Filling of Appeal & Personal Hearing before CESTAT

In today’s business environment, it is next to impossible for any business entity to keep itself away from tax litigations either Direct Tax or Indirect Tax. Once an entity falls under its net, it will be continued until it becomes the part of the entity’s operations. In past few years, tax litigations has sharply rose in every region of our Country which may be driven because of complex business transactions, ever changing tax laws and aggressive tax authorities. Sometimes, the officials during assessments/audits don’t even spare the transactions supported by judgements in favour of assessee and adopt different view by distinguishing the facts with the covered matters. They might be justified in their action as it is part of their job as they have to meet their targets. Well I am not here to review or judge the actions or inactions of tax authorities, the purpose of this article is to bring out the essential information for filling appeal & physical appearance before CESTAT.

The assessee may appear in person or by authorized council on its behalf before CESTAT. The council appearing for the tax payer should have all the details relating to facts of the case, submissions made before lower authorities and contrary views adopted by them in their respective orders. Careful examination of these details is always desired for preparing the Grounds of Appeal and each such Ground, to the extent possible, should be supported by judicial precedents so as to strengthen the appeal submission. Nothing can be proved lawful unless the rules or laws applicable during the period of dispute have been properly understood & referred.

Two things should be remembered while mentioning the case laws i.e. the Favourable Case Laws & Unfavourable Case Laws on the subject matter. We need to see how we can differentiate the facts of our case with the facts of the unfavourable cases. One must also see the finality of any case law referred in submissions. For e.g. If a case has been decided in favour of assessee by Tribunal, it may be contended before High Court where the order of Tribunal is reversed or vice-a-versa. Thus, a proper research on the selection of case laws is required considering the current status of such cases.

There is a saying that “More you sweat in practice less you bleed in war”. Likely, a council should do enough practice with their submissions so that they would be ready to answer the questionsraised by the Members during the hearing. One should also take care of the language to be used during hearing as it should not be offensive or insulting to anyone. The council may also prepare a summary or notes of the submissions which may be useful at the time of hearing.

I have summarised here few important questions pertinent to preparing of paper book & filling appeal with CESTAT:

Q.1 What are the attachments & other essential requirements for filling Appeal (Paper Book) with CESTAT?

1. Duly Filed ST-5 in Four copies;
2. Paper book should be indexed and serially numbered;
3. Stick Court Stamp Fee of Rs.5 on Form ST-5;
4. Power of Attorney in Original in favour of council to represent the matter;
5. Copy of Order In Appeal in Original or certified copy by i.e. Order against which appeal is preferred;
6. Copy of Order In Original i.e. Order passed by Adjudicating Authority, if different from Order in Appeal;
7. Draft as Fee of filling appeal in favour or “Assistant Registrar, CESTAT _____” prescribed as under;

Amount of Duty Demanded	Fees (INR)
Rs.5 Lakhs or less	1,000
More than Rs.5 Lakhs up to Rs.50 Lakhs	5,000
More than Rs.50 Lakhs	10,000

 Rs.500 is payable in case of Application made for Stay or Rectification of Mistake or for restoration of an appeal or an application.

8. Copy of Challan against the payment of impugned Demand, if no Stay petition is proceeded.
9. Paper book should be centrally punched & tagged and each set should be tagged separately also.

Q.2 Whether an appeal can be filed without depositing duty contended or demanded raised under impugned order?

Ans. Yes. The appellant can file a Stay Application with CESTAT for obtaining stay on the operations of the impugned Order in Appeal or to get waiver from any pre-deposit until the final decision. The Stay Application may be filled either prior to or along with the Appeal itself. It will be considered as separate appeal and will be disposed after hearing the case from both sides. CESTAT may or may not completely or partially waive the requirement of any pre-deposit if the appellant has prima facie strong case.

However, you all must have read about the CBEC Draconian Circular No. 967/01/2013 – CX dated 01-01-2013 which requires payment of disputed demand on the issue of order by Commissioner (Appeals) confirming demand in Order in Original. This circular takes away the statutory right of the aggrieved party for making application of stay on the order of Commissioner (Appeals). It has caused chaos among tax payers & the tax practitioners as its main purpose was to collect duty at the earliest possible point. But this dream of the Government shattered as the circular was quashed by several High Courts & by the CESTAT Bangalore which says that “No coercive action during pendency of stay application”.

Although the operation of aforesaid Circular is being stayed by several High Courts, the said Circularhas not been withdrawn by the Board.

Q.3 How long a Stay Petition shall be valid?

Generally, the validity of a Stay Order is mentioned in the Order itself. But in case it is not mentioned then the Stay will be expired within 180 days from the date of Order. Prior to 11-05-2002, a stay order operates until the disposal of appeal but consequent to amendment in Section 35(C) of Central Excise Act any stay order shall be vacated if the related appeal is not disposed of within 180 days from the date of stay order. This amendment invites great objections as it punishes the assessee for the reasons beyond his control. Apex Court comes to the rescue of the genuine assessee who is not responsible for the delay in disposal of appeal by Tribunal.

Consequently, there is a Board Circular No. 925/15/2010-CX dated 26-05-2010 which clarifies that a party will be allowed to apply for an extension of stay order if the appeal is not disposed of within the time limit. There shall be a reasonable opportunity given to the party for seeking further stay before initiating any recovery proceedings. Therefore, CESTAT will decide the question of extension of stay order and the same will be allowed if there is a good reason and not attributable to the assessee.

A council must remember to apply for such extension of stay order on or before the expiry of 180 days from the date of such order.

Q.4 How many times adjournment may be sought from CESTAT?

Each of the party in an appeal can seek adjournment from CESTAT for a reasonable cause which may be allowed by the tribunal after recording the reasons in writing but not for more than three times.

Q.5 Whether an appeal can be accepted before CESTAT even if it does not meet the criteria of Monetary Limit?

Monetary Limit for filling an appeal with CESTAT is Rs.5 Lakh with or without interest or penalty. However, the Member may allow any appeal where the amount of duty contended is less than the aforesaid limit.

Q.6 Whether additional Grounds of Appeal can be introduce before CESTAT which were not taken up before lower authorities?

Yes. The petitioner can bring any new ground of appeal which was not taken before lower authorities.

For e.g. In case the disputed demand has been raised by invoking extended period but it was not contended before lower authorities that the provisions of extended period are not applicable then this Ground can now be taken before CESTAT to defend the demand.

Q.7 Whether additional documents or evidences can be presented to Member during hearing?

Yes. The council may produce any evidence or case laws, not enclosed with paper book, in support of their submission at the time of hearing and the Member may allows such documents as part & parcel of paper book. In such situation, the council should bring three copies of such documents as two copies will be required for Members (in case of Two Member bench) and one for departmental representative.

Hope this article will help the beginners in preparing appeals & presentation before CESTAT.

Changes in relation to Securities Transaction Tax

NATIONAL STOCK EXCHANGE OF INDIA LIMITED

http://www.nseindia.com/content/circulars/FATAX23500.pdf

Trademark Registration

Trademark Registration: 

(Procedure of Registration of Trade Mark) 

Today is the era of competition. In such competitive world, the only way to sell the goods in the market is the Brand Value or the Brand Name of the Product or the Company. Many a times, it has been seen among various business houses that the two businessman using the same name or the same logo or the same brand. In such condition, the only loss is to the customer who buys the product of that company which is just a fake one using the name/ logo/ brand of the reputed company. In such a condition, it becomes difficult for the reputed company to keep the faith and trust of the public over their product. To ensure that no loss should be encountered by the Real owner, the concept of TRADE MARK came into existence.

The Trade Marks Registry was established in India in 1940 and presently it administers the Trade Marks Act, 1999 and the rules there under. It acts as a resource and information centre and is a facilitator in matters relating to trade marks in the country. The objective of the Trade Marks Act, 1999 is to register trademarks applied for in the country and to provide for better protection of trade mark for goods and services and also to prevent fraudulent use of the mark. The main function of the Registry is to register a trademark which qualifies for registration under the Act and Rules.

A trade mark (popularly known as brand name is a visual symbol which may be a word, signature, name, device, label, numerals or combination of colors used by one undertaking on goods or services or other articles of commerce to distinguish it from other similar goods or services originating from a different undertaking.

Any organization that is planning its entry into the market should definitely keep IPR in mind. Because the benefits will not just make you richer but can far outweigh the other tangible benefits you get from your business.

Legal requirements for registration of trademark:-

1. It should be capable of distinguishing the goods or services of one undertaking from those of others.
2. It should be used or proposed to be used mark in relation to goods or services for the purpose of indicating or so as to indicate a connection in the course of trade between the goods or services and some person have the right to use the mark with or without identity of that person.
   

Procedure of Registration of Trademark of product label/ company name/ logo/ trade name etc.
Any person claiming to be the proprietor of a trade mark used or proposed to be used by him mayapply in writing in prescribed manner for registration. The application should contain the trade mark, the goods/services, name and address of applicant and agent (if any) with power of attorney, period of use of the mark and signature. The application should be in English or Hindi.  It should be filed at the appropriate office. Following is the described procedure for applying of the Trademark:

1. Search and decide for the Name, Device, logo, Label intended to be applied as Trademark. It may be any name of the product/ goods/ or of the company in whose name the trade mark can be applied. Be noted that the name/ o the label etc you are going to apply for should be unique one and should not match with the already existing product/ trade name otherwise the name applied by the applicant will get rejected and whole fees deposited by the applicant will go waste. For this the applicant should check on the site of Trade Mark about the class of product whether any name/ label, he intends to apply is existing or not.

Trademark classes: There are totally 45 classes listed in Fourth Schedule of the Trademarks Act. Each class provides a list of goods and services and a trademark that is intended to be used for any goods or services has to be registered under the class that lists such goods or services.Registration of a trademark in one class gives rights to the owner to prevent others from using the same or similar trademark with any goods or services relating to entries under that class.Registration of trademark in one class does not prohibit others to use or register the mark for entries in other classes. If any goods or services are not specified in any of the classes, the Registrar will have to discretion to determine the class under which a trademark used for such goods or services can be registered.

2. Filing an Application: Any person claiming to be the proprietor of the trademark used or proposed to be used by him can apply. The application may be made in the name of an individual, partners of a firm, a Corporation, any Government Department, a Trust or joint applicants. The proposal to use the trademark may be by a Company to be formed or by an individual.

A Trademark application has to be made on TM1 in triplicate along with five additional representations of the Trademark for registration of single mark in single class by paying a stipulated fees as may described by the Department from time to time. In order to apply for more than one class, a Single application can be made on TM51 in triplicate along with five additional representations by paying prescribed fee per class. To apply for more than one trademark (Series of Marks) for same class of goods, a single application can be made on TM8 in triplicate along with five additional representations by paying the prescribed fee per mark per class.

An agent/ advocate can file application on behalf of his client who empowers him through a power of attorney (Form TM-48) on Rs.100 Stamp Paper.

Documents Required are:

1.      The self attested Identity Proof and Address proof of the Applicant i.e. Proprietor/ Partners/ Directors

2.      Proof of business establishment

3.      The logo/ label to be registered

4.      Letter head of the firm along with stamp and sign

Examination

The application is examined within one month from the date of application to check if it meets the requirements of the Trademarks Act 1999.

Requirements provided under Section 9 & 11 are as follows: The trademark,

1. Should be distinctive;

2. Should not be descriptive;

3. Should not be generic;

4. Should not be deceptive;

5. Should not hurt the religious sentiments of any class or section of the citizens of India;

6. Should not contain scandalous or obscene matter;

7. Should not contain marks prohibited by Emblems and names (prevention of improper use) Act, 1950;

8. Should not be the shape of goods which results from the nature of the goods;

9. Should not be identical with an earlier trademark;

10. Should not be prevented by virtue of any law and in particular the law of passing off; and

11. Should not be a well known trademark.

If the trademark meets all requirements of the Act, the trademark will be accepted for registration. If there are any objections, the registry will send an examination report stating the reasons for objection. The response to the objections can be filed within one month from the date of receipt of the examination report. The response can be sent by way of an affidavit and a hearing can be requested if necessary.

Publication

If the trademark is accepted for registration, the details of the application will be advertised in the Official Journal of trademarks within six months from the date of acceptance of application.

Opposition

On advertisement, any person who believes that a trademark should not be registered may oppose its registration within three months from the advertisement date stating the grounds of opposition. The opposition process is important as it prevents others from acquiring a trademark in respect of an already existing brand name. For company managers, strategists and advisors, it is a useful legal tool to avoid risk of brand dilution, and hence an aspect of legal liability management. All the requirements of the Trademark Registration are valid grounds for opposition. If no opposition is filed against the application, or if opposition is unsuccessful, the trademark will be registered.

Note that a trademark can be revoked even after it is granted, if somebody successfully challenges it on the ground that it is confusingly similar to an already registered trademark.

Registration

Trademarks Registry of India will then send a Certificate of Registration and record the details of the trademark in the Register of trademarks. The trademark will be registered from the date of filing of application, not from the date it was examined or accepted.

FORMS USED FOR MAJOR TRADEMARK TRANSACTIONS

The First Schedule to the Trademark Rules, 2002 prescribes the different procedural forms and necessary amounts of fees required for all trademark-related transactions, of which some examples have been given below:

• For filing new applications- There are prescribed forms depending on the nature of Application such as Form TM-1, TM-2, TM-3, TM-8, TM-51 etc.
• To file a Notice of Opposition to oppose an application published in the Trade Marks Journal- (FormTM-5).
• For Renewal of a Regd. Trademark-(Form TM-12).
• Surcharge for belated renewal – (Form -10)
• Restoration of removed mark – (Form TM-13)
• Application for rectification of a registered trade mark – (Form TM-26)
• Legal Certificate – (Form TM-46)
• Official search request for trademark – (Form TM-54)
• Preliminary advice of the Registrar as to the registrability of a mark – (Form TM-55).
• Copyright search request and issuance of certificate – (Form TM-60)

Renewal of Trade Mark: The term of protection of a trademark is unlimited. However, it has to be renewed every ten years from the date of filing to keep it alive. Non-use of the trademark for a period of five years would result in loss of the trademark. However, non-usage of a registered trademark for a continuous period of five years is a valid ground for cancellation of registration of such trademark at the behest of any aggrieved party.

Conclusion: Registration of a trademark is not compulsory. However, registered trademarks have additional benefits when compared to unregistered trademarks. Registration of trademarks allows the Owner of the trademarks to file infringement suits for violation of his rights whereas the unregistered user has to search remedies in common law.

Procedure to Form/Incorporate Limited Liability Partnership (LLP)

STEP WISE FORMALITIES FOR FORMATION OF A NEW LLP

Persons desirous of forming a Limited Liability Partnership Firm must adhere to the step by step procedure as discussed below:

1. Requirement of Partners
2. Apply for Designated PartnerIdentification Number (DPIN) and Digital Signatures, if does not have;
3. Selection of name for the proposed Firm;
4. Drafting of LLP Agreement for Firm;
5. Stamping, digitally signing and e-filing of various documents with the Registrar;
6. Payment of Fees;
7. Verification of documents/forms by ROC;
8. Obtaining Certificate of Incorporation.

1.    Requirement of Partners:

To form a LLP, there should be Minimum two partners and at least two shall be designated partners having DIPN. In case of body corporate as partners, their nominee can be act as designated partners. Out of two designated partners, one must be resident in India. (Who has stayed in India for a period of not less than one hundred and eighty two days during the immediately preceding financial year)

2.    Designated Partner Identification Number (DIN) & Digital Signature Certificate (DSC):

• DPIN
  

All designated partners of the proposed LLP shall obtain “Designated Partner Identification Number(DPIN)”. You need to file eForm DIN-1 in order to obtain DIN or DPIN. In case you already have a DIN (Director Identification Number), the same can be used as a DPIN.

Note: Copy of PAN card mandatory for all Indian Applicants & Copy of Passport mandatory for foreign national or NRIs. In case of Partner is foreign national or NRIs identity & address proof should be notarized by an Indian Consulate of home country & address proof should not be older more than 1 year from the date of filing of form.

• DSC

Digital Signature Certificate (DSC) is the digital equivalent (i.e. electronic format) of physical or paper certificates. A            digital certificate can be presented electronically to prove your identity, to access information or services on the Internet or to sign certain document digitally. Since, Ministry of Corporate Affairs (MCA) accepts electronic submission of Forms on its portal the DSC is mandatory for all the users.

Documents required for obtaining DSC:    

Digital Signature Certificate application form (duly signed by applicant) & all same documents as required in DIN application form

3.    Selection of name for the proposed LLP:

The Partners have to provide at least 6 names in the order of their preference/priority. The partners can themselves search for the available names by visiting the MCA website.

After selecting name for the LLP time to file Application of Name Reservation with ROC in e-form 1, the applicant needs to give 6 proposed names in preferences/priority along with their meaning & significance of each word. This form should be digitally signed by the Designated Partner of Firm.

4.    Drafting of LLP Agreement for Firm:

LLP agreement has to be drafted line with LLP Act. It is not mandatory to file LLP agreement at the time of registration and same can be file with in 30 days. If no agreement is framed, provisions of Schedule I of the LLP Act shall be applicable.

5.    Stamping, digitally signing and e-filing of various documents with the Registrar:

After name approval following forms to be filed with ROC on the MCA website:

1)    Form-2 (Incorporation document & subscriber’s Statement), along with No. of Partners & Personal details thereof, Address Proof of Firm, Copy of Subscriber’s Sheet including consent. This form should be digitally signed by the Designated Partner & Chartered Accountant.

2)    Form-2A (Details in respect of designated partners and partners of Limited Liability Partnership), along with Copy of Subscriber’s Sheet including consent. This form should be signed by Designated Partners.

3)    Form-3 (Information with regard to Limited Liability Partnership Agreement and changes, if any, made therein). This form should be signed by Designated Partners.

6.    Payment of Fees:

After filing of documents online, we need to make payment to ROC fees & Stamp Duty electronically which is based upon the Authorised Capital of the LLP. Please refer to the “Fee Calculator” link on the MCA website for the ROC fees.

Note: Stamp Duty varies as per the “State” in which the LLP is to be registered. Please refer to the“Stamp Duty” link on the MCA website

7.    Verification of documents/forms by ROC:

After payment of all stamp duties & ROC fees, ROC scrutinizes all the documents & forms. In case of any objection/queries raised by ROC, resubmission of form may also require.

8.    Obtaining Certificate of Incorporation:

Once all the Forms are duly approved by ROC, the digitally signed “Certificate of Incorporation” is emailed to the Designated Partner.

As part of Green Initiative by the MCA, few Certificates including “Certificate of Incorporation” are now issued only in the electronic format i.e. softcopy (having digital signature of ROC). Once the Incorporation Certificate is received, LLP can start its operations.

Property can be sold on GPA and Agreement to Sell –HC

Supreme Court in Suraj Lamp and Industries (P) Ltd. (2) vs State of Haryana reported has not said that in no case a conveyance can be registered by taking recourse to a GPA. As long as the transaction is genuine, the same will have to be registered by the Sub-Registrar. There is distinctly a specific reference to the fact that, a person may enter into a development agreement with a land developer or builder for development of a parcel of land or for construction of apartments in a building, and for this purpose a power of attorney empowering the developer to execute sale agreements, can be executed.

Therefore, in my view, the directions contained in the impugned circular dated 27.04.2012, are quite contrary to the observations made by the  Supreme Court in Suraj Lamp and Industries (P) Ltd. Accordingly, the same are set aside.

It will, however, be open to the respondents to examine the genuineness of the transactions which are reflected in the document(s) filed, at the time of registration of conveyance. In case the Sub- Registrar comes to a conclusion that the transaction is not genuine, as would be expected, he would call upon the persons/ entity presenting the  document(s) to explain their case and thereafter, if not convinced, pass a speaking order as to why the documents is/are not liable to be registered.

IN THE HIGH COURT OF DELHI AT NEW DELHI

W.P.(C) 4585/2012 and CM No. 9515/2012

PACE DEVELOPERS AND PROMOTERS PVT LTD

versus

GOVT. OF NCT THROUGH ITS SECRETARY

CORAM:

HON’BLE MR. JUSTICE RAJIV SHAKDHER

O R D E R

30.04.2013

1. In this writ petition the following two prayers have been made:

(a) Issue a writ of certiorari and after calling for the relevant records of the impugned circular quash the illegal circular bearing no. F.1(92)Regn.Br./Div.Com./2012/298 dated 27/4/2012 issued by respondent no. 2 as violative of petitioner’s Fundamental Rights guaranteed under Article 14 and 19(1)(g) of the Constitution and also the said circular is against the judgment of the Supreme Court delivered in Suraj Lamp and Industries (P) Ltd. (2) vs State of Haryana reported in (2012) 1 SCC 656 and the relevant laws and/or;

(b) Issue a writ of mandamus or an appropriate writ, order or direction in the nature of mandamus and direct the respondent- department to forthwith register the sale deed;….

2. The brief facts and the background in which the writ petition has been filed are as follows:

2.1 The petitioner company entered into a collaboration agreement dated 11.09.2011 with one Mrs. Rani Puri, owner of the immovable property  situate at A-1/81, Masjid Moth, Panchsheel Enclave, New Delhi (hereinafter referred to as the said property).

2.2 It appears that the said Mrs Puri, in pursuance to the aforementioned collaboration agreement, executed a General Power of Attorney (GPA) dated 11.11.2011, in favour of the petitioner. The GPA was duly registered and stamped, in accordance with the provisions of the Delhi Stamp Duty Amendment Act, 2001.

2.3 Apparently, Mrs Puri also executed a Will dated 11.11.2011. To be noted, the Will refers to Mr Anil Khanna, the director of the petitioner company. As per the said Will 25% of the undivided, indivisible and impartible ownership rights in the land, on which the said property has been built, is to devolve on Mr Anil Khanna, on the death of Mrs Puri. The said Will has, evidently, been registered with the Sub-Registrar-V, Delhi.

2.4 On 27.04.2012, respondent no.2, i.e., the Divisional Commissioner, Govt. of NCT of Delhi, issued the impugned circular.

3. The petitioner being aggrieved by the contents of the said circular approached this court by way of the captioned petition under Article 226 of  the Constitution of India, to lay challenge to the same.

4. Learned counsel for the petitioner submits that, the circular dated 27.04.2012 is contrary to the judgment of the Supreme court passed in the case of Suraj Lamp and Industries (P) Ltd. vs State of Haryana (2012) SCC 656. Particular emphasis in this regard has been laid on the observations made by the Supreme Court in paragraph 27 of the said judgment. It is further submitted that there is no impediment in the Sub-Registrar registering a genuine GPA and/or an agreement to sell. It is in this regard that, reliance is placed on the observations made in paragraph 27 of the judgment of the Supreme Court in Suraj Lamp and Industries (P) Ltd.

5. On the other hand, learned counsel for the respondents submits that, the transaction, which has been entered into between the petitioner company and the original owner, i.e., Mrs Puri, seeks to evade stamp duty and, therefore, there is a resistance by the Sub-Registrar, in registering the document.

5.1 Mr Mohammad, learned counsel for the respondents, submits that the transaction between the owner, Mrs Puri, and the petitioner company, i.e., the builder, is sought to be concluded on payment of stamp duty at the rate of 3% , whereas it ought to be subjected to stamp duty at the rate of 6%, which is the rate applicable to a transaction of sale.

5.2 It is the contention of Mr Mohammad that the transaction between the owner Mrs Puri and the petitioner company, i.e., the builder, is in effect a transaction of sale and hence the resistance to registration of the document. Mr Mohammad says that based on the Power of Attorney, the petitioner company, which is a builder, is obviously going to sell those portions of the super-structure to prospective buyers, which fall within its share. It is stated that the rate of stamp duty, on these sale(s) will be 6%. It is, therefore, Mr Mohammad?s contention that, the same rate of stamp duty should also apply to the first leg of the transaction, which is, the transaction entered into   between the owner Mrs Puri and the petitioner company, i.e., the builder.

6. Having heard the learned counsels for the parties, in my view, some of the assertions made by the learned counsel for the respondents, at this stage, are premature. There is, as a matter of fact, no order passed by the respondents refusing registration of any document. The concern of the respondents, that the transaction is not genuine, is not borne out from any order of the respondents. What the court is called upon to examine, therefore, at this juncture, in substance, is the validity of the circular dated 27.04.2012, issued by respondent no. 2. The grievance of the petitioner, in particular, is directed towards the following directions contained in the circular dated 27.04.2012 issued by respondent no. 2:

“….Therefore, it is again clarified to all the Registrars/ Sub-Registrars, that on the basis of a GPA, a Will, and Agreement to Sell, collectively or  separately in respect of an immovable property, a conveyance cannot be executed i.e. no transfer of property will take effect until unless a clear sale deed is executed and duly registered by the executants in the office of the Registrar/ Sub-Registrar.

Therefore, it is advised that all the Registrars/ Sub Registrars shall follow their instructions while discharging their functions under the Registration Act 1908.”

6.1 A bare reading of the aforesaid extract would show that the respondents have issued across the broad a directive to all Registrars and Sub-Registrars not to register any conveyance vis-a-vis an immovable  property which is based on a GPA, Will or Agreement to Sell. In my view, this direction clearly misconstrues the observations of the Supreme Court made in paragraph 27 of the judgment in the case of Suraj Lamp and Industries (P) Ltd. The said observations being relevant are extracted   hereinbelow:

“27. We make it clear that our observations are not intended to in any way affect the validity of sale agreements and powers of attorney executed in genuine transactions. For example, a person may give a power of attorney to his spouse, son, daughter, brother, sister or a relative to manage his affairs or to execute a deed of conveyance. A person may enter into a development agreement with a land developer or builder for developing the land either by forming plots or by constructing apartment buildings and in that behalf execute an agreement of sale and grant a power of attorney empowering the developer to execute agreements of sale or conveyances in regard to individual plots of land or undivided shares in the land relating to apartments in favour of prospective purchasers. In several States, the execution of such development agreement and powers of attorney are already regulated by law and subjected to specific stamp duty. Our observations regarding SA/GPA/Will transactions? are not intended to apply to such bona fide/ genuine transactions.”

6.2 Quite clearly, the Supreme Court has not said that in no case a conveyance can be registered by taking recourse to a GPA. As long as the transaction is genuine, the same will have to be registered by the Sub-Registrar. There is distinctly a specific reference to the fact that, a person may enter into a development agreement with a land developer or builder for development of a parcel of land or for construction of apartments in a building, and for this purpose a power of attorney empowering the developer to execute sale agreements, can be executed.

7. Therefore, in my view, the directions contained in the impugned circular dated 27.04.2012, are quite contrary to the observations made by the  Supreme Court in Suraj Lamp and Industries (P) Ltd. Accordingly, the same are set aside.

8. It will, however, be open to the respondents to examine the genuineness of the transactions which are reflected in the document(s) filed, at the time of registration of conveyance. In case the Sub- Registrar comes to a conclusion that the transaction is not genuine, as would be expected, he would call upon the persons/ entity presenting the  document(s) to explain their case and thereafter, if not convinced, pass a speaking order as to why the documents is/are not liable to be registered.

9. The writ petition is disposed of in terms of the aforesaid directions.

ITR- 4S Sugam for E-filing of AY 2013-14

We have uploaded ITR-4S Sugam as applicable for AY 2013-14 / FY 2012-13 for online filing of Income Tax Returns for Presumptive Income Tax Return. ThisReturn Form is applicable for assessment year 2013-2014 only, i.e., it relates to income earned in Financial Year 2012-13. We have also discussed who can use this Return Form, Who cannot use this Return Form, for whom SUGAM form is not mandatoryand Manner of filing this Return Form.

1.   Who can use this Return Form

This Return Form is to be used by an individual / HUF whose total income for the assessment year 2013-14 includes:‑

(a)    Business income where such income is computed in accordance with special provisions referred to in section 44AD and 44AE of the Act for computation of business income; or

(b)      Income from Salary/ Pension; or

(c)    Income from One House Property (excluding cases where loss is brought forward from previous years); or

(d)    Income from Other Sources (Excluding winning from Lottery and Income from Race Horses).

Note: The income computed shall be presumed to have been computed after giving full effect to every loss, allowance, depreciation or deduction under the Income-tax Act.

Note: Further, in a case where the income of another person like spouse, minor child, etc. is to be clubbed with the income of the assessee, this Return Form can be used only if the income being clubbed falls into the above income categories.

2. Who cannot use this Return Form

SUGAM cannot be used to file the following incomes

(a)    Income from more than one house property; or

(b)    Income from winnings from lottery or income from Race horses; or

(c) Income under the head “Capital Gains”, e.g. Short-term capital gains or long-term capital gains from sale of house, plot, shares etc; or

(d)    Income from agriculture/exempt income in excess of Rs. 5,000; or

(e) Income from Speculative Business and other special incomes; or

(f)   Income from a profession as referred to in sub-section (1) of section 44AA or income from an agency business or income in the nature of commission for brokerage; or

(g)    Person claiming relief of foreign tax paid under section 90,90A or 91; or

(h)    Any resident having any asset (including financial interest in any entity) located outside India or signing authority in any account located outside India.

3. SUGAM form is not mandatory

SUGAM Business Form shall not apply at the option of the assessee, if -

(1) the assessee keeps and maintains all the books of account and other documents referred to in section 44AA in respect of the business.

(ii) the assessee gets his accounts audited and obtains a report of such audit as required under section 44AB in respect of the business.

In the above scenarios, Regular ITR-4 should be filed and not SUGAM.

4.Annexure-less Return Form

No document (including TDS Certificate) should be attached to this Return Form. All such documents enclosed with this Return Form will be and returned to the person filing the return.

5. Manner of filing this Return Form

This Return Form can be filed with the Income-tax Department in any of the following ways —

(i)By furnishing the return in a paper form;

(ii)By furnishing the return electronically under digital signature;