Category Archives: Blog

“This Court expresses grave concern over the fact that public land is sought to be encroached upon under the shelter of a place of worship. As is seen in a large number of cases, rights are claimed by parties under the garb of temples or other places of worship located on government land. This trend has been repeatedly frowned upon by the Supreme Court and other courts.” Hence, the States and Union Territories have been instructed to review the situation and act expeditiously in such matters. This ration was laid down by the Delhi high Court presided over by J. P.M. Singh in the case of Bal Bhagwan Vs. Delhi Development Authority, [CM (M) 416/2019].

The Present petition is filed seeking permeant injunction against the Respondents i.e. Delhi Development Authority (“DDA”), from forcefully dispossessing the Plaintiff from three temples situated on the private lands. The facts of the case are that the Plaintiff states that he has been assigned as the manger by a registered will through one Late Swami Onkara Nand of the entire temple complex. He further alleges that DDA claims this suit premise to be government land and is trying to forcefully remove and dispossess the Plaintiff from the temples as he is illegally living there. The Plaintiff earlier filed a suit for Temporary injunction in the Trial court and later appealed to the High Court. Both the courts dismissed the case of the Plaintiff, but he further appealed to the Supreme Court and while admitting the petition the Court directed the DDA from taking any coercive steps against the Plaintiff. Hence, the present petition for Permanent Injunction has been filed by the Plaintiff.

The Court in this case observed that, “However, before this Court the Plaintiff’s case has changed and is– one of settled possession and not of adverse possession. The issue, therefore, is very short – Whether the Plaintiff claiming settled possession without any ownership can be dispossessed or is entitled to injunction against dispossession.?”

The Court stated that plaintiff is not entitled to any relief and further observed that, “Insofar as the Shamlat Deh land is concerned, the Plaintiff cannot claim any rights in the same as the same vests for the common interest of the villagers. This Court agrees with the stand of the DDA that the land has been urbanised and once urbanization takes place, the village owners have no rights.”

(…) though the land in question was vested in the DDA several years ago, the DDA is yet to obtain possession of the land. An important developmental project has been derailed because of the present litigation as the DDA continues to make valiant attempts to obtain possession in accordance with law. The mandir constitutes a miniscule portion of the entire land which has various commercial shops and residences.

Clearly, the Plaintiff, or anyone occupying or claiming rights through the Plaintiff, does not have any right to continue to remain in possession of the suit property. Ld. counsel for the DDA has submitted that an alternative accommodation has been given to the dwellers in the colony. It is for the DDA to ensure that the same is provided to everyone in occupation, in accordance with its policy.”

Lastly expressing grave concern, the court stated that, “Such attempts by unscrupulous parties ought to be discouraged, inasmuch as the occupants, under the garb of a place of worship, turn the land into a completely unplanned encroachment by hundreds of people. The authorities have an obligation to ensure that in public land, places of worship are not created in this manner. Moreover, in the present case, an infrastructure project is being completely crippled due to the pendency of this litigation. This would be contrary to even public interest.”

Click here to view the Judgment

 

Till the Income Tax Department ensures that the Assessing Officers follow the mandate of law, in particular, binding provisions like Section 144C and eschew filing of unnecessary appeals rather than in nearly all matters where the Assessing Officer has taken a view against the Assessee, the assessments will not achieve finality for a number of years like in the present case where the case of assessment year 2007-08 stands remanded and restored to the file of the Assessing Officer. This judgment was delivered by division bench comprising Hon’ble Justice Manmohan and Justice Sanjeev Narula at Delhi High Court in the matter of The PR. Commissioner of Income Tax v. Headstrong Services India Pvt. Ltd. [ITA 77 of 2019].

The present appeal has been filed challenging the order dated 9th November, 2017 passed by the Income Tax Appellate Tribunal where the Revenue’s appeal had been dismissed. The admitted facts of this case are:

The respondent-assessee, a wholly owned subsidiary of Headstrong Services LLC, USA, had filed its return of income declaring income of Rs.30,64,480/- for the relevant assessment year. Thereafter, revised return of income was filed on 30thJanuary, 2009 that was processed under Section 143(1) of the Income Tax Act, 1961 (for short „the Act‟) and subsequently, case of the respondent-assessee was selected for scrutiny assessment and notice under Section 143(2) of the Act was issued. Draft assessment order under Section 144C (1) of the Act was passed on 31st December, 2010 and the respondent-assessee filed objections before the Dispute Resolution Panel (DRP). Thereafter, assessment under Section 143(3)/144C of the Act was completed in pursuance to directions issued by the DRP, wherein addition was made on account of excess claim of deduction under Section 10A of the Act and transfer pricing adjustment made by the TPO.

The Hon’ble High Court observed that “the ITAT while remanding the matter of transfer pricing adjustment to the Assessing Officer vide order dated 17th July, 2012 had not only „restored‟ the matter “to the file of the Assessing Officer ―for following proper procedure” but also to “decide the matter de novo. This Court is of the view that once the ITAT directed the Assessing Officer to decide the matter de novo, it meant that a new hearing of the matter had to be conducted, as if the original hearing had not taken place.”

The Court while deciding upon this matter held that “in the present case, in complete contravention of Section 144C, the Assessing Officer wrongfully assumed the jurisdiction and passed the final assessment order without passing a draft assessment order and without giving the respondent/assessee an opportunity to raise objections before the Dispute Resolution Panel. Keeping in view the aforesaid, this Court is of the opinion that no question of law, let alone a substantial question of law, arises in the present appeal. We dismiss the present appeal and confirm the impugned order of the ITAT with costs of Rs.11,000/- to be paid to Delhi High Court Legal Services Committee.”

The court placed its reliance on the case of Vijay Television Pvt Ltd. v. TRP and Ors. (2014) 369 ITR 130 where the court held that “failure to pass a draft assessment order under Section 144C (1) of the Act would render the final assessment order without jurisdiction, null and void and unenforceable. The said view was reiterated by this Court in Turner International India Pvt Ltd. vs. Deputy Commissioner of Income Tax, Cirlce-25(2), New Delhi, WP(C) 4260- 4261/2015 as well Nokia India Pvt Ltd. vs. Additional Commissioner of Income Tax, WP(C)3629/2017.”

 

Click here to read judgment

“Once the charge-sheet has been filed unless antecedents to the contrary can be demonstrated, the presence of the accused may not be required to take the prosecution to its logical conclusion.”, this remarkable stand was forwarded by Hon’ble Odisha High Court, in a single judge bench chaired by Hon’ble Justice Mr. S.K. Panigrahi, where a common judgment was advanced in the Bail Application case of Pramod Kumar Sahoo V. State of Odisha, [BLAPL No.4125 OF 2020].

The present petition arises out of a written arrest memo bearing No. 104/CT & GST issued by the Enforcement Unit Bhubaneswar dated 13.03.2020 U/s. 132(I)(b)(c)(i) of OGST Act 2017 where under the Petitioner has been arrested on 12.03.2020 and has since been in custody.

The allegation against the petitioner is that during the period between July 2017 & December 2019, the said firm has availed/utilized bogus input tax credit (ITC) of Rs. 2.48 crores on the strength of fake purchase invoices issued in the name of 21 fictitious entities. It has also been alleged that the Petitioner in collusion with others has been found to have created and operated 6 fictitious firms to avail/utilize bogus Input Tax Credit (ITC) of Rs.34.23 crores in their names on the strength of fake purchase invoices without physical receipt of goods and has passed on the same to recipients both within and outside the state. The petitioner has been in custody since the month of 12.3.2020 and in the meantime charge sheet has been filed on 07.05.2020 u/s 132(1)(b)(c)(i) of OGST Act 2017. The fact that an earlier bail application has been rejected by the learned Addl. Sessions Judge–cum–Special Judge CBI, Court No.1, BBSR vide its order dated 25.03.2020 has been brought on record.

After examining all the submissions, arguments and evidences forwarded by the councils, the Hon’ble HC observed that, “it is directed that the petitioner be released on bail on furnishing a bail bond of Rs.5,00,000/- (Rupees five lakhs) with one surety for the like amount to the satisfaction of the learned trial court with the following conditions: (i) The petitioner shall co-operate with the trial and shall not seek unnecessary adjournments on frivolous grounds to protract the trial; (ii) The petitioner shall not directly or indirectly allure or make any inducement, threat or promise to the prosecution witnesses so as to dissuade him from disclosing truth before the Court; (iii) The involvement of the petitioner in any other similar nature of offence under the GST Act would entail cancellation of bail; (iv) In case of his involvement in any other criminal activities or breach of any other aforesaid conditions, the bail granted in this case may also be cancelled. (v) The petitioner shall submit his passports, if any, before the learned trial court and shall not leave India without prior permission of this Court.”

The bench further added that, “It is also clarified that the discussions hereinabove, are only limited to the purpose of the instant application and that the assessment of the tax liability of the petitioner and his firm shall be carried out strictly in accordance with the applicable provisions of law, uninfluenced by the observations as aforesaid. It is further stipulated that in such matters the adjudicating authority shall do well to expeditiously complete the assessment process.”

Click here to read Judgment

Non joining of public witnesses by the IO is not mandatory in all circumstances and can, at the highest, be said to be a fault on his part, but simply because the IO has failed to join the public witness or there is some fault in the investigation, the same is insufficient to discredit the entire case of the prosecution. This judgment was delivered by division bench comprising Hon’ble Justice Vipin Singh and Justice Rajnish Bhatnagar at Delhi High Court in the matter of Sonu @ Hemraj v. State (NCT of Delhi) [CRL. A.  351 of 2020].

The deceased boy was stabbed near the government school in Sangam Vihar. The investigating Officer (hereinafter “IO”) was informed about the incident and the fact that the deceased had been shifted already to the hospital. Thereafter, investigation was carried out and during investigation, the name of deceased was revealed as Roshan. IO recorded the statements of witnesses namely Shashi and eyewitness Akhil. After the completion of the investigation, the charge sheet was filed against accused persons who after complying with the provisions of Section 207 Cr.P.C., committed the case to the Court of Sessions for trial. The learned Additional Sessions Judge convicted the appellants for the commission of offence u/s 302/394/397/34 IPC. Aggrieved by the conviction of the trial court, the appellants have preferred this appeal.

The Hon’ble High Court observed that “As far as the question of non-joining of public witnesses at the time of arrest of appellants is concerned, PW 18 Gaurav Katheria and PW 20 Akhil accompanied by the police party and in our opinion, there was no need for the IO to join more public witnesses because it is the quality of the evidence and not the quantity which is essential. The case rests on the sole testimony of the eye witness who is PW 20 Akhil. We are conscious of the fact that when there is a sole eye witness, his evidence is to be accepted with an amount of caution, and in the light of other material available on record.”

The court while deciding upon the matter held that “In our opinion, there was satisfactory evidence on record to support conviction. To sum up, we are of the opinion that PW-18 and PW-20 are material eye witnesses of the case. PW-20 is the witness to the stabbing incident in which Roshan lost his life. The prosecution has also been able to prove the recoveries beyond the shadow of doubt.  In view of the discussion hereinabove, we unhesitatingly are of the opinion that both the appellants are guilty of the offence committed. Both the appeals are accordingly dismissed. Impugned judgment dated 01.10.2019 and order on sentence dated 23.12.2019 passed by the Ld. Trial Court are, upheld. All pending applications (if any) are disposed of. Trial court record be sent back forthwith along with a certified copy of this judgment.”

 

Click here to read judgment

“The issue of non-joinder of parties is not a pertinent issue”, this remarkable stand was forwarded by Hon’ble Orissa High Court, in a two judge bench chaired by Hon’ble Justice Mr. S.K. Panigrahi & Hon’ble Justice Mr. Sanju Panda, where a common judgment was advanced in the Writ appeal cases of Babita Satpathy & Ors. V. State of Odisha & Ors., [W.A. NO.701 of 2019]; Dibakar Panda V. State of Odisha & anr., [W.A No.700 of 2019]; Ramakanta Nath & Ors. V. State of Odisha & ors., [W.A No.702 of 2019]; Hrusikesh Panda V. State of Odisha, [W.A No.703 of 2019].

In the present Writ Appeals, the appellants seek to challenge the Order dated 29.11.2019 passed by the learned Single Judge in W.P.(C) Nos.16711 of 2016, 22369 of 2015, 18904 of 2015 and 18768 of 2015 which were dismissed for non-joinder of proper parties without going into the merits of the case. Since common question of facts and law are involved in all these Writ Appeals, the same are heard together and disposed of by this common judgment.

The appellants seek direction from the respondents/opposite parties to recast the Selection List of Sikshya Sahayaks drawn pursuant to the advertisement as per merit and engage them as Sikshya Sahayaks in all the districts and grant the consequential service benefits to them. The factual conspectus of the case revolves around issue of selection of some less meritorious candidates whereas the appellants claim to be more meritorious in comparison to other candidates to be accommodated.

The grievance of the appellants herein is that they are the eligible candidates for the post of Sikshya Sahayaks and pursuant to a direction of this Court in Writ Petition (Civil) No.18720 of 2014 and some other connected matters, the Commissioner-cum-Secretary was pleased to enhance the upper age limit by three to four years for the purpose of engagement of Sikshya Sahayak. Though the present appellants were applicants in response to the advertisement published on 12.09.2014, but their candidature were rejected on the ground of their overage.

After examining all the submissions, arguments and evidences forwarded by the councils, the Hon’ble HC observed that, “Since there are large number of candidates for the said appointment as against large number of vacancies and the appellants do not have any grievance against the candidates who have already been appointed before the decision was taken by the State Government to enhance upper age limit from 35 to 42 years, learned counsel for the appellants submitted that it is very difficult to array all the candidates as parties and serving them by post will take long time to get the service completed which practically becomes very difficult. Hence, the issue of non-joinder of parties is not a pertinent issue. Further the appellants are not against the appointment of any candidates rather they seek appointment against the existing vacant posts.”

The bench further added that, “…we set aside the orders dated 29.11.2019 passed by the learned Single Judge in W.P.(C) Nos.16711 of 2016, 22369 of 2015, 18904 of 2015 and 18768 of 2015. However, it is made clear that since there are unfulfilled vacancies of posts of Sikhya Sahayaks available against which the appellants could be accommodated, we, therefore, direct the respondents to accommodate these appellants against the said vacant posts as they are eligible for the said posts.”

Click here to view the Judgment