Category Archives: Blog

The limitation would begin to run when the affected person has the knowledge of the decision. The date when the order was passed cannot be solely determined by referring to the date when the same was signed by the ITAT. It was further found that under Section 254 (3) of the Act, the law stipulates that the ITAT shall send a copy of the order passed by it to the assesses and the Principal Commissioner. Rule 35 of the ITAT Rules also requires that the orders are required to be communicated to the parties was stated in the case of Pacific Projects Limited V. Asstt. CIT [W.P. (C) 2080/2020 & CM APPLs.7346-7347/2020]

Hon’ble Mr. Justice Manmohan Hon’ble Mr. Justice Sanjeev Narula stated that Section 254(2) of the Act has undergone certain amendments. However, there is no dispute that the provision still retains the distinctive two parts as observed by the Supreme Court. It emerges that the Section and the Rule mandates the communication of the order to the parties. Thus, the date of communication or knowledge, actual or constructive, of the orders sought to be rectified or amended under Section 254(2) of the Act becomes critical and determinative for the commencement of the period of limitation.

The writ petition has been filed challenging the order dated 29th July, 2019 passed by the ITAT dismissing the miscellaneous application filed by the petitioner/assessee under Section 254(2) for recall of the ex-parte order dated 01st. The ITAT in its order dated 29 September, 2017 whereby the matter was remanded to the Assessing Officer to decide the matter afresh after examining all documents, including additional evidences as well as books of accounts, bills and vouchers, etc.

The appellant/assessee that it had changed its address and shifted to 301-307, 3rd Floor, Plot No. 9, DDA Service Centre, Rohini, Delhi-110085 from Safeway House, D-4, Commercial Complex, Prashant Vihar, New Delhi-110085 w.e.f. 15th November, 2008 and this fact had been mentioned in the appeal filed by the assessee in Form No. 35 against the order dated 02nd 4. On the last date of hearing, learned counsel for the respondent had taken time to obtain instructions. December, 2018 passed by the DCIT, Circle 14(1) New Delhi.

This Court is also of the view that the ITAT has erroneously concluded that the miscellaneous application filed by the petitioner was barred by limitation under Section 254(2) of the Act inasmuch as the petitioner had filed the miscellaneous application within six months of actual receipt of the order. If the petitioner/assessee had no notice and no knowledge of the order passed by the ITAT, it cannot be said that the limitation would start from the date the order was pronounced by the Tribunal.

The court held that “the course adopted by the ITAT at the first instance, by dismissing the appeal for non-prosecution, and then compounding the same by refusing to entertain the application for recall of the order, cannot be sustained.”

Moreover, the order dated 29th July, 2019 was quashed.

Click here to read judgement

A single cartridge without firearm is a minor ammunition which is protected under clause (d) of Section 45 of the Arms Act. The possession of the ammunition if unconscious and there was no arm with the accused and there was no threat to anyone, the FIR is quashed, was referred by the Delhi High Court, in case of Manab Kumar Singh v. State & Anr. [CRL.M.C. 485/2020].

Hon’ble Mr. Justice Suresh Kumar Kait stated that the possession of the ammunition in the present case was unconscious and there was no threat to anyone at the airport.

The petitioner is having valid Armed License No.01-01/2016, PS-Belhar, UID No.051421000057422017 issued in his name and same has been verified from District Arms Magistrate, Banka, Bihar. The said Arms License is valid till 2021. The petitioner purchased one N.P. Bore (0.32 Bore) Revolver No.FG.78796 from Field Gun, Kanpur (U.P.). The photocopy of the Arms License is annexed with the petition as Annexure-P4 (colly) and petitioner had purchased 40 bullets of .32 bore on 19.04.2017 from Capital Gun House, Patna, Bihar and the said purchase was entered into his arms licence.

Moreover, Petitioner was travelling from Delhi to Patna by Jet Airways Flight No.9W 121, STD 16:15 hours vide Seat No.38B. During physical checking of his handbag,01 live and 04 empty fire cartridges of 325 mm Caliber, engraved on the bottom of all the cartridges “32 S & W.L.” were recovered.

The concerned CISF personnel informed the local police in this regard and petitioner was brought to IGI Airport Police Station, where an FIR No.319/2018 dated 19.06.2018 under Section 25 Arms Act was registered against the petitioner.

It was contended that the alleged bullets remained in his bag inadvertently and he did not have the knowledge that the cartridges have been left in the bag and he came to know about the same at the Airport only when the same were detected by the security personnel during screening of his hand bag. The petitioner duly explained the situation and apprised the investigating officer that it is a case of inadvertent mistake and sheer over-sightedness. The petitioner did not have any intention or requisite mens rea to carry the said cartridges for harming anybody else, the petitioner was let off after sometime.

However, the petitioner seeks quashing of FIR No. 319/2018 dated 19.06.2018 registered at Police Station – IGI Airport, New Delhi and all proceedings emanating therefrom. The present petition is filed under Section 482 Cr.P.C.

The court stated that in the case in hand, it is not the case of the prosecution that there was any fire arm recovered from the petitioner or there was any threat to anyone at the Airport. Therefore, in the present case, the possession of the ammunition was 5 unconscious and there was no threat to anyone.

The court held that the FIR No. 319/2018 dated 19.06.2018 registered at Police Station – IGI Airport, New Delhi and all proceedings emanating therefrom are hereby quashed. The petition was allowed.

Click here to read judgement

Plea by a couple to abort the 34-week-old-foetus because of serious medical abnormalities was rejected by the High Court. As there are only few days left for development of the complete fetus and on the basis of the recommendation of the Medical Board that there was a high possibility that the child would be born alive the Court rejected the Petitioners Plea. The ratio was laid down by the Kerala High Court presided over by J. P.V. Asha in the case of Akhila Kurian Alias Akhila Ann Baby Vs. Union of India, [WP (C) No. 27842 of 2020].

The brief facts of this case are that the Petitioners i.e. the husband and the wife approached the High Court for seeking permission for medical termination of pregnancy at a gestational age of 34-week-old-foetus because of serious abnormalities in the fetus. The Petitioner contended that the mother has every right to decide on continuance of her pregnancy under Article 21 of the Constitution and hence she should be permitted to undergo medical termination of her pregnancy. The Petitioner is aware and willing to take the risk involved. The Medical Board contended that the fetus has serious developmental brain anomalies but there is a possibility of survival of the baby at birth. Further, the Government pleader pointed that the Child Welfare Committee would take care of the child and not to permit the termination of pregnancy as this would violate the right to life of child in the womb.

The Court observed that the gestational age had exceeded the period of 32 weeks and it further carefully analyzed the submissions made by both the parties. The Court further elaborated the on the provisions of Medical Termination of Pregnancy Act, 1971, which permits abortion upto 20 weeks and only under certain exceptional circumstances the abortion of the child would be permitted. The exception circumstances are as follows –

1. Continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to physical or mental health.
2. There is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.

In the above given case the court observed that, “Though the learned counsel for the petitioners pointed out that the petitioners are willing to take a risk, in none of the judgments relied on by Sri. Isaac Thomas, the gestational age had exceeded 32 weeks. Now it is a question of only some more days left for the full development of the foetus. Therefore, I am of the view that the stage at which permission can be granted has crossed the limits. Moreover, I have already dismissed W.P.(C).No.18610/2020 where gestational age was 31 weeks.

Click here to read the Judgment

Writ petition, challenging the Certificate dated 30th June, 2020 issued by respondent No.1 under Section 197(1) of the Income Tax Act refusing to grant a certificate of deduction of tax at source at NIL rate, on payments to the petitioner company by its customers, was filed in case of Camions logistics solutions private limited v. Joint commissioner of income tax, Osd, Tds circle-73-1, new Delhi & Anr. [ W.P. (c) 8524/2020 & cm appl.27471 /2020].

The assessing officer cannot ignore the mandate of Rule 28AA and proceed on any other basis as the Government is bound to follow the rules and standard, they themselves had set on pain of their action being invalidated stated by the Delhi High court. Also, the tax liability depends on the estimated profits, which in turn, depends on the turnover. In financial year 2020-21, the petitioner has itself projected a rise of more than 60% in the turnover.

Hon’ble Mr. Justice Manmohan and Hon’ble Mr. Justice Sanjeev Narula stated that the impugned reasons furnished by the Revenue in support of the impugned Lower Tax Deduction Certificate and note that as opposed to estimation of tax liability, the assessing officer has instead rejected the estimates provided by the assesses, on a broad and generalized reasoning. Thus, in absence of determination, as provided under the Rule, the reasons for rejections cannot be termed as valid in eyes of law. Consequently, decision making process in the present case is contrary to law.

In the writ petition it has been averred that the respondent did not compute the tax liability of the petitioner which is a mandatory requirement of Rule 28AA and has arbitrarily concluded on mere guess work that there would be increase in tax liability as the petitioner’s turnover is projected to increase.

The present writ petition was not maintainable as the petitioner has not exhausted the alternative efficacious remedy available under Section 264 of the Act. Moreover, the scope of judicial review of an order passed under Section 197 of the Act is limited as it is directed not against the rates prescribed in the certificate, but against the decision-making process. She submitted that it is settled law that till there is a patent illegality and/or error apparent on the face of the decision or non-application of mind by the Officer.

The court held that there is non-application of mind which vitiates the impugned order and reasons. Accordingly, the impugned order and reasons and remand the matter to the Assessing Officer for fresh determination in accordance with law as expeditiously as possible preferably within three weeks was set aside.

Hon’ble Mr. Justice Manmohan and Hon’ble Mr. Justice Sanjeev Narula held that “the benefit of revised TDS rates prescribed for financial year 2019-2020 (determined vide order dated 26th July, 2019) read with rebate of 25% given by Ministry of Finance on account of Covid-19 crisis from the rates applicable in the preceding year 2019-20 vide Press Release dated 13th May, 2020 be given to the petitioner”. The writ petition was allowed.

Click here to read judgement

“The circumstances concerned “must” or “should” and not may be established. In this case, there is no clinching evidence that the deceased and the accused were sleeping on the first floor as P.W.3 does not know about that aspect of this case.”, this remarkable stand was forwarded by Hon’ble Odisha High Court, in a two judge bench chaired by Hon’ble Justice Mr. S.K. Mishra & B.P. Routray, where the judgment was advanced in the Criminal Appeal case of Rajesh Thappa V. State of Odisha, [JCRLA NO.37 0F 2004].

The appellant, in this appeal, assails the judgment of conviction and order of sentence dated 13.2.2004 passed by the learned Additional Sessions Judge, Jharsuguda in S.T. Case No.228/23 of 2000 convicting the appellant under Section 302 of the Indian Penal Code 1860 (hereinafter referred to as “I.P.C.” for brevity) and sentenced him to undergo imprisonment for life for having committed murder of one Rajib Singh in the night of 26.3.2000.

Rajib Singh was running a Hotel situated at Bijunagar of Jharsuguda. The accused-appellant was an employee of the said Hotel. In the night of 26.3.2000 Rajib Singh went to sleep in the upstair of his Hotel after his day to day work. In the morning of 27.3.2000 Rajib Singh was found injured in the upstair with severe bleeding injuries on his head and face. One ‘Katari’ used for cutting meat stained with blood was found near Rajib Singh. The gold chain which he used to wear was not in his neck. The employees of the Hotel removed Rajib Singh to Headquarters Hospital, Jharsuguda for treatment. During treatment in the said Hospital, Rajib Singh expired on 18.4.2000. The Medical Officer of Kalinga Hospital reported the death of Rajib Singh at Chandrasekharpur Police Station, Bhubaneswar. On such report the case was registered. After receipt of the report about the death of Rajib Singh the case was turned in a case of murder and Police of B.T.H. Out Post investigated into the case.

After examining all the submissions, arguments and evidences forwarded by the councils, the Hon’ble HC observed that, “The prosecution has also not subjected the accused for medical examination though it is admitted by the I.O. that the accused was assaulted near Bombay Chhak, which is about 100 yards from the hotel of the deceased. In such a situation it was the duty of the prosecution to determine the blood group of the accused in order to obviate any possibility of his own blood staining his own wearing apparels. This having not been done, though individually will not demolish the prosecution case goes a long way in not being a basis of conviction in view of the lacuna found in the prosecution evidence as we have discussed in the preceding paragraphs. The prosecution has not established each and every circumstance except the one relating to nature of death of the deceased, with a certain degree of certainty. In fact many of the circumstances relied upon by the learned Addl. Sessions Judge, especially the circumstance nos.3,4 and 5 are not fully established.”

The bench further added that, “In that view of the matter on a conspectus of the entire materials available on record, we are of the opinion that the prosecution has not established the very case it proposes by proving each circumstance beyond all reasonable doubt, for establishing a complete 14 chain of circumstances unerringly pointing to the guilt of the accused.”

Click here to read Judgment