Online courts for ensuring fair trial (Press release 21 March 2022)

In the pre-Covid period, the virtual hearing setup was being used by most of the courts primarily for conducting remand matters without movement of prisoners between court and jails. This experience helped in expanding the video-conferencing (VC) of court hearings in the wake of the COVID-19 pandemic.To bring about uniformity and standardization in the conduct of VC, an overarching order was passed by the Hon’ble Supreme Court of India on 6th April 2020 which gave legal sanctity and validity to the court hearings done through VC. Further, Model VC rules were framed by a 5-judge committee which was circulated to all the High Courts for adoption after local contextualization. 23 High Courts have already adopted these Model Rules. Video conferencing emerged as the mainstay of the Courts during the Covid lockdown period as physical hearings and normal court proceedings in the congregational mode were not possible. Since Covid lockdown started, the District courts heard 1,11,40,223 cases while the High Court heard 60,21,688 cases (totalling 1.71 cr) till 31.01.2022 using video conferencing. The Supreme Court held 1,81,909 hearings till 08.01.2022 since the beginning of lockdown period.To augment the VC infrastructure of the Courts, one VC equipment each has been provided to all Court Complexes including Taluk level courts and additionally funds have been sanctioned for additional VC equipment for 14,443 court rooms. Funds for setting up 2506 VC Cabins have been made available. Additional 1500 VC Licenses have been acquired. VC facilities are already enabled between 3240 court complexes and corresponding 1272 jails. A sum of Rs. 7.60 crore has been released for procurement of 1732 Document Visualizers.

To bridge digital divide, Government has released Rs. 12.54 crore for setting up eSewa Kendras. As on 31.01.2022, 475 eSewa Kendras have been made functional under 25 High Courts. Rs. 12.12 cr has been allocated for creating 1732 Help Desk counters for e-Filing in Court Complexes; Judicial Service Centres have been established at all computerized courts to serve as a single window for filing petitions and applications by litigants / lawyers and for disseminating judicial information related to cause lists and other case related information to the lawyers and litigants through Info Kiosks. Mobile e-courts van equipped with Wi-Fi and computers for video conferencing for speedy disposal of cases have also been started in Uttarakhand and Telangana High Courts.Training programs and awareness campaigns have been conducted from time to time to train various stakeholders to bridge digital divide and familiarise them with court digitisation initiatives. Towards creating awareness and familiarization of e-Filing amongst lawyers, Webinars on e-Filing for Tamil Nadu, Goa, Maharashtra and Delhi Bar Council was organized during June 2020 which had more than 19,000 viewers. A Manual on e-Filing entitled as “Step by Step Guide for e-Filing” has been prepared and made available on the e-Filing portal, in both English and Hindi, for use of advocates and litigants.  It has also been released in 11 regional languages. The e-Committee, Supreme Court of India has issued user manual for e-Courts Services Mobile Application and uploaded it on the official website of e-Committee in 14 languages namely English, Hindi, Bengali, Assamese, Gujarati, Kannada, Khasi, Malayalam, Marathi, Nepali, Odia, Punjabi, Tamil and Telugu.  A Brochure in English and Hindi on “How to register for e-Filing” has been made available on the e-Filing portal for the use of lawyers. It has also been released in 12 regional languages. As part of awareness campaign, a YouTube Channel has been created in the name of eCourts Services where video tutorials on e-Filing have been made available for larger outreach to stakeholders. 12 self-help videos on e-Filing in 7 regional languages apart from Hindi and English was prepared and circulated for the advocates as part of awareness raising programme. The said videos are available in the e filing portal help desk and also in the social media through the eCommittee YouTube channel. To conduct awareness programme for advocates on eFiling and ECMT tools under eCourt Services, training of trainers has already been undertaken by eCommittee of the Supreme Court at the National and State level. 25 Master Trainers have been trained in each High Court who in turn has already trained 5409 Master Trainers across the country. These, 5409 Master Trainers have in turn imparted training programme on eCourt Services and eFiling in each district of the country for advocates in their regional languages and also identified Master Trainer Advocates.

 

This information was given by Shri Kiren Rijiju, Union Minister, Ministry of Law and Justice, in Rajya Sabha today.

Updates-07th March 2022

🖋️ Court room

SC Allows Insolvency Application Withdrawal as Majority Homebuyers accepted Builder’s Settlement during CIRP

Amit Katyal Vs Meera Ahuja (Supreme Court of India) dated 03/03/2022

Sale deed registration operate from the time from which it would have commenced to operate if no registration was required or made

Chitranshi Goyal Vs Indian Oil Corporation Ltd. (Rajasthan High Court) dated 22/02/2022

Parties by agreement cannot give jurisdiction to a Court which lacks jurisdiction

Aanchal Mittal Vs Ankur Shukla (Delhi High Court) dated 25/02/2022

Summons for appearance & authorization for arrest under GST is not a Criminal Proceedings

Saurabh Mittal Vs Union of India (Delhi High Court) dated 11/02/2022

Compounding Benefit under Income Tax cannot be denied for non-acquittal from Criminal Charges

Jai Singh Goel Vs Chief Commissioner of Income Tax (Central) & Anr. (Delhi High Court) dated 25/02/2022

✒️ Laws-Act, Rule, Regulation,Notification, Circular etc.

LLP (2nd Amendment) Rules, 2022 dated 04th March 2022 (Clausewise analysis)

Auto-population of e-invoice details into GSTR-1 (GST Portal updates-03 March 2022)

✒️ Articles, News etc.

“Net Profit” calculation for CSR & Managerial remuneration II Net Profit as per Section 198 of CA 2013

ROC Adjudication order dated 03rd March 2022 for violation of 2nd proviso of Section 149(1) of CA 2013 (Non appointment of women director)

Exporter arrested for GST fraud case (Fraudulent ITC claim of Rs. 15.26 Cr.)-GST Updates -04-03-2022

Deactivation of DIN of the Directors is not automatic (Calcutta High Court – 14th Feb 2022)

Satya Narayan Banik Vs Union of India (Calcutta High Court) dated 11/02/2022

 

The writ petitioners are aggrieved by cessation of office as directors of one M/s. Hahnemann International Pvt. Ltd. The disqualification happened by operation of Section 164 (2) for not filing balance sheets and annual returns for a continuous period of three years from the year 2014-15.

The ROC has also deactivated the Director Identification Number of the petitioners for which the petitioners are aggrieved by.

 

The petitioners have advanced a three-fold argument challenging such disqualification.

 

(i) That they were not permitted to avail the benefit of the “Company’s Fresh Start Scheme of 2020” despite applying by letter dated 11th November, 2020.

 

(ii) That the petitioners were not afforded a prior hearing before the disqualification as a directors and were hence denied principles of Natural Justice.

(iii) The Registrar of Companies is not authorized to deactivate their Director Identification Numbers (DIN) of the and that such activation of DIN pursuant to the disqualification is not automatic.

On the power of the ROC to deactivate the DIN of the petitioners it would be necessary to go into whether the provisos to the two Section 164(2) and 167(1), introduced subsequently by amendment.

Citing reference of Yashodhara decision (Karnataka HC)

I find considerable force in the argument of petitioners’ counsel as, on 01.11.2016, when the petitioners were disqualified, while they had to vacate the office of the director, it necessarily referred to the defaulting company under Section 164(2) of the Act. But, realizing the fact that if all the directors in the defaulting company had to vacate office, then such Board of Directors would be bereft of directors and would lead to an absurd situation, the proviso was inserted to the effect that a director of a defaulting company shall not vacate office of the director in the defaulting company. Therefore, the said portion of the proviso could be construed to be clarificatory in nature and therefore, would have a retrospective effect.

But, while saying so, the proviso also states that a director of a defaulting company would vacate office of the director in all other companies in which he is a director. The same was not envisaged under Section 167(1)(a) of the Act prior to insertion of the proviso, but by the insertion of the proviso such an immediate consequence is also envisaged. It has also been held above that such a consequence cannot be held to be arbitrary or in violation of Article 14 and 19(1) of the Constitution, but the proviso having come into force on 07th May 2018 cannot have a retrospective operation so as to affect the petitioners herein who were all disqualified on 01.11.2016 i.e., prior to 07th May 2018.

The proviso to Section 167(1)(a) of the Act is not ultra vires Articles 14 and 19(1)(g) of the Constitution. The words “provided that where he incurs disqualification under sub-Section (2) of Section 164, the office of the director shall become vacant…………. , other than the company which is in default under that sub-Section” being clarificatory in nature has retrospective operation, while the words “in all the companies” being introduced for the first time by way of proviso, pursuant to Amendment Act, 2017, has prospective operation and the proviso would apply only to those directors who sustain a disqualification pursuant to 07.05.2018. While saying so, the doctrine of severability as applicable to interpretation of statutes is applied.


Under the proviso to Section 167(1) (a) of the Act, the director of a defaulting company continues to hold the office of Director despite disqualification, his DIN cannot be cancelled. On the issue of cancellation of DIN, reference was made to Companies (Appointment and Qualification of Directors) Rules, 2014. Under Rule 14, the consequences of disqualification of directors under Section 164(2) of the Act are mentioned. That every director shall inform to the company concerned about his disqualification under sub-Section (2) of Section 164 of the Act in Form DIR-8 before he is appointed or re-appointed. Further, whenever a company fails to file the financial statements or annual returns, or fails to repay any deposit, interest, dividend, or fails to redeem its debentures, as specified in sub-Section (2) of Section 164, the company shall immediately file Form DIR-9, to the Registrar furnishing therein the names and address of all the directors of the Company during the relevant financial year.



That cancellation or surrender or deactivation of DIN is stipulated in Rule 11. It is contended that Rule 11 does not permit cancellation of or deactivation of DIN on account of disqualification of a director under Section 164(2) of the Act at all. That DIN could be cancelled on account of the death of a director or a director being declared as a person of unsound mind by a competent Court or being adjudicated as a insolvent or for other reasons, but, not for suffering a disqualification under Section 164(2) of the Act.


DIN cannot be cancelled on account of a disqualification sustained under Section 164(2) of the Act, but at the same time the company must comply with filing Form DIR-9.

 

It is, therefore, held that deactivation of the DIN of the petitioners is not automatic.


In view of the above the DIN of the petitioners shall be revived subject to the company having filed DR-9 within prescribed or extended tidme. The said DIN shall not be applied to entitle the petitioners to act as directors in any other company.

Judgement copy

https://acrobat.adobe.com/link/review?uri=urn:aaid:scds:US:c39708e9-2616-3249-8619-d657f26d4bbf

Judicial updates (Tax Laws)- 27th Jan 2022

Claim of Assessee of Profit lower than 8% cannot be denied for mere non-submission of Tax Audit Report

ACIT Vs Vairam Constructions (ITAT Chennai) dated 18/01/2022

Rs. 258 Crore illegal ITC availment case – HC refuses Bail to accused

Paritosh Kumar Siingh Vs Senior Intelligence Officer (Chhattisgarh High Court) dated 18/01/2022


Income Tax Notice issued issued against a dead person, is null and void

Dharamraj Vs ITO (Delhi High Court) dated 17/01/2022


Directors’ personal property cannot be Attached to Recover Companies Sales Tax Dues
Sunita Ramesh Bansal Vs Assistant Commissioner of State Tax (Gujarat High Court) dated 13/01/2022


HC disposes petition as department granted credit as per courts direction which was earlier not given

Siddharth Enterprises Vs Nodal Officer (Gujarat High Court) dated 12/01/2022


Expenses towards provision for pension fund allowable as expenses

ACIT Vs Punjab & Sind Bank (ITAT Delhi) dated 05/01/2022


HC directs unblocking of Electronic Credit Ledger as one year period was expired

Krishna Fashion Vs Union of India (Delhi High Court) dated 18/01/2022

GST Cash credit account of assessee cannot be provisionally attached

Manish Scrap Traders Vs Principal Commissioner (Gujarat High Court) dated 12/01/2022


If assessee resold goods imported from AE without any value addition, than most appropriate method for determining ALP is RPM

Randox Laboratories India Private Limited Vs ACIT (ITAT Bangalore) dated 04/01/2022

Tribunals/Quasi-Judicial Bodies

In India, Tribunals are a part of the Executive branch of the Government which are assigned with the powers and duties to act in judicial capacity for settlement of disputes. Part XIV of the Constitution of India makes provisions for establishment and functioning of the Tribunals in India. They are quasi-judicial bodies that are less formal, less expensive and enable speedy disposal of cases.

There are tribunals for settling various administrative and tax-related disputes, including Central Administrative Tribunal (CAT), Income Tax Appellate Tribunal (ITAT), National Company Law Tribunal (NCLT), Customs, Excise and Service Tax Appellate Tribunal (CESTAT), National Green Tribunal (NGT) and Securities Appellate Tribunal (SAT), among others. Tribunals were added in the Constitution by Constitution (Forty-second Amendment) Act, 1976 as Part XIV-A, which has only two articles viz. 323-A and 323-B. Article 323A provides that a law made by the parliament may provide for establishment of an Administrative Tribunal for the Union and a separate Administrative Tribunal for each state or two or more states. Article 323 B empowers the parliament or state legislatures to set up tribunals for matters other than those mentioned under Article 323A.

Types of Tribunal in India

1. Debt recovery Tribunal

The Debt Recovery Tribunals have been constituted under Section 3 of the Recovery of Debts Due to Banks and Financial Institutions (RDDBFI) Act, 1993. The original aim of the Debts Recovery Tribunal was to receive claim applications from Banks and Financial Institutions against their defaulting borrowers. (DRT) was established for expeditious adjudication and recovery of debts due to banks and financial institutions in order to reduce the non-performing assets of the Banks and Financial Institutions. Prior to the introduction of Debt Recovery Tribunal, petitions had to be filed separately for adjudication of cases and execution proceedings in different courts depending upon their jurisdiction. DRT acts as a single judicial forum for adjudication of cases as well as execution of the decrees passed for recovery of debts due to banks and financial institutions under RDDBFI Act and Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interests (SARFAESI) Act, 2002.

2. National Company law

Tribunal National Company Law Tribunal (NCLT) is a quasi-judicial body exercising equitable jurisdiction, which was earlier being exercised by the High Court or the Central Government. It has been established by the Central government under section 408 of the Companies Act, 2013 with effect from 1st June 2016. The Tribunal has powers to regulate its own procedures. The establishment of the National Company Law Tribunal (NCLT) consolidates the corporate jurisdiction of the following authorities:

i)Company Law Board


ii) Board for Industrial and Financial Reconstruction.

iii) The Appellate Authority for Industrial and Financial Reconstruction

iv) Jurisdiction and powers relating to winding up restructuring and other such provisions, vested in the High Courts.

3. Consumer Forum

To protect the rights of the consumers in India and establish a mechanism for settlement of consumer disputes, a three-tier redressal forum containing District, State and National level consumer forums has been set up. The District Consumer Forum deals with consumer disputes involving a value of upto Rs. 1 crore. State Commission has jurisdiction in consumer disputes having a value of upto Rs.10 crore. The National Commission deals in consumer disputes above Rs.10 crores, in respect of defects in goods and or deficiency in service. It is important to note that consumer courts do not entertain complaints for alleged deficiency in any service that is rendered free of charge or under a contract of personal service.

4. Motor Accident Claims

Tribunal (MACT) The Motor Accidents Claims Tribunal deals with matters related to compensation of motor accidents victims or their next of kin. Victims of motor accident or legal heirs of motor accident victims or a representing Advocate can file claims relating to loss of life/property and injury cases resulting from Motor Accidents. Motor Accident Claims Tribunal are presided over by Judicial Officers from the State Higher Judicial Service and are under direct supervision of the Hon’ble High Court of the respective state.

5. Central Administrative Tribunal (CAT)

Central administrative Tribunal is a multi-member body to hear on cases filed by the staff members alleging non-observation of their terms of service or any other related matters and to pass judgments on those cases. This Tribunal established in pursuance of the amendment of Constitution of India by Articles 323A.

6. National Green Tribunal (NGT)

National Green Tribunal was established for effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources including enforcement of any legal right relating to environment and giving relief and compensation of damages to persons and property and for related matters.

7. Income Tax Appellate Tribunal (ITAT)

ITAT is a quasi judicial institution set up in January, 1941 and specializes in dealing with appeals under the Direct Taxes Acts. The orders passed by the ITAT are final, an appeal lies to the High Court only if a substantial question of law arises for determination.

Presently ITAT has 63 Benches at 27 different stations covering almost all the cities having a seat of the High Court