Case BriefsTribunals/Commissions/Regulatory Bodies

Customs, Excise and Services Tax Appellate Tribunal (CESTAT): A Division Bench of Anil Choudhary (Judicial Member) and P. Anjani Kumar (Technical Member), allowed an appeal which involved the question that whether the appellant company was liable to pay service tax under the category of Business Auxiliary Service (BAS) for the period April 2007 to September 2011 or whether the activity of the appellant was not taxable under the principle of mutuality, being services provided to group/promoter companies.

The appellant company was a limited company by guarantee and not by having a share capital. The main objects of the appellant company, as per its Memorandum of Association, are to enable the members of the company to mutually avail and share common facilities and resources afforded by the company. The counsel for the appellant Ashok S. Hasija, contended that a Company limited by guarantee is an extensive mode used for organizing professionals traders, etc into an association for a general and non-business purpose; the appellant company had been incorporated to organize and share various common facilities and resources on the principle of mutuality; the transactions of the appellant were on the basis of no profit no loss basis; the appellant was an extended arm of the member companies. It was accepted principle that Service provided to one’s own self was not taxable; appellant company and the member companies being one unit, the nature of service so provided by the appellant to its members would that be a service to themselves; therefore, service tax could not be levied.

The Bench while allowing the appeal found that the companies have come together to share the resources and there was mutuality of interest of the promoters/member companies and that the show cause notice was not maintainable both on the principle of mutuality and on the fact of lack of consideration for such services alleged to have been rendered. [GMR Corporate Centre (P) Ltd. v. C.C.E. & C.S.T., 2020 SCC OnLine CESTAT 147 , decided on 29-07-2020]

Case BriefsHigh Courts

Karnataka High Court: B.V. Nagarathna, J., disposed of the petitions seeking the provisions of Sections 164(2) and 167(1)(a) and the proviso to Section 167(1)(a) of the Companies Act, 2013, to be held unconstitutional.

In the pertinent matter, the petitioner sought for declaring Section 164(2) of the Companies Act, 2013 (Act) and the press release dated 06-06-2017 vide Annexure-A as unconstitutional and in violation of the fundamental rights of the petitioner as guaranteed under the provisions of Part III of the Constitution. The petitioners further contended that there was an arbitrary exercise of power by the concerned respondent authority in disqualifying the petitioners as directors of the respective companies by giving retrospective operation to the aforesaid provisions of the Act. That the disqualification is not on account of any act/omission of the director per se, but due to the default committed by the company in which he is a director. Also, the consequence of the default so made was serious, almost penal and disproportionate to the same; therefore, it is in violation of Article 14 of the Constitution.

The respondents vehemently contended that the object of the provision is to keep away directors of defaulting companies from being reappointed as directors in the same company or other companies. It was further contended that if the said object and purpose is not given its complete effect and meaning, then it would be unviable. Moreover, holding the post of a director of a company is not pursuant to any fundamental right since it is a statutory right or one arising under the Memorandum of Association or Articles of Association of the company and thus contractual. Lastly, Section 164(2) of the Act is a reasonable restriction imposed in public interest vide Article 19(6) of the Constitution.

The Court while appreciating the assistance rendered by the respective counsels, was of the opinion that:

  1. Where the disqualification considering any financial year “prior to 01-04-2014 as well as subsequent thereto” while reckoning continuous period of three financial years under Section 164 (2)(a) of the Act, is made irrespective of whether the petitioners are directors of public companies or private companies, is bad in law.
  2. Writ petition would stand dismissed if the disqualification of the directors has occurred under the provisions of the 1956 Act in respect of the public companies.
  3. Directors would stand disqualified if the disqualification was on the basis of three continuous financial years subsequent to 01-04-2014, irrespective of whether the petitioners are directors of public companies or private companies among other things.

The Court further directed the respondents to restore the DIN of those directors whose disqualification has been quashed by the Court. And those petitioners who have challenged only the striking off of the companies in which they are directors have an alternative remedy of filing a proceeding before National Company Law Tribunal (NCLT) under Section 252 of the Companies Act, 2013.[Yashodhara Shroff v. Union of India, 2019 SCC OnLine Kar 682, decided on 12-06-2017]

Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench of Ramesh Ranganathan, CJ and Manoj K. Tiwari, J. set aside in review an order passed by another Division Bench.

The Applicant contended that she was working as Principal of constituent College, which was later conferred “Deemed University” status and hence, Memorandum of Association was to be accorded with UGC Regulations, 2010. The applicant was part of the committee to deliberate on the proposed amendments. Further, she alleged that Division Bench held that she had acquiesced to the amendment; and could not, thereafter, contend that she should be continued contrary to the said amendment. The petitioner was denied relief on the ground of acquiescence.

Learned counsel for the applicant Tapan Singh, submitted that, applicant had merely participated in the meeting; she had not specifically agreed to the said amendment; even otherwise, her participation in the deliberations of the Committee meeting, was in her official capacity as a Principal of the College, who was a member of the Committee ex-officio; that cannot result in her vested right, to continue as a Principal, being deprived even without complying with the principles of natural justice; and the order under review necessitates being set aside.

Arvind Vashishta, learned Senior Counsel for respondent-University, submitted that the Division Bench was justified in its conclusion that petitioner had acquiesced to the amendment to the Memorandum of Association; and her appointment as a Coordinator, consequent on her designation as a Principal being withdrawn, was merely a consequence thereof.

The Court observed that, mere participation in a meeting convened to consider amendments doesn’t mean that the petitioner acquiesced and had waived her right to continue as a Principal. Hence, the order under review was set aside, and the writ petition was restored to file.[Dr Sangeeta Singh v. Gurukul Kangri University, Haridwar, 2019 SCC OnLine Utt 378, decided on 24-05-2019]