SUPREME COURT

• EXCISE LAWS

Indian Oil Corporation Ltd. v. Commissioner of Central Excise, Vadodara (Decided on 22.10.2010) MANU/SC/0883/2010

Excise Duty - Concessional Rate - Section 35L(b) of the Central Excise Act, 1944 - Customs, Excise & Gold (Control) Appellate Tribunal dismissed appeal filed by Appellant/Assessee, denying it benefit of concessional rate of Excise duty under Notifications No. 5/98-CE and 5/99-CE - Whether Appellant was entitled to claim concessional rate of Excise duty under the said Notifications

Held, benefit of concessional rate of duty extends only to that variety of kerosene that: (i) has a smoke point of 18mm or more, and (ii) is ordinarily used as an illuminant in oil burning lamps - It is manifest that these two conditions are conjunctive, and therefore, the twin conditions need to be satisfied in order to avail of concessional rate of duty - Assessee cleared kerosene manufactured by it to industrial consumers would entail that the Assessee cannot claim benefit of Notifications No. 5/98-CE and 5/99-CE . Court upheld impugned order. Appeal Dismissed.

• CONSTITUTIONAL LAWS

All India Judges Association and Ors. v. Union of India and Ors. (Decided On 18.10.2010) MANU/SC/0873/2010

Non-Compliance of the Order - Article 32 of the Constitution of India, 1950 - This Court had directed requisite information to be supplied in prescribed formats to Monitoring Committee for being placed before the Court - 9 States have not given requisite information even after lapse of 3 months from order - Hence the Application

Held Court directed Chief Secretaries of States of Goa, Kerala and Tamil Nadu to remain present in Court on 15th November, 2010; if requisite information is not received till then . Granted one more opportunity to remaining non-compliant States to supply inputs in said formats failing which this Court will have no option but to summon the Chief Secretary of the concerned State . Matter adjourned on 15th November, 2010.

• DIRECT TAXATION

Brij Lal and Ors. v. Commissioner of Income Tax, Jalandhar (Decided on 21.10.2010) MANU/SC/0878/2010

Computation of Total Income - Levy of Interest - Sections 154, 234A, 234B and 234C and Chapter XIX-A of the Income Tax Act, 1961 - Settlement Commission invoked Section 154 of Act and Settlement Commission waived/reduced interest chargeable under Sections 234A and 234B - Hence the Appeal - Whether Section 234B applies to proceedings of Settlement Commission under Chapter XIX-A of Act

Held, special procedure under Sections 245C and 245D in Chapter XIX-A shows that special type of computation of total income is engrafted in the said provisions which is nothing but assessment which takes place at Section 245D(1) stage . However, in that computation, provisions dealing with regular assessment, self-assessment and levy and computation of interest for default in payment of advance tax, etc. are engrafted. Sections 234A, 234B and 234C are applicable to proceedings of Settlement Commission under Chapter XIX-A of Act to above extent.

Levy of Interest - Sections 154, 234 B Of Income Tax Act, 1961 - If Section 234B applies to proceedings of Settlement Commission under Chapter XIX-A of Act; what is the terminal point for levy of such interest

Held, Expression "interest" in Section 245(6A) fastens liability to pay interest only when tax payable in pursuance of an order under Section 245D(4) is not paid within specified time and which levy is different from liability to pay interest under Section 234B or under Section 245D(2) - Consequent upon it, terminal point for levy of interest under Section 234B would be up to date of Order under Section 245D(1).

Concluded Proceeding - Section 154 of Income Tax Act, 1961- Whether Settlement Commission could reopen its concluded proceedings by invoking Section 154 of Act so as to levy interest under Section 234B, though it was not so done in original proceedings

Held, Like ITAT, the Settlement Commission is a quasi-judicial body. Under Section 254(2), the ITAT is given the power to rectify but no such power is given to the Settlement Commission. Thus, Settlement Commission cannot re-open its concluded proceedings by invoking Section 154 of Act so as to levy interest under Section 234B, particularly, in view of Section 245D . Appeal Disposed of

Dr. V.N. Shri khande v. Anita Sena Fernandes (Decided On 20.10.2010) MANU/SC/0868/2010

Consumer - Medical Negligence - Discovery Rule - Cause of Action - Sections 12, 17, 18, 22 and 24A of the Consumer Protection Act,1986 - National Consumer Disputes Redressal Commission reversed order of Maharashtra State Consumer Disputes Redressal Commission dismissing complaint of alleged negligence on part of Appellant while performing surgery on Respondent, as barred by limitation and remitted case for disposal on merit - Hence the Appeal - Whether complaint filed by Respondent was within limitation

Held, any person of ordinary prudence, who may have suffered pain and discomfort after surgery would have consulted the concerned surgeon or any other competent doctor and sought his advice but Respondent did nothing except taking some pain killers. Respondent has not explained as to why she kept quite for about 9 years despite pain and agony. Long silence on her part militates against bona fides of Respondent's claim for compensation and Discovery Rule cannot be invoked for recording a finding that cause of action accrued to her in November, 2002 . Court set aside impugned order and dismissed complaint of Respondent .Appeal Allowed.

• SERVICE LAWS

Girjesh Shrivastava and Ors. v. State of M.P. and Ors. (Decided on 22.10.2010) MANU/SC/0888/2010

Selection and Appointment of Ex-Servicemen as a Reserved Category - with the grave irregularity of allowing near relations to appear in the selection process-Whether the equities were properly balanced in the exercise of discretion by the High Court or not?

Held, that equities were not properly balanced in the exercise of discretion by the High Court. In Mehagaon 5 ex-servicemen had been appointed out of a total of 9 applicants while in Raun none had been so appointed. Since there was an issue with respect to the reservation policy of the ex-servicemen it would have been brought up as a service dispute and not in a PIL. The High Court should have with due respect displayed a little more restraint and balance before quashing a selection process in which the persons selected had already put in 3 years of service. Therefore, it would be incorrect to say that the advertisement was made to prevent ex-servicemen from applying. While deciding these issues the High Court should have been mindful of the fact that an order for cancellation of appointment would render most of the appellants unemployed. It had also given them a relaxation of 8 years with respect to their age. Now, if they lose their jobs as a result of High Court's order, they would be effectively unemployed as they cannot even revert to their earlier jobs in the Non-formal education centers, which have been abolished since then. This would severely affect the economic security of many families.

State of Orissa and Anr. v. Sangram Keshari Misra and Anr. (Decided on 19.10.2010) MANU/SC/0860/2010

Service - Misconduct - Rule 3 of the ASI (Conduct) Rules, 1968; Article 136 of the Constitution of India, 1950 - High Court quashed charge memorandum and corrigendum thereto issued by Appellant - Hence these Appeals - Whether High Court was justified in quashing charge memorandum and corrigendum thereto and in making adverse remarks against officers of State Government in regard to issuance of corrigendum

Held, logic of reasoning of High Court was that if corrigendum dated, 22nd June, 2002 had to be ignored as it was issued in violation of interim Order of stay dated, 12th June, 2002, the charge dated, 29th April, 2002 would be false and incorrect as admittedly first Respondent did not receive copy of Order in "Misc. case No. 238/2001", as there was no proceedings with the number "Misc. case No. 238/2001" . The Corrigendum reserved liberty to Government to take action in accordance with law . The Corrigendum was issued under bona fide impression that correction of typographical error in charge memorandum could be issued when there was order of interim stay, and, therefore, there was no intention to violate interim stay. High Court was justified in closing contempt proceedings but it was not justified in expressing disapproval and issuing warning to senior officers of State Government . Civil Appeal No. 8509/2003 dismissed - Civil Appeal No. 8510/2003 allowed in part by deleting adverse remarks against senior officers of State.

• TRUST AND SOCIETIES

Sant Lal Gupta and Ors. v. Modern Co-operative Group Housing Society Ltd. and Ors. (Decided On: 18.10.2010) MANU/SC/0859/2010

Trust and Societies - Expulsion of Members of Society - Delay - Section 36(3) of the Delhi Co-operative Societies Act, 1972 - High Court set aside order of financial Commissioner as well as of Registrar and approved expulsion of Appellants and other members from Society/Respondent - Whether if resolution sent by Society is not considered and decided finally by Registrar within a period of 6 months as required under Section 36(3) of Act it will be deemed to have been approved

Held, by provision under Section 36(3)legislation desired that resolution sent to Registrar by Society be considered and decided within a period of 6 months and that the resolution shall be effective from date of Approval 9. High Court has dealt with case without meeting any of the reasons given by Registrar. Resolution dated, 27th April, 1987 was forwarded by Respondent to Registrar for approval after an inordinate delay on 20th February, 1988. High Court in impugned Judgment itself has taken note that "several opportunities were given to the Society which finally submitted records on 19th September, 1995." Thus, delay was totally attributable to Respondent itself 26. Court set aside impugned order and restored order of Statutory Authorities. Appeal Allowed.

• CRIMINAL LAWS

Subrata Das v. State of Jharkhand and Anr (Decided On 22.10.2010) MANU/SC/0887/2010

Recalling of the witnesses and examining them afresh after the matter was remanded back for further enquiry under Sections 3(1) & (2) (vii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989- Whether the Magistrate erred in passing an order to determine if any prima facie case was made out against the accused persons in the instant case?.

Held, that the matter which had been remanded back to the Chief Judicial Magistrate to hold a further enquiry where the direction did not necessarily oblige the Magistrate to record any further evidence in the case. The nature of the inquiry was in the discretion of the Magistrate which may or may not have included recording of further evidence on behalf of the complainant. The Magistrate without recording any further evidence in the matter could have reappraised the averments made in the complaint and the material already on record to determine whether a prima facie case was made out against the accused persons.

Magistrate in the instant case summoned the witnesses and examined them afresh. He may have gone beyond what was legally necessary to do but that is no reason to hold that the recording of evidence by the Magistrate as a part of the further enquiry directed by the High Court would vitiate the proceedings before him or the conclusion drawn on the basis of any such enquiry. So long as the Magistrate was satisfied that a prima facie case had been made out, he was competent to issue summons to the accused. And all the rest alleged error sought to be pointed out by the Appellant was not of a kind that would persuade to interfere with the proceedings.

Rameshbhai Mohanbhai Koli and Ors. v. State of Gujarat (Decided on 20.10.2010) MANU/SC/0871/2010

Criminal - Conviction - Circumstantial Evidence - Hostile witness - Section 302 read with Section 34 of the Indian Penal Code, 1860; Section 135 of the Bombay Police Act, 1951 - Appellants were convicted for offence under Section 302 r/w 34 IPC and Section 135 of Bombay Police Act - Hence the Appeal - Whether High Court was justified in confirming conviction and sentence imposed by Trial Court when all eye-witnesses did not support the case of prosecution as against Appellants and whether Courts below were justified in convicting and awarding life sentence based on circumstantial evidence

Held, recovery of blood stained loan form application bearing name and address of Appellant no. 1 from scene of offence and serological report which opines the blood to the presence of A-1 at the scene of offence. Even though the panch-witness P.W.35, has turned hostile to the prosecution; the spot panchnama has been cogently and convincingly proved through testimony of Investigating Officer P.W.160. Prosecution has established its case. Court upheld impugned orders. Appeal Dismissed.

• PROPERTY LAWS

Sadaram Suryanarayana and Anr. v. Kalla Surya Kantham and Anr. (Decided on 22.10.2010) MANU/SC/0886/2010

Will extracted of the Testatrix an absolute bequest as unequivocal- Whether there is any conflict between absolute bequest of the first part of clause 6 of the Will and the second part of the said clause?

Held- That there is no real conflict between the absolute bequest which the first part of clause 6 of the Will makes and the second part of the said clause. It deals with devolution of what and if at all anything that remains in the hands of the legatees. The two parts of clause 6 operate in different spheres where the former one vesting absolute title upon the legatees with rights to sell, gift, mortgage etc. and the later one regulating devolution of what may escape such sale, gift or transfer. The latter part is redundant by reason of the fact that the same was repugnant to the clear intention of the Testatrix in making an absolute bequest in favour of daughters. It could be redundant also because the legatees exercised their rights of absolute ownership and sale thereby leaving nothing that could fall to the lot of the next generation females or otherwise. All the stipulation made in the second part of clause 6 did not in the least affect the legatees being the absolute owners of the property bequeathed to them. The corollary would be that upon their demise the estate owned by them would devolve by the ordinary law of succession on their heirs and not in terms of the Will executed by the Testatrix.

• SALES TAX LAWS

Bhai Jaspal Singh and Anr. v. Assistant Commissioner of Commercial Taxes and Ors. (Decided on 22.10.2010) MANU/SC/0885/2010

Consideration to the meaning of the expression 'Investment' under West Bengal Sales Tax Act- whether the word "investment" requires to be understood as the investment made by a Small Scale Industrial Unit after giving depreciation on plant and machinery?

Held, that the expression "investment" must be understood according to its common business and commercial usage. In the Notification issued by the State Government and the Rules framed, the requirement was that the investment made by the dealer in plant and machinery in the Small Scale Industrial Unit should would have been less than Rs 5 lakhs. Money spent on upgrading or replacing machinery is investment that would increase the productivity of the machinery and consequently generate further income thus it would be equivalent to acquiring of commodities that generate further income. The expression "investment" in plant and machinery is not subject to the impact of depreciation in the value of plant and machinery. Since the Assessee's investment was more than Rs 5 lakhs before the periods in question and since the investment continues to remain unchanged, the Assessee would not be entitled to get exemption from payment of sales tax either under the Rules or under the notification.

HIGH COURTS

• INSURANCE LAW

DELHI HIGH COURT

Mohd. Arif v. Employees State Insurance Corp. (Decided on 25.10.2010) MANU/DE/2768/2010

Consideration to definition of manufacturing process defined under Section 2(k) of the Factories Act, 1948 -whether by the provisions of section 2(k)of the said Act it means that hotel of the appellant was involved in a manufacturing process?

Held, by applying the principles laid down by the Bombay High Court and Hon'ble Supreme Court to the facts of this case it was derived that the hotel/lodging house belonging to the appellant was using a refrigerator with the aid of electricity. That the said hotel was engaged in the manufacturing process for the purpose was brought by the respondents to cover the said hotel under the provisions of the Act within the definition. Therefore, the order passed by the ESI Court is set aside and the appeal filed by the appellant is allowed.

• SERVICE LAWS

DELHI HIGH COURT

Delhi Subordinate Services Selection Board and Anr. v. Sanjay Kumar and Ors. (Decided on 25.10.2010) MANU/DE/2770/2010

Accountability of sustainability and Objectivity of the selection process of Fire operators- whether the Chairman of DSSSB had role in the driving test which was outsourced by the Board?

Held, Chairman of DSSSB had no role in the driving test which was outsourced by the Board to be conducted at the Institute of Driving, Training and Research. That a candidate obtained very high marks at a written test and an endurance test but failed at the driving test could not be inferred as malice. 50 persons who were selected and appointed as Fire Operators by December, 2004 none of them had been impleaded as a respondent in the original applications; therefore it was sufficient to state that having once secured appointment and accrued right in favour of the said 50 persons, those rights could not be taken away behind their back.

Mahatma Phule Krida Prasarak Mandal and The Head Master Savitribai Phule Prashala v. Smt. Sumati Tukaram Kashid alias Sumati Vijay Borade, The Education Officer Secondary Section Zilla Parishad and The Presiding Officer Addl. School Tribunal (Decided on 21.10.2010) MANU/MH/1318/2010

Challenge of the order passed by the School Tribunal for continuity of service and full back wages- Whether the termination of Respondent No.1 from service within two years from the appointment order can be said to be legal?

Held, the petition in the instant case be dismissed because there was no merit in submission of petitioner. There is no material on record to indicate that the behaviour and the work of respondent No.1 was unsatisfactory. Neither there was a case for interference to be made out by nor there were any error of law apparent on the face of the record.

F. Arokiamary v. District Educational Officer, St. Josweph Higher Secondary School (Decided on 20.10.2010) MANU/TN/1991/2010

Subsistence allowance for the period of suspension in compliance with Rule 17 of the Tamil Nadu Recognized Private Schools (Regulation) Rules, 1974-Whether the appellant was entitled to full salary for the period of suspension?

Held, in the absence of any valid order extending the period of suspension beyond the initial period of two months, the petitioner was entitled for full salary and the appellant had been paid 50% of the salary as subsistence allowance during the period of suspension and she was also being continuously paid subsistence allowance-In such view of the matter, directions given to second Respondent to continuously pay subsistence allowance to the appellant at the rate of 50% of her salary till the conclusion of the disciplinary proceedings and the period of suspension be regulated based upon the final orders that may be passed in the disciplinary proceedings initiated against the appellant.

• PROPERTY LAWS

BOMBAY HIGH COURT

Special Land Acquisition Officer and Executive Engineer v. Confire de Monte Peidade of Holy Spirit Church (Decided on 21.10.2010) MANU/MH/1316/2010

Reference under Section 18 of the Land Acquisition Act and compensation of Rs.16,500/- for the trees against the reduced compensation of Rs.48/- per square meter-Whether the Reference Court was justified in fixing the market rate of the acquired land at the rate of Rs.48/- per square meter after partial modification?

Held, the Respondent was entitled to compensation at the rate of Rs.48/- per square meter because the market rate of the acquired land was fixed at the rate of Rs.48/- per square meter. The respondent was also held entitled to compensation at Rs.16,300/- in respect of 11 coconut trees and the respondent was also entitled to all the statutory benefits under the Act.

• FAMILY LAWS

BOMBAY HIGH COURT

Mrs. Sabah Sami Khan v.Adnan Sami Khan (Decided on 21.10.2010) MANU/MH/1319/2010

Application for residence where an alternative residential premises provided to the aggrieved party under Section 19(1)(f) D.V. Act - Whether wife would not be entitled to insist upon residing in the shared household and not be evicted or excluded?

Held, that the order passed by the 2nd Family Court, Mumbai requires to be modified. Once an offer made and was seen to be a reasonable offer, the wife would not be entitled to insist upon residing in the shared household only and not be evicted or excluded therefrom. Offer by husband for her separate residence or their flat at 203, Ankita Apartments, Versova, Andheri, Mumbai, was seen to be reasonable and, therefore, accepted. Petitioner-wife would be entitled to choose to reside in either of the aforesaid premises. The husband and his relatives should not enter upon or disturb the occupation, use and enjoyment of the Petitioner-wife in the aforesaid premises. The Respondent-husband should not sell, alienate, encumber or otherwise create any third party rights or renounce the title claimed by him in the flats on the 13th and 14th floors of Oberoi Sky Garden, Lokhandawala Complex, Andheri, Mumbai, until the final disposal of their matrimonial dispute.

• INTELLECTUAL PROPERTY RIGHTS

BOMBAY HIGH COURT

Ferring Pharmaceuticals Pvt. Ltd. v. Sun Pharmaceuticals Industries Ltd. (Decided on 19.10.2010) MANU/MH/1382/2010

Claim for perpetual injunction and relief of damages and rendition of accounts under provisions of Section 134 (2) of the Trade Marks Act, 1999 -Whether Trial Court had territorial jurisdiction to entertain the Suit for infringement of Trade mark?

Held, that the order passed by the Trial Court  in which it was held that the Court has jurisdiction to entertain the suit does not call for any interference. It appeared on perusal of the plaint that details regarded the accrual of cause of action. It was also noted that it was one of the manufacturing units of Plaintiff. Respondent was situated at Ahmednagar and as per the provisions of Section 134 of the Trade Marks Act, 1999, suit was presented before the Court at Ahmednagar. Petition presented by the Petitioner did not have merit in any consideration.

• ELECTION LAWS

MADRAS HIGH COURT

All Media Journalists Association, rep. by its President, P.G. Sathyalaya Ramakrishnan v. The Chief Election Commissioner, Election Commission of India and The Chief Electoral Officer, The Election Commission, The State Government of Tamil Nadu (Decided on 21.10.2010) MANU/TN/1990/2010

System of enrollment in the election process was questioned applying Rule 31 of the Registration of Electors Rules, 1960- Whether Court can substitute a different mode of preparation of electoral rolls of the graduate voters for election of members of Legislative Council?

Held, that Rule 31 of the Registration of Electors Rules, 1960 provides the procedure for preparation of electoral rolls for the purpose of graduates' and teachers' constituencies. Since it had not been disputed by the petitioner that the respondents were adopting the procedure other than the one prescribed, and fixing the date for submission of application and registration as graduate voters, therefore, this Court could not substitute a different mode of preparation of electoral rolls of the graduate voters for election of members of Legislative Council for the Graduate Constituencies. The petitioners were at liberty to move the appropriate authority for the change of mode and for any other method of preparation of electoral rolls. No relief can be granted in this petition and was dismissed.

• TRIBUNALS

Direct Taxation

ITAT,  Mumbai

Income Tax Officer v. Techno Shares and Stocks Ltd. (Decided on 20.10.2010) MANU/IU/0536/2010

Application filed by the revenue against the order of Tribunal on depreciation on BSE Membership card- whether depreciation allowed to the Assessee be rectified being legal mistake?

Held, that the issue involved in the present case is no more res integra and was covered against the revenue and in favour of the Assessee by the judgment of the Hon'ble Supreme Court in Techno Shares & Stocks Ltd. v. CIT since reported in (2010) 327 ITR 323 (SC) wherein it has been held that on the facts and circumstances of these cases the Tribunal was right in holding that depreciation was allowable on the cost of the membership card under section 32(1)(ii) of the 1961 Act. Following the respective authoritative pronouncement of the Hon'ble Apex Court, the Miscellaneous Application filed by the revenue was rejected.

ITAT, Cochin

Smt. Baby Antony rep by L/hr. of Late ShriVarkey Antony v. The Income Tax Officer (Decided on 21.10.2010) MANU/IN/0020/2010

Adjournment application on non-representation on the date of hearing - whether Adjournment was a matter of right or not?

Held, that after perusal of the material on record it was derived that adjournment was not a matter of right. However, the assessee had supported its adjournment application of being unable to attend the hearing, with a medical certificate with the statement of the Learned AR that he went under treatment for acute gastritis from 27.4.2010 to 1.5.2010 and advised rest for that period. It can be viewed that the Assessee was prevented by sufficient cause for being not present either in person or through the authorised representative on the date of hearing. Therefore in exercise of the power and the procedure laid down under Rule 24 of the Appellate Tribunal Rules, 1963 ITAT restored the Assessee's appeal for hearing on merits. The Registry was directed to fix the hearing of the appeal in the regular course.