SUPREME COURT

• CRIMINAL LAWS

Huidrom Konungjao Singh Vs. State of Manipur and Ors. (Decided on 17.05.2012) MANU/SC/0458/2012

Detention order - Challenge thereto - Present Appeal filed against judgment and order passed by the High Court dismissing the Habeas Corpus Petition challenging the order of detention of Appellant's son passed by the District Magistrate under Section 3(2) of the National Security Act, 1980

Held, in the instant case the bail orders did not relate to the Co-Accused in the same case. Merely because somebody else in similar cases had been granted bail, there could be no presumption that in the instant case had the detenu applied for bail could have been released on bail. Thus, as the detenu in the instant case had not moved the bail application and no other Co-Accused, if any, had been enlarged on bail resorting to the provisions of Act was not permissible. Therefore, the impugned order of detention was based on mere ipse dixit statement in the grounds of detention and could not be sustained in the eyes of law. Appeal allowed.

• SERVICE LAWS

Registrar General, Patna High Court Vs. Pandey Gajendra Prasad and Ors. (Decided on 11.05.2012) MANU/SC/0444/2012

Jurisdiction - Present Appeal filed against the order rendered by the Division Bench of the High Court wherein the Notification/communication dismissing Respondent No.1 from service has been set aside

Held,In the present case, the recommendation of the Concerned Authority to dismiss the First Respondent from service was based on the findings in the enquiry report submitted by the enquiry officer pursuant to the departmental enquiry; his reply to the show cause notice; his ACR and other materials placed before it. The recommendation of the Standing Committee was approved and ratified by the Full Court. There was nothing on record to even remotely suggest that the evaluation made, firstly by the Concerned Authority and then by the Full Court, was so arbitrary, capricious or so irrational so as to shock the conscience of the Division Bench to justify its interference with the unanimous opinion of the Full Court. As regards the observation of the Division Bench on the reputation of the First Respondent based on his Annual Confidential Reports(ACR's) it would suffice to note that apart from the fact that an ACR did not necessarily project the overall profile of a judicial officer, the entire personal file of the Respondent was before the Full Court when a conscious unanimous decision was taken to award the punishment of his dismissal from service. In the very nature of such things, it would be difficult, rather almost impossible to subject such an exercise undertaken by the Full Court, to judicial review, save and except in an extra-ordinary case when the Court was convinced that some exceptional thing which ought not to have taken place had really happened and not merely because there could be another possible view or there was some grievance with the exercise undertaken by the Committee/Full Court. Appeal allowed

• CONSTITUTIONAL LAWS

State of M.P Vs. Rakesh Kohli and Anr. (Decided on 11.05.2012) MANU/SC/0443/2012

Constitutionality of provision - Challenge thereto - Whether or not the Division Bench of the High Court was justified in declaring Clause (d), Article 45 of Schedule 1-A of the Indian Stamp Act, 1899 which was brought in by the Indian Stamp (Madhya Pradesh Amendment) Act, 2002 as unconstitutional being violative of Article 14 of the Constitution of India

Held, While dealing with constitutional validity of a taxation law enacted by Parliament or State Legislature, the court must have regard to the following principles: (i) there is always presumption in favour of constitutionality of a law made by Parliament or a State Legislature (ii) no enactment can be struck down by just saying that it is arbitrary or unreasonable or irrational but some constitutional infirmity has to be found (iii) the court is not concerned with the wisdom or unwisdom, the justice or injustice of the law as the Parliament and State Legislatures are supposed to be alive to the needs of the people whom they represent and they are the best judge of the community by whose suffrage they come into existence (iv), hardship is not relevant in pronouncing on the constitutional validity of a fiscal statute or economic law and (v), in the field of taxation, the Legislature enjoys greater latitude for classification.

Further, said that had the High Court kept in view the above well-known and important principles in law, it would not have declared Clause (d), Article 45 of Schedule 1-Aof the Act as violative of Article 14 of the Constitution being arbitrary, unreasonable and irrational while holding that the provision may pass test of classification. The legislative idea behind Clause (d), Article 45 of Schedule 1-A was to curb tendency of transferring immovable properties through power of attorney and inappropriate documentation. Classification thus could not be said to be without any rationale. It had a direct nexus to the object of the 1899 Act. Appeal allowed.

• TRUSTS AND SOCIETIES

Maharashtra State Board of Wakfs Vs. Shaikh Yusuf Bhai Chawla and Ors. (Decided on 11.05.2012) MANU/SC/0423/2012

Formation of trust - Challenge thereto - Present Special Leave Petitions filed against the order of the High Court wherein the impugned judgment was the outcome of the challenge to the formation of the Maharashtra State Board of Wakfs

Held, In the present case, the difference between Trusts and Wakfs appeared to have been overlooked and the High Court had passed orders without taking into consideration the fact that the Charity Commissioner would not ordinarily have any jurisdiction to manage the Wakf properties. Hence, it would be in the interest of all concerned to maintain the status quo and to restrain all those in management of the Wakf properties from alienating and/or encumbering the Wakf properties during the pendency of the proceedings before this Court.

HIGH COURT

• SERVICE LAWS

DELHI HIGH COURT

Constable Vipin Kumar Vs. Union of India & Ors. (Decided on 17.05.2012) MANU/DE/2066/2012

Rejection of statutory Petition - Challenge thereto - Present Petition filed against the rejection of the statutory Petition filed under Section 117 of the BSF Act

Held, In the present case de-novo trial cannot be initiated in cases where the trial was initiated before the competent Court vested with the jurisdiction to conduct the trial, however, where subsequently the trial was vitiated on account of procedural or other irregularity the Accused was acquitted of the charges against him. Therefore, in the facts and circumstances, the Petitioner could not be tried and the matter could not be remanded to the Respondents to try the Petitioner again. Petition allowed.

• LABOUR AND INDUSTRIAL LAWS

DELHI HIGH COURT

Vijay Pal Vs. Management of M/s Panorma Export Pvt. Ltd. (Decided on 16.05.2012) MANU/DE/2069/2012

Entitlement for reinstatement - Present writ Petition filed against an Award passed by the Labour Court whereby the relief of reinstatement in service with back wages was denied to him even after coming to conclusion that his services had been illegally terminated by Respondent-Management

Held, Labour Court was not bound to give such reliefs in every case but refusal to grant the same could not be in an arbitrary manner, as had been done in the present case by the Labour Court by refusing these reliefs to the Petitioner workman without giving any reasons. Further it was not the case of the Respondent employer which was a private company that the appointment of the Petitioner was illegal for any reason or that there was no requirement of checkers any more. It was also not its case that the Petitioner was employed on temporary basis or as a daily wager, which was the position in most of the cases where the Supreme Court had awarded compensation only in lieu of the relief of re-instatement and back wages. Hence the award of the Labour Court in the present case to the extent it had declined the reliefs of reinstatement and back wages was not sustainable at all

• SALES TAX/VAT LAWS

BOMBAY HIGH COURT

M/s. Mahalaxmi Cotton Ginning Pressing and Oil Industries, Kolhapur Vs. The State of Maharashtra & Ors. (Decided on 11.05.2012) MANU/MH/0620/2012

Constitutionality of provision - Present Petition filed wherein an order of assessment was challenged and a mandamus was sought to recover from the vendor tax paid on goods of which a set off was claimed

Held, This case highlights the complexity of the issue with which both the legislature and tax administrators must grapple in devising a tax regime governed by the Value Added Tax. The legislature had performed a balancing exercise between the need on the one hand of ensuring the interests of the ultimate consumer by obviating a cascading tax burden and on the other hand, securing governance under rule of law principles which promote transparency and certainty while at the same time protecting the legitimate revenues of the State. The Value Added Tax regime has replaced a single point levy with a multiple point levy in which every dealer is a vital link in the levy and collection of tax. As the number of dealers has increased manifold, conventional systems of tax administration have to be replaced by web based electronic systems. The system which the administrator must devise must continuously evolve both with a view to simplify procedures and to make the process including that relating to beneficial provisions such as set off and refund objective and transparent. Hence, in the view which had been taken in these proceedings, the constitutionality of the provision of Section 48(5) of Maharashtra Value Added Tax,2002 was upheld.

• EDUCATION LAWS

BOMBAY HIGH COURT

Prof. Bandu Baburao Meshram Vs. Chairman, Board of Governors, Veermata Jijabai Technological Institute (Decided on 11.05.2012) MANU/MH/0632/2012

Selection process - Challenge thereto - Present writ Petition filed wherein Petitioners had prayed for order or direction restraining Respondent No.1 from holding the selection process for the post of Director by excluding them in the said selection process

Held, It was concluded in the present case that there was no infirmity in the constitution of Selection Committee by Respondent No.1 nor in the process followed by the Selection Committee regarding short listing of candidates or in the norm formulated for short listing the candidates and the assessment of the candidates on that basis. Further it was held that there was no infirmity in the selection process for the post of Director of Respondent No.1 by excluding the Petitioners on account of short listing. Petition dismissed

TRIBUNALS

• DIRECT TAXATION LAWS

ITAT BANGALORE

M/s. R.K. Foto Express & Studio Vs. The Income Tax Officer (Decided on 14.05.2012) MANU/IL/0099/2012

Condonation of delay - Grant of - Present Appeal filed against the order passed by the Commissioner of Income Tax (Appeals) wherein it did not condone the delay

Held, In the present case, it appeared that the Commissioner of Income Tax (Appeals) without rebutting the explanation given by the Assessee held in a slipshod manner that he was not satisfied with the reasons put forth by the Assessee for condoning the delay. The CIT(A) ought to have given the reasons for not accepting the explanation of the Assessee, which had not been done in the present case. Therefore, it was deemed appropriate to set aside this issue back to the file of CIT(A) for fresh adjudication in accordance with law, after providing due and reasonable opportunity of being heard to the Assessee. Appeal by Assessee allowed

Penalty - Challenge thereto - Present Appeal filed against the order of CIT(A) wherein it partly sustained the penalty which was levied by Assessing Officer (AO) under Section 271(1)(c) of the Income Tax Act, 1961

Held, It is well settled that quantum addition although not conclusive, but it is having a direct bearing in the penalty proceedings, inspite of the fact that these proceedings i.e., assessment proceedings and penalty proceedings are separate and independent proceedings. As had been pointed out that the issue on quantum had been sent back also to the file of the CIT(A) to decide the same afresh in accordance with law .Appeal by Assessee allowed.

ITAT DELHI

M/s Ericsson India Private Ltd. Vs. Dy. C.I.T (Decided on 11.05.2012) MANU/ID/0283/2012

Assessment - Challenge thereto - Present Appeal filed against the assessment order passed under Section 143(3) of the Income Tax Act, 1961 in pursuance to the directions of Dispute Resolution Panel under Section 144C(5) of the Act

Held, Keeping in view the decision rendered by the Delhi High Court in CIT v. EKL Appliances, it would be wrong to hold that expenditure should be disallowed only on the ground that these expenses were not required to be incurred by the Assessee. At the same time it had also to be seen that whether the price paid by Assessee was at arms length. Appeal partly allowed.