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act in any way. The rationale for treating export of intermediary services differently from export
of other services has not been specified by the Parliament. It has been merely stated that the concept
of ‘intermediary’ was borrowed from the Service Tax Regime into the GST, but no reasoning for
such a contrasting treatment of intermediary has been given. Thus, differentia created is not
intelligible and must be viewed as arbitrary.
CLASS DISCRIMINATION WITHIN INTERMEDIARY SERVICES
Article 14 clearly prohibits class legislation, but it does not prohibit reasonable classification. The
implication is that the classification must be reasonable i.e., the differentia, that separates those
who are grouped together from those who are not, must have relationship with the object of the
legislation.37 To pass the Article 14 criteria of reasonable classification, the classification must not
be "arbitrary, artificial, or evasive," but must be founded on some actual and substantial distinction
that has a just and reasonable relationship to the legislative intent and object.38
The aim of this part is to highlight unequal treatment of services under the IGST Act within the
class of intermediary services, otherwise known as class discrimination, which is prohibited by
virtue of Article 14. There is differential treatment in violation Article 14 of the Constitution
because some intermediary services have been kept beyond the operation of section 13(8) and
thereby do not invoke 8(2) and classify as export of services. This framework creates a
discriminatory advantage for some service providers who export their services, such as suppliers
of research and development in the pharmaceuticals sector39, Marketing agents,40 management
37 Anant Mills Co Ltd v State of Gujarat & Ors (1975) 2 SCC 175
38 R K Garg v Union of India (1981) 4 SCC 675
39 Ministry of Finance, Notification No. 04/2019- I.T. (Central Board of Indirect Taxes and Customs, 20 June 2012) (Issued on
September 30, 2019) <https://www.cbic.gov.in/resources//htdocs-cbec/gst/notfctn-4-2019-igst-
english.pdf;jsessionid=6090858CC7B0271C6998FB3109985FA5> accessed 20 October 2021
40 ‘Notification No. 53/98-S.T. 70’ (Central Board of Indirect Taxes and Customs, 16 October 1998)
<https://www.cbic.gov.in/resources//htdocs-servicetax/st-profiles/mkt-
research.pdf;jsessionid=736E3CEFCDD276A4ED7C33CB66A931D2> accessed 20 October 2021
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consultants and advisors,41 from other service providers. This discriminatory advantage has been
provided without proper reasoning and does not have a reasonable relationship with the object of
the IGST Act.
Supply of these services is also intermediary because they are involved with two supplies
simultaneously, one between principal and third party, and the other between himself and the
principal, for which a fee or commission is charged.42 However, they are exempted from the tax
net when they are exported to a foreign recipient. This creates a dichotomy because although taxing
some intermediary services are provided, taxing other services are prohibited and this class
discrimination that does not align with the object of the Act is in violation of Article 14 of the
Constitution.43
It is imperative to refer to the 139th Parliamentary Committee Report with regard to place of supply
of services wherein it was recommended to rectify this error, but the same was not given effect to.
The Parliamentary Committee Report precisely pointed out that the mechanism to charge taxation
on intermediary services is erroneous. It was further stated in the report that the Government needs
to use the power given under Section 6(1) to exempt the intermediary services provided to a foreign
enterprise from tax and consider them as export of services.
PART III: EXTRA-TERRITORIAL OPERATION
The relevant constitutional provision to analyze the extra-territoriality aspect is Article 245, which
is reproduced below:
“245. Extent of laws made by Parliament and by the Legislatures of States. —
41 ‘Notification No. 53/98-S.T. 66’ (Central Board of Indirect Taxes and Customs, 16 October 1998)
<https://www.cbic.gov.in/resources//htdocs-servicetax/st-profiles/mgmt-busconsultnt.pdf> accessed 20 October 2021
42 'Taxation of Services: An Education Guide' (Central Board of Indirect Taxes and Customs, 20 June 2012)
<https://www.cbic.gov.in/resources//htdocs-
servicetax/EducationGuide.pdf;jsessionid=FA9A99938B2A6FE98E20B1079D130402> accessed 20 October 2021
43 R K Garg v Union of India (1981) 4 SCC 675
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(1) Subject to the provisions of this Constitution, Parliament may make laws for the
whole or any part of the territory of India, and the Legislature of a State may make
laws for the whole or any part of the State.
(2) No law made by Parliament shall be deemed to be invalid on the ground that it
would have extra-territorial operation.”44
Due to the phrase "Subject to provisions of this Constitution" in Article 245(1), the legislative
powers of the Parliament are limited in two ways: i) legislative competence; and (ii) law must be
subject to provisions of the Constitution and not hinder the rights conferred by Part III.45 Clause
(2) prima facie seems restrictive in its approach to state that Parliament has no bounds when it
comes to legislating extra-territorial laws. However, the Supreme Court has construed the scope
of sub-clause (2) in the case of GVK Industries Limited v. ITO,46 wherein it has been ruled that a
law cannot have extra-territorial operation unless the taxing event has some reasonable nexus with
India.47 The IGST Act levies intrastate tax on export of services and this extra-territorial operation
is prohibited in India unless there is some reasonable nexus of export of the intermediary services
with India. The element of reasonable nexus is the deciding factor in establishing validity of the
taxing statute.
Sub-clause (8) of section 13 contains three classes of services: banking services, intermediary
services and transport services. It is proposed that intermediary services are different from the
other two services enumerated. This is because when intermediary services are rendered to foreign
recipients, there is no reasonable nexus with India. Thus, while the other two kinds of service may
have a reasonable nexus, keeping intermediary services in the same pool leads to unjustified extra-
territorial operation.
44 The Constitution of India 1950, Article 245.
45 A K Gopalan v State of Madras 1950 SCR 88
46 GVK Industries Limited v ITO (2013) 7 SCC 426
47 Sondur Gopal v Sondur Rajini AIR 2013 SC 2678; K K Kochuni v State of Madras AIR 1960 SC 1080
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To understand this preposition better, banking services (or services of financial institutions or
services of non-banking financial institutions), are rendered to its account holders. Thus, even if
the recipient is located outside India, a nexus is created with India by virtue of recipient’s choice
of opening an account in India. A bank is different from a private transaction because it is regulated
by Reserve Bank of India and has direct relationship with the stability in the economy. Whenever
banks render services to account holders, bank charges service fee irrespective of their resident
status. It is the Indian bank which derives benefit from operation of account by non-resident. Thus,
the act of opening an account in an Indian bank creates the requisite reasonable nexus.
With respect to transport services, it must be kept in mind that these services are associated with
some movable property only. The idea of transporting a service is inconceivable. Goods that are
transported within India on behalf of foreign recipients will have to be physically present within
the taxable territory to constitute a reasonable nexus. Although transport services may be rendered
to a foreign recipient, they are consumed or utilized within India. So, when transport services are
included in this list, they are meant to be taxed by virtue of the nature of their consumption.
Regarding intermediary services, there is no reasonable nexus with India because services are not
rendered physically in India and the benefit is accrued to foreign recipients only. For instance, in
a case where advertising services are provided to a foreign recipient, the services are received
outside India because the benefit is accrued to the foreign recipient. It is immaterial that such
services are rendered with respect to the Indian consumer base because the reasonable nexus must
be associated with the location where the services are consumed. If the Indian framework permitted
origin-based tax, these services might have had a reasonable nexus with India as the services are
originating from here, but this is not the case. The flow of supply chain is of vital importance here
because it determines from where services begin and where they terminate.
It is crucial to point out that intermediary services which are exported to foreign recipient with
respect to consumer base located outside India are treated as export of services.48 However, in
cases where services are rendered with respect to the consumer base in India, the treatment changes
48 ‘Notification No. 20 /2019- Integrated Tax (Rate)’ (Central Board of Indirect Taxes and Customs, 30 September 2019)
<https://cbic-gst.gov.in/pdf/integrated-tax-rate/notfctn-20-2019-igst-rate-english.pdf> accessed 20 October 2021
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and supply ceases to be an export of services, triggering the deeming fiction. To simplify, let’s
assume an Indian supplier exports services to an American recipient. This is the first supply. From
here on a subsequent supply takes place having two possibilities of supply chain: The American
recipient of services can direct his supply to customers located either in India or outside India.
When the subsequent supply is made to customers located outside India, the first supply is treated
as export of services. In contrast, when the American supplier directs his supply to customers
located in India, the first supply is treated as an intrastate supply.
This change in treatment is unwarranted because the location of the customers is immaterial. The
beneficiary of supply of services is the foreign recipient and not the Indian customers. It is not the
case for continuous supply of services because there is a break in the supply chain when these
services are exported to the foreign recipient. The intermediary services when rendered to a
recipient located outside India come to an end then and there. The subsequent supply from thereon
begins with the supply of goods from the foreign supplier and ends with the Indian customer
receiving those goods in India. Thus, this discrepancy with respect to location of the consumer
base should be resolved and supply of intermediary services to the foreign recipient should be
regarded as export of services, irrespective of where the goods or services of main supply are
received.
PART IV: CONSTRUING THE BEST PRACTICES
The scheme of the IGST Act is to tax supply in the course of inter-state trade and imports. Exports
are excluded from the purview of the GST scheme to encourage Indian suppliers to participate in
international trade. The statement of Objects and Reasons accompanying the GST bill emphasized
that through this framework, there would be seamless transfer of input tax credit from one stage to
another in the supply chain.49 Export of services are charged on a reverse charge mechanism and
considered zero-rated supply, meaning that although it is incumbent upon the supplier of services
to pay GST, the government refunds the amount paid by such supplier.50 In addition, the supplier
can claim input tax credit even if the supply is exempted.
49 Union of India v VKC Footsteps India Pvt Ltd 2021 SC OnLine 706
50 The Integrated Goods and Services Tax Act 2017, § 16.
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This is done to ensure that goods produced in India for export are not disadvantaged by domestic
tax burden and remain competitive internationally.51 This is a form of incentive provided to the
supplier of services to engage in exports and, in the long run, this mechanism invites persons from
other jurisdictions to participate in business with India which in turn results in an increase in
exports. However, in cases where a supplier provides intermediary services to a foreign recipient,
the supplier cannot claim input tax credit on the taxes paid because these services are not treated
as export of services, regardless that both of these services are of the same nature. The intermediary
service providers struggle financially because they are deprived of the crucial benefits which are
generally available to exports’ suppliers.
TREATMENT OF EXPORT OF SERVICES GLOBALLY
The prevalent scheme of GST worldwide (or otherwise known as ‘VAT’ in some jurisdictions) is
identical.52 In the European Union, VAT liability is exempted in the case of exports of goods or
services.53 Moreover, supply of intermediary services is specifically excluded from the purview of
VAT liability.54 Similarly, in the United States, VAT liability is imposed based on where the
services are rendered or the benefit is accrued, meaning that exported services are not subject to
sales tax.55 Imports are taxed because the goods are consumed within the taxable territory, but
51 ‘Tax Exemptions to Indian Exporters’ (Press Information Bureau, 20 November 2019)
<https://pib.gov.in/Pressreleaseshare.aspx?PRID=1592380> accessed 20 October 2021
52 ‘Exports’ (Revenue Irish Tax and Customs) <https://www.revenue.ie/en/vat/goods-and-services-to-and-from-abroad/vat-and-
exports/index.aspx> accessed 20 October 2021
53 ‘Council Directive 2006/112/EC on the common system of value added tax’ (Official Journal of the European Union, 11
December 2006) <https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32006L0112&from=EN> accessed 20
October 2021
54 Ibid, Article 153.
55 ‘United States - Indirect Tax Guide’ (KMPG) <https://home.kpmg/xx/en/home/insights/2018/10/united-states-indirect-tax-
guide.html> accessed 20 October 2021
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exports are tax-free. The rationale for referring to global practice is to highlight that supply going
outside taxable territory is not taxed because the importing country will levy tax on such supply.
In the present Indian GST framework, if a supplier exports his intermediary services to non-
resident recipients, the services will be liable for GST in the importing country as well in India.
The policy of Indian government has been to avoid double-taxation. Levying domestic tax on
cross-border supply, which will not go untaxed otherwise, will be against the public policy of
India. This mechanism levies unwarranted tax that leads to double-taxation. Hence, even though a
service falls within the category of intermediary services, it should be considered as export because
the supply is still export of intermediary services and as per the long-standing policy of
Government of India, it is prudent for the government to not tax export duty on such supply.
SCOPE OF INTERMEDIARY SERVICES
The Central Board of Indirect Taxes and Customs (“the department”) issued a circular in July
2019 to try and clarify the scope of intermediary services, regarding IT Enabled Services providers
by providing its different models and categorizing when they will be considered intermediary
services.56 This was subsequently withdrawn ab initio by the department after receiving numerous
representations expressing concerns about the circular's implications. Thereafter, the department
recently issued a clarificatory notification on the scope of intermediary services.57 Sine qua non
for an intermediary service as per that notification is given below:
● Minimum of three parties: An intermediary is a person who arranges or facilitates the supply
of goods, services, or securities between two or more people. As a result, the arrangement
necessitates a minimum of three parties, two of whom transact in the supply of goods, services,
or securities (the main supply), and one who arranges or facilitates the said main supply (the
ancillary supply). As a result, an activity involving only two parties cannot be classified as an
intermediary service. An intermediary is a person who "arranges or facilitates" another supply
56 ‘Circular 107/26/2019-GST’ (Central Board of Indirect Taxes and Customs, 20 18 July 2019) (Issued on July 18, 2019).
<https://cbic-gst.gov.in/pdf/circular-cgst-107.pdf> accessed 20 October 2021
57 ‘Circular No. 159/15/2021-GST’ (Central Board of Indirect Taxes and Customs, 20 September 2021)
<https://www.cbic.gov.in/resources//htdocs-cbec/gst/Circular%20No.%20159_14_2021_GST.pdf> accessed 20 October 2021
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(the "main supply") between two or more other people, but does not provide the main supply
himself.
● Two distinct supplies: There must be two supplies, namely: Main supply between two
principals, and ancillary supply, which is the service of facilitating supply between two
principals. The latter must be clearly identifiable and will be considered intermediary services.
In the notification there are certain exclusions provided to these requirements as well. For a person
to not be included in the ambit of intermediary services, he:
● must not be engaged in supply of goods or services or both or securities on his own account
● must not be a sub-contractor engaged in the main supply.
Thus, the legislature intended that a third party who is supplying certain services to the foreign
recipient on a principal-to-principal basis will not be considered to provide intermediary services.58
The notification mentions certain illustrations where supply of certain services will not be
considered intermediary services, such as outsourcing of the main supply. On the other hand,
services of arranging outsourcing of supply or identifying client base (brokering) for the main
supply will be considered intermediary services.
The definition of intermediary services provided in the IGST Act states that:
“Intermediary means a broker, an agent or any other person, by whatever name
called, who arranges or facilitates the supply of goods or services or both, or securities
between two or more person…”59
The phrase “any other person by whatever name called” is somewhat problematic because it
widens the scope of intermediary services to cover every business that performs a supporting role
which may or may not have a reasonable nexus with India. The circular provides that the definition
is not inclusive and that an intermediary service provider must have the character of either an agent
or a broker to fall within the ambit of this definition. However, the general practice so far has not
58 GoDaddy India Web Services Pvt Ltd v Commissioner of Service Tax (2016) 54 GST 681
59 'Circular No 159/15/2021-GST' (Central Board of Indirect Taxes and Customs, 20 September 2021)
<https://www.cbic.gov.in/resources//htdocs-cbec/gst/Circular%20No.%20159_14_2021_GST.pdf> accessed 20 October 2021
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been in consonance with this practice because all businesses engaged in export of services that are
supporting roles are made liable to pay taxes in India.
By definition, the intention of the legislature is not to tax all suppliers of services who facilitate
main supply. The objective is to tax those suppliers who are acting as agents or brokers. Thus,
there must be some definitive tests or factors that should be taken into consideration while
determining which supplies will qualify as intermediary services. Such factors may include:
I. Whether the main supplier exercises a degree of control over the activity of an ancillary
supplier: A supplier of ancillary services will be considered to be an agent if he carries on
business of the main supplier in India. It is a natural corollary that the main supplier exercises
control over the operations of ancillary suppliers, similar to a principal-agent relationship.
There is a certain degree of exclusivity involved therein. For instance, if A, a foreign supplier
of services engages B, an Indian service provider for rendering services exclusively to A, B
will be considered as supplier of intermediary service and the supply must not be considered
as export of services.
II. Whether ancillary supplier renders services in India on behalf of main supplier: For this, the
actual amount of work undertaken by the agent as compared to the main supplier will be
irrelevant. For instance, if A, a foreign supplier of main services engages B, an Indian service
provider, for only identifying specific client base on behalf of A and then concludes the
contract with the client itself, then B will be considered to provide intermediary service. On
the contrary, if A engages B for advertising A’s product in India generally, as a result of
which, a client base is constituted which directly initiates contract with A, B is not providing
intermediary services.
III. Nature of ancillary services provided: If the nature of service is such that the ancillary service
provider who was engaged in the beginning of supply continues to have prolonged
engagement with the consumer beyond the initial supply as part of the agent services
provided to the foreign recipient, the service provider will be considered intermediary
service provider. For instance, if A, a foreign supplier of machinery or equipment, engages
B, Indian service provider, to advertise product of A in India and to communicate
documentary requirements to the client and after verification, forward the said verified
documents to A. Additionally, B is also entrusted to install the machinery or equipment in
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client’s premises after finalizing the contract and to handle customer care services as well.
Here, after the initial supporting role, B is providing services to A until the contract is agreed
upon, and even after such agreement, continues to provide his services to A. B will be
considered a supplier of intermediary services.
The circular provides clarity to some extent, but at the same time, there is still room for ambiguity
in the interpretation of intermediary services. It is incumbent upon the courts to implement the
statute but the ambiguity leaves space for judicial discretion. And when it comes to taxing statutes,
judicial discretion is bound to favour the statute to a great extent to uphold the present framework.
It is necessary for the legislature to remove the unreasonableness to ensure efficient mechanism of
levying the tax. It is imperative that certain definitive guidelines are formulated for this provision
so that some clarity is provided to the courts as well as to the suppliers.
PART V: CONCLUDING REMARKS
CLASSIFICATION OF SUPPLY – SECTION 8(2) OR SECTION 7(5)?
In accordance with Section 13(8)(b), it is specifically stated that the place of supply of services
provided by an intermediary to an overseas customer is to be taken as the location of the supplier
of services, which is the location of that intermediary. This is where section 8(2) is invoked to
create the controversial deeming fiction. This portion analyzes whether the supply could be
classified under section 7(5)(c) instead of section 8(2). Relevant provisions are reproduced below:
“7. Inter-State supply
(5) Supply of goods or services or both, ––
(a) when the supplier is located in India and the place of supply is outside India;
(b) to or by a Special Economic Zone developer or a Special Economic Zone unit; or
(c) in the taxable territory, not being an intra-State supply and not covered elsewhere
in this section,
shall be treated to be a supply of goods or services or both in the course of inter-State
trade or commerce
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...
8. Intra-State supply
(2) Subject to the provisions of section 12, supply of services where the location of the
supplier and the place of supply of services are in the same State or same Union
territory shall be treated as intra-State supply:
Provided that the intra-State supply of services shall not include supply of services to
or by a Special Economic Zone developer or a Special Economic Zone unit.”
On the one hand, section 8(2) states that in cases where the location of supplier and the place of
supply are in the same state then such a supply would be treated as intrastate supply. On the other
hand, section 7(5)(c) of the IGST Act covers all other supplies within India. Section 8(2) of the
IGST Act becomes applicable for transactions through Section 13(8)(b), which covers the gamut
of supply within a state by intermediary and it specifically designates the location of supplier as
the place of supply of such services.
The intermediary services rendered by an Indian service provider to a foreign recipient would be
ascertained as intra-state supply, as the place of supply of service is location of supplier.
Seemingly, it can be argued that such a transaction shall be classifiable under Section 7(5)(c) as it
has a wide ambit covering all kinds of supply of services except intra-State supply. Section
13(8)(b) explicitly states that the place of supply for intermediary services shall be the location of
the supplier of services and that by virtue of such allocation, the place of supply and location of
services will always be the same. Thus, the supply will be treated as intra-state supply. This
framework leaves no confusion for the application of Section 8(2).
CONSTITUTIONAL, LEGAL AND COMMERCIAL VIABILITY OF THE PRESENT FRAMEWORK
The current framework creates class discrimination without a rationale nexus and thus, creates an
arbitrary taxing mechanism for intermediary services. The adoption of mechanisms of service tax
regime without molding them as per the current principles on which GST is based has led to the
controversy of this paper. The argument on which the government pleaders have relentlessly relied
upon is the 2014 PoPS rules that permitted taxing the export of intermediary services. However,
that framework was different and the country underwent major tax reform in 2017 when GST was
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introduced. The previous service tax regime had flaws that hampered the efficient application of
taxation that caused unnecessary hardships to taxpayers. GST was brought in to tackle those
challenges and thus, the rationale of the previous regime cannot be carried forward to this regime
as it is. Due to this borrowing, the unnecessary controversy with respect to intermediary services
has also been carried forward in the GST regime as well.
The overall scheme leads to a consequence which is commercially not viable for exporters of
intermediary services. Once services are rendered, those services are taxed in two jurisdictions, in
India as well as the jurisdiction where services are exported. Additionally, intermediary services
are not big conglomerates with huge profit margins. They are small and medium enterprises who
earn a small commission by giving their services abroad. If they continue to pay 18% GST on
those earnings, their operation no longer remains financially viable. This discourages intermediary
service providers from engaging in international trade and may drive some enterprises to terminate
functioning in domestic markets as well.
In addition, continuing with the present framework will impact India’s gross value added as well,
54% of which was contributed by services sector in financial year 2021.60 According to the RBI,
India's service exports stood at US$ 19.72 billion in June 2021, while imports stood at US$ 11.14
billion.61 During 2000-2021, India attracted a total of US$ 87.06 billion in foreign direct
investment (FDI) and the services sector ranked first in terms of FDI inflows. This data highlights
that potential of growth in the service sector despite the levy of domestic tax. This sector has the
scope to flourish further after this controversy is resolved. The revenue that the government will
be foregoing could be easily retrieved if it will make more sense for domestic service providers to
engage with foreign recipients. As a result of this engagement, imports will increase as well.
Thus, the ideal solution would be to remove section 13(8)(b) of the IGST Act and prevent
designating place of supply as location of the supplier in case of export of intermediary services.
This will mean that place of supply will be location of recipient and thus, would be out of the
60 ‘Services Sector in India’ (India Brand Equity Foundation, 12 October 2021) <https://www.ibef.org/industry/services.aspx>
accessed 20 October 2021
61 Ibid.
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purview of tax net in India. Alternatively, it is proposed that an amendment could be made to
replace intermediary services in 13(8) (b) with “services in nature of an agent or broker” for the
sake of clarity.
BIBLIOGRAPHY
Cases:
● A K Gopalan v State of Madras, 1950 SCR 88.
● All India Federation of Tax Practitioners v Union of India, (2007) (7) STR 625.
● Anant Mills Co Ltd v State of Gujarat & Ors, (1975) 2 SCC 175.
● Arun Kumar Agrawal v Union of India, (2013) 7 SCC 1.
● Central India Spinning and Weaving and Manufacturing Co Ltd v Municipal Committee,
Wardha, AIR 1958 SC 341.
● Dhampur Sugar (Kashipur) Ltd v State of Uttaranchal, (2007) 8 SCC 418.
● Dharmendra M. Jani v Union of India, (2021) SCC OnLine Bom 839.
● GoDaddy India Web Services Pvt Ltd v Commissioner of Service Tax, (2016) 54 GST
681.
● GVK Industries Limited v ITO, (2011) 332 ITR 130.
● Income Tax Officer v M K Mohammed Kunhi, (1969) 2 SCR 65.
● Kerala Hotel and Restaurant Association and Ors v State of Kerala and Ors, (1990) 2 SCC
502.
● K K Kochuni v State of Madras, AIR 1960 SC 1080
● Material Recycling Association of India v Union of India and Ors (2020) 79 GSTR 232
● M H Quareshi v State of Bihar, (1959) 1 SCR 629.
● R K Garg and Ors v Union of India (UOI) and Ors, (1981) 4 SCC 675.
● Sondur Gopal v Sondur Rajini, AIR 2013 SC 2678.
● State of Madhya Pradesh v Rakesh Kohli & Anr, (2012) 6 SCC 312.
● State of Travancore, Cochin v Bombay Co Ltd, AIR 1952 SC 366.
● Union of India v Exide Industries Ltd, (2020) 425 ITR (SC) 1.
● Union of India v VKC Footsteps India Pvt Ltd, 2021 SC OnLine 706.
Online Material:
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● Pre-budget Memorandum 2017, available at https://idtc-
icai.s3.amazonaws.com/download/preBudget-Memorandum-2017-IndTaxes.pdf
● Taxation of Services: An Education Guide, available at
https://www.cbic.gov.in/resources//htdocs-
servicetax/EducationGuide.pdf;jsessionid=FA9A99938B2A6FE98E20B1079D130402
● Services Sector in India, available at https://www.ibef.org/industry/services.aspx
● United States - Indirect Tax Guide, available at
https://home.kpmg/xx/en/home/insights/2018/10/united-states-indirect-tax-guide.html
● Council Directive 2006/112/EC on the common system of value added tax, available at
https://eur-lex.europa.eu/legal-
content/EN/TXT/PDF/?uri=CELEX:32006L0112&from=EN
Websites:
● www.cbic.gov.in
● www.indiabudget.gov.in
● www.ibef.org/
● home.kpmg
● pib.gov.in
● www.revenue.ie
● eur-lex.europa.eu
● www.scconline.com
● www.taxmann.com
● www.manupatrafast.com
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TANU PRIYA
Army Institute of Law, Mohali
Email: [email protected]
TC11 RESEACH PAPAER
ACCESS TO JUSTIC IN TAX MATTERS
TC11
“One declares so many things to be a crime that it almost becomes impossible for men to live
without breaking law.” -Ayn Rand
Taxation is backbone of a country’s economy. A perfectly administered system will hold the
nation in difficult times and eventually leading to easy access to justice for the people. Tax raises
money for food, cloth, shelter, education and various other things for the people, helps in
reducing the already present inequality between the two classes. Taxation strengthens and
protects channels of political representation: when citizens are taxed, they demand representation
in return from their ruler,1 manage the growth of economy, and fuels its industrial activity.
India’s three-tier federal structure consists of Union Government, the State Governments, and the
Local Bodies which are empowered with the responsibility of the different taxes and duties,
which are applicable in the country. The local bodies would include local councils and the
municipalities. The government of India is authorized to levy taxes on individuals and
organisations according to the Constitution. However, Article 265 of the Indian
constitution states that the right to levy/charge taxes hasn’t been given to any except the
authority of law. The 7th schedule of the constitution has defined the subjects on which
Union/State or both can levy taxes. As per the 73rd and 74th amendments of the constitution,
limited financial powers have been given to the local governments which are enshrined in Part
IX and IX-A of the constitution. 2
Taxation basically is the imposition of compulsory levies on individuals or entities by the
governments that state. Taxes are levied in almost every country of the world, primarily to raise
revenue for government expenditures, although they serve other purposes as well.3 Tax matters
refer to assessment and payment of your individual income tax/Corporate tax every financial
1 Nicholas Shaxson, The Tax Conesus has failed, 2007 Volume 3, Number 2, Tax Justice Focus,
https://www.taxjustice.net/cms/upload/pdf/TJF_3-2_Final.pdf
2 Ashutosh Singh, Law of taxation and the Constitution of India, https://blog.ipleaders.in/law-taxation-constitution-india/
3 https://www.britannica.com/topic/taxation
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year, on the day to day purchase of goods and services, tax evasion - voluntary or involuntary,
other disputes related to it. Ever since the economy started growing and the already present high
number of active taxpayers, India has been working on the present judicial system to make it
hassle free. In FY 2010-11, the prosecution launched 244 cases, out of which 356 were decided,
51 were convicted, 83 were compounded with the acquittal rate of 62.4%. This figure drastically
changed over the years, crossing 2225 cases launched by prosecution in FY 2017-18. 50% of
these opted for Compounding. The two types of taxes in India are Direct and Indirect taxes. One
of the biggest and most successful tax reforms in India is the GST(Goods and Services Tax). It
assists as a comprehensive indirect tax which helps in eliminating the flowing effect of tax as a
whole.
Direct tax, is a tax imposed on corporate units and individual people. It is a type of tax that can’t
be moved or accepted by anyone else. Direct tax examples are wealth tax, income tax, gift tax,
etc. In the Ministry of Finance, the Central Board of Direct Tax is a part of the revenue
department. This board has a two-fold role that gives important ideas, significant inputs of
planning, and policies to be implemented regarding direct tax in India. The management of direct
taxes which is done by the Income Tax department is helped by the Central Board of Direct
Taxes in doing so. Taxes that are indirectly imposed on the public through goods and services
are called indirect taxes. The government bodies collect taxes from people who sell goods and
services. When a good or product is sold in a state, then a sales tax is levied on it and its rate is
decided by the government, this is called Value Added Tax (VAT). After GST came into force,
direct and indirect taxes were collected by the three bodies of the government until 1 July 2017.
Various indirect taxes which were imposed by the central and state government are incorporated
by GST. Both the central and state government collect indirect tax through the intrastate supply
of goods and services.4
India is a big country with people belonging to different communities and different wealth
groups and income. Taxation to all cannot be the same. This is the reason for the tax system in
India being a complicated one for long. India has been grappling with the problem of tax evasion
which seems to be making our taxation system hollow from the core. India has a high tax rate but
4 Rachit Garg, Taxation: a comprehensive view, Dec 2017, https://blog.ipleaders.in/concept-taxation-comprehensive-view/
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a low yield of direct taxes. So, over the years the government has made an attempt to reduce the
taxes. Also, for a nation to prosper its tax collection system has to be strong and efficient even if
the tax rates are not high else its coffers will be depleted and developmental programmes
truncated. One of the biggest problems faced by India’s taxation system is the power of the
government to make retrospective amendments regarding the tax statues. The practice began
with the judgement given by the supreme court in the case of Chhotabhai Jethamal Patel & Co
v. UOI & Others5 after which an amendment bill was passed for retrospective levy of excise
duties.
After the implementation of the GST which is an all-inclusive indirect tax, the process has
become smoother and helped prevent the cascading effect it had earlier. The Constitution of
India has provisions with respect to the distribution of financial resources under chapter two of
part twelfth which is in rhythm with the Federal, State and Concurrent list under 7th Schedule.
To sum up, the Parliament rights are not bound and the Indian Constitution gives wide powers to
the Parliament and it is neither rigid nor the same. So, according to future needs, there are
provisions that can change the said rules of law. Paying taxes may not be the best task, however,
it pays for all the development and infrastructure that one enjoys.
The taxation system in India is such that the taxes are levied by the Central Government and
the State Governments. Some minor taxes are also levied by the local authorities such as the
Municipality and the Local Governments. While direct taxes are levied on taxable income
earned by individuals and corporate entities, the burden to deposit taxes is on the
assessees themselves. On the other hand, indirect taxes are levied on the sale and provision
of goods and services respectively and the burden to collect and deposit taxes is on the sellers
instead of the assessees directly.
India has opted for a self-assessment procedure, in which the taxpayers assess the taxes for
themselves and file returns. Taxpayers having turnovers or receipt over certain limits are also
required to get their books audited and file tax audit reports. Taxpayers must file tax returns (for
example, income tax and value added tax returns) each year. The Income Tax Act 1961 (Income
5 1962 AIR 1006, https://indiankanoon.org/doc/1404351/
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Tax Act) outlines the detailed procedure for the assessment of income and also governs the, a)
Redress of disputes arising from assessments, b) Levy of penalties, c) Commencement of
prosecution proceedings.
Central tax laws provide for a three-tiered appellate mechanism. A person aggrieved by the tax
officer's assessment order may approach the first appellate authority, who is generally a
designated senior officer of the department. The first appeal is essentially an administrative
appeal to the commissioner (appeals), with the appellate authority having powers concomitant to
the powers of the tax officers. An appeal can be filed against points of law, against findings of
fact or if the order of the ITAT is unreasonable or unacceptable. Furthermore, Special Leave
Petition can be filed in Supreme Court, either against points of law, findings of fact or if the
order of the ITAT is unreasonable or unacceptable
An appeal from the appellate authority's order goes to the appellate tribunal. The appeal may go
before a single-member or a two-member bench, depending on the complexity of issue and the
tax effect involved. For what appears to be an arbitration approach, Indian tax treaties also
contain provisions relating to Mutual Agreement Procedures (MAP), and resolutions under MAP
provisions have also been recognized by Indian courts, if one wants to go forward with it.
Costs as to litigation before the courts and tribunals of the country generally have to be borne by
the appellants themselves. However, under exceptional circumstances the courts may award
costs to the appellants. In practice, cost awards by courts are extremely rare as regards tax
litigation. Accordingly, the costs of the litigation ultimately fall on the particular party: even if
successful, the chances of recovering the costs from the other party are minimal.
Recent amendments made to Indian tax laws have sought to rationalise corporate tax rates.
Although indirect tax has been reformed through the introduction of the GST, difficulties in
implementation are yet to be fully ironed out. In terms of direct taxes, reforms are expected; and
while there has been talk of a Direct Taxes Code for several years, there has been a further
impetus by the present government. Over the last few years, the Central and many State
Governments have undertaken various policy reforms and process simplification towards great
predictability, fairness and automation. This has consequently lead to India’s meteoric rise to the
top 100 in the World Bank’s Ease of Doing Business ranking in 2019 as India jumps 79 positions
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from 142nd in 2014 to 63rd 2019 in 'World Bank's Ease of Doing Business Ranking 2020'. In
terms of tax disputes, the government appears to have adopted a policy of concentrating on high-
value disputes confirming a bright future for people working in taxation field and the taxpayers.
The old adversarial system in tax dispute has been a big roadblock in nation’s growth for so
many years and has been continuously ignored. The disputes get locked up for years, rarely get
amicably settled. This has a reason it has created an image of not being in favour of the taxpayer
and somehow discouraging the foreign investment. According to the procedure provided by
Income Tax Act, 1961 (“ITA”), the taxpayer is the one to initiate it by assessing his income and
filling a return for the same to the Assessing Officer. 6 In case if there is any issue with the
assessment and it gets rejected after getting re-examined by the Assessing Officer and the
taxpayer is dissatisfied, he can approach the Tax Appellate Tribunal (“ITAT”)7. ITAT is a quasi-
judicial body which after re-examination of facts and evidence, decides on the matter. Further,
the parties have option to approach the High Court and then the Supreme Court however, for the
appeals on the ‘substantial question of law’ will be questioned and heard. Except for the appeal,
the High Court and Supreme Court could also be approached through a judicial review by filing
a write petition.
This may appear to be a similar process but it is not, in reality tax litigation takes 1- to 20 years
before any judgement is passed on the dispute. Filing income tax returns is something which is
done by a every taxpayer once a year and however, small dispute can put him in circle of years
of legal hearing with a huge finically loss. An estimate of 2,59,523 tax disputes are pending at all
level of court and tribunals which adds upto a sum of almost Rs. 45,000 crores (2012). Over the
years, continuous stress had been given on the tax litigation by both the legislature judiciary and
as the latter as pointed it out the prevalence of the delay. Courts have endlessly attempting to
curb the delay however; the situation has never really improved remarkably. Moreover, the
transfer pricing dispute cases of Vodafone and Nokia recently have just presented the
vulnerability of government of a international level. Even with the implementation of General
Anti-Avoidance Rules (“GAAR”), not much has changed.
6 Section 139 of the Income Tax Act, 1960.
7 Section 143 of the Income Tax Act, 1960.
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The most appropriate alternative that should be persuaded to reduce the pile of tax dispute
would be Authority for Advance Rulings (“AAR”). AAR id basically a quasi-judicial body
chaired by retired judges of Hon’ble Supreme Court who will act as an independent third party
adjudicatory body. A taxpayer can approach AAR to obtain a ruling a on any question of law or
fact be it related of international transaction. All ruling made by AAR are binding on parties,
taxpayer and revenue department. The biggest advantage of AAR is its speed disposal approach.
The ITA mandates that all applications must be disposed of within 6 months from filing and only
allowed for extension of 1 year maximum, which a blessing considering the normal ligitation on
a similar matter might take a decade or two to reach over any decision. However, the advance
ruling does lack a proper administration as there is no authority of pass order over them.
Efficiency of delivery of Justice
Back in 2015, the then hon’ble Chief justice of India H.L. Dattu, constituted a special bench
which would take only tax matters. With the increase in number of taxation cases that got piled
up at apex court, he realized the need to address the issue and therefore came up with this
approach.With adding political recognition of the link between profitable growth and involved
duty laws and action, it was a reform that sounded necessary. Fortunately, the figures feel to
suggest that the duty bench has been a success each around. The bench of judges A.K. Sikri and
Rohinton Nariman heard duty cases until the alternate week of December, and in 2015, the
Supreme Court delivered 197 judgements in duty law.
This is nearly as numerous as the apex court managed in the three times antedating 2015, when
it passed 206 duty judgements; or a nearlyfour-fold increase in its productivity in each of 2014
and 2013. The vast increase in figures was really due to the effectiveness of the duty bench — in
the nine months that it was functional, the bench delivered 170 out of the 197 duty case
judgements delivered in all of 2015. The results of this trial were also phenomenal at the duty
judgements delivered by Supreme Court in 2015 came the loftiest. And if one counts the orders
where the Supreme Court did n’t claw in depth into the logic, also a aggregate of 289 similar
orders and judgements were delivered, disposing of cases. The bulk of the judgements were
rendered in central circular duty cases, both relating to central and state circular levies. Of the
170 judgements delivered by the duty bench, an astounding 149 were penned by Sikri and 21 by
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Nariman. Indeed when not sitting on the duty bench, Sikri delivered a farther seven duty
judgments relating to earlier times, bringing his census to 156 over the course of the time. While
detailed figures aren't available for earlier times, Sikri now presumably holds the record for
having delivered the loftiest number of duty judgements in a time in the Supreme Court. Matters
were conjoined up and heard together as numerous of them had been multiple times. This meant
that through the 197 Supreme Court judgements in 2015, a aggregate of 518 connected cases that
dealt with analogous points of law were disposed of (the duty bench’s judgements themselves
were directly responsible for clearing 400 cases off the books in 2015 with an fresh 490 being
disposed of through orders). This was a major advance in the history of duty matters as it came a
light force for all unborn times and other pending cases present for times. A small step taken by
the Hon’ble H.L. Dattu made a huge impact by creating a precedent for not only the Apex Court
but also the other profit authorities and petitioners. While numbers haven't yet been made public
by the profit department, it's likely that the overall value of duty profit held up in duty action in
the Supreme Court will have come down by a substantial quantum as a result of the work of the
duty bench over the course of the time. What the disposal of such a large number of duty cases
also reveals is the detainments that have taken place in these cases. The duty bench seems to
have concentrated on disposing those duty cases that have been pending for long, including, as
the table below shows, one dating back to 1997.
The bulk of the duty matters disposed of by the Supreme Court thus feel to be cases that are 8-12
times old. This doesn't inescapably mean that more recent cases have taken a back- seat; they're
likely to have been tagged with the aged cases and disposed of when the questions of law were
analogous or identical.
By all accounts, Supreme Court attorneys and petitioners are happy that the duty bench was set
up to serve over the course of the time to decide only duty cases. Without the routine change of
canon, the judges were suitable to concentrate and go in depth into the area of law in question. “
I hope the new Chief (Justice of India) will also come up with some plan like this and can form a
separate bench to concentrate just on direct duty this time," said Singh. Another word of caution
is also needed. While the number of duty judgements delivered by the Supreme Court has indeed
seen a dramatic jump, the overall number of judgements delivered by the Supreme Court in 2015
didn't see such an increase.
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Although only two judges retired during the course of the time and the Supreme Court was at
near 90 capacity, it didn't deliver mainly further judgments than the former time, 2014, where 10
judges retired over the course of the time. In Central Commission for Central Excise vs
Hindustan Lever Ltd8, the Supreme Court clarified that Vaseline intensive care heel guard was a
drug and not a cosmetic and it was up to the tax authorities to prove that there was no
prophylactic or curative value to a product. In The Commissioner of Income Tax v Veena
Developers, 9 the court laid down that deductions for construction of low-cost residential
apartments will also be available to those who constructed mixed commercial and residential
buildings, thereby resolving a large batch of pending cases.
Foreign Investors Perspective
FDI (Foreign Direct Investment) is a virtual gold every country thrives for. The major reason
behind it is that is provides new technology, generate new jobs for locals and creates a healthy
environment where employment can easily be promoted. The government not always ha high
amount of budget to investment in huge projects and they also have to cater to the people and at
the same time look out for the defense and security at the border. FDI provides exactly was the
demand it, huge investment in the economy. Developing countries like India open their market,
try to provide which hassle free, has a smooth taxation system and less legal formalities before
starting at new business. The resulting net increase in domestic income is shared with
government through taxation of wages and profits of foreign-owned companies, and possibly
other taxes on business (e.g. property tax). FDI may also positively affect domestic income
through spillover effects such as the introduction of new technologies and the enhancement of
human capital (skills).10
And because of these huge benefits that come with it, the government usually re-examines their
Tax laws in order to attract more investment. Even the outbound investment provides efficient
access to foreign markets and production scale economies, leading to increased net domestic
income. However, the government keeps trying to maintain a balance between the desire to offer
8 2002 ECR 279 SC
9 2015) 277 CTR 297
Commissioner of Income-tax v. Veena Developers
10 Tax Effects on Foreign Direct Investment, February 2013, Policy Brief OECD, https://www.oecd.org/investment/investment-
policy/40152903.pdf
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a competitive tax environment for FDI, with the need to ensure that an appropriate share of
domestic tax is collected from multinationals.11 But in reality the actual factors that attracts these
FDI’s the most are well developed infrastructure for work, cheap and skilled labour in
abundance, heavy profits opportunities, cheap raw material and transportation and a predictable
and nondiscriminatory legal and regulatory framework; macroeconomic stability.
To how the FDI may react to the taxation policy depends a lot of the host country’s corporate tax
burden. FDI is not exactly highly sensitive towards a taxation policy but it does create a huge
difference if the host country has a favorable policy as there is always a pressure present
globally. Investors, before moving on with any investment, take in account of the different
locations and draw a comparing between their tax burdens with country who have provide
similar market conditions.
“A widely-held view is that taxes are likely to matter more in choosing an investment location as
non-tax barriers are removed and as national economies converge. There is broad recognition
that international tax competition is increasing, and that what may have been regarded as a
competitive tax burden on business in a given host country at one point in time may no longer be
so after rounds of tax rate reductions in other countries. However, it is not always clear that a tax
reduction is required (or is able) to attract FDI.” 12
Even though many OECD Countries have a high corporate tax policy, if hardly effects the
investment as they provide with other facilites with the it like well structured infrastructure. Due
to that, developing countries fell more pressured, as they cannot provided the same but by
loosening the tax burden they still have a chance. the size of market the host country provides
also has a huge role to play in it and thr location specific profits attract the investors. It is also
clear that a low tax burden cannot compensate for a generally weak or unattractive FDI
environment. Tax is but one element and cannot compensate for poor infrastructure, limited
access to markets, or other weak investment conditions. However, business-friendly the tax
administration is perceived to be. Investors look for certainty, predictability, consistency and
11 Ibid, 4
12 Tax Effects on Foreign Direct Investment, February 2013, Policy Brief OECD, https://www.oecd.org/investment/investment-
policy/40152903.pdf
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timeliness in the application of tax rules, and in many cases these considerations are as important
as the effective tax rate paid. The tax environment will also be influenced by the need of
governments to introduce anti-abuse measures to protect the tax system from sophisticated tax
planning and aggressive tax schemes which exploit differences across tax systems. A key
challenge is striking a balance in devising rules to adequately protect the tax base, without
imposing excessive compliance cost on business. In doing so, it can be difficult to accurately
weigh business arguments that FDI will locate elsewhere unless the scope of tax base protection
measures is reduced. To put it all in simpler words, a less burdening tax policy has a lot to do in
attracting FDI investments. With the strong competitive, it becomes more important for countries
like India to capture them. The government is constantly trying to make a balance between the
environmental laws, the well being of the people, government treasure and the economic growth.
Financial Indepencence of Judiciary
In order to appreciate this ground of attack on Section 99 of the Finance Act, 2020 amending the
first contingency to Section 254 (2-A) of the Act, it's first necessary to appreciate the background
in which the Bars in India have come to stay and have come an essential part of our bar who has
the task of discharging judicial functions.
Secondly, the difference between the Courts and the Bars (which are substituting the Courts)
would have to be considered. Despite the differences, the two authorities are participating the
judicial power of the State. Thus, just as independence of the Court is shielded, it becomes
necessary to guard the independence of the Bars as well.
We largely need to appreciate the proposition of separation of powers as per the scheme of our
Constitution which is specifically handed under Composition 50. Simply put, it's the
discrimination of the functions of the State to the three organs as handed under the Constitution.
First, it's the Legislature (includes the Centre as well as the State), second, it's the administrative
authorities (for illustration Income Tax Department, the Police Department,etc.) and third is the
bar ( courts and bars). It has been emphasised that every organ of the State must perform and
exercise the functions entrusted to it without inching upon the functions terminated to the other.
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In Indira Nehru Gandhi v. Raj Nara13, it was held that division of three main functions is
recognised in our Constitution. Judicial power of the State is vested in the bar. Also, the
Administrative and the Legislature are vested with powers in their spheres. Judicial power has
lain in the hands of the bar previous to the Constitution and also since the Constitution. It isn't
intended that powers of bar be passed to or be participated by the superintendent or the
Legislature or that the powers of the Legislature or the Executive should pass to or be
participated by the bar. The Constitution has a introductory structure comprising the three organs
of the Republic viz. the Legislature, the Administrative and the Judiciary. It's through each of
these organs that the autonomous will of the people has to operate and manifest itself and not
through only one of them. Neither of these organs of the Republic can take over the function
assigned to the other. No Constitution can survive without a conscious adherence to its fine
checks and balances. “Just as Courts ought not to enter into problems entwined in the‘political
copse’, Parliament must also admire the save of the Courts. The principle of separation of
powers is a principle of restraint.”
In Chandra Mohan v. State of U.P14, it has been held that the people of our country come by
close contact with the inferior bar in comparison to the Higher Judiciary and therefore, it's no
less important and presumably indeed more important that their independence should be placed
beyond question than in the case of Superior Judges. Composition 50 of the Directive Principles
of State Policy states that the State shall take way to separate the bar from the superintendent in
the public services of the State. Simply stated, it means that there shall be a separate judicial
service free from the administrative control. In S.P. Sampath Kumar (supra), it was held that
judicial review is a introductory and essential point of the Constitution and Parliament can not
take it down else, the Constitution would cease to be what it is. Every organ of the State must act
within the limits of the authority and power deduced from Constitution. A question may arise as
to whether the superintendent has acted within the compass of its power. Originally,
determination of this question is within the sphere of bar because it requires interpretation of the
Constitution and the laws and this wouldpre-eminently be a matter fit to be decided by the bar.
Secondly, the protection swung to the citizen would come illusory, if it were left to the
13 (1987) 1 SCC 124
14 1975 Supp SCC 1
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superintendent to determine the legitimacy of its own action. The same principle applies for
determination of acts of Legislature as well. It's only an independent bar under the Constitution
assigned with the delicate task of determining what's the extent and compass of the power
conferred on each branch of Government, what are the limits on the exercise of similar power
under the Constitution and whether any action of any branch transgresses similar limits. It's also
a introductory principle of the rule of law which permeates every provision of the Constitution
and which forms its veritably core and substance that the exercise of power by the superintendent
or any other authority mustn't only be conditioned by the Constitution but also be in agreement
with law and it's the bar which has to insure that the law is observed and there's compliance with
the conditions of law on the part of the superintendent and other authorities. In view of the
above, it is clear that Article 50 of our Constitution has been interpreted and it has been held that
there is a requirement to have an independent judiciary for the purpose of adjudicating the
disputes. Judicial review by an independent judiciary has been considered to be a basic and
essential feature of the Constitution. “On a combined reading of the above decisions, it is
submitted that judiciary also includes authorities such as the Tribunals which are below the
High Courts and Supreme Court. Whenever the rights of parties are affected, the forum of last
resort is a judicial forum. This forum must necessarily be independent and must be in a position
to uphold the rights and condemn the wrong. The Supreme Court has expressed its displeasure in
at least five 15 if its Constitutional Bench decisions in the manner in which the minimum
standards of judicial independence as are required to be maintained have been diluted.
Digitalization of Judiciary
When the whole world was hit back the COVID-19 and everything suddenly shifted to online,
judiciary was not exception to it. Where on the one hand online services like Amazon, Zomato,
Ola bloomed, the court on the other hands had a huge setback. The ‘work from home’ conception
was accepted very easily by other field however, the judiciary faced a lot of challenges. It was
quite impossible to replace all daily physical activities to a a packed online one to one user
interface. The pendency of cases in various courts in India is staggering. The Economic Survey
of 2019-2020 dedicates a chapter to pendency of tax cases and revenue cases. The Survey
15 (i) L. Chandrakumar v. Union of India, (1997) 3 SCC 261;(ii) Union of India v. R. Gandhi, (2010) 11 SCC 1; (iii)
Madras Bar Association v. Union of India, (2015) 8 SCC 583 ; (iv) Madras Bar Association v. Union of
India, (2014) 10 SCC 1 and (v) Rojer Mathew v. South Indian Bank Ltd., 2019 SCC OnLine SC 1456.
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mistakenly argues for more court infrastructure and judges to solve the problem. On the contrary,
the existing infrastructure is grossly under-utilised. There are tribunals such as the Income Tax
Tribunal that function only half-day most of the time. To make matters worse, most courts are
closed for Christmas and summer vacations. Judges are not accountable for efficiency and
performance. Thousands of Indians cannot afford to go to court as legal costs are high and legal
procedures are complicated.
It's a fact that utmost duty matters don't bear particular sounds. Duty cases reach bars and
advanced courts after lower authorities record all the data. The High Courts and the Supreme
Court deal with issues or interpretation of the law. The bane of the court system is that attorneys
on both sides need to be physically present in court. Cases are frequently suspended due to
colorful reasons. It's in this environment that we make the case for a virtual bar.
In such a script, we can submit all the papers via correspondence. The judge can decide the case
grounded on all the available information. Wherever the judge requires interpretations, he or she
can seek the same through dispatch. Generally, the judge, after considering all the material
available, can pass a draft order and shoot it to both sides for any commentary which they may
want to give. Later, the judge can, after considering the commentary, pass the final order. This
will enhance the quality of the judgment and also exclude egregious crimes.
The use of the court hall to decide analogous matters is spare. Not only will a virtual bar result
in substantial savings in costs but will also lead to speedy disposal of cases. The productivity of
attorneys will increase substantially as visits to courts and long waiting hours will be more an
exception than rule. However, effectiveness will doubly, indeed treble, If this practice is
extended to other civil cases.
The fact that the governance of a court is defined by terrain makes no sense in matters analogous
as taxation and company law. The change to-particular electronic court sounds will change this.
All judges should be empowered to handle any case, wherever it originates. This will affect in
multiple advantages — the top bone being better utilisation of force and structure by equitably
distributing the work. Also, malpractices will be limited as there will no longer be familiarity
between attorneys and judges in a municipality.
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While India grapples with a extremity on the health and profitable front, we need to suppose out
of the box. We need a change in mindset regarding the way we work. Imagine the overall
savings and extent of improvement of the judicial ecosystem if 70 of the cases get decided
without going to court? If vested interests are kept down and cooperative will to initiate what is
for the common good takes precedence, a virtual bar can come a part of our lives.
A drive for complete digitization of the judicial system amid the lockdown is being echoed
throughout the country. This doesn't just mean conducting regular sounds over Video
Conferencing (although a vital first step). It's an occasion to revise the way the entire legal
system constitutionally functions beyond just this epidemic.
The opinions taken now in the short term will really have a continuing effect for months to
come, as social distancing morals are not likely to be completely eased in the foreseeable future,
atleast till a vaccine for the Novel Coronavirus is developed and posted.
The Supreme Court issued guidelines to reduce physical presence in courts so as to maintain
social distancing. Recently, Justice DY Chandrachud stated that video conferencing in the
Supreme Court was performing fluently and ane- form software was being developed and was in
the advanced stages of trial. Though this is a welcome development, ane- form system alone is
not nearly enough. There must also be a corresponding change in the manner of arguments. Any
analogous change in the system of form and arguing must be precisely analyzed so as to ensure
that the effectiveness and sanctity of the process are saved.
While it can't be disputed that shifting of the legal profession to a technology-dependent practice
is going to pose a large number of challenges, the same can be gauged in an effective manner, by
icing a numerous simple tweaks to the present way of practice.
The biggest chain in shifting the working of the courts to an online platform is the time
operation and related logistical issues that would be demanded to be ironed out to ensure the
functioning of the court in an effective manner.
The present form of practice, where attorneys are anticipated to be physically present in the
court till their cases are called out, is not the most provident operation of the time of those
engaged in the legal profession. Attorneys rehearsing regularly in the High Courts/ Supreme
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Court and other bars are abnegated to the fact that the first half of their day is to be spent staying
for their matter to be called up, if it indeed does get called up. Physical presence at all times
needs to be assured in the courtroom, lest the matter be is called out of order due to adjournments
in the former matters.
This diminishes openings to attend matters in multiple courts, due to deficiency of time and long
distances, constantly forcing attorneys to prioritize certain matters over others at the cost of
irking guests and harming bones’ character. Still, the technological shift can count this mystery
and save invaluable time, allowing attorneys to appear in different courts within beats of each
other, If planned properly. One of the biggest challenges that will be faced in administering such
an approach will be proper logistical operation in the calling out of cases. A shift to online
courts, still, would bear perfection in time operation since both the parties and the attorneys
would be anticipated to join the virtual courts at apre- determined time.
In such a script, it becomes imperative that the cases listed for the day are dealt with in a time-
bound manner to ensure lower online business ( so as to help overfilling of the system), and most
importantly, to ensure quick and effective justice. In this terrain, it becomes imperative to re
examine the 99th Report of the Law Commission published in the time 1984. The report tried to
address the question of certain time saving changes to the system of‘ Oral and Written
Arguments in the Higher Courts’. To address this question, the Law Commission released a
questionnaire aimed at seeking opinions of knowledgeable persons and bodies on certain
questions concerning the association and improvement of the functioning of the advanced
Judiciary.
Fast-forward to the present day, judges are now equipped with state-of-the- art computers and
other technological paraphernalia allowing quick and effective disquisition. Further, there now
live a plethora of programs analogous as Judicial Church at Supreme Court and High Courts and
other internship openings which not only allow the immature legal minds to be shaped by the
judges, but also provides judges with the resources to help them sift through large amounts of
information which was understandably considered insurmountable in 1984.
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“Written advocacy has played the part of the poor alternate kinsman to oral advocacy but
decreasingly, written advocacy has taken on a more significant and important part. Opening and
closing cessions are generally filed in civil matters and in prayers written arguments must be
filed before the hail. The written argument therefore provides an occasion to convert the Court
before oral address has any part.”
This would really cut down the time of oral arguments and streamline the whole process. It is,
still, material to note that a standardized format must be espoused so that brief and precise
Written Statements can be filed before courts.
The High Court of Delhi has stressed the rudiments of an effective written detail in the case of
Mst. Kiran Chhabra And Anr. Vs Mr. Pawan Kumar Jain. Though written submissions must not
be viewed as an volition to the oral arguments in toto, they may be the most effective tool to save
time. This would have the fresh advantage of weeding out matters with little merit, especially
those that do not have a prima facie case made out, especially in appellate courts and bars where
a large number of prayers are filed simply to defer from having to fulfill the awards passed by
the lower courts.
Another recommendation of the report was that in the advanced courts, a day may be set
incremental for holding conferences between judges. The practice of the Federal Court of the
United States of America was analyzed wherein the courts hear to arguments on 4 days and take
up one day to just go through written submissions and operations. Performing on only four days
may not be possible given the being weight on the Indian Judiciary. Still, High Courts can follow
the practice of the Supreme Court, which reserves two days of the week for miscellaneous
matters alone. Certain days can be kept for matters in which the proceedings are at a purely
procedural stage, which would take a truly limited amount of time.
In such a case, the functioning of the court would not be only for a numerous hours, and latterly,
time can be taken by the judges to confer amongst themselves on pressing points of law and to
read the operations of cases to be taken up in the coming week. Such a model would allow the
entire judicial structure-from the attorneys to judges-to save large amounts of time. Anotherpre-
needful for the success of such a model would be the laying down of a unified set of rules for the
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online functioning of all the courts. The Judiciary of England and Wales has come up with a
unified protocol regarding remote hail of civil matters and the same has been executed with
effect from March 26. The protocols give introductory guidelines as to the conduct of remote
sounds and have declared Skype as the platform to be used by all courts for online sounds. A
similar protocol needs to be developed for Indian courts across all authorities to ensure ease of
use and vacuity to the parties as well as practitioners.
A commone- form practice needs to be developed. As on- form is present in only a sprinkle of
courts across the country. Still, it's also necessary to ensure that the rules of analogous form are
harmonious throughout the legal system. Not only will this allow for faster form, it will also
allow for easier movement of lines in cases of transfer and prayers to advanced courts. This also
presents the bar with a unique occasion to reaffirm the faith of the public and ultimately
apportion with the cloak that covers the functioning of this most vital popular institution. In
multitudinous courts, the general viewing public can't indeed gain access to the court unless their
matter is being heard. This has really led to sustained negativity amongst the public, which has
little faith in the ideals of open justice and translucence. Fortunately the Supreme Court in the
case of Swapnil Tripathi v. Supreme Court of India16 has stated that in the interest of the general
public, live streaming of court proceedings in matters of public interest and Indigenous matters
must be eased.
This also has the added advantage of reaffirming the hourly- ignored ideal of a ‘Court of
Record’ under Composition 129. This has unfortunately regressed to mean simply publication of
the courts' judgments. Still, a court of record should be one that retains records of its
proceedings- including oral arguments in the course of cessions-to perpetual memory.
In the Swapnil Tripathi case17, the Supreme Court has painstakingly anatomized the practices of
several authorities around the world and the advantages of recap and broadcasting. However,
perhaps this epidemic is the drive demanded for our legal fraternity to decelerate down and
introspect, so that we may crop more effective, If other courts have been doing this for several
times now.
16 (2018) 10 SCC 628
17 ibid
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Conclusion
It's argued that the council is the applicable authority to make the policy choices it considers
necessary to increase public goods. Consequently, courts bound by the principle of executive
compliance would limit remedies in duty matters must, hence, be grounded on objective
principles of legislative interpretation. Still, given the overreaching governance that the Supreme
Court has developed as a result of the principles in cases similar as Tullow, the profit authority
and taxpayers are maybe correct in viewing the court of law as an institution with unusual and
extraordinary power to resolve duty disagreement in their favor. Judicial activism (that is enabled
by nebulous duty legislations) reduces abstract clarity of a taxpayer’s rights or a government’s
profit entitlements under the Indian legal system. Petitioners ( including government authorities
and taxpayers) must have certainty about the limited nature of the court’s powers and shouldn't
be misled into lengthy action in the stopgap of extraordinary remedies. However, the coming
stylish 119 AP SteelRe-Rolling Mill Ltd, If civil courts are to continue enjoying an extraordinary
governance in duty matters (where executive compliance is more applicable).v. State of Kerala
and Ors,18 IVRCL Structure and Systems Ltd. v. Commissioner of Customs,19 Zuari Diligence
Ltdv.20 Volition is for the courts to laboriously apply effectiveness in the duty administration by
relating and administering a broad set of well- innovated principles. According to the
Organization of Economic Development (OECD)21, the transnational norms for an effective duty
system include impartiality in duty issues, effectiveness, certainty and simplicity, effectiveness
and fairness, and inflexibility in the duty system. It's possible to apply these norms in a way that
doesn't bear the court to overreach its limits in judicial review. For case, if a particular
department has unreasonably delayed the issue of a instrument that a taxpayer requires for
carrying a duty impunity, it's applicable for the courts of law to first estimate the taxpayer’s
claims under similar broad principles. This may help a court identify a better result to the
taxpayer’s disagreement caused by executive detention – for case, a writ remedy. This principle-
grounded approach will insure that civil courts will be able of tone- regulation and may avoid
awarding unhappy rights and remedies in duty controversies. Further, government departments
18 2007) 2 SCC 725
19 (2015) 13 SCC 198
20 (2007) 8 RC 568
21 Robort Thornton Smith, Tax Treaty Interpretation by the Judiciary, (1996) 49 (4) The Tax Lawyer 845, 882. NUJS Law
Review 12 NUJSL.Rev. 2 (2019) April-June, 2019
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will be under stricter judicial scrutiny for icing an effective duty system and duty controversies.
Controversies that may be resolved at the stage of the departmental inquiry need not affect in
long times of pending action – a violation of a taxpayer’s licit anticipation to effective duty
collection may be remedied by warrants against executive authorities that unnecessarily delay the
duty administration process. In substance, the principle- grounded approach reinforces abstract
clarity about the complex nature of a duty system and the significance of the bar to exercise
executive compliance. I admit that a principle- grounded approach alone may not be sufficient to
address the incompatibility of judicial remedies with consonance in the duty system. A long-
term result to reducing the prevalence and pendency of duty controversies involves a deliberate
cohesion between duty administrations and the bar. A duty policy that's taxpayer and business
friendly, transparent and coherent will significantly reduce action. Till similar time that cohesion
is achieved in duty policy and duty justice, the remedies of the courts and executive practices
may remain inharmonious to a great degree and affect in public profit undesirably being
congested in the appellate medium.
Justice is not an idea or thought that can be achieved easily by any person in their daily lives. It
requires time, patience and money even for the slightest ordeal. Even when we see the blooming
state of tax matters in India is still very far from being easily accessible, with proper
administration and mutual efforts by the authorities and the taxpayers it can reach up to a level
where it don’t be treated as a threat by assesses. As litigation are hefty for even the MNCs, a
push towards the quasi judicial approaches like Authority for Advance Rulings (“AAR”) a
positive outlook towards it. Even promoting compounding of offences in certain cases would
leaded to huge improvement.
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BIBLOGRAPHY
1. Nicholas Shaxson, The Tax Conesus has failed, 2007 Volume 3, Number 2, Tax Justice Focus,
https://www.taxjustice.net/cms/upload/pdf/TJF_3-2_Final.pdf
2. Ashutosh Singh, Law of taxation and the Constitution of India, https://blog.ipleaders.in/law-taxation-constitution-
india/
3. Defination of tax, https://www.britannica.com/topic/taxation
4. Rachit Garg, Taxation: a comprehensive view, Dec 2017, https://blog.ipleaders.in/concept-taxation-comprehensive-
view/
5. 1 1962 AIR 1006, https://indiankanoon.org/doc/1404351/
6. Tax Effects on Foreign Direct Investment, February 2013, Policy Brief OECD,
https://www.oecd.org/investment/investment-policy/40152903.pdf
7. 120 Robort Thornton Smith, Tax Treaty Interpretation by the Judiciary, (1996) 49 (4) The Tax Lawyer 845, 882. NUJS
Law Review 12 NUJSL.Rev. 2 (2019) April-June, 2019
8. Tax Effects on Foreign Direct Investment, February 2013, Policy Brief OECD,
https://www.oecd.org/investment/investment-policy/40152903.pdf
9. Surbhi Gupta, Various Tac Authi\oritiea and their powers, Asian Journel of Managemnt, 2015,
https://ajmjournal.com/HTMLPaper.aspx?Journal=Asian%20Journal%20of%20Management;PID=2015-6-1-5
10. Sri Ram Govid, Dispute Resolution in tax matters, International Taxation , Vol 9, Sep 2013,
https://www.nishithdesai.com/fileadmin/user_upload/pdfs/Research%20Articles/Dispute_Resolution_in_Tax_Matters.
pdf
11. Robort Thornton Smith, Tax Treaty Interpretation by the Judiciary, [1996] 49(4) The Tax Lawyer 845, 882.
12. Richard K.Gordon and Victor Thuronyi, Tax Legislative Process in TAX LAW DESIGN AND DRAFTING (1st
ed., 1996).
13. Harish Salve, Retrospective Taxation – the Indian Experience, British Institute of International and
Comparative Law, available at https://www.biicl.org/files/6722_panel_two_harish_salve.pdf
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List of Law Colleges participating
Sr. Team UNIVERSITY SPEAKERS RESEARCHERS
No. Code
1 TC_36 Alliance School of Law Gayatri Prasad Birabara, Arindam Shi
2 TC_46 Burra Bhavya Sri Goud,
3 TC_37
4 TC_18 Amity University, Patna Jagnnath Prasad, Sourav Roy Ajeet Kumar
5 TC_27
6 TC_12 Bennett University, Times of Takshima Maheshwari, Pulkit Mohnot
7 TC_44
8 TC_15 India Group Damini Sharma,
9 TC_02
10 TC_33 Bhagat Phool Singh Mahila Seema, Sneha Rupal Siddhu
Vishwavidyalya
11 TC_30
12 TC_05 Bharata Mata School of Mohammed Haroon, Anjala Ashish Antony
13 TC_26 Legal Studies (BSOLS)
14 TC_40 Farhath V S Francis
15 TC_45
Chanakya National Law Aisha Singh, Gautam Arshita Anand
16 TC_25 University, Patna Badlani
17 TC_43
CMR University, School of Hariharan Y, Sushmitha Rohith Ganesh
18 TC_11
19 TC_24 Legal Studies Roy,
Dharamshastra National Law Shashank Sahu, Siddharth Sanskrati Jain
University, Aurangabad Joshi
Dr. B.R. Ambedkar National Siddhi Misra, Nancy Ritika Guj
Law University Aggarwal
Dr. Ram Manohar Lohia Saurav Kumar, Akash Gulati Mehul Raj
National Law University,
Lucknow
GD Goenka University Akram Raza R, Anurag Mahija Bhalla
Singh
Government Law College Riya Punamiya, Giridhar Ishika Soni
Mumbai Bhansali
Guru Gobindas University Ayushi Pandey, Shreyansh Astha Patel
Shrivastava
ICFAI Law School, The Divya Kumari, Nishka, Kanishk Kumar
Sinha
ICFAI Unicersity, Dehradun
JIMS Engineering Bhavesh Kaul, Bhavya Gaba, Lakshay
Management Technical Manchanda
Campus (JMTEC)
JSS Law College, Mysore C Thapo Shreshta, Neeraja B. P. Chengappa
Rajesh
Kirit P. Mehta School of Eshna Bajpai, Himani Atish George
Law, NMIMS University, Kumar,
Mumbai
National Law University, Soumya Verma, Jigyasa Archita Tiwari
Bhopal Dubey
National Law University, Aparimita Tiwari, Ayush Raj Mayank Gandhi
Ngpur
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20 TC_17 National University of study Zeeshan Ahmed, Anurag Astutya Prakhar
21 TC_34
22 TC_14 and research in Law Anand
23 TC_10
NMIMS School of law, Fatema Lokhandwala, Atreya Sudhanshu Singh
24 TC_42 Bangalore Jayaram
25 TC_03
Pravin Gandhi College of Juhi Shah, Bhavik Chheda Sakshi Bhanushali
26 TC_04 Law
27 TC_09
28 TC_08 Rajiv Gandhi National B. D. Rao Kundan, Nishant Utkarsh Jindal
University Of Law, Patiala Gaba
29 TC_01 (Punjab)
School of Excellence in Law Sri Siva Darshini. T, Sri Siva Darshini.T
(TNDALU), Chennai Roshini. S
School Of Law, CHRIST Priyakshi Kumra, Gurmehar Samyak Dalal
(Deemed to be University) Singh Chawla
Bangalore
Symbiosis Law School, Sukanya Sunil Bhat, Rishab Yasha Bachhawat
Hyderabad RC
Symbiosis Law School, Aastha Bansal, Gaurav Tanya Jaani
Noida Sahni
Symbiosis law School, Pune, Aakash Batra, Avanti Deval Rashi Priya
Symbiosis International
(Deemed) University
University of Petroleum and Adithya Kiliveedu, Mohit Udit Singh
Energy Studies Phulera
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List of contributors/ sponsors & Senior Advocates inducting the
winners for an internship
Contributors
Shri. M. Srinivasa Rao
Shri. Vinayak Patkar
Shri. Pravin Veera
Shri. Mitish S. Modi
Internship opportunities in the following Chambers
Shri. Ganesh Purohit, Senior Advocate, Madhya Pradesh High Court
Dr. K. Shivaram, Senior Advocate, Bombay High Court
Shri. Saurabh Soparkar, Senior Advocate, Gujrat High Court
Shri. V. Sridharan, Senior Advocate, Bombay High Court
Shri. Vikram Nankani, Senior Advocate, Bombay High Court
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About All India Federation of Tax Practitioners (AIFTP)
Inspired by the ideology to have a common platform for all those who practice taxation laws,
irrespective of their individual affiliations and to enable them to share the benefits of their learning,
experience and knowledge, eminent professionals from the fields of Direct and Indirect Taxes
conceived the idea of establishing an all India body for the tax practitioners. It was at the opening
ceremony of the National Conference held on 11-11-1976 organised by The Chamber of Income Tax
Consultants Mumbai under presidentship of Shri B. C. Joshi, that the doyens of the Professionals
christened the Association in the presence of former Chief Justice of India, Hon’ble Justice J. C.
Shah, distinguished Jurist Padma Vibhushan Dr. N. A. Palkhivala Senior Advocate and Shri Ram Rao
Adik, Senior Advocate, Advocate General of Maharashtra. Shri N. C. Mehta, Chartered Accountant,
Mumbai, was elected as Founder President and Shri P. C. Joshi was elected as Secretary General.
The AIFTP has completed 45 years of its purposeful existence.
The main object of AIFTP is to spread education in the matters relating to tax laws, other laws
and accountancy.
The AIFTP has a well-equipped registered Head Office at 215, Rewa Chambers, 31, New Marine
Lines, Mumbai-400 020. The total strength of National Executive Committee Members is 75 headed
by a National President, with a Deputy President, five Vice-Presidents and five Joint Secretaries.
The membership of the AIFTP includes Senior Advocates, Advocates, Solicitors, Chartered
Accountants and Tax Practitioners, practicing Direct or Indirect Taxes, from all States in the
Country. Its members enjoy a strong bond of fellowship leading to fraternal brotherhood amongst
professionals. The AIFTP is the symbol and spirit of national integration. As of today, the AIFTP is
the only voluntary professional organisation of our country which has 138 Professional Associations
as its affiliated members and more than 10,000 individuals as life members from 27 States and 4
Union Territories.
For conducting regular educational activities, the AIFTP has various Sub-Committees such as Journal
Committee, Law & Representation Committee (Direct & Indirect Taxes), ITAT Bar Associations’ Co-
ordination Committee, Membership Development & Public Relations and Times Committee.
The AIFTP publishes a monthly Journal covering the latest reported & unreported decisions of the
Supreme Court, High Courts and Income Tax Appellate Tribunals including the articles, opinions
and latest developments on direct and indirect taxes by experts in the field. The unique feature
is that every quarter, it publishes the gist of Important Case Laws published in 33 Tax Magazines,
www.itatonline.org from across the country. Yearly digest of case laws from 2012 onwards are also
available in the website www. aiftponline.org and www.itatonline.org which can be down loaded
by the members and tax professionals.
AIFTP publishes a monthly newsletter called AIFTP TIMES which is sent to all the members free
of charge. Newsletter contains important notifications, circulars and other topical information apart
from various activities of the AIFTP.
AIFTP website i.e. www.aiftponline.org, is an informative source for the members. The website is
regularly updated by a team of dedicated professionals. The Journal and Times are available on
the website.
AIFTP has been making representations for better tax law and tax administration. AIFTP and
Associate members have filed more than 35 Public interest petitions before various Courts for better
administration of tax laws and to up hold the independency of judicial forums. AIFTP regularly
sends Pre- and Post-Budget Memorandums. Many of the suggestions and the recommendations are
accepted. It regularly publishes books in simple language and question-answer format at a low cost.
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It has published more than 37 publications till date. Its first e-publication on the subject of Direct
tax Vivad se Vishwas Scheme 2020 and the same was released on 22-04-2020.
AIFTP in association with Income Tax Appellate Tribunal Bar Association, Mumbai has published
a publication named “Digest of Case Laws — Direct Taxes (including allied laws) (2003-2011)”, to
Commemorate the 150th Year anniversary of the Bombay High Court.
In the year 2015, “Interpretation of Taxing Statutes – Frequently asked questions”, which was
dedicated to Honourable Mr Justice S.H. Kapadia, former Chief Justice of India, (2017) Income tax
Appellate Tribunal – A Fine Balance, Law Practice, procedure and conventions – Frequently asked
questions – Dedicated to Padma Vibhushan Late Dr. N. A. Palkivala, Senior Advocate AIFTP has
published a publication titled (2018) “311 - Frequently asked questions on Survey – Direct taxes –
Dedicated to Hon’ble Justice Dr. B. P. Saraf, former Chief Justice of Jammu and Kashmir High Court.
(2020) 151 Land mark judgements of the Hon’ble Supreme Court of India - 151 years of Mahatma
Gandhi -” on the auspicious occasion of 151th birth anniversary of Father of the Nation Mahatma
Gandhi.
AIFTP jointly with the Association Members, organise National Seminars, Conferences and
Conventions in various parts of the Country to update its members on all aspects of Direct and
Indirect Taxation. A unique feature of the AIFTP is that its faculties, chairmen, trustees, office
bearers and members of the National Executive and Zonal Committees pay a registration fee and
bear their own travel and stay expenses. From April 2020 to September 2020 during the period
of Covid-19 Pandemic the AIFTP has conducted more than 100 Webinars on various subjects and
all webinars were without any charges. AIFTP as an association with the help of their members
have contributes an amount of Rs 10 lakhs to the Prime Minister Care Fund. In the year 1999 the
AIFTP had published a publication titled “NRI -A Legal companion” which was dedicated to the
War Heroes of Kargil and the entire surplus of the said publication was handed over to the Defence
fund.
For the development of the Tax Bar, the “Nani Palkhivala Memorial National Tax Moot Court
Competition” and “Research in Tax Laws” was started under the banner of “Palkhivala Foundation”
at Mumbai, wherein every year students from more than 25 leading law Colleges/Universities of
India participate in the competition and more than 100 Law Colleges/Universities are participating
in the Research Competition.
AIFTP has voluntarily adopted the Code of Ethics in its Constitution for its members. As per the
request of the Federation, Government of India had released Commemorative Postage Stamp in
Memory of Shri N. A. Palkhivala on 16th January, 2004. The then Hon’ble Prime Minister of India,
Shri Atal Bihari Vajpayee released the stamp at Mumbai.
Since 2004 AIFTP conducts regular International Study tours, in the first study tour a seminar was
held at Law Society of England and Wales on 24-04-2004, wherein a publication titled “India-A
Global Business Destination” was released at England. In the first International Tax Conference
which was held on 19th to 21st November 2009 at Mumbai wherein heads of professional
organisations from 16 Countries attended the International Tax Conference.
AIFTP is considered a National Integration of Tax Professionals of India. AIFTP have many eminent
professionals as members, some have been elevated as Judges of the Supreme Court, High Courts,
and Tribunals. Most of the leading Senior Advocates who practice on Direct or Indirect Taxes,
many past Presidents of Institute of Chartered Accountants of India, Chairman and member of Bar
Councils of various States, leading Lawyers, Chartered Accountants and Tax Practitioners of our
country are the esteemed members. With active support of the members of the AIFTP the flag of
the AFTP will fly high for the times to come.
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About The Goods & Services Tax Practitioners’
Association Of Maharashtra
The Goods & Services Tax Practitioners’ Association of Maharashtra (formerly known as The
Sales Tax Practitioners’ Association of Maharashtra / STPAM) is a State-level body of Sales Tax
Practitioners’ established in the year 1951. The Association has its membership spread all over
the State of Maharashtra comprising of Tax Practitioners and other professionals such as Chartered
Accountants, Cost Accountants, Company Secretaries and Advocates practising in VAT, Service tax
and allied laws. The Association has Regional Centres at district places to cater to the needs of
members practising in various districts of Maharashtra.
The STPAM now renamed as GSTPAM as all indirect taxes are subsumed in one law and that
is Goods and Services Tax (GST), is governed by its own constitution and is registered with the
Charity Commissioner and also under the Societies Act. The elected President, Officer Bearers and
15 members of the Managing Committee conduct the activities of the Association.
Its main object is to educate the public in general and the members in particular on Indirect Taxes
operative in the State of Maharashtra and whole of India.
The STPAM has produced stalwarts like Late R. V. Patel, Late N. C. Mehta, Late B. C. Joshi, P. V.
Surte, S. S. Gaitonde, P. C. Joshi, Late T. M. Chhatpar and Late J. K. Sheth, to name a few. The
Association is marching ahead with full confidence under their guidance to achieve its objects
and the young generation is taking over the leadership gradually from them and these stalwarts
in turn have reposed their full confidence in the young leadership. With the advent of GST, the
Association, now known as the GST Practitioners’ Association of Maharashtra has started spreading
awareness and knowledge on GST and has taken a big leap into the goods and service tax arena
for educating its members.
Last but not the least, whenever our motherland faces natural calamities or neighbour’s aggression,
the association is always in the forefront to render monetary help.
The highlights of activities of STPAM (now known as GSTPAM)
1. Publication of its journal ‘Sales Tax Review’ on 25th of every month.
2. Maintaining up-to-date library with the latest and important books on Sales Tax, Allied Laws
and all other books and e-library.
3. Holding Study Circle Meetings, Workshops, Seminars/Conferences, and Non-Residential and
Residential Refresher Courses in India and abroad.
4. Holding ‘Guidance Cell Meetings’ at Mazgaon Library.
5. Circulation of Short Notes on Tribunal decisions and full text of important Tribunal
decisions.
6. Conducting coaching classes, holding Mock Tribunals, Orientation Courses and Intensive
Study Courses.
7. Circulation of Gazettes and Trade Circulars.
8. To bring out small booklets immediately after amendments to Sales Tax and Allied Laws,
at a nominal price.
9. To hold meetings to educate the public on Sales Tax and other matters of public interest.
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10. Make Representations to appropriate authorities in the interests of trade, commerce and
industry.
11. To keep continuing the interaction and co-operation with other professional bodies for
holding seminars and cultural/sports activities.
12. STPAM (now GSTPAM) is a member of Advisory Committee of the Government of
Maharashtra which is formed to obtain suggestions and recommendations for proper
administration in the interests of trade, commerce and industry.
13. Publication of STPAM (now GSTPAM) News Bulletin on 10th of every month to cover short
notes on recent important decisions of the Maharashtra Sales Tax Tribunal and to provide
the news to members about the activities of the STPAM and other relevant information.
14. Members can also login to the STPAM (now GSTPAM) website ‘www.stpam.org’. It contains
the Sales Tax Review, News Bulletin, Trade Circulars, Acts, Rules, Notifications, DDQs,
Important Judgments etc. Members can also get information about forthcoming events of
the Association & latest updates on the ever evolving law.
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| Padma Vibhushan N. A. Palkhivala Memorial National Moot Court (Virtual) Competition 2021 |
About Maharashtra National Law University Mumbai
Maharashtra National Law University Mumbai, established under the Maharashtra National Law
University Act 2014 on 20th March 2014, is one of the premier National Law Universities in India
dedicated to the cause of advancement of legal education and promotion of society oriented research
in the field of law.
The primary goal of the University is to disseminate legal knowledge and processes of law amongst
the students and impart in them the necessary skills of advocacy, legal services, law reforms so
that they are conscious of utilizing these instruments for bringing in social transformation and
development. Bearing this goal in mind, on 1st August 2015, the University embarked on its
ambitious academic endeavour.
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| Padma Vibhushan N. A. Palkhivala Memorial National Moot Court (Virtual) Competition 2021 |
Judges of the Competition
Judges for the Finals
Hon’ble Dr. Justice Anita Sumanth, Madras High Court
Hon’ble Mr. Justice J. K. Ranka, Former Judge, Rajasthan High Court
Judges for the Semi Finals
Shri. Vikas Awasthy, Hon’ble Member ITAT
Shri M. Balganesh, Hon’ble Member ITAT
Mr. S Rifaur Rahman, Hon’ble Member ITAT
Shri. Amarjit Singh, Hon’ble Member ITAT
Judges for the Quarter Finals
Mrs. Aarti Vissanji
Mr. C. B. Thakkar
Mr. Hiro Rai
Mr. M. Subramaniam
Mr. Subash Shetty
Dr. Sunil Lala
Mr. Vinayak Patkar
Judges for Preliminary Round
Ms. Aarti Sathe
Mr. Aditya Ajgoankar
Mr. Ajay Singh
Mr. Anish Thakkar
Mr. Ashvin Acharya
Mr. Deepak Bapat
Mr. Devendra Jain
Mr. Dhanesh Bafna
Mr. Dinesh Tambde
Mr. Jitendra Singh
Mr. Ketan Vajani
Mr. Ketan Ved
Mr. Madhur Aggarwal
Mr. Mihir Naniwadekar
Mr. Milind Bhonde
Mrs. Nikita Badheka
Mr. Niraj Seth
Mr. Nitesh Joshi
Mr. Nitin Shah
Mr. Pramod Shingte
Mr. Pranav Kapadia
Mr. Rahul Hakani
Mr. Ratan Samal
Mrs. Rupa Gami
Mrs. Sujata Rangnekar
Mr. Vikram Mehta
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| Padma Vibhushan N. A. Palkhivala Memorial National Moot Court (Virtual) Competition 2021 |
Acknowledgement
Special thanks to
Hon’ble Shri G. S. Pannu, President ITAT
Hon’ble Shri Pramod Kumar, Vice President ITAT Mumbai Zone
&
Other Hon’ble Members for their encouragement and support for this competition.
PADMA VIBHUSHAN N. A. PALKHIVALA MEMORIAL
NATIONAL MOOT COURT COMMITTEE - 2021
Mr. M. Srinivasa Rao, Chairman
Mr. Aalok Mehta, Co-Chairman
Mr. Pravin Shah, Co- Chairman
Dr. K. Shivaram, Advisor
Mr. Shashi Bekal, Convenor
Mr. Mitish Modi, Member
Mr. K. Gopal, Member
Mr. Rahul Hakani, Member
Mr. S. S. Satyanarayana, Member
Mr. G. Bhaskar, Member
Mr. Vinayak Patkar, Member
Mr. Vinod Mhaske, Member
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| Padma Vibhushan N. A. Palkhivala Memorial National Moot Court (Virtual) Competition 2021 |
Notes
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