Monthly Archives: January 2018

Delegation of Power vis-à-vis Authorisation

Delegation of power is made by an authority to do an act for which the authority himself is competent, by any other officer whereas authorization is made by the authority empowered to do so under a statute or any other lawful instrument. The ordinary dictionary meaning of the word “Delegate” is to send or authorize a person as a representative to depute (Oxford Concise English Dictionary). The word ‘Delegate’ in Black’s Law Dictionary has been defined to mean to entrust another with the authority or empower another to act as an agent or a representative. The word “Authorise” as defined in Oxford Concise English Dictionary means to give an authority to a person or a body or to sanction or commission a person to do some act. The Black’s Law Dictionary defines the word “Authorise” to mean to give legal authority or to empower the authorized person to act for the person giving such an authority.
Thus, it is clear that delegation is done by an authority to a person or a body or a subordinate to do an act which the delegate is himself otherwise empowered or authorized to do under the statute or any other legal instrument. Whereas authorization would mean empowering an officer to do something for which the authority authorizing the person or body to do an act is empowered. Ranbir Singh v. State of U.P., 2018 (126) ALR 227.

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Service Tax – Nature and Character of

In Association of Leasing and Financial Service Companies v. Union of India, (2011) 2 SCC 352, the court under the caption “nature and character of service tax” held as under:
“In All India Federation of Tax Practitioners v. Union of India, (2007) 7 SCC 527 the Court explained the concept of service tax and held that service tax is a value added tax which in turn is a destination based consumption tax in the sense that it is levied on commercial activities and it is not a charge on the business but on the consumer. That, service tax is an economic concept based on the principle of equivalence in a sense that consumption of goods and consumption of services are similar as they both satisfy human needs. Today with the technological advancement there is a very thin line which divides a “sale” from “service”. That, applying the principle of equivalence, there is no difference between production or manufacture of saleable goods and production of marketable/saleable services in the form of an activity undertaken by the service provider for consideration, which correspondingly stands consumed by the service receiver. It is this principle of equivalence which is inbuilt into the concept of service tax under the Finance Act, 1994. That service tax is, therefore, a tax on activity. That, service tax is a value added tax. The value addition is on account of the activity which provides value addition, for example, an activity undertaken by a chartered accountant or a broker is an activity undertaken by him based on his performance and skill. This is from the point of view of the professional. However, from the point of view of his client, the chartered accountant/broker is his service provider. The value addition comes in on account of the activity undertaken by the professional like tax planning, advising, consultation etc. It gives value addition to the goods manufactured or provided or sold. Thus, service tax is imposed every time service is rendered to the customer/client.
The same view is reiterated broadly in Godfrey Phillips India Ltd. v. State of U.P., (2005) 2 SCC 515 in which a Constitution Bench observed that in the classical sense a tax is composed of two elements: the person, thing or activity on which tax is imposed. Thus, every tax may be levied on an object or on the event of taxation. Service tax, is thus, a tax on activity whereas sales tax is a tax on a sale of a thing or goods.” Union of India v. Bengal Shrachi Housing Development Limited, (2018) 1 SCC 311.

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Levy and Collection of Tax – Distinction Between

In Peekay Re-Rolling Mills (P) Ltd. v. CST, it was held thus:
“What is important to note is that the expression”levy” would include “assessment”, though it would not include “collection”. This being the case, it is clear that the expression “primarily leviable upon the lessor” makes it clear that the lessor should be the person upon whom levy takes place-in the sense that “assessment” has to be of such person. “Levy”, in all cases of indirect taxes, is never upon an individual-it is upon a specific aspect of what is sought to be taxed. Therefore, when the expression “primarily leviable” is used in relation to a person and not an activity, it has reference to the assessee upon whom the assessment is made under the Act. Thus construed, it is clear that, the person liable to pay the tax is only the service provider and not the recipient of the service. Union of India v. Bengal Shrachi Housing Development Ltd., (2018) 1SCC 311.

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Deficiencies in Ability – Would Not Constitute Misconduct

The Supreme Court in Union of India v. J. Ahmed, AIR 1979 SC 1022, observed that failure to attain the highest expectation of an officer holding responsible post or lack of aptitude of quality of leadership would not constitute as failure to maintain devotion to duty because if it is so then every officer rated average would be guilty of misconduct. In the said case the charges leveled against the officer indicated lack of efficiency, lack of foresight and lack of indecisiveness but the Supreme Court observed that these deficiencies in personal character or personal ability would not constitute misconduct for the purposes of disciplinary proceedings.
In M.M. Malhotra v. Union of of India, JT 2005 (9) SC 506, it was observed as under:
“Misconduct” as stated in Batt’s Law of Master and Servant (4th Edition) (at page 63) is comprised positive acts and not mere neglects or failures. The definition of the work as given in Ballentine’s Law Dictionary is “A transgression of some established and definite rule of action, where no discretion is left except what necessity may demand, it is a violation of definite law, a forbidden act. It differs from carelessness.” Chandra Bhushan Tripathi v. State of U.P., 2017 (6) AWC 6106.

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