Recent Posts

In W.P. (C) 2335/2023 -DEL HC- Delhi High Court provides relief to Amazon Web Services India, orders AWS India to withhold 8% TDS on payments to AWS USA
Justice Vibhu Bakhru & Justice Amit Mahajan [31-08-2023]

Read Order: Amazon Web Services India Pvt Ltd & Anr V. Income Tax Officer & Anr


Chahat Varma


New Delhi, September 19, 2023: In a recent decision, the Delhi High Court has modified an order related to tax withholding in a case between AWS (Amazon Web Services) India and AWS USA. The Court directed AWS India to withhold 8% of payments payable or paid to AWS USA and deposit the same with the Revenue authorities.


The present petition was filed to challenge an order dated 01.02.2023, passed by the Assessing Officer (AO). This order pertained to the disposition of an application filed by AWS India, under Section 195(2) of the Income Tax Act, 1961. The purpose of this application was to determine the appropriate proportion of the sum payable to AWS USA, chargeable to tax, for the purposes of withholding tax deducted at source (TDS).


In the matter at hand, AWS India operated by reselling web services to third-party customers within India. Meanwhile, AWS USA was headquartered in the United States and was primarily involved in offering web services to a global clientele, including AWS India. AWS India claimed that, in terms of the Reseller Agreement between AWS India and AWS USA, it had been appointed as a non-exclusive reseller of web services on a principal-to-principal basis. According to the said Reseller Agreement, AWS India asserted that it was authorized to resell web services to its customers in India. It maintained that it independently entered into contracts in its own name with Indian customers and raised invoices directly to such customers. It also received funds from its customers directly. AWS India made payments to AWS USA for the purchase of web services for the purpose of reselling them to its customers.  


In its application, AWS India claimed that AWS USA's receipts were chargeable to the Equalisation Levy under Section 165A of the Finance Act, 2016, which was paid. It contended that the payments made by it were not chargeable to income tax under the Act either as fees for technical services (FTS) or royalty under Section 9 of the Act or under the DTAA between India and the United States of America. In view of the aforesaid claims, AWS India had sought a certificate from the AO for nil withholding of tax in respect of the reseller fee paid by AWS India to AWS USA.


The division bench of Justice Vibhu Bakhru and Justice Amit Mahajan examined the challenged order, and observed that the AO had made determinations regarding AWS India's application based on information publicly available and certain assumptions that were ex-facie erroneous.


The bench also noted that the AO had made the assumption that AWS USA was not an incorporated entity but rather a Limited Liability Company. Consequently, the AO had concluded that the Indo-US DTAA did not apply to AWS USA. However, the bench stated that this assumption was clearly incorrect on its face, and there was no supporting evidence on record to justify this perspective. The use of the suffix 'Inc.' in AWS USA's name indicated that it was indeed an incorporated entity.


The bench also determined that they could not endorse the notion that the entire sum payable by AWS India to AWS USA should be regarded as revenue associated with AWS's permanent establishment (PE), if it indeed existed in India, without considering any portion of it being attributable to entities located overseas.


The bench also added that they found it challenging to comprehend AWS India's argument that all the information concerning AWS USA was accessible through the Department's portal, and therefore, the AO should have retrieved it from there. They clarified that under Section 195(2) of the Act, it is the responsibility of the applicant to provide the essential information.


Taking into account that these proceedings were limited to determining the withholding of tax and that the financial year 2022-23 had concluded, the Court proposed to the parties that, without compromising their respective positions regarding the taxation of AWS USA's income under the Income Tax Act, a total of 10% be withheld (after deducting the 2% Equalisation Levy already paid) as withholding tax.

In WPA 532 of 2023 -CAL HC- Calcutta High Court rules imposition of tax and penalty based on expired e-way bill unjustified if there was no wilful attempt to evade tax; grants refund of penalty to M/s. Perfect Enterprise
Justice Krishna Rao [15-06-2023]

Read Order: M/s. Perfect Enterprise v. State of West Bengal & Ors


Chahat Varma


New Delhi, June 23, 2023: The Jalpaiguri Bench of the Calcutta High Court has granted a favourable ruling to M/s. Perfect Enterprise (petitioner), stating that the petitioner was entitled to apply for a refund of the penalty paid. The court acknowledged that there was no lack of bona fide on the part of the petitioner to state that there was wilful misconduct committed by the petitioner and found that the imposition of tax and penalty by the authorities was unjustified in relation to the transportation of goods.


In the said case, goods were being transported from Kandla Port, Gujarat to Siliguri. The e-way bill for the transportation was valid until May 2, 2022. The vehicle reached Siliguri on May 2, 2022, before the e-way bill expiration. However, upon arrival, the stockyard where the goods were supposed to be unloaded was closed. Subsequently, the next working day, the stockyard was again closed, due to the Ed-Ul-Fitr festival. Thereafter, the goods and the vehicle were detained by the authorities based on the vehicle being found in transit with an expired e-way bill. Thereafter, a show cause notice was issued, proposing a penalty each under Central Goods and Services Tax Act/West Bengal Goods and Services Tax Act.  By an order dated May 12, 2022, demand of tax and penalty was served upon the driver of the vehicle claiming penalty of Rs. 4,96,390. On protest, the petitioner paid the penalty and the goods were released to them.


The single-judge bench of Justice Krishna Rao referred to Hanuman Ganga Hydro Projects Private Limited vs. Joint Commissioner, State Tax Authority, Silliguri Circle and Another [LQ//2022/1844], wherein the issue of imposing tax and penalty based on the expired e-way bill was considered by the Coordinate Bench of the Court. In the said case, the court had held that if there was no willful attempt to evade tax on the part of the petitioner, the orders passed by the Appellate Authority and the penalty should be set aside and quashed.


The bench noted that in the present case the e-way bill was valid up to May 2, 2022 and the vehicle of the petitioner reached Silliguri on May 2, 2022 before the expiry of e-way bill but due to national holiday on May 3, 2022, the stockyard was closed and in the early morning on May 4, 2022, the vehicle was intercepted at Bakuabari which was about 16/17 kilometres from the destination and that there was no other allegation against the petitioner.


In view of the above facts and circumstances of the case, the order of the Appellate Authority dated January 31, 2023 and the order passed by the adjudicating authority dated May 12, 2022 are set aside and quashed,” held the court.



IN WPA 12335 OF 2023- CALC HC- PMLA: Chairperson adjudicating proceedings as Single Member cannot be the reason to vitiate proceedings on ground of coram non-judice, holds Calcutta High Court
Justice Sabyasachi Bhattacharyya [16-06-2023]

Read More: R. P. Infosystems Limited v.  The Adjudicating Authority



Simran Singh



New Delhi, June 19, 2023: The Calcutta High Court, while dealing with a petition challenging the impugned order of the Prevention of Money Laundering Act, 2002 (PMLA) authority on the ground of coram non judice, held that on a comprehensive interpretation of Section 6 of PMLA, it was clear that the Chairperson not only had the discretion to constitute a Bench with only one Member, but Section 6(7) of PMLA laid down the norm stating that the Bench could consist of a single Member and, only if the case was of a critical nature, a Bench consisting of two Members would be assigned the hearing. The Court took note of the fact that the Chairperson, as a single Member, had proceeded to take up the hearing of the application under Section 17 of the PMLA which, in light of Section 6, could not be held to be vitiated on the ground of coram non judice.



In the matter at hand, the Enforcement Directorate (ED/respondent 2) objected the jurisdiction of the Court to take up the present matter and stated that the matters relating to police had been excluded by way of a notification dated 30-09-2022 issued by the order of the then Chief Justice which clarified that matters relating to CBI and Central Agencies in writ petitions under Article 226 of the Constitution were already included within the comprehensive reading of the special category ‘Police’ in the Appellate Side Rules, therefore, there was no need to mention ‘CBI and Central Agencies’ separately in the notification. Thus it was contended that since ED was a Central Agency, the said exclusion applied to the present case. It was further stated that petitioners had been repeatedly attempting to stall the proceedings under Section 17(4) of PMLA.



It was averred by the petitioner that the challenge had not been filed against any inaction or action of the Police or any Central Agency, including the ED, but the challenge had been preferred with regard to the jurisdiction of the Adjudicating Authority under the Prevention of Money Laundering Act, 2002, which was a quasi-judicial statutory authority and not a ‘central authority’. Thus, it was argued that the Court had jurisdiction to entertain and decide the matter. It was further contended that the Adjudicating Authority had bias against the petitioners since the venue of the first hearing was fixed at the ED Office who was a complainant himself and such fixation of venue vitiated the authority of the Chairperson. It was submitted that the Adjudicating Authority neither granted any opportunity of being heard nor an opportunity of filing any objections.



The Bench while dealing with the objection as to coram non judice was concerned, stated that there were two interpretations possible regarding the provisions of Section 6 of the PMLA. The one in favour of the petitioners which was on the basis of sub-section (2) of Section 6, which stipulated that an Adjudicating Authority would consist of a Chairperson and two other Members. The qualifications of the Members had also been provided in the proviso. Hence, as per the Scheme of PMLA, the Adjudicating Authority had to comprise of three Members in total, out of whom one would be the Chairperson. However, it had been argued that at present the Adjudicating Authority was functioning only with a Chairperson, without any other Member having been appointed to fill the vacancies. Thus, the question of coram non judice arose.



On the other hand, sub-section (5)(b) provided that a Bench may be constituted by the Chairperson with one or two Members, as the Chairperson of the Adjudicating Authority may deem fit. Hence, it was evident that the Chairperson had the discretion even to function with only one Member, which could very well be herself/himself. Proceeding on such premise, the objection as to coram non judice could not be accepted.



The Bench while dealing with the apprehension of bias against the petitioners noted explanation granted by the respondents stating that the  CGO Complex, where the first sitting was scheduled, housed all the offices of Central Government including the ED office. Although in the Notice it was indicated that the meeting would be held in the ED office, it was held in a different Government office of the same building which was on the same floor as that of the ED.



The Bench stated that the present case was only at the preliminary stage of hearing of an application under Section 17 of the PMLA, which pertained to search and seizure. Under sub-section (4) of Section 17, the authority seizing or freezing any record or property would, within a period of 30 days from such seizure or freezing, filed an application requesting for retention of such record before the Adjudicating Authority. Moreover, the petitioners themselves had applied for examination of the records by an independent authority on the apprehension of tampering of documents, on the basis of which a revisional court had already directed the examination of the records to be done by the Central Forensic Science Laboratory. Thus, admittedly, the records were lying in the office of the ED and the administrative convenience of holding a meeting at the office of the ED could also not be brushed aside, since the records, which were the borne of contention in the present application, were admittedly lying with the ED and might be difficult to be transmitted elsewhere due to security reasons.



The Bench held that the mere selection of the ED office as a venue in the present context, in the absence of any other clinching factor to indicate bias, would not vitiate the proceeding, more so since the matter had not yet reached the final hearing stage. That apart, it was also an admitted position that the petitioners themselves participated, through counsel, in the first hearing, which was ultimately not held in the ED office but elsewhere in the same building. Thus, the objection as to venue had now turned stale, having never been agitated at the relevant point of time by the petitioners.



The Bench in regards to the rejoinder stated that the Chairperson of the Adjudicating Authority made it clear that he would not rely on the rejoinder. Hence, at this belated stage, the petitioner could not resile and agitate its perceived lack of opportunity to deal with the rejoinder. Hence, the same was also not a valid defence for the petitioners.



The Bench was of the view that the Chairperson did not commit any jurisdictional error by constituting the Bench as a single Member as himself, to entertain and proceed with the hearing of the application pending before the Adjudicating Authority. In fact, sufficient opportunity had been given to the petitioners by the Adjudicating Authority to present their case.



The Bench was of the view that repeated attempts of the petitioners to come up in challenge in connection with the pending proceeding indicated that the petitioners wanted to stall the same unnecessarily and such dilatory tactics on the part of the petitioners ought not to be encouraged.



With regard to the allegation of undue haste of the Adjudicating Authority by the petitioner, the Bench examined the Statement of Objects and Reasons of PMLA, which stressed that it was being realised, world over, that money-laundering posed a serious threat not only to the financial systems of the countries, but also to their integrity and sovereignty. “In view of an urgent need for the enactment of a comprehensive legislation inter alia for preventing money laundering and connected activities (within which serious crimes like illicit drug trafficking had also been included), confiscation of proceeds of crime, setting up of agencies and mechanisms for coordinating measures for combating money-laundering, etc. the connected Bill is introduced. The seriousness and implicit urgency involved in a proceeding to combat such grave issues would justify some amount of urgency. Thus, it cannot be said that merely because the Adjudicating Authority is trying to expedite the proceeding, it is biased against the petitioners.”



Accordingly, the Bench was of the view that there was no scope of entertaining the writ petition at this stage. However, in order to allay the apprehension of bias in the mind of the petitioners, a further opportunity of hearing ought to be given to the petitioners before closing the hearing on the pending interim applications. Thus, the Adjudicating Authority was directed to afford an opportunity of hearing to the petitioners and thereafter to pass necessary orders. As clarified by it earlier, the Adjudicating Authority would also not rely on the rejoinder filed by the ED, unless adequate opportunity was given to the petitioners to file a written objection thereto.


In CWP No.9521 of 2023 - PUNJ HC - Punjab and Haryana High Court directs Authority to decide Petitioner's case within one month regarding additional charges of motor vehicle taxes being imposed for stage carriage permit
Justice Raj Mohan Singh [25-05-2023]

Read Order: Bhisham Sharma V. State of Haryana and Others


Chahat Varma


Chandigarh, June 2, 2023: The Punjab and Haryana High Court has instructed the competent authority to consider the representations submitted by the petitioner regarding the additional charges imposed by the authorities for the Stage carriage permit under the Approved City Bus Service Scheme in Municipal Corporation, Rohtak.


The petitioner had filed the writ petition seeking a mandamus, instructing the respondents not to compel the petitioner to pay an amount exceeding the agreed sum of Rs.16,100/-. The petitioner argued that they had provided five buses for use on a specific route and were required to pay Rs. 94,900/- per month (including GST) per bus. However, the authorities were additionally charging Rs. 31,350/- as Motor Vehicle taxes and Rs.14,100/- as ada fee, resulting in a total separate charge of Rs.45,450/- per month.


The petitioner stated that he had already represented before the authorities vide representations dated 20.04.2022, 20.07.2022, 27.07.2022 and 31.03.2023 and expressed before the court that he would be satisfied if his representations were directed to be decided by the competent authority within a specified timeframe and in accordance with the law.


The court directed the competent authority to make a decision in accordance with the law regarding the petitioner's case within one month of receiving a certified copy of the court's order.

In WRIT TAX No. 397 of 2023 – ALL HC - Merely calling a registered firm 'bogus' does not justify cancellation of GST registration, says Allahabad High Court
Justice Piyush Agrawal [19-05-2023]

Read Order: M/s Star Metal Company vs. Additional Commissioner and Ors.


Chahat Varma


New Delhi, June 1, 2023: The Allahabad High Court has ruled that the cancellation of a GST registration that has been granted, requires the respondent authority to bear a substantial burden of proof proving the existence of facts that warrant such cancellation. According to Section 29(2) of the Goods and Services Act, a registration can only be cancelled if one of the five specified statutory conditions are met. Merely describing the registered firm as ‘bogus’ does not justify the cancellation of the registration.


The present writ petition was filed challenging the order dated 01.12.2020 passed by the respondent no. 2 cancelling the GST registration of the petitioner, order dated 19.03.2021 passed by the respondent no. 2 rejecting the petitioner's revocation application for cancellation of the registration as well as the order dated 14.10.2022 passed by the respondent no. 1 confirming the rejection of the revocation application of the petitioner.


The court observed that admittedly, the registration of the petitioner was cancelled on the basis of the survey with the report that the disclosed business place of the firm was not found and therefore, the firm was bogus.


The court placed reliance on Apparent Marketing Private Limited v. State of U.P. and Others [LQ/AllHC/2022/8401], wherein it was held that, “cancellation of registration has serious consequences. It takes away the fundamental right of a citizen etc. to engage in a lawful business activity……Though the notice for cancellation of registration may not be placed on a high pedestal of a jurisdictional notice, at the same time, unless the essential ingredients necessary for issuance of such notice had been specified therein at the initial stage itself, the authorities cannot be permitted to have margin or option to specify and/or improve the charge later.”


Consequently, the court quashed the orders dated 01.12.2020, 19.03.2021 and 14.10.2022.


In CRL. R.C. 297 & 305 of 2020- MADR HC- One cannot legally represent a firm in an individual capacity without authorisation, says Madras High Court while setting aside trial court order holding the accused guilty of offence under Sec 138 of NI Act
Justice G.Jayachandran [18-05-2023]

Read More: M.C. Baby v Sastha Home Tech


Simran Singh


New Delhi, May 29, 2023: The Madras High Court, while reiterating the settled position of law by way of multiple judicial decisions, said that in the absence of the required documents of the partnership deed along with authorisation to represent the partnership firm, the Courts below could not presume that the respondent was a partner who was duly authorised to represent the said firm. The High Court, accordingly allowed the revision petitions and set aside the impugned judgment passed by the Metropolitan Magistrate as well as the Additional Sessions Judge



In the matter at hand, two revision petitions were preferred by the accused who was held guilty of offence under Section 138 of Negotiable Instruments Act, 1881 (NI Act) by Metropolitan Magistrate, Saidapet and the same on appeal was confirmed by Additional Sessions Judge, Chennai.



Issue for consideration before the Court was whether a complaint under Section 138 of the NI Act by a partner of the firm without authorisation was maintainable.


The accused being a railways contractor had placed orders for supply of materials which were delivered to the construction site by the respondents. When the respondents demanded repayment of dues, the accused gave two cheques, dated 31-12-2004 for INR 7, 41, 923 and another dated 31-03-2005 for INR 14,20,235 to partially discharge the dues. Both the cheques were bounced on 27-06-2005 and 08-08-2005, respectively for the reason ‘insufficient funds’. The respondent therefore, had caused statutory notice on 27-07-2005 and 04-09-2005, respectively calling upon the accused to make payment of the cheque amount within 15 days. It was alleged that despite the receipt of the notice, the accused neither paid the cheque amount nor replied within 15 days. Hence the respondent had filed a case before the Metropolitan Magistrate, Saidapet.



The accused contested the case on the premise that the cheques were issued as security for the goods supplied. Though payment made, the cheques were presented and misused by the respondents. More so, no statutory notice was served upon the accused and there was no proof that the respondent was authorised to prefer the complaint against the accused. Hence, the complaints were alleged to be not maintainable.



Both the Courts below had held that the signatures on the cheques were not disputed and the business relationship was also admitted. There was no rebuttal evidence led by the accused to shift the burden of presumption. Thus, the complaints were held to be maintainable.



However, the Bench stated that the Metropolitan Magistrate had failed to address the plea of maintainability of the complaint by the respondent without the authorisation of partners. Further the Additional Sessions Judge failed to not only apply the correct law, but also erred in misquoting the facts while considering the plea of maintainability. The Court was of the view that there was no record to show that M/s Sastha Home Tech was a partnership firm and the respondent was one of the partner of the firm. It was noted that during the cross examination, the respondent had stated to have filed the partnership deed, which later he retracted and said that he will produce the required document.  However, the required documents were neither produced before the Metropolitan Magistrate nor before the Additional Sessions Judge.



The Court scrutinised the complaints, and found that the respondent had signed the complaint not on behalf of M/s Sastha Home Tech, but as an individual which was contrary to the observations made by the Additional Sessions in its order, hence perverse.



The Bench while relying on BSI Limited v. Gift Holdings Private Limited stated that in the absence of the required documents of the partnership deed along with authorisation to represent the partnership firm, the Court could not presume that the responder was a partner who was duly authorised to represent the said firm.

In  CRM-M-11528-2023-PUNJ HC- P&H HC refuses to grant bail to man allegedly indulged in trading drugs of commercial quantity as he didn't state anything to discharge burden put by sec.37 of NDPS Act
Justice Anoop Chitkara [15-05-2023]

Read Order:Rahul Vs. State Of Haryana 


Tulip Kanth


Chandigarh, May 16, 2023: The Punjab and Haryana High Court has refused to grant bail to the petitioner-accused apprehending arrest for violating the provisions of Narcotics Drugs and Psychotropic Substances Act, 1985  on the allegations of indulging in drug trade and selling 900 tablets containing Alprazolam to another man from which the police had seized the same.


“The burden is on the petitioner to satisfy the twin conditions put in place by the Legislature under Section 37 of the NDPS Act”, the Bench said.


In the bail petition, the accused declared that he had no criminal antecedents and the petitioner’s counsel contended that the pre-trial incarceration would cause an irreversible injustice to the petitioner and family.


The Bench noted that the quantity allegedly involved in this case was commercial and the rigours of S. 37 of the NDPS Act would apply in the case. 


The Bench took note of the fact that the police had collected sufficient evidence connecting the petitioner with the offence. The court was not dealing with a regular bail but an anticipatory bail involving a commercial quantity of intoxicants.


As per the Bench, the  grounds taken in the bail petition did not shift the burden placed by the legislature on the accused under S. 37 of the NDPS Act. The petitioner had not stated anything to discharge the burden put by the stringent conditions placed in the statute by the legislature under section 37. 


The High Court also referred to the judgment of the Top Court in Jai Prakash Singh v. State of Bihar and another.


Thus, the Bench concluded that the petitioner had failed to make a case for bail at this stage and dismissed the petition.


In CWP-8792-2016 (O & M)-PUNJ HC- P&H HC dismisses challenge against Collector’s order whereby eviction petition was decreed in favour of Gram Panchayat as petitioner failed to protest against tenability of demarcation report
Justices Sureshwar Thakur & Kuldeep Tiwari [12-05-2023]

Read Order: Nagender Singh (since deceased) through his LRs. Versus State of Haryana & Others


Tulip Kanth


Chandigarh, May 15, 2023: The Punjab and Haryana High Court has dismissed a writ petition challenging an eviction Order after noting that despite several opportunities granted to the petitioner to produce evidence contrary to the one as comprised against him in the demarcation report, he failed to adduce such evidence.


The factual background of this case was such that the Gram Panchayat Bhonds  in District Gurgaon, through a Panchayat Member  instituted a petition under under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961, against a purported encroacher, upon, the panchayat land, one Nagendar Singh. Through a decision made thereon, the Assistant Collector decreed the said petition for eviction.


This decision  resulted in the aggrieved therefrom instituting thereagainst an appeal before the competent Appellate Authority concerned. However, the competent Appellate Authority concerned, through a decision upon, appeal declined the espoused relief to the appellant and affirmed the verdict aswas previously drawn by the Assistant Collector.


The aggrieved Nagender Singh-petitioner herein, preferred a revision petition but the same was declined. This led the petitioner to institute a petition before the High Court.


The petitioner was alleged to raise a house on the disputed land which was evidently owned by the Gram Panchayat. The Orders revealed that the demarcation report was drawn in terms of the relevant rules and instructions.


The Division Bench of  Justice Sureshwar Thakur & Justice Kuldeep Tiwari noted the fact that there were gross abandonments and waivers by the petitioner herein, to adduce evidence, thus, dislodging the worth of the demarcation report, either through his making a protest against its tenability or through his subsequently asking for the summoning of the demarcating officer, so that elicitations are made from him, but suggestive that he has not drawn the same in consonance with the relevant rules and instructions.


As per the Bench, the effect of such waivers and abandonments, wasthat, the petitioner was deemed to have acquiesced to the validity of the drawing of the demarcation report, which became relied upon by the statutory authorities below.


Observing  that the petitioner cannot make any submission, that the concurrently made decrees of eviction against him, are flawed rather on the premise that the relevant demarcation report has not been drawn in consonance with the relevant rules and instructions.


Thus, without finding any merit in the petition, the Bench dismissed the same.



In MA No. 709 of 2022 – SC - The 2017 Guidelines for designating Senior Advocate: Judgment modified by Supreme Court
Justices Sanjay Kishan Kaul, Ahsanuddin Amanullah & Aravind Kumar [12-05-2023]

Read Order: Indira Jaising v Supreme Court of India



Simran Singh



New Delhi, May 13, 2023: While exercising its civil original jurisdiction, the Full Bench of Justice Sanjay Kishan Kaul, Justice Ahsanuddin Amanullah and Justice Aravind Kumar passed directions in an application which had sought modifications in the guidelines regulating the conferment of designation of Senior Advocate as laid down in its 2017 judgment Indira Jaisingh v Supreme Court of India.



“We only hope that our endeavour to simplify some aspects of the process results in the designation of more meritorious candidates. The process of improvement is a continuous one and we learn from every experience. This is one more step in the fine-tuning of this exercise and we hope it achieves the purpose. The ultimate objective is to provide better assistance to litigants and the Courts.”



In the case at hand, the issue pertained to the manner of the exercise conducted for designation of Senior Advocates and certain aspects of the 2017 judgment which Court only attempted to fine-tune and modify instead of carrying out a review or reference.



“An endeavour was made by the Union of India to reopen the 2017 Judgment itself. That however is not our remit in the present applications. We are not at the stage of a review or a reference of the matter to a larger Bench. We are only on the aspect of fine-tuning what has been laid down by this Court in the 2017 Judgment”



Voting By Secret Ballot


The method of designation prior to the 2017 Judgment, was by a discussion followed by voting by secret ballot from Judges of the Full Court. The percentage of approval required ordinarily varied from 2/3rd to 50%. In the 2017 Judgment, it was noticed that a secret ballot was supposed to be a rarity rather than the norm and may be used only under certain unavoidable circumstances.



The Court observed that the constitution of a Permanent Committee, reliance on certain objective criteria for assessment, and final decision through voting were the central aspects of the 2017 Judgment which the Court did not consider to review but only modify the criteria through experiences gained over a period of time.  "While it is alleged that voting by secret ballot may not always subserve the interests of transparency, in practice judges may be reluctant to put forth their views openly. This is especially the case where the comments of a judge can have a deleterious effect on the advocate’s practice.” Thus, the Court found merit in the contention that voting by secret ballot should not be the rule but an exception. In case it had to be resorted to, the reasons for the same should be recorded.



Cut-off marks:



A grievance was raised that while the cut-off marks may have already been decided, the same were neither published in advance nor communicated to those applying for senior designation, thereby leading to speculation at the Bar. It was thus prayed that the cut-off marks be released in advance.  However, the Court was of the view that it would be difficult to prescribe cut-off marks in advance.



“As designation is really an honour to be conferred, there can only be a limited number of successful applicants in one go. A decision on the number of successful applicants must be left to the Permanent Committee, depending on the total number of applicants, the marks obtained by them, and the number of people that can be invited for the personal interview.”






The Points assigned for publications



The Court stated that the allocation of 15 points for publication was high, and thus was deemed fit to reduce the available points under this category to 5 points. “Most practicing advocates find very little time to write academic articles. In any case, academic publications require a different aptitude. However, given that Senior Advocates are expected to make nuanced and sophisticated submissions, academic knowledge of the law is an important prerequisite.” Thus, stated that the said criteria would not only continue but expand what should fall under this criteria, while reducing the points of the same.



The Court stated that confining these criteria merely to the authorship of academic articles would not be enough, instead, it should also include teaching assignments or guest courses delivered by advocates at law schools which would be a more holistic reflection of the advocate’s ability to contribute to the critical development of law which also showed their interest in guiding and helping their peers at the Bar.



The Bench referred to the system adopted by the Singapore Bar where the designation of Senior Counsel was recognized as an elite group of advocates, with top tier advocacy skills, professional integrity, and knowledge of law. “Senior Counsels have a duty to leading and be an example to the rest of the Bar, especially younger members. They are also required to contribute to academic teaching, writing, and research, and to the process of continuing legal education.” Thus, the Court left it to the Permanent Committee to decide on the manner of assigning points under this category, including the possibility of taking external assistance to gauge the quality of publications which could be through other Senior Advocates or academics.



Account of Various Parameters


This category contemplated reported and unreported judgements, pro bono work, and the domain expertise of an applicant under various branches of law. The court deemed it fit to enhance the number of points under this category by 10 points, having deducted the same from publications and simultaneously increased the scope of this category. The Bench clarified that it was not the Order but the judgments that had to be considered. “In recent times, and particularly in the Supreme Court, the number of advocates present for a matter are very high. However, that is not ipso facto reflective of the assistance that they are providing to the Court. A matter may be argued by a counsel who may be assisted by others, including an Advocate-on-Record.” Thus, as assessment would have to be carried out in enquiring into the role played by the advocate in the matter they have appeared in with their role specified by them in their application and stated that merely looking into the number of appearance would not be enough.



The Court believed that the same would also take care of any perceived disadvantages arising due to the larger number of appearances by Government Counsels, as compared to Counsel who were engaged in private work. Further, the quality of synopsis filed in Court ought to be considered which could be a useful indicator for assessing the assistance rendered by an advocate to the Court. Candidates should thus be permitted to submit five of their best synopses for evaluation with their applications.



The Court turning to another aspect of ‘specialised Tribunals’ stated that several advocates have concentrated their practice before such tribunals which has led to the opening up of various specialisations. Often appeals from those Tribunals lie to this Court and, thus, such advocates also appear before this Court, although the frequency of their appearances may be less. Specialised lawyers with domain expertise should be permitted to concentrate on their fields and not be deprived of the opportunity of being designated as Senior Advocates. Thus, in the case of such advocates, a concession is required to be given with regards to the number of appearances. “This category of advocates and their expertise is also essential for the advancement of all specialized fields of law.”



The Court went on to state that due consideration should be given in the interest of diversity, particularly with respect to gender and first-generation lawyers. This would encourage meritorious advocates who will come into the field knowing that there was scope to rise to the top. “The profession has seen a paradigm shift over a period of time, particularly with the advent of newer law schools such as National Law Universities. The legal profession is no longer considered as a family profession. Instead, there are newer entrants from all parts of the country and with different backgrounds. Such newcomers must be encouraged.”



Personal Interview



The Court was of the view that an interview process would allow for a more personal and in-depth examination of the candidate which would enable a more holistic assessment, particularly as the Senior Advocate designation was an honour conferred to exceptional advocates who was also required to be very articulate and precise within a given timeframe. Thus, restricted the number of interviews to the appropriate amount as deemed feasible by the Permanent Committee, keeping in mind the number of Senior Advocates to be designated at a given time. The Bench was neither inclined to do away with or to reduce the marks assigned under this category.



Other General Aspect



The Court was of the view that the process should be carried out at least once a year so that applications do not accumulate. “In this respect, some disturbing instances have emerged from certain High Courts where the exercise of designation has not been undertaken for many years. As a consequence, meritorious advocates at the relevant time lose out on the opportunity of being considered for designation.”



The Court reiterated the observation made in the 2017 judgment that the power of suo motu designation by the Full Court was not something that was being taken away. It further clarified that the pending application for designation would not be considered under the old norms. “The exercise to be undertaken now would have to include these existing applications. However, such candidates can be given the time to update or replace their applications in light of the norms laid down by the present judgment”


In ITA NO.302/MUM/2023- ITAT- Rule 128 requirement for Form 67 submission in Foreign Tax Credit claim deemed directory, not mandatory; ITAT (Mumbai) holds that assessee can file Form 67 before completion of the assessment
Member S. Rifaur Rahman (Accountant) [05-04-2023]

Read Order: Ganesh Anandrao Ingulkar v. Assistant Director of Income-tax


LE Correspondent


Mumbai, May 11, 2023: The Mumbai bench of the Income Tax Appellate Tribunal has allowed the claim of the assessee, holding that that assessee can file Form– 67 before completion of the assessment and the assessee was entitled to Foreign Tax Credit (FTC).


In the present case, the assessee had filed Form–67 at the time of filing revised return of income and not at the time of original return of income. The CIT(a) had upheld the order of the Assessing Officer (AO), noting that since the assessee had failed to file the return of income for A.Y. 2019-20 as well as Form 67 within the due date of filing of return of income, the claim of FTC had rightly been disallowed.


The Tribunal placed reliance on Sonakshi Sinha v. CIT [LQ/ITAT/2022/4056], wherein the Coordinate Bench has observed that one of the requirements of Rule128 for claiming FTC is that Form 67 is to be submitted by assessee before filing of the returns and that this requirement cannot be treated as mandatory, rather it is directory in nature. This is because, Rule 128(9) does not provide for disallowance of FTC in case of delay in filing Form No. 67. The bench further observed that it is well settled that while laying down a particular procedure, if no negative or adverse consequences are contemplated for non-adherence to such procedure, the relevant provision is normally not taken to be mandatory and is considered to be purely directory.



In CWP-10037-2023-PUNJ HC- P&H HC asks Maharishi Dayanand University to consider Law student’s plea for issuance of Admit Card which was denied to him on account of shortage of attendance & in light of fact that he was in custody 
Justice Vikas Bahl [09-05-2023]

Read Order:David Chandekar v. Maharishi Dayanand University And Ors 


Tulip Kanth


Chandigarh, May 10, 2023: The Punjab and Haryana High Court has asked Maharishi Dayanand University to look into a law student’s plea seeking directions to the respondent-University to issue Roll Number/Admit Card for 6th semester examination of 3 year LLB Course, within one week.


Justice Vikas Bahl passed such a direction while considering a Civil Writ Petition filed under Article 226 of the Constitution of India for issuance of a writ in the nature of mandamus directing the respondents to issue Roll Number/Admit Card for 6th semester examination of 3 year LLB Course so that he may take part in the Practical as well as in Theoretical Examination scheduled to be conducted from May 9, 2023 to June 12, 2023.


The admit card had been denied on account of shortage of attendance and the fact that the petitioner was in custody.


The petitioner submitted that the writ petition could be treated as a representation and the first respondent-University could consider the same as expeditiously as possible. It was also pleaded that if the first respondent finds merit in the same then petitioner may be permitted to give 6th semester examination from the date the said decision is taken.


The University’s counsel assured the Court that every endeavour would be made by  it to consider the writ petition as a representation within a period of one week. It was also submitted before the Bench that if any merit is found in the plea raised by the petitioner, then necessary action would be taken in pursuance of the same.


Thus, considering such facts and circumstances, the Bench disposed of the Civil Writ Petition with directions to the University to consider the present writ petition as a representation within a period of one week.


“In case, respondent No.1 finds merit in the plea raised by the petitioner, then to take necessary action, in accordance with law, as expeditiously as possible”,the Bench ordered.