NEET and AIAPGET To AYUSH - Supreme Court of India

NEET and AIAPGET To AYUSH - Supreme Court of India

The Central Council of Indian Medicine and Central Council of Homeopathy have introduced the All-India National Eligibility cum Entrance Test (NEET) with minimum qualifying marks for admission of Under Graduate Courses of BAMS, BUMS, BSMS and BHMS. Further, they have also introduced All India AYUSH Postgraduate Entrance Test (AIAPGET) with minimum qualifying mark. Many appeals and writ petitions are filed to challenge the validity of entrance exams.  

The Supreme Court of India upholds National Eligibility cum Entrance Test (NEET) for admission of under graduate courses in Ayurveda, Yoga & Naturopathy, Unani, Siddha, Sowa Rigpa and Homoeopathy (AYUSH) and All India AYUSH postgraduate Entrance Test (AIAPGET) for AYUSH that "Doctors who are qualified in Ayurvedic, Unani and Homeopathy streams also treat patients and the lack of minimum standards of education would result in half-baked doctors being turned out of professional colleges. Non-availability of eligible candidates for admission to AYUSH Under Graduate courses cannot be a reason to lower the standards prescribed by the Central Council for admission." 

Read the Judgment NEET and AIAPGET To AYUSH - Supreme Court of India 

Cryptic Order

Cryptic comments or messages are hard to understand because they seem to have a hidden meaning. Cryptic is from Late Latin crypticus, from Greek kryptikos, from kryptos "hidden." This Greek adjective is the source of our English word crypt, referring to a room under a church in which dead people are buried.

THE MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS

The Maintenance and Welfare of Parents and Senior Citizens Act - 2007

This Act makes a legal obligation for children and heirs to provide maintenance to parents and senior citizens, by monthly allowance.

This Act provides a simple, speedy and inexpensive mechanism for the protection of life and property of the parents and senior citizens. 

In this modern society, the Joint Family System is being eradicated slowly from our culture because of the implementation of Harass Legal Provisions of women laws against family members. Because of that newly married couples left the joint family and started living separately. This causes the withering of the joint family system. As a result, the parents and senior citizens of our society are forced to live alone and are exposed to various kinds of problems such as lack of physical, social, emotional and financial support. To overcome such difficulties and to face new challenges, the Government of India has enacted this law in the fifty-eighth year of the republic so as to provide maintenance and protection to parents and senior citizens through MWPSC Act-2007. 

The Government thinks once it enacts the law the problem is solved. If it is solved means then why we need another law to enact. When will the enacting process of law come to end? Actually enacting a new law creates so many cumbersome problems in our society and to those new problems, our Government is enacting another new law. So this goes on expanding without an end like our universe.

For example in the MWPSC-2007, a parent is sent out of home, they might not have any money in their hand and they do not know what to do at that age. "A sound body only gives a sound mind". Further, at that tender they definitely will not have a sound mind, they would not know any awareness about the said act. From, 2007 onwards the said Act is in enforcement. Whether the Government has a statistical report regarding how many the parents and senior citizens are thrown out from their home and left without care and how many of them have used the said Act so far and won the case. Is there is any organization or mechanism to monitor the pitiable condition of the parents and senior citizens of our country!

The said Act provides the in-expensive and speedy procedure to claim monthly maintenance for parents and senior citizens and casts obligations on children to maintain their parents/grandparents and also the relative of the senior citizens to maintain such senior citizens. 

The main attraction of the said Act is there are provisions to protect the life and property of such persons. 

The said Act also provides setting up old age homes for providing maintenance to the indigent senior citizens and parents. 

The said Act extends to the whole of India including the Jammu and Kashmir state.

Meaning for the Important Terminologies used in the said Act:- Definition 

1)  Children - Include son, daughter, grandson, granddaughter but does not include a minor.

2)  Maintenance - includes provision for food, clothing, residence, medical attendance and treatment.

3)  Parent- means father or mother whether biological, adoptive or stepfather or stepmother, whether       or not father or mother is a senior citizen.

4)  Senior citizen - means an Indian who attained the age of 60 years or above.

5)  Relative - means any legal heir of childless senior citizen who is not a minor and is in possession         of or would inherit his property after his death.

6)  Welfare - means provision for food, healthcare, recreation centers and other amenities necessary           for senior citizens.


Maintenance of Parents and senior citizens

A senior citizen including a parent, who is unable to maintain himself from his own earning or out of the property owned by him, is entitled to get relief under this Act. Children/grandchildren are under obligation to maintain his or her parent either father, mother or both. Likewise, a relative of a senior citizen is also bound to look after the senior citizen. If such children or relative is not maintaining his parents or senior citizen respectively, then the parents/senior citizen can seek the assistance of Tribunal constituted under this Act, to enforce the remedy of maintenance. Such parents/senior citizens can file an application before the Tribunal, claiming maintenance and other reliefs from their children/relatives as the case may be.

Such an application for maintenance can be filed before the Revenue Divisional officer by the senior citizen or a parent himself, or if such a person is incapable, then by any other person or any registered organization authorized by him. The Tribunal can also suo motu take cognizance of the case. After receiving the application the Tribunal may issue notice to the respondent-children/relative and provide them time to furnish their reply. Such an application for maintenance should be disposed of within 90 days from the date of service of notice of the application to the respondent. However, the Tribunal can extend time for a maximum period of 30 days in exceptional circumstances after recording reason. The Tribunal is having power to allow interim maintenance pending disposal of the case. Even though the application can be filed against any of the children/relatives as the case may be, such respondent-children/relatives can implead other persons who are liable to pay maintenance.


Protection of life and property of Senior citizen

If a senior citizen after the commencement of this Act, has transferred his property either moveable or immovable, by way of gift or otherwise, subject to the condition that the transferee shall provide him basic amenities and physical needs and thereafter such transferee reuses or fails to provide such promise, such transfer of property shall be deemed to have been made by fraud, coercion or undue influence and the Tribunal can declare such transfer as void. Before the enactment of this law, a senior citizen's only remedy in such a case was to approach the court for maintenance from the children to whom he had given the property by way of gift or otherwise and such property would be the exclusive property of the transferee and the senior citizen had no right in such property. But after the enactment of this Act, a senior citizen can reclaim his property from the transferee. The concerned police personnel will also ensure priority in dealing with these types of cases. Representation by lawyers is prohibited under section 17 of this Act. However, the Hon'ble Kerala High Court held that legal practitioners also could represent cases under this Act.

Abandoning a senior citizen in any place by a person who is having the care or protection of such senior citizen is a criminal offence and such person shall be punishable with imprisonment for a term which may extend to three months or fine which may extend to five thousand rupees or both.

This Act also provides that state governments may establish old age homes at least one in one district to accommodate indigent senior citizens. State governments may also ensure proper medical care for senior citizens.

Inner Line Permit (ILP) - Explainatioin

Inner Line Permit (ILP) is an official travel document.  ILP is issued by the concerned state government to an Indian Citizen. ILP permits Indian citizens to enter into a protected area for a limited period. The document is an effort by the government to regulate movement to certain areas located near the international border of India. The ILP was originally created by the British to safeguard their commercial interests in the tea, oil and elephant trade by prohibiting "British subjects" from entering into these "Protected Areas", The word "British subjects" was replaced by Citizen of India in 1950. Now, it continues to be used in India, officially to protect indigenous communities' cultures in northeastern India.
There are different kinds of ILP's as follows:
   1)  For tourists
   2)  For people who intend to stay for long-term periods, often for employment purposes.

States for which require ILP permits are Arunachal Pradesh,  Mizoram, Nagaland and Manipur.  There are also ongoing demands for the introduction of ILP in Meghalaya, Assam and Andaman & Nicobar Islands to regulate the entry of outsiders into the state.

Recently when the Citizenship (Amendment) Act 2019 came out, it exempted the areas coming under Inner Line Permit (ILP) as well as tribal areas of Assam, Meghalaya and Tripura (as included in the sixth schedule).

The sixth schedule of the Constitution of India provides for the administration of tribal areas in the states of Assam, Tripura, Meghalaya as well as Mizoram to safeguard the rights of tribal populations in these states.

The Inner Line Permit (ILP) regime is now being used to protect such areas from the purview of Citizenship (Amendment) Act, 2019.

ILP is a permission granted to person who is non-tribal and wants to enter the tribal areas for tourism or any other purpose. He can stay only by the terms and conditions of the permit guaranteed to him and only for the period specified in the permit given to him. Though this procedure started way back in the British era, it is still being continued. These tribal areas which were severely underdeveloped and in need of a system of administration that would allow the tribal areas to become developed while protecting them from exploitation of people from plain areas and preserving their distinct social customs.

This permit allows Indian citizens to go and live in any State protected under ILP for a specific period of time.

Any person is entitled to renew his permit every six months if he is not a native in these states despite the fact that he/she is a long-term resident.

This permit also regulates the movement to certain areas located near the international borders of India.

Who Issues ILP?

The permit is issued by the concerned states coming under the protection of ILP.

The ILP is issued either by applying online or directly from the government office.

The ILP has details such as travel dates and the specific areas that the holder is likely to travel in the concerned state.

In 2014, the ILP was removed in Ladakh and later implemented again from 2017. The Ladakh Inner Line Permits are available online from the official website of Leh Ladakh administration. The ILP is valid for a maximum of 14 days. There is no limit on the number of times to visit a place within the valid period as long as there is necessary permits.

Foreigners need a Protected Area Permit (PAP) to visit tourist places that are different from Inner Line Permits needed by domestic tourists.

Goods And Services Tax On E-Commerce 

Goods and Services Tax (GST) is an indirect tax (or consumption tax) on the supply of goods and services. It is a comprehensive, multistage, destination-based tax: comprehensive because it has subsumed almost all the indirect taxes except a few state taxes. This article is about the few provisions of GST on E-Commerce. There are a few distinctly specific provisions applicable to e-commerce operators and suppliers of goods or services supplying through e-commerce portals. 

Mainly there are two modes of operation in e-commerce. 

1)    The supplier himself supplying goods or services through an e-commerce portal. GST laws remain the same for the said supplier. 

2)    The marketplace of e-commerce is popularized by Amazon, Zomato, etc. Here the e-commerce operator merely provides a platform to various suppliers. Two transactions are happening in this model- (i) supplier supplying goods or services to the consumers and (ii) the e-commerce operator supplying services to the supplier using its platform. These are distinct transactions, and attract GST on their own.

Liability to pay GST:

In general, liability to pay GST is on the supplier of goods and services. Even in e-commerce transactions, the persons supplying goods or services through the platform are the suppliers. Thus, a person selling the goods on Amazon or Zomato is a supplier of goods and services and he is required to follow GST provisions. 

Central Goods and Services Tax (CGST) is a tax levied on Intra State supplies of both goods and services by the Central Government and will be governed by the CGST Act.

SGST will also be levied on the same Intra State supply but will be governed by the State Government

However, Section 9(5) of the CGST Act provides that the tax on intra-State supplies of which shall be paid by the electronic commerce operator if such services are supplied through it. Three services, namely (i) Motor Cab (ii) Hotels and accommodation and (iii) Housekeeping services has been notified under Section 9(5) of the CGST Act.

In Re: Opta Cabs Pvt. Ltd. [2019 (20) GSTL 161], Appellate authority of Advance Ruling held that when transportation of passenger service is provided by the taxi drivers by using a software application, the e-commerce operator is liable to pay GST even if payment is not directly received by the e-commerce operator. Thus e-commerce operators, engaged in providing services notified under Section 9(5) of the CGST Act are required to develop their software application model in such a way that they can discharge the GST liability.

In case of the supply of goods, the liability to pay GST always remains on the supplier of goods. Thus, any person supplying goods through Amazon is responsible for discharging its own GST liability. 

In case of the supply of services, all suppliers of services are required to discharge its own GST liability, except the services notified under Section 9(5) of the CGST Act.

GST Registration Threshold Limits

Under Section 24 (ix) of the CGST Act, every person supplying goods or services through electronic commerce operators are required to be compulsorily registered, without any threshold exemption limit. 

However, the Government has the power to exempt specified supplier from registration. Vide Notification No. 65/2017-C.T., dated 15-11-2017; the Central Government, exempted persons making supplies of services, other than supplies specified under sub-section (5) of section 9 of the said Act through an electronic commerce operator and having an aggregate turnover, to be computed on all India basis, not exceeding an amount of twenty lakh rupees in a financial year.

Thus, persons supplying services other than those mentioned in Section 9(5) of the CGST Act are required to register and collect GST only if their turnover is more than the threshold limit. Persons supplying services mentioned in Section 9(5) are not liable to be registered under GST even if their turnover is more than the threshold limit, as a liability to pay GST is on the e-commerce operator.

It is noted that the exemption has been provided from registration itself, and registration provisions are squarely applicable also to IGST/SGST Act, and hence even inter-state supplies are exempt from payment of GST on such supply of service up to threshold limit of exemption.

Thus, persons supplying services through e-commerce operators enjoy the threshold exemption limit. However, such benefit is not available to persons supplying goods through e-commerce operators. Such suppliers of goods are required to get compulsorily registered under GST even if their turnover is less than the threshold limit. It means they are required to register before selling through the e-commerce platform. All platforms like Amazon, Flipkart, etc. require GSTIN at the time of registration as a seller on their platform.

Commission Charged from Suppliers:

E-commerce portals are charging a commission from various suppliers. E-commerce portals are required to be compulsorily registered under Section 24(ix) of the CGST Act and shall be paying GST on commission amount received, without availing any exemption threshold limit. The tax shall be charged in the invoices raised against the supplier of goods or services, and such suppliers can avail Input Tax Credit (ITC) (ITC is the tax that a business pays on a purchase and that it can use to reduce its tax liability when it makes a sale. In other words, businesses can reduce their tax liability by claiming credit to the extent of GST paid on purchases) on such GST charged, if otherwise eligible.

Tax Collection at Source (TCS):

An electronic commerce operator is also required to collect tax under Section 52 of the CGST Act, called TCS. The provision essentially imposes a duty on e-commerce operators to collect tax, from the amount payable to the supplier. Such TCS deducted is reflected in the electronic cash ledger of the supplier. However, the Government has clarified that TCS shall be deducted only when the supplier is liable to pay GST. 

TCS is not required to be collected on exempt supplies [FAQ on TCS issued by CBIC]. 

For the purposes of TCS, an e-commerce operator has to obtain separate registration for TCS, irrespective of the fact that it is already registered under GST as a supplier or otherwise and has GSTIN. The section imposes a duty on electronic commerce operators to collect a tax, from the consideration required to be paid to the persons making supplies of goods or services or both through its platform. The deduction shall be done on a monthly basis on the net value of taxable supplies.

E-commerce portal from outside India:

As a matter of general rule, liability to pay tax is fastened only on the persons supplying goods or services, through an establishment located in India. If such supplies are made from a location outside India, the supplier cannot be fastened with a GST payment liability. The supply of goods is a simple example. Say, a foreign manufacturer supplying goods to an importer in India. Though that foreign manufacturer is a supplier of goods, liability to pay GST is not on that foreign manufacturer. GST is paid by the importer located in India at the time of import. 

Similarly, when the supplier of services supplies certain services to an Indian resident, liability to pay GST on such supply is on the person receiving the services under the reverse charge method. Thus, when an e-commerce operator is located outside India, in general, there is no GST liability on that operator. Goods supplied through such a foreign located e-commerce portal shall attract IGST at the time of import, and services supplied through such an e-commerce portal shall attract GST on the reverse charge method.

Online Information and Database Access and Retrieval Service is an exception to the above-said provision. In the case of OIDAR service, the liability to pay tax is there even on the non-resident suppliers of services. The Integrated Goods and Service Tax Act defines OIDAR to mean services whose delivery is mediated by information technology over the internet or an electronic network and the nature of which renders their supply essentially automated and involving minimal human intervention and impossible to ensure in the absence of information technology and includes electronic services such as, – (i) advertising on the internet; (ii) providing cloud services; (iii) provision of e-books, movie, music, software and other intangibles through telecommunication networks or internet; (iv) providing data or information, retrievable or otherwise, to any person in electronic form through a computer network; (v) online supplies of digital content (movies, television shows, music and the like); (vi) digital data storage; and (vii) online gaming. The definition is inclusive and also includes similar services apart from what is enumerated in the definition clause. We can see from the definition itself that that tax has been imposed essentially automated digital services requiring minimal human intervention. A simple procedure has been devised for non-resident suppliers of OIDAR services to pay GST.

Conclusion:

E-commerce involves in many transactions when a person is buying goods in the e-commerce platform. Two transactions are happening simultaneously. The supplier is supplying goods through an e-commerce portal and the e-commerce portal is supplying services to the supplier. Both the transactions are different transactions and subject to GST in its own nature. TCS provisions come into operations at the end of the month when the e-commerce operator is transferring considerations received to the supplier of goods or services.

Online Information Database Access and Retrival - OIDAR

Online Information Database Access and Retrieval (OIDAR)   is a category of services provided through the medium of internet and received by the recipient online without having any physical interface with the supplier of such services. Example - downloading an e-book online for payment would amount to a receipt of OIDAR services by the consumer downloading the e-book and making payment. 

The Integrated Goods and Services Act defines OIDAR to mean services whose delivery is mediated by information technology over the internet or an electronic network and the nature of which renders their supply essentially automated and involving minimal human intervention and impossible to ensure in the absence of information technology and included electronic services such as, 

a)    Advertisement on the internet. 

b)    Providing Cloud Services.

c)    Providing e-books, movies, music, software and other intangibles through telecommunication             networks or the internet.

d)    Providing data or information, retrievable or otherwise to any person in electronic form through          a computer network.

e)    Digital Data Storage.

f)    Online Gaming.

Tamil Nadu Real Estate Regulatory Authority (TNRERA) - Builders cannot change terms and condition of agreement unilaterally.

The adjudicating officer of TNRERA states that building developers cannot unilaterally alter the undertaking given to the buyer.

Download Judgment 

Delhi High Court - Directs In-laws who wants to evict the woman (daughter-in-law) - provide her alternate accommodation.

A woman filed a case under the Domestic Violence Act against her husband and her in-laws. Even if her husband and her in-laws own the property, she cannot be evicted from a shared house by them till they provide alternative accommodation for her, the Delhi High Court has said in a significant ruling.

Further, the Delhi High Court stated that a civil court cannot render a woman roofless as long as she continues to be in a matrimonial relationship.


The Senior Citizen Act states that law was enacted to ensure that parents and senior citizens are not made to suffer by their children or forced to reside with estranged daughter-in-law in a property that exclusively stands in their names. However, the right of residence under the Domestic Violence Act is a special step towards ensuring that a helpless wife and her children are not abandoned without any shelter and by categorically protecting their right to reside in the shared household, irrespective of whether the aggrieved wife or her spouse bears any title or interest in the said household.
   

Difference between a gift and a bribe given to a government officer

GIFT

A gift is something of value given without the expectation of return. Further, a gift is freely given with no strings attached. On some festival occasions gifts are exchanged ie there is an informal reciprocal agreement between the parties. Gifts are usually given with the motive of appreciation, fondness or love.

BRIBE

A bribe is the same thing given in the hope to influence or benefit something from a authority. A bribe is given with a string attached to dishonestly persuade someone to act in one's favour by a gift of anything such as cash or product. Moreover they are given as a reward for compliance by the Government Authority.

Most of us know about bribery, which amounts to corruption.. So let me give details of provisions made under the CENTRAL CIVIL SERVICES (CONDUCT) RULES, 1964 as regards Gifts. Under Rule 13 of the Central Civil Services (Conduct) Rules, 1964.  

No Government servant shall accept, or permit any member of his family or any other person acting on his behalf to accept, any gift.

EXPLANATION.- The expression "gift" shall include free transport, boarding, lodging or other service or any other pecuniary advantage when provided by any person other than a near relative or personal friend having no official dealings with the Government servant.

Government servant may accept gifts from his near relatives or from his personal friends having no official dealings with him, but he shall make a report to the Government if the value of such gift exceeds limit prescribed by the Government.

Appearance in Court of Party in-person - Procedure

According to the PRACTICE AND PROCEDURE of SUPREME COURT OF INDIA

Appearance in Court of Party in-person

Any person not represented by an advocate on-record, subject to the provisions of Order IV Rule 1(c) proviso of the Rules, can be permitted by the Court to appear and argue his case in-person. He can remain present in Court at the time of hearing of his case and be escorted by a police personnel. A party in-person shall maintain decorum and dignity of the Court during the hearing of his case.

Order IV Rule 1(c) of Supreme Court Rules, 2013 - In petitions/appeals received from jail or a mailer filed by a party-in- person or \lhere a party-inperson as respondent is not represented by an Advocate-on-Record. the Secretary General/Registrar may require the Supreme Court Legal Services Committee to assign an Advocate. who may assist the Court on behalf of such person.

What is claim recovery

Claim recovery is called “subrogation”,  the substitution of one person or group by another in respect of a debt or insurance claim, accompanied by the transfer of any associated rights and duties. Which is a legal term meaning that the insurance company assumes the right of its insured to pursue a claim against a wrongdoer.

If your insurance company pays for damage to your car under the collision coverage, it will pursue its payment (and your deductible amount) from the party who was at fault for the accident. It will make a subrogation claim against that person’s insurance company. If it recovers all or part of the loss, you will get a pro rata share of your deductible back again.

Claim recovery also includes “salvage”. If your wrecked car was deemed to be a total loss (which means merely that it is financially impractical to repair it—not that it cannot be repaired), the wreck has value. It will be sold at an auto salvage auction to a salvage buyer. The money recovered goes to the insurance company that paid the claim. The salvage buyer will in turn sell undamaged parts to shops that are repairing other vehicles.

Doctrine of Pay and Recover in Motor Vehicle Act - Accident Cases

In this recent case, Shamanna v. The Divisional Manager, Oriental Insurance Co. Ltd. 

Date of Judgment: August 08, 2018

In the present case, the driver of the offending vehicle had no valid driving licence, at the time of the accident. This was clear violation of the terms of the insurance policy. The Tribunal had directed the insurance company to pay the compensation to the claimants and granted liberty to the insurance company to recover the same from the owner of the offending vehicle as "Pay and Recover".

In this particular case, the court held that it is the duty or obligation of the insurance company to prove that the driver had no valid driving license and such things lead to the breach of terms and conditions of the policy “pay and recover”  which can be ordered in cases of third-party risks. 

The High Court in appeal however held that only the owner of the offending vehicle was liable to make the payment of the compensation amount and that the Tribunal had no power to order for “pay and recover”.

The Supreme Court however held that the High Court could not interfere with the Tribunal’s order and that there was nothing in law or precedents which mandated that the power to order for pay and recover could be made by the Supreme Court only under Article 142 of the Constitution of India. Other observations made by the Supreme Court in the case are as under:

That as per the decision in National Insurance Company Ltd. v. Swaran Singh and others, the insurer had to indemnify the compensation amount payable to the third party and the insurance company may recover the same from the insured.

In this particular case, the court held that it is the duty or obligation of the insurance company to prove that the driver had no valid driving license and such things lead to the breach of terms and conditions of the policy “pay and recover”  which can be ordered in cases of third-party risks. 

Holding on to the decision of Laxmi Narain Dhut, the apex court directed the insurance company to pay the amount of compensation to the claimant accordingly and also said, “So far as the recovery of the amount from the owner of the vehicle, the insurance company shall recover as held in the decision in Oriental Insurance Co. Ltd. vs. Nanjappan and others (2004) 9 13 SCC 224 where this court was held. Also, said, "…that for the purpose of recovering the same from the insured, the insurer shall not be required to file a suit." It may initiate a proceeding before the concerned Executing Court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer”. 

Doctrine of “pay and recover” implies the liability of the insurance company in cases of breach of policy condition due to disqualifications of the driver or invalid driving licence of the driver and in case of third party risks, the insurer has to indemnify the compensation amount to the third party and the insurance company may recover the same from the insured.

What is Indian Motor Vehicle Act?

The Indian Motor Vehicles Act, 1988 is an Act which regulates all aspects of road transport vehicles.

Further Motor Vehicle Act provides in detail the legislative provisions regarding licensing of drivers/conductors, registration of motor vehicles, control of motor vehicles through permits, special provisions relating to state transport undertakings, traffic regulation, insurance, liability, offences and penalties, etc. 

The Government of India made the Central Motor Vehicles Rules 1989 to exercise the legislative provisions of Motor Vehicle Act.