Case BriefsForeign Courts

Another one to read, from the Foreign Court, now 6 days have passed in a very interesting matter wherein a question arose in Karnataka High Court on the wearing of “headscarf” from a Government Order, let’s read this decision from the year 1994, where a government official was asked not to wear ‘purdah’.


In this matter, a woman used to wear a black ‘purdah’ as a part of her daily attire during office hours and the said ‘purdah’ used to cover the whole o her body from head to foot, leaving only a slit in front, exposing her pair of eyes.

The crux and focus of the issue in the matter arose when a Government Order was issued pertaining to the dress code for civil servants, as per which the women officers were prohibited from wearing jeans, slacks, shorts and any dress which covered the face during office hours.

In view of the said circular, the woman was asked not to wear something which would cover her face, but she continued wearing the attire during work on the ground that as a Muslim, she was required by the Quran and hadith of the Prophet to cover her face and not to expose it in public.

The woman was dismissed from her service for not following the rules pertaining to the dress code for civil servants.

The counsel who was representing the woman submitted that by refusing to allow her to wear the purdah, her constitutional right under Article 11(1) to profess and practise her religion was infringed.

Article 11(1) of the Constitution guarantees the freedom of religion, where every person has the right to profess and practice his religion. However, such a right is not absolute.

Supreme Court of Kuala Lumpur (Federal Court of Malaysia) deciphered that such prohibition as stated in the Government Order did not affect the constitutional right to practice her religion.

To elaborate its reasoning, Bench expressed that it accepted the opinion of Dato’ Mufti Wilayah Persekutuan that Islam as a religion does not prohibit a Muslim woman from wearing, nor requires her to wear a purdah. Secondly, the Court noted that,

“…there seem to be a myth or misconception by certain groups of Muslim in Malaysia regarding the wearing of purdah which covers the entire face except the eyes. They believe that it is one of the Islamic injunctions which must be followed strictly.” 

“It is noted that purdah in its present form has not been specified in the Holy Quran. However, the Holy Quran uses the word ‘hijab’ meaning a screen or covering.”

Observing the above, in the opinion of the Court wearing purdah had nothing to do with the constitutional right of the aggrieved woman to profess and practice her Muslim religion.


Details of this case: Hjh Halimatussaadiah bte Hj Kamaruddin v. Public Services Commission, Malaysia, Civil Appeal No. 01-05-92, decided on 5-8-1994


Also Read


To Wear or Not to Wear? Precedents on dilemma of wearing ‘Headscarf’ from the Kerala High Court

Is the Bhinder case relevant in Hijab ban row? Canadian SC’s decision in Rule conflicting with religious tenet of an employee

Did You Know? What Bombay High Court held when a Muslim girl raised the issue that asking her not to wear a “headscarf” in school violates her fundamental right under Article 25 of the Constitution of India?

https://www.scconline.com/blog/post/2022/02/18/did-you-know-that-3-minor-muslim-boys-were-expelled-from-school-for-not-following-dress-code-and-for-wearing-serban-turban-in-malaysia/

Advance RulingsCase Briefs

Kerala Authority for Advance Ruling: S. Anilkumar, Additional Commissioner of Central Tax & B.S. Thyagarajababu, Joint Commissioner of State Tax decided whether there will be any input tax credit on goods provided free of cost i.e as under CSR activity for flood-affected people.

Background

In the present matter, the applicant was a dealer in electrical goods, cables of all kinds including winding wires, pipes, etc. Applicant had supplied electrical items to Kerala State Electricity Board through their distributors in connection with reinstating connectivity in the flood ridden areas as part of the “mission reconnect”.

The above-stated materials were supplied free of cost as a CSR activity. To ascertain the impact of GST on the stated goods supplied free of cost, the applicant required advance ruling on the following:

  • Determination of GST liability with respect to goods provided free of cost by the distributors and admissibility of input tax credit
  • Applicability of Section 17(5) of the CGST Act, 2018 on CSR expenses.

Discussion

KSEB requested from the distributors of the applicant to supply electrical goods for the restoration of power supply at flood ridden areas. The said materials were supplied by the distributors free of cost being CSR activity for reinstating connectivity in flood ridden areas. Applicant also distributed items like switches, fan, cables, etc. to flood-affected people under CSR expenses on a free basis without collecting any money.

Further, it was noted that the distributors raised bill to M/S Polycab Wires Private Limited in relation to the materials supplied free of cost to KSEB. The tax invoices were issued to KSEB showing sale value, GST and total amount with 100% discount. However, the GST liability was paid to the Government.

Applicant stated that, since the GST liability was completely paid on free supply, they were eligible to avail full claim of input tax credit on the supplied items. M/s Polycab Wires Private Limited reimbursed the total amount to the distributors and account the same as donation in kind towards CSR Expenses for Kerala Flood Relief, 2018.

In the present case, after availing input tax credit, the applicant disposed of goods as a free supply for CSR activities. Hence, the applicant was liable to reverse the input tax credit already availed.

As per Rule 27 of GST Rules where the supply of goods or services is for a consideration not wholly in money, the value of the supply shall be the open market value of such goods. In case the open market value is not available, be the sum total of consideration in money and any such further amount in money as is equivalent to the consideration not in money, if such amount is known at the time of supply.

If the value of supply is not determinable, the value of supply of goods or service or both of like kind and quality.

Observations

  • Determination of GST liability with respect to goods provided free of cost by the distributors to KSEB for reinstating connectivity in flood ridden areas; and admissibility of input tax credit in relation to such goods.

To operationalize the commitment of the applicant to provide goods at free of cost to KSEB for flood renovation work, the applicant instructed its distributors to provide the goods. The distributors billed the goods to KSEB and paid GST to Government. In the invoice so issued, the distributor had valued the goods for the purpose of tax and value was shown as discount.

In the above-stated supply, since the consideration was not wholly in money, Rule 27 of the CGST/KSGST Rules would apply for valuation. Once the Goods were supplied to KSEB, the distributor would raise the claim to the applicant who would reimburse the value to the distributor.

In view of the above, the distributor would be entitled to input tax credit on the goods supplied to KSEB.

  • Applicability of Section 17(5) of the CGST Act, 2018 on CSR expenses

For the items like cables, fans, switches, etc. to flood-affected people under CSR expenses on free basis, input tax credit will not be available as per Section 17(5)(h) of the KSGST and CGST Act.[Polycab Wires (P) Ltd., In Re., 32AAACP6474E1ZM, decided on 2-3-2019]


Authorised Representative: P.J. Jhoney, FCA