Judicial updates -21st January 2022

SC in G.T. Girish Vs Y. Subba Raju (D) By LRs judgment dated 18th Jan 2022 held that Subordinate Legislation in the form of Statutory Rules is a ‘law’ u/s 23 of Indian Contract Act


Matter involving large scale State Revenues should be disposed speedily Dalmia Refractories Limited Vs State of Tamil Nadu (Madras High Court) dated 11/01/2022


One Time Settlement (OTS) of Bank Loan is Not a Right of Borrowers held by SC in
matter of Bijnor Urban Cooperative Bank Limited dated 15/12/2021


SEBI impose penalty for dealings in illiquid Stock Options at the BSE In Re Ashok Kumar Sharma HUF (SEBI) -23/12/2021


Taxation

Rajasthan HC disposes Plea seeking extension of due dates till portal Glitches removed

Tax Bar Association Vs Union of India (Rajasthan High Court) dated 12/01/2022

If AO accepts objections of assessee and does not assess or reassess the income which was the basis of notice than he cannot made additions on other issues

Yashoda Shivappa Nagangoudar Vs ITO (Bombay High Court) dated 05/01/2022

Provisional custom duty paid by Assessee cannot be treated as deposit

Nirma Ltd Vs C.C.-Jamnagar(prev) (CESTAT Ahmedabad) dated 13/01/2022

Bombay HC in Vodafone Idea Ltd. Vs ACIT dated 03/01/2022 held-

Reopening of Assessment not permissible to take another view on same material

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Delhi Customs Officials recover smuggled gold worth over Rs 7.5 lakh along with Fake Indian Currency Notes worth Rs 10 lakhs at IGI Airport; 2 arrested (Press release dated 14th Jan 2022)

On 12.01.2022, one Indian passenger, who arrived at T-3, IGI Airport, New Delhi from Ras AI Khanimah International Airport UAE by Flight No. SG753 dated 12.01.2022, was intercepted by the Customs Officers of IGI Airport.

The Customs officers recovered 24 (Twenty four)  pieces of silver plated cylindrical shaped of gold totally weighing 175 grams having tariff value Rs. 7,65,089/-(Rupees Seven Lakh Sixty Five thousand Eighty Nine only) and FICN (Fake Indian Currency Notes) of  face value Rs. 10,00,000/- ( Rupees Ten Lakhs Only) (2,000 notes of denomination 500)  from the pax. In follow up, one Indian national was also intercepted who was supposed to receive the passenger at the arrival gate of the IGI Airport, New Delhi.

The said recovered 24 (Twenty four)  pieces of silver plated cylindrical shaped of gold totally weighing 175 grams and FICN of face value Rs.10,00,000/- were concealed by the pax in his trolley bags and the same were seized under Section 110 of the Customs Act, 1962, on 12.01.2022. The pax and his receiver have been placed under arrest in terms of Section 104 of the Customs Act, 1962. Further investigation is under progress. NIA has also been intimated and they have joined the investigation.

Evasion of Customs duty of Rs. 653 crore by M/s Xiaomi Technology India Private Limited (Press release dated 05th Jan 2022)

Based upon an intelligence that M/s Xiaomi Technology India Private Limited (Xiaomi India) was evading customs duty by way of undervaluation, an investigation was initiated by the Directorate of Revenue Intelligence (DRI) against Xiaomi India and its contract manufacturers. During the investigation, searches were conducted by the DRI at the premises of Xiaomi India, which led to the recovery of incriminating documents indicating that Xiaomi India was remitting royalty and licence fee to Qualcomm USA and to Beijing Xiaomi Mobile Software Co. Ltd., under contractual obligation. Statements of key persons of Xiaomi India and its contract manufactures were recorded, during which one of the directors of Xiaomi India confirmed the said payments.

During the investigations, it further emerged that the “royalty and licence fee” paid by Xiaomi India to Qualcomm USA and to Beijing Xiaomi Mobile Software Co. Ltd., China (related party of Xiaomi India) were not being added in the transaction value of the goods imported by Xiaomi India and its contract manufacturers.

The investigations conducted by the DRI further showed that Xiaomi India is engaged in the sale of MI brand mobile phones and these mobile phones are either imported by Xiaomi India or assembled in India by importing parts and components of mobile phones by contract manufacturers of Xiaomi India. The MI brand mobile phones manufactured by the contract manufacturers are sold exclusively to Xiaomi India, in terms of the contract agreement.

Evidence gathered during the investigations by the DRI indicated that neither Xiaomi India nor its contract manufactures were including the amount of royalty paid by Xiaomi India in the assessable value of the goods imported by Xiaomi India and its contract manufacturers, which is in violation of Section 14 of the Customs Act, 1962 and Customs valuation (determination of value of imported goods) Rules 2007. By not adding “royalty and licence fee” into the transaction value, Xiaomi India was evading Customs duty being the beneficial owner of such imported mobile phones, the parts and components thereof.

After completion of the investigation by the DRI, three show cause notices have been issued to M/s Xiaomi Technology India Private Limited for demand and recovery of duty amounting to Rs. 653 crore for the period 01.04.2017 to 30.06.2020, under the provisions of the Customs Act, 1962.

7,288 kg gold seized by Customs and DRI in less than 3 years (Press Release dated 21st Dec 2021)

Customs field formations and Directorate of Revenue Intelligence have seized 3626.85 kg during 2019-20, 1944.392 kg during 2020-21 and 1717.396 kg during 2021-22 (till November). This was stated by Union Minister of State for Finance Shri Pankaj Chaudhary in a written reply to a question in Rajya Sabha.

However, the Minister stated, being a clandestine activity, the quantity of gold smuggled into the country cannot be accurately estimated.

The Minister stated that there is no credible report / study from which any inference on the impact of flourishing unofficial trade on organized bullion and jewellery trade can be made. The Government makes policy interventions and also takes operational measures to check smuggling, the Minister added.

Revival of Exports (Press release dated 10th Dec 2021)

There are signs of revival of exports of the country. India’s overall exports (merchandise and services) has increased by 39.74% in 2021-22 (April-October) as compared to the corresponding period of previous year.

In order to boost India’s exports, the Government has taken several measures which include:

  1. The mid-term review (2017) of the Foreign Trade Policy (2015-20) was carried out and corrective measures were undertaken.
  2. Foreign Trade Policy (2015-20) extended by one year i.e. upto 31-3-2022 due to the COVID-19 pandemic situation.
  3. Assistance provided through several schemes to promote exports, namely, Trade Infrastructure for Export Scheme (TIES) and Market Access Initiatives (MAI) Scheme. 
  4. A Central Sector Scheme –‘Transport and Marketing Assistance for Specified Agriculture Products’–for providing assistance for the international component of freight to mitigate the freight disadvantage for the export of agriculture products.
  5. Remission of Duties and Taxes on Exported Products (RoDTEP) scheme and Rebate of State and Central Levies and Taxes (RoSCTL) Scheme have been launched with effect from 01.01.2021.
  6. Common Digital Platform for Certificate of Origin has been launched to facilitate trade and increase FTA utilization by exporters.
  7. Promoting and diversifying services exports by pursuing specific action plans for the 12 Champion Services Sectors.
  8. Promoting districts as export hubs by identifying products with export potential in each district, addressing bottlenecks for exporting these products and supporting local exporters/manufacturers to generate employment in the district.
  9. Active role of Indian missions abroad towards promoting India’s trade, tourism, technology and investment goals has been enhanced.
  10. Package announced in light of the Covidpandemic to support domestic industry through various banking and financial sector relief measures, especially for MSMEs, which constitute a major share in exports.

This information was given by the Minister of State in the Ministry of Commerce and Industry, Smt. Anupriya Patel, in a written reply in the Rajya Sabha today.

Judiciary updates-03rd Dec 2021 (Income tax, GST & Corporate Laws)

Income Tax

Supreme Court dismisses Transfer Petition as withdrawn

 Rajinder Kumar Vs Central Board of Direct Tax & Anr. (Supreme Court of India) dated 15/11/2021

No addition of unaccounted investment if transactions were via Banking Channels

 ITO Vs Vaneet Mittal (ITAT Chandigarh) dated 22/10/2021

Petitioner entitled to avail NIL rate of withholding tax on aircrafts leased to AIL – Delhi HC

Celestial Aviation Trading 64 Limited Vs ITO (Delhi High Court) dated 12/11/2021

No deemed dividend on loan given on interest to Sister Concern for business

TCI Exim Pvt. Ltd. Vs ACIT (ITAT Delhi) dated 02/11/2021

GST

HC directs GST dept to reconsider registration of petitioner as composite dealer instead of regular dealer

Varsha Ritu Vs Union of India (Rajasthan High Court, Jodhpur Bench) dated 08/11/2021

HC Quashed order Cancelling GST Registration without Opportunity of Hearing

 S.S. Traders Vs State of U.P And 3 Others (Allahabad High Court) dated 02/11/2021

IGST Payable on supply of Import services under RCM

 In re GSPC(JPDA)LTD (GST AAR Gujarat) dated 06/09/2021

GST Evasion accused released on regular bail after 2½ years

Manish Vs State of Haryana (Punjab and Haryana High Court) dated 29/10/2021

Corporate Laws

Accident claim benefit available only when accident took place after reviving of policy

Life Insurance Corporation of India Vs Sunita (Supreme Court of India) dated 29/10/2021

HC expunges adverse remarks made by Customs Commissioner against an Advocate

 M. S. Srinivasa Vs Union of India (Karnataka High Court) dated 10/11/2021

DRI intercepts 2 passengers with illicit foreign currency worth Rs 3.7 crore at Mumbai International airport (MoF Press Release 26 Nov 2021)

Under Operation Cheque Shirts, using data analytics, Directorate of Revenue Intelligence developed specific intelligence on two passengers intending to smuggle foreign currency outside India. DRI officers intercepted these two passengers at the Chhatrapati Shivaji Maharaj International Airport, Mumbai, in the early hours of 26th November, 2021.  They were scheduled to travel to Sharjah. Examination of their baggage yielded foreign currency in the form of US Dollars and Saudi Dirhams, valued at Rs 3.7 crore.

 

The foreign currency was found concealed deep in ingeniously designed false bottoms of the carry-on luggage. The mode and manner of concealment would have made the detection difficult in ordinary baggage scans.

The two intercepted passengers had no documents for the illicit possession or for legal export of the said foreign currency. The foreign currency recovered from these passengers has been seized in terms of Section 110 of the Customs Act, 1962. Further investigations in the matter are on.

Besides amounting to “smuggling” in terms of the Customs Act, illicit export of foreign currency provides a means for laundering proceeds of unlawful and criminal activities. Further, it also poses a grave threat to national economy and national security.

DRI maintains an active vigil and operational readiness to check the smuggling of foreign currency, gold, narcotics and other contraband goods into and out of India. This was the fourth such case of large foreign currency seizure at an international airport, in the last one and a half months.

CBIC Chairman inaugurates Customs & GST pavilion at 40th India International Trade Fair (MoF Press Release dated 15 Nov 2021)

Shri M. Ajit Kumar, Chairman, CBIC, inaugurated the Customs & GST pavilion here today at Hall no.12 of Pragati Maidan, New Delhi.

Central Board of Indirect Taxes and Customs (CBIC) has set up Customs & GST pavilion in the 40th edition of India International Trade Fair. The CBIC has been putting up pavilions in the IITFs since 2012 with an objective to educate visiting members of trade & public about compliance requirements under GST and Customs Acts and to inform them about various trade facilitation measures which the Department periodically takes.

Aligned to ITPO’s theme of Atmanirbhar Bharat, theme-based events on each day are being organised in the Customs & GST pavilion. Sessions on Government of India initiatives to encourage ‘Make in India’ such as Manufacturing and other Operations in Warehouse Regulations (MOOWR) Scheme, Production linked Incentive (PLI) Scheme and Import of Goods at Concessional Rate of Duty Rules, 2017 (IGCR, 2017) are being organised. CBIC’s initiatives on leveraging technology in Customs & GST, cross-border e-Commerce, and securing transactions in Customs will also be showcased and discussed. Various Industry partners such as Invest India, EICI, FIEO and CII have associated with CBIC to organise these theme-based events.

Six Helpdesks viz. GST, Customs, Authorized Economic Operator (AEO) scheme, GSTN and Systems have been setup in the pavilion. Officers from the concerned departments will be available to discuss and suggesting resolution to the issues faced by the tax-payers and visitors. Based on the theme of taxation, the pavilion will also engage and educate general public through quiz competitions, nukkad nataks, pantomimes etc. Some of the illustrious and internationally awarded sports persons who are employed with Department will also be available for interaction with public.

All Covid-19 protocols are being followed at the Customs & GST pavilion.

2 arrested with 12.9 kg of heroin worth Rs 90 crore by Customs officials at IGI airport (MoF Press Release dated 13th Nov 2021)

Scaling up its fight against the drug smugglers and syndicates, Customs officers at IGI Airport, New Delhi in yet another successful operation seized a cumulative quantity of 12.9 Kg of Heroin from two Ugandan Nationals who had arrived from Nairobi (Kenya) via Abu Dhabi during the intervening night of 12th and 13th November 2021. The value of the seized Narcotic is approximately pegged at Rs 90 Crore as per the prevailing International prices.

The narcotic and the smugglers had passed through several jurisdictions including Uganda, Kenya and India, before being intercepted. The said heroin was concealed in the false bottom of their check-in luggage.

Picture 1Picture 2

A total of 12.900 Kg of crystalline heroine was recovered from two lady Ugandan Passengers, from their three suitcases.

The baggage of the passengers was also sniffed by the canines of the Dog Squad of the Indian Customs stationed at the Delhi Airport and the canine indicated the presence of some narcotic substance in the baggage. On detailed personal and baggage search and questioning, the lady passengers admitted to having brought the heroine in their checked in baggage by ingeniously concealing the Heroin in the specially made cavities beneath the fake layer of fibre-plastic base on both the sides of the suitcases. It was vacuum packed in plastic and paper bags containing crystalline form of off-white-coloured powder/granules of Heroin.

During the questioning, one of the lady passengers revealed that she was introduced to a Kenyan national, who had promised her money in exchange of delivery of certain goods in Delhi. Thus, on this invite, the lady passenger travelled to Nairobi from Kampala by road where the Kenyan handed over a bag to be delivered in Delhi while also providing tickets and certain documents to cover her visit as a Medical tourist. She was supposed to deliver the goods to a person who would contact her on exit. When she was intercepted by Customs officials, she was found to be in possession of a bag with a false bottom/cavity where 5.4 kg of Heroin was concealed.

The other female passenger was also intercepted in the same flight in almost similar manner wherein she was found to be in possession of two bags with false bottom/cavity containing cumulative of 7.5 kg of concealed heroin. During her preliminary questioning, the lady passenger revealed that she was sent by her sister from Kampala to Nairobi by road and from there to Delhi via Abu Dhabi by the aforementioned flight. This passenger was also possessing certain documents to fake the profile of a medical tourist.

Picture 3Picture 4

The success against the drug smuggling menace comes in the wake of earlier seizure of approx. 3 kg of heroin recovered from a Kenyan National who had arrived in the intervening night of 28th and 29th October 2021 from Nairobi via Sharjah. Before also, on 23.04.2021, two Indian nationals who were coming from Uganda were intercepted with 2 kg of heroin wherein investigation resulted into identification of 3 more accused persons who are based out of Uganda.

In this calendar year, the Delhi Customs have seized more than 100 kg of heroin. More than 26 persons have been arrested. Given the spurt in the attempts to smuggle in narcotics through the passenger route, Indian Customs have heightened the scrutiny and checking of suspects through robust intelligence gathering mechanism and pin pointed profiling at all the international airports. Customs department is at the forefront of crusade against the drugs smuggling and syndicates. In September this year, a huge consignment of 3000 kg of heroin were seized at Mundra port.

CBIC launches online digital application for scheduling of examination of cargo for traders at ICD Tughlakabad, Delhi (MoF Press Release dated 11th Nov 2021)

CBIC launches online digital application for scheduling of examination of cargo for traders at ICD Tughlakabad, Delhi


ICD Tuglakabad’s initiative will improve logistics efficiency of industry by launching Customs clearance work on Sundays and all public holidays

Customs at ICD Tuglakabad also inaugurates Baggage Scanner for non-intrusive examination of unaccompanied baggage/palletized import Cargo

As a major push in technology and digitalisation, Delhi Customs Zone took three important initiatives today.

An online facility for scheduling examination of Import cargo with the aim of minimising physical interface of trade with Customs and other stakeholders was launched. It is multi-stakeholder application where Customs, CONCOR, Customs brokers and importers on the same platform having a shared view of scheduling examination of goods.  This initiative will ensure fullest transparency alongside of convenience for trade and other stakeholders.

Customs at ICD Tuglakabad also inaugurated a Baggage Scanner, which will result in non-intrusive examination of unaccompanied baggage/palletized import Cargo while ensuring swifter clearances. This will also help Customs in targeted intervention to check smuggling. Few days earlier an electronic tracking of containerised cargo through use of Smart locks and an application built on Blockchain technology was launched. This enables customs to monitor and track movement of non-duty paid goods through GPS tracking while reducing compliance burden on trade in terms of documentation.

In another first, ICD Tuglakabad has taken the initiative of improving the logistics efficiency of industry by launching Customs clearance work on Sunday and all public holidays. This facility at ICD TKD is being implemented w.e.f. 14.11.2021 (Sunday) with work hours between 9:30 am to 6:00 pm. In this regard, Public Notice No. 34/2021 and Public Notice no. 04/2021 both dated 10.11.2021 has been issued by the Offices of Pr. Commissioner of Customs (Import) and Commissioner of Customs (Export), ICD-Tughlakabad (Import), New Delhi respectively.

ICD Tughlakabad (TKD) since 1993, at its present location, was the second Land port to be set up in the country after Bangalore in 1983. It caters to the need of importers and exporters and is the biggest inland dry port of North India. This port handles around 2,50,000 TEUs of Exim Cargo and is well connected with four full length rail lines to Gateway ports such as Mumbai, Nhava Sheva, Chennai, Mundra etc. besides bringing the containers by road from other ports such as Ludhiana, Haldia, Calcutta and Kandla, etc. ICD TKD is equipped with most modern facilities such as rail mounted gantry of 40 metric empty lifting capacity, rubber tire diesel powered cranes, billoties and lift trucks, etc.  along with two covered sheds, one for import and another for export with a total area of 16,000 sq. mts. in the Customs  bonded area for stuffing and de-stuffing of Exim goods. With these ultra-modern facilities, ICD-TKD, New Delhi, has developed into the largest multi-modal centre in the Indian sub-continent.

Special Secretary & Member (I.T. & Taxpayer services), Shri Sandeep Kumar, Shri Surjit Bhujbal, Chief Commissioner, Delhi Customs Zone along with other senior officers from ICD Tughlakabad, Parpargunj, Air Cargo Complex, Airport, Audit, Appeals and DG Systems graced the occasion.