Bombay High Court Weekly Round-Up: September 4 To September 10, 2023

Oberoi Mega Entertainment LLP and Anr. v. Sanjay Saha and Ors. 2023 LiveLaw (Bom) 409

Ashok Commercial Enterprises v. Assistant Commissioner of Income Taxation 2023 LiveLaw (Bom) 410

Deepak Jagdev v. Eknath Shinde and Anr. 2023 LiveLaw (Bom) 411

Sachin D. Basare v. State of Maharashtra and Ors. 2023 LiveLaw (Bom) 412

Ajay Uddhav Narhe & Anr. v. Uttam Patil, Deputy Collector (Rehabilitation) & Ors. 2023 LiveLaw (Bom) 413

Darshana Anand Damle v. DCIT 2023 LiveLaw (Bom) 414

Shreeji Realty v. Brihanmumbai Municipal Corporation and Ors. 2023 LiveLaw (Bom) 415

ABC v. XYZ 2023 LiveLaw (Bom) 416

ABC v. XYZ 2023 LiveLaw (Bom) 417

Rajendrakumar Vishwanath Trivedi v. Union of India & Ors. 2023 LiveLaw (Bom) 418

Chanda Ram Shivsharan v. State of Maharashtra 2023 LiveLaw (Bom) 419

Nisargadeep Shikshan Prasarak Mandal v. State of Maharashtra 2023 LiveLaw (Bom) 420

Zee Entertainment Enterprises Limited v. Triller Inc. 2023 LiveLaw (Bom) 421

Rashmi Shukla v. State of Maharashtra 2023 LiveLaw (Bom) 422

Ravindra Waikar v. State of Maharashtra 2023 LiveLaw (Bom) 423

Sonali Ashok Tandle v. Ranka Lifestyle Ventures and Ors. 2023 LiveLaw (Bom) 424

Grasim Industries Ltd. v. Assistant Commissioner of Income Tax 2023 LiveLaw (Bom) 425

Siemens Financial Services Pvt Ltd. v. Deputy Commissioner of Income Tax 2023 LiveLaw (Bom) 426

Reports/Judgments

Bombay High Court Refuses To Stay Nawazuddin Siddiqui Starrer HADDI's OTT Release On Plea By Vivek Oberoi

Case Title: Oberoi Mega Entertainment LLP and Anr. v. Sanjay Saha and Ors.

Citation: 2023 LiveLaw (Bom) 409

The Bombay High Court refused relief to actor-producer Vivek Oberoi seeking to stall the release of Nawazuddin Siddiqui starrer ‘Haddi.’ The movie will hit OTT screens on Thursday.

Justice Manish Pitale deprecated the petitioners for failing to approach the court earlier.

“As on today, this Court finds that the petitioners waited all along and when the movie was declared to be released on 07.09.2023 on the OTT platform of respondent Nos.4 and 5 (ZEE), they rushed to this Court seeking ad-interim relief for stay of release of the said movie.”

Write-Off Of A Bad Debt Can’t Be Held To Be An Asset Under Section 153A(1) Of The Income Tax Act, 1961: Bombay High Court

Case Title: Ashok Commercial Enterprises v. Assistant Commissioner of Income Taxation

Citation: 2023 LiveLaw (Bom) 410

The Bombay High Court held that a write-off of a bad debt cannot be held to be an asset under section 153A(1) of the Income Tax Act, 1961.

The bench of Justice K. R. Shriram and Justice Firdosh P. Pooniwalla has observed that since the write-off of bad debt cannot be held to be an asset, clause (a) of the 4th proviso to Section 153A(1) of the Act would bar any assessment that is proposed to be made for the Assessment Years 2011-2012, 2012-2013 and 2013-2014.

After Lawyer's No Show, Bombay High Court Dismisses PIL Seeking Probe Into Source Of Funds Used By CM Eknath Shinde In 2022 Dusshera Rally

Case Title: Deepak Jagdev v. Eknath Shinde and Anr.

Citation: 2023 LiveLaw (Bom) 411

The Bombay High Court dismissed a PIL seeking probe against Chief Minister Eknath Shinde and others for allegedly spending "Rs. 10 crore or more" for holding Dussehra rally at the MMRDA grounds.

A division bench of Chief Justice Devendra Upadhyaya and Justice Arif S Doctor dismissed the PIL after the petitioner’s advocate Nitin Satpute failed to appear before the court on three occasions, including today.

Frame Policy To Regulate Celebration Of Festivals As Per Capacity Of Mumbai’s Public Spaces: Bombay High Court Urges State

Case Title: Sachin D. Basare v. State of Maharashtra and Ors.

Citation: 2023 LiveLaw (Bom) 412

The Bombay High Court asked the Maharashtra government to frame a comprehensive policy for public celebration of festivals in Mumbai taking into account the city's increasing population and the limited capacity of its public spaces.

A division bench of Justice Sunil B Shukre and Justice Firdosh P Pooniwalla opined that the current policy does not adequately consider the potential inconveniences and traffic congestion arising from public celebrations in Mumbai's streets and squares.

Bombay High Court Drops Contempt Proceedings After 5 State Govt Officers Tender Unconditional Apology

Case Title: Ajay Uddhav Narhe & Anr. v. Uttam Patil, Deputy Collector (Rehabilitation) & Ors.

Citation: 2023 LiveLaw (Bom) 413

The Bombay High Court dropped contempt proceedings against five state government officers after they tendered unconditional apologies to the court for not following its orders.

A division bench of Justice GS Kulkarni and Justice Jitendra Jain observed,

“considering the fact that the contemnors are Government officials and that their apology as tendered to the Court as informed to us is bonafide, heartfelt and real contrition, we accept such unconditional apology and the assurance as given by the contemnors, as an undertaking to the Court.”

Development Agreement Not To Be Treated As Transfer Of Possession Of Land: Bombay High Court Quashes Reassessment Notice

Case Title: Darshana Anand Damle v. DCIT

Citation: 2023 LiveLaw (Bom) 414

The Bombay High Court quashed the reassessment notice and held that the granting of a licence for the purpose of development of the flats and selling the same could not be said to be granting possession.

The bench of Justice K. R. Shriram and Justice N.K. Gokhale relied on the decision of the Supreme Court in the case of Seshasayee Steels (P) Ltd. v. Assistant Commissioner of Income Tax VI(2), Chennai, in which it was held that the assessee had only granted a licence to a developer who entered into the assessee’s land for the purpose of development, and that did not amount to ‘allowing the possession of the land’ as contemplated under Section 53A of the Transfer of Property Act, 1882, and therefore Section 2(47)(v) of the Income Tax Act would not apply.

'Invidious Discrimination Impermissible': High Court Paves Way For High Rise In Mumbai’s Fort Heritage Precinct, Strikes Off BMC Condition

Case Title: Shreeji Realty v. Brihanmumbai Municipal Corporation and Ors.

Citation: 2023 LiveLaw (Bom) 415

The Bombay High Court recently quashed Brihanmumbai Municipal Corporation's (BMC) condition requiring a no-objection certificate (NOC) from the Mumbai Heritage Conservation Committee (MHCC) for the construction of a 69.90-meter-tall building in Mumbai’s Fort Heritage Precinct.

A division bench of Justice GS Patel and Justice Kamal Khata observed that no such condition was imposed by the BMC while granting permission for construction of a 60-meter-tall building opposite the concerned property.

The court said that this was a case under Article 14 of the Constitution, which mandates equality before the law and equal protection of laws. The court opined that Condition 38 in the IOD is contrary to Clause 9(D)(b) of the Regulation 52 of DCPR 2034 because that clause does not provide that MHCC NOC is mandatory. It only requires that guidelines may be taken into consideration, giving discretion to the Municipal Commissioner, the court noted.

Physically Handicapped Person Not Incapable Of Giving Threats: Bombay High Court Refuses To Quash Domestic Violence Case

Case Title: ABC v. XYZ

Citation: 2023 LiveLaw (Bom) 416

Observing that a physically disabled person is not incapable of giving threats, the Bombay High Court refused to quash a domestic violence case against a disabled woman accused of abusing and threatening her daughter-in-law.

Justice RM Joshi of the Aurangabad bench observed that whether any domestic violence was caused is a matter of trial, but prima facie the complainant was subjected to domestic violence.

Guardianship Of Major Child Suffering From Mental Retardation Can Be Granted U/S 7 Of Guardians & Wards Act: Bombay High Court

Case Title: ABC v. XYZ

Citation: 2023 LiveLaw (Bom) 417

Noting a lacuna in the law for mentally retarded persons, the Bombay High Court extended the scope of Section 7 of the Guardians and Wards Act 1980 to allow guardianship of an adult suffering from mental retardation.

Justice Riyaz Chagla observed that provisions of the Mental Health Act, both the repealed and the existing Acts, did not cover mental retardation under the definition of mental illness.

The court noted the existing Mental Healthcare Act, 2017 unlike the repealed Act doesn’t have a provision for the District Court to appoint a suitable person as Guardian of a person suffering from mental illness and incapable of taking care of himself.

“Thus, in my view the only remedy available in such cases is for the Petitioner to apply under the Guardians and Wards Act, 1890 for the Petitioner to be appointed as Guardian of the person, despite he/she being a major, but suffering from mental retardation,” the bench said.

'Infructuous': PIL Challenging Appointment Of CBI Director Withdrawn From Bombay High Court

Case Title: Rajendrakumar Vishwanath Trivedi v. Union of India & Ors.

Citation: 2023 LiveLaw (Bom) 418

A PIL challenging the appointment of IPS officer Subodh Kumar Jaiswal as the Director of the Central Bureau of Investigation was withdrawn after the Bombay High Court was informed the officer’s term had ended rendering the PIL infructuous. The position is now held by IPS officer Praveen Sood.

A division bench comprising Chief Justice Devendra Kumar Upadhyay and Justice Arif Doctor dismissed the PIL as withdrawn.

Bombay High Court Factors In Mother-In-Laws's Occupation Of Sweeper, Responsibility Towards Grandchildren To Stay Conviction In Dowry Death Case

Case Title: Chanda Ram Shivsharan v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 419

The Bombay High Court stayed the conviction of one Chanda Ram Shivsharan, a sweeper at Solapur Municipal Corporation in a dowry death case.

Justice MS Karnik, while staying her conviction for the death of her daughter-in-law, observed that she is a Class IV employee who is responsible for her two minor grandchildren.

“Though the Applicant is convicted, however considering the nature of the evidence against the Applicant, the delay in lodging of the FIR which is not satisfactorily explained, the fact that she is in employment as a Sweeper who has to provide for her grandchildren, are factors which have persuaded me to stay the conviction. This is a rare and an exceptional case where the facts are such that I am of the opinion that the conviction needs to be stayed”, the court held.

The court allowed Shivsharan’s interim application for stay on conviction in her appeal against conviction.

No Teachers, Principal In College; Classrooms Had Toys: Bombay High Court Upholds Marathwada University's Decision To Withdraw Affiliation

Case Title: Nisargadeep Shikshan Prasarak Mandal v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 420

The Bombay High Court upheld Marathwada University’s decision to withdraw the affiliation of Shri Tulja Bhavani Arts and Science College, Aurangabad, due to severe lack of academic and infrastructural facilities.

A division bench of Justice Mangesh S Patil and Justice Shailesh P Brahme at Aurangabad, in a writ petition against the university’s decision, observed that there were serious lapses in the college and the university had followed proper procedure for withdrawal of affiliation.

Bombay High Court Directs Video Sharing Platform Triller To Pay USD 300,000 To Zee Entertainment For Use Of Copyrighted Music

Case Title: Zee Entertainment Enterprises Limited v. Triller Inc.

Citation: 2023 LiveLaw (Bom) 421

The Bombay High Court directed video sharing platform Triller to pay unpaid dues of USD 300,000 (approximately Rs. 2,44,26,480) to Zee Entertainment Enterprises Limited for use of its copyrighted music.

Justice Kamal Khata in Zee's suit for recovery of the amount observed that Triller has a history of litigations in the United States and might attempt to dispose of its assets in India to evade its obligations.

Phone Tapping Case: Bombay High Court Quashes Two FIRs Against IPS Officer Rashmi Shukla

Case Title: Rashmi Shukla v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 422

The Bombay High Court quashed two FIRs against senior Indian Police Service (IPS) officer Rashmi Shukla accused of allegedly tapping politicians' phones between 2015- 2019 when the previous BJP led alliance was in power in the state.

Justices AS Gadkari and Sharmila Deshmukh quashed the FIRs after Advocate General Birendra Saraf informed the bench that Mumbai Police was refused sanction to prosecute Shukla under section 197 of the CrPC.

The FIR registered at Colaba police station, in Mumbai, was for allegedly tapping the phones of Shiv Sena leader Sanjay Raut and Nationalist Congress Party (NCP) leader Eknath Khadse.

Bombay High Court Dismisses Shiv Sena (UBT) MLA Ravindra Waikar's Plea Against BMC Order Revoking Hotel Permission

Case Title: Ravindra Waikar v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 423

The Bombay High Court dismissed the petition filed by MLA Ravindra Waikar from Shiv Sena (Uddhav Balasaheb Thackeray) party regarding cancellation of permission granted to him and four others to build a luxury hotel in Mumbai.

The order was passed in chambers by a bench of Justice Sunil Shukre and Justice Rajesh Patil who observed that rules of natural justice were followed BMC issued a Waikar a notice and asked to clarify his position in writing before cancelling construction permission.

"We find that there are no malafides or any lapses on the part of the Corporation in taking the decision impugned in the present Petition," the order read. The court, however, stayed its order for four weeks to enable Waikar to approach the Supreme Court.

Time To Bury Pernicious Practice Of Submitting Information In 'Sealed Cover': Bombay High Court

Case Title: Sonali Ashok Tandle v. Ranka Lifestyle Ventures and Ors.

Citation: 2023 LiveLaw (Bom) 424

Taking a firm stance against practice of parties submitting information in sealed cover to the court, the Bombay High Court refused to accept Income Tax returns and financial statements of a developer in a sealed cover and directed it to file an affidavit for the same.

A division bench of Justice GS Patel and Justice Kamal Khata observed that no court shout permit a litigant to disadvantage the opposing party by submitting material in a sealed cover.

The court further said that filing information in sealed cover when the court has ordered the party to file an affidavit for the information will invite contempt proceedings.

Bombay High Court Directs Dept. To Refund TDS Amount Deposited By Assessee Under Protest

Case Title: Grasim Industries Ltd. v. Assistant Commissioner of Income Tax

Citation: 2023 LiveLaw (Bom) 425

The Bombay High Court, while invoking the doctrine of unjust enrichment, directed the department to refund the TDS amount deposited by the assessee under protest.

The bench of Justice K. R. Shriram and Justice N. K. Gokhale observed that technically, even though the amount deposited by the petitioner would be called ‘tax deductible at source’, what the petitioner paid was ‘an ad hoc amount, not technically a TDS amount’. Moreover, since it is also confirmed by the Court that the amount paid to Davy Mckee Corporation (DAVY) was not chargeable to tax in India, the departments’ insistence on the assessee paying that amount was not in accordance with the law, and the amount so paid over must be refunded to the assessee.

Bombay High Court Quashes Reassessment Notice Issued After 3 Years Without Proper Approval

Case Title: Siemens Financial Services Pvt Ltd. v. Deputy Commissioner of Income Tax

Citation: 2023 LiveLaw (Bom) 426

The Bombay High Court quashed the reassessment notice issued after 3 years without proper approval.

The bench of Justice K.R. Shriram and Justice N. K. Gokhale has observed that the approval of the specified authority in terms of Section 151(ii) of the Income Tax Act is a jurisdictional requirement, and in the absence of complying with this requirement, the reopening of assessment would fail.

Other Developments

Bombay HC Takes Cognisance Of Aurangabad Village Children Crossing Backwaters On Thermocol Rafts, Warding Off Snakes To Reach School

The Aurangabad bench of the Bombay High Court took suo motu cognisance of around 15 children from a village in Aurangabad rowing thermocol rafts with makeshift oars to cross one of Maharashtra’s largest dams and reach school.

A division bench of Justice Ravindra Ghuge and YG Khobragade took cognisance of a news report published on the front page of Times of India’s Aurangabad edition titled, "Kids row thermocol rafts with makeshift oars to cross Jayakwadi backwaters, attend school".

Bombay High Court Asks BMC About Steps Taken To Ensure Eco-Friendly Immersion Of Ganesh Idols At Aarey Colony Lakes

The Bombay High Court sought to know from the Brihanmumbai Municipal Corporation (BMC) the measures it has implemented to ensure eco-friendly idol immersion in the lakes inside of Aarey Milk Colony during the upcoming Ganpati Chaturthi festival.

A division bench of Chief Justice Devendra Upadhyaya and Justice Arif S Doctor  noted directed the BMC to file an affidavit outlining the specific actions taken to ensure compliance with the guidelines. The court also suggested the creation of artificial ponds for idol immersion.

Bombay High Court Seeks Response From Haddi Producers In Suit Filed By Nawazuddin Siddiqui Over Alleged Dues, No Immediate Stay On Film's Release

The Bombay High Court directed co-producer Zee Entertainment Enterprises Ltd. (ZEEL) to file a reply affidavit in Nawazuddin Siddiqui’s specific performance suit seeking payment of over Rs. 5 Crores additional fees as lead actor in film Haddi.

Justice SM Modak refused Siddiqui’s prayer for ad interim relief seeking directions to ZEEL to deposit the amount with the court and posted the matter for further consideration on October 10.

Pandharpur Temples Act Doesn't Impair Rights Of Devotees, Rather Meant To Save Them From "Rapacity Of Priestly Class": State To Bombay High Court

The Pandharpur Temples Act 1973 giving the Maharashtra Government control over the Vitthal and Rukmini temples in Pandharpur was enacted to relieve its multitude of secular devotees and pilgrims from the “rapacity of the priestly classes”, the State government told the Bombay High Court.

Following a committee report and consensus from both houses of legislature, the hereditary rights of the priestly classes and other performing poojaris, appropriating the income from offerings by devotees and the rights of management were abolished through the Act, it added.

The affidavit was filed in response to Former Rajya Sabha MP Subramanian Swamy’s PIL which sought for the Act to be struck down and a committee of priests, representatives of devotees and warkaris to be constituted for proper management of the temple.