Legal Archives - Business , Financial & Legal Consultant In India

January 3, 2022January 3, 2022

Eligibility Requirements and the Application Process for an NBFC AA License

In 2016, the NBFC Account Aggregator framework was established, with account aggregators facilitating data allocation from various financial sector entities and acting as a consent broker. It entails the transfer of data between financial institutions, but only after the client’s agreement. The RBI had issued master instructions in this regard. Let’s go over the NBFC AA License in in detail.

The Need for an NBFC AA License Collecting disparate data, combining it, and submitting it to a financial institution while applying for a loan can be a time-consuming and perplexing task for an individual. As a result, the concept of NBFC AA was established to assist customers in obtaining a consolidated view of their financial holdings that are distributed across many financial sector authorities.

Account Aggregators are financial entities that allocate financial data from financial information providers to financial information users. The client’s permission is required.

Financial Information Providers– These are entities that give a customer’s financial information in response to a request from another entity.

Users of Financial Data

These are the organisations that acquire user information from providers in order to conduct market research, customer analysis, and so on. Both organisations and individuals are included in this category. These are governed by regulatory bodies such as SEBI, IRDA, RBI, and PFRDA.

What includes Financial Information?

As per the RBI master directions, financial information includes the following:

Different kinds of bank deposits
Debentures
Equity
ETFs
NBFC Deposits;
Bonds; Real Estate Investment Trusts Units
Mutual funds units
Units of AIFs
Tradable Government Securities.

How do I get an NBFC AA licence?

Requirements for Eligibility:

The company applying for NBFC Account Aggregator License should have a net owned fund of 2 crore rupees.
The company should have the resources required to offer such services;
The company should have adequate capital structure;
The company must be having fit and proper promoters;
The management of the company should be such that its general character must not be prejudicial to public interest;
An effective IT system plan should be laid by the company;
The leverage ratio of such company should not be beyond 7.

Procedure:

The company seeking an NBFC AA Licence should apply to the RBI[1]. Such an application should follow the guidelines outlined in Annex 1 of the RBI Master Direction.
Once the RBI is satisfied that the company meets the above-mentioned eligibility standards, it will give in-principle clearance.
The in-principle approval is valid for 12 months, during which time the company must set up a technology platform, enter into legal papers required for operations, and report compliance position to the Bank.
When the Reserve Bank is satisfied that the company is ready to begin operations and has met all of the registration requirements,
When the Reserve Bank is satisfied that the company may begin operations and is in conformity with the registration criteria, it will issue the NBFC Account Aggregator Registration Certificate.

When is the NBFC AA License revocable?

The RBI has the authority to revoke the NBFC AA’s registration if any of the following conditions are met:

The company closes account aggregators’ business;
Where the company is unable to satisfy any condition to which the certificate of registration has been issued;
In the case where the bank feels that the company can no longer hold COR;
The company breaches a condition mandatory for obtaining COR;
Where the company fails to maintain accounts or issue information or disclose information as required by banks;
Where the company fails to submit its books of accounts or other documents for assessment purposes.

What is NBFC AA’s responsibility?

The following are the responsibilities of NBFC AA:

It shall provide services to clients only with their consent; it shall not impede any customer transaction; and it shall not contract in any business other than the business of NBFC AA. It should be noted, however, that permission has been granted for the disposition of investible surplus in non-trading avenues; the information must be shared only with the customer who owns it or to other FIU as sanctioned by the customer according to the terms and conditions of the consent; and it shall have a citizens’ charter that protects customers’ rights.

Consent is required in the operation of an NBFC-AA. NBFC-AA cannot retrieve, share, or transfer any of the customer’s financial data without the customer’s consent. The notion of NBFC AA was created to assist customers in obtaining a consolidated view of their financial holdings that are distributed among many financial industry authorities. The credit approval and authorization process for lending becomes significantly more effective with an NBFC AA License.

November 27, 2020November 27, 2020

Things to remember while filing reply to copyright objection

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Introduction

Copyright happens to be the sole right of ownership of the creator for their piece of work. In order to legalize copyright, registration is a must. While registering, if there are any objections in the claim of ownership or in the event of any discrepancies in the application, the applicant will be duly informed. To the same, the applicant needs to respond to the objection pertaining to copyright. This write up helps you in replying to such a notice.

Method of Registration

The Copyright Act, 1957 and the Copyright Rules, 2013 guide the Copyright Registration procedure in India. Any real or authentic or original artistic endeavor, be it cinematographic film or music composition or literary/dramatic work or sound recording or software, can be sought protection from violation through copyright, however, the work must be the result of your organic creation. The necessary fee has to be part of the application meant for registration. Also, the application should have the essential signatures and Power(s) of Attorney.

As for objections, 30 days waiting period applies, post filing. In case of no objections, the authority will forward the application to a scrutinizer. The registration process comes to an end with the scrutinizer not finding any hiccups in the application.

The whole process can take 8-9 months, depending on objections and discrepancies.

Objections and Inconsistencies

A copyright objection comes up if a third-party files an application saying the work resembles an old or already existing idea belonging to them. Both the parties then want a reply to copyright objection to clarify the issues raised, and get the outcomes in letters. In some cases, the Registrar may call for a hearing where the registration could either be accepted or rejected. The applicant then waits for 30 days of submission for any objection(s) regarding the work.

A copyright discrepancy occurs when the copyright department finds causes to put a query on the application in the form of letters to the applicant in exchange for an explanation during the course of the examination. An objection could be hoisted for a lot of reasons such as no uniqueness or any wrong particulars being identified by the copyright evaluator.

Replying to an Objection/Discrepancy is a must

After a detailed scrutiny, the Registrar tells the applicant about the presence of objection(s), if any, and seeks documents to confront the same. Also, it is mandated by law to file a query to the copyright objection letter. In case of no response, the Registrar could annul the copyright application and term it ‘rejected’. In order to bypass such rejections and get the legal rights to one’s work, a swift response is very essential.

The Response

The feedback to a copyright opposition or discrepancy letter happens to be a legal document. Writing the same needs fundamental legal knowledge and drafting skills. But, there are two manners, to respond – by the creator himself if requisite knowledge and skills needed to provide an explanation regarding their work are there or by getting the services of a legal team to do the same.

We suggest seeking professional help, as the response to an objection/discrepancy notice is a legal document and the ownership is at stake.

However, there is no basic structure with regard to drafting a response to a copyright objection letter, there are some things you should possess:

Attach documents with the reply
Copyright Registration Application Copy
Affidavit for the reply, if needed
Documents substantiating reply
Power of Attorney by the Applicant
Copy of discrepancy letter issued by the Registrar

Depending on whether or not the Registrar is happy with the supporting documents of the response letter, a hearing could be scheduled.

The reply warrants professionalism to the core as the result of the copyright objection can have severe consequences on your personal life. The reply given to copyright objection is only a formality and does not assure the registration of one’s copyright.

Also, while drafting the response, the creator has to check with the relevant department at the Registry to ensure that process is completed quickly. If an objection is filed, it takes up one month more to ascertain whether the copyright can be registered or not. Additionally, as getting copyright is critical to legally prove ownership, utmost caution is needed to ensure good outcome with the Copyright Application. Hence, do not hesitate to avail legal aid whenever required.

May 12, 2020May 12, 2020

What is a Non Disclosure Agreement?

A non-disclosure Agreement is a legal contract stating certain confidential information, and the extent to which it is restricted to the third parties. It can be entered into or with a person or organization.

Confidential information could be anything i.e. Trade secrets, business plan, business methods and strategies, drawings, charts and more. Confidential information also includes software programmes and code.

Advantages of a Non-Disclosure Agreement

Protects Business Secrets

NDA helps protect business secrets and other confidential information. It is a common agreement that is usually signed by every employee of the organization.

Enhances client relationships

Organizations generally let their employees sign NDA to help maintain a strong client relationship.

NDA Procedure

Organizations generally execute agreements to be signed by their employees so that in future if they change the organization they will not disclose any secret information in front of any competitor organization. We help our clients in roaring of the NDA according to the needs. It takes approx. 3-4 days.
In case you would like any changes to the agreement, our team will help in doing that. Two rounds of iteration are included in the original price.

Why BIAT Legal LLP

We deliver all doubts in just 4 business days. And if you are not fully satisfied then it takes another couple of days to keep our clients satisfied to the fullest.
We have a strong team having experience over 5 years who would advise you the best and clear all your queries around the clock. But our motive is to ensure that no client is unsatisfied.

Therefore, we can say that BIAT Legal LLP is a one stop solution for all your legal needs.

April 2, 2020April 2, 2020

What Is Trademark Rectification ?

What is Trademark Rectification?

Trademark rectification is needed when there is a need for any kind of alteration, change, modification or rectification in the registered mark or in the register of trademarks, or rectification of the trademark register by such aggrieved party.

Trademark rectification rights in India is governed by chapter VII of the trademark Act, 1999. Under section 57 of the Trademarks Act, any person who is aggrieved by the entry in the trademark register can file for trademark rectification before the registrar of trademarks. However, in certain cases consequences can be cancellation of trademark registration.

Who can file Trademark Rectification?

It can be filed by the owner of the trademark itself, or
It may also be filed by the party or entity being aggrieved by such entry.

Common grounds for filing Trademark rectification in India

Due to latest knowledge or advancement
Due to non-use of registered trademark for over 5 years by the registered owner.
Due to non-renewal of the original or previous registration of the trademark.
In cases where inclusion of addition of certain more classes of goods or services to the business gamut of the registered trademark.
Conditions which are beyond any more grounds stipulated in section 9 and 11 of the Indian Trademark Act, 1999.
The certain omission of any entry eg, a disclaimer, condition or limitation.
Where the registration is obtained by misrepresentation of facts, similar to an earlier mark registered and lacks sufficient cause for registration.
Cases where mark was wrongly remaining on the register and causing or likely to cause confusion.
When the renewal fee has not been paid.

Procedure for Trademark Rectification In India

Procedure for Trademark rectification in India includes following hings-

In cases where trademark registry has marked the trademark application as Formality check or send back to EDP, therefore in this case option of rectification and of being is being given and it requires to be resubmitted. In such cases, rectification deed is required to be prepared to address all the concerns of the trademark examiner-

TM-O form is required to be filled in order to file trademark rectification.
Make sure that your trademark rectification application is a clear and crisp statement of grounds related to the application.
You must support your arguments with strong evidence to support rectification of the specified trademark.

We have immense and diversified experience in handling Trademark rectification cases and shall suggest more professional ways to avoid trademark rectification.

April 1, 2020April 1, 2020

Vinubhai Haribhai Malaviya and Ors. vs State of Gujarat

A recent judgement of the Supreme Court of India on criminal law passed by the quorum of justices Rohinton F nariman, Surya Kant and Ramasubramanium. The judgement holds that a power exercised by the magistrate under section 156(3) of the Cr.Pc. is post cognizance.

The question arises by the Supreme court that once Chargesheet is filed by the police after doing proper investigation, then whether Magistrate has the power to pass an order to the police officials for further investigation under section 173(8) and if so then upto what stage of criminal proceedings?

Different views were given by different judges which also creates doubt in the judicial minds. Then after a near exhaustive survey of the conflicting decisions, the Bench in malviya held in favour of the view that a magistrate has power to direct further investigation by an investigating agency post cognizance on a police report right up to the stage of framing of charge that interpreted section 173(8) crpc restrictively. This view was acceptable as it was undoubtedly redounds in the interest of justice.

It is pertinent to note that the Bench in malviya was concerned only with the question whether post cognizance a Magistrate could direct further investigation under section 173(8). Whether a magistrate exercising power unders section 156(3) was acting pre cognizance or post cognizance was not at all the issue in this case.

Thus it is undoubtedly correct that section 156(3) and 173(8) operate at a different stages of investigation like section 156(3) operates at pre cognizance stage whereas 173(8) operates at the post cognizance stage as it is intended to supplement a completed investigation.

It is pertinent to note here that the power of magistrate under section 173(8) is not derived from his power unders section 156(3) but is a distinct and independent power.

This proposition regarding the meaning of “taking cognizance” has been often repeated in many apex court judgment. Had the bench of Malviya been cognizant of this well established proposition of law, it is doubtful if it would have arrived at the unfortunate finding in paragraph 26 of the judgement.

“The power unders section 156(3) can only be exercised at pre cognizance stage was an erroneous finding in law”.

Judgement

Therefore it was held in the case that a three judge bench of the Supreme Court Of India virtually overruled a 43 year old precedent and held that magistrate can invoke power under section 156(3) of the code of criminal procedure even at the post cognizance stage. The Bench headed by Justice RF nariman held that this judgement was rendered without advertising to the definition of “Investigation” in section 2(h) of the crpc. It was observed that the finding in the law in the said judgement that the power under section 156(3) crpc can only be exercised at the pre cognizance stage is erroneous.

May 25, 2019May 25, 2019

How To Register Law Firm in India

A lawyre who wish to open his firm shall apply for its registration first. Only lawyers who are duly admitted as advocates and who are duly enrolled in a State bar can set up a law firm.

A person may be admitted as an advocate on aState roll when following things are fulfilled-

He must be a Citizen of India.
Has completed the age of 21 years.
Has obtained a degree of law from recognized university which is recognized by Bar Council of India.

In what form should a Law firm function- Sole proprietorship, Partnership or LLP

Sole Proprietorship- Single person brings in the Finance and manges all important function. Here since there is no distinction between individual and the Legal entity, the individual’s assets is liable to pay off any debts that may incur in future. Registering of this is very simple task as it does not contain too many compliances. A Bank account may be opened in the name of the firm which requires a letterhead of the firm with its address of operation, letter from CA regarding the nature of the business.

Partnership Firm- When people come together to bring their resources, knowledge and most importantly connections and clients, they may decide to form a Law firm in partnership. The profit sharing is decided upon by the Partners mutually relying on various factors like operations, management etc.

General Partnership- This is considered as the easiest form of Business. The partners have unlimited liability which means that their assets are personally liable for the debts of the firm. A Partnership is required to registered but most importantly it is also a wise option so as to give it a legal standing.

Steps to getting Partnership Firm Registration-

Partnership deed with all essential details like name of the firm, details o the partners, capital contribution, profit sharing etc.
PAN card to be applied for in the name of Proprietorship firm.
A bank account to be opened in the name of Partnership Firm

Documents required for Registration

Application for Partnership firm in Form 1.
Certified copy of Partnership deed
PAN card and identity proof of the partners.
Pan card of the partnership firm
Proof of registered office

Limited Liability Partnership- It offers more benefits of both private Limited Company and general partnership. One partner is not liable for the conduct of other partners.

Steps involved in LLP Registration

Name Approval
Obtaining the Digital Signature Certificate, DIN Number.
Obtaining PAN number
Filling up the incorporation form with supporting documents

Documents Required

For registered office any utility bills or scan copy of rent agreement with NOC from the owner.
From Partners

Affidavits
PAN card or passport of election id.
Latest bank statement/ telephone or mobile bill.
Voter id/ Driver’s License.
Scan copy of signature.

May 3, 2019

Types of Trademark Application in India

Before the Advent of new TM rule, 2017, there were separate applications which had to be filled for each of the below mentioned Types of trademarks and there were separate forms for single class and multi-class applications, also depending upon whether priority was claimed or not. The type of the application would depend upon factors like the type of mark that is to be filled, single or multi class, priority or not, an application could be fro-

Normal Trademark- A normal Trademark Application to be filed for a word, Device or any other combination thereof.

Certification Mark- A certification mark is defined under Section 2(e) of the Act, “Certification Trademark” means a mark capable of distinguishing the goods or service in connection with which it is used in the course of trade which are certified by the proprietor of the mark in respect of origin, material, mode of manufacture of goods or performance of service not so certified and registrable as such under chapter IX in respect of those goods and services in the name, as proprietor of the certification trade mark, of that person. In short it is a mark certifies the characteristics like quality, origin etc of other goods or services. Example ISI mark.

Collective mark- As the name suggests, where a mark belongs to a collective group or association of persons it is called as collective mark. Example Confederation of Indian Industry (CII).

Series mark- Where the trademark applied applied for, is in the form of a series. In other words, the primary element of a mark might be used used/ intended to be used in several forms/ways by the proprietor and instead of filing separate applications for each, it is possible to file them as a series. For example, McDonalds has series mark incorporating the term “MC” +Like Mcchicken, Mc Cafe, MS Donuts etc.

Currently all the above applications could be filed under form TM -A.

Generally a Trademark application can be filed on the following basis-

Indian Application- this is the Application form directly filed in one of the IP offices in India and also Online Application can be filed.

International Applications- India Acceded to the Madrid Protocol and with effect from July 8, 2013 it is possible to designate India in an international application. Similarly it is also possible to file online an international application under the Madrid Protocol throgh the Indian Trademark Office.

May 1, 2019

Requirements for your Design Registration

Novelty

In order to be able to protect your Design, it must be new. A design is considered as new if no other identical design has been made publicly accessible before the filing date or priority date. A Design is considered as identical to another Design if they only differ in unimportant respects.

Publicly accessible

A Design Is considered to be publicly accessible if it has been made public in connection with a registration or in some other way. The same applies if your Design has been displayed, used in the professional capacity or become known in some other way.

However, your design is considered to be publicly accessible if Trade groups in the sector (within the European Economic Area) could not reasonably, in their normal business operations, have known about the publication of Design.

Novelty Time Limit

Neither is a Design considered to have been made publicly accessible if it has been made in Public, or in some other way become known, by the Designer within a period of 12 months before the Filing date or priority date.

Individual character

In Order to protect your Design, it must also have individual character. A Design has individual character if the overall impression differs from previously known Designs. It is not possible to protect your designs that is so simple and common place that it should be available for everyone to use. For Example, if something is made simply of geometrical shapes or simple striped and checked patterns. As a rule, it is not enough to just redesign an old Design.

Other requirements

It is not possible to register a Design, that without permission includes:

A nation coat of arms, national Flag or other State Emblem.

A national control or guarantee designation, another designation that refers to swedish state and as such gives the design an official character, a Swedish municipal coat of arms, an international Designation that is protected according to the act on the protection of coats of arms and certain other official designations or something that can easily be mistaken for a coat of arms, flags, emblem or Designation.

No Design that are contrary to morality or public order be registered.

Important to consider

BIATConsultant at any time can revok Design protection after opposition if it is found that the design, without permission, includes someone else’s

Protected company
Trademark
Portrait
Family Name
Artist Name
Copyright protected work or something that infringes someone else’s Copyright

April 6, 2019

How To Remove Disqualification Of Directors

Over last few years MCA or Ministry of Corporate Affairs has disqualified many of the Directors for not performing or meeting the compliance i.e. Rules or regulations mentioned under Companies Act, 2013. However, you can obtain you position back as the Director of the Company. MCA has also deactivated their Director Identification number, so to revive back their is one scheme which is introduced by the MCA i.e. “ Condonation of Delay Scheme”, that provides relief to the Directors by aiding them with the provisions to remove Director Disqualification.

Reasons for Director Disqualification

There are two reasons for Director Disqualification and they are as follows-

The Directors haven’t filed the annual return or Financial statements from last three consecutive years.
The Directors have not repaid the debts he has taken or has failed to do so from 1 year.

Once a Director is disqualified, then he won’t be able to become a Director of any company for at least 5 years, however, condonation of delay scheme can help.

What is Condonation of Delay Scheme

According to section 8 of the companies Act, Directors of the company must file annual returns or financial returns every year, and if they fail t do so from the last 3 continuous consecutive years, then they are declared as disqualified Directors. The condonation of delay scheme then became operational courtesy of the appeal of aggrieved Directors. Under this scheme the Directors are given Directors Identification Number (DIN) to file the deferred tax returns over the course of next few months, and after the scheme still they are not able to file the returns then they are declared as disqualified for the next 5 years.

How does scheme work?

When a Director is disqualified, they won’t be able to become Director of any company for the next 5 years. Therefore the company can appoint temporary Directors to execute the resolutions to file and submit the financial statements and annual returns. These Directions are given new DIN and DSC for the time being to file all the annual returns. Furthermore, thees new Directors who shall pass the resolution to pass the resolution to re-hire the disqualified ones and passing the request to the Registrar of companies.

Director disqualification removal process

Drafting a written application
Filing the Director disqualification matter with the High court.
The Advocates appear before the high court regarding Director disqualification.
Obtaining the final order from the High court.
Filing all the financial and annual compliances with the Registrar of companies.
Activation of DIN and removal of director disqualification.

What are the Documents required for Director disqualification?

There is one thing to remember that there is a way to remove Director disqualification

Without the condonation of delay scheme (CODS). However CODS to make the process quite streamlined.

With CODS, documents required are as follows-

Overdue Documents
E-Cods

Without CODS, documents required are as follows-

If company was active

An Application before the National Company Law Tribunal
The documents that are overdue
E-cods on MCA 21 portal.

If company was inactive

Petition to the High court

Overdue documents
E-cods on MCA 21 portal

BIATConsultant.com is #1 business , financial and legal consultant in India who can aids in in company formation in India as well as providing legal consultancy service for removal of disqualification if directors .

April 6, 2019

Importance of Design registration in India

The term Industrial designs, is known as the Design, the surface pattern, or the shape or pattern associated with the product or an article which is unique in nature. The main motive of the Design registration is to give protection to the product which are creatively designed and is also governed by the design Registration Act, 2000.

The Designs Acts 2000, has defined the term design under section 2(d), as only the features of shape, configuration, pattern, ornament or component of lines or colours applied to any articles whether in two dimensional or three dimensional or in both forms, by any Industrial process or means, whether manual mechanical or chemical. Separate or combined in the finished article for which can be judged by an eye, but does not include any mode of principal or construction or anything which is in substance ain a mere mechanical device.

Section 4 of the designs Act, 2000 provides that the Design of any article or product should be appealing to eye and should not be in public domain prior to its registration, otherwise it cannot be subject to registration. The Design of a any article or product should be new and should not b in prior use as it would destroy the design’s novelty. And Design should be in a tangible form.

The registration Designs in india confers on the Applicant the exclusive right against the unauthorized copying or limitation of his Designs by third parties. Registration of a Design provides for a distinctive identification among the consumers and helps the applicant in boosting their sales and and goodwill in the market. A Design Registration f=gives the applicant an exclusive right to take action among the infringer, and stop piracy of the design. Corree houses are increasingly becoming aware of the hidden value of Intellectual property. They have realized that registration of their product design will not only give them an edge over their competitors but that registration of a Design is relatively inexpensive and easy procedure.

Registration of a design offers to secure a filing date as the priority date, for any corresponding design applications, one may have in other countries within the following six months. This helps in establishing the Design Overseas. A Design registration increases the market awareness of a product and in turn enhances the reputation of the company in the market. This helps in improving in the competitiveness of the product as it dries third parties from imitating or copying a registered design.

Registration of design is becoming increasingly popular, as the indian courts are adjudicating in relation to Design protection and registration efficiently and in a time bound manner. It has been realized that clever application of design rights can extend a product’s value considerably in the market. With Design registration new avenues have opened up in a commercial market and investors are ready to invest in new innovation and technologies. The Design Act, 2000 have played a pivotal role in promoting technological innovation and Design registration has made the consumer aware of the various innovations in the market.