Judgments
High Court of Punjab and Haryana
Rakesh Kumar Singla vs. Union Of India
MANU/PH/0011/2021
14.01.2021
Narcotics
Certificate under Section 65B of Indian Evidence Act is necessary, when reliance is being placed upon electronic record
The instant petition has been filed for grant of regular bail to the Petitioner in case bearing Crime under Sections 8, 21, 22, 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The Petitioner submitted that, the Petitioner was neither arrested on the spot nor any recovery of contraband was effected from him and thus, he has been illegally detained.
In the instant case, the Narcotics Bureau is relying not only upon the statement given by a co-accused implicating the Petitioner but also upon a statement given under Section 67 of the NDPS Act by the Petitioner. The Petitioner has been nominated as an accused on the disclosure statement of co-accused who had sent the consignment to Ferozepur. The complicity of the Petitioner will have to be determined by the quality of evidence led during trial. As far as the self inculpatory statement relied upon, present Court is prima facie of the opinion that, the ratio as laid down in the reference order in Tofan Singh Vs. State of Tamil Nadu case would come to the aid of the Petitioner to allow him the benefit of regular bail.
Learned counsel for the NCB has also placed reliance on Whatsapp messages by which the Petitioner could be implicated. However, on the asking of this Court, whether a certificate under Section 65B of the Indian Evidence Act, 1872 is available at the present moment to authenticate the said messages, the answer is in negative. The recent judgment rendered by the Supreme Court in the matter of Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and others has held that, a certificate Section 65B of the Indian Evidence Act is required, when reliance is being placed upon electronic record. Therefore, the said message would be of no evidentiary value as on date.
The investigation in the matter is complete and the challan stands presented and therefore, present Court is of the opinion that, no useful purpose would be served in keeping the Petitioner behind bars. The instant petition is allowed and the Petitioner is directed to be released on regular bail on execution of adequate personal/ surety bond of an amount of Rs.10 Lakhs to the satisfaction of concerned trial Court/Duty Magistrate. The Narcotics Bureau would always be at liberty to rely upon the Whatsapp messages after due compliance of provisions of Section 65-B of the Indian Evidence Act.
Tags : Bail Compliance Provisions
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Income Tax Appellate Tribunal
SSE Commodities Pvt. Ltd., New Delhi vs. Income Tax Officer
MANU/ID/0028/2021
14.01.2021
Direct Taxation
Disallowance under Section 14A of IT Act could not be exceeded more than the dividend income earned by the assessee
Appeal by assessee has been directed against the order of Commissioner CIT(Appeals). The Learned CIT(A) enhanced the assessment by making disallowance under Section 14A and made the addition of Rs. 1,03,162 under Section 14A of Income Tax Act, 1961 (IT Act). Assessee submitted that, assessee has explained before the CIT(A) that, assessee has earned dividend amounting to Rs. 25,015 from Kotak Arbitage Fund which is not claimed as exempt in the computation of income and included in the total income. Assessee has paid tax on the same dividend income also. Assessee has, therefore, restricted his arguments to the point that, addition should be restricted to the amount of Rs. 25,015 only and since tax is already paid on this amount by including the same in the computation of income, therefore, no further addition is to be made against the assessee.
The Hon'ble Delhi High Court in the case of CIT vs. Joint Investment Pvt. Ltd. held that, disallowance under Section 14A of IT Act could not be exceeded more than the dividend income earned by the assessee. Since in the case of the assessee the record clearly revealed that, assessee has earned dividend income of Rs. 25,015 only, therefore, the addition shall have to be restricted to Rs. 25,015 only as against Rs. 1,03,162. The assessee further claimed that tax has already been paid on amount of Rs. 25,015, therefore, no further addition shall have to be made.
The orders of the authorities below are set aside and the AO is directed to restrict the disallowance under Section 14A of IT Act to the tune of Rs. 25,015 only. AO is directed to verify, if assessee has paid tax on this amount by including the same in the total income of the assessee then no further disallowance shall be made against the assessee. The appeal of assessee is partly allowed.
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Customs, Excise and Service Tax Appellate Tribunal
Orion Steel Corporation vs. C.C.E Vadodara-Ii
MANU/CS/0001/2021
13.01.2021
Excise
Ownership of goods is immaterial for the purpose of fixing duty liability
Present Appeal has been filed against confirmation of demand of Central excise, Interest and Imposition of Penalty. Learned Counsel for the Appellant submits that, the Appellant Company is engaged in manufacture of welding electrodes on job work basis and pointed out that, these electrodes carried the brand name ("Sun Arc") which belonged to the Appellant. He submits that, the case of the Department is that, the electrodes manufactured by Orion Wire Manufacturing Company bear the brand name of the Appellant's company, Clearance of such welding electrodes have to be included in the aggregate clearances of the appellant for the purpose of Notification No. 8/2003 -CE. The demand of duty has been calculated in the above manner by including the value of clearance of the goods manufactured by Orion Wire Manufacturing Company in the total clearances of the Appellant.
The Appellant is the owner of the brand name "Sun Arc". They are getting electrodes manufactured by the Orion Wire Manufacturing Company on job work basis by supplying materials to them. The electrodes manufactured by the job worker are cleared from the job worker premises directly. Raw materials for the manufacture of the electrodes are supplied by the Appellant. The duty on the electrodes is paid by the job worker on the price at which the goods are sold by the Appellant to the buyers. The Value Added Tax is paid by the Appellant. Retail invoices are also issued by the Appellant in respect of this clearance from the Job premises. The revenue is seeking to club the clearance made from the job worker premises into the clearances of the Appellant for calculating the benefit of SSI Exemption available to the Appellant. Notification No. 8/ 2003-CE grants duty exemption to clearance made by small scale units. This notification provides exemption to first clearances upto an aggregate value not exceeding Rs.100 lakhs made on or after 1st day of the April of any financial year. This exemption is subject to the condition that, the aggregate value of clearances of all excisable goods for home consumption by a manufacturer from one or more factories, or from a factory by one or more manufacturers does not exceed (rupees four hundred lakhs) in the preceding financial year.
The larger bench of Tribunal in case of Thermax Babcock & Wilcox Ltd. vs. Deputy Commissioner of Income Tax has clearly held that, the job worker being the manufacturer of goods is liable to pay duty on goods manufactured by him albeit on job work. The ownership of the goods is immaterial for the purpose of levy of duty and thus, any person who has undertaken the activity of manufacture is liable to pay duty. In order to save the job worker from payment of duty, the principal manufacturer has to own the liability to pay such duty. It is only by virtue of the Notification No. 214/86-C.E., dated 25th March, 1986 that the liability of the job worker to pay duty is transferred to the principal manufacturer who undertakes to pay duty.
It is apparent that, the Appellant cannot be held to be manufacturer of goods and the job worker is the manufacturer in the facts of present case. The liability to pay duty arises at the end of the job worker and not at the end of the Appellant although Appellant is the supplier of the raw materials. It is also clearly held in the case of Thermax Babcock & Wilcox Ltd. vs. Deputy Commissioner of Income Tax that, ownership of goods is immaterial for the purpose of fixing duty liability. Moreover, in the facts of present case, none of the provisions of Notification 8/2003-CE are attracted which can enable revenue to include the value of clearances of goods manufactured by the job worker in the aggregate value of the clearances of the Appellant. There is no substance in the argument of the revenue to hold that, Appellant are the manufacturer and the benefit of the Notification 8/2003-CE can be denied by including the value of clearances of goods manufactured by the job worker in the aggregate clearances of the Appellant. The impugned order is set aside. Appeal allowed.
Tags : Demand Confirmation Legality
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Supreme Court
Anversinh Vs. State of Gujarat
MANU/SC/0018/2021
12.01.2021
Criminal
Consent of minor is of no defence to charge of kidnapping
The Appellant impugns the judgment pronounced by the High Court by which his conviction under Section 376 of the Indian Penal Code, 1860 (IPC) was overturned, but the charge of kidnapping under Sections 363 and 366 of IPC was upheld and consequential sentence of rigorous imprisonment of five years was maintained.
A perusal of Section 361 of IPC shows that, it is necessary that there be an act of enticing or taking, in addition to establishing the child's minority (being sixteen for boys and eighteen for girls) and care/keep of a lawful guardian. Such 'enticement' need not be direct or immediate in time and can also be through subtle actions like winning over the affection of a minor girl. However, mere recovery of a missing minor from the custody of a stranger would not ipso-facto establish the offence of kidnapping.
Consent of the minor is immaterial for purposes of Section 361 of IPC. Indeed, as borne out through various other provisions in the Indian Penal Code and other laws like the Indian Contract Act, 1872, minors are deemed incapable of giving lawful consent. Section 361 of IPC, particularly, goes beyond this simple presumption. It bestows the ability to make crucial decisions regarding a minor's physical safety upon his/her guardians. Therefore, a minor girl's infatuation with her alleged kidnapper cannot by itself be allowed as a defence.
Similarly, Section 366 of IPC postulates that once the prosecution leads evidence to show that the kidnapping was with the intention/knowledge to compel marriage of the girl or to force/induce her to have illicit intercourse, the enhanced punishment of 10 years as provided thereunder would stand attracted.
It has not been the Appellant's case that, he had no active role to play in the occurrence. Rather the eye-witnesses have testified to the contrary which illustrates how the Appellant had drawn the prosecutrix out of the custody of her parents. Even more crucially, there is little to suggest that, she was aware of the full purport of her actions or that she possessed the mental acuities and maturity to take care of herself. In addition to being young, the prosecutrix was not much educated. Her support of the prosecution version and blanket denial of any voluntariness on her part, even if presumed to be under the influence of her parents as claimed by the Appellant, at the very least indicates that she had not thought her actions through fully.
The Courts below were right in observing that, the consent of the minor would be no defence to a charge of kidnapping. No fault can thus be found with the conviction of the Appellant under Section 366 of IPC.
There cannot be any mechanical reduction of sentence unless all relevant factors have been weighed and whereupon the Court finds it to be a case of gross injustice, hardship, or palpably capricious award of an unreasonable sentence. It would thus depend upon the facts and circumstances of each case whether a superior Court should interfere with, and resultantly enhance or reduce the sentence. The quantum of sentence awarded to the Appellant deserves to be revisited.
In view of multiple unique circumstances, the sentence of five years' rigorous imprisonment awarded by the Courts below, is disproportionate to the facts of the present case. The concerns of both the society and the victim can be respected, and the twin principles of deterrence and correction would be served by reducing the Appellant's sentence to the period of incarceration already undergone by him.
The prosecution has established the Appellant's guilt beyond reasonable doubt and that no case of acquittal under Sections 363 and 366 of the IPC is made out. However, the quantum of sentence is reduced to the period of imprisonment already undergone. The appeal is, therefore, partly allowed.
Tags : Conviction Sentence Legality
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High Court of Madras
Greaves Cotton Ltd. Vs. Inspector of Police, Ranipet and Ors.
MANU/TN/0041/2021
11.01.2021
Criminal
Petition for police protection under Section 482 of CrPC is not maintainable
The Petitioner Company was running a Factory at Ranipet and it had employed nearly 146 persons to carry on with its operations. Certain demands were raised by the 2nd Respondent Union during the month of June 2020. The matter was referred to the Conciliation Officer, Vellore. An attempt was made to conciliate the dispute between the parties but however, the same ended in a failure and a failure report was submitted by the Conciliation Officer to the Government through proceedings.
The Government referred issues for adjudication to the Industrial Disputes Court. In the meantime, the Petitioner Company stopped the operations in the Factory at Ranipet and wanted to shift its assets from the premises and the same was resisted by the aggrieved workers. Therefore, the present Criminal Original Petition has been filed seeking for Police protection to remove the assets from the Factory premises.
The Petitioner Company had stopped the production in the Factory premises from March 2020 onwards. An attempt was made to transfer the employees to the other Units belonging to the petitioner Company and it was not accepted by many of the employees. That apart, an attempt was also made to settle the monetary benefits to the employees on a golden handshake policy and it was accepted only by some of the employees. The petitioner Company claims that the Factory has been closed down and the 2nd respondent Union refutes this claim on the basis that there is no closure in the eye of law and it has not taken place as per the provisions of the Industrial Disputes Act. A substantial amount has also been claimed towards the settlement by the employees represented by the 2nd Respondent Union.
A petition for Police Protection under Section 482 of Code of Criminal Procedure, 1973 (CrPC), is not maintainable. However, this Court has also been vested with jurisdiction under Article 226 of the Constitution of India to issue writs on the criminal side. Therefore, the only issue that requires consideration is as to whether this Court should exercise its discretion and issue directions to the Respondent Police to grant Police Protection in order to enable the Petitioner to move the assets from the Factory premises.
In view of claims made by the aggrieved employees represented by the 2nd Respondent Union and also taking into consideration the fact that, the Government has already referred the dispute to the Industrial Disputes Court for adjudication and substantial rights of the parties are involved to be adjudicated by the Industrial Disputes Court, present Court is of the considered opinion that, this is not a fit case to exercise its discretion and provide for Police Protection to remove the assets from the Factory premises. Such removal of assets from the Factory premises may have a bearing on the claims made by the employees represented by the 2nd Respondent Union. Therefore, the Police should not be involved in a case of this nature where there is an Industrial dispute pending adjudication. Hence, this Court is not inclined to grant the relief as claimed by the Petitioner Company. Petition dismissed.
Tags : Pending dispute Police protection Entitlement
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Income Tax Appellate Tribunal
Deputy Commissioner of Income Tax, Circle-1(1)(2) Vs. Inox India Private Limited
MANU/IB/0007/2021
11.01.2021
Direct Taxation
Remittance made by the assessee abroad towards commission expenses is not chargeable to tax in India
In instant case, the Assessing Officer (AO) disallowed claim towards commission expenses on export sales to the extent of Rs. 78,90,570 in the course of the assessment carried out under Section 143(3) of the Income Tax Act, 1961 (IT Act) on the ground that, the assessee has defaulted in deduction of tax at source under Section 195(1) of the IT Act. As a consequence of alleged default, provisions of Section 40(a)(i) of the IT Act was invoked and expenses incurred were disallowed to the extent of 30% of such expenses. The AO also observed that, the expenses incurred are in the nature of 'fee for technical services' and thus falls within the sweep of Section 9(1)(vii) read with Explanation (2) thereto as against the claim of the assessee that, commission payments are business expenses without involvement of any managerial, technical or consultancy services. Aggrieved by the disallowance, the assessee preferred appeal before the Commissioner of Income Tax (Appeals) [CIT(A)]. The CIT(A) reversed the action of the AO.
The solitary issue involved in the instant case is, whether in the facts of the case, the remittance made by the assessee abroad towards commission expenses is chargeable to tax in India or not and consequently, whether the commission payment is susceptible to provisions of Section 195 of the IT Act or not.
It is the case of the assessee that, the remittance have been made towards commission payments almost to the same parties as in the earlier years for which favourable view has been taken by the Tribunal on facts. Further, the commission agents have rendered the services abroad and the situs of accrual or receipt of their commission income is outside India. It is further claimed that, services rendered by agents have been utilized by the assessee outside India in procuring the export orders.
The issue is squarely covered in favour of the assessee by the decision of co-ordinate bench for Assessment Year 2010-11 (AY 2010-11) as rightly acknowledged by the CIT(A). The commission payments are seen to be made to the similar set of parties as in AY 2010-11. Except for bald allegation of the services being akin to managerial or consultancy services, the AO has not brought any material on record to discard the stand of assessee. The services in respect of commission expenses are stated to be rendered outside India as well as utilized outside India and therefore, the income arising by way of commission against rendition of agency services cannot be deemed to accrue or arise in India in the hands of the recipients of such commission payments.
In the circumstances, where the income arising to non-resident commission agents is not found to be chargeable in India under Section 4 read with Section 5(2) of the IT Act, the obligation under Section 195 of the IT Act for deduction of tax at source cannot be fastened upon the remitter assessee. In the absence of statutory obligation arising under Section 195 of the IT Act for deduction of tax and in the absence of chargeability of remittances, the corresponding disallowance under Section 40(a)(i) of the IT Act is without any merit and thus uncalled for. There is no error in the action of the CIT(A) who has rightly applied the decision of the Tribunal in the facts of the case. Appeal of the Revenue is dismissed.
Tags : Assessment Tax Levy
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