[aaykarbhavan] Judgments and Inforation

What a efficiency? If such efficiency is worked out in many issue what would be country's economy , and well being of all people?

Loksabha clears 119 amendment bill on May 7, 2015

By : Utsav Ghosh on 26 June 2015 Print this  

The Loksabha shows rare unanimity in passing the 119 amendment bill which allowed the operationalisation of the 1974 India and Bangladesh land boundary agreement. All the 331 members present in the house, voted for the Bill, which became the 100th Constitutional amendment after approval from the President Mr. Pranab Mukherjee. The Rajya Sabha on May, 2015 unanimously passed the historic amendment Bill that provides for exchange of territories to settle the 41 years old land border issue which received full support from 181 members.

 

This Constitutional amendment Bill is entered to end the decade of uncertainty for tens and thousands of citizens living in enclaves on wrong side of the homeland border. The amendment allows operationalisation of 1974 India Bangladesh land boundary agreement which refers to acquiring of territories by India and transfer of territories to Bangladesh through retaining of adverse possession and exchange of enclaves in accordance to 1974 agreement.

 

This Bill has amendment the first schedule of the Constitution which gave an effect to an agreement entered into by India and Bangladesh on the acquisition and transfer of territories between both the neighboring countries. The India and Bangladesh Bill was signed in the year 1974 between the then Prime Ministers Indira Gandhi and then then Prime Minister of Bangladesh Sheikh Mujibur Rehman. The Bill was the then rectified by the Bangladesh Parliament but not by India, as the Bill involved the transfer of territory which required the Constitutional Amendment.

 

The Bill refer to demarcated land boundaries which has gone into further modification through the exchange of letters thereafter and a protocol entered on September 6,201. The Bill being the Constitutional Amendment Bill requires further endorsement by the four affected states of Meghalaya, Tripura, Assam, West Bengal. The Bill paves the way for demarcating the border as well as exchange of over 160 enclaves between the two neighboring countries. Bangladesh received 111 enclaves i.e 17,160 acres and India received 51 enclaves i.e 7,110 acres from Bangladesh. Enclaves are landlocked territories that each country has within the borders of the other countries.  

 

The proposed solution will enable each side to acquire the enclaves within its borders along with other disputed territories. People who are the inhabitants of these enclaves shall have the right to move to live in their original country of nationality or they may have the option to become the nationality of the new country after the exchange. There are 15,000/- Bangladeshi enclaves and with this new Land boundary agreement they will become part of India and the people here have the option to relocate to Bangladesh, as they prefer. Across the border there are around 100 enclaves that officially become part of Bangladesh. The four territories come under the ambit of the Bill.

 

Home Minister Sushma Swaraj had announced package of 3,008 cr. To West Bengal for rehabilitation of Indian Nationals who will come from Bangladesh, with numbers estimated to reach till 30,000/-. Of this the amount of Rs 775 cr. Will be used for fixed infrastructure and the remaining amount will be for variable expenses, depending on how many people are to be rehabilitated by the state government. The maritime border of India and Bangladesh was also settled last year with the award by the International Tribunal.

Published in Constitutional Law

13 years of big drama ends with a small note

By : Utsav Ghosh on 26 June 2015 Print this  

India is a country which expresses freedom of thought and expression and other human rights which has acquired unique identity of India all over the world. It is the respect for human values through which India has attracted global attention, but at the same time it has also let to inordinate delay in dispensation of justice which has been questioned.

 

India is referred in the list of countries where no legal battle is decided in less than 10 years or perhaps more than that which itself has put question on the functions of the judicial system. This has been corroborated with the hit and rum case of actor Salman Khan who was involved. The Sessions Court in Mumbai held him guilty of culpable homicide on May, 6th 2015 and sentenced him to 5 years of imprisonment and fine of Rs. 25,000/- , 13 years after the incident which happened in the year 2002. In the case, a Toyata land Rover, owned by him ran over 5 people who were sleeping on the pavement in Bandra on September 28, 2002 which left one man dead and other four injured.

 

On the same day the Hon'ble High Court of Bombay granted the actor interim bail until 8th May 2015. Newspaper editorial devoted at least a half column lauding equality before law as a lodestone of democracy.   But at the same time, all lamented the tardiness of law. They wanted to know whether it takes 13 years to judge who was driving the car and whether or not Salman Khan was under the influence of alchol. This delay is not seen for the first time and it has become vogue for all the cases present and past particularly those concerning the rich and the influential. Those having amole cases are the examples of cases against sedition by politician and industrialists, cases related disproportionate assets, rioting and others. So far as Bollywood is concerned it is one of the high profile case after the Sanjay Dutt case who is supposed to be languishing behind bars.

 

The case is not important because it involved Salman Khan but it showed the delay our judicial system is facing in giving justice. By the time a judgment comes out people forget what has actually happened. Salman Khan was charged with culpable homicide not amounting to murder and arrested and thereafter granted bail on October 2002. The Court on May 2003 rejected the plea to drop culpable homicide charges, but in June Hon'ble Bombay High Court dropped culpable homicide charges and tried Salman Khan was rash and negligent driving. In March 2015, Salman stated in the court that he was not drunk and his driver was behind the wheel. On May 6, 2015 he was found guilty by the court and awarded five years jail term. This time Court appeared to be convined by the evidence put forward by prosecution that Salman was driving the vehicle, the authenticity of the test showed that he had time the amount of alcohol in his blood stream at the time of the accident, and that the actor did not possess a valid driving license when the accident took place.

 

In the lead up to the final verdict, the prosecution has demanded a maximum punishment of ten years and prayed to the Court that deterrence and correction were important factors in awarding sentence to the famous actor.

Published in Criminal Law

CBEC has issued instructions on detailed scrutiny of ST-3 returns, with effect from 01.08.2015:

PRELIMINARY ONLINE SCRUTINY:

The purpose of preliminary scrutiny of returns includes ensuring the completeness of the information furnished in the return, arithmetic correctness of the amount computed as tax and its timely payment, timely submission of the return and identification of non-filers and stop-filers. On the basis of the validation checks incorporated in ACES by the Directorate General of Systems & Data Management (DGS&DM), preliminary scrutiny of all returns is done online in ACES and the returns having certain errors are marked for Review and Correction (RnC). These have to be processed accordingly by the Range Officers.

DETAILED MANUAL SCRUTINY

The purpose of detailed manual scrutiny of returns is to ensure the correctness of the assessment made by the assessee. This includes checking the taxability of the service, the correctness of the value of taxable services in terms of Section 67 of the Finance Act, 1994, read with the Service Tax (Determination of Value) Rules, 2006 and the effective rate of tax after taking into account the admissibility of an exemption notification, abatement, or exports, if any; ensuring the correct availment/utilization of CENVAT Credit on inputs, capital goods, and input services in terms of the CENVAT Credit Rules, 2004, etc. In doing this, the proper officer must rely mainly on assessment-related documents like agreements/contracts and invoices. Detailed financial records should not be called for in a routine manner.

A Return Scrutiny Cell should be created in the Commissionerate Headquarters. The Return Scrutiny Cell shall maintain the records of the assessees and the returns which are selected for detailed scrutiny and also the results.

The list of returns to be taken up for detailed scrutiny would be finalized by the Additional/Joint Commissioner in-charge of Division (or in his absence by the Commissioner) as per the risk score in conjunction with the total tax paid by the assessee, local risk parameters (including sensitive and evasion prone sectors), past compliance record of the assessee and manpower availability. The list of the assessees selected will be sent to the respective Divisions.

The assessees who have been selected for audit or have been audited recently (in the past three years) should not be taken up for detailed scrutiny. However, the Chief Commissioner, may direct detailed manual scrutiny of an assessee's return who has paid service tax (Cash + CENVAT) more than Rs 50 lakhs in certain specific cases. In no event should an assessee be subjected to both audit and detailed manual scrutiny.

All the officers should maintain strict confidentiality regarding the Risk Score data including the original score, further selection by the Commissionerate, etc. Under no circumstances it is to be shared with the assessee or any other authority since this is information available in a fiduciary relationship, pertaining to a third party, and which may entail further investigation.

Detailed scrutiny of returns must be conducted by the Service Tax Range headed by the Superintendent and assisted by a complement of Inspectors. However, the Divisional DC/AC shall be responsible for the overall supervision of this business process in respect of his/her division. Before return scrutiny is initiated, the assessee must be given prior intimation of at least fifteen days and the purpose of the exercise must be spelt out in an Intimation Letter.

One of the important objectives of return scrutiny is to ensure validation of the information furnished in the self-assessed ST-3 return. The validation exercise would require reconciling information furnished in the ST-3 return with ITR Form Nos. 4, 5, 6 and 26AS and any third party information made available. In addition to this, the scrutiny exercise must also look at the correctness of self-assessment with respect to taxability, admissibility of abatement and eligibility for exemption, valuation and CENVAT credit availed/utilized.

This seems to be another Audit by the Range - let us hope it is not another attack from the department.

The Department wants to extend this to GST. The Board Circular states, "Even after the introduction of GST, it may be appreciated that the basic principles of scrutiny of returns and reconciliation of records would remain the same."

CBEC Circular No.185/4/2015-ST, Dated: June 30, 2015

MCA Notification exempting private cos. from certain Cos.Act compliances published in Official Gazette

MCA Notification dated June 5, 2015 providing exemptions, modifications with conditions of certain provisions of the Companies Act, 2013 has been published in Official Gazette Click here to read more.

DIPP issues clarification on critical issues in single brand retail trading

DIPP issues clarification on FDI policy on single brand retail trading; On a question whether a brand owner or non-resident entity / entities can undertake single brand retail trading of specific brand through more than one company in India, DIPP clarifies that non-resident entity / entities (whether owner of brand or not), shall be permitted to undertake 'single brand' product retail trading for the specific brand, directly or through legally tenable agreement with the brand owner for undertaking single brand product retail trading, States that such non-resident entity / entities can undertake single brand retail trading business through one / more WOS or JVs; On a query whether the FDI policy on single brand retail trading applies to the Indian brands seeking foreign investment, DIPP clarifies that FDI policy of 2015 equally applies to Indian brands: DIPP Click here to read more.

CLB orders 1-week adjournment motion by counsel for listed matters

CLB observes that counsels have not been filing prior / advance adjournment motion while seeking adjournment and making a request for adjournment at the time of hearing; Orders that the learned counsels shall circulate adjournment motion a week before the date of hearing for seeking adjournment and file the same with concerned Bench, and also states that the Counsel shall also appear on the date of hearing for placing the request before the Bench: CLB Click here to read more.

SEBI proposes cyber security & resilience compliance framework for Exchanges, Depositories & Clearing Corporations

SEBI (in consultation with its Technical Advisory Committee) proposes cyber security and cyber resilience compliance framework for Stock Exchanges, Depositories and Clearing Corporations (i.e. Market Infrastructure Institution, 'MIIs's); States that these MIIs are systemically important institutions and as part of operational risk management, they need to have robust cyber security framework for providing essential facilities and performing systemically critical functions relating to trading, clearing and settlement in securities market: SEBI Click here to read more.

DIPP clears defence licenses worth Rs. 613 Crs.

DIPP states that it has been in the vanguard for undertaking major reforms for promoting defence manufacturing under 'Make in India' initiative; States that it has so far issued 73 Industrial Licenses in defence sector during last one year, which includes 16 proposals with proposed investment of Rs. 613 crores; Reiterates earlier amendment whereby Govt. had increased the initial validity period of Industrial License for Defence Sector to 7 years (from 3 years), further extendable upto 3 years; States that Govt. now expects that these measures will give a boost to private participation in the vast opportunities available in India's defence manufacturing: DIPP Click here to read more.

GOVERNMENT OF INDIA
CENTRAL BOARD OF DIRECT TAXES
S.K. RAY
Member (A&J), CBDT
Tel: 011-23094683
Fax: 011-23092591
Email: Subratk.ray@nic.in

D.O.No.279/M-88/2014-ITJ

3rd July, 2015

Dear

Subject; Filing of Appeals on merits- Observations of Courts – reg,

Reference the earlier D.O. dated 19th September, 2014 on the above subject.

2. It has been noted that despite several instructions on the subject, necessary due diligence and caution is not being exercised while granting authorization for filing of appeals. Several court decisions have been noted where courts have taken an adverse view against the Department. A few such decisions are:

(i) ITAT, Mumbai in the case of M/s Prescon Builders Pvt. Ltd. has stated that the very fact that the AO filed the appeals without even verifying the year, which was mentioned in the ground of appeal, also indicated that the appeals were filed in a routine manner which causes lot of inconvenience to the tax payers and such a practice should be deprecated.

(ii) High Court, Mumbai, in the case of CIT-2 Vs. State Bank of India, Financial Reporting, Compliance & Taxation Department .noted that where the Revenue has accepted the order by not preferring any Appeal against the earlier order, the Revenue should not challenge the subsequent order on the same issue. In case an appeal is preferred from the subsequent order, then the Memo of appeal must indicate the reasons as to why an appeal is being preferred in the later case when no appeal was preferred against the earlier order of the Tribunal which has merely been followed in the later case. The absence of this being indicative of non-application of mind, does undoubtedly give an opportunity to the Revenue to arbitrarily pick and choose the orders of the Tribunal which they would challenge in the Appeal before the Court.

(iii) ITAT, Mumbai in the case of Sh. S. Ganesh has stated that the act of disregard and disobedience of the orders of the higher judicial authorities in hierarchy amounts to the gross abuse of process of law and is an act which tends to lower down the authority of the higher courts. In this case an appeal was filed on an issue settled by the ITAT in its earlier decision in the same case.

2.1 The apathy of the Department Officers is evident in another shocking incident where in a sensitive search case, appeal was filed by the Department in High Court. The Registry pointed out certain defects in filing of appeal and the Court granted time to remove the defects. This relates to the year 2009. From 2009 till 2014, no follow-up action was taken and the case was dismissed due to default on part of the Department in curing procedural defects. The Department filed a MA praying for restoration of the main appeal and subsequently a Review Petition which were dismissed by the Court. When the matter travelled to the Supreme Court, the Apex Court has taken a serious view and directed that Department ascertain and fix responsibility of the individual/ (s) guilty of inaction and for taking appropriate action against them for such inaction. This default was compounded by the fact that the SLP was filed after a delay of 240 days.

2.2 Needless to say that the Courts are taking a stern and inclement view as far as Department's actions in litigation matters is concerned.

3. Further, besides financial costs, litigation also entails tarnishing the image of the Department and straining its resources. The significance of filing appeal and pursuing litigation only in deserving cases cannot be over-emphasized, more so in the backdrop of the fact that Department is facing shortage of officers at all levels. It is imperative that the available resources are optimally utilised to obtain maximum benefit out of litigation.

4. This must be brought to the attention of all concerned for compliance.

With regards,
Yours sincerely,
(S.K. Ray)

Affirms SEBI's jurisdiction over GDR issue; Investor interest supreme, rejects "extra-territoriality" argument

SC reverses SAT order, affirms SEBI's jurisdiction to initiate proceedings against Lead Merchant Banker ('Respondent') in the issue of Global Depository Receipts ('GDRs'), upholds SEBI's order that barred the respondent from accessing capital market for 10-years; Refers to FEMA Regulations & Foreign Currency Convertible Bonds and Ordinary Shares (Through Depository Receipt Mechanism) Scheme, 1993, observes that GDRs are issued by India co. based on ordinary shares deposited with domestic custodian bank and GDRs issued by corresponding overseas depository bank which are approved registered authenticated instrument; SC observes that since the ordinary shares, which are denominated in Indian currency, are underlying GDRs, the Lead Manager plays key role in GDR issue i.e. deciding public or private placement, number of GDRs to be issued, issue price etc.; Holds that GDR is 'security' under Indian securities law, refers Section 2(h)(i) and (iii) of the Securities Contract Regulation Act, states that GDRs issuance are always based on underlying Indian shares deposited with domestic custodian bank and thereby GDRs possess in it right/ interest; Further refers to Sec. 12A of SEBI Act, states that "by virtue of such clear cut prohibition set out in Sec. 12A, in exercise of powers under Sec. 11 and 11B of the SEBI Act, it must be stated that SEBI is fully empowered to pass appropriate orders to protect the interest of investors in securities and securities market and such orders can be passed by means of interim measure / final order and against any person"; Rejecting challenge to SEBI's jurisdiction, SC rules that "If there is going to be a false pretext or misleading information circulated with a view to lure both the foreign investors as well as Indian investors and in that process the very purpose of creation and trading in GDRs are found to be not true or bona fide, it cannot be said that simply because creation of such GDRs and its trading is in global market, SEBI should keep its mouth shut on the ground that it cannot extend its long statutory arm beyond Indian territory to control any such misdeeds deliberately committed with a view to defraud the Indian investors and thereby their interest in the investment of securities and its protection is at great stake."; Rejects respondent's contention that SEBI Act, 1992 operates only within Indian territory, holds that reliance placed on the provisions providing for extra territorial jurisdiction can have no impact on the action initiated by SEBI as violation complained is with reference to SEBI Act, 1992 vis-à-vis the underlying shares of GDR:SC

The ruling was delivered by Justice Fakkir Mohamed Ibrahim Kalifulla and Justice Shiva Kirti Singh.

Advocates Pratap Venugopal, Surekha Raman, Gaurv Nair represented the Appellant, while Mr. Ashok K. Srivastava represented the Respondent.

__._,_.___

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Posted by: Dipak Shah <djshah1944@yahoo.com>

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