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13 Jul

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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12 Jul

Delhi high Court Dismissed the revision petition seeking dismissal of trial court order under Order VII Rule 11 CPC.

Prime Legal

Blog #CPC, #delhihighcourt, #HighCourt, #law, #primelegal, #revisionpetiton, Blog, Prime Legal

Title: ANUJ SHARMA vs AMIT SHARMA

Date of Decision: 10th July, 2023

+ C.R.P. 64/2022 & CM APPL. 20882/2022

CORAM: HON’BLE MS. JUSTICE JYOTI SINGH

Introduction

Delhi high Court Dismissed the revision petition seeking dismissal of trial court order under Order VII Rule 11 CPC and held that plaint deserves not to be rejected as being barred by law and no interference is warranted in the impugned order.

Facts of the case

According to the relevant factual matrix, the plaintiff asserts ownership of a 55 square yard piece of property with the following address: No.4138/1, Ground floor, Gali No.108, B-Block, Near Kapoor Garments Store, Sant Nagar, Burari, Delhi (hereinafter referred to as the “suit property”). The ground level of the suit property is allegedly in the hands of the defendant, who is the plaintiff’s biological brother. By way of Registered GPA, Agreement to Sell, and other related agreements dated 20.10.2004, Plaintiff acquired the suit property from its former owner. Water and electricity metres were also put in Plaintiff’s name.

According to the Plaintiff, he gave the Defendant permission to live on the suit property with his family as a licensee and permissive user upon the Defendant’s request, even though no licence fee was paid.

However, the Plaintiff asked the Defendant to leave the land and provide physical ownership to him since he needed the property and the Defendant was bothering him and his family. Legal notice dated 09.10.2019 was delivered on the Defendant, ending the licence and requesting that he leave the suit property within 15 days after the Defendant failed to leave. When the defendant failed to transfer ownership of the property within the allotted period, the plaintiff brought the current lawsuit for mandatory and permanent injunction as well as damages.

Analysis of the court

The ruling of the Trial Court that dismissed the Defendant’s application under ruling VII Rule 11 CPC is being contested in the current revision petition. It is essential to carefully evaluate the criteria that limit the study and adjudication of the application under Order VII Rule 11 CPC, seeking rejection of the plaint, before delving into the current situation. Arvindbhai Kalyanji Bhanusali (Gajra) Dead Through Legal Representatives and Others, Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra) Dead Through Legal Representatives and Others, (2020) 7 SCC 366.

In this instance, the justification provided in the application under Order VII Rule 11 CPC states that the Plaintiff’s lawsuit cannot be maintained since he has no legal possession or title to the suit property. by virtue of papers such as a GPA, an agreement to sell and buy, an affidavit, a will, a receipt, a letter of possession, etc. It is common knowledge that no right, title, or interest in immovable property may be transferred without accompanied by a Deed of Conveyance/Sale Deed that has been properly stamped and registered in accordance with the law. The Supreme Court ruled in Suraj Lamps (supra) that a power of attorney merely authorises transactions, not the transfer of any right, title, or interest in real estate the Attorney to carry out the tasks listed there. Furthermore, it was decided that the court would not treat transactions of the type of “GPA sales” or “SA/GPA/Will/Transfers” as completed or concluded transfers or as conveyances because they do not convey title, do not constitute transfers, and cannot be recognised as legal methods of transferring real property. The Supreme Court stated that, with the exception of the restricted provisions of Section 53-A of the Transfer of Property Act, 1882, these papers cannot be recognised as deeds of title.

The Trial Court took account of this conclusive Supreme Court ruling while determining the Defendant’s application in the current case. The application has been denied, though, on the basis of the ruling in O.P. Aggarwal (supra), in which the court ruled that while documents like an agreement to sell or a general purchase agreement do not grant ownership rights as held in Suraj Lamps (supra), they would nonetheless create certain rights in immovable property in favour of a person who has such documents executed in his favor—rights that do not necessarily grant ownership but instead give the person the right to claim possession of the suit property. The order of the Trial Court, in my opinion, is without error since it is consistent with the ruling of this Court where it is held that documents in the nature of GPA/Agreement to Sell, etc. may not transfer title but do create certain rights, such as possessory rights, which cannot be disturbed by a third party.

High Court bring up a recent Supreme Court ruling in Ghanshyam v. Yogendra Rathi, 2023 SCC OnLine SC 725, in this connection. In the aforementioned case, the Plaintiff/Respondent had filed a lawsuit, claiming that the Defendant/Appellant was the rightful owner of the property due to an Agreement to Sell, Power of Attorney, payment receipt, will, memo of possession, etc., and that he should be forced to leave the suit premises as well as pay damages. The Plaintiff was given possession of the suit premises, but upon the Defendant’s request, the Plaintiff later permitted him to use the ground floor and one room on the first floor for three months as a licensee. Defendant did not leave the premises when it was time to do so.

Regarding the facts of the case, the Trial Court correctly observed that the plaintiff had alleged in the plaint that the suit property had been transferred to her by means of a Registered GPA, an Agreement to Sell and Purchase, etc. According to the ruling in Ghanshyam (supra), the plaintiff would therefore be presumptively entitled to possessory rights that must be safeguarded from the licensee. Therefore, the licensee must turn over possession at the conclusion of the licence period, and the fact that the Plaintiff establishes a title on papers like the GPA or the Agreement to Sell does not prevent the Plaintiff from suing the licensee for a mandatory or permanent injunction. Moreover, the Court was only obligated to review the averments in the plaint on a mere demurrer and the papers that were affixed thereto at the stage of resolving an application under Order VII Rule 11 CPC. In addition to the averments listed above, the plaintiff has also presented supporting papers such GPAs, etc. Therefore, it cannot be declared at this time that the complaint ought to be dismissed as being banned by law and that there should be no interference.

Written By – Shreyanshu Gupta

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4 Jul

Delhi High Court Dismissed the petition seeking to quash government order giving the categories of Priority within the reservations provided in the Army quota of 5% for admission to various Colleges.

Prime Legal

Blog #defencepersonnel, #delhihighcourt, #ex-servicemen, #fivepercentquota, #highcourtdelhi, #JEE, #law, #primelegal, #priorityreservation, #services, #wards, #writpetition

Title: Viney Chaudhary vs UOI & Secretary of Higher Education

Reserved: 25.05.23

Pronounced: 03.07.23

W.P.(C) 3285/2023 & CM APPL. 12796/2023

CORAM: HON’BLE MR. JUSTICE SURESH KUMAR KAIT

HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

Introduction

Delhi High Court Dismissed the petition seeking to quash government order giving the categories of Priority within the reservations provided in the Army quota of 5% for admission to various Colleges, and directs the government to treat Priority No. VIII above the Priority No. VI or in alternative to consider both the Priority Nos. VI and VIII at the same podium for the admissions in the forthcoming Academic Year 2023-24.

Facts of the Case

The petitioner’s wife is a Lieutenant Colonel in the Indian Army and is stationed in New Delhi at the moment. The petitioner’s son, Master Divyansh Chaudhary, a Class XII student at Delhi Public School in R.K. Puram, is interested in pursuing a Bachelor of Technology (hereinafter referred to as “B.Tech” Course), for which the Joint Entrance Examination (Main) (JEE) serves as the qualifying examination. The said examination was scheduled to be held from April 6 to April 12, 2023.

The respondent No. 1 created nine categories with corresponding Priorities in its Order dated May 21, 2018, and eligible candidates under each category would be entitled to admission based on their respective Priority regardless of their ranks or mark totals.

The son of the petitioner discovered that the majority of reservation benefits are only being taken away by Priority-VI, leaving no seat available for the remaining Priorities, especially Priority-VIII, in order to obtain admission to various professional courses, after reviewing the cutoff charts of various engineering colleges run by the Government of National Capital Territory of Delhi (hereinafter referred to as “GNCTD”).

Thus, the petitioner has contested the Letter/Order of May 21, 2018, claiming that the distinction between Priority VI and Priority VIII violates his fundamental legal rights and deprives him of his right to equality.

Analysis and Decision of the court

In the present petition the petitioner has challenged only the list of priorities for reservation issued by the government and defence ministry for the wards of defence personnel to various medical/professional/non-professional courses. It is important to note that the petitioner has not contested the 5% reservation given to dependents of members of the armed forces, but rather feels wronged by the revised list of priorities placement of dependents of serving personnel in Priority VIII while those of ex-servicemen in Priority VI. The petitioner claims that there is no discernible distinction to put the children of serving soldiers in a group lower.

The court also highlighted that Priority VIII and Priority VI should be combined since the division of the priority between military members and ex-servicemen’s wards is not based on any discernible differences.

In the case of Union of India v. M. Selvakumar (2017) 3 SCC 504, the Apex Court ruled that horizontal reservations in the context of governmental policy are outside the purview of the courts and that they are not the appropriate forum to consider whether a given public policy is sensible and acceptable or whether a better one can be developed. However, the Courts are not prohibited from intervening in those situations when a policy choice might be criticised on the grounds of mala fide, unreasonableness, arbitrariness, or unfairness. The Supreme Court shared a similar opinion in its rulings in the cases of State of Madhya Pradesh vs. Mala Banerjee (2015) 7 SCC 698 and Ugar Sugar Works Ltd. vs. Delhi Administration (2001) 3 SCC 635.

The advantage of reservations for wards of ex-servicemen had not, in this instance, been denied to the children of current soldiers. The Government of India’s Ministry of Defence has made a policy directive defining how children of Army officers may use their reservations in certain categories. The classification of the wards in Priority VI and Priority VIII does not involve any arbitrary decision-making, irrational behaviour, or intentional wrongdoing.

The case of The Chief Secretary vs. D. Kuralarasan MANU/TN/6162/2021, in which the children of serving personnel were totally omitted from the admissions advertisement, illustrates instances in which a policy choice may be interfered with by the court. The Court intervened to request that they be included to the Priority list for admission to the professional course after it was noted that the exclusion of the wards of the serving personnel without any basis or justification was inappropriate in that situation.

The petitioner questions why the wards of serving personnel should be placed in the last but one category, Priority VIII, while the wards of ex-servicemen receive priority VI, when wards and wives of ex-servicemen as well as serving personnel who are receiving Gallantry Awards, can be placed together in one category, be it Priority V or Priority VII.

The respondent No. 1 in the counter affidavit has explained that although the Government of India had initially decided to grant the benefit to the wives and wards of former service members or recipients of the Gallantry Award, it was ultimately discovered that some positions remained unfilled even after the benefit had been granted to the wards of all the categories. The inclusion of the category of wards of serving people as Priority VIII is solely intended to guarantee that the advantage of reservation is completely utilised, exhausted, and not left unutilized.

The Government Order F.No.6(1)/2017/D (Res.II) dated 21.05.2018 mostly governs how the reserve quota is utilised horizontally. The aforementioned policy hasn’t been accused of being arbitrary or malicious. We don’t see any reason to challenge the Government Order from May 21, 2018, or to rearrange the Priority categories as specified therein.

Thus, the High court dismissed the petition along with pending applications.

Written By – Shreyanshu Gupta

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28 Jun

Provide an Appropriate Number of Short and Long-Term Care Facilities for Mental Ill Inmates: High Court Orders Delhi Govt

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Blog #highcourtdelhi, #law

Title: MADHU BALA v. STATE

Decided on: 26th June 2023

+ CRL.A. 161/2011

CORAM: HON’BLE MS. JUSTICE MUKTA GUPTA, HON’BLE MS. JUSTICE POONAM A. BAMBA

Introduction

The High Court of Delhi has urged the government of Delhi to guarantee that an appropriate amount of short and long-term care home is provided for mentally ill convicts who do not need frequent hospitalization and do not have houses to return to in order to live in a secure environment. A division bench of Justice Mukta Gupta and Justice Poonam A. Bamba stated: “It is the bounden duty of the State to take care of the life of all its citizens.”

Facts of the Case

In Charanjit Singh & Ors. v. State & Ors., a Coordinate Bench instructed the State to establish Short or Long Stay residences for convicts suffering from mental illness who do not require hospitalisation.

The panel was hearing an appeal filed by Madhu Bala, a murder offender who was diagnosed with Schizophrenia during his trial and is currently receiving treatment as an outpatient at the Institute of Human Behaviour and Allied Sciences (IHBAS).

Bala was arrested in September 2005, and his treatment at IHBAS began in May 2009. On August 21, 2010, the trial court condemned her for charges punishable under Sections 302 and 326 of the IPC, which she contested in court. Bala also attempted to get her life sentence commuted.

Courts Analysis and Decision

Bala, who has been in and out of IHBAS since her conviction, was ultimately sent to Saksham, a Half Way stay home on the IHBAS campus, on March 3, 2017. She has been detained since then.

The court took notice of IHBAS’s medical report, which said that according to her most recent examination on February 20, her paranoid schizophrenia is in remission and she is thus fit to defend herself. As a result, the court heard Bala’s appeal on the merits after allowing her counsel to visit her at the Halfway house at IHBAS.

Observing that Bala was in judicial custody even when admitting to the Short Stay Home and that her stay would be counted towards her custody duration, the court changed her conviction for the death of the deceased from Section 302 to Section 304(1) of the IPC.

The court, however, upheld her conviction for an offence punishable under Section 326 of the IPC.

Concerning a woman’s injuries, including the ten-year term she received for the offence. The judge noted that she had already served the time in jail.

“Furthermore, the sentence for an offense punished under Section 304 Part 1 IPC is reduced to a 12-year prison sentence.” The appellant has been in the role of the appellant for 18 years. As a result, it is held that the petitioner has already served the term imposed for an offense punishable under Section 304(1) IPC,” the court stated. The bench further noted that following her time at the IHBAS Short time Home, Bala’s mental state had improved incrementally, allowing her counsel to engage with her.

“Because the appellant is unable to care for herself, even though the schizophrenia is currently in remission, and none of her family members are capable of looking after her, it is the responsibility of the State to take sufficient care of Madhu Bala and other similar patients, for the reason that the Short/ Long Stay Residences have been established,” the court stated.

It directed that Bala remains in the Long Stay Home at IHBAS and that the State bear the costs of all necessary care, including her stay. “A copy of this judgment should also be sent to the GNCTD’s Principal Secretary (Home), Principal Secretary (Health), Director General (Prisons), and Medical Superintendent, IHBAS for their records.”

Judgment- click here to review the judgment

Written by- Anushka Satwani

6 Jun

The Delhi High Court prohibits Dabur from disseminating a WhatsApp advertisement for ‘Amla Hair Oil’ and denies an interim injunction against a print advertisement.

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Title: MARICO LIMITED v. DABUR INDIA LIMITED

CS(COMM) 471/2022

Date of decision: 02.06.2023

Introduction

Marico Limited filed the claim, citing disapproval of the goodwill and credibility of its product “Nihar Natural Shanti Badam Amla Hair Oil” and registered “Nihar” trademarks, and Justice Navin Chawla issued the ruling.

Marico requested an injunction to prevent Dabur from disseminating or transmitting its WhatsApp or print advertisements about Amla’s hair. Marico Limited filed the claim, citing disapproval of the reputation and good name of its product “Nihar Natural Shanti Badam Amla Hair Oil” and registered “Nihar” trademarks, and Justice Navin Chawla issued the ruling. Marico requested an injunction to prevent Dabur from disseminating or reposting its WhatsApp or print advertisements about Amla’s hair.

The High Court of Delhi has barred Indian global consumer goods business Dabur from distributing their WhatsApp advertising for “Dabur Amla Hair Oil” starring Bollywood actress Deepika Padukone.

Facts of the Case

Concerning the print campaign, Marico said that Dabur’s opening phrase “Yaad Rakhna, Sasta Aawla, balo ko mehenga padega” was scary and dangerous for customers, branding all other cheaper Amla Hair Oils to be deficient and hazardous. It was argued that this constituted general slander.

Although rejecting to enjoin the newspaper piece on the hair oil, the court barred Dabur or any other person working for it from disseminating the WhatsApp message or commercial on Amla hair oil while Marico’s complaint was pending.

Observing that there was no obvious reference to Marico in the contested Print Advertisement, the court stated, “The reference to the plaintiff, if any, can only be drawn by a leap of creativity, but which in my initial view is not warranted.” It is just a warning that there may be serious consequences to buying cheaper Amla Hair Oils–cheaper in both quality and price. The plaintiff’s request for this Court to use its imagination is too broad.”

Courts Analysis and Decision

According to Justice Chawla, advertising should be considered from the perspective of an ordinary customer and his impression of the commercial, which would be to regard the promotion as puffery, as opposed to from the perspective of a sensitive rival like Marcio.

The advertising simply implies that purchasing Amla Hair Oil, which is less expensive or of lower quality, may be detrimental to the hair. This can be presented as an opinion, but it is not derogatory of all hair oils that are less expensive than the plaintiff’s,” the court said.

Regarding the distribution of the contested WhatsApp advertising, the court stated: “Though the WhatsApp message/Advertisement demonstrates that the contested Print Advertisement is targeted at the plaintiff, the ordinary consumer would not have the same perception.” Only those who got the WhatsApp advertisement/message in addition to the print advertisement will be able to make the connection among the two.

Judgement- Click here to review the judgement

Written by- Anushka Satwani

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