Delhi High Court Decision on GST on Lawyers

The GST has been here for barely a month now, but its anomalies have already dragged it to Court to resolve the ambiguities raised by the various Notifications issued by the Govt under the GST regime. The Delhi HC was recently faced with the first case of this sort, filed by a lawyer, questioning the confusion caused to him by some Notifications.

Title: J. K. Mittal & Co. v Union of India

Citation: W.P. (C) NO. 5709 OF 2017; CM NO. 23814 OF 2017 (Delhi High Court)

Coram:

·         S. MURALIDHAR, J.

·         PRATHIBA M. SINGH, J.

Matter: GST Notifications – contradiction with GST Council recommendations – confusion w.r.t “reverse charge” mechanism - imposition on services of lawyers.

Brief Statement of Facts:

The petition was filed by Mr. J K Mittal citing that these Notifications will have adverse consequences on lawyers in general; earlier Notifications of the Govt stood for the exemption of liability of lawyers/Firms in respect of all services provided by them to clients and only the client was to pay on the reverse-charge basis. He points out the technical disparities between the wordings used in the subsequent Notifications, in effect limiting the exemption only to representational services rendered by lawyers to clients. an additional difficulty pointed out by him is that the Finance Act had earlier required lawyers to register as service-providers, but the subsequent change of bringing it under the reverse-charge category did not bring with it any provision for de-registration.

Decision of the Court:

Delhi High Court clarified in its order that no coercive action should be taken against any lawyer or law firms for non-compliance with any legal requirement under the CGST Act, the IGST Act or the DGST Act till a clarification is issued by the Central Government.

Relevant portions of the Order

“….it is plain that as of date there is no clarity on whether all legal services (not restricted to representational services) provided by legal practitioners and firms would be governed by the reverse charge mechanism…”

“….There is therefore prima facie merit in the contention of Mr Mittal that the legal practitioners are under a genuine doubt whether they require to get themselves registered under the three statutes...”

“…no coercive action be taken against any lawyer or law firms for non-compliance with any legal requirement under the CGST Act, the IGST Act or the DGST Act till a clarification is issued by the Central Government and the GNCTD and till further orders in that regard by this Court…”

“…any lawyer or law firm that has been registered under the CGST Act, or the IGST Act or the DGST Act from 1st July, 2017 onwards will not be denied the benefit of such clarification as and when it is issued.

“…..if an appropriate clarification is not able to be issued by the [UoI and GNCTD] by the next date, the Court will proceed to consider passing appropriate interim directions…”

Maintenance Under Section 125 of Cr.P.C.

Section 125 of Cr.P.C. has provided the procedure by which a person who has unable to maintain himself can claim maintenance to another if that another fails to discharge his duty to maintain certain of his relations.

Who can claim maintenance under Section 125 Cr.P.C?

1. A wife.
2. A minor child (both legitimate and illegitimate)
3. A child who has unable to maintain himself due to physical or mental abnormality or injury.
4. Parents.

Important points

1) The application for claiming the maintenance shall be presented before the Judicial Magistrate of First class.
2) A monthly allowance is paid as maintenance.
3) An Interim maintenance and expenses of the proceeding can be claimed during the pendency of the proceeding which should be disposed of within 60 days from the date of service of notice of the application.
4) A wife includes a divorced wife who has not remarried.
5) A married minor daughter can claim maintenance to her father if his husband is unable to maintain her.
6) A daughter who is not married can claim maintenance to his father whether minor or not if she has no means to maintain herself. (Noor Saba Khatoon v. Mohd. Quasim, AIR 1997 SC 3280. )
7) The parents can claim maintenance from their daughter if she has sufficient means, but only from the income of their daughter. But they can’t claim maintenance from her husband’s income (Vijaya Manohar Arbat v. Kashirao Rajaram Sawai, (1987) 2 SCC 278).
8) Stepparents can also claim maintenance from their step child.
9) A Muslim woman can also claim maintenance under Section 125 of Cr.P.C. irrespective of enforcement of The Muslim Women (Protection of Rights on Divorce Act, 1986).
10) A husband can refuse to maintain his wife if -
a) She is living in adultery.
b) She refuses to live with her husband without any reasonable cause.
c) She is living separately by mutual consent.
11) The Judicial Magistrate can enforce the order of maintenance by committing the person for one-month imprisonment if he fails to pay the monthly allowance after executing the warrant for every failure.

Cases:

1. Mohd. Ahmad Khan v. Shah Bano Begum (1985) 2 SCC 556.
2. Daneil Latifi v. Union of India (2001) 7 SCC 740.
3. Khatoon Nisha v. State of U.P (2014) SCC 646.
4. Shamima Farooqui v. Shahid Khan JLT (2015) SCJ 109.

Do’s

1. The application shall be filed within the jurisdiction of the Judicial Magistrate of the First class where the person (the respondent) is residing.
2. Specify that the petitioner has no means to maintain himself.
3. The petitioner has to prove that the respondent has neglected or refused to maintain him.
4. All the income and resources of the respondent should be mentioned so that the proper allowance can be fixed.
5. If the custody of children are with mother .it must be mentioned also so that the provision for their maintenance can also be made.
6. The allowance is fixed according to the living standard of the parties.

Online Legal Consultation

As our society is moving towards a digital era, several processes have been trying to adopt an approach based on the growing technology. More and more things every day are added to the online digital world where the internet is the key to everything. A person may search anything and everything on the internet of what they desire or need. One of such requirements is legal consultation.

Legal Consultation
Legal consultation and legal advice are two identical twins only and are used interchangeably. The word “consultation’ connotes a meeting or a discussion with a professional expert for the purposes of gaining some information over a matter or a formal discussion on such matter or collaboration for that matter. “Legal consultation” is the discussion of a client with an attorney/lawyer where the latter apprises the former of his legal rights in a particular factual case.

Evolution of Legal Consultation over online platform
The first generation of lawyers could be attributed to ancient Greece where one had to plead his own case. During 200-210 B.C., Rome developed a class of specialists in law, i.e., “Jurisconsults”. Roman judges, Governors and ordinary people would consult with the Jurisconsults for legal opinion. From the 13th century onwards, legal profession bloomed in England where various statutes were passed to regularize the code of conduct for the lawyers such as loyalty and confidentiality of the client’s case. The whole consultation was to be kept confidential and private.
Various laws were enacted throughout time and in 1961, Advocates Act came into place which regulates the legal profession in India. Any person who wishes to have a legal opinion on a particular set of facts or case or require a legal representation can have a legal consultation with an advocate. The common practise was that the client used his personal contacts and phonebooks to search his desired lawyer. But as we are entering into a digital world, everything is available on our tips meaning thereby we can get our desired legal advice in a few minutes sitting at our nice and cozy homes.
Gone are those days when people used to search for a good lawyer for months. An alarming rate of people is turning towards online legal advice and are relying less upon phonebooks, visiting cards, and personal contacts. Various online platforms like Chaostruct, etc. are providing lawyer-client matching services by applying the best possible permutation and combination in accordance to the client’s requirements. Online legal consultation or contacting a legal advisor online is a great way for a client to save time and money.

Advantages
• Attorney-client privilege is present including confidentiality of information furnished;
• Online platforms offer discounts on legal fees;
• If the client does not likes the legal advice, he/she can search for another lawyer on the website;
• Accessible from anywhere;
• No appointment required;
• The client gets the best opinion from various lawyers at a time;
• Due to the genuineness and credibility of the online platform, the lawyer associated with it would provide continual support to the client;
• Productivity of attorneys increase and so the competition;
• Efficient communication channels;
• Free legal advice is also available;
• A huge time-saver.

10 Most Influential Lawyers in the world

Lawyers are essentially the social engineers who drive the society through time. Their presence is an absolute necessity which establishes and topples governments all over the world. Here is a list of the 10 Most Influential Lawyers in the World who have made their name and the lawyers of today should draw their inspiration from these eminent personalities:

1 Joe Brown

Being the first African-American Prosecutor in Memphis, Joe’s life was pushed to the spotlight while he was the presiding judge over the last appeal of James Earl Ray of his conviction for the assassination of Martin Luther King Jr. He also helped lay the concrete for numerous African-American lawyers after him. He is also famous for his reality court show “Judge Joe Brown”.

2 Harish Salve

Hailing in constitutional and taxation laws, Harish Salve made his name through landmark cases like Vodafone tax case, Doordarshan telecast rights case, Salman Khan’s hit-and-run case and Ambani brother gas dispute. He also served as the Solicitor General of India from 1999-2002.

3 Richard Scruggs

Richard is a prominent American trial lawyer. On behalf of ill shipyard workers, he successfully sued the asbestos industry and helped in removing asbestos from modern day practices. Further, he represented the state of Mississippi in the tobacco litigation of the 1990s. He also helped the homeowners in placing claims against the insurance companies to mitigate the aftermath of the Hurricane Katrina.

4 Soli Sorabjee

Soli Sorabjee has been the talk of the century as a jurist. He has served as the Solicitor General of India, Attorney General of India, received Padma Vibhushan for his defense of freedom of expression and protection of human rights. He has also served as a Special Rapporteur to the United Nations Human Rights Commission and held several offices in international organizations.

5 John Ray Grisham, Jr.

John Grisham is an American lawyer, politician, and novelist who has written popular and bestselling legal thrillers. He was a criminal lawyer originally and also served as a Democrat in the House of Representatives in Mississippi. His novels have been adapted into various films and TV series.

6 Jane Wanjiru Michuki

Jane is a Kenyan lawyer and businesswoman. She is the Managing Partner at Kimani & Michuki Advocates whose client list includes Equity Group Holdings Ltd., the largest bank holding company in all of Africa. Moreover, she is the largest female stockholder on the Nairobi Stock Exchange with approximately US$50 million as net worth.

7 Wichai Thongtang

Before being a businessman, Wichai was a lawyer and worked for a big law firm where he represented giant companies such as Siam Yamaha, Swissair, and Union Oil. He also represented former Thai Prime Minister Thaksin Shinawatra. Being a corporate lawyer and expert in finance and securities, he dived into real-estate and health industry and now stands at an estimated net worth of US$ 1.57 billion.

8 Vladimir Putin

The current President of Russia and shuffling between the posts of Prime Minister and President since 1999, Putin has various credits to this name. Graduated in law from Leningrad State University (oldest law school in Russia), he was a KGB Foreign Intelligence Officer for 16 years.

9 Christine Lagarde

Christine has been the gem of aspiring female eyes all around the world. She is a French antitrust and labor lawyer and held various posts in the French government including Minister of Economic Affairs, Finance, and Employment, etc. She is currently serving her second term as the Managing Director of the International Monetary Fund (IMF).

10 Barack Obama

From teaching Constitutional Law at the University of Chicago Law School, Obama went on to involve in civil rights litigation through a firm. He was elected as a Senator in Illinois and subsequently, he went on to become the President of the United States of America twice and the rest is history.

Non-Disclosure Agreement (NDA)

A Non-Disclosure Agreement is a contract which enables the parties to the contract from sharing any piece of confidential information or knowledge shared between them for the purposes of business or any other kind of access but restricts such sharing to any third party to such contract. 

There are two types of NDA in practice:

 One-way NDA – Casts the obligation of non-disclosure of information on one party only;

 Two-way or Mutual NDA – Obligation on all the parties to the NDA.

Terms & Conditions of one-way and two-way NDAs are same for both with the only difference that in the latter, the obligations apply to all the parties to the contract.

General Terms & Conditions required in an NDA

• Confidential Information and its scope to be defined;

• Obligation of Non-Disclosure of the information to any third party without the permission of the party sharing such information;

• Application of NDA to apply to all the employees and directors of the recipient company;

• Exclusions/Exceptions to NDA for sharing the information to a third party;

• Notice of any unauthorized disclosure or loss is to be sent by the legal recipient of such information to the other party;

• Use of Confidential Information is to be “As is” and it is not be construed as a license or assignment of such information or any intellectual property. Moreover, the recipient is prevented from selling or registering such confidential information without prior authorization of the other party;

• No reproduction of such information without the authorization of the providing party;

• Time duration of the contract;

• Action was taken upon breach of the contract and Injunctive Relief;

• Governing law to be mentioned;

• Dispute Resolution mechanism to be stated;

• No Assignment to be carried out by the recipient without the authorization of the other party.

Statutory Law References

Sec. 2(h) of the Indian Contract Act, 1872.

Art. 39.2 of WTO Agreement on TRIPS.

Important Judgments

• John Richard Brady and Ors v. Chemical Process Equipments P. Ltd. and Anr, AIR 1987 Delhi 372.

• Mr. Anil Gupta and Anr. v. Mr. Kunal Dasgupta and Ors, 97 (2002) DLT 257.

Important Do(s) & Don't(s)

• Lawyer consultation or online legal advice is preferable to remove any illegalities and ambiguities;

• The information is to be protected for eternity, even after the expiration of the contract unless authorized by the disclosing party;

• Insert a stringent penalty clause;

• It is preferable to have a two-way NDA as it keeps the information flow and protection balanced.