Saturday, June 26, 2010

1 - Meaning of Nominee?

8 - Q1. What is the meaning of nominee?

A. Nominee is a person to receive the benefits under nomination and distribute the same to the legal heirs/beneficiaries under law. Nominee can also be one of the legal heirs to take the benefit. This preposition has been laid down by the Supreme Court in a case pertaining to LIC nomination.

Q2. I an a married man of 25 yrs. I have younger brother and a younger sister. I had a love marriage last year in the same caste. Now after one year of our marriage my parents are forcing me to leave the house and I don't want to do so(because it is ver spacious and have different floors.) Here is the brief history of our family: My grand father came to India in 1947 from Lahore, Pakistan and after the partition. In India he stared in new life and made a house and shop in prime locations of Delhi. In 1984 my parents got a WILL signed by my grand father that the whole property belongs to only and only my father. (My father is the only son with 4 sisters.) In 1991 my Grand Father died and again my parents took NOC from my aunts and executed the WILL. My Question is: 1. Do I have any right on the property even though my father does not want to give it to me? 2. Can they throw me out of the house force fully? 3. What should I do when they become physical on this issue? 4. They have locked the kitchen & bathrooms so that we should leave the house ourselves in frustration. What should we do in this case?

A 1. No, you have no right in the property. 2. No, they cannot throw you out of the house forcibly. Before they throw you out , they have to approach the Court of Law and get the orders. 3. If they get physical on the said issue then you should file is suit for injunction against them, asking the Court to restraining them to throw you out forcibly. 1. Break open the lock and inform the police and also file a compliant of trespassing.

Q3. Is there any limit (as per the law) tot he "Meher" (in Muslims i.e. is SHIA) that is to be paid by husband to his wife keeping in view the earning of the husband, or it has to be as per the amount that is written in nikahnama?

A. There is no limit to Mehar even under SHIA Law. The husband may settle any amount he likes by way of Meher upon his wife, though it may be beyond his means.

Q4. Does the amount of MEHER paid to the wife by her husband becomes half or nil after the birth of first child or still it has to be paid in full as per the amount written on nikahnama.

A. The amount of MEHER paid to the wife by her husband will have to be paid as per the amount written on nikahnama. It is a consideration of marriage and has no connection with the birth of first child.

Q5. Do husband possess any right do demand his wife salary in any case?

A. NO, there is no legal right to demand his wife salary. It can be done only through understanding and persuasion .

Q6. I got a problem. I got married 6 months ago. My was not able adjust in US. So she went back. Now her father asking me come back and settle there. I didn't agree for this. He tried black mailing me to come back to India or else I file a case. Now he did that saying I send her back India asking to bring money to here for business and he said he is going to report Embassy also. I don't know what to do. They filed cheating case everything. I don't know how to react from my side. Do I have to report INS or Employer. How I have to overcome this.

A. On filing of any case by your In- Laws/Wife you can contest the case through an advocate. At this stage it is difficult to assess as to what type of cases are likely to be filed by your wife. As a precaution you can inform your employer. So long as you are in US they will not be able to do much against you, but if your have family in India, they can be harassed by the girl on false charges. Please give details so that we can guide you better.

Q7. I have heard of Hindu undivided family law. What does that mean? Does it say that grandson has the right to the property(made by him) of the grandfather ? Even if he has written a will on his sons name.

A. Grand Son has no right in the property of his grand-father. Grandfather is competent to give the property to his son by writing a WILL, if the property is the self acquired property of the grand father. If the property is an ancestral property then no WILL can be made, and in such a case the grandson will only get a share out of the share of his father.

Q8. What should I do then. My parents are trying to throw me out of the house because of my brother. Is there any way my family and I be protected under certain law.

A. You should file a suit for permanent injunction against the family and seek stay of dispossession as interim relief. Contact advocate for detail and for filling the stay. You will have to show your right in the property by showing of as an ancestral property or otherwise.

Q9. It is not ancestral property. What should I do now ?

A. Even if it is not ancestral property, the person in possession of the property cannot be dispossessed by force. Your possession is legal and you are a licensee in the premises. You may file a suit for permanent injunction with an application for stay against your family with a direction from the Court that you should not be dispossessed from the possession of the premises under your occupation without due process of the law.

Q10. Ours is considered to be Joint Hindu Family . My grandfather has three sons and two daughters,. My aunts are married and their marriage expenditure has been borne by my grandfather. Thought my grandfather and all his sons reside at the same place but internally all three had partitioned. However, there has been no formal partitioned deed executed. My grandfather had executed the will in 1990 wherein he had distributed the property among his three sons. However, at the time of execution of the will my youngest uncle was not married. He got ,married in March 1994. They have got one daughter out of this marriage. Unfortunately his marriage has been unsuccessful. My youngest auntie has never stayed at my uncle's place for even seven days continuously since their marriage. She mostly remained at her parents place that is at Ulhanagar. Their relation was bitter and my uncle had to undergo lot of mental trauma. Finally , the result was such that my uncle lost his mental balance.(Unfortunately, we do not have any medical certificate or evidence to this effect. But we do have witnesses for his said condition). In such mentally imbalanced condition, my uncle is reported missing from his In-laws house from December, 31st 1995. The report of his missing is lodged at Ulhasnagar Police Station. He is still missing. Further problem is that, then my youngest auntie has filed the suit against my youngest uncle, my parents and my elder uncle and auntie under Section 498 (criminal offences for sake of dowry). The allegation made in case are for dowry and harassment. These allegations are totally false. The case is still running at the Ulhasnager Court . The case had been filed up in February, 1998. Looking at such situation, my grandfather terminated the previous will and executed the fresh will in June, 1999. In the new will, the property that was suppose to be of my youngest uncle as per the old will, my grandfather has distributed it among his grandsons(i.e. I, myself and my cousin-son of elder uncle). Now my grandfather has expired fortnight ago due to his old age and medical,etc. Now I shall be highly grateful to you if you can provide me opinion on the following points:- 1) How strong is the case of my auntie under section 498 specially when she has not stayed at her in laws place for continuous 7 days? Also, that her husband if reported missing from their i.e. his In-laws place? Further , partition already existed in the family before his marriage. 2) Now, that my grandfather executed new will in which there is no share for youngest uncle-Can she makes any claim in the property? Specifically in the context that the property has been distributed among the grandsons and she bears the daughter our to the marriage with my uncle. 3) Now that my grandfather has expired, how do we go about transferring the property as per the will grandfather? What are the legal proceedings fort he property transfer based on the will of deceased?

A. The success of the case under Section 498-A lies on the proof of facts in the Court and the strength of the case cannot be decided on the basis of the facts that you have disclosed. All these arguments that your aunt never resided in the family even for seven days have to be proved in the Court. The court shall still have to examine your aunt's allegations regarding dowry etc. The legal procedure will take its own course and matter would be decided on the basis of evidence produced by both the parties. 1. If the property was personally owned by your Grand Father, he has the right to execute the WILL in the manner he likes and your aunt cannot claim her share as a matter of right. It is not clear from the facts, how the property was distributed when your grand father cancelled the previous WILL and executed a fresh WILL. If you mean that the distribution by WILL, then the distribution has no meaning and succession of the property has to be as per WILL (I.e. the last WILL). 2. In order to give legal sanction to the WILL, you may file a petition for obtaining probate of the WILL in the Court and if the WILL is proved, the property will be distributed according to the WILL. If the WILL is disproved, then your uncle (who is missing) will have the right in the property and the minor daughter can claim the share of her father.

Q11. What are the legal duties & responsibilities of an unmarried financially independent daughter above 21 years of age towards her parents?

A. Section 20 of the Hindu Adoption & Maintenance Act, 1956 provides for maintenance of the children and aged parents. Under the provisions of the said section, Hindu is bound, during his or her life time, to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents. However, a child may claim maintenance from his or her father or mother so long as the child is minor, i.e. a person who has not completed 18 years of age. When a Hindu male dies intestate his property devolves around his legal heirs. Section 10 of the Hindu Succession Act, 1956 gives in detail the list of Class I heirs who are go be given first preference while dividing the property of the deceased. Rule 1 of this Section provides for a share of property for the widow of the deceased. Rule 2 of this Section provides for a share each for the surviving sons and daughters and the mother of the deceased. In your case though it is not clear whether the deceased has a surviving widow and mother but in case there are only two surviving daughters and a son each one will get a share each i.e. 1/3 of the undivided share in the property. In case one of the sisters of your friend is willing to relinquish her share in favour of the other sister, she can do so by executing a relinquishment deed in her favour. However, in case your friends father has left a residential house, which is occupied by your friend and other members of the family, then under Section 23 of the Hindu Succession Act, 1956, his sisters can not claim partition of the said House till the son (i.e. your friend) chooses to divide the respective shares in the said house.


9 - Q1. Whether a show cause notice by the government is necessary for compulsory purchase under Section 269 of the Income-tax Act, 1961.

A. Yes, a show cause notice is compulsory in the case of a compulsory purchase by the government. The law requires to in our opportunity to be given to the concerned parties particularly the intending purchaser and the intending seller. Thus under Section 269 you would be intending purchaser and intending seller must be given the show cause notice against order for compulsory purchase .

Q2. In my Income Tax Return I claimed expenditure incurred of repairs and renovations of my business premises. The department disallowed my claim. Is the order of the department justified?

A. The provision of Section 30 (a) (ii) the Income-tax Act, 1961 require that for the amount to be allowed as a deduction the same must be spend for the purposes of carrying on current repairs . If the deduction sought by you comes with the definition of current repairs you will be entitled to claim deduction otherwise the department would be justified in disallowing the same.

Q3. I am a tenant in a premises and I incurred certain expenses for renovation of the premises . In the Income Tax Return I claimed deduction for the said expenses incurred as revenue expenditure. Is such deduction permissible ?

A. Yes, you will be entitled to the benefits of Section 37 of the Income tax Act, 1961 in case you have incurred expenses on the renovation of the tenanted premises. The tenant does not acquire any capital assets in doing the same because of the building does not belong to him and as such the expenditure can not be termed of a revenue nature. The expenditure has been incurred for the purposes of facilitating the assesses business operation or otherwise and the said amount should be allowable as Revenue Expenditure under Section 37 of the Income-tax Act.

Q4. Is there any judgement holding that the provisions of Section 127 (2) of the Income-tax Act, is not ultra vires the Constitution of India?

A. Yes one the judgement in this regard is Sameer Leasing Company Limited Vs. Chairman C.B.D.T. reported in 40(1990) DLT page 37.

Q5. Can the Income tax officer retain sealed books of accounts and other documents for more than a particular period. What is the legal position in this regard?

A. Under Section 132 (8) of the Income-Tax Act, the Income tax officer has the power to retain the books of accounts and other documents seized by him for a period of 180 days. In case an extension of the said period is required an order is to be passed by Commissioner of the Income tax and if no such order is passed the Income tax officer is bound to release the books of account and other documents to the party.

Q6. In the case of acquisition of a property under Section 269 of the Income-tax Act, if the said property is occupied by tenant, What is the right of the said tenant in said property?

A. After the acquisition of the property under Section 269 of the Income-tax Act the tenant has no right to stay in the property. The tenant has no right to continue in possession and there is no safe guard provided to tenant in this regard.

Q7. Incomes as salaries to the employees in 100% subsidiary unit supported by US company in India is Taxable or not? As the unit in India is registered with STPI and enjoys 100 EOU status, please clarify on this and if taxable what will be the Tax to be the Tax to be paid ?

A. Salaries to the employees of a 100% subsidiary unit supported by a US company, even if the unit enjoys 100% status are taxable. The taxable status of the employees is determined by their residential status as determined by Section 6 of the Indian Income Tax Act. Tax on Income by the employees would be paid as per prevalent rates of the relevant assessment year, attracting all the deductions and exemptions as allowed by the Act for any salaried employee.

Q8. I have already invested Rs.6000 in the tax saving schemes. Can I invest more? If yes, how much and in which schemes?

A If your are talking of Sec 88, you can further invest in shares, debentures or units of infrastructure sector to the extend of Rs.10000/- to claim maximum rebate.

Q9. I have a house on which I took HDFC loan 6 years back. I am currently claiming only Rs.10000 as the max deductible under Section 88 (20% deduction form IT). A friend told me that it is possible to claim the full Emi payment made under a special section that exists (from the total taxable salary) (probably section 24 or something). Could you please tell me if this is true?

A. Your current claim of Rs.10,000/- is correct. Though in the current Finance Bill 2000, it is proposed to be increased to Rs.20,000/-. However you can claim deduction for interest on borrowed capital u/s 24 under Income from House Property. Any expenditure claimed u/s 24 will not qualify for purposes of Sec 88.

Q10. Does the NRI have to pay property tax if they buy property in India? Can a person fill a NRI in a income tax form if he has been out of India for six months though he is Indian citizen?

A. If an NRI buy a property in India, the house Tax levied by Municipal Authorities is payable by them. An individual is treated as a Non Resident during the previous year if he does not satisfy the basic conditions laid down in section 6(1) of the Income Tax Act i.e. :- He should not satisfy any of the following conditions:- a) He is in India in the previous year for a period of 182 days or more or b) He is in India for a period of 60 days or more during the previous year and 365 days or more during the four years immediately preceding the previous year. You haven't mentioned any thing about his stay in India in the previous year ( financial year) in number of days and in the years prior to the previous year ( financial year). we assume that he at least satisfies the condition (b) above and in this case he cannot be assessed as a Non Resident Indian.

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