SUPREME COURT

• CONSTITUTIONAL LAWS

Rajasthan Pradesh V. S. Sardarshahar and Anr. v. Union of India (UOI) & Ors. 

and 

Central Council of Indian Medicine v. Ved Prakash Tyagi and Ors. 

and

Haryana vaidaya Samiti, Haryana a registered body, thr. its President v. State of Haryana and Ors. (Decided on 01.06.2010) MANU/SC/0408/2010

Recognition of Vaidya Visharad" or "Ayurved Ratna" - Section 17 of Indian Medicine Central Council Act, 1970 - Whether persons who qualified "Vaidya Visharad" or "Ayurved Ratna" after 1967 from Hindi Sahitya Sammelan Prayag are entitled to practice as Vaidyas?

Held, Sahitya Sammelan Prayag is only conducting examination for "Vaidya Visharad" or "Ayurved Ratna". It neither conducts any course nor checks the educational qualification of persons appearing in examination. Further, after 1967, it has not applied for renewal of its recognition - After commencement of the Act, a person not possessing the qualification prescribed in Schedule II, III & IV to the Act of 1970 is not entitled to practice. Appeal dismissed.

• TENANCY LAWS

Dinesh Kumar v. Yusuf Ali (Decided on 26.05.2010) MANU/SC/0407/2010

Bona fide Requirement - Section 12(1)(f) of M. P. Accommodation Control Act - Whether the fact landlord evicted another tenant decades ago and did not occupy the premises relevant in a bona fide requirement claim?

Held, tenant occupied area measuring 152 sq.ft. and landlord running business at a 'Gumti' measuring 3 ft. x 4 ft. made on a platform on Nalla. Landlord's failure to occupy the premises after evicting a tenant decades ago irrelevant in deciding bona fide requirement in changed circumstances. Landlord allowed to occupy half area of premises. Appeal partly allowed.

HIGH COURT

• SERVICE TAX

Delhi High Court

Home Solution Retails Ltd. v. UOI & Ors. (Decided on 18.05.2010)

Service Tax Liability - Renting of immovable property to be used for commercial / business purposes - Amendment has been introduced to Section 65(105)(zzzz) and 76 by virtue of the Finance Act, 2010 - Whether Assessee was to pay service tax liability as after the amendment?

Held, there shall be no recovery of service tax from the Petitioner in respect of renting of immovable property alone. Whereas any other service in relation to such renting, service provider would be liable to pay service tax on such service.

• SERVICE

Delhi High Court

Smt. Leela Sharma v. Govt. of NCT of Delhi & Ors. (Decided on 02.06.2010)

Compulsory retirement of a teacher in unaided private school - Delhi School Education Act, 1973 - Whether a teacher in a recognized unaided private school can be compulsorily retired under Fundamental Rule 56(j) and not by way of penalty?

Held, an order of compulsory retirement is an important tool to keep any organization vibrant and to prevent its clogging and decay by the sheer weight of long standing employees who have ceased to be the dynamos to propel the organization further and for achieving its goals. The same enables the employer to, after the employee has worked for a certain number of years and / or has attained a certain age but before the age of superannuation, remove him. It is often found that certain employees after putting in considerable number of years of service lose their sheen and no longer remain productive. Their continuance in service is of no use to the organization. Section 8(3) of the School Act provides that any employee of a recognized private school who is dismissed, removed, or reduced in rank may appeal against such order to the Tribunal constituted under the School Act. Compulsory / pre-mature retirement results in removal from service. On a plain reading thereof the remedy of approaching the Tribunal would be available to an employee compulsorily retired not by way of penalty under the School Act but for the reason of it being so in public interest.

• EXCISE

Gujarat High Court

Dharmesh Silk Mills Pvt. Ltd v. Union of India (UOI) and Anr. (Decided on 15.04.2010) MANU/GJ/0189/2010

Appeal - Concurrent findings of fact - Section 35G of the Central Excise Act, 1944 - During search, double set/parallel Central Excise Invoices were recovered from the Factory premises of the Appellant, which was admitted by the Director - Impugned goods were clandestinely removed without accounting for the same in the statutory record and without payment of Duty - Order passed by Adjudicating Authority for confirmation of demand and imposition of penalty, was upheld by Commissioner (Appeals) - Whether the Order of the Tribunal suffers from any Legal infirmity?

Held, the Director of the Appellant had admitted recovery of parallel invoices for clandestine removal. The statements of traders pointed to clandestine receipt of impugned goods without payment of duty under the cover of parallel Central Excise invoices. It is a settled legal position that the High Court cannot interfere with the concurrent findings of facts based on pure appreciation of evidence, even if it was possible to take a different view unless such concurrent findings are patently perverse or based on manifest misreading of any legal provision so as to give rise to a substantial question of law. Therefore, in the face of the findings recorded by the Tribunal, after appreciation of the evidence on record, it was not possible to state that the impugned order of the Tribunal suffers from any legal infirmity so as to warrant interference. Therefore, no substantial question of law arises for consideration. Hence Appeal dismissed.

• CRIMINAL

Karnataka High Court

H. Ragavendra Rao v. State of Karnataka (Decided on 20.05.2010)

Anticipatory Bail - Petition under Section 438 of CrPC to grant anticipatory bail for the offence under Section 13 of PC Act, 1988 and Section 409 r/w 149 of IPC - Alleged misappropriation of public money by Chief Officer, Town Municipal Council - Whether custodial interrogation of the Petitioner necessary?

Held, the Court said that there is no dispute that Petitioner was awarded contract of laying the roads. The work of laying roads was shifted to other area as per directions of the accused and he has carried out the other work for which he has received money. The investigation is under way and during investigation these contentions will have to be enquired into and ultimately it is for I.O. to form an opinion and file final report. Having regard to the fact that the custodial interrogation of the Petitioner is found necessary in the case, no such direction can be issued. Petition dismissed.

• Customs

Punjab & Haryana High Court

Om Udyog v. Union of India (UOI) and Ors. (Decided on 14.05.2010) MANU/PH/0555/201

Detention of goods - Validity - Petitioner sought clearance of impugned imported goods for home consumption on payment of import duty, which was physically verified by Departmental Officers and samples were taken for the purpose of making assessment of duty - Thereafter, the goods were detained for about three months - Appellant was suffering heavy demurrage on account of detention of consignment - Whether Detention of goods was effecting the lawful importer and fair procedure?

Held, detention of goods seriously affects the rights of a lawful importer and fair procedure being constitutional mandate, no authority can plead unlimited power of detention for its own incompetence as a justification beyond reasonable period. Exercise of power of detention requires recording of reasons. In the instant case impugned goods were not prohibited goods. Further, it was not a case where duty assessed under Section 17 or 18 of the Customs Act, 1962 has not been paid. Therefore, detention of goods for months cannot be justified. Hence Petitions allowed.

• Constitution

Bombay High Court

Anasari Ziyaur Rehman Naimoor Rehman v. Mahatma Gandhi Vidyamandir's Samajshri Prashantdada Hiray College of Pharmacy and Ors.

and

Ashish Gokul Sonje v. Kalyani Charitable Trust's R.G. Sapkal College of Pharmacy and Ors. (Decided on 07.05.2010) MANU/MH/0504/2010

Eligibility - Admission to second year Pharmacy Degree Course - Eligibility criteria implementing Regulation 15 of the Education Regulations 91 of Pharmacy Council of India - Challenged - Whether eligibility criteria for admission to said course arbitrary and discriminatory in nature?

Held, State of Maharashtra has taken conscious decision of implementing the said Regulation 15 in so far as admission directly to the Second Year of the Degree Course is concerned. The said decision, has been taken by the State Government taking all the relevant factors into consideration. Therefore, in so far as State of Maharashtra is concerned, if a student is interested in direct admission to the Second Year of the Degree Course, he would have to pass Diploma Examination with First Class in a single attempt. It was held that requirements as prescribed by Regulation 15 does not make the said Regulation 15 arbitrary, unreasonable and discriminatory as is sought to be contended on behalf of the Petitioners on the grounds urged by the Petitioners. The said Regulation 15 prescribes the standard, which a student would have to achieve for being admitted directly to the Second Year of the Degree Course. A student who secures admission through the said process and who completes Pharmacy Degree would obviously have better prospects than a student who is less meritorious and who has completed his Degree Course in Pharmacy. Court held there is no question of the said Regulation 15 having effect of depriving an equal opportunity to any student from Maharashtra in the matter of employment. In fact, the said Regulation 15 operates towards academic excellence. Thus, there is no merit in any of the above Petitions. Therefore, Petitions dismissed.

Tribunal

• Direct Taxation

ACIT v. Shri Dinesh K. Mehta HUF(ITAT- Mumbai) (Decided on 30.04.2010) MANU/IU/0146/2010

Speculative transaction - Deduction disallowed - Section 43(5) of Income tax Act, 1961 - Assessee - HUF engaged in business of dealing in shares and securities - In P&L Account debited loss on account of Nifty hedging transactions. Assessing Officer treated transaction of derivatives trading in the form of purchase of Nifty futures as speculative transaction - CIT(A) decided in favour of Assessee - Hence present Appeal - : Whether transactions in derivatives and futures can be treated as business (hedging) transactions and not speculative transactions for the relevant assessment year?

Held, the Tribunal reversed the CIT (A) decision holding that Special Bench Kolkata in the case of Shree Capital Services Ltd., 121 ITD 498 (Kol) held that amendment in Section 43(5) clause (d) w.e.f 01.04.2006 referred to in CIT Vs. SSKI Investors Pvt. Ltd. is not clarificatory and therefore not retrospective in operation.

As regards applicability of Circular No. 23, dated 12.09.1960 relied on by Assessing Office and its applicability denied by Assessee, the Court held the value and volume of a dealer or investor holding hedging transactions should be in equal proportion and hedging transactions can never be in excess. It is further a condition that hedging transaction should be in respect of very same script held by an Assessee as inventory in the business of stocks and shares. In the present case, the Assessing Officer has not gone by script-wise tally but has gone by value of overall inventory. To this extent, the Assessing Officer has been very reasonable. Therefore said Circular was very much relevant and applicable in the case of the Assessee.

However with regard to the plea of the Assessee that to the extent of the value of inventory held by the Assessee on a particular day, the loss in purchase of Nifty Futures should not be considered as speculative while working out the loss was accepted. To that extent, plea of the Assessee was accepted and the Assessing Officer was directed to work out speculation loss by taking excess of the Assessee's position in forward market over actual stock in ready market and to work out the speculative loss proportionately.

• INDIRECT TAXATION

Service Tax

Home Solution Retails Ltd v. UOI & Ors. (CESTAT - New Delhi) (Decided on 18.05.2010) 

Service Tax Liability - SECTIONS 65(105)(ZZZZ) and 76 - FINANCE ACT, 1994 - Renting of immovable property to be used for commercial / business purposes - Instant Writ Petition challenges Section 65(105)(zzzz) of the Finance Act, 1994 - Amendment has been introduced to Section 65(105)(zzzz) & 76 by virtue of the Finance Act, 2010 - Whether Assessee was to pay service tax liability even after the amendment?

Held, there shall be no recovery of service tax from the petitioner in respect of renting of immovable property alone whereas any other service in relation to such renting, service provider would be liable to pay service tax on such service.

Excise

Ravi Steel Industries v. CCE, Mumbai-III (Decided on 02.03.2010) MANU/CM/0083/2010

Limitation ? Extended period ? Section 11A(1) of the Central Excise Act, 1944 ? Demand was raised invoking extended period of Limitation alleging suppression of facts on the ground that the processed fabrics were manufactured and cleared by the Appellant to the merchant-manufacturers were grossly undervalued the actual procurement prices - Whether extended period can be invoked where allegation of suppression of facts has not been specifically attributed to the Appellant in the Show Cause Notice?

Held, Show Cause Notice alleged that the Appellant withheld vital information in respect of the goods manufactured and cleared by them with regard to the price of the grey fabrics. However, the Department failed to established a nexus between such conduct of the merchant-manufacturers and the knowledge of the Appellant so as to make out a case of withholding of vital information against the Appellant. Therefore, extended period cannot be invoked where allegation of suppression of facts has not been specifically attributed to the Appellant in the Show Cause Notice. Therefore, demand held as time-barred. Impugned Order set aside. Hence Appeal allowed.