tribunal(CESTAT).The said appeal shall be filed within 3 months from the receipt of the order of Commissioner(Appeals).There is fee applicable for this appeal.

Service tax on export and import of services:
The Export of service rules, 2005 defines export of services. The export of taxable services is exempted from service tax. As per section 66A of the Finance Act, 1994, service tax is applicable to import of service. It is the recipient who has to pay the service tax of such services. The taxation of services (provided from outside India and received in India) rules 2006, defines import of services.

Advance ruling:
Advance ruling facility is provided by the Office of the Authority for Advance Rulings at Delhi for intending investors on a wide range of service tax liability matters. Here the applicant can seek clarifications from the authority regarding questions of their tax liability. These
rulings are not appealable under the Finance Act, 1994.