What are the Compliances for the Hotel Industry in India ?

What are the Compliances for the Hotel Industry in India ?

Compliances for Hotel Industry in India 

The Indian tourism and hospitality industry has emerged as one of the key drivers of growth among the services sector in India. Tourism in India has significant potential considering the rich cultural and historical heritage, variety in ecology, terrains and places of natural beauty spread across the country. Tourism is also a potentially large employment generator besides being a significant source of foreign exchange for the country

The hospitality sector has the potential to be the main driving force behind the growth of the economy. It, however, will be possible only with the right amount of support and incentives from the government in all categories of hotels and not only limited to the luxury and ultra-luxury segment. I believe that the government must provide its full support in incentivizing the sector and the overall taxation on the hospitality sector should be reduced to stimulate its growth and make India competitive against other internationally renowned hospitality chains.

BUSINESS REGISTRATION

It is recommended that a hotel to be setup under an artificial legal entity like company or LLP.

POST INCORPORATION COMPLIANCES:

Company or LLP have to comply post incorporation compliances.

GST REGISTRATION

Every business carrying out a taxable supply of goods or services and whose turnover exceeds the threshold limit is required to register as a normal taxable person. This process of registration is called GST registration. Entities without GST registration would not be allowed to collect GST from a customer or claim input tax credit of GST paid or could be penalised.

GST RETURN FILING

GST return filing is mandatory for all entities having GST registration, irrespective of business activity or sales or profitability during the return filing period.

The beauty of the system is that one has to manually enter details of one monthly return – GSTR-1. The other two returns – GSTR 2 & 3 will get auto-populated by deriving information from GSTR-1 filed by you and your vendors.

FIRE SAFETY PERMIT

A fire safety certificate or permit is required for the Fire Department is a must for operating a hotel business. Fire safety certificate is usually provided if the building has incorporated proper fire prevention and fire safety measures as required under the relevant fire safety rules and regulations.

POLICE LICENSE FOR HOTEL

Hotels are public places that are monitored closely by the Police Department. Therefore, all hotels must maintain proper log of all Guests who have stayed at the hotel, follow relevant regulations and maintain a valid permit from the Police Department.

PF REGISTRATION

Employee Provident Fund (EPF) Registration is required for any establishment that employs more than 20 persons/employee in India. If any Hotel have more than 20 person/employees then EPF registration is mandatory.

ESI REGISTRATION

Employees State Insurance (ESI) registration is mandatory in India for Businesses that employ 10 or more employees. To maintain compliance with the ESI Regulations, the employer must contribute 4.75% of the wages for all employees earning Rs.21,000 or less toward ESI employer dues. The employee is required to contribute 1.75% of his/her wagesas ESI dues.                                               .

SHOPS & ESTABLISHMENTS

Shop and Establishment is a subject matter of state to state. Different state has different Shop and establishment Act. The Shop and Establishment Act is regulated by the Department of Labour and regulates premises wherein any trade, business or profession is carried out.

The act not only regulates the working of commercial establishments, but also societies, charitable trusts, printing establishments, educational institutions run for gain and premises in which banking, insurance, stock or share brokerage is carried on.

BAR LICENSE

If the hotel operates a bar or serves alcohol in the restaurants, a Bar license will be required from the relevant authorities. Bar license is usually provided by departments operating under the State Government. Hence, the requirement for bar license varies from state to state.

FOOD BUSINESS LICENSE

Food business license (FSSAI) under the Food Safety and Standard Act is required for operating a restaurant in India. The FSSAI food business license is usually provided for one year and is renewal at the end of each year.

PROFESSIONAL TAX:

Profession Tax is a tax levied on a person engaged in any profession, trade, calling and employment in India.

OTHER COMPLIANCES:

Other Law and regulations are also applicable on the hotel industry but applicability of other compliances is business to business of the Hotel.

Courtesy: Mr.  Karan Khattri

Conditions Precedents & Damages in Infrastructure Contracts (BOT)

Conditions Precedents & Damages in Infrastructure Contracts (BOT)

BOT Contracts

In most of the Build operate Transfer types of contracts (BOT), we normally see a chapter called conditions Precedent. These conditions precedents impose certain obligations on both the parties which are to be fulfilled or waived off for the starting of the project work by fixing the appointed date. Many a times arbitral tribunals get confused in differentiating the conditions precedents from the other contract terms and conditions.

Conditions Precedent

Conditions precedent are the conditions which are to be full filled by the parties to the contract before starting the main contracts. That means, the main contract comes into force only when the parties either fulfil all the conditions precedents or waive them off. Let us examine in this article the scope and law relating to conditions precedents in the light of Indian Contract Act.

UNCONDITIONAL ACCEPTANCE OF AN OFFER

We are all aware that an offer of a party should be accepted unconditionally by the other party to the contract to achieve a concluded contract. In case if the accepting party accepts the offer with a condition then the said conditional acceptance does not result in a concluded contract, it becomes a counter offer. Only if the other party accepts the counter offer without any condition then it becomes a concluded contract.

Contingent Contracts.

 But at the same time Indian Contract Act expressly recognizes contingent contracts. Indian contract Act S.31 defines contingent contracts as follows: The said section makes it clear that the said contract gets the status of a concluded / enforceable contract only after the said conditions are fulfilled. If the conditions precedent is neither fulfilled nor waived by the parties, the said second part of the contract will never have any force or ability to get enforced.

But the arbitrator or the Judge where ever contract expressly categorize the conditions as conditions precedent, should evaluate the provisions of the contract and decide whether those conditions are conditions precedent or conditions subsequent. Conditions subsequent are the conditions which are to be fulfilled only after the starting of the contract.

T.V. Kochuvareed case

In such contracts, if the contracts get terminated or pre-closed prior to appointed date/ prior to fulfilling the conditions precedent by the parties, the parties to the contracts do not get the right to claim damages. In T.V. Kochuvareed caseTravancore – Cochin High Court held as follows: “The next aspect to be considered is whether the plaintiff is entitled to get any amount by way of damages in this case. Here again the question of damages can arise only when there is a subsisting contract. We have definitely found that the agreement under Ex.D was only a contingent contract and that on account of the failure of the contingency resulting in the contract becoming impossible of performance, the whole contract fell through. Thus it cannot be said that there has been any breach of contract on the part of defendant 1, with the consequent liability for payment of damages. “

 Hence, if the contingency mentioned in the contract is not fulfilled the contract becomes impossible of performance and hence there can be no breach from that contract and hence there can be no damages also.

Courtesy – S.RAVI SHANKAR – ARBITRATION LAWYER 

"Death of Policyholder patient due to Malaria after Mosquito Bite is an accidental death and hence Insurance Company is liable to pay the sum assured."

"Death of Policyholder patient due to Malaria after Mosquito Bite is an accidental death and hence Insurance Company is liable to pay the sum assured."

In an interesting Case of National Insurance Co. Ltd. V/s Mosumi Bhattacharjee, (R.P. No.1270/2016), a question came before the National Commission to decide whether death of a Policy holder due to Malaria after a mosquito bite can be termed as accidental Death ?

Facts in short.

1. Late Mr. Debashish Bhatacharjee, the husband of the Complainant took the home loan from Bank of Baroda and along with it, he also availed facility of Term insurance like policy by name "Bank of Baroda Loan Suraksha Vima", issued by the National Insurance Co. Incase of an accidental death, the policy amount was to be paid to the claimants

2. During the subsistence of the Policy, the Policy holder died due to Malaria and hence his legal heirs (LRs) applied to the Insurance Company fir getting the sum assured.

3. But the Insurance Company turned down the claim on the ground that Malaria itself is a disease and not an accident. Hence the LRs filed the complaint before the District consumer forum, which was allowed in their favour. Hence the Insurance Company filed the appeal in state commission, which was also rejected and hence the matter came to national Commission.

Held :

1. The National Commission upheld both the judgments of lower foras and observed that the Policy does not define the Term "Accident". It relied upon the definition of Accident given in oxford dictionary, wherein it is defined as "An Accident is something that happens unexpectedly and not planned in advance and causes injury".

2. Thus no one can predict about the mosquito bite and it can happen anywhere and anytime, like an accident. It relied upon the earlier judgment of Matbarsingh V/s Oriental Insurance Co.) wherein it has been held that Snake-bite, dog-bite, frost-bite are also accidents. It rejected the argument of the National Insurance company that Malaria itself is a disease and not an accident.

A) I feel this is an important judgment. Few days back, at least a person in every family was suffering from Dengue / chikungunya and Malaria. Few patients were succumbed to death due to such diseases.This judgment may be helpful to such  families. Obviously terms of Policy, if any, will play an important role.

B) This decision also underlines the importance of having Term Insurance like policies. Consult an expert in this field.

Compelling the Husband to separate from age-old parents by a wife amounts to Cruelty - Says Supreme Court

Narendra vs. K. Meena- Supreme Court

The Supreme Court in Narendra vs. K. Meena has held that separating a Hindu son, who has been brought up and offered education by his parents, and the son has an ethical and legal duty to take care and maintain the age old parents, when they become old and when they have either no income or have a meagre income”.

The Supreme Court bench has not even once mentioned in its above verdict about the wife’s parents but solely revolved around husband’s parents.

Thus, according to Supreme Court of India, compelling a husband to get separated from his Parents tantamount to ’cruelty.

Repeated threats to commit suicide by a wife – it amounts to cruelty

Observing that repeated threats to commit suicide amounts to cruelty, the Supreme Court observed:

“No husband would ever be comfortable with or tolerate such an act by his wife and if the wife succeeds in committing suicide, then one can imagine how a poor husband would get entangled into the clutches of law, which would virtually ruin his sanity, peace of mind, career and probably his entire life.

The mere idea with regard to facing legal consequences would put a husband under tremendous stress. The thought itself is distressing.”

Compelling Separation from age-old Parents

Forcing separation from parents With regard to allegations of cruelty in wife forcing husband to get separated from his parents, the Bench observed: “In normal circumstances, a wife is expected to be with the family of the husband after the marriage. She becomes integral to and forms part of the family of the husband and normally without any justifiable strong reason; she would never insist that her husband should get separated from the family and live only with her…. 

If a wife makes an attempt to deviate from the normal practice and normal custom of the society, she must have some justifiable reason for that and in this case, we do not find any justifiable reason, except monetary consideration of the Respondent wife. In our opinion, normally, no husband would tolerate this and no son would like to be separated from his old parents and other family members, who are also dependent upon his income.”

Wild allegation of extra marital affairs

The Court also observed that to suffer an allegation pertaining to one’s character of having an extra-marital affair is quite torturous for any person – be it a husband or a wife. Restoring the judgment of Trial court and setting aside the High Court judgment, the Bench said: “The behaviour of the wife appears to be terrifying and horrible. One would find it difficult to live with such a person with tranquillity and peace of mind. Such torture would adversely affect the life of the husband.”

Can a legal practitioner be held liable for a legal opinion provided by him?

The Supreme Court has recently decided on the nature and extent of criminal liability that may be imposed on a lawyer who issues a legal opinion that is found to be erroneous. In what might be a matter of some relief to the legal fraternity, the court has set very high standards to be satisfied by the prosecution to charge a lawyer for the crime of conspiracy in defrauding a bank.

In Central Bureau of Investigation,Hyderabad v. K. Narayana Rao, the lawyer concerned, being a panel advocate representing a bank, delivered a series of legal opinions relating to the title to several properties. The bank lent monies on the strength of the legal opinions, which were found to be erroneous. The lending transaction was found to be part of a larger scheme by several persons to defraud the bank by inducing it to lend monies that caused wrongful loss to the bank. The Central Bureau of Investigation (CBI), after investigation, filed charges against the lawyer. These charges were quashed by the Andhra Pradesh High Court, against which the CBI appealed to the Supreme Court.

After considering the available evidence, the court concluded that there was insufficient material to conclude that the lawyer was acting as a conspirator so as to be charged for the offence to defraud the bank.
In deciding whether a legal practioner has acted against moral turpitude , background of each case has to be looked into and to assess whether such practioner had deliberately acted with ill-failth and malafide intention.

SALE OF PROPERTY THROUGH `GPA Sales') or Sale Agreement/General Power of Attorney/Will transfers WILL NOT BE REGARDED AS A VALID TRANSFER – SUPREME COURT

SALE OF PROPERTY THROUGH `GPA Sales') or Sale Agreement/General Power of Attorney/Will transfers WILL NOT BE REGARDED AS A VALID TRANSFER – SUPREME COURT

Supreme Court in the case Suraj Lamp Industries Pvt. Ltd.... Vs... State of Haryana & Anr has held that had considered the ill - effects of what is known as General Power of Attorney Sales (for short `GPA Sales') or Sale Agreement/General Power of Attorney/Will transfers (for short `SA/GPA/WILL' transfers). Both the descriptions are misnomers as there cannot be a sale by execution of a power of attorney nor can there be a transfer by execution of an agreement of sale and a power of attorney and will. As noticed in the earlier order, these kinds of transactions were evolved to avoid prohibitions/conditions regarding certain transfers, to avoid payment of stamp duty and registration charges on deeds of conveyance, to avoid payment of capital gains on transfers, to invest unaccounted money (`black money') and to avoid payment of `unearned increases' due to Development Authorities on transfer.

Supreme Court viewed that SA/GPA/WILL transactions are not `transfers' or `sales' and that such transactions cannot be treated as completed transfers or conveyances. They can continue to be treated as existing agreement of sale. Nothing prevents affected parties from getting registered Deeds of Conveyance to complete their title. The said `SA/GPA/WILL transactions' may also be used to obtain specific performance or to defend possession under section 53A of TP Act. If they are entered before this day, they may be relied upon to apply for regularization of allotments/leases by Development Authorities

 

Strong Financial background of a company may not deter a court in refraining to pass an order of winding up at the request of a creditor

HIGH COURT OF GUJARAT -Baader Beteiligungs GMBH v. Parsoli Motor Works (P.) Ltd.

Even if a company which has good and solid financial foundation and also has capacity to pay, cannot avoid its obligation to pay and be allowed to neglect its financial obligations.

The proceedings under section 434 of the Companies Act ,1956  is not legitimate means to enforce payment of debt and cannot be permitted to be converted into proceedings which are ostensibly for winding up, but actually are meant to enforce payment of debt therefore, the court would also not allow the petitioner-claimant to use the remedy as arm twisting method and pressure tactics or as a weapon or a means for enforcing recovery/payment of debt, which is bona fide and substantially and genuinely disputed.

In instant case, it is prima facie established, from the facts that the respondent appears to be unable, within the meaning contemplated under section 434(1), to pay its debts and it prima facie appears that it would be just and equitable to grant order of admission of petition and winding up. However, before making such an order, it would be appropriate to allow an opportunity to the respondent company to deposit the amount in question.