Just a moment...

⚠✕
❮ Top
☎ Help
☰
×

By creating an account you can:

Logo TaxTMI
Keyword Search :
AI Tools : New
Ask tax questions in natural language. Powered by AI trained on the TaxTMI legal database. Use AI Tools ➞
Call Us / Help / Feedback✕

Contact Us At :

✉ E-mail: [email protected]

✆ Call / WhatsApp at: +91 99117 96707

For more information, Check Contact Us

FAQs :

To know Frequently Asked Questions, Check FAQs

Most Asked Video Tutorials :

For more tutorials, Check Video Tutorials

Submit Feedback/Suggestion :

Email :
Please provide your email address so we can follow up on your feedback.
Category :
Description :
Min 15 characters0/2000
Make Most of Text Search ✕
  1. Checkout this video tutorial: How to search effectively on TaxTMI.
  2. Put words in double quotes for exact word search, eg: "income tax"
  3. Avoid noise words such as : 'and, of, the, a'
  4. Sort by Relevance to get the most relevant document.
  5. Press Enter to add multiple terms/multiple phrases, and then click on Search to Search.
    6. Text Search
  6. The system will try to fetch results that contains ALL your words.
  7. Once you add keywords, you'll see a new 'Search In' filter that makes your results even more precise.
    8. Text Search
╳
Add to...
You have not created any category. Kindly create one to bookmark this item!
✕
Create New Category
Hide
Title :
Description :
❮❮ Hide
❮ Default View
Expand ❯❯
Close ✕
🔎 TMI Notes - Adv. Search ❯
TEXT SEARCH:

Press 'Enter' to add multiple search terms. Rules for Better Search

Search In:
Main Text + AI Text ❯
  • Main Text
  • Main Text + AI Text
  • AI Text
Law:
---- All Laws----❯
  • ---- All Laws----
  • Benami Property
  • Bill
  • Central Excise
  • Companies Law
  • Customs
  • DGFT
  • FEMA
  • GST
  • GST - States
  • IBC
  • Income Tax
  • Indian Laws
  • Money Laundering
  • SEBI
  • SEZ
  • Service Tax
  • VAT / Sales Tax
Types:
---- All Types ---- ❯
  • ---- All Types ----
  • Act Rules
  • Case Laws
  • Circulars
  • Manuals
  • News
  • Notifications
Sort By: ?
In Sort By 'Default', exact matches for text search are shown at the top, followed by the remaining results in their regular order.
RelevanceDefaultDate
    ManualsService Tax
    Whether proceedings can be reopened on the basis of a favourable decision in another case?
    ManualsService Tax
    Whether a wrong decision by jurisdictional court is binding on the parties in absence of any appeal ...
    ManualsService Tax
    Whether an order becomes a final order if no appeal has been filed against it?
    ManualsService Tax
    Whether right to appeal is a inherent right? Whether it is necessary that right of appeal must be ex...
    ManualsService Tax
    What is the meaning of 'Reason to Believe' in context to search & seizure provisions?
    ManualsService Tax
    Whether in case, composite price (inclusive of service tax) is shown in invoice and no separate duty...
    ManualsService Tax
    Whether Doctrine of unjust enrichment is applicable on finalisation of provisional assessments?
    ManualsService Tax
    Whether Doctrine of unjust enrichment is applicable on duty paid under protest?
    ManualsService Tax
    Whether data in "CD" can be a admissible evidence for refund claim under Section 11B? Whether data i...
    ManualsService Tax
    Whether limitation of refund filing is applicable on the cases where amount paid to the department a...
    ManualsService Tax
    Whether deposit of service tax before rendering services will be covered under limitation of refund...
    ManualsService Tax
    Whether Appellate authority has empowered to increase the penalty? Whether Appellate authority can i...
    ManualsService Tax
    Whether the penalty under section 78 of the Finance Act, 1994 can be reduced below the minimum limit...
    ManualsService Tax
    Whether the penalty under Section 76 of the Finance Act, 1994 can be reduced below the limit prescri...
    Act RulesService Tax
    Whether Service tax paid by back calculations i.e. service tax separately not charged will be covere...
    Act RulesService Tax
    Whether assessee is liable to pay collected service tax as per provision of Sec.73A even if his turn...
    ManualsService Tax
    Whether ignorance of law can be a factor for not to revoke extended period of limitation?
    ManualsService Tax
    In what circumstances extended period of limitation is not enforceable? Whether SCN can be issued fo...
    Act RulesService Tax
    Whether show cause notice related to period beyond 18 months or 5 years as the case may be, is valid...
    ManualsService Tax
    Whether it is mandatory to mention specific head / sub head of services in SCN in which demand of se...
❮
❯
❯❯
MaximizeMaximizeMaximize
0 / 200
Expand Note
Add to Folder

No Folders have been created

    +

    Are you sure you want to delete "My most important" ?

    NOTE:

    Open Link
    Notes
    Showing Results for :
    Reset Filters
    Results Found:
    Show All SummariesHide All Summaries
    ManualsService Tax
    Whether proceedings can be reopened on the basis of a favourable decision in another case?
    Show AI Summary
    Finality of proceedings: tax assessments cannot be reopened due to another taxpayer's favourable decision without recall in the same case.
    Reopening tax assessment proceedings based on a favourable decision in another assessee's case is ordinarily not permitted; a final order in an assessee's own case remains effective until it is specifically recalled or set aside in that same proceeding.
    ManualsService Tax
    Whether a wrong decision by jurisdictional court is binding on the parties in absence of any appeal ...
    Show AI Summary
    Finality of unappealed decisions: unchallenged jurisdictional rulings bind the parties until lawfully reversed.
    A jurisdictional court's unappealed ruling, even if incorrect, becomes final and binding between the parties and remains so until reversed by a higher forum or other statutory remedy; thus unchallenged classificatory or determinative decisions must be obeyed in subsequent proceedings unless lawfully set aside.
    ManualsService Tax
    Whether an order becomes a final order if no appeal has been filed against it?
    Show AI Summary
    Finality of administrative orders follows when no appeal is filed, and remand directions limit reconsideration scope.
    An administrative order attains finality where an entitled party does not file an appeal against a Tribunal disposition; remand orders limit reconsideration to the specific issues directed by the Tribunal, and parties who do not contest merits before the Tribunal forfeit the ability to re argue those merits, so that authorities acting on remand cannot expand review beyond the remand directions.
    ManualsService Tax
    Whether right to appeal is a inherent right? Whether it is necessary that right of appeal must be ex...
    Show AI Summary
    Right of appeal is not inherent; it exists only when statute creates and defines it, including scope and procedure.
    The right of appeal is not inherent but is a statutory construct: appellate existence, scope and procedure must be authorized by the creating provision; omissions in citation do not automatically bar an otherwise maintainable appeal; absence of an appellate provision does not prevent an order from becoming final.
    ManualsService Tax
    What is the meaning of 'Reason to Believe' in context to search & seizure provisions?
    Show AI Summary
    Reason to believe requires subjective belief grounded in material evidence, preventing arbitrary or capricious searches.
    The concept of reason to believe requires that a subjective opinion be based on material on the record, not arbitrary or whimsical; it must be held in good faith and courts may test whether the reasons have a rational and relevant connection to the formation of belief, excluding extraneous considerations.
    ManualsService Tax
    Whether in case, composite price (inclusive of service tax) is shown in invoice and no separate duty...
    Show AI Summary
    Inclusive pricing does not establish passing on of tax burden; composite invoices alone do not prove unjust enrichment.
    Showing a composite price on an invoice does not, by itself, establish that the supplier passed the tax burden to customers or realized unjust enrichment; where prices remained unchanged after a tax was imposed, inclusive pricing alone is insufficient evidence that any element of tax was added to the price, and proof of an added tax component is required to infer passing on of the tax.
    ManualsService Tax
    Whether Doctrine of unjust enrichment is applicable on finalisation of provisional assessments?
    Show AI Summary
    Doctrine of unjust enrichment excluded where a refund arises only after finalisation of provisional assessment.
    The doctrine of unjust enrichment does not apply to refund claims that arise after the finalisation of provisional assessments; refunds or recoveries consequent on the final determination of duty liability fall outside the interim statutory refund framework and are not barred by unjust enrichment objections.
    ManualsService Tax
    Whether Doctrine of unjust enrichment is applicable on duty paid under protest?
    Show AI Summary
    Unjust enrichment doctrine not bar to refund of duty paid under protest; provisional assessments preserve refund entitlement.
    The doctrine of unjust enrichment does not bar refund claims for duty paid under protest; recoveries or refunds consequent on final determination of duty liability fall outside bars that would deny restitution. Provisional assessments and unresolved price and classification lists render clearances provisional, supporting the taxpayer's entitlement to have refund claims adjudicated on the basis of final liability rather than dismissed as struck by unjust enrichment.
    ManualsService Tax
    Whether data in "CD" can be a admissible evidence for refund claim under Section 11B? Whether data i...
    Show AI Summary
    Admissibility of electronic records: computerised data on CD can support service tax refund claims and show no transfer of tax burden.
    Data on compact disc (CD) can be admissible evidence for service tax refund claims where it constitutes computerised records recognised under the Information Technology Act and the Service Tax Rules. Such electronic records may also be used to prove that the incidence of service tax was not transferred to another party (absence of unjust enrichment), provided the data meets the statutory criteria for admissible computerised evidence and forms part of the assessee's maintained electronic records.
    ManualsService Tax
    Whether limitation of refund filing is applicable on the cases where amount paid to the department a...
    Show AI Summary
    Limitation on refund filings: time-bar inapplicable where payments were not service tax and were excess realisations.
    Limitation under Section 11B(1) applies only to refund claims of a duty of excise and interest; payments not constituting service tax or lawful excise levy are outside that bar and may be refunded. Judicial authorities (M/s Natraj and Venkat Associates; ITC Ltd.) recognise that excess realisations beyond what the statute permits are realisations outside the Act and thus not subject to the statutory limitation on excise refunds.
    ManualsService Tax
    Whether deposit of service tax before rendering services will be covered under limitation of refund...
    Show AI Summary
    Limitation on service tax refunds: late claims are barred unless tax was paid under protest.
    Refunds of amounts paid as service tax are governed by the statutory limitation provisions; where payments were credited to the service tax account and the claimant acknowledged applicability of the limitation rule, a refund claim filed after the limitation period is barred unless the tax was paid under protest.
    ManualsService Tax
    Whether Appellate authority has empowered to increase the penalty? Whether Appellate authority can i...
    Show AI Summary
    Appellate authority power to increase penalties is limited; payment of tax and interest can justify mitigation of penalty.
    Appellate authority does not have power to increase or impose a fresh penalty; payment of tax and interest that neutralises pecuniary advantage is relevant for mitigation, and taxpayer status and proportionality are material in assessing whether a revised penalty is unduly harsh under the statutory penalty framework.
    ManualsService Tax
    Whether the penalty under section 78 of the Finance Act, 1994 can be reduced below the minimum limit...
    Show AI Summary
    Penalty minimums prohibited from reduction: statutory scheme prevents lowering prescribed service tax penalty through discretionary provisions.
    Penalty under section 78 of the Finance Act, 1994 cannot be reduced below the statutory minimum by invoking section 80; a conjoint reading of the provisions shows no discretion to levy or reduce a penalty below the prescribed floor, and appellate bodies and tribunals cannot read such power into the statutory scheme.
    ManualsService Tax
    Whether the penalty under Section 76 of the Finance Act, 1994 can be reduced below the limit prescri...
    Show AI Summary
    Penalty under Section 76 cannot be reduced below the statutory minimum; authority's discretion is confined to the prescribed range.
    Section 76 penalty under the Finance Act, 1994 confines the authority to a legislatively prescribed minimum-to-maximum range; authorities lack power to reduce the penalty below the statutory minimum per day of default, and courts have rejected construing any additional discretion into the provision as that would amount to rewriting the statute.
    Act RulesService Tax
    Whether Service tax paid by back calculations i.e. service tax separately not charged will be covere...
    Show AI Summary
    Service tax deposit obligations do not arise where tax was not invoiced or collected, limiting unjust enrichment claims.
    Where no invoice was raised and no amount was specifically collected as service tax from recipients, the statutory duty to deposit such tax does not arise because there is no collected tax to be held on behalf of the Government, and absence of pass through means the legal condition for invoking unjust enrichment is not satisfied.
    Act RulesService Tax
    Whether assessee is liable to pay collected service tax as per provision of Sec.73A even if his turn...
    Show AI Summary
    Deposit of collected service tax must be remitted even if small provider exempt; penalties apply for non-deposit.
    Section 73A requires that service tax collected from customers be deposited with the Central Government even if the collector avails the small service provider exemption; tribunals have held that collection triggers an obligatory deposit and failure to deposit and to file returns attracts penal action and enforcement for non-compliance.
    ManualsService Tax
    Whether ignorance of law can be a factor for not to revoke extended period of limitation?
    Show AI Summary
    Ignorance of law or illiteracy can undermine findings of willful suppression, affecting the validity of tax demand and penalties.
    Administrative demands and penalties based on alleged willful suppression of taxable services require supporting record evidence and must correspond to allegations in the show cause notice; where the record does not substantiate suppression and the allegation was not made in the notice, the resultant service tax demand and penalties are not sustainable.
    ManualsService Tax
    In what circumstances extended period of limitation is not enforceable? Whether SCN can be issued fo...
    Show AI Summary
    Extended limitation period: not available where assessee had bona fide belief or doubt about service tax liability.
    Extended limitation cannot be invoked where the assessee had a bona fide belief that no service tax was payable, where bona fide doubt existed about chargeability, where the assessee voluntarily approached the department earlier, where the issue is one of legal interpretation creating genuine confusion, or where earlier favorable decisions were subsequently overruled without evidence of suppression.
    Act RulesService Tax
    Whether show cause notice related to period beyond 18 months or 5 years as the case may be, is valid...
    Show AI Summary
    Limitation for recovery of service tax prevents collection for time barred periods but notice remains partly effective.
    A show cause notice that includes periods beyond the statutory limitation does not become wholly invalid; the Department cannot recover tax for time barred periods, and the assessee may raise the limitation defence during proceedings. The same rule applies to notices extending beyond a shorter statutory limitation-the excess period yields no departmental entitlement to recovery but does not vitiate valid allegations within the limitation.
    ManualsService Tax
    Whether it is mandatory to mention specific head / sub head of services in SCN in which demand of se...
    Show AI Summary
    Specific service allegation: tax liability cannot be confirmed unless the show-cause notice specifies the service head.
    A show-cause notice must specifically identify the service head or sub-head relied upon; absent a precise allegation as to the applicable classification, tax liability cannot be confirmed, and alternative classifications suggested by the Commissioner without being pleaded in the notice render any demand unsustainable.

    TMI Notes

    Back

    All TMI Notes

    Showing Results for :
    Reset Filters
      No Records Found

      TMI Notes

      Home› TMI Notes › Bills › Act-Rules › Category › This
      Back

      All TMI Notes

      whatsappJoin Channel
      Showing Results for : Reset Filters
      Bills

      Changing Face of Criminal Procedure in Income Tax Offence Prosecution : Clause 498 of Income Tax Bill, 2025 Vs. Section 280D of Income-tax Act, 1961

      15 July, 2025

      Contents
      Acts
      Rules & Regulations
      Summary
      Note

      Note

      -

      Bookmark

      Print

      Print

      Print Options

      Clause 498 Application of Bharatiya Nagarik Suraksha Sanhita, 2023 to proceedings before Special Court.

      Income Tax Bill, 2025

      Introduction

      Clause 498 of the Income Tax Bill, 2025 and Section 280D of the Income-tax Act, 1961 are statutory provisions that govern the procedural framework for the prosecution of offences under the respective Acts before Special Courts. Both provisions address the application of general criminal procedural laws to proceedings under the Income Tax regime, the appointment and qualification of prosecutors, and the status of such prosecutors before Special Courts. While Section 280D, introduced by the Finance Act, 2012, invoked the Code of Criminal Procedure, 1973 (CrPC), Clause 498 of the Income Tax Bill, 2025 proposes to substitute the CrPC with the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), reflecting a significant legislative shift. This commentary provides a comprehensive analysis of Clause 498, its objectives, structure, practical implications, and a clause-by-clause comparison with Section 280D, highlighting the legal and policy implications of this transition.

      Objective and Purpose

      The primary objective of both Clause 498 and Section 280D is to establish a clear procedural framework for the prosecution of income tax offences before Special Courts. These provisions ensure that proceedings are conducted in accordance with established criminal procedure, that prosecutors are appointed with requisite qualifications, and that the administration of justice is streamlined and consistent with broader criminal law principles.

      The legislative intent behind these provisions can be summarized as follows:

      • To provide procedural uniformity and legal certainty in the prosecution of tax offences.
      • To ensure that the prosecution is conducted by qualified legal professionals with adequate experience and knowledge of law.
      • To enable the Central Government to appoint Special Public Prosecutors for complex or significant cases requiring specialized attention.
      • To align the prosecution mechanism under the Income Tax law with the prevailing general criminal procedure statute (CrPC or BNSS).

      The shift from the CrPC to the BNSS in Clause 498 is part of a broader legislative and policy initiative to modernize and indigenize India's criminal procedure framework. The BNSS, enacted in 2023, is intended to replace the colonial-era CrPC with a more contemporary, citizen-centric code. Consequently, Clause 498's reference to the BNSS signifies the legislature's intent to ensure that tax prosecutions are conducted under the most current procedural law, thereby harmonizing tax enforcement with the evolving criminal justice system.

      Detailed Analysis of Clause 498 of the Income Tax Bill, 2025

      Application of BNSS to Special Court Proceedings

      Clause 498(1) provides that, unless otherwise specified in the Income Tax Bill, the provisions of the BNSS, including those relating to bail and bonds, shall apply to proceedings before a Special Court. Furthermore, the person conducting the prosecution before the Special Court is deemed to be a Public Prosecutor.

      This sub-clause establishes two important legal norms:

      • Application of BNSS: All procedural aspects, such as investigation, trial, evidence, bail, and other matters, are to be governed by the BNSS, unless the Income Tax Bill provides otherwise. This ensures procedural consistency and leverages the comprehensive framework of the BNSS for tax prosecutions.
      • Status of Prosecutor: The prosecutor in such proceedings is statutorily deemed to be a Public Prosecutor, thereby conferring upon them all the rights, duties, and protections available to Public Prosecutors under the BNSS.

      Appointment of Special Public Prosecutors

      Clause 498(2) empowers the Central Government to appoint a Special Public Prosecutor for any specific case or group of cases. This discretionary power is significant in cases involving complex, high-profile, or sensitive tax offences, where specialized legal expertise may be required.

      The provision allows the government flexibility in resource allocation and ensures that particularly challenging cases can be handled by prosecutors with specialized skills, thereby enhancing the effectiveness of enforcement.

      Qualification Criteria for Prosecutors

      Clause 498(3) prescribes that no person shall be qualified to be appointed as a Public Prosecutor or a Special Public Prosecutor under this section unless they have been in practice as an advocate for at least seven years and possess special knowledge of law.

      This clause ensures the appointment of experienced and competent legal professionals, which is critical for the prosecution of complex tax offences. The requirement of "special knowledge of law" further underscores the necessity for expertise, not merely experience, thereby raising the standard of prosecution.

      Deeming Provision and Reference to BNSS

      Clause 498(4) provides that every person appointed as a Public Prosecutor or Special Public Prosecutor under this section shall be deemed to be a Public Prosecutor within the meaning of section 2(v) of the BNSS, and the provisions of the BNSS shall apply accordingly.

      This deeming provision ensures that all legal consequences, powers, and duties associated with Public Prosecutors under the BNSS are automatically extended to persons appointed under Clause 498. It also eliminates any potential ambiguity regarding the legal status or authority of such prosecutors.

        Comparative Analysis with Section 280D of the Income-tax Act, 1961

        1. Statutory Reference: BNSS vs. CrPC

        The most significant distinction between Clause 498 and Section 280D is the replacement of the Code of Criminal Procedure, 1973 (CrPC) with the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). The BNSS, as a successor to the CrPC, is intended to modernize and adapt criminal procedure to contemporary Indian realities, emphasizing citizen-centric justice, digital processes, and streamlined investigation and trial mechanisms.

        While both provisions ensure that the general criminal procedural law applies to tax prosecutions, the adoption of the BNSS in Clause 498 marks a legislative update reflecting the government's intention to keep the procedural framework current and consistent with the overarching criminal law regime.

        2. Structure and Content: Substantive Parity

        A clause-by-clause comparison reveals that the structure and substantive content of Clause 498 and Section 280D are largely identical, with the primary difference being the statutory reference (BNSS vs. CrPC) and the corresponding definitions sections (section 2(v) of BNSS vs. section 2(u) of CrPC).

        ProvisionClause 498 of the Income Tax Bill, 2025Section 280D of the Income-tax Act, 1961
        Application of Procedural LawBNSS, 2023CrPC, 1973
        Scope (Bail, Bonds, etc.)Explicitly includedExplicitly included
        Deeming Prosecutor as Public ProsecutorYesYes
        Appointment of Special Public ProsecutorPermitted for any case/class/groupPermitted for any case/class/group
        Qualification Criteria7 years advocacy + special knowledge of law7 years advocacy + special knowledge of law
        Deeming Provision (Definition)Section 2(v) of BNSS 2023Section 2(u) of CrPC

        3. Ambiguities and Interpretational Issues

        Both provisions are drafted with clarity, but some potential interpretational issues may arise:

        • "Special knowledge of law": The phrase is not defined and may give rise to disputes regarding the precise qualifications required. Judicial interpretation or executive clarification may be necessary.
        • Transition Issues: The transition from CrPC to BNSS may create procedural uncertainties for cases initiated under the old regime but pending at the time of enactment. Transitional provisions or judicial clarification may be required to address such scenarios.
        • Overlap with Other Laws: In cases involving offences under multiple statutes, the interplay between BNSS and other special laws may require careful harmonization to avoid conflicts.

        4. Unique Features and Policy Implications

        The adoption of the BNSS in Clause 498 is a unique feature, reflecting the government's commitment to updating the legal framework in line with new legislative developments. The BNSS introduces several innovations, such as digital procedures, witness protection, and enhanced victim rights, which may indirectly impact tax prosecutions.

        Additionally, the explicit provision for the appointment of Special Public Prosecutors in both provisions ensures that complex or high-value cases can be prosecuted with the requisite expertise, thereby strengthening enforcement.

        Practical Implications

        For Stakeholders

        • Accused Persons: Accused individuals in tax prosecution cases will be subject to the procedures, rights, and remedies available under the BNSS, including those relating to bail, trial procedure, and appeals.
        • Prosecutors: Prosecutors must meet higher qualification standards and are endowed with the powers and responsibilities of Public Prosecutors under the BNSS, ensuring professional conduct and accountability.
        • Regulators and Enforcement Agencies: Tax authorities and enforcement agencies must align their procedures and case preparation with the requirements of the BNSS, necessitating training and process adjustments.
        • Legal Community: Advocates seeking appointment as prosecutors must possess at least seven years' experience and special legal knowledge, potentially raising the bar for appointments.

        Compliance and Procedural Impact

        • All procedural steps in prosecution, from investigation to trial and sentencing, will be governed by the BNSS, requiring adaptation by all stakeholders.
        • Appointment processes for prosecutors must ensure compliance with the enhanced qualification criteria.
        • Special Public Prosecutors can be appointed for complex or sensitive cases, providing flexibility and specialization in prosecution.

        Conclusion

        Clause 498 of the Income Tax Bill, 2025 is a forward-looking statutory provision that seeks to align the prosecution of tax offences with the latest criminal procedure code, the BNSS, 2023. Its structure and content are substantially similar to Section 280D of the Income-tax Act, 1961, with the key difference being the replacement of the CrPC with the BNSS. This change is emblematic of a broader legislative trend towards modernization and indigenization of India's criminal justice system.

        The provision maintains high standards for the appointment of prosecutors, ensures procedural uniformity, and provides flexibility for the appointment of Special Public Prosecutors. While the transition to the BNSS may necessitate adjustments in practice and procedure, it is expected to enhance the efficiency, fairness, and effectiveness of tax prosecutions. Areas that may require further clarification include the definition of "special knowledge of law" and the handling of transitional cases.

        Overall, Clause 498 represents a significant but evolutionary change in the procedural landscape of tax prosecutions, reflecting the legislature's intent to keep the law current, effective, and in harmony with broader legal reforms.

        Full Text:

        Clause 498 Application of Bharatiya Nagarik Suraksha Sanhita, 2023 to proceedings before Special Court.

        Topics

        ActsIncome Tax
        Next ➔