Calcutta High Court Quarterly Digest: July To September 2024

Arabul Islam vs The State of West Bengal 2024 LiveLaw (Cal) 154

M/s. Asian Hotels (East) Ltd. & Anr. Versus The Deputy Commissioner of State Tax & Ors. 2024 LiveLaw (Cal) 155

M/S. B.B.M. Enterprises Vs State Of West Bengal And Ors. 2024 LiveLaw (Cal) 156

M/s. Araha Hospitality Private Limited vs. Indian Railway Catering and Tourism Corporation Limited and others 2024 LiveLaw (Cal) 157

Peng Yongxin@ Umesh Yonjan Vs. State of West Bengal 2024 LiveLaw (Cal) 158

Vodafone Idea Limited Vs Commissioner Of Income Tax Citation: 2024 LiveLaw (Cal) 159

Accuhealth Solutions Private Limited Versus The State of West Bengal & Ors. Citation: 2024 LiveLaw (Cal) 160

Kotak Mahindra Bank Limited Vs Shalibhadra Cottrade Pvt. Ltd. And Ors. Citation: 2024 LiveLaw (Cal) 161

M/s Zillion Infraprojects Pvt Ltd Vs Bridge and Roof Co India Ltd Citation: 2024 LiveLaw (Cal) 162

Axis Bank Limited Versus Indian Cable Net Company Limited & Ors Citation: 2024 LiveLaw (Cal) 163

Government of West Bengal & Anr. Versus Essex Development Investments (Mauritius) Ltd. Citation: 2024 LiveLaw (Cal) 164

K2V2 Hospitality Llp Vs Limton Electro Optics Pvt. Ltd. And Ors. Citation: 2024 LiveLaw (Cal) 165

Future Market Networks Ltd. Vs Laxmi Pat Surana & Anr Citation: 2024 LiveLaw (Cal) 166

The Incoda Vs The General Manager, Metro Railway And Anr. Citation: 2024 LiveLaw (Cal) 167

Tamoghna Ghosh Vs. The State of West Bengal & Ors Citation: 2024 LiveLaw (Cal) 168

Satyabrata Barik @ Mithu. Vs. The State of West Bengal & Anr Citaiton: 2024 LiveLaw (Cal) 169

Gaurav Churiwal vs Concrete Developers LLP and Ors. Citation: 2024 LiveLaw (Cal) 170

Vishal Jhajharia Versus The Assessment Unit, Income Tax Department Faceless Assessment Centre & Ors. Citation: 2024 LiveLaw (Cal) 171

Ashok Kumar Gupta Vs M.D. Creations And Ors. Citation: 2024 LiveLaw (Cal) 172

Kotak Mahindra Bank Ltd. Vs Jaymony Debnath And Ors. Citation: 2024 LiveLaw (Cal) 173

Oriental Insurance Company Limited Vs M/S. Sarada Rani Enterprises Citation: 2024 LiveLaw (Cal) 174

Shashanka Maiti & Ors. v/s. The State of West Bengal Citation: 2024 LiveLaw (Cal) 175

Commissioner Of Service Tax versus G.S. Atwal & Co. Engineering Pvt Ltd. Citation : 2024 LiveLaw (Cal) 176

Susmita Pandit Versus State of West Bengal & Another Citation: 2024 LiveLaw (Cal) 177

Subhash Tiwari & Anr. Vs. The State of West Bengal & Anr Citation: 2024 LiveLaw (Cal) 178

The State Of West Bengal Vs Bijan Behari Chowdhury 2024 LiveLaw (Cal) 179

M/s Hooghly Building & Investment Co Ltd & anr v State Of WB & ors. Citation: 2024 LiveLaw (Cal) 180

Nandalal Verma Vs. The State of West Bengal & Ors. Citation: 2024 LiveLaw (Cal) 181

Visa International Ltd. v Visa International Service Association & Anr. Citation: 2024 LiveLaw (Cal) 182

Joyeeta Saha & Anr. -Vs- The State of West Bengal Citation: 2024 LiveLaw (Cal) 183

Md. Abu Raihan v State of West Bengal & Ors. Citation: 2024 LiveLaw (Cal) 184

Sashreek Constructors Private Limited vs. Customs, Excise and Service Tax Appellate Tribunal Citation :2024 LiveLaw (Cal) 185

Pranabesh Sarkar versus Superintendent CGST & CX Citation: 2024 LiveLaw (Cal) 186

Commissioner Of Customs (Preventive), West Bengal Versus Bangari Bhola And Others Citation: 2024 LiveLaw (Cal) 187

Bhubaneshwari Seafood Private Limited And Anr. Vs Ugro Capital Limited Citation: 2024 LiveLaw (Cal) 188

Dr. Sandip Ghosh & Anr. Vs. Union of India & Ors Citation: 2024 LiveLaw (Cal) 189

M/S. Siemens Healthcare Private Limited Vs Sun Hospital And Ors. Citation: 2024 LiveLaw (Cal) 190

Arup Mallick versus Commissioner, Commercial Taxes and State Tax, & Ors. Citation: 2024 LiveLaw (Cal) 191

Damodar Valley Corporation Vs BLA Projects Pvt. Ltd. Citation: 2024 LiveLaw (Cal) 192

Vishambhar Saran -Vs.- Bureau Of Immigration & Ors. Citation: 2024 LiveLaw (Cal) 193

Mayukh Biswas vs State of West Bengal Citation: 2024 LiveLaw (Cal) 194

Dr. Partha Biswas Vs. The State of West Bengal & Ors Citation: 2024 LiveLaw (Cal) 195

Sanjoy Das v Registrar General, Calcutta High Court Citation: 2024 LiveLaw (Cal) 196

Sanjoy Das v State of West Bengal Citation: 2024 LiveLaw (Cal) 197

Suklal Singh & Anr. -Vs. The State of West Bengal & Ors. Citation: 2024 LiveLaw (Cal) 198

Sajarul Rahaman And Anr vs Srei Equipment Finance Limited And Anr and Connected Matters Citation: 2024 LiveLaw (Cal) 199

Debranjan Banerjee Vs. The State of West Bengal & Ors. Citation: 2024 LiveLaw (Cal) 200

Subal Makhal -Versus- Indian Red Cross Society & Ors. Citation: 2024 LiveLaw (Cal) 201

Anjali Lahiri v State of West Bengal Citation: 2024 LiveLaw (Cal) 202

Court On Its Own Motion Vs. XXXX(Victim Girl) & Anr Citation: 2024 LiveLaw (Cal) 215

Principal Commissioner Of Income Tax – 1, Kolkata v. Bothra Shipping Services Private Limited Citation: 2024 LiveLaw (Cal) 216

Jayashree Electromech Private Limited v. The West Bengal State Electricity Transmission Company Limited Citation: 2024 LiveLaw (Cal) 217

Damodar Valley Corporation vs. Reliance Infrastructure Limited Citation: 2024 LiveLaw (Cal) 218

ORDERS/JUDGEMENTS

Calcutta High Court Imposes 10K Cost On Litigants For Filing 'Fake' Post-Poll Violence Case

Citation: 2024 LiveLaw (Cal) 153

Case: GOPA DAS VS STATE OF WEST BENGAL AND ORS

The Calcutta High Court has imposed a fine of Rs 5000 each on a petitioner and defendant for filing a fake case relating to post-poll violence in West Bengal in the aftermath of the Lok Sabha Elections 2024.

A single bench of Justice Amrita Sinha imposed the total cost of Rs 10,000 when the parties had approached the court seeking to withdraw their case.

During the hearing of the case, the parties had submitted before the Court that they wished to withdraw the case as an amicable settlement had been arrived at between them after the petitioners initially claimed that they were BJP workers who were ousted from their homes by those belonging to the ruling dispensation.

Calcutta High Court Grants Bail To Former TMC MLA Arabul Islam Accused In Murder Of ISF Leader

Citation: 2024 LiveLaw (Cal) 154

Case: Arabul Islam vs The State of West Bengal

The Calcutta High Court has granted bail to Trinamool Congress (TMC) leader and former MLA Arabul Islam who was accused in the murder of an Indian Secular Front (ISF) leader.

Islam was arrested by the police in February on suspicion of murder and vandalism of government property.

A division bench of Justices Arijit Banerjee and Prasenjit Biswas granted bail to Islam upon imposing several conditions on him.

The complaint against the petitioner was filed when there was a confrontation between him and his supporters and members of the rival political party during the filing of nomination for the 2023 Panchayat Elections.

Calcutta High Court Stays Demand Order Confirming Payment Reversal Of ITC Due To Cancellation Of Supplier's Registration

Citation: 2024 LiveLaw (Cal) 155

Case Title: M/s. Asian Hotels (East) Ltd. & Anr. Versus The Deputy Commissioner of State Tax & Ors.

The Calcutta High Court stayed the demand order confirming the payment reversal of the ITC due to the cancellation of the supplier's registration.

The bench of Justice Raja Basu Chowdhury has observed that the prima facie case was made by the petitioner/assessee, and there shall be a stay of the demand raised by the proper officer as is reflected in the order, subject to the petitioners' depositing 10% of the disputed tax amount with the GST authorities.

Chief Justice Or Their Designate Cannot Adjudicate Merits Of Dispute Under Section 11 Of Arbitration Act: Calcutta High Court

Citation: 2024 LiveLaw (Cal) 156

Case Title: M/S. B.B.M. Enterprises Vs State Of West Bengal And Ors.

The Calcutta High Court bench of Justice Sabyasachi Bhattacharyya has held that it is completely beyond the domain of the Chief Justice and/or his designate, sitting in jurisdiction under Section 11 of the Arbitration and Conciliation Act, 1996, to adjudicate even prima facie on the merits of an arguable issue involved in the matter, which would fall categorically within the domain of adjudication by the Arbitrator.

It held that all jurisdictional issues, including limitation, are to be decided by the Arbitrator. The bench held that even if there is a shade of doubt as to the issue of limitation, the Court sitting under Section 11 cannot decide the same conclusively and the matter has to be relegated to the Arbitrator.

Section 11 outlines the procedure for the appointment of arbitrators and the role of the Chief Justice or his designate in such appointments.

Calcutta High Court Declines Plea Challenging Tender Awarded By IRCTC Alleging Allottee's Non-Disclosure Of Involvement In 'Rail Neer Scam'

Citation: 2024 LiveLaw (Cal) 157

Case: M/s. Araha Hospitality Private Limited vs. Indian Railway Catering and Tourism Corporation Limited and others

The Calcutta High Court has declined a plea challenging a tender allotted by the Indian Railway Catering & Tourism Corporation (IRCTC). The plea challenged the allotment process on the ground that the allottee/successful bidder had been accused in the 'Rail Neer scam', and was being investigated by the Central Bureau of Investigation (CBI) for the same.

A single bench of Justice Shampa Sarkar held:

"The petitioner has not been able to satisfy that the action of the authority suffers from arbitrariness, perversity or favouritism. The court should not normally interfere with the policy of the tendering authority. If the petitioners or the court think that charges of corruption prior to three years should be a relevant factor in the decision making process, such opinion cannot be a reason for exercise of power of judicial review. When technically qualified and experienced people have formulated the terms and conditions of the tender, the court should not interfere because the court feels that a more stringent interpretation of the terms would be wiser, more logical or fair."

Calcutta High Court Denies Bail To Chinese Man Who Allegedly Attempted To Enter India With Fake Nepali Passport, Travel Documents

Citaiton: 2024 LiveLaw (Cal) 158

Case: Peng Yongxin@ Umesh Yonjan Vs. State of West Bengal

The Calcutta High Court Circuit Bench at Jalpaiguri has denied bail to a Chinese national who attempted to enter India using a fake Nepali passport and travel documents, posing as a Nepali citizen.

A single bench of Justice Subhenu Samanta upheld the order of the trial court and stated: Magistrate had taken cognizance of the offence on the basis of the charge sheet submitted by the police and refused to grant default bail. I find no illegality or irregularity in the impugned order passed by the Learned Magistrate. The Learned Magistrate has correctly taken cognizance of the offence on the strength of the charge sheet, and as the charge sheet has been submitted has been correctly refused the prayer for default bail.

Cellular Mobile Service Providers Not Obliged To Deduct TDS On Income Received By Distributors: Calcutta High Court

Citation: 2024 LiveLaw (Cal) 159

Case Title: Vodafone Idea Limited Vs Comissioner Of Income Tax

The Calcutta High Court has held that the cellular mobile service providers are not obliged to deduct the tax at source (TDS) on income received by distributors/franchisees from customers.

The bench of Justice Surya Prakash Kesarwani and Justice Rajarshi Bharadwaj has relied on the decision of Supreme Court in the case of Bharti Cellular Limited Vs. Assistant Commissioner of Income Tax Circle-57, Kolkata and Anr. In Which It Was Held That The Assessees Would Not Be Under A Legal Obligation To Deduct Tax At Source On The Income/Profit Component In The Payments Received By The Distributors/Franchisees From The Third Parties/Customers, Or While Selling/Transferring The Pre-Paid Coupons Or Starter-Kits To The Distributors.

Cancer Marker Test: Calcutta High Court Holds Accuhealth Solutions Liable For Negligence & Lack Of Expertise

Citation: 2024 LiveLaw (Cal) 160

Case Title: Accuhealth Solutions Private Limited Versus The State of West Bengal & Ors.

The Calcutta High Court bench of Justice Shampa Sarkar has held that Accuhealth Solutions Private Limited indicated carelessness, lack of expertise and negligence in conducting the cancer marker test for the patient.

The bench held that the diagnostic centre did not possess the necessary capability to perform the test independently and had instead outsourced it to AI Diagnostics.

Even Without Further Allegation Of Bias Under Section 12(5) Of Arbitration Act, Unilaterally Appointed Arbitrator Is Ineligible: Calcutta High Court

Citation: 2024 LiveLaw (Cal) 161

Case Title: Kotak Mahindra Bank Limited Vs Shalibhadra Cottrade Pvt. Ltd. And Ors.

The Calcutta High Court bench of Justice Sabyasachi Bhattacharyya has held that even a unilateral appointment of the arbitrator, without any further allegation of bias under Section 12(5) of the Arbitration and Conciliation Act, 1996, renders the Arbitrator ineligible.

The bench held that in addition to the grounds specifically mentioned in Section 12(5) read with the Seventh Schedule unilateral appointment of Arbitrator by one of the parties itself has also been brought under the purview of disqualification by ineligibility.

Calcutta High Court Strikes Down Arbitration Clause As Unconstitutional, Upholds Subcontractor's Right To Independent Dispute Resolution

Citation: 2024 LiveLaw (Cal) 162

Case Title: M/s Zillion Infraprojects Pvt Ltd Vs Bridge and Roof Co India Ltd

The Calcutta High Court bench of Justice Sabyasachi Bhattacharyya has struck part of the arbitration clause as being violative of Article 14 of the Constitution. The clause prevented the subcontractor from participating in arbitration proceedings despite having to bear the expenses for its claims.

Further, it allowed the Indian Oil Corporation (IOCL) to unilaterally decide whether a dispute could be referred to arbitration, thus depriving the subcontractor of an independent right to raise disputes.

Axis Bank Doesn't Perform Public Functions That Would Subject It To Writ Jurisdiction: Calcutta High Court

Case Title: Axis Bank Limited Versus Indian Cable Net Company Limited & Ors

Citation: 2024 LiveLaw (Cal) 163

The Calcutta High Court bench of Chief Justice T. S. Sivagnanam and Justice Hiranmay Bhattacharyya has held that Axis Bank does not perform public functions that would subject it to writ jurisdiction. It held that adherence to RBI guidelines by a private bank does not equate to the performance of public duties.

The bench held that: “the appellant bank carrying on the business or commercial activity of banking does not discharge any public function or public duty.”

2063 Crore Arbitral Award: Calcutta High Court Directs West Bengal Government, WBIDC To Pay Amount

Case Title: Government of West Bengal & Anr. Versus Essex Development Investments (Mauritius) Ltd.

Citation: 2024 LiveLaw (Cal) 164

The Calcutta High Court bench of Justice Krishna Rao has rejected the petition made under Section 36 of the Arbitration and Conciliation Act, 1996 by the West Bengal Government and West Bengal Industrial Development Corporation claiming fraud in making of the arbitral award. The bench noted that the arbitral tribunal arrived upon the findings after considering the materials placed before it and the submissions made by the respective parties.

Further, it noted that the arbitral tribunal recorded all the submissions of the parties in the award. Therefore, the bench dismissed the Section 34 petition.

The bench directed the West Bengal Government and West Bengal Industrial Development Corporation to deposit 100% of the awarded sum.

Composite Reference To Arbitration Necessary When Dispute Involves Same Subject Matter: Calcutta High Court

Case Title: K2V2 Hospitality Llp Vs Limton Electro Optics Pvt. Ltd. And Ors.

Citation: 2024 LiveLaw (Cal) 165

The Calcutta High Court bench of Justice Sabyasachi Bhattacharyya has held allowed composite reference of two companies to arbitration noting that the two arbitration agreement refer to the self-same demised property. Moreover, it noted that both the agreements were entered into by the same proposed lessee with two co-owners of the self-same property.

The bench held that: “if two different references were to be made, there would be ample scope of conflict of decision pertaining to the self-same subject matter between the co-owners of the self-same property.”

Supreme Court's Interpretation Of 'Three Months' As 90 Days In Section 34(3) Of Arbitration Act As Obiter Dicta, Not Ratio Decidendi: Calcutta High Court

Case Title: Future Market Networks Ltd. Vs Laxmi Pat Surana & Anr

Citation: 2024 LiveLaw (Cal) 166

The Calcutta High Court bench of Justice Subhendu Samanta has held that the Supreme Court's observations regarding the interpretation of "three months" in Section 34(3) of the Arbitration and Conciliation Act, 1996 as 90 days in various cases were not the ratio decidendi but obiter dicta.

The bench held that the period of limitation must be computed based on calendar months, therefore, the period of limitation in Section 34(3) would be three months excluding the date of receipt of the arbitral award.

Invocation of Arbitration Beyond Stipulated Period In Clause Does Not Frustrate Parties' Intent To Arbitrate: Calcutta High Court

Case Title: The Incoda Vs The General Manager, Metro Railway And Anr.

Citation: 2024 LiveLaw (Cal) 167

The Calcutta High Court bench of Justice Sabyasachi Bhattacharyya has held that the invocation of arbitration after the period defined in the arbitration clause doesn't frustrate the intention of the parties to refer disputes to arbitration.

The bench held that the outer limit stipulated in the arbitration clause for invocation of arbitration if failed by the claimant, does not constitute a waiver or a deliberate relinquishment of the claim by the claimant.

Calcutta High Court Allows BJP Rally Outside CESC Office Over Alleged Increase In Electricity Prices, Limits Attendance To 1,000 Protestors

Case: Tamoghna Ghosh Vs. The State of West Bengal & Ors

Citation: 2024 LiveLaw (Cal) 168

The Calcutta High Court has allowed a protest by the supporters of the Bharatiya Janata Party (BJP) outside the offices of the Calcutta Electricity Supply Corporation (CESC) at Victoria House in Kolkata over the alleged increase in electricity prices. The protestors had approached the court for permission to hold the rally after the Kolkata Police declined to allow the same.

A single bench of Justice Rajarshi Bharadwaj allowed the protest rally while laying down certain conditions and limiting the attendance to a maximum of 1,000 protestors. The Court took judicial notice of the fact that such protests held by other political parties at the very same venue had been allowed by the police and reiterated earlier decisions that there shall be a level playing field for all political parties in the state.

Calcutta High Court Quashes Case Against Man Accused Of Voyeurism, Stalking For Secretly Clicking Photos Of Woman From His Residence

Case: Satyabrata Barik @ Mithu. Vs. The State of West Bengal & Anr

Citaiton: 2024 LiveLaw (Cal) 169

The Calcutta High Court has quashed a case of voyeurism and stalking against a man booked under Section 354C and D of the Indian Penal Code (IPC). The man was arrested by the police upon the complaint of a woman who had accused him of secretly taking pictures of her from his residence.

Justice Bibhas Ranjan De quashed the case initiated against the man upon observing that while photographing a woman doing private acts may amount to voyeruism, the act of stalking would require specifc elements to be proven.

LLP And Its Individual Partners Can't Raise Same Issue By Separate Appeals U/s 37 Of Arbitration Act: Calcutta High Court

Case Title: Gaurav Churiwal vs Concrete Developers LLP and Ors.

Citation: 2024 LiveLaw (Cal) 170

The Calcutta High Court single bench of Justice Sabyasachi Bhattacharyya held that an LLP and its partners cannot file separate appeals under Section 37 of the Arbitration and Conciliation Act by citing the principle of 'separate legal entity'. It was held that the principle of res judicata would apply to prevent the individual partners from raising the same issue under Section 37, if the previous appeal filed in the name of the LLP was dismissed.

Dept. Failed To Put Assessee On Notice In Respect Of Section 69A Addition, Assessment Order Not Sustainable: Calcutta High Court

Case Title: Vishal Jhajharia Versus The Assessment Unit, Income Tax Department Faceless Assessment Centre & Ors.

Citation: 2024 LiveLaw (Cal) 171

The Calcutta High Court has quashed the assessment order on the grounds that the department has failed to put the assessee on notice in respect of addition under Section 69A of the Income Tax.

The bench of Justice Raja Basu Chowdhury has observed that the determination made by the respondent-department as reflected in the assessment order stands vitiated by reasons of failure on the part of the department to put the petitioner on notice in respect of addition under Section 69A. Since the assessment order is violative of the principles of natural justice, it is unenforceable in law.

'Rohan Builders' Not Binding Precedent, Court Empowered To Extend Arbitrator's Mandate Even If Section 29-A Petition Filed After Termination: Calcutta High Court

Case Title: Ashok Kumar Gupta Vs M.D. Creations And Ors.

Citation: 2024 LiveLaw (Cal) 172

The Calcutta High Court bench of Justice Sabyasachi Bhattacharyya has held that the court is empowered the court is empowered to extend an arbitrator's mandate even if a petition under Section 29-A of the Arbitration and Conciliation Act, 1996, is filed after the termination of the mandate.

Justice Bhattacharyya clarified that the absence of negative expressions in Section 29-A, which are present in other statutes to enforce strict timelines, indicates legislative intent to allow judicial discretion in extending mandates.

Dismissal Of First Execution Application On Default Ground Does Not Bar Fresh Petition: Calcutta High Court

Case Title: Kotak Mahindra Bank Ltd. Vs Jaymony Debnath And Ors.

Citation: 2024 LiveLaw (Cal) 173

The Calcutta High Court bench of Justice Sabyasachi Bhattacharyya has held mere dismissal of the first execution application on the ground of default does not prevent the award-holder/decree-holder from filing a fresh execution petition.

The High Court held that the provisions of Rules 105 and 106 of Order 21 of the Code of Civil Procedure do not preclude the award-holder/decree-holder from filing a fresh execution case on the same cause of action after a dismissal for default. Unlike Order 9, there is no specific bar in Order 21 regarding execution cases. The bench noted that even Rule 4 of Order 9 allows for a fresh suit on the same cause of action if the previous suit was dismissed for default without the parties' presence.

Arbitrator's Reliance On Unverified Evidence Violates Fundamental Policy Of India: Calcutta High Court

Case Title: Oriental Insurance Company Limited Vs M/S. Sarada Rani Enterprises

Citation: 2024 LiveLaw (Cal) 174

The Calcutta High Court bench of Justice Sabyasachi Bhattacharyya has held that evidence which does not qualify as pleadings supported by due verification or affidavit cannot be equated with proof of a claim. It held that the arbitrator's reliance on such evidence was contrary to the fundamental policy of Indian law.

The bench further held that the arbitrator was not in a situation where an exact figure cannot be determined, and which would require a reasonable guesswork by the tribunal. Rather, it was a case where the tribunal arbitrarily granted an amount to the claimant without any material basis.

Trial Court Should Not Issue Warrant Of Arrest Mechanically, Without Application Of Mind: Calcutta High Court

Case: Shashanka Maiti & Ors. v/s. The State of West Bengal

Citation: 2024 LiveLaw (Cal) 175

The Calcutta High Court has held that a trial court cannot issue a warrant of arrest without application of mind and justifying the same under the law.

A single bench of Justice Suvra Ghosh quashed the warrant of arrest against the petitioners, who were accused under inter alia Section 420 of the Indian Penal Code while observing that the trial court had issued the warrant of arrest against the petitioners mechanically without application of mind.

Extended Limitation Can't Be Invoked If No 'Omission' & Suppression Of Material Facts' To Evade Tax : Calcutta HC

Case Title: Commissioner Of Service Tax versus G.S. Atwal & Co. Engineering Pvt Ltd.

Citation : 2024 LiveLaw (Cal) 176

The Calcutta High Court held that no service tax will be levied on activities such as cutting or mineral extraction which are part of mining operations, if mining operations are itself not subjected to service tax on the date of levy.

The High Court clarified that if the State seeking to recover tax, cannot bring the subject within the letter of law, then it goes without saying that the subject is free.

Only Men Can Be Prosecuted Under 'Gender-Specific' Law Of Sexual Harassment U/S 354A IPC: Calcutta High Court

Case: Susmita Pandit Versus State of West Bengal & Another

Citation: 2024 LiveLaw (Cal) 177

The Calcutta High Court has recently held that sexual harassment charges under Section 354A of the Indian Penal Code (IPC) cannot be applied against women since the provision specifically begins with the term "a man."

A single bench of Justice Ajay Kumar Gupta perused the provision which begins, "[354A. Sexual harassment and punishment for sexual harassment--(1) A man committing any of the following acts--"

It was held that "it can be safely accepted that a female cannot be an accused under Section 354A of the IPC as is evident from very terminology as used in the said enactment. This offence is gender specific and only a male can be prosecuted under this offence. A female accused will not be covered under the mischief of this Section as a result of the specific words “a man” used in the Section 354A sub-sections (1), (2) and (3) of the IPC. Accordingly, the allegation of an offence punishable under Section 354A of IPC is not applicable against the present petitioner."

Calcutta HC Declines To Quash Case Against Man Who Allegedly Insulted Son-In-Law's Tribe, Said "Tum Log Chhota Jaat Hai"

Case: Subhash Tiwari & Anr. Vs. The State of West Bengal & Anr

Citation: 2024 LiveLaw (Cal) 178

The Calcutta High Court has declined to quash a case initiated under the Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act, 1989, (SC/ST Act) against a man who allegedly insulted his son-in-law using casteist slurs in his locality when the complainant had gone to bring his wife back from her maternal home.

It was alleged that the accused said: “tum jaisa nich jat ke sath meri beti nehi jayegi...Bhumij log nich aur chhuddar hota hai," (my daughter will not go with a lower caste like you) in the confines of his home, while he physically assaulted the petitioner and said “tum log chhotta jat hai” (you people are lower caste) outside in his locality.

Arbitrator's Award For Compensation For Excess Work And Business Loss Without Sufficient Evidence Is Perverse, Contrary To Fundamental Policy: Calcutta High Court

Case Title: The State Of West Bengal Vs Bijan Behari Chowdhury

Citation: 2024 LiveLaw (Cal) 179

The Calcutta High Court bench of Justice Sabyasachi Bhattacharyya has held that the arbitrator's decision to award compensation to the claimant for excess work and business loss, without sufficient evidence to support these claims, is perverse and contrary to the fundamental policy of Indian law.

The matter pertained to an arbitral award that granted monetary claims to the claimant. The Petitioner argued that the award lacked any reasoning and that the arbitrator despite framing certain issues failed to decide on any of them. It contended that the monetary amounts awarded were based on no material evidence. The Petitioner argued that the arbitrator's findings were unjustified as they were based solely on the Respondent not presenting independent evidence through oral witnesses or documentary evidence. The claimant, according to the Petitioner, must rely solely on its own evidence and materials to support its case. Therefore, the premise that the award was justified due to the Respondent failure to provide evidence was legally untenable.

Waqf Property Status Permanent, Mutawalli Leases Void Without Waqf Board Approval: Calcutta High Court

Case Title: M/S. HOOGHLY BUILDING & INVESTMENT COMPANY LIMITED AND ANOTHER VERSUS THE STATE OF WEST BENGAL AND OTHERS

Citation: 2024 LiveLaw (Cal) 180

The Calcutta High Court division bench of Chief Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharyya has held that once a property is designated as Waqf, it remains so indefinitely. It held that Mutawalli cannot enter into a lease of Waqf property without prior approval from the Waqf Board.

Therefore, the bench held that any agreements or understandings, whether written or oral, regarding the property are entirely unauthorized by law and void from the outset.

Case: Nandalal Verma Vs. The State of West Bengal & Ors.

Citation: 2024 LiveLaw (Cal) 181

The Calcutta High Court has held that in hire-purchase agreements where a bank repossesses a vehicle and re-sells it due to a default by the vehicle's registered owner, the bank cannot be compelled to re-issue the vehicle's certificate of registration under Section 51(5) of the Motor Vehicles Act (MV Act).

[S.3(2) Trademarks Act] Associate Managers In Trademark Registry Not Empowered To Pass Quasi-Judicial Orders: Calcutta High Court

Case: Visa International Ltd. v Visa International Service Association & Anr.

Citation: 2024 LiveLaw (Cal) 182

The Calcutta High Court has held that associate managers appointed under Section 3(2) of the Trademarks Act cannot pass quasi-judicial orders since they were not empowered to do so by virtue of their appointment as contractual employees.

A single bench of Justice Krishna Rao held:

The Registrar dealing with an application under the Trade Marks Act is a quasi judicial and delegation of power under sub-section (2) of Section 3 is an administrative power and as such the Associate Managers appointed under sub-section 2 of Section 3 are not empowered to pass quasi judicial orders.

[S.306 IPC] Momentary Disagreement Leading Person To Resort To Extremities Cannot Be Termed As Abetment To Suicide: Calcutta High Court

Case: Joyeeta Saha & Anr. -Vs- The State of West Bengal

Citation: 2024 LiveLaw (Cal) 183

The Calcutta High Court has recently quashed a case for abutment to suicide against a wife who was alleged of inducing her husband to commit suicide by failing to inform him of her previous marriage,

In quashing the charges against her, a single bench of Justice Ananya Bandopadhyay held:

Human psychology and mental state cannot be generally equated which varies from person to person. Egregious act on the part of a person from intractable emotions, depressions cannot be perceived or fathomed. One can be frenzied or hysterical even on minute and momentary disagreement resorting to extremities which cannot be termed as an instigation, inducement or abetment to commit suicide.

Child Care Leave Should Be Given To Both Male And Female Govt Employees, Family Responsibilities Must Be Shared By Mother & Father: Calcutta HC

Case: Md. Abu Raihan Vs State of West Bengal & Ors.

Citation: 2024 LiveLaw (Cal) 184

The Calcutta High Court has directed that the benefit of child care benefit must be extended to both male and female employees and family responsibilities must be shared by the mother and the father.

In considering the case of a man who had two minor children and had lost his wife a few months ago, a single bench of Justice Amrita Sinha held:

"It appears that time has come when the Government should treat its employees equally without any discrimination between the male and the female employees. The responsibility of maintaining a family should be shared equally both by the mother and the father. Natural guardian of a Hindu minor under the Hindu Minority and Guardianship Act, 1956 in the case of a boy or an unmarried girl is the father and after him the mother. The Government should take a decision to extend similar benefit to the male employees as has been done in the case of the females...to erase discrimination."

Direction For Payment Of Mandatory Pre-deposit Doesn't Constitute 'Order' Within Meaning Of Sec 35G of Central Excise Act: Calcutta High Court

Case Title: Sashreek Constructors Private Limited vs. Customs, Excise and Service Tax Appellate Tribunal

Citation :2024 LiveLaw (Cal) 185

Taking note of Section 35G of the Central Excise Act, the Calcutta High Court clarified that an appeal shall lie to the High Court from “every order” passed in appeal by the Appellate Tribunal, though the maintainability thereof would be dependent on certain statutory limitations.

As per Section 35G of Central Excise Act, 1944, an appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after the 1st day of July, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment) if the High Court is satisfied that the case involves a substantial question of law.

GST Registration Shall Not Be Cancelled For Non-Filing Of Returns If Taxpayer Is Not Found Adopting Dubious Process To Evade Tax: Calcutta High Court

Case Title: Pranabesh Sarkar versus Superintendent CGST & CX

Citation: 2024 LiveLaw (Cal) 186

While pointing out that the suspension/ revocation of license would be counterproductive and works against the interest of the revenue, the Calcutta High Court clarified that assessee in such a case would not be able to carry on his business in the sense that no invoice can be raised by the assessee and ultimately would impact recovery of tax.

Single Bench of Justice Raja Basu Chowdhury therefore set aside the order cancelling the registration of the assessee subject to the condition that the assessee files his returns for the entire period of default and pays requisite amount of tax and interest and fine and penalty, if not already paid.

West Bengal Customs Commissioner Has Jurisdiction Over West Bengal And Sikkim: Calcutta High Court Upholds Seizure

Case Title: Commissioner Of Customs (Preventive), West Bengal Versus Bangari Bhola And Others

Citation: 2024 LiveLaw (Cal) 187

The Calcutta High Court has upheld the seizure and held that the Commissioner of Customs (Preventive), West Bengal, has jurisdiction over the whole of the States of West Bengal and Sikkim.

The bench of Chief Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharyya has observed that if the Commissioner of Customs (Preventive), West Bengal, exercises jurisdiction over the whole of the States of West Bengal and Sikkim apart from the Union Territory of Andaman and Nicobar Islands, it cannot be said that merely because in Clause 10, the Principal Commissioner of Customs (Airport and Air Cargo Complex), Kolkata has been given jurisdiction over Netaji Subhas Chandra International Airport, that would denude the jurisdiction of the Commissioner of Customs (Preventive), West Bengal.

No Independent Dispute Redressal Institution Recognised By Government In Kolkata, Parties Should Approach Court Under Section 11 For Appointment Of Arbitrator: Calcutta High Court

Case Title: Bhubaneshwari Seafood Private Limited And Anr. Vs Ugro Capital Limited

Citation: 2024 LiveLaw (Cal) 188

The Calcutta High Court bench of Justice Sabyasachi Bhattacharyya has held that SAMA, an Online Dispute Resolution (ODR) platform, is not an independent Dispute Redressal Institution duly recognized by the Government of India in Kolkata. Therefore, the bench held that party should approach the court for the appointment of an arbitrator in view of disagreement.

Calcutta High Court Declines To Issue Gag Order In Former RG Kar Principal Dr Sandip Ghosh's Plea Alleging Media Trial

Case: Dr. Sandip Ghosh & Anr. Vs. Union of India & Ors

Citaiton: 2024 LiveLaw (Cal) 189

The Calcutta High Court has refused to issue an order restraining media outlets from broadcasting news about former RG Kar principal Dr Sandip Ghosh, in a plea by the ex-principal alleging 'media trial.'

A single bench of Justice Shampa Sarkar declined Ghosh's plea while cautioning the media to avoid 'animated dramatization' and publish objective news instead of subjective opinion. The court said:

"The media ensures that the individuals (members of civil society) participate in a matter of national importance. In this case, the incident has attained a status of global importance. Thus, right to information would be fundamental in this case, as each and every member of civil society is severely affected by the incident either directly or indirectly."

Commercial Division Of High Court Can Hear Applications And Appeals Under The Arbitration And Conciliation Act, 1996 Filed On Original Side: Calcutta High Court

Case Title: M/S. Siemens Healthcare Private Limited Vs Sun Hospital And Ors.

Citation: 2024 LiveLaw (Cal) 190

The Calcutta High Court bench of Justice Sabyasachi Bhattacharyya has held that even if an application or appeal under the Arbitration and Conciliation Act, 1996 relating to a commercial dispute is filed on the Original Side of the High Court, the same can be heard and disposed by the Commercial Division of the High Court.

The bench held that:

“The language used in Section 10(2) is “shall”, which is mandatory and implies that even if an application is filed in the original Side of the High Court (without any distinction between Ordinary Original Civil Jurisdiction or Commercial Division), it would suffice if the same is heard and disposed of by the Commercial Division.”

Failure To Comply Provision Of Sec 75(4) Of CGST Act 2017 Vitiates Entire Order: Calcutta High Court

Case Title: Arup Mallick versus Commissioner, Commercial Taxes and State Tax, & Ors.

Citation: 2024 LiveLaw (Cal) 191

The Calcutta High Court held that failure to comply with statutory provision which mandates consideration of explanation on the part of assessee before passing adverse order, vitiates such order.

The High Court held so while considering that the petitioner was prevented from filing his response to the show cause notice, due to a reasonable cause.

Referring to Section 75(4) of the CGST/WBGST Act, 2017, Single Bench of Justice Raja Basu Chowdhury observed that “affording an opportunity of hearing is mandated where a request is received in writing from the person chargeable with tax, or penalty or where any adverse decision is contemplated against such person”.

Section 34 Challenge Unwarranted If Arbitrator's Judgment Is Well-Reasoned And Based On Evidence: Calcutta High Court

Case Title: Damodar Valley Corporation Vs BLA Projects Pvt. Ltd.

Citation: 2024 LiveLaw (Cal) 192

The Calcutta High Court bench of Justice Sabyasachi Bhattacharyya has held that if an Arbitrator's judgment is well-reasoned and backed by substantial evidence, there are no grounds to challenge it under Section 34 of the Arbitration and Conciliation Act, 1996.

The matter pertained to a dispute between BLA Projects Private Limited (the claimant/respondent) and Damodar Valley Corporation (DVC) (the petitioner). In the arbitration proceedings, BLA Projects claimed under seven heads, of which four claims were granted by the arbitrator. DVC's counterclaims on two counts were dismissed. Feeling aggrieved, the Petitioner approached the High Court and filed a challenge under Section 34 of the Arbitration and Conciliation 1996.

Mere Apprehension That Person Would Flee India Is Not Enough To Issue Look Out Circular: Calcutta High Court

Case Title: Vishambhar Saran -Vs.- Bureau Of Immigration & Ors.

Citation: 2024 LiveLaw (Cal) 193

The Calcutta High Court bench of Justice Shampa Sarkar has held that mere apprehension that a person would flee India and no steps could be taken to recover the money is not enough to issue a Look Out Circular (LOC) against him.

The matter pertained to a writ petition which was filed by an erstwhile Director of Visa Power Limited ("company in liquidation"). The Petitioner argued that he was never a whole-time director of the company, which is undergoing liquidation following an order issued by the National Company Law Tribunal (NCLT) in Kolkata. The company obtained credit facilities from a consortium of banks, with Punjab National Bank (PNB) as the lead bank. This credit was intended for setting up a thermal power project in Raigarh district, Chhattisgarh, sanctioned around March 2010. However, due to the Supreme Court's decision canceling coal blocks, the thermal plant could not be established and operationalized thwarting the project's goal to supply power to contractors given coal block allocations.

Calcutta High Court Quashes Ban On Football Supporters Entering Stadium With 'Tifo' Demanding Justice For RG Kar Rape-Murder Victim

Case: Mayukh Biswas vs State of West Bengal

Citation: 2024 LiveLaw (Cal) 194

The Calcutta High Court has set aside a state government order banning supporters of Mohun Bagan Football Club from entering the Salt Lake Stadium with a large 'tifo' protesting the rape and murder of a trainee doctor at RG Kar Medical College and Hospital, during their team's match.

A division bench of Justices Harish Tandon and Hiranmay Bhattacharya held:

These activities are acclaimed as the sports activities of enjoyment and amusement but also inculcating a sense of discipline and, therefore, the supporters by using 'TIFO' are more responsive and used it for showing support to the team or its members to encourage them in order to achieve the desired result as expected by the said supporters. 'TIFO' means a flag or picture held up by the supporters of a team in a football match and, therefore, those displays are made for a short period of time or at intervals. Obviously, the viewers while using those 'TIFO' are conscious of their fellow viewers and, therefore, there should not be an apprehension of the State in this respect.

Gathering For Lawful Purposes Should Not Be Restricted Without Imminent Threat To Public Order: Calcutta High Court

Case Title: Dr. Partha Biswas Vs. The State of West Bengal & Ors

Citation: 2024 LiveLaw (Cal) 195

The Calcutta High Court bench of Justice Rajarshi Bharadwaj has held that if a gathering is not intended for unlawful purposes, it should not be restricted at a public place unless there is an imminent threat to public order. Even in such situations, the High Court held that any restrictions imposed must be fair and reasonable with a balance between individual rights and public safety.

Dr. Partha Biswas (Petitioner), who serves as the Chief Coordinator of Mission Abhaya, a philanthropic organization, sought permission to hold a peaceful solidarity rally on August 28, 2024 at 2:00 P.M. The planned route of the rally is from College Square passing through Bidahan Sarani, and concluding at OP Bhandar Bus Stop near Shyambazar Five Points Crossing. However, the Joint Commissioner of Police (HQ), Kolkata, refused to grant permission for the event. Consequently, the Petitioner requested a directive from the High Court to compel the Joint Commissioner to approve the rally.

"Attempt To Intimidate Office Of Chief Justice": Calcutta High Court Dismisses PIL Seeking To Modify Judge's Roster, Imposes 50K Cost

Case: Sanjoy Das v Registrar General, Calcutta High Court

Citation: 2024 LiveLaw (Cal) 196

The Calcutta High Court has dismissed a PIL seeking to modify a judge's roster due to allegations of conflict of interest, with exemplary costs of Rs 50,000. The Court also debarred the litigant from filing a PIL ever again, by invoking the Calcutta High Court Appellate Side Rules.

Advocate Sanjoy Das, the petitioner, sought to change the determination of Justice Amrita Sinha's bench hearing matters of police inaction, by claiming that since the West Bengal CID was investigating Justice Sinha's husband for allegedly using his spouse's office to influence a probe, her determination over police matters would not inspire public confidence in the judicial system.

In dismissing the plea as an "attempt to intimidate the office of the Chief Justice", a division bench of Chief Justice TS Sivagnanam and Justice Hiranmay Bhattacharya stated:

"It has been conclusively held that the right of the CJ in finalising the determination cannot be tinkered by a petitioner, and more particularly by an advocate practising before this court. The advice to look at the legal provisions fell on deaf ears. Therefore this writ petition is a clear abuse of process, and probably an attempt to intimidate the court, and to directly interfere with the jurisdiction of the Chief Justice."

Calcutta High Court Dismisses PIL Challenging BJPs 12-Hr Bandh, Cites Order In Previous Matter Indefinitely Debarring Litigant From Filing PILs

Case: Sanjoy Das v State of West Bengal

Citation: 2024 LiveLaw (Cal) 197

State Orders Impacting Individual Rights Require Separate Legal Remedies: Calcutta High Court

Case Title: Suklal Singh & Anr. -Vs. The State of West Bengal & Ors.

Citation: 2024 LiveLaw (Cal) 198

The Calcutta High Court division bench of Justice Harish Tandon and Justice Hiranmay Bhattacharyya has held that when a State authority's order is alleged to have impacted individual rights, each individual must pursue their legal remedy independently, and collective action in such cases is neither permissible nor maintainable.

Suklal Singh & Anr, Petitioners, two individuals, filed a writ petition challenging an order passed by the second respondent, Sub Divisional Officer and Sub Divisional Magistrate under Section 10 of the West Bengal Highways Act, 1964. The matter previously came before a Co-ordinate Bench of the High Court through a similar petition filed by others. The Co-ordinate Bench, by an order, directed the second respondent to consider the Petitioners' case as outlined in the decision. Following this direction, the second respondent reviewed the issue and issued the impugned order declaring the Petitioners and others as encroachers on public land and ordering the recovery of possession from them.

Section 34 Applications Challenging Arbitral Awards Subject To ₹120 Court Fee, Higher Fees Under Entry No. 1(10) Not Applicable: Calcutta High Court

Case Title: Sajarul Rahaman And Anr vs Srei Equipment Finance Limited And Anr and Connected Matters

Citation: 2024 LiveLaw (Cal) 199

The Calcutta High Court bench of Justice Sabyasachi Bhattacharyya has held that the principal application under Section 34 of the Arbitration and Conciliation Act, 1996, challenging an arbitral award, falls under Entry No. 2(c) of Schedule II of the Court Fees Act. This entry is the residuary provision that prescribes a court fee of Rs. 120 for original applications before the High Court, where no other specific provision in Schedule II applies.

The bench clarified that Entry No. 1(10) of the Court Fees Act, which prescribes higher fees for applications seeking a direction for filing an award, an order for filing an agreement, or for enforcing foreign awards, does not extend to principal applications under Section 34.

RG Kar Rape-Murder: Why Did Calcutta High Court Allow Protestors To March To West Bengal's State Secretariat "Nabanna"

Case: Debranjan Banerjee Vs. The State of West Bengal & Ors.

Citation: 2024 LiveLaw (Cal) 200

Findings In Criminal Trial Should Have Bearing On Disciplinary Proceedings In Case Of Identical Charges:Calcutta High Court

Case: Subal Makhal -Versus- Indian Red Cross Society & Ors.

Citation: 2024 LiveLaw (Cal) 201

A division bench of Calcutta High Court comprising Justice Tapabrata Chakraborty and Justice Partha Sarathi Chatterjee while deciding writ petition held that the findings in criminal trial should have bearing on disciplinary proceedings, especially when the charges are identical or closely related.

The employee was appointed as a laborer (Group-D) in the Indian Red Cross Society on May 22, 1979. He was granted temporary status effective from April 1, 1980. On August 3, 1994, a complaint was lodged by respondent against employee, leading to a criminal case being registered under Section 409 of the Indian Penal Code (IPC), which deals with criminal breach of trust. The employee was arrested on August 6, 1994, and released on bail on August 23, 1994.

RG Kar Rape-Murder: Calcutta HC Releases Student Booked For Leading March Towards Govt Secretariat, Cautions State Against 'Terrorising Protestors'

Case: Anjali Lahiri v State of West Bengal

Citation: 2024 LiveLaw (Cal) 202

The Calcutta High Court has ordered the state police to release a student named Sayan Lahiri, who was alleged to be the leader of the 'Paschim Banga Chhatra Samaj', an organisation which led a call for protests and march towards the State secretariat in Nabanna.

The protests though claimed to be peaceful, resulted in widespread violence, resulting in grave injuries to both protestors and police personnel.