Do you need an Attorney or Can You Represent Yourself, Discuss?

The above mentioned question is a highly contentious issue which has been a matter of debate for many decades amongst people and especially common people who have constantly questioned the presence of attorney in the judicial system of the country. The common man is of the view that courts are forums established for delivering justice and man who is aggrieved and comes to this forum is in much better position to explain or present the matter in comparison to an attorney as the aggrieved person is the first person to experience the events and aware about the facts of disputes. On the other hand, an attorney is of the view that by virtue of his training in law, he is in much better position to understand the matter and present the matter. Therefore to understand and to answer this very contentious issue, it is important to understand some very basic concepts that run through this question. It is also essential to see the both sides of the coins to positively come to the conclusion whether we need attorneys or can we just represent ourselves without any help from attorneys.

It is first important to look at the definition of law. Law are set of rules that are enacted by one of the organs of the government to govern the conduct of the countrymen. In India, the Parliament makes the laws and these govern the lives of the people. Law is a code of conduct that governs the nation and is a necessity of a modern day nation state. It provides for the working of the government and provides for rights and liabilities of people who are forming the nation state.

Law is often described as complex set of rules that are of complex nature and have characteristic of being extremely vast. An attorney is a person who is trained in law and is empowered to represent people in the judicial system that is courts of the country. The difference between an attorney and layman is expertise of an attorney in law. A layman may know the existence of a law but is not trained to work and apply the law. An attorney is on the other hand is a person who understands the law and knows how to apply laws to different situations and circumstance. An attorney can give different interpretations to law which possibly cannot be given by a layman or a common man. An attorney understands the nature of law and the working of a legal system. An attorney role is not limited to just court rooms but expands to all those areas where the law touches the lives of people. These may include administrative matters, contract matters or issues that require the state to act. Law governs the society and hence, it plays a very important role in the structure of nation state. A person therefore can either choose to appoint an attorney or can choose not to use the expertise of attorney.

An attorney role in a dispute pertaining to complex matter is definitely an attractive proposition to end the dispute and reach a favourable conclusion. An untrained person may find difficult to apply law and give interpretations to law. An attorney on the other side having known the rules and procedures of the court can present the arguments in a better way in comparison to a person untrained in law. However, in many matters especially pertaining to administration, role of attorneys are made limited. It is preferred to present one’s own point of view across the respective body. In many countries common people who are untrained in law are encouraged to represent themselves before the judicial authorities. On the hand in India, there has been a growing trend to use the expertise of an attorney. In J. K Aggarwal v. Haryana Seed Development 1991 AIR 1221 case, the Hon’ble Supreme Court of India allowed the appellant side to be represented by a lawyer in disciplinary enquiry in the view of natural justice as the respondent side was being represented by law trained person and it was felt that a law trained person representing the matter from one side was unfair to the other side who is not man of law as stated by the Hon’ble court. This case is highly significant as it indicates the increasing role of attorney whose role is just not limited to disputes pending in courts but to matters outsides the courts even in disciplinary enquiries and clearly indicates that skills of law trained person in matter of dispute are far much better than untrained person. In the respective matter, the appellant was initially not allowed to engage the services of trained attorney. There have been many instances where services of attorney were engaged with the view that they provide a better defence and present the matter a professional way. Thus the role of attorney is highly significant in the country. There is code of conduct for attorneys and by virtue of it they maintain high standards of professionalism and present matter before the courts to the best of their abilities.

Common people can also represent matter before the courts but they are required to follow the rules and procedures of the courts. These court procedures can be easily adopted and followed only with the help of specialised skills which are developed only after attending formal training in a law school. In appellate stage, attorneys play a highly significant role as appellate stage involves complex and highly technical aspects of laws which are sphere where attorneys are better equipped in comparison to common man or lay man. Attorney’s role is highly significant in getting a favourable conclusion. Common people are allowed to present the matter before the High Court and Supreme Court of India by presenting the petition in person but the said person is required to take permission of the Hon’ble forums.

This entire debate therefore centres on the choice exercised by the aggrieved person. The aggrieved person may choose to appoint an attorney to represent the matter or could represent himself in court. The aggrieved person if is of the opinion that he is fit to present the matter before the court i.e. he understands the working of courts, understands the different interpretation given to laws by various courts, knows the application of law and can present argument, cross examine and with stand cross examination then may choose to present the matter before courts or other forum that gives him a choice to represent himself. It is important to note here that the state endeavours to give an opportunity to represent himself either through an attorney or if he desires, then himself.

It is submitted that laws are published in the official gazette and the general public can access it. In today’s time people are much more aware of their rights and duties and laws are readily available through electronic media and other modes. This aspect has been recognised by the Hon’ble Supreme Court of India and the Hon’ble court has introduced a system of PIL i.e. public interest litigation where common people can raise issues and present matters concerning public interest in Courts.

A person can therefore present the matter and represent himself in courts but this can hold true only for those who understand laws. However, there are many people in India and in other parts of world that are not aware of laws or their rights. Attorney comes to rescue of this class of people. Attorneys role also become highly significant in some spheres where highly skilled knowledge is required like taxation, intellectual property matters or criminal law. For example under criminal law, the state acts on behalf of the aggrieved person. The accused is not regarded as guilty until proven so and onus lies on the prosecution to prove the accused guilty. It is here that the role of an attorney is highly significant as he will present the matter in a much more professional manner with a better understanding of law.

Hence, the question whether we need an attorney or can we represent our selves is a question can be understood from both sides that is one from layman point of view and other from attorney’s point of view. The question thus falls within the domain of choice of the individual whether he shall exercise engage the service of attorney or not. Attorneys are creation of the judicial system and area specialised class that is created to help the common man in matters where law touches their lives. It is for the individual to decide whether he needs an attorney or can do without him. An attorney is only an instrument helping the individual get justice, enforce rights and make life easier in highly elaborate and complex judicial system. It is submitted that attorney are indispensable members of the society whose services can only make life easier as they provide specialised assistance which shall only help and not create problems and their role is significant just like any other people who are specialising in other spheres like medicine, management.

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Posted in: Individual can represent case before court,Need of Attorney to represent case

Rajya Sabha Passes the Motor Vehicle Amendment Bill 2012

The Rajya Sabha passed the Motor Vehicle Amendment Bill 2012 on 4 December 2012. This bill is now pending before the Lok Sabha and shall become law after its approval by it. The bill seeks to amend some provisions of Motor Vehicles Act, 1988 and aimed to provide stringent guidelines for issue of driving licenses and provide enhanced penalties for various offences under the act.

Some of the salient features of the act are:

1. Guidelines for issuance of driving licenses.
2. Imposition of penalties and issuance of challans for violations.
3. Imposition of penalties for “overloading” the vehicle.
4. Penalty to be borne by the consignor in case the documents in possession establish that the offence was committed under the orders of the consignor.
5. Increased fine for “not wearing helmet” or “seat belt” or for “jumping red light”.
6. Provision for fine has been introduced for “use of mobile phones” while driving.
7. Fine shall be imposed for “drunken driving” and punishment may extend to 2 years imprisonment. The punishment shall be in respect of content of alcohol found in the body of driver.
8. Repeated offenders shall be fined stiffer.

Pros and cons of Motor Vehicle Bill 2012

Pros: The stringent provisions of amendment act shall help in effective enforcement of laws.

Cons: The increased rate of fine shall put unnecessary burden on citizen.

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Posted in: Motor Vehicle Amendment Bill 2012

Legal Guidelines required for Starting a Business in India

These are the following legal guidelines required for starting a business in India:

A) Choose a Legal Business A person who wishes to start a business is first and foremost required to check and see whether the business which he wishes to start is a lawful business with a lawful object in the eyes of law that is; it is not prohibited under any law that is in force. For example the following business is prohibited:

• Wagering Business i.e. betting or gambling is prohibited under law.
• Trade of prohibited items like animal skin.
• Sale of some animal skin specified under the Wildlife Act is also prohibited.

B) Choose the Type of Business A person is secondly required to decide how he desires to operate his business whether he will be operating as a:

• proprietorship,
• firm of partners,
• A company either limited by shares or with unlimited liability, a public limited or private limited company.
• Limited Liability Partnership i.e. LLP.

Proprietorship Firm: Proprietorship is a business entity that is owned and run by one person i.e. the Proprietor. There is no distinction between the proprietor and proprietorship in the eyes of laws. They are one and the same thing. Proprietorship does not require any registration with any government agency. In fact the PAN card of the Proprietor is used for filing income tax returns of the business i.e. Proprietorship. But the name of the proprietorship can be registered as a trade mark. A bank account can be opened in the business name and all indirect tax registrations can be done in the name of the proprietorship firm also.
Partnership Firm: All partners who have entered partnership agreement are called as partners of the Firm. Under this category, the business is run by the partners. Partners are basically all those people who come together with the intention to carry out a business with the aim to gain profit and share profit and looses in case they are incurred. The partners should be including two or more persons who carry out business on behalf of each other and act for themselves and on behalf of other partners and thus act as agents of each other. These partners contribute to this business and share profits and losses, conduct business in accordance to the partnership agreement entered by them. Partnership Firm can be registered under Indian Partnership Act. A partnership Firm has unlimited liability of the partners.
Private and Public Companies: A company is an association of people who have come together to carry out business with the aim of profit. The special feature about this association is that it has been given a separate and distinct legal identity/personality which makes this entity separate from its members. Company is basically a creation of statute that is Companies Act 1956. Company business is carried out by the Directors. Law has imputed a legal personality to this entity and this fact makes it different from proprietorship or firm. The company is governed by the provisions of Companies Act and not by any agreement as in case of firm. There is no agreement entered by the members of the company amongst themselves to carry out affairs of the company and if there is a contract to conduct affairs then, it is according to a contract with the company which has a legal personality or is a legal entity on its own. It has a personality of its own and members of the company have their individual identity. The affairs of the company are carried out in accordance to the documents of Memorandum of Association and Articles of Association that are filed at the time of formation of the company with Registrar of Companies.

It is important to understand the concept of shares before understanding entities called limited company or a public limited company. A company requires capital to run the business and this capital which is invested to carry out the said business activities is called the ‘share capital’. This capital of the company is divided into ‘shares’. ‘Shares’ basically means a share in the share capital of the company. The people who hold such shares are called shareholders.
Limited Company: A limited company is a company whereby the liability of the shareholders towards company‘s creditors is limited to the capital that was originally invested by them.
In practice all companies are limited companies as under this category liability of shareholder is limited as contrast to a company with unlimited liability where liability of the shareholders towards the debts is unlimited. These companies where liability of shareholder is unlimited are generally not much found in the business world due to lack of their economic feasibility.
Private Limited Company: Private Limited Company is a company where shares are held in private hand and transfer of shares is limited to the members or directors of the company and prohibits any invitation /deposits of capital from person other than members, directors of the company. The company is not allowed to invite general public to subscribe to the share or in simple words the general public cannot invest in the company through mode of buying shares. Under the Companies Act 1956, private limited company is a company with a minimum paid up capital of 1 lakh rupee. A public limited company is a company on the other hand with a minimum paid up capital of 5 lakhs rupees where shares can be bought by the general public i.e. general public is invited to subscribe to the shares of said company by issuing a prospectus.
Limited Liability Partnership: A LLP is a business enterprise that is hybrid of both partnership and company. It is an enterprise that consists of partners who conduct the business in accordance to an limited liability agreement with the view to gain profits and at same time LLP has a distinct personality of its own and capable of being sued in the name of LLP.

C) Select The Name Of Business The third legal requirement for starting the business is naming the Business. The name of the Company or firm or proprietorship or LLP should not be prohibited under the Emblems and Names (Prevention of Improper use) Act, 1950 or State Emblem of India (Prohibition of Improper Use) Act, 2005 or any other law that is in force and places restrictions on naming the business respectively. The following are some of the basic requirements that should be kept in mind before naming businesses:

• A company or a firm should not use State Emblem prescribed under the Schedule of Emblems and Names (Prevention of Improper use) Act, 1950 or anything which gives an impression that the business is run or is under the patronage of the government of India in case it is not so that is, no written consent is made in favor of the respective business.
• Public Limited Company is required to be added in case of Public limited companies and in case of Private Limited Company the term Private Limited is to be added.
• The business name should not be same or similar to the trade name of other enterprise running similar or same line of business or should not be giving impression of running on the goodwill of well established business enterprise thereby violating the trade mark law or being accused of passing off under common law.
• For examples in case of eCommerce business i.e. online shopping, the owners of the said business should not name their business after any brands of goods that are being sold through their website or name the online shopping website after any well known company unless written permission has been taken on that behalf by the respective brand or they could found guilty of offenses under cyber law that is cyber squatting.
• A person can name his/her company after his own name. In case his organization name is similar to another company’s name then he can continue to run his business under the said name only if the name was used with honest and bonafide intention by him. In case any dispute arises in future then, the person is required to satisfy the test laid by the respective Act prohibiting the same like for instance under the Trade Mark Act 1999.
• A person can name his company in a manner that indicates the kind of business activity in which he is engaged.

D) Legal Process Upon deciding the form in which the person wishes to operate his business and naming his business, the person may start the process which shall help him to operate the respective form.

• In case of a firm, the person is required to enter into a partnership agreement with all the terms, conditions mentioned and may choose to register the firm with the Registrar of Firms and in case the firm is a banking firm with more than 10 partners then it is obligatory to register the Firm.
• In case the person chooses to operate as a company then the respective person generally who is promoter is required to file an application in Form No 1 A along with the Memorandum of Association and Articles of Association with all the necessary details like Name Clause, Registered Office Clause, and Object Clause that are clearly defining line of business, place of activity that is registered office etc and the manner in which the business shall operate as prescribed by the Companies Act 1956 with Registrar of Companies. In case of public limited company, prospectus as prescribed by the Companies Act 1956 is required to be filed.
• In case of LLP, the person is required to register the incorporation document along with the statement by the Chartered Accountant, Company Secretary or Cost Accountant stating that all the requirements prescribed by the Limited Liability Partnership are complied with as prescribed by the respective Limited Liability Act with the Registrar of Companies where the business is situated.

E) Other Requirements The person is required to thereafter to check whether his business requires any clearances from Government Authorities or licenses from the local licensing Authority to operate like in case of Restaurants, coaching institutions etc.

• In case of business of Export or Import of goods outside India or to India, a person is mandatorily required to apply for Import-Export number that is IEC to start import or export business.
• The person who is operating his business as a shop running essential commodities is required to check that commodities bought from wholesalers or sold from his shop are fulfilling the safety standards and are not adulterated and complying with food adulteration prevention acts respectively.
• In case the person is running factory then it is essential to get environmental clearance from respective Boards under Water and Air Pollution Prevention Acts and install safe disposal of harmful waste by converting it into to less toxic waste as prescribed by the respective Acts.
• In case of a public limited company, the business of the said company can commence only after the Registrar of Companies issues the certificate of commencement as prescribed by the Companies Act 1956.

F) Memberships The person may choose to register its organization with chamber of commerce or any statutory organization where registration of his business is mandatorily required. The person is also required to check whether the business which he wishes to operate is coming under any Social Security Scheme like Public Liability Insurance, Workmen Compensation Act 1948 (in case the business includes factories mentioned in the Schedule of the respective Acts) where it mandatory to register the organization with the respective government agency. The following are some of the examples:

• In case of business run by an enterprise consisting of more than 20 employee then it is governed by Employee Provident Fund Act and the person is mandatorily required to register with Employee Provident Fund Organization in the prescribed form for the allotment of establishment code number and provide all the information to respective office as prescribed by the respective Act.
• In case of business is consisting of running factories or mines, the person who is running the respective factory is required to see that the factory premises or working conditions are fulfilling the health and safety norms as prescribed by the Factories Act or the Mines Act 1952 respectively.
• The person is also required to check whether its organization is coming under Employment State Insurance Scheme and in case it does, then register its organization with the respective government agency as prescribed by Act and apply and get the ESI number. This scheme is generally for factories that are  non seasonal and are either run by power or are not run by power employing 10 or more employees providing insurance cover in case of accident, injury, occupation disease, etc in the course of  their employment.

G) Tax Registrations The person is there after required to apply to respective government authorities for future taxation purposes. For example in case the business is being operated as a company then it is required to apply in form 49 A for PAN card which is required for filing income tax returns and file Form 49B for TAN that is Tax Deduction Account Number either online through NSDC website or Tax Information Network Centre for deduction of tax at the source so that in future there are no problems in TDS/ other Tax filing. The proprietor of proprietorship can use his personal PAN card number for paying the income tax on the generated income. The directors of the company may apply for Director Identification numbers by applying in form DIN-1 and this is mandatory for those directors who are not citizen of India but are directors of Indian companies.

A person running trading business is required to apply for VAT registration to the local Sales Tax department in prescribed forms along with specified fees and necessary document as prescribed by the respective Act in this regard. Tax Identification Number that is TIN is granted on completion of above said formalities. This is essential as it is mandatory to take Value added Tax that is VAT on sale transaction as prescribed by the respective Act. Failure to comply with the above mentioned attracts penal action.

H) The person is required to thereafter to get service tax number in case the person feels that revenue that will be generated during the financial year will be more than 10 lakhs though person may apply for it voluntary in case business revenue is less than 10 lakhs. Application for this number is only for those businesses that come under category of services whereby the service tax is to be imposed under the respective Act. The person is therefore required to check with a lawyer or any other authority to see and whether any levies are to be imposed in course of the business. The following are some examples:

• The person is required to see in case of manufacture of goods to include excise duty on manufacture of goods at the place of manufacture.
• The person is required in case of restaurants or sale of commodities like cloth; basic utility items etc take Value Added Tax i.e. VAT from the consumers on the sale of the respective commodities.

I) Accommodation Issues: In case the business is being run through an office, it is essential to check whether the office premises can be used for the respective business and this is fulfilling the Rules and Regulation of Master Plan of the city where the office is situated and in case the office premises is acquired through sale deed then, it is essential to get sale deed registered and pay the stamp duty and all other taxes if any in this regard. The following are some of the examples which are required to be kept in mind regarding office premises:

• Factories releasing toxic waste or dealing with extremely dangerous substances cannot be run close to residential complexes according municipal rules of State.
• Alcohol selling shops cannot be situated near schools or temples as prescribed under municipal rules of State.
• Only professional Chartered Accountant or Lawyers or doctors can work from residential colonies and can operates their offices or clinics respectively from residential premises under State municipal Laws.

J) Bank Accounts The person can open bank accounts in banks in the name of proprietorship, company, firm or LLP for transactions of the respective organizations and acquire check books in this regard. The person is required to maintain books of accounts and work according to the guidelines prescribed for the business and pay taxes and conduct affairs of the business with due regard to law of the country or state where the business is established. The person may chose to adopt any official seal of the respective organization as identifying mark of his respective organizations to be used in documents in futures and there after start the business which he wishes to pursue.

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Posted in: Guidelines required for Starting a Business in India,Guidelines to start a company in India,Legal Guidelines for establishing a Business

How to start Business in India

Very frequently asked question from visitors, especially NRIs and foreigners, who want to start Business in India.

Here is a detailed standard procedure (Followed in the most of the cities, in some cities there may be some more or less processes) will take to start business in India, the paperwork involved and procedures for starting a company in India.

Steps involved in starting business in India

Registration Requirements:

1. Director identification number (DIN) by applying online from the Ministry of Corporate Affairs portal (National)
2. Digital signature certificate by applying online from agency authorized by the Ministry of Corporate Affairs (National)
3. The company name can be reserved by applying online with the Registrar of Companies (ROC) (National)
4. Stamp the company documents at the State Treasury (State) or authorized bank (Private)
5. The Certificate of Incorporation from the Registrar of Companies, Ministry of Corporate Affairs (National)
6. Make a seal (Private)
7. Get a Permanent Account Number (PAN)
8. Get a Tax Account Number (TAN) for income taxes
9. Registration with the Office of Inspector, Shops, and Establishment Act (State/Municipal)
10. Registration for Value-Added Tax (VAT) at the Commercial Tax Office (State) 
11. Registration for Profession Tax at the Profession Tax Office (State)
12. Registration with Employees’ Provident Fund Organization (National)
13. Registration for medical insurance at the regional office of the Employees’ State Insurance Corporation (National)

Detailed Steps and Explanation of procedure to start Business in India

Procedure 1: Director Identification Number (DIN)

• The process to obtain the Director Identification Number (DIN) is as follows:
• Provisional DIN by filing application Form DIN-1 online. This form is on the Ministry of Corporate Affairs 21st Century (MCA 21) portal. The provisional DIN is immediately issued. 
• Printed and signed application need to send for approval to the ministry by courier along with identity and address proof:
1. Identity proof (any of the following):
• Permanent Account Number card,
• driver’s license,
• passport,
• Voter card.
2. Residence proof (any of the following):
• Driver’s license, 
• passport, 
• voter card 
• telephone bill, 
• ration card, 
• electricity bill, 
• Bank statement
• The concerned authority verifies all the documents and, upon approval, issues a permanent DIN.

Procedure 2: Digital Signature Certificate

The electronic filing system under MCA 21, the applicant must obtain a Class-II Digital Signature Certificate.

• The digital signature certificate can be obtained from six private agencies authorized by MCA 21.
• Company directors submit the prescribed application form along with proof of identity and address.

Procedure 3: Company Name

Company name approval must be done electronically.

• Under e-filing for name approval, the applicant can check the availability of the desired company name on the MCA 21 web site.

1. The ROC in Mumbai has staff members working full time on name reservations.
2. A maximum of 6 suggested names may be submitted.
3. They are then checked by ROC staff for any similarities with all other names in India.

• The MCA receives approximately 50-60 applications a day. After being cleared by the junior officer, the name requests are sent to the senior officer for approval.

1. Once approved, the selected name appears on the website. Applicants need to keep consulting the website to confirm that one of their submitted names was approved.

Procedure 4: Stamp the Company Documents

The request for stamping the incorporation documents should be accompanied by unsigned copies of the Memorandum and Articles of Association, and the payment receipt.

• The company must ensure that the copies submitted to the Superintendent of Stamps or to the authorized bank for stamping are unsigned and that no promoter or subscriber has written anything on it by hand.
• The Superintendent returns the copies, one of which is duly stamped, signed, and embossed, showing payment of the requisite stamp duty.

Once the memorandum and articles of association have been stamped, they must be signed and dated by the company promoters, including the company name and the description of its activities and purpose, father-"s name, address, occupation, and the number of shares subscribed. This information must be in the applicant’s handwriting and duly witnessed.

Procedure 5: Get the Certificate of Incorporation from the Registrar of Companies, Ministry of Corporate Affairs (National)

The following forms are required to be electronically filed on the website of the Ministry of Company Affairs:

• e-form 1
• e-form 18
• e-form 32
• Following must be attached to Form 1

1. Scanned copies of the consent of the initial directors.
2. Signed and stamped form of the Memorandum and Articles of Association

The registration fees paid to the Registrar are scaled according to the company’s authorized capital (as stated in its memorandum):

• INR 100,000 or less: INR 4,000. If the nominal share capital is over INR 100,000, additional fees based the amount of nominal capital apply to the base registration fee of INR 4,000:
• For every INR 10,000 of nominal share capital or part of INR 10,000 after the first INR 1,00,000, up to INR 500,000: INR 300; 
• For every INR 10,000 of nominal share capital or part of INR 10,000 after the first INR 500,000, up to INR 5,000,000: INR 200; 
• For every INR 10,000 of nominal share capital or part of INR 10,000 after the first INR 5,000,000, up to INR 1 10,000,000: INR 100; 
• For every INR 10,000 of nominal share capital or part of INR 10,000 after the first INR 10,000,000: INR 50.

The payment of fees can be made offline as well as online.

Schedule of Registrar filing fees for the articles and for the other forms (l, 18, and 32):

• INR 200 for a company with authorized share capital of more than INR 100,000 but less than INR 500,000;
• INR 300 for a company with nominal share capital of INR 500,000 or more but less than INR 2,500,000;
• INR 500 for a company with nominal share capital of INR 2,500,000 or more.

Procedure 6: Make a seal (Private)

Although making a company seal is not a legal requirement for the company to be incorporated, companies require a seal to issue share certificates and other documents.

Procedure 7: Permanent Account Number (PAN)

• Under the Income Tax Act, 1961, each person must quote his or her Permanent Account Number (PAN) for tax payment purposes and the Tax Account Number (TAN) for depositing tax deducted at source.
• The Central Board of Direct Taxes (CBDT) has instructed banks not to accept any form for tax payment (challan) without the PAN or TAN, as applicable.

UTI Investor Services Ltd and the National Securities Depository Limited (NSDL) are authorized to set up and manage IT PAN Service Centers in all cities where there is an Income Tax office.

Procedure 8: Tax Account Number (TAN)

• The provisions of Section 203A of the Income Tax Act require that all persons who deduct or collect tax at the source must apply for a TAN. 
• The section also makes it mandatory for the TAN to be quoted in all tax-deducted-at-source (TDS) and tax-collected-at-source (TCS) returns, all TDS/TCS payment challans, and all TDS/TCS certificates issued.
• The application for a TAN can be made online through the NSDL website (www.tin-nsdl.com) or can be made offline.
• After payment of the fee by credit card, the hard copy of the application must be physically filed with the NSDL.

Procedure 9: Register with the Office of Inspector, Shops, and Establishment Act (State/Municipal)

• A statement containing the employer-"s and manager-"s names and the establishment’s name (if any), postal address, and category must be sent to the local shop inspector with the applicable fees.
• According to Section 7 of the Bombay Shops and Establishments Act,-(1948), the establishment must be registered as follows: –
1. Under Section 7(4), the employer must register the establishment in the prescribed manner within 30 days of the opening of the business.
2. Under Section 7(1), the establishment must submit to the local shop inspector Form A and the prescribed fees for registering the establishment.
3. Under Section 7(2), after Form A and the prescribed fees are received and the correctness of the statement on the form is satisfactorily audited, the certificate for the registration of the establishment is issued on Form D, according to the provisions of Rule 6 of the Maharashtra Shops and Establishments Rules of 1961.

• Since the amendments in the Maharashtra Shops and Establishment (Amendment) Rules, 2003 dated 15th December 2003, the Schedule for fees for registration and renewal of registration (as per Rule 5) is:
1. 0 employees                            : INR 100
2. 1 to 5 employees                     : INR 300
3. 6 to 10 employees                   : INR 600
4. 11 to 20 employees                 : INR 1000 
5. 21 to 50 employees                 : INR 2000
6. 51 to 100 employees               : INR 3500
7. 101 or more employees           : INR 4500

• Hence in the given case the registration fees would be INR 2000, as there are 50 employees In addition, an annual fee (three times the registration and renewal fees) is charged as trade refuse charges (TRC), under the Mumbai Municipal Corporation Act,-(1888).

Procedure 10: Register for Value-Added Tax (VAT) at the Commercial Tax Office (State)

• The authorized representative signing the application must be available at the Sales-Tax Office on the day of application verification.
• The Documents will be verified on submission.
• In addition to Form 101, other accompanying documentation includes:

1. Certified true copy of the memorandum and articles of association of the company
2. Proof of permanent residential address,at least 2 of the following documents:

• Copy of passport
• Copy of driver’s license
• Copy of election photo identity card
• Copy of property card
• Latest receipt of property tax from the Municipal Corporation
• Copy of latest paid electricity bill in the name of the applicant

1. Proof of place of business (for an owner, in the case of Doing Business): Proof of ownership of premises viz. copy of property card, ownership deed, agreement with the builder or any other relevant documents
2. One recent passport-sized photograph of the applicant
3. Copy of Income Tax Assessment Order with PAN or copy of PAN card
4. Challan on Form No. 210 (original) showing payment of registration fee at INR 5000 (in case of voluntary RC) and INR 500 (in other cases).

Procedure 11: Register for Profession Tax at the Profession Tax Office (State)

• According to section 5 of the Profession Tax Act, every employer is liable to taxation and shall obtain a certificate of registration from the prescribed authority. The company is required to apply to the registering authority using Form 1.
• Depending on the nature of the business, the application should be supported with such documents as proof of address, details of company registration number under the Indian Companies Act (1956), details of the head office (if the company is a branch of company registered outside the state), company deed, certificates under any other act, and so forth.

Procedure 12: Register with Employees’ Provident Fund Organization (National)

• The Employees Provident Funds and Miscellaneous Provisions Act (1952) applies to an establishment, employing 20 or more persons and engaged in any of the 183 industries and classes of business establishments.

1. The applicant fills in an application and is then allotted a social security number.
2. The Provident Fund registration focuses on delinquent reporting, underreporting, or non reporting of workforce size.
3. Provident Fund registration is optional if the workforce size is not more than 20.
4. The employer is required to provide necessary information to the concerned regional Provident Fund Organization (EPFO) in the prescribed manner for allotment of Establishment Code Number. No separate registration is required for the employees.

• All eligible employees are required to become members of the Fund and individual account number is allotted by the employer in the prescribed manner.

Procedure 13: Register for medical insurance at the regional office of the Employees’ State Insurance Corporation (National)

• As per the Employees’ State Insurance (General), Form 01 must be submitted by the employer for registration, for the Employer Code Number to be issued.

1. The Employee’s individual insurance is a separate process that is initiated upon the employer’s registration.
2. The employer is responsible for submitting the required declaration form and employees are responsible for providing correct information to the employer.
3. The employee temporary cards (ESI Cards) are issued on the spot by the local offices in many places.

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Trademark Registration Process

Registration of Trade Marks in India

• Registering a trademark an application need be made in the prescribed format for different classes of goods in services and fee payable therefore shall be in respect of each such class of goods or services.
• Trademark registration in India used to take approximately about 18 months.
• It is important to search at the trade marks registry whether any other similar mark is registered or is pending registration.
• It is always recommended to take legal advises from Registered Trademark Attorney.

How to Apply for Registration of a Trade Mark?

• Application for the registration for other than a textile mark or for certification of Defensive mark must be made in triplicate in from TM 1.
• Application must be confined to goods comprised in one class only of the fourth schedule to the rule.
• A representation/ copy of the trade mark should be affixed to the application.
• 5 additional representations/ copies corresponding with the representation of the mark on the application must also accompany the application.
• The additional representation must contain the class and the specification of the goods.
• Name of the applicant, the period of the use, if any of the marks and such other particulars as may from time, be required by the registrar of Trade marks.
• Signed by the applicant or Attorney/Agent of the applicant.
• Where the applicant made for the registration of a series of Trade mark copies of representation to each Trade Mark of the series must accompany the application.
• Always take legal advice from Registered Trademark Attorney for appropriate registration and documentations.

Stages in the Registration Process

• Applicant or his Attorney shall present his application to the Regional office for
• Obtaining a Numbered Copy from Trademark Registry.
• Examination procedure and communication are communicated after submitting application in order for registration.
• Trade Mark Journal will carry the advertisement.
• After three months from the date of advertisement in the journal, if no opposition is filed the application proceeds for registration after paying the prescribed fees and the registration is entered in the Register of Trade Marks.
• Within a period of three months from the date of advertisement in the Trade Mark journal any person can give notice to the Registrar in form TM 5.
• Period of three month can be extended by 1 month by filing request in TM 44 for extension. The copy of the notice is communicated to the applicant and he is required to file a counter statement in form TM 6.
• Applicant had to file counter TM 6 within the stipulated time or the application is deemed to have been abandoned/ rejected.
• Counter should be filed with evidence.
• On completion of evidence, the registrar sends notice for hearing of arguments.
• After completion of arguments the registrar pronounces the order.
• The party aggrieved by the decision of the registrar may prefer an appeal to the High Court.
• If no appeal is filed, the application proceeds for registration of the mark.

Fundamental Principles of Registration

• Descriptive words, surnames and geographical name are not considered.
• Registration of a TM should not interfere with the bona fide use by any person of his own name business etc.
• Prior user enjoys similar rights that are acquired by a person who has registered a mark under the Act.
• Trade mark should not mislead the public as to the origin of the goods.
• Trade mark to be registered shall not cause hardship to any one.
• The life of a trade mark depends on its continuous use; non usage may lead to its eventual death.
• Trade mark, whether registered or unregistered being a property is assignable and transmissible.
• Opposition for granting registration of trade mark may be done even by members of the public.
• The onus of proving a case for registration of trade mark is on the applicant of the trade mark.

Stages for the Registration

An application for registration should contain:

• The name and address of the applicant
• His place of business
• The goods or services in respect of which registration is sought and the classes in which they fall
• Whether the mark is used or proposed to be used and any additional matter is required
• Appropriate office of the Trade Mark Registry.

On receipt a serial number is allotted which is used as a reference number for the application and subsequently for the Trade Mark when registered.

Objection to the Application

The following are some of the objections to the application, which may be raised:

• The application does not comply with any of the formal requirements and procedure under the rules.
• The mark applied for is not a trade mark within the meaning of the statutory definition.
• The mark is devoid of distinctive character or not capable of distinguishing or otherwise prohibited.
• The mark offends Section 11 etc.

Acceptance and Advertisement

• If the applicant or his Attorney satisfactorily meets all the objections raised by the office his application will be advertised in the Trade Mark Journal either as accepted or before acceptance.
• As a condition for acceptance of the applicant, the Registrar may require any amendment for modification of the application to impose any condition or limitation as he may think fit.
• In such an event the grounds for refusal or conditional acceptance has to be recorded.
• The registrar however has powers to withdraw his acceptance subject to certain conditions.

Amendment of application

Section 22 of the Act empowers Registrar to permit the correction of any error in the application or an amendment of the application.

Renewals of Trademarks

• Trademark has to be renewed for further 10 years after 10 years of registration, each time till the owner wish to continue it proprietary.
• Renewals has to be before validity expires or within one year of expiry with penalties.
• Any defaults in renewals beyond one year shall render ‘Lapse of Trademark’.

Flow Chart of Registration Procedure

Trademark Registration Process

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