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Case Laws GST
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Non-business construction concessions for spinning mills require eligible recipient status and predominantly non-industrial use of the constructed buildings.
For the disputed period, the works-contract concession required both an eligible governmental recipient and structures predominantly meant for use other than commerce, industry, business or profession. Government Entity status required evidence of the recipient's constitution and qualifying governmental participation, while procurement had to relate to entrusted work. Project funding, tender approval and supervision did not by themselves establish governmental constitution or control. The spinning-mill factory buildings and allied works were intended for yarn production and related commercial activities. The residual construction-services entry carried aggregate GST of 18% for services outside the specified concessional entries.
Case Laws Customs
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Import document handling alone does not establish customs abetment or knowing use of materially false declarations.
Personal customs penalties depend on the person's own conduct, not merely on the confiscability of imported goods. Under Section 112(a) of the Customs Act, 1962, liability may arise from a person's own act or omission rendering goods liable to confiscation or from abetment of such conduct. The direct limb can operate on a strict-liability basis where a person's own act or omission renders goods confiscable; an allegation of abetment instead requires evidence of participation or culpable facilitation. Section 114AA requires knowing or intentional making, signing or use, or causing the making, signing or use, of a declaration, statement or document that is materially false or incorrect in customs business.
Case Laws GST
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Subcontracted services performed on own account are not intermediary services merely because they support overseas recruitment and customer-facing activities.
Intermediary classification under Section 2(13) of the IGST Act distinguishes arranging or facilitating supplies between other persons from supplying services on one's own account. The intermediary framework requires at least three parties, a main supply and a distinct ancillary facilitating supply, with conduct resembling that of a broker or agent. Subcontracting the whole or part of a service is not intermediary activity merely because performance supports another supplier's business or involves its customers. Neither a bilateral agreement, contractual label nor remuneration method is conclusive.
Case Laws Customs
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Split air conditioner classification requires capacity and refrigeration features to be assessed against the applicable tariff hierarchy.
Classification of ductless split air conditioners depends on the complete tariff description and the machine's technical characteristics. A complete, cooling-only, two-ton split air conditioner incorporating a refrigerating unit and lacking a heat-reversal valve falls within tariff item 8415 82 10 rather than the general split-system item 8415 10 10. Item 8415 82 10 inherits its parent subheading's refrigerating-unit requirement, while item 8415 83 10 requires the absence of such a unit. Capacity alone does not establish the applicable refrigeration-based entry. Technical evidence should establish whether the goods are a complete machine and identify their capacity and operating features.
Case Laws Income Tax
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Convertible debenture interest requires evidence-based pricing before conversion; future equity conversion alone cannot establish a nil arm's length price.
Pre-conversion interest on compulsorily convertible debentures (CCDs) issued to a non-resident associated enterprise requires arm's length pricing. Compulsory future conversion and hybrid classification do not, by themselves, establish a nil price or extinguish an existing coupon obligation. Rule 10AB's Other Method requires a price charged, paid or expected in comparable uncontrolled circumstances, with reasonably accurate adjustments for material differences under Rule 10B. Currency, benchmark date, tenure, credit risk, security, non-redemption and conversion benefits affect comparability; a conventional bank lending rate is not automatically comparable to a long-tenor CCD.
Case Laws Customs
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Split motorcycle consignments require evidence of deliberate fragmentation for composite classification, with valuation assessed independently of classification.
Clubbing of split consignments for customs classification depends on proof that apparently separate imports form one deliberately fragmented transaction, not merely on the possibility of assembly. Rule 2(a) extends a tariff heading to an incomplete article possessing the essential character of the complete article and also covers a complete article presented disassembled. A change of tariff heading alone does not establish that the transaction value is inaccurate; substantive misdescription of the goods requires separate evidentiary consideration. Replacement value must follow the prescribed sequence of methods.
Case Laws GST
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Corporate guarantee taxation depends on distinguishing taxable supply from valuation, particularly for unpaid support between related businesses.
GST on corporate guarantees requires separate consideration of whether a taxable supply exists and how that supply is valued. Section 7(1)(c) and Schedule I encompass qualifying supplies between related or distinct persons without consideration when made in the course or furtherance of business. Rule 28(2) deems the value of a guarantee furnished to a banking company or financial institution for a related recipient in India to be one per cent of the guaranteed amount per annum or actual consideration, whichever is higher. Where the recipient is eligible for full input tax credit, the proviso treats the value declared in the invoice as the value of the supply.
Case Laws Income Tax
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Employee secondment taxation depends on employment rights, service consideration and demonstrable transfer of technical capability to host entities.
Local operational control and a stated suspension of foreign employment do not, by themselves, resolve whether underlying foreign employment rights survive. Under Article 12(4)(b) of the India-USA DTAA, technical or consultancy services must make technical knowledge, experience, skill, know-how or processes available, or involve development and transfer of a technical plan or design. Under the knowledge-transfer limb, the recipient must acquire a capability it can use independently; the mere application of expertise or presence of qualified personnel is insufficient. Recovery at actual cost and absence of markup do not, by themselves, establish that a foreign enterprise's receipt is non-taxable.
Case Laws GST
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GST appellate pre-deposits may be satisfied by verified earlier payments after demand reduction, but filing fees remain independently payable.
When the first appellate authority substantially reduces the disputed tax demand, an earlier deposit may be sufficient to satisfy the Tribunal-stage requirement, subject to verification. Sufficiency depends on the reduced liability, the applicable appellate requirements and the amount actually deposited; a first appellate payment does not automatically eliminate the additional obligation. Tribunal filing fees under Section 112(7) operate independently of pre-deposit. Where a fee shortfall and earlier deposit require verification, proof of fee payment and verification of the deposit precede consideration of admission.
Case Laws Income Tax
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Inter-co-operative society interest exemption preserves non-deduction by co-operative banks when depositors are co-operative societies under the statutory withholding framework.
Section 194A(3)(v) separately addresses interest paid by a co-operative bank to a member and interest paid by a co-operative society to another co-operative society. The exclusion of co-operative banks is confined to the member-payment limb; a co-operative bank remains a co-operative society for the inter-co-operative society limb. Paragraph 42.7 of Circular No. 19/2015 preserves non-deduction, including time-deposit interest, where the depositor is a co-operative society. Section 80P does not determine this withholding obligation.
Case Laws GST
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Input tax credit reversal requires evidence linking supplier non-payment to recipient ineligibility and a reasoned statutory inquiry.
Input tax credit under Section 16(2)(c) remains conditional on actual payment of tax to Government, but supplier non-payment or retrospective cancellation cannot by itself justify reversal. The recipient must establish eligibility through transactional evidence, while the proper officer must investigate the particular supply, disclose supplier-default and recovery material, apply the law applicable to the relevant period, and issue a reasoned, notice-bound determination. Supplier recovery status and protection against duplicate collection are material considerations.
Case Laws Customs
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Baggage-related customs appeals proceed through statutory revision when the jurisdictional exclusion applies to passenger imports.
The first proviso to section 129A(1) excludes Appellate Tribunal jurisdiction over an order under section 128A relating to goods imported or exported as baggage. The decisive issue is the order's connection with baggage, not disputes concerning confiscation, declaration, duty, personal effects, concealment, concession, or penalty. Articles carried by an international passenger in luggage or on the person may constitute baggage. Section 129DD provides revision before the Central Government, ordinarily within three months, subject to a further period on sufficient cause.
Case Laws GST
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Departmental GST appeal monetary limits regulate officers, while composite orders and proven recurring issues may permit appeals.
Sections 120 and 168 of the Central Goods and Services Tax Act, 2017 make monetary-limit directions binding within the Central tax hierarchy, while they regulate the executive decision to file rather than create an inflexible jurisdictional bar before the Tribunal. In a composite order disposing of multiple appeals or demand notices, the relevant amount is the total disputed tax, interest, penalty or late fee, as applicable. The recurring or interpretative-issue exclusion requires a reasoned, case-specific basis, and Commissioner authorisation does not itself establish compliance with the litigation policy.
Case Laws GST
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E-way bill re-use allegations require corroborated proof identifying the same goods; vehicle movement alone cannot establish contravention.
Alleged re-use of invoices and e-way bills requires the seizing authority to establish through positive, corroborated evidence that the intercepted goods are the same consignment previously transported under those documents. Toll data, vehicle movements and photographs may justify inquiry but do not alone prove prior delivery, identity of goods or re-use. Where invoices and e-way bills accompany the goods and physical verification shows no discrepancy, the authority must investigate and address any explanation of a different earlier consignment. Cases involving absent or expired transport documents remain factually distinct.
Case Laws GST
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Zero-rated supply turnover includes export invoices from the refund period when actual export is subsequently established under bond or LUT.
Under Rule 89(4), invoice values for goods invoiced before or at removal for export under bond or Letter of Undertaking may be included in zero-rated turnover for the relevant refund period, although physical export occurs later. The invoice and removal determine period-wise attribution for the refund formula, while actual export remains essential to sustain the claim. Shipping bills, bills of export and related export records must correlate with the export invoices to establish that the goods were ultimately exported. Compliance with valuation, input tax credit eligibility and bond or Letter of Undertaking conditions remains necessary.
Case Laws Income Tax
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Reassessment objections require speaking disposal and a four-week pause before scrutiny or information requests can begin.
Under the pre-amendment Section 148 framework, reassessment jurisdiction must be resolved before merits-stage scrutiny begins. The Assessing Officer must furnish recorded reasons when requested, permit objections, and decide them through a separate speaking order. A Section 143(2) notice commences scrutiny, while a Section 142(1) notice is a substantive inquiry step; neither may issue before objections are decided. Following rejection, a four-week period from service of the speaking order must be allowed before further reassessment action, preserving an effective opportunity to challenge reopening.
Case Laws GST
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Suppression of facts requires proof of deliberate tax evasion; ineligible input tax credit alone cannot support enhanced proceedings.
Section 74 permits enhanced tax determination for wrongly availed or utilised input tax credit only where fraud, wilful misstatement, or suppression of facts to evade tax is established. Wrong or ineligible credit is distinct from substantive credit eligibility and cannot, without evidence of deliberate conduct and intent, amount to suppression. Under historical Explanation 2, suppression required either omitted information legally required in prescribed filings or failure to provide information sought in writing; both operate subject to the statutory evasion requirement. Disclosed reconciliations and portal records materially weaken a bare allegation of non-declaration.
Case Laws Customs
Show AI Summary
Organic surface-active agent classification requires water solubility and stability; phase-separating low-ethoxylated products fall outside Heading 3402.
Classification of low-ethoxylated non-ionic fatty alcohol ethoxylates under Heading 3402 requires satisfaction of the cumulative water test in Chapter Note 3. At the prescribed concentration, temperature, and standing period, the product must both remain a transparent or translucent liquid, or stable emulsion, without phase separation and reduce water surface tension to the stated threshold. Non-ionic character or surface activity alone is insufficient. Where a low-ethoxylated product separates into layers and fails the solubility and stability requirement, Heading 3824 may be considered after exclusion from Heading 3402.
Case Laws Customs
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Lawful customs seizure requires recorded confiscation grounds, formal restraint where needed, and timely notice; detention cannot bypass safeguards.
Customs seizure of an imported car requires recorded reason to believe that it is liable to confiscation. A panchnama restraint cannot replace a lawful seizure order, an undertaking where seized goods remain in custody, or a served non-dealing order where seizure is impracticable. Section 110(2) requires prompt notice under Section 124, subject only to the prescribed extension mechanism. Prolonged effective detention cannot postpone those safeguards. Provisional release under Section 110A applies only to goods lawfully seized and cannot validate an earlier detention without statutory authority.
Case Laws Companies Law
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Corporate veil-piercing permits forensic scrutiny in execution where promoter-controlled entities may dissipate shareholding despite judicial assurances.
Corporate veil-piercing in execution is an exceptional response where promoters allegedly use layered entities and securities transactions to deplete shareholding represented as security through judicial assurances. Separate personality remains the rule, and control or ownership alone does not suffice; there must be a nexus between control, misuse of the corporate form, and frustration of enforcement. A forensic audit reconstructs share movements, pledges, sales, financing, approvals, disclosures, and fund flows, distinguishing legitimate enforcement of pre-existing security from coordinated asset dissipation.

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Comparison of section 398 "Consequences of failure to deduct or pay or, collect or pay." between the Income-Tax Act, 2025 (as passed) and the Income-Tax Bill, 2025 (as originally introduced)

15 September, 2025

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Section 398 Consequences of failure to deduct or pay or, collect or pay.

Income-tax Act, 2025

At a Glance

Document 1 reproduces Section 398 of the Income-tax Act, 2025 (enacted text). Document 2 reproduces Clause 398 of the Income Tax Bill, 2025 - Old Version (bill text). Both texts address consequences where a person required to deduct or collect tax fails to do so or fails to pay tax so deducted/collected. The provisions affect persons required to deduct/collect tax (including principal officers of companies), employers (per section 392(2)(a)), payees/buyers/licensees/lessees and the Revenue. Effective date or enactment date: Not stated in the document.

Background & Scope

Statutory hooks: the clause/provision is located at Clause/Section 398 within the Deduction and Collection at Source chapter of the Income Tax Bill/Act, 2025. It interacts expressly with sections 392, 393/394, 286 and 412, and with procedural provision for statements u/s 397(3)(b)/(f) in the texts. The text sets out (i) deeming a person an assessee in default where tax is not deducted/collected or paid, (ii) limited exceptions where a person will not be deemed an assessee in default, (iii) interest liabilities with rates and periods, (iv) charge over assets, (v) time-limits for making the deeming order, and (vi) penalty condition. Definitions: the texts do not provide definitions for "principal officer", "payee", "buyer", etc., within the clause; such meanings are presumed from other provisions. Not stated in the document: legislative history, explanatory memorandum, or effective date.

Statutory Provision Mode

Text & Scope

The clause prescribes consequences where a person required to deduct or collect tax under the Act (including the principal officer of a company, and where specified the employer u/s 392(2)(a)) fails to deduct/collect or, having deducted/collected, fails to pay the tax. The primary consequences are:

  • Deeming as an assessee in default in respect of the tax (sub-s. (1)).
  • A limited exception to the deeming rule where the payee/buyer/licensee/lessee has filed a return, included the relevant amount in income and paid tax thereon, and the person furnishes an accountant's certificate in prescribed form (sub-s. (2)).
  • Liability to pay simple interest at specified rates for delays in deduction/collection and for delay in payment after deduction/collection (sub-s. (3)(a)).
  • Interest payment prerequisites before furnishing the statement u/s 397(3)(b) (sub-s. (3)(b)).
  • Where not deemed an assessee in default under sub-s. (2), interest for the first part (1% per month) is payable only until the date of furnishing of return by the payee/buyer/licensee/lessee (sub-s. (3)(c)).
  • When AO makes an order for default, interest as per that order is payable (sub-s. (3)(d)).
  • Where tax has been deducted or collected but not paid, tax plus simple interest becomes a charge on all assets of the person (sub-s. (4)).
  • Limitation: no order deeming a person an assessee in default shall be made after six years from end of the tax year in which tax was deductible/collectible, or after two years from end of tax year in which correction statement is delivered under the referenced section, whichever is later (sub-s. (5)).
  • Sections 286(1) and 286(3) apply to the time-limit in sub-s. (5) (sub-s. (6)).
  • No penalty u/s 412 shall be levied/charged on the person unless AO is satisfied there were no good and sufficient reasons for failure to deduct/collect and pay (sub-s. (7)).

Interpretation

The clause adopts a compliance-first approach: primary liability is placed squarely on the person required to deduct/collect/pay; however, it provides a narrow safe harbour where the recipient has declared and paid tax and an accountant certifies compliance. Interest is strict and two-tiered: a lower rate for delay in deduction/collection, and a higher rate for delay after deduction/collection. The charge on assets reflects a statutory prioritisation of withheld/collected tax as a trust-like obligation. The limitation and requirement of AO satisfaction for penalty indicate a balancing of Revenue powers and taxpayer protections. Not stated in the document: legislative intent beyond the text and any guidance on what constitutes "good and sufficient reasons."

Exceptions/Provisos

Primary exception: sub-s. (2) exempts the person from being deemed an assessee in default if the payee/buyer/licensee/lessee has (i) furnished return under s.263, (ii) taken the amount into account in computing income in that return, and (iii) paid tax due thereon, and the person furnishes an accountant's certificate in prescribed form. The text requires the accountant's certificate but does not specify whether the accountant must be a chartered accountant or other class: Not stated in the document.

Illustrations

  • Example 1: A company fails to deduct TDS on contractor payments. If the contractor files income tax return under s.263, includes the payment in taxable income and pays tax, and the company produces the prescribed accountant certificate, the company will not be deemed an assessee in default under sub-s. (2). (All elements referenced in the clause.)
  • Example 2: A seller charged TCS but failed to collect and remit the tax. Interest at 1% per month applies from when tax was collectible to date of collection; 1.5% per month applies from collection to payment. If seller never collected and buyer did not file return/pay tax, the seller remains an assessee in default and AO can make an order within the limitation periods stated. (All elements referenced in the clause.)

Interplay

The clause expressly interacts with sections 392 (employer), 394 (table of collectors), 397 (statements), 286 (time-bar provisions), 412 (penalty), and the cross-reference to correction statement provisions (either s.397(3)(f) or s.393(3)(f) depending on text). The clause makes the accountant's prescribed form and statement filing under s.397(3)(b)/(f) material to application of interest and limitation. Not stated in the document: any rules or circulars clarifying "good and sufficient reasons" or the form's content.

Key Differences Between Document 1 (Enacted Section 398) and Document 2 (Bill - Old Version)

  • Structure and wording of sub-section (1): Document 1 and Document 2 are substantively similar in deeming a person an assessee in default for failure to deduct/collect/pay. Difference: Document 2 enumerates the three failures ((i) does not deduct or pay; (ii) does not collect or pay; (iii) after deducting or collecting fails to pay) explicitly as separate sub-clauses; Document 1 uses a compressed phrasing.
    • Practical impact: no substantive change in legal effect; primarily drafting style..
  • Cross-reference to correction statement time-limit: Document 1 refers to "correction statement ... u/s 397(3)(f)"; Document 2 refers to "correction statement ... u/s 393(3)(f)" (different section number).
    • Practical impact: this is a substantive drafting discrepancy - the correct cross-reference determines which procedural provision governs the correction statement and the calculation of the limitation period. If the enacted text uses s.397 while the bill used s.393, the practical consequence is that the limitation trigger aligns with whichever section actually prescribes correction statements; mismatches can create interpretive confusion and potential challenges over time-bar computation.
  • Penalty language in sub-section (7): Document 1 states "No penalty shall be levied u/s 412 on the person ... unless the Assessing Officer is satisfied that such person, without good and sufficient reasons, has failed to deduct or collect and pay such tax." Document 2 states "No penalty shall be charged u/s 412 from the person ... unless the Assessing Officer is satisfied that such person, without good and sufficient reasons, has failed to deduct and pay such tax."
    • Practical impact: Document 2 omits explicit reference to "collect" in the final clause and uses "charged" instead of "levied" and reverses phrasing ("from the person"). The omission of "collect" may narrow the penalty condition in the bill's drafting (potentially excluding failure to collect), whereas the enacted text (Document 1) expressly includes failure to collect. Thus, if the enacted text includes "collect," it expands the protective threshold for the person only where there is good reason for non-deduction/collection; if the bill lacked "collect," penalty protection might not apply to collectors. Practically, the difference affects penalty exposure for persons required to collect (e.g., sellers/licensors) versus those required only to deduct.

Practical Implications

  • Compliance and risk areas: Persons required to deduct/collect must ensure timely deduction/collection and prompt deposit; failure exposes them to being treated as assessee in default, interest, and possible charge on assets. The safe-harbour requires the recipient to have: filed return under s.263, included the amount, and paid tax - and the deductor/collector must obtain the prescribed accountant certificate. Absence of any of these three elements results in default liability.
  • Record-keeping/evidence: Retain proof of deduction/collection, bank/payment advices showing deposit to Government, the accountant's certificate in prescribed form, documentation proving the payee's filed return and tax payment. Given the potential AO inquiry and the limitation periods, records should be preserved for at least six years (plus any periods under s.286 application). The clause itself does not prescribe retention periods beyond the limitation; retention advice is derived from the time-limits stated.
  • Procedural timing: Interest must be paid before furnishing the statement per s.397(3)(b) - taxpayers must factor interest computation into compliance workflows. Where the payee files return and pays tax, interest liability for the first leg is curtailed up to the date of the payee's return (sub-s. (3)(c)).
  • Limitation and litigation risk: The drafting discrepancy in the cross-reference to the correction statement provision may create disputes about the correct trigger for the two-year limb of limitation; practitioners should check the enacted cross-reference and any related procedural provisions.

Key Takeaways

  • The provision makes non-deduction/non-collection/non-payment a deeming event creating assessee in default status with interest and asset-charge consequences.
  • A narrow safe-harbour exists if the payee/buyer/licensee/lessee has declared and paid tax and an accountant furnishes the prescribed certificate.
  • Interest is two-tiered: 1% per month for delay in deduction/collection; 1.5% per month for delay after deduction/collection until payment.
  • Tax not paid after deduction/collection becomes a statutory charge on all assets of the person required to deduct/collect.
  • Limitation: AO cannot make the deeming order after six years from end of the tax year or two years from end of the tax year in which the correction statement is delivered - whichever is later; sections 286(1) and (3) apply.
  • Penalty under s.412 requires AO satisfaction that there were no good and sufficient reasons for failure - wording differences between bill and enacted text concerning "collect" may affect penalty exposure for collectors.
  • Drafting inconsistencies (notably the cross-reference to the correction statement section and omission of "collect" in the penalty clause in the bill) may give rise to interpretive issues; check enacted text and subordinate rules for clarification.

Full Text:

Section 398 Consequences of failure to deduct or pay or, collect or pay.

Topics

Acts Income Tax