Punishing An Adolescent Boy Who Enters Into A Relationship With A Minor Girl Was Not At All The Objective Of POCSO Act: Madras High Court

 Case Ref: Vijayalakshmi and another -vs- state of tamilnadu & another - madras hc - J N.ANAND VENKATESH

The Defacto Complainant/mother and the victim girl jointly filed petition seeking to quash the criminal proceedings pending against the accused boy, who is facing trial before the Court below for offences under Section 366 of the Indian Penal Code, Section 6 of the POSCO Act and Section 9 of the Prohibition of the Child Marriage Act

The victim girl is well known to the accused/boy and they were in love with each other. Ultimately, they decided to get married and went away from their respective homes and a police complaint is filed and the same has now resulted in criminal proceedings against accused.

In Sabari v. Inspector of Police reported in 2019 (3) MLJ Crl 110, had discussed in detail about the cases in which youths of the age group of 16 to 18 years are involved in love affairs and how in some cases ultimately end up in a criminal case booked for an offence under the POSCO Act.

The relevant portions alert to youth and suggest legislature in Sabari vs Inspector of Police judgment are extracted here under:

• 26) In addition to the above, this Court is of the view that 'warning' of attraction of POCSO Act must be displayed before screening of any film, which have teenage characters suggesting relationship between boy and girl." 
  
• 29) "..........The Act can be amended to the effect that the age of the offender ought not to be more than five years or so than the consensual victim girl of 16 years or more. So that the impressionable age of the victim girl cannot be taken advantage of by a person who is much older and crossed the age of presumable infatuation or innocence”.

 

    A reading of the Statement of Objects and Reasons of the POCSO Act would show that the Act was brought into force to protect children from offences of sexual assault, sexual harassment and pornography, pursuant to Article 15 of the Constitution of India, 1950 and the Convention on the Rights of the Child.

   To quash the criminal proceedings involving non-compoundable offences pending against the accused. The Hon'ble Supreme Court has laid down the guidelines in the case of Parbathbhai Aahir @ Parbathbhai Vs. State of Gujrath, reported in 2017 9 SCC 641 and in case of The State of Madhya Pradesh Vs. Dhruv Gurjar and Another reported in (2019) 2 MLJ Crl 10, has given sufficient guidelines that must be taken into consideration by this Court while exercising its jurisdiction under Section 482 of Cr.P.C, to quash non-compoundable offences. One very important test that has been laid down is that the Court must necessarily examine if the crime in question is purely individual in nature or a crime against the society with overriding public interest. The Hon'ble Supreme Court has held that offences against the society with overriding public interest even if it gets settled between the parties, cannot be quashed.

Here, the offences in question are purely individual/personal in nature. It involves the minor girl and the adolescent boy and their respective families only. It involves the future of two young persons who are still in their early twenties. The boy is working as an Auto driver to eke his livelihood. Quashing the proceedings, will not affect any overriding public interest in this case and it will in fact pave way for the minor girl and the boy to settle down in their life and look for better future prospects. No useful purpose will be served in continuing with the criminal proceedings and keeping these proceedings pending will only swell the mental agony of the victim girl and her mother and not to forget the adolescent boy as well. 

 

In this context, the Madras High Court has quashed the criminal proceedings in Special S.C.No.24 of 2018 on the file of the learned Sessions Judge, Mahila Court (Fast Track Mahila Court) Erode in exercise of its jurisdiction under Section 482 of the Criminal Procedure Code, 1973. 

 

As long as the marriage subsist, the wife is entitled to receive the PF benefits even if she desserted her husband - Bombay High Court

The Bombay High Court held that when the marriage is legally valid, wife is entitled to the Provident Fund and other related benefits of the husband. The HC also said that just because a woman fails to perform the duties of a mother and a wife, she cannot be denied her entitlement.

Bench of Justices Atul Chandurkar and Nitin Suryawanshi have pronounced the ruling by while upholding a family court's orders that wife has entitlement in the PF benefits of her husband though the wife desserted her husband.

The husband had deleted the name of his first wife from all the PF and other related schemes and had nominated his second wife for these benefits. Amid all these disputes, the husband had not given divorce to the first wife and his first marriage subsisted.The bench said that the second marriage was thus illegal since the first marriage continued to subsist even as the couple lived separately from the past 23 years.

Having heard the contentions of both the sides, the judges referred to the provisions of the General Provident Fund (Central Services) Rules, 1960, which notifies as to who is entitled to these benefits. "Taking into consideration the definition of ‘family’ in the rules, only a legally wedded wife can be said to be included in the definition of family."

"Since the husband has performed a second marriage, while his first marriage was subsisting, the second marriage is void and the second wife thus cannot be said to be legally wedded one," the bench held. Further, the bench said that even if the couple leading life separately for more than 23 years, "still that itself does not dissolve."

The husband's contention was that the first wife was leading an adulterous life and has failed to perform the duties of a mother and of a wife and she deserted him over 23 years has forced him to perform a second marriage.

"All these allegations are unacceptable and they do not further the case of the husband in any manner, in absence of declaration and dissolution of his marriage with the first wife by decree of a competent Civil Court," the judges held.

The bench held that "During the subsistence of the first marriage, he has performed a second marriage, which cannot be said to be legal. The allegations of adultery have no relevance in the present case as the same does not in any manner affect the merits of the claim by the first wife,"

 

Unconstitutionality Of Publishing Of Marriage Notices Under Special Marriage Act

The Special Marriage Act, 1954 provides the registration of inter-religious marriages. The petitioner, Nandini Praveen, a law student, filed a writ petition under Article 32 of the Constitution of India before the Supreme Court challenging Section 6(2), 6(3), 7, 8, 9 and 10 of the Special Marriage Act, 1954 (SMA).

 

The petitioner in her PIL stated that the conditions under Section 4 of SMA are fulfilled through Section 11 of SMA. The section 11 of SMA requires three parties to sign a declaration that the intended marriage would not violate any of the provisions of Section 4. Hence there is no need to exercise the impugned provisions.

 

 

Accused is not entitled to acquittal - when the complainant is the investigating officer - Supreme Court

Case Title: Mukesh Singh -Vs- State(Narcotics Branch of Delhi) - Supreme Court of India 

The five-judge bench of the Supreme Court has held that when the complaint and the investigating officer are one and the same, the accused is not entitled to acquittal. The Supreme Court has examined, analysed and compared some case laws deciding varying legal points and to substantiate same the relevant provisions of CrPC are as follows:

Section 154 Cr.P.C. provides that every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction. 

Section 156 Cr.P.C. provides that any officer in charge of a police station may investigate any cognizable offence without the order of a Magistrate. It further provides that no proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. Therefore, as such, a duty is cast on an officer in charge of a police station to reduce the information in writing relating to commission of a cognizable offence and thereafter to investigate the same. 

Section 157 Cr.P.C. specifically provides that if, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person to the spot to investigate the facts and circumstances of the case and, if necessary, to take measures for the discovery and arrest of the offender. 

The Supreme Court listed out numerous cases where the trial was vitiated for the reason that the informant and the investigating officer was the same person. In the case of Mohan Lal -Vs- State of Punjab (2018) 17 SCC 627 held that the trial is vitiated because the investigation is conducted by the police officer and who is also the complainant and the accused is entitled to acquittal. But the decisions in these cases have to be treated confined to their own facts and cannot be based solely on the fact that the investigation officer himself is the informant against the accused.

 

"It cannot be said that in the aforesaid decisions, this Court laid down any general proposition of law that in each and every case where the informant is the investigator there is a bias caused to the accused and the entire prosecution case is to be disbelieved and the accused is entitled to acquittal; II. In a case where the informant himself is the investigator, by that itself cannot be said that the investigation is vitiated on the ground of bias or the like factor. The question of bias or prejudice would depend upon the facts and circumstances of each case. Therefore, merely because the informant is the investigator, by that itself the investigation would not suffer the vice of unfairness or bias and therefore on the sole ground that informant is the investigator, the accused is not entitled to acquittal. The matter has to be decided on a case to case basis. A contrary decision of this Court in the case of Mohan Lal v. State of Punjab (2018) 17 SCC 627 and any other decision taking a contrary view that the informant cannot be the investigator and in such a case the accused is entitled to acquittal are not good law and they are specifically overruled."

 

Power of Speaker to disqualify the State Assembly and the Parliament member and the Supreme Court Recommendation

The Supreme Court on Tuesday delivered a verdict two important declarations. 

1) The three-judge bench of Supreme held that the Speaker of the State assembly or the Parliament has power to decide on disqualification petitions for members within three months unless or otherwise there exists an extraordinary circumstance. Further courts have the powers to intervene on disqualification petition if the proceedings are delayed beyond the reasonable time limit. 

What the law does not prohibit is the court enforcing disqualification proceedings, which are quasi-judicial in character, when they are unnecessarily delayed.

2) The Supreme Court recommended the Parliament strongly to remove the Speakers’ disqualification powers and forming an independent tribunal to take up these petitions. The reason for this suggestion is that Speakers invariably belong to the ruling parties and they might act in a partisan manner. 

 

Further the court strongly recommended that Parliament should seriously consider taking away disqualification powers from the Speakers. These powers could be given to an independent tribunal headed by a former Supreme Court judge or a former chief justice of a High Court or form “some other outside independent mechanism to ensure that such disputes are decided both swiftly and impartially”.

Case Title : KEISHAM MEGHACHANDRA SINGH -Vs- THE HON’BLE SPEAKER MANIPUR LEGISLATIVE ASSEMBLY & ORS.

Taking cognizance and summoning the accused in view of report under S. 173 CrPC - Discussed

 

Whether Magistrate is required to give elaborate reasons for taking cognizance and summoning the accused in view of report under S. 173 CrPC?

In the judgment R.R. Chari v. State of U.P., (1963) 1 SCR 121 wherein was stated that  

“The word ‘cognizance was used in the Code to indicate the point when the Magistrate or a Judge first takes judicial notice of an offence. It is a different thing from the initiation of proceedings.” 

It is also settled law that while taking cognizance and issuing summons in respect of IPC offences, based on the report under Section 173 CrPC, recording elaborate reasons is not required provided if sufficient grounds for proceeding against the accused has been satisfied.

Whether the petitioner has to file affidavit or not, in order to invoke the jurisdiction of Magistrate under section 156(3) of CrPC?

The Hon'ble Supreme Court in Priyanka Srivastava -vs- State of U.P., (2015) 6 SCC 287 : 2015 Cri LJ 2396 : AIR 2015 SC 1758 observed as follows: -

“30. In our considered opinion, a stage has come in this country where Section 156(3) CrPC applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of the said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores.”

“31. We have already indicated that there has to be prior applications under Sections 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an application under Section 156(3) be supported by an affidavit is so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR.”

Refer to recent judgment of Karnataka High Court in C.T. Ravi -vs- State of Karnataka, W.P. No.62671 OF 2016, decided on 22-10-2020

 

Madras High Court Quashed FIR filed against the CAA and NRC protestors

 The Hon'ble Madras High has issued an order with the following remarks

"The country had witnessed protests all over by different sections of people against the said amendments. Since the protest was peaceful and even the First Information Report does not disclose any act of violence or happening of untoward incident, I am of the view that the continued prosecution is not warranted. Quashing the same will secure the ends of justice."

Ref: Madurai Bench - Saathik Ali  -Vs- The State and another – law.tutorialbee.com

NEET and AIAPGET To AYUSH - Supreme Court of India

NEET and AIAPGET To AYUSH - Supreme Court of India

The Central Council of Indian Medicine and Central Council of Homeopathy have introduced the All-India National Eligibility cum Entrance Test (NEET) with minimum qualifying marks for admission of Under Graduate Courses of BAMS, BUMS, BSMS and BHMS. Further, they have also introduced All India AYUSH Postgraduate Entrance Test (AIAPGET) with minimum qualifying mark. Many appeals and writ petitions are filed to challenge the validity of entrance exams.  

The Supreme Court of India upholds National Eligibility cum Entrance Test (NEET) for admission of under graduate courses in Ayurveda, Yoga & Naturopathy, Unani, Siddha, Sowa Rigpa and Homoeopathy (AYUSH) and All India AYUSH postgraduate Entrance Test (AIAPGET) for AYUSH that "Doctors who are qualified in Ayurvedic, Unani and Homeopathy streams also treat patients and the lack of minimum standards of education would result in half-baked doctors being turned out of professional colleges. Non-availability of eligible candidates for admission to AYUSH Under Graduate courses cannot be a reason to lower the standards prescribed by the Central Council for admission." 

Read the Judgment NEET and AIAPGET To AYUSH - Supreme Court of India 

Cryptic Order

Cryptic comments or messages are hard to understand because they seem to have a hidden meaning. Cryptic is from Late Latin crypticus, from Greek kryptikos, from kryptos "hidden." This Greek adjective is the source of our English word crypt, referring to a room under a church in which dead people are buried.

THE MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS

The Maintenance and Welfare of Parents and Senior Citizens Act - 2007

This Act makes a legal obligation for children and heirs to provide maintenance to parents and senior citizens, by monthly allowance.

This Act provides a simple, speedy and inexpensive mechanism for the protection of life and property of the parents and senior citizens. 

In this modern society, the Joint Family System is being eradicated slowly from our culture because of the implementation of Harass Legal Provisions of women laws against family members. Because of that newly married couples left the joint family and started living separately. This causes the withering of the joint family system. As a result, the parents and senior citizens of our society are forced to live alone and are exposed to various kinds of problems such as lack of physical, social, emotional and financial support. To overcome such difficulties and to face new challenges, the Government of India has enacted this law in the fifty-eighth year of the republic so as to provide maintenance and protection to parents and senior citizens through MWPSC Act-2007. 

The Government thinks once it enacts the law the problem is solved. If it is solved means then why we need another law to enact. When will the enacting process of law come to end? Actually enacting a new law creates so many cumbersome problems in our society and to those new problems, our Government is enacting another new law. So this goes on expanding without an end like our universe.

For example in the MWPSC-2007, a parent is sent out of home, they might not have any money in their hand and they do not know what to do at that age. "A sound body only gives a sound mind". Further, at that tender they definitely will not have a sound mind, they would not know any awareness about the said act. From, 2007 onwards the said Act is in enforcement. Whether the Government has a statistical report regarding how many the parents and senior citizens are thrown out from their home and left without care and how many of them have used the said Act so far and won the case. Is there is any organization or mechanism to monitor the pitiable condition of the parents and senior citizens of our country!

The said Act provides the in-expensive and speedy procedure to claim monthly maintenance for parents and senior citizens and casts obligations on children to maintain their parents/grandparents and also the relative of the senior citizens to maintain such senior citizens. 

The main attraction of the said Act is there are provisions to protect the life and property of such persons. 

The said Act also provides setting up old age homes for providing maintenance to the indigent senior citizens and parents. 

The said Act extends to the whole of India including the Jammu and Kashmir state.

Meaning for the Important Terminologies used in the said Act:- Definition 

1)  Children - Include son, daughter, grandson, granddaughter but does not include a minor.

2)  Maintenance - includes provision for food, clothing, residence, medical attendance and treatment.

3)  Parent- means father or mother whether biological, adoptive or stepfather or stepmother, whether       or not father or mother is a senior citizen.

4)  Senior citizen - means an Indian who attained the age of 60 years or above.

5)  Relative - means any legal heir of childless senior citizen who is not a minor and is in possession         of or would inherit his property after his death.

6)  Welfare - means provision for food, healthcare, recreation centers and other amenities necessary           for senior citizens.


Maintenance of Parents and senior citizens

A senior citizen including a parent, who is unable to maintain himself from his own earning or out of the property owned by him, is entitled to get relief under this Act. Children/grandchildren are under obligation to maintain his or her parent either father, mother or both. Likewise, a relative of a senior citizen is also bound to look after the senior citizen. If such children or relative is not maintaining his parents or senior citizen respectively, then the parents/senior citizen can seek the assistance of Tribunal constituted under this Act, to enforce the remedy of maintenance. Such parents/senior citizens can file an application before the Tribunal, claiming maintenance and other reliefs from their children/relatives as the case may be.

Such an application for maintenance can be filed before the Revenue Divisional officer by the senior citizen or a parent himself, or if such a person is incapable, then by any other person or any registered organization authorized by him. The Tribunal can also suo motu take cognizance of the case. After receiving the application the Tribunal may issue notice to the respondent-children/relative and provide them time to furnish their reply. Such an application for maintenance should be disposed of within 90 days from the date of service of notice of the application to the respondent. However, the Tribunal can extend time for a maximum period of 30 days in exceptional circumstances after recording reason. The Tribunal is having power to allow interim maintenance pending disposal of the case. Even though the application can be filed against any of the children/relatives as the case may be, such respondent-children/relatives can implead other persons who are liable to pay maintenance.


Protection of life and property of Senior citizen

If a senior citizen after the commencement of this Act, has transferred his property either moveable or immovable, by way of gift or otherwise, subject to the condition that the transferee shall provide him basic amenities and physical needs and thereafter such transferee reuses or fails to provide such promise, such transfer of property shall be deemed to have been made by fraud, coercion or undue influence and the Tribunal can declare such transfer as void. Before the enactment of this law, a senior citizen's only remedy in such a case was to approach the court for maintenance from the children to whom he had given the property by way of gift or otherwise and such property would be the exclusive property of the transferee and the senior citizen had no right in such property. But after the enactment of this Act, a senior citizen can reclaim his property from the transferee. The concerned police personnel will also ensure priority in dealing with these types of cases. Representation by lawyers is prohibited under section 17 of this Act. However, the Hon'ble Kerala High Court held that legal practitioners also could represent cases under this Act.

Abandoning a senior citizen in any place by a person who is having the care or protection of such senior citizen is a criminal offence and such person shall be punishable with imprisonment for a term which may extend to three months or fine which may extend to five thousand rupees or both.

This Act also provides that state governments may establish old age homes at least one in one district to accommodate indigent senior citizens. State governments may also ensure proper medical care for senior citizens.

Inner Line Permit (ILP) - Explainatioin

Inner Line Permit (ILP) is an official travel document.  ILP is issued by the concerned state government to an Indian Citizen. ILP permits Indian citizens to enter into a protected area for a limited period. The document is an effort by the government to regulate movement to certain areas located near the international border of India. The ILP was originally created by the British to safeguard their commercial interests in the tea, oil and elephant trade by prohibiting "British subjects" from entering into these "Protected Areas", The word "British subjects" was replaced by Citizen of India in 1950. Now, it continues to be used in India, officially to protect indigenous communities' cultures in northeastern India.
There are different kinds of ILP's as follows:
   1)  For tourists
   2)  For people who intend to stay for long-term periods, often for employment purposes.

States for which require ILP permits are Arunachal Pradesh,  Mizoram, Nagaland and Manipur.  There are also ongoing demands for the introduction of ILP in Meghalaya, Assam and Andaman & Nicobar Islands to regulate the entry of outsiders into the state.

Recently when the Citizenship (Amendment) Act 2019 came out, it exempted the areas coming under Inner Line Permit (ILP) as well as tribal areas of Assam, Meghalaya and Tripura (as included in the sixth schedule).

The sixth schedule of the Constitution of India provides for the administration of tribal areas in the states of Assam, Tripura, Meghalaya as well as Mizoram to safeguard the rights of tribal populations in these states.

The Inner Line Permit (ILP) regime is now being used to protect such areas from the purview of Citizenship (Amendment) Act, 2019.

ILP is a permission granted to person who is non-tribal and wants to enter the tribal areas for tourism or any other purpose. He can stay only by the terms and conditions of the permit guaranteed to him and only for the period specified in the permit given to him. Though this procedure started way back in the British era, it is still being continued. These tribal areas which were severely underdeveloped and in need of a system of administration that would allow the tribal areas to become developed while protecting them from exploitation of people from plain areas and preserving their distinct social customs.

This permit allows Indian citizens to go and live in any State protected under ILP for a specific period of time.

Any person is entitled to renew his permit every six months if he is not a native in these states despite the fact that he/she is a long-term resident.

This permit also regulates the movement to certain areas located near the international borders of India.

Who Issues ILP?

The permit is issued by the concerned states coming under the protection of ILP.

The ILP is issued either by applying online or directly from the government office.

The ILP has details such as travel dates and the specific areas that the holder is likely to travel in the concerned state.

In 2014, the ILP was removed in Ladakh and later implemented again from 2017. The Ladakh Inner Line Permits are available online from the official website of Leh Ladakh administration. The ILP is valid for a maximum of 14 days. There is no limit on the number of times to visit a place within the valid period as long as there is necessary permits.

Foreigners need a Protected Area Permit (PAP) to visit tourist places that are different from Inner Line Permits needed by domestic tourists.

Goods And Services Tax On E-Commerce 

Goods and Services Tax (GST) is an indirect tax (or consumption tax) on the supply of goods and services. It is a comprehensive, multistage, destination-based tax: comprehensive because it has subsumed almost all the indirect taxes except a few state taxes. This article is about the few provisions of GST on E-Commerce. There are a few distinctly specific provisions applicable to e-commerce operators and suppliers of goods or services supplying through e-commerce portals. 

Mainly there are two modes of operation in e-commerce. 

1)    The supplier himself supplying goods or services through an e-commerce portal. GST laws remain the same for the said supplier. 

2)    The marketplace of e-commerce is popularized by Amazon, Zomato, etc. Here the e-commerce operator merely provides a platform to various suppliers. Two transactions are happening in this model- (i) supplier supplying goods or services to the consumers and (ii) the e-commerce operator supplying services to the supplier using its platform. These are distinct transactions, and attract GST on their own.

Liability to pay GST:

In general, liability to pay GST is on the supplier of goods and services. Even in e-commerce transactions, the persons supplying goods or services through the platform are the suppliers. Thus, a person selling the goods on Amazon or Zomato is a supplier of goods and services and he is required to follow GST provisions. 

Central Goods and Services Tax (CGST) is a tax levied on Intra State supplies of both goods and services by the Central Government and will be governed by the CGST Act.

SGST will also be levied on the same Intra State supply but will be governed by the State Government

However, Section 9(5) of the CGST Act provides that the tax on intra-State supplies of which shall be paid by the electronic commerce operator if such services are supplied through it. Three services, namely (i) Motor Cab (ii) Hotels and accommodation and (iii) Housekeeping services has been notified under Section 9(5) of the CGST Act.

In Re: Opta Cabs Pvt. Ltd. [2019 (20) GSTL 161], Appellate authority of Advance Ruling held that when transportation of passenger service is provided by the taxi drivers by using a software application, the e-commerce operator is liable to pay GST even if payment is not directly received by the e-commerce operator. Thus e-commerce operators, engaged in providing services notified under Section 9(5) of the CGST Act are required to develop their software application model in such a way that they can discharge the GST liability.

In case of the supply of goods, the liability to pay GST always remains on the supplier of goods. Thus, any person supplying goods through Amazon is responsible for discharging its own GST liability. 

In case of the supply of services, all suppliers of services are required to discharge its own GST liability, except the services notified under Section 9(5) of the CGST Act.

GST Registration Threshold Limits

Under Section 24 (ix) of the CGST Act, every person supplying goods or services through electronic commerce operators are required to be compulsorily registered, without any threshold exemption limit. 

However, the Government has the power to exempt specified supplier from registration. Vide Notification No. 65/2017-C.T., dated 15-11-2017; the Central Government, exempted persons making supplies of services, other than supplies specified under sub-section (5) of section 9 of the said Act through an electronic commerce operator and having an aggregate turnover, to be computed on all India basis, not exceeding an amount of twenty lakh rupees in a financial year.

Thus, persons supplying services other than those mentioned in Section 9(5) of the CGST Act are required to register and collect GST only if their turnover is more than the threshold limit. Persons supplying services mentioned in Section 9(5) are not liable to be registered under GST even if their turnover is more than the threshold limit, as a liability to pay GST is on the e-commerce operator.

It is noted that the exemption has been provided from registration itself, and registration provisions are squarely applicable also to IGST/SGST Act, and hence even inter-state supplies are exempt from payment of GST on such supply of service up to threshold limit of exemption.

Thus, persons supplying services through e-commerce operators enjoy the threshold exemption limit. However, such benefit is not available to persons supplying goods through e-commerce operators. Such suppliers of goods are required to get compulsorily registered under GST even if their turnover is less than the threshold limit. It means they are required to register before selling through the e-commerce platform. All platforms like Amazon, Flipkart, etc. require GSTIN at the time of registration as a seller on their platform.

Commission Charged from Suppliers:

E-commerce portals are charging a commission from various suppliers. E-commerce portals are required to be compulsorily registered under Section 24(ix) of the CGST Act and shall be paying GST on commission amount received, without availing any exemption threshold limit. The tax shall be charged in the invoices raised against the supplier of goods or services, and such suppliers can avail Input Tax Credit (ITC) (ITC is the tax that a business pays on a purchase and that it can use to reduce its tax liability when it makes a sale. In other words, businesses can reduce their tax liability by claiming credit to the extent of GST paid on purchases) on such GST charged, if otherwise eligible.

Tax Collection at Source (TCS):

An electronic commerce operator is also required to collect tax under Section 52 of the CGST Act, called TCS. The provision essentially imposes a duty on e-commerce operators to collect tax, from the amount payable to the supplier. Such TCS deducted is reflected in the electronic cash ledger of the supplier. However, the Government has clarified that TCS shall be deducted only when the supplier is liable to pay GST. 

TCS is not required to be collected on exempt supplies [FAQ on TCS issued by CBIC]. 

For the purposes of TCS, an e-commerce operator has to obtain separate registration for TCS, irrespective of the fact that it is already registered under GST as a supplier or otherwise and has GSTIN. The section imposes a duty on electronic commerce operators to collect a tax, from the consideration required to be paid to the persons making supplies of goods or services or both through its platform. The deduction shall be done on a monthly basis on the net value of taxable supplies.

E-commerce portal from outside India:

As a matter of general rule, liability to pay tax is fastened only on the persons supplying goods or services, through an establishment located in India. If such supplies are made from a location outside India, the supplier cannot be fastened with a GST payment liability. The supply of goods is a simple example. Say, a foreign manufacturer supplying goods to an importer in India. Though that foreign manufacturer is a supplier of goods, liability to pay GST is not on that foreign manufacturer. GST is paid by the importer located in India at the time of import. 

Similarly, when the supplier of services supplies certain services to an Indian resident, liability to pay GST on such supply is on the person receiving the services under the reverse charge method. Thus, when an e-commerce operator is located outside India, in general, there is no GST liability on that operator. Goods supplied through such a foreign located e-commerce portal shall attract IGST at the time of import, and services supplied through such an e-commerce portal shall attract GST on the reverse charge method.

Online Information and Database Access and Retrieval Service is an exception to the above-said provision. In the case of OIDAR service, the liability to pay tax is there even on the non-resident suppliers of services. The Integrated Goods and Service Tax Act defines OIDAR to mean services whose delivery is mediated by information technology over the internet or an electronic network and the nature of which renders their supply essentially automated and involving minimal human intervention and impossible to ensure in the absence of information technology and includes electronic services such as, – (i) advertising on the internet; (ii) providing cloud services; (iii) provision of e-books, movie, music, software and other intangibles through telecommunication networks or internet; (iv) providing data or information, retrievable or otherwise, to any person in electronic form through a computer network; (v) online supplies of digital content (movies, television shows, music and the like); (vi) digital data storage; and (vii) online gaming. The definition is inclusive and also includes similar services apart from what is enumerated in the definition clause. We can see from the definition itself that that tax has been imposed essentially automated digital services requiring minimal human intervention. A simple procedure has been devised for non-resident suppliers of OIDAR services to pay GST.

Conclusion:

E-commerce involves in many transactions when a person is buying goods in the e-commerce platform. Two transactions are happening simultaneously. The supplier is supplying goods through an e-commerce portal and the e-commerce portal is supplying services to the supplier. Both the transactions are different transactions and subject to GST in its own nature. TCS provisions come into operations at the end of the month when the e-commerce operator is transferring considerations received to the supplier of goods or services.