Legal News & Views

In a curious case, the High Court of Gujarat has scrapped the jail term for an accused, on the submission that he had contributed to a religious trust. The Court was hearing an appeal filed against an order passed by the Sessions Judge, Valsad, against the appellant, Mr. Manubhai Laljibhai Ambaliya, for having raised false evidence. Mr. Ambaliya had been ordered to undergo sentence of three months, and to pay a fine of Rs.500. Article referred: http://www.livelaw.in/gujarat-hc-quashes-jail-term-exchange-donation-religious-trust/

The High Court of Rajasthan in Uco Bank & Ors. v. Devi Kishan Harijan held that appointment on compassionate grounds cannot be allowed if the period of crisis is over for the family of the deceased employee. “In view of the various pronouncements cited above, it is apparently clear that the philosophy behind giving compassionate appointment is just to help the family in harness to get over the immediate crisis by the loss of sole breadwinner. This category of appointment cannot be claimed as a right after lapse of the period when the crisis is over. More so, the financial status of the family is also to be looked into as per the scheme framed by the employer while giving compassionate appointment and such appointment cannot be conferred contrary to the para-meters of the scheme,” the Bench comprising Justice Sangeet Lodha and Justice Deepak Maheshwari observed. Article referred: http://www.livelaw.in/compassionate-appointment-cannot-allowed-period-crisis-family-deceased-employee-...

In Mack Soft Tech Pvt.Ltd., Hyd vs Dcit Hyderabad, the appeal was filed by the assessed against the order of the CIT (A)-4, Hyderabad dated 30.01.2015 confirming the assessment order passed u/s 143(3) r.w.s. 92CA r.w.s. 144C of the I.T. Act, wherein the AO has assessed income derived by the assessee from the business of operation and maintenance of information Technology Park as "Income from house property". The assessed argued that the company was allotted/sold land by the APIIC to be used only for the specific purpose of setting up IT facility i.e., IT software, IT enabled service and IT infrastructure and that the assessee has developed an integrated business facility thereon called "Q-city" which has been exploited as a commercial asset in the business carried on by it and accordingly, the learned C.I.T(Appeals) ought to have held that the income derived by the assessee from the IT park is assessable as income from business. The Appellant Tribunal referring ...

In Dolarrai Hemani vs. ITO, the Tax Tribunal held that the fact that the stock is thinly traded and there is unusually high gain is not sufficient to treat the long-term capital gains as bogus when all the paper work is in order. The revenue has to bring material on record to support its finding that there has been collusion / connivance between the broker and the assessee for the introduction of its unaccounted money

In Jaiprakash Associates Ltd. V. ICICI Lombard General Insurance Co. Ltd., the insured were seeking damage for insured assets which was refused by the insurer on the ground that the period for which the machinery had been insured have expired. On filling complain, the NCRDC noted that while the time period for the insured machinery was “about three months” and that in civil works, it may not always be possible to strictly adhere to such a stipulation, an insurance coverage cannot be available for a vague or indefinite period.  In fact, an insurance policy may itself be held to be void if the period of insurance is found to be vague, indefinite or uncertain. Complainant was seeking coverage of TBMs for a period of three months from date of commencement of erection. Therefore, it was not necessary for insurer to specify period of coverage while issuing confirmation. Date of commencement of the construction was expressly conveyed by the complainant to the insurer. Damage to T...

In Amit v. Union of India and Anr., the Petitioner had applied for a post which required a hotel management degree. He did not have a graduation degree from a recognized University and claimed equivalence of his Diploma in Hotel Management to a graduation degree. The Hon'ble court held that There is no law for treating a diploma in Hotel Management of three years as equivalent to a graduation degree of a recognized University. It is for the employer to decide what should be the eligibility criteria required by a candidate to be satisfied for being appointed to a post, and hence relief cannot be granted in this writ petition.

In Ramesh Narayan Patil and Others v. The State of Maharashtra and Others, the land owner having refused to accept amount of compensation for the land acquired by the Govt. and the compensation was in government treasury, Govt. pleader objected to the plea of  the landowners that the acquisition process has lapsed. The Hon'ble High Court held that deposit of compensation amount in Government Revenue Account on refusal of owner to receive the amount would debar Petitioners to get benefit of Section 24(2) of Act of 2013 cannot be accepted. If amount of compensation was offered to land owner and he did not give consent to receive, it was duty of the SLAO to have deposited amount of compensation in Court to which reference under Section 18 would be submitted. SLAO having not done so, Petitioners are entitled to get benefit of Section 24(2) of Act of 2013.

On December 7, 2016, a notification was issued by the Central Government, through the Corporate Ministry, it stated- All petitions relating to winding up under clause (e) of Section 433 pending before High Courts, and which have not been served on the Respondent as required by Rule 26 of the Companies (Court) Rules, 1959, stand transferred to the appropriate Bench of the National Company Law Tribunal (“NCLT”) exercising territorial jurisdiction over the mater. In light of the above notification, Neelkamal Realtors contended before the High Court that the winding up petitions filed against it, ought to be transferred to the National Company Law Tribunal. Whereas the petitioners argued that since the petition has been served to the respondents under Rule 26, the transfer notification did not apply to them and the Bombay High Court retains its jurisdiction over them. Thus, the court refused to transfer the two winding up petitions to the NCLT and held that – “Every winding up petition u...

The Chhattisgarh High Court has held in Rajesh Kumar Agrawal vs Tulsi Electronic, & Others,  that the remedy available to the consumer under the Consumer Protection Act is an additional remedy. Other statutory remedy available to the consumer under other statutory laws would not bar the consumer to avail of that ‘additional’ remedy, it said. Justice Sanjay K Agrawal observed that district and state forums were wrong in rejecting the complaint on the ground of availability of alternative remedy under Section 7-B of the Telegraph Act. Rajesh Kumar Agrawal, had complained before the district forum alleging that his service provider adopted unfair trade practice in providing telecom services though he had paid for data service and while using the data services, balance lying in call account was deducted unauthorisedly.

In M/s Alcon Electronics Pvt. Ltd. Vs. Celem S.A. of FOS 34320 Roujan, the issue before the Hon'ble Supreme Court OF India were the following :- (1) Whether the order passed by the Foreign Court falls within the Exceptions to Section 13 of the CPC? (2) Whether the order passed by the Foreign Court amounts to a “decree” and the same is executable? (3) If answer to issue No. 2 is in affirmative, whether the decree for costs would fall within the ambit of Explanation 2 of Section 44A (3) of CPC and makes it inexecutable? (4) Whether interest on costs would fall within the ambit of Explanation 2 of Section 44A of CPC? (5) Whether the interest on costs can be executed in India in view of deletion of Section 35(3) of CPC? In reply the Hon'ble Court held that - 1) The principles of comity of nation demand us to respect the order of English Court. Even in regard to an interlocutory order, Indian Courts have to give due weight to such order unless it falls under any of the ex...

In Church Of North India Trust Association VS UNION OF INDIA, the Allahabad High Court has held that land belonging to religious bodies can be acquired by the government for achieving a larger public purpose. A division bench of Justice V K Shukla and Justice MC Tripathi has dismissed a petition filed by the Church of North India Association challenging a notification by which its land was acquired for construction of a bypass road connecting Agra with Etawah. Article referred: http://www.livelaw.in/land-belonging-religious-bodies-can-acquired-serve-larger-public-purpose-allahabad-hc/

The Delhi High Court in Jatinder Kumar Sachdeva vs. The Union Of India And Ors, has clarified that when goods are seized/confiscated, the Customs Department must give a show cause notice under Section 124(a) of the Customs Act, 1962 (the ‘Act’) within six months or within the extended period of further six months, otherwise the goods have to be released to the person from whom they have been seized. Jatinder Kumar arrived from Dubai at IGI Airport Terminal T-3 and was intercepted by Customs officials at the exit gate where he was questioned for detainable goods being in his possession. Article referred: http://www.livelaw.in/customs-dept-must-give-show-cause-notice-6-months-case-seizuredetention-goods-delhi-hc/

In Ramvilas (Dead) Thr. Lrs. Vs. Karim Khan, the question before the Hon'ble Supreme Court of India was whether whenever a conveyance of the property by a Sale Deed is accompanied by a separate document, it has to be taken as re-conveyance and it was not a mortgage. The Hon'ble court held that in Bhaskar Waman Joshi (D) and Ors. v. Shrinarayan Rambilas Agarwal, this Court has succinctly considered the question as to whether a transaction ostensibly of a sale may be regarded as a mortgage and held that it is one of intention of the parties to be gathered from the language of the deed interpreted in the light of the surrounding circumstances.

In Nandkishor Savalaram Malu (Dead) Through Lrs. Vs. Hanumanmal G. Biyani (D) Thr. Lrs. & Ors., the matter was eviction of a partnership firm which was the lessee/tenant and whether employees as well as the partners have to be made parties to the suit. The Hon'ble Supreme Court of India held that " we are of the considered opinion that neither the Firm nor their partners and nor defendant no.1 had any legal right to remain in possession of the suit house. The reason being that so far as the Firm and its partners were concerned (defendant Nos. 2 to 9), they being the tenant rightly suffered the decree for payment of arrears of rent and eviction under the Rent Act and so far as defendant no.1 was concerned, he was neither an owner of the suit house nor a tenant inducted by the appellants and nor a licensee but was held to be an employee of the Firm and a rank trespasser in the suit house. 24) The legal effect of such eviction decree under the Rent Act was that the possessi...

In Arun Kumar Sharma Vs. State of U.P. , the Hon'ble Allahabad High Court has held that a Magistrate may dismiss a complaint (a) if he finds that no offence has been committed upon the statement of the complainant; (b) if he distrust the statements by the complainant, and (c) if he finds that there is no sufficient ground for proceeding. For issuing the process against the accused, it has to be only seen whether prima facie case has been made out. The Magistrate is not required to go deep into the probative value of material on record. The Magistrate before issuing process against the accused must exercise his judicial mind to the facts of the case and law applicable thereto. The Court is not required to assess the evidence and consider the probabilities or improbabilities of the version of the complaint and or evaluate the sworn statement of the complainant or witness. The Magistrate under law at this stage is not permitted to embark upon meticulous examination of the evidence or ...

The Supreme Court in Jorsingh Govind Vanjari Vs. Divisional Controller Maharashtra, State Road Transport Corporation, has held that in order to deny gratuity to an employee, it is not enough that the alleged misconduct of the employee constitutes an offence involving moral turpitude as per the report of the domestic inquiry, but there must be termination on account of the alleged misconduct, which constitutes an offence involving moral turpitude. Article referred: http://www.livelaw.in/gratuity-can-denied-termination-account-misconduct-sc/

The Supreme Court in Abhijit Pawar vs. Hemant Madhukar Nimbalkar, has emphasised that in cases where the accused is residing at a place beyond the area in which the magistrate exercises his jurisdiction, it is mandatory on the part of the magistrate to conduct an inquiry or investigation before issuing the process. Article referred: http://www.livelaw.in/magistrate-must-inquiryinvestigation-summoning-accused-residing-far-off-place-sc/

The Supreme Court, in CIT vs M/S Yokogawa India Ltd, has held that Section 10A of the Income Tax Act is a provision for deduction and not exemption. However, the court clarified that the stage of deduction would be while computing the gross total income of the eligible undertaking and not at the stage of computation of the total income. The bench headed by Justice Ranjan Gogoi observed that introduction of the word ‘deduction’ in Section 10A by the amendment embodies a clear enunciation of the legislative decision to alter its nature from one providing for exemption to one providing for deductions. The court also said that though the difference between the two expressions ‘exemption’ and ‘deduction’, may appear to be the same i.e. immunity from taxation, the practical effect of it would be wholly different. The court also observed that retention of Section 80HHC and 80HHE of the Income Tax Act, despite the amendment of Section 10A, indicates that some additional benefits to eligible Se...

In a landmark judgment (Centrotrade Minerals Vs Hindusthan Copper), accepting the concept of ‘two tier arbitration’ or ‘second instance arbitration’, a three judge bench of the Supreme Court comprising of Justices Madan B. Lokur, R.K Agrawal and D.Y Chandrachud answering a reference made in 2006 due to divergence of opinions between Justice S.B.Sinha and Tarun Chatterjee, held that arbitration clauses which provide for a two- step arbitration process are valid under Indian arbitral jurisprudence. Article referred: http://www.livelaw.in/two-tier-arbitration-procedure-permissible-laws-india-sc/

A two judge bench of the Supreme Court comprising of Justices Ranjan Gogoi and P.C.Pant in Ahmedabad Municipal Corporation v GTL Infrastructure Ltd. & Ors. Etc. has held that mobile towers come within the fold of ‘land and building’ appearing in 21 Entry 49 List II of the Seventh Schedule of the Constitution and can be termed as a ‘building’ for the purposes of levy of property tax. Article referred: http://www.livelaw.in/mobile-towers-come-within-ambit-land-building-levying-property-tax-sc/

In Elecon Engineering Co Ltd vs. ACIT, the Hon'ble Gujarat High Court held that under Section 147 of the IT Act, If the AO reopens the assessment on information supplied by the audit party without application of mind, the reopening is invalid. Likewise, if the AO disputes the findings of the audit party, he is not entitled to reopen the assessment. The reasons must show independent application of mind of the AO

In IndiaBulls Financial Services Ltd vs. DCIT, the Hon'ble Delhi High Court, while hearing the appeal  against order of the Appellant Tribunal decided that The fact that the AO did not expressly record his dissatisfaction with the assessee's working under Section 14A and Rule 8D of the IT Act does not mean that he cannot make the disallowance. The AO need not pay lip service and formally record dissatisfaction. It is sufficient if the order shows due application of mind to all aspects.

In CIT vs. Greenfield Hotels & Estates Pvt. Ltd, the issue before the Tribunal was whether Section 50C of the Act would be applicable to transfer of leasehold rights in land and buildings. The Tribunal followed its decision in Atul G. Puranik vs. ITO (ITA No.3051/Mum/2010) decided on 13 May 2011 which held that Section 50C is not applicable while computing capital gains on transfer of leasehold rights in land and buildings. On appeal by the department to the Hon'ble Bombay High Court held dismissing the appeal:

In Amritlal T. Shah vs. ITO, the ITAT Mumbai held that In valuing the shares of a privately held co, the “enterprise valuation” has to be taken by valuing even the assets held by subsidiaries of the Company. It is common for the sellers to charge a “controlling premium” for the sale of the shares. Such transfers to enable restructuring and re-aligning the shareholding pattern are genuine and bona fide. The alleged excess consideration for the sale of the shares cannot be treated as “unexplained income”

In Laliteshwar Prasad Singh Vs. S.P. Srivastava (D) thr. Lrs., an appeal arose before the Hon'ble Supreme Court of India out of the judgment of High Court of Patna in First Appeal reversing the judgment of the trial court. The Hon'ble Supreme Court set aside the impugned judgment of the High Court and remitted the matter back to the High Court for consideration of the matter afresh and held that it is well settled that the first appellate court shall state the points for determination, the decision thereon and the reasons for decision. However, it is equally well settled that mere omission to frame point/points for determination does not vitiate the judgment of the first appellate court provided that the first appellate court records its reasons based on evidence adduced by both the parties. An appellate court is the final court of facts. The judgment of the appellate court must therefore reflect court’s application of mind and record its findings supported by reasons. The ...

A division bench of the Bombay High Court in Shakti Yezdani and Another. vs  Jayanand Jayant Salgaonkar and Others.,   has held that the right of succession overrides the rights of a nominee. The bench of Justices AS Oka and AA Sayed have held that the rights of the successors prevail over that of the nominee of a holder of shares or securities appointed under Section 109A of Companies Act, 1953. The division bench was hearing appeals arising out of an order passed by a single bench. By an order dated March 31, 2015 a single judge of the Bombay High Court held that in the case of Harsha Nitin Kokate v. The Saraswat Cooperative Bank Limited(Kokate case) the view taken by Roshan Dalvi J was per incuriam or bad in law. These appeals were placed before the division bench after the Chief Justice passed an administrative order directing the same. Article referred: http://www.livelaw.in/nomination-cannot-override-law-succession-holds-bombay-hc/

The Madras High Court has held that a widow is equally entitled, even after remarrying, to receive the Provident Fund amount from her late husband’s account. The court reiterated the fact that the bar under Section 24 of the Hindu Succession Act, 1956, was deleted in September 2005, upholding her right to claim herself as a legal representative of her deceased husband. The petitioner had remarried following her husband’s death in 2001. In 2004, on an appeal by the mother of the deceased, the Principal Subordinate Judge had given her the sole right to obtain the amount lying in her son’s Provident Fund account. The widow had preferred an appeal against the said order. Article referred: http://www.livelaw.in/widow-entitled-husbands-pf-amount-even-remarriage-madras-hc/

The Supreme Court in Chief Executive Officer, Krishna District Cooperative Central Bank Ltd. and Another vs. K. Hanumantha Rao and Another, has set aside an impugned judgment of a division bench of the Andhra Pradesh High Court holding that decision qua the nature and quantum is the prerogative of the disciplinary authority and it is not the function of the high court to decide the same. Article referred: http://www.livelaw.in/high-court-not-disciplinary-authority-sc/

The Supreme Court in HDFC Securities Ltd. & Ors vs State of Maharashtra & Anr. has recently held that the Indian Penal Code, 1860, does not provide for vicarious liability for any offence alleged to be committed by a company. A division bench of Justice PC Ghose and Justice Amitava Roy also held that if and when a statute contemplates creation of such a legal fiction, it provides specifically therefore, e.g. Negotiable Instruments Act, 1881. Article referred: http://www.livelaw.in/ipc-doesnt-provide-vicarious-liability-offence-company-sc/

In Hazi Jahangir Molla Vs. Md. Alim Mallick, the Hon'ble Calcutta High Court decided that Part payment cannot defeat the entire cause of action. Further Even if one person who has no money lending licence cannot be debarred from granting any accommodation loan to his friend or other person on him he has confidence. The opposite party took the accommodation loan and he cannot take the shelter of the money lenders’ act to defraud the person who accommodated him.

The Supreme Court of India in Nandini Satpathy Vs. P.L. Dani held that the accused Person cannot be forced to answer questions merely because the answers thereto are not implicative when viewed in isolation and confined to that particular case.

In Tom Thomas Vs. State Bank of India Overseas Branch, Willington Island, Kerala High Court found that the very prayer of the guarantors is essentially for a direction to the creditor bank to proceed against certain other items of secured assets initially, and to proceed against the residential properties only thereafter and held that it is the prerogative of the creditor to proceed for recovery of its debt in any of the legally permissible modes and against the available securities. It is up to him to choose the easiest mode which according to him would enable him to realise his debt. The surety or the principal debtor do not have a right to dictate terms to the creditor as to how he should make recovery of its debt.

In Shahul Hameed Vs. P.E. Abdu Razak, the Hon'ble Kerala High Court held that - 1) When a tiny room only is required for the landlord, he need not forgo a monthly rent by occupying a spacious room. 2) A lazy trader cannot be considered to be a person solely or mainly depending for his livelihood on the income derived from his business. 3) In all cases tenants need not prove their precise income. But evidence must be produced to prove the approximate income. 4) If the tenant has only one source of income, he should prove that he is getting an income with which he can live. He cannot be heard to say that he need not produce any evidence to prove his income if he has only one source of income. 5) If the tenant has more sources of income than one, he should prove the approximate income from each source to prove that the income from the business or trade conducted in the tenanted premises is the main source of income for his livelihood.

The Delhi High Court in PKS Shrivastava vs. Union Of India And Anr, has dealt with the maintainability of a writ petition on the ground as to whether it had the territorial jurisdiction to decide it or not, as the petition was filed against an order of termination of service passed by the Ministry in New Delhi against Shrivastava, who worked as a Director of Goa Shipyard Ltd. Upon examination, the bench agreed that a mere existence of an order in the government file does not result in a binding order for creating legal rights, and therefore, when legal rights are created only on communication and a legal cause of action is complete only on such communication, thus accordingly it is the place where the order of termination of services is communicated that would be the place where the territorial jurisdiction arises, and which is Goa, in the facts of the present case. Article referred: http://www.livelaw.in/termination-service-jurisdiction-lies-place-communication-made-delhi-hc/

In Asset Reconstruction Company (India) Ltd. Vs. Florita Buildcon Private Limited, the auction purchaser had successfully bid a secured asset being sold mortgaged property on “as is where is and as is what is basis”. The various terms and conditions forming the part of bid document clearly casted the responsibility and liability on the bidder to ensure that the title of the mortgaged property is verified by the bidder and the property is being sold clearly on “as is where is and as is what is basis”. The purchaser (Respondent No. 1) filed application in the Debts Recovery Tribunal, Mumbai to set aside the sale on the count that the mortgaged property was falling in Coastal Regulation Zone (CRZ) and was a plot reserved for Recreation Ground (RG) and, therefore, there was no saleable interest in the mortgaged property. It was also contended that Respondent No.1 came to know about the same only when Respondent No.1 started erecting shed on the said property. ARCL challenged t...

In Eskays Construction Pvt. Ltd. Vs. Soma Papers & Industries Ltd., the Hon'ble Bombay High Court has held that DRAT has no power or jurisdiction to reduce the deposit amount to less than 25% and unless the debt due is secured, the borrower cannot be allowed the luxury of litigation.

The single bench of Justice Sadhna Jadhav of the Bombay High Court in Shri Lonkaran Chothmalji Parmar vs The State of Maharashtra has refused to grant bail to an accused under various sections of the Indian Penal Code including wrongful confinement, rape. He has also been booked under three sections of Prevention of Children from Sexual Offences Act(POCSO). Article referred: http://www.livelaw.in/delay-cannot-fatal-prosecution-cases-holds-bombay-hc/