Bombay High Court Weekly Round Up : May 16 To May 22,2022

Prem Rajendra Prasad Dubey vs The State of Maharashtra 2022 LiveLaw(Bom) 190

Ganpatrao Janardhan Patil vs State of Maharashtra 2022 LiveLaw(Bom) 191

Bhavani Gems Private Limited Versus Assistant Commissioner of Income Tax 2022 LiveLaw(Bom) 192

Praful A. Mehta versus Nainesh M. Gandhi 2022 LiveLaw(Bom) 193

Souvenir Developers (I) Pvt. Ltd. versus Union of India 2022 LiveLaw(Bom) 194

Sheetal Devang Shah versus Presiding Officer 2022 LiveLaw(Bom) 195

Judgments/ Orders

1. Kissing & Fondling Not Unnatural Offence U/S 377 IPC: Bombay High Court Grants Bail To POCSO Accused

Case Title - Prem Rajendra Prasad Dubey vs The State of Maharashtra

Citation : 2022 LiveLaw(Bom) 190

The Bombay high Court observed that kissing and touching private parts are prima facie not unnatural offences under Section 377 of the Indian Penal Code, therefore it granted bail to a man accused of a minor boy's sexual assault.

Regarding offences under sections 8 and 12 of the POCSO Act with maximum punishment of five years, the bench observed that the applicant is in custody for almost one year, the charge is not yet framed and trial is not likely to commence in the immediate future.

2. Boy Hangs Himself After School Chairman Calls Him "Nalayak, Jhopadpatti-Chhap": Bombay High Court Denies Anticipatory Bail

Case Title - Ganpatrao Janardhan Patil vs State of Maharashtra

Citation - 2022 LiveLaw(Bom) 191

The Bombay HC denied anticipatory bail to the Chairman and disciplinary authority of a school in a case of abetting a student's suicide as he "shattered the tender mind" and "put him in deep frustration."

Justice Vinay Joshi observed that a young student had lost his life in proximity from the act of the applicant and custodial interrogation was necessary for the case where the investigation was in progress.

"As per the statements of witnesses, the applicant has scolded the deceased minor boy in an unruly manner. He had also called his parents to the school…Prima facie suggests that the applicant has created an impression in the mind of the student to put him in deep frustration. It requires to be noted that there is a direct link of the applicant's act since within few hours from the episode, the child has ended his life by suicide," the court observed.

3. Assessment Can't Be Reopened On Mere Change Of Opinion Of AO: Bombay High Court

Case Title: Bhavani Gems Private Limited Versus Assistant Commissioner of Income Tax

Citation - 2022 LiveLaw(Bom) 192

The Bombay High Court, while quashing a reassessment notice, held that the assessment could not be reopened on a mere change of opinion of the Assessing Officer (AO).

The division bench of Justice K.R. Shriram and Justice N.R. Borkar observed that the reopening of assessment was merely on the basis of a change of opinion of the Assessing Officer from that held earlier during the course of assessment proceedings and this change of opinion does not constitute justification and/or reason to believe that income chargeable to tax has escaped assessment.

4. Novation Of Partnership Deed, Arbitration Clause Contained In The Deed Can Be Invoked: Bombay High Court

Case Title: Praful A. Mehta versus Nainesh M. Gandhi

Citation - 2022 LiveLaw(Bom) 193

The Bombay High Court held that the allegation of forgery is required to be dealt with at the stage of trial before the Arbitrator.

The Single Bench of Justice A. K. Menon dismissed the contention that an arbitration clause cannot be invoked as a result of novation of the agreement containing the arbitration clause. The Court added that even though there had been a novation of the partnership deed containing an arbitration clause, an Arbitrator could be appointed for adjudication of disputes against the partner with respect to the partnership firm.

5. Loss On Trading In Derivatives Of Securities Not A Speculative Loss, Can Be Set Off Against Business Income: Bombay High Court

Case Title: Souvenir Developers (I) Pvt. Ltd. versus Union of India

Citation - 2022 LiveLaw(Bom) 194

The Bombay High Court ruled that transactions in respect of trading in derivatives carried out in a recognized stock exchange are excluded from the definition of "speculation transaction" under the Income Tax Act, 1961.

The Bench, consisting of Justices R.D. Dhanuka and S.G. Mehare, held that an assessee is thus entitled to claim set off of the loss suffered by it in the said transactions in derivatives against its business income. The Court added that the explanatory notes on the provisions of the Finance Act, 2005, clearly indicate that an eligible transaction in respect of trading in derivatives of securities, carried out on a recognized stock exchange, shall not be deemed as a speculative transaction.

5. Can't Ask Daughter-In-Law To Pay Mother-In-Law Maintenance Under Senior Citizens Act : Bombay High Court

Case Title : Sheetal Devang Shah versus Presiding Officer

Citation - 2022 LiveLaw(Bom) 195

The Bombay High Court observed that a daughter-in-law cannot be directed to pay maintenance to her ailing mother-in-law, especially in the absence of any proof of the woman's income.

"We have reservations about such direction to SS (daughter-in-law) to pay maintenance amount to the mother-in-law…Be that as it may, upon perusal of the original record, we do not find a single document showing the earnings of SS (daughter-in-law)," the HC observed.

It noted that Section 2(a) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 that defines 'children,' includes son, daughter, grandson and grand-daughter, but does not refer to the daughter-in-law.