Bombay High Court Weekly Round-up: September 18 To September 24, 2023

Undercarriage and Tractor Parts Pvt. Ltd. v. DRP 2023 LiveLaw (Bom) 443

G. Chandrashekharan Shivam And Ors. v. Rajkumar Agarwal & Ors. 2023 LiveLaw (Bom) 444

Shivraj Gorakh Satpute v. State of Maharashtra 2023 LiveLaw (Bom) 445

Ashraf Chitalwala v. DCIT 2023 LiveLaw (Bom) 446

Poonam Basak v. Union of India & Ors. 2023 LiveLaw (Bom) 447

Navigns Studios Pvt. Ltd. v. Sameer Pandharinath Khandekar and Ors. 2023 LiveLaw (Bom) 448

South Port Limited v. State of Goa 2023 LiveLaw (Bom) 449

Mehul Choksi v. State of Maharashtra and Anr. 2023 LiveLaw (Bom) 450

Mahesh Sitaram Raut v. National Investigation Agency 2023 LiveLaw (Bom) 451

Hemant Dinkar Kandlur v. Commissioner of Income Tax 2023 LiveLaw (Bom) 452

Reports/Judgments

DRP Can Give Directions Only In Pending Assessment Proceedings: Bombay High Court

Case Title: Undercarriage and Tractor Parts Pvt. Ltd. v. DRP

Citation: 2023 LiveLaw (Bom) 443

The Bombay High Court has held that the Dispute Resolution Panel (DRP) could give directions only in pending assessment proceedings.

The bench of Justice K. R. Shriram and Justice N. K. Gokhale has observed that once an assessment order is passed, rightly or wrongly, the assessment proceedings come to an end. Therefore, the DRP would have no power to pass any directions contemplated under sub-section 5 of Section 144C of the Income Tax Act.

[Composite Negligence] Motor Accident Victim Can Choose To Claim Compensation From Owner Of One Of Two Vehicles Involved: Bombay High Court

Case Title: G. Chandrashekharan Shivam And Ors. v. Rajkumar Agarwal & Ors.

Citation: 2023 LiveLaw (Bom) 444

The Bombay High Court held that a claimant in a motor accident case is not obligated to claim compensation from owner of the vehicle he was travelling in and is allowed to only seek compensation from owner of the other vehicle involved in the accident.

Justice Sandeep Marne observed that in cases of composite negligence, the claimant has the right to sue only one of the joint tortfeasors.

S.42 NDPS Act | No Reason For Search After Sunset Without Warrant: Bombay HC Grants Bail To Man Booked For Alleged Possession Of 50 Kgs Ganja

Case Title: Shivraj Gorakh Satpute v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 445

The Bombay High Court granted bail to a 22-year-old man booked for possession of commercial quantity of Ganja after 50 Kgs Ganja was allegedly seized from his home between sunset and sunrise based on information given by another accused.

Justice Anuja Prabhudessai observed that the seizure was not a chance recovery, and there was nothing to show the officer's reasonable belief that obtaining a warrant for search between sunset and sunrise would allow the offender to escape.

Bombay High Court Quashes Re-Assessment Order Based On Change Of Opinion Without Any Tangible New Information

Case Title: Ashraf Chitalwala v. DCIT

Citation: 2023 LiveLaw (Bom) 446

The Bombay High Court quashed the reassessment order based on a change of opinion without surfacing any tangible new information.

The bench of Justice K. R. Shriram and Justice N. K. Gokhale observed that the petitioner has fully and truly disclosed all material facts necessary for the purpose of assessment. The AO issued the first assessment order after carefully scrutinising the material furnished by the petitioner. The respondent department has failed to furnish any reasons for reopening as mandated by law. There is not even a whisper in the entire communication trail as to what was not disclosed.

IBC | Only Whole-Time Members And Not Chairperson Of IBBI Can Pass Order In Disciplinary Proceedings: Bombay High Court

Case Title: Poonam Basak v. Union of India & Ors.

Citation: 2023 LiveLaw (Bom) 447

The Bombay High Court held that only Whole-Time members and not the Chairperson of the Insolvency and Bankruptcy Board of India (IBBI) can pass an order in disciplinary proceedings under IBC.

A division bench of Justice BP Colabawalla and Justice MM Sathaye held that, prima facie, the Chairperson and Whole Time Members were distinct categories, as the nomination of Whole Time Members and the appointment of the Chairperson are separate processes under IBC. The court noted that considering the Chairperson a whole-time member effectively means there are 6 Whole Time Members instead of five on the IBBI board, which would contravene Section 189 of IBC.

Families Visiting Ancestral Village During Ganpati Festival Common Practice In Maharashtra, Not Copyrightable Theme: Bombay High Court

Case Title: Navigns Studios Pvt. Ltd. v. Sameer Pandharinath Khandekar and Ors.

Citation: 2023 LiveLaw (Bom) 448

The Bombay High Court held that there can be no copyright in the theme of ‘families going to their ancestral village in Konkan during the Ganpati festival’ because in Maharashtra, family members do visit their ancestral places during Ganpati festival.

Justice Manish Pitale made this observation while refusing to stay the release of a web series titled “Devak Kalji” in a copyright infringement suit filed by Navigns Studios Pvt. Ltd. alleging that the producers of the web series copied the plaintiff’s script.

Bombay High Court Upholds Constitutional Validity Of Goa Green Cess Act For 'Reduction Of Carbon Footprint'

Case Title: South Port Limited v. State of Goa

Citation: 2023 LiveLaw (Bom) 449

The Bombay High Court at Goa upheld the constitutional validity of the Goa’s Green Cess Act which enables the state government to collect cess on the utilisation of pollution causing hazardous products and uses it to reduce the effects of carbon footprint in the State.

The Act is called The Goa Cess on Products and Substances Causing Pollution (Green Cess) Act, 2013 or the Green Cess Act 2013.

A division bench of Justices MS Sonak and Bharat P Deshpande dismissed a clutch of petitions filed by various companies including Goa Carbon Limited and Vedanta Ltd that challenged the Act citing the State’s lack of legislative competence to enact such a statute.

The court rejected the petitioner’s argument that the cess collected from them didn’t specifically benefit the companies. Therefore, it wouldn’t be a ‘fee,’ but a ‘tax’ beyond the legislative competence of the state.

Section 4 Of The Fugitive Economic Offenders Act Cannot Be Bypassed By Taking Recourse To CrPC To Contend That Affidavit Was Not Proper: Bombay High Court

Case Title: Mehul Choksi v. State of Maharashtra and Anr.

Citation: 2023 LiveLaw (Bom) 450

The Bombay High Court rejected an application filed by businessman Mehul Choksi challenging an application filed by the Enforcement Directorate (ED) to declare him a fugitive economic offender (FEO) in the Punjab National Bank fraud case.

Justice Sarang V Kotwal observed that the ED’s application complied with the form and manner prescribed in the Fugitive Economic Offenders Act, 2018 (FEO Act) and FEO Rules.

The court held that the verification clause in ED’s application satisfied the requirements of the criminal manual of the court as the deponent (deputy director of ED) clearly stated that the information in the application was based on his knowledge derived from records.

The court observed that the FEO Act provided its own special procedure which should be followed in this case, an no separate affidavit needs to accompany the application.

“section 4 of the FEO Act and Rule 3 of the FEO Rules are made to further the objective of this Act and they cannot be bypassed by taking recourse to the other provisions of Cr.P.C. to contend that the affidavit was not proper”, the court observed.

No Materials To Prima Facie Indicate UAPA Offences Against Mahesh Raut : Bombay High Court In Bhima Koregaon Case

Case Title: Mahesh Sitaram Raut v. National Investigation Agency

Citation: 2023 LiveLaw (Bom) 451

Observing that the material against forest rights activist Mahesh Raut couldn’t lead to a prima-facie inference that he had indulged in a ‘terrorist act’ under Section 15 of the Unlawful Activities (Prevention) Act 1967, the Bombay High Court granted him bail in the Bhima Koregaon – Elgar Parishad larger conspiracy case.

“We are of the prima-facie opinion that on the basis of the material placed before us by the NIA, it cannot be said that there are reasonable grounds for believing that the accusations against the Appellant is prima-facie true to attract Sections 16, 17, 18, 20 and 39 of UAP Act,” the court of Justices AS Gadkari and Sharmila Deshmukh observed.

The court further noted the 5 years and three months Raut has already spent inside prison without trial.

Capital Gain Tax, No Retrospective Applicability Of Amendment Restricting Investment In India: Bombay High Court

Case Title: Hemant Dinkar Kandlur v. Commissioner of Income Tax

Citation: 2023 LiveLaw (Bom) 452

The Bombay High Court held that the amendment restricting investment in house property in India has retrospective applicability.

The bench of Justice K. R. Shriram and Justice N. K. Gokhale has observed that the language of Section 54(F) of the Act before its amendment was that the assessee should invest capital gain in a residential house. It did not mention any boundaries. It is only after the amendment to Section 54(F) of the Act, which amendment came into effect on April 1, 2015, that the condition that the assessee should invest the sale proceeds arising out of a sale of a capital asset in a residential property situated "in India" within the stipulated period was imposed. The amendment is not merely a clarificatory or explanatory amendment, but a substantive one.

Other Developments

S.309 CrPC | Bombay High Court Expresses Concern Over Non-Production Of Undertrials Every 15 Days, Inquires If Magistrate Courts Have VC Facility

The Bombay High Court raised concerns regarding the non-production of incarcerated prisoners before Metropolitan Magistrate Courts every 15 days and asked the prosecutor to inform if video conferencing facilities were provided in all MM Courts in Mumbai.

Justice Bharati Dangre was dealing with a bail application wherein Tribhuvansing Yadav, an accused in a forgery case, wasn’t produced before the MM Court in Andheri on several dates.

The court directed the prosecutor to take instructions and appointed Advocate Satyavrat Joshi to assist the Court as an amicus curiae, “so that a workable solution is found out after ascertaining the position in law and the procedural aspect, since time and again the grievance is made on behalf of accused, and not only this, this Court has also taken judicial note of the fact that on several dates of listing, the accused are not produced before the Court.”

Jet Airways Funds Not Used For Personal Expenses, Family Members Drew Salaries With Approval Of Central Govt: Naresh Goyal To Bombay HC

Jet Airways founder Naresh Goyal has claimed that his family members received salaries in their capacity as employees of Jet Airways, countering Canara Bank’s allegation that he siphoned off funds from Jet Airways by paying for personal expenses such as salaries of staff, phone bills and vehicle expenses of the Goyal family.

“Family members of the Petitioner were being paid salaries and other benefits in their capacity as employees of the company for the relevant period. Necessary approvals, including approval of Audit Committee and approval of Central Government, as required, have been obtained. The same have also been disclosed in the Audited Annual Financial Statements of the Company for the relevant years under Related Party Transactions”, as per Goyal’s writ petition before the Bombay High Court.

Goyal has given this explanation in a habeas corpus writ petition challenging his arrest in an alleged Rs. 538 Crore money laundering case. The Enforcement Directorate case is based on an FIR registered by the CBI, which is based on a complaint by Canara Bank filed in November 2022.