Allahabad High Court Weekly Round-Up: October 9 - October 15, 2023
Sparsh Upadhyay
17 Oct 2023 10:03 PM IST
NOMINAL INDEX Tannu Kumari and 10 Others vs. Union Of India And 2 Others 2023 LiveLaw (AB) 364 Pooja Sharma vs. State Of U.P. And 2 Others 2023 LiveLaw (AB) 365 UP Congress Committee vs. State of U.P. and Others 2023 LiveLaw (AB) 366 Divine Faith Fellowship Church And Another vs. State Of U.P. And 5 Others 2023 LiveLaw (AB) 367 M/S World Solution vs. State Of U.P. And 2...
NOMINAL INDEX
Tannu Kumari and 10 Others vs. Union Of India And 2 Others 2023 LiveLaw (AB) 364
Pooja Sharma vs. State Of U.P. And 2 Others 2023 LiveLaw (AB) 365
UP Congress Committee vs. State of U.P. and Others 2023 LiveLaw (AB) 366
Divine Faith Fellowship Church And Another vs. State Of U.P. And 5 Others 2023 LiveLaw (AB) 367
M/S World Solution vs. State Of U.P. And 2 Others 2023 LiveLaw (AB) 368
Kaliya vs. State Of U.P. Thru. Prin.Secy. Deptt. Of Home Lko And 3 Others 2023 LiveLaw (AB) 369
The Commissioner vs. Adani Wilmar 2023 LiveLaw (AB) 370
M/S Amrit Steels v. Commissioner Commercial Tax 2023 LiveLaw (AB) 371
Jitendra Giri vs. State of UP 2023 LiveLaw (AB) 372
M/S Purnagiri Rice Mill, Shahjahanpur Thru. Authorized Representative Shri Rakesh Kumar Gupta vs. Union Of India Thru. Ministry Of Finance Deptt. Of Revenue, New Delhi And 2 Others 2023 LiveLaw (AB) 373
M/S Shyam Sel And Power Limited vs. State Of U.P. And 2 Others 2023 LiveLaw (AB) 374
Mehek Maheshwari vs. Union Of India And 4 Others 2023 LiveLaw (AB) 375
Vivek Saran Agarwal vs. Union Of India And 3 Others 2023 LiveLaw (AB) 376
M/S Jai Hanuman Construction Jagdish Saran vs. State Of U.P. And 9 Others 2023 LiveLaw (AB) 377
M/S Om Prakash Kuldeep Kumar v. Additional Commissioner Grade-2 And Another 2023 LiveLaw (AB) 378
Rajendra Kumar And Another vs. State Of U.P. And 4 Others 2023 LiveLaw (AB) 379
M/S Namo Narayan Singh vs. State Of U.P. And 2 Others 2023 LiveLaw (AB) 380
M/S Ennkay Timbers And Another vs. State Of U.P. And 2 Others 2023 LiveLaw (AB) 381
Deepak Dewvedi And 4 Others vs. State Of U.P. Thru. Prin. Secy (Basic Education) Deptt. Of Basic Edu. Lucknow And 4 Others 2023 LiveLaw (AB) 382
Smt. Manorama Singh vs. State Of U.P. And 3 Others 2023 LiveLaw (AB) 383
U.P. State Industrial Development Authority,Unnao Thru. Its Senior Project Officer/Regional Manager vs. Gurmeet Singh 2023 LiveLaw (AB) 384
ORDERS/JUDGMENTS
Case title - Tannu Kumari and 10 Others vs. Union Of India And 2 Others
Citation: 2023 LiveLaw (AB) 364
The Allahabad High Court observed that certain candidates with lower marks had been granted back door entries in private medical colleges in the State of Uttar Pradesh while petitioners who belonged to different states had been refused an opportunity to participate in counselling based on their lack of domicile.
Eleven petitioners, non-residents/ non-domicile of State of UP, appeared in the National Eligibility and Entrance Test conducted by National Testing Agency in Dental Colleges & passed with marks ranging between 108-132. Petitioners belong to OBC/ SC category for which cut-off had been declared as 107 whereas the cut-off for general category is 138.
Invoking Doctrine Of ‘Parens Patriae’, Allahabad HC Appoints Wife As Guardian Of Husband In Comatose
Case Title: Pooja Sharma vs. State Of U.P. And 2 Others
Case Citation: 2023 LiveLaw (AB) 365
The Allahabad High Court has invoked the doctrine of ‘Parens Patriae’ to appoint petitioner-wife as the guardian of her husband who is in permanent vegetative state, to meet the ends of justice.
A bench comprising of Justices Mahesh Chandra Tripathi and Prashant Kumar held
“Mental incompetency is listed as an exceptional circumstance which would justify the exercise of this jurisdiction. If the Court is satisfied that the person concerned is in a vegetative state, then surely “parens patriae” jurisdiction can be exercised.”
Case title - UP Congress Committee vs. State of U.P. and Others [WRIT - C No. - 3740 of 1998]
Case Citation: 2023 LiveLaw (AB) 366
The Allahabad High Court directed the Uttar Pradesh Congress Committee (UPCC) to clear Rs 2.66 crores (266 lakhs) due to the Uttar Pradesh State Road Transport Corporation (UPSRTC) for using its buses and taxies for its political purposes between 1981-89, the period during which the Congress party was in power in the State.
While passing the order, a bench of Justice Vivek Chaudhary and Justice Manish Kumar noted that the UPCC exercised its dominant position and utilized the public property for its political purposes, however, it did not pay the dues even when the bills were duly raised by the UPSRTC.
Case Title: Divine Faith Fellowship Church And Another vs. State Of U.P. And 5 Others 2023 LiveLaw (AB) 367
Case Citation: 2023 LiveLaw (AB) 367
The Allahabad High Court has strongly deprecated the adjudication of civil disputes by the National Commission for Minorities and its State counterpart as it is beyond the scope of the powers given to them under the National Commission for Minorities Act, 1992 and the U.P. Commission for Minorities Act, 1994.
A bench comprising Justices Mahesh Chandra Tripathi and Prashant Kumar held,
“We strongly deprecate such practice adopted by the National Commission for Minorities to adjudicate disputes and proceed to adjudicate matters, as if they are Courts and also to summon the officers without any rhyme or reason in continuance of such adjudication or to pressurize officers to pass any order. We further request the Members or Chairpersons of the Commission for Minorities of the State of U.P. and also the National Commission for Minorities, not to function or adjudicate any dispute as a Court for which they are not empowered under the Act to do so.”
Case Title: M/S World Solution vs. State Of U.P. And 2 Others [WRIT TAX No. - 931 of 2023]
Case Citation: 2023 LiveLaw (AB) 368
While setting aside order cancelling GST registration of assesee on grounds that it was unreasoned, the Allahabad High Court has held that ‘reasons are heart and soul’ of any order. In absence of reasons assigned, the order is vitiated in law.
Petitioner’s GST registration was cancelled by the Assistant Commissioner, Sector 25, State Tax, Kanpur Nagar. Appeal preferred by the petitioner was rejected on grounds of delay. Counsel for petitioner argued that the cancellation order was passed in violation of Section 29 (Cancellation or Suspension of Registration) of the UP Goods and Service Tax Act, 2017.
Case title - Kaliya vs. State Of U.P. Thru. Prin.Secy. Deptt. Of Home Lko And 3 Others [CRIMINAL MISC. WRIT PETITION No. - 6826 of 2023]
Case Citation: 2023 LiveLaw (AB) 369
The Allahabad High Court has observed that a vehicle used for the transportation of cows and their progeny within the state (and not outside the state) is not any offence under the UP Prevention of Cow Slaughter Act, 1955 and hence, such a vehicle cannot be seized or confiscated by the authorities.
The bench of Justice Karunesh Singh Pawar further held that when cows and their progenies are being transported within the State of UP, no show-cause notice under section 5-A of the Act could be issued by the District Magistrate.
Bakery Shortening And Vanaspati Are As Same: Allahabad High Court Applies Common Parlance Test
Case Title: The Commissioner vs. Adani Wilmar [Sales/Trade Tax Revision No. - 100 Of 2023]
Case Citation: 2023 LiveLaw (AB) 370
The Allahabad High Court has applied the Common Parlance Test and held that bakery shortening and vanaspati are the same.
The bench of Justice Piyush Agrawal has observed that on the test of 'Common Parlance' Notification No. 37/2003 dated April 30, 2003, issued by the Government of India is very important and relevant, as in the Notification the Union Government has very categorically and specifically mentioned bakery shortening, or partially or wholly hydrogenated vegetable fats and oils refracting, commonly known as "Vanaspati". The Union Government has used the word commonly known, which means known and understood in common parlance, and therefore, the Government of India is treating both the goods in question in common parlance as one and the same commodity in the eyes of law.
Case Title: M/S Amrit Steels v. Commissioner Commercial Tax [SALES/TRADE TAX REVISION No. - 377 of 2022]
Case Citation: 2023 LiveLaw (AB) 371
The Allahabad High Court has held that the burden to prove that concession has been rightly claimed is upon the assesee in the original proceedings. However, the Court held that in reassessment proceedings, burden shifts upon the Department to prove that assesee had wrongly claimed concession.
Distinguishing the decision of Allahabad High Court in Star Paper Mills Limited Vs. Commissioner of Sales Tax relied on by the Assesee-Revisionist, Justice Piyush Agrawal held
“When the reassessment proceedings are being initiated, the burden is shifted to the Revenue, but in the original proceeding, the onus is upon the dealer to discharge beyond doubt the claim so made.”
Case Title – Jitendra Giri vs. State of UP
Case Citation: 2023 LiveLaw (AB) 372
The Allahabad High Court has rejected a petition filed by a Pujari (Jitendra Giri) seeking permission to worship and receive offerings made by devotees to Naugrah Shivlings established within Sri Kashi Vishwanath Temple corridor in Varanasi.
A bench of Justice Mahesh Chandra Tripathi and Justice Prashant Kumar dismissed the plea as it found no grounds to direct the UP Government to allow Giri’s representation made to it.
Wrong Mention Of Section In Title Of Application Can’t Be Held Against Assesee: Allahabad High Court
Case Title: M/S Purnagiri Rice Mill, Shahjahanpur Thru. Authorized Representative Shri Rakesh Kumar Gupta vs. Union Of India Thru. Ministry Of Finance Deptt. Of Revenue, New Delhi And 2 Others [WRIT TAX No. - 197 of 2023]
Case Citation: 2023 LiveLaw (AB) 373
The Allahabad High Court has held that based on the observations of the Tribunal, if a wrong Section is written in the title of the application, it will not take away the scope/ application of Rule 24 of the Income Tax (Appellate Tribunal) Rules.
Petitioner preferred an appeal against order of assessment/penalty before the Commissioner of Income Tax (Appeals) which was dismissed. Thereafter, petitioner approached the Income Tax Appellate Tribunal, Lucknow Bench. Due to lack of notice of hearing, the petitioner could not appear before the Tribunal. Consequently, the appeal was dismissed for non-prosecution with an observation that the assessee would be at liberty to move an application under Section 254 (Orders of Appellate Tribunal) of the Income Tax Act, 1961.
Case Title: M/S Shyam Sel And Power Limited vs. State Of U.P. And 2 Others [WRIT TAX No. - 603 of 2023]
Case Citation: 2023 LiveLaw (AB) 374
The Allahabad High Court has held that it is necessary for the authorities to establish intention to evade tax for proceedings under Sections 129 and 130 of Central Goods and Service Tax Act, 2017. The Court held that without recording a finding a as to intention to evade tax, proceedings can at best be initiated under Section 122 of the Act.
Dealing with Section 129 and Section 130 of the Act, Justice Piyush Agrawal held
“Both the sections revolve around a similar issue and provide for the proceedings available at the hands of the proper Officer upon him having found the goods in violation of the provisions of the Act, Rule 138 of the Rules framed under the CGST Act being one of them. Upon a purposive reading of the sections, it would sufice to state that the legislation makes intent to evade tax a sine qua non for initiation of the proceedings under sections 129 and 130 of the CGST Act.”
Case Title: Mehek Maheshwari vs. Union Of India And 4 Others [PUBLIC INTEREST LITIGATION (PIL) No. - 1751 of 2020]
Case Citation: 2023 LiveLaw (AB) 375
The Allahabad High Court today dismissed a Public Interest Litigation (PIL) plea seeking recognition of Mathura's Shahi Idgah Mosque site as Krishna Janam Bhoomi.
A bench of Chief Justice Pritinker Diwaker and Justice Ashutosh Srivastava passed this order after reserving its verdict on the matter last month.
Case Title: Vivek Saran Agarwal vs. Union Of India And 3 Others [WRIT TAX No. - 968 of 2023]
Case Citation: 2023 LiveLaw (AB) 376
The Allahabad High Court has refused to quash order and consequential notice under Sections 147 and 148 of the Income Tax Act, 1961 in writ proceedings under Article 226 of the Constitution of India. The Court held that all permissible grounds of defence remain open to assessee at the stage of proceedings under Section 148.
The bench comprising Chief Justice Pritinker Diwaker and Justice Ashutosh Srivastava stated that order under Section 148A(d) of the Act is not final adjudication on escapement of assessment of income of assesee. The. Court observed that the Income Tax Act was framed to exclude determination of correctness of information at the stage of proceedings under Section 148A owing to existence of alternate remedy/appeal under Section 246-A.
Case Title: M/S Jai Hanuman Construction Jagdish Saran vs. State Of U.P. And 9 Others [WRIT - C No. - 15519 of 2023]
Case Citation: 2023 LiveLaw (AB) 377
The Allahabad High Court has held that tender proceedings carried out fairly by State and its instrumentalities cannot be interfered with by the Court easily as no bidder has a fundamental right to carry on business with the Government.
Relying on various decisions of the Supreme Court, bench comprising of Justices Mahesh Chandra Tripathi and Prashant Kumar held,
Case Title: M/S Om Prakash Kuldeep Kumar v. Additional Commissioner Grade-2 And Another 2023 LiveLaw (AB) 378 [WRIT TAX No. - 277 of 2022]
Case Citation: 2023 LiveLaw (AB) 378
The Allahabad High Court has held that unlike the Value Added Tax Act, 2008, there is no specific provision in the Goods and Service Tax Act, 2017 which requires assesses to declare route of transportation/ transit of goods. Therefore, goods cannot be detained for not being transported through the regular route.
A bench comprising of Justice Piyush Agrawal held,
“Under the GST Act, there is no specific provision which bounds the selling dealer to disclose the route to be taken during transportation of goods or while goods are in transit however there was a provision under VAT Act to disclose the route during transportation of goods to reach its final destination. Once the legislature itself in its wisdom has chosen to delete the said provision, this Court opined that the authorities were not correct in passing the seizure order even if the vehicle was not on regular route or on different route.”
Case Title: Rajendra Kumar And Another vs. State Of U.P. And 4 Others [WRIT - C No. - 21621 of 2023]
Case Citation: 2023 LiveLaw (AB) 379
The Allahabad High Court directed the authorities to expunge the name of NOIDA from revenue record pertaining to land of the petitioners and mutate their names in place of NOIDA.
The bench comprising Justices Manoj Kumar Gupta and Donadi Ramesh held even if the notifications for acquisition of the petitioners’ land could be saved by a Supreme Court judgment (discussed later), proceedings would be hit by limitation under Section 25 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 as no award had been passed after the enforcement of the new Act.
Case Title: M/S Namo Narayan Singh vs. State Of U.P. And 2 Others [WRIT TAX No. - 1476 of 2022]
Case Citation: 2023 LiveLaw (AB) 380
The Allahabad High Court has held that any order devoid of reasons will become lifeless as reasons are the heartbeat of every order.
“Reason is the heart beat of every conclusion. In the absence of reasons the order becomes lifeless. Non recording of reasons renders the order to be violative of principles of natural justice. Reasons ensures transparency and fairness in decision making. It enables litigant to know reasons for acceptance or rejection of his prayer. It is statutory requirement of natural justice. Reasons are really linchpin to administration of justice. It is link between the mind of the decision taker and the controversy in question. Thus failure to give reasons amounts to denial of justice,” held Justice Piyush Agrawal.
Case Title: M/S Ennkay Timbers And Another vs. State Of U.P. And 2 Others 2023 LiveLaw (AB) 381 [WRIT TAX No. - 1208 of 2022]
Case Citation: 2023 LiveLaw (AB) 381
The Allahabad High Court has directed restoration of GST registration of a firm as return could not be filed in time due to unavoidable circumstances. The Court noted that mother and sister of the petitioner died of prolonged illness, due to which petitioner suffered both mentally and financially, which were unavoidable circumstances.
Petitioner was registered under Goods and Service Tax Act, 2017. The proprietor could not file returns for the petitioner for a consecutive period of six months. A show cause notice was issued against petitioner proposing cancellation of GST registration under Section 29 (2) (c) of GST Act. Due to bereavements in the family, appropriate reply could not be filed within time. Petitioner approached the High Court against the cancellation; however, the petition was dismissed in lieu of alternate remedy. Thereafter, an appeal was filed, which was also rejected.
Case Title: Deepak Dewvedi And 4 Others vs. State Of U.P. Thru. Prin. Secy (Basic Education) Deptt. Of Basic Edu. Lucknow And 4 Others [WRIT - A No. - 7450 of 2023]
Case Citation: 2023 LiveLaw (AB) 382
The Allahabad High Court has refused to exercise its writ jurisdiction in a petition seeking compliance of a Supreme Court order.
The Court placed reliance on re: Ajaypal Singh and others vs State of U.P. and others, wherein a division bench of the Allahabad High Court held that “in case of non-compliance of the judgement of Hon'ble Supreme Court the power is vested in Supreme Court itself to take action in contempt and not by this Court.”
Case Title: Smt. Manorama Singh vs. State Of U.P. And 3 Others [MATTERS UNDER ARTICLE 227 No. - 6848 of 2023]
Case Citation: 2023 LiveLaw (AB) 383
The Allahabad High Court has held that a victim cannot make multiple requests for recording her statement a fresh under Section 164 CrPC. The Court held that though there is no bar on the Investigation Officer to move applications for recording statement under Section 164 CrPC a second or a third time, the victim cannot make such requests as it will destroy the sanctity of such statements.
“For certain good reasons, the statement under sections 164 Cr.P.C. can be recorded more than once. But that doesn't mean that victim or the I.O. can keep on giving such applications for recording of statements any number of times without any good cause. Doing so, will destroy the sanctity of such statements and in my view, shall frustrate the very purpose behind such statements,” held Justice Jyotsna Sharma.
Case Title: U.P. State Industrial Development Authority,Unnao Thru. Its Senior Project Officer/Regional Manager vs. Gurmeet Singh [RERA APPEAL No. - 28 of 2023]
Case Citation: 2023 LiveLaw (AB) 384
The Allahabad High Court has held that condonation of delay application must be dealt with liberally otherwise it will cause obstruction of justice. Any court or tribunal dealing with delay condonation must consider the facts and circumstances stated in the application before rejecting the same, the Court held.
“Any order passed either allowing the application for condonation of delay or rejecting the same without recording a finding sufficiently would be arbitrary and liable to be interfered by the superior courts,” held Justice Alok Mathur.
OTHER UPDATES
Over Six months after Bhojpuri film actress and model Akanksha Dubey allegedly died by suicide in a hotel room in Varanasi, her mother (Madhu Dubey) has moved the Allahabad High Court seeking a probe into the matter by the Central Bureau of Investigation (CBI).
A bench of Justice Anjani Kumar Mishra and Justice Vivek Kumar Singh heard the arguments of Advocate Saurabh Tiwari (appearing on behalf of the petitioner/Madhu Dubey) and issued a notice to the UP Government.
In a petition seeking mandamus to not terminate the services of operators working on Child Helpline (1098), the Allahabad High Court has granted relief to 14 operators who have been working on the said posts in the State of UP.
A petition had been filed by 14 operators challenging the instructions and consequential proceedings for recruitment of manpower for Emergency Response Support System. Further, the petitioners sought a writ of mandamus to continue their services in the integrated Emergency Response Support System.
Case title - In Re vs. Shri Rajesh Kumar Tiwari, Circle Officer
The Allahabad High Court issued a show cause contempt notice to a Deputy Superintendent of Police for showing disrespect to a Judicial Magistrate and telling his name to the court in a discourteous and contemptuous manner.
The bench of Justice Ashwani Kumar Mishra and Justice Syed Aftab Husain Rizvi issued the show cause notice to Rajesh Kumar Tiwari, Circle Officer, Thakurdwara, Moradabad on a reference made to it by the Additional Civil Judge (Junior Division)/Judicial Magistrate Moradabad.
Allahabad High Court Seeks Response From State On "Non-Functional" Real Estate Appellate Tribunal
The Allahabad High Court sought response from the State Government on functioning of Real Estate Appellate Tribunal in the State.
In a matter pertaining to recovery and disbursement of funds, Counsel for petitioner submitted that he was constrained to approach the High Court despite filing an appeal in the Tribunal. The Real Estate Appellate Tribunal has not been functioning due to non-availability of members, it was submitted.
Dealing with a Public Interest Litigation (PIL) plea highlighting concerns about price disparities in tickets for the ICC Cricket World Cup 2023 matches to be held at Bharat Ratna Shri Atal Bihari Vajpayee Ekana Cricket Stadium, Lucknow, the Allahabad High Court issued notices to the Union of India, Board of Control for Cricket in India (BCCI), State Of Uttar Pradesh, online ticketing platform BookMyShow and others.
Finding prima facie substance in the PIL plea, a bench of Justice Attau Rahman Masoodi and Justice Om Prakash Shukla issued notices and posted the matter for hearing on October 19.
