SUPREME COURT

• ELECTION LAWS

Desiya Murpokku Dravida Kazhagam and Anr. Vs. The Election Commission of India (Decided on 18.04.2012) MANU/SC/0313/2012

Recognition as a State Party - Present writ Petition filed wherein challenge was made to the amendment which mandates that in order to be recognized as a State party in the State, it would have to secure not less than 6% of the total valid votes polled in the State and should also have returned at least two members to the Legislative Assembly

Held, The evolution of the law relating to the criteria for a political party to be recognized as a State Party clearly indicated that the Election Commission, in its wisdom, was of the view that in order to be recognized as a political party, such party should have achieved a certain bench-mark in State politics. The Election Commission had set down a bench-mark which was not unreasonable. In order to gain recognition as a political party, a party had to prove itself and to establish its credibility as a serious player in the political arena of the State. Once it succeeded in doing so, it would become entitled to all the benefits of recognition, including the allotment of a common symbol. There could not be any difference of opinion that, as was laid down in Union of India v. Association, a voter has the right to know the antecedents of the candidates, a view which was later reiterated by this Court in but such right has to be balanced with the ground realities of conducting a State-wide poll. In the instant case, the Election Commission had kept the said balance in mind while setting the bench-marks to be achieved by a political party in order to be recognized as a State Party and become eligible to be given a common election symbol. Writ Petitions dismissed.

• INSURANCE LAWS

United India Insurance Co. Ltd. Vs. Laxmamma and Ors. (Decided on 17.04.2012) MANU/SC/0314/2012

Liability - Whether the Appellant/Insurer is absolved of its obligations to the third party under the policy of insurance because the cheque given by the owner of the vehicle towards the premium got dishonoured and subsequent to the accident, the insurer cancelled the policy of insurance?

Held, In the present case, owner of the bus obtained policy of insurance from the insurer for the period April 16, 2004 to April 15, 2005 for which premium was paid through cheque on April 14, 2004. The accident occurred on May 11, 2004. It was only thereafter that the insurer cancelled the insurance policy by communication dated May 13, 2004 on the ground of dishonour of cheque, which was received by the owner of the vehicle on May 21, 2004. The cancellation of policy having been done by the insurer after the accident, the insurer became liable to satisfy award of compensation passed in favour of the claimants. Appeal dismissed.

• CONSTITUTIONAL LAWS

Brij Mohan Lal Vs. Union of India (Decided on 19.04.2012) MANU/SC/0316/2012

Appointment of retired judges - Present writ Petition filed prayer was made requiring the Respondents to stop the scheme and policy of appointment of the retired District and Sessions Judges as ad-hoc judges of the Fast Track Courts in the State Judicial Services

Held, Keeping in view the constitutional duty, the constitutional rights of this country at large and with reference to the facts of a given case, this Court might be duty bound to amplify and extend the arm of justice. The argument that matters of policy as a rule, beyond the power of judicial review has to be dispelled in light of the consistent view of this Court. This Court would be required to take unto itself the task of issuing appropriate directions to ensure that Rule of law prevails and the constitutional goals are not defeated by inaction either when the law requires action or when the policy in question is so arbitrary that it defeats the larger public interest.

• CRIMINAL LAWS

State of Haryana Vs. Shakuntla and Ors. (Decided on 19.04.2012) MANU/SC/0315/2012

Conviction - Challenge thereto - Present Appeal filed against the order of the High Court wherein High Court upheld the conviction of Accused Nos 1 to 4,7 and 9 while acquitting Accused 5,6 and 8.

Held, In the instant case, the State had not been able to make out a case of exception to the settled principles of law. It was for the State to show that the High Court had completely fallen in error of law or that judgment in relation to these Accused was palpably erroneous, perverse or untenable. None of these parameters were satisfied in the Appeal preferred by the State against the acquittal of three accused. Appeals dismissed

HIGH COURTS

• CRIMINAL LAWS

DELHI HIGH COURT

Krishan Vs. R.K. Virmani, AIR Customs Officer (Decided on 24.04.2012) MANU/DE/1767/2012

Framing of charges - Challenge thereto - Present Petition filed wherein Petitioner sought setting aside order whereby lower Court ordered framing of charges against Petitioner under Section 135A of the Customs Act, 1962

Held, The confession of the Co-Accused is admissible only under Section 30 of Evidence Act, 1872. One of the essential requirements of the said provision is that the two Accused should be tried jointly. Since the confession of Co-Accused was not admissible as he was not being tried jointly and besides this piece of evidence, there was no other evidence, no charge could be framed against Petitioner. Petition disposed of accordingly.

• NARCOTICS

DELHI HIGH COURT

Hazoor Singh Vs. State (Decided on 23.04.2012) MANU/DE/1769/2012

Conviction - Challenge thereto - Present Appeal filed against judgment and order passed by Additional Sessions Judge convicting the Appellant for offence punishable under Section 15 of the NDPS Act.

Held, In the present case, non-production of the sample, the case property being unsealed and the contradictions in the testimony of witnesses dent the prosecution case. The prosecution had not been able to prove its case beyond reasonable doubt against the Appellant. Thus, the impugned judgment was set aside and Appellant was acquitted of the charges under Section 15 of the Act. Appeal disposed of.

• CIVIL LAWS

BOMBAY HIGH COURT

Oscar Mascarenhas Vs. Collin Joseph Mascarenhas (Decided on 20.04.2012) MANU/MH/0525/2012

Suit for declaration - Present suit filed against Respondent Nos.1 and 2 seeking declaration that a sale deed, deeds of rectification and deed of gift purported to have been executed by him in favour of Defendant Nos 1 and 2 be declared null and void

Held, The finding recorded by the lower Authority was patently unsustainable in law. Merely because the original Plaintiff was not in a very sound state of mind in the year 2010, no inference could be drawn that the Plaintiff was mentally imbalanced in September 2006 when the Will was executed by the Original Plaintiff in favour of the Petitioner. This was a matter which required evidence to be led by the parties. Hence, the impugned order was liable to be quashed and set aside.

• EDUCATION LAWS

BOMBAY HIGH COURT

Anmol Shikshan Prasarak Mandal's Martendsheth Sonar DEd. College Vs. State of Maharashtra & Ors. (Decided on 23.04.2012) MANU/MH/0536/2012

Grant of approval - Present Petition filed wherein Petitioners prayed for a direction to be issued to Respondent No.1 to forthwith grant approval to Petitioner's college in the light of recognition by the Concerned Authority

Held, From the stand taken by the Concerned Authority, it was evident that no obvious relaxation could be given by them in exercise of the powers under Regulation 12 of the NCTE Regulations on case to case basis - institution wise - but it could do so to redress the problem in respect of any "class or category" of institutions in the concerned State or Union Territory. As a result Petitioner could not be permitted to start the college or admit the students to the course which inevitably would prejudice the interests of those students. Petition disposed of.

TRIBUNALS

• DIRECT TAXATION LAWS

ITAT MUMBAI

M/s. Nawany Corp. (I) Ltd. Vs. The Income Tax Officer (Decided on 20.04.2012) MANU/IU/0483/2012

Reassessment - Challenge thereto - Present Appeal filed against order of Commissioner of Income Tax (Appeals) under Section 143 read with Section 147 of the Income Tax Act,1961

Held, based on "reasons recorded" , it could not be held that Assessing Officer could acquire jurisdiction for reopening case under Section 147 of the Act. Accordingly, on this ground alone the proceedings under Section 147 of the Act was quashed. Further Assessee's case was also directly covered under Berger Paints V. ACIT. Hence, Assessee's Appeal was allowed on additional grounds and merits of addition as had been challenged had been rendered academic which did not require any application.

ITAT CHANDIGARH

Shri Vinod Kumar Vs. The JCIT (Decided on 23.04.2012) MANU/IG/0088/2012

Addition - Challenge thereto - Whether the Commissioner of Income Tax (Appeals) has also erred in confirming the addition of Rs.6,90,561 under the head "Addition in Gross Profit" by invoking the provisions of Section 145(3) of the Income Tax Act,1961 without any base and reasons thereof?

Held, In the instant case, both the authorities below had categorically held that the Assessee did not maintain stock register of raw material, work in progress, consumable and finished products and, therefore, the necessary verification of the trading results could not be made. Furthermore, the GP ratio declared by the Assessee was on lower side as compared to GP rate of immediate preceding year. The assessee failed to give any plausible explanation regarding the fall in GP ratio at 2.40% particularly when the turn over had remained almost consistent as per past year. In the above premises, the Assessing Officer had correctly applied the provisions of Section 145(3) of the Act, and the CIT(A) was justified in confirming the act of the Assessing Officer in rejecting the book results.

Addition - Challenge thereto - Whether the CIT (A) has erred in confirming the addition of Rs. 1,85,000/ - under the head Disallowance u/s 40A(2)(b) of the Income Tax Act, 1961 without any base and reasons thereof?

Held, Both the Authorities below had held that the salary paid to Assessee's son was excessive and unreasonable for his services provided to the Assessee's business. However , both the authorities below had accepted this fact that Assessee's son was rendering services to the Assessee. Therefore, the disallowance u/s 40A(2)(b) of the Act could be made only to the extent the payment for the services was excessive or unreasonable vis-a-vis the market price of such services but what is essentially required was that the market price of these services is established and then amount paid in excess of such market price was to be disallowed. In the instant case, no such findings were given by the Assessing Officer as well as the CIT(A). Appeal partly allowed.

Addition - Challenge thereto - Whether the CIT(A) has erred in confirming the addition of Rs 3,09,114/ - under the head Disallowance u/s 43B of the Income Tax Act ,1961 without any base & reasons thereof?

Held, It was true that under the Income Tax Act , the payment of liability covered u/s 43B were liable to be paid before the due date of filing of the return as prescribed u/s 139(1) of the Act . There was no relevance with regard to the date of filing of the income tax return. Admittedly, the Assessee paid the amount in question on 8.11.2007 i.e. Before the due date of filing of return i .e. 15.11.2007, which was extended time for filing the return u/s 139(1) of the Act for the year under consideration. Appeal allowed

Addition - Challenge thereto - Whether the CIT(A) has erred in confirming the addition of Rs. 31,799/ under the head "Disallowance of Telephone expenses" without any base and reasons thereof .

Held, Assessee's Counsel had submitted that in the computation of income, the Assessee himself has disallowed 1/10t h out of telephone expenses, which came to Rs. 15,900/ -. He, therefore, submitted that the addition of Rs. (31,799/ - minus (- ) Rs . 15,900/ - ) = Rs. 15,899/ - may of sustained. There was substance in the above contention. Accordingly, the disallowance was reduced to Rs. 15,899/ -. Thus, the Assessee gets a relief of Rs. 15,900/ - under this head. Appeal partly allowed.