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26 Mar

Invalid Assumption Of Jurisdiction: Orissa High Court Quashes Reassessment Notices Against Vedanta

The high court bench of Orissa comprising Chief Justice Dr. S. Muralidhar and Justice M.S. Raman observed that under Section 127(2)(a), no transfer of jurisdiction can take place without affording the Assessee a reasonable opportunity of being heard in the matter in case of Vedanta Resources Ltd. Versus ACIT. (W.P.(C) Nos. 6372, 6375, 6377, 6378, and 6395 of 2022)

Facts of the Case:

The petitioner, VRL, claimed that the Department’s website suggested on the “Know Your Jurisdictional AO” page that the petitioner falls under the purview of “Circle International Taxation (1)(1)(1)” with its location in New Delhi. The DCIT’s email address is the one that is shown. The notices to the petitioner could not have been sent by ACIT International Taxes, Bhubaneswar, according to VRL’s argument. The VRL hasn’t been informed of or given any information on any order made pursuant to Section 127 of the Income Tax Act shifting jurisdiction from Delhi to Bhubaneswar. According to VRL, the company has never had a location in Jharsuguda. Clarification: The lower deduction certificate was only requested because the payment was to be received in Jharsuguda, and in any case, no action was taken on the certificate. The reassessment proceedings relate to the AYs 2013–2014 to 2017–2018, although the certificate related to a transaction of 2020. The government argued that because “the Petitioner’s place of activity/operation is at Jharsuguda, Odisha,” ACIT International Taxes, Bhubaneswar, would have jurisdiction over the petitioner. The petitioner argued that the CIT (IT)-I, New Delhi could not have transferred the jurisdiction to his counterpart in Kolkata without an order under Section 127, much less to ACIT International Taxation in Bhubaneswar. The question posed was whether the VRL, a non-resident corporation formed in the UK, falls under the purview of the CIT International Taxes, Bhubaneswar.

Judgment of Case

The Department was unable to convince the Court as to why the ACIT in Bhubaneswar had the authority to exercise jurisdiction over the Petitioner and issue the notices required by Section 148 of the Income Tax Act. The court determined that the notices issued by the ACIT in Bhubaneswar lacked jurisdiction and were therefore unjustifiable in court.

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JUDGEMENT REVIEWED BY HARSHEEN KAUR LUTHRA, RGNUL, PUNJAB

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26 Mar

Mosquito Repellent ‘Good Knight’ Is An Insecticide, 4% VAT Applicable: Orissa High Court

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Facts of the Case:

The high court bench of Orissa comprising Chief Justice S. Muralidhar and Justice M.S. Raman has upheld the tribunal’s order in the case of State of Odisha Versus M/s. Godrej Sara Lee Ltd (STREV No. 27 of 2021) and noted that the mosquito repellant is an insecticide within the meaning of that expression in Entry 30 of Part II of the Schedule.

The department has challenged the orders of the ACST and the Tribunal. The tribunal has held that Good Knight is in fact an insecticide, and 4% VAT is applicable.

It was questioned if “Good Knight,” a product that deters mosquitoes, might be considered an “insecticide” under Entry 30 of Part II of Schedule B to the OVAT Act, which carries a 4% tax. In accordance with Part III of Schedule B of the OVAT Act, the department argued that it should be categorized as “all other goods” and subject to a 12.5% tax. According to the assessee, Godrej, it is legally permitted to manufacture the pesticide transfluthrin, 1.6% w/w in liquid vaporizers, according to a certificate of registration issued under Section 9(3) of the Insecticides Act, 1968.

Judgment of the Case:

The court pointed out that “transfluthrin 0.88% w/w liquid vaporizer” is one of the product’s main constituents, according to the product documentation that was attached to the current revision petition. Transfluthrin 0.88% w/w Liquid is described in the cited literature as “an effective insecticide recommended for the control of adult mosquitoes in the household.”

JUDGEMENT REVIEWED BY HARSHEEN KAUR LUTHRA, RGNUL, PUNJAB

25 Mar

ANIMAL CRUELTY vis-à-vis ANIMAL RAPE : IN INDIA

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“The idea of Humanity is no longer confined to man; it is beginning to extend itself to the lower animals, as in the past it has been gradually extended to savages and slaves” – Henry S. Salt.

INTRODUCTION:

One must have seen people shooting birds, hurting stray dogs and leaving harmless and innocent animals to famishment and demise or seen organizations wrongfully testing their products on animals, animals being abused in zoos, circus or parks for amusement and thought about whether there is an end to this merciless routine. Recurring attacks on animals in an inhumane way only proves the fact that the already difficult to define term humanity seems very difficult to follow as well.

A nationwide atrocity was caused after a pregnant elephant in Kerala died as a result of consuming a fruit-laden with explosive. As per the autopsy, the animal suffered for two weeks before succumbing to death while being pregnant and even in such a state of misery she did not harm or damage any property or attacked any person. It has been referred to as a premeditated murder by some, but for many, it is just a common practice to protect their fields against wild animals, especially boars.

The issue is not whether this alleged incident was a murder or an accident : It is much greater and serious than that. The question is whether these kinds of practices are lawful under Indian law. This is not the first time animals have been treated with cruelty in India.

BESTIALITY: A HEINOUS CRIME

Amongst various cruelties against animals, the heinous crime of bestiality is increasing at an alarming rate. Under Section 377 of Indian Penal Code, whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

The Supreme Court of India delivered a remarkable verdict and decriminalized homosexuality. However, the section that criminalized homosexuality has an important aspect of it. Bestiality refers to sexual intercourse between a person and an animal and it is a crime under Section 377 of the Indian Penal Code. The apex court had upheld that the law will stand on the statute book to deal with unnatural sexual offences against animals such as bestiality. However, most people including the police are unaware or ignorant about this.

There have been many instances of bestiality over the years. In August 2017, a man was accused of raping a female puppy to death in Delhi. Not only did the accused, Naresh Kumar boast about the incident to an animal lover, he also led him to the carcass. On July 26, 2018, a pregnant goat was reportedly gang-raped by eight men in Haryana. It was allegedly stolen, thrashed and raped by the accused.

It succumbed to the trauma and died. Reportedly, one of the accused met the owner of the goat and admitted that he had raped her and even said that he had a nice time. Recently, in July 2020, a cow was allegedly raped by a 55 year old man in Bhopal. While these cases of extreme brutality are on the rise, there is an acute dearth of laws to shield animals from cases of sexual abuse giving the immoral and psychopaths the conviction to escape from the law.

JUDICIARY’S ATTITUDE AND APPROACH TOWARDS THE ANIMAL CRUELTY

The judgments given by the Hon’ble Courts over a decade in the field of animal protection show the scope, emergence & importance of environmental law in the current scenario. The judiciary has also raised the issue of the lack of role of the legislature in contributing in the enactment of new rules and regulations and modification in the current scenario is a matter of concern.

In Animal Welfare Board of India v. A. Nagaraja & Ors the Supreme Court held that animals too have the right to live with honour and dignity. Karnail Singh and Ors. vs. State of Haryana is revolutionary judgment in which the judiciary took the matter of animal rights in the extent of Fundamental Rights.

The judgment goes beyond the question of the wellbeing of cows as focused in the case but also talks about all animals, birds and aquatic species as well. Justice Rajiv Sharma mentions in his judgment The entire animal kingdom including avian and aquatic are declared as legal entities having a distinct persona with corresponding rights, duties and liabilities of a living person. All the citizens throughout the State of Haryana are hereby declared persons in loco parentis as the human face for the welfare/protection of animals.

The doctrine of parens patriae which states the duty of the state to provide protection for those who are unable to protect themselves which was earlier limited to humans, has now also included non-humans in the range of this doctrine.

LEGISLATIONS IN INDIA FOR PROTECTING ANIMAL AGAINST CRUELTY:

India has several legislations in place to prevent and punish animal cruelty. Some of the key legislations are:

Prevention of Cruelty to Animals Act, 1960: This Act provides for the prevention of cruelty to animals and prescribes punishments for offences related to animal cruelty. It also establishes the Animal Welfare Board of India to advise the government on animal welfare issues.
Wildlife Protection Act, 1972: This Act provides for the protection of wild animals and plants and regulates hunting, poaching, and trade in wildlife.
The Indian Penal Code, 1860: The Indian Penal Code (IPC) has several provisions that deal with animal cruelty. Section 428 and 429 of the IPC make it an offence to kill, maim, or cause injury to animals.
Transport of Animals Rules, 1978: These rules provide guidelines for the transportation of animals to ensure their welfare during transport.
Performing Animals (Registration) Rules, 2001: These rules regulate the use of animals in performances and prescribe conditions for their registration.
Prevention of Cruelty to Animals (Slaughter House) Rules, 2001: These rules regulate the slaughter of animals in slaughterhouses and prescribe conditions for their humane treatment.
Cow Slaughter Prevention Laws: Several Indian states have laws that prohibit or regulate the slaughter of cows, which are considered sacred in Hinduism.

It is important to note that these legislations are not always strictly enforced, and incidents of animal cruelty still occur in India. However, there is a growing awareness of animal welfare issues in India, and many individuals and organizations are working towards the protection and welfare of animals.

From here onwards there will be a Q&A part where I will be answering questions asked to overcome this situation of animal cruelty vis-à-vis animal rape. The questions are as follows :

Are animals not safe in India?

Animal rape, also known as bestiality or zoophilia, is a criminal offense in India and is punishable under the Indian Penal Code. The laws in India also provide protection to animals from cruelty and mistreatment.

While incidents of animal rape do occur in India, it is important to note that they are relatively rare, and most people in India respect and care for animals. In fact, India has a rich tradition of animal welfare, and animals hold a special place in Indian culture.

The Indian government has also taken steps to protect animals, including the enactment of the Prevention of Cruelty to Animals Act, 1960, which provides for the prevention of cruelty to animals and punishment for those who engage in such acts.

However, like any country, India is not immune to cases of animal abuse, including sexual abuse. It is important for law enforcement agencies to enforce the laws protecting animals and for citizens to report any incidents of animal cruelty or abuse. Ultimately, the safety of animals in India, as in any country, depends on the collective effort of individuals, organizations, and the government to protect and care for them.

What are your views on cases of animal cruelty especially animal rape, where a human being is caught raping an innocent animal?

In India, bestiality or the act of engaging in sexual activity with an animal is considered a criminal offense. Depending on the jurisdiction, it may be classified as a misdemeanor or felony, and the penalties may include fines, imprisonment, or both.

If a person is caught raping an innocent animal, they could face charges of animal cruelty or animal sexual abuse. The severity of the charges and the associated penalties will depend on the circumstances of the case, including the nature and extent of the harm inflicted on the animal.

It’s also worth noting that some states and countries have enacted laws specifically addressing animal sexual abuse, such as laws that prohibit the creation, distribution, or possession of “animal pornography” depicting sexual acts with animals.

In summary, a lawyer would likely view such an act as a serious crime that violates animal welfare laws and may result in significant legal consequences for the perpetrator.

What steps should be taken to overcome problem of animal cruelty ?

Animal rape, or bestiality, is a serious issue that requires a multi-faceted approach to address. Here are some steps that can be taken to overcome this problem:

Strengthen and enforce animal welfare laws: Governments should strengthen animal welfare laws and ensure that they are effectively enforced. This will create a deterrent effect and hold offenders accountable for their actions.
Increase public awareness and education: Raising awareness and educating the public about animal welfare and the legal consequences of animal abuse can help prevent incidents of animal rape. This can be done through school programs, community events, and social media campaigns.
Promote responsible pet ownership: Encouraging responsible pet ownership can help prevent incidents of animal abuse. This includes providing adequate food, water, shelter, and medical care for pets.
Provide resources for reporting animal abuse: Governments and animal welfare organizations should provide resources for reporting animal abuse, including hotlines and online reporting mechanisms. This will enable people to report incidents of animal rape and other forms of animal cruelty safely and anonymously.
Provide support for animal victims: Victims of animal abuse, including animals that have been raped, need support and care. Governments and animal welfare organizations should provide resources for the rescue, rehabilitation, and rehoming of animal victims.
Address the root causes of animal rape: Addressing the root causes of animal rape, such as mental health issues or a lack of empathy, can help prevent these incidents from occurring. This may involve providing mental health resources and education programs on empathy and compassion.

It is important to note that addressing the problem of animal rape requires a coordinated effort between governments, animal welfare organizations, and the general public. By working together, we can create a safer and more compassionate world for animals.

What are major reasons due to which the animal cruelty takes place ?

The reasons behind animal rape are complex and often involve a combination of factors. Some of the possible reasons behind animal rape are:

Mental health issues: Some individuals who engage in animal rape may have underlying mental health issues, such as a personality disorder or a paraphilic disorder.
Lack of awareness: There is still a lack of awareness about animal welfare and animal rights, especially in rural areas. This can lead to incidents of animal rape and other forms of animal abuse.
Sexual deviance: Some individuals may engage in animal rape because they have a sexual attraction to animals, a condition known as zoophilia.
Lack of empathy: Some individuals who engage in animal rape may lack empathy and the ability to understand or care about the suffering of animals.
Power and control: Some individuals may engage in animal rape as a way to exert power and control over another living being.
Cultural or religious beliefs: In some cultures or religions, sexual activity with animals may be seen as acceptable or even encouraged.

It is pertinent to see that regardless of the reasons behind animal rape, it is a criminal offense and a form of animal abuse that causes significant harm to animals. It is essential to prevent and punish such acts to ensure the safety and well-being of animals.

How a lawyer should see these type of cases ?

Cases of animal cruelty are seen by a lawyer as a violation of animal welfare laws and a serious legal offense. Animal cruelty is considered a social problem that affects not only animals but also human society. As such, a lawyer would view animal cruelty as a breach of ethical and moral standards and a violation of the law.

A lawyer’s role in cases of animal cruelty would be to ensure that the offender is held accountable for their actions and that justice is served. This may involve representing the victim animal or advocating for their rights and interests. The lawyer may also work with animal welfare organizations and law enforcement agencies to investigate and prosecute cases of animal cruelty.

In some cases, a lawyer may also work to prevent animal cruelty from occurring in the first place by advocating for stronger animal welfare laws and promoting education and awareness about animal welfare issues.

Overall, a lawyer would view cases of animal cruelty as a serious legal issue that requires a strong legal response and a commitment to protecting the welfare of animals with the help of either existing laws and by making suggestions for the same.

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ARTICLE WRITTEN BY ABHINAV CHATURVEDI

24 Mar

Case Summary: GE India Technology Cen. P. Ltd. v. CIT [2010] 327 ITR 456/193

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Facts

The Supreme Court took into consideration the facts presented in the lead suit, which was called Sonata Information Technology Ltd. The respondent is a distributor of pre-packaged, shrink-wrapped, imported standardized software that comes from Microsoft and other providers located outside of India.

Assessee has satisfied their financial obligations to the vendors by making the payment that corresponds to the software’s purchase price. The Assessing Officer (AO) concluded that the money paid to the vendors should be considered a royalty because the sale of the software included a license to use it, and this license was presumed to accrue or arise in India. The AO also concluded that tax should be withheld at the source following section 195 of the Act.

The judgment made by the AO was maintained by the CIT(A). However, the tribunal decided that the amount that the assessee paid to the foreign suppliers was not of the nature of royalties and did not result in any income that was taxable in India. As a result, the assessee was not required to deduct tax at the source because there was no obligation to do so.

The High Court agreed to hear the department’s appeal and based its decision on Transmission Corp. of A. P. Ltd v. CIT [1999] 239 ITR 587 (SC). In that case, the Supreme Court stated that unless the payer made an application to the AO under section 195(2) of the Income Tax Act, 1961, and obtained permission for non-deduction of tax, it would not be permissible for the payer to contend that the payment made to the non-resident did not result in “income”

Issue

Is it necessary for an Indian company to make a tax deduction at the source if the company makes a remittance to a non-resident abroad, regardless of whether or not the payment is taxable following the Act?

Legal

Section 195 of the Income Tax Act,1961
Section 192 of the Income Tax Act,1961
Section 194E of the Income Tax Act, 1961
Section 18(3B) of the Income Tax Act, 1961
Sections 4, 5, 9, 90, and 91 of the Income Tax Act,1961
Section 237 of R.W.S. 199

Views

The decision that was made in the case CIT v. Cooper Engg. Ltd. [1968] 68 ITR 457 (Bom HC) stated that if the payment made to a non-resident is not chargeable to tax in India, then no tax is deductible at the source. This is the case even if the assessee did not make an application under section 18(3B) [i.e., section 195(2)] of the Income Tax Act.

In the case of Vijay Ship Breaking Corpn. v. CIT [2008] 314 ITR 309 (SC), the Supreme Court decided that the assessee was not required to deduct tax at source after Explanation 2 to section 10(15)(iv)(c) was added. The reasoning behind this decision was that tax deduction at source is only required if the tax is assessable in India.

In the case of Eli Lilly & Co. (India) (P.) Ltd. [2009] 312 ITR 225 (SC), the Supreme Court of India considered the question of whether or not provisions regarding tax deducted at the source constitute machinery provisions that enable the collection and recovery of tax and that form an integrated code with the charging and computation provisions that determine taxability in the hands of the assessee.

The decision of PILCOM v. CIT [2020] 271 Taxman 200 (SC) held that the obligation to deduct tax at source under section 194E is not affected by the DTAA. If the taxability is disputed by the assessee, the benefit of the DTAA can be pleaded, and based on the case made out, the amount will be refunded with interest; however, this would not by itself absolve the liability under section 194E of the Income Tax Act.

Held

The Supreme Court, after analyzing the provisions of section 195 of the Income Tax Act, concluded that the clause imposes a tax withholding obligation on any person responsible for paying to a non-resident any interest or other amount that is taxable following the terms of the Act.

The word “chargeable under the provisions of the Act” may be found in section 195(1) of the Act and has the utmost weight due to its prominent placement. So, a person who pays interest or any other payment to a non-resident is not obliged to deduct tax if the Act specifies that such an amount is free from taxes. This is because the Act provides an exemption for such a sum.

In addition, section 195 of the Act contemplates not only payments of pure income but also composite payments that include an element of income, and the payer is responsible for withholding tax at the source on such composite payments. This provision does not apply to payments of pure dividends or interest.

In addition, the Central Board of Direct Taxes Circular No. 728 dated October 30, 1995, emphasized that the person responsible for deducting tax may consider the impact of the DTAA on payments of royalties and technical fees while deducting tax at the source. This provision was included in the circular.

The wording of sections 195(1) of the Act and 18(3B) of the 1922 Act is quite comparable to one another. The Supreme Court made note of the fact that the application made under section 195(2) of the Act presupposes that the person responsible for making a payment to a non-resident is certain that tax is payable on some portion of the amount that is to be remitted to the non-resident but is uncertain as to what portion of the amount should be subject to tax withholding. This was something that was brought up in the case that was heard by the Supreme Court. In situations like these, an application must be submitted to the AO/ITO(TDS) following the provisions of section 195(2) of the Act to ascertain the amount of tax that must be withheld.

For evaluating whether or not section 195(2) of the Act applies, the tax that is required to be withheld at the source may be deducted simply from the amount that is considered to be owed. Hence, the provisions of sections 4, 5, 9, 90, and 91 of the Act, in addition to the prerequisites of the DTAA, apply to the application of tax deductions at the source.

Based on the judgment in Transmission Corp. of A.P. Ltd., the Supreme Court concluded that Sections 195(2) and 195(3) constitute protective measures (supra). So, a person responsible for deductions can decide on their own whether or not taxes may be deducted at the source, as well as the amount of taxes that should be deducted. This is the case if the person is reasonably certain.

The Supreme Court observed that Section 195 of the Act pertained to Chapter XVII of the Act, which addressed collection and recovery, while Chapter XVII-B of the Act addressed tax withholding at the source. In addition, the terminology used in Chapter XVII is distinct, and the only place in the Act where the phrase “amount paid following the requirements of the Act” appears is in section 195.

Similar provisions of the Act, sections 194C, 194EE, and 194F, make it possible to deduct tax from “any amount,” but they do not contain the language that is used in section 195. As a result of this, the United States Supreme Court was compelled to define the phrase “amount taxable following the requirements of the Act.”

The Supreme Court of the United States decided that Section 195 should be interpreted in conformity with the charging requirements, which are found in Sections 4, 5, and 9. So, the need to deduct tax at the source is something that emerges only when there is a taxable amount according to the Act. It is not possible to have a wide interpretation of section 195 based on the fact that the revenue department has not received any information. This would allow for the demand for tax deductions at the source even though a payment is not taxable in India.

The Supreme Court further rejected the department’s position that the need to deduct tax should begin as soon as a remittance is received. The court reasoned that this would indicate that income is presumed to exist or accrue in India upon simple payment, something the court did not want to imply. Because of this, the language “chargeable under the provisions of the Act” that is now included in section 195(1) of the Act would be removed as a consequence.

When one is attempting to understand a portion, one must pay careful regard to each word inside that area. The charge provisions of the Act cannot be read in isolation from the machinery sections to properly grasp the meaning of the Act; rather, the Act must be understood as an integrated code. Therefore, the language in section 195(1) of the Act indicates that the remittance must be of a trade receipt where the entire or a portion of the amount is taxable in India, and the payer is only required to deduct tax at source if the entire amount is assessable in India. This is because the language indicates that the payer is only required to deduct tax at source if the entire amount is taxable in India. If the amount is not subject to taxation in India, then there is no need for that tax to be withheld at the point of origin.

The Supreme Court observed that sections 192 and 195 of the Act are quite similar to one another. The department’s contention that a payer making a payment to a nonresident was required to deduct tax would have absurd consequences. The department would be able to appropriate the money deposited by the payer even if the sum is not subject to tax, because the Act contains no provision that allows the payer to obtain a refund. Furthermore, the absurd consequences would be caused by the department’s contention that a payer making a payment to a nonresident was required to deduct tax. In addition, the recipient of the amount is the only person who may file a return according to the provisions of section 237 of R.W.S. 199.

The Supreme Court made notice of the fact that the High Court did not discuss the merits of the case and instead merely determined that the obligation to deduct tax at source arose when the money was remitted. This decision made by the High Court was reversed, and the High Court’s order was vacated so that it might be reconsidered based on the merits of the case.

Judgement Reviewed By Jay Kumar Gupta

24 Mar

Anti-Defection Law Landmark Cases:

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2019 v. Hon. Speaker, Karnataka Legislative Assembly, Shrimanth Balasaheb Patil

In this relatively recent decision, the petitioners contested the Speaker’s order dismissing all of the petitioners for defection and seeking to prevent them from running in elections until the end of that Assembly term. The Hon’ble Supreme Court affirmed the Speaker’s decision to the extent that it resulted in a member’s disqualification, but it threw out the portion that stated that the member could not run for office again, concluding that the Speaker has the authority to do so until the term is through. The Court further ruled that even though both resignation and defection result in the member’s seat becoming vacant, the subsequent effects are different enough that the mere submission of a resignation by a Member while disqualification proceedings against him are still pending will not have an impact on or alter the course of those proceedings. The Honorable Court further sought to make clear that there is a rising pattern of the Speaker acting in a way that is contrary to the constitutional role entrusted to him. It also stated that the corrupt activities connected to defection prevent citizens from having a stable government, thus it is necessary to think about strengthening some parts of the relevant legislation to ensure that such undemocratic behaviors are maintained.

Keisham Meghachandra Singh v. The Hon. Speaker Manipur Legislative Assembly and Others, 2020. (Manipur Legislative Assembly case) Finally, we reach the most recent decision rendered on January 21, 2020, by a three-judge Supreme Court bench presided over by Justice F. Nariman. The case’s circumstances were as follows: The Speaker of the Manipur Legislative Assembly was the subject of petitions for disqualification based on the defection of approximately 13 MLAs, but he took no action and the matter was left open. Due to this, the petitioner filed a writ case with the High Court of Manipur, asking the High Court to issue an order telling the Speaker to determine the disqualification petitions in a reasonable amount of time. The Honorable Court ruled that actions that were supposed to fall outside the scope of judicial review under the Kihoto ruling are only quia timet actions in the sense of injunctions to stop the Speaker from making a decision on the grounds of irreparable consequences. This means that if the Speaker were to decide to disqualify the Member and as a result, if he would face the penalty of losing his membership in the House for an extended period of time, the Court could intervene as such. However, this in no way precludes judicial review, which effectively helps the Speaker make an informed decision about disqualification quickly.

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