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The Delhi High Court: Petitioner allowed to file written statement; Can’t assume that it is not required in a divorce suit due to the filing for transfer petition before the SC.

Title: Babita vs Manish Shoukeen

Date of decision: 18th July, 2023

+ CM(M) 752/2023 & CM APPL. 23729/2023

CORAM: HON’BLE MR. JUSTICE NAVIN CHAWLA

Introduction

Delhi High Court allowed the written statement to be filed by petitioner setting aside the order of the family court and held that by merely filing a transfer petition before the Supreme Court, the petitioner could not have assumed not to file her written statement in the Divorce Petition. Accordingly, the present petition is allowed. The petitioner shall file the written statement before the learned Family Court, within a period of one week from today. It is made clear that the petitioner shall not be shown any further indulgence in case of a default made in defending the Divorce Petition.

Facts of the case

In HMA No.1027/2019, Babita v. Manish Shokeen (hereinafter referred to as the “Divorce Petition”), the learned Principal Judge of the Family Court of Delhi issued orders dated 21.12.2022 and 21.03.2023 (hereinafter referred to as the “Impugned orders”).

The learned Family Court was happy to shut the petitioner’s opportunity to submit her written statement in this case and to dismiss the petitioner’s defence. The learned Family Court denied the petitioner’s request to have the order from 21.12.2022 recalled by the impugned ruling dated 21.03.2023.

The petitioner’s claim is that she lives in a hamlet in the Jhajjar District of Haryana. She had already filed a lawsuit in the Jhajjar Courts against the respondent here. She was served with the summons in the respondent’s divorce petition, and on May 30,2022, she appeared in court.

He adds that she had submitted a plea to the Supreme Court asking for the divorce case, Babita v. Manish Shokeen, TR.P.(C) 2395/2022, to be transferred from the learned Principal Family Court at Jhajjar, Haryana, to the learned Family Court at Tis Hazari Courts, Delhi.

Even though there were costs involved, she didn’t file the written statement.

The petitioner claims that she then got in touch with the attorney who was assisting her in the court proceedings in Jhajjar, who encouraged her to get her written statement ready and submit it with the application to have the order from 21.12.2022 recalled on 21.03.2023. However, the learned Family Court was happy to reject the aforementioned motion seeking to recall the ruling and declined to enter her written statement into the record.

Analysis of the court

It is undisputed that the petitioner has been living with her young kid, who is 7 years old, in a hamlet in the Jhajjar District of Haryana years. The fact that a lawyer attended on her behalf before the learned Family Court on her behalf on September 2, 2022, and November 9, 2022, plainly demonstrates that she has hired a lawyer to represent her interests in the divorce petition. Although it is true that the petitioner could not have assumed on her own that she was not required to file a written statement in the divorce petition by simply filing a transfer petition with the Supreme Court, in my opinion, the aforementioned circumstances would act to mitigate the default that the petitioner has committed in failing to file the written statement on time.

Additionally, it should be remembered that the Family Court’s current petition was not of a commercial or lucrative character. The parties’ social and family rights are to be determined there. On the petitioner’s argument, the Supreme Court has already moved the divorce suit to the learned Principal Family Court in Jhajjar, Haryana. In reality, it is important to note that although the divorce petition was filed in 2019, the respondent wasn’t served until about May 30,2022. Therefore, it had taken the petitioner three years to serve the respondent. Given these facts, the petitioner may have been given one final break by taking her official written statement.

As a result, the current petition is approved. Within a week from now, the petitioner must submit the written statement that was scheduled to be submitted to the learned Family Court in Jhajjar, Haryana, on March 21, 2023. It is made plain that if the petitioner fails to properly defend the divorce petition, additional leniency will not be extended to them

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Delhi High Court Set aside the order passed by the Motor Accidents Claims Tribunal and held that appellant cannot be saddled with contributory negligence merely on the basis of his cross-examination.

Title: DILIP KUMAR SAH versus PARSHOTAM ALIAS PURSHOTAM LAL (SINCE DECEASED) THROUGH LRS & ANR.

Date of decision:18thJuly, 2023

+ MAC.APP. 133/2021

CORAM: HON’BLE MR. JUSTICE NAVIN CHAWLA

Introduction

Delhi High Court set aside the order passed by the Motor Accidents Claims Tribunal and held that there was no contributory negligence on the part of appellant and granted him the benefits of permanent disability and also held that appellant cannot be saddled with contributory negligence merely on the basis of his cross-examination.

Facts of the case

In MACT case number 174/2017, captioned Sh.Dilip Kumar Sah v. Sh. Parshotam @ Purshotam Lal & Anr., the learned Motor Accidents Claims Tribunal issued an award on January 13, 2021, which is being challenged in this appeal.

The appellant’s two grounds for the limited challenge to the contested award are as follows:

  1. a) Despite neither the owner of the at-fault vehicle nor the insurance company having submitted a written statement alleging any contributory negligence on the part of the appellant, the learned Tribunal has assigned the appellant 40% contributory negligence, reducing the compensation granted to the appellant;
  2. b) Despite the fact that the appellant’s right lower limb was deemed to have a 41% permanent handicap, the appellant has not received any compensation for his future possibilities.

Analysis of the court

It is undisputed that neither the owner nor the insurance company provided the learned Tribunal with a written statement. The significance of pleadings cannot be understated, even if the learned Tribunal will only conduct an inquiry rather than a full-fledged trial as in a civil complaint. Therefore, the respondent did not blame the appellant for any contributory carelessness in their arguments. Only during the cross-examination of the appellant was the appellant prompted to describe how the accident occurred. The appellant vehemently refuted any allegation that he may have contributed to the catastrophe.

Reading the cross-examination of the appellant would reveal that he claimed to be riding a rickshaw across the main road from left to right. The same cannot, in my opinion, be regarded as contributory carelessness. Although the offending vehicle was being driven at a high speed and the driver was unable to control the vehicle or apply the brakes at the appropriate moment, the learned Tribunal, influenced by the foregoing, in the impugned Award assigned 40% of the negligence to the appellant.

The learned Tribunal manifestly erred in assuming that the appellant might be charged with contributory carelessness only on the basis of his cross-examination in the absence of any pleading assigning contributory fault to the appellant.

Therefore, the contested award is revoked to this degree.

On the subject of the appellant’s future prospects not being granted, reliance has once more been put on the appellant’s cross-examination, which has been reported above. Reading the cross-examination will reveal that the appellant was not questioned about whether the accident he sustained had any impact on his ability to earn money or do his job. According to his disability certificate, the appellant’s right lower limb has a 41% permanent impairment. The learned Tribunal determined that the appellant’s entire body had a 20% functional impairment. There is no argument against the erudite Tribunal’s conclusion.

In Pappu Deo Yadav (supra), the Supreme Court allowed for a 40% reduction in future possibilities. In my opinion, the appellant should be allowed that fair degree of loss of future chances under the circumstances of the current case as well. The appellant used to pedal the rickshaw by himself while conducting business at a weekly market selling clothing. The appellant is deemed entitled to compensation under the heading of loss of future prospect at the rate of 40% due to a permanent handicap to his lower limb. As a result, the impugned Award, to the extent that it denies the appellant compensation for the loss of future prospects, is set aside, and is modified granting such compensation. 

The learned Tribunal is required to reassess the amount of compensation due to the appellant under the provisions of the contested award as amended by the current ruling. On August 20, 2023, the parties must appear before the knowledgeable Tribunal. The awarded amount, including the augmentation directed under the current judgement, along with interest thereon, shall be disbursed in favour of the appellant in line with the schedule set down by the learned Tribunal upon deposit of the re-determined/enhanced amount.

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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.

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

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

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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