Advocate Sanskar Rajendra Nagar

Questions Answered by Advocate Sanskar Rajendra Nagar

Q: Legal advice for the section 84 state excise affect civil services

I am preparing for civil services. State excise filed fir against me section 84 common house drinking. The matter is in district court . Is this fir affect my career?? What are legal ways to come out safe?? Will it creates me problem in the selection of upsc?? As the matter is in court the court had given date of October of first trial. Is this charge has the serious impacts on government job what should be done?? Can excise police take the charge back , if not then what legal aspects remains?

Advocate Sanskar Rajendra Nagar answered
As per my knowledge, the Judge should let you go after informing you that you shall be charged with a fine upto Rs. 5000 which has been provided for in section 84 of the Bombay Prohibition Act, 1949. I advise you to accept the charge against you but at the same time request the Judge to not impose a harsh penalty and also inform him about your preparation for the UPSC exams and how this will mentally affect your preparations for the same. Since only a fine will be imposed, I don't think that should disqualify you from appearing from the exams. However, there should not be any ongoing Criminal case against you in a Court of Law once you appear for the exam. I also suggest you to also take the appropriate advice from the Judge and the Police regarding this by being polite to them as you don't have any other option. They should get to know about UPSC preparations and hence might take a lenient view in the matter and also give some good advice in this regard. I'd advise you to yourself do some research on this and go through the relevant examination rules and disqualifications in this regard.

Q: Legal query regarding applicability of GST

I am having a commercial office premises (On Ownership basis) in a fully commercial building in Andheri, Mumbai. I pay for the Maintenance and the Property Tax to the Builder every 6 months when they raise the Bill. This time in the Bill they have applied 18% GST on the Property Tax component as well. When asked, they say that there is no Society formed for the Building and since BMC issues one common Bill for the entire Building's Property Tax, they have to charge GST even on the Property Tax component in the Bill. Please clarify if they can charge me GST on the Property Tax which in itself is already a Tax. Thanks.

Advocate Sanskar Rajendra Nagar answered
TRU under FAQS issued from file no.332/04/2017 -TRU (Sr. no.1) clarified that services provided by the Central government, ----or local authority to a person other than business entity, is exempted from GST. So if property tax collected by the RWA /Cooperated Society on behalf of the MCGM from individual flat owner, then, GST is not liable. In view of this clarification the builder must be asking you to pay GST. 2.In my opinion this does not appear to be a correct interpretation by the builder for the following reasons : I.Property Tax is not subsumed in the GST, therefore, it can not be considered as a supply of service under section 7 of the CGST ACT 2017. Not being the supply of service GST should not be liable on the Property Tax, and II.TRU vide its circular no.192 /02/2016-ST dated 13.4.2016 (Sr no.3)clarified that taxes, cess or duties levied are not CONSIDERATION for any particular service as such and hence not liable to Service Tax. These taxes, cess or duties includes --Property Tax. 4.There is merit in your case but you have to contest the issue. This may benefit not only you but others as well.

Q: Payment of GST as Service tax & Vat already paid for flat registration

I had done my registration of the flat on June 26th 2017. My builder took the Service tax and Vat for the total amount mentioned on the Sales agreement in the month of June 2017. The cheque for the full amount by the bank was given on 13th July 2017. Am I liable to pay GST since I have already paid the Service Tax and Vat in June. Registration of the flat was done on June 26th that is before July 1st. Please give me your feedback.

Advocate Sanskar Rajendra Nagar answered
As per Notification No.28 /2011 -ST, dated 1.4.2011 construction of residential complex service is treated as continous supply service for the purpose of point of taxation rules, 2011. Further, as per proviso to rule 3 of above rules in case of continous supply service where the provisions of the whole or part of the service is determined periodically on the completion of an event in terms of a contract, which requires the receiver of the service to make any payment to service provider, the date of completion of each such events as specified in the contract shall be deemed to be the date of completion of provision of service. 3. Therefore, to examine the issue in detail under both -The Finance Act, 1994 and GST act, 2017 and to give a suitable reply the following facts /documents are required to be known and examined : 1. The invoice /invoices raised by the builder, 2. The agreement copy. 3. Copy of challan evidencing payment of service tax by the builder to the service tax department, and 4. The correspondence received from the builder and the department if any for the payment of GST.

Q: Can I act now to avoid a notice from customs for importing a sex toy

Hello sir I have ordered a sex toy from a global e commerce website without being aware that the item is in the prohibited items list. The parcel is in transit to Kolkata Airport Sorting office. I am afraid I'll receive a show cause notice from the Assistant Commissioner about this act. Can I write through a lawyer to the Assistant Commissioner about the matter and say that I do not wish to import the shipment anymore and to confiscate or send it back to the sender as they seem fit ? or should I wait for the show cause notice and then counter it ? Is there anyway for me to request any authority between Kolkata Airport sorting office and Kolkata customs check to intercept the parcel and destroy/send it back to the sender before the parcel reaches the customs for inspection ? I thought declaring contents about the parcel beforehand and not claiming it now would be better than the customs examining it which leads to a show cause notice. Kindly let me know which would be a wise step

Advocate Sanskar Rajendra Nagar answered
Since the import/sale of sex toys is banned in India as per IPC section 292 and is a prohibited item, the import of the same by you is in contravention of the law and hence it will be liable for absolute confiscation alongwith penalty. A show cause notice will be issued to you by the department wherein you may choose to appear for the personal hearing or waive the same after filing a reply. Since, you wish to disclose the same to the relevant authority before being served with a show cause notice, you may do the same by writing a letter to them. However, you may still have to pay the penalty once the goods get confiscated.

Q: What are the rules and regulations to import sex toys in India

we just order sextoy for social experiment.but when it delivered in india they said you have to mail to custom so I did but then they said the contain is prohabited.so what should I do to get that product cause I paid for it.

Advocate Sanskar Rajendra Nagar answered
Section 292 of the IPC reads as under : [292. Sale, etc., of obscene books, etc.— (1) For the purposes of sub-section (2), a book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to the pruri­ent interest or if its effect, or (where it comprises two or more distinct items) the effect of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt person, who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it. [(2) ] Whoever— (a) sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation, makes, produces or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever, or (b) imports, exports or conveys any obscene object for any of the purposes aforesaid, or knowing or having reason to believe that such object will be sold, let to hire, distributed or publicly exhibited or in any manner put into circulation, or (c) takes part in or receives profits from any business in the course of which he knows or has reason to believe that any such obscene objects are for any of the purposes aforesaid, made, produced, purchased, kept, imported, exported, conveyed, publicly exhibited or in any manner put into circulation, or (d) advertises or makes known by any means whatsoever that any person is engaged or is ready to engage in any act which is an offence under this section, or that any such obscene object can be procured from or through any person, or (e) offers or attempts to do any act which is an offence under this section, shall be punished 263 [on first conviction with im­prisonment of either description for a term which may extend to two years, and with fine which may extend to two thousand rupees, and, in the event of a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and also with fine which may extend to five thousand rupees]. [(Exception) —This section does not extend to— (a) any book, pamphlet, paper, writing, drawing, painting, repre­sentation or figure— (i) the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing, drawing, painting, representation or figure is in the interest of science, literature, art or learning or other objects of general concern, or (ii) which is kept or used bona fide for religious purposes; (b) any representation sculptured, engraved, painted or otherwise represented on or in— (i) any ancient monument within the meaning of the Ancient Monu­ments and Archaeological Sites and Remains Act, 1958 (24 of 1958), or (ii) any temple, or on any car used for the conveyance of idols, or kept or used for any religious purpose.]] Therefore, as per Section 292 of the IPC, it is illegal to import sex toys in India. As per the website of Chhatrapati Shivaji International Airport, Customs displayed a list of items that are prohibited for import. Pornographic and Obscene materials are covered under Prohibited items of this list. U/S 111(d) of Customs Act, this item is liable for confiscation and is also liable for penalty u/s 112 of Customs Act, 1962. Also in such cases, show cause notices are being issued by the department and the goods are being absolutely confiscated. In this case also, the show cause notice will be issued to you by the department. You should give the reply of the show cause notice to the department and appear for personal hearing or you may also waive the personal hearing. On adjudication the goods will be absolutely confiscated and shall be subject to penalty as per the aforesaid provisions.