The Central Board of Direct Taxes recently attempted to provide relief to individuals who are stranded in India due to the ongoing travel embargo and may be subject to double tax in India. The clarification sought by way of this circular was highly anticipated by individuals who have been stranded in India during financial year 2020-2021 and qualify as tax residents of India under the Income Tax Act. However, the circular offers no respite to individuals, unlike that issued in 2020.
The Supreme Court recently addressed two important points in relation to family settlements – primarily, whether a married woman's heirs from her father's side can be considered 'family' for the purpose of a family settlement. This judgment follows a line of recent judgments which are pro-women's rights in terms of inheriting and disposing of family property.
Although offshore discretionary trusts are an acceptable form of tax planning, they have been used as a means of money laundering. Thus, the Income Tax Department has unveiled various private offshore trusts and imposed tax liability on the beneficiary owners. However, the Mumbai Income Tax Appellate Tribunal recently held that a beneficiary of an offshore discretionary trust cannot be taxed on the entire corpus fund merely because they have the power to appoint or reappoint trustees.
Recognising the need for uniformity, consistency, procedural fairness and timeliness in the disposal of maintenance applications, the Supreme Court recently issued guidelines on the payment of maintenance in matrimonial disputes. The court also provided comprehensive templates of the affidavit of disclosure of assets and liabilities to be filed by parties to such matrimonial disputes.
A critical function that family offices can perform is to assist families in institutionalising a robust family governance structure as a means to enhance and guard the family's legacy on a multi-generational basis. This article explores the hypothesis that viewing family offices as mere wealth management vehicles is in fact impeding their progress and highlights the untapped potential of family offices as all-round growth drivers in India.
Over the past decade, there has been a renaissance of private trusts which act as holding entities for private family wealth or provide employee benefits. More recently, their use has extended to business and investment vehicles. Many of these trusts hold immense wealth for the ultimate benefit of family members, employees or investors. As a result, enormous responsibility is reposed on the trustees. This responsibility is accompanied by a host of legal duties, of which potential trustees should be mindful.
Family settlements and the documents relating thereto have been the subject of litigation for various reasons. One such litigious issue is whether the documents pertaining to family settlements must be registered under the Registration Act. In a recent case, the Supreme Court held that a memorandum of family settlement, which merely records the terms of a family settlement already acted on by the concerned parties, need not be registered.
The complex nature of estate and succession planning requires the careful assessment of myriad factors. However, when determining the costs associated with planning, an often-overlooked factor is the court fees which may be payable when a succession plan is set into motion. If these are not evaluated at the outset, court fees might come as a shock to heirs seeking to implement the succession plan of a deceased family member.
The judiciary continues to take progressive steps towards making succession law more women friendly. In a recent landmark decision, a three-judge bench of the Supreme Court held that daughters and sons have equal coparcenary rights in a Hindu undivided family. The decision clarifies that coparcenary rights are acquired by daughters on their birth and that fathers need not have been alive when the 2005 amendment to the Hindu Succession Act was passed.
The Supreme Court recently discussed at length certain key factors that may constitute suspicious circumstances and render a will invalid. The court found that several circumstances surrounding the will's execution were suspicious in nature and concluded that while the existence of one such circumstance would not generally lead to a conclusion of suspicious circumstances, when taken holistically, it was beyond doubt that suspicious circumstances existed.
Despite various government initiatives and the promise of corporate social responsibility, Indian non-governmental organisations are facing a crisis due to the COVID-19 pandemic. However, like with most crises, there are also hidden opportunities. One such opportunity is the philanthropic investments of high-net-worth individuals, who could step in (directly or via their family offices or foundations) to help mitigate the funding crisis in the sector.
In India, many families are reluctant to pass their business wealth and assets onto their married daughters due to the perceived risk that the property ends up being controlled by their daughters' in-laws. This is even more pronounced for promoter families with significant holdings in listed companies. The Securities and Exchange Board of India recently issued informal guidance which dealt with a promoter gifting his shares to his married daughters and the implications under the relevant listed company regulations.
The validation and interpretation of a will is rather unique with respect to the significance of the surrounding circumstances and the identity and status of the parties involved. As such, it is advisable to not only prepare a will that is clear and legally valid, but also ensure that suitable safeguards have been implemented to fortify it against any anticipated challenge. This article discusses the legal grounds on which a will may be challenged and some of the precautions that testators can take to help validate their will.
The Finance Bill 2020 was presented as the Union Finance Budget in February 2020 and was finally passed on 23 March 2020, with certain key amendments. Following the proposals in the budget, the government received feedback and representations from various stakeholders, some of which it appears to have taken into consideration in amending the bill before its passing. However, the budget's goals of wealth creation are unlikely to be fulfilled given the havoc that COVID-19 has wreaked on economic stability.
The COVID-19 flight restrictions have led to confusion among non-resident Indians with regard to their tax residency. Such individuals have effectively been stuck in India, involuntarily increasing their time in the country. This may expose their offshore business and professional income to tax in India, as it may be regarded as controlled from India and the individual may be regarded as 'resident but not ordinarily resident in India'.
The COVID-19 pandemic has led to increased interest in succession planning, including through wills. However, there are considerable practical and legal challenges to consider when making a will while social distancing, isolation or quarantine measures are in place. Although no solution is foolproof, there are some measures that may help testators to overcome the various complications associated with creating a will.
The issue of legatees versus nominees is still causing confusion among the public despite numerous judicial decisions which clearly confirm that legal heirs inherit assets over nominees. In November 2019 this position was confirmed once again when the National Company Law Appellate Tribunal held that nomination does not amount to beneficial ownership of an asset and that a nominee merely holds assets on behalf of the legal heirs of the deceased.
Trusts are internationally recognised as favoured vehicles for estate and succession planning. Although most private asset-holding trusts are lifetime trusts created under inter vivos documents such as a trust deed, testamentary trusts (also known as 'will trusts' in certain jurisdictions) are formed through testamentary instruments such as a will and take effect only on demise.
India, like most countries, is coming to grips with COVID-19. The country is now under official lockdown, and the next few weeks will be critical in determining whether it has been able to successfully contain the virus. All individuals, not just the elderly or ill, should take the time to implement an estate plan as it will make life simpler for remaining family members if the proper steps are taken now.
Finance Minister Nirmala Sitharaman recently presented the Union Finance Budget 2020-21. This was the minister's second budget and it had been eagerly awaited, as the government is facing immense criticism for failing to revive the slowing Indian economy. Although the finance minister's budget speech was perceived as a nod towards the possibility of significant promoter-friendly policies being introduced, on examination, it seems to represent a missed opportunity.