What cannot be a trademark?

What is a trademark?
The word, trademark means legally registered for representing a product or company . When competition is increasing, it becomes almost essential to differentiate your products or services from others.
The strive to stay in the market makes one concerned about their product’s quality. Trademark Registration concept may be quite new for Indians.
The Trade Marks Act, 1999 provides a platform for the registration of trademarks of goods and services, also provides the unique identification of the product and thereby also providing the manufacturer relief in case of infringement of his trademark.

Certificate Mark
This mark basically identifies the origin, material, quality, and characteristics of goods and services offered by a manufacturer from his competitors. It is also used in assessing the worth of labor in manufacturing goods or services.

Collective Mark
These marks differentiate the members of a collective group, which can be a cooperative organization or an association.

What cannot be a trademark?
Few are the points for refusal in India –


Distinctive Nature – The measure of being unmistakable is considered bad in the Indian law. The sign of an item or administration which isn’t of an unmistakable sort would not be a trademark.

Names / Surnames – Names or surnames cannot be used as a trademark in India if they do not possess a distinctive character.

Numerical – Numbers can’t be used to be utilized as a trademark, as such. In specific cases, the courts in India have reasoned that numbers don’t have a particular nature connected to them, consequently, not fitting the bill to be a trademark.

Geographical Location – Geographical locations cannot be used as trademarks.

Color – The Trade Marks Act does not specifically refuse the usage of color.

Sound – Melodic notes as melodic documentations are acknowledged as trademarks in India, yet clamors, for example, pooch woofing can’t be a trademark.

Smell – It is difficult to distinguish between different smells. Smell cannot go through the process of Trademark Registration in India.

If you want to Apply for Trademark Registration, you can go with Apply Trademark.

What is Foreign Tax Credit (FTC)?

If you have paid or accrued foreign taxes in a country or specified territory outside India, by way of deduction or otherwise, in the year in which the income corresponding to such tax has been offered to tax or assessed to tax in India, you may be able to take either a credit or an itemized deduction for those taxes.

Characteristics of FTC

• FTC is a method for elimination of double taxation.
• Credit for the amount of any foreign tax paid in the source country against the taxes to be discharged in the residence country.
• In India income tax system, tax Residents and Ordinary Residents (ROR) on worldwide income and offer FTC to tone down the potential for double taxation of income.
• It can be adjusted against tax, cess and surcharge payable under the Income Tax Act.
• It cannot be adjusted against interest, fee or penalty payable under the Act.
• It is not available in case foreign tax or part thereof is disputed by the assessee in any manner.

Conditions to avail FTC
For a tax payer to be eligible for FTC:

• He must have made a payment to a foreign government;
• The payment must be towards an income tax, or a tax in lieu of an income tax; and
• It is permissible in the year where income is offered in India by the assessee within six monthsfrom the end of the month.

Regulations governing FTC

• Section 91includes the tax credit for countries where no DTAA is in force.
• Section 90includes the tax credit for countries where India has entered into a Double Tax Avoidance Agreement (DTAA).
• Rule 128along with Form 67 was introduced in 2016 and came into force on 4.2017

Before the introduction of Rule 128 and Form 67, these provisions were there in the Income Tax Act but no specific rules governing mechanism for determining foreign tax credit.

Unilateral tax credit system in India (Section 91 of Act)

Preconditions

• Available to a tax resident of India.
• Available in respect income accruing or arising outside India.
• Actual tax payment in foreign country on such income.
• Tax liability resulting in tax payment in India (i.e. income is actually doubly taxed).
• No DTAA with the foreign country in which tax is paid.

Quantum of relief

• Proportionate relief at lower of ‘Indian tax rate’ or ‘foreign tax rate’.
• Not full credit.

Bilateral agreements elimination of double taxation (Section 90 of Act)

Two methods envisaged by Model convention – Choice left to the treaty partners.

Exemption method	Credit method
Focus is on income.	Thrust is on taxes and not on income.
Full exemption is granted. Doubly taxed income do not form part of resident country tax computation.	Full credit is granted. Deduction allowed for taxes paid in the source country.
Exemption with progression. Resident country considers doubly taxed income only for the purposes of rate determination.	Ordinary credit is granted. Deduction quantified with relevance to resident country tax on double taxed income. Most of the DTAAs provide for this model of relief.
Taxes retained at the level imposed by source country.	Equality in treatment of capital investment whether made within or outside resident country. If the source country has lower tax rate, overall taxes are increased to that prevailing in the resident country while if source country has higher tax rate, credit is restricted to taxes prevailing in resident country.
Losses incurred in source country can be adjusted.	Losses incurred in source country can lead to “double dip”.

Form-67

Documents required to claim FTC

• Form 67 fully verified and certified by a Charted Accountant (CA) on or before furnishing the tax return.
• Produce a certificate issuedby the concerned tax authority of the foreign country or the specified territory or from the person who is responsible for the deduction (ex. employer) that includes (i) Nature of foreign income and (ii) the amount of TDS.
• A proof of payment of foreign tax.

Few key points

• Form 67 is to be filed electronically.
• It is to be filed on or before due date of filing Income Tax Return.
• It is available on the e-filing portal itself.
• Electronic Verification Code (EVC) or a Digital Signature Certificate (DSC) is required to be filed.
• It should be submitted before filing of Income Tax Return.

This is a complex compliance; you can seek help from our tax experts to claim your FTC.

Visit: Company formation in India

What is Foreign Tax Credit (FTC)?

If you have paid or accrued foreign taxes in a country or specified territory outside India, by way of deduction or otherwise, in the year in which the income corresponding to such tax has been offered to tax or assessed to tax in India, you may be able to take either a credit or an itemized deduction for those taxes.
Characteristics of FTC

• FTC is a method for elimination of double taxation.
• Credit for the amount of any foreign tax paid in the source country against the taxes to be discharged in the residence country.
• In India income tax system, tax Residents and Ordinary Residents (ROR) on worldwide income and offer FTC to tone down the potential for double taxation of income.
• It can be adjusted against tax, cess and surcharge payable under the Income Tax Act.
• It cannot be adjusted against interest, fee or penalty payable under the Act.
• It is not available in case foreign tax or part thereof is disputed by the assessee in any manner.

Conditions to avail FTC
For a tax payer to be eligible for FTC:

• He must have made a payment to a foreign government;
• The payment must be towards an income tax, or a tax in lieu of an income tax; and
• It is permissible in the year where income is offered in India by the assessee within six monthsfrom the end of the month.

Regulations governing FTC

• Section 91includes the tax credit for countries where no DTAA is in force.
• Section 90includes the tax credit for countries where India has entered into a Double Tax Avoidance Agreement (DTAA).
• Rule 128along with Form 67 was introduced in 2016 and came into force on 4.2017

Before the introduction of Rule 128 and Form 67, these provisions were there in the Income Tax Act but no specific rules governing mechanism for determining foreign tax credit.


Unilateral tax credit system in India (Section 91 of Act)
Preconditions

• Available to a tax resident of India.
• Available in respect income accruing or arising outside India.
• Actual tax payment in foreign country on such income.
• Tax liability resulting in tax payment in India (i.e. income is actually doubly taxed).
• No DTAA with the foreign country in which tax is paid.

Quantum of relief

• Proportionate relief at lower of ‘Indian tax rate’ or ‘foreign tax rate’.
• Not full credit.

Bilateral agreements elimination of double taxation (Section 90 of Act)
Two methods envisaged by Model convention – Choice left to the treaty partners.
Exemption method
Credit method
Focus is on income.
Thrust is on taxes and not on income.
Full exemption is granted. Doubly taxed income do not form part of resident country tax computation.
Full credit is granted. Deduction allowed for taxes paid in the source country.
Exemption with progression. Resident country considers doubly taxed income only for the purposes of rate determination.
Ordinary credit is granted. Deduction quantified with relevance to resident country tax on double taxed income. Most of the DTAAs provide for this model of relief.
Taxes retained at the level imposed by source country.
Equality in treatment of capital investment whether made within or outside resident country. If the source country has lower tax rate, overall taxes are increased to that prevailing in the resident country while if source country has higher tax rate, credit is restricted to taxes prevailing in resident country.
Losses incurred in source country can be adjusted.
Losses incurred in source country can lead to “double dip”.
Form-67
Documents required to claim FTC

• Form 67 fully verified and certified by a Charted Accountant (CA) on or before furnishing the tax return.
• Produce a certificate issuedby the concerned tax authority of the foreign country or the specified territory or from the person who is responsible for the deduction (ex. employer) that includes (i) Nature of foreign income and (ii) the amount of TDS.
• A proof of payment of foreign tax.

Few key points

• Form 67 is to be filed electronically.
• It is to be filed on or before due date of filing Income Tax Return.
• It is available on the e-filing portal itself.
• Electronic Verification Code (EVC) or a Digital Signature Certificate (DSC) is required to be filed.
• It should be submitted before filing of Income Tax Return.

This is a complex compliance; you can seek help from our tax experts to claim your FTC.

**Section 8 Company Formation** (http://ajsh.in/blog/section-8-company-formation/)

In India, a non-profit organization can be registered as a Trust, by making a Trust deed or as a Section 8 Company, under the Companies Act, 2013. According Indian Companies Act, 2013, a section-8 company can be established for promoting commerce, art, science, sports, education, research, social welfare, religion, charity, protection of environment or any such other object, provided the profits, if any, or other income is applied for promoting only the objectives of the company and no dividend is paid to its members.

Procedure for formation of section 8 company is listed below:
1. Digital Signature Certificate (DSC) & Directors Identification Number (DIN): The only secure and authentic way that a document can be submitted electronically is DSC. All filings of e-forms on MCA Portal are required to be filed with the use of DSC of the authorized signatory. Further, DIN for all the proposed Directors of the Company must be obtained. For obtaining DIN an application in Form No. DIR – 3 should be filed on MCA Portal with documents attested by a practicing professional.

2. Name approval: By submitting an application in Form – INC 1, applicant can obtain approval for selected names from the Registrar of Companies (RoC). The Applicant can give maximum six names in order of preference. The name once approved by the authority is valid for sixty days. The name once approved by the authority is valid for 3 months. Name approval generally takes 1-2 business days.

3. Main instrument: After obtaining name approval, constitutional documents i.e. Memorandum of Association (MOA) and Articles of Association (AOA) is to be drafted and subsequently filed with the RoC along with the forms and other necessary documents stated below:

• Affidavits
• Consent Letters
• Certificate of Compliance from a practicing professionals
• Subscription pages of MOA & AOA– Both documents shall be signed by each subscriber who shall mention his name, address, description and occupation, if any, in the presence of at least one witness who shall attest the signature and shall likewise sign and add his name, address, description and occupation, if any. The witness shall be a practicing professional

4. Issuance of license with registration fee: For Section 8 company license, promoter has to file E-Form INC 12 accompanied by:

• MOA and AOA
• A declaration confirming the application by a practicing Company Secretary
• Names, addresses, occupation and descriptions of the promoters as well as Board Members
• A statement showing details of assets & liabilities as on date with the application
• Estimated future annual income and expenditure, specifying the source of income and object of expenditure
• A statement giving brief description of work, if any, already done by the association
• A statement specifying briefly the grounds on which the application is made
• A declaration in prescribed form on non – judicial stamp paper by each person making an application
• A letter of authority with payment of prescribed fee

5. Other requirement: Following forms are to be filed with the RoC after issuance of license:

• Form INC – 7 for declaration of compliance with the requirements of the Act on application for registration of a company;
• Form INC – 22 for notice of situation of registered office;
• Form DIR – 12 for appointment of directors of the company; and
• Subscribers and proposed directors may delegate their authority to a person(s) to carry out appropriate change(s) as suggested by the RoC in any of the incorporation papers that have been filed.

6. Clarifications / additional Information required by ROC: Documents submitted for the purpose of incorporation are thoroughly reviewed by the RoC. RoC may require certain clarifications, if required. The person authorized shall present clarifications with Roc as needed.

7. Certificate of Incorporation: After providing clarifications, the Certificate of Incorporation is issued by the RoC along with a unique Company Identification Number (CIN) and the Company is deemed to be incorporated from the date of certificate issued. Consecutively, company may apply for other tax and regulatory registration as may be required to run the business smoothly like PAN, TAN, Bank account, etc.

8. Subscription money: A new bank account solely at the name of the company newly incorporated shall be opened by the Board of Directors and the Subscribers. Further to that, they shall deposit their subscription money in bank account to help the company raise initial capital to start its business.

Minimum Requirements for Section 8 Company:
1. At least 2 shareholder and 2 Director (both can be the same person)
2. At least one Director shall be resident in India
3. No Minimum capital required
4. PAN is a mandatory requirement in case of Indian nationals
5. Identity Proof (Voter ID/Aadhar Card/Driving License/Passport); Passport is mandatory requirement for proof of identity in case of foreign nationals
6. Proof of Residence
7. Registered utility proof that is any office address proof
8. Any documents establishing the ownership such as sale deed / house tax receipt along with no objection certificate, in case the premises are owned by a Director and Promoters


For further queries, click here!www.newcompanyregistrationindia.com/contact-us.php

Private Ltd, LLP or Public Ltd, which to choose when going for New company registration in India

Fortunately, the new rules and regulations are easier when it comes to start-up a new business in India. Also, there are hassle free new company registration service providers available in India who take care of A to Z of forming and registration of the company. In this post, we will touch upon various forms of new company registration In delhi presently available and which is best suited for your business.

To start with, below mentioned is explanation for new company registration in Gurgaon that are done in India:

Sole Proprietorship:The sole proprietorship is the simplest business form under which one can operate a business. The sole proprietorship is not a legal entity. It simply refers to a person who owns the business and is personally responsible for its debts.

When to incorporate: However, after the introduction of the concept of One Person Company. It is not recommended to form a proprietorship in India.

Limited Liability Partnership: Partnerships when given the feature of limited liability, the LIMITED LIABILITY PARTNERSHIPS came into picture. LLP is a separate legal entity and which can be formed in India by minimum of two persons with a motive of earning profit.

When to incorporate: LLP enjoys the benefits of private limited company and traditional partnerships, therefore, because of increasing compliance in private limited company, it is recommended for start-ups to incorporate LLP if they are not planning to raise investments in future.

Partnership: A business organization in which two or more individuals manage and operate the business. Both owners are equally and personally liable for the debts from the business. Partnerships are easy to form. There is no minimum capital requirement. Only two people are needed to incorporate the partnership.


Having any Query? Please Click Here

A Comprehensive Guide for Incorporation of One Person Company

Here is step-by-step guide for starting your company individually the understanding of an OPC, the benefits of incorporating it and the legal formalities in its formation.
As per the Companies Act,1956, a Public Ltd Company requires at least 7 members or shareholders wherein a Pvt Ltd Co requires to have at least 2 members. Hence, a One Person Company was never allowed to be formed in our country earlier. However, under the provisions of the Companies Act 2013, Sec 2(62), One Person Company (OPC) is being allowed to form.

One Person Company means a company which has only one member. It is important to note that Section 3 classifies OPC as a Private Company for all the legal purposes with only one member. All the provisions related to the private company are applicable to an OPC, unless otherwise expressly excluded. In case of OPC, though it is true that the One Person appears to be like sole proprietor his liability to the debtors of the Company is limited to the shareholding of the company and his personal assets are never attached for payment of the company’s liability, which in case of Proprietorship never happens.

Steps to be followed to Incorporate One Person Company (OPC)

• The director is firstly required to obtain a Digital Signature Certificate [DSC] for the proposed Director(s).
• He is then required to obtain a Director Identification Number [DIN] for the proposed director(s).
• Thirdly, they are supposed to select a suitable Company Name and then make an application to the Ministry of Corporate Office for the availability of name.
• The fourth step is to Draft a Memorandum of Association and the Articles of Association [MOA & AOA].
• The fifth requirement is to sign and file various documents of the OPC including MOA & AOA with the Registrar of Companies electronically.
• The director is required to pay the Requisite fee to Ministry of Corporate Affairs and also as Stamp Duty.
• The seventh step is to scrutinize the documents at Registrar of Companies [ROC].
• Lastly, he is required to obtain the receipt of Certificate of Registration/Incorporation from ROC.

If you have any additional questions regarding this article Click here

Private Ltd, LLP or Public Ltd, which to choose when going for New company registration in India

Fortunately, the new rules and regulations are easier when it comes to start-up a new business in India. Also, there are hassle free new company registration service providers available in India who take care of A to Z of forming and registration of the company. In this post, we will touch upon various forms of new company registration In delhi presently available and which is best suited for your business.

To start with, below mentioned is explanation for new company registration in gurgaon that are done in India:

Sole Proprietorship: The sole proprietorship is the simplest business form under which one can operate a business. The sole proprietorship is not a legal entity. It simply refers to a person who owns the business and is personally responsible for its debts.

When to incorporate: However, after the introduction of the concept of One Person Company. It is not recommended to form a proprietorship in India.

Limited Liability Partnership: Partnerships when given the feature of limited liability, the LIMITED LIABILITY PARTNERSHIPS came into picture. LLP is a separate legal entity and which can be formed in India by minimum of two persons with a motive of earning profit.

When to incorporate: LLP enjoys the benefits of private limited company and traditional partnerships, therefore, because of increasing compliance in private limited company, it is recommended for start-ups to incorporate LLP if they are not planning to raise investments in future.

Partnership: A business organization in which two or more individuals manage and operate the business. Both owners are equally and personally liable for the debts from the business. Partnerships are easy to form. There is no minimum capital requirement. Only two people are needed to incorporate the partnership.

Having any Query? Please Click Here