Legal News & Views

It is the sacrosanct duty of husband to provide financial support to separated wife even if he is required to earn money with physical labour with "no escape route", the Supreme Court has said while holding that maintenance must be enough for her to lead a dignified life. The apex court said it is the obligation of the husband to see that the wife does not become a destitute, a beggar and directed family courts to dispose of cases of maintenance, divorce, custody of child, property disputes as expeditiously as possible to ameliorate the agony and financial suffering of a woman who left her matrimonial home. "In fact, it is the sacrosanct duty to render the financial support even if the husband is required to earn money with physical labour, if he is able bodied. There is no escape route unless there is an order from the Court that the wife is not entitled to get maintenance from the husband on any legally permissible grounds," a bench of justices Dipak Misra an

CIT vs. HDFC Bank Ltd (Bombay High Court) Loss on account of depreciation in value of securities held as stock is not notional & is allowable as a deduction A method of accounting adopted by the taxpayer consistently and regularly cannot be discarded by the Departmental authorities on the view that he should have adopted a different method of keeping the accounts or on valuation. Financial institutions like bank, are expected to maintain accounts in terms of the RBI Act and its regulations. The form in which, accounts have to be maintained is prescribed under the aforesaid legislation. Therefore, the account had to be in conformity with the said requirements. The RBI Act or the Companies Act do not deal with the permissible deductions or exclusion under the Income Tax Act. For the purpose of the Income Tax Act, the method of valuation followed by the assessee was to value the investments at cost or market value whichever was lower. The assessee was entitled to claim a deductio

Criminal proceedings in grave offences like rape and murder cannot be quashed despite the victim and the accused reaching a compromise and coming to an amicable settlement, the Supreme court has ruled saying it will have harmful effect on society. A bench of justices Ranjana Prakash Desai and N V Ramana, however, said that proceedings in other offences, which are not related to public peace or tranquillity and confined to two individuals or groups, can be quashed after the parties reach a compromise. "...the High Court can exercise its discretion to quash the proceedings will depend on facts and circumstances of each case. Offences which involve moral turpitude, grave offences like rape, murder etc. cannot be effaced by quashing the proceedings because that will have harmful effect on the society," the bench said. The apex court said that grave offences cannot be said to be restricted to two individuals or two groups and quashing of such offences may send "wrong s

The apex consumer commission has dismissed an appeal filed by a real estate developer against a direction to pay nearly Rs 65 lakh to two persons who had jointly booked a flat in its project, saying "unscrupulous" builders who take to litigation "to cover up their faults" should not be spared. A bench of National Consumer Disputes Redressal Commission (NDCRC), also imposed punitive damages of Rs five lakh on the builder Emaar MGF Land Ltd, out of which Rs 2.5 lakh would be given to the buyer as compensation and Rs 2.5 lakh to be deposited in Consumer Legal Aid Account of the commission. The bench pulled up the builder for filing an appeal against Chandigarh State Consumer Commission order and said it was well settled that no leniency should be shown to such type of litigants who in order to cover up their own fault and negligence, go on filing meritless appeal in different foras. "Unscrupulous builders like appellants who after taking almost the entire

Overseas property buy loses appeal 1. Introduction: The provisions of section 54 prior to its amendment proposed in the Finance Bill 2014 introduced today reads as under: Section 54. (1) Subject to the provisions of sub-section (2), where, in the case of an assessee being an individual or a Hindu undivided family, the capital gain arises from the transfer of a long-term capital asset , being buildings or lands appurtenant thereto, and being a residential house, the income of which is chargeable under the head "Income from house property" (hereafter in this section referred to as the original asset), and the assessee has within a period of one year before or two years after the date on which the transfer took place purchased, or has within a period of three years after that date constructed, a residential house,------------------------------. The proposed amendment as per clause (22) runs as under- In section 54 of the Income-tax Act, in sub-section (1), for the wor

By refusing to interfere with the the judgement and order dated 28/11/2013 in WPL No.2808/2013 of The HIGH COURT OF BOMBAY, the Hon'ble Supreme Court Vide order dated 14/7/14 in the SLP(C) NO. 37726 of 2013 has allowed the decision of the Hon'ble Bombay High Court in the matter of D.J. Exim vs SBI, wherein the Hon'ble Bomaby HC allowed photographs of defaulters to be publish subject to certain conditions. Bombay High Court on 28/11/2013 refused to stop publication of photographs of a defaulter firm in newspapers, saying that it was in larger public interest. The division bench of Justices V M Kanade and M S Sonak refused to grant relief to the firm D J Exim and its directors State Bank of India, on October 10, had issued the firm a letter warning that if it did not repay loan amount, photographs of the directors would be published in national newspapers. The company moved the High Court against this saying no rule permits banks to publish photos. "They cann

In a landmark judgment, the Delhi High Court has widened the scope of definition of agent or representative authorised to get the certified copy of a public document under the Registration Act, 1908. The Court has held that an agent includes an “interested and aggrieved person”. Justice Suresh Kait of the High Court ruled in his recent judgment that there is no embargo under Section 57(3) of the Registration Act on supplying the copy of a public document in favour of any interested person. The ruling will provide relief to people who buy property from holders of power of attorney but are later unable to prove the transaction when dispute arises or the owner of property repudiates the sale agreement. The verdict came on a writ petition moved by a Delhi resident, Zarina Siddiqui, who had bought a house in Bangalore from R. Vishwanathan holding a general power of attorney issued by his brother A. Ramalingam in 1979. Though the petitioner is in possession of the property, Mr. Vishwa

Patients have a right to get their medical records from hospitals, both public and private, Central Information Commission has held while ordering disclosure of information to a former RAW official.  Nisha Priya Bhatia, a former official of country's snooping agency Research and Analysis Wing, sought her medical records from Institute of Human Behaviour and Allied Sciences where she was admitted on the orders of Delhi High Court.  These records were refused to her as the Institute cited section 8(1)(h) of the RTI Act which allows an authority to withhold information which would impede an investigation. Rejecting the contention, Information Commissioner Sridhar Acharyulu said patients have a right to their medical records which is rooted in Articles 19 and 21 of Constitution of India and respondent hospitals have a duty to provide it.  He said information commissions can enforce this right to information of patients against both Government and Private hospitals, wh

A person cannot be treated as a relative for prosecuting him in a dowry death case unless he is related to the husband by "blood, marriage or adoption", the Supreme Court has held. The apex court, however, made it clear this does not mean that he/she cannot be tried for any other offence like abetment of suicide. "We have no manner of doubt that the word 'relative of the husband' in Section 304B (dowry death) of the IPC would mean such persons, who are related by blood, marriage or adoption," a bench of justices C K Prasad and P C Ghose said. The court passed the order while deciding the appeal filed by Punjab Government challenging the Punjab and Haryana High Court's decision of setting aside the summons issued against a man as an accused in a dowry death case. The man was summoned as an accused in the case by the trial court which had held that he was a relative of the husband of the deceased woman and was also involved in the offence. Howev

The Supreme Court has warned the police of departmental action and contempt proceedings if they do not follow the checklist in Criminal Procedure Code mandating them to weigh the need to arrest a person accused of dowry harassment. A bench of Justices C K Prasad and P C Ghose said the police must follow the 'Dos and Don'ts' prescribed under Section 41 of CrPC before arresting a person in an offence punishable with less than seven years of imprisonment on being found guilty. The checklist mandates that a person accused of such an offence can be arrested if the police officer is satisfied that it was necessary 1. To prevent such person from committing any further offence 2. For proper investigation of the case 3. To prevent the accused from causing disappearance of evidence 4. To prevent accused from tampering with evidence 5. To prevent the person from inducing, threatening or luring the witness to dissuade him/her from disclosing facts to police officer or th

Background Recently, the Supreme Court of India (Supreme Court) in the case of Tata Chemicals Ltd.1 (the taxpayer) dealt with the issue of whether the taxpayer, which is entitled to refund of excess taxes withheld by it under the provisions of the Income-tax Act, 1961 (the Act), is also entitled to interest thereon. The Supreme Court held that the taxpayer is entitled to not only the refund of tax deposited under Section 195(2) of the Act, but also the interest from the date of payment of tax. The Supreme Court observed that the statutory right of the taxpayer, for refund of the sum which is wrongfully retained by the tax department, carries with it the right to interest also. Furthermore, there was no reason to restrict interest on refund only to taxpayers which pay taxes on their own behalf, without extending similar benefit in respect of refund of withholding taxes. Facts of the case The taxpayer was a company engaged in the manufacture of nitrogenous fertiliser. During the rel

A tax tribunal has accepted information on social networking site LinkedIn as additional evidence to determine whether the liaison office of a foreign entity generated taxable income in India. GE Group had set up a liaison office in India to act as a communication channel between the foreign enterprise and its customers in India. The tax department conducted an investigation at the local office, and found it was carrying out certain impermissible income-generating activities in India. The department found various expatriates were acting as business heads for Indian operations and certain employees were actively involved in concluding sales for the foreign entities of GE in India. The department alleged that it could be a permanent establishment (PE) and thus taxable. The tax department adduced the details of various expatriate employees of GE available on LinkedIn as additional evidence in this case and produced it during the proceedings before the Delhi bench of the income-tax

A consumer forum has directed a doctor and another surgeon who contributed to negligence to pay a compensation of Rs 5 lakh to the father of a man who was administered an injection for fever, which proved fatal. Prabhakar Kudtudkar, a carpenter from Govandi, had complained to the Additional Mumbai District Consumer Disputes Redressal Commission in March 2008. His son Pravin noticed a heavy swelling on his buttock after Dr Kiran Gawade administered the injection on December 24, 2007. The doctor referred him to Dr Atul Chirmade of Khedekar's Diamond Nursing Home, Chembur. The father said that without the family's consent, Chirmade performed a surgery on Pravin, leading to complications. Chirmade then arranged for an ambulance without an oxygen cylinder and sought the patient's transfer to Sion Hospital. Pravin died on the way, prompting his father to register a police complaint and file a complaint with the forum. Denying negligence, Gawade contended that a day after adm

The District Consumer Redressal Forum here has ordered Reliance General Insurance Company to pay a compensation of Rs 2 lakh, besides Rs 6 lakh claim amount, to a local resident whose car was stolen. Forum President Umesh Jhavalikar and member N D Kadam, in an order early this week, rejected the company's argument that there was a delay in filing insurance claim by the policy holder, Govind M Mandle, after the vehicle was stolen. They held there was deficiency in service on part of the company in rejecting the claim and ordered it to pay claim amount of Rs 6 lakh and Rs 2 lakh as compensation to the complainant, a resident of Kalwa town, for causing mental agony and towards legal expenses. Mandle said his car Chevrolet Tavera, which was insured with the company, went missing from near a local railway station on October 28, 2009. He lodged a complaint with the police, who carried out a search for the car and on November 7, 2009 registered an FIR. Mandle, meanwhile, filed

Prosecution of a director of a company for issuing a cheque which bounces cannot be sustained if the company is not made a party, the Supreme Court has ruled while setting aside the decision of the Delhi High Court in the case, Anil Gupta vs Star India Ltd. In this instance, a cable television distributor issued three cheques to Star India, which bounced. It filed criminal complaints under Section 138 and 141 of the Negotiable Instruments Act to the distributing company and the director. They moved the high court to quash the complaint on the ground of limitation. The high court quashed the complaint against the company but allowed the prosecution of the director, though he had argued that he was only vicariously liable for the default. He moved the Supreme Court. It relied upon earlier decisions and emphasised that proceedings against a director cannot be continued in the absence of the company. CRIMINAL APPEAL NO.1364 OF 2014 Anil Gupta vs Star India Pvt. Ltd. & Anr Article

The Supreme Court has held that a company which takes over another is liable to pay damages for default in payment of contributions to the provident fund committed by the latter. The damages is punitive in nature and it could be recovered from the transferee employer, the court held in the judgment, Mcleod Russel India vs Regional PF Commissioner, Jalpaiguri. In this case, Saroda Tea Company defaulted in payment of PF contributions. Later it was taken over by Eveready Industries, later named Mcleod Russel. According to the take-over agreement, the Mcleod cleared all PF arrears of the tea company. However, it contested the imposition of penalty for the default of the tea company. It pointed out the agreement in which the damages was the liability of the tea company. The Calcutta High Court rejected the argument. On appeal, the Supreme Court upheld the high court view and underlined that even if there was such an agreement, the liability was that of the new employer. The court asked the

Bank accused of deficiency in service for not informing clients of policy surrender The district consumer disputes redressal forum (DCDRF)–North has directed State Bank of India (SBI) and its insurance company to pay a compensation of Rs. 8.68 lakh for pre-closing the insurance policies of a consumer without prior information. The complainants, V. Sree Manikandan and Vanitha Sree Manikandan of R.A. Puram, had taken six single SBI Life Sukh Jeevan policies. Subsequently, they took a loan of Rs. 12.25 lakh from SBI. They gave their policies as collateral security on April 2, 2002. In 2011, in response to a letter they sent SBI, the complainants were informed that their policies, whose maturity value was Rs. 25 lakh, had been cancelled way back in 2005, and a sum of Rs. 16.91 lakh had been realised. After deducting the loan amount and interest, Rs. 85,000 had been transferred to the complainant, said SBI. The complainants accused the bank of deficiency of service as they were

The Goa state consumer disputes redressal commission has upheld the order of the South Goa district forum which ordered a washing machine company to pay 30,000 to an aggrieved consumer along with 5,000 as costs. A recent order by commission president N A Britto and member Jagdish Prabhudesai upheld the forum's order which had directed Whirlpool India Ltd to pay Teddy da Silva of Nagoa, Verna, 15,000 as refund for a defective washing machine, 15,000 as compensation, and 5,000 as costs. The order follows an appeal by the company against the forum's order. The case dates to July 2011 when da Silva bought one washing machine and one fridge for his brother. The washing machine was worth 25,333. It stopped working within two days and was exchanged on July 25, 2011, for another washing machine costing 15,300. The previous washing machine was for 7kg of clothes while the second was for 6.5kg. The new washing machine also broke down within 10 days and the dealer was asked t

The Maharashtra State consumer disputes redressal commission in a significant order held that not delivering flats under a development agreement to a landowner amounts to deficiency in service and require the developer to either hand over possession of the flats or compensate for the loss. The State commission on Tuesday set aside a 2011 order of a Sangli district forum and directed a developer to pay Rs 10 lakh, the price of the flat, each to four persons within two months or with 9 % interest if paid later. A district forum passed a similar order in connection with a flat in Powai. In the order passed by State commission president Justice R C Chavan and member Dhanraj Khamatkar, it said since no flats were available the developer was directed to pay the price of the flat as compensation. The case dated back to a development agreement of 2004 between co-owners of a land with Balaji Construction in Sangli to construct a residential and commercial complex and hand over six flats

A non-judicial forum should not be conferred with exclusive powers to decide the substantial question of law, says CJI Lodha New Delhi : The Supreme Court on Thursday frowned at creation of tribunals at a drop of hat, wondering whether the government was trying to create a parallel justice delivery system vis-a-vis the courts. “How can a tribunal, a forum which is not a judicial court, be conferred with exclusive powers to decide the substantial question of law” that is supposed to be the role of the Supreme Court and the High Courts, asked a Constitution Bench headed by Chief Justice R M Lodha. Its observation came in the course of hearing a batch of petitions challenging the validity of the Tribunals. The Bench, which also included judges Jagdish Singh Khehar, J. Chelameswar, A.K. Sikri and Rohinton Fali Nariman, noted how difficult it is becoming to find persons for manning the Tribunals as those are fit for the job are not interested and those who are keen are not suitable.

In what might sound music to the ears of the medical fraternity, the Hyderabad high court has held that when a patient agrees to go for medical treatment or surgical operation, every careless act of the medical staff cannot be termed as criminal. Justice B S Ravi Kumar gave the ruling while allowing a plea by Dr P Malathi and Dr L Sudhakar, who sought suspension of a criminal complaint against them in a lower court of the city. While delivering the verdict, the judge relied upon the decision of the British House of Lords in RV Adomako case, in which the they held that a doctor cannot be held criminally responsible for the death of patients unless his negligence or incompetence showed such disregard for the life and safety of his patient as to amount to a crime against the state. Applying the findings to the present case, the judge said, "It can be termed criminal only when the medical man exhibits a gross lack of competence or inaction and wanton indifference to his patients&

Police should stay off landlord-tenant disputes, as the parties involved can seek remedy only from the competent civil court, the Madras high court has said. "If there is a landlord-tenant relationship, police are not entitled to inquire the matter. It should advise both the parties to approach the competent civil court or rent control authority," Justice T S Sivagnanam said recently, passing orders on a petition. The matter relates to a criminal complaint lodged against R Suresh by his landlord P Syed Omar Sajeeth before the Teynampet police on June 7, seeking recovery of rent arrears. In his petition, Suresh said after being summoned to the police station, he and his counsel met the officers handling the matter. Even after his counsel explained that there was absolutely no criminal offence necessitating the summoning of Suresh, police held inquiries. He then moved the high court. His counsel S Namo Narayanan said police ought not to have entertained the complaint at

The bank filed an appeal saying candidates who have secured 60% marks and above alone are eligible to get education loan, as they alone can be treated as meritorious candidates. The bench, rejecting the submissions, said: "The government of India launched the scheme of providing education loans to economically disadvantaged people through nationalised banks. Sanction of educational loan is not free but is repayable with interest at a later point of time, of course, at a reduced rate of interest. The whole idea behind the scheme is to finance the economically disadvantaged people in their educational career. It is a social commitment for the upliftment of weaker, vulnerable and other sections of the society. It is a social welfare measure. In a way, it is some sort of social banking." The judges said public sector banks and other financial institutions must bear the government's policy in mind while sanctioning educational loans to cover the genuine, reasonable and ju

Persons forging property documents deserve the punishment of chopping off the fingers as in Iran, Madras High Court has observed. “But there is no law to that effect in our country,” regretted Justice SVaidynathan on Thursday. The judge said Iran has unveiled its latest innovation in criminal punishment - a machine that cuts off fingers of thieves. It is being used for chopping off the fingers of culprits by a court of Shiraz. For having committed forgery of property document in the case on hand, this court is of the view that such a punishment should be awarded to the petitioner. The judge, however, imposed a huge cost of `1 lakh on PM Elavarasan of Kottur, the petitioner, who prayed for a direction to the Sub-Registrar in Virugambakkam to release the sale deed presented by him on April 17, 2013 upon assigning a registration number. After collecting the cost amount, the Registry should issue four cheques for `25,000 each in favour of the Cancer Institute in Adyar, Govt. Higher

Jai Surgicals Ltd vs. ACIT (ITAT Delhi) Expl to s. 37: If the purpose of the expenditure is not an offence/ prohibited by law, fact that prior approval of the Govt. was not obtained cannot be the basis of disallowance The Explanation to s. 37(1) is a deeming provision and disallows expenditure incurred by an assessee for ‘any purpose’ which is either an offence or prohibited by law. The inquiry to determine the applicability or otherwise of the Explanation is restricted to ascertaining the purpose of the expenditure. In simple words, the investigation should be carried out to see the object and consideration for the expenditure incurred. If the purpose of the expenditure is neither to commit an offence nor is prohibited by any law, then there can be no question of disallowance. It means that the offence or prohibition under law should be judged with the ‘purpose’ of the expenditure on a standalone basis divorced from the fulfillment or otherwise of the procedural formalities attac

Sanjeev Lal vs. CIT (Supreme Court) S. 2(47)/ 54: If an agreement to sell is entered into within the prescribed period, there is a transfer of some rights in favour of the vendee. Fact that sale deed could not be executed within the time limit owing to supervening problem is not a bar for s. 54 exemption Consequences of execution of the agreement to sell are very clear and they are to the effect that the appellants could not have sold the property to someone else. In practical life, there are events when a person, even after executing an agreement to sell an immoveable property in favour of one person, tries to sell the property to another. In our opinion, such an act would not be in accordance with law because once an agreement to sell is executed in favour of one person, the said person gets a right to get the property transferred in his favour by filing a suit for specific performance and therefore, without hesitation we can say that some right, in respect of the said property

Bombay Stock Exchange Ltd vs. DDIT (E) (Bombay High Court) S. 147: Bald statement that assessee has failed to make a full & true disclosure of material facts not sufficient. Details must be given as to which fact was not disclosed It is true that the reasons for initiating re-assessment proceedings do in fact state that there was a failure on the part of the Petitioner to disclose fully and truly all material facts necessary for its assessment. However, merely making this bald assertion was not enough. In Hindustan Lever Ltd. v/s R.B. Wadkar 268 ITR 332 it was held that the AO must disclose in the reasons as to which fact or material was not disclosed by the assessee fully and truly necessary for assessment of that assessment year, so as to establish the vital link between the reasons and evidence. On facts, there are no details given by the AO as to which fact or material was not disclosed by the Petitioner that led to it’s income escaping assessment. There is merely a bald a

DIT (IT) vs. Mahindra & Mahindra Limited (Bombay High Court) S. 201 TDS: Even if the statute does not lay down a time limit, proceedings must be completed within a limited period In the context of a GDR/ Euro issue by the assessee, the department claimed that the assessee ought to have deducted TDS u/s 195 on payment of fees to the fund managers etc. The Special Bench (122 TTJ 577) allowed the assessee’s appeal inter alia on the ground that a time limit for initiation and completion of proceedings u/s 201 (1) & (1A) had to be read into the statute. On appeal by the department to the High Court HELD dismissing the appeal: S. 201 of the Act does not prescribe any limitation period for the assessee being declared as an assessee in default. If no period of limitation is prescribed, a statutory authority must exercise its jurisdiction within a reasonable period. What should be the reasonable period depends upon the nature of the statute, rights and liabilities thereunder an

CIT vs. Devdas Naik (Bombay High Court) S. 54/54F: Two flats, even though acquired under different agreements & from different sellers, are one residential unit if there is a common kitchen The department’s argument that the law laid down by the Tribunal in ITO v/s Sushila M. Jhaveri 107 ITD 327 (Mum)(SB) and confirmed by this Court in CIT v/s Raman Kumar Suri (Income Tax Appeal No.6962 of 2010, decided on 27.11. 2012) on the availability of exemption u/s 54 is applicable only when the house purchased is a single unit and not where two flats, one acquired in the assessee’s name and another jointly in the names of the assessee and his wife but under two distinct agreements and from different sellers have been taken into consideration is not acceptable. Though these flats were acquired under two distinct agreements and from different sellers, the map of the general layout plan as well as internal layout plan in regard to flat Nos.103 and 104 indicate that there is only one comm

The East Delhi District Consumer Disputes Redressal Forum, presided by N A Zaidi, said it was the bank's duty to see that the CCTVs in ATMs were placed in such a manner that they could record the identity of the person operating the machine and the amount delivered to him. The forum asked the bank to pay Rs 30,000, including compensation for causing harassment, to East Delhi resident Arun Sharma after noting that Rs 20,000, which was debited from his account through the bank's ATM, was never withdrawn by him. "The entire material on record clearly shows that the transaction in question (Rs 20,000) was not carried out by the complainant and the amount which has been debited from the account of the complainant was never withdrawn by him. "It is the duty of the Bank to keep their ATMs free from any kind of fault, the CCTV cameras should be fixed in such a manner that they could record the identity of the person operating machine and recording the amount delivered

The Thane District Consumer Redressal Forum has ordered LIC to pay a compensation of Rs 70,000 to a Bhiwandi resident towards legal charges and mental suffering that he had to undergo after his insurance claim was rejected following the death of his son. Forum President Umesh Jhavalikar and Member N D Kadam in their order last week also directed three respondents, including LIC of India, Assistant Secretary (G/ULIP) and Manager (Claims) to make a payment of Rs 50,000, the insurance amount claimed by complainant Narendrakumar Mishra. Mishra, in his complaint, stated that he had taken the 'Children's Deferred Endowment Assurance Policy With Profits' for his son Shyamnandan (who was 13 then) effective from January 1, 1998 for a period of 17 years. Also, he paid Rs 1,142 half-yearly and the total sum assured was Rs 50,000. The last date for payment of the premium was July 1, 2014. The policy holder was to get the maturity amount on January 01, 2015. There was a condition

A public servant cannot raise the issue of sanction to shut out his prosecution for his alleged involvement in the offences like cheating and criminal breach of trust as no such prior permission would be necessary to start proceedings against him for such acts, the Supreme Court held. A bench of justices S J Mukhopadhaya and Ranjan Gogoi reiterated the legal proposition with regard to the mandatory sanction - required under Section 197 of the Criminal Procedure Code – for initiating proceedings against public servants.  “It can be no part of the duty of a public servant or acting in the discharge of his official duties to commit any of the offences covered by Section 406 (breach of trust) 409 (breach of trust by public servant), 420 (cheating) etc of the IPC and the official status of the public servant can, at best, only provide an opportunity for commission of the offences. Therefore, no sanction for prosecution of the public servant for such offences would be required,” the be