Bombay High Court Weekly Round-Up: November 18 - November 24, 2024

Nominal Index

Anita Agarwal vs. Union of India, 2024 (LiveLaw) Bom 594

Ujala Shyambihari Yadav vs. The Election Commission Of India, 2024 (LiveLaw) Bom 595

Mahesh Khedkar vs State of Maharashtra, 2024 (LiveLaw) Bom 596

Apollo Tyres vs. Union of India, 2024 (LiveLaw) Bom 597

B.V. Jewels vs. Union of India, 2024 LiveLaw (Bom) 598

Oberoi Constructions vs. Union of India, 2024 LiveLaw (Bom) 599

Siti Networks Ltd. vs. Rajiv Suri, 2024 LiveLaw (Bom) 600

Kailas Pawar vs State of Maharashtra, 2024 LiveLaw (Bom) 601

Ratna Vannam vs. State, 2024 LiveLaw (Bom) 602

Sandeep Pandurang Patil vs. State of Maharashtra & ors., 2024 LiveLaw (Bom) 603

Delphi World Money vs. Union of India, 2024 LiveLaw (Bom) 604

M/s. Mobile Arts S.A.L. vs. M/s. Mauj Mobile Private Ltd., 2024 LiveLaw (Bom) 605

Judgments/Final Orders:

Exporter Can't Be Denied Interest On Refund U/S 56 Of CGST Act For Period Of Delay Attributable To Revenue Dept: Bombay High Court

Case Title: Anita Agarwal vs. Union of India

Citation: 2024 (LiveLaw) Bom 594

The Bombay High Court recently clarified that an exporter (Petitioner) is entitled to interest u/s 56 of the CGST Act for the period starting from the expiry of 60 days from the date of filing the shipping bill up to the date of grant of refund, although during the interregnum, the exporter's name was red flagged on the Customs' portal.

The Division Bench of Justice M. S. Sonak and Justice Jitendra Jain observed that “Admittedly, the Petitioner has paid the amount of IGST, which the Respondents have utilized up to the date of grant of refund. Having used the money of the Petitioner, there is no justification for denying interest more so when the delay is attributable to the Respondents”

Bombay High Court Dismisses PIL Challenging ECI's Directive Prohibiting Mobile Phones In Polling Booths

Case title: Ujala Shyambihari Yadav vs. The Election Commission Of India

Citation: 2024 (LiveLaw) Bom 595

The Bombay High Court has refused to provide relief in a Public Interest Litigation (PIL) challenging the directions of the Election Commission of India (ECI) that prohibited voters from carrying mobile phones in the polling booths.

A division bench of Chief Justice Devendra Kumar Upadhyay and Justice Amit Borkar observed that Rule 9A of the IT Rules 2017 do not create any right on the petitioner or anyone else to use DigiLockers to verify identity during voting process.

High Court Denies Permission To Political 'Aspirants' To Contest Maharashtra Polls Due To Conviction For Damaging Public Property

Case Title: Mahesh Khedkar vs State of Maharashtra

Citation: 2024 (LiveLaw) Bom 596

The Bombay High Court recently while refusing to suspend the sentence of three 'aspirants' who sought to contest the upcoming Maharashtra Assembly Elections, noted that though they were 'politically ambitious' on becoming public representatives, but they were punished for damaging public property itself.

Sitting at Aurangabad, single-judge Justice Abhay Waghwase refused to permit three persons - Mahesh Khedkar, Anusayabai Khedkar (son and mother) and Datta Kokate to contest the upcoming assembly elections, by suspending the sentence of five years imprisonment, imposed on them by a Sessions Court in Nanded on April 11, 2023.

Writ Courts Shall Not Act As Court Of Appeal Against Decision Of Lower Court Or Tribunals To Correct Errors Of Fact: Bombay High Court

Case Title: Apollo Tyres vs. Union of India

Citation: 2024 (LiveLaw) Bom 597

The Bombay High Court recently clarified that writ courts shall not trench upon an alternate remedy provided by statute (Income tax Act) for granting any relief, by assuming jurisdiction under Article 226 of the Constitution.

Similarly, writ courts shall not act as a court of appeal against the decision of the lower court or Tribunals, to correct errors of fact, observed the Division Bench of Justice M. S. Sonak and Justice Jitendra Jain.

Customs Act | Interest U/S 28AA Is Automatic When There Is A Default Or Delay In Payment Of Duty: Bombay High Court

Case Title: B.V. Jewels vs. Union of India

Citation: 2024 LiveLaw (Bom) 598

The Bombay High Court ruled that the demand for interest u/s 28AA of the Customs Act raised for non-payment of demand, within three months of raising the demand, is properly tenable on the part of the Customs Authority.

The Division Bench of Justice M.S Sonak and Justice Jitendra Jain observed that “since the payment was not made within the time specified in the said demand notice, an order of attachment was passed for failure to make the payment demanded on 18^th Oct 2012 and interest payable u/s 28AA for the period commencing after that date, i.e. after 18th Oct 2012 was demanded”. 

Taxpayers Can't Seek Writ Remedy By Bypassing Statutory Requirements Of Pre-Deposit: Bombay High Court

Case Title: Oberoi Constructions vs. Union of India 

Citation: 2024 LiveLaw (Bom) 599

The Bombay High Court held that circumstances in which the appeals require some percentage of the demanded tax to be pre-deposited, do not render the appellate remedies any less efficacious.

The Division Bench of Justice M S Sonak and Justice Jitendra Jain observed that the practice of instituting petitions bypassing the statutory remedies only to avoid a pre-deposit cannot be encouraged.

Asset Deposited By Corporate Debtor As Security Before CIRP Commencement Continues To Be Asset Of Corporate Debtor: Bombay High Court

Case Title: Siti Networks Ltd. vs. Rajiv Suri

Citation: 2024 LiveLaw (Bom) 600

The Bombay High Court bench of Justices B.P. Colabawalla and Somasekhar Sundaresan has held that monies or any other asset deposited by a corporate debtor in court prior to commencement of CIRP by way of security would continue to be the asset of the corporate debtor.

Young Generation Will Be Destroyed If NDPS Act Is Not Implemented Scrupulously: Bombay High Court

Case Title: Kailas Pawar vs State of Maharashtra

Citation: 2024 LiveLaw (Bom) 601

The Bombay High Court recently called for a 'scrupulous' implementation of the provisions of the Narcotics Drugs and Psychotropic Substances Act (NDPS) as its failure may result in the rampant use of drugs, which will not only destroy the edifice of our society but also the younger generation, which is the future of the country.

Sitting at Nagpur, single-judge Justice Govind Sanap while hearing a criminal appeal against conviction of two men under the NDPS for possessing 39 kilograms of Ganja.

Citizens' Complaints Against Police Often Taken Lightly: Bombay HC Grants ₹1 Lakh Compensation To Woman For Husband's Illegal Arrest

Case title: Ratna Vannam vs. State

Citation: 2024 LiveLaw (Bom) 602

Complaints filed by citizens against wrong doings of the police officers are often taken lightly and the citizens are not believed at all, the Bombay High Court recently observed while noting that an order was passed in August 2013, directing the higher-ups of the Maharashtra Police not to resort to preliminary enquiry against police officers, who arrest people named in the nature of cases which do not permit detention or custody of the accused.

The division bench of Justices Bharati Dangre and Manjusha Deshpande noted that in the instant case, the husband of the petitioner - Ratna Vannam, was 'illegally arrested' way back in September 2012 on a non-cognizable (NC) filed by a neighbour alleging illegal construction of the petitioner's house in Mumbai's Sion area. The bench has ordered Rs 1 lakh compensation to the petitioner for her husband's illegal custody.

Link MahaRERA Portal To Website Of Civic Bodies: Bombay High Court Issues Directions To Ensure Transparency, Safeguard Homebuyers

Case title: Sandeep Pandurang Patil vs. State of Maharashtra & ors.

Citation: 2024 LiveLaw (Bom) 603

With a view to safeguard the interest of homebuyers, the Bombay High Court has issued certain guidelines to the State government, Maharashtra Real Estate Regulatory Authority and municipal authorities to ensure transparency and accountability in real estate project registrations.

The guidelines issued by a division bench of Chief Justice Devendra Kumar Upadhyaya and Justice Amit Borkar include the integration of the websites of the planning authorities with that of the Maharashtra Real Estate Regulatory Authority (MahaRERA) and the verification of all commencement certificates during project registration.

Appeal Can't Be Dismissed Due To Non-Payment Of Pre-Deposit If Department's Portal Acknowledges Compliance: Bombay High Court

Case Title: Delphi World Money vs. Union of India

Citation: 2024 LiveLaw (Bom) 604

Observing that provisional acknowledgement automatically generated on Department portal shows that the requisite pre-deposit has been made, the Bombay High Court held that the Assessee had duly complied with the necessary pre-deposit required u/s 107(6) of the CGST Act.

The Division Bench of Justice M.S Sonak and Justice Jitendra Jain observed that in a similar matter in Bytedance (India) Technology Pvt Ltd vs. UOI [W.P (L) No.23724 of 2024], it was held by this court that “On the amount of pre-deposit, there is enough evidence annexed to the petition that the sum has been deposited and even the receipt is annexed to the petition. Therefore, to say that there is no pre-deposit in the impugned order is incorrect”.

Bombay HC Nixes Order Granting Company, Which Had Not Denied Its Outstanding Dues, Unconditional Leave To Defend In Summary Suit

Case title: M/s. Mobile Arts S.A.L. vs. M/s. Mauj Mobile Private Ltd.

Citation: 2024 LiveLaw (Bom) 605

In a plea challenging the dismissal of summons to judgment in a commercial summary suit, the Bombay High Court set aside a trial court's order granting a company unconditional leave to defend itself, while noting that the company had not denied the existence of outstanding dues owed for the services rendered by the other party.

In such a case, Justice Milind N Jadhav said, the company should not have been granted any opportunity to defend the suit proceedings by the trial court.

Adjudicating Authority's Inaction To Dispose Of Proceedings Can't Be Attributed To Taxpayer In Absence Of Any Malice On His Part: Bombay HC

Case title: Esjaypee Impex vs. Union of India

Citation: 2024 LiveLaw (Bom) 606

The Bombay High Court ruled that when the Revenue Dept. did not allege any malice on the part of Assessee in the context of disposal of the proceedings, then inaction on the part of Adjudicating Authority to dispose of the proceedings cannot be attributed to Assessees.

Finding that the Authority had passed the final order after a lapse of more than 16 years from the date of CESTAT's order, the Division Bench of Justice Ashwin D. Bhobe and Justice M.S Sonak observed that such inordinate delay in the conclusion of show cause notice will surely prejudice the petitioners.

Department Can't Deny Grant For Waiver Of Interest U/S 234C Of IT Act Without Disposing Of Issues Flagged By Taxpayer: Bombay High Court

Case Title: Grasim Industries vs. Chief Commissioner of Income Tax

Citation: 2024 LiveLaw (Bom) 607

The Bombay High Court recently clarified that the Chief Commissioner of Income Tax ought to have addressed the issues/justification as flagged by the taxpayer in supporting its case for grant of waiver of interest u/s 234C.

Such approach of Chief Commissioner of Income Tax would show non-application of mind to the material contentions raised by the petitioner/ assessee, said the Division Bench of Justice G.S Kulkarni and Justice Advait M. Sethna.

There Is A 'Built-In' Assurance In Rape Cases That Charge Levelled Is Genuine & Not Fabricated: Bombay High Court

Case Title: Aman Tagade vs State of Maharashtra

Citation: 2024 LiveLaw (Bom) 608

The Nagpur bench of the Bombay High Court recently while upholding the conviction of a man for committing rape on a minor girl, said usually neither the girl nor her family would indulge their daughter's name even for settling scores and that in such cases, there is a 'built-in' assurance that the victim is levelling 'genuine' charges.

Single-judge Justice Govind Sanap upheld the conviction of a boy, who at the time of the incident was 17 years and 9 months old but was tried as an adult after the Trial Court was satisfied that he had the mental and physical capacity to commit the crime and even understand the consequences.

Lawyer Cannot Be Booked For Asking On-Duty CBI Officers For Their Identity Cards: Bombay High Court

Case Title: Gobindram Talreja vs State of Maharashtra

Mohd. Ahmed Shafique Khan vs State of Maharashtra

Citation: 2024 LiveLaw (Bom) 609

An advocate cannot be booked for 'obstructing' a government servant (CBI Officers) from discharging his duty, just because he asks a team of CBI officers, conducting raid/search operations, to show their Identity Cards (ID), the Bombay High Court held on Thursday (November 21).

Single-judge Justice Milind Jadhav discharged two advocates and a law intern (then), who were booked in 2007 for obstructing CBI officers from conducting search operations at the premises of one of their clients in Mumbai.

Adversely Impacts Economy: Bombay High Court Denies Anticipatory Bail To Man Booked For Stealing 13K Litres Of Petrol

Case Title: Mohd. Ahmed Shafique Khan vs State of Maharashtra

Citation: 2024 LiveLaw (Bom) 610

Observing that stealing petroleum-based fuels adversely affects the country's economy, the Bombay High Court recently refused to grant pre-arrest bail to a man, booked for stealing 13,000 litres of petrol worth Rs 13.90 lakhs.

Single-judge Justice Rajesh Laddha noted that the applicant Mohd. Ahmed Shafique Khan, a businessman, was the linchpin of the crime in question.

Other Orders/Observations:

PIL In Bombay High Court Challenges Temporary Appointment Of DGP Till Completion Of State Assembly Elections

A Public Interest Litigation (PIL) has been filed in the Bombay High Court challenging the State government's order appointing the Director General of Police, Maharashtra, on a temporary basis till the completion of State Assembly Elections 2024. The petitioner, Pratul Ramchandra Bhadale, an advocate, challenges the State government's order dated 05 November 2024, in which Sanjay Kumar Verma was appointed as DGP for a temporary period.

The petitioner relies on the directions issued by Election Commission of India (ECI) on 05 November 2024, which mandated the appointment of Verma as DGP without any conditions on the appointment being temporary or ad-hoc.

Crackdown On Any Attempts To Install Illegal Hoardings After Election Results: Bombay High Court To State, Heads Of Police

The Bombay High Court has directed the State government, District heads of police and Director General of Police to be 'vigilant' against illegal hoardings after the declaration of State assembly elections and take action against any attempts to erect illegal hoardings and banners by political parties and its supporters.

A division bench of Chief Justice Devendra Kumar Upadhyay and Justice Amit Borkar also directed the DGP to instruct the police heads to provide the necessary police force to assist the municipal bodies in curbing the menace of illegal hoardings after election results.