An expression from Aristotle translated into Latin: nemo censetur ignorare legem (nobody is thought to be ignorant of the law) or ignorantia iuris nocet (not knowing the law is harmful).

Ignorantia juris non excusat or ignorantia legis neminem excusat (Latin for “ignorance of the law excuses not” and “ignorance of law excuses no one” respectively) is a legal principle holding that a person who is unaware of a law may not escape liability for violating that law merely because one was unaware of its content.

“Appeal to Income Tax Commissioner” When you can do that? How you can do that?

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INTRODUCTION.

Appeal refers to an act of referring the case to a higher authority against the order passed by a lower authority in respect of that case or matter. It implies a complaint to a higher authority against the order or judgement (alleged to be erroneous) of an administrative authority or appellate authority. At times it may happen that the taxpayer is aggrieved by an order of the Assessing Officer. In such a case he can file an appeal against the order of the Assessing Officer before the Commissioner Of Income-Tax (Appeals) CIT(A). In this part you can gain knowledge about various provisions relating to appeals to CIT(A).

Procedure For Filing of Appeal to ITAT AKT Associates

PARTIES TO AN APPEAL.

There are following two parties to any appeal :
Appellant. The person filing an appeal is called ‘appellant’ or ‘applicant’. Under Income Tax, the first appeal can only be filed by assesse and—hence only assesse can be appellant in such a case. However, in subsequent appeals (i.e., appeal to ITAT, HC or SC) appellant can be assessed or C.I.T.

Defendant / Respondent. The person against whom the appeal is filed is called ‘defendant’ or ‘respondent’.

 

 

 

WHEN APPEAL CAN BE FILED ?

As per Section 246 A The CIT(A) is the first appellate authority. Section 246A specifies the orders against which an appeal can be filed before the CIT(A). The list of major orders against which an appeal can be preferred before the CIT(A) is given below:

  1. Order passed against the taxpayer in a case where the taxpayer denies the liability to be assessed under Income Tax Act.
  2. Intimation issued under Section 143(1)/(1B) where adjustments have been made in income offered to tax in the return of income.
  3. Intimation issued under Section 200A(1) where adjustments are made in the filed statement.
  4. Assessment order passed under Section 143(3) except in case of an order passed in pursuance of directions of the Dispute Resolution Panel
  5. An assessment order passed under Section 144.
  6. Order of Assessment, Re-assessment or Re-computation passed after reopening the assessment under Section 147except an order passed in pursuance of directions of the Dispute Resolution Panel
  7. An order referred to in Section 150.
  8. An order of assessment or reassessment passed under Section 153A or under Section 158BC in case of search/seizure.
  9. Assessment or reassessment order passed under Section 92CD(3).
  10. Rectification order passed under Section 154 or under Section 155.
  11. Order passed under Section 163 treating the taxpayer as an agent of a non-resident.
  12. Order passed under Section 170(2)/(3) assessing the successor of the business in respect of income earned by the predecessor.
  13. Order passed under Section 171 recording the finding about partition of a Hindu Undivided Family.
  14. Order passed by Joint Commissioner under Section 115VP(3) refusing approval to opt for tonnage-tax scheme to qualifying shipping companies.
    Order passed under Section 201(1)/206C(6A) deeming a person responsible for
  15. deduction of tax at source as assesse-in-default due to failure to deduct tax at source or to collect tax at source or to pay the same to the credit of the Government.
  16. Order determining refund passed under Section 237.
  17. Order imposing penalty under Section(s) 221/271/271A/271AAA/271F/271FB/272A/272AA/272B/272BB/275(1A)/158BFA(2)/271B/271BB/271C/271CA/271D/271E/271AAB
    Order imposing a penalty under Chapter XXI.

FEES TO BE PAID FOR APPEAL.

Form 35 shall be accompanied by a fee as under: `

Where the total income/loss of the assessee as computed by the A.O. in the case to which appeal relates is Rs.1,00,000 or less : Rs. 250

Where the total income/loss of the assessee, computed as aforesaid in the case to which appeal relates exceeds Rs. 1,00,000 but does not exceed Rs. 2,00,000 : Rs. 500

Where total income/loss of the assessee, computed as aforesaid in the case to which appeal relates exceeds Rs. 2,00,000 : Rs. 1,000

Where the subject matter of appeal relates to any matter other than specified in clauses (a), (b) and (c) above : Rs. 250

The fee should be credited in a branch of the authorised bank or a branch of the State Bank of India or a branch of the Reserve Bank oIndia after obtaining a challan from the Assessing Officer and a copy of challan sent to the Commissioner of Income-tax (Appeals).

TIME LIMIT FOR FILING APPEAL

According to Section 249(2) The a
Appeal should be presented within a period of 30 days of
the date of payment of tax, where appeal is under Section 248; or
the date of service of notice of demand relating to assessment or penalty if the appeal relates to assessment or penalty; or
However, where an application has been made under Section 270AA(1), the period beginning from the date on which the application is made, to the date on which the order rejecting the application is served on the assesse, shall be excluded.

the date on which intimation or the order sought to be appealed against is served if it relates to any other cases.

As per Section 268 the date on which the order complained of is served is to be excluded. Further, if the assesse was not furnished with a copy of the order when the notice of the order (say notice of demand) was served upon him then the time required for obtaining a copy of the order should be excluded, i.e. period taken for obtaining the order shall be added to the time limit of 30 days.

PROCESS OF PAYMENT OF TAX ONLINE FOR APPEALS.

1. To pay taxes online, login to http://www.tin-nsdl.com > Services > e-payment. You can go and visit following Link – https://onlineservices.tin.egov-nsdl.com/etaxnew/tdsnontds.jsp

2. Select the relevant challan i.e. ITNS 280

3. Enter PAN / TAN (as applicable) and other mandatory challan details like accounting head under which payment is made, address of the taxpayer and the bank through which payment is to be made etc

4. On submission of data entered, a confirmation screen will be displayed. If PAN / TAN is valid as per the ITD PAN / TAN master, then the full name of the taxpayer as per the master will be displayed on the confirmation screen.

5. On confirmation of the data so entered, the taxpayer will be directed to the net-banking site of the bank.

6. The taxpayer has to login to the net-banking site with the user id / password provided by the bank for net-banking purpose and enter payment details at the bank site.

7. On successful payment a challan counterfoil will be displayed containing CIN, payment details and bank name through which e-payment has been made. This counterfoil is proof of payment being made.

PROCEDURE FOR FILING APPEAL FORM 35

Login in your Account using User credentials

                                       ↓

Go to E-File Link and Choose Income Tax Forms
↓
Choose Form No- 35 –Appeal to Commissioner
Appeals.
↓
Now start Filing Form No 35 Online. You will get some details Pre-filed and fill remaining editable details properly.
↓
Now provide details of the order to be appealed against.
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Provide details related to Filed ITR, selected for Scrutiny and against which Appeal is to be filed.
↓

Now Provide details related to Statements of facts, Grounds of Appeal and Additional Evidence related information which is not made available at time of Assessment. This is a very crucial part of Appeal. Adequate attention needs to be paid while preparing Facts and Grounds of Appeal.These are the points on which your case will proceed further. Each matter on which there is controversy/ matter of disputes between assessee and Assessing Officer needs to be explained properly. All facts should be adequately drawn because in case of appeal before ITAT also these Grounds of Appeal play a very crucial role.
↓
Now provide details, whether appeal is filed within time limit or there is any delay in filing Appeal. As explained earlier, appeal is to be filed within 30 days from the date of receipt of order however; CIT (A) has power to condone the delay in filing appeal within the prescribed time period. In case of delay, please provide the reasons of delay. The reason should be genuine.
↓

Now provide details related to Appeal Fees paid and address on which further communication can be done and save the appeal.
↓
After above process, submit the Form 35 and you will get the Acknowledgement number of this Submission

CONCLUSION

The right to appeal is not the natural or inherent right of the assesse. It is available to him only if specifically granted under Income Tax Act. Thus, it is a statutory right of the assesse and cannot be denied to him by any order of the Central Board of Direct Tax (CBDT). It can be snatched from the assesse only by an express provision provided under Income Tax Act. Where it is possible, the CIT(A) shall dispose off the appeal within a period of one year from the end of the financial year in which appeal is filed. The order should be issued within 15 days of last hearing.

Procedural safeguards & immunities under the NDPS Act

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INTRODUCTION

The Narcotic Drugs and Psychotropic Substances Act, 1985 views drug offences very seriously and prescribes stiff penalties. The Act follows a graded system of punishment with the punishment varying with the quantum of punishment being dependent upon whether the offence pertains to small, commercial and intermediate quantities of narcotic drugs and psychotropic substances. For offences involving commercial quantities of drugs, a minimum penalty of ten years rigorous imprisonment is prescribed, which may extend to twenty years. Repeat offences attract one and half times the penalty and in a few cases even the death penalty. Alongside these stringent provisions, the Act has procedural safeguards as follows:

Personal search: Any person being searched has a right to be searched before a Gazetted Officer or a Magistrate (Section 50). The officer searching the person has to explain to the person that he has a right to be searched before a Gazetted Officer or a Magistrate and if the person wishes to be searched before a Gazetted Officer or a Magistrate he should be taken to the Gazetted Officer or the Magistrate and searched. However, if the officer has reason to believe that it is not possible to take him to a Gazetted officer or a magistrate without giving him a chance to part with the drug, controlled substance, etc., he can search him under Section 100 of the Cr. P. C. [Section 50(5) and 50 (6)].

Searches: As per Section 41 of the NDPS Act, Gazetted Officers of the empowered Departments can authorize searches. Such authorization has to be based on information taken down in writing. As per Section 42, searches can be made under certain circumstances without a warrant (from a magistrate) or an authorization (from a Gazetted Officer). In case of such searches, the officer has to send a copy of the information taken in writing or the grounds of his belief to his immediate official superior within 72 hours.

Arrests: The person who is arrested should be informed, as soon as may be, the grounds of his arrest [Section 52 (1)]. If the arrest or seizure is based on a warrant issued by a magistrate, the person or the seized article should be forwarded to that magistrate [Section 52(2)].

The officer who arrests a person has to make a full report to his official superior within 48 hours [section 57 ].

 

Dilution of safeguards under Sections 42 and 50 of the NDPS Act

The Report mentions section 42 (procedure for conducting search without a warrant) and section 50 (procedure for searching a person suspected of carrying drugs) of the NDPS Act in passing. This is surprising as these provisions lay down important safeguards for persons accused of drug offences. During the first ten years of the NDPS Act coming into force, Courts zealously enforced these protections by observing that:-

“It must be borne in mind that the severer the punishment, the greater has to be the care taken to see that all the safeguards provided in a statute are scrupulously followed.”

Compliance with these provisions was considered mandatory and a violation of the conditions contained therein was a ground for acquittal.

 

Immunities for Drug Offences.

Officers: Officers acting in discharge of their duties in good faith under the Act are immune from suits, prosecution and other legal proceedings (Section 69).

Addicts: Addicts charged with consumption of drugs (Section 27) or with offences involving small quantities will be immune from prosecution if they volunteer for de-addiction. This immunity may be withdrawn if the addict does not undergo complete treatment (Section 64A).

Offenders: Central or state governments can tender immunity to an offender in order to obtain his evidence in the case. This immunity is granted by the government and not by the court (Section 64).

Juvenile offenders: Juvenile offenders (below 18 years of age) will be governed by the Juvenile Justice (Care and Protection of Children) Act, 2000.

Immunities to diplomats as applicable.

Conclusion

The importance of this Act in the present scenario is that nowadays we hear a lot about consumption of drugs and such other illicit substances. Even the Government took a brave step by banning all such drugs like HANS, KHAINI, etc. But people are still consuming such deadly substances as they are still available in the market. Another problem arising out of this issue is that even the school going children have started consuming such illicit substances with the help of many middlemen between them and the suppliers of such drugs. Such situations have to be handled by the concerned authorities and also by the parents so that they stop using such drugs. No actions can be adopted by the authorities if there is no public participation in such issues. People living in residential communities may arrange certain awareness programs and periodical inspections at the places where they feel there is a regular consumption of such products. People can also form various action committees for abolishing the explicit usage of such items from the society as such acts do not affect a person alone, but the society as a whole.

Corporate Debtor, Moratorium under Insolvency and Bankruptcy Code?

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Corporate Debtor, MORATORIUM UNDER IBC

What is Moratorium?

Since the implementation of the Insolvency and Bankruptcy Code, 2016, the word ‘moratorium’ has been construed by the judiciary on different levels. The word ‘Moratorium’ has not been defined anywhere in the code. According to the Oxford Dictionary, it means a legal authorization to debtors to postpone payment.

The moratorium under the code implies a period wherein no judicial proceedings for recovery, enforcement of security interest, sale or transfer of assets, or termination of essential contracts can be initiated or proceeded against the Corporate Debtor.  Under section 13(1)(a) of the Code, the adjudicating authority is required to enforce a moratorium for matters mentioned in section 14.The Adjudicating Authority (NCLT or NCLAT), whilst taking up a petition against the Corporate Debtor is required to declare the moratorium period as described under Section 14 of the Code.

When a corporate debtor goes into Corporate Insolvency Resolution Process [hereinafter alluded to as “CIRP”], after the confirmation of the petition filed against the organization, a moratorium is announced whereby all the pending cases against the insolvent organization before any court have stayed.

When Moratorium Commence?

It comes into effect immediately after the application of provisions under Section 7,9 or 10, as admitted by the Adjudicating Authority. Insolvency Commencement Date is a date on which the moratorium is applied, and insolvency application is submitted.

What is Objective of a Moratorium under IBC?

Its main purpose is to keep the corporate debtor’s assets together during the CIRP and facilitate orderly completion of the process mentioned and to ensure that the company may continue as a going concern. It also ensures a bar upon the directors of the company, who can’t take any available money at the time of declaration of the moratorium. If the said period isn’t declared, the CIRP process will be thwarted which in turn will render the objective of the code null.

Section 14 – Moratorium 

(1)Adjudicating Authority shall by order declare moratorium for prohibiting all of the following, namely

(a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority.

 

Section 14 (1) (a) Judicial Interpretations: Moratorium

  1. In Anand Rao Korada Resolution vs M/S Varsha Fabrics (P) Ltd., NCLT-Supreme Court held that the High Court ought not to have proceeded with the auction of the property of the Corporate Debtor, once there is an institution of proceedings under IBC. An order reporting moratorium was passed. Provisions regarding a moratorium cannot possibly apply to cash deposits made in the court.
  2. In India Infoline Finance Ltd. Vs. The State of West Bengal & Ors., it was held that any action of police must be based on the investigation, and it can’t take additional steps in the matter unless and until the CIRP ends, in a resolution or otherwise.
  3. The arbitration proceedings cannot go on, once the moratorium is imposed under S.14(1)(a). This was discussed in Alchemist Asset Reconstruction … vs M/S. Hotel Gaudavan Pvt. Ltd.
  4. Personal/Individual Assets of a director is not the subject matter of CIRP, and the moratorium only extends to the assets of the Corporate Debtor. Held in Suresh Chand Garg Vs. Aditya Birla Finance Ltd.
  5. The NCLAT in Canara Bank v. Deccan Chronicle Holdings Limited carved out an exception holding that the moratorium will not affect any proceedings initiated or pending before the Supreme Court under Article 32 of the Constitution of India or where an order is passed under Article 136 of the Constitution of India. It also concluded that the moratorium will not affect the powers of any High Court under Article 226 of the Constitution of India.
  6. Clause (c) of the section mentions the term ‘security interest’, it doesn’t include the Performance Bank Guarantee.

Section 14(2): Continuance of Critical Supplies

It states that the supply of essential goods or services to the corporate debtor as may be specified shall not be terminated or suspended or interrupted during the moratorium period. As per Regulation 32 of Insolvency & Bankruptcy (CIRP) Regulations, 2016.

Essential supplies mentioned in Section14(2) shall mean:

  • Electricity
  • Water
  • Telecommunication Service
  • Information Technology Services

NCLT Bench of Hyderabad, in Canara Bank v. Deccan Chronicle Holdings Limited, held that with the above-mentioned essential supplies, printing ink, printing plates, printing blankets, solvents, etc. will also come under the purview of exemption from the moratorium. It shall not be terminated or suspended during the period.

Section 14(3): Retrospective Effect

After the amendment through an ordinance, the assets of corporate guarantors or personal guarantors of the corporate debtor will not get the protection of stay provisions under section 14.

NCLAT, New Delhi in Alpha and Omega Diagnostics (India)Ltd. V Asset Reconstruction Company of India held that the personal properties of the promoters were given to the bank as security. It held that the said section only applies to assets of the corporate debtor and would not bar proceedings or actions against assets of third parties.

 

Retrospective Effect,

Through the 2018 Amendment, it was held that the moratorium provisions will not apply to a surety in a contract of guarantee for the corporate debtor, is retrospective.

Section 14(4): Commencement & Effective Period

This section sets out the limit for which the moratorium can be in effect, that is until the completion of the CIRP or on the approval of a resolution plan under Section 31 by the adjudicating authority or on a resolution of the committee of creditors to liquidate the corporate debtor under Section 33, whichever is earlier.

According to Section 12, the CIRP shall be completed within 180 days from the date of admission of the application, and the period can only be extended by 90 days, subject to an application being made to the adjudicating authority after a resolution is passed at a meeting of the committee of creditors by a vote of 75% of the voting share.

Section 74: Punishment for Contravention

Under this Section, officials of the corporate debtor who knowingly or wilfully violate the moratorium provisions can be imprisoned for a min. of three years, which may extend up to five years. Min. fine is of one lakh and max. is up to five lakhs, or with both.

If any creditor violates then the imprisonment is the same as above. The min. imprisonment is one year, and max. is up to five years whereas the min. the fine is one lakh and max. fine which can be imposed is up to one crore, or with both.

Where any corporate debtor or an officer or a creditor on whom the approved resolution plan is binding under Section 31, knowingly or wilfully contravenes any of its terms or abets, the min punishment is of one year which may extend up to five years, whereas the min. the fine is one lakh which may extend up to one crore, or with both.

Conclusion

In conclusion, it can be stated that IBC is silent on the aspect of the definition of moratorium and what proceedings will fall under the ambit of Section 14 of the IBC would still require judicial assessment. Nonetheless, the language of Section 14 of IBC is wide and the intention of the legislature is also to provide complete calm period. However, the Appellate Authority has carved out an exception to the moratorium in the matter of Deccan Chronicle7 and has held that the moratorium even in favor of the Corporate Debtor is also not absolute and it will not affect the proceedings before the Hon’ble High Court and Hon’ble Supreme Court under Article 32, 136 and 226/227 of the Constitution of India. Therefore, the issue whether the proceedings under Section 138 of NI Act will also be covered under the umbrella of moratorium and to what extent would still necessitate judicial examination and only time will set the issue at rest.

Corporate Insolvency Resolution Process

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Corporate Insolvency Resolution Process

INTRODUCTION

In India, the Corporate Insolvency Resolution Process (“CIRP”) takes place under the Insolvency and Bankruptcy Code, 2016 (“IBC”). It involves a Resolution Professional inviting resolution plans for the corporate debtor undergoing insolvency. These plans are submitted by various Resolution Applicants and the best resolution plan is approved by the Committee of Creditors and sanctioned by the National Company Law Tribunal. Thus, from an acquisition perspective, the potential acquirer of the stressed asset is required to provide the best bid (in the form of the resolution plan) for the stressed asset which would be able to garner the approval of the Committee of Creditors.

Corporate Insolvency and Resolution Process - iPleaders

 

CIRCUMSTANCES WHEN CORPORATE INSOLVENCY RESOLUTION PROCESS TRIGGERED.

Corporate social insolvency process has been defined under the Chapter II of IBC licensed professional administrators the resolution process, manages the assets of the debtor, and provides information for creditors to assist them in decision making. The CIRP Triggered under Section 6 of IBC that is Where any corporate debtor commits a default, a financial creditor, an operational creditor or the corporate debtor itself may initiate a corporate insolvency resolution process in respect of such corporate debtor in the manner as provided under preceding sections of chapter II of IBC like under section 7 Financial creditor can initiate the the resolution process by giving an application of corporate insolvency resolution process. (CIRP), same can be done by Operational creditor under section 8 & Section 9 and by Corporate applicant under section 10.

Section 7: Initiation of corporate insolvency resolution process by financial creditor.

(1) A financial creditor either by itself or jointly with other financial creditors, or any other person on behalf of the financial creditor, as may be notified by the Central Government may file an application for initiating corporate insolvency resolution process against a corporate debtor before the Adjudicating Authority when a default has occurred.

Provided that for the financial creditors, referred to in clauses (a) and (b) of sub-section (6A) of section 21, an application for initiating corporate insolvency resolution process against the corporate debtor shall be filed jointly by not less than one hundred of such creditors in the same class or not less than ten per cent. of the total number of such creditors in the same class, whichever is less:

Provided further that for financial creditors who are allottees under a real estate project, an application for initiating corporate insolvency resolution process against the corporate debtor shall be filed jointly by not less than one hundred of such allottees under the same real estate project or not less than ten per cent. of the total number of such allottees under the same real estate project, whichever is less:

Provided also that where an application for initiating the corporate insolvency resolution process against a corporate debtor has been filed by a financial creditor referred to in the first and second provisos and has not been admitted by the Adjudicating Authority before the commencement of the Insolvency and Bankruptcy Code (Amendment) Act, 2020, such application shall be modified to comply with the requirements of the first or second proviso within thirty days of the commencement of the said Act, failing which the application shall be deemed to be withdrawn before its admission.

Explanation.—For the purposes of this sub-section, a default includes a default in respect of a financial debt owed not only to the applicant financial creditor but to any other financial creditor of the corporate debtor.

(2) The financial creditor shall make an application under sub-section (1) in such form and manner and accompanied with such fee as may be prescribed.

(3) The financial creditor shall, along with the application furnish—

(a) record of the default recorded with the information utility or such other record or evidence of default as may be specified.
(b) the name of the resolution professional proposed to act as an interim resolution professional and
(c) any other information as may be specified by the Board.

(4) The Adjudicating Authority shall, within fourteen days of the receipt of the application under sub-section (2), ascertain the existence of a default from the records of an information utility or on the basis of other evidence furnished by the financial creditor under sub-section (3).

Provided that if the Adjudicating Authority has not ascertained the existence of default and passed an order under sub-section (5) within such time, it shall record its reasons in writing for the same.

(5) Where the Adjudicating Authority is satisfied that—

(a) a default has occurred and the application under sub-section (2) is complete, and there is no disciplinary proceedings pending against the proposed resolution professional, it may, by order, admit such application; or

(b) default has not occurred or the application under sub-section (2) is incomplete or any disciplinary proceeding is pending against the proposed resolution professional, it may, by order, reject such application:

Provided that the Adjudicating Authority shall, before rejecting the application under clause (b) of sub-section (5), give a notice to the applicant to rectify the defect in his application within seven days of receipt of such notice from the Adjudicating Authority.

(6) The corporate insolvency resolution process shall commence from the date of admission of the application under sub-section (5).

(7) The Adjudicating Authority shall communicate—
(a) the order under clause (a) of sub-section (5) to the financial creditor and the corporate debtor;

(b) the order under clause (b) of sub-section (5) to the financial creditor,

within seven days of admission or rejection of such application, as the case may be.

Section 8: Insolvency resolution by operational creditor.

(1) An operational creditor may, on the occurrence of a default, deliver a demand notice of unpaid operational debtor copy of an invoice demanding payment of the amount involved in the default to the corporate debtor in such form and manner as may be prescribed.

(2) The corporate debtor shall, within a period of ten days of the receipt of the demand notice or copy of the invoice mentioned in sub-section (1) bring to the notice of the operational creditor—

(a) existence of a dispute, if any, or record of the pendency of the suit or arbitration proceedings filed before the receipt of such notice or invoice in relation to such dispute.

(b) the payment of unpaid operational debt—

(i) by sending an attested copy of the record of electronic transfer of the unpaid amount from the bank account of the corporate debtor or

(ii) by sending an attested copy of record that the operational creditor has encashed a cheque issued by the corporate debtor.

Explanation.—For the purposes of this section, a “demand notice” means a notice served by an operational creditor to the corporate debtor demanding payment of the operational debt in respect of which the default has occurred.

After the expiry of the period of ten days from the date of delivery of the notice or invoice demanding payment under sub-section (1) of section 8, if the operational creditor does not receive payment from the corporate debtor or notice of the dispute under sub-section (2) of section 8, the operational creditor may file an application before the Adjudicating Authority for initiating a corporate insolvency resolution process under Section 9.

Section 10-Initiation of corporate insolvency resolution process by corporate applicant.

(1) Where a corporate debtor has committed a default, a corporate applicant thereof may file an application for initiating corporate insolvency resolution process with the Adjudicating Authority.

(2) The application under sub-section (1) shall be filed in such form, containing such particulars and in such manner and accompanied with such fee as may be prescribed.
(3) The corporate applicant shall, along with the application, furnish-

(a) the information relating to its books of account and such other documents for such period as may be specified.

(b) the information relating to the resolution professional proposed to be appointed as an interim resolution professional and

(c) the special resolution passed by shareholders of the corporate debtor or the resolution passed by at least three-fourth of the total number of partners of the corporate debtor, as the case may be, approving filing of the application.

(4) The Adjudicating Authority shall, within a period of fourteen days of the receipt of the application, by an order—

(a) admit the application, if it is complete and no disciplinary proceeding is pending against the proposed resolution professional; or

(b) reject the application, if it is incomplete or any disciplinary proceeding is pending against the proposed resolution professional :

Provided that Adjudicating Authority shall, before rejecting an application, give a notice to the applicant to rectify the defects in his application within seven days from the date of receipt of such notice from the Adjudicating Authority.

(5) The corporate insolvency resolution process shall commence from the date of admission of the application under sub-section (4) of this section.

“10A. Notwithstanding anything contained in Sections 7, 9 and 10, no application for initiation of corporate insolvency resolution process of a corporate debtor shall be filed, for any default arising on or after 25th March, 2020 for a period of six months or such further period, not exceeding one year from such date as may be notified in this behalf.”

Provided that no application shall ever be filed for initiation of corporate insolvency resolution process of a corporate debtor for the said default occurring during the said period.

Explanation- For the removal of doubts, it is hereby clarified that the provisions of this section shall not apply to any default committed under the said sections before 25th March, 2020.

Further Committee of creditor is to be made under Section 21 of IBC The committee of creditors shall comprise all financial creditors of the corporate debtor party to whom a corporate debtor owes a financial debt shall not have any right of representation, participation or voting in a meeting of the committee of creditors Whereas the corporate debtor owes financial debts to two or more financial creditors as part of a consortium or agreement, each such financial creditor shall be part of the committee of creditors and their voting share shall be determined on the basis of the financial debts owed to them, The Board may specify the manner of determining the voting share in respect of financial debts issued as securities under sub-section (6) of Section 21. When a corporate debtor is accepted into the CIRP (Corporate Insolvency Resolution Process), it checks the board of directors. Further, the management is placed under an independent “interim resolution professional”. From this and till the end of the CIRP (Corporate Insolvency Resolution Process), the management ceases to have any control over the activities of the company.

MORATORIUM

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APPEAL TO COMMISSIONER OF INCOME-TAX.

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APPEAL TO COMMISSIONER OF INCOME-TAX

INTRODUCTION.

Appeal refers to an act of referring the case to a higher authority against the order passed by a lower authority in respect of that case or matter. It implies a complaint to a higher authority against the order or judgement (alleged to be erroneous) of an administrative authority or appellate authority. At times it may happen that the taxpayer is aggrieved by an order of the Assessing Officer. In such a case he can file an appeal against the order of the Assessing Officer before the Commissioner Of Income-Tax (Appeals) CIT(A). In this part you can gain knowledge about various provisions relating to appeals to CIT(A).

Procedure For Filing of Appeal to ITAT AKT Associates

PARTIES TO AN APPEAL.

There are following two parties to any appeal :

Appellant. The person filing an appeal is called ‘appellant’ or ‘applicant’. Under Income Tax, the first appeal can only be filed by assesse and—hence only assesse can be appellant in such a case. However, in subsequent appeals (i.e., appeal to ITAT, HC or SC) appellant can be assessed or C.I.T.

Defendant / Respondent. The person against whom the appeal is filed is called ‘defendant’ or ‘respondent’.

WHEN APPEAL CAN BE FILED ?

As per Section 246 A The CIT(A) is the first appellate authority. Section 246A specifies the orders against which an appeal can be filed before the CIT(A). The list of major orders against which an appeal can be preferred before the CIT(A) is given below:

  1.  Order passed against the taxpayer in a case where the taxpayer denies the liability to be assessed under Income Tax Act.
  2. Intimation issued under Section 143(1)/(1B) where adjustments have been made in income offered to tax in the return of income.
  3. Intimation issued under Section 200A(1) where adjustments are made in the filed statement.
  4. Assessment order passed under Section 143(3) except in case of an order passed in pursuance of directions of the Dispute Resolution Panel
  5. An assessment order passed under Section 144.
  6. Order of Assessment, Re-assessment or Re-computation passed after reopening the assessment under Section 147except an order passed in pursuance of directions of the Dispute Resolution Panel
  7.  An order referred to in Section 150.
  8. An order of assessment or reassessment passed under Section 153A or under Section 158BC in case of search/seizure.
  9. Assessment or reassessment order passed under Section 92CD(3).
  10. Rectification order passed under Section 154 or under Section 155.
  11.  Order passed under Section 163 treating the taxpayer as an agent of a non-resident.
  12. Order passed under Section 170(2)/(3) assessing the successor of the business in respect of income earned by the predecessor.
  13. Order passed under Section 171 recording the finding about partition of a Hindu Undivided Family.
  14. Order passed by Joint Commissioner under Section 115VP(3) refusing approval to opt for tonnage-tax scheme to qualifying shipping companies.
  15. Order passed under Section 201(1)/206C(6A) deeming a person responsible for deduction of tax at source as assesse-in-default due to failure to deduct tax at source or to collect tax at source or to pay the same to the credit of the Government. Order determining refund passed under Section 237.
  16. Order imposing penalty under Section(s) 221/271/271A/271AAA/271F/271FB/272A/272AA/272B/272BB/275(1A)/158BFA(2)/271B/271BB/271C/271CA/271D/271E/271AAB
  17. Order imposing a penalty under Chapter XXI.

FEES TO BE PAID FOR APPEAL.

Form 35 shall be accompanied by a fee as under: `

Where the total income/loss of the assesse as computed by the A.O. in the case to which appeal relates is Rs.1,00,000 or less : Rs. 250

Where the total income/loss of the assesse, computed as aforesaid in the case to which appeal relates exceeds Rs. 1,00,000 but does not exceed Rs. 2,00,000 : Rs. 500

Where total income/loss of the assesse, computed as aforesaid in the case to which appeal relates exceeds Rs. 2,00,000 : Rs. 1,000

Where the subject matter of appeal relates to any matter other than specified in clauses (a), (b) and (c) above : Rs. 250

The fee should be credited in a branch of the authorised bank or a branch of the State Bank of India or a branch of the Reserve Bank of India after obtaining a challan from the Assessing Officer and a copy of challan sent to the Commissioner of Income-tax (Appeals).

TIME LIMIT FOR FILING APPEAL.

According to Section 249(2) The a Appeal should be presented within a period of 30 days of the date of payment of tax, where appeal is under Section 248; or the date of service of notice of demand relating to assessment or penalty if the appeal relates to assessment or penalty; or However, where an application has been made under Section 270AA(1), the period beginning from the date on which the application is made, to the date on which the order rejecting the application is served on the assesse, shall be excluded. the date on which intimation or the order sought to be appealed against is served if it relates to any other cases. As per Section 268 the date on which the order complained of is served is to be excluded. Further, if the assesse was not furnished with a copy of the order when the notice of the order (say notice of demand) was served upon him then the time required for obtaining a copy of the order should be excluded, i.e. period taken for obtaining the order shall be added to the time limit of 30 days.

PROCESS OF PAYMENT OF TAX ONLINE FOR APPEALS.

  1. To pay taxes online, login to http://www.tin-nsdl.com > Services > e-payment. You can go and visit following Link – https://onlineservices.tin.egov-nsdl.com/etaxnew/tdsnontds.jsp
  2. Select the relevant challan i.e. ITNS 280
  3. Enter PAN / TAN (as applicable) and other mandatory challan details like accounting head under which payment is made, address of the taxpayer and the bank through which payment is to be made etc.
  4. On submission of data entered, a confirmation screen will be displayed. If PAN / TAN is valid as per the ITD PAN / TAN master, then the full name of the taxpayer as per the master will be displayed on the confirmation screen.
  5. On confirmation of the data so entered, the taxpayer will be directed to the net-banking site of the bank.
  6. The taxpayer has to login to the net-banking site with the user id / password provided by the bank for net-banking purpose and enter payment details at the bank site.
  7. On successful payment a challan counterfoil will be displayed containing CIN, payment details and bank name through which e-payment has been made. This counterfoil is proof of payment being made.

 

PROCEDURE FOR FILING APPEAL FORM 35

 Login in your Account using User credentials

                                  ↓

Go to E-File Link and Choose Income Tax Forms

                                  ↓

Choose Form No- 35 –Appeal to Commissioner

  Appeals.

                                    ↓

Now start Filing Form No 35 Online. You will get some details Pre-filed and fill remaining editable details properly.

                                  ↓

Now provide details of the order to be appealed against.

                                    ↓

Provide details related to Filed ITR, selected for Scrutiny and against which Appeal is to be filed.

                                    ↓

Now Provide details related to Statements of facts, Grounds of Appeal and Additional Evidence related information which is not made available at time of Assessment. This is a very crucial part of Appeal. Adequate attention needs to be paid while preparing Facts and Grounds of Appeal. These are the points on which your case will proceed further. Each matter on which there is controversy/ matter of disputes between assesse and Assessing Officer needs to be explained properly. All facts should be adequately drawn because in case of appeal before ITAT also these Grounds of Appeal play a very crucial role.

                                  ↓

Now provide details, whether appeal is filed within time limit or there is any delay in filing Appeal. As explained earlier, appeal is to be filed within 30 days from the date of receipt of order however; CIT (A) has power to condone the delay in filing appeal within the prescribed time period. In case of delay, please provide the reasons of delay. The reason should be genuine.

                                 ↓

Now provide details related to Appeal Fees paid and address on which further communication can be done and save the appeal.

                                ↓

After above process, submit the Form 35 and you will get the Acknowledgement number of this Submission

 

CONCLUSION.

The right to appeal is not the natural or inherent right of the assesse. It is available to him only if specifically granted under Income Tax Act. Thus, it is a statutory right of the assesse and cannot be denied to him by any order of the Central Board of Direct Tax (CBDT). It can be snatched from the assesse only by an express provision provided under Income Tax Act. Where it is possible, the CIT(A)  shall dispose off the appeal within a period of one year from the end of the financial year in which appeal is filed. The order should be issued within 15 days of last hearing.

 

Bio-Medical Waste Management Rules, 1998 & 2016: A Comparative Study

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Bio-Medical Waste Management Rules, 1998 & 2016: A Comparative Study

Introduction:

The study here tries to throw a light on the various aspects of the Bio-Medical waste Rules that has changed/amended from Bio-Medical Waste Management Rules, 1998 to Bio Medical Waste Management Rules, 2016. The Amendments/changes that has been done by the Government in the Bio Medical Waste management rules,2016 are for the better disposal of Bio-Medical Waste, through which the society can be a better place to live in.

Bio Medical Waste Management Rule, 2016

Bio-Medical Waste Management Rules, 1998 & 2016 Comparative Analysis

Bio-Medical Waste:

Bio-medical waste is a waste which is generated during diagnosis or treatment of people or animals. This includes all the people and institutes which generate, store, collect, transport, treat, any forms of Bio-Medical Waste. There are many types of Bio-Medical wastes out which some are easy to treat and not harmful or contagious, and the other is very harmful as it can spread highly contagious diseases to the present and the future generation as well. This kind of waste can even be threat to the environment too as it can cause air, water, and soil pollution.

Many studies have stated that health care workers have very less or no knowledge about the disposal of Bio-Medical Waste which can be harmful and may seriously affect the environment. Due to the same reason, there is an increase in the awareness about the Bio-Medical Waste segregation and disposal. In our country there is a very much need of the awareness and knowledge about the same as many reports suggest that there is a lacunae in the practices among the many Health Care Workers. The Bio-Medical Waste Management Rules has been amended several times, but there is a lack of update among Healthcare workers and institutions.

Harmful Effects of Poorly Managed Biomedical Waste:

Biomedical waste when not disposed properly can pose serious risks to society and the environment through air emissions, contamination of water and physical contact.

Improper disposal refers to open dumping, unrestrained burning, and improper handling of waste during generation, collection, storage, transport and treatment.

Improper handling involves unsafe procedures followed during handling of wastes i.e. without wearing protective equipment, poor storage (high temp, high residence), transporting manually for longer distances, uncovered or unpacked containers instead of puncture proof bags, etc. all of which effect hospital workers in different ways.

The following groups are exposed:

Inside Health Care Centers: 

staff- doctors, nurses, auxiliaries, stretcher bearers, patients, scientific and technical personnel, housekeeping staff, laundry, waste managers, maintenance, and lab technicians.

Outside: 

In site and off site transport personnel, waste processing personnel, public, and rag pickers. Improper management of wastewater and sludge can result in contamination of air, soil and water with pathogens and toxic chemicals which may affect all forms of life. Inadequate waste management can cause environmental pollution, unpleasant odors, growth and multiplication of insects, rodents and worms and may lead to transmission of diseases like typhoid, cholera, etc. Infectious agents such as faeces, vomit, saliva, secretions, blood can cause serious health risks on individuals by affecting organs or systems like gastrointestinal, respiratory, eye, skin and cause Anthrax, Meningitis, AIDS, Haemorrhagic Fever, Hepatitis A, B, C, Influenza etc. Research and radio-immunoassay activities may generate small quantities of radioactive gases.

Infections Associated with Different Types of Waste:

OrganismDisease CausedRelated waste
Viruses

HIV, Hepatitis B, Hepatitis A, C, Arboviruses, Enteroviruses

AIDS, Infectious Hepatitis, Dengue, Japanese encephalitis, tick-borne, fevers, meningitis, etc.Infected needles, body fluids, Human excreta, soiled linen, blood
Bacteria

Salmonella typhi, vibrio cholera, clostridium Tetani, Pseudomonas, Streptococcus

Typhoid, Cholera, Tetanus, Wound Infections, Septicaemia, Rheumatic fever, endocarditis, skin and soft tissue infections, meningitis, bacteraemiaHuman excreta and body fluids in landfills and hospital wards, sharps such as needles, surgical blades in hospital waste 
Parasites

Wucheraria Bancrofti, Plasmodium

Cutaenous leishmaniosis, Kala Azar, MalariaHuman excreta, blood and body fluids in poorly managed sewage system of hospitals

 

Bio-Medical Waste Management Rules:

Bio-Medical Waste Management Rules were implemented under Environment Protection Act,1986 in our country on 20th July,1998. After that the Rules have undergone many amendments in the passing years. Bio-Medical waste Rules,2016 is the latest Bio-Medical Rules after significant and many changes done to Bio-Medical Rules,1998 keeping in mind the health care of the people. Primarily this waste was divided among various categories. Further multiple categories were clubbed to disposed in four colour coded bags. This was very hard to be remembered by the housekeeping and healthworker staff which formed a very weak section in the Bio Medical Waste Management system. It was found that the Bio-Medical waste generators had their own waste disposal techniques and systems which were not very effective or required significant improvement as they posed a threat to the public as well as the environment.

To undertake all these issues the new Bio-Medical Waste Management Rules were laid down by the ministry of Environment, Forest and Climate change under the Environment Protection Act, 1986 on 28th March, 2016.

Difference between Bio-Medical Waste Management Rules, 1998 and 2016:

The major changes are as follows: (1) the removal of multiple categories and to continue with only four color-codes (2) that no occupier was permitted to establish an on-site treatment and disposal facility if service of a common biomedical waste treatment facility (CBMWTF) is available within a distance of 75 km, and (3) changes in the form numbers of accident reporting, authorization, annual reporting, and appeal. The difference between Bio-Medical Waste Management Rules, 1998 and 2016 has been discussed by dividing it into various points and showing the difference between them.

Duties of the Occupier:

Duties of the occupier are delineated better as it wasn’t delineated in 1998. There is pretreatment by disinfection and sterilization on-site of infectious lab waste blood bags as per the WHO guidelines Occupier ensures liquid waste is segregated at source by pretreatment,  whereas, No pretreatment of waste on-site Chlorinated plastic bags, gloves, and blood bags were recommended. ETP is mandatory Occupier ensures to maintain BMWM register daily and on website monthly Annual report should be made available on the website within two years The occupier (30 bedded) establishes BMWM committee Records of equipment, training, health checkup, and immunization are compulsory whereas any of the above were not mandatory in the Biomedical waste management rules, 1998.

Duties of the CBMWTF:

Duties are delineated better The occupier has to establish barcoding and GPS and ensure occupational safety of all its HCWs by TT and HBV vaccination Reporting of accidents and maintenance of records of equipment, training, and health checkup, whereas, in BMWM Rules, 1998 Duties are not delineated, better Barcoding and GPS not documented and vaccinations for HCWs not documented, Records not documented.

Accident Reporting:

Major accidents are reported to authorities and in annual report whereas, No specific reporting of accidents were mandated in BMWM Rules,1998.

Deep Burial:

As per rules 2016, Deep Burial is an option for only remote and rural areas and not in towns and villages with less than 5 lakhs population.

Chemical Treatment:

Changes to chemical treatment from 1% hypochlorite to 10% hypochlorite in 2016 which was again rolled back to 1%-2% in 2018.

Fetes:

No demarcation of foetus was mentioned in BMWM rules 1998 but the new amendment of rules in 2016 said Foetus younger than the age of viability is to be treated as human anatomical waste.

Drugs:

Antibiotics and other drugs and solid chemical waste suggested for incineration Cytotoxic drugs: return back to supplier and incineration up to 1200 C whereas, the rules, 1998 mentioned that all the drugs to be discarded in the black bag for cytotoxic drugs, destruction and drugs disposal in secured landfills

Liquid-infected waste:

Effluent treatment plant is mandatory, and effluent to conform to standards mentioned whereas rules, 1998 states chemical treatment and discharge into drains to conform to effluent standards mentioned.

Microbiology and biotechnology waste:

Rules, 2016 states the Pre-treatment of infectious waste as per the WHO guidelines whereas pre-treatment was not at all mandatory in rules, 1998.

Infected plastics, sharps and glass:

The infected plastics and sharps go in the red bag and the white container, respectively, and are sent to authorized recyclers. The glass articles are discarded in a cardboard box with blue marking whereas, infected plastics, metal sharps, and glass go in the blue container with disinfectant, and local autoclaving/microwaving/incineration is recommended.

Recycling:

A focus on recycling of plastic, sharps, and glass to authorized recyclers whereas, no such mention in rules, 1998.

Form I:

Changed to accident reporting from application for authorization.

Form-II:

Changed to Authorization or renewal of Authorization from Annual Report in rules, 1998.

Form-III:

Changed to Authorization for opening a facility for collectin, reception, treatment, storage, transport, and disposal of BMW from Accident Reporting in BMW Rules in 1998.

Form-IV:

Changed to Annual Report from Authorization for operating a facility for collection, reception, treatment, storage, transport, and disposal of BMW.

Form-V:

Changed to Application for filing appeal against order passed by the prescribed authority from Application for filing appeal against order passed by the prescribed authority in rules 1998.

FURTHER DEVELOPMENTS

Further, after publishing Bio-Medical Waste Management Rules, 2016 the Ministry of Environment, Forest and Climate change made some amendments and published Biomedical Waste Management (Amendment) Rules, 2018 on 16th March, 2018. In this amendment, typographical errors were corrected, rules regarding non-infectious wastes were updated.

Anticipatory Bail - Bhatt & Joshi Associates - High Court Lawyers, High Court Advocates

What is Anticipatory Bail? Explained

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Anticipatory Bail

“In a barbaric society you can hardly ask for a bail, in civilised society you can hardly refuse it. The bail is rule and refusal is an exception.”

Black’s law dictionary (4th edition) describes ‘bail’ as procuring “the release of a person from legal custody, by undertaking that he shall appear at the time and place designated and submit himself to the jurisdiction and judgment of the court.[1]

Section 438 of the Criminal Procedure Code, 1973 provides that when any person has reason to believe that he may be arrested on accusation of committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail. Thus, the provision empowers the Court to grant bail.

But why do we have such provision of bail? The Court in Gurbaksh Singh Sibbia Etc v. State of Punjab[2] referring to the 41st Law Commission Report of 1969 pointed out the necessity of the inclusion of the provision that granting anti-bail arises because sometimes influential people try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail.

Further, Personal liberty and the rule of law find its rightful place in the Constitution in Article 22 which includes measures against arbitrary and indefinite detention and provides that no person shall be detained beyond the maximum period prescribed by any law made by the Parliament.[3]

However, this right cannot be held absolute and is to be measured in respect of other factors. The court in Superintendent and Remembrancer of legal Affairs v. Amiya Kumar Roy Chaudhary[4] held the view that the law of bails, has to dovetail two conflicting demands, namely, the requirements of the society for being shielded from the hazards of being exposed to the misadventures of a person alleged to have committed a crime and on the other hand the fundamental canon of the criminal jurisprudence i.e., the presumption of the innocence of the accused till he is found guilty.  In Kumari Hema Mishra v. State of UP[5], upholding the power to stay arrest under Article 226 of the Constitution the Supreme Court stated that police custody must be balanced against the duty of courts to uphold the dignity of every man and to vigilantly guard the right to liberty without jeopardizing the State objective of maintenance of law and order. It is the Court that has to maintain the equilibrium between the ‘Freedom of person’ and ‘social order’.

Various factors that the Court has to take into account while granting bail are also mentioned in the Section namely[6]:

  1. the nature and gravity of the accusation;
  2. the antecedents of the applicant including the fact as to whether he previously undergone imprisonment on conviction by a Court in respect of any cognizable offence.
  3. the possibility of the applicant to flee from justice; and
  4. where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested.

Further, some other factors are provided in Law Commission Report on anticipatory bail 2017[7]. These are:

  • Whether there are reasonable grounds for believing that he has committed the offence;
  • Severity of the potential punishment if the trial results in conviction;
  • Preponderance of evidence;
  • The character, means and standing of the accused;
  • Danger of the alleged offence continuing or being repeated if granted bail;
  • Danger of witnesses or evidence being tampered with;
  • Community ties;
  • Opportunity for the accused to prepare his defence;
  • Whether there is any possibility of the trial being delayed;
  • The health, age and sex of the accused.

Further, various conditions are provided in the Section namely that [8]

  1. when the Court grants such an interim order of anticipatory bail, it has to provide the prosecution side a reasonable opportunity of being heard 
  2. the also that the during such final hearing of anticipatory bail the accused must be present at the Court. 
  3. a condition that the person shall make himself available for interrogation by a police officer as and when required;
  4. a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court IX to any police officer;
  5. a condition that the person shall not leave India without the previous permission of the court;
  6. such other condition as may be imposed under sub-section (3) of Section 437, as if the bail were granted under that section.

From the above discussion, it has been clear that this power of either accepting or rejecting or making of the interim order is not an ordinary one and the Court exercises a great deal of discretion here. But, it is also often noted by the Courts that this power of discretion is to be exercised with care and circumspection depending upon circumstances justifying its exercise.

 

Are you looking for Bail for someone? Get in touch with Bail Lawyers now

References
[1] “Explained: What is an anticipatory bail, for which SC has removed time limit?” The Indian Express, 31st January, 2020.
[2] 1980 AIR 1632: 1980 SCR (3) 383.
[3] Law Commission Report
[4] ILR (1974) 1 Calcutta 304
[5] (2014) 4 SCC 453
[6] Section 438 of Criminal Procedure Code, 1973.
[7] https://lawcommissionofindia.nic.in
[8] Ibid.

Bhatt & Joshi Associates, High Court Lawyers, High Court Advocates - Quashing Lawyers

Legal provisions for Quashing of FIR, High Court

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Background of legal provisions for Quashing of FIR, by High Court Advocate

The legal term quash has been derived from the Anglo- French word casser meaning “to annul” and ultimately from Latin cassus, meaning void. The court has the power to quash unreasonable or irregular or oppressive subpoenas, injections, indictments and orders. When a judge is unable to deliver a judgement in a criminal matter case, in vague of a defective indictment, the courts typically quash the indictment. 

Under section 482 of the Code of criminal Procedure the power of quashing is defined. The section reads as:

482. Saving the inherent powers of the High Court. 

Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

This section closely resembles section 151 of the Code of Civil procedure. In a case of CBI v. Maninder Singh, it was held that the power under section 482 of CrPC must be used very sparingly  and especially in economic offences, merely because the party had reached a settlement with the bank cannot be a ground for quashing criminal proceedings. But this section doesn’t enhance the power of the High Court. Rather protects the inherent powers of the court. It does not give any new powers. The jurisdiction of the High court has a vast scope, but it is the practice that this section should be used only in exceptional cases. 

The Supreme Court has laid down some principles which would help to govern the inherent jurisdiction of the court given under the section are as follows: 

  1. the power is not to be resorted to if there is a specific provision in the code for the redress of the grievance of the aggrieved party; 
  2. it should be exercised very sparingly to prevent abuse of the process of any court or otherwise to secure the ends of justice; 
  3. it should not be exercised as against the express bar of the law engrafted in any other provision of the code. Whenever the court has inherent power, the court does not function as a court of appeal or revision. 

Inherent powers cannot be exercised to review judgement. 

In a case N Naveen Kumar v. State of AP, the accused was convicted in this case for bribery. Some of his property was directed to be sold by auction. That was in addition to the sentence of imprisonment and fine. An appeal against this was dismissed. An application was made by the legal heirs of the accused for permission to deposit certain sums in lieu of auction sale of property. This was held to be not tenable before the Appellate Court. The bar under section 397(2) of the code is applicable to the revisional powers only not to inherent powers. Even under section 341 of the code, the inherent power overrides the express bar against revision.

Under what circumstances the powers of Quashing are exercised by the High Court 

Inherent power under Section 482 in a matter of quashing of FIR has to be exercised sparingly and with caution and when and only when such exercise is justified by the test specifically laid down in the provision itself. The power under section 482 is very wide and conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court and the said power is not to be used to choke or smother a legitimate prosecution. 

The high court can quash an FIR or a complaint in exercise of its powers under article 26 of the Constitution of India or under section 482 CrPC:

  1. Where the allegations made in the FIR or the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused.
  2. Where the allegations in the FIR and other materials accompanying FIR do not disclose a cognizable offence justifying an investigation under section 156(1) of CrPC except an order of a magistrate under section 155(2) CrPC.
  3. Where uncontroverted allegations in the FIR or the complaint and the evidence collected in support do not disclose the commission of any offence and make out a case against the accused.
  4. Where the allegations made in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence.
  5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
  6. Where there is an express legal bar engrafted in the CrPC or the concerned act to the institution of criminal proceeding or where there is a specific provision in the CrPC or concerned act providing efficacious redress.
  7. Where a criminal proceeding is manifestly attended with mala fide or where proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

The Supreme Court also has settled that the High Court should not entertain writ petitions under Article 226 and 227 and petitions unde section 482 for granting or rejecting request for bail which is the function of lower court. The High Court’s power under section 482 is not affected by the provision in section 497(3). The Supreme Court said:

Even if it is an interlocutory order, the High court’s inherent jurisdiction under section 482 is not affected by the provisions of section 497(3) CrPC. That The High Court may refuse to exercise its jurisdiction under section 482 on the basis of self-imposed restriction is a different aspect. It cannot be denied that for securing the ends of justice, the High court can interfere with the order which causes miscarriage of justice or is palpably illegal or is unjustified.

Need help with Quashing and FIR?  Reach out to us now

Travelling-with-Gold-Customs-Bhatt-Joshi-Associates-High-Court-Advocates-High-Court-Lawyers.jpg

Everything you need to know while travelling with gold & customs

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Travelling with gold? Here’s what you should know!

 

CUSTOM GUIDELINES

Every passenger entering India has to pass through Customs check. The passenger has to declare the contents of his baggage in the prescribed Indian Customs Declaration Form At airports the passenger has the option  of seeking clearance through the Green Channel or through the Red Channel subject to the nature of goods being  carried.

GREEN AND RED CHANNELS

For the purpose of Customs clearance of arriving passengers, a two channel system has been adopted:-

  1. Green Channel for passengers not having any dutiable goods.
  2. Red Channel for passengers having dutiable goods.However, Green channel passengers must deposit the Customs portion of the disembarkation card to the Customs official at the exit gate before leaving the terminal.

Passengers walking through the Green Channel with dutiable/prohibited goods are liable to prosecution/ penalty and confiscation of goods.

 

Baggage rules 2016

The question is whether the Baggage Rules, 2016 have any application to the gold bangles worn by the Applicants also arises for consideration?

Rule 3:Passenger arriving from countries other than Nepal, Bhutan or Myanmar

An Indian resident or a foreigner residing in India or a tourist of Indian origin, not being an infant arriving from any country other than Nepal, Bhutan or Myanmar, shall be allowed clearance free of duty articles in his bona fide baggage, that is to say :-

 

  • used personal effects and travel souvenirs; and
  • articles other than those mentioned in Annexure-I, upto the value of fifty thousand rupees if these are carried on the person or in the accompanied baggage of the passenger.

 

Provided that a tourist of foreign origin, not being an infant, shall be allowed clearance free of duty articles in his bona fide baggage, that is to say,

 

  • used personal effects and travel souvenirs; and
  • articles other than those mentioned in Annexure- I, upto the value of fifteen thousand rupees if these are carried on the person or in the accompanied baggage of the passenger.

 

Provided further that where the passenger is an infant, only used personal effects shall be allowed duty free.

Explanation.- The free allowance of a passenger under this rule shall not be allowed to pool with the free allowance of any other passenger.”

 

Rule 5  Jewellery:

A passenger residing abroad for more than one year, on  return to India, shall be allowed clearance free of duty in   his bona fide baggage of jewellery upto a weight, of twenty grams with a value cap of fifty thousand rupees if brought by a gentleman passenger, or forty grams with a value cap of one lakh rupees if brought by a lady passenger.

 

ANNEXURE–I

(See rule 3, 4 and 6)

 

 

  • Fire arms.
  • Cartridges of fire arms exceeding 50.
  • Cigarettes exceeding 100 sticks or cigars exceeding 25 or tobacco exceeding 125 gms.
  • Alcoholic liquor or wines in excess of two litres.
  • Gold or silver in any form other than ornaments.
  • Flat Panel (Liquid Crystal Display/Light-Emitting Diode/ Plasma) television.”

 

 

PROVISIONS UNDER WHICH PASSENGERS MADE LIABLE.

 

Section 111. Confiscation of improperly imported goods, etc.—

The following goods brought from a place outside India shall be liable to confiscation:—

 

  • any goods imported by sea or air which are unloaded or attempted to be unloaded at any place other than a customs port or customs airport appointed under clause (a) of section 7 for the unloading of such goods.
  • any goods imported by land or inland water through any route other than a route specified in a notification issued under clause (c) of section 7 for the import of such goods.
  • any dutiable or prohibited goods brought into any bay, gulf, creek or tidal river for the purpose of being landed at a place other than a customs port.
  • any goods which are imported or attempted to be imported or are brought within the Indian customs waters for the purpose of being imported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force.
  • any dutiable or prohibited goods found concealed in any manner in any conveyance.
  • any dutiable or prohibited goods required to be mentioned under the regulations in an import manifest or import report which are not so mentioned.
  • any dutiable or prohibited goods which are unloaded from a conveyance in contravention of the provisions of section 32, other than goods inadvertently unloaded but included in the record kept under sub-section (2) of section 45.
  • any dutiable or prohibited goods unloaded or attempted to be unloaded in contravention of the provisions of section 33 or section 34.
  • any dutiable or prohibited goods found concealed in any manner in any package either before or after the unloading thereof.
  • any dutiable or prohibited goods removed or attempted to be removed from a customs area or a warehouse without the permission of the proper officer or contrary to the terms of such permission.
  • any dutiable or prohibited goods imported by land in respect of which the order permitting clearance of the goods required to be produced under section 109 is not produced or which do not correspond in any material particular with the specification contained therein.
  • any dutiable or prohibited goods which are not included or are in excess of those included in the entry made under this Act, or in the case of baggage in the declaration made under section 77.
  • any goods which do not correspond in respect of value or in any other particular] with the entry made under this Act or in the case of baggage with the declaration made under section 77 in respect thereof or in the case of goods under transhipment, with the declaration for transhipment referred to in the proviso to sub-section (1) of section 54.
  • any dutiable or prohibited goods transisted with or without transhipment or attempted to be so transited in contravention of the provisions of Chapter VIII.
  • any goods exempted, subject to any condition, from duty or any prohibition in respect of the import thereof under this Act or any other law for the time being in force, in respect of which the condition is not observed unless the non-observance of the condition was sanctioned by the proper officer 
  • any notified goods in relation to which any provisions of Chapter IVA or of any rule made under this Act for carrying out the purposes of that Chapter have been contravened.”

 

 

Section 77  Declaration by owner of baggage.—The owner of any baggage shall, for the purpose of clearing it,  make a declaration of its contents to the proper officer.”

Section 112 Penalty for improper importation of goods, etc. —Any person—

 

 

  • who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under section 111, or abets the doing or omission of such an act, or
  • who acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing, or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under section 111, shall be liable.
  • in the case of goods in respect of which any prohibition is in force under this Act or any other law for the time being in force, to a penalty ,not exceeding the value of the goods or five thousand rupees, whichever is the greater.
  • in the case of dutiable goods, other than prohibited goods, to a penalty not exceeding the duty sought to be evaded on such goods or five thousand rupees, whichever is the greater;
  • in the case of goods in respect of which the value stated in the entry made under this Act or in the case of baggage, in the declaration made under section 77 (in either case hereafter in this section referred to as the declared value) is higher than the value thereof, to a penalty not exceeding the difference between the declared value and the value thereof or five thousand rupees], whichever is the greater.
  • in the case of goods falling both under clauses (i) and (iii), to a penalty 220 not exceeding the value of the goods or the difference between the declared value and the value thereof or five thousand rupees], whichever is the highest.
  • in the case of goods falling both under clauses (ii) and (iii), to a penalty 221 not exceeding the duty sought to be evaded on such goods or the difference between the declared value and the value thereof or five thousand rupees,whichever is the highest.

 

 

NOW QUESTION ARISES WHETHER THERE IS NEED FOR ABSOLUTE CONFISCATION OR NOT? The issue of absolute confiscation of goods and option of redemption thereof has been subjected to judicial interpretation in the past with rulings of the High Court and Tribunal on the same.

In case of : Commissioner Of Customs … vs Uma Shankar Verma Calcutta High Court:

Para 10

“…..

 

has held that if the goods are prohibited then the option is with the Customs Authority to confiscate without giving any option to pay fine in lieu thereof but  when the goods are not prohibited then the Customs Authority has no other option but to allow grant of an option to the party to pay a fine in lieu of confiscation.

  ….”

 

In the case of :Kuber Casting Private Limited v. Commissioner of Commissioner of Customs, Amritsar-( Tribunal-Chandigarh):

Para 5

“….

As the goods impugned are not restricted goods, therefore, they can be released on payment of redemption fine and penalty, the Tribunal held that the redemption fine and penalty imposed on the appellant highly excessive and the goods cannot be held for confiscation on the charge of misdeclaration of Description.

….”

 

CONFISCATION OF GOLD NOT DECLARED

Central board of indirect tax and customs, vide their Letter No.  495/5/92-CUS-VI dated 10.5.93 have instructed that in case of non-declaration of gold even in respect of passengers otherwise eligible to bring gold should be absolutely confiscated.

In Shri Kamlesh Kumar In re 1993(67) ELT 1000, The Government of India in revision, it was held that such an option cannot be claimed as a right. This is because the condition regarding payment of duty in forign exchange is not satisfied (as goods were not declared) and hence these become ‘prohibited goods’. However, if a passenger is otherwise eligible to import gold, the option to pay redemption fine may be given considering all aspects. 

 

CONFISCATION EVEN IF DECLARATION MADE

 

In R Karuppan v. R Namachivayam 1998 ElT 214 

Hon’ble Madras High Court (Divisional Bench) , it was held that goods can be confiscated and penalty imposed even if the passenger had voluntarily declared the goods in his baggage.

 

GENERAL DEFENSE AVAILABLE

 

Section 2(3):“Section 2(3):includes unaccompanied baggage but does not include motor vehicles.”
Section 2(39):“Section 2(39): “smuggling”, in relation to any goods, means any act or omission which will render such goods liable to confiscation under section 111 or section 113.
Section (33):“Section (33):“prohibited goods” means any goods the import or export of which is subject to any prohibition under this Act or any other law for the time being in force but does not include any such goods in respect of which the conditions subject to which the goods are permitted to be imported or exported, have been complied with.

[While prohibited and restricted items may sound the same, there is an actual difference – prohibited items must never be sent in the post, while restricted items may be sent in the post, but restrictions will apply.]”

 

Section 125. Option to pay fine in lieu of confiscation

 

  • Whenever confiscation of any goods is authorised by this Act, the officer adjudging it may, in the case of any goods, the importation or exportation whereof is prohibited under this Act or under any other law for the time being in force, and shall, in the case of any other goods, give to the owner of the goods an option to pay in lieu of confiscation such fine as the said officer thinks fit:

 

Provided that, without prejudice to the provisions of the proviso to subsection (2) of Section 115, such fine shall not exceed the market price of the goods confiscated, less in the case of imported goods the duty chargeable therein.

 

 

  • Where any fine in lieu of confiscation of goods is imposed under  subsection (1), the owner of such goods or the person referred to in Sub-section (1), shall, in addition, be liable to any duty and charges payable in respect of such goods.”

 

 

In Collector of Customs, Bombay vs M/s Elephanata Oil and Industries Ltd.

“Hon’ble Supreme Court held that from the perusal of Section 112 and 125 of Customs Act 1962 it is apparent that both operate in different fields, namely, one requires imposition of penalty and other provides for confiscation of improperly imported goods section 111 provides that goods brought from the place outside India are liable to confiscation, discretion is given to the authority to impose penalty . Further Section 125 empowers confiscation of such goods and thereafter , confiscated goods vest in the Central Government. The Section further empowers the authority to give an option to the owner or the person from which goods are seized to pay a fine lieu of such confiscation for return of goods and the fine is also limited up to the market price of the goods. Therefore, levy of fine in lieu of confiscation is in addition to levy of penalty impossible under Section 112.”

 

CONCLUSION

 

in our respectful opinion the body of the passenger is not ‘baggage’, gold ornament worn by passengers need not be declared?

“Section 2(3): “baggage” includes unaccompanied baggage but does  not include motor vehicles.”

In vigneswaran Sethuraman v. Union Of India WP(C).No. 6281 of 2014 (I) Hon’ble High Court Of Kerala At Ernakulam stated that:

Para 15

“…             

 

that the body of a passenger is not ‘baggage’ Hence, gold ornaments worn by passengers need not to be declared. Baggage rules do not prohibit a foreign tourist entering into india from wearing a gold chain or other gold jewellery.

 

…”

 

In Kartar Singh V. State of Punjab The Hon’ble Supreme Court of India has stated  and held that: 

Para 130.

“…

 It is the basic principle of legal jurisprudence that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. It is insisted or emphasised that laws should give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Such a law impermissibly delegates basic policy matters to policemen and also judges for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. More so uncertain and undefined words deployed inevitably lead citizens to “steer far wider of the unlawful zone….than if the boundaries of the forbidden areas were clearly marked.” (emphasis supplied).

…”

In Uma Balasaraswathi v. cc-1988 106 (CEGAT)

It has been held that if ornaments are worn by ladies and are not concealed anywhere, there cannot be any ‘mis-declaration’. 

 

In Shaik Jamal Basha v. Government of India

It was held that since gold is otherwise eligible for import, it is mandatory to give option to pay fine Absolute confiscation cannot be ordered even if gold was found to be concealed. 

 

[Same view in shaik shahabuddin v. CC2001 (137) ELT 127 (CEGAT)]

 

The Customs Act, 1962 or the Baggage Rules, 2016 do not stipulate that a foreign tourist or Indian Resident entering India cannot wear gold ornaments on his body. The Customs Act, 1962 and the Baggage Rules, 2016 do not provide sufficient warning to foreign tourists or Indian residents entering India that wearing a gold chain is prohibited. The Act and the Rules do not even remotely indicate that a foreign tourist or indian resident entering India cannot wear a gold chain on his person. In other words, foreign tourists entering India are in a boundless sea of uncertainty as to whether it is prohibited or not. As the Customs Act, 1962 and the rules framed thereunder contemplate confiscation and levy of penalty as also prosecution, the State has a duty to specify with a degree of certainty as to what is prohibited and what is not, without leaving it to the foreign tourist to guess what is prohibited and what is not.

 

Introduction – The Insolvency and Bankruptcy Code

/in , /by

The Insolvency and Bankruptcy Code, 2016 (“Code”) is a perfect platform that oversees and addresses the Corporate Insolvency Resolution Process (“CIRP”) and liquidation proceedings for individuals, firms, corporates and others. It seeks to consolidate the existing framework by creating a single law for insolvency and bankruptcy that will provide for resolution of insolvency in a speedy and time bound manner while simultaneously balancing the interest of all the stakeholders.

The ecosystem of the Code is dependent on four pillars namely, the Insolvency and Bankruptcy Board of India (IBBI), Information Utilities (IUs), Insolvency Professional Agencies (IPAs) and Insolvency Professionals (IPs).

This book attempts to cover the role of an Interim Resolution Professional (IRP) in the Corporate Insolvency Resolution Process. The role of an IRP commences from the day he/she is appointed as such by an order of the Adjudicating Authority (within fourteen days from the insolvency commencement date) and ends on the thirtieth day from the date of his appointment. During the tenure of thirty days, the IRP is provided with tasks of great responsibility and criticality that has the potential to hugely impact the implementation and success of the Code.

The IRP shall have the power of management of the corporate debtor and shall take control of the assets of the corporate debtor. The powers of the Board of Directors of the corporate debtor shall stand suspended. The IRP shall make a public announcement pertaining to his appointment and invites creditors for submission of proof of claims. On receipt of claims from various creditors, he is also entrusted with the task of verification of the claims, on the basis of which, he prepares the list of creditors. Once the list of creditors is prepared, the IRP shall constitute the Committee of Creditors (“Committee”) and file a report in this behalf with the Adjudicating Authority. Subsequently, the first meeting of the Committee is to be convened.

With the conclusion of the first meeting of the Committee, the role of the IRP also comes to an end. At the first meeting of the Committee, the role of the IRP comes to an end either by change of his role into a resolution professional, subject to approval of his appointment by a majority of seventy five percent of the voting share of the financial creditors in the Committee or by termination of his role as an IRP and appointment of another resolution professional, where his appointment is not approved by the Committee.

It is pertinent to note the importance of the IRPs under this Code, who are endowed with mammoth and pivotal tasks that needs to be undertaken within a prescribed time frame. It is their efficiency and management that provides the Code with the impetus to fulfil its objective of resolving insolvency and bankruptcy cases in a speedy and time bound manner.