#BOMBAY HIGH COURT Archives - Page 2 of 11

15 Nov

The High Court of Bombay withdrew the review proceedings hostile to an unreal entity regardless of active PAN

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Case No.: Writ Petition No.3034 Of 2022

Case Title: Diversey India Hygiene Private Limited Versus ACIT

CORAM : DR. NEELA GOKHALE, J., K. R. SHRIRAM, J

Judgement Dated: 8th November 2023

Introduction

The high court at Bombay had canceled the review proceedings against unreal entities regardless of the active pan.

Facts of the case

The assessed standed against the review of notice on the ground that all notice had been issued to an unreal entity Diversey India Private Limited got amalgamated with Petitioner with effect from 1st April 2015

that letter dated 12th May 2016 was addressed to the Assessing Officer (“AO”) of DIPL and Principal Commissioner intimating about the amalgamation and an assessment order dated 1st March 2019 for AY 2016-17 under Section 143(3) read with Section 147 of the Act in the case of Petitioner has been passed where the amalgamation has been referred to and discussed.

It is stated by the respondent that the amalgamation of notice with Petitioner has been admitted and that the amalgamation was also intimated to the Department on 12th May 2016. But the defense taken is for AY 2012-13 and AY 2013-14 when the notices under Section 148 of the Act were served, The Petitioner did not protest and participated in the re-assessment proceedings. It is also stated that the PAN of the noticee was not deactivated.

The petitioner pointed out that a notice has been provided and an evaluation order if any passed in the name of the amalgamating company that has lost its existence post-amalgamation is without jurisdiction and bad in law and thus liable to be set aside.

Analysis of the court

Justice K.R Shriram and Justice Neela Gokhale Contended that PAN was not deactivated, which would not help the revenue because there could be cases relating to various years when the company was in existence, and it is possible those PAN numbers are picked up for scrutiny or for the issuance of a refund. That, in our view, will not be a sanction for the Department to issue notices to a non-existing entity, particularly when they were aware that the entity was not in existence.

The above-mentioned writ petition has been disposed of by canceling the review proceeding notice.

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Written by

Kaulav Roy Chowdhury

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10 Nov

Resuming is forbidden as it falls within the purview of the change of opinion – Bombay High court

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Case No.: Writ Petition No.4574 Of 2022

Case Title: Hasmukh Estates Pvt. Ltd. Versus ACIT

RESERVED ON: 31st October 2023

PRONOUNCED ON: 8th November 2023

Appearance

Counsel For Petitioner: K. Shivaram

Counsel For Respondent: Suresh Kumar

CORAM: K. R. SHRIRAM & DR. NEELA GOKHALE,

Introduction

The High Court of Bombay has contended that resuming is against the laws as it distinctly falls within the purview of the change of opinion which is against the laws.

The bench of Justice K. R. Shriram and Justice Neela Gokhale had noticed that the ground on which the AO issued notice asserting that there was information that puts forward that escapement of income was an internal audit objection. Information is explained in Section 148 of the Act to mean “any objection raised by the Comptroller and Auditor General of India…” and no one else. It means the reopening of the assessment is against the law.

Facts of the Case

Petitioner, a private company engaged in the business of undertaking real estate projects, sold a plot of land situated at Raigad District to one Regency Nirman Limited by a registered agreement to sell dated 7th October 2011 for a consideration of Rs.18 Crores. The property was valued at Rs.16.50 Crores for the purpose of stamp duty.

It was agreed between the Petitioner and the purchaser that in case the Petitioner was unable to discharge any obligation under the agreement, damages shall be settled.

on non-fulfilment of some obligations on the part of Petitioner, the consideration was reduced by Rs.6 Crores making the consideration payable for the land at Rs.12 Crores. Petitioner e-filed its return of income on 31st March 2017 declaring income of Rs.8,43,58,620/- and booked profits under Section 115JB of the Act at Rs.9,72,27,472/-. An assessment order came to be passed on 26th December 2017 accepting Petitioner’s figure of Rs.12 Crores

The submission of Petitioner to the AO in the original assessment proceedings in respect of the sale of land was that Section 50C of the Act was not applicable as the sale consideration of Rs.18 Crores was higher than the stamp valuation of Rs.16.50 Crores.

the AO conveying that according to the order of the Apex Court in the matter of Union of India v. Ashish Agarwal, a copy of the approval under Section 151 of the Act and the reasons recorded before the issuance of notice under Section 148 of the Act were being forwarded to it. Petitioner was called upon to respond in support of its claim to enable Respondent to pass an order under Section 148A(d) of the Act.

Another important contention raised by Dr. Shivaram is the meaning of ‘information’ which comprises information with the AO which suggests that income chargeable to tax has escaped assessment. The First Explanation to Clause (ii) of Section 148 of the Act

Analysis of the Court

The court has held that the ACIT has once again maintained its objections. The AO did not properly examine the allowability of the Rs. 6 crore expense under the long-term capital gains head. Hence, the audit objection was accepted, leading to the re-opening of the assessment of the income of the petitioner

There shall be no order as to costs.

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Written By

Kaulav roy chowdhury

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8 Nov

Bombay High Court on proceedings under Article 226 of the Constitution of India have been instituted seeking a declaration that Section 353 of the Indian Penal Code.

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Bombay High Court on proceedings under Article 226 of the Constitution of India have been instituted seeking a declaration that Section 353 of the Indian Penal Code.

Title : National Lawyers Campaign for Judicial Transparency and Reforms & Ors. V. State of Maharashtra & Ors.

Decided on : 3^rd November 2023

Case No. : WP ( L ) No. 21126 /2023

CORAM : DEVENDRA KUMAR UPADHYAYA, CJ. & ARIF S. DOCTOR, J.

Introduction

Bombay High Court on proceedings under Article 226 of the Constitution of India have been instituted seeking a declaration that Section 353 of the Indian Penal Code introduced by Code of Criminal Procedure (Maharashtra Amendment) Act, 2017 enhancing the punishment for the offence defined under the said Section from 2 to 5 years and making it an offence triable by a Sessions Judge, is ultra vires, unconstitutional and void.

Fact of the Case

The submission made in the Writ Petition primarily centres around the alleged atrocities on the lawyers, specially by the members of police force. Since all the aforesaid aspects appear to be under review at the government level itself as the same are being considered by the committee constituted under the Government Resolution dated 22nd February, 2023, no purpose would be served in keeping this Writ Petition pending before this Court, which is hereby disposed of with the liberty to the Petitioners to make an appropriate written representation setting out their grievances and making suggestions as well, to the committee through its Member Secretary.

It is further directed that the written representation by the Petitioners may be made within a fortnight from today and in case any such Shubham 3 of 4 ::: Uploaded on – 04/11/2023 ::: Downloaded on – 07/11/2023 12:15:19 ::: 4 24-WPL-21126-2023.doc representation is made and suggestions are given under this order, the same shall be considered by the committee. It is also provided that in case the committee feels it appropriate, the Petitioners may also be provided opportunity of hearing, however it shall be at the discretion of the committee.

Case Analysis and Judgement

It is further directed that the written representation by the Petitioners may be made within a fortnight from today and in case any such representation is made and suggestions are given under this order, the same shall be considered by the committee. It is also provided that in case the committee feels it appropriate, the Petitioners may also be provided opportunity of hearing, however it shall be at the discretion of the committee The Writ Petition thus stands finally disposed of.

Written by Nimisha Sunny

6 Nov

The Bombay High Court held that Municipal Corporation Employees in the Octroi Department Do Not Have a Vested Right to Commission on Fees Paid to Evaders

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Title: Municipal Commissioner Pune Municipal Corporation and Anr. v. Ashish Laxman Chavan

Decided on: 03 November, 2023

+ Writ Petition No. 8953 of 2018

CORAM: Hon’ble Justice Mr. Sandeep V. Marne

Introduction

The Hon’ble Bombay High Court held that the workers employed by a Municipal Corporation’s Octroi department are not entitled to commission (Mushahira) on compromise fees that the department collects from those who avoid Octroi.

Facts of the Case

Pune Municipal Corporation has filed the current petitions in an effort to overturn the orders that the Industrial Court made in response to several complaints submitted by respondent employees. The Petitioner-Corporation has been required by the Industrial Court to pay the Respondent-Employees’ part of the “Mushahira” within a three-month term after the court accepted the concerns of the Respondent employees. A 20% incentive known as “mushahira” is given to staff members based on the compromise fees that are recovered from tax evaders. The Industrial Court has additionally mandated that if the amount owed is not paid within three months, interest at the rate of 6% per annum would be levied.

Courts analysis and decision

The court ruled that although Mushahira is not a part of salary, it is a special payment or allowance that needs the state government’s prior approval. According to the court, the 1984 Resolution might be viewed as having an enabling clause that gave PMC the authority to punish Mushahira for apprehending specific cars that were avoiding Octroi. However, the court determined that the employees had no legal basis for demanding Mushahira.

The court noted that granting certain workers more compensation would result in prejudice and unhappiness among other workers. “Such a method of payment of any amount above and above salary and allowances would result in employee discrimination and give other employees who are not stationed in the Octroi Department indigestion. The court stated that such a system would also lead to needless demands from the staff for postings in the Octroi Department. The court emphasized the exorbitant claims made by certain employees for Mushahira, noting an unacceptable demand of Rs. 12,00,000 as an example. As a result, the court overturned the Industrial Court’s ruling.

Written by- Hargunn Kaur Makhija

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18 Oct

Bombay High Appoints Panel To Preview “I Killed Bapu” Film, Which Petitioner Contests Directed To Defame Mahatma Gandhi

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TITLE Mohammed Atiq Ibrahim Ansari V Central Board of Film Certification & Ors.

Decided On October 9th, 2023

27351 OF 2023

CORAM: Hon’ble Justice Mr Sunil.B and Firdosh Poonawalla

INTRODUCTION-

The names proposed by each side are noted and the documents are designated as “A” and “B” for identification. We discover that two of these names—Honorable Justice (Retired) Shri. A. A. Sayyed, Former Chief Justice of the Himachal Pradesh High Court, and Hon. Justice (Retired) Abhay Thipsay—can be accepted to be on the panel of eminent viewers to be appointed in the current matter.

FACTS OF THE CASE

The party requests that the panel view a preview of the movie “I Killed Bapu” at the location they have suggested and determine whether the movie contains any objectionable material or poses a serious threat to societal harmony before submitting a report to the court within two weeks of the panel’s preview, which report shall be without prejudice to the rights and claims of both parties.

COURT ANALYSIS AND DECISION

The Petitioner shall make and assume responsibility for all necessary arrangements, including the holding of the preview and payment of all related expenses for the panel members. Continue to November 1, 2023. Parties must take action based on the Order’s authenticated copy. The petitioner’s knowledgeable attorney must give a copy of this Order to each honourable member of the panel.

Written by- Steffi Desousa

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