Nathalal Maganlal Chauhan Vs State of Gujarat

GST - On 30th December 2019, the son of the writ-applicant came to be arrested by the respondent no.4 in exercise of powers under Section 69 of the CGST, 2017 - The arrest was on the reasonable belief that the son of the writ-applicant has committed offence under Section 132 of the Act 2017 - son of the writ-applicant came to be produced before the Chief Metropolitan Magistrate at Ahmedabad who, in turn, remanded the son of the writ-applicant to the judicial custody - Writ applicant is questioning the legality and validity of the Notification No.EST/1/Jurisdiction/B.2168 dated 5th July 2017, by which the Commissioner of State Tax has delegated all his powers to the Special Commissioner of State Tax and the Additional Commissioners of State Tax.

Held: Delegation generally means parting of powers by the person who grants the delegation, but it also means conferring of an authority to do things which otherwise that person would have to do himself - As a general rule, whatever a person has the power to do himself, he may do by means of an agent - This broad rule is limited by the operation of the principle that a delegated authority cannot be re-delegated, delegatus non-potest delegare - The naming of a delegate to do an act involving a discretion indicates that the delegate was selected because of his peculiar skill and the confidence reposed in him and there is a presumption that he is required to do the act himself and cannot re-delegate his authority - As a general rule, "if the statute directs that certain acts shall be done in a specified manner or by certain persons, their performance in any other manner than that specified or by any other person than one of those named is impliedly prohibited" - Normally, a discretion entrusted by the Parliament to an administrative organ must be exercised by that organ itself - At the same time, it is settled position of law that the maxim "delegatus non-potest delegare" must not be pushed too far - The maxim does not embody a rule of law but it indicates a rule of construction of a statute or other instrument conferring an authority - Prima facie, a discretion conferred by a statute on any authority is intended to be exercised by that authority and by no other, however, the intention may be negatived by any contrary indications in the language, scope or object of the statute - The construction that would best achieve the purpose and object of the statute should be adopted - it is essential that the delegated power should be exercised by the authority upon whom it is conferred and by no one else - At the same time, in the present administrative setup, the extreme judicial aversion to delegation should not be carried to an extreme - There is only one Commissioner of State Tax in the State of Gujarat, and having regard to the enormous functions and duties to be discharged under the new tax regime, he has been empowered to delegate his powers to the Special Commissioner of State Tax and the Additional Commissioners of State Tax - Bench takes notice of the fact that the delegation has been authorized expressly under Section 5(3) of the Act - Bench would have definitely interfered if the Special Commissioner or the Additional Commissioners would have further delegated the power to officers subordinate to them but that is not the case here, therefore, the challenge to the legality and validity of the impugned notification should fail: High Court [para 8, 9, 10, 30, 31, 39, 40, 41]

GST - Observations made by the Court in paragraph 35 in the case of Valerius Industries [ 2019-TIOL-2094-HC-AHM-GST ] that Commissioner could not have delegated the powers conferred by the legislature to the three subordinate officers by virtue of the order dated 15th January 2018 could be termed as per incurium as such observations run contrary to the Supreme Court decisions - dictum as laid in the aforesaid Full Bench decision of the Allahabad High Court [ Raghunath v. Indore Municipal Corporation, Indore, AIR 1987 (MP) 181 ] is that, normally the administrative functions and powers can be delegated in favour of a coordinate authority or to a subordinate authority - When administrative function is statutory in nature and the function or the power is assigned under the statute, it should be performed or exercised by that authority unless the power to delegate such function or exercise of power is specifically provided or may be inferred by necessary implication from the provisions contained in the statute - dictum as laid in the aforesaid decision is that, be it quasi-judicial or administrative power, the same can be delegated provided the law expressly or by clear implication permits it to be delegated - writ-applications fail and are hereby rejected: High Court [para 43 to 45, 52, 57, 60]

- Petitions rejected: GUJARAT HIGH COURT

2020-TIOL-12-AAAR-GST

Pattabi Enterprises

GST - AAR had held that  supply of access cards and similar material printed by the applicant with the contents supplied by the recipient of supply are classifiable under SAC 9989 (and not under HSN 4901 1020) as supply of service and liable to tax under 9% CGST and 9% KGST and 18% IGST - appeal before the Appellate authority.

Held: Appellant is  supplying  "Access Cards" to their customer M/s Trilok Security Systems India P Ltd. who provide Mass Queue Management System services at various pilgrim destinations - Access cards are given to the pilgrims free of cost and they contain the pilgrims's digital photo and thumb impression along with information regarding distance to temple,  precaution to be taken by pilgrims who are old, sick, physically weak and also first aid centre details etc. - activity undertaken by the appellant is one which brings into existence a distinct item i.e. " Access Card" which is used by the recipient for distribution amongst pilgrims - printing is an activity which is ancillary to the emergence of the access card- resultant product is, therefore, a product of the printing industry - Authority is, therefore, of the opinion that the contents of paragraph 5 of the CBIC Circular 11/11/2017-GST dated 20.10.2017 would apply and hence the printing and supply of Access cards by the appellant is a supply of goods - Ruling given by the AAR is, therefore, set aside - insofar as classification is concerned, the access cards being printed cards in single sheets are classifiable under sub-heading 4901 1020 under the category of ‘pamphlets, booklets, brochures, leaflets and similar printed matter'; are covered under entry Sl. no. 201 of Schedule I of 1/2017-CTR and attracts CGST of 2.5%: AAAR

- Appeal allowed: AAAR

CENTRAL EXCISE

TP - Draft assessment order cannot be treated as final order, simply by issuing a corrigendum - such draft order is of no consequence: ITAT

I-T - Remanded ordered merely to examine whether or not assessee had PE in India, is tenable, where ITAT could itself have looked into such issue: HC

TP - Harbour Rules u/s 92CB for software development services restricted to lower turnover cap in absence of change in business model: ITAT

TP - ALP needs to be determined for long credit period on trade receivables as international transaction: ITAT

TIOL CORPLAWS

Trademark Act - Assigning of trademark tantamount to 'deemed abandonment' allowing trademark to fall into public domain: HC

Competition - Whether mere apprehension of dominant position without any material evidence to corroborate potential abuse of dominant position ipso facto is anti-competitive - CCI

Arbitration and Conciliation - In absence of any material on record to show any delay with administration of justice, by judgment debtor and no objection to remittance of award amount, the same can be complied with: HC