Nominal IndexShashikala Surendra Ambade & Ors. Versus The State of Maharashtra & Ors 2022 LiveLaw (Bom) 56 Dr Anand Teltumbde vs National Investigation Agency 2022 LiveLaw (Bom) 57 Pavan Morarka Versus The Assistant Commissioner of Income Tax – 2(3), Mumbai 2022 LiveLaw (Bom) 58 Yohan Tengra vs State of Maharashtra 2022 LiveLaw (Bom) 59 Larsen & Toubro Limited...
Nominal Index
Shashikala Surendra Ambade & Ors. Versus The State of Maharashtra & Ors 2022 LiveLaw (Bom) 56
Dr Anand Teltumbde vs National Investigation Agency 2022 LiveLaw (Bom) 57
Pavan Morarka Versus The Assistant Commissioner of Income Tax – 2(3), Mumbai 2022 LiveLaw (Bom) 58
Yohan Tengra vs State of Maharashtra 2022 LiveLaw (Bom) 59
Larsen & Toubro Limited Versus Girish Dave, Director of Income-tax (International Taxation) 2022 LiveLaw (Bom) 60
HDFC Bank Ltd. Versus Assistant Commissioner of Income-tax-2(3) 2022 LiveLaw (Bom) 61
Tata Capital Financial Services Limited Versus Assistant Commissioner of Income Tax Circle 1(3)(1) and Ors. 2022 LiveLaw (Bom) 62
Jawahar Hiralal Mehta v. The State of Maharashtra 2022 LiveLaw (Bom) 63
Shalaka Infra-Tech India Pvt. Ltd. & Anr. Versus The Union of India & Ors 2022 LiveLaw (Bom) 64
Rashtriya Shikshan Sangh and others vs State of Maharashtra 2022 LiveLaw (Bom) 65
Pr. Commissioner of Income Tax Versus Indofil Industries Limited 2022 LiveLaw (Bom) 66
Vivek Mehta & Anr. v/s. KaRRs Designs & Developments & Ors. 2022 LiveLaw (Bom) 67
Ravindra Hemraj Dhangekar V/S Ganesh Madhukar Bidkar & Ors 2022 LiveLaw (Bom) 68
Sanjay v. State of Maharashtra and Ors. 2022 LiveLaw (Bom) 69
Anurag s/o Jamnashankar Pandey Vs. State of Maharashtra 2022 LiveLaw (Bom) 70
Savina R Crasto vs Union Of India 2022 LiveLaw (Bom) 71
Pigments & Allieds Vs. Carboline (India) Pvt. Ltd. and Anr. 2022 LiveLaw (Bom) 72
Intezar Hussain Sayed vs Zee Studios & Ors 2022 LiveLaw (Bom) 73
Shankar Bhimrao Kadam & Ors vs Tata Motors Limited 2022 LiveLaw (Bom) 74
Basant Singh and Ors. v. Autar Kaur and Ors. 2022 LiveLaw (Bom) 75
Janak Vyas vs State of Maharashtra 2022 LiveLaw (Bom) 76
M/s. Royale Urbanspace and Ors. v. State of Maharashtra and Anr. 2022 LiveLaw (Bom) 77
Rajendra Goyal alias Raju Goyal vs PIO and connected matter 2022 LiveLaw (Bom) 78
Resilient Innovations Private Ltd. vs Phonepe Private Limited 2022 LiveLaw (Bom) 79
Ingram Micro INC. vs The Income Tax Officer, (International Taxation) 2022 LiveLaw (Bom) 80
Pankaj s/o Roshan Dhawan Versus National e-Assessment Centre 2022 LiveLaw (Bom) 81
Mohammad Nawab Mohammad Islam Malik @ Nawab Malik vs The Directorate of Enforcement and Ors. 2022 LiveLaw (Bom) 82
Rachna Sanjay Kuwar v. The State of Maharashtra and Anr. 2022 LiveLaw (Bom) 83
Chhagan Chandrakant Bhujbal Vs ITO 2022 LiveLaw (Bom) 84
Vishnu Rajaram Thakar Vs. State of Maharashtra,Through Its Secretary, Tribal Development Dept. and Anr. 2022 LiveLaw (Bom) 85
Forum Against Oppression of Women in P vs A & Ors 2022 LiveLaw (Bom) 86
Sankalp Resorts Limited & ors vs State of Maharashtra and ors 2022 LiveLaw (Bom) 87
World Sport Group (India) Private Ltd v Board of Control for Cricket in India 2022 LiveLaw (Bom) 88
Sonia Fazal Khan & Ors Versus Union of India & Ors 2022 LiveLaw (Bom) 89
Dr. Sonal Pratapsingh Vahanwala v. Deputy District Collector, Dharavi 2022 LiveLaw (Bom) 90
The State of Maharashtra v Shadab Tabarak Khan 2022 LiveLaw (Bom) 91
Manojkumar Omprakash Dalmia vs Omprakash Dalmia and Others 2022 LiveLaw (Bom) 92
Shrikrupa Stone Crusher v State of Maharashtra and ors. 2022 LiveLaw (Bom) 93
Invesco Developing Markets Fund vs Zee Entertainment Enterprises Limited 2022 LiveLaw (Bom) 94
Poorti Rent a Car and Logistics Pvt. Ltd. & ors. vs. Kotak Mahindra Bank Ltd. & ors 2022 LiveLaw (Bom) 95
Mariyayi Machhimaar Sahkari Sansthya Maryadit Versus Department of Fisheries and others 2022 LiveLaw (Bom) 96
Securities and Exchange Board of India Versus Rajkumar Nagpal & Ors. 2022 LiveLaw (Bom) 97
Perizad Zorabian Irani Versus PCIT And Ors.2022 LiveLaw (Bom) 98
CA. Manisha Mehta and ors. Vs The Board of Directors of Represented by its Managing Director of ICICI Bank and ors. 2022 LiveLaw (Bom) 99
RPG Enterprises Limited v Riju Ghoshal and anr 2022 LiveLaw (Bom) 100
Hriday Niraj Mehta vs. Umesh Jayantilal Mehta and Others 2022 LiveLaw (Bom) 101
Mad Man Film Ventures Pvt. Ltd. Versus Reliance Entertainment Studios Pvt. Ltd. & Ors. 2022 LiveLaw (Bom) 102
Sonia Fazal Khan & Ors Versus Union of India & Ors 2022 LiveLaw (Bom) 103
Gautam Thapar v/s. Central Bureau of Investigation 2022 LiveLaw (Bom) 104
Trilok Singh Gandhi vs Rajendra Kaushalraj Mehta 2022 LiveLaw (Bom) 105
Sadiq Shafi Qureshi v M.D. and C.E.O.,Union Bank of India and ors 2022 LiveLaw (Bom) 106
V.N.Reddy v The Superintending Engineer and ors 2022 LiveLaw (Bom) 107
Sabhajit Ramyash Yadav and ors v State of Maharashtra 2022 LiveLaw (Bom) 108
Satara District Bar Association, Satara v State of Maharashtra 2022 LiveLaw (Bom) 109
Hotel & Restaurant Association (Western India) and Ors. v. Commissioner, State Excise and Ors. with connected matters 2022 LiveLaw (Bom) 110
Varsha Deepak Desale v The State of Maharashtra 2022 LiveLaw (Bom) 111
Digest of Judgments/Orders Reported:
Case Title: Shashikala Surendra Ambade & Ors. Versus The State of Maharashtra & Ors.
Citation: 2022 LiveLaw (Bom) 56
The Bombay High Court, restrained local State and Civic body officials in Kolhapur district from using any part of the field of a farmer for the festival of Mahashivratri on which the farmer had grown soyabean crop.
The authorities submitted that an entry in the petitioner's land records (7/12 extract) endorsed that during the Mahashivratri festival, the authorities would take possession of the petitioners' land for a period of 15 days for the festivities.
"We do not understand under which provision of law, such an endorsement is made/allowed and how the plot of the petitioners can be taken away for a period of 15 days especially when the petitioners are growing soyabean crop on the said field. Even if this practice has been adopted in the past, the same cannot be relied upon as a precedent and the Court is required to stop such practice once it is opposed by the petitioners," the court order noted.
Case Title: Dr Anand Teltumbde vs National Investigation Agency
Citation: 2022 LiveLaw (Bom) 57
Three months after his brother's demise in an encounter, the Bombay High Court permitted Dalit scholar Anand Teltumbde to meet his nonagenarian mother in Chandrapur on March 8 and 9, 2022 under escort protection.
The court partly allowed the application and directed Teltumbde to be taken to Chandrapur by police escorts by the afternoon of March 8, 2022. However, he has not been permitted to spend the night at home and will be taken in custody in the closest prison.
Case Title: Pavan Morarka Versus The Assistant Commissioner of Income Tax – 2(3), Mumbai
Citation: 2022 LiveLaw (Bom) 58
The Bombay High Court held that the reopening of Income Tax Assessment cannot be allowed on grounds of future contingencies.
The division bench noted that the entire exercise of reassessment is only contingent on a future event and a consequence that may endure upon the decision of the Tribunal, that again if the Tribunal were to hold against the Revenue. A reopening of an assessment under Section 148 cannot be justified on such a basis. There has to be a reason to believe that income has escaped assessment.
Case Title:Yohan Tengra vs State of Maharashtra
Citation: 2022 LiveLaw (Bom) 59
The Bombay High Court disposed of two PILs after the Maharashtra government said that it won't withdraw restrictions imposed on individuals on the basis of their vaccination status from boarding local trains, visiting malls or places of employment.
"In our order dated February 22, we have observed that the state, in previously issuing orders restricting travel by public transport, had imposed restrictions in a manner which had no sanction of... Having regard to gross violations in imposing restrictions since August 10, 2021, it would have been better for us to strike down the further orders passed by the state government…However, we had reposed hope and trust that SEC would take a decision which is reasonable and not in derogation of fundamental rights of citizens protected by article 19 (1) (d). We are mistaken."
Case Title: Larsen & Toubro Limited Versus Girish Dave, Director of Income-tax (International Taxation)
Citation: 2022 LiveLaw (Bom) 60
The Bombay High Court held that the payments made towards charter hire of tugs and barges made to non-resident assessee in execution of contract with Oil and Natural Gas Corporation Ltd (ONGC) are assessable under Section 44BB of Income Tax Act and are entitled to special dispensation.
The bench said that the payments made by the ONGC and received by the non-resident assessees or foreign companies under the contracts were more properly assessable under the provisions of Section 44BB and not under Section 44D of the Act.
Case Title: HDFC Bank Ltd. Versus Assistant Commissioner of Income-tax-2(3)
Citation: 2022 LiveLaw (Bom) 61
In a major relief to the HDFC Bank, the Bombay High Court quashed the reassessment notice as the jurisdictional condition for invoking the power under section 147 of the Income Tax Act was not satisfied.
The division bench observed that once, it is held that the jurisdictional condition for invoking the power under section 147 is not satisfied for a particular assessment year, the notice for reopening cannot be sustained. Then, it does not matter that the assessee did not assailed the notice for reopening in respect of preceding or succeeding years.
Case Title: Tata Capital Financial Services Limited Versus Assistant Commissioner of Income Tax Circle 1(3)(1) and Ors.
Citation: 2022 LiveLaw (Bom) 62
The Bombay High Court has come down heavily on the Income Tax Department for not being transparent with tax payers in sharing the requested information basis of reopening action.
The division bench relied on the judgement of the Delhi High Court in case of Sabh Infrastructure Ltd. vs. Assistant Commission of Income Tax wherein the guidelines has been laid down on reopening cases for assessing officers (AO) for strict compliance.
As per the guidelines, while communicating the reasons for reopening the assessment, the copy of the standard form used by the Assessing Officer for obtaining the approval of the Superior Officer should itself be provided to the assessee. This would contain the comment or endorsement of the Superior Officer with his name, designation and date. In other words, merely stating the reasons in a letter addressed by the Assessing Officer to the assessee is to be avoided.
Case Title: Jawahar Hiralal Mehta v. The State of Maharashtra
Citation: 2022 LiveLaw (Bom) 63
The Bombay High Court held that sections 126 and 127 of the Maharashtra Regional & Town Planning Act, 1966 ( "MRTP Act") require expeditious acquisition of the land reserved. Section 127 gives time to either acquire the land or take steps for acquisition within a period of twenty-four months from the date of service of notice by the land owner for purchase.
A bench noted that if Respondents failed to acquire the land within the stipulated period, then as per the provisions of section 127 (1) of the MRTP Act, the reservation clamped on the said land "automatically lapses".
Case Title: Shalaka Infra-Tech India Pvt. Ltd. & Anr. Versus The Union of India & Ors.
Citation: 2022 LiveLaw (Bom) 64
The Bombay High Court directed the Goods and Service Tax (GST) Department to issue norms as to how many times summons can be issued during investigations.
The division bench of Justice S.M.Modak and Justice R.D.Dhanuka ordered the Department/respondents to indicate as to how many time summons were issued by the respondents to the petitioners, for what purpose and the progress of the investigation during this period. Affidavit shall also indicate as to when the investigation would be completed by the respondents against the petitioners.
Case Title: Rashtriya Shikshan Sangh and others vs State of Maharashtra
Citation: 2022 LiveLaw (Bom) 65
The power of the State Government to issue executive directions is confined to filling up the gaps or covering the area which otherwise has not been covered by the existing statutory rules, and such instructions or orders must be subservient to the statutory rules, the Bombay High Court ruled while quashing a decision to shut down three Ashram Shalas.
"The Government cannot supersede statutory rules by administrative instructions. Still, if the rules are silent on any particular point, the Government can fill the gaps by framing Rules and issuing instructions not inconsistent with the already-framed rules."
Case Title: Pr. Commissioner of Income Tax Versus Indofil Industries Limited
Citation: 2022 LiveLaw (Bom) 66
The division bench of Justice Amit B.Borkar and Justice K.R.Shriram ruled that section 192 of the said Act, unlike other TDS provisions, requires deduction of tax at source under the head "Salary only at the time of payment and not otherwise".
The issue raised was regarding disallowance under Section 40(a)(ia) of the Income Tax Act. The Assessing Officer had noted that respondent/assessee had made a provision for commission for the Chairman and the Managing Director (CMD) of the Company at the year end but not deducted TDS under Section 194H Income Tax Act. The commission was paid to the CMD in the subsequent year, i.e., during the Assessment Year 2010-2011 after deducting TDS.
Case Title: Vivek Mehta & Anr. v/s. KaRRs Designs & Developments & Ors.
Citation: 2022 LiveLaw (Bom) 67
Bombay High court considered whether the arbitration should be held up at the pre-appointment stage and pre-reference stage or whether party should be left to follow the procedures post reference and be left to agitate their respective challenges.
"The ratio is clear viz. least interference at the pre-appointment stage."
13.Nominated Councillor Cannot Be Appointed As Leader Of The House : Bombay High Court
Case Title: Ravindra Hemraj Dhangekar V/S Ganesh Madhukar Bidkar & Ors.
Citation: 2022 LiveLaw (Bom) 68
A division bench of Justices AA Sayed and SG Dige observed that under section 19-1A of the Maharashtra Municipal Corporation Act, 1949 (MMC Act) only an elected councillor, directly elected at Ward elections, is eligible to be appointed as 'Leader of the House.'
"If the intention of the Legislature was to treat both the categories of Councillors equally and to include even a nominated Councillor to be eligible to be appointed as Leader of the House under section 19-1A, the said section would have simply said 'Councillor' and not 'elected Councillor'."
Case Title: Sanjay v. State of Maharashtra and Ors.
Citation: 2022 LiveLaw (Bom) 69
The Bombay High Court recently considered the workings of the doctrine of pleasure, whereby authorities have a right to act as per their discretion. A bench of Justices S.V. Gangapurwala and S.G. Dige regarded that the doctrine of pleasure does not unable an authority to be arbitrary.
The petitioner was appointed as a part time Chairman of Aurangabad Housing and Development Board by the State Government under the Maharashtra Housing and Area Development Act, 1976, which was later cancelled. Aggrieved by this, the Petitioner submitted that as per section 7 of the said Act, his term was for three years and that powers of the State Government to remove President, Vice-President or any non-official member from his office prior to the stipulated period of three years were not unfettered and the State Government, while exercising its powers, had to notify the reasons.
The bench observed that no reason had been set out by the State Government for removal of petitioner, when the admitted position was that his removal was on account of Doctrine of Pleasure.
Case Title: Anurag s/o Jamnashankar Pandey Vs. State of Maharashtra
Citation: 2022 LiveLaw (Bom) 70
The headmaster of a school cannot be prosecuted for cruelty under the Juvenile Justice Act (JJ Act) for a teacher's actions merely because he heads the institution in the absence of specific allegations of assault, connivance or wilful neglect on his part, the Bombay High Court's Nagpur bench held.
Justice Avinash Gharote allowed the headmaster's writ petition and discharged him of offences under Section 75 of the JJ Act (punishment for cruelty to child).
The court rejected the prosecution's contention that the headmaster was liable because he was the head of the institution and thus had overall control over the children wherein a dance teacher had beaten a child with an iron rod during practice, causing injuries.
Case Title: Savina R Crasto vs Union Of India
Citation: 2022 LiveLaw (Bom) 71
In a sign of accountability for all cab aggregators in Maharashtra like Uber India and Ola, the Bombay High Court directed them to apply for new licences from the State Government by March 16, 2022, based on rules framed by the Central Government under the Motor Vehicles Act 1988.
The Central Government's rules – Motor Vehicles Aggregators Guidelines 2020 – will be applicable till the State's rules come into effect based on a 2019 amendment to the MV Act.
"If rejected (application and appeal), such applying aggregator shall not be permitted to carry on further activities in the state of Maharashtra," a division bench led by Chief Justice Dipankar Datta observed.
Case Title: Pigments & Allieds Vs. Carboline (India) Pvt. Ltd. and Anr.
Citation: 2022 LiveLaw (Bom) 72
The Bombay High Court recently observed that once the parties have acknowledged that an arbitration clause was embodied in the substantive contract, insufficiency of stamps cannot prevent the court from disposing an application under Section 11 of the Arbitration and Conciliation Act, 1996 for appointment of arbitrators.
Justice AK Menon observed, "Arbitration is seen as a speedy remedy but if applicants and respondents who may have counter-claims, have to await the fate of adjudication of documents for stamping and conclusion of the statutory challenge, the purpose of arbitration may be defeated. In my view, once parties are ad-idem on the fact that they have signed the writing containing an arbitration clause, the parties having acknowledged that an arbitration clause was embodied in the substantive contract, cannot prevent the court from disposing an application under Section 11 and the High Court, in my view, need not await the decision of the claimant in the case at hand as to whether or not to pay stamp-duty, as adjudicated. If this is not to be so, a large number of arbitration proceedings will be held up right at the inception, which is not desirable."
18.Bombay High Court Dismisses Plea Against Movie 'The Kashmir Files'
Case Title: Intezar Hussain Sayed vs Zee Studios & Ors
Citation: 2022 LiveLaw (Bom) 73
The Bombay High Court dismissed a PIL seeking to stall the release of movie "The Kashmir Files" on the alleged grounds of hurting religious sentiments of the Muslim community and inflaming members of the Hindu Community with possibility of triggering communal violence. The film directed by Vivek Agnihotri features well-known actors like Anupam Kher and Mithun Chakraborty.
The bench led by Chief Justice Dipankar Datta noted that the Petitioner had not challenged the censor certificate issued by the Central Board of Film Certification (CBFC). The rule of exhaustion of an efficacious alternative remedy applies also in a public interest litigation as it does in respect of a litigation initiated in private interest.
Case Title: Shankar Bhimrao Kadam & Ors vs Tata Motors Limited
Citation: 2022 LiveLaw (Bom) 74
In a dispute that spanned over 17 years, the Bombay High Court held Tata Motors liable for unfair labour practices under the Industrial Disputes Act 1947 for hiring hundreds of workmen in its manufacturing unit as temporaries to deprive them of the status and privilege of permanent workmen.
Justice Ravindra Ghuge directed the automobile major to pay compensation to the 52 petitioners and set aside the Labour Court's orders. The bench observed that the company had a monitoring department to ensure temporary workers were disengaged before they completed the mandatory days of continuous employment.
"I find that the respondent-management has systematically prevented these temporaries from completing 240 days in continuous employment and had foisted involuntary unemployment on these temporaries before they could complete 240 days only to paint an imperfect picture that the work had come to an end and, therefore, these temporaries were disengaged by efflux of time, which is an exception to retrenchment u/s 2(oo) (bb)," the bench observed.
Case Title: Basant Singh and Ors. v. Autar Kaur and Ors.
Citation: 2022 LiveLaw (Bom) 75
The Bombay High Court reiterated that the supervisory, discretionary powers conferred upon it under Article 227 of the Constitution is to ensure proper administration of justice and the same cannot be exercised merely to correct an error on facts.
"The powers of this Court under Article 227 of the Constitution are wide and the main object of it is to keep strict administration and judicial control on the administration of justice. Just because a party seeks to challenge an order of a subordinate Court merely due to some insignificant errors on facts, the discretionary powers cannot be exercised, " Justice Prithiviraj K Chavan observed.
The observation was made while dealing with a petition under Article 227, challenging the order of a single judge which had rejected the report submitted by the Court Commissioner in a case relating to partition of suit property.
Case Title: Janak Vyas vs State of Maharashtra
Citation: 2022 LiveLaw (Bom) 76
The Bombay High Court expressed anguish that two highest constitutional functionaries in Maharashtra, the Chief Minister Uddhav Thackeray and Governor Bhagat Singh Koshyari "do not trust each other."
"The unfortunate part in Maharashtra is this that two highest Constitutional functionaries do not trust each other. You both please sit together and sort this out between yourselves. Here, the Governor and the Chief Minister, we all think, are not on the same page. But who is suffering in all of this?"
The bench of Chief Justice Dipankar Datta and Justice MS Karnik was referring to the Governor's inaction on the nomination of 12 members to the Maharashtra Legislative Council over eight months after the High Court's judgement.
Two PILs challenged certain amendments to the procedure for election of the speaker in the Maharashtra Legislative Assembly. The court lambasted the petitioners before dismissing petitions.
Case Title: M/s. Royale Urbanspace and Ors. v. State of Maharashtra and Anr.
Citation: 2022 LiveLaw (Bom) 77
The Bombay High Court bench of Justices SJ Kathawalla and Milind Jadhav, noted that the Supreme Court had enunciated in clear and unambiguous terms that excavation of ordinary earth for construction of building purposes/development would not attract levy of royalty and penalty under the provisions of Section 48(7) of the Maharashtra Land Revenue Code, 1966 ("MLR Code, 1966"), especially when the excavated earth has been used for levelling and development on the same plot.
The Petitioners challenged two show cause notices, both dated 29.01.2021, hearing notice dated 30.06.2021, two final notices, both dated 23.08.2021 issued by the Tahasildar, Shahapur, demanding payment of royalty and penalty of Rs.1,07,12,000/- and Rs. 5,71,35,104/- and order dated 21.10.2021 calling upon the Petitioners to deposit an amount of Rs.1,09,18,000/- under the provisions of Section 48(7) of the MLR Code, 1966. The Respondent No.2 has issued the impugned notices and passed the impugned order against the Petitioners for extraction of minor minerals unauthorisedly.
Case Title: Rajendra Goyal alias Raju Goyal vs PIO and connected matter
Citation: 2022 LiveLaw (Bom) 78
Claims of being a "social activist" are not enough to get information under the RTI Act, the application must show details sought are bona fide in larger public interest, and without causing "unwarranted invasion of privacy of the individual" under Section 8(1)(j) of the RTI Act, the Bombay High Court has held.
"The logic seems to be this: since Goyal (appellant) is a self-proclaimed activist, the provisions of Section 8 of the RTI Act will not apply to him. That is unacceptable," the court said.
A division bench of Justices Gautam Patel and Madhav Jamdar, in a judgement on March 3, observed that all that the petition filed by one Rajendra Goyal seeking implementation of the State Information Commissioner's order said was that Goyal was a "social activist." The bench, however, found that one of the paragraphs somewhere inside revealed that he was a developer – in the real estate business.
Case Title: Resilient Innovations Private Ltd. vs Phonepe Private Limited
Citation: 2022 LiveLaw (Bom) 79
The Bombay High Court has allowed PhonePe to file a fresh suit claiming trademark infringement against Resilient Innovations, the owners of PostPe.
Earlier a single judge of the High Court had granted leave to PhonePe to withdraw its suit and file a fresh one, which was challenged before a division bench, which has refused to interfere with the single judge's order.
A division bench of Justices SJ Kathawalla and Milind Jadhav, on Friday, dismissed as not maintainable an appeal by Resilient Innovations, which owns the rival brand PostPe. The court, however, refrained from making observations on the merits of the case.
Case Title: Ingram Micro INC. vs The Income Tax Officer, (International Taxation)
Citation: 2022 LiveLaw (Bom) 80
The Bombay High Court held that even if a holding company was considered as an ultimate beneficiary of a share purchase transaction undertaken by its subsidiary company, it would still not be liable to deduct tax at source under section 195 of the Income Tax Act, 1961 if it did not make any payment to a non-resident under the transaction.
The bench, consisting of Justices KR Shriram and NJ Jamadar, ruled that the liability to deduct TDS under Section 195 of the Act is applicable only to a person who has paid any sum, or is responsible for paying any sum, to a non-resident.
The High Court observed that the conclusions drawn by the Assessing Officer (AO) regarding Ingram Micro Inc.'s liability to deduct TDS by placing reliance on the Annual Reports of the Ingram Group, which had mentioned the factum of Ingram Group's acquisition of Techpac Holdings, was misplaced. The High Court held that the comments mentioned in the said Annual Reports were with respect to the Ingram Group as a whole and were not restricted to the activity of the petitioner Ingram Micro Inc.
26. Reply Of The Taxpayer Not Considered: Bombay High Court Quashes Income Tax Faceless Assessment
Case Title: Pankaj s/o Roshan Dhawan Versus National e-Assessment Centre
Citation: 2022 LiveLaw (Bom) 81
Case No.: WP 1927/2021
The Bombay High Court bench quashed an income tax faceless assessment as the taxpayer's reply was not considered by the department/respondent.
The IT department has launched the Faceless Facility for income tax appeals. Under the facility, all the cases will be completed in a faceless way in a faceless environment, except for appeals that are related to evasion of tax, serious fraud, black money, international tax, and special research.
Case Title: Mohammad Nawab Mohammad Islam Malik @ Nawab Malik vs The Directorate of Enforcement and Ors.
Citation: 2022 LiveLaw (Bom) 82
Case No: WP 648/ 2022
In its order refusing interim release of Maharashtra Cabinet Minister Nawab Malik, the Bombay High Court observed that prima facie claiming that a property is untainted would amount to an offence under section 3 of the PMLA 2002.
The court denied Malik interim release in his habeas corpus plea challenging PMLA proceedings. The crux of Nawab Malik's counsel's arguments was on the retrospective applicability of PMLA since ED had used the amended provision of section 3 of PMLA from 2013 and an explanation is inserted in the year 2019, for the transaction of the year 2003 and 2005.
However, the bench observed that a perusal of the unamended provisions of Section 3 mention "process or activity connected with proceeds of crime" as one of the ingredients. It's a wider term and its constitutional validity is not challenged. "What we prima facie feel that projection/claiming a property as untainted property is the objectionable act forming part of an offence under Section 3 of the Act of 2002."
Case Title: Rachna Sanjay Kuwar v. The State of Maharashtra and Anr.
Citation: 2022 LiveLaw (Bom) 83
The Bombay HC held that a medical aspirant domiciled in Maharashtra, but having passed 10th or 12th standard from outside the state shall not be eligible to avail the benefit under State quota for the purpose of NEET-UF examination.
"The Rule applicable since 2018 and followed consistently is that (i) the student should pass 10th and 12th standard from an institution situated within the State of Maharashtra and (ii) must be domicile of State of Maharashtra. Exception is if he has cleared 10th standard prior to the year 2017 from an institution outside the State of Maharashtra, he would still be eligible, provided he has passed 12th standard examination from an institution situated within the State of Maharashtra and he is also domicile of the Maharashtra," the Court said.
Case Title: Chhagan Chandrakant Bhujbal Vs ITO
Citation: 2022 LiveLaw (Bom) 84
Case No.: WP 3597/ 2019
The Bombay High Court bench upheld the validity of the reassessment notice issued within 5 hours of receiving information against Maharashtra Minister, Chhagan Chandrakant.
The court observed that the power vested in the commissioner under Section 151 of the Income Tax Act to grant or not to grant approval to the Assessing Officer to re-open an assessment is coupled with duty, and the commissioner is duty bound to apply his mind to the proposal put up to him for approval in the light of the material relied upon by the Assessing Officer. Such power cannot be exercised casually, in a routine and perfunctory manner.
Case Title: Vishnu Rajaram Thakar Vs. State of Maharashtra,Through Its Secretary, Tribal Development Dept. and Anr.
Citation: 2022 LiveLaw (Bom) 85
Holding that a Caste Scrutiny Committee can review its own decision only in exceptional cases when there is any playing of fraud or suppression of material facts or misrepresentation of facts, the Bombay High Court set aside a show cause notice by the Committee seeking to review it earlier orders.
A division bench said that a quasi-judicial authority did not have statutory power to review its own decision, but judicial pronouncements, while giving the power to the Committee to review its orders in exceptional cases in the past had held, "The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants.
Case Title: Forum Against Oppression of Women in P vs A & Ors
Citation : 2022 LiveLaw (Bom) 86
Case No: Suit 142/ 2021
Over five months after the Bombay High Court issued certain guidelines, including barring media reporting and uploading of judgements in POSH cases, to maintain anonymity of parties, the bench clarified that its directions were 'case specific' not applicable to all matters under the Protection of Women from Sexual Harassment (POSH) Act 2013 and Rules.
As per the September 24 directions, disclosing identity of the victim, accused or witness in a POSH case is prohibited, all such court hearing must be in-camera in the judge's chamber. Moreover, none of the parties were permitted to disclose anything about the case, including its final outcome; judgements not to be uploaded on the website and no media reporting without prior permission of the court.
"The directions had to be confined to this particular case," Justice Patel said in the latest order.
Case Title: Sankalp Resorts Limited & ors vs State of Maharashtra and ors
Citation: 2022 LiveLaw (Bom) 87
Once the Collector (even in a draft speaking order) opines that a privately owned land parcel is not a "private forest," the Central Government's permission under the Forest (Conservation) Act, 1980 is unnecessary to exploit the land for development, the Bombay High Court held.
A division bench of Justices SJ Kathawalla and Milind Jadhav observed that the Central Act would apply only when a forest land is to be used for non-forest purposes, like when a project is to be set up on the forest land, and particulars of the proposed project are to be set out.
Case Title :World Sport Group (India) Private Ltd v Board of Control for Cricket in India
Citation: 2022 LiveLaw (Bom) 88
Observing that the arbitral award of three former Supreme Court judges by 2:1 majority missed out on "huge chunks of important evidence or not even referred to it," the Bombay High Court set aside the award in favour of the Board of Control for Cricket (BCCI) in India. The court passed the order on a challenge to the award by World Sport Group (India) Private Ltd.
The court observed that while challenge to an arbitral award was not equivalent to an appeal, one of the grounds to challenge a domestic arbitral award, even after the amendment of the Act in 2015, was that it suffered from a patent illegality.
"The Supreme Court has clearly held that a decision of the Tribunal which is perverse, while no longer being a ground of challenge under the "public policy of India", would certainly amount to a patent illegality appearing on the face of the Award. The Supreme Court has inter alia held that a finding in the Award based on no evidence or an Award which ignores vital evidence in arriving at its decision, would be perverse and liable to be set aside on the ground of patent illegality," Justice Colabawalla observed in his March 16, 2022 judgement.
34.Son Can't Claim Right Or Share In Parents' Flats While They Are Alive : Bombay High Court
Case Title: Sonia Fazal Khan & Ors Versus Union of India & Ors
Citation: 2022 LiveLaw (Bom) 89
A son doesn't have any right, title or settled and enforceable share in his parent's flats till they are alive, the Bombay High Court has observed.
A division bench of Justices Gautam Patel and Madhav Jamdar rejected the son's suggestion that he has a settled and enforceable share in either of the flats in the lifetime of the real owners, his parents, as being "laughable." "The fact that he is their son does not make either of their flats 'a shared household", the bench said.
Case Title: Dr. Sonal Pratapsingh Vahanwala v. Deputy District Collector, Dharavi
Citation: 2022 LiveLaw (Bom) 90
Observing that an adopted child becomes a family member of his adoptive parents "in all respects," the Bombay High Court directed authorities to issue a caste certificate to an 18-year-old based on his mother's scheduled caste identity.
The Bench thus held that an adopted child would be entitled to take the caste identity of his adoptive mother, despite the caste authorities' insistence on making the child's biological father's records available.
"One of the effects would be that the child would not get identity of mother and particularly caste of the mother. He would be without identity throughout his life. Similarly, very purpose of adopting child by the petitioner being a single mother would stand frustrated. In our opinion, such a situation could not be envisaged by law."
Case Title : The State of Maharashtra v Shadab Tabarak Khan
Citation : 2022 LiveLaw (Bom) 91
A single judge of the HC, held that under Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2015 the Juvenile Justice Board has to assess a heinous offence to determine whether CCL is to be tried as an adult or juvenile.
If the child above 16 years of age, the Board has to conduct a preliminary assessment with regard to his mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence, before deciding if the CCL can be tried as an adult.
Case Title: Manojkumar Omprakash Dalmia vs Omprakash Dalmia and Others
Citation: 2022 LiveLaw (Bom) 92
Observing that "greed, acrimony and deceit" are clear from the son's conduct, the Bombay High Court dismissed the contempt petition he filed against his parents in connection with a property dispute and directed him pay them cost of Rs. 50,000.
The petitioner son -Manoj Kumar Dalmia- alleged non-compliance of consent terms he allegedly signed with his parents, giving him more than his share in the couple's Santacruz flat, while also permitting his family to reside there. He would also get their second flat, which was their only source of livelihood.
There was no reason whatsoever for Respondent Nos. 2 and 3 (parents) to ordinarily enter into the Consent Terms which basically seek to undo what they had been able to preserve thus far, by securing orders from this Court and the Supreme Court," a division bench noted about the "lopsided" terms.
Case Title : Shrikrupa Stone Crusher v State of Maharashtra and ors.
Citation : 2022 LiveLaw (Bom) 93
The Bombay High Court considered whether grant of short term permit for extraction of minor minerals under Rule 59 of the Maharashtra Minor Mineral Extraction (Development and Regulation) Rules, 2013 (the Rules of 2013) ought to be preceded by holding public auction or whether such short term permit can be granted on the basis of an application made to the Competent Authority.
"it was not the intention of the State that short term permit for minor minerals should be granted by way of public auction. The mode of granting such permit on an application made has been retained."
Case Title: Invesco Developing Markets Fund vs Zee Entertainment Enterprises Limited
Citation: 2022 LiveLaw (Bom) 94
A division bench of the Bombay High Court allowed an application filed by US investment firm Invesco Developing Markets Fund, the largest shareholder of Zee Entertainment Enterprises Limited (Zee), against a single judge's order granting interim injunction to Zee and restraining the investor from holding an Extraordinary General Body Meeting.
1.The bench relied heavily on the Supreme Court's decision in LIC vs. Escorts wherein the SC held that a shareholder cannot be restrained from calling a meeting, such shareholder need not disclose reasons for the resolutions proposed and that the reasons for the resolution are not subject to judicial review.
2.That civil court's jurisdiction to entertain the Suit is in the teeth of Section 430 of the Act matters that fall within the domain of the NCLT.
3.Bench dealt with the consequences of ruling that a Civil Court can, in certain cases, grant an injunction restraining shareholders of a company from exercising their statutory right to call for and hold an EGM. "If we were to open this flood gate, Corporate democracy, as we understand it, would be rendered nugatory. Shareholders will be repeatedly restrained and injuncted from exercising their statutory rights…We cannot lay down a precedent resulting in such drastic consequences derailing the democratic functioning of Companies across India owing to the non-cooperative and obstructive conduct of the Board of Directors."
Case Title : Poorti Rent a Car and Logistics Pvt. Ltd. & ors. vs. Kotak Mahindra Bank Ltd. & ors.
Citation : 2022 LiveLaw (Bom) 95
The Bombay High Court held that a Bank, being a "secured creditor" within the meaning of section 2(zd) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act), is entitled to initiate proceedings against a debtor under Section 13 thereof, notwithstanding the fact that the assignor of debt portfolio was not a "financial institution" at the material time.
A bench of Chief Justice Dipankar Datta and Justice MS Karnik concluded that,
"initiation of action under Chapter III of the SARFAESI Act by the respondent no.1, being a "secured creditor" within the meaning of section 2(zd) thereof for the purpose of enforcing the security interest that was created earlier, is legally permissible. That the respondent no. 1 is the successor-in-interest of the respondent no.2, which was not a "financial institution" at the material time would make no difference insofar as consequence in law is concerned."
Case Title: Mariyayi Machhimaar Sahkari Sansthya Maryadit Versus Department of Fisheries and others
Citation: 2022 LiveLaw (Bom) 96
A bench led by Justice Shahrukh Kathawalla directed disbursal of ad-hoc compensation of Rs. 1 lakh to each of the 953 fisherfolk families being affected by an infrastructure project in Thane.
"As the fisherfolk and their families cannot be expected to starve till the authorities decide the quantum of compensation…" the bench observed in their order.
The court noted that the State's Draft Compensation Policy dated November 29, 2021, adopts the approach of the National Green Tribunal. According to the NGT's calculation in the matter of Ramdas Janardan Kohli on February 27, 2015, compensation for one family was pegged at Rs. 6 lakh for three years.
Case Title: Securities and Exchange Board of India Versus Rajkumar Nagpal & Ors.
Citation: 2022 LiveLaw (Bom) 97
The Bombay High Court dismissed an appeal filed by the Securities and Exchange Board of India (SEBI) and permitted the shareholders of Reliance Commercial Finance Ltd. (RCFL) to carry out a voting process based on debenture trust deeds (DTDs) in compliance with the circular issued by the Reserve Bank of India (RBI).
The court noted that the SEBI Circular stated that it would take effect immediately on October 13, 2020.In the present case, RCFL committed defaults prior to October 13, 2020, and the ICA was executed on July 6, 2019, which are dates prior to the coming into force of the SEBI Circular and prior to the Supplementary DTD incorporating reference to the SEBI Circular.
Case Title: Perizad Zorabian Irani Versus PCIT And Ors.
Citation: 2022 LiveLaw (Bom) 98
The Bombay High Court ruled that remuneration received from partnership firm cannot be treated as gross receipt in profession for the purpose of compulsory audit under Section 44AB of the Income Tax Act, 1961.
The Bench held that that none of the clauses under Section 44AB envisage the situation where an assessee is carrying on both profession as well as business.
Case Title: CA. Manisha Mehta and ors. Vs The Board of Directors of Represented by its Managing Director of ICICI Bank and ors.
Citation: 2022 LiveLaw (Bom) 99
The Bombay High Court has refused to read principles of natural justice into Section 14 of the SARFESI Act and direct magistrates to put a borrower to notice before taking possession of the asset for the bank or financial institution.
"Only a post-possession right to approach the tribunal is conferred on a borrower in terms of section 17, nothing more and nothing less," the bench observed.
The court observed that principles of natural justice under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFESI Act), are available to a borrower only to a limited extent and not till the secured creditor takes possession of the asset after serving a notice to the borrower and responding to it.
Case Title: RPG Enterprises Limited v Riju Ghoshal and anr
Citation: 2022 LiveLaw (Bom) 100
The Bombay High Court granted interim relief to RPG Enterprises Ltd, named after its founder, Mr. Rama Prasad Goenka, a known industrialist. Considering the factors such as (i) the extent of knowledge of the RPG mark, and its recognition by the relevant public; (ii) the duration of the use of the RPG marks; (iii) the extent of the products in relation to which the RPG mark is being used; (iv) the extent and duration of advertising and promotion of the RPG mark; (v) the geographical extent of the trading area in which the RPG mark is used…I am of the opinion that prima facie, the Plaintiff's RPG mark deserves protection as a well-known trade mark as the same has come to acquire a secondary meaning to connote to the public the goods and / or services emanating from the Plaintiff."
Case Title: Hriday Niraj Mehta vs. Umesh Jayantilal Mehta and Others
Citation: 2022 LiveLaw (Bom) 101
The Bombay High Court is set to decide a complex position in law – will mere filing of a Partition Suit by a minor family member amount to severing of ties from a Hindu Undivided Family even if the Suit is eventually dismissed for non-prosecution while the plaintiff was still a minor, or should that minor be considered a part of HUF.
The question has come up in a case where the concerned minor, after attaining majority in March 2020, has now challenged a gift deed executed by his parents as a part of HUF while he was a minor, but, had sought partition of the property under the HUF. The property was eventually sold by another close relative who purportedly received it as a gift and a third party is in possession of the house in an eastern suburb of Mumbai.
47.Bombay High Court Rejects Plea To Stay OTT Release of Movie 83 On Hotstar & Netflix
Case Title: Mad Man Film Ventures Pvt. Ltd. Versus Reliance Entertainment Studios Pvt. Ltd. & Ors.
Citation: 2022 LiveLaw (Bom) 102
Observing that prima facie - Netflix Global LLC and Star India have antecedent (prior) rights to exploit the film '83' on satellite and digital media for 10 years, the Bombay High Court refused ad-interim relief to Mad Man Film Ventures Pvt Ltd to stall the film's OTT release.
The bench observed that Netflix and Star were not part of the consent terms, therefore its clauses couldn't be enforced against them. Moreover, Madman cannot seek injunction when the said rights have been acknowledged in the same document (Consent Terms) which granted Madman the rights qua the Film.
48.Son Can't Claim Right Or Share In Parents' Flats While They Are Alive : Bombay High Court
Case Title: Sonia Fazal Khan & Ors Versus Union of India & Ors
Citation: 2022 LiveLaw (Bom) 103
A son doesn't have any right, title or settled and enforceable share in his parent's flats till they are alive, the Bombay High Court has observed.
A division bench of Justices Gautam Patel and Madhav Jamdar rejected the son's suggestion that he has a settled and enforceable share in either of the flats in the lifetime of the real owners, his parents, as being "laughable." "The fact that he is their son does not make either of their flats 'a shared household", the bench said.
"Asif(Son) can have no right, title or interest whatsoever in either of these flats — one in his father's name and other in his mother's name — so long as his parents are alive. The suggestion that Asif has a settled and enforceable share in either of the flats in the lifetimes of the real owners, his parents, is laughable."
49. Yes Bank Fraud Case: Bombay High Court Grants Bail To Avantha Group Promoter Gautam Thapar
Case Title - Gautam Thapar v/s. Central Bureau of Investigation
Citation: 2022 LiveLaw (Bom) 104
Bombay High Court granted bail to Avantha Group promoter Gautam Thapar accused in a case being investigated by the CBI regarding his alleged involvement in a loan fraud against Yes bank.
The court relied on the clarificatory decision of the Supreme Court in its order dated December, 16 2021 that " if during the course of investigation, there has been no cause to arrest the accused, merely because a charge sheet is filed, would not be an ipso facto cause to arrest the petitioner, an aspect in general clarified by us in Criminal Appeal No.838/2021 in Siddharth v/s. State of Uttar Pradesh and anr."
Case Title: Trilok Singh Gandhi vs Rajendra Kaushalraj Mehta
Citation: 2022 LiveLaw (Bom) 105
Giving precedence to the ripe age of a litigant, the Bombay High Court directed Small Causes Court to conclude a 92-year old's cross-examination in a dispute under the Rent Control Act, irrespective of a transfer application filed by the other side pending before the Principal Judge of that court.
Keeping in mind the age of petitioner Trilok Singh Gandhi, the court directed that his cross-examination be completed within two months of receipt of the order and directed the respondent to cooperate with the trial.
Case Title : Sadiq Shafi Qureshi v M.D. and C.E.O.,Union Bank of India and ors.
Citation: 2022 LiveLaw (Bom) 106
The HC held that an employee who is entitled under the applicable laws to withdraw his offer of voluntary retirement before the intended date of such voluntary retirement, loses his right to do so by accepting the retirement benefits.
"We find that the petitioner's conduct of receiving various service benefits from 14.09.2017 disentitle him to the relief of reinstatement with continuity of service as prayed by him."
Case Title :M/s. V.N.Reddy v The Superintending Engineer and ors
Citation: 2022 LiveLaw (Bom) 107
The Bombay High Court reiterated that a writ court should not ordinarily exercise its powers under Article 226 of the Constitution in contractual matters, unless the same is expedient in public interest.
The bench of Justices A.S. Chandurkar and G.A. Sanap took note of the Supreme Court's observations in Bharat Coking Coal Limited and others vs. AMR Dev Prabha and others, that the power of judicial review should not be permitted to be invoked in contractual disputes to protect private interest at the cost of public interest or to decide contractual disputes.
It observed, "although the threshold for the public interest to exist need not be high nevertheless it is essential to prevent bypassing of civil Courts and use of constitutional avenues for enforcement of contractual obligations."
Case Title: Sabhajit Ramyash Yadav and ors v State of Maharashtra
Citation: 2022 LiveLaw (Bom) 108
The Bombay High court recently came to the rescue of flat purchasers and allowed interim reliefs against private developers in writ petitions. A bench of Justices S.J. Kathawalla and Milind N. Jadhav regarded that inaction of government bodies against private developers is affecting the rights of innocent individuals. Hence, the court can exercise writ jurisdiction to protect their interests.
Case Title :Satara District Bar Association, Satara v State of Maharashtra
Citation: 2022 LiveLaw (Bom) 109
The HC rejected a writ petition filed by Satara District Bar Association, opposing its decision to establish the Court of an Additional District Judge and the Court of a Civil Judge in Maharashtra's Wai town. The Association had stated that the decision would put Judicial officers, staff and litigants to great difficulty.
"The real difficulty with this Petition is that it is unclear what is the legal right that the Petitioner is asserting when it says that this High Court should not consider establishing a Court at Wai. It seems to us that this is entirely self-serving...We do not deny that the Bar has a role to play in the administration of justice. We however emphatically assert that it is the interest of the litigants that is paramount and the role of the Court and all those who enable its functioning, whether Judges or lawyers, are meant to assist the delivery of justice to the litigant."
Case Title: Hotel & Restaurant Association (Western India) and Ors. v. Commissioner, State Excise and Ors. with connected matters
Citation: 2022 LiveLaw (Bom) 110
The Bombay High Court has dismissed a bunch of petitions seeking concessions on license renewal fees for vending foreign liquor calling them "at best, worthless from start to finish and, at worst, thoroughly irresponsible."
The court called the arguments made on behalf of the petitioners as that of "mind-numbing insensitivity" as the foreign liquor vending hotels "put themselves on the same level as the true victims who fell to the onslaught of the Covid-19 pandemic."
"We believe it is time to send a firm signal that the time of the court is not to be taken for granted, nor should there be any attempt to gamble on litigation. When a court's time is squandered on frivolous matters, there will be consequences," the bench observed.
Case Title : Smt. Varsha Deepak Desale v The State of Maharashtra
Citation: 2022 LiveLaw (Bom) 111
The HC came to the rescue of a widow, who was denied compassionate appointment by the Education Department in place of her deceased husband who was working as a Peon in an educational premises.
She was denied the benefit on the ground that the proposal seeking sanction to the new staffing pattern is pending with the Government. "There is no necessity to have sanction to the new staffing pattern for appointment on compassionate ground, therefore, the petition deserves to be allowed."