Gujarat High Court Monthly Digest: July 2023

Teesta Atul Setalvad Vs. State Of Gujarat 2023 Livelaw (Guj) 110

TBEA Energy v. R K Engineering 2023 Livelaw (Guj) 111

Anilaben Rohitbhai Modi Versus Income Tax Officer, Ward 5(3)(1), Ahmedabad 2023 Livelaw (Guj) 112

Ajay Raydhanbhai Kumbharwadiya (Boricha) vs. State Of Gujarat & 6 Other(S) 2023 Livelaw (Guj) 113

Rahul Gandhi Versus Purnesh Ishwerbhai Modi 2023 Livelaw (Guj) 114

Nirajkumar Nareshkumar Lakhyani (Pro. Of M/S Om Multitrade) Vs. State Of Gujarat 2023 Livelaw (Guj) 115

Case Citation: 2023 Livelaw (Guj) 116

Om Trading Vs State Of Gujarat 2023 Livelaw (Guj) 117

Rohit Dinanath Ray Versus State Of Gujarat 2023 Livelaw (Guj) 118

Govindbhai Velshibhai @ Virjibhai Parmar Versus State Of Gujarat 2023 Livelaw (Guj) 119

Hasan Ahmed Charkha @ Lalu Thro Afsa Hasan Lalu Versus State Of Gujarat 2023 Livelaw (Guj) 120

M Versus State Of Gujarat 2023 Livelaw (Guj) 121

Arjunsinh Raisinh Chavda Versus State Of Gujarat 2023 Livelaw (Guj) 122

The Principal Commissioner Of Income Tax 1, Ahmedabad Versus Axis Bank Ltd. 2023 Livelaw (Guj) 123

Jivanbhai Nagjibhai Makwana Versus State Of Gujarat & 1 Other(S) 2023 Livelaw (Guj) 124

Deepakkumar Hasmukhbhai Mahida Versus State Of Gujarat 2023 Livelaw (Guj) 125

Judgments/Orders This Month

[2002 Gujarat Riots Case] High Court Rejects Teesta Setalvad's Bail Plea, Directs Her To 'Surrender Immediately'

Case Title - Teesta Atul Setalvad Vs. State Of Gujarat

Case Citation: 2023 Livelaw (Guj) 110

The Gujarat High Court today rejected the regular bail plea filed by social activist Teesta Setalvad in connection with State Police FIR lodged against her for allegedly fabricating documents so as to implicate high government functionaries in relation to the 2002 Gujarat riots. Pronouncing the order today, the Bench of Justice Nirzar S. Desai directed her to surrender immediately. Till now, she was protected against coercive actions due to the operation of the Supreme Court's interim bail order of September 2022.

Court Cannot Appoint Arbitrator Under Section 11 Of The A&C Act When The Dispute Is Covered Under MSMED Act: Gujarat HC Reiterates

Case Details: TBEA Energy v. R K Engineering

Case Citation: 2023 Livelaw (Guj) 111

The High Court of Gujarat has reiterated that the petition under Section 11 of the A&C Act for the appointment of the arbitrator by the Court would not be maintainable if the dispute is covered under the MSMED Act, 2006 and the provisions of the act are invoked.

The bench of Justice Biren Vaishnav followed a line of earlier precents wherein the High Court has held that the provisions of MSMED Act prevail over the A&C Act and the resolution of dispute covered under the MSMED Act has to be in terms of Section 18 of the Act only and the procedure for the appointment of arbitrator under the A&C Act would have to give way to the special mechanism provided under the MSMED Act.

Gujarat High Court Quashes Reopening Of Assessment Order And Notice In Land Acquisition Case, Rules Compensation Not Taxable As Capital Gains

Case Title: Anilaben Rohitbhai Modi Versus Income Tax Officer, Ward 5(3)(1), Ahmedabad

Case Citation: 2023 Livelaw (Guj) 112

The Gujarat High Court while quashing the reopening of an assessment order and notice issued to the petitioner in a land acquisition case, has ruled that compensation received for compulsory acquisition of land is not taxable as capital gains. While passing the above ruling, the division bench of Justices Ashutosh Shastri and C. Doshi underscored that the authorities' action was based on a mere change of opinion and lacked justification.

Gujarat High Court Frames Contempt Charges Against Five Policemen Accused Of Assaulting, Parading Man In Public In 2016

Case Title: Ajay Raydhanbhai Kumbharwadiya (Boricha) vs. State Of Gujarat & 6 Other(S)

Case Citation: 2023 Livelaw (Guj) 113

The Gujarat High Court has framed contempt of court charges against five policemen, accused of beating a man in custody and parading him in public in Rajkot in 2016. "You see, he may be a hardened terrorist, but it does not give you the authority to act against the law," the division bench of Justices A S Supehia and M R Mengdey remarked, during the hearing on July 05.

['Modi-Thieves' Remark] Gujarat High Court Dismisses Rahul Gandhi's Plea To Suspend Conviction In Defamation Case

Case Title - Rahul Gandhi Versus Purnesh Ishwerbhai Modi

Case Citation: 2023 Livelaw (Guj) 114

The Gujarat High Court today dismissed Congress leader and Former MP Rahul Gandhi's revision plea to stay the conviction in the criminal defamation case in the 'Modi Thieves' remark case.

"(Gandhi) is seeking a stay on conviction on absolutely non-existent grounds. Stay on conviction is not a rule. As many as 10 cases are pending against (Gandhi). It is needed to have purity in politics...A complaint has been filed against (Gandhi) by the grandson of Veer Savarkar in Pune Court after Gandhi used terms against Veer Savarkar at Cambridge...Refusal to stay conviction would not in any way result in injustice to the applicant. There are no reasonable grounds to stay conviction. The conviction is just, proper and legal," the bench of Justice Hemant Prachchhak observed as he pronounced the order today.

Defamation Case| Modi Community An 'Identifiable' Class, Rahul Gandhi Has A Duty Not To Jeopardise Reputation Of Large Section Of People: Gujarat HC

Case Title - Rahul Gandhi vs. Purnesh Ishvarbhai Modi

Case Citation: 2023 Livelaw (Guj) 114

Dismissing Congress leader and Former MP Rahul Gandhi's revision plea to stay the conviction in the criminal defamation case over his 'Modi Thieves' remark, the Gujarat High Court today observed that the case against Gandhi concerns a large identifiable class (Modi Community) and not just an individual.

The Court added that being a senior leader of the oldest political party in India and a "prominent figure in the realm of the Indian political landscape", Gandhi is vested with a duty to ensure that the dignity and reputation of a large number of persons or any identifiable class is not "jeopardised" due to his political activities or utterances.

'Modi-Thieves' Remark| 'Rahul Gandhi Made False Statement To Affect Poll Results; Took PM's Name To Add Sensation To It': Gujarat HC

Case Title - Rahul Gandhi vs. Purnesh Ishvarbhai Modi

Case Citation: 2023 Livelaw (Guj) 114

While dismissing Congress leader and Former MP Rahul Gandhi's revision plea to stay the conviction in the criminal defamation case in the 'Modi Thieves' remark case, the Gujarat High Court today said that Gandhi, in his speech, made a false statement to affect the poll results and further suggested Prime Minister Narendra Modi's name, only to add sensation to it.

Perusing the content of Gandhi's speech, which is at the centre of the controversy ["Why do all thieves have Modi in their names..."], the bench of Justice Hemant Prachchhak also said that Gandhi's act would also amount to an offence punishable under Section 171G of the IPC [False statement in connection with an election].

Gujarat High Court Grants Assessee Permission to Pay Tax Liability in Installments, Lifts Bank Account Attachment

Case Title: Nirajkumar Nareshkumar Lakhyani (Pro. Of M/S Om Multitrade) Vs. State Of Gujarat

Case Citation: 2023 Livelaw (Guj) 115

The Gujarat High Court has overturned the decision of the Adjudicating Authority and granted permission to an assessee to fulfill their tax liability through installment payments, consequently lifting the provisional attachment of the assessee’s bank account.

The above order delivered by Justice NV Anjaria and Devan M Desai, came in response to a Special Civil Application, whereby the petitioner prayed before the court seeking permission to make payment towards the outstanding tax amount to the tune of Rs. 2,13,04,290/- in twelve equal installments.

'Sharam Rakho' Remark Against Sitting Judge: Gujarat HC Accepts Unconditional Apology Of Sr. Adv Percy Kavina In Contempt Case

Case Citation: 2023 Livelaw (Guj) 116

The Gujarat High Court today accepted the unconditional apology tendered by Senior Counsel Percy V. Kavina in the suo moto contempt case initiated against him on July 10 for his 'disparaging' remark made against a sitting judge on July 7. The bench of Justice AS Supehia and Justice MR Mengedey, however, asked him to be mindful of the responsibility bestowed upon him as a Senior Counsel.

Gujarat High Court Quashes Non-Speaking Cryptic Order Of GST Registration Cancellation

Case Title: Om Trading Vs State Of Gujarat Case

Citation: 2023 Livelaw (Guj) 117

The Gujarat High Court has clarified that an order for the cancellation of registration passed without providing any reasons is a non-speaking order and therefore is liable to be set aside.

The above ruling delivered by the division bench of Justices Vipul M Pancholi and Devan M Desai, came in response to a petition filed by Om Trading, a registered business under the Goods and Services Tax Act, challenging the cancellation of their registration certificate by the Assistant Commissioner of State Tax, Ghatak 92.

'Not A Case Of False Promise Of Marriage': Gujarat High Court Quashes Second Rape Case Against Man

Case Title: Rohit Dinanath Ray Versus State Of Gujarat

Case Citation: 2023 Livelaw (Guj) 118

The Gujarat High Court recently quashed a rape case against a man, observing that the case is of consensual sex. The court said that the complainant was well aware of the pros and cons of the relationship and that no false promise of marriage was given at the early stage.

Justice Gita Gopi said, “At the inception of relation, there would not have been any promise to marry, for the complainant to give consent for physical relation on the basis of promise. It is not the case that, but for the false promise by the accused to marry, the complainant had given the consent to have physical relation.”

Gujarat High Court Asks State To Identify Cases Where Rape Convictions Are Based On Weak Evidence; To Hear Such Appeals On Priority

Case Title: Govindbhai Velshibhai @ Virjibhai Parmar Versus State Of Gujarat

Case Citation: 2023 Livelaw (Guj) 119

The Gujarat High Court has instructed the State government to establish a committee to identify cases, particularly rape cases, where convicts have been wrongly sentenced due to improper evaluation of evidence or doubtful evidence, resulting in prolonged incarceration.

"Such cases as the present one which are pending before the High Court need to be identified so that the conviction can be set aside at the earliest even if the sentence of the convicts is suspended. We request the State Government to do the needful in this regard by forming a Committee," the division bench of Justices AS Supehia and MR Mengdey ordered.

Gujarat High Court Grants 15 Days Parole To Life Convict In 2002 Godhra Train Burning Case

Case Title: Hasan Ahmed Charkha @ Lalu Thro Afsa Hasan Lalu Versus State Of Gujarat

Case Citation: 2023 Livelaw (Guj) 120

The Gujarat High Court on Friday granted 15-days parole to a convict serving life sentence for burning the Sabarmati Express which led to post-Godhra riots in 2002.

Justice Nisha M Thakore held that grant of parole does not equate to suspension of sentence, but is rather counted as part of sentence, and does not interfere with pending appeal proceedings before the Supreme Court. The Gujarat government had opposed the parole citing judicial precedents.

‘There Can’t Be Inconsistency Between Time Of Offence Recorded In FIR And Deposition To Court’: Gujarat High Court Upholds Acquittal In Rape Case

Case Title: M Versus State Of Gujarat

Case Citation: 2023 Livelaw (Guj) 121

Upholding the acquittal of an accused in a rape case, the Gujarat High Court said there was a major discrepancy with regard to the time of the incident. “If at all offence is committed at a particular time, there cannot be inconsistent time of offence in between the deposition and the contemporaneous record like First Information Report registered by the first-informant herself,” said the division bench of Justice Umesh A Trivedi and Justice MK Thakker.

Gujarat High Directs DLSA To Provide Rehabilitation Guidance To Convict Who Spent 13 Years In Jail For Killing Uncle

Case Title: Arjunsinh Raisinh Chavda Versus State Of Gujarat

Case Citation: 2023 Livelaw (Guj) 122

The Gujarat High Court has directed the District Legal Services Authority to proactively guide a convict, set to be released after serving 13 years in prison, in identifying benevolent schemes offered by the government for income generation and rehabilitation in society.

The division bench of Justices AY Kogje and MR Mengdey converted the conviction from Section-302 of the Indian Penal Code to conviction under Section- 304, Part-I of IPC and ordered the release of the appellant.

Excess Claim Of Depreciation By Axis Bank, Voluntary Surrendered, No Case For Penalty: Gujarat High Court

Case Title: The Principal Commissioner Of Income Tax 1, Ahmedabad Versus Axis Bank Ltd.

Case Citation: 2023 Livelaw (Guj) 123

The Gujarat High Court has held that the department has failed to establish that there was concealment of particulars of the income of the assessee, Axis Bank. The department has also failed to establish that the assessee furnished inaccurate particulars of its income.

The bench of Justice Vipul M. Pancholi and Justice D. M. Desai has upheld the ruling of the Income Tax Appellate Tribunal (ITAT), in which it was held that the addition made on account of excess depreciation claimed had been surrendered by the assessee itself without any prior detection by the Revenue and the excess claim had been demonstrated to have been made for bona fide reasons.

Gujarat High Court Quashes Complaint Filed By One BJP Member Against Another, Expresses Anguish Over Misuse Of SC/ST Act

Case Title: Jivanbhai Nagjibhai Makwana Versus State Of Gujarat & 1 Other(S)

Case Citation: 2023 Livelaw (Guj) 124

The Gujarat High Court, while expressing distress over the misuse of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act (SC/ST Act), quashed a complaint filed by a Bharatiya Janata Party (BJP) member against another BJP leader who held the position of President of Chotila Nagarpalika.

Justice Sandeep Bhatt expressing concern, said, "While the Act is essentially meant for protecting the members of a scheduled caste or scheduled tribe from atrocity or oppression, at the same time, it cannot be allowed to be misused. It is a greater responsibility on the investigating officer to investigate such offence wisely and/or very sharply and in a fair manner."

Gujarat High Court Dismisses Plea Seeking Implementation Of District Education Officer’s Order To School For Refund Of Additional Fees

Case Title: Deepakkumar Hasmukhbhai Mahida Versus State Of Gujarat

Case Citation: 2023 Livelaw (Guj) 125

The Gujarat High Court has dismissed a plea seeking directions for implementation of a District Education Officer's order for refund of the fees additionally charged from the students by a school Justice Nikhil S. Kariel said though the order may have been passed upon a complaint filed by the petitioner but he is is not a person who could be stated to be aggrieved on account of non compliance of the order.

It would appear that he has no lis in the matter as he is neither a parent of any child studying in the school nor it is his case that he is in any other manner connected with the activities of the school, the bench said.