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Delhi High Court upheld the appeal filed under section 91 of the Trademarks act 1999, held that two parties can register identical or similar marks if there is honest and concurrent use.

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Title: MHG IP HOLDINGS (SINGAPORE) PTE. LTD. versus THE REGISTRAR OF TRADE MARKS, DELHI

Date of Decision: 18th July, 2023

+ C.A.(COMM.IPD-TM) 49/2021 and I.A. 9889/2023

CORAM: JUSTICE PRATHIBA M. SINGH

Introduction

Delhi High Court set aside the order of Registrar of Trade Marks by which the application of the Appellant being application no. 2835731 was refused registration and returned the matter to Registrar for re-consideration. It also held that two parties can register identical or similar marks if there is honest and concurrent use.

Facts of the case

The Appellant, M/s M & H Management Ltd., a Mauritius-based firm in the hotel sector, filed the appeal. The Appellant is a fully owned subsidiary of “Minor International PCL,” which asserts to own and manage more than 150 hotels and resorts in a number of nations in the Asia Pacific, Middle East, Europe, South America, Africa, and Indian Ocean regions.

In its defence, the appellant claims that one of the marks it adopted in 1933 was the mark “TIVOLI,” which it claims to have used in a vast number of nations throughout the world. Several other nations, including Argentina, China, Colombia, Ethiopia, France, Germany, Mexico, New Zealand, Paraguay, Spain, Sri Lanka, UAE, United Kingdom, and the United States of America, are listed as having registered the mark.

Additionally, the appellant is the registered owner of the domain name www.tivolihotels.com, on which it runs a website to advertise its many properties, resorts, and hotels. In 2014, the Appellant submitted an application for the mark under the number 2835731 in class 43.

The Registrar looked through the applicant’s application, and on May 19th, 2016, an examination report noting already-registered comparable marks was provided. The trademark registrar noted objections made in accordance with Section 11 in the examination report.

On September 29, 2016, the appellant responded to the aforementioned examination report. The Appellant argued in its response that the mark had been adopted and used since 1933 and had a global reputation. The Appellant claims that the registered/applied-for marks were not identical since there were discrepancies between the Appellant’s markings and the mentioned marks. In any case, the appellant argued that the mark has a strong global reputation in its favour and is therefore susceptible to registered. However, the Registrar vide its order dated 10th January, 2019 has refused registration and the review against the refusal order has also been rejected vide order dated 25th June, 2019. Hence, the present appeal.

Out of the three trademarks mentioned above, only mark #3 has faced opposition. The stated markings are registered marks and they belong to the same class as the mark in relation to the registrations at serial numbers 1 and 2. registered, as requested, by the appellant.

However, a review of the aforementioned registrations reveals that they were submitted after the appellant’s 1933 use of the mark. This Court is persuaded to believe that the Appellant’s case may qualify for the exemption under Section 12 of the Act since the domain name www.tivolihotels.com was registered in the Appellant’s favour and has been in use for a long time.

Honest and concurrent usage are recognised in the preceding clause. In accordance with the aforementioned clause, two parties may register identical or related marks if there is genuine concurrent usage.

 Given the substantial evidence that the Appellant has shown on the adoption and widespread usage of the in question mark, the Court believes that the Registrar of Trademarks should take this element into consideration.

In light of these facts, the contested ruling is overturned, and the matter is sent back to the Registrar of Trademarks for another review, taking into account the appellant’s previous adoption and extensive worldwide use of the trademark as well as the issue of the appellant’s honest and concurrent usage. In light of the particular circumstances of this case, the Registrar would consider the evidence before making a determination about whether the appellant’s mark merited to be treated as “Advertised before acceptance.”

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Delhi High Court set aside the show cause notice, order in original and order in appeal against the petitioner under section 107 of the GST act

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Title: Kartik Agarwal vs UOI

Date of Decision: 18.07.2023

+ W.P.(C) 9424/2023 and CM Nos. 36000/2023 & 36001/2023

CORAM: HON’BLE MR. JUSTICE VIBHU BAKHRU

     HON’BLE MR. JUSTICE AMIT MAHAJAN

Introduction

Delhi High Court set aside the show cause notice, order in original and order in appeal against the petitioner and also held that the GST’s cancellation The process of registering a taxpayer has far-reaching effects on the taxpayer and often causes their business to halt. Legislators could never have intended to exclude anyone from operating a lawful company. As a result, the step of cancelling the GST should only be used sparingly and when absolutely required.

Facts of the case

In essence, the petitioner is offended by the revocation of her GST Registration. The petitioner has also asked for a return of Rs. 20,00,000 (Rupees twenty lacs only), which she alleges was placed under duress from the respondent authorities rather than willingly in response to any demand. However, the petitioner does not want to seek any remedy in relation to the deposit, totaling 20,00,000 as requested in the petition at this time, according to the experienced counsel for the petitioner. However, the petitioner wants to retain her rights so that, if required, she might subsequently avail herself of the proper remedies in this respect.

Given the foregoing, the current petition is limited to the petitioner’s challenge of the Order-in-Original dated 28.10.2022, which cancelled the petitioner’s GST registration, and the Order-in-Appeal dated 30.05.2023, which rejected the petitioner’s appeal against the Order-in-Original dated 28.10.2022.

The petitioner claims to be involved in the import and distribution of different minerals, lubricant preparations, and chemicals that come under Chapters 27 and 34 of the Customs Tariff Act, 1975. She asserts that she began operating the aforementioned business under the name and style of a sole proprietorship concern called “Vivaan International” before the GST Regime went into effect on July 1st, 2017, and that she was registered as a dealer under the Delhi Value Added Tax Act.

The petitioner claims that on September 7,2022, her premises were visited and examined by the Anti Evasion Staff of the Central Tax CGST, Delhi North Commissionerate. She says they also removed a few documents from her property without first drafting a panchnama. and they were pressured to deposit 20 lakh rupees, they gave in to their demands and, after speaking with the petitioner, deposited a sum of Rs. 10,00,000/- (Rupees ten lacs only) through DRC-03 dated 7.9.2022.

On October 10,2022, the petitioner replied to the aforementioned Show Cause Notice of 06.10.2022. The petitioner claimed in her response that her accountant had been to the office as needed and had asked for more time to complete the documentation. The petitioner also asked for the cancellation of her GST Registration, which had been suspended.

The competent officer issued the Order-in-Original dated 28.10.2022, which is also challenged in the current case, terminating the petitioner’s GST Registration with effect from 03.07.2017 since the petitioner’s argument was rejected.

Under Section 107 of the Central Goods and Services Tax Act of 2017 (hereafter referred to as “the CGST Act”), the petitioner filed an appeal against the aforementioned ruling. By an Order-in-Appeal of 30 May 2023, the aforementioned appeal was, however, denied. The petitioner was prompted by this to submit the current petition.

Analysis of the court

It is significant to note that the petitioner’s appeal against the first Orderin-first dated October 28, 2022 was denied on the basis of time limitations alone. According to Section 107(1) of the CGST Act, an appeal against an Adjudicating Authority order must be lodged within three months of the date the order was communicated. Therefore, the petitioner in this instance had until January 28, 2023, to submit an appeal. But on February 13, 2023, the petitioner submitted the same. This delay was caused due to involvement in the procedure of filing documents at anti evasion department for verification.

Undoubtedly, the Appellate Authority had the option to excuse the appeal’s filing delay as long as it did not exceed one month in accordance with Section 107(4) of the CGST Act. In the current instance, it is clear that the petitioner was in communication with the Department to resolve the issue with the cancellation of the GST Registration, and in our opinion, the petitioner provided an acceptable justification for the fourteen-day delay.

We believe that the Appellate Authority should have excused the delay given the extensive consequences of cancelling the GST Registration.

As previously mentioned, the ruling of October 28, 2022, terminating the GST registration, was only made in response to directives given by another body. The DC(AE), CGST, North Delhi had, by letter dated 30.09.2022, directed cancellation of the taxpayer’s registration as of the date of her GST Registration. This is the only basis for cancellation of the GST Registration as mentioned in the Order-in-Original.

It is significant to remember that the Order-in-Original dated October 28, 2022 also included a tabular statement indicating that no tax was determined to be owing. Generally speaking, a decision-making authority must independently use its authority and cannot do so only on the instructions of another authority unless it has independently verified the validity of the decision. In this instance, it is clear that the challenged Order-in-Original dated 28.10.2022, which was issued exclusively on the advice of a different authority without taking the petitioner’s response to the Show Cause Notice dated 6.10.2022, into consideration. It is obvious that the challenged Order-in-Original dated October 28, 2022, cannot be upheld.

The Show Cause Notice dated 6.10.2022 sought to revoke the petitioner’s GST Registration for the sole reason that the petitioner had not answered to the summons issued under Section 70 of the CGST Act, which is also relevant information to note. The petitioner had outlined how her accountant had come to the office and requested a postponement so that they could complete the paperwork. There is no indication in the Order-in-Original dated 28.10.2022, that the aforementioned argument was taken into consideration.

the GST’s cancellation The process of registering a taxpayer has far-reaching effects on the taxpayer and often causes their business to halt. Legislators could never have intended to exclude anyone from operating a lawful company. As a result, the step of cancelling the GST should only be used sparingly and when absolutely required.

We annul the contested Show Cause Notice dated 06.10.2022, the Order in Original dated 28.10.2022, and the Order in Appeal dated 30.05.2023, in light of the foregoing. Further clarification is provided, stating that the respondent authority would be free to submit a formal Show Cause Notice outlining the grounds for any planned adverse action against the petitioner. It goes without saying that any orders issued in response to the aforementioned Show Cause Notice would be supported by justifications.

The petition is dismissed on the aforementioned conditions.

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Delhi High Court Dismissed the petition seeking overturn the order passed by Income Tax Appellate Tribunal

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Title: THE PR. COMMISSIONER OF INCOME TAX -CENTRAL -1 vs VALLEY IRON & STEEL CO. LTD.

Date of decision: 18.07.2023

+ ITA 913/2019

CORAM: HON’BLE MR JUSTICE RAJIV SHAKDHER

     HON’BLE MR JUSTICE GIRISH KATHPALIA

Introduction

Delhi High Court Dismissed the petition seeking overturn the order passed by Income Tax Appellate Tribunal as the Assesee filed a return with nil gains and never had filed a revised return.

Facts of the case

The respondent/assessee suffered significant losses as a result of the floods in Himachal Pradesh and was forced to use the Corporate Debt Restructuring Scheme (“CDR”) to restructure the debts it had obtained from banking institutions, which were its lenders.

A working capital loan became a working capital term loan (“WCTL”) due to CDR, and the accumulated interest became a fund interest term loan (“FITL”).

The respondent/assessee filed a Return of Income (“ROI”) for the AY in question on November 30, 2014.The respondent/assessee updated the first ROI on September 1, 2016, (the online submission was submitted on August 29, 2016).The revision in the ROI was triggered by a revision in the tax audit

A disallowance under Section 43B of the Act was included in the original tax audit report, however it only amounted to Rs. 6,08,64,813/-. The disallowance was suo motu increased to Rs. 48,18,93,419 in the updated tax audit report.The AO first questioned the disallowance under Section 43B of the Act in a notification dated November 21, 2016, which was issued according to Section 142(1) of the Act. report, which was carried out on 26.08.2016. The tax audit report was revised by the Chartered Accountant of the respondent/assessee suo motu.

Analysis of the court

It is obvious that the assessee/respondent increased the disallowance according to Section 43B of the Act from Rs. 6,08,64,813/- to Rs. 48,18,93,419/- on their own initiative. This course correction was carried out with the submission of a revised tax audit report on August 26, 2016, which resulted in the filing of a corrected return both physically and electronically. On August 29, 2016, a revised ROI was submitted electronically. On September 1, 2016, a physical filing of the amended ROI was made.

The Tribunal stated that there is no disputing the fact that the AO initially raised a particular concern over the disallowance under Section 43B of the Act via a notification dated November 21, 2016, issued under Section 142(1) of the Act. Therefore, as rightly asserted by respondent it was not the case that the respondent/assessee made a course correction after the disallowance under Section 43B of the Act was incorrectly entered in the tax audit report, as observed by the AO.

Furthermore, there is no disputing the fact that the Gujarat High Court rendered decisions at the pertinent period that supported the respondent/assessee. For convenience’s sake, the order dated August 31, 2006 in Commissioner of Income Tax v. Gujarat Cypromet Ltd. appellant does not contest the fact that the Gujarat High Court’s position was only overturned by the Supreme Court on February 21, 2019, in a decision published in Commissioner of Income-tax, Ahmedabad v. Gujarat Cypromet Ltd., (2019) 103 taxmann.com 346 (SC). Given the above, it cannot be claimed that the respondent/assessee did not willingly increase the disallowance under Section 43B of the Act.

According to us, the Madras High Court decision in Gangotri Textiles Ltd. v. Deputy Commissioner of Income Tax, Corporate Circle 2, Coimbatore, (2020) 121 taxmann.com 171 (Madras), on which Appallant has relied, is distinguishable on the basis of facts.

 Reading the Madras High Court decision would reveal that the assessee hid its profits that resulted from the sale of the subject windmills and land. In reality, the assessee had submitted a return with “nil” capital gains.

The assessee never submitted a corrected return, and only after the case was brought before the Tribunal did it finally acknowledge that such a sale had indeed occurred.

The Supreme Court’s ruling in MAK Data (P) Ltd. v. Commissioner of Income-tax-II, (2013) 38 taxmann.com 448 (SC), is also notable because it involved documents such as share application forms, bank statements, and memoranda of association for corporations, among others, that were discovered during a survey carried out in accordance with Section 133A of the Act.

In our opinion, the Madras High Court’s and the Supreme Court’s rulings in the cases of Gangotri Textiles Ltd. and MAK Data (P) Ltd. were made in contexts that were distinct from the one that arose in the current case.

Thus, for the forgoing reasons, we are not inclined to interdict the decision of the Tribunal. According to us, no substantial question of law arises for our consideration. The appeal is, accordingly, closed.

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Delhi High Court dismissed the petition filed seeking impugning of an order by Debt Recovery Appellate Tribunal (DART) for not complying to the conditions

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Title: SZF EXPORTS PVT. LTD. & ANR. versus PUNJAB NATIONAL BANK & ANR.

Date of Decision: 17.07.2023

+ W.P.(C) 9408/2023

CORAM: HON’BLE MR. JUSTICE VIBHU BAKHRU

    HON’BLE MR. JUSTICE AMIT MAHAJAN

Introduction

Delhi High Court dismissed the petition filed seeking impugning of an order by Debt Recovery Appellate Tribunal (DART) for not complying to the conditions of making the necessary pre-deposit.

Facts of the case

The petitioners have brought this case to contest an order made on July 14, 2023, in Miscellaneous Appeal No. 113/2023, SZF Exports Pvt. Ltd. & Anr. v. Punjab National Bank, by the Debts Recovery Appellate Tribunal, Delhi (hereinafter “the DRAT”).

The petitioners filed the aforementioned appeal in response to an order dated 22.06.2023, issued by the Debts Recovery Tribunal (hereafter “the DRT”). In that order, the DRT expressed the preliminary opinion that the respondent bank’s actions in accordance with the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereafter “the SARFAESI Act”) were not irregular.

The DRT had further denied the petitioners’ request to prevent the responding bank and court receiver from seizing the subject property. There is no disputing that the petitioners used the credit facilities and failed to repay them, as the Ld. DRT had acknowledged. In essence, the petitioners feel wronged by the property’s auction. The petitioners claim that Rule 9(1) of the SARFAESI Security Interest (Enforcement) Rules, 2002 (hereafter referred to as “the Rules”) was broken by the auction. According to the petitioners, the aforementioned Rule mandates that the auction buyer pay 25% of the total auction price (including any earnest money put) within 24 hours after the sale.

Analysis of the court

Rule 9(3) of the Rules’ straightforward wording makes it obvious that the deadline for paying 25% of the selling price must be calculated starting with the sale of an immovable property. The first phrase of Rule 9(3) of the Rules, “on every sale of movable property,” makes this clear. In this instance, the auction took place online on the MSTC platform on June 8, 2023.

Respondent No. 2 (hereinafter referred to as “the auction purchaser”) had entered the bidding process and had made the highest bid of 6,60,38,000/-. We do not see any merit in the petitioners’ claim that the property auction procedure was faulty. After having said the foregoing, it is important to note that the impugned decision, which the DRAT made denying to hear the petitioners’ appeal, is not based on the merits but rather on the claim that the petitioners had broken the requirement to pay the required pre-deposit. We don’t see any reason to change the contested order. Concededly, the petitioners’ chosen appeal could not be considered by the DRAT unless they made the required predeposit. It is common knowledge that the appellant has no legal entitlement to be given further time to make the deposit.

The necessary pre-deposit was reportedly not made. Consequently, we believe that the petitioners’ appeal was properly denied. This Court has also been told that PNB has acquired ownership of the disputed property.

The petition cannot be awarded any remedy. The identical is rejected.

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Delhi High Dismissed the Anticipatory bail due to the nature of gravity of offences committed.

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Title: RAKESH KUMAR vs State (GNCTD)

Reserved on: 17.05.2023

Pronounced on: 14.07.2023

+ BAIL APPLN. 1571/2023

CORAM: HON’BLE MR. JUSTICE RAJNISH BHATNAGAR

Introduction

Delhi High Dismissed the anticipatory bail filed under section 438 of CrPC on the grounds of nature of gravity of offence.

Facts of the case

The prosecution’s assertion of the case’s facts is that the complainants are the actual and legal owners of the subject property, which is identified as C-132 (Old Number: C-143) Plot No. 1-2, Amar Colony, Block C, East Gokul Pur, Delhi, and totals 345 square yards of ground.

As stated GPA dated 18.09.2019 had been recorded in Register No. 1774, Book No. 4, Volume No. 1 at the Sub Registrar’s Office in Vivek Vihar, New Delhi. It is also said that the complainant, Jai Prakash Pal, is claiming ownership of an additional 105 square yards of the subject property with the parcel number C-132 through his daughter Sarita, who acquired it under a GPA and agreement to sell dated 12.09.2001. According to Register No. 1775, Book No. 4, Volume No. 266 at the office of the Sub Registrar, Vivek Vihar, New Delhi, the GPA in favour of Jai Prakash Pal from his daughter Sarita has also been recorded.

It is claimed that Jiten Mahajan, the complainant, became the owner of the subject property as a result of a GPA that his father, Sukhdev Raj Mahajan, allegedly completed in his favour for land having the number C-132 and measuring 240 square yards in Plot No. 1-2, Khasra No. 796/705/2, Block C, Amar Colony, East Gokul Pur. Furthermore, it is stated that the complainant’s father issued a gift deed and a possession letter/will in his favour regarding the aforementioned property.

The complainants contend that they learned that the accused and his friends were attempting to interfere with their control of the property in question and had already inhabited it. After the incident was reported, the current case, FIR No. 283/2023, was created.

Analysis of the court

It should be noted right away that there is no disagreement regarding the identity of the property in question, despite the petitioner’s learned senior counsel’s contentions that the Khasra Nos. are different and the properties are different properties during the course of the arguments. However, according to the petitioner’s paperwork, the properties in question are the identical ones for which the current FIR has been lodged against the petitioner.

According to the petitioner, the property in question was sold by him on 29.12.2022 to four persons by way of sale deed for a consideration of Rs. 1,65,00,000/- but the petitioner has not even placed a single document on record in regard to this money transaction and has even failed to submit as to how this amount was paid to him by the buyers of the property in question.

Conveyance deed dated 3.11.2022, according to DDA, is a falsified document. On the basis of this conveyance document, the petitioner later sold the property against a registered sale deed. On the same date, 12.01.2023, Deputy Director (PC-104) of PM-UDAY notified the SHO of PS Laxmi Nagar about the forged and fabricated conveyance deed dated 03.11.2022 in favour of the present petitioner using the name and style of DDA. Even DDA had cancelled the forged conveyance deed dated 03.11.2022 that is in the name of the petitioner herein.

The petitioner has relied on GPA dated 26.08.1994, GPA dated 06.02.1985, GPA dated 10.07.1985, and GPA dated 30.05.1989 to establish the title to the property in his favour. The petitioner has also cited a sales agreement signed by Smt. Rewti Dass on May 30, 1989. The examination of these documents reveals that they have been notarized, but the notary’s seal is not legible, and even the name, enrollment number, and registered number have not been mentioned on these notarized documents. In these circumstances, the petitioner must be interrogated in custody to uncover the conspiracy and learn how these documents were notarized, as well as whether a particular notary is in existence and whether the entries are present with the notarial seal.

The FIR against the petitioner has been lodged under Sections 420/467/468/471/447/448/120B/34 IPC, and the maximum punishment is up to life in prison. The charges against the petitioner are grave and serious in character. Because there is no evidence supporting bail, the application is denied.

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