Legal News & Views

In CRIMINAL APPEAL NOS.917944 OF 2019, Surinder Singh Deswal @ Col. S.S.Deswalb vs Virender Gandhi, an appeal was filed against a First Appellate Court order that had directed the appellants-convicts to deposit 25% of the amount of fine/compensation ordered by the Trial Court. (This First Appellate court order was later affirmed by the Punjab and Haryana High Court). Section 148 of the NI Act, introduced vide an amendment in 2018, empowers the Appellate Court to direct the accused/appellant to 'deposit' minimum of 20% of 'fine' or 'compensation' awarded by the Trial Court. The appellants argued that in the present case as the criminal proceedings were initiated and the complaints were filed against the accused for the offence under Section 138 of the N.I. Act, prior to the amendment Act came into force, Section 148 of the N.I.Act, as amended shall not be applicable. The Supreme Court disagreeing with the appellants held that considering the Statemen...

In Crl.MC.No. 3289 of 2015, B.SURENDRA DAS vs STATE OF KERALA, the court was considering a petition seeking to quash the criminal proceedings on the ground that no demand for payment of the amount of the cheque was made by the complainant as per the notice sent by him and therefore, the notice is defective and the proceedings initiated against the accused pursuant to such notice cannot be sustained. The court observed that there is no statutory requirement that the complainant must specifically allege in the complaint that there was a subsisting liability. All the complainant has to do is to raise a demand for payment which is a notice to the debtor giving him time to pay but there is no format in which the notice is to be sent.

In CIVIL APPEAL NO.4103 OF 2008, HEMAREDDI vs RAMACHANDRA YALLAPPA HOSMANI, an appeal was brought before the Supreme Court out of a suit which was instituted by two brothers jointly for declaration that the adoption of the first defendant was invalid and therefore he had no right in the joint properties of the plaintiffs. The trial court dismissed the Courts will not proceed with an appeal: (a) when the success of the appeal may lead to the Court's coming to a decision which be in conflict with the decision between the appellant and the deceased respondent and therefore which would lead to the Court's passing a decree which will be contradictory to the decree which had become final with respect to the same subject suit. The matter was taken in appeal to the High Court. During the pendency of appeal, one of the brothers died. But no steps were taken to bring on record the legal representatives of the deceased brother. The appeal was continued by the surviving brother. The High ...

In ITA No.7792/Del/2018, Sonia Malik vs Vs. JCIT, the assessee is an individual deriving income from salary and other sources. The Assessing Officer completed the assessment determining the total income at Rs.34,12,062/- wherein he disallowed an apart of the long-term capital gain claimed by the assessee u/s 54F of the Income Tax Act apart from making the addition of Rs.57,538/- on account of interest and Rs.8,160/- under the head ‘Salary.’ The officer further levied penalty under section 271D on the ground that the assessee had taken cash loan of Rs.1,25,000/- from Shri Darshan Singh Gujral, Rs.1,00,000/- from Smt. Joginder Kaur and Rs1 lakh from Shri Gurdeep Singh Gujral and, therefore, she has violated the provisions of section 269SS. The Delhi bench of the Income Tax Appellate Tribunal noticed the decision of the Punjab & Haryana High Court in the case of CIT vs. Sunil Kumar Goel wherein it was held that ‘a family transaction, between two independent assessees, based on an...

In ITA No.64/Bang/2019, Assessment Year : 2009-10, Smt. Tupel Raja Iyengar Shakuntala vs ITO, Bangalore, the assessee sold a residential property but had not filed a return of income for the relevant assessment year. The Assessing Officer, on receipt of information, re-opened the assessment by holding that the assessee escaped income exigible to tax, by way of the above transaction of sale of the property. The Tribunal noted that the assessee had filed the computation of capital gains before the CIT(A). As per this computation, it is seen that the assessee had computed the long-term capital gains (LTCC) at Rs.19,54,873/- on the sale proceeds of the said property at Rs.46,65,000/-, after claiming the indexed cost of acquisition. It is also seen that the assessee had purchased a residential property for a consideration of Rs.37,50,830/- on 22.05.2008, i.e., within 7 days from the sale of original property on 16.05.2008.The Tribunal found that the AO, after examination of details/docume...

In CIT Vs M/s. Sungard Solutions (I) Pvt Ltd before the Bombay High Court, the dispute was that on 8.9.2015, an order was passed under Section 127 of the Act transferring the respondent assessee's case from an Assessing Officer at Banglore to an Assessing Officer at Pune. Thereafter an appeal was filed by the Revenue before the Bombay High Court against the said order. The respondents however objected that the impugned order dated has been passed by the Bangalore Bench of the Tribunal. Thus, the appeal from the order of Bangalore Bench of the Tribunal would lie before the Karnataka High Court and  not before this Court. In support of his submission, he placed reliance upon Chapter XX of the Act and, in particular Section 260A and 269 of the Act. Incidentally, the contention of the applicant was supported by judgements of Delhi High Court in  CIT Vs. Sahara India Financial Corp. Ltd.1 and CIT Vs. AAR Bee Industries while the respondents cited decisions of the Punjab & Ha...

In CIVIL APPEAL NO.1676 OF 2019, ANJUM HUSSAIN vs INTELLICITY BUSINESS PARK PVT. LTD, complaint was filed by the appellant along with 43 others before the NCDRC due to non-delivery of office space by the respondent. The application was rejected by NCDRC with the observation that the complaint has been instituted for the benefit of entire class of buyers, who have booked shops/offices in a project namely “Intellicity” consisting of residential units, shops and offices at Greater Noida. The scope of this complaint is not restricted only to the complainants. It is alleged that the complainants are consumers as they had booked small shops/offices for the purpose of earing their livelihood by means of self-employment. Since the scope of the complaint is not restrict only to the complainants and encompasses all the allottees of the shops/commercial units, it would be maintainable as a class action only if it is alleged and shown that all the allottees of the shops/commercial u...

In Criminal Appeal No(s). 837 of 2019, Atul Shukla vs The State of Madhya Pradesh, appeal was filed against order of the High Court allowing recall of its earlier order as prayed by the accused under Section 482 of the Crpc. The Supreme Court allow the appeal and set aside the impugned judgment and order of the High Court stating that Section 362 of Crpc clearly says that Court not to alter judgment, save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.

In CIVIL APPEAL NO. 4805 OF 2019, Mangathai Ammal vs Rajeswari, the Apex Court bench were considering an appeal against Trial Court and High Court orders which held that the suit properties are benami transactions as the part sale consideration was paid by another person (Narayanasamy Mudaliar) at the time of the purchase of the property. It was also found that the stamp duty at the time of the execution of the Sale Deed was purchased by Mudaliar. It was the contention of the original plaintiffs that Narayanswamy had purchased the disputed property in the name of his wife by paying out of money received from selling ancestral properties and therefore, the wife did not have exclusive right to the same. Whereas, the original defendants which included the said wife of Narayanswamy contended that the properties were purchased by the defendant no.1 out of the stridhana she received from her parents’ house and by selling the gold jewellery. It was also the case on behalf of defendan...

In CRR No. 56 of 2010, Madan Tiwari vs Yashwant Kumar Sahu, respondent filed a complaint alleging that applicant, who was running an institution (Pleasant Health Welfare Foundation) at Dongargaon had appointed the complainant and 21 other persons on agreement basis. Complainant and other persons deposited some amount as per the agreement, with the institution. In the agreement it was mentioned that the amount so deposited would be refunded after completion of probation period of one year. It is the case of the complainant and other persons that after completion of probation period, they have not been regularized therefore, the complainant and others demanded for refund of the amount of Rs. 3,16,000/- from the applicant/institution.The applicant issued a cheque bearing for Rs. 3,16,000/- in favour of the complainant. The Respondent filed complaint and the trial court ordered conviction of the appellant who appealed against the said order and the said appeal was dismissed. Finally the a...

In CIVIL APPEAL NO. 784 OF 2010, Thulasidhara vs Narayanappa, the Supreme Court considering an appeal against a Karnataka High Court judgment which held that Exhibit D4 styled as Palupatti requires registration and the same could not be looked into, reversing the finding of both the courts below that it does not require any registration. The Trial court and the first appellate court had dismissed the suit on the basis of this document. Assailing the High Court judgment, the defendants contended before the Apex Court that, even if the family settlement was not registered, it would operate as a complete estoppel against the original plaintiff who was party to such family settlement. They relied on the judgment in Kale and Others v. Deputy Director of Consolidation and Others. The Supreme Court observed that Exhibit D4 can be said to be a Palupatti, which means a list of properties partitioned. At the most, it can be said to be a family arrangement and the same was not required t...

In CIVIL APPEAL NO. 4563 OF 2019, THE STATE OF JAMMU AND KASHMIR AND ORS. vs FARID AHMAD TAK, the Supreme Court referring to judgment in Supreme Court Employees' Welfare Association vs. Union of India in which it was observed that, when no reason is given, but a Special Leave Petition is dismissed simpliciter, it cannot be said that there has been a declaration of law by the Supreme Court under Article 141 of the Constitution. In Yogendra Narayan Chowdhury vs Union Of India, it was held that even the dismissal of Special Leave Petition in limine without assigning reasons does not operate as res judicata.

In Service Tax APPEAL No. 31055 of 2018, Oil India Limited vs Commissioner of Central Tax, the appellant is engaged in the business of exploration of mineral oil and natural gas. During the relevant period, they availed services of M/s B.J. Services in relation to drilling of exploratory in respect of which, the latter discharged appropriate service tax to the department. However, on the same services, the appellant also paid service tax under reverse charge mechanism to the extent of Rs.20,43,584/- under various challans. On realizing that the service tax was paid wrongfully, the appellants claimed refund of the same from the department.  The claim was rejected by the department as being time barred.  The Tribunal noted that the refund application was filed beyond a period of one year. It was further noticed that the refund jurisdiction of the Officers of Central Excise and Service Tax emanates from Section 12E and Section 11B of Central Excise Act, 1944 and Section ...

In CIVIL APPEAL NO. 4779 OF 2019, Ssangyong Engineering & Construction Co. Ltd. vs National Highways Authority of India (NHAI), the matter arose out of a 2005 work contract between the National Highway Authority of India(NHAI) and Ssangyong Engineering and Construction Company, a Korean company. The contract had a price adjustment formula, which applied the Wholesale Price Index published by Union Government based on the year 1993-94. From 2010 onwards, the Union Ministry started publishing WPI based on 2004-05. The contractor raised the bills accordingly. In 2013, the NHAI issued a circular adopting a new formula applying a "linking factor" based on 2009-10 to the old formula. The contractor opposed the application of 2013 circular as a unilateral modification of the formula . The dispute was referred to arbitration. The arbitral tribunal by a 2:1 majority upheld the application of 2013 circular. While doing so, the majority award applied certain government guidelin...

In CIVIL APPEAL NO. 4776 OF 2019, STATE BANK OF INDIA vs M/S. JAH DEVELOPERS PVT. LTD. & ORS., the question that arose was whether, when a person is declared to be a wilful defaulter under the Circulars of the RBI, such person is entitled to be represented by a lawyer of its choice before such declaration is made. As per the Amicus Curiae. Section 30 of Advocates Act makes it clear that an advocate has the right to practice before any tribunal or person legally authorised to take evidence. Secondly, he spoke about the consequences, both civil and criminal, of being classified as a wilful defaulter, and stated that as serious consequences ensue, the fundamental right of the borrower under Article 19(1)(g) of the Constitution of India would be impacted, as a result of which, it would be necessary to read into the aforesaid guidelines a right to be represented by a lawyer. The only possible objection that banks can have is that lawyers might unnecessarily delay the process of dec...