Categories
Legal & Regulatory

Calcutta HC once again reiterates that poker games cannot be stopped

The Jalpaiguri bench of the Calcutta High Court, in an order dated 29th August, 2019, stated that poker is ipso facto not included in the definition of gaming or gambling under Section 2(1)(b) of the West Bengal Gambling and Prize Competition Act, 1957 and directed that police cannot interfere in the games of poker played by members of a club.

Based on a petition filed by Indian Poker Association (IPA), alleging police harassment in poker games conducted by it at Hotel Tourist Inn, Siligui, a single judge bench of the Calcutta High Court (Jalpaiguri bench), Justice Sabyasachi Bhattacharya noted, “Since the game of poker ipso facto is not included within the purview of the West Bengal Gambling and Prize Competitions Act, 1957, without there being a specific complaint with regard to the petitioners resorting to gambling or other illegal activity in the name of poker, there cannot be any occasion for the police to interfere with such game.

Accordingly, W.P.A. No. 394 of 2019 is disposed of by directing the respondents not to interfere with the games of poker going on between the members of the petitioner no. 1 at the rented room at the Hotel Tourist Inn at Sevoke Road in Siliguri, unless there is a specific complaint against the petitioners that they are resorting to gambling or undertaking any unlawful activity in the garb of the game of poker in the said room.”

The court reiterated a 2015 single judge bench order of the principal bench of the Calcutta High Court, based on a similar petition filed by IPA and ruled that police cannot interfere in poker games conducted by the club unless there is a specific complaint that they are resorting to gambling or resorting to any unlawful activity.

The court further cautioned the police that an ‘unlimited license’ is not granted to enter the poker room and go on a rampage in the garb of investigation.

Justice Bhattacharya added in the order that police can enter the poker room premises only with a specific arrest warrant and permission from appropriate authorities.

Categories
Business

Kerala assembly passes resolution against uniform GST for lotteries, deadlock in GoM over lottery tax rate

The Kerala legislative assembly passed a unanimous resolution urging the Central Government to withdraw the move to bring uniform Goods and Services Tax (GST) rate on state-run lottery and other state lotteries.

As per news reports, the legislative assembly passed the resolution moved by state Finance Minister Thomas Isaac after a discussion over it on the floor of the House.

“The Centre’s move is to reduce the tax on lotteries run by intermediaries and bring it on par with the state-run lotteries. This will affect thousands of lottery agents and sellers in Kerala.

This move will affect the tax revenue of the state, as well as the Centre,” Isaac said.

Currently, 12% GST is being charged on lotteries sold by state governments directly, while a 28% tax rate is being levied on the face value of lottery tickets authorised by state governments but sold through private lottery distributors.

Private lottery companies have made several representations against this discriminatory and high rate of tax, and claimed that the taxation structure would cripple and destroy their business. 

In a related development, it has been reported that the eight member Group of Ministers (GoM) headed by Maharashtra Finance Minister Sudhir Mungantiwar, that had been tasked by the GST Council to study the differential tax rates on lotteries, has so far, failed in its efforts to recommend a uniform tax rate for lotteries.

According to media reports, the panel failed to reach a consensus after representatives of West Bengal and Kerala opposed  the idea, citing loss to state governments.

The GST Council is slated to discuss the issue on 21st June, although a decision on the issue is unlikely, given the lack of consensus on the issue.

Read more about Kerala State Lotteries – Taxes, prices and prizes.

Categories
Legal & Regulatory

Calcutta HC rejects plea to exempt lotteries from GST and reconsider existing rate structure

A single judge bench of the Calcutta High Court rejected lottery operator M/s. Teesta Distributors writ petition to exempt lotteries from the ambit of the Goods and Services Tax (GST), rejecting Teesta’s contention that lottery tickets were an actionable claim and outside the definition of goods.

The bench comprising of Justice Debangsu Basak also rejected Teesta Distributor’s claim that the dual taxation structure of 12% GST on lotteries sold by state governments within the state and 28% GST on lotteries sold outside the organising state by private distributors is per se discriminatory and liable to be struck down.

As per a report in Live Law, Justice Basak held that lotteries fall within the ambit of actionable claim as per the constitution bench decision of the Supreme Court in Sunrise Associates v. Government of  NCT of Delhi.

The judge further held that the definition of ‘goods’ under Article 366(12) of the constitution is broad enough to allow legislatures to classify lotteries as goods and charge tax thereon. The order further noted that Schedule III of the Central Goods & Services Tax Act, 2017 and corresponding state laws, exempt actionable claims except gambling, betting and lotteries from being treated as supply of goods or services.

The High Court held that since lotteries have not being afforded the exemption from being treated as supply under the CGST Act, it would not be possible to exclude lotteries from the purview of GST and consequently, tax would be attracted on sale of lottery tickets under the category of goods.

While holding that differential levy of 12% and 28% GST on different kinds of lotteries is permissible, the court noted that legislatures have wide latitude in categorising and differentiating between various products and held:

“The Goods and Services Tax Council established under Article 279A of the Constitution of India at its 17th meeting deliberated extensively with regard to the rate of tax to be imposed on lotteries. Differential rate of tax was introduced in the 17th Goods and Services Tax Council Meeting held on June 18, 2017. The States before the Court were present in such meeting. It was after extensive deliberations that, the GST Council had approved the rates as presently obtaining in respect of lottery. It is within the domain of such Council to decide the rate of tax.”

Categories
Legal & Regulatory Poker

In 34 page order, Calcutta HC rejects Rajat Agarwal's trademark protection plea, allows Amin Rozani faction to continue operating 'The Spartan Poker'

The ugly and public spat between the two factions of Spartan Poker has been partially resolved. A single judge bench of the Calcutta High Court passed a detailed order on 12th May, 2017 in relation to the civil suit filed by Pokerguru founder Rajat Agarwal against Spartan Online Poker Pvt. Ltd. (the company that operates The Spartan Poker), Amin Rozani and others.

The court in its order ruled that Spartan Online Pvt. Ltd. and the Amin Rozani-led group cannot be asked to refrain from using the domain name thespartanpoker.com or the brand ‘Spartan Poker’, paving way for The Spartan Poker to continue its operations.

The order of the High Court is now available in the public domain. A comprehensive analysis of the ruling of the court in relation to whether domain names can be treated as trademarks can be viewed on Spicy IP.

Justice Soumen Sen in his judgment has recorded in detail the controversy surrounding the alleged partnership/joint venture between Rajat Agarwal and his family on one hand and Amin Rozani, Rajeev Kanjani, Peter Abraham and Sameer Rattonsey on the other.

Justice Sen has noted the existence of a Memorandum of Understanding and emails between the two factions, which has created a quasi-partnership arrangement and profits were shared by the two factions. The court also refers to the fact that Agarwal had contributed some amount for issue of share capital, but the same has been denied by Quadrific Media Pvt. Ltd., the company that originally operated Spartan Poker.

Further, it has been noted that while Agarwal did not officially hold shares in Quadrific Media, he was given a share of the profits and remuneration as director of the company.

The genesis of the dispute however is the defalcation and misappropriation of funds by Rohit Bhalla, criminal action taken against Bhalla by the company and Agarwal’s reluctance in taking a stand against Bhalla’s alleged action.

The Court observed that it is now well settled in India that domain names are to be protected along the same lines as trademarks, citing previous judgments. The court however noted that  the domain name ‘www.spartanpoker.com’ was not identified with Rajat Agarwal, Plaintiff No.1. Further, the court observed that not only had the Quadrific applied for the registration of ‘Spartan’ prior to Agarwal but Agarwal had incurred no substantial expenditure apart from the registration of the domain name.

Agarwal or the other plaintiffs did not spend on developing the web page, trade dress and designing of the mark and related expenses for its registration, the court noted. The court held that the application for Spartan Poker trademark has been objected by Agarwal before the trademark registry, and he may be able to claim damages from Spartan Online only if he succeeds in registering the trademark.

The court also observed that Agarwal cannot taken the argument that Rozani and others had broken the non-compete clause in the Memorandum of Understanding and emails as he allegedly breached a clause of the agreement by announcing on Spartan Poker page (which he owned) on 4th December, 2016 that he was starting a new poker website.

The court has however stated that due to the existence of a quasi-partnership arrangement between the two groups, Agarwal may be able to claim a share in the profits until 4th December, 2016, the day he claimed he was launching a separate poker website.

The court has further asked both Quadrific Media and Spartan Online to furnish monthly statements of transactions that have taken place till date as well as further monthly statements of the transactions that will take place. The court will further hear the issue of whether Agarwal can claim a share in the profits of Quadrific Media in July, 2017.

Categories
Poker

IPA to launch new poker room in Radisson Blu Delhi & 3 other locations by 1st May

Exclusive Indian Poker Association (IPA) is set to launch four more poker rooms in the country- three in Ahmedabad and one in Delhi by 1st May. KN Suresh, Secretary of IPA made the announcement on his Facebook page.

When asked about to comment on the development, Suresh confirmed the news to Glaws and stated that IPA has signed an agreement with the Radisson Blu Hotel at Paschim Vihar in New Delhi and three other five star properties in Ahmedabad. He further added that the Radisson Blu poker room, launched as a joint venture between IPA and other local partners, would operated under the brand name ‘Safe House’, two poker rooms in Ahmedabad would operate under the brand name ‘VIP Premiere Lounge’ and another one would operate under the name ‘[email protected].

Suresh also claimed that IPA is going to launch poker rooms in major cities like Rajkot, Surat, Gandhinagar, Baroda, Surendranagar, Gwalior, Indore, Varanasi, Gurugram, Chandigarh, Chennai, Hyderabad, Kochi and Mumbai in the near future.

On being asked about the legality of the poker rooms that are proposed to be operated, Suresh said that the existing precedents have convinced the Radisson Blu and other locations to lease out the properties. He added that IPA would approach the courts in case there is any interference from the police or other local authorities.

Suresh also  claimed that IPA has received a letter from the Union Ministry of Sports & Youth Affairs regarding the game of poker and is striving to get recognition from the ministry as an official association representing the sport of poker.

IPA has been at the forefront of approaching courts to get recognition for poker as a game of skill. In the past, IPA has got court orders from the Bangalore and Calcutta High Courts that have directed police to not interfere in poker games.

In 2016, IPA also filed a petition in the Gujarat High Court seeking a direction that poker is a game of skill. Subsequently, three other clubs have also filed similar petitions in the Gujarat High Court. The matters are still pending in court, having been adjourned several times. The cases  are now likely to come up for hearing on 9th June, 2017.

Categories
Legal & Regulatory Poker

Spartan Poker legal battle reaches Calcutta HC; Rajat Agarwal gets interim relief

Exclusive As reported by us earlier, an intense legal battle is shaping up in the Calcutta High Court. The Rajat Agarwal-led Spartan Poker faction has filed a civil suit in the Calcutta High Court against Spartan Online Pvt. Ltd. (a new company floated by Amin Rozani and the Indian Poker Championship faction in December, 2016 which now operates ‘The Spartan Poker’ website) and several other parties, which it can be inferred, includes the Directors of the new company and the Indian Poker Championship faction of Spartan Poker.

The civil suit came up for hearing on at least two previous occasions, i.e. on 27th February, 2017 and again on 7th March, 2017.

On 27th February, Justice Soumen Sen in his order granted interim relief to Agarwal and directed Respondent Number 7 (presumably the earlier Spartan Poker company Quadrific Media Pvt. Ltd.) to not remove Agarwal from its board of directors or not give effect to such removal, if a decision was already taken in the Extraordinary General Meeting of the shareholders on 25th February.

This interim relief granted for ten days was further extended by Justice Sen in his order dated 7th March. The matter is again listed for hearing on 20th March. The order of not giving effect to Agarwal’s removal from the board has been extended till 20th March.

Senior Advocates Pratap Chatterjee and Ranjan Bachawat and five other counsels appeared for Agarwal.  On the other hand, Senior Advocate SN Kapur and five other advocates appeared for Spartan Online Pvt. Ltd. and the other respondents, indicating that both factions are fighting the legal battle with full vigour.

Agarwal declined to give any comments on the issue or details regarding the reliefs sought by him. However it is understood that Agarwal has asked for compensation from Spartan Online Pvt. Ltd. and others as well as directive to stop ‘The Spartan Poker’ operations.

Amin Rozani, Director of Spartan Online also declined to answer specific questions on the lawsuit and said that his lawyers in Kolkata are dealing with the matter. Rozani however stated that “business is continuing as usual and The Spartan Poker will continue to grow with better offers.”

Categories
Legal & Regulatory Poker

Kerala government considering notifying poker as a skill game, 1976 notification already grants immunity to rummy [Exclusive]

Exclusive The Kerala government has announced its decision to consider including poker and bridge in the category of games of skill by way of amending a hitherto unknown notification dated 30th September 1976.

The notification, unearthed  by Jay Sayta, founder of this website, is pursuant to Section 14A of the Kerala Gaming Act, 1960. Section 14A of the Kerala Gaming Act is a peculiar provision and is in addition to Section 14, which in general exempts games of mere skill from the ambit of gambling.

Section 14A is perhaps the only such provision in any gaming legislation in India that specifies that the government may, if they are satisfied that skill predominates chance, exempt such games from all or any provisions of the Act, subject to prescribed conditions. This provision allows  the state government to enlist games of skill. This clause also allows the government to impose any restriction on skill games

Based on this clause, the government in 1976 exempted rummy, dart throw, ball throw, shooting contests etc. from the penal provisions of the Gaming Act (thereby making playing of these games for stakes or real money completely and unambiguously legal and immune from any criminal liability). The only condition imposed by the government in the notification is that side-betting on the notified skill games is not permitted.

Sayta, based on this notification, wrote to the then Chief Minister Oommen Chandy, suggesting that the notification be suitably amended to include games like poker and bridge, since the element of skill outweighs the element of chance.  It was argued in the petition that the Karnataka High Court has already indicated poker to be a game of skill, while the statute in West Bengal also exempts poker, rummy, bridge and nap from the ambit of gambling. Additionally, it was stated in the letter, that the Nagaland legislative assembly has also enacted a new law to recognise and regulate online poker, rummy and bridge as games of skill.

The Chief Minister’s Office has responded to the application by referring it to the Home Department. Further, communication from the Home Department has stated that is considering the application and has already begun consultations with the Law Department on whether poker should be included in the notification exempting games of skill.

If the suggestions in the letter are accepted, it would be end any ambiguity on the legality of online poker and conclusively end any debate regarding the element of skill involved in the game. Perhaps, the next few months will be crucial for the skill games industry.

Categories
Legal & Regulatory Poker

Calcutta HC directs state government and authorities not to interfere in poker games

In a  boost for poker in India, the Calcutta High Court on 2nd July passed a final order in the matter Kizhakke Naduvath Suresh v. State of West Bengal & Others directing the state government, police, municipal and other authorities not to interfere in the poker games conducted by the petitioner, KN Suresh and his club. Suresh and his legal team comprising of Kishore Dutta  (Senior Advocate), Debamitra Bharadwaj, Lokenath Chatterjee and Sumitra Das contended that poker was a game of skill and that the West Bengal statute clearly excludes poker from the ambit of gambling. Advocate TM Siddique appearing on behalf of the state government stated that the police had not conducted any raids and did not wish to harass or unduly interfere in the activities of the petitioner.

Indian Poker Association: Gearing to start operations in the city of joy
Indian Poker Association: Gearing up to start operations in the City of Joy

Justice Dipankar Datta on hearing the submissions of the parties referred to the provisions in the West Bengal Prize Competition and Gambling Act and recorded the assurance of Siddique while holding that the state government and other authorities should refrain from unduly harassing the petitioner. While poker has been exempted from the ambit of gambling in West Bengal since 1979, the affirmation and stamp of approval of the High Court will make it easy for poker clubs to operate without any fear of legal or extra-legal state action.

KN Suresh confirmed the development and added that he was satisfied with the decision of the Calcutta High Court. He further added that the Indian Poker Association (IPA) was now preparing to launch operations in Princeton Club in Kolkata within a week or two. While the development is a significant step for poker and skill games in India, the order of the Calcutta High Court will be applicable only to the state of West Bengal and will  have limited applicability even within the state, as the issue of online and offline poker being played in a commercial setup for profit was not considered by the court.

Categories
Legal & Regulatory

Seeking to start poker operations in Kolkata, KN Suresh of IPA files writ petition in HC

Exclusive KN Suresh, Secretary of the Bangalore-based Indian Poker Association (IPA) has filed a writ petition in the Calcutta High Court so that poker clubs can function in Kolkata without any interference from the police and other authorities. Suresh is asking the Court to direct the police, Kolkata Municipal Corporation (KMC) and the state government to refrain from harassing or interfering in the activities of his club, which is yet to commence any operations in West Bengal. Suresh has also asked the court to grant an interim order to restrain the authorities from acting against him or the club until the issue is conclusively decided.

Readers may remember that this website was the first and only source to report in 2011 that poker, rummy, bridge and nap are excluding from the ambit of gambling as per Section 2 (1) (b) of The West Bengal Prize Competition and Gambling Act, 1957 and hence poker games could lawfully be operated in the state. It is understood that Suresh has quoted this provision as well as other case laws to buttress the argument that poker is a game of skill and can be legally conducted in the city of Kolkata.

As per the causelist, the matter Kizhakke Naduvath Suresh v. State of West Bengal & Others was listed before Justice Dipankar Datta today. Justice Datta has directed the respondents to come up with their stand by Thursday, 2nd July, when the matter comes up for hearing again.  Once the court passes an order on the subject, it will end all controversies and allow clubs to peacefully and lawfully offer poker games in West Bengal. The decision in this matter is also likely to have an impact on courtroom battles regarding the legality of skill games in other parts of the country.

Suresh has been actively fighting the cause of legalising the game of poker across the country. He was the petitioner in the 2013 Karnataka High Court case Indian Poker Association v. State of Karnataka in which the court ultimately observed that poker could be played as a game of skill and directed the police not to interfere with the lawful activities of IPA.

Categories
Poker

Mint newspaper cites glaws in cover story on poker

 

Leading Indian financial daily Mint has cited the website glaws.in and the author as an expert on gaming laws in their cover story in Lounge titled ‘Shuffle up and deal’ (March 17th 2012). The story on Mint about the growth of poker as a luxury brand has cited various revelations first written on this website.

The story has for the very first time reported that poker is legal in West Bengal by virtue of the West Bengal Prize Competition and Gambling Act 1957. This aspect was first revealed on this website in a post on 4th October 2011.

The report also discusses the website Adda52.com which is the first website to offer poker games from India and the legal ambiguities associated with the website operations.

Again the article in Mint has explored the skill v. chance debate involved in poker and also discussed in great detail the growth of poker as one of the most-played card games of India.

Note: The full text of this article can be accessed here.