Bombay High Court Weekly Round-Up: January 16 To January 22, 2023

Principal Commissioner of Income Tax v. Maharashtra State Warehousing Corporation 2023 LiveLaw (Bom) 28

Clear Media (India) Private Limited v. Deputy Commissioner of Income-tax 2023 LiveLaw (Bom) 29

Thomas Cook (India) Limited v. Red Apple Chandrarat Travel 2023 LiveLaw (Bom) 30

Sandesh Jedhe v. Union of India 2023 LiveLaw (Bom) 31

Sunita Kumari and Ors. v. State of Maharashtra and Anr. 2023 LiveLaw (Bom) 32

TLG India Pvt Ltd v. Rebel Foods Pvt. Ltd. 2023 LiveLaw (Bom) 33

Footcandles Film Pvt Ltd. & Anr. v. Income Tax Officer – TDS & Ors. 2023 LiveLaw (Bom) 34

Prakash Jankilal Jaju v. State of Maharashtra and Anr. 2023 LiveLaw (Bom) 35

Prashant Trivedi v. Union of India and Ors. 2023 LiveLaw (Bom) 36

Roppen Transportation Services Pvt. Ltd. and Anr. v. State of Maharashtra 2023 LiveLaw (Bom) 37

Nijal Navin Shah v. State of Maharashtra and Anr. 2023 LiveLaw (Bom) 38

Venugopal Nandllal Dhoot v. Central Bureau of Investigation and Anr. 2023 LiveLaw (Bom) 39

Sunita w/o Kalyan Kute v. State of Maharashtra and Ors. 2023 LiveLaw (Bom) 40

Ghanshyam Upadhyay (Intervener) in Venugopal Nandlal Dhoot v. Central Bureau of Investigation and Anr. 2023 LiveLaw (Bom) 41

Hungama Digital Media Entertainment Pvt. Ltd. v. RBEP Entertainment Private Limited & Ors. 2023 LiveLaw (Bom) 42

Reports/Judgments

Assessee Not Entitled for Deduction without A Certificate Declaring The Warehouse as Part Of The Port: Bombay High Court

Case Title: Principal Commissioner of Income Tax v. Maharashtra State Warehousing Corporation

Citation: 2023 LiveLaw (Bom) 28

The Bombay High Court held that the assessee cannot claim the deduction under Section 80IA(4) of the Income Tax Act in the absence of a certificate declaring the warehouse to be part of the port.

The division bench of Justice Dhiraj Singh Thakur and Justice Kamal Khata observed that the Jawaharlal Nehru Port Trust (JNPT) has declined to issue a certificate that the warehousing of the assessee is part of the port.

The ITAT held that the assessee has fulfilled all the conditions laid down for the deduction claimed under section 80IA(4).

Section 80IA allows a deduction of 100% of profits obtained from businesses for a period of 10 consecutive years out of 15 years from the date of its commencement.

The court, while dismissing the appeal, held that a similar claim was also denied to the assessee for the year 2009–10 in the absence of the certificate.

Nothing New Happened Between The Date Of Reassessment Order And The Date Of Forming The Opinion By AO: Bombay High Court Quashes Reassessment Order

Case Title: Clear Media (India) Private Limited v. Deputy Commissioner of Income-tax

Citation: 2023 LiveLaw (Bom) 29

The Bombay High Court quashed the Reassessment Order and held that between the date of the order of assessment sought to be reopened and the date of the formation of an opinion by the Assessing Officer, nothing new has happened. There was no new information received, nor was there any mention of new material on file.

The division bench of Justice Dhiraj Singh Thakur and Justice Valmiki SA Menezes observed that the Assessing Officer has simply accorded a fresh consideration and come to the conclusion that the assessee ought to have claimed the benefit of deduction under section 35ABB, which would have resulted in reducing the allowance under section 32. In the absence of any tangible material, there was nothing but a case of change of opinion, which thus does not satisfy the jurisdictional foundation under Section 147.

‘Limitation’ Doesn’t Involve Any “Basic Notions Of Morality Or Justice”, For Setting Aside Award: Bombay High Court

Case Title: Thomas Cook (India) Limited v. Red Apple Chandrarat Travel

Citation: 2023 LiveLaw (Bom) 30

The Bombay High Court ruled that the ground of limitation, being a mixed question of law and fact, can never be a ground which would involve any “basic notions of morality or justice” for setting aside an arbitral award under Section 34 of the Arbitration and Conciliation Act, 1996 (A&C Act).

The Court reckoned that the arbitral tribunal had concluded that the claims raised by the claimant were not barred by limitation, by recording a finding of fact that there was a running account between the parties. The bench of Justice G. S. Kulkarni ruled that the said finding of fact cannot be re-examined by appreciating evidence under Section 34 of the A&C Act.

The Court further observed that it was not a case where an ex-facie and a brazenly time barred claim or a deadwood was awarded by the arbitral tribunal, of a nature which would shock the conscience of the Court.

No Public Interest: Bombay High Court Dismisses PIL Seeking Culpable Homicide Charge Against Anahita Pandole In Cyrus Mistry Accident Case

Case Title: Sandesh Jedhe v. Union of India

Citation: 2023 LiveLaw (Bom) 31

Bombay High Court dismissed with cost, a PIL seeking culpable homicide charges against Dr. Anahita Pandole for allegedly causing the death of businessman Cyrus Mistry and his friend Jehangir in a vehicular accident in September 2022.

A division bench of acting Chief Justice S. V. Gangapurwala and Justice Sandeep V. Marne observed that there is no public interest in the PIL. Further, it is not substantiated with evidence.

“When a petition is to be filed in court, facts have to be substantiated with evidence and more particularly when a PIL is filed. Petitioner is not in know of the facts and isn't connected in the incident. In the present scenario, petition ought not be filed and not with such loose statements.…Charges are to be framed by the magistrate...We do not find public interest present in the PIL”, the court stated.

Section 498A IPC | Mental Cruelty Possible Even If In-Laws Reside Separately: Bombay High Court

Case Title: Sunita Kumari and Ors. v. State of Maharashtra and Anr.

Citation: 2023 LiveLaw (Bom) 32

The Bombay High Court recently observed that mental cruelty is an abstract concept and can be committed even if in-laws reside separately.

"The mental cruelty is an abstract concept and it is a matter of experience for a person who is subjected to cruelty … Sometimes, the taunts might be seen to be innocuous by one person, while they may not be necessarily so perceived by another person … Such being the nature of mental cruelty, it is not necessary that it must take place in the physical presence of persons and that it can be handed out even from a distant place," the court observed.

A division bench of Justice Sunil B. Shukre and Justice M. W. Chandwani of Nagpur dismissed with costs an application filed by relatives of a man seeking quashing of criminal proceedings against them instituted by his wife.

The court said that there is a prima facie case from the allegations despite the applicants residing away from the complainant. Cruelty is not only physical but can also be mental, the court observed. FIR forms a foundation of a criminal case. No strong edifice of a criminal case can be built unless its foundation is sound if the foundation is strong, it would give rise to a strong criminal case which is the case in the present matter, the court said.

Issue Whether Main Claim Is Time Barred, Is An Issue On Merits; Must Be Decided In Arbitral Proceedings: Bombay High Court

Case Title: TLG India Pvt Ltd v. Rebel Foods Pvt. Ltd.

Citation: 2023 LiveLaw (Bom) 33

The Bombay High Court ruled that while the limitation period for filing an application under Section 11 of the Arbitration and Conciliation Act, 1996 (A&C Act), seeking appointment of arbitrator, is to be examined by the Court, the limitation aspect of the substantive claims is to be looked into only by the arbitral tribunal and not by the Court. The bench of Justice Bharati Dangre added that the only exception to this is, if the claim being referred to arbitration is hopelessly barred by limitation, which is apparent from the admitted facts and documents.

The Court further remarked that, “Seeking adjudication of claims after a long gap of time definitely causes more injustice than justice, particularly when certain rights are vested in the parties, and it would become greatly impossible to dislodge these rights”.

CBDT Circulars Can’t Prescribe Limitation To Decide Application For Compounding Of Offence: Bombay High Court

Case Title: Footcandles Film Pvt Ltd. & Anr. v. Income Tax Officer – TDS & Ors.

Citation: 2023 LiveLaw (Bom) 34

The Bombay High Court ruled that orders, instructions or directions issued by the CBDT under Section 119 or under the Explanation to Section 279 (6) of the Income Tax Act, 1961, cannot put fetters on the power of income tax authorities under Section 279(2) to consider an application for compounding of offence, by prescribing a period of limitation.

The bench of Justices Dhiraj Singh Thakur and Valmiki SA Menezes took note that Section 279 (2) of the Income Tax Act, which provides for compounding of certain offences, either before or after the institution of proceedings, does not provide any rule of limitation.

Thus, the Court held that the CBDT “Guidelines for Compounding of Offences under Direct Tax Laws, 2019”, dated 14.06.2019, which create a limitation on the time within which an application under Section 279 (2) is required to be filed, is of no consequence. The said Guidelines do not take away the jurisdiction of the income tax authorities to consider an application for compounding of offence at any time during the pendency of the proceedings, the Court said.

Bombay High Court Quashes FIR Filed By Priyanka Chopra Against Former Manager Over Objectionable Messages After He Tenders 'Unconditional Apology'

Case Title: Prakash Jankilal Jaju v. State of Maharashtra and Anr.

Citation: 2023 LiveLaw (Bom) 35

The Bombay High Court quashed a 14-year-old case filed by actor Priyanka Chopra against her former manager Prakash Jaju with the actor’s consent following an amicable settlement between the parties.

According to the settlement, Jaju tendered an unconditional apology with “folded hands”, adding that he had no intention to hurt or intimidate Chopra, who is now settled in the USA.

The case pertains to an FIR of 2008 wherein Jaju was booked under sections 506(II) (criminal intimidation), 509 (words or gesture intended to insult the to a woman’s modesty) of the IPC and section 67 of the IT Act, for sending certain objectionable messages to Chopra and certain words spoken during a telephonic conversation.

A division bench of Justice Revati Mohite Dere and Justice Prakash Jadhav heard the matter in chambers wherein Chopra appeared through video conferencing and said she has no objection if the FIR is quashed.

Bombay High Court Refuses To Entertain PIL Seeking Separate Legal Aid Panel For SEBI

Case Title: Prashant Trivedi v. Union of India and Ors.

Citation: 2023 LiveLaw (Bom) 36

The Bombay High Court recently refused to entertain a PIL seeking a separate panel of lawyers for matters in Securities and Exchange Board of India, observing that the case has been straightway filed without approaching the Maharashtra State Legal Services Authority or the responsible Authority.

A division bench of acting Chief Justice S. V. Gangapurwala and Justice Sandeep V. Marne said, “The PIL cannot be entertained unless the Authorities concerned have denied to entertain the cause of the Petitioner. On record we do not find that a particular person had approached Respondent No.2 for legal aid and was denied. In absence of specific pleadings in that regard, it would not be appropriate to pass orders in the present PIL”.

SEBI earlier filed an affidavit stating that the IPEF Regulations and Guidelines in respect of legal aid for legal proceedings are in existence since 2009. Further, it stated that legal aid is provided whenever the need arises.

Bombay High Court Upholds/Rejects Pune RTO's Refusal To Grant License To Bike Taxi Aggregator Rapido

Case Title: Roppen Transportation Services Pvt. Ltd. and Anr. v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 37

The Bombay High Court today rejected a petition by Roppen Transportation Services Pvt Ltd (Rapido), a bike-taxi aggregator, against Pune RTO's refusal to grant it a license for plying two and three-wheeler taxis.

A division bench of Justice GS Patel and Justice SG Dige pointed out that there are discrepancies in Rapido's stand as on one hand, it is saying license cannot be rejected on the ground of the absence of State policy on two-wheelers while on the other hand, it cites the absence for a state policy for non-compliance with the Motor Vehicle Aggregator's Guidelines 2020 issued by the Centre.

The court added that the Centre's Motor Vehicle Aggregator Guidelines, 2020 guidelines do not restrain the State Government from making its guidelines. It added that an aggregator cannot assume permission to ply.

Mere Pendency Of Criminal Case Not Sufficient to Refuse Passport Renewal: Bombay High Court

Case Title: Nijal Navin Shah v. State of Maharashtra and Anr.

Citation: 2023 LiveLaw (Bom) 38

The Bombay High Court directed the passport authorities to not reject a man's passport renewal application merely because of pendency of criminal proceedings against him, observing that mere pendency of proceedings is not sufficient to deny him the right to renew passport.

“In the facts of the case merely because the offence under Sections 406, 420, 120(b) read with 34 of IPC is pending against the applicant, the said fact by itself is not sufficient to deny the right of the applicant for renewal of the passport," the court said.

Justice Amit Borkar set aside the magistrate’s order refusing to grant permission for renewal of license of a man booked for offences of criminal breach of trust, cheating, and criminal conspiracy.

Can't Arrest Accused On Whims And Fancies, CBI's Grounds Of Arrest 'Without Any Substance': Bombay High Court In Venugopal Dhoot's Bail Order

Case Title: Venugopal Nandllal Dhoot v. Central Bureau of Investigation and Anr.

Citation: 2023 LiveLaw (Bom) 39

In its detailed order directing the interim release of former Videocon Group Chairman Venugopal Dhoot, the Bombay High Court stressed on the need to mention concrete reasons for arresting an individual and on the court’s duty to record its satisfaction while remanding a person to the police custody.

A division bench of Justice Revati Mohite Dere and Justice Prithviraj Chavan cited the non-compliance of Section 41(1)(b)(ii) of the CrPC, while granting relief to Dhoot.

The arrest memo is sans particulars of how the statements are inconsistent or how Dhoot failed to cooperate as he had already attended CBI’s office but couldn’t be confronted due to absence of other accused, it said. Regarding the remand orders dated 26, 28 and 29 December, 2022, the court noted that the presiding officer simply observed that he has perused the case diary and found that the offence is of serious nature. The bench said it is clear that the court hadn’t made an effort to scrutinize the remand application or the case diary.

Injuries Need Not Occur Inside Police Station For Custodial Death: Bombay High Court

Case Title: Sunita w/o Kalyan Kute v. State of Maharashtra and Ors.

Citation: 2023 LiveLaw (Bom) 40

The Bombay High Court held that for a death to be a custodial death, it doesn't matter whether the injuries occurred inside the police station or at an outpost as long as the injuries were inflicted when the deceased was in any manner in the custody of the police.

A division bench of Justice Vibha Kankanwadi and Justice Abhay S. Waghwase of Aurangabad further said, “State is the protector of the life of its citizens if it’s employee undertakes torturous act under the guise of power, then it has to compensate such citizen or legal representative of such citizen”

The court referred to D.K. Basu v. State of West Bengal and reiterated the Apex Court’s observation that custodial death is one of the worst crimes in a civilized society.

'Stranger Not Permitted': Bombay High Court Imposes ₹25K Cost On Lawyer Who Wanted To 'Enlighten' It On ‘Correct Position Of Law’

Case Title: Ghanshyam Upadhyay (Intervener) in Venugopal Nandlal Dhoot v. Central Bureau of Investigation and Anr.

Citation: 2023 LiveLaw (Bom) 41

Bombay High Court's division bench of Justices Revati Mohite Dere and Prithviraj Chavan rejected the intervention application of Advocate Ghanshyam Upadhyay in a criminal case and imposed exemplary costs of Rs. 25,000 on him.

The court observed that only a victim was allowed to intervene in a criminal trial. A stranger cannot be permitted to intervene or interfere with the criminal proceedings, the court observed.

The court added that an attempt was made to browbeat the court. 

Upadhyay had filed the application to oppose Videocon Group Chairman Venugopal Dhoot’s plea for bail alleging illegal arrest by the CBI.

Arbitral Reference Can’t Be Made Mechanically Under Section 8, If Some Parties To Suit Are Non-Signatories To Arbitration Agreement: Bombay High Court

Case Title: Hungama Digital Media Entertainment Pvt. Ltd. v. RBEP Entertainment Private Limited & Ors.

Citation: 2023 LiveLaw (Bom) 42

The Bombay High Court ruled that if the plaintiff seeks relief in a suit against parties, some of whom are not signatories to the arbitration agreement, the matter cannot be mechanically referred to arbitration under Section 8 of the Arbitration and Conciliation Act, 1996 (A&C Act).

The bench of Justice Manish Pitale remarked that amendment of Section 8 by the 2015 Amendment Act and the decision of the Apex Court in Vidya Drolia & Ors. v. Durga Trading Corporation (2020), does not indicate that if an arbitration agreement is existing between some of the parties to the suit, all the parties must be forced to participate in arbitral proceedings pursuant to the reference made by the Court under Section 8.

Other Developments

Bombay High Court Asks State Govt To Inform It About Its Policy On Removal Of Obstructions From Footpaths

The Bombay High Court asked the State to inform the court about its policies regarding obstructions on footpaths in Mumbai.

A division bench of Justice GS Patel and Justice SG Dige, in a suo motu petition, expressed concern regarding the lack of space for pedestrians to walk due to structures like police chowkis, bus stops, and shops on the footpaths.

The court also said that the current state of pedestrian walkways may be against the Rights of Persons with Disabilities Act, 2016.

Summoned After Filing RTI On RSS, Man Approaches Bombay High Court

The Bombay High Court's Nagpur bench issued notice to the Maharashtra Government and Nagpur Police in a writ petition filed by a man against whom summons were issued after he filed an RTI query related to the Rashtriya Swayamsevak Sangh (RSS).

A division bench of Justices Rohit B Deo and Y G Khobragade passed the order while hearing the plea filed by one Lalan Kishore Singh (61) – to quash the notice issued to him on December 26, 2021, by the assistant police Inspector (API), Traffic.

He has also sought an interim stay on the effect and implementation of the notice till his petition is decided.

Bombay High Court Restrains Police From Filing Chargesheet Against NCP Leader Anand Paranjpe; Police To Pursue Only One FIR

In a relief for Nationalist Congress Party (NCP) leader Anand Paranjpe, the Maharashtra police informed the Bombay High Court that it will pursue only one and not all 11 FIRs registered against him.

A division bench of Justice Revati Mohite Dere and Justice Prithviraj Chavan also directed the police to continue their investigation but not file charge sheet against Paranjpe till further orders.

The 11 FIRs were registered against the former MP from the Kalyan Constituency after he allegedly raised slogans and posted comments against Chief Minister Eknath Shinde.

The accused were booked with offences punishable under sections 153 (Wantonly giving provocation with intent to cause riot), 501 (Printing or engraving matter known to be defamatory.) and 504 (Intentional insult with intent to provoke breach of peace) of IPC and provisions of Maharashtra Police Act.

Bombay High Court Reserves Order In Plea By Man Arrested For Social Media Posts On Chandrakant Patil

The Bombay High Court reserved for order a plea filed by political worker Sandeep Kudale for quashing an FIR against him for allegedly promoting enmity between different groups through his social media posts.

The division bench of Justice Revati Mohite-Dere and Justice Prithviraj K. Chavan also directed the police not to file charge sheet against Kudale in the meantime.

The FIR, registered at Kothrud Police Station, alleged that Kudale promoted enmity between different groups through his video posted on social media against minister Chandrakant Patil for his comments regarding Dr. BR Ambedkar and Jyotiba Phule.

CCI Seeks Vacation Of Bombay High Court Order Restraining Coercive Action Against Debt Trustee Units Of IDBI, Axis & SBICap For Alleged Cartelization

The Competition Commission of India has moved the Bombay High Court seeking to vacate its earlier order stopping CCI from taking any coercive step against Trustees Association of India and the trusteeship units of IDBI, Axis and SBICap in an alleged cartelization case.

A division bench of Justice G. S. Patel and Justice S. G. Dige placed the CCI’s interim applications for final disposal on February 17, 2023 observing that the disposal of CCI’s interim applications will result in disposal of the main writ petitions as well.

Last year, the trustee units of IDBI, Axis, and SBI along with Trustees Association of India had approached the court in individual writ petitions challenging the CCI’s investigation into them on a complaint by Muthoot Finance Limited. The CCI had formed a prima facie view that there is a form of cartelization between debenture trustees to fix prices or rates of fees to the detriment of the debenture/security issuers. Court stopped the investigation for some time as the SEBI was also investigating identical complaint at the same time.

Life Of Children Precious: Bombay High Court Directs State To Take Stern Action Against Doctors Not Joining Duty In Tribal Regions

The Bombay High Court directed the state government to take stern action against the doctors who do not join posts in tribal areas which have high number of child deaths due to inadequate medical facilities.

The state informed a division bench of acting Chief Justice S. V. Gangapurwala and Justice Sandeep V. Marne that it has issued show-cause notices to 52 specialist doctors for not reporting to their posts of deputation in the Melghat region of the state.

The court was hearing a 2007 PIL related to high number of child deaths due to malnutrition and lack of adequate medical facilities in the tribal areas of the state. The petitions seek specialist doctors, nutrition and health facilities for children and expectant mothers.