TaxTMI Updates e-Newsletter
Apr 05,2023

Cancellation and revival of GST registration - Exercise of High Court's jurisdiction under Article 226 to quash administrative orders - Right to carry on trade and commerce under Article 19(1)(g) and Article 14 - Conditions and safeguards for revival including filing returns, payment of tax, interest, penalties and restriction on utilization of Input Tax Credit - Preventing abuse and bill trading through scrutiny of Input Tax Credit

Cancellation and revival of GST registration - Exercise of High Court's jurisdiction under Article 226 to quash administrative orders - Conditions and safeguards for revival including filing returns, payment of tax, interest, penalties and restriction on utilization of Input Tax Credit - Preventing abuse and bill trading through scrutiny of Input Tax Credit - Writ petition for quashing cancellation of GST registration and reinstatement of registration subject to conditions set out in the cited precedent was allowed. - HELD THAT: - The writ petition challenging cancellation of the petitioner's GST registration was disposed of by applying the principles and safeguards laid down in Tvl. Suguna Cutpiece (cited). The Court accepted that persons whose registrations were cancelled may be reintegrated into the GST regime so that legitimate trade and commerce are not driven outside the statutory framework, while ensuring adequate safeguards against abuse. Revival is conditional: petitioners must file and pay outstanding returns, tax, interest, fines/fees for the defaulted period; payments cannot be made by utilizing any unapproved Input Tax Credit; any Input Tax Credit already claimed shall be subject to scrutiny and approval by competent officers before utilization; petitioners must also declare and pay GST in cash for periods subsequent to cancellation and comply with other restrictions to prevent bill trading. The High Court exercised its Article 226 jurisdiction cautiously to effectuate these objectives and directed that the writ petition be disposed of in terms of the guidelines in the cited judgment, thereby quashing the cancellation order and permitting revival subject to those safeguards. [Paras 6]

Writ petition disposed of in terms of the guidelines in Tvl. Suguna Cutpiece; cancellation quashed and registration to be revived subject to the conditional safeguards and procedural steps specified in the cited order.

Final Conclusion: The writ petition was allowed by applying the High Court's power under Article 226 and the guidelines in the cited decision: the respondent's order cancelling GST registration is quashed and the petitioner may revive registration on fulfilling the specified conditions and safeguards to regularize defaults.

Exercise of jurisdiction under Section 263 - assessment erroneous and prejudicial to revenue - Duty of Assessing Officer to conduct adequate enquiry into genuineness of transactions before allowing exemptions - Denial of exemption under Section 10(38) where transactions are colluded or bogus - Long term capital gains from penny stocks - tainted gains and addition under Section 68 - Application of preponderance of probabilities and surrounding circumstances in tax enquiries

Exercise of jurisdiction under Section 263 - assessment erroneous and prejudicial to revenue - Duty of Assessing Officer to conduct adequate enquiry into genuineness of transactions before allowing exemptions - Validity of the Commissioner's exercise of power under Section 263 where the Assessing Officer's enquiry into the transactions was found to be insufficient - HELD THAT: - The Court held that the Commissioner was justified in invoking Section 263 because the Assessing Officer had not conducted the enquiry in the manner required to satisfy himself about the genuineness of the claimed exemptions. Substance over form governs the exercise of Section 263 power; the Commissioner need not use the exact statutory phrasing so long as the order discloses reasons showing why the assessment was erroneous and prejudicial to revenue. The surrounding circumstances, including departmental investigation reports and the failure of the AO to put the assessee on notice or to probe those reports, demonstrate that the enquiry was inadequate. In such factual matrix the assumption of jurisdiction by the Commissioner was a proper exercise of power and the Tribunal's interference with the Commissioner's order was incorrect.

Tribunal erred in setting aside the Commissioner's Section 263 order; the Commissioner's exercise of jurisdiction was held to be justified.

Denial of exemption under Section 10(38) where transactions are colluded or bogus - Long term capital gains from penny stocks - tainted gains and addition under Section 68 - Application of preponderance of probabilities and surrounding circumstances in tax enquiries - Whether long term capital gains claimed as exempt under Section 10(38) could be allowed where the transactions involved penny stocks shown to be manipulated or part of collusive/bogus schemes - HELD THAT: - The Court accepted the revenue's position that gains arising from transactions in penny stocks, where the rise in prices was established to be the result of manipulative practices, are tainted and cannot attract exemption under Section 10(38). Given the complex and covert nature of such transactions, direct evidence of meeting of minds may be unavailable; therefore inferential reasoning based on surrounding circumstances and human probabilities is permissible. The assessee had the opportunity to prove genuineness and creditworthiness of counterparties but failed to do so. Consequently, in the absence of satisfactory explanation, the Assessing Officer was justified in treating the gains as tainted and making additions under Section 68.

Exemption under Section 10(38) cannot be allowed in respect of the LTCG arising from the challenged penny-stock transactions; the gains are to be treated as tainted and additions under Section 68 are justified.

Final Conclusion: The revenue appeal is allowed; the Tribunal's order is interfered with and the substantial questions of law are answered in favour of the revenue, sustaining the Commissioner's exercise of power under Section 263 and disallowing exemption under Section 10(38) for gains from the impugned penny-stock transactions.

Section 263 power of revision - reassessment under Section 147 - Section 43CA deemed income on transfer of land - definition of transfer under Section 2(47) - characterisation of Joint Development Agreement as not effecting transfer - precedent holding that owner retains ownership under JDA (Balbir Singh Maini) - registrar/stamp treatment of JDA indicating non-conveyance

Section 263 power of revision - reassessment under Section 147 - Whether invocation of revisional jurisdiction under Section 263 was justified in view of material placed before and enquiries made by the Assessing Officer during reassessment proceedings under Section 147. - HELD THAT: - The Tribunal recorded that the assessment impugned was a reassessment under Section 147 and that the Assessing Officer had reopened the assessment on the very issue now raised by the Principal Commissioner. The assessee had filed detailed objections supported by audited financials and profit and loss statements showing the land was held as stock-in-trade and that any profit would arise on actual sale; these documents and submissions were considered by the Assessing Officer and the assessment was completed accepting the assessee's stance. The High Court found that the Tribunal correctly examined the facts and legal position and concluded that there was no basis to hold the initiation of revisional proceedings void where the AO had in fact considered the matter during reassessment. The Court therefore affirmed the Tribunal's conclusion that the power under Section 263 was not rightly exercised by the PCIT in the circumstances.

Tribunal's conclusion that invocation of Section 263 was not justified is upheld.

Section 43CA deemed income on transfer of land - definition of transfer under Section 2(47) - characterisation of Joint Development Agreement as not effecting transfer - precedent holding that owner retains ownership under JDA (Balbir Singh Maini) - registrar/stamp treatment of JDA indicating non-conveyance - Whether the transaction under the Joint Development Agreement amounted to a transfer of land attracting charging provisions such as Section 43CA (and related provisions) or whether the owner retained ownership such that no deemed income arose under those provisions. - HELD THAT: - The Tribunal analysed the JDA clauses and noted that the agreement expressly preserved the assessee's ownership of the land throughout development, allotting 55% of constructed area to the owner and 45% to the developer, together with termination provisions restoring full rights to the owner if the developer defaulted. On these facts the Tribunal applied the Supreme Court's decision in Balbir Singh Maini which held that in similar JDAs the owner continues to be the owner and no transfer of rights akin to ownership occurs. The Tribunal also considered the treatment by registering authorities and stamp assessment which treated the instrument as an agreement and not as a conveyance, reinforcing that the arrangement did not effect a transfer attracting the deeming provisions. The High Court found that the Tribunal correctly applied the legal principles to the factual matrix and was justified in holding that the JDA did not amount to a transfer exigible to tax under the provisions relied upon by the revenue.

Tribunal's finding that the JDA did not effect a transfer and that Section 43CA/related provisions were not attracted is upheld.

Final Conclusion: The High Court dismissed the revenue's appeal and answered the substantial questions of law against the revenue, upholding the Tribunal's findings that the revisional exercise under Section 263 was unjustified and that the Joint Development Agreement did not amount to a transfer attracting the deeming provisions; connected stay application closed.

Deduction of employee's contribution under Section 36(1)(va) - Operation of Section 43B non-obstante clause in relation to amounts held in trust - Requirement of deposit on or before the due date as a condition for deduction

Deduction of employee's contribution under Section 36(1)(va) - Operation of Section 43B non-obstante clause in relation to amounts held in trust - Requirement of deposit on or before the due date as a condition for deduction - Whether employee's contributions (PF/ESI) retained by the employer and deposited belatedly could be allowed as deduction. - HELD THAT: - The Court held that the law as laid down by the Supreme Court in Checkmate Services (P) Ltd. governs the controversy. That decision draws a clear distinction between an employer's own contribution and amounts deducted or retained from employees' income and treated as deemed income. Amounts retained as employees' contributions are monies held in trust and are not part of the employer's income unless the statutory conditions for treating them otherwise are satisfied. The non-obstante clause in Section 43B must be read in the context of the entire provision: timely deposit, as prescribed by the relevant welfare enactments, is an essential condition for allowing deduction under Section 36(1)(va). The leeway that permits deduction for certain liabilities paid after the statutory due date but before filing the return does not extend to employees' contributions held in trust; such contributions must be deposited on or before the statutory due date to qualify for deduction. Applying that binding precedent to the facts of the appeal, the Court concluded the existing law operated against the appellant and that no substantial question of law survived for admission in the present appeal. [Paras 5, 6, 7]

Application of the Supreme Court's ratio in Checkmate Services (P) Ltd. results in disallowance of the claimed deduction where employees' contributions were not deposited in accordance with the statutory due date; appeal dismissed.

Final Conclusion: The appeal is dismissed summarily as the law established by the Supreme Court governs the case and operates against the appellant; no substantial question of law is admitted for consideration.

Notice under Section 148A(b) of the Income-tax Act, 1961 - order passed under Section 148A(d) of the Income-tax Act, 1961 - notice issued under Section 148 of the Income-tax Act, 1961 - beneficiary of accommodation entries - GSTR-2A as evidence of inward supplies - obligation of the assessing officer to prima facie establish falsity before reopening - de novo inquiry with opportunity to be heard and personal hearing

Notice under Section 148A(b) of the Income-tax Act, 1961 - order passed under Section 148A(d) of the Income-tax Act, 1961 - beneficiary of accommodation entries - GSTR-2A as evidence of inward supplies - obligation of the assessing officer to prima facie establish falsity before reopening - Validity of the order dated 28.03.2022 under Section 148A(d) and the notice dated 21.03.2022 under Section 148A(b) in respect of the allegation that the petitioner was a beneficiary of accommodation entries. - HELD THAT: - The Court found that the assessing officer proceeded without dealing with material placed by the petitioner indicating genuine supply and export of readymade garments, including GSTR-2A and matching GSTINs on supplier invoices. The AO relied on the fact that one supplier was not found at the given address but did not prima facie establish that the petitioner's assertion of genuine purchase and export was false. The impugned order did not consider the documentary evidence of inward supplies and duty drawback claimed. In these circumstances the Court concluded that the AO had not undertaken the requisite due diligence before recording satisfaction to proceed under the provisions impugned. [Paras 8, 9]

The order dated 28.03.2022 under Section 148A(d) and the consequential notice dated 28.03.2022 under Section 148 (and the earlier Section 148A(b) notice insofar as it relates to AY 2018-19) are set aside for lack of adequate prima facie satisfaction and failure to consider the petitioner's documentation.

De novo inquiry with opportunity to be heard and personal hearing - GSTR-2A as evidence of inward supplies - Whether the matter should be remanded for fresh consideration and the scope of proceedings on remand. - HELD THAT: - The Court directed that the assessing officer be permitted to undertake a de novo exercise. Before proceeding further the AO must examine the documents placed on record by the petitioner concerning receipt of goods from the named suppliers and the exports claimed, including the GSTR-2A and related invoices. If the AO obtains or adduces further material, the petitioner shall be given an opportunity to respond and the authorized representative shall be granted a personal hearing. The direction confines the remand to a fresh, reasoned consideration after giving the petitioner procedural fairness. [Paras 10]

Matter remitted to the AO for de novo consideration with directions to examine the petitioner's records and to afford opportunity to respond and a personal hearing.

Final Conclusion: The writ petition is disposed of by setting aside the impugned order and notice in relation to AY 2018-19 and remitting the matter to the assessing officer for a de novo exercise; the AO must consider the petitioner's documentary evidence (including GSTR-2A and matching GSTINs), furnish any additional material to the petitioner, and afford an opportunity to respond and a personal hearing before proceeding further.

Capital receipt versus revenue receipt - Power of the Appellate Tribunal to entertain claims not raised before the Assessing Officer (exercise of appellate jurisdiction) - Inclusion of receipts in book profit for computation under section 115JB - Treatment of employee contributions to PF and ESI-Section 43B vis-a -vis Section 36(va) - Tax effect threshold for leave to appeal under section 260A

Capital receipt versus revenue receipt - Inclusion of receipts in book profit for computation under section 115JB - Power of the Appellate Tribunal to entertain claims not raised before the Assessing Officer (exercise of appellate jurisdiction) - Whether the sales tax subsidy is taxable as revenue or is a capital receipt and whether the Tribunal could entertain the assessee's claim treating such subsidies as capital receipts notwithstanding that no revised return was filed before the Assessing Officer. - HELD THAT: - The Court held that the substantial question concerning the taxability of the subsidy is governed by authoritative decisions which treat such incentive subsidies as capital receipts and not income. The Court referred to the decision in Principal Commissioner of Income Tax vs. Krishi Rasayan Exports and to precedents including the Supreme Court in CIT v. M/s. Chaphalkar Brothers and this Court in Pr. CIT v. Ankit Metal And Power Ltd. , concluding that where an incentive subsidy is a capital receipt it is not 'income' under the Act and accordingly cannot be included in book profit for computation under section 115JB. The Court further accepted the principle that the appellate forum, in exercise of its powers under section 254 of the Income-tax Act, may entertain and allow a claim which was not pressed before the Assessing Officer (i.e., allowance by the Tribunal despite absence of a revised return), following the rationale in Goetze (India) Ltd. v. CIT and subsequent decisions such as CIT v. Britannia Industries Ltd. . Applying these authorities, the Court answered the substantial question against the revenue and dismissed the revenue's challenge on this point. [Paras 4, 5, 6]

Substantial question (a) answered against the revenue; the subsidy is a capital receipt not taxable as income and the Tribunal validly entertained the claim.

Treatment of employee contributions to PF and ESI-Section 43B vis-a -vis Section 36(va) - Tax effect threshold for leave to appeal under section 260A - Whether employees' contributions to PF and ESI are governed by the provisions of Section 43B (as contended by the revenue) instead of Section 36(va), and whether the revenue can pursue the appeal on that question. - HELD THAT: - The Court examined the matter but declined to decide the substantive legal controversy on its merits because the aggregate tax effect for the assessment years in question falls below the threshold fixed by the CBDT for entertaining an appeal under section 260A. On that statutory/granting threshold ground the revenue was held not entitled to pursue the appeal on this question, and the substantial question was accordingly not permitted to be proceeded with before the High Court.

Substantial question (b) dismissed on the ground that the tax effect is below the threshold; the question was not entertained for adjudication on merits.

Final Conclusion: Delay in filing the appeal is condoned. The substantial question concerning the taxability of the sales tax subsidy is answered against the Revenue (subsidy held to be a capital receipt and not taxable as income; Tribunal entitled to entertain the claim). The contention on the treatment of employee contributions to PF/ESI is not adjudicated on merits and is dismissed because the tax effect is below the statutory threshold for leave to appeal.

Addition under the Income-tax Act on account of unexplained loans under Section 68 - creditworthiness, identity and genuineness of creditors - admissibility and weight of statements obtained under threat - appellate interference and substantial question of law - condonation of delay

Condonation of delay - Delay of 370 days in filing the appeal was condoned. - HELD THAT: - The affidavit filed in support of the application for condonation of delay was examined and the court found that sufficient cause had been shown for the delay. On that basis the application to condone the delay was allowed and the delayed filing of the appeal was regularised.

Application for condonation of delay allowed and the delay in filing the appeal condoned.

Addition under the Income-tax Act on account of unexplained loans under Section 68 - creditworthiness, identity and genuineness of creditors - admissibility and weight of statements obtained under threat - appellate interference and substantial question of law - Whether the Tribunal erred in deleting the addition made under Section 68 and disallowance of interest by accepting the identity, creditworthiness and genuineness of loan creditors on the basis of documents. - HELD THAT: - The court reviewed the findings of the CIT(A) and the Tribunal which had examined the creditworthiness of the lenders in depth, noted factual details, and recorded that all lenders had directly submitted documents before the assessing officer. The assessing officer's conclusion that the company was a sham under the control of a particular individual was based on certain answers allegedly recorded under threat and coercion; the lower appellate authorities independently assessed the material and gave detailed reasons for accepting the identity and creditworthiness of the lenders. Given the Tribunal's elaboration and the CIT(A)'s reliance on documentary proof and direct submissions by lenders, the High Court found no substantial question of law arising warranting interference with the concurrent factual findings of the authorities below.

Appeal on merits dismissed; the Tribunal's deletion of the addition and acceptance of the lenders' identity and creditworthiness affirmed; no substantial question of law arises.

Final Conclusion: The application for condonation of delay is allowed. On merits, the concurrent findings of the CIT(A) and the Tribunal accepting the identity, creditworthiness and genuineness of the loan creditors were upheld and the revenue's appeal is dismissed for lack of any substantial question of law.

Interest under section 234B - Advance Tax liability and shortfall - Tax deduction under section 195 - Onus of assessee to pay advance tax despite non-deduction by purchaser

Interest under section 234B - Advance Tax liability and shortfall - Tax deduction under section 195 - Onus of assessee to pay advance tax despite non-deduction by purchaser - Whether interest under section 234B is chargeable where tax was not deducted by the purchaser under section 195 and the assessee did not deposit the requisite advance tax. - HELD THAT: - The Tribunal upheld the reasoning of the Ld. CIT(A)-NFAC that interest under section 234B is chargeable from 1st April following the relevant financial year where there is a shortfall in advance tax payment. The CIT(A) correctly noted that the statutory charge is on the shortfall in advance tax as reduced by tax actually deducted (tax deducted), and not by tax merely deductible. The assessee, being aware that tax had not been deducted under section 195, remained under an obligation to deposit the advance tax by 31st March; this obligation cannot be shifted to the purchaser/deductor. Applying these legal principles to the admitted facts (sale proceeds received and absence of tax deduction), the Tribunal found no infirmity in confirming the levy of interest under section 234B by the lower authorities. [Paras 5, 6]

The confirmation of interest under section 234B was sustained and the appeal dismissed.

Final Conclusion: The Tribunal dismissed the appeal, upholding the Ld. CIT(A)-NFAC's confirmation of interest under section 234B on the ground that the assessee failed to discharge the advance tax obligation despite non-deduction by the purchaser under section 195.

Revision under Section 263 of the Income Tax Act - character of land as agricultural land - treatment of gains on sale of agricultural land - change of opinion - absence of conversion to non agricultural use - intermediary transactions in land

Revision under Section 263 of the Income Tax Act - treatment of gains on sale of agricultural land - character of land as agricultural land - change of opinion - absence of conversion to non agricultural use - Validity of the Principal CIT's revision under Section 263 directing reassessment of sales of agricultural land as short term capital gains. - HELD THAT: - The Tribunal found that the Pr. CIT failed to bring any material on record showing that the lands were used for non agricultural purposes or were converted to non agricultural use. The assessee produced sale deeds and purchase deeds characterising the holdings as agricultural land and a certificate from the Village Revenue Officer confirming the agricultural character. The mere fact that purchases were recorded in acres and sales in square yards, and that transactions occurred within a short span, did not alter the legal character of the land. No evidence was shown that the assessee sought or obtained conversion permission or that the lands had been put to non agricultural use. In these circumstances the Pr. CIT's conclusion amounted to a change of opinion rather than a demonstration that the assessment order was erroneous and prejudicial to the revenue, and therefore the s. 263 revision direction was unsustainable. [Paras 5]

Order under Section 263 quashed insofar as it directed treating the sales as short term capital gains; appeal allowed.

Final Conclusion: The Tribunal allowed the appeal, quashed the Pr. CIT's revision directing the Ld. AO to treat the gains as short term capital gains, holding that the lands remained agricultural in character and no capital gains arose on their sale for AY 2015 16.

Treatment of foreign exchange fluctuation loss as part of cost of a capital asset - non allowability of foreign exchange fluctuation as revenue expenditure - addition to actual cost of asset for depreciation on account of exchange rate fluctuation - notional interest disallowance on interest free advances - commercial expediency test for advances to sister concerns - allowability of notional interest on running account and business advances

Treatment of foreign exchange fluctuation loss as part of cost of a capital asset - non allowability of foreign exchange fluctuation as revenue expenditure - addition to actual cost of asset for depreciation on account of exchange rate fluctuation - Whether the foreign exchange fluctuation loss on buyers' credit taken for import of an MRI machine is allowable as revenue expenditure or must be added to the cost of the capital asset and allowed by way of depreciation. - HELD THAT: - The Tribunal affirmed the view that where foreign currency borrowing is obtained specifically for acquisition of a capital asset, any increase in liability arising from fluctuation in exchange rate is not a revenue expenditure but must be added to the actual cost of the asset for the purpose of depreciation. The Tribunal relied on precedents treating exchange rate increase on such borrowings as part of capital cost and held that the foreign exchange loss debited to profit and loss cannot be allowed as a revenue deduction; depreciation on the enhanced cost is the correct relief. The alternate contention that capitalization would be tax neutral because enhanced depreciation arises was considered and rejected as a basis to treat the loss as revenue. The Tribunal followed the reasoning of earlier decisions referred to in the order and accordingly decided the ground against the assessee. [Paras 8]

Foreign exchange fluctuation loss is to be added to the cost of the imported capital asset and cannot be allowed as revenue expenditure; depreciation to be allowed on the enhanced cost.

Notional interest disallowance on interest free advances - commercial expediency test for advances to sister concerns - allowability of notional interest on running account and business advances - Whether notional interest @12% should be disallowed on advances/interest free loans made by the assessee to related parties and others. - HELD THAT: - The Tribunal examined the breakup of advances and the factual material. The advance of Rs.7 crore for the Vijayawada project was held to be for business purposes on account of the Tribunal's earlier order in the assessee's own case and consequential acceptance by the Assessing Officer; interest disallowance on that amount was directed to be deleted. The Tribunal found that the amount forming part of a running account with the holding company represented recurring business transactions and directed that no notional interest be charged on that sum. Advances classified as rent deposit for leasing premises and advances to professionals (doctors) were held to be for business purposes; the Tribunal directed deletion of the notional interest disallowance on these amounts as well. In view of the factual determinations and documentary material, the CIT(A)'s sustainment of the AO's notional interest addition was set aside in respect of the specified advances. [Paras 13, 14, 15, 16]

Disallowance of notional interest on specified advances is deleted: no notional interest to be charged on the Vijayawada project advance, the running account amount with the holding company, the rent deposit, and advances to professionals; the second issue is allowed in favour of the assessee.

Final Conclusion: Appeal partly allowed: foreign exchange loss treated as capital addition to cost of asset (allowable only by way of depreciation) is not allowable as revenue deduction; disallowance of notional interest on specified advances (Vijayawada project advance, running account with holding company, rent deposit, advances to professionals and other business advances) is deleted and those additions are set aside.

Assessment under section 153A - Revisionary power under section 263 - Capital gains exemption under section 54F - Capital Gains Account Scheme deposit requirement under section 54F(4) - Beneficial construction of exemption provisions

Capital gains exemption under section 54F - Capital Gains Account Scheme deposit requirement under section 54F(4) - Revisionary power under section 263 - Beneficial construction of exemption provisions - Disallowance of capital gains exemption claimed under section 54F for failure to deposit net sale consideration in the Capital Gains Account Scheme and validity of exercise of revisionary power under section 263. - HELD THAT: - The assessee sold a property and claimed exemption under section 54F for AY 2013-14. Although the assessee did not deposit the net sale consideration into the Capital Gains Account Scheme as contemplated by section 54F(4), he purchased a residential flat within the two year period prescribed by section 54F(1) and thereby utilized the entire net sale consideration for the purpose prescribed by the provision. The Principal Commissioner invoked section 263 holding the assessment under section 153A to be prima facie erroneous and prejudicial for not requiring CGAS deposit. The Tribunal observed that section 54F is a beneficial provision and must be interpreted liberally with emphasis on end use of the net sale proceeds rather than a hyper technical compliance where the prescribed substantive requirement (purchase within the time limit) is satisfied. Following the precedents relied upon by the assessee, the Tribunal found no justification to sustain the revision under section 263 merely because the intermediary deposit in CGAS was not made when the statutory time limit for acquisition was met and the consideration was ultimately applied to purchase the new residential property. Consequently, the order under section 263 was quashed and the assessment upheld to the extent it accepted the claim of exemption.

Order under section 263 quashed; exemption under section 54F upheld as the net sale consideration was utilized for purchase within the statutory period.

Final Conclusion: Appeal allowed; the Principal Commissioner's exercise of revisional jurisdiction under section 263 was set aside and the assessee's claim of exemption under section 54F for AY 2013-14 sustained on the ground that the net sale consideration was applied to purchase a residential property within the statutory period.

Addition on account of unexplained cash deposits - genuineness and source of bank credit entries as burden on the assessee - assessment completed under section 144 of the Income Tax Act - condonation of delay in filing appeal in the interest of substantial justice - admission of additional ground of appeal and remand for fresh adjudication - obligation to provide reasonable opportunity of hearing on remand

Condonation of delay in filing appeal in the interest of substantial justice - Condonation of 63 days' delay in filing the appeal before the Tribunal. - HELD THAT: - The Tribunal examined the explanation that the assessee, a senior citizen in ill health, had not been served with the NFAC order and became aware of the dismissal only on receipt of a tax demand notice. Balancing technical non-compliance against the cause of substantial justice, the Tribunal held that the delay was not deliberate or mala fide and that substantial justice ought to be preferred. Accordingly, the application for condonation of delay was allowed and the appeal admitted for hearing on merits. [Paras 8]

Delay of 63 days condoned and appeal admitted for adjudication on merits.

Admission of additional ground of appeal and remand for fresh adjudication - obligation to provide reasonable opportunity of hearing on remand - Admissibility of the additional ground challenging credit entries totalling Rs.4,15,321/- and direction to remand that issue to the Assessing Officer for fresh consideration. - HELD THAT: - The Tribunal noted that the addition of Rs.4,15,321/- had not been specifically the subject-matter of the appellate proceedings before NFAC and that no specific show-cause notice had been issued before completion of assessment under section 144. In view of these facts and since the matter required fresh consideration with opportunity to the assessee to produce evidence, the Tribunal admitted the additional ground and restored the matter to the Assessing Officer for adjudication in accordance with law, directing that the assessee be given reasonable opportunity to produce evidence. [Paras 11]

Additional ground admitted; issue remanded to the Assessing Officer for fresh consideration after affording opportunity of hearing.

Addition on account of unexplained cash deposits - genuineness and source of bank credit entries as burden on the assessee - Claim that cash deposits of Rs.7.60 lakh were borrowings from fellow agriculturists and not income; direction to Assessing Officer to verify the claim and pass a speaking order. - HELD THAT: - The Tribunal observed that the assessee produced names, addresses and particulars of the alleged lenders and proofs of their agricultural holdings, thereby prima facie discharging part of the onus of identity and creditworthiness. The NFAC had upheld part of the addition on the ground that confirmations were not filed and did not seek a remand to verify the evidence. Given the material furnished by the assessee and the absence of verification by the appellate authority, the Tribunal held that the claim required investigation and directed restoration of the matter to the Assessing Officer to consider the evidence furnished, call for further documents if necessary, and pass a speaking order in accordance with law, while warning against frivolous adjournments. [Paras 13]

Assessee's claim of borrowings restored to the file of the Assessing Officer for verification and fresh adjudication; ground allowed for statistical purposes.

Assessment completed under section 144 of the Income Tax Act - General ground challenging the addition as primarily agricultural and exempt - dismissed as infructuous. - HELD THAT: - The Tribunal found the general ground to be non-specific and not requiring separate adjudication, and accordingly treated it as infructuous. [Paras 12]

General ground dismissed as infructuous.

Final Conclusion: The appeal is allowed for statistical purposes: delay in filing the appeal before the Tribunal is condoned; an additional ground challenging unexplained credit entries is admitted and remanded to the Assessing Officer for fresh consideration after affording opportunity of hearing; the claim that certain cash deposits were borrowings is restored to the Assessing Officer for verification and a speaking order; the general ground is dismissed as infructuous.

Levy of fee under section 234E - prospective effect of amendment to section 200A - application of amended section 200A and 234E to returns pertaining to periods prior to 01/06/2015 - processing and intimation under section 200A - consequential interest under section 220(2)

Application of amended section 200A and 234E to returns pertaining to periods prior to 01/06/2015 - prospective effect of amendment to section 200A - deletion of fee levied under section 234E - TDS returns pertaining to periods before 01/06/2015 do not attract levy of fee under section 234E even if filed or processed after 01/06/2015. - HELD THAT: - The Tribunal held that the mechanism enabling computation and intimation for fee under section 234E was inserted into section 200A only with effect from 01/06/2015 and, on principles of statutory interpretation, the substitution to section 200A is to be read as prospective. Consequently, the Assessing Officer was not empowered to charge late filing fee under section 234E in respect of defaults occurring prior to 01/06/2015 merely because the statements were filed or processed after that date. The Tribunal relied on the reasoning in the decision of the Hon'ble Karnataka High Court in Fatheraj Singhvi which emphasised that section 234E cannot be read in isolation and that the enforcement mechanism in section 200A (as amended w.e.f. 01/06/2015) confers the power to compute and demand the fee only prospectively; similar view of the Hon'ble Kerala High Court in United Metals and a coordinate Bench of the Tribunal were also noted. On this basis the Tribunal directed deletion of the fee levied under section 234E for periods prior to 01/06/2015 and held that any consequential interest charged under section 220(2) also does not survive. [Paras 8, 12]

Fee levied under section 234E in respect of defaults prior to 01/06/2015 deleted; consequential interest under section 220(2) set aside.

Levy of fee under section 234E - processing and intimation under section 200A - TDS returns whose due date and default fall after 01/06/2015 are liable to fee under section 234E and the levy by the Assessing Officer is sustainable. - HELD THAT: - For returns where the due date and the default occurred after insertion of the specific charging and enforcement regime (i.e., after 01/06/2015), the Tribunal affirmed that the levy of late fee under section 234E pursuant to processing and intimation under section 200A is in accordance with law. In the lead appeal for AY 2016-17 the assessee filed the return after the due date which itself fell after 01/06/2015, and therefore the amended provisions applied; the Tribunal dismissed the assessee's grounds attacking the levy. The Tribunal noted that the CIT(A) had dismissed the appeals on the issue of condonation of delay without discussing merits, but on substance found the invocation of section 234E proper for defaults after 01/06/2015. [Paras 18, 19]

Levy of fee under section 234E sustained in respect of defaults occurring after 01/06/2015; corresponding appeals dismissed.

Final Conclusion: Appeals for AYs 2013-14, 2014-15 and 2015-16 allowed by deleting the fee levied under section 234E (and consequential interest); appeals for AY 2016-17 dismissed and the levy under section 234E upheld.

Rejection of books of account under section 145 - Dependent Agent Permanent Establishment (DAPE) - obligation to deduct tax at source under section 195 - disallowance under section 40(a)(i) - attribution of profits to a permanent establishment under Article 7 of DTAA - treatment of receipts as gross v. net for accounting and tax purposes

Rejection of books of account under section 145 - treatment of receipts as gross v. net for accounting and tax purposes - Validity of the AO's rejection of the assessee's books of account and recasting of profit and loss account in respect of the AdWords business - HELD THAT: - The Tribunal found that the assessee had disclosed the gross receipts and the net effect in its financials such that the substance of the transactions was reflected and there was no finding that the books were unreliable or incomplete. The coordinate bench had earlier decided similar grounds in favour of the assessee and that conclusion had attained finality. Given the absence of any adverse finding on correctness or completeness of accounts and the parity between declared and recomputed net profit, the AO's action in rejecting the books merely to recast the P&L for the purpose of disallowing the distribution fee was not tenable. Consequently the rejection under section 145 and the recasting by the AO were held not sustainable. [Paras 18]

The rejection of books of account and recasting of the P&L in respect of the AdWords business is set aside; grounds 2 to 4 allowed for the assessee.

Dependent Agent Permanent Establishment (DAPE) - obligation to deduct tax at source under section 195 - disallowance under section 40(a)(i) - attribution of activities "wholly or almost wholly" for the enterprise - Whether the assessee was a DAPE of Google Ireland Ltd., whether the distribution fee was taxable in India and whether disallowance under section 40(a)(i) was warranted for failure to deduct tax - HELD THAT: - Applying the terms of the Distribution Agreement and the criteria in Article 5(6) and 5(8) of the India-Ireland DTAA, the Tribunal examined whether the assessee habitually concluded contracts on behalf of, or acted wholly or almost wholly for, Google Ireland. The agreement and sample invoices showed the assessee conducted business in its own name, collected payments in its own right and the contract clauses expressly stated the parties remained independent contractors with no authority to bind the other. In light of these contractual terms and prior coordinate-bench findings characterising the assessee as a distributor (not an agent), the conditions for DAPE were not satisfied. As the assessee was not a DAPE, it was not required to withhold tax under section 195 in respect of the distribution fee and, therefore, the disallowance under section 40(a)(i) could not be sustained. [Paras 21, 22, 23, 27]

The assessee is not a DAPE of Google Ireland Ltd.; the distribution fee is not taxable in India on that ground, no obligation to deduct under section 195 arises and disallowance under section 40(a)(i) is unwarranted; grounds 5 to 9 allowed for the assessee.

Attribution of profits to a permanent establishment under Article 7 of DTAA - application of global profit percentage / notional profit attribution - arm's length transfer pricing determination - Sustainability of the AO's addition by applying a notional global profit percentage to the assessee's gross receipts and attributing additional profits to the assessee - HELD THAT: - The TPO had determined transactions between the assessee and its associated enterprises to be at arm's length under the TNMM. The Tribunal held that income can be assessed only in respect of amounts that accrue or are received by the assessee unless statute permits assessment of another's income in a person's hands. Given the TPO's arm's-length finding and the conclusion that the assessee was not a DAPE of Google Ireland, the Revenue's recourse to impute a notional global profit percentage and attribute additional profits to the assessee was unsustainable. The Tribunal rejected the revenue's contention that mutual, self-serving pleas between group companies justified such notional additions. [Paras 29, 30]

The addition based on applying a notional global profit percentage is not sustainable; the appeal on this ground is allowed.

Penalty under section 271(1)(c) - Consequences for the penalty proceedings following the Tribunal's substantive findings in favour of the assessee - HELD THAT: - As the substantive additions and disallowances impugned in the assessment were set aside in favour of the assessee, the appeal against the penalty order became academic. The Tribunal observed that allowance of the substantive appeal rendered the penalty appeal infructuous. [Paras 31]

The appeal against levy of penalty has become infructuous.

Final Conclusion: The Tribunal allowed the assessee's appeal for Assessment Year 2008-09: the AO's rejection of books of account was set aside; the assessee was held not to be a DAPE of Google Ireland Ltd., therefore no obligation to withhold under section 195 and no disallowance under section 40(a)(i); the notional attribution of global profits was found unsustainable; consequential penalty proceedings became infructuous.

Deduction under section 10AA - revised return of income - filing of Form 56F - conversion of proprietorship to partnership - use of leased plant and machinery - deemed export - requirement of foreign exchange realization

Deduction under section 10AA - revised return of income - Claim for deduction under section 10AA made in a revised return of income filed within time is admissible. - HELD THAT: - The Tribunal held that subsection (5) of section 139 permits a revised return to correct omissions and that once a revised return is filed the original return is substituted for assessment purposes. There was no statutory requirement in section 10AA, for the year under consideration, that the claim must be made in the original return filed under section 139(1). The tribunal relied on Dhampur Sugar Mills (Allahabad HC) and subsequent authorities, and observed that the proposed Finance Bill 2023 amendment making timely filing mandatory was prospective and not applicable to the year in issue. Hence the AO was obliged to consider the revised return and could not disallow the claim solely because it was in the revised return. [Paras 10]

Deduction under section 10AA claimed in the revised return filed within time is allowable and cannot be denied merely because it was not in the original return.

Filing of Form 56F - deduction under section 10AA - Filing the audit report in Form No.56F during assessment proceedings does not disentitle the assessee from claiming deduction under section 10AA. - HELD THAT: - The Tribunal found that where the deduction was claimed in the revised return, submission of the statutory audit report during assessment proceedings satisfied the compliance for claiming the deduction. There was no separate statutory bar to accepting Form 56F filed during assessment when the substantive claim was made in the revised return; therefore the AO's reliance on the timing of Form 56F filing was rejected. [Paras 10]

The claim cannot be denied solely because Form No.56F was furnished during assessment proceedings.

Conversion of proprietorship to partnership - deduction under section 10AA - Conversion of the undertaking from proprietorship to partnership (with SEZ approval) does not, by itself, disqualify the assessee from deduction under section 10AA where there is no splitting up or reconstruction. - HELD THAT: - On the facts the SEZ authorities had approved the change in constitution and there was no finding that a new unit was formed by splitting up or reconstruction. The Tribunal relied on judicial authorities holding that mere change in status or transfer of an entire business unit does not attract the prohibition in analogous provisions; accordingly the conversion was not a ground to deny section 10AA benefits. [Paras 10]

Change in constitution from proprietorship to partnership, approved by SEZ authorities and not amounting to split/reconstruction, does not disentitle the assessee to deduction under section 10AA.

Use of leased plant and machinery - deduction under section 10AA - Acquisition or use of certain plant and machinery on lease does not automatically deprive an assessee of deduction under section 10AA where the undertaking possessed requisite plant and machinery at formation and there is no transfer forming a new undertaking. - HELD THAT: - The Tribunal noted that audited accounts showed plant and machinery at the relevant time and that the statutory prohibition targets formation of an undertaking by transfer of used plant and machinery, not subsequent hire/lease. The AO's reliance on cases involving extensive lease transfers (including premises and machinery exceeding statutory limits) was distinguished on facts, and authorities on analogous provisions were applied to hold that leased machinery did not ipso facto negate eligibility. [Paras 10]

Use of some leased plant and machinery did not vitiate the claim; the assessee remained eligible for deduction under section 10AA on the facts.

Deemed export - requirement of foreign exchange realization - deduction under section 10AA - Sales to merchant exporters (deemed exports under SEZ Rules) by a unit in SEZ, where the merchant exporter exports the goods, are eligible for deduction under section 10AA for the year in issue even if foreign exchange was received by the merchant exporter and not remitted to the assessee. - HELD THAT: - The Tribunal observed that SEZ Rules permit supplies to merchant exporters and the invoices, shipping bills and SEZ authorisations on record established that the goods were ultimately exported. For the relevant assessment year there was no statutory requirement in section 10AA that export consideration be brought into India by the assessee; the Finance Bill 2023 amendment addressing realization timing was prospective. The Tribunal relied on High Court authorities recognising deemed exports/third party exports as meeting export-oriented scheme conditions and held that absence of foreign exchange remittance to the assessee did not disentitle it for that year. [Paras 10]

Sales to merchant exporters that result in export qualify as deemed export for section 10AA purposes for the year under consideration, and lack of direct foreign exchange remittance to the assessee does not bar the deduction.

Final Conclusion: The Tribunal affirmed the CIT(A)'s order and dismissed the revenue appeal: the assessee's claim for deduction under section 10AA for AY 2015-16, made in a revised return and supported during assessment (including by Form 56F), is allowable; conversion of proprietorship to partnership and use of some leased machinery did not disentitle the assessee; sales to merchant exporters were treated as deemed exports for the relevant year and did not preclude the deduction.

Special provision for computing profits under section 44BB - definition of royalty under Explanation 2(iva) to section 9(1)(vi) - exclusion of amounts referred to in section 44BB from 'royalty' - taxation of non-resident receipts under section 115A read with definition of royalty - presumptive taxation for services or supply of plant and machinery on hire used in prospecting for or extraction or production of mineral oils

Special provision for computing profits under section 44BB - definition of royalty under Explanation 2(iva) to section 9(1)(vi) - exclusion of amounts referred to in section 44BB from 'royalty' - Characterisation and taxability of receipts: whether receipts for charter-hire of vessels for seismic support and transportation in connection with prospecting for, exploration or production of mineral oils are taxable as business profits under section 44BB or as royalty under Explanation 2(iva) to section 9(1)(vi) and section 115A. - HELD THAT: - The Tribunal held that the charter-hire agreements demonstrate that the vessels were provided for seismic support duties and transportation in connection with activities of prospecting for, or extraction or production of, mineral oils. Section 44BB is a special, non-obstante provision applicable to non-residents providing services or supplying plant and machinery on hire (including ships) used in such activities and deems 10% of specified receipts as profits chargeable to tax. Explanation 2(iva) to section 9(1)(vi) treats 'use or right to use industrial, commercial or scientific equipment' as royalty but expressly excludes amounts referred to in section 44BB. Therefore, once receipts fall within section 44BB, they are excluded from the definition of 'royalty' and cannot be taxed as royalty under section 115A. The Tribunal also rejected the DRP's view that section 44BB requires the existence of a permanent establishment in India, noting that section 44BB contains no such mandated PE condition unlike section 44DA. Applying prior decisions on hire of vessels/tugs/barges and seismic services, the Tribunal directed taxation of the receipts under section 44BB. [Paras 8, 9, 11, 12, 13]

Receipts are taxable under section 44BB and are excluded from 'royalty' under Explanation 2(iva); Assessing Officer directed to tax them under section 44BB.

Double counting of revenue and reconciliation with Form 26AS - opportunity of being heard before rectification of assessment - Alleged double counting of receipts by the Assessing Officer and need for reconciliation with bank statements/Form 26AS. - HELD THAT: - The Tribunal noted the assessee's contention that Form 26AS and bank statements indicate actual receipts lower than the amount taken by the Assessing Officer and observed that the DRP had prima facie considered it a case of double counting and directed production of bank statements and reconciliation. The Assessing Officer, however, in the final order repeated the larger addition, observing non-furnishing of documents. The Tribunal directed the assessee to furnish the requisite bank statements and reconciliation to the Assessing Officer, who is to examine them, rectify any double counting if established, and afford the assessee an opportunity of being heard before deciding the issue. [Paras 15, 16, 17]

Assessee to furnish documents; AO to examine and rectify double addition if justified, after giving the assessee an opportunity of hearing.

Credit for tax deducted at source - Claim of credit for TDS of Rs.57,12,356/- disallowed by Assessing Officer. - HELD THAT: - The Tribunal directed the Assessing Officer to factually verify the assessee's claim for TDS credit and to allow the credit in accordance with law after verification of records submitted by the assessee. [Paras 18, 19]

AO directed to verify and allow TDS credit as per law.

Final Conclusion: The appeal is partly allowed: the Tribunal directs that the disputed receipts be taxed under section 44BB (and not as 'royalty' under Explanation 2(iva) to section 9(1)(vi)/section 115A), directs the assessee to furnish reconciliation documents so the AO may examine and rectify any double counting after hearing the assessee, and directs verification and grant of TDS credit; other grounds are consequential or premature as recorded.

Extension of anti-dumping duty under the first proviso to section 9A(5) of the Customs Tariff Act, 1975 - continuation of anti-dumping duty under the second proviso to section 9A(5) - time extension of statutory timelines under section 6 of the Taxation and other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020 - requirement of a fresh notification for imposition or extension of anti-dumping duty - distinction between substantive preconditions and temporal extensions

Extension of anti-dumping duty under the first proviso to section 9A(5) of the Customs Tariff Act, 1975 - requirement of a fresh notification for imposition or extension of anti-dumping duty - continuation of anti-dumping duty under the second proviso to section 9A(5) - Validity of the Central Government's issuance on 09.06.2020 of a notification imposing anti-dumping duty pursuant to sunset-review findings although the earlier duty lapsed on 06.04.2020. - HELD THAT: - The Court analysed the two provisos to section 9A(5) separately. The second proviso (relating to continuation pending conclusion of a review for up to one year) has been held by higher courts to be an enabling provision which must be exercised during the life of an existing notification and does not operate automatically; issuance under that proviso must be by notification and cannot be effected after expiry of the earlier notification. By contrast, the first proviso (empowering the Central Government, after completion of a review, to extend imposition for a further period of five years) contemplates issuance of a fresh notification upon formation of opinion after the review. As explained with reference to the Supreme Court's reasoning in Kumho Petrochemicals, there is no requirement that a notification under the first proviso be issued only during the lifetime of the earlier five-year notification; the first proviso uses the expression "extend the period of such imposition" and contemplates that, once the review is complete and the Government forms the requisite opinion, it may issue a notification extending the period, with the further period to commence from the date of that order. Accordingly, issuance on 09.06.2020 pursuant to the sunset-review final findings was permissible albeit with the consequence that a vacuum may exist during the interregnum between expiry of the earlier duty and the date of the fresh notification. [Paras 30, 31, 32, 33, 34]

Notification dated 09.06.2020 for imposition of anti-dumping duty pursuant to the first proviso to section 9A(5) is not invalid merely because it was issued after the earlier duty expired on 06.04.2020.

Time extension of statutory timelines under section 6 of the Taxation and other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020 - distinction between substantive preconditions and temporal extensions - Whether section 6 of the 2020 Relaxation Act operated to extend the time for issuance of the notification in this case and thereby validate the 09.06.2020 notification. - HELD THAT: - Section 6 of the 2020 Relaxation Act extends specified time limits falling between 20.03.2020 and 29.09.2020 for actions such as issuance of orders or notifications to a later specified date. The Court held that the appellant could not on one hand assert that the first proviso required issuance during the lifetime of the existing duty and on the other hand contend that there was no temporal limit capable of extension by section 6. Given that the earlier duty expired on 06.04.2020 (a date within the period covered by section 6), the temporal operation of section 6 extended the relevant time limit to enable issuance of the notification by 30.09.2020 (later extended to 31.12.2020 by notification). Thus, even if a temporal requirement to issue the notification before expiry were read into the first proviso, that temporal limit stood extended by section 6 and the notification dated 09.06.2020 falls within the extended timeframe and is therefore valid. The Court rejected the appellant's submission that section 6 could not extend substantive preconditions; instead it held section 6 did extend the applicable temporal window in the circumstances of this case. [Paras 38, 39, 40, 41, 42]

Section 6 of the 2020 Relaxation Act operated to extend the temporal limit applicable in the present case and, accordingly, the notification dated 09.06.2020 is valid insofar as timing is concerned.

Final Conclusion: The appeal is dismissed. The Central Government's notification dated 09.06.2020 imposing anti-dumping duty pursuant to the sunset-review findings is held to be valid: issuance after expiry of the earlier notification did not invalidate action under the first proviso to section 9A(5), and, in any event, the temporal window was extended by section 6 of the 2020 Relaxation Act.

Satisfaction of charge - intimation to Registrar - condonation of delay - extension of time for filing/rectification under Section 87 - power to impose just and expedient conditions - exclusion of limitation on account of COVID-19 (period 15.03.2020 to 28.02.2022)

Satisfaction of charge - intimation to Registrar - exclusion of limitation on account of COVID-19 (period 15.03.2020 to 28.02.2022) - condonation of delay - Delay in filing e-Form CHG-4 for recording satisfaction of charges and its excusability in view of the death of the founder-director and COVID-19 limitation exclusions. - HELD THAT: - The statutory obligation to intimate satisfaction of a registered charge to the Registrar by filing e-Form CHG-4 is required to be complied with within thirty days. The Supreme Court's orders excluded the period 15.03.2020 to 28.02.2022 from computation of limitation, and consequently the thirty-day period for the petitioner began to run from 01.03.2022 (expiring effectively 28.03.2022). The petitioner filed the CHG-4 on 28.11.2022, thus admitting a delay of approximately eight months beyond the adjusted limitation. Having regard to the factual finding that the founder-director died of COVID-19 and management changed thereafter, the Court held that the delay was not deliberate but attributable to genuine causes and inadvertence. On that basis the Court treated the delay as a bonafide ground for condonation rather than wilful default. [Paras 7, 9, 10, 11]

Delay was not deliberate; condonation of delay is warranted in the circumstances.

Extension of time for filing/rectification under Section 87 - power to impose just and expedient conditions - condonation of delay - Whether the costs imposed by the Registrar of Companies as condition for condonation were reasonable and should be modified. - HELD THAT: - Section 87 empowers the Central Government (and by delegated authority the ROC) to extend time or direct rectification on such terms as it deems just and expedient. The ROC had allowed the applications but imposed costs of Rs.2,00,000/- (Rs.1,00,000/- per charge) for the delay. Applying the principle that conditions under Section 87 should be just and proportionate, and having regard to the petitioner's bona fide reason for delay (death of the founder-director due to COVID-19) as well as comparative treatment in precedents where costs were reduced in similar circumstances, the Court found the quantum of costs excessive. The Court therefore exercised supervisory jurisdiction to moderate the condition imposed by the ROC, reducing the costs to a proportionate amount to reflect the nature of the default and the surrounding circumstances. [Paras 8, 12, 13]

The costs imposed by the ROC are reduced to Rs.25,000/- for each charge (total Rs.50,000/-), payable within four weeks.

Final Conclusion: The petitions challenging the ROC orders are disposed of by holding the delay to be excusable in the circumstances of the founder-director's death and applicable COVID-19 limitation exclusions, and by moderating the costs imposed by the ROC from Rs.2,00,000/- to Rs.50,000/- in aggregate, to be deposited within four weeks.

Maintainability of recall/review of an appellate Tribunal judgment - inherent powers of the Tribunal versus absence of statutory review/recall - doctrine of merger of subordinate order in superior court's judgment - fraud vitiates judicial acts but requires prima facie satisfaction before relief - locus and derivative shareholder standing where company is under an administrator - requirement of prior criminal process under Section 340 CrPC for court-initiated action in relation to contempt/fraud on court

Maintainability of recall/review of an appellate Tribunal judgment - inherent powers of the Tribunal versus absence of statutory review/recall - Whether the intervention/recall application seeking recall of this Tribunal's final judgment is maintainable before the Tribunal. - HELD THAT: - The Tribunal examined whether Rule 11 (inherent powers) or any other provision permits recall or review of a final order of the Tribunal. Noting the statutory scheme of the I&B Code (which provides specific appellate remedies) and prior decisions of the Tribunal, the Court held that there is no provision under the NCLAT Rules or the IBC that empowers the Tribunal to review or recall its final judgments except to correct clerical/typographical mistakes. The Tribunal relied on precedent holding that in the absence of an express power of review/recall, a party cannot invoke the Tribunal's inherent powers to revisit a final adjudication. On the material before it the application was heard solely on maintainability and the Tribunal concluded that the appropriate course, where available, is to approach the Supreme Court under Section 62 of the IBC rather than seek recall before the Tribunal itself.

Application dismissed as not maintainable before the Tribunal on the ground that there is no power to recall/review a final Tribunal judgment.

Doctrine of merger of subordinate order in superior court's judgment - fraud vitiates judicial acts but requires prima facie satisfaction before relief - Whether the judgment of this Tribunal, having merged with the Supreme Court's judgment, can be recalled by this Tribunal on allegation of fraud. - HELD THAT: - The Tribunal applied the doctrine of merger: where a subordinate forum's order has been subjected to appellate adjudication and the superior court's decision subsists, the subordinate order merges in the superior court's judgment. The Court observed that merger ordinarily precludes the subordinate forum from revisiting its earlier order once the superior court has finally adjudicated the matter. Although the jurisprudence recognises an exception where a judgment is obtained by fraud and thus is a nullity, the Tribunal emphasised that such an exception requires convincing prima facie material establishing fraud. On the record before it (and given that the earlier NCLAT judgment had merged in the Supreme Court's decision), the Tribunal found that the applicant had not shown sufficient material to displace merger or to satisfy the threshold necessary to treat the earlier judgment as a nullity obtained by fraud.

Recall sought on the basis that the earlier judgment was procured by fraud not permitted to be entertained by this Tribunal where that judgment has merged with a Supreme Court judgment and no prima facie case of fraud is established.

Fraud vitiates judicial acts but requires prima facie satisfaction before relief - requirement of prior criminal process under Section 340 CrPC for court-initiated action in relation to contempt/fraud on court - Whether the allegations of fraud on the basis of non disclosure and alleged suppression of material facts were of such character on the present record as to permit recall of the Tribunal's order. - HELD THAT: - The Tribunal acknowledged the settled principle that a judgment obtained by fraud is a nullity, and that non disclosure of material facts can constitute fraud. However, it stressed that before treating a judgment as void ab initio the court must be satisfied that fraud has actually been committed. In the present proceeding there was neither a prior order under Section 340 CrPC nor other criminal process pointed to as already initiated; further, the material placed on record (including emails and affidavits relied upon by the applicant) did not satisfy the Tribunal that a prima facie case of fraud had been made out sufficient to reopen or recall the merged judgments. Consequently the fraud exception could not be invoked to justify recall in the circumstances of this case.

Allegations of fraud found insufficient on the record to warrant recall; fraud exception to finality not attracted.

Locus and derivative shareholder standing where company is under an administrator - maintainability of derivative action by a single shareholder - Whether the applicant shareholder (applicant No.2) had locus to maintain the intervention/recall application on behalf of the company (applicant No.1) which was under an administrator. - HELD THAT: - The Tribunal reviewed the pleadings and materials relied upon to establish derivative standing. The applicant admitted that management of the company was under an administrator appointed by NCLT and did not disclose her shareholding percentage or show that a majority of shareholders had authorised her to act. The only steps alleged to have been taken before the administrator were two emails whose timings and contents raised doubts about their genuineness and the applicant's bonafides. Relying on established principle that ordinarily a company litigates through its duly authorised representatives (and that shareholder derivative intervention is an exception requiring compelling justification), the Tribunal found that the applicant had not demonstrated the necessary locus or satisfactory justification for stepping into the company's shoes while an administrator was in place.

Applicant No.2's derivative locus not established; conduct and documents relied upon cast doubt on bonafides and standing, rendering the application not maintainable on this ground as well.

Final Conclusion: The intervention/recall application was dismissed on maintainability grounds: the Tribunal has no jurisdictional or procedural power to recall its final judgment that has merged with the Supreme Court's decision; the applicant failed to establish the fraud exception or to demonstrate derivative shareholder locus or bona fides sufficient to permit this Tribunal to reopen the matter. The Court left open the possibility of further inquiry by an appropriate agency if fresh material establishing ulterior motive or specific misconduct is produced.

Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - mandamus to consider belated payment - acceptance of payment under settlement scheme despite expiry - taxing authority's discretion to extend scheme period - court's power to direct consideration of belated payments

Mandamus to consider belated payment - court's power to direct consideration of belated payments - Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - Respondents to consider the petitioner's representation dated 22.02.2023 seeking acceptance of payment under the Sabka Vishwas Scheme despite belatedness and the department's freeze of the petitioner's account. - HELD THAT: - The Court recognised that the Scheme has a limited shelf life and that the taxing authorities lack power to extend its period, but observed that courts may direct authorities to entertain belated payments to enable compliance with tax liabilities. While not adjudicating the merits of whether the petitioner ultimately qualifies for settlement under the Scheme, the Court noted the petitioner's bona fide contention that the demanded sum had been remitted by RTGS on 30.07.2020 and subsequently affected by departmental action. In the interest of a balanced or 'via media' outcome, the Court directed the respondents to reconsider the representation on merits and in accordance with law within one month, expressly requiring the authorities to bear in mind that the petitioner's entire sum had been paid on 30.07.2020. The order does not itself extend the Scheme or decide entitlement to settlement; it mandates fresh administrative consideration of the representation.

The respondents are directed to consider the representation dated 22.02.2023 and pass appropriate orders on merits and in accordance with law within one month from receipt of a copy of this order, taking into account that the amount was paid on 30.07.2020; no order as to costs.

Final Conclusion: Writ petition disposed by issuing a mandamus directing the respondents to reconsider the petitioner's representation for acceptance of payment under the Sabka Vishwas Scheme within one month, bearing in mind the petitioner's payment on 30.07.2020; no order as to costs.

Exemption of market fee from service tax/GST - services by a local authority in relation to Article 243W municipal functions - adjustment/refund of tax pending final adjudication - administrative consideration of representation

Exemption of market fee from service tax/GST - services by a local authority in relation to Article 243W municipal functions - Whether the market fee collected by Thirupathur Town Panchayat is exempt from GST/service tax. - HELD THAT: - The Court recorded that the Notification No.25/2012 and the subsequent circular identify market fee as one of the municipal activities described in relation to Article 243W which have been indicated as exempt. However, both parties admitted that the substantive question of exemption is pending final adjudication. The Court declined to decide the substantive entitlement to exemption and treated the question as one for the adjudicating authority to resolve. [Paras 8]

The question of exemption is not finally adjudicated by the Court and is left for determination by the appropriate adjudicating authority.

Adjustment/refund of tax pending final adjudication - Relief in respect of GST/service tax amounts already collected in the event adjudication finds those amounts exempt. - HELD THAT: - Recognising that the substantive exemption remains to be finally decided, the Court directed that if the adjudication ultimately holds that the market fee is exempt from GST/service tax, the amounts already collected should not be retained but should be adjusted towards future payments. This direction preserves the petitioner's remedy without deciding the underlying entitlement on merits. [Paras 8]

If adjudication is in favour of the petitioner, the amount collected should be adjusted towards future payments.

Administrative consideration of representation - Obligation of respondents to consider and dispose of the petitioner's representation regarding refund/adjustment. - HELD THAT: - The Court directed that the petitioner's representation be considered and disposed of by the respondents in light of the Notification and the circular within a specified time frame. This is an administrative direction to ensure timely adjudication of the pending question by the competent authority. [Paras 9]

Respondents shall consider and dispose of the petitioner's representation within one month from receipt of a copy of the order.

Final Conclusion: Writ petition disposed without deciding the substantive question of exemption; if adjudication holds market fee exempt, amounts collected shall be adjusted towards future payments, and the respondents are directed to consider and dispose of the petitioner's representation within one month.

Consideration of pre-deposit made after issuance of show cause notice but before adjudication - Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - binding effect of administrative circular issued under section 133 - benefit under section 124(2) - quashing of arbitrary administrative order - remand for fresh examination and consequential remedial steps

Consideration of pre-deposit made after issuance of show cause notice but before adjudication - Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - binding effect of administrative circular issued under section 133 - quashing of arbitrary administrative order - The Designated Committee's denial of the Petitioners' claim that the sum deposited on 10 March 2012 constituted a pre-deposit for the purposes of the Scheme was arbitrary and unsustainable. - HELD THAT: - The Court found that the Petitioners produced challans showing the deposit of the disputed amount and relied upon the Circular dated 12 December 2019, which permits consideration of deposits made after issuance of a show cause notice but before adjudication. The Respondents did not dispute the applicability of the Circular or the interpretation recorded in FAQ No.26, and their only ground for rejection was the timing of the payment; no contemporaneous evidential reason was advanced to rebut the challans or the Petitioners' subsequent submission of those challans to the Principal Commissioner. The Court held that the authorities adopted an unduly technical and obstructive approach inconsistent with the Scheme's remedial object, and that in the absence of any valid reason recorded to disbelieve the payment documents, the rejection was arbitrary. Accordingly the impugned denial of the pre-deposit was set aside so far as it rested on that arbitrariness. [Paras 6, 7, 8]

Impugned order dated 13 February 2020 quashed and set aside to the extent it denied the Petitioners' claim that the amount deposited on 10 March 2012 was a pre-deposit under the Scheme; Petitioners entitled to have that claim duly considered.

Benefit under section 124(2) - remand for fresh examination and consequential remedial steps - The question whether the Petitioners are entitled to the specific relief under section 124(2) in respect of the deposited sum is to be examined afresh by the Respondents. - HELD THAT: - While the Court concluded that there was no valid reason to deny the payment as a pre-deposit, it did not finally adjudicate entitlement under section 124(2). Instead the Court directed the Respondents to examine the material placed on record (including the challans and the Petitioners' letter of 30 December 2019) and decide the section 124(2) aspect. If, upon examination, the Respondents conclude that the Petitioners are entitled to the benefit under section 124(2) to the extent claimed, they are required to take consequential remedial steps. The Court fixed an eight-week period for completion of those steps. [Paras 9]

Matter remitted to the Respondents to examine and decide the section 124(2) entitlement in respect of the amount of Rs.23,07,200/-, and, if allowed, to take consequential remedial steps within eight weeks.

Final Conclusion: Writ petition allowed: the Designated Committee's order rejecting the claim that the deposit of 10 March 2012 constituted a pre-deposit under the Sabka Vishwas Scheme is quashed; the Respondents are directed to reconsider the section 124(2) entitlement in accordance with this judgment and to implement any remedial steps within eight weeks if the Petitioners' claim is upheld.

Pre-show cause notice consultation - show cause notice - Master Circular No.1053/02/2017-CX dated 10 March 2017 - adjudicating authority's duty to facilitate consultation - suspension of operation of notice pending consultation

Pre-show cause notice consultation - adjudicating authority's duty to facilitate consultation - suspension of operation of notice pending consultation - Pre-show cause notice consultation must be facilitated and, if not completed, the operation of the impugned show cause notice will be suspended until the consultation process is over. - HELD THAT: - The court recognised the remedial and beneficial object of the pre-show cause notice consultation provided under the Master Circular and found that consultation has been facilitated in the present case. Rather than examine earlier compliance disputes, the court directed that the petitioner appear before the concerned Adjudicating Authority on the fixed date and directed the Adjudicating Authority to fix a suitable date for the pre-show cause notice consultation. While the consultation process remains pending, the court ordered that the impugned show cause notice shall not be given effect to. These directions implement the obligation of the authority to facilitate consultation and preserve the petitioner's rights pending that process. [Paras 4, 6]

Petitioner to appear for pre-show cause notice consultation on the fixed date; Adjudicating Authority to fix suitable date for consultation; operation of the show cause notice stayed until consultation is complete.

Show cause notice - Master Circular No.1053/02/2017-CX dated 10 March 2017 - Whether the merits of liability asserted in the show cause notice are sustainable was not finally adjudicated and is left to the Adjudicating Authority to decide after consultation. - HELD THAT: - The court explicitly refrained from determining the existence of any liability on the petitioner. It observed that if, following the pre-show cause notice consultation, the Adjudicating Authority is of the view that liability exists and that the show cause notice should be pursued, the petitioner remains free to take such steps as are permissible in law and fact to challenge the show cause notice. Thus, the question of liability and the validity of pursuing the show cause notice was remitted for consideration by the Adjudicating Authority and preserved for any subsequent legal challenge by the petitioner. [Paras 5]

Merits of liability are left to the Adjudicating Authority for consideration after consultation; petitioner may challenge any adverse decision by appropriate proceedings.

Final Conclusion: Writ petition disposed by directing the petitioner to appear for pre-show cause notice consultation and the Adjudicating Authority to fix a suitable consultation date; the impugned show cause notice is stayed until the consultation process is complete, and any question of liability is left to the Adjudicating Authority with liberty to the petitioner to challenge thereafter.

Typographical error - proof of export of services - judicial review of administrative order - remand for fresh consideration - opportunity to produce documents and personal hearing

Typographical error - proof of export of services - Whether the Deputy Commissioner was justified in rejecting the refund application solely because the invoices mentioned the recipient State as 'Lowa' instead of 'Iowa', thereby treating the invoices as unacceptable evidence of export of services. - HELD THAT: - The Court found that the Deputy Commissioner placed predominant emphasis on the incorrect spelling 'Lowa' in the invoices and treated that defect as fatal to acceptance of the invoices as proof of export of services. The petitioner's explanation that the entry was a typographical error, and that the intended reference was to Iowa State, was plausible. The Court observed that the Deputy Commissioner's refusal to accept the explanation, despite acknowledging that no State named 'Lowa' exists in the United States, was not justified. The Court further noted that the Deputy Commissioner should have considered the petitioner's other evidence of export and not rejected the refund application on the basis of the apparent typographical mistake in the invoices alone. [Paras 4, 7, 8]

The Court held that the invoices' reference to 'Lowa' was an obvious typographical error for 'Iowa' and that the petitioner's explanation was plausible; the rejection based solely on that defect could not be sustained.

Remand for fresh consideration - opportunity to produce documents and personal hearing - judicial review of administrative order - What relief should follow where the rejection of the refund application is found impermissible for the stated reason and how the Deputy Commissioner should proceed on remand. - HELD THAT: - The Court quashed the impugned order and restored the refund application to the file of the Deputy Commissioner for de novo consideration. The Deputy Commissioner was directed to examine the refund application afresh, including the invoices after correcting the typographical error, and to consider any additional evidence produced by the petitioner. The petitioner was permitted to supply further documents and to produce originals for verification. The Deputy Commissioner was directed to afford a personal hearing to the petitioner and to endeavour to dispose of the application within twelve weeks from the date the order is uploaded. [Paras 7, 8, 9]

The impugned order was quashed and the matter was remanded to the Deputy Commissioner for fresh consideration with directions to permit production of documents, afford personal hearing, and decide within twelve weeks.

Final Conclusion: The writ petition is allowed: the Deputy Commissioner's order rejecting the refund application is quashed for being based on an unjustified reliance on an apparent typographical error; the refund application is remitted for fresh consideration with directions to permit additional evidence, hold a personal hearing and dispose of the matter within twelve weeks.

Presumption under Section 3(9) of the DVAT Act - rebuttable presumption - failure to furnish information in respect of goods - reasonable time for production of documents - penalty under Section 86(14) of the DVAT Act - default assessment

Presumption under Section 3(9) of the DVAT Act - failure to furnish information in respect of goods - reasonable time for production of documents - rebuttable presumption - Whether the presumption that goods found in custody are owned by the custodian under Section 3(9) is attracted where documents were not produced at the time of inspection but were produced shortly thereafter. - HELD THAT: - Section 3(9) raises a rebuttable presumption if a person who transports or holds goods in custody, on being required by the Commissioner, fails to furnish information in his possession in respect of the goods. The provision does not prescribe a specific time-frame for submission of documents. It is open to a person found in custody of goods to produce relevant information within a reasonable time after being required to do so by the Commissioner. What constitutes a reasonable period depends on the facts of each case. The OHA and the Appellate Tribunal proceeded solely on the ground that documents were not produced at the time of inspection and did not address whether subsequent production of documents rebutted the presumption. The High Court held that, on the facts of this case, the question must be answered in favour of the appellant and against the Revenue, and that the finding of applicability of the presumption under Section 3(9) cannot stand without a consideration of the documents produced by the appellant. [Paras 29, 31, 33, 34, 36]

The finding that the presumption under Section 3(9) was attracted is set aside and the matter is remitted to the Appellate Tribunal to consider afresh whether the documents produced by the appellant rebut the presumption.

Penalty under Section 86(14) of the DVAT Act - default assessment - Whether the penalty under Section 86(14) can be sustained in the given facts where the presumption under Section 3(9) was applied without considering documents subsequently produced. - HELD THAT: - The Appellate Tribunal upheld the penalty under Section 86(14) based on the conclusion that the presumption under Section 3(9) applied. The High Court observed that since the applicability of Section 3(9) was not correctly examined in the light of documents produced after inspection, the consequential imposition of penalty under Section 86(14) cannot be sustained without reconsideration. The Court therefore set aside the part of the impugned order upholding the penalty and restored the appeal for fresh adjudication by the Appellate Tribunal, which is directed to consider the appellant's documents and decide expeditiously. [Paras 20, 21, 34, 36, 37]

The finding upholding penalty under Section 86(14) is set aside and the appeal is remitted to the Appellate Tribunal to decide the levy of penalty after examining the documents produced by the appellant.

Final Conclusion: The High Court set aside the Tribunal's conclusion that the presumption under Section 3(9) of the DVAT Act applied and quashed the related penalty under Section 86(14) insofar as premised on that finding; the appeal is restored to the Appellate Tribunal to consider the documents produced by the appellant and decide afresh, expeditiously.

Power of Commissioner of Food Safety under Section 30(2)(a) of the FSSA - scope of Regulation 2.3.4 - prohibition of tobacco and nicotine as ingredients - occupatio legis / field pre-emption by a special Act - COTPA v. FSSA - implied repeal and savings (Section 97 of FSSA) - definition of "food" under Section 3(1)(j) of the FSSA - mandatory procedural requirements and risk assessment under Section 18 of the FSSA - temporary nature of prohibition orders and principles of natural justice - classification and Article 14 - smokeless v. smoking tobacco

Power of Commissioner of Food Safety under Section 30(2)(a) of the FSSA - scope of Regulation 2.3.4 - prohibition of tobacco and nicotine as ingredients - Validity of the impugned Notifications insofar as they prohibit manufacture, storage, distribution or sale of scheduled tobacco products under Regulation 2.3.4 by exercise of power under Section 30(2)(a). - HELD THAT: - The Court held that Regulation 2.3.4 is directed to food-standards (prohibiting use of tobacco/nicotine as ingredients in food products) and not to regulate trade in tobacco itself. Section 30(2)(a) confers a limited, temporary power on the Commissioner to prohibit an article of food in emergent circumstances for up to one year. The Commissioner exceeded that scope by issuing Notifications that, in effect, prohibit scheduled tobacco products (subjects of COTPA) rather than regulating food standards. Accordingly the Notifications, insofar as they operate to prohibit scheduled tobacco products under the FSSA, are beyond the scope of the Commissioner's powers under Section 30(2)(a). [Paras 186, 191, 193, 196, 238]

Impugned Notifications issued under Regulation 2.3.4 in exercise of Section 30(2)(a) are beyond the scope of powers conferred on the Commissioner and are quashed to that extent.

Occupatio legis / field pre-emption by a special Act - COTPA v. FSSA - definition of "food" under Section 3(1)(j) of the FSSA - Whether the COTPA occupies the field in respect of scheduled tobacco products and, if so, whether FSSA (a general law) can displace COTPA. - HELD THAT: - The Court found that COTPA is a comprehensive, special enactment dealing with tobacco products (regulation of trade, production, supply and distribution) and thus occupies the field relating to scheduled tobacco products. FSSA is a general food-safety statute. Given the subject-matter and legislative history (COTPA enacted earlier, continued operation after FSSA, and absence of express repeal in FSSA's schedules), the COTPA, as the special law governing tobacco, prevails and FSSA cannot be read to override COTPA in that field. [Paras 199, 200, 205, 208, 238]

COTPA occupies the field for scheduled tobacco products; it prevails over the FSSA on matters within its domain.

Implied repeal and savings (Section 97 of FSSA) - Whether the FSSA impliedly repealed the COTPA. - HELD THAT: - The Court applied the presumption against repeal by implication and noted that Section 97 of the FSSA expressly repealed specified enactments but did not repeal COTPA. The continued amendments and rule-making under COTPA after FSSA further rebut any suggestion of implied repeal. The Acts operate in different fields (food v. tobacco industry) and can be harmonised; implied repeal is therefore not established. [Paras 208, 209, 210, 211, 238]

FSSA does not impliedly repeal COTPA; there is no repeal by implication.

Definition of "food" under Section 3(1)(j) of the FSSA - Whether tobacco and tobacco products fall within the definition of "food" under Section 3(1)(j) of the FSSA. - HELD THAT: - After surveying statutory language, regulatory purpose and case-law, the Court concluded that the FSSA's objective of laying science based standards for food cannot sensibly extend to tobacco because no science based standards can render tobacco a 'safe and wholesome' food. Regulation 2.3.4 addresses ingredients in food products rather than declaring tobacco itself to be food. Reading the statute in context and to give effect to legislative intent, the Court held that tobacco is not "food" under the FSSA. [Paras 217, 218, 219, 220, 238]

Tobacco and tobacco products do not fall within the definition of "food" under the FSSA.

Mandatory procedural requirements and risk assessment under Section 18 of the FSSA - temporary nature of prohibition orders and principles of natural justice - Whether the Commissioner complied with mandatory procedures (Section 18) and the temporal/ procedural limits of Section 30(2)(a) before issuing the impugned Notifications. - HELD THAT: - The Court held that Section 18 prescribes mandatory procedures (risk assessment, consultation, risk management) and Section 30(2)(a) confines prohibition to emergent circumstances for up to one year and requires observance of natural justice. The Notifications were repromulgated year after year without compliance with Section 18, without recorded emergent circumstances or adequate opportunity to affected stakeholders, and thus constituted an abuse of the Commissioner's limited, temporary power. [Paras 221, 224, 225, 227, 238]

Notifications were issued without complying with mandatory procedural requirements and exceeded the temporary, emergent scope of Section 30(2)(a); they are invalid.

Classification and Article 14 - smokeless v. smoking tobacco - Whether the Notifications' focus on smokeless tobacco (to the exclusion of smoking tobacco) is a constitutionally permissible classification under Article 14. - HELD THAT: - The Court found that the impugned Notifications created an intra class distinction by targeting smokeless tobacco while leaving other scheduled tobacco products untouched. The classification lacked a rational nexus to the avowed object of protecting public health, had no adequate justification in the record, and operated discriminatorily (encouraging substitution to other tobacco forms). The Respondents failed to discharge the burden of proving a reasonable nexus; therefore the classification violates Article 14. [Paras 82, 228, 231, 232, 238]

The artificial classification between smokeless and smoking tobacco in the Notifications is arbitrary and violative of Article 14.

Final Conclusion: The writ petitions are allowed. The Court quashed the impugned Notifications to the extent they purport to prohibit scheduled tobacco products under Regulation 2.3.4 by exercise of Section 30(2)(a) of the FSSA, held that COTPA occupies the field for scheduled tobacco products and is not impliedly repealed by the FSSA, ruled that tobacco is not "food" under the FSSA, found procedural non compliance with Section 18 and the temporariness requirement of Section 30(2)(a), and held the selective prohibition of smokeless tobacco violative of Article 14. The impugned Notifications are set aside; writ petitions are allowed. No order as to costs.