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State authorities are completely unaware of the distinction between “law and order” and “public order.” – Gujarat High court

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TITLE: Girjashankar V State of Gujarat

Decided On-: 02/08/2023

11079 of 2023

CORAM: Hon’ble Justice Mr. A.S Supehia and M.R Mengdey

INTRODUCTION- The purpose of the current petition is to contest the detention order made by the respondent, who is the detaining authority, in accordance with the authority granted by section 3(1) of the Gujarat Prevention of Anti-Social Activities Act, 1985 According to Act section 2(c), the petitioner-detenu was held in custody.

FACTS OF THE CASE

 The impugned order of detention of the detenu needed to be quashed and overturned because the detaining authority had made the decision to detain the detenu solely on the basis of the registration of two FIRs, which is insufficient to bring the detenu’s case within the meaning of section 2(c) of the Act. A knowledgeable attorney for the petitioner further argued that any illegal activity that is likely to be committed or is alleged to have been committed cannot be connected to or have anything to do with maintaining public order; at most, it can be considered a violation of law and order.

In addition, other than witness statements and the filing of the aforementioned FIRs, there is no other pertinent or convincing evidence linking the alleged anti-social behaviour of the detainee to a breach of public order. The eminent advocate further argued that it was impossible to conclude from the facts of the case that the detainees’ involvement in criminal cases had disrupted and damaged society’s social fabric, eventually posing a threat to detainees’ ability to lead normal, everyday lives and had thrown the entire social system into disarray.

By disrupting public order, it is difficult for the entire system to function as one that is governed by the rule of law.

 COURT ANALYSIS AND DECISION

The learned AGP for the respondent-State supported the detention order issued by the authority and argued that enough information and evidence discovered during the course of the investigation and provided to the detainee indicate that the detainee is habitually engaging in the activity as defined under Section 2(c) of the Act. Taking these facts into account, the learned AGP for the respondent-State argued that the detention order issued by the authority and detention order

Primarily, it is determined that the subjective satisfaction reached by the detaining authority cannot be said to be legal, valid, and in accordance with law, inasmuch as the offences alleged in the FIR/s cannot have any bearing on the public order as required under the Act and other relevant penal laws re sufficient enough to take care of. After hearing the learned advocates for the parties and considering the documents and material available on record of the case.

It seems that the state authorities frequently disregard the aforementioned settled principle of law and issue orders without understanding that human freedom is unalienable and cannot be limited or curtailed unless the detention is absolutely necessary and the detainee’s behaviour interferes with “public order.” This Court has also observed that the state authorities are completely unaware of the distinction between “law and order” and “public order.”

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written by-  Steffi Desousa

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If the dying declaration is truthful, voluntary and free from suspicion, it CAN be the basis for conviction: Bombay High Court

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Title: Bhagwan Ramdas Tupe v. The State of Maharashtra

Decided on: 28th JULY, 2023

+ CRL.A. 530 OF 2016

CORAM: SMT. VIBHA KANKANWADI, J.

Facts of the Case

Bhagwan Ramdas Tupe (BRT) was previously convicted for Murder of one Vithabai, his neighbour and was thereof sentenced to life imprisonment.  BRT appealed to the Aurangabad Bench of Bombay HC and sought acquittal on the basis that there were inconsistencies between the dying declarations of 2 witnesses.

The respondents sought for the dismissal of the appeal for there was no “inconsistency” at all.  According to them the minor details may have been inconsistent, but overall, the story in both the dying declarations and Prime Witnesses is the same.

It was alleged that BRT had poured kerosene and tembha, i.e., burning wood, on Vithabai, due to which she sustained major burn injuries. She had not died instantly, she succumbed to the injuries only 2 months after the incident and before her death she gave her dying declaration to the Inspector.

Issues

Should the Dying Declaration of Vithabai be considered the basis for conviction?

Decision

The Court decided on the dying declaration made by Vithabai that although she had injuries, she was mentally sound and able to speak. In fact, her dying declaration corroborated with the Prime Witnesses’ story and therefore, the dying declaration made by her was truthful, voluntary and free from any suspicion.

Thus, the Court upheld the conviction and dismissed the appeal.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written by – Aparna Gupta, University Law College & Dept. of Studies in Law

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Regulation of Domestic Aviation in India

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ABSTRACT

The article discusses the necessity of domestic airline regulation and the guidelines that must be followed in due accordance of aviation law. Because of the expansion of interpersonal ties as we move from the seas to the air and beyond our atmosphere, and additionally, because of globalization, aviation law is both necessary and justified.  The basic definition of aviation law i.e., The operation and regulation of airplanes and airports are governed by aviation law, a complex and dynamic field. It covers a wide range of topics, such as air traffic control, pilot training and certification, liability for accidents and incidents, and aircraft design and maintenance. Since India holds a prominent position in the civil aviation industry and aviation is a means of mass transportation in the modern era, air law is therefore crucial in determining social and economic life as well as public order in India and throughout the world.

 Research question –      How does India regulate civil aviation?

INTRODUCTION-

The history as defined as well as the given laws for the regulation a few as stated. The planning and execution of programs for the growth and expansion of civil air transport, airport facilities, air traffic services, and the carriage of passengers and goods by air are under the control of the Ministry of Civil Aviation (MCA), which is the nodal Ministry responsible for the formulation of policy and regulation of civil aviation in India. The primary regulatory bodies operating under the MCA’s authority are as follows:

  1. DGCA
  2. AAI
  3. BCAS
  4. Metrology
  5. Airlines

AUTHORITIES REGULATING THE DOMESTIC AIRLINES –

  1. DGCA – The Directorate General of Civil Aviation

The DGCA derives its authority from the Aircraft Act and Rules and carries out tasks like issuing licences, approvals, certificates, and permits. It also enforces civil air regulations, regulates air transport services, air safety, and airworthiness standards.

All-encompassing control over India’s civil aviation, the ability to issue directions, the ability to issue CARs, the ability to make specifications, the ability to issue licences for people, aircraft, and aerodromes, the ability to approve schedules, and the ability to investigate accidents and incidents

  1. AAI

  The Ministry of Civil Aviation has delegated the responsibility for developing,      modernising, maintaining, and managing India’s civil aviation infrastructure to the Airports Authority of India, or AAI, a statutory body established under the Airports Authority of India Act, 1994. AAI also manages a total of 126 airports, including 11 international airports, 11 customs airports, 89 domestic airports, and 26 civil enclaves at military airfields. It offers Communication Navigation Surveillance / Air Traffic Management (CNS/ATM) services over Indian airspace and adjacent oceanic areas. AAI also has ground installations at all airports and 25 other locations to ensure the safety of aircraft operations.

The Aircraft Accident Investigation Bureau (AAIB) is in charge of looking into and determining liability in the event of an accident or incident. In India, the AAIB looks into and publishes reports on incidents and accidents involving civil aircraft.The Air Transport Agreement Act, 2020, which the Indian government also passed, regulates and develops air transport services in India while fostering aviation industry economic development and safety and security.Overall, India’s aviation law is comprehensive and covers all facets of the aviation sector, including liability, safety and security, and consumer protection. Since it is a field that is constantly changing, updates and modifications are needed frequently to keep up with emerging technologies and market trends.

Various laws  force in India.

The safe and effective operation of aeroplanes and airports is ensured in India by a number of laws and regulations that govern aviation law. Key aviation laws that are applicable in India include:

The 1934 Aircraft Act:

The fundamental framework for India’s civil aviation regulation is outlined in this act. It addresses topics like the licencing of pilots, the registration of aircraft, and the control and navigation of airspace. To promote peaceful international cooperation through aerial navigation, the main objective was to harmonise international aviation regulations and ensure that all laws were applied equally.

 The Air Corporations Act of 1953:

This law sets up and governs public sector enterprises in the area of civil aviation.The Air Corporations Act of 1953 established Air Corporations and nationalised all air transportation in order to make better provisions for the country’s air transportation operations and to make it easier to acquire existing airline companies

 The carriage by air act, 1972

application of amended Convention to India.—(1) The rules contained in the Second Schedule, being the provisions of the amended Convention relating to the rights and liabilities of carriers, passengers, consignors, consignees and other persons, shall, subject to the provisions of this Act, have the force of law in India in relation to any carriage by air to which those rules apply, irrespective of the nationality of the aircraft performing the carriage[1].

The Airports Authority of India Act, 1994:

This law designates the Airports Authority of India (AAI) as the regulatory body responsible for overseeing the development and management of airports in India.

The Directorate General of Civil Aviation Act, 2011, designates the Directorate General of Civil Aviation (DGCA) as the regulatory body responsible for monitoring and governing civil aviation in India.

The Authority will be responsible for effectively managing the airports, civil enclaves, and aeronautical communication stations on behalf of the government. The Authority is responsible for providing air traffic control and air transportation services at all airports and civil enclaves.

Scope for Civil aviation growth

Indian domestic airlines are experiencing a new era of growth, which is being fueled by factors like low cost carriers, modern airports, foreign direct investments, cutting edge information technology applications, and a growing focus on regional connectivity.

With a market size of roughly US$ 16 billion, India is the ninth-largest aviation market in the world and is expected to overtake China by 2022.

Due to its large and expanding middle class population, rapid economic growth, higher disposable incomes, rising middle class aspirations, and overall low penetration levels, India’s aviation industry has enormous growth potential. It also has the potential to become a major global MRO hub due to its expanding aircraft fleet, strategic location advantage, rich engineering talent pool, and lower labour costs.

Relevant cases

International Airport A.I. Officers Association v Union of India and Another, 2005 [iv]
The Court stated: “The rule of construction is well known that when there are two provisions in an enactment that cannot be reconciled with one other, they should be read in such a way that, if feasible, effect is given to both.” This is known as the harmonic construction rule

NipaDhar (nee Ghosh) v National Aviation Company of India Limited and others,

Considering the aforesaid principles of law and points discussed and my findings and observation above, writ is maintainable and I hold that there is breach of Article 14 and 21 of the Constitution of India. The order of termination accordingly is not legally sustainable and it is set aside and quashed. Impugned judgement and order of Learned Trial Judge, except the order of consideration for alternative job, stand set aside and quashed Order of termination now has been quashed and set aside by us. As a resultant effect she will be deemed in service continuously[2].

Recent Changes

To support the civil aviation industry, the Government of India recently made a number of changes to the civil aviation policy and other relevant regulatory framework.

The changes include an effort to loosen up regulatory requirements, tax breaks for those industries, increased regional air connectivity, cost-cutting measures for operating and building new airports, obtaining a “make in India” policy to expand the reach and market size of this industry, and numerous other actions. The Government has finally taken action to fully revive the civil aviation sector, and in particular, the MRO sector, to stop the outflow of revenue due to the ever-growing fleet size, rising popularity of air travel among Indians, expansion, growth, and modernization of regional and international airports.

The Indian MRO industry is finally prepared to expand and take advantage of the vast untapped market opportunities due to the recent surge in regulatory requirements and potential tax benefits, as well as the government’s goal to make air travel more affordable for the country’s sizable middle class.

The MRO sector in India is anticipated to grow significantly between now and 2022, ranking among the strongest MRO markets worldwide and serving the requirements of both domestic and foreign airlines operating in and near India.

Conclusion

There have been a number of flight mishaps that call into question the safety of Indian air travel. All safety-related issues are primarily the DGCA’s concern. Since there aren’t enough training facilities and the DGCA lacks experience, it has frequently come under fire.Even though India’s aviation industry has been subject to a number of rules and regulations, there are still a number of issues that require immediate attention. Despite all of these challenges, the Indian aviation sector is one of the most thriving in the world. However, the Indian government must make a concerted effort to implement various international conventions.

In summary, aviation law is a complicated and dynamic field that is essential to maintaining the effectiveness and safety of the global aviation industry. It covers a broad range of legal concerns, such as safety, liability, environmental issues, and international treaties and agreements, that are connected to the operation and regulation of the aviation industry.The laws and rules governing the aviation industry are enforced and governed by national and international governmental organisations as well as international treaties and agreements. The scope of aviation law will keep growing with the expansion of the aviation industry, making it a crucial area of law in the years to come.

 

 

[1] https://www.indiacode.nic.in/bitstream/123456789/1658/2/A1972-69.pdf

[2] https://www.aicb.org.in/images/advocacy/highCourtCases/Smt.%20Nipa%20Dhar%20(Nee%20Ghosh)%20vs%20National%20Aviation%20Company.PDF

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The legal consensus is that executive orders cannot be implemented retroactively- Punjab high court

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TITLE: Kissan Rice Mills V State of Punjab

Decided On-: July 24, 2023

CWP-473-2023

CORAM: Hon’ble Justice Mr. Jasijth Singh Bedi

INTRODUCTION- By filing this petition pursuant to Articles 226 and 227 of the Indian Constitution, the petitioner is requesting the reversal of two orders: one in which the petitioner’s appeal was denied, and the other in which the director reduced the mill’s installed capacity.

FACTS OF THE CASE

In 2007, the petitioner built a rice mill. Guidelines dated 10.09.2007 regarding the calculation of rice mill capacity were in effect at that time. Based on directives the respondent determined the petitioner’s capacity. The mill’s 4 MT capacity was established. The fifth of the five parameters used to calculate a mill’s capacity is land. The instructions stated that the land might be leased close to the mill or owned by the owner of the mill. From 2007 to 2020, the petitioner’s capacity was assessed as 4 MT; however, in response to the complaint, the respondent reduced the petitioner’s rice mill’s capacity from 4 MT to 2 MT by order dated September 26, 2022  This Court limited the petitioner’s options to an appeal. A week after the petitioner appears before the relevant authority, the appellate authority was instructed to make a decision. When the petitioner appeared before the appellate authority, the appeal was ultimately dismissed by the order in question.

 COURT ANALYSIS AND DECISION

Knowledgeable counsel for the petitioner asserts that the rice mill was installed in 2007 in accordance with the regulations in force at the time. The petitioner was required to have 3.5 acres of land, which could either be leased or owned by the owners or partners, according to the instructions. By means of instructions dated 20.08.2010, which were provided, the instructions were changed in 2010 to specify that land should be owned by the owner or a partner and should not be leased. The capacity of the petitioner’s mill could not have been reevaluated by the respondent because the instructions were changed but not retroactively.

counsel for the respondents claims that the claim of the petitioner has been rejected due to parameters changed by instructions dated 20.08.2010 as well as due to the petitioner’s lack of the necessary plant and machinery. Because the State has the authority to amend its rules, the petitioner was obligated to follow the new rules.

The contested order regarding the land question is quashed in light of the aforementioned discussion and conclusions, but the parties are instructed to conduct a joint inspection of the machinery and plant. The respondents have four weeks from today to conduct a joint inspection. The respondent must swiftly pass a new order regarding capacity after completing physical verification.

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Written by-  Steffi Desousa

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Delhi High court Dismissed the appeal against the order of the Income Tax Appellate Tribunal

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Title: THE COMMISSIONER OF INCOME TAX – INTERNATIONAL TAXATION -3 vs SPRINGER NATURE CUSTOMER SERVICES CENTRE GMBH (EARLIER KNOWN AS SPRINGER CUSTOMERS CENTRE GMBH)

Judgment Reserved on: 25.05.2023  

Judgment Pronounced on: 12.07.2023

+ ITA 306/2023

CORAM: HON’BLE MR JUSTICE RAJIV SHAKDHER

   HON’BLE MR JUSTICE GIRISH KATHPALIA

Introduction

Delhi High court Dismissed the appeal against the order of the Income Tax Appellate Tribunal concerning Assessment Year (AY) 2013-14. Via the impugned order, the Tribunal has partly allowed the appeal preferred by the respondent/assessee.

Facts of the case

On March 31, 2015, the respondent/assessee submitted its return of income (ROI) for the pertinent AY, which was 2013–2014. The respondent/assessee originally processed its declaration of “nil” income under Section 143(1) of the Income Tax Act of 1961 through the aforementioned ROI. However, the ROI was chosen for examination, and as a result, the respondent/assessee was served with a notice dated 20.08.2015 issued under Section 143(2) of the Act. Three increases to the respondent’s income were made by the Assessing Officer (AO) through order dated 04.05.2016, which was issued in accordance with Section 143(3) read with Section 144C(3)(a) of the Act.

The first addition dealt with a sum equal to Rs. 24,84,114 being paid to the respondent/assessee by Springer India Pvt. Ltd. (also known as “SIPL”) in India in accordance with a Commissionaire Agreement. This addition was made up of two parts. The second increase, which the AO made, was for Rs. 16,67,83,110. This sum reflected the subscription costs the respondent/assessee had paid to two Indian companies, Informatics Publishing Private Ltd. and ZS Associates, for e-journals. The third increment amounts to Rs. 2,62,85,504 in total. On behalf of SIPL, the respondent/assessee collected this sum from Indian-based third parties whose consumers were purchasing online journals and/or books. The aforementioned sum is listed as “gross proceeds from sale by AE (Associate Enterprise) of Indian journal in printed form” in SIPL’s Form 3CEB report.

The AO saw the aforementioned three additions as royalties, and to that end, it made use of Section 9(1)(vi) of the Act and Article 12 of the Double Taxation Avoidance Agreement between Germany and India (often known as the “DTAA”). The respondent/assessee opted to file an appeal with the Commissioner of Income Tax (Appeals) (abbreviated “CIT(A)”) because it was unhappy with the changes that had been made. In a ruling dated 22.01.2019, the CIT(A) partially upheld the appeal. The second part of the initial addition, which was equal to Rs. 1,94,279 and had been labelled as “service charges” for the sale of “Indian journals in printed form,” was eliminated by the CIT(A). Insofar as the second and third additions were concerned, the CIT(A) confirmed the same, i.e., both with regard to the amount, as well as the treatment accorded to them by the AO. In other words, these amounts were treated as royalty, by the CIT(A) as well.

It is this decision which led to the respondent/assessee preferring an appeal with the Tribunal. As mentioned above, the CIT(A) affirmed the deletion of the first component of the first addition by the Tribunal in the assailed order dated 14.10.2022. The Tribunal cited a ruling issued by its coordination bench in the case of Springer Verlag GmbH v. DCIT in ITA Nos. 434 and 3826/DEL/2019, which was rendered on August 23,2022. The AYs 2014–15 and 2015–16 were covered by the Tribunal’s ruling.

Regarding the second addition, the Tribunal overruled the respondent/assessee’s argument, which claimed that the subscription fee could not be considered a kind of royalty. Regarding this matter, the Tribunal adhered to the ruling made by the Supreme Court in Engineering Analysis Centre of Excellence (P.) Ltd. v. CIT, [2021] 432 ITR 471 (SC).

Analysis of the court

In this case, the Tribunal disagreed with the CIT(A)’s conclusion. There was Rs. 22,89,835 at stake. The services provided by the respondent/assessee must unquestionably come within one or more of the following categories, namely managerial, technical, or consulting services, in order for this addition to be upheld as FTS. This is clear from a straightforward reading of Section 9(1)(vii)(b) of the Act, read with Explanation 2, and Article 12(4) of the DTAA.

Section 9 establishes a deeming fiction for income accruing or generating in India, which includes, among other things, FTS paid by a resident. Explanation 2 to the aforementioned provision defines FTS as any payment (including lump sum payments) for the provision of managerial, technical, or consulting services. Payments for the recipient’s own construction, assembly, mining, or similar projects are not considered to be FTS, nor are payments that would otherwise be considered compensation subject to taxation under the “salaries” heading.

As a result, the services provided by the respondent/assessee under the Commissionaire Agreement must fall under one or more of the aforementioned categories, namely management, technical, or consultant services, in order for the consideration received to be considered FTS. The respondent/assessee received a commission for providing the services at a rate of 9.9% on the net revenue total of “any and all” sales commissioned through the respondent/assessee’s intermediary. The assessor/respondent was authorised to keep the commission while transferring the revenue to SIPL or by any other commission payment arranged between SIPL and itself.

Nothing in the Commissionaire Agreement suggests that the respondent/assessee was required to identify, create, define, or evaluate the goals that SIPL needed to achieve, or even to frame the policies that led to these goals, supervise, carry out, or modify already-adopted policies. In a sense, the respondent/assessee was not carrying out executive or supervisory duties. The respondent/assessee was only required to provide assistance with company operations.

We do not feel motivated to challenge the Tribunal’s judgement on the removal of the added item in the sum of Rs. 22,89,835, on account of commission that the respondent/assessee got. We believe that the CIT(A) erred in concluding that the respondent/assessee’s receipt of the aforementioned sum possessed FTS characteristics.

The coordination bench judgement of this Court in DIT v. Panalfa Autoelektrik Ltd. addressed the characteristics of what constituted FTS in great detail. The coordination bench has addressed the order issued by the Authority for Advance Ruling (AAR) in Wallace Pharmaceuticals (P.) Ltd. in this ruling. Mr. Bhatia’s attempt to separate the ruling in DIT v. Panalfa Autoelektrik Ltd. must fail because it misinterprets the judgment’s real ratio.

The second addition is therefore brought into focus. We must note that Mr. Bhatia stated during the argument that the additional Rs. 16,67,83,110/- that the respondent/assessee received from its affiliates as a subscription fee for e-journals could not be considered a royalty due to the ruling made by the Supreme Court in Engineering Analysis. The idea that the subscription fee should be classified as FTS or, alternatively, as royalty has been raised for the first time in the written submissions, in contrast to the submission.

According to us, the argument that a subscription fee should be classified as FTS cannot be recognised because the appellant and revenue did not take this stance before the Tribunal. This flip-flop was made by respondent/assessee would do well to abjure. 

Considering that there is no evidence on file indicating that the respondent/assessee has granted the right in respect of copyright to the relevant subscribers of the e-journals, we also believe that the subscription fee cannot be classified as royalty. The only thing the respondent/assessee did was sell the publication that was protected by a copyright to the relevant organisations without granting any copyright to the content in question.

Given the ruling issued by the Supreme Court in the instance of Engineering Analysis, we believe the Tribunal acted correctly when it erased the addition made under this heading. For the aforementioned causes, we believe that there isn’t a significant legal issue that warrants our examination. The judgements mentioned above address the problems that were presented.

 As a result, the appeal is dismissed.

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Written By – Shreyanshu Gupta

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