Rajasthan High Court Weekly Roundup: July 4 To July 10, 2022

1. When Termination Of Arbitral Proceedings For Non-Appearance Of Parties, Remain Unchallenged, Application Filed Again For Appointment Of Arbitrator Not Maintainable: Rajasthan High Court

Case Title: Vimlesh Bansal v. Ashok Kumar

Citation: 2022 LiveLaw (Raj) 204

Case No.: S.B. Arbitration Application No. 51 of 2022

The Rajasthan High Court has held that a second arbitration application would be non-maintainable when the order of the arbitrator terminating arbitral proceedings under Section 32(2)(c) was not challenged under Section 14(2) of the A&C Act.

The Single Bench of Justice Pankaj Bhandari held that the legal maxim 'Vigilantibus Non-Dormientibus Jura Subveniunt' which means that 'the law assists only those who are vigilant and not those who sleep over their rights' would squarely apply to a situation where the petitioner slept over its right to challenge the order of termination but filed a second application for appointment of arbitrator.

2. Rajasthan High Court Grants Bail To Person Accused Of GST Evasion

Case Title: Kamal Chand Bothra Versus Union Of India

Citation: 2022 LiveLaw (Raj) 205

Case No.: S.B. Criminal Miscellaneous Bail Application No. 8954/2022

The Rajasthan High Court bench of Justice Narendra Singh Dhaddha has granted bail to the person accused of GST evasion of Rs. 8.64 crore.

The petitioner has filed a bail application. The petitioner was charged with the offence punishable under Section 132 (1) of the Central Goods and Services Tax Act, 2017.

The petitioner submitted that he had been falsely implicated in the case. He has been behind bars since May 26, 2002. The offence against the petitioner is compoundable and he had deposited the amount of Rs. 87 lakhs. The maximum punishment is 5 years, and the conclusion of the trial may take a long time.

The department contended that the petitioner had evaded GST of Rs. 8.64 crores. The statements under Section 70 of the GST Act were recorded and are admissible in evidence. The petitioner is a habitual offender, so bail should be dismissed.

The court directed that the petitioner be released on bail provided he furnishes a personal bond in the sum of Rs.50,000 with two sureties of Rs.25,000 each.

3. GST Circular Contra To GST Act, Can't Deny The Claim For ITC refund; Rajasthan High Court

Case Title: Baker Hughes Asia Pacific Limited Vs Union of India

Citation: 2022 LiveLaw (Raj) 206

Case No.: D.B. Civil Writ Petition No. 5714/2021

The Rajasthan High Court has held that the GST circular dated 31.03.2020, repugnant to the parent legislation, cannot be applied to oust the legitimate claim for an accumulated ITC refund.

The division bench of Justice Sandeep Mehta and Justice Vinod Kumar Bharwani has observed that the supplying dealer would be entitled to claim a refund of accumulated unutilised tax credit under Section 54 (3) (ii) of the CGST Act irrespective of the fact that the input and output supplies are the same by ignoring the circular dated 31.03.2020.

4. Asaram Bapu Rape Case: Rajasthan High Court Denies Bail, Rejects Third Application For Suspension Of Sentence

Case Title: Asharam @ Ashumal v. State Of Rajasthan, Through PP

Citation: 2022 LiveLaw (Raj) 207

The Rajasthan High Court has rejected the third application filed by self-styled godman & life convict Asaram Bapu seeking suspension of sentence for rape of a minor. The court further opined that he does not deserve indulgence of bail.

Asaram was convicted and sentenced to life for offences under Sections 370(4), 342, 506, 376(2)(f) and 376D of the Indian Penal Code by a Special POCSO Court at Jodhpur in April 2018.

The court also noted that two previous applications for suspension of sentences filed on behalf of Asaram have been dismissed by the court after arguments had been advanced to some extent albeit by way of withdrawal. It further noted that Asaram continues to be in custody in another trial ongoing at Gujarat, for similar offences.

A division bench of Justice Sandeep Mehta and Justice Vineet Kumar Mathur, observed, "In wake of the discussion made hereinabove; looking to the nature and gravity of the allegations, and considering the fact that the appeal itself is ripe for hearing, we are of the opinion that the appellant does not deserve indulgence of bail. Hence, the instant application for suspension of sentences is rejected as being devoid of merit."

1. Can Municipal Corporation Levy Urban Development Tax & Fire Cess Over Railway Properties? Rajasthan High Court Issues Notice

Case Title: Taleda Sqaure Pvt. Ltd. v. State of Rajasthan

The Rajasthan High Court has issued notice on a plea challenging levy of Urban Development Tax and Fire Cess/Tax by the Ajmer Municipal Corporation, Ajmer over the properties owned by the Ministry of Railways through Rail Land Development Authority.

Justice Pankaj Bhandari and Justice Sameer Jain, observed,

"Issue notice to the respondents, returnable within two weeks. Additionally, extra sets are permitted to be served upon Additional Solicitor General and the concerned Additional Advocate General."

2. Rajgarh Temple Demolition: Rajasthan High Court Grants Arnab Goswami 10 Days To Respond To State's Application For Commencement Of Investigation

Case Title: Arnab Goswami v. State of Rajasthan & Ors.

Republic TV Chief and anchor, Arnab Goswami, who has been booked by the Rajasthan Police for promoting enmity between religious groups through a broadcast regarding alleged temple demolition in Rajgarh, has been granted 10 days' time to respond to an application seeking commencement of investigation.

The Rajasthan High Court asked Goswami to respond to State's application seeking vacation of interim protection granted to him and liberty to commence investigation in the matter.

The court had granted him interim protection in May, restraining the authorities from arresting him.

Yesterday, the Court asked Goswami to respond to State's application by July 19 and extended protection until then.

Essentially, the FIR was registered at Ambamata Police Station, Udaipur on 17.05.2022 against Arnab Goswami along with other persons of Republic Bharat under Sections 153A, 295A, 120B, 499, 501, 504 & 505 of the Indian Penal Code and other relevant sections of Information Technology Act, 200 read with N.S.A. Act.

3. Levy Of GST On Mining Royalty: Rajasthan High Court Grants Interim Protection To Petitioners

Case Title: Shree Basant Bhandar Int Udyog v. Union of India

The Rajasthan High Court has granted stay on recovery of GST on royalty paid by the Petitioners on mining activity.

The order comes in a bunch of writ petitions filed primarily involving the issue of permissibility of raising demand of GST on royalty. The petitioners in these petitions challenged the notifications whereby, royalty paid by them on mining activity is being subjected to GST and/or notices issued for alleged incriminating discrepancies in returns after scrutiny and analogous proceedings.

Earlier, on 21.04.2022, the High Court in the case of Shree Basant Bhandar Int Udyog v. Union of India [2022 LiveLaw (Raj) 146], had restrained the GST department from recovering GST on royalty paid on account of the excavation of sand for brick.

Notably, on 17.12.2021, this court in M/s Shivalik Silica v. Union of India & Ors. [D.B. Civil Writ Petition No.14849/2021] examined the issue of service tax on royalty, and held that this issue is already decided against the assessee in Udaipur Chambers of Commerce & Industry Vs. Union of India [2018 (8) G.S.T.L. 170 (Rajasthan)]. Moreover, the same controversy is under consideration under the 9-judge bench of the Supreme Court in Mineral Area Development Authority etc. v. M/s. Steel Authority of India and Ors., whereby, the Supreme Court has stayed payment of service tax for grant of mining lease/royalty.

4. Rajasthan HC Grants Interim Protection From Arrest To Advocate's Clerk Who Forwarded Provocative WhatsApp Message After Udaipur Killing

Case Title: Vikram Singh v. State Of Rajasthan, Through Principal Secretary & Ors.

The Rajasthan High Court has granted protection from arrest to an Advocate's clerk, who forwarded a WhatsApp message stating that "in Udaipur religious war has started, bravo finish the pigs".

The petitioner has sought for quashing of FIR registered on information of respondent-Nadim Kadir for offences punishable under Sections 295A and 153A of the IPC. He further sought protection of his life and liberty.

The counsel for the petitioner submitted that the aforesaid message was a "forwarded" message and by mistake, it was sent to the group of "advocate's clerk". He added that the petitioner deleted the message, pleaded sorry and asked for pardon. He further submitted that nothing happened due to the aforesaid WhatsApp message and hence, the offences alleged are not made out.

The court directed the state to ensure protection to the life and liberty of the petitioner and his family which, as per the court, cannot be at stake otherwise than due procedure established by law.

Justice Birendra Kumar, observed, "In the meantime, petitioner shall not be arrested in the aforesaid FIR till further order with condition that petitioner shall fully cooperate with the investigation of the case."