High Court of Delhi

Govt Of Nct Of Delhi & Ors. vs. Jay Prakash Soja (Neutral Citation: 2024: DHC: 2462-DB)

MANU/DE/2322/2024

28.03.2024

Service

It is always open for the employer to change the promotion criteria as and when deemed necessary

The present writ petition under Articles 226 and 227 of the Constitution of India, 1950 seeks to assail the order passed by the learned Central Administrative Tribunal (Tribunal). Vide the impugned order, the learned Tribunal has allowed the original application (OA) filed by the respondent/applicant by holding that the changed criteria for grant of senior scale, as notified on 5th March, 2010, could not be made applicable to the respondent as he had joined service much prior i.e., on 18th October, 2004 and, would therefore, be governed by the notification dated 30th December, 1999.

As per the notification dated 30th December, 1999, six years of service was required for consideration for grant of senior scale, which period was as per notification dated 5th March, 2010, enhanced to nine years qua those candidates who are holding neither Masters degree nor Ph.D.

It is trite law that it is always open for the employer to change the promotion criteria as and when deemed necessary. The only requirement is that the said change should not be arbitrary and should be applied uniformly to all similarly situated employees. Present Court, therefore, have no hesitation in setting aside the impugned order, which proceeds only on the basis of the premise that the respondent's case for grant of senior time scale was required to be considered under the notification dated 30th December, 1999 and not as per notification dated 5th March, 2010.

The Respondent's plea that he was discriminated and his appointment was wrongfully delayed cannot be simply brushed aside. These aspects were not considered by the learned Tribunal. Even though the impugned order is not sustainable and is required to be set aside, taking into account the respondent's specific plea that he was discriminated against, he ought to be granted an opportunity to establish his plea of discrimination before the learned Tribunal. The Original Application is remanded back to the learned Tribunal for fresh adjudication of the same on merits. Petition disposed off.

Tags : Criteria Pay-scale Grant

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High Court of Delhi

Anoop Kumar Mishra vs. Airport Authority Of India & Anr. (Neutral Citation: 2024: DHC: 2451-DB)

MANU/DE/2323/2024

28.03.2024

Service

Writ Court cannot sit in appeal against orders of Disciplinary Authority and Appellate Authority which are prescribed Statutory Authorities under Rules and Regulations

The Petitioner has filed the instant writ petition seeking issuance of issue a writ of Certiorari to quash the order by the appellate body i.e. sub- committee of the board of Airport Authority of India, and for issuance of a writ of Certiorari to quash the order of the Disciplinary Authority i.e. the Chairman of Airport Authority of India.

By the impugned order, the Disciplinary Authority held the petitioner guilty of the charges framed and imposed minor penalty of withholding of one increment of pay for a period of one year with cumulative effect. The Petitioner preferred a Statutory Appeal before the Appellate Authority which too was dismissed vide the impugned order.

The High Courts are highly circumscribed in their exercise of powers of judicial review in disciplinary matters. Infact, there is a clear preclusion from even considering the observations or factual errors in the Inquiry Report etc. The only remainder scope is in respect of such cases where there is gross violation of the prescribed Rules, Regulations or statutory procedure coupled with violation of the principles of natural justice or an imposition of a punishment grossly disproportionate to the charges levelled. Other than these, the Writ Court cannot sit as in Appeal against the orders of the Disciplinary Authority and the Appellate Authority which are prescribed Statutory Authorities under the Rules and Regulations.

A plain reading of Regulation 27 of the Airports Authority of India Employees (Conduct, Discipline and Appeal) Regulations, 2003 (CDA Regulations, 2003) particularly clause (b) would reflect that the punishment of withholding of increment of pay with or without cumulative effect would be considered as a minor penalty. It is not disputed that the petitioner was imposed a penalty of withholding of one increment for a period of one year with cumulative effect.

The petitioner does not dispute that in terms of Regulation 27, he was informed in writing of the imputations of misconduct/misbehaviour; does not dispute that he was indeed given an opportunity to submit his written statement of defence which he availed of; does not dispute that the Disciplinary Authority had indeed considered such defence statement, in which case in the considered opinion of this Court, the respondent had followed the due procedure. So far as the allegation that the Disciplinary Authority or the Appellate Authority did not appreciate the defence statement or the grounds of appeal in the right perspective is concerned, that would not be the matter which can be looked into by this Court as if sitting in appeal. The only prescription is to consider whether any rule or regulation has been violated. None has been brought to the attention of this Court nor could this Court find one. Appeal dismissed.

Tags : Increment Withholding of Legality

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Customs, Excise and Service Tax Appellate Tribunal

The Commissioner, Central Excise & Service Tax vs. Pharmax Corporation Ltd

MANU/CE/0092/2024

27.03.2024

Service Tax

If a service is rendered, but no consideration is received, service tax cannot be charged

In present matter, Pharmax Corporation Ltd. provides various services and pays service tax on them. During the course of audit and scrutiny of balance sheets, it was found that, the Respondent had provided corporate guarantee on behalf of its sister concerns to lenders but had not charged any commission or interest or fees for providing the guarantee.

It is the case of the Revenue that had the sister concerns approached other banks or institutions to obtain a guarantee of equivalent amount, the banks would have charged them certain fees. Such fees would have been taxable at the hands of the banks under the category of "Banking & Financial Services". Therefore, even though the Respondent had not received any consideration for the corporate guarantees which it had provided, a notional value equivalent to the amount which banks could have charged for similar services should be taken as a consideration and service tax should be charged on such notional amount.

There is no dispute that, no consideration was received by the respondent firm in these transactions. A show cause notice was issued to the Respondent invoking extended period of limitation and demanding service tax amounting to Rs. 81,13,864 along with interest and penalties. These proposals were confirmed by the Additional Commissioner in his order-in-original. Aggrieved, the Respondent had appealed.

Service tax can be charged on the consideration received for providing taxable services. In other words, there must be a service provider, a service recipient, a taxable service and a consideration. The service provider shall be liable to pay service tax on the consideration which it receives for providing a taxable service. Any amount which is received but which is not a consideration for providing a taxable service is not exigible to service tax. Similarly, if a service is rendered, but no consideration is received, no service tax can be charged. It is for the reason that if the consideration received is zero, any percentage will be zero itself. This issue has been settled in the series of decisions which have been correctly relied upon by the Commissioner (Appeals) while setting aside the order of the Additional Commissioner.

In the present case, there is not an iota of doubt that no consideration was received at all because the show cause notice itself says so. This being the position, the impugned order is correct and proper and calls for no interference. Appeal dismissed.

Tags : Consideration Charge Levy

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Income Tax Appellate Tribunal

Mangatrai, Hyderabad vs. DCIT

MANU/IH/0068/2024

27.03.2024

Direct Taxation

If any deposit of ESI/PF contribution made by assessee before due date as contemplated by the parent Act, then said amount is allowable as deduction

In present case, Assessee is a partnership firm carrying on business of trading in Gold & silver ornaments and other precious and semi-precious stones under the trade name Mangatrai. The assessee has filed the return of income for A.Y. 2019-20 on 19.09.2019 declaring total income of Rs. 4,25,29,496 and paid tax of Rs. 1,48,6 5,891. The return of income was processed under Section143(1) of the Income Tax Act, 1961 (IT Act). Thereafter, assessee has received an intimation under Section 143(1) of IT Act, making an addition for an amount of Rs.6,53,303 towards belated payment of employees' contribution of PF and ESI as the dates of payments were not appearing in Form 3CD.

The above said addition was made under Section 36(1)(va) of the Income Tax Act, 1961 for not depositing the contributions received from employees towards PF and ESI before the due dates mentioned under PF and ESI Acts. Feeling aggrieved by the intimation under Section 143(1) of the Act, assessee preferred appeal before the learned CIT(A), who granted partial relief to the assessee.

As per the decision of Checkmate Services Pvt. Ltd. Vs. CIT, if any deposit of ESI/PF contribution has been deposited by the assessee before the due date as contemplated by the parent Act i.e, ESI, then the said amount is allowable as deduction. In the present case, it is the case of the assessee that the challan for two months amounting to Rs.1,95,676 were duly deposited with the said authorities and the document to that effect has also been supplied by the assessee to the Revenue.

Present Tribunal remands back the matter to the file of jurisdictional Assessing Officer to verify whether the assessee has deposited the employees contribution under PF before the due date as laid down by the PF Act or not and if on verification, Assessing Officer found that the assessee has deposited the same within the due date, then assessee shall be given the deduction and the Assessing Officer while doing so, shall grant the opportunities of hearing to the assessee in accordance with law. The appeal of the assessee is allowed for statistical purposes.

Tags : Assessment Addition Legality

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Customs, Excise and Service Tax Appellate Tribunal

BSV Shipping Agencies Private Limited vs. Commissioner of GST and Central Excise

MANU/CC/0086/2024

25.03.2024

Service Tax

Demand of Service Tax on ocean freight cannot sustain

The Appellant is engaged in providing Custom House Agent Services, Steamer Agent Services and Business Support Services. The Appellant collected excess amount from their customers over and above the actual ocean freight paid to the shipping lines. They did not discharge Service Tax on the excess amount collected from the clients. The Department was of the view that, the said amount is liable to Service Tax.

The Show Cause Notice was issued to the Appellant proposing to demand Service Tax on excess amount collected to the tune of Rs.85,035. After due process of law, the Original Authority confirmed the demand of Rs.85,035 on excess ocean freight collected by the Appellant during the period from April 2012 to September 2012 along with interest and imposed penalty under Section 76 and 77 of the Finance Act, 1994. Aggrieved by such order, the Appellant filed appeal before the Commissioner (Appeals) who upheld the same. Hence this appeal. The issue to be considered is whether the Appellant is liable to pay Service Tax on excess amount collected towards the ocean freight.

The ocean freight cannot be subjected to levy of Service Tax as it is not a consideration for Steamer Agency Services. The Department itself admits that, these are amounts collected in excess of ocean freight. There is no provision for levy of Service Tax on ocean freight.

Further, as per the decision in the case of Sal Steel Ltd. Vs. Union of India, the Hon'ble High Court has held that, the demand of Service Tax on ocean freight cannot sustain. The said decision was followed by the Hon'ble High Court of Madras in the case of Chennai and Ennore Ports Steamer Agents Association Vs. Union of India. Though Department alleges that, the Appellant has collected excess amount towards freight, the Show Cause Notice does not say as to which category of service the said amount would be liable to Service Tax. So also, it is not stated whether the amount is consideration for Steamer Agency Service. The Show Cause Notice does not propose to include the amount under particular category of service and demand the Service Tax under any category.

The Adjudicating Authority has not made any finding as to whether the excess amount collected would be consideration for service. The Show Cause Notice is the foundation of the litigation. When the Show Cause is insufficient as to clarify the category of service, the demand cannot sustain and requires to be set aside. The impugned order is set aside. Appeal is allowed.

Tags : SCN Tax Levy

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Supreme Court

A.M. Mohan Vs. The State represented by SHO and Ors. (Neutral Citation - 2024 INSC 233)

MANU/SC/0227/2024

20.03.2024

Criminal

Dishonest inducement is the sine qua non to attract the provisions of Sections 415 and 420 of IPC

The present appeal challenges the order passed by the learned Single Judge of the High Court, whereby the High Court rejected the petition filed by the present Appellant under Section 482 of the Code of Criminal Procedure, 1973 (CrPC), to call for the records and to quash the First Information Report ("FIR") registered in connection with the offence punishable under Section 420 read with 34 of the Indian Penal Code, 1860 (IPC).

For attracting the provision of Section 420 of IPC, the FIR/complaint must show that the ingredients of Section 415 of IPC are made out and the person cheated must have been dishonestly induced to deliver the property to any person; or to make, alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security.

The only allegation against the present Appellant is that, Accused No. 1 executed the GPA in favour of the complainant in respect of the land which is purchased from the present Appellant-Accused No. 3. The other allegation is that upon instructions of Accused No. 1 to transfer Rs. 20,00,000 to Accused No. 3's Tamil Nadu Mercantile Bank Account towards sale of the land made by the Appellant-Accused No. 3 to Accused No. 1, the complainant had transferred online a sum of Rs. 20,00,000.

It is an undisputed position that, upon receipt of the said amount of Rs. 20,00,000, the present Appellant had transferred the land in question by sale deed in favour of Accused No. 1. It is also undisputed that, thereafter Accused No. 1 executed the GPA in favour of the complainant on the same day. After the sale deed was executed in favour of Accused No. 1 by the Appellant-Accused No. 3, though the complaint narrates various instances thereafter, no role is attributed to the present Appellant.

No role of inducement has been attributed to the present Appellant. Rather, from the perusal of the FIR and the charge-sheet, it would reveal that there was no transaction of any nature directly between the Appellant and the complainant. The version, if accepted at its face value, would reveal that, at the instance of Accused No. 1, the complainant transferred the amount of Rs. 20,00,000 in the account of the Appellant. On receipt of the said amount, the Appellant immediately executed the sale deed in favour of Accused No. 1, who thereafter executed the GPA in favour of the complainant. After that, no role is attributed to the present Appellant and whatever happened thereafter, has happened between Accused No. 1, the complainant and the other Accused persons. In that view of the matter, the FIR or the charge-sheet, even if taken at its face value, does not disclose the ingredients to attract the provision of Section 420 of IPC qua the Appellant.

The dishonest inducement is the sine qua non to attract the provisions of Sections 415 and 420 of IPC. The same is totally lacking qua the present Appellant. In that view of the matter, continuation of the criminal proceedings against the present Appellant would be nothing else but amount to abuse of process of law resulting in miscarriage of justice. The order of the High Court is quashed and set aside. Appeal allowed.

Tags : FIR Provision Applicability

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