Calcutta High Court Weekly Round-Up 22nd July To 28th July, 2024

NOMINAL INDEX

Gaurav Churiwal vs Concrete Developers LLP and Ors. Citation: 2024 LiveLaw (Cal) 170

Vishal Jhajharia Versus The Assessment Unit, Income Tax Department Faceless Assessment Centre & Ors. Citation: 2024 LiveLaw (Cal) 171

Ashok Kumar Gupta Vs M.D. Creations And Ors. Citation: 2024 LiveLaw (Cal) 172

Kotak Mahindra Bank Ltd. Vs Jaymony Debnath And Ors. Citation: 2024 LiveLaw (Cal) 173

Oriental Insurance Company Limited Vs M/S. Sarada Rani Enterprises Citation: 2024 LiveLaw (Cal) 174

Shashanka Maiti & Ors. v/s. The State of West Bengal Citation: 2024 LiveLaw (Cal) 175

Commissioner Of Service Tax versus G.S. Atwal & Co. Engineering Pvt Ltd. Citation : 2024 LiveLaw (Cal) 176

Susmita Pandit Versus State of West Bengal & Another Citation: 2024 LiveLaw (Cal) 177

LLP And Its Individual Partners Can't Raise Same Issue By Separate Appeals U/s 37 Of Arbitration Act: Calcutta High Court

Case Title: Gaurav Churiwal vs Concrete Developers LLP and Ors.

Citation: 2024 LiveLaw (Cal) 170

The Calcutta High Court single bench of Justice Sabyasachi Bhattacharyya held that an LLP and its partners cannot file separate appeals under Section 37 of the Arbitration and Conciliation Act by citing the principle of 'separate legal entity'. It was held that the principle of res judicata would apply to prevent the individual partners from raising the same issue under Section 37, if the previous appeal filed in the name of the LLP was dismissed.

Dept. Failed To Put Assessee On Notice In Respect Of Section 69A Addition, Assessment Order Not Sustainable: Calcutta High Court

Case Title: Vishal Jhajharia Versus The Assessment Unit, Income Tax Department Faceless Assessment Centre & Ors.

Citation: 2024 LiveLaw (Cal) 171

The Calcutta High Court has quashed the assessment order on the grounds that the department has failed to put the assessee on notice in respect of addition under Section 69A of the Income Tax.

The bench of Justice Raja Basu Chowdhury has observed that the determination made by the respondent-department as reflected in the assessment order stands vitiated by reasons of failure on the part of the department to put the petitioner on notice in respect of addition under Section 69A. Since the assessment order is violative of the principles of natural justice, it is unenforceable in law.

'Rohan Builders' Not Binding Precedent, Court Empowered To Extend Arbitrator's Mandate Even If Section 29-A Petition Filed After Termination: Calcutta High Court

Case Title: Ashok Kumar Gupta Vs M.D. Creations And Ors.

Citation: 2024 LiveLaw (Cal) 172

The Calcutta High Court bench of Justice Sabyasachi Bhattacharyya has held that the court is empowered the court is empowered to extend an arbitrator's mandate even if a petition under Section 29-A of the Arbitration and Conciliation Act, 1996, is filed after the termination of the mandate.

Justice Bhattacharyya clarified that the absence of negative expressions in Section 29-A, which are present in other statutes to enforce strict timelines, indicates legislative intent to allow judicial discretion in extending mandates.

Dismissal Of First Execution Application On Default Ground Does Not Bar Fresh Petition: Calcutta High Court

Case Title: Kotak Mahindra Bank Ltd. Vs Jaymony Debnath And Ors.

Citation: 2024 LiveLaw (Cal) 173

The Calcutta High Court bench of Justice Sabyasachi Bhattacharyya has held mere dismissal of the first execution application on the ground of default does not prevent the award-holder/decree-holder from filing a fresh execution petition.

The High Court held that the provisions of Rules 105 and 106 of Order 21 of the Code of Civil Procedure do not preclude the award-holder/decree-holder from filing a fresh execution case on the same cause of action after a dismissal for default. Unlike Order 9, there is no specific bar in Order 21 regarding execution cases. The bench noted that even Rule 4 of Order 9 allows for a fresh suit on the same cause of action if the previous suit was dismissed for default without the parties' presence.

Arbitrator's Reliance On Unverified Evidence Violates Fundamental Policy Of India: Calcutta High Court

Case Title: Oriental Insurance Company Limited Vs M/S. Sarada Rani Enterprises

Citation: 2024 LiveLaw (Cal) 174

The Calcutta High Court bench of Justice Sabyasachi Bhattacharyya has held that evidence which does not qualify as pleadings supported by due verification or affidavit cannot be equated with proof of a claim. It held that the arbitrator's reliance on such evidence was contrary to the fundamental policy of Indian law.

The bench further held that the arbitrator was not in a situation where an exact figure cannot be determined, and which would require a reasonable guesswork by the tribunal. Rather, it was a case where the tribunal arbitrarily granted an amount to the claimant without any material basis.

Trial Court Should Not Issue Warrant Of Arrest Mechanically, Without Application Of Mind: Calcutta High Court

Case: Shashanka Maiti & Ors. v/s. The State of West Bengal 

Citation: 2024 LiveLaw (Cal) 175

The Calcutta High Court has held that a trial court cannot issue a warrant of arrest without application of mind and justifying the same under the law.

A single bench of Justice Suvra Ghosh quashed the warrant of arrest against the petitioners, who were accused under inter alia Section 420 of the Indian Penal Code while observing that the trial court had issued the warrant of arrest against the petitioners mechanically without application of mind.

Extended Limitation Can't Be Invoked If No 'Omission' & Suppression Of Material Facts' To Evade Tax : Calcutta HC

Case Title: Commissioner Of Service Tax versus G.S. Atwal & Co. Engineering Pvt Ltd.

Citation : 2024 LiveLaw (Cal) 176

The Calcutta High Court held that no service tax will be levied on activities such as cutting or mineral extraction which are part of mining operations, if mining operations are itself not subjected to service tax on the date of levy.

The High Court clarified that if the State seeking to recover tax, cannot bring the subject within the letter of law, then it goes without saying that the subject is free.

Only Men Can Be Prosecuted Under 'Gender-Specific' Law Of Sexual Harassment U/S 354A IPC: Calcutta High Court

Case: Susmita Pandit Versus State of West Bengal & Another

Citation: 2024 LiveLaw (Cal) 177

The Calcutta High Court has recently held that sexual harassment charges under Section 354A of the Indian Penal Code (IPC) cannot be applied against women since the provision specifically begins with the term "a man."

A single bench of Justice Ajay Kumar Gupta perused the provision which begins, "[354A. Sexual harassment and punishment for sexual harassment--(1) A man committing any of the following acts--"

It was held that "it can be safely accepted that a female cannot be an accused under Section 354A of the IPC as is evident from very terminology as used in the said enactment. This offence is gender specific and only a male can be prosecuted under this offence. A female accused will not be covered under the mischief of this Section as a result of the specific words “a man” used in the Section 354A sub-sections (1), (2) and (3) of the IPC. Accordingly, the allegation of an offence punishable under Section 354A of IPC is not applicable against the present petitioner."