Citizens' Issues
Delhi ACB can arrest Delhi Police officials, holds high court

Justice Vipin Sanghi denied bail to Anil Kumar, who was head constable at Sonia Vihar's police station and arrested earlier this month while allegedly extorting money from a scrap dealer in the area

 

The Delhi High Court on Monday ruled that the city government's Anti Corruption Branch (ACB) has the "jurisdiction to investigate and prosecute" Delhi Police officials, and dismissed the bail plea of a head constable arrested by it on corruption charges.
 
Justice Vipin Sanghi denied bail to Anil Kumar, who was head constable at Sonia Vihar's police station and arrested earlier this month while allegedly extorting money from a scrap dealer in the area.
 
Anil Kumar's arrest by the ACB set off a turf war between Delhi Police and the city government. While the ACB booked him on corruption charges, city police hit back, registering an FIR of kidnapping him.
 
Commenting on the latest controversy between Chief Minister Arvind Kejriwal and Lt. Governor Najeeb Jung, where the central government has issued a notification on May 21 giving all power of transfer and postings to the Lt. Governor, the court said: "The executive fiat issued by the union government on May 21, 2015, is also suspect."
 
The court held the ACB "has jurisdiction" over Delhi Police officials and also questioned the 2014 notification of the union home ministry which allows the ACB to prosecute employees only of the Delhi government but not of the central government. Delhi Police comes under the administrative control of the union home ministry.
 
"It appears to me that the union government could not have issued the notification dated July 23, 2014, thereby seeking to restrict the executive authority of the GNCTD (Government of the National Capital Territory of Delhi) acting through its ACB to act on complaints under the PC Act only in respect of officers and employees of the GNCTD," Justice Sanghi said.
 
"By an executive fiat, the union government could not have exercised the executive power in respect of a matter falling within the legislative competence of the legislative assembly of the NCT, since the law made by parliament, namely the GNCTD Act, read with Article 239AA put fetters on the executive authority of the president," he said.
 
Ruling on the bail plea of head constable Anil Kumar, the court said: "Since the applicant is a Delhi Police personnel serving the citizens in the NCTD and the functions of the Delhi Police personnel substantially and essentially relate to the affairs of the GNCTD, in my view, the ACB of the GNCTD has the jurisdiction to entertain and act on a complaint under the PC Act in respect of a Delhi Police officer or official, and to investigate and prosecute the crime."
 
Denying bail, the court said there are the possibilities of the head constable misusing his official position to threaten or influence the complainant and other prosecution witnesses, or tamper with the evidence.
 
The ACB said the arrest of Anil Kumar was made after the scrap dealer made a complaint on the anti-corruption helpline 1031 about Anil Kumar demanding Rs.20,000 from him and he managing to pay him half the amount. A case under sections of Prevention of Corruption Act was then registered.
 
Justice Sanghi said that the Lt. Governor "must act on the aid and advice of the council of ministers" and that the mandate of the people, with whom the sovereign power resides, "must be respected by the Lt. Governor in respect of matters which fall within the domain of the legislative assembly".
 
"Delhi shall not be administered by the president through the Lt. Governor in respect of matters over which the Legislative Assembly of the NCT has authority to make law," he added.
 
Reacting to the verdict, a senior government official said: "It is a victory of the people of Delhi. The attempts to curb the powers of the Delhi government have been rebuffed."

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How Modi government has just injected more uncertainty in I-T assessments
The unwarranted amendment in Section 263, empowering the Income Tax Commissioner to disrupt settled assessments based on personal opinion will adversely affect the fragile business environment in India and lead to fresh litigations
 
Consider this – the assessment in your case gets completed where the tax officer allows the expenses claimed in the profit and loss account after verification on a sample basis instead of a 100% verification. Do you think your tax wrangles are over? Consider another case – While completing the assessment of a taxpayer, the tax officer accepts written confirmation statements given by creditors but does not consider it necessary to summon the creditors to record a statement on oath. Would you think that this would be the end of the matter? 
 
If your answer to the above was “Yes”, be prepared to be surprised. The amendments made by the Finance Act, 2015 empower the Commissioner of Income-Tax (CIT) to revise the assessments simply because he is of the opinion that the assessing officer did not make inquiries or verification, which the Commissioner himself would have made if he were the assessing officer. 
 
Prior to the amendment, section 263 of the Income Tax (I-T) Act empowered the Commissioner to cancel or modify a settled assessment if he considered that an order passed by the assessing officer was “erroneous and prejudicial to the interests of the Revenue”. There are a plethora of court rulings, which serve as a framework for the interpretation of the phrase “erroneous and prejudicial to the interests of the Revenue”. 
 
What has been certain over the years is that the Commissioner could not cancel orders based on an opinion, which differs with that of the assessing officer. In other words, the Commissioner was duty bound to conclusively prove that an order was both erroneous as per law and also prejudicial to the interest of the revenue so as to assume jurisdiction to cancel or modify an assessment. 
 
This settled position has been upended by the amendments to section 263 giving a Commissioner wide, sweeping powers to cancel or modify settled orders if, in his opinion: 
 
(a) the order is passed without making inquiries or verification which, should have been made; or 
(b) the order is passed allowing any relief without inquiring into the claim; or  
(c) the order has not been made in accordance with any order, direction or instruction issued by the Board under section 119; or
(d) the order has not been passed in accordance with any decision which is prejudicial to the assessee, rendered by the jurisdictional High Court or Supreme Court in the case of the assessee or any other person.
 
An opinion is formed by a person based on his subjective analysis of the facts and is susceptible to be tainted because of personal bias. These factors lead to situations where even expertly trained, learned and skilled persons can arrive at a diametrically opposite conclusion on the same set of facts. With this in mind, this amendment appears to be archaic and regressive as it will only serve to erode certainty with the Commissioner being permitted to annul or modify concluded assessments based on his personal opinion on the facts.  
 
In the current business environment where the Indian tax administration has been subjected to intense criticism in recent times, this amendment empowering the Commissioner to disrupt settled assessments on the basis of a personal opinion further dampens the mood. There is general consensus of opinion amongst taxpayers that this amendment is unwarranted and will adversely affect the fragile business environment prevailing in the country. In every assessment that is concluded, the specter of section 263 will now loom large serving a telling blow to taxpayer confidence. 
 
The Government’s basis for the amendment is that it has become necessary to ‘provide clarity on the issue’. This comes at the back of claims that the Government is doing all it can to create a non-adversarial tax regime in India. With amendments of such nature however, the Government itself is expressly permitting a high level of subjectivity in tax matters. This will only lead to fresh litigation, a situation, which does not reconcile with the Government’s dream of a non-adversarial tax regime. 
 
(Rakesh Nangia is Managing Partner and Rahul Jain is Partner at Nangia & Co)

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COMMENTS

CA Wali Ur Rehman

2 years ago

This is almost against the principles of ACCHE DIN for taxpayers and the commitments of Modi Govt to stop tax terrorism.

IPL 2015: In the arena of youngsters, 'golden oldies' shimmer
Mumbai Indians' 35-year-old offie Harbhajan Singh yet again showed why he is called a fighter. The feisty cricketer sizzled with the ball, and at times even with the bat, to play a crucial role in his team winning their second IPL crown
 
Cricket's shortest format is usually said to be suited for the fresh legs and young blood but a number of players in the latest edition of Indian Premier League (IPL) have yet again proved that age is just a number.
 
If 17-year-old Sarfaraz Khan fearlessly hitting bowlers is a sight to behold, veterans like Ashish Nehra, Chris Gayle and Brad Hogg have turned back the clock and literally made the adage 'old is gold' come true.
 
Spearheading the Chennai Super Kings (CSK) pace attack, Nehra stood out scalping 22 wickets at 20.40 runs apiece.
 
"I have got three Man-of-the-Match awards this season and that says it all. It is not easy for a fast bowler to pick up that many awards in one season. People are noticing it more because I am 36 and a guy at this age is doing something unbelievable in Twenty20s," the left-armer said.
 
Mumbai Indians' 35-year-old offie Harbhajan Singh yet again showed why he is called a fighter. The feisty cricketer sizzled with the ball, and at times even with the bat, to play a crucial role in his team winning their second IPL crown.
 
Bowling with his usual guile, the 'Turbanator' took 2/26 against CSK in Qualifier 1 to take Mumbai to their third final. In the summit clash at the Eden Gardens, he yet again proved to be Chennai's nemesis, scalping the prized wickets of dangerous opener Dwayne Smith and middle-order mainstay Suresh Raina.
 
With 18 wickets to his name in IPL-8 and a 19-ball fifty to boast, the selectors did fulfil the man's 'burning desire' to play for India again as he made a comeback to the national Test squad for the Bangladesh tour after more than two years.
 
Yet another 'oldie' who has drawn the spotlight is Kolkata Knight Riders' (KKR) chinaman bowler Bradd Hogg. At 44 - the oldest player in IPL history - the Australian made full use of the limited chances he was offered. Besides bamboozling the batsmen, he was also a livewire on the field.
 
Playing just his second game this season, Hogg took 4/29 to enable KKR canter towards a seven-wicket victory over CSK at home. With nine wickets to his name from six matches, the tweaker earned lavish praise, both from his teammates and rivals for his grit, determination and hard work.
 
CSK all-rounder Dwayne Bravo, who took 26 wickets to win the purple cap, is also no youngster. At 32, the Trinidadian was skipper Mahendra Singh Dhoni's go-to-man and his knack to pick up wickets at crucial junctures powered the team to their sixth IPL final, although they faltered at the last hurdle losing to Mumbai Indians by 41 runs.
 
Delhi Daredevils did finish a poor seventh in the standings, but their 36-year-old South African leg-spinner Imran Tahir earned plaudits. Picking up 15 wickets, he contributed significantly in the team's five victories in 14 games.
 
Well, it's not the bowlers alone, in the batting department too, the weather-beaten pros have left their mark.
 
Only four centuries were scored in the latest edition of the cash-rich league and the youngest of the four centurions is Royal Challengers Bangalore's (RCB) AB de Villiers, who is 31. Arguably the best batsmen in contemporary cricket, the South African skipper notched up 513 runs from 16 matches to be the RCB's batting mainstay.
 
RCB opener Gayle, at 36, yet again lived up to the billing of being the world's most destructive batsman. Besides winning the maximum sixes award with as many as 38 hits over the boundary, the Jamaican cracked his fifth century in IPL, scoring 117 against Kings XI Punjab. Plundering 491 runs this season, he has now 3,199 runs to his name to be third highest run-getter in IPL history.
 
The other centurions -- Shane Watson of Rajasthan Royals and CSK's big hitting opener Brendon McCullum, both 34, -- have defied age to contribute significantly for their respective teams.
 
After going down to Mumbai in the final, CSK skipper Dhoni attributed the absence of McCullum as one of the reasons for his side's loss.
 
The opener, who left the tournament to join his New Zealand side for the Test series in England, had scored 436 from 14 outings, giving a solid start in most matches.
 
He may not have lit the stage on fire, but CSK's 40-year-old Michael Hussey once again justified his nickname -- Mr. Cricket. Still fit as a fiddle and a safe fielder, Hussey struck a 46-ball 56 against RCB to shepherd CSK through a tricky chase and take them to their sixth final.

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