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16 Nov

The Tax officer to investigate the misuse of login IDs by unknown persons facilitating tax evasion-The Madras High court

The Tax officer to investigate the misuse of login IDs by unknown persons facilitating tax evasion-The Madras High court

Title- M/S. she will Trading Company vs the commissioner of commercial Taxes & others

Decided on- 2/11/ 2023

+W.P No.-26493/2022

CORAM- HON’BLE JUSTICE MR. C SARAVANAN

INTRODUCTION

The petitioner filed the petition under article 226 of the Constitution of India to issue a Writ of Certiorari, calling for the records pertaining to the following impugned notice dated 29/07/2022 issued in TIN no. 33380340401/2014-15/A3 issued by the 3rd respondent and quash the notice.

FACTS

As per the facts the petitioner was a dealer engaged in the business of outward supply of curtaina ,form mattresses and pillows and was carrying on the business for almost 28 years and filed manual return under the provisions of erstwhile TNGST Act, 1956 and electronically under the provisions of TNVAT Act, 2006 for the assessment and have filed regular returns electronically till December 2013 in terms of the provisions of TNVAT Rules,2007 but from January 2014 the petitioner experienced a problem was unable to login and file return in the portal as the petitioners attempt to login was declined on the screen as invalid login account therefore the petitioner filed returns manually and had escalated the issue with the 2nd respondent on 06/02/2014, 22/12/2014,09/02/2015 and 02/07/2015 and the 2nd respondent informed the petitioner regarding to change the password then petitioner approach the 2nd respondent by way of complaint dated 18/09/2015 and filed a complaint before the cyber crime cell ,central crime Branch where petitioner alleged misuse of the petitioner login Id and password as a result huge transaction has been shown to be made by a person using the petitioner TIN numbered.whereas the respondent submit that the impugned recover notice does not call for an interference as the petitioner has suffered an assessment order dated 09/11/2021 which preceded notice prior to passing of the said order where the petitioner failed to participate in the assessment proceeding and several attempts were also made to serve a copy of the order on the petitioner.however the assessment order dated 9/11/2021 was returned with an endorsement no such company in this address and also after the G aaST Act came into force the petitioner started carrying on business with a new ud and closed down the business in the year 2018 and registration was cancelled on 05/03/2019 with the retrospective effect.

THE COURT ANALYSIS AND DECISION

As after considering the argument by the learned council for the petitioner and respondent as earlier also there was writ petition no. 37044/2016&37045 /2016 from the same location and the petitioner therein had similarly alleged that the petitioners login Id was misused by the third parth who filed returns and passed huge input Tax credit to third party and also filed a complaint before the cyber crime and considering the facts and to balance the intrest of the parties court is inclined to suo motu were the inspector of police cyber crime cell impleaded as the 4th respondent in the writ petition to carryout thorough investigation on the complainant filed by the petitioner as whether the complainant filed by the petitioner was genuine or not or whether the petitioner was facilitating a third party or whether the petitioner was himself masquerading as an unknown person to evade tax and the commercial tax department shall co ordinate with the rest of the respondent and the 4th respondent and investigate into the complainant of petitioner within 18 months from the date of receipt of a copy of this order till such investigation all revenue recovery proceeding against the petitioner shall be kept abeyance. The complainant of the petitioner turns out to be untrue or was intended to facilitate fraud being committed using the login id of the petitioner and the asset of the petitioner shall be brought to sale and should be remain attached by the respondent 1 to 3 and suitable steps to be taken and the respondent shall endeavour to bring a closer preferably within 18 months from the date of receipt of a copy of this order. The writ petition stands disposed of with the above observation and the connected Miscellaneous petition are closed.

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Written by – Prachee Novo Mukherjee

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16 Nov

The High Court of Kerala held that the state VACB is incapable of handling international transactions and the court in command orders CBI Investigation- Scam by titanium company

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WP(C) NO. 20903 OF 2020

Case title: S Jayan v State of Kerala

Counsel for the petitioner: Advocates Suresh Babu Thomas, Nandagopal S.Kurup

Counsel for the respondents: Senior Government Pleader P.Narayanan, Central Government Counsel O.M.Shalina, Deputy Solicitor General S.Manu, Special Public Prosecutor Sreelal Warriar, Assistant Solicitor General P.Vijayakumar, Government Pleader Rajesh A and Public Prosecutor Rekha

CORAM: K.BABU, J

Dated: 14th day of November, 2023

Introduction

The High Court of Kerala contended the central government to be in charge to order the CBI in the matter to investigate the corruption assertion implying high officials of the titanium company for the charge of pollution abatement cum capacity expansion project involving above 256 crore rupees to M/s.Metallurgical & Engineering Consultants (India) Limited (MECON).

Facts of the Case

The petitioner pleaded that MECON was given the complete authority to enter into contract with Indian/foreign firms on behalf of the Titanium Company as per a letter of authority issued by the Titanium Company. MECON invited global tender on behalf of Titanium Company.

The contract price was approximately Rs.72 crores excluding taxes and duties, of which 1,08,34,938 Euros had already been paid. MECON entered into another agreement with an Indian company, namely V.A.Tech Wagbag, for setting up a Neutralization Plant (NP) at a cost of Rs.32.08 crores The Titanium Company incurred Rs.17.33 Crores towards import duty and other expenses. In addition, a sum of Rs.15 Crores was spent to set up the Neutralization Plant The Titanium Company was unable to incur such a huge additional financial burden.

The Deputy Superintendent of Police, VACB Special Unit 1, Thiruvananthapuram, registered an FIR alleging offences punishable under Sections 10, 11, and 13(1)(d) of the Prevention of Corruption Act, 1988 and Section 120B read with Section 34 of the Indian Penal Code.

The statement submitted by the senior government pleader is that the State Government decided to hand over the investigation to CBI as the case has interstate connections and international ramifications. It was submitted that VACB has limited resources to carry out an investigation involving MECON, a central public sector enterprise.

Analysis of the court

The court in command contended that VACB is incapable of conducting an investigation into money to foreign-based companies for the purchase of equipment by MECON.

respondent is directed to issue orders entrusting the investigation of VACB Thiruvananthapuram to the CBI. Respondents Nos.5 and 6 are directed to take over the investigation of Thiruvananthapuram. The CBI shall complete the investigation within six months from this date. The investigating agency is at liberty to approach this Court seeking an extension of time, if found necessary.

The above-mentioned writ petition is allowed.

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Written By

Kaulav roy chowdhury

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16 Nov

High Court of Bombay decision regarding the issue of improper sanction having been obtained has been raised.

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High Court of Bombay decision regarding the issue of improper sanction having been obtained has been raised.

Title : Chandar Mahadev Naik v. Income Tax Officer, Ward 5 and Ors.

Case No. : W.P (L) NO. 17578/2023

CORAM : HONBLE JUSTICE K.R. SHRIRAM & NEELA GOKHALE.

Decided on : 30 th OCTOBER 2023

Introduction

High Court of Bombay decision regarding the issue of improper sanction having been obtained has been raised. These petitions relate to A.Y. 2016-2017. Counsel states that in these petitions the issue of improper sanction having been obtained has been raised amongst other grounds.

Fact of the Case

the issue of improper sanction has been decided by this court in Siemens Financial Services Private Limited Vs. Deputy Commissioner of Income Tax & Ors. 1 wherein the court has held that for A.Y. 2016-2017 the sanction should have been given under Section 151(ii) and not under Section 151(i) of the Income Tax Act 1961 (the Act). Consequently, the sanction is invalid. The court has stated that in view of the invalid sanction, the notice issued itself will be invalid and has to be quashed.

Case Analysis and Judgment

Findings in Siemens Financial Services Pvt Ltd. (Supra) would squarely apply to these petitions as well on the issue of sanction. If the notice has to be quashed, if there is an assessment order passed subsequently, those assessment orders having been passed relying on an incorrect sanction will also have to be quashed.

Therefore, impugned Assessment Order dated 27th May 2023 issued under Section 144 read with Section 147 of the Act is hereby quashed and set aside. In view of the above, all consequential proceedings including Notice of Demand, Penalty proceedings also stands quashed and set aside. Petition is disposed.

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Written by Nimisha Sunny

16 Nov

The High court of Delhi held that it is improper for court to demand bank for guarantee when the implementation of award is not frustrated under Section 9 petition

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FAO(OS) (COMM) 29/2022 & CM APPL. 7026/2022

Case Title: Skypower Solar India Pvt Ltd v. Sterling and Wilson International FZE

Appearance

Council for petitioner – Mr. Dayan Krishnan and Mr. Arvind Nayar, Senior Advocates with Mr. Tishampati Sen, Ms. Riddhi S, Mr. Anurag Anand & Mr. Himanshu Kaushal

Council for the respondent -Mr. Darpan Wadhwa, Sr. Adv. with Mr. Jaiyesh Bakshi, Mr. Ravi Tyagi, Ms. Manmilan Sidhu, Mr. Sameer Patel, Ms. Sudiksha Saini & Mr. Ankit Tyagi

Date of Judgement: 10.11.2023

CORAM: HON’BLE MR JUSTICE VIBHU BAKHRU HON’BLE MR JUSTICE AMIT MAHAJAN

Introduction

The Delhi High Court contended that the power utilized by the court in command under section -9 of the Arbitration and Conciliation Act of 1996 will not contend for the demand of Bank guaranty to protect the claims made by the party holding in the arbitration proceedings, except if it is been clarified that the contended party is isolating its assets or acting in a manner that would frustrate the enforcement of the Arbitral Award.

Facts of the case

S&W had filed a petition under Section 9 of the A&C Act and was the petitioner in the original petition OMP(I)(COMM) 461/2018.

S&W is an affiliate of Sterling and Wilson Private Limited (hereafter ‘SWPL’), which is an Indian entity incorporated under the Companies Act, 2013

It is submitted by the parties in the present appeals that dispute in respect of Sunshakti Solar Power Projects Private Limited, The present appeals are confined to the interim measures of protection granted in OMP(I)(COMM) 461/2018, by the impugned judgment.

S&W, inter alia, claims that it is entitled to receive the supply price of USD 30,719,892.60. S&W claims that it had supplied solar module PV inverters and other equipment to SIPL for commissioning the Project in terms of the Offshore Supply Agreement In terms of the OSA, S&W was entitled to 90% of the price of the Offshore Supplies amounting to USD 30,719,892.60 on achievement of the Commercial Operation Date (COD) of the Project. According to S&W, SIPL’s obligation to pay the Supply Price was independent of any other contractual arrangement between SIPL with SWPL or any of its group entities.

The appellant challenged the impugned order on the following grounds: The direction by the Ld. Single Judge to furnish the bank guarantee to secure the amount in dispute is akin to an attachment before judgment, however, this direction was in contradiction to the principles laid down in Order XXXVIII Rule 5 of the CPC.

Analysis by the court

The court contended that the present appeal is allowed to the limited extent of setting aside the direction to the appellants to provide a bank guarantee to partly secure the claims of the respondent. We clarify that all other interim measures of protection granted in terms of the impugned order continue to be operative.

It is also clarified that this would not preclude the respondent from seeking such interim relief as advised in the arbitral proceedings. Needless to say any application made by the respondent shall be considered uninfluenced by any observations made in this order.

The Court held that the Court exercising powers under Section 9 of the A&C Act would not order the furnishing of Bank Guarantee (BG) to secure the claims of a party pending the arbitration proceedings unless it is shown that the ordering party is alienating its assets or acting in a manner that would frustrate the enforcement of the Arbitral Award.

Written By

Kaulav roy chowdhury

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16 Nov

High Court Madaras observation on Certiorarified Mandamus call for the records of the decision of the respondent GST Council’s Minutes of Meeting.

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High Court Madras observation on Certiorarified Mandamus call for the records of the decision of the respondent GST Council’s Minutes of Meeting.

Case No. : W.P.Nos.16608 & 16613 of 2020

Title : M/s.Parle Agro Pvt. Ltd v. Union of India

Decided on : 31.10.2023.

CORAM : THE HONOURABLE MR.JUSTICE C.SARAVANAN

Introduction

the petitioner has prayed for a Certiorarified Mandamus to call for the records of the decision of the 3 rd respondent GST Council’s Minutes of Meeting taken on 22nd December, 2018 classifying “flavoured milk” under HS Code No. 2202 instead of HS Code 0402 as being contrary to the decision of the Hon’ble Supreme Court in Commissioner versus Amrit Food 2015 (324) ELT 418, Articles 279 A (4), 14, 19(1) (g) and Article 265 of the Constitution of India and to quash the same and to direct the 2 nd respondent to classify “flavoured milk” under HS Code 0402 in terms of decision of the Hon’ble Supreme Court ancillary and collect Goods And Service Tax.

Fact of the Case

The applicant has relied on various decisions from different judicial fora and has claimed that the addition of flavour do not change the characteristics of the product and the product still remains milk and therefore classifiable under CTH 04. And do not disagree with the fact that the product in hand is a form of milk but as brought out supra, the product being a ready for consumption drink, i.e. a beverage with a basis of milk, is specifically classified under CTH 22029930 and excluded from the chapter 04. Further, the decisions in the cases relied upon on the classification, the same is based on the tariff existed before aligning the same with HSN.

Case Analysis and Judgment

The contention of the petitioner for the relief based on the decision of the Hon’ble Supreme Court in Commissioner versus Amrit Food 2015 (324) ELT 418cannot be accepted, nevertheless, the petitioner is entitled to relief. “Flavoured Milk” that was proposed to be manufactured at the time of institution of the Writ Petition merits classification under residuary Sub Heading 0402 99 90 of the Customs Tariff Act. The 3 rd respondent GST Council has given a wrong recommendation. It also cannot determine the classification. Determination of classification also does not fall within the preserve of the 3 rd respondent GST Council.

Having adopted classification of ‘Goods’ and ‘Services’ under the First Schedule to the Customs Tariff Act, 1975, the 3 rd respondent GST Council cannot impose a wrong classification of “Flavoured Milk” as a “Beverage Containing Milk” under the residuary item as “Non-Alcoholic Beverages” under Sub Heading 2202 90 30 of the Customs Tariff Act, 1975.

Written by Nimisha Sunny

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