SUBJECT WISE INDEX

Advocate

Duty of all genuine lawyers to get their degrees verified: Supreme Court forms expert committee to oversee verification. Ajay Shankar Srivastava v. Bar Council of India, 2023 LiveLaw (SC) 307

Arbitration

Section 34 application must be filed within 90 days limitation to claim exclusion of period when court remain closed. Bhimashankar Sahakari Sakkare Karkhane Niyamita v Walchandnagar Industries Ltd; 2023 LiveLaw (SC) 288

Limited scrutiny of court under Section 11 of Arbitration Act through the “eye of the needle”, is necessary and compelling. NTPC Ltd v. SPML Infra Ltd; 2023 LiveLaw (SC) 287

Armed Forces

In the armed forces of the Union, including the paramilitary forces, utmost discipline, unity of command et al are the sine qua non. That said, the doctrine of proportionality still holds the field. (Para 36) B.S. Hari Commandant v. Union of India, 2023 LiveLaw (SC) 303

Supreme Court sets aside punishment imposed on BSF Commandant for allegedly allowing trans-border drugs smuggling. B.S. Hari Commandant v. Union of India, 2023 LiveLaw (SC) 303

Bail

The order of the High Court directing that the appellant be arrested immediately and seeking an explanation from the Second Additional Sessions Judge was wholly disproportionate and was not warranted. Such orders of the High Court produce a chilling effect on the District judiciary. The members of the district judiciary cannot be placed in a sense of fear if they were to exercise the jurisdiction lawfully entrusted to them for granting bail in appropriate cases. Totaram v. State of Madhya Pradesh, 2023 LiveLaw (SC) 289

Criminal Law

Accused not entitled to default bail when first extension (passed in absence of accused) wasn't challenged & second extension was passed in his presence. Qamar Ghani Usmani v. State of Gujarat, 2023 LiveLaw (SC) 297

The High Court cannot quash criminal proceedings at Section 482 Cr.P.C. stage by saying charges aren't proved. Central Bureau of Investigation v. Aryan Singh, 2023 LiveLaw (SC) 292

Alleged lack of jurisdiction of court no ground to transfer case: Supreme Court dismisses PFI student wing leader's plea. Ka Rauf Sherif v. Directorate of Enforcement, 2023 LiveLaw (SC) 284

View that there cannot be police custody beyond 15 days from date of arrest should be reconsidered. Central Bureau of Investigation v. Vikas Mishra @ Vikash Mishra, 2023 LiveLaw (SC) 283

Death Penalty

The Supreme Court directs all the States/appropriate authorities to decide mercy petitions against death sentences at the earliest so that the benefit of delay is not accrued to the accused. State of Maharashtra v. Renuka Shinde, 2023 LiveLaw (SC) 305

Even if the death penalty is to be commuted in view of inordinate delay in deciding mercy petition, an order to commute the death sentence to life imprisonment for natural life without any remission ought to be passed. State of Maharashtra v. Renuka Shinde, 2023 LiveLaw (SC) 305

Judicial Service

Supreme Court upholds the penalty of dismissal from service imposed on a civil judge in Karnataka - A judicial officer cannot pronounce the concluding portion of his judgment in open court without the entire text of the judgment being prepared / dictated - Supreme Court takes exception to the High Court division bench not only setting aside the penalty but also ordering that there shall be no further enquiry against the officer. Registrar General High Court of Karnataka v. Sri M.Narasimha Prasad, 2023 LiveLaw (SC) 286

Judgment

Uniform format for judgments - Supreme Court says that it is desirable that all Courts and Tribunals number the paragraphs in the judgments - Suggest adoption of a uniform format for Judgments and Orders, including paragraphing. (Para 56, 57) B.S. Hari Commandant v. Union of India, 2023 LiveLaw (SC) 303

Land Acquisition

The vesting of land with the State is with possession. Any person retaining the possession thereafter has to be treated as a trespasser. When a large chunk of land is acquired, the State is not supposed to put some person or police force to retain the possession and start cultivating on the land till it is utilized. The Government is also not supposed to start residing or physically occupying the same once process of the acquisition is complete - If after the process of acquisition is complete and land vest in the State free from all encumbrances with possession, any person retaining the land or any re-entry made by any person is nothing else but trespass on the State land. Land and Building Department through Secretary v. Attro Devi, 2023 LiveLaw (SC) 302

Supreme Court upholds quashing of the proceedings initiated by the Orissa Government to acquire nearly 8000 acres of land for Vedanta University proposed to be established by Anil Agarwal Foundation - Violations of the provisions of the LA Act 1894 - Also notes that procedure was vitiated by favouritism - Not appreciable why the Government offered such an undue favour in favour of one trust / company - No application of mind regarding environmental aspects - Two rivers also sought to be acquired. Anil Agarwal Foundation v. State of Orissa, 2023 LiveLaw (SC) 300

National Security

'Shocking': Supreme Court on UP Govt invoking National Security Act in Revenue Recovery Case; Quashes detention of SP Leader. Yusuf Malik v. Union of India, 2023 LiveLaw (SC) 301

Preventive Detention

Preventive detention laws in India are a colonial legacy, and as such, are extremely powerful laws that have the ability to confer arbitrary power to the state. In such a circumstance, where there is a possibility of an unfettered discretion of power by the Government, this Court must analyze cases arising from such laws with extreme caution and excruciating detail, to ensure that there are checks and balances on the power of the Government. (Para 44) Pramod Singla v. Union of India, 2023 LiveLaw (SC) 293

Every procedural rigidity, must be followed in entirety by the Government in cases of preventive detention, and every lapse in procedure must give rise to a benefit to the case of the detenue. The Courts, in circumstances of preventive detention, are conferred with the duty that has been given the utmost importance by the Constitution, which is the protection of individual and civil liberties. (Para 44) Pramod Singla v. Union of India, 2023 LiveLaw (SC) 293

Registration

Unregistered agreement to sell is admissible as evidence in suit for specific performance. R. Hemalatha v. Kashthuri, 2023 LiveLaw (SC) 304

Rent

UP Urban Building Act | Tenant can deposit rent in court only on the landlord's refusal to accept. Man Singh v. Shamim Ahmad, 2023 LiveLaw (SC) 290

Route March

Supreme Court dismisses Tamil Nadu Government's appeals against Madras High Court judgment allowing RSS route marches in the state. Phanindra Reddy, IAS v. G. Subramanian, 2023 LiveLaw (SC) 295

Service Law

Government employees cannot be denied the annual increment merely because they are to retire on the very next day of earning the increment - The entitlement to receive increment therefore crystallises when the government servant completes requisite length of service with good conduct and becomes payable on the succeeding day - Increment is not an "incentive" to perform well the next year - The entitlement to the benefit of annual increment is due to the service already rendered. (Para 6.7) Director (Admn and HR) KPTCL v. CP Mundinamani, 2023 LiveLaw (SC) 296

In absence of sanctioned post, the State cannot be compelled to create the post and absorb the persons who are continuing in service of the State - Direction of the High Court to reinstate after creating the posts and absorb the respondents based on their qualification is not sustainable in law. (Para 54 to 57) Government of Tamil Nadu v. Tamil Nadu Makkal Nala Paniyalargal, 2023 LiveLaw (SC) 294

Tax

Mortein spray, harpic & lizol cleaner- not classifiable as ‘insecticide’ under KVAT; Dettol a 'Medicament'. Reckitt Benckiser (India) Ltd. v. Commissioner Commercial Taxes, 2023 LiveLaw (SC) 306

Service Tax - Same activity can be taxed as ‘goods’ and ‘services’ provided the contract is indivisible and on the aspect of services there may be levy of service tax. Commissioner of Customs, Central Excise & Service Tax v. Suzlon Energy, 2023 LiveLaw (SC) 298

Service Tax - the import of “Engineering Design & Drawings” falls under the category of “design services” under section 65(35b) read with Section 65(105) (zzzzd) of the Finance Act, 1994, and are subject to levy of service tax. On the sole ground that “Engineering Design & Drawings” prepared and supplied by sister company were shown as ‘goods’ under the Customs Act and in the bill of entry, such services cannot be excluded from the definition of “design services” under the Finance Act, 1994. Commissioner of Customs, Central Excise & Service Tax v. Suzlon Energy, 2023 LiveLaw (SC) 298

Income Tax Act | For a company to be a "resident" in India, domicile or registration irrelevant; test is where de facto control lies. Mansarovar Commercial Pvt. Ltd. v. Commissioner of Income Tax, 2023 LiveLaw (SC) 291

Mere delay in remittance of TDS doesn’t attract penalty under S. 271C Income Tax Act. US Technologies International Pvt. Ltd. v. Commissioner of Income Tax, 2023 LiveLaw (SC) 285

Section 263 Income Tax Act - Erroneous order of assessing officer causing prejudice to revenue is revisable by CIT. Commissioner of Income Tax v. Paville Projects Pvt Ltd; 2023 LiveLaw (SC) 282

STATUTE WISE INDEX

Advocates Act, 1961 - Bar Council of India Certificate and Place of Practice (Verification) Rules 2015 - Having regard to the larger dimensions of this matter and the direct impact which the enrollment of fake degree holders and other persons who are not found to be in possession of the qualifications required for entry into the Bar have on the administration of justice, we accede to the suggestion of the Bar Council of India that a High Powered Committee should be constituted by this Court to monitor the process of verification. In our view, such a High-Powered Committee should be chaired by a former Judge of this Court and its members should consist of: (i) two Judges of the High Court; (ii) two senior advocates; and (iii) three members of the Bar Council of India. (Para 13) Ajay Shankar Srivastava v. Bar Council of India, 2023 LiveLaw (SC) 307

Arbitration and Conciliation Act, 1996; Section 11 - The Apex Court has set aside the decision of the Delhi High Court where the Court had referred the parties to arbitration under Section 11(6) of the A&C Act, after the parties had entered into a Settlement Agreement which recorded that there were no subsisting issues pending between them. The Supreme Court held that the High Court should have exercised the prima facie test to screen and strike down the ex-facie meritless and dishonest litigation. Further, it ought to have examined the issue of the final settlement of disputes in context of the principles laid down in Vidya Drolia and Ors. vs. Durga Trading Corporation ((2021) 2 SCC 1 - The Supreme Court has ruled that while exercising jurisdiction under Section 11(6) of the A&C Act, the court is not expected to act mechanically, and that the limited scrutiny of the court at the pre-reference stage, through the “eye of the needle”, is necessary and compelling. NTPC Ltd v. SPML Infra Ltd; 2023 LiveLaw (SC) 287

Arbitration and Conciliation Act, 1996; Section 34 - An application under Section 34 must be filed within “prescribed period” of limitation i.e. 90 days, for seeking benefit of exclusion of period during which the Court remained closed from computation of limitation period. If the application is filed by invoking proviso to Section 34(3) of Arbitration Act, which extends the limitation period to further 30 days on the Court’s discretion, then benefit of such exclusion would not be available to the applicant. Bhimashankar Sahakari Sakkare Karkhane Niyamita v Walchandnagar Industries Ltd; 2023 LiveLaw (SC) 288

Bar Council of India Certificate and Place of Practice (Verification) Rules 2015 - The due verification of advocates who are enrolled with the State Bar Councils, is of utmost importance to preserve the integrity of the administration of justice. Persons who profess to be lawyers, but do not either have the educational qualifications or degree certificates on the basis of which they could have lawfully granted entry to the Bar, pose a grave danger to the administration of justice to citizens. Hence, it is the duty of every genuine advocate of the country to ensure that they cooperate with the Bar Council of India which is seeking to ensure that the certificates of practice are duly verified, together with the underlying educational degree certificates. Unless this exercise is carried out periodically, there is a danger that the administration of justice would be under a serious cloud. (Para 10) Ajay Shankar Srivastava v. Bar Council of India, 2023 LiveLaw (SC) 307

Border Security Force Act, 1968 - Supreme Court quashes the order of General Security Force Court imposing dismissal from service, imprisonment for 10 years and fine of 1 lakh on a a BSF commandment for allegedly allowing cross-border transport of substances banned under the NDPS Act-appellant held entitled to full retiral benefits from the date of his superannuation till date. B.S. Hari Commandant v. Union of India, 2023 LiveLaw (SC) 303

Code of Criminal Procedure, 1973 - No accused can be permitted to play with the investigation and/or the court’s process. No accused can be permitted to frustrate the judicial process by his conduct. It cannot be disputed that the right of custodial interrogation/ investigation is also a very important right in favour of the investigating agency to unearth the truth, which the accused has purposely and successfully tried to frustrate. Therefore, by not permitting the CBI to have the police custody interrogation for the remainder period of seven days, it will be giving a premium to an accused who has been successful in frustrating the judicial process. (Para 8) Central Bureau of Investigation v. Vikas Mishra @ Vikash Mishra, 2023 LiveLaw (SC) 283

Code of Criminal Procedure, 1973; Section 167(2) - Accused cannot claim the benefit of default bail, when he did not challenge the first extension of time granted for investigation and the second extension was granted in his presence and when the chargesheet was subsequently filed within the period of extension. Qamar Ghani Usmani v. State of Gujarat, 2023 LiveLaw (SC) 297

Code of Criminal Procedure, 1973; Section 167(2) - It is true that in the case of Central Bureau of Investigation v. Anupam J. Kulkarni, reported in (1992) 3 SCC 141, this Court observed that there cannot be any police custody beyond 15 days from the date of arrest. In our opinion, the view taken by this Court in the case of Anupam J. Kulkarni (supra) requires re-consideration. (Para 7, 7.1) Central Bureau of Investigation v. Vikas Mishra @ Vikash Mishra, 2023 LiveLaw (SC) 283

Code of Criminal Procedure, 1973; Section 406 - That most of the accused and witnesses are from A state is not a ground to transfer case from B state to A state. (Para 12) Ka Rauf Sherif v. Directorate of Enforcement, 2023 LiveLaw (SC) 284

Code of Criminal Procedure, 1973; Section 406 - The lack of jurisdiction of a Court to entertain a complaint can be no ground to order its transfer. A congenital defect of lack of jurisdiction, assuming that it exists, inures to the benefit of the accused and hence it need not be cured at the instance of the accused to his detriment. (Para 11) Ka Rauf Sherif v. Directorate of Enforcement, 2023 LiveLaw (SC) 284

Code of Criminal Procedure, 1973; Section 482 - High Court cannot quash criminal proceedings at section 482 Cr.P.C. stage by saying charges aren't proved - High Court cannot conduct a "mini trial" while exercising powers under Section 482 Cr.P.C. - At the stage of discharge and/or while exercising the powers under Section 482 Cr.P.C., the Court has a very limited jurisdiction and is required to consider “whether any sufficient material is available to proceed further against the accused for which the accused is required to be tried or not.” - Whether the criminal proceedings was/were malicious or not, is not required to be considered at this stage. The same is required to be considered at the conclusion of the trial - What is required to be considered is a prima facie case and the material collected during the course of the investigation, which warranted the accused to be tried. Central Bureau of Investigation v. Aryan Singh, 2023 LiveLaw (SC) 292

Constitution of India, 1950; Article 22 (5) - illegible documents given to the detenue in preventive detention can cause prejudice in submitting a representation. This violates the principles under Article 22(5) of the Constitution of India, where the detaining authority must explain the grounds of detention in a language understood by the detenue. (Para 39) Pramod Singla v. Union of India, 2023 LiveLaw (SC) 293

Income Tax Act, 1961 - The Supreme Court has upheld the jurisdiction of the Assessing Officer at New Delhi to tax the income earned by the assessees incorporated under the Registration of Companies (Sikkim) Act, 1961, for the assessment years prior to the date the Income Tax Act, 1961 was extended to the State of Sikkim. Mansarovar Commercial Pvt. Ltd. v. Commissioner of Income Tax, 2023 LiveLaw (SC) 291

Income Tax Act, 1961; Section 263 - Commissioner of Income Tax can exercise revision powers under Section 263 of the Income Tax Act over the erroneous orders of the Assessing Officer which cause prejudice to the interest of the revenue - If due to an erroneous order of the Income Tax Officer, the Revenue is losing tax lawfully payable by a person, it will certainly be prejudicial to the interests of the Revenue. Commissioner of Income Tax v. Paville Projects Pvt Ltd; 2023 LiveLaw (SC) 282

Income Tax Act, 1961; Section 271C - The Supreme Court has ruled that no penalty is leviable under Section 271C on the mere delay in remittance of TDS after the same has been deducted by the assessee. The Court has held that the relevant words used in Section 271C(1)(a) are “fails to deduct”, and the same does not speak about belated remittance of the TDS - The Court ruled that the words “fails to deduct” occurring in Section 271C(1)(a) cannot be read as “failure to deposit/ pay the tax deducted”, while adding that the consequences of non-payment/belated remittance of the TDS are specifically provided by the Parliament under Sections 201(1A) and 276B of the Income Tax Act - The Court thus set aside the Kerala High Court’s order where it had upheld the levy of penalty under Section 271C for belated remittance of TDS. US Technologies International Pvt. Ltd. v. Commissioner of Income Tax, 2023 LiveLaw (SC) 285

Income Tax Act, 1961; Section 6(3) - Since the control and management of the affairs of the assessee companies was with its auditor in New Delhi, the Income Tax Act, 1961 was applicable to them. Thus, the assesses who were incorporated under the company law of Sikkim, were resident Indian companies, and the income accrued to them/ earned by them in India for the assessment years prior to 1st April 1990, was taxable under the Income Tax Act. Mansarovar Commercial Pvt. Ltd. v. Commissioner of Income Tax, 2023 LiveLaw (SC) 291

Income Tax Act, 1961; Section 80-IB - Assessee is not entitled to deduction under Section 80- IB of the Act on the amount received / profit derived from the Duty Entitlement Pass Book Scheme (DEPB) and the Duty Drawback Schemes. The bench held that the profit from the DEPB and the Duty Drawback claims cannot be said to be an income “derived from” the industrial undertaking. The court added that even otherwise, such an income is chargeable to tax as per Sections 28(iiid) and (iiie) of the Income Tax Act. Saraf Exports v. Commissioner of Income Tax, Jaipur-III, 2023 LiveLaw (SC) 299

Kerala VAT Act (KVAT), 2003 - Entry 44(5) of 3rd Schedule - Mosquito Mats, Coils and Vaporizers, Mortein Insect Killers, Harpic Toilet Cleaner and Lizol Floor Cleaners, are not be classifiable under Entry 44(5) as ‘insecticides’, observing that Entry 44(5) is a general entry - The said products would fall under Sl.No.66 and 27(4) of Notification SRO 82/06, dated 21.01.2006, issued under the KVAT Act, which is a specific entry which covers ‘Mosquito Repellants’ and ‘stain busters/ stain removers’, respectively. The said products would thus attract a VAT of 12.5% under the said Notification, and not 4%. - Applying the dominant use test, the court held that Harpic Toilet Cleaner and Lizol Floor Cleaners are essentially used as stain removers and deodorants and because they kill germs as well, they cannot be said to be insecticides classifiable under Entry 44(5). Reckitt Benckiser (India) Ltd. v. Commissioner Commercial Taxes, 2023 LiveLaw (SC) 306

National Security Act, 1980 - Supreme Court terms as "shocking and unsustainable" the invocation of NSA in a revenue recovery case - Says NSA is to control the anti-social and anti national elements including secessionist, communal and pro-caste elements, that affect the services essential to the community, thereby posing a grave challenge - Holds that there was no application of mind in ordering the detention of the petitioner under NSA. Yusuf Malik v. Union of India, 2023 LiveLaw (SC) 301

Registration Act, 1908 - Effect of Tamil Nadu amendment by which Section 17(1)(g) of the Registration Act has been inserted which makes agreement to sell immovable property valued above Rs 100 compulsorily registrable - Held, the amendment will not affect proviso to Section 49, which allows unregistered sale agreements to be received in evidence. (Para 12, 13) R. Hemalatha v. Kashthuri, 2023 LiveLaw (SC) 304

Registration Act, 1908; Proviso to Section 49 - An unregistered document affecting immovable property and required by Registration Act or the Transfer of Property Act to be registered, may be received as evidence of a contract in a suit for specific performance or as evidence of any collateral transaction not required to be effected by registered instrument. (Para 12, 13) R. Hemalatha v. Kashthuri, 2023 LiveLaw (SC) 304

Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972; Section 30 – A tenant may deposit rent in the Court on refusal of the rent by the landlord, but this position only lasts till the landlord expresses his willingness to receive the rent. If the landlord serves formal notice expressing willingness, the tenant upon receipt of notice is under an obligation to tender the rent at least at the rate admitted to the landlord. Man Singh v. Shamim Ahmad, 2023 LiveLaw (SC) 290

NOMINAL INDEX

1. Ajay Shankar Srivastava v. Bar Council of India, 2023 LiveLaw (SC) 307
2. Anil Agarwal Foundation v. State of Orissa, 2023 LiveLaw (SC) 300
3. B.S. Hari Commandant v. Union of India, 2023 LiveLaw (SC) 303
4. Bhimashankar Sahakari Sakkare Karkhane Niyamita v Walchandnagar Industries Ltd; 2023 LiveLaw (SC) 288
5. Central Bureau of Investigation v. Aryan Singh, 2023 LiveLaw (SC) 292
6. Central Bureau of Investigation v. Vikas Mishra @ Vikash Mishra, 2023 LiveLaw (SC) 283
7. Commissioner of Customs, Central Excise & Service Tax v. Suzlon Energy, 2023 LiveLaw (SC) 298
8. Commissioner of Income Tax v. Paville Projects Pvt Ltd; 2023 LiveLaw (SC) 282
9. Director (Admn and HR) KPTCL v. CP Mundinamani, 2023 LiveLaw (SC) 296
10. Government of Tamil Nadu v. Tamil Nadu Makkal Nala Paniyalargal, 2023 LiveLaw (SC) 294
11. Ka Rauf Sherif v. Directorate of Enforcement, 2023 LiveLaw (SC) 284
12. Land and Building Department through Secretary v. Attro Devi, 2023 LiveLaw (SC) 302
13. Man Singh v. Shamim Ahmad, 2023 LiveLaw (SC) 290
14. Mansarovar Commercial Pvt. Ltd. v. Commissioner of Income Tax, 2023 LiveLaw (SC) 291
15. NTPC Ltd v. SPML Infra Ltd; 2023 LiveLaw (SC) 287
16. Phanindra Reddy, IAS v. G. Subramanian, 2023 LiveLaw (SC) 295
17. Pramod Singla v. Union of India, 2023 LiveLaw (SC) 293
18. Qamar Ghani Usmani v. State of Gujarat, 2023 LiveLaw (SC) 297
19. R. Hemalatha v. Kashthuri, 2023 LiveLaw (SC) 304
20. Reckitt Benckiser (India) Ltd. v. Commissioner Commercial Taxes, 2023 LiveLaw (SC) 306
21. Registrar General High Court of Karnataka v. Sri M.Narasimha Prasad, 2023 LiveLaw (SC) 286
22. Saraf Exports v. Commissioner of Income Tax, Jaipur-III, 2023 LiveLaw (SC) 299
23. State of Maharashtra v. Renuka Shinde, 2023 LiveLaw (SC) 305
24. Totaram v. State of Madhya Pradesh, 2023 LiveLaw (SC) 289
25. US Technologies International Pvt. Ltd. v. Commissioner of Income Tax , 2023 LiveLaw (SC) 285
26. Yusuf Malik v. Union of India, 2023 LiveLaw (SC) 301