#bombayhc Archives - Page 8 of 10

12 Dec

TITLE : Nutan Warehousing Company Pvt.Ltd V The commissioner, Central Tax, Pune

CITATION : WP 12775 of 2019

CORAM : Hon’ble justice G.S Kulkarni & Hon’ble justice Jitendra Jain

DATE: 11th December, 2023

INTRODUCTION :

A writ was filed under Article 226 of the Constitution to challenge the orders passed by the Appellate Authority for Advanced Ruling for Goods and Services Tax, Maharashtra on the issue whether the petitioner would be entitled to be exempted from service tax under the Notification No.12 of 2017, pertaining to loading, unloading, packing, storage or warehousing of agricultural produce.

FACTS :

The petitioner company is incorporated under the Companies Act of 1956 which carried out the business of warehousing, cold storage and refrigeration. The petitioner also has licence for carrying our their business. The petitioner has let out its warehouse to Unilever India Exports Ltd on payment of compensation as per the provisions of the Bombay Warehouses Act, 1959. The warehouse was used for manufacturing and bulk storing of tea from various qualities of tea. The petitioner was in the contention that tea procured in bulk would be exempted from central tax as it a result of agricultural produce.

The authority fir advance ruling held in the negative and stated that tea procured were already processed and are undertaking the process of further manufacturing and packaging.

COURT’S ANALYSIS

The court stated that under Section 11 of the Central Goods and Services Act, the government can grant exemption from tax by passing a notification. The order of the AAR stating tea was a dried product is flawed.

It was held by the court that a writ of certiorari can be issued only when there is failure of justice and not merely because its available. There must be an error apparent on the face of the record as the High Court acts merely in a supervisory capacity. The writ should be issued when there is a mistake in the jurisdiction and not when there is a scrutiny of an order passed by a authority. The court found that there is a error in law in the order passed by AAR and the writ was maintained.

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Written by- Sanjana Ravichandran

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12 Dec

Circumstantial evidence is not enough to sustain murder charges : Bombay HC

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TITLE : Vijay v The state of Maharashtra

CITATION : Criminal Appeal No of 84 of 2018

CORAM : Hon’ble justice Vibha Kankanwadi & Hon’ble Justice Abhay S. Waghwase

DATE: 6^th December, 2023

INTRODUCTION :

The appellant is challenging the sessions court in offences pertaining to Section 302 and 201 of the Indian Penal Code for murdering his wife and causing the evidence to disappear.

FACTS :

The deceased was married to the accused with two sons and one daughter. The daughter and one of the sons passed away earlier and the accused continuously abused the wife. He even doubted the chastity of his wife and assaulted her.

On one occasion the wife stayed at her brother in law’s house due to the continuous abuse. The next day after her return, she was found dead in a water barrel with her saree and hair floating in the tank.

The trial judge after hearing both the parties sent the accused to imprisonment for life and to pay fine of Rs.5000/- along with rigorous imprisonment for one year for the offence committed under Section 302 and rigorous punishment for another five years for the offence committed under Section 201 IPC.

COURT’S ANALYSIS

It has been submitted by the counsel of the appellant that the evidence was entirely circumstantial, and the chain of events must be proved beyond reasonable doubt. The forensic expert claimed that the exact cause of death cannot be found in the body. The prosecution’s cross examination and witnesses were not satisfactory to provide substantial evidence. The court opined that mere fact of the accused continuously abused the deceased does not mean that he is the killer. Additionally, since there was no sufficient evidence to conclude the prosecutor’s case, the court acquitted the accused from the charges of Section 302 and Section 210 of IPC.

Written by- Sanjana Ravichandran

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11 Dec

Grave and Sudden provocation doctrine not universal ; Bombay HC

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TITLE : Santosh Balaji Nagrale v State of Maharashtra

CITATION : Criminal Application no 1041//2023

CORAM : Hon’ble justice Urmila Joshi-Phalke

DATE: 9th December, 2023

INTRODUCTION :

The applicant was seeking bail under Section 439 of Cr.PC for the offence punishable under Section 302 of IPC.

FACTS :

The applicant was arrested on 9^th July 2022 and since then he was in jail. The accusations was based on the report based by the wife of the deceased. The accused is the deceased’s brother. The deceased and the applicant lived in a joint family set up and the deceased had an addiction problem with alcohol.

In a quarrel between the applicant’s wife and the deceased after he abused her and subsequently killed by inserting a knife in the deceased’s chest which was done multiple times. The FIR suggested that this was a case of grave and sudden provocation. The postmortem report revealed that the deceased was stabbed 16 times on the vital parts of his body.

COURT’S ANALYSIS

The prosecutor claimed that this was not a case of grave and sudden provocation as the accused interfered between the quarrel. He also added that there was 17 injuries out of which 16 are from stab injuries, making it clear that it was not a sudden reaction. The counsel for applicant argued that this was a case of culpable homicide not amounting to murder under Section 299 of the IPC.

The court held that the doctrine of grave and sudden provocation does not have a universal application and it may depend upon case to case basis. The court further held that in the present case, the exception under Section 304, i.e grave and sudden provocation is not applicable as there were multiple stab wounds thereby creating an intention to kill.

Written by- Sanjana Ravichandran

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11 Dec

Not providing labor permanency for 14 workmen is an unfair practice : Bombay HC

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TITLE : Solapur Mahanagarpalika v Yogesh Nagnath Mane & Ors

CITATION : . CIVIL WP-14150-2023

CORAM : Hon’ble justice Milind N. Jadhav

DATE: 4^th December, 2023

INTRODUCTION :

A writ petition was filed under Article 226 to challenge the judgement given by the Industrial Court.

FACTS :

The complainants were working as Malaria field workers with petitioner corporation since 1997-98. They were employed due to the issuance of advertisements in newspapers followed by interviews and wait listing.

Initially, they were paid a salary of Rs. 5000/- per month but thereafter they were paid salary on a daily wage basis. It was contended that the petitioner corporation had specific vacant posts of Field Workers. The field workers were given artificial breaks according to the petitioner company and in those breaks, the 14 workmen used to work.

However the benefit of permanency was not given to the current respondents when 2500 other employees were given job permanency. It was held by the labour industrial court that the company had indulged in an unfair practice.

COURT’S ANALYSIS

The court held that it is seen that the entire evidence on record clearly proves that all 14 original Complainants / workmen i.e. Respondents herein were in continuous service of the Petitioner Corporation since 1997-98 and all of then have worked with the Petitioner Corporation for more than 240 days in each year for more than 10 years even before filing of the present Complaint and are continuing to do so for the past 25 years and held the order passed by the industrial court is valid.

Written by- Sanjana Ravichandran

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8 Dec

Article 14 of the constitution cannot be enforced on the basis of negative equality : Bombay HC quashed writ challenging the constitutionality of provisions of Bombay Entertainment Duty Act, 1923.

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TITLE : Drishti Adventures Sports Private Ltd and Ors V State of Maharashtra

CITATION : W.P No 2158 of 2005

CORAM : Hon’ble justice G.S Kularkani and Hon’ble Jitendra Jain

DATE: 4^th December, 2023

INTRODUCTION :

A writ petition was filed under Article 226 to strike down Sectio 3(1) and Section 3(5A) of the Bombay Entertainment Duty Act,1923 as ultra vires of the constitution on the ground that activities about water based activities and amusement park activities are not distinguished and hence cannot be taxed.

FACTS :

The respondent passed a resolution granting a lease of 500 sq. mts of land to Maharashtra Tourism and Development Corporation for the development of water sports activities. The lease was granted for a period of 10 years to develop manage and operate water sports activities on the basis of terms and conditions set.

On 14th March 2002, the petitioners addressed a letter to the MTDC requesting exemption from entertainment duty payment. On 26th March 2002, the petitioners addressed a letter to the respondents recording that the water sports activity does not fall under the Bombay Entertainment Duty Act, 1923. On 27th March 2002, respondent issued a demand notice asking the petitioners to pay the entertainment duty of Rs.8,53,943.

The contention raised by the petitioners is that the respondents have not recovered entertainment duty from the persons purportedly carrying on/engaged in similar activities in the State of Maharashtra and therefore, under Article 14 of the Constitution of India, the petitioners are discriminated and the petitioners too should not be made liable for payment of entertainment duty on its water sports activities.

COURT’S ANALYSIS

The court held that the petitioners contention is in the nature of negative equality, for the reason that the petitioner is questioning the action of the State Government in the levy of the entertainment duty only. The court held that it is unacceptable on the face of the record for the petitioner to claim that the money levied by paid on the way of protest. Additionally, it was held that such claim is not under the scope of Article 14 as the claim is negative equality whereas Article 14’s scope is purely upon positive equality.

Secondly, on the issue of Constitutionality of the said provisions the court held that there is a clear distinction between water based activities and amusement park activities. The legislative on that matter is clear. The petition was dismissed.

Written by- Sanjana Ravichandran

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A writ of certiorari can be issued only when there is an error in law: Bombay HC

Circumstantial evidence is not enough to sustain murder charges : Bombay HC

Grave and Sudden provocation doctrine not universal ; Bombay HC

Not providing labor permanency for 14 workmen is an unfair practice : Bombay HC

Article 14 of the constitution cannot be enforced on the basis of negative equality : Bombay HC quashed writ challenging the constitutionality of provisions of Bombay Entertainment Duty Act, 1923.