Bombay High Court Monthly Digest: July 2023

XXX vs State of Maharashtra 2023 LiveLaw (Bom) 314

State of Maharashtra and Ors. v. Sudhir Bhagwat Kalekar 2023 LiveLaw (Bom) 315

Bharat Parihar v. State of Maharashtra 2023 LiveLaw (Bom) 316

Lakhan Pralhad Misal v. State of Maharashtra 2023 LiveLaw (Bom) 317

Pr. Commissioner Of Income Tax v. Dharmanandan Diamonds Pvt. Ltd. 2023 LiveLaw (Bom) 318

SLS Energy Pvt. Ltd. v. ITO 2023 LiveLaw (Bom) 319

The Commissioner of Income International Taxation-1 v. Alibaba.Com Singapore E-Commerce Pvt. Ltd. 2023 LiveLaw (Bom) 320

Commissioner of Income Tax v. M/s. Colgate Palmolive Marketing SDN BHD 2023 LiveLaw (Bom) 321

Ronak Industries v. Assistant Commissioner 2023 LiveLaw (Bom) 322

Sunlight Cable Industries Versus The Commissioner of Customs 2023 LiveLaw (Bom) 323

Gyan SP Developers LLP v. Tahsildar 1 (Special Class), SRA and Ors. 2023 LiveLaw (Bom) 324

Sagar Chandramauli Ponnala v. State of Maharashtra 2023 LiveLaw (Bom) 325

Maharashtra State Power Generation Company Limited v. Assistant Commissioner of Income Tax and Ors. 2023 LiveLaw (Bom) 326

Vishal Kanhaiyalal Shrimali v. Union Territory of Daman and Diu 2023 LiveLaw (Bom) 327

Vijay S/o. Harinarayan Choudhary v. M/s. Indian Oil Corporation Ltd. and Ors. 2023 LiveLaw (Bom) 328

Dr. Sandeep S/o Ashokrao Ragade v. State of Maharashtra and Ors. 2023 LiveLaw (Bom) 329

Jay Pramod Rikame and Ors. v. State of Maharashtra 2023 LiveLaw (Bom) 330

Dhirendra Bhupendra Sanghvi v. Assistant Commissioner of Income Tax Circle – 27(3) and Ors. 2023 LiveLaw (Bom) 331

Dr. Jaysiddheshwar Shivacharya Mahaswamiji v. State of Maharashtra and Ors. 2023 LiveLaw (Bom) 332

Media Net Software Services (India) Pvt. Ltd. Versus Union of India & Ors. 2023 LiveLaw (Bom) 333

Nawab Malik v. Directorate of Enforcement 2023 LiveLaw (Bom) 334

Rohit Manohar Joshi and Ors. v. Tree Authority Thane Municipal Corporation 2023 LiveLaw (Bom) 335

Ashik Ramjan Ansari v. State of Maharashtra & Anr. 2023 LiveLaw (Bom) 336

Mukand Limited Versus The Union of India 2023 LiveLaw (Bom) 337

Jumma Masjid Trust Committee v. State of Maharashtra and Ors. 2023 LiveLaw (Bom) 338

Abbott India Limited v. Dipak s/o Arunrao Deshmukh 2023 LiveLaw (Bom) 339

Aslam Salim Shaikh v. State of Maharashtra 2023 LiveLaw (Bom) 340

Shaila Jitendra Kanthe v. Chief Minister of State of Maharashtra & Ors. 2023 LiveLaw (Bom) 341

Melwyn Isidore Fernandes and Others vs State of Maharashtra 2023 LiveLaw (Bom) 342

Usha Eswar v. Rajeshwari Menon 2023 LiveLaw (Bom) 343

Shramik Janta Sangh & Ors. v. State of Maharashtra & Ors. 2023 LiveLaw (Bom) 344

Mukand Limited Versus The Union of India 2023 LiveLaw (Bom) 345

PCIT v. Indravadan Jain, HUF 2023 LiveLaw (Bom) 346

Indus Towers Ltd., Pune (Formerly, Bharti Infratel Ltd., Pune) v. Grampanchayat, Chikhalhol, Tal. Khanapur, Dist. Sangli and Ors. 2023 LiveLaw (Bom) 347

Santosh Pandurang Parte v. Amar Bahadur Maurya and Anr. 2023 LiveLaw (Bom) 348

Kishor Shivdas Shinde v. State of Maharashtra and Anr. 2023 LiveLaw (Bom) 349

Ramchandra Maruti Yedage v. State of Maharashtra 2023 LiveLaw (Bom) 350

Reports/Judgments

Juvenile Justice Board's Decision To Try Child As Adult Must Be Transparent And Fair: Bombay High Court

Case Title: XXX vs State of Maharashtra

Citation: 2023 LiveLaw (Bom) 314

Owing to several procedural lapses by the Juvenile Justice Board (JJB), Yavatmal, the Bombay High Court ordered re-adjudication of a plea to try two juveniles as adults in the case of a gang-rape of a minor girl.

Justice GA Sanap at the Nagpur bench noted that the JJB’s roznama didn’t specify if the juveniles or their advocates were even given a copy of the application, their psychiatric evaluation report or if they participated in the assessment process under Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2015.

The bench further observed that final order passed by the JJB to try the juveniles as an adult with such a half-hearted inquiry, "has caused prejudice not only to the JCLs, but to the informant and the victim.”

Bombay High Court Sets Aside Tribunal Order Asking State To ‘Correct’ ACP’s DoB Two Months Before His Retirement

Case Title: State of Maharashtra and Ors. v. Sudhir Bhagwat Kalekar

Citation: 2023 LiveLaw (Bom) 315

Observing that time limit for a government servant to change his date of birth in service records is meant to avoid uncertainty in administration, the Bombay High Court held that such requests for such change cannot be entertained at the end of someone's career.

A division bench of Justice Dhiraj Singh Thakur and Justice Sandeep V Marne observed that cases for change in date of birth filed just before retirement in order to extend service lead to chaos in the administration.

The court set aside Maharashtra Administrative Tribunal’s order allowing former ACP (Traffic) of South Mumbai Sudhir Kalekar’s plea for changing his date of birth filed only two months before his scheduled retirement.

GST Provisional Attachment Order Not Valid After Expiry Of 1 Year: Bombay High Court

Case Title: Bharat Parihar v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 316

The Bombay High Court held that the GST provisional attachment order is not valid after one year.

The bench of Justice G.S. Kulkarni and Justice Jitendra Jain has observed that the communication dated April 21, 2022, provisionally attaching the Petitioner’s bank account is rendered illegal and invalid by virtue of the provisions of Section 83(2) of the CGST Act. The extension of the provisional attachment by communication dated April 19, 2023, was illegal.

The petitioner/assessee challenged the provisional attachment of the bank account of the Petitioner with the bank under Section 83 of the CGST Act, 2017 and a communication dated April 19, 2023, by which the provisional attachment made on April 21, 2022, is retained under Section 83 of the CGST Act.

'Example Of Degrading Legal Profession' : Bombay High Court Castigates Lawyers For Misleading Court ; Refrains From Action After Apology

Case Title: Lakhan Pralhad Misal v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 317

The Bombay High Court recently castigated two lawyers for misleading the court to secure bail for their client in an attempt to murder case. The court observed that increasingly lawyers were providing result-driven services putting their own careers at stake.

The court decided to refer the matter to the Bar Counsel for disciplinary action. However, after both erring counsels approached the judge along with officer bearers of the Bar Association and agreed to given an unconditional written apology, the action was withdrawn.

Assessee Entitled To Claim Depreciation In Respect Of Assets On The Actual Cost Of Assets: Bombay High Court

Case Title: Pr. Commissioner Of Income Tax v. Dharmanandan Diamonds Pvt. Ltd.

Citation: 2023 LiveLaw (Bom) 318

The Bombay High Court held that the assessee is entitled to claim depreciation in respect of any assets based on the actual cost of the assets.

The bench of Justice K.R. Shriram and Justice M.M. Sathaye observed that the actual cost of the assets will be the actual cost that the assessee paid to the predecessor after revaluing the assets, and certainly, the assessee will be entitled to claim depreciation for the subsequent years on the basis of the actual cost paid.

Bombay High Court Quashes Reassessment Proceedings Initiated To Tax Share Premium Of Rs. 679.32 Crores

Case Title: SLS Energy Pvt. Ltd. v. ITO

Citation: 2023 LiveLaw (Bom) 319

The Bombay High Court quashed the reassessment proceedings initiated to recover the tax share premium of Rs. 679 crores.

The bench of Justice Dhiraj Singh Thakur and Justice Kamal Khata has observed that the AO had only lagged the share premium amount of Rs.679.32 crores, which according to him was chargeable to tax that had escaped assessment, and did not question the amount of Rs.68 lakhs received by the Petitioner company representing the value of Rs.68 lakhs of shares of the face value of rupee 1 per share.

Income-Tax Dept. Cannot Ignore The Valid TRC Issued By The Govt.: Bombay High Court Allows DTAA-Benefits To Alibaba Singapore

Case Title: The Commissioner of Income International Taxation-1 v. Alibaba.Com Singapore E-Commerce Pvt. Ltd.

Citation: 2023 LiveLaw (Bom) 320

The Bombay High Court granted the benefit of the India-Singapore Double Tax Avoidance Agreement (DTAA) to the e-commerce platform Alibaba Singapore.

The bench of Justice K.R. Shriram and Justice Firdosh P. Pooniwalla upheld the order of the ITAT that if the Revenue was so convinced that the assessee’s activity in India with various subscribers was carried out by Alibaba Hong Kong, then the department was expected to act against Alibaba Hong Kong and not the assessee, i.e., Alibaba Singapore.

Consideration Received By Colgate Palmolive Malaysia From It’s Indian Entity For Providing Access To SAP System Is Not Royalty, not taxable : Bombay High Court

Case Title: Commissioner of Income Tax v. M/s. Colgate Palmolive Marketing SDN BHD

Citation: 2023 LiveLaw (Bom) 321

The Bombay High Court  held that consideration received by assessee Colgate Palmolive's Malaysian arm from its Indian entity for providing access to System Analysis Program Development (SAP) system is not taxable as royalty.

The bench of Justice K.R. Shriram and Justice Firdosh P. Pooniwalla has observed that the payment of USD 11,80,500 made by Colgate Palmolive (India) Limited (CPI) to the Assessee could not have been brought to tax under the Act as equipment royalty.

Priority Of The Secured Creditor Over Govt. Dues Under SARFAESI Act, 2002: Bombay High Court

Case Title: Ronak Industries v. Assistant Commissioner

Citation: 2023 LiveLaw (Bom) 322

The Bombay High Court held that priority belongs to the secured creditor in respect of the dues of the Central government, state government, or local authority under Section 26-E of the SARFAESI Act, 2002.

The bench of Justice B. P. Colabawalla and Justice M.M. Sathaye has observed that the statute goes quite far, and it is not only revenues, taxes, cesses, and other rates payable to the State Government or any local authority but also those payable to the Central Government that would have to stand in the queue after the secured creditor for payment of its dues.

Bombay High Court Allows IGST Refund On Zero Rated Supply Along With 7% Interest

Case Title: Sunlight Cable Industries Versus The Commissioner of Customs

Citation: 2023 LiveLaw (Bom) 323

The Bombay High Court allowed the refund of IGST on zero-rated supply along with 7% interest.

The bench of Justice G.S. Kulkarni and Justice Jitendra Jain has observed that the petitioner was entitled to a refund of the IGST paid on the exports in question, as it is certain that this is not a case where the petitioner is availing of any double benefit, that is, the IGST refund and a higher duty drawback.

High Court’s Authority Runs Above MLA’s: 19 Tenements Demolished After Bombay HC Criticised Political Interference In Slum Redevelopment Project

Case Title: Gyan SP Developers LLP v. Tahsildar 1 (Special Class), SRA and Ors.

Citation: 2023 LiveLaw (Bom) 324

Nineteen tenements in Jogeshwari, Mumbai were demolished on Tuesday after Bombay High Court pulled up the Slum Redevelopment Authority and BMC for stalling the demolition on the basis of a letter by MLC Pravin Darekar to CM Eknath Shinde against the redevelopment scheme.

A division bench of Justice GS Patel and Justice Neela Gokhale had stated on the previous date that the authority of High Court is above that of MLAs, and also warned action against those responsible for any such interference with court orders.

SRA submitted a compliance report by the Tehsildar, SRA, stating that demolition of the nineteen structures has been carried out as scheduled on July 4, 2023.

Man Lured By Job Offer During Covid Robbed And Killed: Bombay High Court Grants Bail To Accused After Police Fails To Prove Recovery

Case Title: Sagar Chandramauli Ponnala v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 325

The Bombay High Court granted bail to a man co-accused of luring an unassuming job seeker to his ultimate death during the Covid-19 pandemic on the ground that the prosecution prima facie failed to substantiate the circumstantial evidence against him.

Justice SM Modak granted bail to Sagar Ponnala booked under Sections 326 (grievous hurt), 302 (murder) and 34 of IPC. The judge noted that apart from call records there was nothing more to connect Ponnala to the crime.

It further rejected the prosecution’s argument that the bounty-bag collected by a watchman near the crime scene and handed over to the police days later could be termed as a recovery at Ponnala’s behest merely because he allegedly pointed out the place where the bag was left.

No Material Available To Conclude Income Had Escaped Assessment: Bombay HC Quashes Income Tax Notice

Case Title: Maharashtra State Power Generation Company Limited v. Assistant Commissioner of Income Tax and Ors.

Citation: 2023 LiveLaw (Bom) 326

The Bombay High Court provided relief to the Maharashtra State Power Generation Company Limited by quashing the notice issued by the Assistant Commissioner of Income Tax under Section 148 of the Income Tax Act. The court observed a lack of tangible material to support the conclusion that income had escaped assessment, thereby prohibiting any further steps by the tax authorities regarding the notice.

The Division Bench comprising Justice Dhiraj Singh Thakur and Justice Kamal Khata reiterated that Corporate Social Responsibility (CSR) expenditure is allowable under Section 37(1) of the Act. The bench further noted that the insertion of Explanation 2 to Section 37(1) operates prospectively.

Compliance Of Procedural Safeguards In Preventive Detention, However Technical, Mandatory: Bombay High Court Grants Relief To Advocate, Clients

Case Title: Vishal Kanhaiyalal Shrimali v. Union Territory of Daman and Diu

Citation: 2023 LiveLaw (Bom) 327

The Bombay High Court quashed detention orders against a father-son duo and their advocate allegedly detained for raising their voice against pollution caused by the marble industry.

A division bench of Justice Revati Mohite-Dere and Justice Sharmila U Deshmukh observed that the orders were passed without application of mind, no material was placed before the detaining authority to conclude that the detenues threatened the peace and tranquility of the public.

Considering that the detenues had to remain in custody since November 10, 2022 despite detention orders not being based on any material, the court also awarded costs of Rs. 20,000 to each detenue. Additionally, the court called upon the concerned authorities to organize workshops for officers responsible for dealing with detention laws.

Petroleum Rules 2002 | Pendency Of Suit For Lease Renewal Doesn't Confer ‘Right To Site’ For Storing Petroleum After Lease Expiry: Bombay High Court

Case Title: Vijay S/o. Harinarayan Choudhary v. M/s. Indian Oil Corporation Ltd. and Ors.

Citation: 2023 LiveLaw (Bom) 328

The Bombay High Court recently held that after expiry of lease, pendency of civil suits between landowner and leaseholder would not give the leaseholder right to store petroleum on the site under Rule 152(1)(i) of the Petroleum Rules, 2002.

A division bench of Justice Rohit B Deo and Justice MW Chandwani sitting at Nagpur quashed the license granted to the Indian Oil Corporation Limited (IOCL) for operating a petrol pump on a plot in Nagpur.

Minimum 3 Years 'Regular Service' Mandatory For In-Service Status To NEET PG Candidates: Bombay High Court

Case Title: Dr. Sandeep S/o Ashokrao Ragade v. State of Maharashtra and Ors.

Citation: 2023 LiveLaw (Bom) 329

The Bombay High Court held that temporary service cannot be counted while determining a medical officer’s eligibility to appear as an in-service candidate in NEET PG. While temporary service can be counted for awarding grace marks to a medical officer posted in rural areas, minimum three years of permanent service is mandatory for status of in-service candidate in NEET PG, the court clarified.

A division bench of Justice Mangesh S Patil and Justice SG Chapalgaonkar sitting at Aurangabad clarified the provisions of government resolution (GR) on Regulation For Selection of In-Service Medical Officers from the cadre of Maharashtra Medical and Health Services Group - A for Post Graduate Degree and Diploma Courses.

Bombay High Court Refuses To Quash Admission Process For MBA/MMS Courses Through CET 2023

Case Title: Jay Pramod Rikame and Ors. v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 330

The Bombay High Court refused to quash the results of the Maharashtra Common Entrance Test (CET) 2023 and process for admission to MBA/MMS courses observing that normalization of scores is necessary, and no candidate can demand it not be done at all or be done at his convenience.

A division bench of Justice GS Patel and Justice Neela Kedar Gokhale rejected a writ petition filed by 154 students against the admission process, observing that this is an attempt to cancel the exam after participating in the retest (fifth slot) and not obtaining desired results.

Bombay High Court Declares Notices And Proceedings Under Income Tax Act For Deceased Assessee As Null And Void

Case Title: Dhirendra Bhupendra Sanghvi v. Assistant Commissioner of Income Tax Circle – 27(3) and Ors.

Citation: 2023 LiveLaw (Bom) 331

While emphasizing that if the concerned officers followed the settled law and refrained from issuing null and void notices, it would be beneficial not only for the citizens but also for the already overburdened courts in the country, the Bombay High Court ruled that all notices and consequential proceedings under the Income Tax Act in the name of a deceased assessee were null and void.

The Division Bench of Justice Dhiraj Singh Thakur and Justice Kamal Khata observed, “In our view, if the concerned officers follow the settled law and abstain from issuing notices which are null and void, would not only help the citizenry but also the courts in the country who are already overburdened. In fact, it would be in tune with the Finance Act 2021 which aims to achieve the ultimate object of simplifying the tax administration, ease compliance and reduce litigation.”

Bombay High Court Quashes Scrutiny Committee's Order Cancelling Solapur BJP MP’s Caste Certificate, Remands Matter For Fresh Hearing

Case Title: Dr. Jaysiddheshwar Shivacharya Mahaswamiji v. State of Maharashtra and Ors.

Citation: 2023 LiveLaw (Bom) 332

The Bombay High Court recently quashed an order cancelling caste certificate of Solapur BJP MP Jaysiddheshwar Shivacharya Mahaswami.

A division bench of Justice Sunil B Shukre and Justice Rajesh S Patil remanded the matter back to the Scrutiny Committee for fresh consideration observing that the committee did not follow the mandatory procedure.

“The scrutiny committee has substantially bypassed the mandatory procedure prescribed in the SC and SC Act 2000 and the SC Rules 2012 in passing the impugned order, and, as such has committed a patent illegality in the matter”, the court held.

The court found that the Scrutiny Committee failed to record the necessary satisfaction and denied Shivacharya the opportunity to cross-examine witnesses and the vigilance officer, violating the Maharashtra Scheduled Castes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Rules, 2012.

State GST Dept. Doesn’t Have Jurisdiction To Retain Amount Of Tax On Export Transactions: Bombay High Court

Case Title: Media Net Software Services (India) Pvt. Ltd. Versus Union of India & Ors.

Citation: 2023 LiveLaw (Bom) 333

The Bombay High Court held that CGST/MGST authorities would not have jurisdiction to retain the amount of tax on export transactions.

The bench of Justice G. S. Kulkarni and Justice Jitendra S. Jain has directed the state government to transfer the amount to the Central Government.

The petitioner was required to deposit tax on the export transaction in question with the authorities under the CGST Act and/or the MGST Act. The petitioner had taken a clear position that authorities would not have jurisdiction to demand any tax on the export of services.

Bombay High Court Refuses Temporary Bail To Nawab Malik On Medical Grounds In Money Laundering Case

Case Title: Nawab Malik v. Directorate of Enforcement

Citation: 2023 LiveLaw (Bom) 334

The Bombay High Court refused temporary bail to former Maharashtra Cabinet Minister and NCP leader Nawab Malik in ED's money laundering case.

The order was passed by Justice Anuja Prabhudessai. Malik sought bail on the ground that one of his kidneys has failed and the other is functioning only at 60 percent capacity and is deteriorating further.

Bombay High Court To Monitor De-Concretization Of Trees In Thane, Orders To Set Up Helpline For Residents

Case Title: Rohit Manohar Joshi and Ors. v. Tree Authority Thane Municipal Corporation

Citation: 2023 LiveLaw (Bom) 335

The Bombay High Court has decided to monitor the de-concretization work around the roots and bases of trees in Thane city. The Thane Municipal Corporation (TMC) on Wednesday told the court that it will complete de-concretization within 45 days.

A division bench of Acting Chief Justice Nitin Jamdar and Justice Arif Doctor was hearing a PIL seeking de-concretization of tree roots and bases in Thane District.

“Since the learned counsel for the Thane Municipal Corporation states that the work of de-concretization would be commenced immediately and would be completed within 45 days, we intend to monitor the same”, the court said.

The court directed the TMC to establish and to ensure adequate publicity of a helpline number and email address where residents can report trees in need of de-concretization.

'Sexual Acts Do Not Happen Only In Confines Of Marriage, Age Of Consent Has To Be Distinguished From Age Of Marriage': Bombay High Court

Case Title: Ashik Ramjan Ansari v. State of Maharashtra & Anr.

Citation: 2023 LiveLaw (Bom) 336

Raising concerns about the increase in criminal cases involving minors in consensual sexual relationships, the Bombay High Court called for a shift from a punitive approach towards adolescents’ sexuality to one that enables access to sexual and reproductive health services.

“The mere apprehension that adolescents would make an impulsive and bad decision, cannot classify them under one head and by ignoring their will and wishes. The age of consent necessarily has to be distinguished from the age of marriage as sexual acts do not happen only in the confines of marriage and not only the society, but the judicial system must take note of this important aspect," Court observed.

It added,

"Whilst all children are entitled to be protected from sexual violence, such protection should also enable young people to extend their boundaries, exercise choices and engage in necessary risk taking though not exposing them to inappropriate response, harm and danger. The penal approach towards adolescents’ sexuality has impacted their life to a barrier free access to sexual and reproductive health services”, the court observed.

Justice Bharti Dangre said that the criminalization of romantic relationships has burdened the justice system, consuming significant time and resources, while ultimately the victim turns hostile. It stressed the importance of striking a balance between the protection of vulnerable class and those capable of deciding what is right for them.

Bombay High Court Quashes Reopening Income Tax Assessment After 4 Years Merely On The Change Of Opinion

Case Title: Mukand Limited Versus The Union of India

Citation: 2023 LiveLaw (Bom) 337

The Bombay High Court quashed the reopening of income tax assessments after 4 years merely on the change of opinion of the Assessing Officer (AO).

The bench of Justice K. R. Shriram and Justice Firdosh P. Pooniwalla observed that the Assessing Officer had in his possession all primary facts, and it was for him to draw a proper inference as to whether the brought forward unabsorbed depreciation should be adjusted against capital gains or profit and gains from business or profession. There was nothing more to disclose, and a person cannot be said to have omitted or failed to disclose something of which he had no knowledge.

The petitioner/assessee has filed a petition challenging the legality and validity of a reassessment notice issued by the department under Section 148 of the Income Tax Act, 1961. The reassessment notice was issued more than four years after the expiration of the relevant assessment year.

Bombay High Court Stays District Magistrate's Order Restraining Namaz In Jalgaon Mosque

Case Title: Jumma Masjid Trust Committee v. State of Maharashtra and Ors.

Citation: 2023 LiveLaw (Bom) 338

The Bombay High Court stayed for two weeks the District Magistrate’s (DM) order restraining people from offering prayers at a mosque in Erandol Taluka, Jalgaon and allowed religious prayers to continue until the next hearing, scheduled after two weeks.

Justice RM Joshi of the Aurangabad bench observed that prima facie, the DM passed the order without being satisfied that there is likelihood of breach of peace, and directed the mosque keys to be handed over to Jumma Masjid Trust Committee, which maintains the mosque.

“Prima facie perusal of the order impugned shows that there is no finding recorded about the Authority being satisfied that there is likelihood of breach of peace on account of alleged dispute…Section 144 of Cr.P.C no doubt provides the powers to the District Magistrate even to take suo moto action, however, existence of likelihood of causing of disturbance of public peace or tranquility is sine qua non to assume such power. In prima facie opinion of this Court for want of such findings being recorded makes impugned order vulnerable and not sustainable in law”, the court stated.

Hindu group Pandavwada Sangharsh Samiti (PSS) has claimed that the mosque in question resembles a temple and accused the local Muslim community of encroachment. The Trust responsible for maintaining the mosque claims to possess records proving the existence of the structure at least since 1861.

Tribunal Failed To Consider Roles & Responsibilities: Bombay High Court Holds Abbott's Business Manager Not 'Workman' Under Industrial Disputes Act

Case Title: Abbott India Limited v. Dipak s/o Arunrao Deshmukh

Citation: 2023 LiveLaw (Bom) 339

The Bombay High Court held that a "Therapy Business Manager" whose job involves executing business development, marketing strategies, and customer management, is not a 'workman' under Section 2(s) of the Industrial Disputes Act, 1947.

Justice Avinash Gharote of the Nagpur bench was dealing with a writ petition challenging labour court’s finding that one Dipak Deshmukh, employed as Therapy Business Manager at pharmaceutical company Abbott India Ltd. was a workman.

“The nature of duties which the respondent is required to perform in terms of the order of appointment and those specifically enumerated in Annexure-II above clearly indicate that the employment of the respondent is neither to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work”, the court observed.

Bombay High Court Orders Release Of 30-Yr-Old Convicted In 41 Theft Cases And Sentenced To Over 83 Yrs Imprisonment

Case Title: Aslam Salim Shaikh v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 340

The Bombay High Court has ordered the release of a 30-year-old man convicted in 41 theft cases and sentenced to over 83 year in prison, as the trial courts did not order his sentences to run concurrently.

A division bench of Justice Revati Mohite-Dere and Justice Gauri Godse observed that if a man is made to undergo imprisonment for an excessive period, it would lead to a travesty of justice.

The convict, one Aslam Shaikh, filed the present writ petition through the Legal Services Authority, seeking a direction that the sentences in the 41 cases should run concurrently. Additionally, he requested the setting aside of the total fine amount of Rs. 1,26,400/- imposed by various courts in these cases. Shaikh has been in custody since December 3, 2014, after being arrested and prosecuted for theft in different cases by various police stations.

The High Court noted that the petitioner's cumulative sentence would amount to over 90 years in prison, effectively a life sentence for theft, which was grossly disproportionate to the crime committed. The court emphasized that the primary goals of sentencing are deterrence and reformation, and in this case, such an excessive sentence would lead to a serious miscarriage of justice.

Bombay High Court Disposes Of PIL Seeking Criminal Investigation Against CM Shinde, Dy CM Fadnavis For Heatwave Deaths At Kharghar

Case Title: Shaila Jitendra Kanthe v. Chief Minister of State of Maharashtra & Ors.

Citation: 2023 LiveLaw (Bom) 341

The Bombay High Court disposed of a Public Interest Litigation (PIL) seeking CBI investigation into Maharashtra CM Eknath Shinde and Deputy CM Devendra Fadnavis for deaths of 14 people allegedly due to heatstroke and stampede during the Maharashtra Bhushan Award ceremony held at Navi Mumbai’s Kharghar on April 16.

A division bench of Acting Chief Justice Nitin Jamdar and Justice Arif S Doctor disposed of the PIL after Advocate General Birendra Saraf informed the court that the concerned Investigating Agency had already initiated an investigation into the matter.

Plots Designated As Burial Ground In Development Plan Can’t Be Put To Any Other Use: Bombay High Court

Case Title: Melwyn Isidore Fernandes and Others vs State of Maharashtra

Citation: 2023 LiveLaw (Bom) 342

The Bombay High Court directed the Thane Municipal Corporation not to use land designated as burial ground in the city development plan for any other purpose.

A division bench of Acting Chief Justice Nitin Jamdar and Justice Arif S Doctor was hearing a Public Interest Litigation (PIL) regarding inadequate availability of cemeteries for the Christian community in the city. It sought opening of all reserved plots allocated for Christian cemeteries in the Thane city development plan.

“We direct that the plots mentioned in paragraph-6 of the affidavit dated 14 September 2022, which have been designated as Cremation Ground/ Burial Ground/ Smasha Bhumi in the development plan will not be put to any other use other than the one designated in the development plan unless requisite procedure of law is followed for the change of user”, the court directed.

Reassessment Can’t Be Initiated On Grounds Of Subsequent Contradictory Ruling By AAR: Bombay High Court

Case Title: Usha Eswar v. Rajeshwari Menon

Citation: 2023 LiveLaw (Bom) 343

The Bombay High Court has held that reassessment can’t be initiated on the grounds of a subsequent contradictory ruling by the Authority of Advance Ruling (AAR).

The bench of Justice K. R. Shriram and Justice Firdosh P. Pooniwalla has observed that merely because the AAR in the case of another Applicant has taken a different view, it cannot be a sufficient basis on which the department could ever have any reason to believe that income chargeable to tax has escaped assessment.

Don’t Insist On Succession Certificate For Compensation To Deceased Sewage Workers' Kin When There Is No Dispute Among Claimants: Bombay High Court

Case Title: Shramik Janta Sangh & Ors. v. State of Maharashtra & Ors.

Citation: 2023 LiveLaw (Bom) 344

The Bombay High Court directed the Thane Municipal Corporation (TMC) not to insist on heirship/succession certificates for grant of compensation to kin of sewage workers who died while cleaning sewers/septic tanks, in cases where there are no disputes among the claimants.

A division bench of Justice Dhiraj Singh Thakur and Justice Sandeep V. Marne passed the interim order in a writ petition filed by Shramik Janta Sangh highlighting the delay in payment of compensation to the family members of deceased sewage workers.

AO’s Duty To Adjust Brought Forward Unabsorbed Depreciation: Bombay High Court Quashes Reassessment

Case Title: Mukand Limited Versus The Union of India

Citation: 2023 LiveLaw (Bom) 345

The Bombay High Court, while quashing the reassessment, held that the Assessing Officer had in his possession all the primary facts and it was for him to draw a proper inference as to whether the brought forward unabsorbed depreciation should be adjusted against capital gains or profit and gains from business or profession.

The bench of Justice K. R. Shriram and Justice Firdosh P. Pooniwalla has observed that the assessee/petitioner had truly and fully disclosed all material facts necessary for the purpose of assessment. Not only were material facts disclosed by the assessee truly and fully, but they were also carefully scrutinised, and the figures of income, as well as deductions, were worked out carefully by the Assessing Officer.

Capital Gains Can’t Be Added As Unexplained Cash Credit For Sale Of Penny Stock: Bombay High Court

Case Title: PCIT v. Indravadan Jain, HUF

Citation: 2023 LiveLaw (Bom) 346

The Bombay High Court held that capital gains cannot be added as unexplained cash credit for the sale of penny stock.

The bench of Justice K.R. Shriram and Justice Firdosh P. Pooniwalla has observed that since the shares were purchased on the floor of the stock exchange and not from a broker, payment was made through the banking channel, deliverables were taken in the DEMAT account where the shares remained for more than one year, contract notes were issued, and the shares were also sold on the stock exchange, the long-term capital gains claimed as exempt cannot be treated as accommodation entries.

The respondent/assessee had shown the sale proceeds of shares in scrip Ramkrishna Fincap Ltd. (RFL) as long-term capital gain and claimed exemption under the Income Tax Act.

Bombay High Court Quashes Panchayat Resolution Restricting Mobile Tower Construction Over Apprehension Of 'Harmful Radiation'

Case Title: Indus Towers Ltd., Pune (Formerly, Bharti Infratel Ltd., Pune) v. Grampanchayat, Chikhalhol, Tal. Khanapur, Dist. Sangli and Ors.

Citation: 2023 LiveLaw (Bom) 347

Observing that the fears expressed by some villagers about harmful radiation from a mobile tower were unfounded, the Bombay High Court quashed a resolution passed by Chikhalhol Grampanchayat in Sangli District restricting the installation of a mobile tower.

A division bench of Justice Sunil B Shukre and Justice Rajesh S Patit held that the Grampanchayat lacked the authority to issue such a resolution and the apprehension about radiation has already been dismissed in the case of Biju K. Balan and Ors. Vs. State of Maharashtra and Ors (2019) which held that,

“there is no scientific material or data warranting prohibition on installation of mobile tower and that jurisdiction under Article 226 of the Constitution of India cannot be exercised on the basis of apprehensions, which are not rooted in facts and which are not supported by reliable scientific material.

Court also observed that there was no scientific material as of the date of rendering of the judgment, which indicated any identifiable risk of serious harm on account of such radiations.

[S.52A NDPS Act] Bombay High Court Grants Bail To Accused As Samples Collected In Front Of Magistrate Not Sent For Chemical Analysis

Case Title: Santosh Pandurang Parte v. Amar Bahadur Maurya and Anr.

Citation: 2023 LiveLaw (Bom) 348

The Bombay High Court granted bail to a 35-year-old man arrested after commercial quantity of Ganja was allegedly seized from his farmhouse, on the ground that the authorities did not send samples collected in front of the Magistrate to the Chemical Analyzer.

Justice S. M. Modak observed –

“learned Magistrate has taken the inventory and drawn few of the samples as mentioned in the para no. 14 of certificate on page no. 128 but fact remains that these samples were not sent to the Chemical Analyzer. So it is true that the directions in para no. 31(1) of the observations in case of Union of Indian Vs. Mohanlal were not followed. Ultimately when the evidence will be adduced during the trial, there will not be Chemical Analyzer report available on the basis of the analysis done about samples taken before learned Magistrate what will be available is Chemical Analyzer report about samples taken at the spot/office.”

SC/ST Atrocities Act | Case Not Made Out For Releasing Accused No Ground To Not Notify Victim Regarding Bail Proceedings: Bombay High Court

Case Title: Kishor Shivdas Shinde v. State of Maharashtra and Anr.

Citation: 2023 LiveLaw (Bom) 349

The Bombay High Court deprecated the practice of some Special Judges under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act not properly reflecting the submissions of victims as per Section 15A of the Act in their orders.

A division bench of Justice Vibha Kankanwadi and Justice Abhay S Waghwase, while granting bail to a man accused in a murder case, observed that bail application should be decided only after informing and hearing the informant or the victim.

'Insubordination': Bombay High Court Criticises Additional Sessions Judge For Violating HC Order While Granting Bail To Murder Accused

Case Title: Ramchandra Maruti Yedage v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 350

The Bombay High Court criticized an Additional Sessions Judge, Osmanabad citing insubordination and judicial impropriety while dealing with a bail application of a murder accused.

Justice RM Joshi of the Aurangabad Bench observed that the Judge entertained and allowed the bail application of the accused despite being aware of previous High Court order granting the accused liberty to approach the High Court, and not the trial court, for bail.

“The trial Courts are expected to maintain judicial propriety and ensure that there is no insubordination of Higher Court in any manner. The Lawyers and Public Prosecutors being officers of the Court also share equal responsibility to be honest and fair to the Courts and in no case involve themselves in suppression of facts before any Court of law”, the court observed.