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Bombay High Court Monthly Digest:...

Bombay High Court Monthly Digest: May 2024

Amisha Shrivastava

17 Jun 2024 5:45 AM GMT

Reports/Judgments

Words Fall Short To Describe Impact Of Ordeal On Victim: Bombay High Court Denies Bail To Neighbour Accused Of Sexually Abusing Child For Nine Yrs

Case Title: Balkrishna Barsha Sutar v. Income Tax Officer

Citation: 2024 LiveLaw (Bom) 237

The Bombay High Court held that the sanctioning authority has to be the Principal Chief Commissioner of Income Tax (PCCIT) for issuing a reopening notice after the expiry of three years.

The bench of Justice K. R. Shriram and Justice Neela Gokhale observed that, as per the order and the notice, the authority that has accorded the sanction is the PCIT-27, Mumbai. The matter pertains to Assessment Year 2017-2018, and since the order as well as the notice were issued on July 20, 2022, both have been issued beyond a period of three years. Therefore, the sanctioning authority has to be the PCCIT, as provided under Section 151(ii) of the Income Tax Act. The proviso to Section 151 has been inserted only with effect from April 1, 2023, and, therefore, shall not be applicable to the matter at hand.

Section 151(ii) of the Income Tax Act states that no notice shall be issued under section-148 by an Assessing Officer, who is below the rank of Joint Commissioner, unless the Joint Commissioner is satisfied, on the reasons recorded by such Assessing Officer, that it is a fit case for the issue of such notice.

Individuals Involved In Manual Work Are Considered Workmen Under ID Act, In Absence Of Direct Oversight Over Subordinates In Supervisory Role: Bombay High Court

Case Title: Godrej and Boyce Manufacturing Company Ltd v. Shivkranti Kamgar Sanghatana

Citation: 2024 LiveLaw (Bom) 238

The Bombay High Court single bench of Justice Amit Borkar held that employees predominantly engaged in manual, skilled, and unskilled work, in absence of sufficient evidence of direct oversight of subordinate employees, qualify as 'workmen' under Section 2(s) of the ID Act.

The High Court noted that there were significant amendments in the ID Act in 1956 and 1982 that broadened the definition of "workman" to encompass supervisory and technical roles. It emphasized that the determination of an individual's status as a 'workman' hinges upon the actual duties performed, irrespective of designation or salary. It held that if the nature of duties predominantly aligns with any of the categories specified in Section 2(s) of the ID Act, the individual qualifies as a 'workman'.

It held that the focus should be on the nature of the employee's duties and functions. It emphasized that while additional duties may exist, the primary purpose of the employee's role must be considered. The Tribunal, in determining the status of an employee, is tasked with scrutinizing the duties assigned and drawing a legal conclusion based on their alignment with the definition of 'workman' under the law.

Bombay HC Upholds Removal Of Judge Accused Of Bribery In POCSO Case, Says Punishment Must Uphold Court's Dignity & Instil Faith In Litigants

Case Title: Pradeep Hiraman Kale v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 239

The Bombay High Court upheld the removal of a Judicial Officer accused of taking a bribe to acquit an accused under the POCSO Act observing that writ courts need not grant relief to a Judicial Officer whose conduct is likely to affect the image of the judiciary.

A division bench of Justice AS Chandurkar and Justice Jitendra Jain dismissed a writ petition filed by one Pradeep Hiraman Kale challenging his removal.

“It is a universally accepted norm that Judges and Judicial Officers must act with dignity and must not indulge in a conduct or behaviour which is likely to affect the image of judiciary or which unbecoming of a Judicial Officer. If the Members of the judiciary indulge in a behaviour which is blameworthy or which is unbecoming of a Judicial Officer, the Writ Courts are not expected to intervene and grant relief to such a Judicial Officer”, the court observed.

The court pointed out that judicial review in termination matters is limited to instances of violations of natural justice, flaws in decision-making procedure, or patent illegality, rather than challenging the decision itself. It highlighted that disciplinary proceedings, though quasi-judicial and quasi-criminal, do not adhere to the standard of proof beyond reasonable doubt but instead rely on the preponderance of probabilities.

“…the parameters required for conducting disciplinary enquiry cannot be compared with the parameters required in criminal trial. The purpose of disciplinary proceedings is to enquire into an allegation of misconduct against the delinquent employee and such charge is to be proved on the basis of principles of preponderance of probability and not on strict rules of evidence.”

Income Tax Authority Should Refrain From Over Analysis Which Leads To Paralysis Of Justice: Bombay High Court

Case Title: Bhatewara Associates v. Income Tax Appellate Tribunal, Pune & Ors.

Citation: 2024 LiveLaw (Bom) 240

The Bombay High Court, while setting aside the order of the Income Tax Appellate Tribunal (ITAT), held that the authority should refrain from overanalyzing, which leads to paralysis of justice.

The bench of Justice K. R. Shriram and Justice Neela Gokhale observed that the ITAT failed to appreciate the spirit in which the order dated August 23, 2022, was passed by the High Court condoning the delay by observing that the Income Tax Authority should consider the claim for deduction under Section 80IB(10) of the Income Tax Act for AY 2011–12 made by the petitioner in accordance with law, as if there was no delay in filing the return.

Ban On Liqour Sale In Raigad District To Operate On Specific Polling Dates For Its Two Lok Sabha Constituencies; No Ban On Entire District: Bombay High Court

Case Title: Navi Mumbai Hotel Owners Association and Anr. v. District Collector (State Excise) and Ors.

Citation: 2024 LiveLaw (Bom) 241

Reiterating that the sale of liquor can be prohibited during elections only in polling areas, the Bombay High Court reduced the prohibition imposed in the entire Raigad district due to Lok Sabha elections in its two constituencies.

The ban will operate in Raigad constituency from May 5 to May 7 and in Maval constituency from May 11 to May 13.

Raigad District has two Lok Sabha constituencies – Raigad and Maval. While polling is to be held on two different dates in the two constituencies, i.e., May 7, 2024 and May 13, 2024 respectively, the order banned liquor sale in both the constituencies on both polling dates.

Finding this beyond the scope of Section 135-C of the Representation of People Act of 1951, the court partially modified the order.

The court held that the prohibition imposed by the impugned order extended beyond the limits specified in Section 135-C of the Act of 1951. While Section 142 of the Prohibition Act empowers the Collector to close places where intoxicants are sold, the court emphasized that this power must be exercised in conjunction with Section 135-C of the RP Act, particularly when the ban is being imposed only due to elections.

Dismissal From Service Is Disproportionate For Misconduct Of Overwriting Reasons Of Absence On Gatepass: Bombay High Court

Case Title: Danfoss Systems Ltd v. Johnson Gomes

Citation: 2024 LiveLaw (Bom) 242

A single judge bench of the Bombay High Court comprising of Justice Sandeep V. Marne while deciding a Writ Petition in the case of Danfoss Systems Ltd vs Johnson Gomes has held that dismissal of service of a workman was disproportionate for an offence of overwriting the reason of absence on the Gatepass.

The court observed that the misconduct committed by the Workman was not so grave so as to impose penalty of dismissal from service. Even if any malafide intention is imputed on the Workman, the only objective which could be achieved by overwriting the Gatepass was to save one day's leave. Thus, the Workman did not commit forgery with the objective of gaining any pecuniary advantage from the Employer.

The court further observed that the act of the workman in overwriting on the Gatepass by changing the reason for absence was definitely a misconduct and needs to be visited with a penalty but a harsh penalty of dismissal from service was not warranted.

Bombay High Court Grants Bail To Murder Accused Who Wasn't Produced Before Trial Court On 70 Previous Dates, Calls It Prosecution's Failure

Case Title: Gaurav Bandu Patil v. State Of Maharashtra And Another

Citation: 2024 LiveLaw (Bom) 243

The Bombay High Court granted bail to a murder accused after he was not produced before the trial court on 70 occasions, despite notices from the trial court.

Justice SG Mehare of the Aurangabad bench observed that although the charges are serious, the non-production of the accused before the trial court entitled him to bail.

“Though the prosecution is opposing the application on the ground that the offence is serious, it has no explanation for his non-production of the accused before the Court for 70 dates. It is a sheer failure of the prosecution to produce the accused before the Court for framing the charge and progress of the trial”, the court observed.

Highlighting the prosecution's failure to provide a satisfactory explanation for the repeated non-production of the accused, the court emphasized the principle that bail could be granted in cases where the trial is prolonged without fault on the part of the accused and where there is no effective progress.

High Court Stays Maharashtra Govt's Amendment Exempting Private Schools From 25% RTE Quota If Govt-Run School Exists Nearby

Case Title: Aswini Jitendra Kable v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 244

The Bombay High Court stayed till further orders the exemption to private unaided schools from providing 25% quota in Class I or Pre-school for children of disadvantaged sections if there is a government-run or aided school within 1 km radius of that private school.

A division bench of Chief Justice Devendra Upadhyaya and Justice Arif S Doctor prima facie found that the 2024 amendment to the Maharashtra Right of Children to Free and Compulsory Education Rules, 2011 is ultra vires the RTE Act, 2009.

“By the impugned provisos, the right of children to get free elementary education is being hampered which is otherwise guaranteed under Article 21A. Thus, having regard to the overwhelming public interest, we provide that till further orders the amendment incorporated in the Maharashtra Right of Children to Free and Compulsory Education Rules, 2011 shall remain stayed”, the court added.

The court issued notice on a PIL filed by one Aswini Kable challenging the amendment. By the amendment, provisos were inserted to Rule 4 and Rule 8 of the aforementioned rules, excluding private unaided schools from the obligation to provide RTE quota if a government school is in the neighbourhood.

Bail Cannot Be Denied Merely Because Accused Has Received Treatment In Judicial Custody: Bombay High Court Grants Two-Month Interim Bail To Jet Airways Founder Naresh Goyal In Money Laundering Case

Case Title: Naresh Goyal v. ED

Citation: 2024 LiveLaw (Bom) 245

The Bombay High Court granted interim bail for two months to Jet Airways founder Naresh Goyal in a money laundering case arising out of an alleged loan default of Rs. 538 Crores given to Jet Airways by Canara Bank.

Justice NJ Jamadar pronounced the judgement.

"The broad submission that since the applicant has got best of the treatment, he does not deserve to be released on bail, looses sight of the precious value of personal liberty. To accept such a broad proposition that once a person gets the requisite treatment, he does not deserve bail, howsoever critical his health condition may be, would defeat the legislative intent of enacting the proviso and render the proviso otiose", the court observed.

Proviso to Section 45(1) empowers the Court to release a person accused of an offence under the PMLA on bail, if such person is sick or infirm or a woman or under 16 years of age.

"the age of the applicant, the disease he is suffering from, the treatment recommended for the said disease, other ailments the applicant is suffering from and the situation in life brought about by the life-threatening disease the wife of the applicant is suffering from, cumulatively justify exercise of discretion vested in the Court under the proviso to section 45(1) of PMLA", the court observed.

Lender Bank Registered With CERSAI Has 1st Priority Over DCST Against Proceeds Of Enforcement Under SARFAESI Act: Bombay High Court

Case Title: Purushottam Prabhakar Chavan v. Deputy Commissioner of Sales Tax (GST)

Citation: 2024 LiveLaw (Bom) 246

The Bombay High Court held that lender bank registration with the Central Registry of Securitisation and Security Interest of India (CERSAI) has first priority over Deputy Commissioner of Sales Tax (GST) (DCST) against proceeds of enforcement under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act).

The bench of Justice BP Colabawalla and Justice Somasekhar Sundaresan observed that the Lender Bank had first priority in enforcement against the Walkeshwar Flat with effect from January 24, 2020, having been the first to register with CERSAI, which was done on January 2, 2020. The bench noted that Encore ARC, which conducted the auction on February 28, 2023, acquired the entitlement to priority from the lender bank along with the assignment of the loans to the borrowers with attendant security interests on March 21, 2020.

Court Cannot Interpret Conditions Of Advertisement Contrary To Plain Language Of The Same: Bombay High Court

Case Title: Ashok Mallinath Halsangi v. The State of Maharashtra and Ors.

Citation: 2024 LiveLaw (Bom) 247

A Division bench of the Bombay High Court comprising of Justice A.S. Chandurkar and Justice Jitendra Jain while deciding a Writ Petition in the case of Ashok Mallinath Halsangi & Ors vs State of Maharashtra & Ors held that the court in the garb of judicial review cannot sit in the chair of appointing authority to decide what is best for the employer and interpret the conditions of the advertisement contrary to the plain language of the same.

Bombay High Court Upholds Renaming of Aurangabad and Osmanabad to Chhatrapati Sambhajinagar and Dharashiv

Case Title: Mohammed Mushtaq Ahmed v. Union of India and Ors. with Shaikh Masud Ismail Shaikh and Ors v. Union of India and Ors. with connected matters

Citation: 2024 LiveLaw (Bom) 248

The Bombay High Court upheld the Maharashtra government's notifications officially renaming Aurangabad city and revenue areas to Chhatrapati Sambhajinagar and Osmanabad city and revenue areas to Dharashiv respectively.

A division bench of Chief Justice Devendra Upadhyaya and Justice Arif S Doctor while pronouncing the judgment dismissing a batch of pleas challenging the state government's notifications of the changed names stated -

"In view of the discussion made and reasons given, we have no hesitation to conclude that the impugned notifications issued by the state government renaming Aurangabad and Osmanabad cities as Chhatrapati Sambhajinagar and Dharashiv cities and the revenue areas of Aurangabad and Osmanabad as revenue areas of Chhatrapati Sambhajinagar and Dharashiv do not suffer from any illegality or any other legal vice and thus no interference in the impugned notifications is warranted. The petitions being bereft of any merit are hereby dismissed. No costs."

The court held that the power to name a revenue area in terms of Section 4(1)(vi) of the MLRC will include the power to alter or vary the same as well.

The court opined that the power to alter the name of any object, such as revenue areas, is inherently linked to the authority's power to name it initially. If an authority has the statutory power to name a revenue area, it logically also possesses the power to change that name. The court further stated that the issue of renaming a revenue area, city, or town is not justiciable because the courts do not have the necessary tools to adjudicate such matters due to the lack of judicially manageable standards. The court can only review the proposed name if it is atrocious, it said.

Bombay High Court Rejects Petition Against Rules for In-Person Litigants

Case Title: Naresh Govind Vaze v. High Court of Bombay

Citation: 2024 LiveLaw (Bom) 249

The Bombay High Court upheld its Rules which require litigants desiring to appear in-person before the court to be certified as competent to assist the court without engaging an advocate by a Scrutiny Committee nominated by the Chief Justice.

A division bench of Justice AS Chandurkar and Justice Jitendra Jain dismissed a writ petition challenging a Notification dated September 9, 2015 which notified the "Rules for Presentation and Conduct of Proceedings in Person by Parties."

“There is no blanket prohibition or bar for a party to appear in person before the Court. The Rules merely regulate the manner in which a party who desires to appear in person is required to take steps to facilitate the same. The modalities prescribed are merely regulatory in nature with an object that the time of the Court while hearing a party-in-person is not spent on unnecessary details and that the party-in-person is found broadly in a position to render necessary assistance to the Court for deciding his/her matter”, the court held.

Bombay High Court Initiates Suo Moto PIL Over Alleged Illegalities In Tender Process For Ambulance Fleet

Case Title: In Re: Contract for Emergency Medical Services

Citation: 2024 LiveLaw (Bom) 250

The Bombay High Court initiated a suo moto PIL regarding alleged illegalities in the state government tender process for supply and operation of emergency medical services and ambulances. The tender to 'build, finance, operate and transfer' is connected to the 'Dial 108' ambulance project under Maharashtra Emergency Medical Services (MEMS).

A division bench of Chief Justice Devendra Kumar Upadhyaya and Justice Arif S Doctor converted a PIL filed by an NCP (Sharad Pawar) worker challenging the tender to a suo moto PIL and decided to proceed without the petitioner's involvement.

“Having regard to the overall facts and circumstances of the case, we are of the opinion that cognizance of the issues raised in the PIL petition should be taken but not at the instance of the petitioner”, the court stated.

Municipality Can't Shirk Constitutional Duty To Provide Water: Bombay High Court Directs 1 Lakh Litres Daily Supply To Gorai Villagers

Case Title: Gorai Villagers Welfare Association v. Hydraulic Engineer, Municipal Commission of Greater Mumbai

Citation: 2024 LiveLaw (Bom) 251

The Bombay High Court directed the Brihanmumbai Municipal Corporation (BMC) to employ 10 tankers of 10,000 litres on a daily basis to ensure the continuous supply of 1,00,000 litres of potable water to residents of Gorai village, consisting of around 2000 families.

A division bench of Chief Justice Devendra Upadhyaya and Justice Arif Doctor was hearing a PIL shedding light on the acute shortage of drinking water faced by residents of Gorai village, Borivali (West). At least 2005 families in the area are deprived of access to clean drinking water, the court noted.

“Thus, a distinct duty constitutionally as well as statutory has been cast on the Municipal Corporation to ensure that the residents within its limits are provided with adequate and proper access to potable water to be used for domestic purposes. No municipality in view of the aforesaid provisions can shirk off its shoulders, the certain responsibility and duty cast on it”, the court observed.

Bombay High Court Grants Bail To Alleged Drug Supplier Booked In Cordelia Cruise Drug Raid Case

Case Title: Abdul Kadar Shaikh v. Union of India

Citation: 2024 LiveLaw (Bom) 252

The Bombay High Court granted bail to one Abdul Kadar Shaikh, an alleged drug supplier and one of the accused in the 2021 Cordelia cruise ship drug case.

Justice NJ Jamadar observed that there were doubts regarding the substance seized from the accused, and he had undergone prolonged incarceration with little likelihood of the trial concluding within a reasonable period.

“As the identity of the sample is in the corridor of uncertainty, and the complicity of the applicant is primarily based on the seizure of the contraband from the applicant, a prima facie case to hold that eventually the applicant may not be found guilty of the offences can be said to have been made out”, the court observed.

The court also observed that while the weight attached to panch witness' testimony would be determined during trial, the extensive use of the same witness by a premier agency could potentially affect the search and seizure process.

Bombay High Court Orders Maharashtra to Enhance Infrastructure for E-Mulakaat System in Prisons

Case Title: Peoples' Union for Civil Liberties & Anr. v. State of Maharashtra & Ors.

Citation: 2024 LiveLaw (Bom) 253

The Bombay High Court directed the state government to ensure the availability of essential infrastructure to support the implementation of the e-mulakaat system in prisons to enable lawyers and family members to communicate with inmates virtually using video conferencing.

A division bench of Chief Justice Devendra Upadhyaya and Justice Arif Doctor disposed of a PIL filed by the Peoples' Union for Civil Liberties after the state government's issuance of a government resolution (GR) providing for e-mulakaats and smart card calling facilities for prisoners statewide.

“The State Government shall implement the provisions contained in the Government Resolution dated 22nd March 2024 in all the prisons throughout the State of Maharashtra and shall also provide adequate infrastructure, wherever required, so that the Government Resolution dated 22nd March 2024 is implemented in its letter and spirit and all the inmates in the prisons are given access to phone calls and e-mulakaat facilities”, the court directed.

The GR dated March 22, 2024 contains provisions for phone calls and e-mulakaat (electronic meeting) facilities for prisoners, excluding Pakistani prisoners.

The PIL sought directions to enforce the provisions of telephonic and electronic modes of communication as outlined in clause 8.38 of the Model Prison Manual, 2016, across all prisons in Maharashtra and to challenge the decision to discontinue such communication methods.

Capital Gain Tax Not Payable On Transfer Of Shares By Way Of Gift: Bombay High Court

Case Title: M/s. Jai Trust v. Union of India

Citation: 2024 LiveLaw (Bom) 254

The Bombay High Court held that capital gain tax is not payable on the transfer of shares by way of gift.

The bench of Justice K. R. Shriram and Justice Neela Gokhale observed that Section 45 of the Income Tax Act provides that any profits or gains arising from the transfer of a capital asset have to be considered by the assessee. Only when there is consideration received can the profit or gain be measured. A gift is commonly known as a voluntary transfer of property by one person to another without any consideration. A gift does not require consideration, and if there is consideration for the transaction, it is not a gift.

Compassionate Appointment Can Only Be Claimed in Accordance with the Existing Policy And Not As A Matter Of Right: Bombay HC

Case Title: Sau. Asha wd/o Haridas Katwale & Ors. v. Manager (Mines), M/s Western Coalfields Ltd. Bhadrawati & Ors.

Citation: 2024 LiveLaw (Bom) 255

A division bench of the Bombay High Court comprising of Justice Avinash G. Gharote and Justice. M.S. Jawalkar while deciding a writ petition held that compassionate appointment can only be claimed in accordance with the existing policy and not as a matter of right

Bombay High Court Orders Repatriation Of 7-Year-Old Girl To Father's Custody In USA, Says Mother Abducted Her For Own Interest

Case Title: ABC v. State of Maharashtra and Anr.

Citation: 2024 LiveLaw (Bom) 256

The Bombay High Court ordered the repatriation of a seven-year-old child to the United States of America (USA) in custody of her father who had been granted sole custody by a court in USA.

A division bench of Justice AS Gadkari and Justice Shyam C Chandak criticized the mother's act of unilaterally relocating the daughter to India despite pending legal proceedings in USA, opining that she abducted the child.

“story weaved and the scheme designed by wife to return to India by abducting Miss 'R', unmindful of the ill-consequences of the said act, is not acceptable it being devoid of merits. The said action of the wife was intended to serve her own interest, not the child's”, the court observed.

The court referred to the observations in case of Philip David Dexter that when the mother is the abducting parent, it is common for her to claim that the matrimonial bond has broken down, often citing ill-treatment and domestic abuse by the male spouse, posing a risk to the child's mental or physical health. The abducting parent may justify their actions by resorting to covert operations, deceiving the spouse and the courts, and seeking refuge in their home country where familial support is available.

The court held that these observations are directly applicable to the present case.

Employers Must Realise Difficulties Women Face During Childbirth: Bombay High Court Directs AAI To Grant Maternity Benefit To Employee For Third Childbirth

Case Title: Airports Authority of India Workers Union and Anr. v. Under Secretary, Ministry of Labour, Govt. of India and Anr.

Citation: 2024 LiveLaw (Bom) 257

The Bombay High Court observed that employers must acknowledge the physical challenges working women face during pregnancy and while caring for their children and provide all benefits to which they are entitled to facilitate the childbirth.

“Whatever be the nature of their duties, their avocation and the place where they work, they must be provided with all the facilities to which they are entitled. To become a mother is the most natural phenomenon in the life of a woman. Whatever is needed to facilitate the birth of child to a woman who is in service, the employer has to be considerate and sympathetic towards her and must realise the physical difficulties which a working woman would face in performing her duties at the workplace while carrying a baby in the womb or while rearing up the child after birth”, the court observed.

A division bench of Justice AS Chandurkar and Justice Jitendra Jain directed Airports Authority of India to grant maternity benefit within eight weeks to an employee for her third childbirth as her first child was born before she joined AAI and she didn't avail the benefits for the second childbirth.

Prima Facie Harmful To Secular Structure Of Country: Bombay High Court Orders Removal Of Allegedly Defamatory Posts Calling For Boycott Against Malabar Gold

Case Title: Malabar Gold Limited v. Kajal Shingala & Ors.

Citation: 2024 LiveLaw (Bom) 258

The Bombay High Court granted interim relief to Malabar Gold Limited and directed removal of prima facie defamatory social media posts making derogatory comments about the company's CSR initiatives calling for a boycott.

Justice Bharati Dangre criticized the defendant for selectively choosing one photograph that captures scholarships program extended to girls from the Muslim community while ignoring the broader initiative of empowering girls through education.

The court remarked that the quote by Martin Luther King Jr. is squarely applicable to the present case – “Darkness cannot drive out darkness...only light can do that. Hate cannot drive out hate and only love can do that…”

This selective posting is damaging the reputation and goodwill of the plaintiff, with the potential to create divisions in society, the court observed.

“The Defendant No.1 may carry her own opinion on an issue, but by uploading only one particular photograph out of the entire stack of photographs clicked, when the scholarships were conferred upon the girl child across wide spectrum, without verifying the veracity of post, definitely would cause harm to the secular societal structure of the country and in particular when the post prima facie is baseless”, the court said.

Moreover, the dissemination of misleading information on various social media platforms is as an intentional effort to harm the plaintiff's reputation, the court opined.

Merely Brandishing Newspaper Cuttings Doesn't Prove Sharing Commercial Expertise: Bombay High Court

Case Title: Hindustan Export & Import Corporation Private Limited Versus The Deputy Commissioner of Income-tax

Citation: 2024 LiveLaw (Bom) 259

The Bombay High Court held that merely brandishing newspaper cuttings does not amount to proof of sharing commercial expertise with its French counterpart as mandated by Section 80-O of the Income Tax Act.

The bench of Justice K. R. Shriram and Justice Neela Gokhale observed that Section 80-O was inserted in place of Section 85C, which was deleted by the Finance (No. 2) Act, 1967. While moving the bill relevant to the Finance Act No. 2 of 1967, the then Finance Minister highlighted the fact that fiscal encouragement needs to be given to Indian industries to encourage them to provide technical know-how and technical services to newly developing countries.

Bombay High Court: MBBS Admission Retained Despite False OBC Certificate | Cites National Interest

Case Title: Lubna Shoukat Mujawar v. State of Maharashtra and Ors.

Citation: 2024 LiveLaw (Bom) 260

The Bombay High Court refused to revoke the MBBS admission of a doctor though it was obtained under the OBC-Non-Creamy Layer Certificate based on false information. The Court observed that cancelling her admission would cause loss to the nation when the petitioner has qualified as a doctor.

“the Petitioner has completed the course of MBBS and therefore, it would not be proper at this stage to withdraw the qualification obtained by the Petitioner moreso when the Petitioner has qualified as a Doctor. In our country, where the ratio of the Doctors to the population is very low, any action to withdraw the qualification obtained by the Petitioner would be a national loss since the citizens of this country would be deprived of one Doctor”, the court observed.

A division bench of Justice AS Chandurkar and Justice Jitendra Jain, however, cancelled the Non-Creamy Layer Certificate and reclassified her admission to the Open Category, directing her to pay the difference in fees as well as a penalty of Rs. 50,000 for false representation.

“We are conscious of high competition in admission to medical course and we are also conscious about high expenses to be incurred to enrol for the said course under the Open Category. However, that would not justify that the student should obtain the unfair means nor would it justify the action of the parents to be a part of the unfair means for getting the admission under the OBC Category”, the court said.

The court was dealing with a writ petition challenging the cancellation of petitioner's admission to a MBBS course on grounds of an invalid NCL certificate.

Bombay High Court Refuses To Quash Case Against Former Andhra Pradesh CM Chandrababu Naidu For Allegedly Assaulting Prison Personnel

Case Title: Nara Chandrababu Naidu v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 261

The Aurangabad bench of the Bombay High Court declined to quash a criminal case against former Andhra Pradesh Chief Minister N Chandrababu Naidu and Telugu Desam Party (TDP) leader Nakka Ananda Babu.

The case dates back to 2010 when the two were accused of assaulting prison personnel during their transfer to the Aurangabad Central Jail following their arrest in another case.

A division bench of Justice Mangesh Patil and Justice Shailesh P Brahme observed that there is sufficient evidence indicating the complicity of both Naidu and Babu in the alleged crime.

“we have no manner of doubt that there is enough material to reveal complicity of both the applicants in commission of the crime. The F.I.R. expressly alleges about the applicant-accused no. 1 having instigated the fellow prisoners and even threatened of there being war between the two states and the incident having taken place in the manner which has been alleged. There are statements of the witnesses also expressly attributing role to these applicants. There are injury certificates of 12 police personnel”, the court observed.

The court rejected the applications filed by them seeking the quashing of the FIR lodged against them with the Dharmabad police in Maharashtra's Nanded district.

University Must Collect Funds From Alternative Sources To Discharge Pensionary Benefits Under Previous Revised Pay Commission: Bombay High Court

Case Title: Prachi P. Kulkarni v. State of Maharashtra and Ors.

Citation: 2024 LiveLaw (Bom) 262

The Bombay High Court bench of Justice Nitin Jamdar and Justice M.M. Sathaye held that upon the implementation of the 7th pay commission, the Shreemati Nathibai Damodar Thackersey Women's University was duty-bound to initiate measures to secure funds and establish a corpus.

It held that notwithstanding the absence of grants, the institution bears the responsibility to explore innovative avenues for fundraising to meet its obligations concerning payment under the revised pay commission.

Dismissal From Service For Being Absent From Place Of Work For Just Few Hours Is Disproportionate: Bombay High Court

Case Title: Bombay Dyeing & Manufacturing Co. Ltd. v. Yogesh Vinayak Tipre

Citation: 2024 LiveLaw (Bom) 263

The Bombay High Court single bench of Justice Sandeep V. Marne held that the penalty of dismissal from service is disproportionate for being absent from the place of work for just a few hours.

The Petitioner, engaged in manufacturing DMT, a raw material for synthetic yarn, operates a DMT manufacturing plot. The Workman, employed as an Accounts Assistant (Weighbridge) in the Petitioner's DMT factory, was issued a show cause notice on 30 June 1999, alleging misconduct for absence during a heavy workload period without permission.

Considering factors such as the Workman's age, now 54 years, and the protracted litigation spanning approximately 25 years, reinstatement with the Petitioner was held to be impractical and not in the Workman's best interest.

Despite the Workman's proven misconduct and the delay in raising the industrial dispute, the High Court held that he was not completely exonerated. His last drawn wages, along with the wages paid during the pendency of the case, served as the basis for calculating the compensation. After considering these factors, the High Court decreed a lump sum compensation of Rs. 25,00,000 to be paid by the Petitioner to the Workman.

The Workman was permitted to withdraw the awarded compensation from the maturity value of the backwages deposited in Court. The balance amount from the invested backwages shall be refunded to the Workman.

Burden Of Proving Completion Of 240 Days of Service In Any Calendar year rests On Petitioner: Bombay High Court

Case Title: Prakash S. Hande v. Hindustan Lever Limited

Citation: 2024 LiveLaw (Bom) 264

A single bench of the Bombay High Court comprising of Justice Sandeep V. Marne while deciding a writ petition in the case of Prakash S. Hande v. Hindustan Lever Limited reiterated that the burden of proving completion of 240 days of service in any calendar year rests on the Petitioner.

The court observed that the Petitioner admitted to deliberate breaks in his service with the Respondent from June 1, 1987 to March 21, 1998, indicating that his service during those years was not continuous. Although the Petitioner claimed to have completed 240 days of continuous service from December 9, 1994 to November 7, 1995, the burden of proving this rested on him.

Bombay HC Sets Aside Penalty On Tata Chemicals For Substandard Iodized Salt, Directs FSSAI To Ensure Procedural Compliance Of Sample Analysis

Case Title: TATA Chemicals Limited v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 265

The Nagpur Bench of Bombay High set aside a penalty of Rs. 2 Lakhs imposed on Tata Chemicals and other companies for manufacturing and selling substandard iodized salt.

Justice Anil L Pansare observed that the authorities did not follow the mandatory time limit for lab analysis of samples.

“In the present case, the RFL has apparently not followed the time limit stipulated in the Rules of 2011. The Report, thus, suffers from non-compliance of mandatory provisions. The penalty cannot be imposed on the basis of such report. The Adjudicating Officer as also the Tribunal have rendered unsustainable finding”, the court said.

The court directed the Food Safety and Standards Authority of India to issue advisories or circulars ensuring adherence to procedural standards in laboratory analyses.

“The Food Safety and Standards Authority of India shall issue advisory or office order or circular in terms of what has been noted in the body of the order.”

No Change In Opening And Closing Stock Of NCDs; Bombay High Court Quashes Reassessment Notice

Case Title: Upesi Ventures Ltd. v. Assistant Commissioner of Income Tax

Citation: 2024 LiveLaw (Bom) 266

The Bombay High Court quashed the reassessment notices as there was no change in the opening and closing stock of the non-convertible debts (NCDs).

The Bench of Justice K. R. Shriram and Justice Neela Gokhale observed that the reopening of assessment by the notice was merely on the basis of a change of opinion of the AO. The change of opinion does not constitute justification and/or reasons to believe that income chargeable to tax has escaped assessment.

Bombay High Court Quashes Reassessment Notices Issued Merely On Basis Of Information Received From Directorate General Of GST

Case Title: KEC International Ltd. v. UOI

Citation: 2024 LiveLaw (Bom) 267

The Bombay High Court quashed the reassessment notices issued merely on the basis of information received from the Directorate General of GST.

The bench of Justice K. R. Shriram and Justice Neela Gokhale observed that the AO is only referring to the information received from the Directorate General of GST. There is absolutely nothing to indicate that he independently applied his mind to the material received or that he has analysed the response from Petitioner with the material received, which reflects total non-application of mind.

Bombay High Court Grants Bail To Bangladeshi National Accused Of Illegal Entry Into India, Possession Of Commercial Quantity Of Drugs

Case Title: Mohd. Murad Oliar Shaikh v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 268

The Bombay High Court granted bail to a Bangladeshi national accused of obtaining entry to India without a passport and visa, forging an AADHAAR card and PAN card, and possessing a commercial quantity of contraband drugs.

Justice RN Laddha observed –

“In the present case, there is no disagreement regarding the applicant's detention since 13 May 2022. It is undisputed that the applicant is not a citizen of India. It is acknowledged that the applicant was not in possession of the contraband material. There is no material linking the applicant to accused No.1, who allegedly had a commercial quantity of contraband material. The alleged forged Pan Card and Aadhar Card were already seized. Furthermore, the applicant's arrest occurred approximately three months after accused No.1's arrest. Given these circumstances and the pending trial, there appears to be no valid reason to continue detaining the applicant.”

[NDPS Rules] Even If Exporter Has License To Sell Drugs For Medical Purpose, Separate Authorisation To Export Is Mandatory: Bombay High Court

Case Title: Gudipati Subramaniam v. Union of India and Anr.

Citation: 2024 LiveLaw (Bom) 269

The Bombay High Court denied bail to an exporter and an Iraqi national who were arrested by Mumbai Customs' Central Intelligence Unit for alleged attempt to illegally export 4,224 kg of psychotropic substance in February 2023.

Justice NJ Jamadar held that obtaining authorization under Rule 58 of the NDPS Rules, 1985 for export of psychotropic substances is mandatory even if the exporter has a licence to possess and sell the drugs for medicinal purposes.

“The use of the terms 'licence', 'permit' or 'authorization;, disjunctively, indicates that these terms have not been used interchangeably…If the submissions sought to be canvassed on behalf of accused Nos.1 and 4 that a 'licence' subsumes in its fold the “authorization” envisaged by Rule 58 of the NDPS Rules, 1985, the Parliament would not have used the terms licence and authorization disjunctively. On a plain construction of Section 8(c) of the NDPS Act, 1985 export of a psychotropic substance sans licence, permit or authorization under the governing rules or orders is expressly prohibited”, the court stated.

The court however, granted bail to co-accused freight manager Ravi Kavthankar, noting that it was "debatable" whether he was aware of the alleged offences.

Leave Encashment Akin To Salary, Employee Cannot Be Deprived Without Valid Statutory Provision: Bombay High Court

Case Title: Dattaram Atmaram Sawant v. Vidharbha Konkan Gramin Bank

Citation: 2024 LiveLaw (Bom) 270

Leave encashment is not a bounty but right earned by employee, the Bombay High Court observed while affirming the entitlement of two former employees of Vidharbha Konkan Gramin Bank to encash their accrued privilege leave, despite their resignations from the bank.

A division bench of Justice Nitin Jamdar and Justice MM Sathaye allowed the employees' writ petitions and directed the bank to pay the amount for leaves accumulated by two employees who resigned from the bank.

“Leave encashment is akin to a salary, which is property. Depriving a person of his property without any valid statutory provision would violate Article 300 A of the Constitution of India. Leave encashment paid on account of unutilised leave is not a bounty. If an employee has earned it and the employee has chosen to accumulate his earned leave to his credit, then encashment becomes his right”, the court observed.

Search U/s 132 Is Invalid If Material Considered For Authorizing Search Is Irrelevant And Unrelated: Bombay High Court

Case Title: Echjay Industries Pvt Ltd v. Union of India

Citation: 2024 LiveLaw (Bom) 271

The Bombay High Court quashed the search proceedings authorized by CBDT u/s 132(1) along with consequential notices and further actions on the ground that the material considered for authorizing the search is irrelevant and unrelated, and that “the reasons recorded, only indicates a mere pretence”.

Finding that the reasons forming part of the satisfaction note must satisfy the judicial conscience, the Division Bench comprising Justice K. R. Shriram and Justice Dr. Neela Gokhale observed that “the note also does not contain anything altogether regarding any reason to believe, on account of which, there is total non-compliance with the requirements as contemplated by Section 132(1) of the said Act which vitiates the search and seizure. It does not fulfil the jurisdictional pre-conditions specified in Section 132 of the Act”.

Refusal To Condone Delay In filing Revised ITR by CBDT , Filed Post-NCLT Order Is Unreasonable: Bombay High Court

Case Title: CG Power And Industrial Solutions Ltd v. Assistant Commissioner of Income Tax

Citation: 2024 LiveLaw (Bom) 272

The Bombay High Court quashed the CBDT's order rejecting the application filed by CG Power and Industrial Solutions Ltd seeking condonation of delay in filing returns of income based on recast of accounts pursuant to NCLT's order.

The High Court clarified that any assessment order passed under Sections 143(3) or 144C as well as the consequent notices or orders for AYs for which re-casted accounts have been filed, will not survive.

The Division Bench comprising Justice K.R. Shriram and Justice Dr. Neela Gokhale observed that when the accounts were recast based on NCLT's order and such accounts were accepted by NCLT and also filed with the RoC under MCA “how could the Income Tax Department raise such frivolous objections that the delay in filing the returns of Income based on the re-casted accounts should not be even condoned”.

Bombay High Court Permits Liquor Sale In Mumbai On June 4 After Declaration Of Lok Sabha Election Results

Case Title: M/s. Indian Hotel and Restaurant Association (AHAR) v. Collector of Mumbai (City) State Excise Department & Anr

Citation: 2024 LiveLaw (Bom) 273

The Bombay High Court directed that the restriction on the sale of alcohol in Mumbai on June 4, the day of counting votes for the Lok Sabha elections, will remain only until the results are declared.

A vacation bench of Justice Nitin Borkar and Justice Somasekhar Sundaresan modified the existing orders of the Mumbai City and Mumbai Suburban District Collectors that had declared the entire day as a "dry day."

Bombay High Court Grants One-Week Temporary Bail To Life Convict For Law Entrance Exam

Case Title: Sohail Salim Ansari v. State of Maharashtra

Citation: 2024 LiveLaw (Bom) 274

The Bombay High Court granted temporary bail to Sohail Salim Ansari, a convict serving a life sentence, to enable him to appear for the Maharashtra Common Entrance Test (MH-CET) scheduled on May 30, 2024 for admission to the five-year law course.

A vacation bench of Justice NR Borkar and Justice Somasekhar Sundaresan observed, “It appears that the Applicant is in jail for about nine years. It further appears that during trial he was on bail for some period and he did not misuse the liberty granted to him. Considering the said facts, we are inclined to release the Applicant on temporary bail for a period of one week.”

UGC Regulations | Chairman Of College Governing Body Cannot Delegate Duty To Appoint Principal: Bombay High Court

Case Title: Dr. Naveed-Us-Sahar v. Dr. Babasaheb Ambedkar Marathwada University

Citation: 2024 LiveLaw (Bom) 275

The Aurangabad bench of the Bombay High Court held that the Chairman of the governing body of a college cannot nominate a representative to his seat on the Selection Committee for appointment of the principal of the college.

A division bench of Justice Vibha Kankanwadi and Justice SG Chapalgaonkar dismissed a writ petition filed by one Dr. Naveed-Us-Sahar challenging the rejection of her appointment to the post of Principal at the Marathwada College of Education, Aurangabad. The Marathwada University had rejected the appointment as the Chairman nominated a proxy in the Selection Committee.

“When composition of the Selection Committee is specifically prescribed under the UGC regulations, presence of Chairperson, who is also Chairman of the governing body is mandated, then it would be difficult to accept petitioner's contention that Chairperson's nominee can replace him. Pertinently, there is no provision enabling Chairman to delegate his power to preside over Selection Committee constituted under UGC regulations”, the court held.

Trade Marks Registrar Must Pass Speaking Order With Reasons While Adjudicating On Application For Registration Of Trade Mark Assignment: Bombay High Court

Case Title: Electronica India Ltd. v. Electronica Hitech Machines Pvt. Ltd. & Anr.

Citation: 2024 LiveLaw (Bom) 276

The Bombay High Court held that the Trade Marks Registrar cannot record the name of an assignee in the Register without passing a speaking order on the application for registration of assignment of trademark after considering objections and recording reasons.

Justice RI Chagla ruled in favour of Electronica India Ltd., setting aside the decision of the Trade Marks Registry to allow the registration of assignment of “Electronica” trademarks in favour of Electronica Hitech Machines Pvt. Ltd. without any speaking order.

The court found that there was no formal order passed by the Trade Marks Registry on the Electronica Hitech's application for trademark registration.

“The impugned orders/communications of the Respondent No. 2-Registrar of the Trade Marks, Mumbai allowing the requests of Respondent No. 1 in Form TM-24 are set aside. The Respondent No. 2 (Registry) shall consider the applications in Form TM-24 de novo after granting the Petitioner an opportunity of being heard and thereafter, passing a speaking order on the requests of the 1st Respondent in Form TM-24 which shall be in conformity with Section 45 of the Trade Marks Act, 1999”, the court directed.

'Transit Rent' Can't Be Considered As 'Revenue Receipt', Not Liable To Be Taxed: Bombay High Court

Case Title: Sarfaraz S. Furniturewalla v. Afshan Sharfali Ashok Kumar & Ors.

Citation: 2024 LiveLaw (Bom) 277

The Bombay High Court held that 'Transit Rent' is not to be considered a revenue receipt and is not liable to be taxed. As a result, there will be no question of the deduction of TDS from the amount payable by the developer to the tenant.

The bench of Justice Rajesh S. Patil observed that the ordinary meaning of rent would be an amount that the tenant or licensee pays to the landlord or licensee. In the present proceedings, the term used is “transit rent," which is commonly referred to as a hardship allowance, rehabilitation allowance, or displacement allowance, which is paid by the developer or landlord to the tenant who suffers hardship due to dispossession.