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Operating motor vehicle during revocation period; penalties.
(1) Unless otherwise provided by law pursuant to an ignition interlock permit, any person operating a motor vehicle on the highways or streets of this state while his or her operator's license has been revoked pursuant to section 28-306, section 60-698, subdivision (4), (5), (6), (7), (8), (9), or (10) of section 60-6,197.03, or section 60-6,198, or pursuant to subdivision (2)(c) or (2)(d) of section 60-6,196 or subdivision (4)(c) or (4)(d) of section 60-6,197 as such subdivisions existed prior to July 16, 2004, shall be guilty of a Class IV felony, and the court shall, as part of the judgment of conviction, revoke the operator's license of such person for a period of fifteen years from the date ordered by the court and shall issue an order pursuant to section 60-6,197.01. Such revocation and order shall be administered upon sentencing, upon final judgment of any appeal or review, or upon the date that any probation is revoked.
(2) If such person has had a conviction under this section or under subsection (6) of section 60-6,196 or subsection (7) of section 60-6,197, as such subsections existed prior to July 16, 2004, and operates a motor vehicle on the highways or streets of this state while his or her operator's license has been revoked pursuant to such conviction, such person shall be guilty of a Class IIA felony, and the court shall, as part of the judgment of conviction, revoke the operator's license of such person for an additional period of fifteen years from the date ordered by the court and shall issue an order pursuant to section 60-6,197.01. Such revocation and order shall be administered upon sentencing, upon final judgment of any appeal or review, or upon the date that any probation is revoked.
Laws 2016, LB275, § 1.
A subsequent prosecution of driving while the operator's license was revoked, after defendant had already been convicted of willful reckless driving and operating a motor vehicle while intoxicated, did not violate the double jeopardy clause, because the State did not prove the entire conduct for which defendant had already been convicted. Willful reckless driving and operating a motor vehicle while intoxicated are not lesser-included offenses of operating a motor vehicle while the operator's license was revoked, and a subsequent conviction of driving while the operator's license is revoked would not violate the Blockburger test. State v. Woodfork, 239 Neb. 720, 478 N.W.2d 248 (1991).
An ignition-interlock permitholder who drives a vehicle not equipped with an ignition interlock device may not be charged under this section and must be charged under section 60-6,211.05(5). State v. Hernandez, 283 Neb. 423, 809 N.W.2d 279 (2012).
Starting a vehicle is an act within the meaning of "operating" a motor vehicle under this section (formerly subsection (6) of section 60-6,196). State v. Portsche, 261 Neb. 160, 622 N.W.2d 582 (2001).
Subsection (3) of former section 60-524 does not terminate a court-ordered suspension required as part of a criminal conviction under this section (formerly subsection (6) of section 60-6,196). State v. Portsche, 261 Neb. 160, 622 N.W.2d 582 (2001).
A certified copy from the Department of Motor Vehicles which shows that a defendant's operator's license was revoked is insufficient to show that the defendant either had counsel or waived counsel at the time he was convicted of the prior offense and is therefore insufficient to support a conviction under this section (formerly subsection (6) of section 60-6,196). State v. Watkins, 4 Neb. App. 356, 543 N.W.2d 470 (1996).
A felony conviction for driving under a suspended license in violation of this section may not be used either to trigger application of the habitual criminal statute or as a prior offense for purposes of penalty enhancement pursuant thereto. State v. Hittle, 257 Neb. 344, 598 N.W.2d 20 (1999).
Pursuant to this section (formerly subsection (6) of section 60-6,196), the enhancement rules applicable to offenses committed under subsection (3) of section 60-6,197.03 (formerly section 60-6,196(2)(c)) are not applicable to license revocation offenses committed under this section. State v. Kennedy, 251 Neb. 337, 557 N.W.2d 33 (1996).
This section does not constrain the trial court’s discretion to order when the mandatory 15-year license revocation shall begin. State v. Policky, 285 Neb. 612, 828 N.W.2d 163 (2013).
A 15-year revocation must be part of any sentence for a conviction under this section, including a sentence of probation. State v. Hense, 276 Neb. 313, 753 N.W.2d 832 (2008).

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v. 1. Moreover, the Spirit lifted me up and brought me unto the East Gate of the Lord's house, which looketh eastward, where the entire vision had been placed, 10:19; and behold at the door of the gate, the large portal of the. Temple, five and twenty men, most likely not identical with those of 8:16; among whom I saw Jaazaniah, the son of Azur, and Pelatiah, the son of Benaiah, princes of the people, men of influence in guiding the destinies of the people, if not members of the civil authorities.
v. 3. which say, It is not near; let us build houses, literally, "not in near proximity building of houses," that is, the threatened ruin of the city is entirely out of the question, wherefore it is not necessary to worry about the building or the rebuilding of Jerusalem; this city is the caldron, and we be the flesh, that is, they considered themselves as safe and as protected in their city as the flesh is in the pot.
v. 4. Therefore prophesy against them, prophesy, O son of man, the repetition giving added emphasis to tile Lord's command.
v. 5. And the Spirit of the Lord fell upon me and said unto me, Speak, Thus saith the Lord, His very words being quoted, as throughout the inspired Scripture: Thus have ye said, O house of Israel, for I know the things that come into your mind, every one of them, the omniscient God reading their hearts and minds like an open book.
v. 6. Ye have multiplied your slain in this city, in the execution of innocent people as a result of their wicked judgments, and ye have filled the streets thereof with the slain, by their unjust oppression of those unable to defend themselves against tyranny.
v. 7. Therefore, thus saith the Lord God, Your slain whom ye have laid in the midst of it, they are the flesh, and this city is the caldron, their blasphemous boast thus being interpreted in the Lord's way and Jerusalem being called the flesh-pot of those whom they caused to be slain; but I will bring you forth out of the midst of it, the wicked transgressors themselves were to be dragged forth and cut in pieces elsewhere.
v. 8. Ye have feared the sword, for they had refused to follow the advice of Jeremiah to give themselves up to the Babylonians, since they were afraid of being put to death by them; and I will bring a sword upon you, saith the Lord God, to punish them in the very manner which they feared.
v. 9. And I will bring you out of the midst thereof, out of the city where they boastfully declared themselves safe, and deliver you into the hands of strangers, and will execute judgments among you, in bringing upon them the punishment which they deserved.
v. 10. Ye shall fall by the sword, put to death by the invaders; I will judge you in the border of Israel, on the frontier, at Riblah, in the land of Hamath, Jer_52:24-27; and ye shall know that I am the Lord, convinced by this evidence of His avenging fury.
v. 12. and ye shall know that I am the Lord, by the judgments inflicted by Him; for ye have not walked in My statutes, or, "in whose statutes," in their special application to Israel's case, "ye have not walked," neither executed My judgments, to lead their lives in agreement with his righteousness, but have done after the manners of the heathen that are round about you, in becoming guilty of the idolatry which was practiced by the Gentile nations. Cf.Ezekiel 5:7. The truth and power of this word was now brought out in a most impressive manner.
v. 13. And it came to pass, when I prophesied, that Pelatiah, the son of Benaiah, died, this substantiating the threatening prophecy uttered by inspiration of the Lord. Then fell I down upon my face, overcome by this evidence of the Lord's avenging justice, and cried with a loud voice and said, Ah, Lord God! Wilt Thou make a full end of the remnant of Israel? The Lord's children will intercede even for their enemies, hoping that there will always be some who will be saved from the general destruction. In this respect Abraham, who begged the Lord to desist from destroying Sodom and Gomorrah, is an outstanding example.

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§ 135. Office of the Inspector General: Office established.
There is an Office of the Inspector General, the head of which is the Inspector General.
§ 136. Office of the Inspector General: Inspector General.
(ix) a member of the City Council selected by majority vote of the Council.
(2) A quorum of the advisory board consists of 5 members.
(3) An affirmative vote of at least 5 members shall be necessary to appoint an Inspector General.
(1) The Inspector General shall be appointed without regard to political affiliation and must have experience in accounting, financial analysis, law, management analysis, public administration, or investigations.
(2) The Inspector General shall hold at the time of appointment, or be required to obtain within 7 months after appointment, certification as a Certified Inspector General.
The Inspector General shall serve a term of 6 years commencing from the date of appointment.
(4) in the advisory board’s sole determination, demonstrated a pattern of incompetence and lack of fitness for the position.
The advisory board shall meet at least once annually to review the performance of the Inspector General.
(1) Whenever a vacancy occurs for the Inspector General, or whenever the Inspector General is incapacitated or otherwise unavailable for duty for any cause, the highest ranking employee of the Office of the Inspector General shall be the Acting Inspector General until the vacancy is filled or the Inspector General is again available for duty.
(ii) issue an additional progress report every 60 days thereafter until the vacancy is filled or the Inspector General returns to duty.
§ 137. Office of the Inspector General: Powers and duties of Office.
The Inspector General shall supervise and direct the Office of the Inspector General.
(b) Responsibilities of the Office.
(3) promoting ethical, fiscal, and legal accountability.
(6) external recipient of City funds, benefits, or services.
(d) Inspections, investigations, and evaluations.
(2) any other official act or function of any governmental entity under the jurisdiction of the Office.
(1) The Office of the Inspector General shall prepare and publish an annual report of the Office’s activities.
(2) The annual report may include recommendations regarding program weakness, contracting irregularities, or other institutional problems discovered by the Office.
(ii) after any redactions required by law, posted on the Office of the Inspector General’s website.
(f) Public reports of investigations.
The Inspector General may publish for public viewing a report of any investigation, inspection, or evaluation, except that any sensitive or confidential information must be redacted as required by law.
The Inspector General shall serve as the Executive Director of the Board of Ethics established under § 106(a) of this Article and modified under § 110 of this Article, and shall use the Office of the Inspector General’s staff and resources to support the Board of Ethics and fulfill the Executive Director’s responsibilities.
(h) Referrals and joint investigations.
(3) notify the City Solicitor and take further action in concurrence with the City Solicitor.
(i) Authority to cancel or suspend contracts.
(2) a contractor on the contract has provided false statements to a City official.
(1) The Inspector General shall take appropriate steps to build public awareness of the Office of the Inspector General and of all procedures established by the Inspector General for receiving complaints.
(2) The Inspector General shall provide information to City employees about the identification and prevention of fraud, waste, and abuse of office in City government.
The Inspector General may, on any matter of policy or practice, make recommendations to the Mayor or to the head of any City department or agency, if the Inspector General believes that the implementation of the recommendation would assist in the promotion of efficiency, accountability, and integrity in City government.
The Inspector General shall establish policies and procedures that guide the functions and processes conducted by the Office of the Inspector General.
§ 138. Office of the Inspector General: Funding.
The Board of Estimates shall annually include in the Ordinance of Estimates submitted to the City Council an amount sufficient to fund the Office of the Inspector General at not less than 10 times the salary of the Mayor.
(b) Inspector General’s salary included.
(1) The Inspector General’s compensation shall be at least equal to 80% of the Mayor’s compensation.
(2) The Inspector General’s compensation may be included in the funding provided under subsection(a) of this section and need not be appropriated in addition to that funding in the Ordinance of Estimates.
§ 139. Office of the Inspector General: Access to persons and records; Subpoena power.
The Inspector General shall have access to any head of any City entity under the jurisdiction of the Office of the Inspector General when necessary for any purpose pertaining to the Inspector General’s powers and duties.
As allowed by law, the Inspector General shall have access to all records of any City entity under its jurisdiction. Officers and employees of City entities shall promptly provide to the Inspector General any information, document, report, record, account, or other material requested by the Inspector General, and the Inspector General is not required to obtain a subpoena for any records request made to any City entity.
(1) As part of an investigation into any matter under the jurisdiction of the Office of the Inspector General, the Inspector General may issue a subpoena independent of any further approval from the Mayor and City Council of Baltimore, requiring any person to give testimony, or produce any document, report, record, account, or other material.
(2) A subpoena issued under this subsection may be judicially enforced by the City Solicitor in any court of competent jurisdiction.
§ 140. Office of the Inspector General: Duties of employees and officers under jurisdiction of the Office.
Any officer or employee under the jurisdiction of the Office of the Inspector General who receives a complaint of fraud, waste, or abuse shall immediately refer the complaint to the Office of the Inspector General.
§ 141. Office of the Inspector General: Confidentiality.
The Office of the Inspector General may not disclose to any person outside of the Office the identity of any complainant without the consent of the complainant, except when disclosure is required by law.
§ 142. Office of the Inspector General: Transition procedure.
The individual holding the position of Inspector General of the City of Baltimore in the Law Department on November 6, 2018 will assume the position of Inspector General created by § 135 of this Article on the date that § 135 goes into effect.
The 6 year term of the Inspector General assuming office under subsection (a) of this section runs from the date of her or his appointment to the position of Inspector General of the City of Baltimore in the Law Department.
(1) The funding requirements of § 138 of this Article will apply to the Ordinance of Estimates adopted after November 6, 2018 and each subsequent Ordinance of Estimates.
(2) In the period between the effective date of § 135 of this Article and the adoption of a new Ordinance of Estimates, the Office of the Inspector General created by § 135 may operate using the funds previously appropriated for the Office of the Inspector General in the Law Department.
Authority By: Baltimore Committee For Accountability and Transparency, Treasurer: Jen Peeples.


Geoffrey WALTON, Appellant, v. William A. HALTER,* Acting Commissioner of Social Security.
Before ROTH, McKEE and STAPLETON, Circuit Judges. Kenneth M. Kapner, Philadelphia, PA, and Thomas D. Sutton (Argued), Leventhal & Sutton, Langhorne, PA, Attorneys for Appellant. Allyson Jozwik (Argued), David Wiedner, and Lori Karimoto, Social Security Administration, Philadelphia, PA, Attorneys for Appellee.
On August 14, 1992, Geoffrey Walton filed an application for child's disability insurance benefits under the Social Security Act based on his deceased father's employment record. Walton alleged an onset date of disability of June 13, 1966, the day before his twenty-second birthday. Appellee Kenneth Apfel, Commissioner of Social Security (“the Commissioner”), denied the application. Walton then filed the present action in the District Court which granted the Commissioner's motion for summary judgment. Walton appeals.
Section 405(g) of Title 42 of the United States Code authorizes appeals from final decisions rendered by the Commissioner “within sixty days after the mailing to [the applicant] of notice of such decision or within such further time as the Commissioner of Social Security may allow.” Shortly before oral argument the Commissioner moved to dismiss this appeal on the ground that Walton's resort to the District Court was untimely, and it, therefore, lacked jurisdiction. “[T]he 60-day requirement is not jurisdictional, [however, and] constitutes [only] a period of limitations.” Bowen v. City of New York, 476 U.S. 467, 478, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986). Defenses based on limitations can be waived. Because the Commissioner failed to brief this issue on appeal, the issue is waived. See id.
Walton claims that he is entitled to benefits based on his mental illness, bipolar disorder-manic depression. In order to receive benefits, Walton must show, among other things, that he has a disability which began prior to his twenty-second birthday. See 20 C.F.R. § 404.350. A “disability” is “the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 20 C.F.R. § 404.1505(a). To meet this definition, claimants “must have a severe impairment, which makes [them] unable to do [their] previous work or any other substantial gainful activity which exists in the national economy.” Id.
Walton, who is presently disabled and receiving Supplemental Security Income Disability Benefits, has a long history of suicide attempts, hospitalization, and treatments by a series of psychiatrists. He was first diagnosed as having bipolar-manic depression in 1971 when he was twenty-six years of age, and the contemporaneous medical records from the period after that date are extensive. While the contemporary medical records from the preceding period are considerably more limited, they do bear evidence that Walton's mental impairment originated prior to 1971. The ALJ was thus confronted in 1994 with the difficult task of determining whether Walton's progressive mental impairment rose to the level of a disability prior to his twenty-second birthday on June 13, 1966.
Walton testified that he attended Trinity College in Connecticut from 1962 until June of 1964, when he was asked to leave and withdrew. He returned to Trinity in 1965, but again found himself on academic probation in February, 1966, when he again withdrew. After dropping out the first time, Walton saw a psychiatrist, Dr. Howard Wood, weekly. Walton had his first manic experience in the summer of 1965 and saw a psychiatrist once a week for six months during that year. His first suicide attempt came in 1967, and he saw Dr. Wood again that year for approximately six months.
By 1994, Dr. Wood was no longer in practice and had not retained records relating to his observations of Walton. The only contemporaneous written record available from the early sixties is a letter from Dr. Charles C. Schober, whom Walton consulted in 1964 for “emotional problems.” Dr. Schober wrote to Walton's draft board on August 14, 1964, in support of an application for a deferment. He there reported that Walton “has periods of apathy and depression coupled with a tendency to rebel seriously which inhibits his performance and productivity.” Record 162. In Dr. Schober's opinion, these problems would “hamper his performance in the military service.” Id.
ALJ: The picture ․ Dr. Rubin, after ′71 gets clear, I think.
[Dr. Morris Rubin]: Yes, much clearer.
ALJ: Because there's a hospitalization which is used. All with clear information. And then six hospitalizations follow. And the period before that-of course, a lot of this is just a problem of documentation that occurs [due] to passage of time plus as you mentioned to Dr. Rubin, I believe, or Mr. Walton did is that there's a sort of reluctance of diagnoses in this type of thing until after a period of time has passed.
ALJ: So this is not an unusual pattern we're seeing here.
Dr. Rubin: Not an unusual pattern.
ALJ: But it still leaves me with the problem of drawing a line at a particular point. It obviously was not before age 14.
ALJ: ․ [U]nfortunately, Mr. Walton has had a problem since ․ [a]ge 14, which is very significant and is very clear in the present and we're right at that point in time where I have to make a decision as to where to draw the line. Age-it's somewhere between 14 and 23, I would think, or 24, or 25, or [in 1971]. And it's an unusual case in that the line seems to hover very close around that point in time․ It's a difficult-I think this is a difficult line for me to draw.
ALJ: ․ Dr. Rubin, want [sic] to volunteer anything here? I think it's a fuzzy, fuzzy period that year or two in there.
Dr. Rubin: It's hard to explain, Your Honor. But if we liken it, if I may say, expressed in feeling, if I can liken his educational experiences from 14 years of age up, certainly if we turn it into some sort of employment, he wouldn't be able to hold positions for any length of time, but we'd have the mood swings. He would run into difficulty. But it's difficult to say whether he would be an employable constantly.
․ [A]s it's shown here, in my opinion, he would have a lot of difficulty holdings [sic] jobs for long periods of time or reasonable periods of time for the satisfaction of an employer. Probably get fired a lot of times or even quit. Got in a mood, he would quit.
In my opinion the psychiatric diagnosis in Geoffrey's case is incomplete unless it includes personality disorders, which Geoffrey never mentions. He shows elements of the histrionic disorder and the anti-social disorder, along with a bipolar disorder which has responded poorly to treatment, in part because Geoffrey has often not cooperated with his treatment.
In his report, Dr. Gibbon states that “by virtue of his mental condition, [Walton] has not been sustainably employable in the open job market” and that “[i]n the first fifteen years out of high school, he held about half a dozen jobs, typically for three months.” Record 271.
Dr. Goppelt, in his treatment of the claimant, actually was apparently convinced that Mr. Walton could more readily be defined as subject more to personality and anti-social disorder than bipolar disorder. Further, he believed that the claimant's emotional condition was currently poorly controlled basically because of the claimant's own irresponsibility and lack of cooperation.
Record 31. The ALJ's decision makes no reference to Dr. Rubin's views on the onset issue.
In consideration of the medical documentation as well as reports of the claimant's educational achievement prior to his 22nd birthday and notwithstanding the claimant's allegations or those of his neighbor Dr. Cornman, or Dr. Gibbon, the Administrative Law Judge finds that Mr. Walton may have been treated for some adolescent disturbance in 1964 or 1965. He was able to acquire a draft deferment when he left school. The method by which this result was achieved is certainly not indicative of either ongoing mental or emotional disorganization. There is no contemporaneous further record of his receiving treatment for severe emotional or mental impairment through June 14, 1966. It is the opinion of this administrative law judge that the fact that the claimant was not in school at the time he achieved his 22nd birthday is not dispositive of any ongoing emotional impairment. Noteworthy is the fact that student unrest in many forms was prevalent in colleges throughout the nation at that time.
5. Prior to attaining age 22, the claimant had the following medically determinable impairments: adolescent disturbance, which was not severe in nature.
6. The claimant is not under a “disability” as defined in the Social Security Act, which began before he attained age 22.
With slowly progressive impairments, it is sometimes impossible to obtain medical evidence establishing the precise date an impairment became disabling. Determining the proper onset date is particularly difficult, when for example, the alleged onset and the date last worked are far in the past and adequate medical records are not available. In such cases, it will be necessary to infer the onset date from the medical and other evidence that describe the history and symptomatology of the disease process.
In determining the date of onset of disability, the date alleged by the individual should be used if it is consistent with all the evidence available. When the medical or work evidence is not consistent with the allegation, additional development may be needed to reconcile the discrepancy. However, the established onset date must be fixed based on the facts and can never be inconsistent with the medical evidence of record.
In some cases, it may be possible, based on the medical evidence to reasonably infer that the onset of a disabling impairment(s) occurred some time prior to the date of the first recorded medical examination․ How long the disease may be determined to have existed at a disabling level of severity depends on an informed judgment of the facts in the particular case. This judgment, however, must have a legitimate medical basis. At the hearing, the administrative law judge (ALJ) should call on the services of a medical advisor when onset must be inferred.
If reasonable inferences about the progression of the impairment cannot be made on the basis of the evidence in file and additional relevant medical evidence is not available, it may be necessary to explore other sources of documentation. Information may be obtained from family members, friends, and former employers to ascertain why medical evidence is not available for the pertinent period and to furnish additional evidence regarding the course of the individual's condition.
The available medical evidence should be considered in view of the nature of the impairment (i.e., what medical presumptions can reasonably be made about the course of the condition).
Here, with the arguable exception of Dr. Wood's having no affirmative recollection of having recognized Walton as a manic depressive prior to his twenty-second birthday, all of the medical evidence suggested an onset prior to that birthday.3 To be sure, that evidence was not based upon personal observation of Walton prior to age twenty-two. Nevertheless, the ALJ could not, consistent with SSR 83-20 and the necessity of establishing an onset date based on substantial evidence, simply ignore that evidence and draw an inference from the record evidence having no substantial medical support. Because there is no legitimate medical basis for the conclusion of the ALJ on the onset issue, we will reverse the judgment of the District Court and remand with instructions to return this matter to the Commission for further proceedings.
Given the record evidence concerning the period of time frequently necessary to diagnose a bipolar disorder like Walton's, we conclude that Dr. Wood's letter concerning his failure to diagnose Walton as a manic depressive prior to age twenty-two would not alone provide a basis for a post-twenty-one onset date even if Dr. Wood had a clearer recollection about Walton's case.
Moreover, SSR 83-20 and the substantial evidence rule dictate, we conclude, that an ALJ in a situation of this kind must call upon the services of a medical advisor rather than rely on his own lay analysis of the evidence. Our conclusion on this issue is consistent with those reached by our sister courts of appeals in similar situations. See Grebenick v. Chater, 121 F.3d 1193, 1201 (8th Cir.1997) (“[i]f the medical evidence is ambiguous and a retroactive inference is necessary, SSR 83-20 requires the ALJ to call upon the services of a medical advisor to insure that the determination of onset is based upon a ‘legitimate medical basis' ”); Bailey v. Chater, 68 F.3d 75, 79 (4th Cir.1995) (mandating enlistment of a medical expert when onset is ambiguous despite SSR 83-20's apparently permissive language); Spellman v. Shalala, 1 F.3d 357, 362 (1993) (“We therefore hold that in cases involving slowly progressive impairments, when the medical evidence regarding the onset date of a disability is ambiguous and the Secretary must infer the onset date, SSR 83-20 requires that that inference be based on an informed judgment. The Secretary cannot make such an inference without the assistance of a medical advisor.”); DeLorme v. Sullivan, 924 F.2d 841, 848 (9th Cir.1991) (“In the event that the medical evidence is not definite concerning the onset date and medical inferences need to be made, SSR 83-20 requires the administrative law judge to call upon the services of a medical advisor and to obtain all evidence which is available to make the determination.”); Blankenship v. Bowen, 874 F.2d 1116, 1122-24 (6th Cir.1989); Lichter v. Bowen, 814 F.2d 430, 434-436 (7th Cir.1987).
Ironically, the ALJ in this case appeared to recognize his need for expert help and noted during the hearing that he “might possibly feel the need to secure a [‘medical expert’] subsequently.” Record 42. Perhaps because of this concern, the ALJ treated Dr. Rubin at the hearing as both a medical advisor and a vocational expert. When deciding the case, however, he chose to ignore Dr. Rubin's views without comment. Having secured the professional opinion of a licensed psychologist, we conclude the ALJ was not entitled to disregard it without articulated reason. As we have explained on numerous occasions, we are unable to conduct our substantial evidence review if the ALJ fails to identify the evidence he or she rejects and the reason for its rejection. See Burnett v. Comm'r of Soc. Sec. Admin., 220 F.3d 112, 119-20 (3d Cir.2000); Schaudeck v. Comm'r of Soc. Sec. Admin., 181 F.3d 429, 433 (3d Cir.1999); Barren Creek Coal Co. v. Witmer, 111 F.3d 352, 356 (3d Cir.1997); Cotter v. Harris, 642 F.2d 700, 705 (3d Cir.1981).
Finally, we conclude that the ALJ, even if he had had the assistance of a medical advisor, could not have rejected the opinion of Dr. Gibbon, a treating physician, solely on the basis that his opinion was based on information supplied by Walton and not on personal observation of Walton during the relevant period. As SSR 83-20 clearly reflects, a conclusion regarding onset in a situation of this kind can, and frequently must, be based on information gathered after the fact from the claimant and, indeed, from other lay people like family and neighbors. The basis for a medical opinion is, of course, an indispensable element of a reasoned evaluation of it, and there are, of course, situations in which an opinion based on personal observation may be favored over one based on information supplied by the claimant. But this is a situation in which an opinion based on personal, contemporaneous observation was not available. In such a situation, SSR 83-20 calls for an ALJ to have the benefit of expert medical advice based on the best available data without regard to its source.
We will reverse the judgment of the District Court and remand with instructions to return this matter to the agency for further proceedings consistent with this opinion.
1. In his resume, Dr. Rubin describes his current occupation as “Counseling/Consulting-Psychologist.” He has earned a B.S. in psychology, an M.S. in Psychology Guidance, and an Ed.D. in Psychology Guidance. He has worked as a certified school psychologist and as a vocational advisor.
2. The ALJ describes Dr. Cornman “as a neighbor, ․ not a professional treating source.” Record 30. Dr. Cornman reported in 1992, however, that he had treated Walton for “the past ten years.” Record 254. He simply supplements his ten years of clinical familiarity with Walton's condition by noting that he had been friendly with Walton and his family since the 1940s.
3. We find no support for the ALJ's interpretation of Dr. Goppelt's letter. Dr. Goppelt did not opine that Walton was more accurately diagnosed as having a “personality and anti-social disorder than [a] bipolar disorder.” Record 31. His opinion was that Walton suffered from both bipolar-manic depression and a personality and antisocial disorder. Similarly, Dr. Goppelt's letter did not attribute Walton's condition to “irresponsibility.” He did report that Walton's condition has “responded poorly to treatment, in part because [he] has often not cooperated with his treatment.” Record 257. Dr. Goppelt explained, however, that Walton's poor cooperation is the result, not the cause, of his illness. Id.


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the name of the employer; the name, if any, and the postal address, of the establishment; the name and age of the worker; date of joining, department, nature of work, designation; the signature (with date) of the employer or manager; Blood Group; Aadhaar Card Number.
12 Maximum accumulation of EL shall not exceed 45 days.
16 The penalty for contravention of the New Act and the rules has been enhanced to INR 100,000 and in case of continuing contravention an additional fine which may extend to INR 2,000 for every day during which the contravention continues. Further, for repeated offenders the fine may extend to INR 2,00,000. The Earlier Act provides for a minimum fine of INR 1,000 and a maximum fine of INR 5,000.
1. Querist has purchased certain raw material from ABC Ltd. which will be delivered within 15 days of the execution of the agreement. This raw material will be used in the production of export goods which will thereafter be sold in foreign markets. The export goods are manufactured within India itself.
2. However, the price of the raw materials is not stipulated in the agreement. Parties have agreed that the price payable to ABC Ltd., will be equivalent to the 50% of the profits from the sale of the export goods.
3. Querist seeks to know the time of supply of the purchase of raw material and the availability of input tax credit on the purchase of the raw material.
2. Thus, only a promise to pay money is sufficient for a contract of sale to come into being. The quantum of money can be fixed later.
3. This transaction is undoubtedly liable to GST. However, it is impossible to determine the actual price at the time of delivery, since the price is based on the share of profits which will be determined after delivery.
4 Thus, as a matter of necessity, the time of supply will arise only at the time the price is determined and the invoice is raised by ABC Ltd., or the payment is made by Querist (whichever is earlier). The invoice itself cannot be issued before the exact details of the share of profit is calculated.
5. However, determination of time of supply and the time of issue of invoice is really ABC Ltd.’s problem, since it is ABC Ltd., which is liable to pay tax on the supply of goods and issue the invoice. Querist’s only real interest is the availability of Input Tax Credit on the payments made to ABC Ltd. as and when the share of profit is tendered to ABC Ltd., (or if the invoice is issued by ABC Ltd., before the payment by Querist). It is pertinent to note that under the GST Act and the rules, recipient’s right to claim input tax credit is not dependent on whether the supplier has wrongly determined the time of supply or whether the supplier has issued the invoice at the wrong time. As long as the Querist is in possession of the tax invoice and the tax is actually paid into the Government Treasury by ABC Ltd., there is no prohibition whatsoever on taking of credit.
Querist is engaged in providing duly decorated and furnished banquet halls on rent to various parties for different kinds of social and family functions and ceremonies. Querist not only provides space, but also supplies food, decoration services and other incidental and ancillary services as a package to its customers.
Querist wishes to know the Service Accounting Code for the said service. We are informed that the Querist is contemplating classification of its services under SAC 9963 which deals with “accommodation, food and beverages”.
1. We are of the view that the SAC applicable to this service is 997212, which is the accounting Code applicable for “rental or leasing services involving own or leased non-residential property”.
2. SAC 9963 is not relevant because the Querist is not providing accommodation services or food or beverage services as such. Even though food and beverages are supplied during the course of these services and even though it is true that the SAC 9963 applies to “supply of food or beverage as a part of any service”, it must be remembered that the rules of composite and mixed supply cannot be overlooked while determining classification of services.
3. In the case of the services provided by the Querist, it is quite clear that the supply of rental services is the principal supply and the supply of food and beverages during the course of the entire supply is only an incidental or ancillary supply. As such, under section 8 of the CGST Act and the SGST Act, the incidental and ancillary supply will take on the identity of the principal supply and will completely lose any separate identity. The food and beverage supply will thus merge into the identity of the rental supply and the entire supply will take the colour of rental services as per section 8.
4. The words “as a part of” are used in SAC 9963 “supply of food …. as part of any service” cannot be interpreted in such a way so as to put in SAC 9963 all supplies where food does not even form a principal element. To do so would tantamount to elevating an incidental supply of food or beverage to the status of a principal supply in contravention of section 8. The SAC and the classification of services are notified through delegated legislation which cannot override Section 8, which is a provision contained in the parent Act. Thus, SAC 9963 can only apply to those cases in which food and beverage is supplied as a principal supply and not where they are supplied incidentally.
5. Therefore, the services of renting banquet halls along with decoration, food, beverage and other services is classifiable under SAC 997212.
Subject : Whether sending of defective goods for repair/replacement is a “supply”?
Querist has sold certain products to XYZ Ltd. which is situated in Kolkata, West Bengal. IGST at the due rate has already been paid on this sale.
After the goods were delivered, certain defects were noticed in those products and they were sent back by XYZ Ltd. to the Kolkatta branch of Querist for repairs and replacements.
XYZ Ltd., has again charged IGST when sending the goods back to Querist for repairs and replacements.
Querist has not yet paid the tax element to XYZ Ltd. Querist seeks to know whether XYZ Ltd., is correctly charging tax on sending back of defective goods for repairs or replacements and whether input tax credit is available on such a transaction?
We are of the considered view that there is no “supply” which takes place when defective goods are sent for repairs or replacements. These goods are generally sent back as a part of free warranty obligations or additional commercial warranty obligations. There is no consideration for sending of such goods.
Since there is no supply, XYZ Ltd., should not pay any tax on the sending back of goods for repairs or replacements. If Querist pays the same to XYZ Ltd., and takes credit of the same, it is quite possible that the GST Department will seek to deny input tax credit on the same on the ground that there was no “supply” in the first place and that the tax was not payable by XYZ Ltd., at all.
It is our view that Querist should not pay any tax to XYZ Ltd., and should not take any credit to avoid unnecessary and avoidable litigation on such issues.
a) Purchased / acquired by gift / allotment / purchase before October 1, 2004 where no STT was paid (it was not through a stock exchange).
b) Acquired before October 1, 2004 by purchase through broker from recognized stock exchange. No STT was paid.
c) Shares acquired after October 1, 2004 through off market purchase or gift but no STT was paid.
d) Purchase / acquisition before October 1, 2004 through IPO’s / FPOs/ Bonus issue / Right issue by company are eligible for exemption u/s. 10(38) though no STT was paid as there was no share transaction). Sale of shares shall invite LTCG after availing indexation benefit.
Provided also that nothing contained in sub-clause (b) shall apply to a transaction undertaken on a recognised stock exchange located in any International Financial Service Centre and where the consideration for such transaction is paid or payable in foreign currency.
Thus, section 10(38) exempts any long term capital gains from income tax where securities transaction tax is chargeable under chapter VII of the Finance (No. 2) Act, 2004. Section 98 of the Finance (No. 2) Act, 2004 provides for charging of securities transaction tax on sale of an equity share in a company or a unit of an equity oriented fund or a unit of business trust, where the transaction of such sale is entered into a recognised stock exchange.
So in queries (a) and (b) purchased / acquired before October 1, 2004, the transaction would be chargeable as LTCG @ 20%. In case of query (c) purchased before October 1, 2004 off market where no STT was paid would also be chargeable as LTCG @ 20%. In case of query (d) from the facts, it is liable as LTCG @ 20%. However, as per explanatory memorandum, it has been indicated that purchase through IPO, FPO bonus or right issue by a listed company, acquisition by non-resident as per FDI policy etc., may be exempt, which means others are liable to tax.
In sale deed of immovable property PAN was wrongly mentioned of Individual instead of HUF. Therefore purchaser has deducted the tax and paid to Central Government on the basis PAN supplied of Individual. The property was all along assessed in the hands of HUF and rent received from the said property was also assessed in the hands of HUF. How to rectify?
From the facts it is clear that purchaser has deducted tax on PAN of Individual and paid to the Government. Therefore, seller should request the purchaser to revise his TDS return by quoting correct PAN of HUF. So in Form 26AS the TDS amount would reflect in the name of HUF.
Whether “tuition fees” is an income from business, profession or vocation and whether such income is covered u/s. 44ADA?
The heading of section 44ADA is “Special provision for computing profits and gains of profession on presumptive basis”. Section 2(36) defines “Profession” includes vocation So, ibid, section has defined profession very widely. The word “vocation” has been defined in Corpus Juris secundm, as calling, occupation or trade one’s regular calling or business, a calling or occupation or business in which one engages more or less regularly in the activity upon which a person spends the major portion of his time and out of which he makes his living, that to which one is called by some special fitness or sense of duty. But section 44ADA is applicable only to a person who is engaged in profession referred to in section 44AA.
“Every person carrying on legal, medical, engineering or architectural profession or the profession of accounting or technical consultancy or interior decoration or any other profession as is notified by the Board in the Official Gazette shall keep and maintain such books of account and other documents as may enable the Assessing Officer to compute his total income in accordance with the provisions of this Act”.
(b) The profession of film artist.
II, “In exercise of the powers conferred by sub- section (1) of section 44AA of the Income-tax Act, 1961 (43 of 1961), the Central Board of Direct Taxes hereby notifies the profession of Company Secretaries for the purpose of the said section.
Explanation – In this notification, ‘Company Secretary’ means a person who is a member of the Institute of Company Secretaries of India in practice within the meaning of sub-section (2) of section 2 of the Company Secretaries Act, 1980 (56 of 1980).
would not be covered under section 44ADA of the Act.
Parliament has passed The Goods and Services Tax (Compensation to States) Act, 2017 (Act No. 15 of 2017). It provides for payment of compensation to the States for loss of revenue arising on account of implementation of the GST for a period of 5 years in accordance with Section 18 of the Constitution (One Hundred and First Amendment) Act, 2016. Financial year 2015-16 is taken as the base year for the purpose of calculating compensation amount payable to States. The projected nominal growth rate of revenue subsumed for a State during the transition period (five years from 1-7-2017) shall be 14% per annum. Cess is levied on such goods and services, as recommended by GST Council, over and above the GST on that item to generate resources to compensate States. No cess shall be leviable on supplies made by a taxable person, who has opted for composition. Cess shall be levied on intra-State supplies of goods or services or both as provided for in Section 9 of the CGST Act and such inter-State supplies of goods or services or both as provided for in Section 5 of the IGST Act, as are specified in column (2) of the Schedule to the Act. Cess on goods imported into India shall be levied and collected in accordance with the provisions of Section 3 of Customs Tariff Act, 1975 at the point when duties of customs are levied on the said goods under Section 12 of the Customs Act, 1962. Procedural Provisions of CGST Act and the Rules made thereunder shall apply. ITC in respect of cess on supply of goods and services leviable under Section 8, shall be utilised, only towards payment of said cess on supply of goods and services leviable under the said section. It means ITC of cess cannot be utilised for payment of CGST or SGST or IGST on outward supply. Cess credit can be used against cess payable by the supplier. CGST provisions shall apply for intra-State supplies and IGST provisions shall apply for inter-State supplies. GST Compensation Cess Rules, 2017 have been notified in Notification No. 2/2017 dated 1-7-2017. The CGST Rules, 2017 shall apply mutatis mutandis, subject to specified modifications. A separate prescribed return has to be filed along with the returns to be filed under the CGST Act (vide Section 9).
Schedule II specifies pan masala (135%), tobacco & manufactured tobacco substitutes, including tobacco products (₹ 4,170 per thousand sticks or 290% ad valorem or a combination thereof but not exceeding ₹ 4,170 per 1000 sticks + 290% ad valorem), coal etc. (₹ 400 per ton), aerated waters (15% ad valorem), motor cars and other motor vehicles principally designed for the transport of persons (other than motor vehicles for the transport of 10 or more persons including the driver), including station wagons and racing cars (15% ad valorem) and any other supplies (15% ad valorem). Maximum rates of cess (within brackets above) have been specified in the Schedule. Subject to such upper limit, Central Government, may on the recommendations of the Council specify the rate of cess through a notification. Accordingly notifications have been issued.
Goods and Services Tax (Compensation to States) Amendment Ordinance 2017 has been promulgated on 2-9-2017 to fix the maximum rate for compensation cess at 25% for certain categories of motor vehicles. The maximum compensation cess for such vehicles was earlier pegged at 15%. A Bill has since been introduced in Parliament to replace the Ordinance.
Appoints 1-7-2017 as the date on which all the provisions of the GST (C to S) Act, 2017 shall come into force.
2. No.2/2017 – Compensation cess dated 1-7-2017 – Makes the GST Compensation CessRules, 2017. There are only 2 Rules.
1. No.1/2017-Compensation Cess (Rate) dated 28-6-2017 – Notifies the rate of cess on 56 items of goods. All goods other than those mentioned at S. Nos. 1 to 55 are NIL rated.
The following corrigendum is issued to Notification No.1/2017.
Corrigendum dated 30-6-2017 (correcting item 42).
2. No.2/2017 – Compensation Cess (Rate) dated 28-6-2017 – Notifies cess on the supply of specified services. Services of transfer of the right to use any goods for any purpose for cash, deferred payment or other valuable consideration and for the services of transfer of the right in goods or of undivided share in goods without the transfer of title, cess is payable. Rate of cess is the same rate of cess as applicable on similar goods involving transfer of title in goods.
Corrigendum dated 1-7-2017 – Scheme of classification of services mentioned in Notification No. 2 is in relation to Notification No. 11/2017 – Central Tax (Rate) dated 28-6-2017.
3. No. 4/2017 – Compensation Cess (Rate) dated 20-7-2017—Exempts intra State supplies of second hand goods received by a registered person, dealing in buying and selling of second hand goods, subject to certain conditions.
4. No. 7/2017 – Compensation Cess (Rate) dated 13-10-2017 – Notifies special rates of Cess in respect of motor vehicles given on lease before 1-7-2017 and on supply of motor vehicles purchased prior to 1-7-2017 without availing input tax credit of Central Excise duty, VAT or any other taxes paid on such vehicles.
Wherever the goods are also leviable to cess under the Goods and Services Tax (Compensation to States) Cess Act, 2017, the same will be collected on the value taken for levying integrated tax. Thus, in the above example, in case cess is leviable, the same would be levied on ₹ 110.30/-. In cases where imported goods are liable to Anti-Dumping Duty or Safeguard Duty, value for calculation of IGST as well as Compensation Cess shall also include Anti-Dumping Duty amount and Safeguard duty amount.
BRIEF NOTE ON THE ‘INTEGRATED TAX (RATE)’ NOTIFICATIONS ISSUED UNDER THE IGST ACT, 2017.
Section 5 of the IGST Act, 2017 provides for levy of tax on all inter-State supplies of goods or services or both, except on the supply of alcoholic liquor for human consumption, on the value determined under section 15 of the CGST Act and at such rates, not exceeding forty per cent., as may be notified by the Government on the recommendations of the Council. Accordingly Central Government has issued notifications specifying the rates of tax under the caption ‘Integrated Tax (Rate).’ Section 6(1) empowers the Government to exempt goods or services or both, subject to any conditions.
1. Notification No. 1/2017 – Integrated tax (Rate) dated 28-6-2017 – Through this notification, rates of tax on interstate supplies of GOODS have been notified. Schedule I goods are taxable @ 5%, Schedule II goods are taxable @ 12%, Schedule III goods are taxable @ 18%, Schedule IV goods are taxable @ 28%, Schedule V goods are taxable @ 3% and Schedule VI goods are taxable @ 0.25%.
3. Notification No.3/2017 – Integrated tax (Rate) dated 28-6-2017 – Concessional rate of tax of 5% has been notified by exempting the amount in excess of 5% in respect of specified transactions like petroleum operations, coal bed methane operations, etc.
4. Notification No.4/2017 – Integrated tax (Rate) dated 28-6-2017 – Specifies the supply of goods in respect of which tax is payable on reverse charge basis (RCM) under section 5(3) of IGST Act.
5. Notification No. 5/2017 – Integrated tax (Rate) dated 28-6-2017 – Clause (ii) of the proviso under section 54(3) of the CGST Act read with section 20 of the IGST Act restricts the refund of unutilised input tax credit on the notified goods, where credit is accumulated on account of rate of tax on inputs is higher than rate of tax on outputs. In respect of the goods mentioned in this notification, no refund of unutilised ITC shall be allowed.
6. Notification No. 6/2017 – Integrated tax (Rate) dated 28-6-2017 – Allows refund of fifty per cent of tax paid on inward supplies of goods received by Canteen Stores Department (CSD) in accordance with section 20 of the IGST Act read with section 55 of the CGST Act for the purposes of subsequent supply of such goods to the Unit Run canteens of the CSD or to the authorised customers of the CSD.
7. Notification No. 7/2017 – Integrated tax (Rate) dated 28-06-2017 – Exempts supply of GOODS by CSD to the Unit Run Canteens etc,.
9. Notification No. 9/2017 – Integrated tax (Rate) dated 28-6-2017 – Through this notification, exemption in respect of interstate supplies of services has been notified.
10. Notification No. 10/2017 – Integrated tax (Rate) dated 28-6-2017 – Specifies the supply of goods in respect of which tax is payable on reverse charge basis (RCM) under section 5(3) of the IGST Act.
11. Notification No. 11/2017 – Integrated tax (Rate) dated 28-6-2017 – Activities/transactions undertaken by State Government /Central Government /Local Authority in relation to functions entrusted to a Panchayat under Article 243G of the Constitution shall not be treated either supply of goods or supply of services.
12. Notification No. 12/2017 – Integrated tax (Rate) dated 28-6-2017 – Provides for no refund of unutilized input tax credit under section 54 (3) of the CGST Act read with section 20 (xiii) of the IGST Act, in case of supply of services specified in item 5 (b) of Schedule II to the CGST Act (construction of a complex etc).
13. Notification No. 13/2017 – Integrated tax (Rate) dated 28-6-2017 – Specifies UNO, Foreign diplomatic mission etc., for the purpose of section 20 of the IGST Act read with Section 55 of the CGST Act.
SEZ unit/developer in SEZ for authorized operations.
This notification is rescinded by Notification No. 17/2017 dated 5-7-2017.
16. Notification No. 18/2017 – Integrated tax (Rate) dated 5-7-2017 – Exempts from whole of IGST leviable under section 5 of the IGST Act, the import of services by SEZ unit/Developer for authorized operations.
18. Notification No. 30/2017 – Integrated tax (Rate) dated 22-9-2017 – Exempts interstate supply of Skimmed milk powder or concentrated milk, subject to specified conditions.
• Notification No.50/2017 dt. 14-11-2017.
19. Notification No. 32/2017 – Integrated tax (Rate) dated 13-10-2017 – Exempts inter State supplies of goods/services or both received from unregistered person from whole of IGST leviable under section 5 (4) (RCM). This exemption shall be applicable till 31 March 2018.
20. Notification No. 38/2017 – Integrated tax (Rate) dated 13-10-2017 – Notifies special rates of tax in respect of motor vehicles given on lease before 1-7-2017 and on supply of motor vehicles purchased prior to 1-7-2017 without availing input tax credit.
21. Notification No. 40/2017 – Integrated tax (Rate) dated 18-10-2017 – Notifies the tax rate @ 5% in respect of interstate supplies of food preparations put up in unit containers and intended for free distribution to economically weaker sections of the society etc., subject to conditions.
22. Notification No. 41/2017 – Integrated tax (Rate) dated 23-10-2017 – Exempts interstate supply of taxable goods by a registered supplier to a registered recipient for export from tax, which is in excess of the amount calculated @ 0.1% subject to specified conditions. (Net rate is 0.1% IGST) (merchant exports).
1. Notification No. 1/2017 dated 19-6-2017 – Appoints 22-6-2017 as the date on which the provisions of Sections 1, 2, 3, 14, 20 and 22 of the IGST Act shall come into force.
2. Notification No. 2/2017 dated 19-6-2017 – – Notifies the Principal Commissioner of Central Tax, Bengaluru West and all the officers subordinate to him as the officers empowered to grant registration in case of online information and database access or retrieval services.
3. Notification No. 3/2017 dated 28-6-2017 – Appoints 1-7-2017 as the date on which the provisions of Sections 4 to 13, 16 to 19, 21, 23 to 25 of the IGST Act shall come into force.
4. Notification No. 4/2017 dated 28-6-2017 – Makes the IGST Rules, 2017. For carrying out the provisions specified in Section 20 of the IGST Act, the CGST Rules, 2017 shall, so far as may be, apply in relation to Integrated tax as they apply in relation to central tax. (There are only 2 Rules. CGST Rules apply mutatis mutandis).
This has been amended by Notification No.12/2017 dated 15-11-2017.
5. Notification No. 5/2017 dated 28-6-2017 – Notifies HSN codes as follows for the purpose of mentioning on the tax invoices issued by a registered person.
6. Notification No. 6/2017 dated 28-6-2017 – Fixes the rate of interestperannum for the purposes of Section 20 of the IGST Act read with Sections 50(1), 50(3), 54(12), 56 and Proviso to Section 56 of CGST Act, 2017.
7. Notification No. 7/2017 dated 14-9-2017 – Specifies the job workers engaged in making inter-state supply of services to a registered persons as the category of persons exempted from obtaining registration subject to certain conditions.
8. Notification No. 8/2017 dated 14-9-2017 – Specifies persons making supplies of specified handicraft goods as exempted from obtaining registration, provided the aggregate value of supplies does not exceed ₹ 20 lakhs on all India basis.
This notification has been amended by Notification No. 9/2017 dated 13-10-2017.
9. Notification No. 10/2017 dated 13-10-2017 – Specifies the persons making taxable services and having aggregate turnover on all India basis, not exceeding an amount of ₹ 20 lakhs in a financial year as the persons exempted from obtaining registration.
10. Notification No. 11/2017 dated 13-10-2017 –Specifies that the officers appointed under the respective SGST Act or the UTGST Act, who are authorized to be the proper officers for the purposes of Section 54/55 of the said Acts, shall act as proper officers for the purpose of sanction of refund under Section 20 of the IGST Act, 2017.
11. Notification No. 12/2017 dated 15-11-2017 – Amends the IGST Rules, 2017 in relation to advertisements. New Rule 3 has been inserted.
In replacement of Indirect Tax levies like VAT/Service Tax/Excise, the new model of GST is introduced from 1-7-2017. There is Central Goods and Services Tax Act (CGST) as well as State Goods and Services Tax Acts (SGST). Thus, GST is a fiscal statute made to raise revenue for Governments. Like any fiscal statute, GST also contains provisions for prosecution in case of default by any person. As we are aware, such provisions are for deterrence so that there should not be knowingly tax evasion by any person.
It is experience that till recently revenue authorities were not much aggressive about prosecution and it used to be launched/made applicable very selectively. However, now, it is order of the day to initiate prosecution whereever applicable. Therefore, it is necessary that there is good awareness of these provisions to avoid any undesirable action on part of authorities.
“The object and the purposes, therefore, of these two enactments are different. The subject-matter of the offence under Section 177, Indian Penal Code, is much wider and comprehensive than the subject-matter of the offence created under Section 52 of the Income-tax Act for the purpose of enforcing effectively the provisions of the said Act. The Indian Penal Code is a penal statute whereas the Income-tax is fiscal and deals with revenue. Can it be said in this background, that Section 52 of the Income-tax Act though creates an offence similar to that of Section 177, Indian Penal Code, but narrower in scope, takes away the entire subject-matter provided under Section 177, Indian Penal Code. The object and the purpose of the two enactments being different and the offence under the enactment being wider than the other, I am of the view that it would not have been intended by the later enactment to repeal the earlier”. Therefore, it is clear that since the special provisions are made under the GST Act, it cannot be inferred that no one can be prosecuted under India Penal Code for the offences which might be covered under GST Act.
l) Attempts to commit or abate any offences.
As per sub-section (2) of Section 132 if any person convicted of an offence under this section is again convicted of an offence under this section, then, he shall be punishable for the second and for every subsequent offence with imprisonment for a term which may extend to five years. Here it is pertinent to note that the monetary limit with respect to evasion of tax does not apply in case of repeat offence.
By section 132(3), it is provided that the minimum punishment will be six months unless for adequate written reasons in judgment, it is waived by concerned Court.
Sub-section (4) of Section 132 says that all the offences under GST Act, except those referred in sub-section (5), are non-cognisable and bailable even if they are cognisable or non-bailable under Code of Criminal Procedure,1973. Sub-section (5) says that the offences involving evasion of tax as per clause (a), (b), (c) or (d) mentioned above and which exceeds ₹ 500 lakhs shall be cognisable and non-bailable. Therefore, all offences under the GST Act are non-cognisable and bailable if the amount of evasion of tax is below ₹ 500 lakhs.
An essential provision with regard to sanction for prosecution is made under sub-section (6). For prosecuting any person under Section 132, there must be previous sanction of the Commissioner. Further, Section 134 mandates that the Court should not take cognisance of any complaint in absence of previous sanction of the Commissioner and further that offences under this Act cannot be tried by any Court anterior to Magistrate of first class.
Thus, the officers covered by above definition will be eligible to sanction prosecution.
In nutshell any wrong advantage in relation to tax payment is considered to be ‘tax’ for prosecution provision.
It is settled position that to prove criminal offence of evasion under Fiscal Laws, the action should be with conscious mind to defraud revenue. The affected party/person will be required to prove its bona fide to escape the prosecution provision.
Section 133 is for prosecution of officers of department if they wilfully disclose an information or contents of any return furnished under GST and shall be liable for prosecution, except such disclosure is in term of requirement of law in different situation.
The punishment for such offence will be imprisonment up to six months and fine up to ₹ 25,000/-. However the prosecution of such officer should be with prior section of Government, if he is Government servant and by Commissioner, for others.
The section has wide implications and almost all burden is placed on accused person to defend. Normally, for prosecution under Indian Penal Code etc. the burden is on prosecutor/complainant to prove the charge. However, due to specific provision under section 135 of GST Act, the burden is shifted on accused person. The section is reproduced below to comprehend the scope of said section.
“135. In any prosecution for an offence under this Act which requires a culpable mental state on the part of the accused, the court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.
In fair justice it is felt that such provisions are not tenable. If someone is accusing other of criminal action, the burden lies on such accuser to prove the charge. We expect that the citizens will be treated with fairness and above obscure provision will be deleted from the Act.
Normally, the parties are entitled to retract the statement based on facts. If the party finds any such eventuality it should do needful at the earliest, else the above provision may affect adversely.
Normally, if any statement is relied upon in prosecution the person making such statement is required to be made available for cross examination. By making above speaking provision, it appears that fundamental right under principles of natural justice of getting cross examination opportunity is sought to be set at naught. Citizen expect that there should not be such artificial encroachment on fundamental rights of citizen. This will also led to dereliction of duty on part of prosecutors. Appropriate changes are required in above provision.
Section 137 enumerates the persons who would be guilty and be prosecuted for the offences, if the offences are committed by a firm, company, LLP, HUF, Trust.
As per Section 137(1) in case of company, every person who was in charge/responsible when offence committed, can be prosecuted and company can also be prosecuted.
As per Section 137(2), in case of the company, director, manager secretary or other officer will also be liable for prosecution, if their connivance or negligence is proved in relation to offence.
As per Section 137(3), in case of Partnership Firm or Limited Liability Partnership Firm or Hindu Undivided Family or Trust, the partner or karta or managing trustee will be deemed to be guilty of offence and shall be liable to be proceeded against and liable for punishment, similar to director in case of company.
As per Section 137(4), the persons, as stated above, would not be held liable for punishment if it is proved that the offence was committed without their knowledge or all due diligence to prevent commission of offence was exercised.
Section 138 allows for compounding of offences by the competent authority either before or after institution of prosecution on payment of compounding fees as may be prescribed. Rules are prescribed vide Rule 162.
– Shall not be more than ₹ 30,000/- or 150% of tax, whichever is greater.
Compounding shall not be allowed without payment of tax, interest and penalty.
On payment of compounding amount no further proceeding shall be initiated under GST Act and if any criminal proceeding is initiated, the same shall stand abated. However the compounding can be withdrawn if it was obtained by concealment etc. and if withdrawn, the trial will continue.
– Second time compounding is not allowed in respect of offences described in clauses (a) to (f) and (l) (read with (a) to (f) of Section 132(1).
– Second time compounding is not allowed in respect of other clauses of Section 132(1) if value of supply exceeds ₹ 1 crore.
– Compounding is not allowed if an impugned offence under GST Act is also an offence under other law.
– A person who has been convicted under GST Act by court.
– The offences under clauses (g), (j) or (k) of section 132(1) are also not eligible to compounding.
– Other notified person also will not be eligible for compounding.
While discussing provisions of prosecution it is also necessary to take note of section 69 of CGST Act, which provides for arrest by GST Department Officer. Similar powers are under SGST Act also. It is self contained provision for arrest and bail etc.
Under MVAT Act, such powers were not there. There is fear in mind of dealers that it may be used indiscriminately and in unjustified manner.
There are no direct provisions about time limit for initiating prosecution. However, there are provisions on above line under Criminal Procedure Code, 1973 (CrPC).
As per Section 469 of CrPC, 1973 talks about the commencement of the period of limitation. The following eventualities are discussed in sub-section (1) of Section 469 of CrPC for the commencement of period of limitation.
– Clause (a) says period of limitation will start on the day of offence.
– Clause (b) says, if the commission of offence is not known to the person aggrieved or police officer, then first day on which offence comes to the knowledge of aggrieved person or police officer.
– Clause (c) says, when the identity of the offender is not known, in that case the first day on which identity of the offender is known to the person aggrieved or police officer.
In absence of specific provision in respect of period of limitation for prosecution under GST Act, the above provisions of Sections 468 and 469 of CPC can be made applicable. For commencement of period of limitation, clause (b) appears to be relevant in cases of offences under GST Act. However, it is required to be tried in the competent court.
The provisions of GST Act are new. The prosecution provisions are new but on same line as in earlier laws. The precedents in earlier laws will be useful for guidence under GST also.
We hope such stringent prosecution provisions will have positive effect to avoid tax evasion. It is also expected that the above provisions will be used with fairness and not with a view to harass the business community.
2. The prosecution policy of the Government in the case of economic offences has seen a varied degree of success over the years. However, it is safe to say that the Wanchoo report failed to inspire the Government of those days to take adequate steps to prosecute offenders. Times change and with the increased percolation of the internet and news, economic offences are being seen as a rising menace in todays society. The current Government with a dual motive of increasing tax collections as well as projecting itself as a hardliner on economic offences has taken the bold step of stepping up the action on errant assessees. Public perception however has traditionally been to hold economics to a lower standard than the traditional criminal offences. Lack of prosecutions in the past has also emboldened the public to skip its fundamental duty of paying their taxes on time. It may therefore be a common perception that the Courts may be softer on taxation cases than they are on traditional offences such as theft etc. This could not be further from the truth.
3. The strict approach of courts to economic offence can be summed up in a Judgment of the Hon’ble Supreme Court as far back as 1987 in the case of State of Gujrat v. Mohanlal Jitmalji Porwal & Ors. (1987) 2 SCC 364 “The entire Community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the National Economy and National Interest”. The Hon’ble Supreme Court in Ram Narain Popli v. CBI (2003) 3 SCC 641 reiterated its observations in Gujrat v. Mohanlal Jitmalji Porwal & Ors. further observing that “the cause of the community deserves better treatment at the hands of the Court in the discharge of its judicial functions. The Community or the State is not a persona non grata whose cause may be treated with disdain.. ..Unfortunately in the last few years, the country has seen an alarming rise in white-collar crimes which has affected the fibre of the country’s economic structure. These cases are nothing but private gain at the cost of public, and lead to economic disaster.” The approach of the Courts in treating economic offences as grave offenses against the public at large has a necessary effect widespread ramifications in as much as securing bail and in discharge / quashing proceedings. Compounding of offences therefore seems to be the simplest way out for those assessees against who prosecution proceedings are purported to be initiated.
Sukar Narayan Bakhiya v. Rajnikant R. Shah 1982 GLH 778 the Hon’ble Gujarat High Court held that the Court can refuse bail even if offense is bailable if conditions imposed while granting bails are violated.
3. Contrary to the name, Non-Bailable offences are not those in which bail cannot be obtained. Non-Bailable offenses are those offenses in which bail is not a matter of right. Therefore, getting bail when accused of a non bailable offence is not automatic but is the exercise of the discretion of the Courts. Bail can certainly be granted, however an application before the Court having the jurisdiction must be made and the Court should be satisfied that the case is a fit case for granting bail.
4. At the time of granting bail the Court shall only look at the prima facie material and should not go into merits of the case by appreciating evidence. In granting or not granting of bail in a non-bailable offence, the primary consideration is the nature and gravity of the offence. The Hon’ble Supreme Court in the case of DCP (Special Branch Delhi) v. Jaspal Singh Gill (1984) 3 SCC 555 held that “at the time of granting bail in cases involving non-bailable offences particularly where the trial has not yet commenced, the Court should take into consideration various matters such as the nature and seriousness of the offence, the character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of witnesses being tampered with, the larger interests of the public or the State and similar other considerations.” Therefore the Trail Courts wide Discretion in granting or refusing bail is well established. There is however, no straight jacket formulae and the consideration for each and every bail application must be upon the merits of the matter brought before the Courts. The possibility of the accused being actually convicted of the offence keeping in mind the quality of the evidence can also often weigh in on the Court’s mind before granting bail. However, one of the most important yardstick is the flight risk that the accused presents. The entire purpose of enlarging an accused on bail is to strike a balance between the interest of the public and the fundamental right of liberty guaranteed to the citizens of India by the Constitution. It is therefore not unusual to see restrictions on travel being put in place by the court, usually involving either the deposit of the passport with the Court or to explicitly seek the permission of the court before travelling overseas. Needless to say, the accused needs to present himself / herself before the Court on every occasion as mandated failing which a bailable / non-bailable warrant may be issued against the accused to compel appearance. The terms of bail need to be strictly adhered to in both letter and spirit so as to prevent the cancellation of bail.
5. Bail also called ‘regular bail’ by its very nature can be availed of only after arrest. Therefore, being arrested is an essential precondition for seeking bail. In the case of a non-bailable offence, this would essentially mean that the accused invariably spends a little while in custody. Section 438 of the Criminal Procedure Code provides for the granting of ‘Anticipatory bail’ by an appropriate Court in order to safeguard an accused from being unnecessarily taken into custody. The general scheme of anticipatory bail is as follows :- “Where any person has any reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail. The Court may, after taking into consideration, inter alia the following factors, namely:- (i) the nature and gravity of the accusation ; (ii) the antecedents of the applicant … (iii) the possibility of the applicant to flee from justice (iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested; either reject the application forthwith or issue an interim order for grant of anticipatory bail.” It is to be noted that there are various state wise amendments that need to be considered while applying for anticipatory bail. Needless to say, anticipatory bail is not required to be taken where the offence itself is bailable and therefore bail is available as a matter of right.
7. Even though the statute provides for anticipatory bail application being filed either before the Court of Session or the Jurisdictional High Court, convention dictates that only in exceptional cases shall an ‘ABA’ application be moved directly before the High Court before first approaching the Court of Session. The Gujarat High Court in the case of Rameshchandra Kashiram Vora & etc. v. State of Gujarat & Ors. 1988 Cri LJ 210 (Guj.) held that “It would be a sound exercise of judicial discretion not to entertain each and every application for anticipatory bail directly bypassing the Court of Session. Ordinarily, the Sessions Court is nearer to the accused and easily accessible and remedy of anticipatory bail is same and under same section and there is no reason to believe that Sessions Court will not act according to law and pass appropriate orders. In a given case, if any accused is grieved, his further remedy to approach the High Court is not barred and he may prefer a substantive application for anticipatory bail under Section 438 or revision application under Section 397 of the Cr. P. C. to the High Court and the High Court would have the benefit of the reasons given by the Sessions Court. It would be only in exceptional cases or special circumstances that the High Court may entertain such an application directly and these exceptional and “special circumstances must really be exceptional and should have valid and cogent reasons for by passing the Sessions Court and approaching the High Court.” This clearly establishes that though the High Court can be directly moved for grant of anticipatory bail, ordinarily the Court of Session needs to be moved first, unless special reasons can be culled out for not doing the same. Also, a revision application can be made from an order granting / refusing anticipatory bail.
Amiya Kumar Sen v. State of West Bengal 1979 CriLJ 288 (Cal-DB) has held that “we have no doubt to hold that the said section gives the petitioner for anticipatory bail a choice as to the forum where he is to apply. Two Courts are empowered to grant bail under Section 438, namely, the High Court and the Court of Session, but the petitioner may choose one of the two Courts and apply to the Court of his choice. We cannot hold that if the petitioner approaches the Court of Session for the relief under Section 438 and if his prayer is rejected, he will be again entitled to approach the High Court for the same relief on the same ground under that section.” Even so, there is no bar in the High Court exercising its revisionary jurisdiction upon the order passed by the Sessions Court granting or refusing anticipatory bail and hence invoking the revisionary jurisdiction of the High Court is a better option in case anticipatory bail is denied by the Court of Session.
Y.S. Jagan Mohan Reddy v. CBI (2013) 7 SCC 439 held that “economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country. While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations.” The said Judgment was rendered while discussing the bail plea of an accused under the Prevention of Corruption Act, however the ‘obiter dicta’ of the Court can be said to be applicable to all economic offences and is in harmony with the practice of the Supreme Court treating economic offences as a different class of offenses being grave in nature.
1. The Sec. 227 of the Criminal Procedure Code deals with the discharge of an accused “If upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for doing so”. The Magistrate after issuing process has the power to either ‘discharge’ the accused if an application is so filed or to ‘frame charges’ against the accused based upon the material available on record. It is important to note that a discharge application is to be filed in the court in which the charges are purported to be tried before the charges are framed. A discharge application must be filed before the charges are framed. At this stage, discharge shall be allowed only if there is insufficient evidence on record to show that the accused must be put on trial. Otherwise, the law put a duty on the magistrate to frame charges and appreciate evidence before discharging the accused or acquitting him.
Section 397 of the Criminal Procedure Code provides that “The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.” “All Magistrates whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of section 398”. “If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.” This lays the foundation for the revisionary power of a superior court over that of the lower court within its jurisdiction. Powers of revision are exercised in case of orders against which no appeal lies.
Shri Padmanabh Keshav Kamat v. Shri Anup R. Kantak & Ors. 1999 CRiLJ 122 (Bombay) where it was held that “In the case of Madhavlal v. Chandrashekhar (supra) there were special and exceptional circumstances which in a way justified filing of the revision application directly to the High Court. However, in the instant case no special circumstances which required the petitioner to bypass the forum of the Sessions Judge and rush directly to the High Court, are pointed out. The petitioner could have very well filed his application even before the Sessions Judge, Panaji.. ..Exercise of revisional powers is not a matter of course but it is a matter of rare and sparing use.. ..Hence, as pointed out above when two fora are available to the petitioner for getting redressal of the alleged wrong, then it will certainly be more appropriate for him to first approach the lower forum. It is certainly within the discretion of the higher forum, that is, this Court to consider whether it should entertain or not of such a revision application which can lie before the Sessions Judge.” It is therefore amply clear that though the High Court or the Court of sessions may both be approached in their revisionary jurisdiction to challenge an order of the trial court, it is preferred that the Sessions Court be approached first.
1. The Criminal Procedure Code does not specifically give any power to the Court to quash proceedings as strictly construed in legal parlance. This power is derived from the inherent powers contemplated under Section 482 of the Code. This was held by the Full Bench of the Hon’ble Bombay High Court in the case of Abasaheb Yadav Honmane and Ashwini Abasaheb Honmane v. The State of Maharashtra 2008 (2) MhLJ 856 (Bom-FB).
Minu Kumari and Anr. v. The State of Bihar and Ors. 2006 (4) SCC 359 held that “The Section does not confer any new power on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognises and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle “quando lex a liquid alicui concedit, conceder videtur et id sine quo res peas esse non protest” (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage.
Sankalchand Varchhaji v. Khengaram Varadhji & Ors. 1969 CriLJ 1501.
1. In summation, it can be seen that the courts have time and again held economic offences as grave crimes that cannot be treated leniently. In fact there have been cases where economic offenses have been treated as a greater offence than crimes involving harm to body or property. There are views that different standards of onus shall rest on the accused for anticipatory bail, regular bail, discharge as well as quashing of charge. In the given scenario, given that courts are loath to quash charges and deprive the prosecution for an opportunity to prove the charges sought to be brought about against the accused, compounding of charge emerges as a ‘win – win’ situation for both the revenue authorities and the assessees. A criminal trial is a long, hard, gruelling process and at the end of the process, it is possible that there are no clear winners. Unless the proceedings taken out against the Assessee are patently unjust and wrong in law, professionals may take it upon themselves to safeguard the interest of the Assessees and to compound the charges so as to spare all the parties concerned from the rigours of a long and gruelling trial.

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