Author: subtleankish

Delhi HC Grants Ex Parte Injunction Restraining Unauthorised Use of BharatBenz Mark on Buses Lacking Safety Features

The Delhi High Court has granted an ex parte ad interim injunction restraining Getmohit Cab Private Limited, Shri Bheru Nath Motor Body, and unidentified John Doe entities from manufacturing, deploying, marketing, or advertising buses under the “BHARATBENZ” mark, in a trademark infringement suit filed by Daimler India Commercial Vehicles Pvt Ltd. Justice Jyoti Singh, finding that the plaintiff had established a prima facie case and that irreparable harm would follow if the injunction were withheld, passed a sweeping restraint order covering the use of any mark, logo, label, device, or trade dress deceptively similar to Daimler India’s registered trademarks in relation to buses and allied services.

The suit was triggered by a discovery made around the end of November 2025, when Daimler India came across a video on the social media platform X showing a bus bearing the “BHARATBENZ” mark and logo on its front grille, while the steering wheel carried branding of a different manufacturer — Leyland. The video further revealed that the bus lacked essential safety features including an emergency exit and air suspension. Daimler India, represented by Advocates Pravin Anand, Vaishali Mittal, Siddhant Chamola, and Jitesh P. Gupta, alleged that the defendants were manufacturing and deploying these buses without authorisation, and were promoting and booking them through websites and online platforms where “Bharat Benz” was listed as a bus type — a practice the plaintiff contended was misleading consumers into believing a commercial association with Daimler India.

The plaintiff argued that such unauthorised deployment of identical or deceptively similar marks for identical services was likely to cause public confusion and dilute the distinctiveness of the well-known “BENZ” family of marks. It further contended that the inferior quality of the buses — evidenced by the missing safety features — was actively damaging the reputation and goodwill attached to the BharatBenz brand. The Court accepted these submissions at this stage, noting that the balance of convenience favoured the plaintiff, and restrained the defendants and all persons acting on their behalf from any use of the mark across manufacturing, marketing, sale, supply, deployment, display, and advertising. The matter is next listed for 22 July 2026.

The order is notable not merely as a routine trademark injunction but for the consumer safety dimension that underpins it. The combination of counterfeit branding with demonstrably substandard safety standards — no emergency exit, no air suspension — transforms what might otherwise be a conventional passing-off dispute into a matter with potential regulatory and public safety ramifications. For brand owners in the commercial vehicle segment, the decision reinforces the utility of John Doe injunctions in addressing distributed infringement networks where the full chain of manufacturing, branding, and deployment may span multiple unidentified actors.

GSTAT Clears Samridhi Realty of Anti-Profiteering Charges After Finding Developer Passed On Rs 9.86 Crore in Excess ITC Benefits

The New Delhi Bench of the Goods and Services Tax Appellate Tribunal has closed anti-profiteering proceedings against Samridhi Realty Pvt. Ltd., accepting the Director General of Anti-Profiteering’s closure report after finding that the developer had already passed on input tax credit benefits to homebuyers far exceeding the amount required under Section 171 of the Central Goods and Services Tax Act, 2017. Justice Mayank Kumar Jain and Technical Member Anil Kumar Gupta, disposing of the matter by order dated 2 April 2026, recorded that no contravention of the anti-profiteering provisions could be sustained in circumstances where the developer had demonstrably over-compensated its buyers.

The complaints had been filed by purchasers of flats in the “Samridhi Grand Avenue” project in Greater Noida West, alleging that the developer had failed to pass on additional ITC benefits arising from the transition to the GST regime from 1 July 2017. The proceedings had a layered procedural history — the DGAP conducted a reinvestigation pursuant to the Delhi High Court’s decision in Reckitt Benckiser India Pvt. Ltd. v. Union of India, and upon recalculation found that while the developer had received an additional ITC benefit of 4.19 per cent in the post-GST period, the computed profiteering amount stood at Rs 6.59 crore. Against this figure, Samridhi Realty — represented by Chartered Accountant Ashish Vaish — had already passed on ITC benefits of Rs 16.45 crore to 935 homebuyers, resulting in an excess pass-through of Rs 9.86 crore over and above the statutory requirement.

During the hearing, the developer agreed to pay differential amounts along with interest to the two individual complainants, who acknowledged receipt of the recalculated benefits. No other homebuyer among the 935 recipients raised any objection to the DGAP’s closure report.

The outcome illustrates a relatively uncommon scenario in anti-profiteering jurisprudence — a developer that has not merely complied with the pass-through obligation but substantially exceeded it. For the real estate industry, the decision confirms that where a respondent can demonstrate through the DGAP’s own investigation that benefits passed on exceed the computed profiteering amount, proceedings will be closed without adverse findings, regardless of the initial complaint. It also highlights the practical effect of the Reckitt Benckiser reinvestigation framework, which in this instance produced a result entirely favourable to the developer upon recalculation.

GSTAT Confirms Rs 1.20 Crore Anti-Profiteering Demand Against Ahmedabad Developer for Withholding ITC Benefits from Homebuyers

GSTAT Confirms Rs 1.20 Crore Anti-Profiteering Demand Against Ahmedabad Developer for Withholding ITC Benefits from Homebuyers

The GST Appellate Tribunal has upheld a finding that Ahmedabad East Infrastructure LLP failed to pass on input tax credit benefits to homebuyers after the introduction of GST, directing the developer to refund Rs 1,20,72,320 along with interest at 18 per cent from the date the excess amount was collected. Technical Member A. Venu Prasad, sitting on the Principal Bench, confirmed by order dated 2 April 2026 the conclusions reached by the Directorate General of Anti-Profiteering and held the developer in violation of the anti-profiteering mandate under Section 171 of the Central Goods and Services Tax Act, 2017.

The investigation had established that the developer’s input tax credit ratio increased by 1.31 per cent following the transition to the GST regime — a quantifiable benefit that, under Section 171, was required to be passed on to recipients by way of commensurate reduction in prices. The developer, represented by Advocate Chintan Vasa, did not contest the computation and agreed to refund the amount. Praveen Kumar appeared for the applicants.

The Tribunal directed refund with interest at 18 per cent under Rule 133(3)(b) of the CGST Rules, reasoning that the obligation to pass on the benefit crystallises at the time of supply and not at any subsequent point. It further held that penalty under Section 171(3A) was leviable, subject to the statutory proviso that governs its imposition.

The order reinforces the Tribunal’s consistent position that the anti-profiteering mechanism under Section 171 operates as a mandatory pass-through obligation, not a discretionary one, and that even where the respondent does not dispute the computation, interest liability accrues automatically from the date of collection. For the real estate sector — which has generated the bulk of anti-profiteering complaints since 2017 — the ruling serves as a reminder that any post-GST enhancement in ITC ratios must be reflected in pricing contemporaneously with the supply, and that belated compliance after an investigation does not extinguish the interest and penalty consequences.

Calcutta HC Rebukes GST Officers for Demanding Personal Appearance of Kanpur Proprietor, Flags Four-Month Detention Without Seizure Order

The Calcutta High Court has sharply criticised GST authorities for insisting that a Kanpur-based sole proprietor appear in person before them in connection with the detention of goods in transit, holding that Section 116 of the Central Goods and Services Tax Act, 2017 expressly permits appearance through an authorised representative, including an advocate, and that no justification existed for overriding that statutory entitlement. Justice Kausik Chanda, disposing of a writ petition filed by Sunshine Enterprises through Advocate Pranit Bag, simultaneously flagged a far graver procedural failing — the authorities had detained goods and a vehicle for over four months without passing any formal order of seizure, a lapse the Court found incompatible with the statutory time frames prescribed under the CGST Act and the rules framed thereunder.

The dispute concerned 480 cartons of pan masala valued at Rs 36.24 lakh, supplied by Sunshine Enterprises to Maa Kali Traders in Howrah. The consignment was accompanied by tax invoices, e-way bills, and transport documents, and was intercepted on 18 December 2025 while in transit. The vehicle and goods were detained on the spot. When the proprietor sought release, the authorities demanded her personal appearance. She responded through her advocate, requesting that representation through counsel be accepted and pressing for release of the detained consignment. On 14 January 2026, the authorities wrote back, citing a report from the Uttar Pradesh GST department which alleged that Sunshine Enterprises did not exist and had been created to avail wrongful input tax credit — a claim on the basis of which they continued to insist on personal appearance. Advocates Nilotpal Chatterjee appeared for the Revenue.

The Court found no merit in the Revenue’s position on either front. On the question of personal appearance, it held that the statutory framework under Section 116 admits of no ambiguity — a person summoned or otherwise required to appear before a GST officer in connection with any proceedings is entitled to do so through an authorised representative, and the authorities had no basis for departing from this express provision. On the detention itself, the Court observed that the goods were perishable in nature and that the authorities ought to have proceeded within the timelines mandated by the statute, rather than allowing the matter to remain in limbo for four months without formalising the detention into a seizure order or initiating proceedings under Section 129.

The Court also addressed the question of ownership for the purposes of Section 129 proceedings, noting a government circular dated 31 December 2018 which provides that where invoices accompany the goods, either the consignor or the consignee is to be treated as the owner. It observed that the invoices reflected Sunshine Enterprises as consignor and Maa Kali Traders as consignee, and that the authorities ought to have determined ownership accordingly. The Court further noted a communication from the consignee requesting that the goods and vehicle not be released without its consent — a factor that needed to be addressed in a hearing with all parties present.

The Court directed the GST officer to fix a hearing on 10 April 2026, permit the petitioner to appear through her advocate, and issue notice to the consignee within 24 hours. It ordered that after granting an opportunity of hearing to all parties, the authorities must pass an order under the Act within 48 hours. It clarified that if the petitioner deposits the amount contemplated under Section 129(1)(a) and such payment is accepted, the goods and vehicle shall be released in accordance with law, subject to the outcome of the proceedings.

The decision carries significance beyond the individual dispute. The insistence on personal appearance — particularly when directed at an out-of-state assessee — operates in practice as a coercive tool that delays proceedings, prolongs detention of goods, and imposes disproportionate compliance costs on small proprietors. By anchoring its reasoning in Section 116 and the government’s own circular, the Calcutta High Court has reinforced that the right to appear through counsel is not a discretionary concession but a statutory entitlement, and that authorities who disregard it risk having their proceedings set aside for procedural impropriety.

Telangana HC Strikes Down Composite GST Demand Against Company and Its MD, Mandates Separate Orders to Preserve Appeal Rights

A Division Bench of the Telangana High Court has held that tax authorities cannot issue a single composite liability order against a company and its Managing Director under the GST regime and then rely on that very consolidation to foreclose independent appellate remedies for each party. Chief Justice Aparesh Kumar Singh and Justice G.M. Mohiuddin, allowing writ petitions filed by Sugna Metal Limited and its Managing Director — represented by Advocate Akruti Goyal — directed the Revenue to issue two distinct Form GST DRC-07 orders within two weeks, and ruled that the limitation clock for filing appeals would commence only upon issuance of these fresh separate orders.

The proceedings originated from a demand exceeding Rs 2.59 crore confirmed under the Central Goods and Services Tax Act, 2017, encompassing tax, interest, and penalties. The Department had issued a single Order-in-Original and a composite DRC-07 form fastening liability jointly on the company and its Managing Director. The Managing Director’s predicament was acute — he was not even registered under GST, and the absence of an individual liability order meant he had no mechanism to file an independent statutory appeal under Section 107 of the CGST Act. Senior Standing Counsel Dominic Fernandes appeared for the Revenue.

The Bench accepted the Managing Director’s contention that the composite format effectively extinguished his statutory right of appeal. It directed the authorities to first grant the Managing Director a temporary GST identification number, thereby bringing him within the procedural architecture of the statute, and thereafter to bifurcate the existing composite order into two separate DRC-07 forms — one addressed to the company, the other to the Managing Director. The Court was careful to ensure that this remedial direction did not come at the cost of limitation, clarifying that the period for filing appeals would be reckoned only from the date of issuance of the revised separate orders, thereby preserving the appellate window for both parties in full.

The decision addresses a structural vulnerability in GST adjudication practice that has received limited judicial attention. When tax authorities club the liability of a registered entity and an unregistered individual — typically a director or partner made liable under Section 137 or Section 89 of the CGST Act — into a single order, the unregistered individual is procedurally stranded: without a GSTIN, the individual cannot access the common portal to file an appeal, and without a separate order, there is nothing discrete to challenge. The Telangana High Court’s direction to issue a temporary registration number and bifurcate the DRC-07 creates a replicable template for similarly situated directors and partners across the country, and puts adjudicating authorities on notice that composite orders which structurally deny appellate access will not survive judicial scrutiny.

Delhi HC Shuts Door on Writ Challenge to GST Corrigendum, Points Assessee to Appellate Remedy

The Delhi High Court has refused to intervene under Article 226 of the Constitution in a challenge to a corrigendum that allegedly transformed the scope of a show cause notice issued under the Central Goods and Services Tax Act, 2017, by grafting an entirely new financial year onto the original demand. A Division Bench comprising Justices Nitin Wasudeo Sambre and Ajay Digpaul held that the question of whether such a corrigendum constituted a legitimate typographical correction or an impermissible expansion of proceedings is inherently a factual inquiry — one that must be resolved through the statutory appellate machinery rather than through the writ court’s certiorari jurisdiction.

The dispute arose from proceedings initiated against Manpar Icon Technologies under Section 74 of the CGST Act, which governs demands in cases of fraud, wilful misstatement, or suppression of facts. The original show cause notice covered Financial Year 2018–19. A corrigendum was subsequently issued that introduced Financial Year 2019–20 into the scope of the notice. The adjudicating authority thereafter passed an order-in-original confirming a tax demand exceeding Rs 42 lakh. Manpar Icon Technologies, represented by Advocates Chinmaya Seth, A.K. Seth, and Palak Mathur, challenged the corrigendum, the show cause notice, and the final order before the High Court, arguing that what the Revenue characterised as a correction was, in substance, the initiation of entirely fresh proceedings for a separate financial year — proceedings that could not be sustained within the limitation framework of Section 74 and could not be dressed up as a rectification under Section 161 of the CGST Act.

The Revenue, represented by Standing Counsel Monica Benjamin with Advocate Nancy Jain, maintained that the corrigendum did nothing more than rectify a typographical error concerning the relevant tax period and introduced no new transaction or liability. The Revenue further pressed the availability of a statutory appeal under Section 107 of the CGST Act as a complete answer to the petitioner’s grievance.

The Bench sided with the procedural objection. It observed that the CGST Act confers the statutory power to issue corrigenda, but the question of whether any particular corrigendum falls within the permissible boundaries of correction or strays into the territory of an impermissible expansion of scope is one that demands a close examination of the underlying factual record — an exercise the Court found incompatible with the limited certiorari jurisdiction available under Article 226. The Court further reasoned that mere disagreement with the conclusions reached by the adjudicating authority does not, standing alone, furnish a basis for bypassing the statutory remedy and invoking the writ court’s extraordinary jurisdiction. It pointed to Section 107 of the CGST Act, read with Rule 109A of the CGST Rules, as the express appellate avenue available to any person aggrieved by an order passed under Section 74, and found no cause to interfere. The Bench was careful to clarify that it had not examined or expressed any view on the merits of Manpar Icon Technologies’ substantive challenge, leaving those questions entirely open for the appellate forum.

The ruling underscores a recurring tension in indirect tax litigation under the GST regime: the boundary between a corrigendum that corrects a clerical error and one that substantively alters the scope of adjudication. For assessees confronted with corrigenda that appear to expand the taxable period, the decision signals that the High Court will not readily step in as a first-instance fact-finding body, even where the expansion is alleged to violate limitation provisions. The practical implication is clear — the statutory appellate route under Section 107, rather than writ jurisdiction, will remain the expected forum for contesting such disputes, unless the assessee can demonstrate that the case falls within one of the recognised exceptions to the alternative remedy doctrine, such as a jurisdictional error apparent on the face of the record or a violation of principles of natural justice that renders the appellate remedy illusory.

Australia’s Apex Court Shuts Down Devas Investors’ USD 111 Million Claim Against India

A full bench of Australia’s highest court has delivered a significant ruling on the intersection of international arbitration enforcement and foreign state immunity, dismissing an attempt by Mauritian shareholders in Devas Multimedia Private Limited to enforce a USD 111 million arbitral award against the Republic of India. The seven-judge constitution bench, presided over by Chief Justice Stephen Gageler, held that a state’s accession to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards does not, by itself, constitute an abandonment of sovereign immunity — a finding that carries considerable weight for India’s ongoing defence against multiple enforcement proceedings arising from the Antrix-Devas satellite spectrum dispute across several jurisdictions worldwide.

The factual matrix traces back to a 2005 commercial agreement between Antrix Corporation Limited — the commercial arm of the Indian Space Research Organisation — and Devas Multimedia, a Bengaluru-based company, for the lease of electromagnetic spectrum on satellites to deliver broadband and audio-visual services across India. The arrangement unravelled in 2011 when the Government of India annulled the contract, invoking national and strategic spectrum requirements. Mauritian investors holding equity in Devas subsequently initiated arbitral proceedings at The Hague in July 2012 under UNCITRAL Rules, arguing that the cancellation amounted to expropriation of their investments under the India-Mauritius Bilateral Investment Treaty, which had been signed in 1998 and entered into force on 20 June 2000. The arbitral tribunal, in a jurisdictional ruling dated 25 July 2016, upheld its authority to adjudicate the dispute and found India in breach of its treaty obligations. The proceedings culminated in a final award on 13 October 2020, directing India to pay compensation exceeding USD 111 million. Enforcement proceedings in Australia were launched on 21 April 2021.

The central legal question before the Australian High Court was deceptively narrow but carried systemic implications: does India’s ratification of the New York Convention operate as a waiver of its foreign state immunity in Australian courts? The appellants — represented by B.W. Walker SC alongside J.A. Hogan-Doran SC and A.F. Garsia, instructed by Norton Rose Fulbright — argued that by acceding to the Convention, India had submitted itself to the enforcement jurisdiction of every contracting state’s domestic courts. India, represented by J.T. Gleeson SC and F.T. Roughley SC with C.G. Winnett, instructed by White & Case, countered that sovereign immunity is a distinct body of law that the Convention neither addresses nor overrides. The Commonwealth of Australia intervened through Solicitor-General S.P. Donaghue KC with C.S.A. Harris and A.A.E. O’Beid, instructed by the Australian Government Solicitor.

The Court came down firmly in favour of the immunity defence. It reasoned that while foreign state immunity in many jurisdictions — Australia included — is not absolute and admits of exceptions where local courts retain jurisdiction over foreign states as part of territorial sovereignty, a robust presumption operates against any inference that a foreign state has relinquished that protection. Any waiver, the Court held, must be established to a standard that is unambiguous and unmistakable. The Court found that no such waiver could be derived from India’s ratification of the New York Convention. It turned to Article III of the Convention, which governs the obligation of contracting states to recognise and enforce awards, and concluded that this provision expressly preserves the application of domestic procedural rules — including foreign state immunity statutes — in the territory where enforcement is sought. The Convention’s text and drafting history, the Court observed, contain no express reference to the displacement of sovereign immunity, and no interpretation to that effect could be sustained.

Notably, the Court declined to engage with the broader question of the Convention’s substantive scope — a matter that had attracted academic and practitioner attention — holding that since the immunity point was dispositive, there was no occasion to explore questions that had not been fully ventilated. The bench observed that such issues ought to be resolved in a future case where they prove determinative and have been thoroughly examined.

The practical consequence of this judgment extends well beyond the Antrix-Devas dispute. Devas investors have pursued enforcement of the same award across multiple national courts, and the Australian ruling now stands as the most authoritative apex court pronouncement on whether Convention membership entails a jurisdictional concession by sovereign states. For India, which has been defending against these enforcement attempts on several fronts, the decision provides a powerful precedent. For the international arbitration community, it reinforces the understanding that the New York Convention is an enforcement facilitation mechanism, not a device for circumventing the settled doctrine of sovereign immunity — a distinction that sovereign respondents in investment treaty arbitrations will undoubtedly rely upon in future enforcement battles across common law and civil law jurisdictions alike.

Digital-Only Service of Tax Notices Fails Natural Justice Where Registration Stands Cancelled, Rules Allahabad HC

A publisher whose GST registration was cancelled nearly five years before the Revenue chose to initiate adjudication proceedings against it has secured relief from the Allahabad High Court, which has struck down the resulting assessment order on the ground that uploading a show cause notice on the GST common portal — a portal the taxpayer could no longer access — amounted to no service at all. The Division Bench of Justice Saumitra Dayal Singh and Justice Vivek Saran, deciding Shri Dewan Publications v. Assistant Commissioner, State Tax and Another (Writ Tax No. 1580 of 2026), held that where a taxpayer’s registration has been cancelled, the statutory machinery must revert to physical modes of service prescribed under Section 169(1)(a) and (b) of the U.P.G.S.T. Act, 2017, failing which the proceedings stand vitiated for breach of natural justice.

The factual matrix was stark in its simplicity, and that simplicity is precisely what gave the legal question its force. Shri Dewan Publications had its GST registration cancelled prospectively with effect from 20 September 2019. The firm subsequently obtained a fresh registration under a new GSTIN to continue its trade. Nearly five years later, on 30 May 2024, the Revenue issued a show cause notice pertaining to the financial year 2019-20 — but uploaded it against the old, cancelled GSTIN on the common portal. An adjudication order followed on 29 August 2024. The petitioner, represented by Advocates Sumeet Mishra and Suyash Agarwal, contended that it had received no actual notice whatsoever — neither of the show cause notice nor of the adjudication proceedings — because it had no access to the portal linked to the defunct registration and was under no obligation to monitor it.

The Court’s reasoning rested on an elementary proposition that the GST administration’s digital architecture had obscured: a cancelled registration severs the taxpayer’s connection to the common portal. The Bench observed that the registration underpinning the adjudication proceedings had been cancelled approximately five years before the show cause notice was even issued, and that the entire proceeding appeared to have advanced solely on the basis of portal-based service against a registration that no longer existed in any functional sense. The Court further drew upon the Revenue’s own concession in Bambino Agro Industries Ltd. v. State of Uttar Pradesh & Anr., where the respondents had admitted that adjudication against persons with cancelled registrations may proceed only upon physical service of notice.

On this footing, the Bench set aside the adjudication order and the underlying proceedings in their entirety, granting liberty to the Revenue to recommence the process by issuing a fresh notice through physical mode, accompanied by all documents intended to be relied upon.

The decision exposes a structural vulnerability in the GST regime’s near-total dependence on digital communication infrastructure. Section 169 of the CGST Act and its state counterparts enumerate multiple modes of service — personal delivery, registered post, speed post, courier, and electronic means including the common portal. The legislative design contemplates these as alternatives, not a hierarchy, and certainly not a regime in which portal-based service operates as a fiction of deemed knowledge even after the taxpayer has been locked out of the system. As the Revenue increasingly pursues legacy tax periods against entities whose registrations have since lapsed or been cancelled — a category that runs into the hundreds of thousands — this ruling establishes a practical safeguard: the digital portal cannot substitute for actual notice where the precondition for digital access, namely an active registration, no longer exists. The principle is unremarkable as a matter of natural justice doctrine, but its articulation in the GST context fills a gap that the administration’s enforcement practices had quietly created.

Allahabad High Court, GST, Cancellation of Registration, Show Cause Notice, Physical Service, Section 169 UPGST Act, Natural Justice, Common Portal, Adjudication Notice, Writ Petition, Shri Dewan Publications, Bambino Agro Industries

Insurers Win Breathing Room as Bombay HC Questions Revenue’s Authority to Tax Pre-Amendment SEZ Supplies

The jurisdictional limits of retrospective taxation in the GST regime have come under sharp judicial scrutiny, with the Bombay High Court granting a blanket stay on tax demands raised against several of India’s largest general insurers over insurance policies sold to Special Economic Zone units between 2017-18 and 30 September 2023. The Division Bench of Justice G.S. Kulkarni and Justice Farhan P. Dubash, hearing a batch of writ petitions led by ICICI Lombard General Insurance Co. Ltd. (W.P. No. 7806/2025 & Batch), found prima facie merit in the insurers’ central contention — that the designated officer simply had no jurisdiction to reach back in time and impose GST on transactions that the law had, at the relevant time, classified as zero-rated.

The dispute traces its origin to a legislative amendment that took effect on 1 October 2023. Prior to that date, Section 16 of the IGST Act treated all supplies made to SEZ units as zero-rated without qualification. The Finance Act, through Notification No. 27/2023-Central Tax dated 31 July 2023, introduced the limiting phrase “for authorised operations” into Section 16, effective from 1 October 2023 onwards. The Revenue’s position, as articulated through the impugned show cause notices and assessment orders, was that this amendment was merely clarificatory in nature — a legislative exposition of what the law had always meant — and that insurance policies purchased by SEZ units for the benefit of their employees had never truly qualified as supplies for authorised operations. On this reasoning, the department sought to recover GST for the entire period stretching back to the inception of the GST regime in 2017-18.

The insurers — a consortium that included ICICI Lombard, HDFC Ergo, Bajaj Allianz, IFFCO Tokio, SBI General Insurance, and others — mounted a frontal challenge to this characterisation. Their argument, advanced by Senior Advocates Vikram Nankani (instructed by Pythogoras Legal, with Advocates Prithwiraj Choudhari and Aansh Desai) and Rohan P. Shah (with Harish Bindumadhavan, Mahir Chablani, Prathamesh Gargate, and Dimpal Jangaid), alongside Advocate Sriram Sridharan (with Shanmuga Dev and Aditi Jain), was straightforward: until the amendment came into force, the statute drew no distinction between types of supplies to SEZ units, and the entire category enjoyed zero-rated status as a matter of law, not administrative concession. To reclassify those supplies retrospectively, the insurers contended, would amount to imposing a tax liability that did not exist at the time the transactions occurred — a fundamental jurisdictional impossibility.

The Bench found considerable force in this submission. In its prima facie assessment, the Court observed that the designated officer would lack jurisdiction to retrospectively levy tax on the supply in question, namely the sale of insurance policies to SEZ units, for the period preceding the amendment. Having determined that the petitions raised arguable issues warranting full adjudication, the Court directed that all impugned orders arising from the challenged show cause notices shall remain stayed pending the hearing and final disposal of the petitions. The Revenue, represented by Advocates Yogendraprasad Ramdin Mishra, Siddharth Chandrashekhar, Ram Ochani, Jitendra B. Mishra, Karan Adik, and their respective teams, was directed to file reply affidavits within four weeks, with liberty to all parties to move for final hearing thereafter.

The interim order carries significance well beyond the immediate tax demands at stake. At its core, the case tests a principle that sits at the intersection of fiscal law and constitutional governance — whether Parliament’s power to amend a taxing statute carries within it the power to recharacterise past transactions through the device of calling an amendment “clarificatory.” The Revenue’s attempt to treat the October 2023 amendment as declaratory rather than substantive, if sustained, would have permitted the department to effectively nullify the zero-rated treatment that SEZ units and their suppliers had legitimately relied upon for over six years. The Bombay High Court’s willingness to intervene at the interim stage signals a judicial reluctance to endorse that approach, and the final outcome of these petitions could establish an important marker on the boundaries of retrospective fiscal action under the GST architecture — particularly for industries such as insurance, banking, and professional services that supply to SEZ units in ways that do not always map neatly onto the “authorised operations” framework the 2023 amendment introduced.

Decoding Section 35 BNSS for Criminal Practitioners

The Intersection of Fear and Law — Client Counselling and Constitutional Safeguards

The practice of criminal law in India frequently places lawyers at the intersection of their clients’ deepest anxieties and the technical requirements of procedural law. Few moments crystallise this dynamic more acutely than when a client receives a Section 35 notice under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). This provision, which replaced Section 41A of the Code of Criminal Procedure, 1973, represents the legislative acknowledgment that arrest should be the exception rather than the rule in matters involving offences punishable with imprisonment up to seven years.

The typical scenario is familiar to every criminal practitioner. A client calls in visible distress, having received what they perceive as a summons to their inevitable incarceration. The notice, bearing official letterhead and citing statutory provisions, appears to them as the first step toward a criminal conviction. Their immediate instinct often vacillates between two equally dangerous extremes: either fleeing the jurisdiction or presenting themselves at the police station prepared to confess everything in hopes of securing leniency.

Both responses stem from a fundamental misunderstanding of what the Section 35 notice actually represents within the architecture of Indian criminal procedure. The practitioner’s first task, therefore, is one of education and reassurance, grounded in both the letter of the law and the substantial body of judicial interpretation that has developed around the rights of persons under investigation.

The Constitutional Foundation: Article 20(3) and the Right Against Self-Incrimination

Any meaningful discussion of a client’s rights during police questioning must begin with Article 20(3) of the Constitution of India, which provides that no person accused of any offence shall be compelled to be a witness against himself. This constitutional safeguard forms the bedrock upon which all subsequent procedural protections rest.

The Supreme Court’s interpretation of this provision in State of Bombay v. Kathi Kalu Oghad [(1961) 2 SCR 125] established foundational principles that continue to govern the understanding of self-incrimination. The eleven-judge bench clarified that the protection extends to testimonial compulsion, meaning the extraction of information through statements or communications that convey personal knowledge of incriminating facts. The Court drew a crucial distinction between testimonial evidence, which is protected, and physical or material evidence such as fingerprints or handwriting samples, which may be compelled without violating Article 20(3).

This distinction becomes particularly relevant when advising clients about what they may be required to provide during police questioning. A client cannot be compelled to make oral statements that incriminate them, but they may be required to provide identification documents or submit to certain identification procedures.

The jurisprudence was significantly advanced in Nandini Satpathy v. P.L. Dani [(1978) 2 SCC 424], where Justice V.R. Krishna Iyer delivered what remains the most comprehensive judicial exposition on the right to silence during police interrogation. The case arose when Nandini Satpathy, a former Chief Minister of Orissa, refused to answer questions during a corruption investigation and was subsequently prosecuted under Section 179 of the Indian Penal Code for refusing to answer questions put by a public servant.

The Supreme Court held that the protection against self-incrimination under Article 20(3) applies not merely during court proceedings but extends to police interrogation as well. The Court observed that the right to silence is not confined to the particular offence under investigation but extends to any offence about which the accused has reasonable apprehension of implication. This expansive interpretation ensures that a person being questioned about one matter cannot be coerced into providing information that might incriminate them in unrelated proceedings.

Perhaps most significantly for practitioners, the Court in Nandini Satpathy held that Section 161(2) of the CrPC (now Section 180(2) of BNSS) constitutes a statutory extension of Article 20(3). This provision explicitly exempts persons from answering questions where the answers would have a tendency to expose them to criminal charges or penalties. The integration of constitutional and statutory protections creates a comprehensive shield that practitioners must help their clients understand and invoke appropriately.

The Arnesh Kumar Paradigm: Arrest as Exception

The framework governing Section 35 notices cannot be properly understood without reference to Arnesh Kumar v. State of Bihar [(2014) 8 SCC 273], perhaps the most influential judgment on arrest procedures in recent Indian jurisprudence. The Supreme Court, while addressing the misuse of Section 498A IPC (dowry harassment), established guidelines that have since been applied universally to arrests for offences punishable with imprisonment up to seven years.

The Court observed that arrest is not mandatory for cognizable offences and should only be made when the conditions specified in Section 41(1)(b) of the CrPC are satisfied. Police officers must now apply their minds to determine whether arrest is necessary to prevent the accused from committing further offences, to properly investigate the case, to prevent tampering with evidence or influencing witnesses, or to ensure the accused’s presence during trial.

Where these conditions are not satisfied, the investigating officer must issue a notice under Section 41A (now Section 35 BNSS) requiring the person to appear before the police station. The Court mandated that compliance with this notice would generally protect the person from arrest, fundamentally transforming the notice from a mere procedural formality into a substantive safeguard of personal liberty.

The Arnesh Kumar guidelines were further strengthened in Satender Kumar Antil v. CBI [(2022) 10 SCC 51], where the Supreme Court observed that Sections 41 and 41A of the CrPC are facets of Article 21 of the Constitution. The Court categorically held that non-compliance with these provisions would entitle the accused to grant of bail. This elevation of procedural requirements to constitutional status significantly enhances their protective value.

The judgment in Satender Kumar Antil also addressed the practical challenge of inconsistent implementation across states. The Court directed all State Governments and Union Territories to issue Standing Orders establishing procedures for issuance of notices in accordance with Section 41A requirements, noting the Delhi Police Standing Order 109 of 2020 as a model. This direction ensures that the protections are not merely theoretical but operationally implemented across the country.

The D.K. Basu Guidelines: Safeguards During Custody

While Section 35 notices are designed to avoid arrest, practitioners must prepare clients for the possibility that circumstances may change during their appearance at the police station. In this context, the guidelines established in D.K. Basu v. State of West Bengal [(1997) 1 SCC 416] become essential knowledge.

The Supreme Court, responding to a public interest litigation highlighting custodial violence and deaths, established comprehensive guidelines to protect the rights of arrested persons. These guidelines were subsequently incorporated into the CrPC through the 2008 Amendment and now form part of the BNSS framework.

The guidelines require police personnel conducting arrest and interrogation to wear visible identification badges with name tags. An arrest memo must be prepared at the time of arrest, attested by at least one witness who may be a family member or a respected person from the locality. The arrestee must be informed of their right to have a friend or relative notified about the arrest, and this notification must be made within eight to twelve hours if the concerned person lives outside the district.

For practitioners, these guidelines serve multiple purposes. They provide a checklist of procedural requirements that can be verified during and after a client’s appearance at the police station. Any violation can be documented and potentially used as grounds for bail applications or complaints against errant officers. The guidelines also empower clients with knowledge of their rights, reducing the psychological vulnerability that often leads to inappropriate confessions or admissions.

The Evidentiary Landscape: Section 161 Statements and Their Limitations

A common source of anxiety for clients is the concern that anything they say during police questioning will be used against them at trial. Practitioners must explain the evidentiary framework governing police statements to alleviate these concerns while ensuring clients do not become cavalier in their responses.

Section 162 of the CrPC (now Section 181 of BNSS) establishes that statements made to police officers during investigation are not admissible as evidence against the person making the statement. The Supreme Court in Parvat Singh v. State of Madhya Pradesh [Criminal Appeal No. 374 of 2020] reiterated that statements recorded under Section 161 CrPC can only be used to prove contradictions and omissions, not as substantive evidence supporting conviction.

This principle was further elaborated in Renuka Prasad v. The State [(2025) INSC 657], where the Supreme Court set aside a High Court conviction that had relied on the investigating officer’s testimony regarding statements recorded under Section 161. The Court emphasised that such statements have no evidentiary value unless the witnesses themselves confirm them during trial. The mere fact that an investigating officer recounts what a witness allegedly said cannot substitute for the witness’s own testimony.

The Court in Renuka Prasad drew an important distinction between police testimony regarding physical recoveries under Section 27 of the Indian Evidence Act (now Section 23 of Bharatiya Sakshya Adhiniyam), which may be credible, and testimony regarding witness statements recorded under Section 161, which cannot be relied upon as substantive evidence. This distinction helps practitioners explain to clients why cooperation in providing physical evidence may be appropriate while caution regarding oral statements remains warranted.

The protection is further strengthened by Section 25 of the Indian Evidence Act (now Section 22 of BSA), which renders confessions made to police officers completely inadmissible regardless of their voluntary nature. Even if a client were to make a full confession during questioning at the police station, that confession could not be used as evidence at trial. This reality, when explained to clients, often reduces the temptation to make pre-emptive confessions in hopes of securing leniency.

Special Protections for Women: Section 187(3) BNSS

The BNSS incorporates enhanced protections for women that practitioners must be aware of when advising female clients. Section 187(3) mandates that women cannot be required to attend at any place other than their residence for questioning by police. If a woman receives a Section 35 notice requiring attendance at a police station, she may insist on being questioned at her home instead.

Where circumstances make questioning at the police station genuinely necessary, specific safeguards apply. The questioning must be conducted by a female officer, and it must occur during reasonable hours. These protections acknowledge the particular vulnerabilities that women may face in police custody and provide concrete procedural safeguards.

Practitioners should advise female clients of these rights before their appearance, ensuring they can assert them if necessary. Where police officers are unaware of or resistant to these requirements, practitioners may need to intervene directly or approach the courts for appropriate directions.

The Selvi Judgment: Mental Privacy and Coercive Techniques

The evolution of interrogation technology has required courts to extend traditional self-incrimination protections to new contexts. In Selvi v. State of Karnataka [(2010) 7 SCC 263], the Supreme Court addressed whether neuroscientific techniques such as narcoanalysis, polygraph examinations, and brain mapping could be compulsorily administered to accused persons.

The Court held that compulsory administration of these techniques violates Article 20(3) because they involve testimonial responses in a different form. Unlike blood tests or fingerprinting, which produce purely physical evidence, these techniques probe the mental processes of the subject and extract information based on their personal knowledge. The Court explicitly linked the right against self-incrimination with the right to privacy, recognising that mental privacy deserves constitutional protection.

For practitioners, the Selvi judgment establishes that clients cannot be compelled to undergo lie detector tests or similar procedures. Any consent to such procedures must be informed and voluntary, and results cannot be admitted in evidence without the explicit agreement of the subject. This principle has particular relevance in high-profile investigations where pressure to undergo such testing may be substantial.

Practical Preparation: Before the Police Station Visit

Armed with understanding of the legal framework, practitioners can develop comprehensive preparation protocols for clients receiving Section 35 notices. The first step is verification of the notice itself. A legitimate notice should be on official police letterhead, cite the FIR number and police station name, specify a date and time for appearance, bear the signature and designation of the issuing officer, and reference Section 35 BNSS explicitly.

The Delhi High Court in Amandeep Singh Johar v. State of NCT of Delhi [2018 SCC OnLine Del 13448] established detailed procedural requirements for issuance of Section 41A notices, emphasising that the protection offered by the provision is meaningful only when the notice itself complies with statutory requirements. This principle was further developed in Rakesh Kumar v. Vijayanata Arya [2021 SCC OnLine Del 5629], where the same Court held that service of notice via WhatsApp, email, or other electronic modes of communication is invalid as these methods are not provided for in the statutory provisions. Any notice received through informal channels should be treated with appropriate caution, and clients should not attend until formal written notice is received through proper channels.

Where the date specified in the notice is genuinely impossible to comply with due to medical emergencies, prior scheduled travel, or other legitimate reasons, clients should be advised to communicate with the police station in writing, requesting an alternative date. Documentary evidence of the communication should be preserved as proof that non-appearance on the original date was not wilful non-compliance.

Conduct During Questioning: The Cooperation-Protection Balance

The challenge for practitioners lies in guiding clients toward appropriate behaviour that demonstrates cooperation without compromising their legal protections. The Supreme Court’s formulation in Nandini Satpathy provides the governing principle: clients should answer questions where there is no clear tendency to incriminate, while exercising their right to decline questions where answers would expose them to criminal liability.

In practical terms, this means answering basic identification questions such as name, address, and occupation truthfully. For substantive questions about the alleged incident or circumstances under investigation, clients have several legitimate responses available. They may state that they need to consult their lawyer before answering. They may indicate that they do not recall the specific details being asked about. They may explicitly invoke their right against self-incrimination under Article 20(3).

What clients must not do is volunteer information not asked for, speculate or guess when they do not know facts with certainty, make admissions hoping to secure favourable treatment, or sign any documents without reading them completely and understanding their contents.

The presence of the lawyer during questioning serves multiple purposes. It provides real-time guidance on which questions may be safely answered. It creates a witness to the conduct of the questioning, deterring inappropriate pressure or coercion. It reassures the client psychologically, enabling them to respond more calmly and thoughtfully. Police officers may suggest that legal representation is unnecessary, but this suggestion should generally be declined politely but firmly.

Consequences of Non-Compliance: Understanding the Stakes

Clients must understand that while the Section 35 notice process offers significant protections, these protections are conditional on compliance. Section 35(4) of BNSS explicitly provides that failure to comply with the notice gives the police grounds to effect arrest. What was designed as a protection thus converts to a basis for detention when the person fails to appear.

Beyond the immediate consequence of potential arrest, non-compliance creates adverse evidentiary implications. When the matter proceeds to charge-sheet and eventually to bail applications, the prosecution will cite non-appearance as evidence of an absconding tendency. Courts considering bail applications are legitimately concerned with ensuring the accused’s presence during trial, and documented non-compliance with police notices undermines arguments that the accused can be trusted to appear when required.

Conversely, a record of consistent compliance strengthens the accused’s position in subsequent proceedings. If police notices become harassing through excessive frequency or unreasonable timing, a demonstrated pattern of prior compliance provides the foundation for seeking judicial intervention against harassment while preserving the accused’s credibility.

Post-Questioning Protocol: Documentation and Assessment

The work of protecting the client continues after questioning concludes. Practitioners should conduct detailed debriefing sessions while memory is fresh, documenting every question asked, the client’s responses, the duration of questioning, officers present, and any unusual occurrences.

Where possible, written acknowledgment of the client’s appearance should be obtained from the police station. If this is declined, the fact of attendance can be documented through the General Diary entry, which the client has a right to request be made recording their appearance.

The debriefing should include assessment of whether the questioning revealed any indication of imminent arrest. If such indication exists, immediate steps may be necessary to file for anticipatory bail under Section 482 of BNSS. The grounds developed during the debriefing, demonstrating the client’s cooperation and compliance with legal process, become central to the anticipatory bail application.

The Judicial Response to Procedural Violations

Where police officers fail to comply with the requirements governing Section 35 notices and subsequent arrest, the courts have established meaningful consequences. The Supreme Court in Satender Kumar Antil explicitly held that violation of Sections 41 and 41A (now Sections 35 and 47 of BNSS) entitles the accused to bail as a matter of right, not discretion.

The Delhi High Court in Rakesh Kumar went further, holding the arresting officer liable for contempt of court for making an arrest without proper compliance with Section 41A procedures. The Court observed that the intimation allegedly sent via WhatsApp could not be treated as a valid notice under Section 41A, and consequently the arrest made on the basis of alleged non-compliance with that invalid notice was itself improper.

These judicial responses provide practitioners with powerful tools. Meticulous documentation of procedural violations during the client’s interaction with police authorities can subsequently form the basis for bail applications, contempt petitions, or departmental complaints against errant officers.

Conclusion: Empowerment Through Understanding

The Section 35 BNSS notice, properly understood, represents not a threat but an opportunity. It is the legal system’s acknowledgment that arrest should be proportionate and necessary, not automatic. It provides the accused with advance notice and the chance to cooperate with investigation while remaining at liberty.

The practitioner’s role is to transform this legal opportunity into practical protection. This requires educating clients about their constitutional rights under Article 20(3), their statutory protections under Section 180 of BNSS, and the procedural safeguards established through decades of judicial interpretation from Kathi Kalu Oghad through Nandini Satpathy to Arnesh Kumar and Satender Kumar Antil.

Clients who understand their rights are less likely to panic. They are less likely to flee jurisdiction or make desperate confessions. They are better able to cooperate appropriately while protecting themselves from self-incrimination. They become, in essence, partners in their own defence rather than passive subjects of legal process.

The message to communicate to every client receiving a Section 35 notice can be distilled simply: this notice is evidence that the system is working as it should. The police are following procedure rather than making arbitrary arrests. Your obligation is to appear when called and to conduct yourself with courtesy and cooperation. Your right is to remain silent on matters that might incriminate you, to have legal counsel present during questioning, and to refuse signing documents you have not read. Exercise both obligation and right, and this process becomes manageable rather than terrifying.

The constitutional promise of liberty under Article 21 finds concrete expression in these procedural safeguards. When practitioners effectively communicate these protections to their clients, they fulfil the essential function of the legal profession: ensuring that the rights guaranteed by law are not merely words on paper but lived realities for those who need them most.