Legal News & Views

In Ajay Kumar Ghosal vs The State Of Bihar, the Hon'ble Supreme Court on Tuesday ruled that an order for retrial may be passed only in exceptional cases, where the appellate court is satisfied that an omission or irregularity has occasioned in failure of justice. A two-judge bench comprising Justice Dipak Misra and Justice R. Banumathi was considering an appeal filed by accused persons against a Patna High Court judgment ordering re-trial of a dowry death case. Article referred: http://www.livelaw.in/retrial-can-ordered-exceptional-cases-sc-read-judgment/

In Madan Kumar Athya vs The State of Madhya Pradesh, the Madhya Pradesh High Court has held the personal inconvenience, etc. cannot be a ground to challenge transfer from one place to another by an employee if it do not run contrary to statutory provisions. The court turned down the relief sought by the employee to get transfer to a nearby place on health ground and ailing old-aged mother dependent on him. Article referred: http://www.livelaw.in/personal-inconvenience-not-ground-challenge-transfer-mp-hc-read-order/

The Supreme Court, in V Rajendran vs Annasamy Pandian, has held that the defect in the survey number of the suit property will constitute to be a “formal defect” within the meaning of Order XXIII Rule 1(3) (a) of Code of Civil Procedure. The bench comprising of Justices Dipak Misra and R.Bhanumathi observed that the defect in the survey number of the suit property goes to the very core of the subject matter of the suit and the entire proceedings would be fruitless if the decree holder is not able to get the decree executed successfully and thus, the said defect will constitute to be a “formal defect” within the meaning of Order XXIII Rule 1(3) (a) CPC. Article referred: http://www.livelaw.in/defect-survey-number-suit-property-formal-defect-sc/

In State through Lokayukta Police vs C. N. Manjunath, the Hon'ble Supreme Court has held that a Licensed Surveyor under Section 18A of the Karnataka Land Revenue Act would be treated as “public servant” for the purposes of Prevention of Corruption Act, 1988. The Bench comprising Justice AK Sikri and Justice AM Sapre quoted in approval a Karnataka Division Bench Judgment which had held that the licensed surveyors cannot be termed as mere contractors bound by their engagements, but they are the licencees who are bound by the terms of the office as a licensed surveyors.... Article referred: http://www.livelaw.in/licensed-surveyor-public-servant-purposes-prevention-corruption-act-sc-read-judgment/

In D M JADEJA Versus GUJARAT TOURISM DEVELOPMENT CORPORATION, the issue before the Hon'ble court was Equal pay for equal work. The Hon'ble court held that the law on the issue can be summarised to the effect that parity of pay can be claimed by invoking the provisions of Articles 14 and 39(d) of the Constitution of India by establishing that the eligibility, mode of selection/recruitment, nature and quality of work and duties and effort, reliability, confidentiality, dexterity, functional need and responsibilities and status of both the posts are identical. The functions may be the same but the skills and responsibilities may be really and substantially different. The other post may not require any higher qualification, seniority or other like factors. Granting parity in pay scales depends upon the comparative evaluation of job and equation of posts. The person claiming parity, must plead necessary averments and prove that all things are equal between the concerned posts. ...

In NISHU WADHWA versus SIDDHARTH WADHWA, the questions before the Hon'ble Delhi High Court was :- i. Whether a person who has not been summoned as an accused can file a revision petition ? ii. Whether revision petition filed under Section 397 Cr.P.C. against the order of the Metropolitan Magistrate passed under Section 156(3) Cr.P.C. was maintainable or not? iii. Whether the Metropolitan Magistrate had territorial jurisdiction to entertain the application under Section 156 (3) Cr.P.C. and pass order thereon as the investigation had been transferred? iv. Whether directions by the Metropolitan Magistrate to add Sections in the FIR would amount to interference during investigation? The Hon'ble court held that :- i & ii) As decided by the Hon'ble Supreme Court in Randhirsinh Dipsinh Parmar vs. State of Gujarat & Ors, the issue that since the accused has not been summoned as an accused and has no right to file a revision petition is alien, while deciding an a...

In VIJAYCHANDRA PRAKASH SHUKLA Versus STATE OF GUJARAT, the matter before the Hon'ble Gujarat High Court was the filling of a second complaint before the same P.S. for the same complaint. The said action was challenged before the Hon'ble court which held that the law has amply entrusted power with the investigating agency that even if after conclusion of investigation pursuant to filing of the first FIR and even after submission of report under section 173(2) of Cr.P.C., the officer in charge of Police Station comes across any further information pertaining to the same incident, he can make further investigation normally with the leave of the Court and forward further evidence, if collected, and therefore, for the allegation made in the second complaint filed by respondent No.2 before the very same Police Station, there need not be any fresh investigation or registering of a second FIR. In the light of aforesaid circumstances, if the test of ‘sameness’ is applied to find out ...

In RAJAH HEALTHY ACRES(P)LTD. vs STATE OF KERALA, a division bench of the High Court of Kerala has upheld the levy of ‘luxury tax’ from hospitals as legally sustainable and intra vires the provisions of the Constitution. Article referred : http://www.livelaw.in/kerala-hc-holds-levy-luxury-tax-hospitals-constitutionally-valid-read-judgment/

In Titash Banik vs The State of Chhattisgarh, the Chhattisgarh High Court has held that even if the copy of FIR has been forwarded to the Magistrate, a person seeking certified copy of FIR from the police authorities cannot be denied. Titash Banik had approached the high court after his application before the police authorities seeking certified copy of FIR was rejected on the ground that it has already been forwarded to Magistrate. When he applied for the same before the Magistrate, only the photocopy of FIR was given to him. Article referred: http://www.livelaw.in/copy-fir-cant-refused-except-sensitive-cases-chhattisgarh-hc/

The Allahabad High Court in Instakart Services Pvt. Ltd. vs State of UP has observed that the levy of entry tax on e-commerce sites is prima facie unconstitutional as the state legislature has no authority or competence to do so. This observation was made by the Bench comprising Justice Ravindra Nath Mishra and Justice Amreshwar Pratap Sahi, in an interim order on a plea by Instakart Services Pvt. Ltd. which had challenged the levy of entry tax. Article referred: http://www.livelaw.in/entry-tax-e-commerce-sites-unconstitutional-says-allahabad-hc-read-judgment/

In Harimohan Pawaiya v. State of M.P. & Anr., the matter before the Hon'ble MADHYA PRADESH HIGH COURT GWALIOR BENCH, was that an FIR was lodged by the complainant/respondent No.2 on 28.02.2010 alleging therein that the applicant is engaged in the business of sale of second hand vehicles. The complainant had agreed to purchase two old Maruti 800 cars and, therefore, he had given Rs.1,50,000/- to the applicant. The applicant had given the original papers of the said cars but the delivery of the vehicles was not given on the ground that some repairing works are still required to be done. However, even after passing of about 2 years neither the applicant has refunded the amount nor has given the delivery of two old Maruti 800 cars. On the application of the applicant, the matter was also inquired into by the CSP Jhansi Road, District Gwalior. The CSP by its report dated 15.06.2010 held that although the complainant has stated that he had paid an amount of Rs.1,50,000/- to the ...

Madurai Bench of High Court of Madras, in Thilagavathi v. Deputy Commissioner of Labour and Ors., has upheld an order awarding a part of compensation paid for the death of an industrial worker to the parents of the deceased. Justice S. Vaidyanathan observed, “The respondent has clearly stated that since the children of the deceased have completed 18 years of age and attained majority, there is a bar under the provisions of the Act to treat them as dependants of the deceased employee.Moreover, this Court finds nothing wrong in adding the parents of the deceased as dependants, as it was rightly contended by the 1st respondent that under Section 2(1) (d)(iii)(b) of the Act, it has been mentioned as “a parent other than a widowed mother. Article referred: http://www.livelaw.in/married-industrial-workers-parents-can-get-compensation-death-madras-hc-read-order/

Order not to arrest while declining to quash the case, inconceivable. The Supreme Court in State of Telangana vs. Habib Abdullah Jeelani & Ors. has held that a high court, while refusing to exercise inherent powers under Section 482 of the Code of Criminal Procedure to interfere in an application for quashment of the investigation, cannot restrain the investigating agencies from arresting the accused during the course of investigation. Setting aside such a high court order, terming it “absolutely inconceivable and unthinkable”, the bench headed by Justice Dipak Misra observed that it has come to the notice of the court that high courts, while dismissing an application under Section 482 CrPC, issue directions that on surrendering before the trial judge/magistrate concerned, the accused shall be enlarged on on bail. Such directions do not come within the sweep of Article 226 of the Constitution of India nor Section 482 CrPC nor Section 438 CrPC and are not acceptable, the bench h...

The Orissa High Court in Nandita Sethi vs. State of Orissa, has held that a magistrate cannot direct further investigation of the case at the instance of a de facto complainant after taking cognizance of offences on the basis of charge sheet submitted by police. Article referred: http://www.livelaw.in/magistrate-cant-direct-investigation-defacto-complainants-plea-orissa-hc-read-judgment/

In  Bibi Jagir Kaur v. Central Bureau of Investigation,  application was filed before the Hon'ble  High Court of Punjab and Haryana  by Applicant-appellant under Section 389 read with Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C.) seeking suspension of conviction qua her during pendency of main appeal. Applicant has been held guilty for offence under Section 120-B read with Sections 313, 365 and 344 of Indian Penal Code, 1860 (IPC) vide judgment rendered by Sessions Court. Now the prayer is for stay of order of conviction as she intends to contest coming elections in the State of Punjab.  Dismissing the appeal, the Hon'ble court said "In K.C. Sareen vs. C.B.I., Chandigarh, the Apex Court opined that exercise of power to suspend order of conviction should be limited to very exceptional cases. Further, merely filing of an appeal by the convicted person should not be a ground to suspend the conviction. The court is duty bound to take into consid...

IN HDFC BANK LTD. v. ASHAPURA MINECHEM LTD. the matter before the High Court of Bombay was petitioner was objecting to the Order passed by Chairperson of Debt Recovery Appellate Tribunal rejecting appeal preferred by Petitioner-original applicant challenging the Order passed by the Debut Recovery Tribunal rejecting application seeking leave to amend the pleadings. Application tendered by the original applicant has been turned down by the Debt Recovery Tribunal by Order dated 6 October 2016, mainly on the ground that the proposed amendment under which the recovery of additional amount is claimed does not relate back to the date of presentation of original-application. Adverse order passed by Debt Recovery Tribunal was subject matter before Appellate Court where appeal has also been rejected. It is the case of Petitioner that, proposed amendment thus relates to the subject matter of suit and does not necessarily change character of the same. The Hon'ble court referring to Mount Mar...

Making drastic observations, Bombay High Court has granted bail to three men accused of murdering Shaikh Mohsin. The single bench of Justice Mridula Bhatkar granted bail to the three accused observing – “The fault of the deceased was only that he belonged to another religion. I consider this factor in favour of the applicants/accused. Moreover, the applicants/accused do not have criminal record and it appears that in the name of the religion, they were provoked and have committed the murder.” Justice Bhatkar was hearing the bail applications filed by Vijay Gambhire, Ranjeet Yadav and Ajay Lage. These three have been booked for offences punishable under 302, 307, 143, 147, 148, 149, 120B and 153 A of the Indian Penal Code. Their bail was was rejected by a sessions court in Pune. Article referred: http://www.livelaw.in/bombay-hc-grants-bail-murder-accused-says-provoked-name-religion-read-order/

Merely because the wife is ‘capable of earning’, it is not a reason to reduce the maintenance awarded to her, the Supreme Court has held in a recent pronouncement in Shailja vs. Khobbanna. Article referred: http://www.livelaw.in/wifes-capability-earn-no-reason-reduce-maintenance-awarded-sc-read-order/

The Supreme Court in Ajay Singh vs. State of Chhattisgarh, while holding that the result of adjudication cannot be announced without the judgment available on record, also discussed the legality of the high court, on its administrative side, transferrring a case from one district court to another. Referring to an earlier judgment Athipalayan and Ors, the Hon'ble Court held that "It is desirable that the final order which the High Court intends to pass should not be announced until a reasoned judgment is ready for pronouncement. Suppose, for example, that a final order without a reasoned judgment is announced by the High Court that a house shall be demolished, or that the custody of a child shall be handed over to one parent as against the other, or that a person accused of a serious charge is acquitted, or that a statute is unconstitutional or, as in the instant case, that a detenu be released from detention. If the object of passing such orders is to ensure speedy complianc...

In RITVI VIRAT SHAH Versus STATE OF GUJARAT, the Hon'ble Gujarat High Court held that "under Section 138 of the Act, it is only the drawer of the cheque who can be prosecuted. In the case on hand, admittedly, the appellant is not a drawer of the cheque and she has not signed the same. A copy of the cheque was brought to our notice, though it contains name of the appellant and her husband, the fact remains that her husband alone put his signature. In addition to the same, a bare reading of the complaint as also the affidavit of examination-in-chief of the complainant and a bare look at the cheque would show that the appellant has not signed the cheque. 23. We also hold that under Section 138 of the N.I. Act, in case of issuance of cheque from joint accounts, a joint account holder cannot be prosecuted unless the cheque has been signed by each and every person who is a joint account holder. The said principle is an exception to Section 141 of the N.I. Act which would have n...

In NATIONAL INSURANCE CO. LTD vs M/S.PATTU AGENCIES, the appeal was preferred before  Hon'ble Kerala High Court against order of the trial court with the primary object of the insurer being that the change of address of the insured property had not been intimated to the insurer. The Hon'ble High Court rejecting the ground for disallowing the claim held "It is true that a policy can be avoided for misrepresentation or non-disclosure. However, the misrepresentation or non-disclosure should be a material one and it must have induced the Insurance Company to make the policy in favour of the insured. The non-disclosure or misrepresentation should have induced the insurer to enter into the contract. There must be a specific case that there was inducement to issue a policy relying on the facts disclosed by the insurer and that there was non-disclosure or misrepresentation. The test is whether the insurer would have made a different decision had the facts been correctly disc...

In United Finance Corporation v. M.S.M. Haneefa, instant appeal arises before the Hon'ble Supreme Court out of order passed by High Court of Kerala allowing revision and thereby dismissing application filed by Appellant under Order XXI Rule 95 of Code of Civil Procedure,1908 (CPC) on ground that, application is barred by limitation and declining direction for delivery of possession of immovable property purchased in Court auction sale to Appellant. Challenging impugned order, it was submitted that, Court auction sale does not become absolute on passing of a mere order of confirmation of sale as enjoined by Order XXI Rule 92(1) of C.P.C. but it becomes absolute only on termination of proceedings initiated to set aside the order confirming the sale. The Hon'ble court said that "In our view, the sale could not have become absolute till the proceedings in the revision in C.R.P.No.2829/2002 was over and the revision was disposed of. The judgment-debtor, as discussed earlier, ...

The High Court of Kerala in C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ. has held that a single judge, while referring a case to division bench, could only refer the entire case and he is not empowered to refer only some questions of law involved in that case and retain the rest. Article referred: http://www.livelaw.in/single-bench-cant-decide-question-law-refer-rest-division-bench-kerala-hc/

The Supreme Court, in Behram Tejani vs. Azeem Jagani, has reiterated that a person holding the premises gratuitously or in the capacity as a caretaker or a servant would not acquire any right or interest on the property and even long possession in that capacity would be of no legal consequences. Article referred: http://www.livelaw.in/persons-holding-premises-gratuitously-wont-acquire-legal-right-property-sc-read-judgment/

In Chalasani Naga Ratna Kumari vs. ITO, ITAT decided that the stamp duty value on the date of the agreement to sell has to be adopted and not the value on the date of the deed of sale. The proviso to s. 50C, though inserted by the Finance Act 2016 w.e.f. 01.04.2017, has to be given retrospective effect from 01.04.2003 as it is intended to remove an undue hardship and is curative in nature. Article referred: http://itatonline.org/archives/chalasani-naga-ratna-kumari-vs-ito-itat-vizag-s-50c-the-stamp-duty-value-on-the-date-of-the-agreement-to-sell-has-to-be-adopted-and-not-the-value-on-the-date-of-the-deed-of-sale-the-proviso-to-s-5/

In Gopal And Sons (HUF) Vs. CIT, the Hon'ble Supreme Court decided that once the payment is received by the HUF and shareholder is a member of the said HUF and he has substantial interest in the HUF, the payment made to the HUF shall constitute deemed dividend within the meaning of clause (e) of Section 2(22) of of the Income Tax Act, 1961. Article referred: http://www.lawkam.org/caselaw/shareholder-gopal-cit-kolkata-india/12266/

The Supreme Court in Harjas Rai Makhija vs..Pushparani Jain, has held that a mere concealment of material facts or non-disclosure, without intent to deceive or a bald allegation of fraud without proof and intent to deceive, would not render a decree obtained by a party as fraudulent. Article referred: http://www.livelaw.in/non-disclosure-material-facts-sans-intent-deceive-wont-render-decree-fraudulent-sc/

In Apollo Tyres Ltd vs. ACIT, the ITAT decided that the loss on sale of shares of a wholly-owned subsidiary is allowable as a business loss if the investment in the subsidiary was made for commercial purposes. Article referred: http://itatonline.org/archives/apollo-tyres-ltd-vs-acit-itat-cochin-s-371-the-loss-on-sale-of-shares-of-a-wholly-owned-subsidiary-is-allowable-as-a-business-loss-if-the-investment-in-the-subsidiary-was-made-for-commercial-purpo/

In ITO vs. Emami Paper Mills Ltd, ITAT Kolkata decided that there is a difference between a 'contract of work' and a ‘contract of service’. In a 'contract of work', the activity is predominantly physical while in a 'contract of service', the dominant feature of the activity is intellectual. Fees paid with respect to a ‘contract of work’ does not constitute "fees for technical services" and consequently the assessee is not liable to deduct TDS u/s 195

In Religare Commodities Ltd vs. ACIT, ITAT Delhi held that Stock Options (appreciation rights) are intended to motive employees and so the expenditure thereon is a deductible revenue expenditure. The discount (difference between market price and vesting price) is allowable upon vesting subject to reversal if the options lapse. Article referred: http://itatonline.org/archives/religare-commodities-ltd-vs-acit-itat-delhi-s-371-stock-options-appreciation-rights-are-intended-to-motive-employees-and-so-the-expenditure-thereon-is-a-deductible-revenue-expenditure-the-disco/

In ACIT vs. Vineet Sureshchandra Agarwal, the Appellant Tribunal decided that Purchase and sale of shares outside the floor of Stock Exchange is not an unlawful activity. Off-market transactions are not illegal. It is always possible for the parties to enter into transactions even without the help of brokers. When the transactions were off-market transactions, there is no relevance in seeking details of share transactions from Stock Exchanges. Such attempts would be futile. Stock Exchanges cannot give details of transactions entered into between the parties outside their floor. Therefore, the reliance placed by the assessing authority on the communications received from the Stock Exchanges that the particulars of share transactions entered into by the assessee were not available in their records, is out of place. There is no evidential value for such reliance placed by the assessing authority. Article referred: http://taxguru.in/income-tax/bogus-capital-gains-from-p...

In Kishin S. Loungani Vs. Union Of India, the main question to be decided by the Kerala HC was  whether the provisions of Sections 154 to 157 and 173(2) of the Code of Criminal Procedure would apply in respect of the proceedings under the Customs Act, in view of Section 4(2) of the Cr.P.C. and whether in respect of offences under Sections 133 to 135 of the Customs Act registration of FIR is compulsory before the person concerned is arrested and produced before the Magistrate.  It was held that Registration of FIR is not necessary before arresting a person under Section 104 of the Customs Act. Sections 154 to 157 and Section 173(2) of the Code of Criminal Procedure do not apply to a case under the Customs Act, 1962. Article referred: http://taxguru.in/custom-duty/registration-fir-not-necessary-before-arresting-person-us-104-customs-act.html#sthash.LwoWw6bm.dpuf

Recently, in Samta Khinda vs. ACIT, the Appellate Tribunal decided on 29/11/2016, some of the grounds raised were that the CIT (A) had grossly erred in law and on the facts of the case in confirming the addition of Rs. 96 lacs in the hands of the assessee as unaccounted income from undisclosed sources in terms of Sec 69/698/69C of the Income Tax Act, 1961(herein referred to as ‘the Act’) where there was no corroborating evidence of the figure of Rs 96 lacs mentioned on the loose paper and in applying Section 292C of the Act merely because some papers were found from the premises of the assessee while ignoring vital facts and contentions of the assessee and in confirming the addition of Rs 5.67 lacs in the hands of the assessee as unexplained jewellery under section 69B of the Act.

Applying the principles laid down by the Supreme Court in M/s Madhusudan Gordhandas & Co. vs Madhu Woollen Industries Pvt ltd, the division bench of Chief Justice Manjula Chellur and Justice MS Sonak has held that once the debt owed by a debtor company is established as undisputed then the court shall wind up the particular company. Article referred: http://www.livelaw.in/bombay-hc-refuses-interfere-winding-petition-holds-debt-undisputed-court-need-not-interfere/