Delhi High Court Weekly Round-Up: March 20 To March 26, 2023

Citations 2023 LiveLaw (Del) 253 to 2023 LiveLaw (Del) 268

NOMINAL INDEX

Anil Kumar Versus The Gst Commissioner, Cgst, And Central Excise And Ors. 2023 LiveLaw (Del) 253

Milestone Systems A/S vs. Deputy Commissioner of Income Tax 2023 LiveLaw (Del) 254

SAMRIDHI ENTERPRISES v. FLIPKART INTERNET PRIVATE LIMITED & ORS. 2023 LiveLaw (Del) 255

Asif Mohammad Khan v. State 2023 LiveLaw (Del) 256

X v. State 2023 LiveLaw (Del) 257

ASHISH RASTOGI v. HONBLE HIGH COURT OF DELHI & ANR. 2023 LiveLaw (Del) 258

NHAI vs. M/s AE Tollway Ltd. 2023 LiveLaw (Del) 259

Antique Art Export Pvt Ltd vs. United India Insurance Company Ltd 2023 LiveLaw (Del) 260

Shankar Shyamnaval Mishra v. Union of India & Ors. 2023 LiveLaw (Del) 261

KAPIL SIBAL Vs. ASSISTANT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 06 NEW DELHI 2023 LiveLaw (Del) 262

Municipal Corporation of Delhi vs. Natraj Construction Company 2023 LiveLaw (Del) 263

NAVEEN ARORA v. HIGH COURT OF DELHI AND ANR 2023 LiveLaw (Del) 264

MASTER PRATHAM SINGH LATWAL v. GURU GOBIND SINGH GOVT HOSPITAL AND ORS. 2023 LiveLaw (Del) 265

VIJENDER GUPTA v. LEGISLATIVE ASSEMBLY OF THE NATIONAL CAPITAL TERRITORY OF DELHI THROUGH SECRETARY & ANR. 2023 LiveLaw (Del) 266

M/S Balaji Exim Versus Commissioner, CGST 2023 LiveLaw (Del) 267

STATE BANK OF INDIA v. THE DEPUTY DIRECTOR ,ENFORCEMENT DIRECTORATE 2023 LiveLaw (Del) 268

Fraudulent GSTN Registration: Delhi High Court Directs Petitioner To Reveal Details Of His Friend Who Obtained It

Case Title: Anil Kumar Versus The Gst Commissioner, Cgst, And Central Excise And Ors.

Citation: 2023 LiveLaw (Del) 253

The Delhi High Court has ordered the petitioner to reveal the name of the friend who fraudulently obtained a GSTIN using his credentials at the department.

The division bench of Justice Vibhu Bakhru and Justice Amit Mahajan has directed the petitioner to disclose the identity of his friend, to whom he claims to have handed over his identity documents, to the police authorities as well as to the state GST authorities. The petitioner shall fully cooperate with the concerned authorities and provide them with all the information as required.

ITO Can’t By-Pass SC Decision In ‘Engineering Analysis’ In The Name Of A Review Petition Filed By Dept: Delhi High Court

Case Title: Milestone Systems A/S vs. Deputy Commissioner of Income Tax

Citation: 2023 LiveLaw (Del) 254

The Delhi High Court has set aside the Income Tax Department’s order rejecting the assessee’s application seeking a certificate for “NIL” rate of withholding tax under Section 197 of the Income Tax Act, 1961.

The bench of Justices Rajiv Shakdher and Tara Vitasta Ganju observed that the concerned officer had failed to consider the Apex Court’s decision in Engineering Analysis Centre of Excellence Pvt. Ltd. vs. Commissioner of Income Tax (2021), which was relied upon by the assessee in support of its plea for a “NIL” rate of withholding tax.

Intermediary Not Required To Take Action Against Alleged Infringers On User’s Complaint Under Rule 3 Of IT Rules 2021: Delhi High Court

Title: SAMRIDHI ENTERPRISES v. FLIPKART INTERNET PRIVATE LIMITED & ORS.

Citation: 2023 LiveLaw (Del) 255

The Delhi High Court has observed that an intermediary is not required to take action against alleged infringers on receiving a complaint of the user regarding the infringing acts on the portal under Rule 3 of Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.

“Rule 3(2)(a) only envisages complaints regarding violation of the provision of Rule 3. There is no provision in Rule 3 which requires an intermediary, on receipt of a complaint regarding infringing activities on its port, to take any action against the alleged infringers,” Justice C Hari Shankar said.

Delhi High Court Grants Interim Bail To Former Congress MLA Accused Of Misbehaving With Cop, Asks Him To Offer Services At Education Centre

Title: Asif Mohammad Khan v. State

Citation: 2023 LiveLaw (Del) 256

The Delhi High Court granted interim bail to former Congress MLA Asif Mohammad Khan who is accused of allegedly misbehaving with a police officer, subject to the condition that he will offer services at an adult education centre.

Justice Dinesh Kumar Sharma noted that Khan is an alumni of Jamia Millia Islamia University and directed him to offer the service thrice a week.

The FIR was registered by Delhi police at Shaheen Bagh police station under sections 353 (assault or criminal force to deter public servant from discharge of his duty), 341 (wrongful restraint), 186 (obstructing public servant in discharge of public functions) and 153 A (promoting enmity between different groups) of Indian Penal Code, 1860.

Sexual Assault Victims Entitled To Fair Trial, But Justice System's Responsibility Of Protecting Rights Of Accused Can’t Be Ignored: Delhi High Court

Title: X v. State

Citation: 2023 LiveLaw (Del) 257

The Delhi High Court said that while the complainants in sexual assault cases are entitled to fair trial, the responsibility of criminal justice system towards protecting the rights of the accused persons cannot be ignored.

Justice Swarana Kanta Sharma said that in cases of rape and sexual violence, “conceptualization of definition of sexual consent” is of utmost importance so that the “delicate balance between rape and consensual sex” is fairly arrived at.

“The Courts have to ensure that the right of fair trial to the complainant and rights of the accused of being protected from mala fide trial are taken care of in the Court‘s crucial endeavor to ensure equality before law,” the court said.

Justice Sharma made the observations while upholding a trial court order discharging an accused under Sections 376 (punishment for sexual assault) and 506 (punishment for criminal intimidation) of Indian Penal Code, 1860 in an FIR registered in 2017.

Delhi High Court Grants Relief To PSU Law Officer, Directs Inclusion Of Name In Final List Of DHJS 2022

Title: ASHISH RASTOGI v. HONBLE HIGH COURT OF DELHI & ANR.

Citation: 2023 LiveLaw (Del) 258

The Delhi High Court has directed that the name of a Law Officer working with a public sector undertaking be included in the final list of Delhi Higher Judicial Services, 2022 examination after ruling that he fulfils the mandatory requirement of "continuously practicing as an advocate for not less than seven years.”

A division bench of Justice Najmi Waziri and Justice Vikas Mahajan granted relief to Ashish Rastogi who challenged the final result notice of the examination dated November 10, 2022, insofar as it rejected his candidature for appointment to DHJS.

Arbitral Tribunal Erred In Fixing Fees Separately For Claims And Counter-Claims, Contrary To The Agreement Between Parties: Delhi High Court

Case Title: NHAI vs. M/s AE Tollway Ltd.

Citation: 2023 LiveLaw (Del) 259

The Delhi High Court has ruled that the Apex Court’s decision in Oil and Natural Gas (ONGC) vs Afcons Gunanusa JV (2022), where it had interpreted the Fourth Schedule of the Arbitration and Conciliation Act, 1996 (A&C Act), clearly requires party autonomy to be given paramount importance.

The bench of Justice Prateek Jalan remarked that though in ONGC (2022), it was held that the term “sum in dispute” in the Fourth Schedule shall be considered separately for the claim and counter-claim, the Arbitral Tribunal was in error in fixing the arbitral fees separately for the claims and counter-claims, contrary to the express Agreement between the parties.

High Court Exercises Judicial Function Under S. 11 (6) of Arbitration Act; Principle Of Res Judicata Applicable To S. 11 Petition: Delhi High Court

Case Title: Antique Art Export Pvt Ltd vs. United India Insurance Company Ltd

Citation: 2023 LiveLaw (Del) 260

The Delhi High Court has ruled that the High Court exercises a judicial function under Section 11 (6) of the Arbitration and Conciliation Act, 1996 (A&C Act), and thus while dealing with a petition filed under Section 11 for appointment of Arbitrator, the High Court can determine the issue of maintainability of a petition on any ground, including on territorial jurisdiction or res judicata.

Air India Urination Case: Delhi High Court Directs DGCA To Constitute Appellate Committee To Hear Appeal Against ‘Unruly Passenger’ Tag

Title: Shankar Shyamnaval Mishra v. Union of India & Ors.

Citation: 2023 LiveLaw (Del) 261

The Delhi High Court  directed the Director General of Civil Aviation (DGCA) to constitute an appellate committee to hear the appeal of Shankar Mishra, accused in the Air India urination case, against the airline’s inquiry committee's order designating him as an “unruly passenger” and banning him from flying for four months.

Justice Prathiba M Singh permitted Mishra to file the appeal before the appellate committee within two we

Delhi High Court Restrains Income Tax Dept From Acting On Show Cause Notice Issued To Kapil Sibal, Says Deal With His Objections First

Title: KAPIL SIBAL Vs. ASSISTANT COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 06 NEW DELHI

Citation: 2023 LiveLaw (Del) 262

The Delhi High Court restrained Income Tax authorities from acting on the show cause notice issued to Rajya Sabha MP and senior lawyer Kapil Sibal on March 11 in relation to assessment proceedings pending against him.

"Having heard the leaned counsels of the parties, we are of the view that since the impugned notice has been challenged on jurisdiction as well as on the breach of principles of natural justice, it would require some amount of deliberation," said the division bench of Justice Rajiv Shakdher and Justice Tara Vitasta Ganju.

Issuing notice on Sibal's petitions, the court asked the IT authorities to file a counter affidavit. "In the meanwhile, the concerned officer will stay his hands vis-à-vis the show cause notice dated 11.03.2023," said the court.

Party Can’t Restrict Limitation Period For Invoking Arbitration Contrary To Limitation Act : Delhi High Court

Case Title: Municipal Corporation of Delhi vs. Natraj Construction Company

Citation: 2023 LiveLaw (Del) 263

The Delhi High Court has ruled that, in view of Section 28 of the Indian Contract Act, 1872, a party cannot be permitted to restrict the period of limitation for invoking arbitration, in contravention to the limitation period provided by law. The Court observed that a lesser period of limitation provided under the Contract between the parties would be hit by Section 28.

While dealing with an appeal filed under Section 37 of the Arbitration and Conciliation Act, 1996 (A&C Act), the Court dismissed the contention of the appellant/award debtor that the claims raised by the claimant were time-barred.

'Sponsored' Foreign Travel: Delhi High Court Upholds Judicial Officer's Dismissal For 'Accepting Favour' From 'Stranger', says Judge Always Open To Be Judged

Title: NAVEEN ARORA v. HIGH COURT OF DELHI AND ANR

Citation: 2023 LiveLaw (Del) 264

“A Judge is a Judge who is always open to be judged,” the Delhi High Court said on Thursday while upholding a judicial officer's dismissal from service for allegedly accepting a "favour" from a "stranger".

A division bench of Justice Manmohan and Justice Saurabh Banerjee made the observation while refusing to reduce a major penalty of dismissal of service imposed on the judicial officer.

“The post of a Judicial Officer is a coveted one with responsibilities attached to it. A Judicial Officer is expected to be unceremonious and not take things in an easy manner. A Judicial Officer is expected to be more prudent. At the end of the day 'A Judge is a Judge who is always open to be judged',” the court said.

High Court Directs Delhi Govt To Pay ₹3 Lakh To Minor For Loss Of Vision After Premature Birth At Public Hospital

Title: MASTER PRATHAM SINGH LATWAL v. GURU GOBIND SINGH GOVT HOSPITAL AND ORS.

Citation: 2023 LiveLaw (Del) 265

The Delhi High Court has directed the government to release a sum of Rs. three lakh ex-gratia payment to a two-year-old who lost his vision after premature birth at Guru Gobind Singh Government Hospital.

"This Court observes that the newly born child has turned blind due to various unfortunate circumstances," said the court.

The minor was born on June 28, 2020, as a premature child in the 29th week of gestation. However, he got completely blind as the Retinopathy of prematurity (ROP) screening which was to be conducted within four weeks of his birth was not conducted in time, his family said.

High Court Permits BJP MLA Vijender Gupta To Attend Delhi Assembly On Monday, Directs Him To Maintain Dignity Of House

Title: VIJENDER GUPTA v. LEGISLATIVE ASSEMBLY OF THE NATIONAL CAPITAL TERRITORY OF DELHI THROUGH SECRETARY & ANR.

Citation: 2023 LiveLaw (Del) 266

The Delhi High Court permitted BJP MLA Vijender Gupta to attend the Delhi Legislative Assembly on Monday, the last day of the budget session till remainder of the session and directed him to maintain the dignity of the House.

Justice Prathiba M Singh disposed of Gupta’s plea challenging the motion passed by Assembly suspending him from attending the sittings of the House for one year till the next Budget Session.

His suspension came into effect on March 21.

Allegations Of Availment Of Fake Credit Cannot Be A Ground For Rejecting The Refund Applications Unless It Is Established: Delhi High Court

Case Title: M/S Balaji Exim Versus Commissioner, CGST

Citation: 2023 LiveLaw (Del) 267

The Delhi High Court has held that allegations of availing of fake credit cannot be a ground for rejecting the refund applications unless it is established that the petitioner has not received the goods or paid for them.

The division bench of Justice Vibhu Bakhru and Justice Amit Mahajan has observed that the petitioner would be entitled to the refund of the ITC on goods that have been exported by it. They directed that the respondents process the petitioner’s applications for refund of the ITC including cess.

Delhi High Court Cautions PMLA Adjudicating Authority About Passing ‘Templated Orders’

Title: STATE BANK OF INDIA v. THE DEPUTY DIRECTOR ,ENFORCEMENT DIRECTORATE

Citation: 2023 LiveLaw (Del) 268

The Delhi High Court has cautioned the Adjudicating Authority under Prevention of Money Laundering Act, 2002 (PMLA) about passing “templated orders” and said that using “identical templated paragraphs” must be avoided.

“Use of identical templated paragraphs could reflect as non-application of mind by the Authority concerned and hence ought to be avoided. The Adjudicating Authority is cautioned about passing such templated orders,” Justice Prathiba M Singh said.

The court was hearing a plea moved by State Bank of India challenging an attachment order passed by Adjudicating Authority (PMLA) dated December 22, 2021.