SUPREME COURT

• DIRECT TAXATION

Assistant Commissioner of Income Tax and Anr. v. Hotel Blue Moon (Decided on 02.02.2010) MANU/SC/0084/2010

Direct Taxation - Income Tax - Block Assessment - Procedure thereof - Issuance of notice whether mandatory or not - Section 143(3) read with Section 158BC and Chapter XIV-B of the Income Tax Act, 1961 - whether service of notice on the assessee under Section 143(2) within the prescribed period of time is a pre-requisite for framing the block assessment under Chapter XIV-B of the Income Tax Act, 1961?

Held, if an assessment is to be completed under Section 143(3) read with Section 158BC, notice under Section 143(2) should be issued within one year from the date of filing of block return. Omission on the part of the assessing authority to issue notice under Section 143(2) cannot be a procedural irregularity and the same is not curable and, therefore, the requirement of notice under Section 143(2) cannot be dispensed with.

• CONSTITUTION

G. Vallikumari v. Andhra Education Society and Ors (Decided on 02.02.2010) MANU/SC/0083/2010

Constitution - Restriction of applicability of specific statutory provisions to unaided minority institutions - Alleged statutory provisions ultra vires of Constitution - Whether

Section 8(2) of the Delhi School Education Act, 1973 being not applicable to aided religious/linguistic minority institutions and Section 12 of the Delhi School Education Act, 1973 in so far as it restricts its applicability to unaided minority schools are ultra vires of Constitution

Held, protection of the minorities is an article of faith in the Constitution of India. The right to the administration of institutions of minority's choice enshrined in Article 30(1) means `management of the affairs' of the institution. This right is, however, subject to the regulatory power of the State. Article 30(1) is not a charter for mal administration; regulation, so that the right to administer may be better exercised for the benefit of the institution, is permissible (Ratio in Lily Kurian Case applied). Therefore, Section 12 of the Act, which makes the provisions of Chapter IV of the Act inapplicable to unaided private recognized minority educational institutions is discriminatory except to extent of Section 8(2). In other words, Chapter IV of the Act except Section 8(2) is applicable to private recognized aided as well as unaided minority educational institutions and the concerned authorities of the education department are bound to enforce the same against all such institutions.

• INTELLECTUAL PROPERTY RIGHTS

Godrej Sara Lee Limited v. Reckitt Benckiser Australia Pty. Ltd. and Anr. (Decided on 29.01.2010) MANU/SC/0071/2010

Intellectual Property Rights - Designs - Cancellation of registration of designs by Controller of Designs, Kolkatta - Appeal against same - Jurisdiction of Delhi High Court to entertain said appeal - Section 19 of Designs Act, 2000

Held, the case of the appellant would fall under Section 19 of the Designs Act, 2000, where the High Court functions as the Appellate forum. The cause of action for the instant proceedings is most certainly the cancellation of the registered design of the appellant which happened in the State of West Bengal which gave the Calcutta High Court the jurisdiction to deal with the matter. The Delhi High Court, in our view, erred in holding that the cause of action had arisen within its local jurisdiction, whereas the jurisdiction of the High Court was on account of the cancellation of registration of the design and not on account of the impact thereof in any particular State.

HIGH COURT

• PROPERTY

Bombay High Court

Sushila Digamber Naik and Ors. v. Maharashtra Housing and Area Development Authority and Ors. (Decided on 04.02.2010) MANU/MH/0078/2010

Property - Re-development of property - Temporary Eviction of tenement for redevelopment - Majority of members of respondent No. 4 society including petitioner Nos. 10 to 19 issued consent letters in support of redevelopment of society - Authority issued order for Temporary Eviction of tenement for redevelopment - Same opposed to by Petitioners and Petitioner Nos. 10 to 19 who had earlier given consent withdrew same - Hence, present petition.

Held, 83% of the members granted their consent for the said redevelopment. Petitioner Nos. 10 to 19 have signed the said agreement as well as the declaration. The petitioners have not challenged the resolution for redevelopment passed by the society or the agreement with the developer in any Court. The petitioners have also not initiated any proceedings seeking cancellation/ withdrawal of the consent given by the petitioner Nos. 10 to 19 as far back as in the year 2003. If such withdrawals are taken cognizance of, the object of redevelopment of old and dilapidated buildings will never be achieved and will also encourage some of the members of societies to use it as a weapon to blackmail the developers. The belated withdrawal of consent by some members is, therefore, in consequential. Therefore, contentions raised by the petitioners are untenable and baseless and are rejected.

• SERVICE

Madras High Court

G. Dhanapal and Ors. v. The Secretary, All India Council for Technical Education and Ors (Decided on 27.01.2010) MANU/TN/0089/2010

Service - Promotion in service - Employer prescribing specific educational qualifications for promotion in service - Right of employer thereof - Whether Respondent-employer TNEB prescribing regular B.E. degree as requirement for promotion entitled to do so?

Held, respondent TNEB being an employer is entitled to interpret its own regulation within four corners of Law. No ground has been raised by the petitioner to demonstrate as to how this prescription in Clause 2 of letter dated 01.08.2009 is arbitrary or unreasonable. Only attempt of the petitioners is by stating that the qualification obtained by them by means of distance education cannot be stated to be not an appropriate qualification.

• CIVIL

Delhi High Court

Gotham Entertainment Group LLC and Ors. v. Diamond Comics Pvt. Ltd. (Decided on 08.12.2009) MANU/DE/3176/2009

Civil - Application to file documents in relation to suit - Mention of wrong provision in application - Inherent powers of Court - Section 151 of Civil Procedure Code, 1908 - Plaintiffs filed applications to file original documents and additional documents in relation to trademark infringement suit before Court - Defendants opposed same contending that applications are totally misconceived and could not have been filed under Section 151 CPC in the presence of the specific provision of Order 7 Rule 14 CPC - Whether Court has inherent power to consider an application wherein a wrong provision is mentioned

Held, under Section 151 CPC, the court has inherent power to consider an application wherein a wrong provision is mentioned. It cannot be an obstacle for granting the relief made out from the contents of the application.

• DIRECT TAXATION

Bombay High Court

Bhavesh Developers v. The Assessing Officer, The Commissioner of Income Tax and Union of India (UOI), though the Secretary, Ministry of Finance, Government of India (Decided on 12.01.2010) MANU/MH/0035/2010

Direct Taxation - Income Tax - Income escaping assessment for relevant Assessment Year - Issuance of Notice to reopen assessment proceedings - Reopening of assessment after expiry of 4 years - Condition precedent to exercise of jurisdiction thereof - Section 147 of Income Tax Act - Petitioner challenged notice issued by Respondent Revenue seeking to reopen assessment for relevant Assessment Year after expiry of 4 years - Hence, present petition - Whether issuance of notice by Revenue seeking to reopen assessment proceedings after expiry of 4 years is valid?

Held, the proviso to Section 147 stipulates that where an assessment has been made under Sub-section (3) of Section 143 or Section 147 for the relevant Assessment Year, no action shall be taken after the expiry of four years from the end of the relevant Assessment Year unless certain preconditions are fulfilled - These conditions are that the income chargeable to tax must have escaped assessment for such Assessment Year (i) by reason of the failure on the part of the Assessee to make a return in response to a notice issued under Section 147; or (ii) by the failure of the Assessee to make a return in response to a notice issued under Section 142(1) or Section 148; or (iii) to disclose fully and truly all material facts necessary for his assessment for that Assessment Year. In the present case, there being no failure of the Assessee to disclose fully and truly, all material facts necessary for assessment, the basic condition prescribed by the statute for the exercise of the power has not been fulfilled.