#JUSTICE Archives - Page 6 of 6

16 Nov

High Court of Bombay decision regarding the issue of improper sanction having been obtained has been raised.

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High Court of Bombay decision regarding the issue of improper sanction having been obtained has been raised.

Title : Chandar Mahadev Naik v. Income Tax Officer, Ward 5 and Ors.

Case No. : W.P (L) NO. 17578/2023

CORAM : HONBLE JUSTICE K.R. SHRIRAM & NEELA GOKHALE.

Decided on : 30 th OCTOBER 2023

Introduction

High Court of Bombay decision regarding the issue of improper sanction having been obtained has been raised. These petitions relate to A.Y. 2016-2017. Counsel states that in these petitions the issue of improper sanction having been obtained has been raised amongst other grounds.

Fact of the Case

the issue of improper sanction has been decided by this court in Siemens Financial Services Private Limited Vs. Deputy Commissioner of Income Tax & Ors. 1 wherein the court has held that for A.Y. 2016-2017 the sanction should have been given under Section 151(ii) and not under Section 151(i) of the Income Tax Act 1961 (the Act). Consequently, the sanction is invalid. The court has stated that in view of the invalid sanction, the notice issued itself will be invalid and has to be quashed.

Case Analysis and Judgment

Findings in Siemens Financial Services Pvt Ltd. (Supra) would squarely apply to these petitions as well on the issue of sanction. If the notice has to be quashed, if there is an assessment order passed subsequently, those assessment orders having been passed relying on an incorrect sanction will also have to be quashed.

Therefore, impugned Assessment Order dated 27th May 2023 issued under Section 144 read with Section 147 of the Act is hereby quashed and set aside. In view of the above, all consequential proceedings including Notice of Demand, Penalty proceedings also stands quashed and set aside. Petition is disposed.

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Written by Nimisha Sunny

15 Nov

The Supreme Court decision on the appellant finding guilty for the commission of offences punishable under Sections 148, 302 read with Section 149.

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The Supreme Court decision on the appellant finding guilty for the commission of offences punishable under Sections 148, 302 read with Section 149.

Title : BALARAM v. STATE OF MADHYA PRADESH

Case no. : C .A No. 2300/2009

CORAM : Hon’ble Justice Chandrachud

Date : 8 Nov 2023

Introduction

This appeal challenges the judgment and order passed by the Division Bench of the High Court of Madhya Pradesh at Jabalpur, Bench Gwalior in Criminal Appeal No.276 of 1995 thereby dismissing the appeal filed by the present appellant as well as Rameshwar (since deceased) and confirming the judgment and order passed by the learned Special Judge and Second Additional Sessions Judge, Bhind passed in Sessions Trial No.70 of 1984.

Fact of the Case

The prosecution case that Rameshwar (since deceased), appellant-Balaram, Uma Charan and Munna had come there after ten minutes of stopping of the cart, accused-Rameshwar fired the first shot and it hit Ashok in his chest. Thereafter, another shot was fired by accused Uma Charan, which hit Ashok as a result of firing, Ashok had become unconscious and was brought to Mau on cart. Pannalal reported the in the arms and thereafter, the third shot was fired which hit Ramkali (PW.5) in her right thigh. incident to the police based on which an FIR came to be lodged initially for an offence punishable under Section 307 of the Indian Penal Code (for short ‘IPC’). Following the death of Ashok, the case was converted to one under Section 302 of the IPC.

Judgment and Analysis

Shri Chandrachud submits that, on the basis of evidence, the learned Trial Judge has acquitted four accused persons. He further submits that, though the evidence of PW.5-Ramkali and PW.6-Mulchand has specifically attributed a gunshot to Uma Charan, their evidence has been disbelieved insofar as Uma Charan is concerned. However, on the basis of the very same evidence, the appellant-Balaram has been convicted. It is submitted that, from the testimony of the other witnesses it would be clear that the appellant-Balaram was not even present at the spot and he has been falsely implicated.

The order of conviction and sentence as recorded by the learned Special Judge and Second Additional Sessions Judge, Bhind and the order of the High Court are quashed and set aside. The appellant is acquitted of the charges charged with. He is directed to be set at liberty forthwith, if his detention is not required in any other case.

Written by Nimisha Sunny

9 Nov

Delhi High Court on the award debtor has raised a preliminary issue as to the jurisdiction of this Court to entertain the enforcement proceedings

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Delhi High Court on the award debtor has raised a preliminary issue as to the jurisdiction of this Court to entertain the enforcement proceedings.

Title : TAQA INDIA POWER VENTURES PRIVATE LIMITED & ANR v. NCC INFRASTRUCTURE HOLDINGS LIMITED

Case No. : O.M.P.(EFA)(COMM.) 1/2018

Decided on : 09.11.2023

CORAM : HON’BLE MR. JUSTICE PRATEEK JALAN

Introduction

The present enforcement proceedings have been filed for enforcement of a foreign award dated 24.01.2018, rendered by a three-member Arbitral Tribunal in an arbitration arising out of a Securities Purchase Agreement dated 19.09.2012 [“the SPA”]. The arbitration was held under the aegis of the Singapore International Arbitration Centre and the seat of the arbitration was in Singapore

Fact of the Case

The award debtor has raised a preliminary issue as to the jurisdiction of this Court to entertain the enforcement proceedings. Learned counsel for the parties have been heard on this issue, and this judgment will dispose of the preliminary objections, as well as four applications which turn only on this issue (I.As. 5648-50/2018 and I.A. 5652/2018).

The primary contention of the award debtor on the question of jurisdiction is that the award debtor is neither resident, nor does it possess assets within the jurisdiction of this Court, so as to attract the enforcement jurisdiction of this Court.

Case Analysis and Judgment

For the aforesaid reasons, the view that HGEPL’s debt remains an asset in the hands of its creditor – in the present case, the award debtor – and can legitimately form the basis of jurisdiction in enforcement proceedings against the award debtor. Whether the award holder is ultimately able to realise its dues through the aforesaid asset is a question which would arise subsequently but cannot inform the Court’s decision on jurisdiction. Consequently, this Court has jurisdiction to entertain the enforcement proceedings and determine the award debtor’s objections on merits.

The preliminary objection of the award debtor is, therefore, rejected and I.As. 5648-50/2018 and I.A. 5652/2018 stand dismissed.

Written by Nimisha Sunny

4 Aug

2019 Hate Speech Case: Allahabad High Court Issues Notice To SP Leader Azam Khan In UP Govt’s Appeal Challenging His Acquittal

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CASE TITLE: State of U.P. vs. Mohammad Azam Khan S/O Mohammad Mumtaj Khan [GOVERNMENT APPEAL No. – 339 of 2023]

DECIDED ON: 03.08.2023

CORAM: Hon’ble Raj Beer Singh,J.

APPELLANT: – State of U.P.

RESPONDENT: – Mohammad Azam Khan S/O Mohammad Mumtaj Khan

COUNSEL FOR APPELLANT: – Ashutosh Kumar Sand

INTRODUCTION:

The Allahabad High Court has served a notice to Azam Khan, a leader from the Samajwadi Party, in response to the Uttar Pradesh Government’s appeal against a Rampur Court’s decision to acquit Khan in a hate speech case from 2019. The hate speech incident resulted in his disqualification as an MLA the previous year. The bench, presided by Justice Raj Beer Singh, heard the appeal on Thursday and has requested the trial court’s records, along with the appellate records. The case will be further heard on September 27, 2023.

FACTS:

In May of this year, the Additional District and Sessions Judge Amitveer Singh overturned an October 2022 verdict from a special MP/MLA court in Rampur district, which had sentenced Azam Khan to three years in prison. The conviction stemmed from Khan’s provocative remarks against the Chief Minister of Uttar Pradesh, Yogi Adityanath, and the then DM of Rampur, Aunjaneya K. Singh, during the campaigning of the Lok Sabha Elections 2019. The Court of Additional Chief Judicial Magistrate found him guilty of offenses under Sections 153A (promoting enmity between two groups), 505 (statement conducing to public mischief) of IPC, and Section 125 of the Representation of People Act 1951. An FIR was lodged against Khan after the returning officer took cognizance of the matter upon receiving a complaint.

CASE ANALYSIS AND DECISION:

Following his conviction in the case, Khan faced disqualification as a member of the Uttar Pradesh Assembly in accordance with the Representation of the People Act. Consequently, a by-poll was held, and the BJP’s Akash Saxena emerged victorious in the election last year.

However, Khan appealed the verdict, and the Additional District and Sessions Judge subsequently acquitted him. In response to this acquittal, the Uttar Pradesh Government has taken the matter to the High Court, challenging the ADJ’s order.

Click to view the Judgement.

Written by- Mansi Malpani

15 Jul

LOC stands against the principles of natural justice and constitutional rights of the petitioner- removed by Haryana High court

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TITLE: Sumedha Goel v State of Haryana

Decided On-: May 1, 2023

CWP-19776-2020 (O&M)

CORAM: Hon’ble Justice Ms. Ritu Bahri &Manisha Batra

INTRODUCTION– The petitioner has filed this petition in order to obtain a writ of certiorari to vacate a Look Out Circular (LOC) issued against her by the Bureau of Immigration, Ministry of Home Affairs, Government of India, at the request of the Director of Enforcement.

FACTS OF THE CASE-

The petitioner’s situation is that she is an Indian non-resident who has been living in Singapore since 2016 and working for a software company there. Her residence is in Ludhiana. She received a number of properties from her in-laws as part of a family settlement after her husband passed away in 2014, according to the settlement agreement. She will purchase an apartment in Ludhiana in June or July 2020 using her own funds. In his capacity as a businessman, Kailash Aggarwal dealt with the National Spot Exchange Limited (NSEL). NESL, its Directors, and its Employees are the subjects of a FIR with the number 213 on it. The petitioner’s father and the companies he owns have also been named as defendants in the aforementioned case, which was filed in accordance with the Prevention of Money Laundering Act, 2002 (PMLA), and her father is currently being tried in the designated court in Greater Mumbai. In March of 2020, she travelled to see her parents. She had been residing with her parents ever since, though, because of the Covid outbreak and ensuing lockdown. On 11/12.08.2020, respondent No. 2’s officials conducted a raid at her father’s home, and she later learned that by issuing some orders, respondent No. 2 had frozen/suspended the bank accounts and D-mat accounts that had previously existed in her name as well as the names of her daughters and other people.

She had travelled abroad once more, and when she returned on November 10, 2020, and arrived at Amristar Airport, immigration officers detained her and informed her that a LOC had been issued against her. She claimed that respondent No. 2 had issued some notices during her absence from the country from 20.08.2020 to 10.11.2020, but she was unable to receive them. In the interim, the respondents had made some complaints under the PMLA of 2002, alleging that her parents had sold attached properties and transferred the sale price into their bank accounts. The movable and immovable property owned by the petitioner and her daughters was temporarily attached to respondent No. 2 on September 24, 2020.

COURT ANALYSIS AND DECISION

The petitioner’s knowledgeable attorney argued that she was not a defendant in any criminal case. She was unconcerned with her father’s businesses or his business dealings. She was an NRI who had a job that required frequent travel there and back. Her right to travel abroad could not be taken away. She was unable to be stopped from leaving the country.

On the other hand, experienced representation for the respondents has argued that the petitioner’s father was involved in criminal cases due to allegations of committing offences under the terms of the PMLA. He had engaged in money laundering and, by selling attached properties, had transferred sale proceeds totaling Rs. 3.20 Crores in favour of the petitioner and her daughters, thereby also involving the petitioner.

Both the counsel relied they argumnets on previous ruling and submitted their prayers

“In these circumstances, the respondents, in our opinion, cannot prevent the petitioner from leaving the country by issuing a look out circular, and the action taken by the respondents is not only a violation of office memorandums issued by respondent No. 2 itself, but also a violation of natural justice principles and a violation of the petitioner’s constitutional rights.”

Written by– Steffi Desousa

Click here to view judgement

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