Wednesday, October 1, 2014

Law And Reguations - Pubic /Private Enforcement

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Undoubtedly that is the common feeling and reaction of one and all at the receiving end; particularly should the quality of the final product, the considerable delay beyond the promised or reasonable expected date of delivery, many legal formalities left uncomplicated, incomplete by the players/ sellers, however reputed or other wise taken to be by the gullible and low aroused buyers, so on, so forth.

Will the UDA and its coterie at the centre and states care to seriously lend ears and spare eyes for the long obtaining startling reality in the so dubbed and ridiculed as “unreal estate”.


ICL



Xtracts

< The principles and norms of corporate governance tend to operate through layers. On the one hand, there is the basic legislation, i.e. the Companies Act, SEBI Act and the like. Then there are specific norms in the form of clause 49 of the listing agreement that are mandatory for listed companies. Finally, there could be voluntary guidelines that exhort companies towards higher standards. That leads to the obvious question of how one can ensure compliance with these rules and norms.

< Despite the need for both methods, private enforcement is popular in certain jurisdictions such as the US where class action suits have performed a significant role in investor protection. In other jurisdictions, public enforcement tends to play a larger role. In this context, a recent OECD report titled “Public Enforcement and Corporate Governance in Asia: Guidance and Good Practices” is useful in as much as it surveys the role of public enforcement in various Asian countries in the context of compliance with corporate governance.

< As far as India is concerned, it is clear that public enforcement has played a more significant role in the development of capital markets than private enforcement, as I have observed in a recent paperas well. SEBI’s emergence as a strong securities regulator over the last two decades coupled with the difficulties in bringing (and taking to fruition) securities actions before Indian courts seem to be the reason behind this phenomenon. Nevertheless, given the added remedies provided to investors in the form of the class action mechanism under the Companies Act, 2013 (section 245), some change may be visible. However, it is unlikely to alter the balance given the pendency before the Indian courts, inordinate delays and exorbitant costs of bringing private securities claims. At the same time, the focus on public enforcement is set to continue as SEBI’s hands have been further strengthened through the Securities Laws (Amendment) Act, 2014. >

<><> 

Sporadic (Tentative)
The write-up concerns but confines itself to some of the facets of relevance to “good governance” in corporate world.  And, as understood, it deals, besides with the aspects of enforcement of enactments, regulatory rules, etc. aimed at /having the objective of “investors’ protection”, the role of “public” and “private” in seeking to and have the objective fulfilled.
Despite being not exactly in the same context, one is provoked to draw attention to another development of a recent origin, as that has something to do with court litigation affecting and afflicting / adversely impacting  the rights and interests of the taxpaying public. In the aftermath of a recently reported SC case the implications of the Writ of the court have come to be discussed and debated in professional circles,- mainly lawyers and CAs,- in fragments and truncated fashion, so to say.
The reference is to the five- member bench judgment quashing the enactment called, National Tax tribunal, as utra vires the Constitution. In the Judgment, the court has, on the grounds  of  the reasoning given, held that, - “We simultaneously hold s. 13(1), insofar as it allows Chartered Accountants to represent a party to an appeal before the NTT, as unconstitutional and unsustainable in law.”

While the ongoing controversy has, as is only to be expected, received a wide but mostly a lopsided coverage in public domain, for a gist of it, anyone intuitively interested may look up the narration in the Blog @ http://vswaminathan-swamilook.blogspot.in/2014/09/sc-on-national-tax-tribunal-imp-messages.html.
May be contd.

Further jottings:
 Measures taken for Protection of Investors- primarily aspiring for personal monetary gains, purely in the field of economic activities, though , only incidentaly, having a contribution to the 'wealth' (in the same self-centric sense) of the Nation 

As distinct from  protecting the tax paying community, creating/ contributing in their own way to the wealth of the Nation, but no positive measures taken , from / against the  greedy (or over greedy) professionals, who again al the time keep are seen to be working for/with own self-centric (-promotional) motives; leading to a break down of the whole legal system, grad- ally but systematically. 

The point for serious noting and remedial action is, - should not the latter , in comparison,  be given the same/equal importance, if not more, with a view to crying a halt to any further   deterioration in the functioning of the legal system - which has been subverted to a sheer 'functional system'.

CROSS Refer:



taxguru.in/.../high-court-advices-restraint-infriction-itat-bar-bench-expu...
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It may be mentioned that Hon’ble Apex Court in the case of M.P. Special Police Establishment vs. State of M.P., 2004 (8) SCC 805, held that :-
“In a situation of this nature, writ court while exercising its jurisdiction under Article 226 of the Constitution as also this Court under Article 136 and 142 of the Constitution can pass an appropriate order which would do complete justice to the parties.”
Hence, by keeping in mind the ratio laid down by the  Hon’ble Apex Court (supra), we modify the impugned order and expunge the reference made by the Tribunal to the Institute of Chartered Accountant of India, and cancelled the cost of Rs.5,000/-, imposed by the Tribunal too. Adverse remark against the petitioner, if any, is also expunged.
We hope that in future such type of incident will not be repeated. It is in the interest of justice to maintain the dignity and decorum of the judicial system and the Tribunal is an essential part of it.

It may be mentioned that Hon’ble Apex Court in the case of M.P. Special Police Establishment vs. State of M.P., 2004 (8) SCC 805, held that :-
“In a situation of this nature, writ court while exercising its jurisdiction under Article 226 of the Constitution as also this Court under Article 136 and 142 of the Constitution can pass an appropriate order which would do complete justice to the parties.”
Hence, by keeping in mind the ratio laid down by the  Hon’ble Apex Court (supra), we modify the impugned order and expunge the reference made by the Tribunal to the Institute of Chartered Accountant of India, and cancelled the cost of Rs.5,000/-, imposed by the Tribunal too. Adverse remark against the petitioner, if any, is also expunged.
We hope that in future such type of incident will not be repeated. It is in the interest of justice to maintain the dignity and decorum of the judicial system and the Tribunal is an essential part of it.
- See more at: http://taxguru.in/income-tax-case-laws/high-court-advices-restraint-infriction-itat-bar-bench-expunge-reference-itat-icai.html#sthash.ZfWLlHLc.dpuf

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