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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Essentials of an Agreement – To qualify as a mortgage

The essentials of an agreement, to qualify as a mortgage by conditional sale, can succinctly be broadly summarized. An ostensible sale with transfer of possession and ownership, but containing a clause for reconveyance in accordance with Section 58 (c) of the Transfer of Property Act, will clothe the agreement as a mortgage by conditional sale. The execution of a separate agreement for reconveyance, either contemporaneously or subsequently, shall militate against the agreement being mortgage by conditional sale. There must exist a debtor and creditor relationship. The valuation of the property, and the transactional value, alongwith the duration of time for reconveyance, are important considerations to decide the nature of the agreement. There will have to be a cumulative consideration of these factors, alongwith the recitals in the agreement, intention of the parties, coupled with other attendant circumstances, considered in a holistic manner. Vishal Tukaram Kadam v. Vamanrao Sawalaram Bhosale, 2017 (5) AWC 4821.

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Matrimonial Dispute – When can a DNA Test be ordered

In the case of Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women, (2010) 8 SCC 633, it was observed by the Hon’ble Apex Court that in a matter where paternity of a child is in issue before the Court, the use of DNA Test is an extremely delicate and sensitive aspect. It should not be directed by the court as a matter of course, or in a routine manner. Whenever such a request is made, the court has to consider diverse aspects including presumption under Section 112 of the Evidence Act; pros and cons of such order and the test of “eminent need”. Whether it is not possible for the Court to reach the truth without use of such test. Any order for DNA test can be given by the Court only if a strong prima facie case is made out for such a course. Satya Pal Yadav v. Smt. Sandhya Yadav, 2017 (123) ALR 860.

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Trespass and Trespasser

A “trespass” is an unlawful interference with one’s person, property or rights. With reference to property, it is a wrongful invasion of another’s possession. In Words and Phrases, Permanent Edition, (West Publishing Company), pp. 108, 109 and 115, in general, a “trespasser” is described, inter alia as follows:
“A ‘trespasser’ is a person who enters or remains upon land in the possession of another without a privilege to do so created by the possessor’s consent or otherwise (Wimmer’s Estate, In re, 182 P2d 119 at 121 : 111 Utah 444.)”
A ‘trespasser’ is one entering or remaining on land in another’s possession without a privilege to do so created by the possessor’s consent, express or implies, or by law. (Keesecker v. G.M. Mckelvey Co., 42 NE 2d 223 at 226,227 : 68 Ohio App. 525.)
A ‘trespass’ is a transgression or wrongful act, and in its most extensive signification includes every description of wrong, and a trespasser is one who does an unlawful act, or a lawful act in an unlawful manner, to the injury of the person or property of another. (Carter v. Haynes, Tex, 269 SW 216 at 220).
In Black’s Law Dictionary (6th Edition), 1990, p. 1504, the term “trespasser” is explained as follows:
“Trespasser.—One who has committed trespass. One who intentionally and without consent or privilege enters another’s property. One who enters upon property of another without any right, lawful authority, or express or implied invitation. Permission or license, not in performance of any duties to owner, but merely for his own purpose, pleasure or convenience.”
In Halsbury’s Laws of England. Vol. 45 (Fourth Edition), pp. 631-32, the following statement is made under the title “What constitutes Trespass to Land”:
“1384. Unlawful entry.—Every unlawful entry by one person on land in the possession of another is a trespass for which an action lies, even though no actual damage is done. A person trespasses upon land if he wrongfully sets foot on it, rides or drives over it or takes possession of it, or expels the person in possession, or pulls down or destroys anything permanently fixed to it, or wrongfully takes minerals from it, or places or fixes anything on it or in it, or if he erects or suffers to continue on his own land anything which invades the airspace of another, or if he discharges water upon another’s land, or sends filth or any injurious substance which has been collected by him on his own onto another’s land.” Ajit Singh v. Union of India, 2017 (4) AWC 4139.

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Accusations and Character Assassination – Constitute Mental Cruelty

By a catena of decisions of the Hon’ble Apex Court, it is settled that making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or news items which may have adverse impact on the business prospect or the job of the spouse and filing repeated false complaints and cases in Court against the spouse would, in the facts of the case, amount to causing mental cruelty to the other spouse.
In Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate, (2003) 6 SCC 334, the Hon’ble Apex Court considered the question, whether the averments, accusations and character assassination in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13(1)(i-a) of the Hindu Marriage Act, 1955, and held as under:
“The position of law in this regard has come to be well settled and declared that leveling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and accusations of extra marital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination satisfy the requirement of law has also come to be firmly laid down by the Court.” Smt. Jayanti v. Dr. Om Prakash Pandey, 2017 (124) ALR 117.

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