20 Key GST and Customs Case Laws of the Year 2021
- Blog|GST & Customs|Top Rulings 2021|
- 19 Min Read
- By Taxmann
- Last Updated on 20 June, 2022
The year 2021 was loaded with several significant rulings a taxpayer and revenue will need to remember. Our editorial board has meticulously analysed all the judgments/orders throughout the year and reported over 1,500 judgments at taxmann.com. Every year we bring the list of top 20 cases reported at taxmann.com. The list for the year 2021 is given below.
1. Apex Court reversed the decision of Delhi High Court in the case of Bharti Airtel which allowed rectification of GSTR-3B
The grievance of the petitioner was regarding rectification of Form GSTR- 3B for the period from July to September 2017. The Delhi High Court allowed rectification of Form GSTR-3B in respect of the period in which error had occurred and held that Circular No. 26/26/2017-GST, dated 29-12-2017 imposing restriction of rectification of GST Returns only in the period in which error is noticed, is arbitrary and is to be struck down. Against this order, the Revenue filed an appeal before the Supreme Court.
The Honorable Apex Court observed that the impugned Circular provided for reporting differential figures and rectification of errors in subsequent periods in which error is noticed. Significantly, the registered person is not denied the opportunity to rectify omission or incorrect particulars, which he could do in the return to be furnished for the month or quarter in which such omission or incorrect particulars are noticed. Thus, it is not a case of denial of availing of ITC as such. The Circular has been issued exercising power under section 168(1) of CGST Act, 2017, it is not contrary to Section 39(9) and therefore, the Apex Court upheld the validity of the impugned Circular.
2. SC admits appeal to decide duty of customs referred in Exemption Notification No. 45/2017 would include IGST or not
Case Details: Commissioner of Customs v. Interglobe Aviation Ltd.
Citation:  128 taxmann.com 337 (SC)
The assessee was a scheduled airline operator engaged in the business of transportation of passengers and goods by air within and outside India. It was re-importing the aircraft and spare parts sent outside India for repairs and maintenance. It claimed exemption under Notification No. 45/2017 – Customs dated 30-6-2017 from payment of IGST on goods reimported by it in India after repair. The Customs authorities refused the same on the ground that IGST was leviable on the fair cost of repairs and cost of insurance and freight.
The Delhi CESTAT allowed exemption on such re-importation of goods by the assessee holding that IGST was not leviable on goods re-imported into India. However, the assessee was still being compelled to clear goods on payment of IGST resulting in financial losses. Thus, it filed the writ petition before the Delhi High Court.
The Honorable High Court observed that in the absence of specific mention of ‘IGST ‘ and ‘Compensation Cess’ in Column (3) under Serial No. 2 of the impugned exemption Notification, only the Basic Customs Duty on the fair cost of repair charges, freight and insurance charges would be payable. The IGST and Compensation Cess would be wholly exempted. The assessee could not be denied such exemption on reimport of repaired air-crafts and spare parts.
Against the above order, the department filed an appeal before the Honorable Apex court. The final order of the Supreme Court is awaited.
3. Rule 89(5) which denies refund of unutilised ITC of input services is not ultra vires; SC set aside the decision of Gujarat HC
Few writ petitions were filed before the High Court of Gujarat and the High Court of Madras challenging the validity of Rule 89(5) that denies the refund of un-utilised ITC on input services on the ground that it is ultra vires the provisions of Section 54. The Gujarat High Court allowed the claim for the refund made by the petitioners before it, considering unutilised ITC on input services as part of ‘Net ITC’ for the purpose of calculating refund in terms of Rule 89(5). However, the Madras High Court came to a contrary conclusion and it upheld the validity of Rule 89(5). Therefore, the appeal was filed before the Supreme Court due to divergent views.
The Honorable Supreme Court observed that the purpose of the formula in Rule 89(5) is to give effect to Section 54(3) (ii) which makes a distinction between input goods and input services for grant of refund. The Apex Court also observed that the formula under Rule 89(5) to create a legal bifurcation is a familiar terrain in fiscal legislation including delegated legislation. It set aside the decision of the Gujarat High Court and upheld the decision of the Madras High Court.
The Supreme Court also noted that the practical effect of the formula might result in certain inequities but it restrained providing any formula saying that it’s the field of the legislature. The Court strongly urged the GST Council to reconsider the formula and take a policy decision regarding the same.
4. Additional Director General of DRI is not empowered for initiation of recovery proceedings under Customs: SC
The issue under consideration was whether the Directorate of Revenue Intelligence (‘DRI’) has the authority in law to issue a show-cause notice under Section 28(4) of the Customs Act for recovery of duties allegedly not levied or paid when the goods have been cleared for import by a Deputy Commissioner of Customs who decided that the goods are exempted.
The Hon’ble Apex Court observed that Section 28(4) (supra) empowers the recovery of duty not paid, etc. and confers the power of its recovery on ‘the proper officer’.
When the statute directs that ‘the proper officer’ can determine duty not levied/not paid, it does not mean any proper officer but that proper officer alone. It is completely impermissible to allow an officer, who has ‘not’ passed the original order of assessment, to re-open the assessment on the grounds that the duty was not paid/not levied, by the original officer who had decided to clear the goods and who was competent and authorized to make the assessment. The section must therefore be construed as conferring the power of such review on the same officer or his successor or any other officer who has been assigned the function of assessment. In other words, an officer who did the assessment could only undertake re-assessment.
Given the above, the Hon’ble Apex Court held that the show-cause notices issued by the Additional Director General of the DRI in the given case are invalid and was without any authority of law. Hence, such notices and ensuing demands are set-aside.
5. Provisional attachment only after the formation of opinion based on tangible material as power is draconian in nature: SC
Case Details: Radar Krishna Industries v. State of Himachal Pradesh
Citation:  127 taxmann.com 26
The provisional attachment was ordered against the appellant while invoking section 83 of the GST Act. The appellant instituted a writ petition challenging the orders of provisional attachment. The High Court dismissed the said writ petition on the ground that provisional attachment could not be challenged in a petition under Article 226 on the ground that an alternative and efficacious remedy of an appeal under section 107 was available. It filed an appeal against the order.
The Honorable Supreme Court observed that the High Court has erred in dismissing the writ petition on the ground that it was not maintainable. Moreover, the power to order a provisional attachment of property of taxable person including a bank account is draconian in nature and conditions which are prescribed by statute for a valid exercise of power must be strictly fulfilled. The exercise of power for ordering a provisional attachment must be preceded by a formation of an opinion by the Commissioner that it is necessary so to do for purpose of protecting the interest of government revenue. Before ordering a provisional attachment, the Commissioner must form an opinion on basis of tangible material that the assessee is likely to defeat the demand if any, and that therefore, it is necessary so to do.
The SC held that in the instant case, there was a clear non-application of mind by the Joint Commissioner. There was a breach of the mandatory requirement of Rule 159(5) and Commissioner was clearly misconceived in law in coming into the conclusion that he had discretion on whether or not to grant an opportunity of being heard. The Commissioner shall be duty-bound to deal with objections to attachment by passing a reasoned order which must be communicated to the taxable person whose property would be attached. Therefore, it was held that the appeal would be allowed and order of High Court was liable to be set aside and the writ petition filed by the appellant under Article 226 of Constitution shall stand allowed by setting aside the order of provisional attachment.
6. Advertising, Marketing and promotion (‘AMP’) expenses incurred by Importer not required to be added in value of imported goods; Appeal dismissed by SC
Case Details: Commissioner of Customs v. Indo Rubber and Plastic Works
Citation:  128 taxmann.com 276 (SC)
The appellant was engaged in importing and distributing of ‘Li Ning’ brand of sports goods. There was nothing in agreement as a pre-condition of sale/import that a fixed amount or fixed percentage of the invoice value of imported goods was to be spent by the appellant on marketing, advertising, sponsorship and promotional expenses/payments. The department contended that Advertising, Marketing and promotion (‘AMP’) expenses incurred by the appellant were required to add in the value of imported goods.
However, the Tribunal held that mere making of marketing, advertising; sponsorship and promotional expenses/payments by the appellant in consultation with the Singapore seller did not attract provisions of Rule 10(1) (e). Moreover, the activity of marketing, advertising, sponsorship and sales promotion was a post-import activity and expenses/payments were incurred by the appellant on its own account and not for discharge of any obligation of the seller under terms of sale and the appellant had not paid any amount on behalf of the seller. Therefore, it was held that such expenses/payments made by the appellant to promote ‘Li Ning’ brand was not a condition of sale and, hence, same were not liable to be included in the value of imported goods in terms of Rule 10(1)(e).
The department challenged the order. The Apex Court observed that there was no merit in the appeal and accordingly, dismissed the appeal.
7. SEZ unit is eligible to claim refund of unutilized Input Tax Credit: Madras HC
The petitioner was a Special Economic Zone (SEZ) and made purchases from several suppliers/vendors for the development of the SEZ. The petitioner filed applications for refund of the taxes and it was held that the petitioner was not entitled to the refund on the ground that only a supplier of services would be entitled to claim the refund and not the SEZ itself. It filed an appeal and the appeal was also rejected. The petitioner filed the writ petition.
The Honorable High Court observed that Section 54 of the CGST Act read with Rule 89 of CGST Rules permits any entity to seek a refund of taxes or other amounts paid under provisions of the Act. The only exclusion is for the person covered under a notification issued under Section 55, admittedly inapplicable to the petitioner. Therefore, it was held that the application filed for refund of taxes paid under the Act would be maintainable if it would be established that no such claim has been made by supplier, and tax has been remitted to treasury.
8. Pre deposit for filing appeal under GST to be paid through cash ledger and not from credit ledger: Orissa HC
Case Details: Jyoti Construction v. Deputy Commissioner of CT & GST, Jajpur
Citation:  131 taxmann.com 104 (Orissa)
The petitioner was a partnership firm engaged in the business of execution of works contract including civil, electrical and mechanical. The Additional Commissioner rejected the appeal filed by the petitioner holding that the appeals filed were defective. He was of the view that the petitioner had made payment of the pre-deposit being 10% of the disputed amount under the IGST, CGST and SGST by debiting its electronic credit ledger. It did not pay it from the electronic cash ledger and this was in contravention of Section 49(3) of GST Act, 2017. The petitioner filed writ petition against the same.
The Honorable High Court observed that output Tax as defined under section 2(82) of GST Act could not be equated to pre-deposit required to be made in terms of section 107(6) of GST Act. The petitioner was required to make payment equivalent to 10% of the disputed amount of tax arising from the order against which the appeal was filed. The credit ledger cannot be debited for making payment of pre-deposit at the time of filing of the appeal. The petition filed was dismissed.
9. Registration of purchasing dealer cannot be cancelled for fraud committed by selling dealer: HC
The Show-cause notice was issued to the petitioner for cancellation of registration alleging the claim of ITC on fake invoices issued by a non-existent supplier. It filed the reply but registration was cancelled holding that clarification submitted was not satisfactory. It filed for revocation of cancellation of registration but it was also rejected. Thereafter, the appeal was filed before the Appellate Authority and the same was also rejected. It filed a writ petition against the same.
The Honorable High Court observed that the department would have to show that somehow the purchasing dealer and selling dealer acted in connivance to defraud the revenue. However, the department failed to show that the petitioner as a purchasing dealer deliberately availed of the ITC in respect of the transactions with an entity knowing that such an entity was not in existence. Thus, the department was directed to restore the petitioner’s registration by issuing appropriate orders/directions.
10. Amount admitted & paid under stress of investigation can’t lead to self-assessment tax, liable to be refunded: Madras HC
The petitioner was a company registered under the GST laws. An investigation was conducted at the premises of the petitioner’s company and various documents and registers were seized. In course of that investigation, a statement was recorded from Managing Director (MD) that it had not discharged its GST liability correctly. The petitioner submitted that it has no liability to tax and MD and officials were forced to accept liability to tax and the admission was, by no means, voluntary. The visit was on the eve of Deepavali and investigation was carried out in an intrusive and acrimonious fashion. Therefore, the assessee filed a writ petition for the refund of Rs.2 crores paid at the time of the investigation.
The Department submitted that the petitioner has been engaging in large scale tax evasion and has not been paying tax that it is legitimately bound to pay. It was for this reason that it had voluntarily offered to remit tax. The very fact that the petitioner had remitted not one but two instalments of tax would reveal that the payments were voluntary as, if they had been coerced as alleged, the payments would have stopped with the first instalment.
The Honorable High Court observed that merely because an assessee has, under the stress of the investigation, signed a statement admitting tax liability and has also made a few payments as per the statement, cannot lead to self-assessment or self-ascertainment. The ascertainment contemplated under Section 74(5) is of the nature of self-assessment and amounts to a determination that is unconditional, and not one that is retracted as in the present case. It was noted that records did not contain any ascertainment of tax liability by the revenue officer. Therefore, it was held that amount collected, of Rs. 2 crores shall be refunded to the petitioner.
11. ITC availed by buyer can’t be reversed for non-deposit of tax by seller without examining & initiation of recovery proceedings against seller: Madras HC
Case Details: D.Y. Beathel Enterprises v. State Tax Officer,Tirunelveli
Citation:  127 taxmann.com 80 (Madras)
The petitioners were traders in Raw Rubber Sheets and they purchased goods from the seller. The sale consideration was paid only through banking channels including the tax component. They claimed ITC on basis of returns filed by sellers. Later, during the inspection, the department observed that seller failed to pay any tax to the Government. The department, without involving the seller, passed an order levying the entire liability on the petitioners. They challenged the order and filed a writ petition.
The department submitted that the petitioners had availed input tax credit on the premise that tax had already been remitted to the Government, by their sellers. When it turned out that the sellers have not paid any tax and the petitioners could not furnish any proof for the same, the department was entirely justified in proceeding to recover the same from the petitioners.
The Honorable High Court observed that the department does not appear to have taken any recovery action against the seller. When it came out that the seller has collected tax from the purchasing dealers, the omission on the part of the seller to remit the tax in question must have been viewed very seriously and strict action ought to have been initiated against him. The examination of the seller is a necessary step. Thus, the orders against the petitioners were liable to be quashed and matter remitted back and enquiry should be made against the seller.
12. Calcutta HC rejected a petition seeking rectification of Form GSTR-1 after expiry of time period prescribed
The petitioner while uploading Form GSTR-1 (return) inadvertently reported a particular sale made to the registered company as an unregistered sale. Subsequently, after one and half years of the period concerned, the buyer informed the petitioner that they were not getting credit of the Input Tax Credit due to an inadvertent mistake of the petitioner. The petitioner thereafter made an application seeking rectification of the GSTR-1 Form. This application was rejected on the ground that the period for making such an application expired as per Section 37 of the GST Act.
Aggrieved by the communication of the SGST authorities with regard to the rejection of the claim of the petitioner for rectification of accounts, it filed a writ petition against the same.
The Honorable High Court observed that there was no reason to interfere as the statute has provided a period of limitation for seeking rectification. The writ court cannot, by itself, condone such a limitation period. Condoning such delay would make the provision otiose and open the floodgates for similar cases. Therefore, it was held that the claim of the petitioner for rectification of accounts was to be rejected.
13. SCN before confiscation of goods under Customs can’t be indefinitely deferred if goods provisionally released post seizure: Bombay HC
The petitioner was engaged in the business of export and domestic sales of information technology and electronic products. It procured goods from a domestic supplier and sent them for export and filed a shipping bill. The department issued summon and it was alleged that the consignment carrying the goods were having mis-declaration or mislabeling and a seizure was made. Due to pending inquiry and final decision in the matter, the export incentives/rewards of the petitioner was withheld. It filed a writ petition to claim withheld IGST refund.
The Honorable High Court observed that Section 124 of the Customs Act provides for the issue of a show-cause notice before confiscation of goods etc. If within six months (extendable by another six months), no notice under section 124(a) is given post-seizure; the goods shall be returned to the person from whose possession those were seized. But this time limit would not be applicable if goods were provisionally released. But it would not mean that the show-cause notice contemplated under section 124 can be indefinitely deferred or delayed post-seizure where the seized goods are provisionally released.
In the instant case, goods were released but already sufficient time was elapsed since the seizure memo was issued. Therefore, it would be in the interest of justice if the same is adjudicated early. The Court directed the jurisdictional Principal Commissioner of Customs to authorize an appropriate officer of the customs department to adjudicate the case and issue notice within a period of three weeks from the date of receipt of a copy of this judgment and order. The entire proceeding of adjudication shall thereafter be completed within a period of eight weeks from the date of issue of notice under section 124(a) of the Customs Act.
14. Rule 31A(3) declaring GST on race club for 100% of face value of bet amount is ultra vires to CGST Act: Karnataka HC
The petitioner was a race club registered as a company and was conducting horse racing and facilitating betting by punters. The punters placed bet through a totalizator operated by the petitioner. The petitioner distributed the price money to the winning punter setting apart an amount as commission. An amendment was introduced into Rule 31A of CGST Rules which made GST payable on the amount of bet that enters into totalizator. It filed a writ petition challenging the vires of this amendment. The submission of the petitioner was that they were liable to pay tax on the commission that it receive and not for the entire amount that passes through the totalizator which is meant for distribution amongst the winners.
The High Court observed that the Government of India made the value of supply of actionable claim in the form of chance to win in betting gambling or horse racing in a race club to be 100 per cent of the face value of the bet or the amount paid into totalizator. However, a consideration that the petitioners receive is by way of commission for planting a totalizator. This can be nothing different from that of a stockbroker or a travel agent – both of whom are liable to pay GST only on the commission income that they earn and not on all the monies that pass through them. Therefore, it was held that Rule 31A (3) of the Central Goods and Services Tax Rules, 2017 is ultra vires CGST Act, 2017.
15. Judges of Division Bench of Bombay HC differ on the constitutional validity of Section 13(8)(b) of IGST Act, matter referred to Chief Justice
The petitioner was engaged in providing marketing and promotion services to customers located outside India. It was providing services only to the principal located outside India and in lieu thereof receiving consideration in convertible foreign currency from the principal located outside India. The petitioner contended that the transaction entered into by it with the foreign customers would be one of export of service from India earning valuable convertible foreign exchange for the country by an intermediary. However, due to deeming fiction by Section 13(8)(b) of IGST Act, the place of supply shall be the location of the supplier of services which is in India and levy of CGST and SGST would arise. It filed a writ petition assailing the constitutional validity of section 13(8) (b) of the IGST Act.
The Coram of Division Bench Bombay High Court was of two judges. One Judge of Division Bench Bombay High Court observed that Section 13(8) (b) of IGST Act not only falls foul of the overall scheme of CGST Act and IGST Act but also offends Articles 245, 246A, 269A and 286(1) (b) of Constitution. Thus, as per one opinion, the provision is unconstitutional; other has expressed their disagreement and has rendered their separate opinion. Therefore, in view of such difference in opinion, the registry would place the matters before the Hon’ble Chief Justice on the administrative side for doing the needful.
16. Time Limit u/s 54 is not applicable on ocean freight as tax collected without authority of law: Gujarat HC
The applicant filed refund claims of IGST paid on Ocean Freight under reverse charge mechanism after the decision of Court in its own case wherein levy of IGST on such service was held unconstitutional. The department issued Deficiency Memo on an erroneous premise that the refund claim was not filed within the statutory time limit as provided under section 54 of the GST Act. It filed a writ application against the same.
The Court observed that the levy of the IGST under the RCM on the Ocean Freight for the service provided by a person located in non-taxable territory by way of transportation of goods through the vessel from a place outside India to customs frontier of India was already held as unconstitutional. Therefore, the amount of IGST collected by the Central Government was without authority of law, the department was obliged to refund the amount erroneously collected. Since section 54 would be applicable only for claiming refund of any tax paid under provisions of GST Act and the amount collected by the department without the authority of law not to be considered as tax collected by them, section 54 would not be applicable and thus, deficiency memo was to be quashed and set aside. Thus, the Court directed the department to process the refund claim filed in the prescribed form RFD-01 online portal for the month of February 2018 and March 2018.
17. DGGI officers empowered to issue summons under GST: Gujarat HC
The inquiry was initiated against the petitioner and a summons was issued. The petitioner filed the writ petition challenging the summons on the ground that DGGI wrongly assumed jurisdiction to issue summon under section 70 by virtue of Circular dated 5-7-2017 and the same was without jurisdiction.
The Honorable High Court observed that a proper officer has the power to summon any person whose attendance he considers necessary either to give evidence or to produce documents in any inquiry in the same manner in case of a Civil Court under CPC. As per the definition of ‘proper officer’ contained in section 2(91), a ‘proper officer’ in relation to any function to be performed under CGST Act means Commissioner or Officer of Central Tax, who is assigned that function by Commissioner. In the instant case, the summons was issued by an officer of Directorate General of Goods and Services Tax Intelligence (DGGI) holding the designation of Senior Intelligence Officer, who was appointed as Central Tax Officer with all powers under CGST Act.
It was also observed that the officer was assigned powers of a proper officer by Board vide Circular dated 5-7-2017 issued in exercise of powers conferred by clause (91) of section 2 of CGST Act read with section 20 of the IGST Act. Therefore officer of DGGI was the proper officer in relation to function to be performed under CGST Act as contemplated under section 2(91), and therefore, he was entitled to issue summons under section 70 of the CGST Act in connection with inquiry initiated against petitioner.
18. No reversal of ITC in case of loss by consumption of input which is inherent to manufacturing loss: Madras HC
The petitioners were engaged in the manufacture of MS Billets and Ingots. MS scrap was an input in the manufacture of MS Billets and the latter, in turn, would constitute an input for the manufacture of TMT/CTD Bars. There was a loss of a small portion of the inputs, inherent to the manufacturing process. The department issued orders seeking to reverse a portion of the ITC claimed by the petitioners, proportionate to the loss of the input, referring to the provisions of Section 17(5) (h) of the GST Act. The petitioner filed a writ petition against the same.
The High Court observed that assessment orders rejected a portion of ITC claimed, invoking the provisions of Section 17(5)(h) which relates to goods lost, stolen, destroyed, written off or disposed of by way of gift or free samples. The situations as set out in clause (h) indicate loss of inputs that are quantifiable and involve external factors or compulsions. A loss that is occasioned by consumption in the process of manufacture is one that is inherent to the process of manufacture itself. Therefore, the reversal of ITC involving Section 17(5) (h) by the revenue, in cases of loss by consumption of input which is inherent to manufacturing loss is misconceived and not correct; as such loss is not contemplated or covered by the situations adumbrated under section 17(5) (h). Thus, the orders requiring reversal would be liable to be set aside.
19. Discrepancies in valuation of goods cannot be the ground for detention of goods under transport: Chatt HC
The petitioner was a manufacturer of Pan Masala and Tobacco Products. It dispatched goods to its customer and issued a tax invoice as well as an e-way bill generated and handed the same to the in-charge of the conveyance. The vehicle was intercepted by the officials of the Department and asked for the details of the consignment. The driver at the time of interception produced before the authorities the relevant invoice bill and also produced the e-way bill.
The authorities seized the vehicle and the goods on the grounds of there being discrepancies in the valuation of the goods and thereafter detained the vehicle and the goods. Thereafter the petitioner moved an application for release of the vehicle. Without considering any of the contentions raised by the petitioner, the authorities assessed the tax payable on the goods and the penalty for the purpose of releasing the goods and the vehicle. It filed a writ petition to seek relief.
The Honorable High Court observed that the authorities detained goods of the petitioner under transport, as well as the vehicle on the ground that there were discrepancies in valuation of goods being transported, i.e., valuation, did not seem to have been properly conducted. However, undervaluation of goods in the invoice couldn’t be a ground for the detention of goods and vehicles for a proceeding to be drawn under section 129. Therefore, the Court directed the authorities to release the goods belonging to the petitioners based on the invoice bill as well as the e-way bill.
20. Authorities can initiate audit and investigation simultaneously in GST
The petitioners were Managing Director and Director of a Media Company engaged in providing cable services to its customers as Multi-Service Operator under the regulation issued by the Telecom Regulatory Authority of India (TRAI). The GST Authorities initiated search and seizure proceedings against them. The authorities issued notice and further passed an order of seizure. Thereafter, the GST Authorities issued notice to petitioners under section 65 for auditing of books. The petitioners submitted that they had never defaulted to any of the statutory responsibilities. They filed the writ petition seeking relief in this regard.
The Honorable High Court observed that provisions of the CGST Act, 2017 like inspection of the premises, powers of arrest and summons to produce documents have been incorporated with the aim to prevent evasion of GST at the hands of unscrupulous taxpayers. The process issued for auditing of the books as well as the order of seizure of the documents would help the department in co-relating the entries in the documents and at the time of auditing of the account. Therefore, it would be too premature to comment upon the act of the GST Authorities and writ petition accordingly dismissed.
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