TIOL-DDT 2490
05.12.2014
Friday

23rd June 1975 - a vacation judge of the Supreme Court is all set to hear a very important Stay Petition. The petitioner is the all-powerful Prime Minister Indira Gandhi, whose election to the Lok Sabha was set aside by the Allahabad High Court. Appearing for the Prime Minister was the legendary Nani Palkhiwala and against was the legend in the making Shanti Bhushan. The Judge asked the lawyers if they were prepared to skip lunch, so that hearing could be finished on that day. The lawyers agreed and the marathon arguments continued till 5pm without a break and without lunch. The Judge announced that he would pronounce the judgement the next day.

24th June 1975 - the vacation judge pronounced his verdict at 3pm. 5000 copies of the judgement were printed and a copy was made available to anyone who wanted it.The previous day the Law Minister Gokhale wanted to see the Judge and the Judge refused to meet him.

Anyway, the Judge granted an interim stay - the most famous Stay Order of the Indian Supreme Court, but a conditional one; the Prime Minister was barred from voting in the Lok Sabha or participating in debates. The Judge observed, "After all, the High Court's finding, until upset, holds good, however weak it may ultimately prove."

While granting Stay, he observed, "Now the Parliament is not in session and the veto on the right to vote is currently academic. Situations may develop, circumstances may change and this order itself, like any interlocutory order, is provisional. If new events like the convening of Parliament take place or fresh considerations crop up warranting the review of the restrictions in this stay order, the petitioner-appellant will be at liberty to move a Division Bench of this Court again to modify the restrictions or pray for an unconditional stay."

But there was one situation which even this wise judge could not foresee. The next day on 25th June Madam Gandhi imposed the Emergency and throttled the very essence of democracy rendering even the courts powerless.

The judge who gave interim stay to Mrs. Gandhi later said, Maybe I was myopic in not anticipating the imponderables which led to the midnight promulgation of the Emergency.

The Judge was Justice Krishna Iyer.

On his retirement from the Supreme Court, the Bar said,

Bar is the judge of the Judges and no judge can escape the verdict of the Bar.

You opened its (the Supreme Court's) doors to the poor, the needy and the indignant.

Justice Iyer once said, "For me life is a verb, a process. Not a noun, a product."

Perhaps the most quoted Judge, Justice Iyer's repository of wisdom wrapped in inimitable English would leave every student of law spell bound.

Behold the phenomenon of Indian Corruption Incorporated.

Erudite brevity is better than shallow prolixity.

Culpable insouciance and turpitudinous procrastinations - a besetting sin of the Indian Judiciary

Draconian laws do not cease to be law in court but must alert a wakeful and quick-acting legislature.

A couple of quotes from his tax judgements.

2002-TIOL-328-SC-CX-LB

There is no need to go down to the order of the Collector of Excise and examine his reasons because it is somewhat obscure and sheds no more light on the issue before us.

To return what has been taken wrongly is as much a duty and grace of government as to levy relentlessly and fully what is due. Default in either, not altogether unfamiliar, brings down the confidence of the community in the administration. That a party should have been put to two expensive and elongated litigations to recover a relatively small sum is regrettable.

Assuming that the tax officers have an alibi of two interpretations of the given notification, the question is whether plainer use of language is an art beyond the draftsman's skills? We think not.

To liquidate obscurity in legislative language, by abandoning obsolescent vocabulary and style of expression is an overdue measure.

2002-TIOL-811-SC-MISC

Politics has been a profession and, indeed, under modern conditions in India, perhaps the most popular and uninhibited occupation-with its perils, of course. Law cannot take leave of realities and therefore s. 5(a) must bear the construction that politics is a profession or occupation .

Justice Krishna Iyer is gone. Referring to his wife's death in 1974, he said,

The positive dimension of death is the command to fulfil Life's Office faithfully .

Please also read Justice Krishna Iyer is 100

ST - Audit by CAG - High Court Stays

THE Gujarat High Court has stayed audit by the CAG. The High Court has taken into consideration the orders of the High Courts of Calcutta, Delhi and Allahabad.

Case of the petitioner is that the said authority has no power to conduct the audit of the accounts of the petitioner. Petitioner points out that Rule 5A of the Service Tax Rules, 1994 has been held unconstitutional by the Delhi High Court in its decision dated 04.08.2014 rendered in case of Travelite (India) Ltd. v. Union of India = 2014-TIOL-1304-HC-DEL-ST. The case of the petitioner is that in any case such Rule 5A would not authorize an audit party from C.A.G. to conduct any such special audit. Reliance in this way is placed on the decision of the learned Single Judge of the Calcutta High Court in case of SKP Securities Ltd. dated 26th September 2012 = 2013-TIOL-38-HC-KOL-ST. It was contended that quite apart from Rule 5A being ultra vires, Rule 5A (1) when refers to an officer authorized by the Commissioner for the purpose of carrying out any scrutiny, verification and checks as may be necessary to safeguard the interest of revenue, such officer must be within the organization of the Commissioner and cannot be any outside agency.

The High Court observed, Prima facie, if Rule 5A is not valid, a serious question of the powers of the authority to issue the impugned communication would arise. Subsidiary question would be, even if Rule 5A is valid, would the communication in question be covered within the powers of the Commissioner as envisaged under sub­rule (1) of Rule 5A, which empowers the Commissioner to authorize any person to carry out the inquiry with respect to the accounts of an assessee. Whether such authorized persons can be an outsider of the organization of the Commissioner would also be an issue.

By way of interim relief, the High Court has prevented the CAG's Audit team from auditing the petitioner.

Please see 2014-TIOL-2136-HC-AHM-ST

Customs - New Exchange Rates from Today

CBEC has notified new exchange rates for Imported Goods and for Export Goods with effect from 5th December 2014. The US Dollar is 62.50 rupees for imports and 61.50 rupees for exports.

The Exchange rates were last notified on 20th November, 2014.

Notification No.113/2014-Cus (N.T.), Dated: December 04, 2014

Trading by E-commerce does not attract ST - no loss to Indirect Tax revenue

TO a query whether there is any proposal to bring e-commerce operations under the Consumer Protection Law in view of complaints of cheating and other malpractices by such companies, the Minister of State for Food and Consumer Affairs, Raosaheb Patil Danve in a reply to the Lok Sabha said - E-commerce operations are already covered under the Consumer Protection Act, 1986. To further strengthen this law, the government is planning to introduce amendments to the Consumer Protection Act (CPA) 1986 in the ongoing winter session of Parliament, he added.

The Minister further said - Trading of goods by e-commerce does not attract levy of service tax. Goods which are imported/manufactured are cleared on payment of duty of customs/central excise, as the case may be, at the time of import/clearance from the factory. Therefore, as far as the Central Government is concerned, there is no loss to indirect tax revenue due to expansion of e-commerce.

Today, we carry an interesting article titled E-Tailing business - VAT and Service Tax Analysis. See our ST se GST tak column.

Advocate with Saffron gown in Supreme Court - Not Allowed

A Circular issued by the Supreme Court Registry reads as:

On 24.11.2014 an Advocate, wearing Black Gown, Band and Saffron colour long gown entered into the Hon'ble Chief Justice's Court which was viewed seriously. It has been directed that, in future, Advocates only in proper uniform be allowed entry into the Court Rooms.

All concerned are therefore, requested to comply with the aforesaid directions and wear proper uniform while entering the Courts rooms and Supreme Court premises.

Supreme Court Circular Dated: December 02, 2014

Social Justice Bench in Supreme Court

THE Constitution of India in its Preamble has assured the people a three dimensional justice including social justice. Under the domain of 'social justice', several cases highlighting social issues are included. To mention summarily, about the release of surplus food grains lying in stocks for the use of people living in the drought affected areas; to frame a fresh scheme for public distribution of food grains; to take steps to prevent untimely death of the women and children for want of nutritious food; providing hygienic mid-day meal besides issues relating to children; to provide night shelter to destitute and homeless; to provide medical facilities to all the citizen irrespective of their economic conditions; to provide hygienic drinking water; to provide safety and secured living conditions for the fair gender who are forced into prostitution, etc., these are some of the areas where the constitutional mechanism has to playa proactive role in order to meet the goals of the Constitution.

In Supreme Court several cases relating to the domain of 'social justice' are pending for several years.

The Chief Justice of India is of the view that these cases shall be given a specialized approach for their early disposal so that the masses will realize the fruits of the rights provided to them by the constitutional text. In this perspective, he has ordered constitution of a Special Bench titled as "Social Justice Bench" to deal specially with the matters relating to society and its members, to secure social justice, one of the ideals of the Indian Constitution.

This Bench would function from 12th December 2014 and in order to ensure that these matters are monitored on regular basis, will continue to sit on every working Friday at 2.00 p.m. This Bench will be comprising of Justice Madan B. Lokur and Justice Uday U. Lalit.

Not only pending cases but fresh matters will also be dealt with by this Special Bench.

Supreme Court Circular

Complaint against Babus - No action on anonymous or pseudonymous complaints

IF you want to make a complaint against a Government officer, you should have the guts to disclose your identity - otherwise the complaint will go into the dustbin.

The Central Vigilance Commission had vide its circular Nos. 3(v)/99/2 dated 29th June, 1999 and 31st January, 2002 prescribed that no action should be taken on any anonymous or pseudonymous complaints. However, an enabling provision was made subsequently, vide circular dated 11th October, 2002, that if any, verifiable facts contained in such complaints are proposed to be looked into, prior concurrence of the Commission is required to be taken by the departments/organizations.

The Commission now prescribes that no action should be taken on anonymous/pseudonymous complaints by Ministries/Departments/Organisations in line with its earlier instructions dated 29th June, 1999 and 31st January, 2002 and such complaints should be filed. Commission's circular dated 11th October, 2002 stands withdrawn with immediate effect.

Central Vigilance Commission Circular No.07/11/2014, Dated: November 25 2014

Officers should be trained to read between lines

ADDRESSING the officers of the Directorate of Revenue Intelligence (DRI) after inaugurating the two-day ‘2nd Regional Customs Enforcement Meeting' to commemorate DRI Founding Day, the Union Finance Minister Shri Arun Jaitley asked the Customs officials to use latest technology to gather and analyze intelligence information relating to any illicit transaction across the border. He also said that officers need to be trained in order to read between the lines and be fully equipped to handle the latest technology tools efficiently and effectively in order to keep pace with the techniques used by the tax evaders who always try to exploit the loopholes/gaps in the law.

For more, see Mixed Buzz.

Sir, even without training some of them do a helluva great job. Kindly see 2014-TIOL-2263-CESTAT-MUM, 2014-TIOL-2330-CESTAT-MUM, 2014-TIOL-2305-CESTAT-DEL, 2014-TIOL-2328-CESTAT-MUM …

Induction Training duration to be reduced

THE Minister of State for Personnel, Public Grievances & Pensions, Dr. Jitendra Singh in a written reply in the Rajya Sabha informed that a Committee was constituted under the Chairperson ship of Ms. Kiran Aggarwal to review the existing Induction training, probation period and syllabus of the training for IAS officers. And that the Committee has submitted its report and it is recommended that the duration of training shall be 75 weeks in place of existing 103 weeks, and some changes in the training syllabus.

If the recommendations of the Committee are accepted by the LalBahadur Shastri National Academy of Administration, State Governments & other stakeholders, perhaps the Ministry of Finance and NACEN can also think on similar lines.

Jurisprudentiol-Monday's cases

Central Excise

CE - Tamil Nadu Civil Supplies Corporation is neither an Institutional consumer nor Service institution - Mixies, Table Top Wet Grinders, Electric Table Fans & Electric Rice cookers supplied by appellant to TNCSC for free distribution to women beneficiaries have been rightly assessed to duty on RSP u/s 4A of CEA, 1944 - Appeals allowed: CESTAT

THE appellant procured orders from the Tamil Nadu Civil Supplies Corporation (TNCSC) for implementing the scheme of free distribution of Mixies and Table Top Wet Grinders to the beneficiaries of the families holding Rice Cards announced by the Govt. of Tamil Nadu.

SCN came to be issued demanding differential CE duty alleging that valuation should have been adopted u/s 4 of the CEA, 1944 on the ground that the goods were supplied to "institutional consumers".

Income Tax

Whether when two of most important ingredients of sale such as receipt and delivery of possession are missing, there cannot be transfer of capital asset either under TPA or u/s 2(47) of I-T Act: ITAT

SURVEY was conducted on assessee, his wife, and other family members. During the survey operation, assessee admitted that his family sold to MDPL land for a consideration of Rs.4.5 crore per acre in the FYs 2007-08 and 2008-09. AO observed that as the lands are located in close proximity to nearest municipality, they cannot be treated as agricultural land as defined u/s 2(14). Further, part of the transactions entered into through agreement to sale-cum-GPA with MDPL was subsequently cancelled as part of the transaction did not materialize. AO, however, observed that the transaction in fact has taken place in terms with the agreement of sale-cum-GPA and there is transfer of capital asset within the meaning of section 2(47) as possession over land also passed during the previous year.

The issue before the Bench is - Whether when two of the most important ingredients of sale/ transfer viz., receipt of sale consideration and delivery of possession are missing, there cannot be a transfer of capital asset either under the Transfer of Property Act or under section 2(47) of the IT Act. And the verdict goes in favour of the assessee.

Service Tax

ST - Applicant importing packaged software from foreign supplier and making payments to Microsoft, USA on account of royalty - No ST payable under IPR Services prior to 16.05.2008 or under IT Software Service after 16.05.2008 - Stay granted: CESTAT

THE applicant is a distributor of hardware, software etc. and is engaged in the business of trading in the aforesaid items on a principal to principal basis. They sell goods to resellers who in turn sell the goods to retailers/end users.

The CERA observed that the applicant has made certain payments to M/s. Microsoft Licensing GP, USA on account of royalty and on which Service Tax is required to be paid under the category of "Intellectual Property Right Services" as per Section 65(105)(zzr) of the Finance Act, 1994 for the period prior to 16.5.2008 and post 16.5.2008 the service tax liability arose under the category of "Information Technology Software Service".

See our Columns Monday for the judgements

Until Monday with more DDT

Have a nice weekend.

Mail your comments to vijaywrite@tiol.in