Madras High Court Weekly Round-Up: November 20 To November 26, 2023

NOMINAL INDEX

G.Mayakannan v. The District Collector, 2023 LiveLaw (Mad) 359

Apollo Hospitals Enterprises Ltd v Dr Dheeraj Saurabh, 2023 LiveLaw (Mad) 360

AM Paramasivan and another v State, 2023 LiveLaw (Mad) 361

State v XXX, 2023 LiveLaw (Mad) 362

M/s. Lenovo (India) Pvt. Ltd. Versus JCIT, 2023 LiveLaw (Mad) 363

M/s. Jain Metal Rolling Mills Versus Union of India, 2023 LiveLaw (Mad) 364

Manav Menon Versus DCIT, 2023 LiveLaw (Mad) 365

REPORT

Married Woman Cannot Be Presumed To Have Disowned Residential Rights At Her Parents’ House: Madras High Court

Case Title: G.Mayakannan v. The District Collector

Citation: 2023 LiveLaw (Mad) 359

While dismissing a plea challenging the appointment of a woman to the post of Panchayat Secretary claiming that she was not a resident of that place, the Madras High Court observed that a married woman should not be presumed to have disowned the residential rights at her parents home on account of her marriage.

Justice RN Manjula stressed that retaining or waiving the residential address was completely at the will of the married woman and her family in certain circumstances. This will, along with a house was enough to provide her with a residential certificate, the court added.

“Apollo” A Well Known Mark In Pharma Industry: Madras High Court Injuncts Bihar Hospital From Using “New Appolo Hospital” Mark

Case Title: Apollo Hospitals Enterprises Ltd v Dr Dheeraj Saurabh

Citation: 2023 LiveLaw (Mad) 360

Granting relief to the Apollo group, the Madras High Court recently observed that the trademark “Apollo” was a well-known mark in the healthcare and pharmaceutical industry and was entitled to highest level of protection as the public associated the name “Apollo” only with the healthcare group.

Justice Abdul Quddhose was hearing a plea by Apollo Hospitals Enterprises Ltd to declare their “Apollo” mark as a well-known trade mark and to injunct the defendant, DR Dheeraj Saurabh, proprietor of New Appolo Hospital in Bihar from using their marks.

With respect to the grant of recognition as well well-known mark, the court observed that after amendment in 2018, the Trade Marks Rules empowered the trademark registry to grant recognition of a trademark as a well-known mark within the meaning of Section 2(1)(zg) of the Trade Marks Act 1999. However, the court noted that the amendment had not taken away the court’s power to grant such recognition. The court thus observed that the court and the registry had concurrent powers to recognise a mark as a well-known trademark.

Madras High Court Upholds Sentence Of Former Minister’s 80-Yr-Old Wife In Disproportionate Assets Case

Case Title: AM Paramasivan and another v State

Citation: 2023 LiveLaw (Mad) 361

While deciding a 23-year-old appeal against the order of Special Judge sentencing former Minister for Labour Welfare Late AM Paramasivam and his wife under the Prevention of Corruption Act, the Madras High Court confirmed the sentence of one year rigorous imprisonment and fine imposed on the minister’s wife Nallammal.

Paramasivam was a member of the Tamil Nadu Legislative Assembly during the period 1991 to 1996 and served as the Minister for Labour Welfare in Government of Tamil Nadu during 1993-1996. During this period, Paramasivam, along with his wife had acquired properties beyond their known pecuniary resources during the check period between 1991 to 1996.

Justice G Jayachandran observed that the Minister, being a public servant had acquired wealth 400% above his known sources of income and his wife had lend her name in acquiring properties through undeclared sources thus committing the offences under the Prevention of Corruption Act.

Doctors Conducting 'Two Finger Test' On Rape Survivors Will Be Guilty Of Misconduct: Madras High Court

Case Title: State v XXX

Citation: 2023 LiveLaw (Mad) 362

The Madras High Court recently reiterated that medical practitioners who continued to conduct Two-Finger Test banned by the Supreme Court will be guilty of misconduct.

The bench of Justice SS Sunder and Justice Sunder Mohan made the observation while coming across a Medico-Legal Examination report in a rape case where a Two Finger Test had been conducted. The court expressed regret that even after directions from the Supreme Court and the High Court, doctors were still continuing to conduct the test.

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2 Years Limitation To File GST Refund Application Is Directory & Not Mandatory: Madras High Court

Case Title: M/s. Lenovo (India) Pvt. Ltd. Versus JCIT

Citation: 2023 LiveLaw (Mad) 363

The Madras High Court has held that the 2-year limitation to file a GST refund application is a directory and not mandatory.

The bench of Justice Krishnan Ramasamy has observed that the terms used in Section 54(1) of the CGST Act ''may make application before two years from the relevant date in such form and manner as may be prescribed'', which means that the assessee may make application within two years, and it is not mandatory that the application has to be made within two years, and in appropriate cases, refund applications can be made even beyond two years. The time limit fixed under Section 54(1) is directory-like in nature and is not mandatory. Therefore, even if the application is filed beyond the period of two years, the legitimate claim of refund by the assessee cannot be denied in appropriate cases.

Section 245C(5) Of Income Tax Act Is Read Down By Removing Retrospective Last Date Of 1st Feb 21 As 31st March 21: Madras High Court

Case Title: M/s. Jain Metal Rolling Mills Versus Union of India

Citation: 2023 LiveLaw (Mad) 364

The Madras High Court has held that Section 245C(5) of the Income Tax Act, 1961 (as amended by the Finance Act, 2021) is read down by removing the retrospective last date of the 1st February 2021, as the 31st March 2021.

The bench of Chief Justice Sanjay V. Gangapurwala and Justice D. Bharatha Chakravarthy has observed that the Finance Act, 2021, was retrospective in nature. Those who have had a right to approach the Settlement Commission (ITSC) i.e., those who had a case pending against them, would have missed the bus by not actually filing the application before the ITSC as it was retrospectively made inoperative. Only for the action of filing the application, the circular extends the date by 30.09.2021, even though, as per the Income Tax Act, it was only 01.02.2021. When paragraph No. 4 categorically states that only those assessees who are eligible to file an application for settlement as of January 31, 2021, it cannot be said that it introduces an additional clause of eligibility that is not found in the statute. On the other hand, if only clause 4(i) is not there, it would render violence to the Finance Act, 2021.

Tax Payable After Credit Of Prepaid Taxes Is Less Than Rs.3,000, Prosecution Not Sustainable; Madras High Court

Case Title: Manav Menon Versus DCIT

Citation: 2023 LiveLaw (Mad) 365

The Madras High Court has held that prosecution under Section 276CC of the Income Tax Act is not sustainable as the tax payable after crediting prepaid taxes was less than the prescribed sum of Rs. 3,000.

The bench of Justice G.K. Ilanthiraiyan has observed that proviso (ii)(b) to Section 276CC takes care of genuine assessees who either file the returns belatedly but within the end of the assessment year or those who have paid substantial amounts of their tax dues by prepaid taxes from the rigour of the prosecution under Section 276CC.

OTHER DEVELOPMENTS

Sanatana Dharma Row| Madras High Court Reserves Orders On Pleas Questioning Continuation Of Ministers In Public Office

The Madras High Court on Thursday winded up hearings on the quo warranto petitions seeking to show under what authority Sports Minister Udayanidhi Stalin, HRCE Minister Sekar Babu, and MP A. Raja are continuing to hold public office in light of their recent remarks on 'Sanatana Dharma'.

Justice Anita Sumanth directed the counsels to submit the written submissions within a week and reserved orders.

On Friday, Senior Advocate P Wilson, appearing for Udayanidhi Stalin argued that his statements on Sanatana Dharma had been accepted by the people of Tamil Nadu, who were majorly Hindu. He argued that the people of the State had elected the DMK Government who stood by the ideologies.

Tamil Nadu Govt Moves High Court Against ED Summons To District Collectors In Sand Mining Money Laundering Case

The State of Tamil Nadu has moved the Madras High Court challenging the summons issued by the Enforcement Directorate to District Collectors in Tamil Nadu in connection with the sand mining money laundering case.

Though Advocate Genral R Shunmughasumdaram mentioned the matter before the bench of Justice SS Sundar and Justice Sunder Mohan, the bench said it’ll take up the matter on Monday.

The State has sought for a stay on the summons and stay of proceedings under the ECIR. The State has also sought for quashing the summons and to declare that ED’s power with respect to enquiring offences within the territorial limits of a State without the consent of the concerned State is violative of the basic structure of federalism and separation of powers.