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VOLUME I ISSUE III Published by Harbinger INTERNATIONAL JOURNAL OF LAW & MANAGEMENT STUDIES ISSN-2455-2771 | Indexed in IIJF, ROAD, SIS | Impact Factor: 2.145 (IIJF) VOLUME I ISSUE III JUNE 2016 Published by Harbinger INTERNATIONAL JOURNAL OF LAW & MANAGEMENT STUDIES (ISSN-2455-2771) VOLUME I ISSUE III | Indexed in ROAD & Scholarly Open Access STUDENT EDITORIAL BOARD 1. Sameer Avasarala, Editor-in-Chief 2. Samiya Zehra, Advisor 3. Shashank Kanoongo, Head, Law Wing 4. Nitesh Krishna, Head, Management Wing 5. Sanjeet Choudhary, Associate Editor 6. Aishwarya Dhakarey, Editor 7. Pranahita Srinivas, Editor 8. Sumedha Sen, Editor 9. Mohit Kumar Gupta, Editor ADVISORY BOARD 1. Adv. Anantha Krishna, High Court of Hyderabad 2. Adv. Shravanth Arya Tandra, Karnataka High Court 3. Dr. Dhiraj Jain, SCMS, Pune 4. Dr. Lokanath Suar, G M Law College, Puri 5. Dr. Sudeepta Pradhan, ICFAI Business School, Hyderabad 6. Prof. Sharmila Devi, SCMS Pune 7. Dr. Monika Jain, Amity Law School, Delhi ii INTERNATIONAL JOURNAL OF LAW & MANAGEMENT STUDIES (ISSN-2455-2771) VOLUME I ISSUE III | Indexed in ROAD & Scholarly Open Access “If India ever finds its way back to the freedom and democracy that were proud hallmarks of its first eighteen years as an independent nation, someone will surely erect a monument to Justice H R Khanna of the Supreme Court.” THE NEW YORK TIMES ON JUSTICE KHANNA This issue is dedicated to one of the best jurists India has ever known Justice Hans Raj Khanna (1912-2008) A Tribute to the Democratic Spirit in India Justice Khanna, known for his judgments that form the basis of the modern Constitutional Law in India, accredited with the formulation of the Basic Structure in Kesavananda Bharti’s case and for upholding the principles of Liberty and Democracy in the darkest hours of Indian Democracy during the Indian Emergency Era. Justice H.R. Khanna emphasized on the power of dissent as seen in ADM Jabalpur’s case. The act of not supporting the Government-in- place during the emergency costed Justice Khanna the Chair of the Chief Justice of India. He is even today regarded as the True Champion of Human Rights in India. iii INTERNATIONAL JOURNAL OF LAW & MANAGEMENT STUDIES (ISSN-2455-2771) VOLUME I ISSUE III | Indexed in ROAD & Scholarly Open Access CONTENTS EDITORIAL NOTE vii I. TAX IMPLICATIONS ON MERGERS & ACQUISITIONS VIS-À-VIS CROSS-BORDER MERGERS Aayushi Singh 8 II. NJAC AND THE LEGAL BATTLE: AN ANALYSIS Aleena Maria Jose 20 III. LIABILITY IN NUCLEAR DISASTERS IN INTERNATIONAL LAW Anshika Shukla, Priyavrat Parashar 27 IV. INDIA’S PATENT LAW: COMPLEXITY OF DISPUTE & GLOBAL ECONOMICS Ashutosh Jain 35 V. BIOPICS: A CONTEXTUAL, SOCIOLOGICAL, LEGAL ANALYSIS OF BIOGRAPHICAL MOTION PICTURES IN INDIA Chandana Arval, Chunky Agarwal, Tanay Agarwal 51 VI. CHARACTER MERCHANDISING IN TRADEMARKS Chandrika Tewatia 60 VII. CONSTITUTIONALITY OF CORPORATE SOCIAL RESPONSIBILITY Deepak Shukla 71 VIII. WHEN TRADEMARKS DECEIVE & BUYERS SPECTATE: A STUDY OF TRADEMARK LAW AND INDIAN CONSUMERS Jonnavithula Gayatri Anugha, Ujwal Prabhakar Nandekar 80 IX. TRADITIONAL KNOWLEDGE OF JEEVANI: A CASE STUDY Jaya Steffi Minz 88 iv INTERNATIONAL JOURNAL OF LAW & MANAGEMENT STUDIES (ISSN-2455-2771) VOLUME I ISSUE III | Indexed in ROAD & Scholarly Open Access X. TRANSFER OF TITLE: JUDICIAL INTERPRETATION Masud Kalas 95 XI. NEW IPR POLICY 2016: TAKING IPR TO ANOTHER LEVEL Mudit Srivastava, Nikhita Kansal 106 XII. BANKRUPTCY BILL 2016 AND CROSS-BORDER INSOLVENCY Pavan Krishna Reddy 124 XIII. CROWDFUNDING: AN ANALYTICAL STUDY OF AMERICAN JOBS ACT Pavithra Ravi 133 XIV. CROWD-FUNDING AS A FINANCING TOOL: THE WAY FORWARD Sarthak Mishra 144 XV. MERGER OF SEBI & FMC Shubham Rathi, Abhas Srivastava 161 XVI. THE ALTERNATIVE INVESTMENT STRUCTURE – REITS Subhalagna Choudhary 172 XVII. ARTICLE 12: TEXT VERSUS TELEOLOGY Sudhanshu Gupta, Akanksha Anand 180 XVIII. GROWTH & OBJECT OF TRIBUNALS IN INDIA: A CRITICAL ANALYSIS Sukriti Sinha 193 XIX. SOCIAL ENGINEERING IN HUMAN MILK BANKING: A PRISMATIC APPROACH TO THE CORPORATE SOCIAL RESPONSIBILITY Susmita Haldar 213 XX. COMPARATIVE ADVERTISEMENT ON THE INTERNET: TRADEMARK DISPARAGEMENT Tija Goswami 244 v INTERNATIONAL JOURNAL OF LAW & MANAGEMENT STUDIES (ISSN-2455-2771) VOLUME I ISSUE III | Indexed in ROAD & Scholarly Open Access XXI. LAW BINDING SOCIAL MEDIA MARKET? Gautam Mishra 257 XXII. THE LEGAL EXPOSITION OF GAMBLING LAWS IN INDIA: STILL AN UNEXPLORED TERRITORY Vishal Chakravarthy 268 XXIII. JUDICIAL ACTIVISM: HOPE OF HIGH-HANDEDNESS OF HIS LORDSHIPS Sudipta Bhowmick 278 XXIV. PIL & JUDICIAL ACTIVISM: OVERREACHING OR UNDERACHIEVING Pallavi Versha 289 XXV. THE SPIRIT OF SOCIAL ACTION LITIGATION & JUDICIAL ACTIVISM Swetha S. 298 XXVI. PIL & JUDICIAL ACTIVISM Nomita Mishra 309 XXVII. JUDICIAL ACTIVISM IN INDIA: TRANSITION FROM ACTIVISM TO OVERREACH Ashish Gupta 317 XXVIII. REVIEWING JUDICIAL GROUNDS: SCENARIO OF CHANGING WAYS OF JUSTICE Priyanshi Meena, Jai Meena 327 THANK YOU NOTE 336 We thank the authors for their valuable contributions vi INTERNATIONAL JOURNAL OF LAW & MANAGEMENT STUDIES (ISSN-2455-2771) VOLUME I ISSUE III | Indexed in ROAD & Scholarly Open Access Editorial Note The Editorial Team is pleased to bring forth the third issue of the International Journal of Law & Management Studies (ISSN-2455-2771) with the hope that the experience would be enriching for the Readers. This edition of IJLMS (June 2016) was preceded by the 1st IJLMS Justice H.R. Khanna Memorial Essay Competition 2016. This competition had witnessed some of the finest participants with their eloquent essays in the competition. With the theme of Judicial Activism, the participants were to explain and analyze the trends of growth of Judicial Activism in India in the recent-past. Judicial Activism is a tool whereby the judiciary exceeds power assigned to it by law in the interest of justice, equity and good conscience. Theoretically, this violates the Doctrine of Separation of Powers, however, there are two counter-arguments to it, the first being, Separation of Powers is not so rigid in India and the second, the interest of justice overrules it. It is important to note that there are two sides of the coin with regard to the function of the courts of law and their powers. Whether a court is to strictly follow the word of law, following Positive Law, or treat the law with the Principles of Natural Justice, following Natural Law, differs from a case-to-case basis. A cause of Judicial Activism is the clash of judgments with the Political Goals. As Justice (Retd.) P. N. Bhagwati quotes, political ideology is bound to clash with judgments of the courts and the former should not be a basis for a ruling. While it is one perception that harmony and compatibility between organs produces directed efforts towards the goals, a conflict may sometimes ensure ‘Checks-and- Balances’ being an essential part of the democracy. Indian Democracy has been undergoing a change in terms of the division of powers and the Judiciary seems to be taking the naturalist view and upholding Supremacy of Constitution & Natural Justice Principles over the legislature made Law. Activism is widespread today and actions of Legislature & Executive are under constant Judicial Scrutiny. This calls for the citizenry to review and analyze each step of the unelected vital organ of the democracy in order to ensure that it does not result in Judicial Totalitarianism. We at IJLMS dedicate this issue to the discussion whether Judicial Activism is paving the right way in India. “The employment of Activism must be in the spirit of the Constitution to uphold its principles and its vanishing point must be where it treads towards Overreach. At all times, Supremacy of Constitution and Harmony between organs must be ensured for a better democracy.” EDITOR-IN-CHIEF vii INTERNATIONAL JOURNAL OF LAW & MANAGEMENT STUDIES (ISSN-2455-2771) VOLUME I ISSUE III | Indexed in ROAD, Scholarly Open Access & SIS TAX IMPLICATIONS ON MERGERS AND ACQUISITIONS VIS-À-VIS CROSS-BORDER MERGERS AAYUSHI SINGH1 Abstract Throughout the waves of mergers, restructuring and amalgamations, there has been no dearth of explanations for the increase in the activity in the market for corporate control. The paper firstly emphasizes the positive role that mergers and takeovers play in the allocation of resources in society while some point out towards the tax benefits and incentives that ensue from the same. The objective of the paper is to understand the principle and tax implications of the amalgamation and reconstruction of companies. Firstly, the applicable tax provisions have been scrutinized and the capital gains tax liability has been understood in terms of the amalgamating and amalgamated company with special reference to recent case laws and an in depth analysis of Sec. 34, 35, 45, 47 of the Income Tax Act, 1961. The tax motive has also been mentioned frequently and the underlying intent with which corporate entities are reaping windfall gains via tax reductions and the treasury may be unintentionally subsidizing takeover activity that must be paid for by others in the fiscal system is analyzed. Due to the recent upsurge in cross-border mergers and growth in FDI, tax incentives provided to cross-border mergers have been dealt with and case studies as Sanofi, Vodafone Essar, Idea Celluar, Genpact have been briefly dealt with, while comparing the viability of cross-border mergers as against Greenfield mode of foreign direct investments. A comparative study of US, UK and EU laws regarding cross-border merger policies has also been made. The availability of benefits of carry forward and set off of accumulated losses and unabsorbed depreciation of the amalgamating company owning an industrial undertaking have been scrutinized in light of the Income Tax rules and Sec. 72 of the Act. Prior to the concluding remarks, the tax neutrality of certain amalgamations and demergers has briefly been dealt with. The paper finally culminates with how the introduction of the new direct tax code brings with it an attempt to emphasize transparency and taxpayer-friendliness.
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