Madras High Court Weekly Round-Up: January 1 to January 7 2023

Citations: 2023 LiveLaw (Mad) 1 To 2023 LiveLaw (Mad) 10

NOMINAL INDEX

Manikandan v. State, 2023 LiveLaw (Mad) 1

P Geetha v. V. Kirubaharan , 2023 LiveLaw (Mad) 2

M/s.Tirupur Sree Annapoorna Versus Tamil Nadu Sales Tax Appellate, 2023 LiveLaw (Mad) 3

Easwaran Brothers India Private Limited Versus The Assistant Commissioner (ST) (FAC), 2023 LiveLaw (Mad) 4

M Kannadasan v Union Of India, 2023 LiveLaw (Mad) 5

M/s. Radha Meditech v. M/s Cook India Medical Devices Pvt Ltd, 2023 LiveLaw (Mad) 6

People’s Watch v. The Home Secretary, Home Department (Prison) and another, 2023 LiveLaw (Mad) 7

PhonePe Private Limited v. DigiPe Fintech Private Limited, 2023 LiveLaw (Mad) 8

B Ramkumar Adityan v. Additional Chief Secretary and others, 2023 LiveLaw (Mad) 9

M/s. Raju Construction & Ors. versus The Government of India & Ors., 2023 LiveLaw (Mad) 10

REPORT

[POCSO Act] Description Of Incident Assumes Significance As Child Might Not Know What Is Sexual Assault: Madras High Court

Case Title: Manikandan v. State

Citation: 2023 LiveLaw (Mad) 1

While refusing to set aside the conviction of a man who was charged under the Prevention of Children from Sexual Offences (POCSO) Act, the Madras High Court held that in POCSO cases, the description of the incident by the child assumes a lot of significance to come to a conclusion as to whether there was penetrative sexual assault in a given case. The bench of Justice PN Prakash and Justice Anand Venkatesh noted that from the perspective of the child, a sexual assault may only be understood as a physical assault as the child is unaware of what a sexual assault is. Thus, the courts have to look into the description of the offence and come to a conclusion.

Parents In Matrimonial Disputes Not Filing Applications For Minor Children's Maintenance, Duty Of Courts To Protect Their Interest: Madras High Court

Case Title: P Geetha v. V. Kirubaharan

Citation: 2023 LiveLaw (Mad) 2

While allowing a petition filed by a woman for transfer of a divorce petition from Poonamalle to Tiruchirappalli, the Madras High Court said parents are duty bound to maintain their minor children and in absence of a formal application, the courts also are bound to consider grant of interim maintenance to protect the interests of minor children.

Justice SM Subramaniam said though order of interim maintenance is conditional on the circumstances that the wife or husband, who makes the claim has no independent income sufficient for her or his support, it is no answer to a claim of maintenance that the wife is educated and could support herself.

Entities Evading Tax Payment Are Liable To Be Punished Under Criminal Charges With Penalties: Madras High Court

Case Title: M/s.Tirupur Sree Annapoorna Versus Tamil Nadu Sales Tax Appellate

Citation: 2023 LiveLaw (Mad) 3

The Madras High Court, while analysing the growing trend of tax evasion, has stated that companies, firms, or entities that evade tax payments are liable to be punished under criminal charges with substantial penalties.

The division bench of Justice S. Vaidyanathan and Justice C. Saravanan has observed that the hotel business is the fastest-growing one in the world. Despite the growth, hotel and restaurant owners show no desire to pay taxes meant for the public, and a few hotels not only evade taxes but also pose a health risk to the public by intentionally degrading food quality by replacing food substances with undeclared alternative components.

Refund Or Carry Forward The ITC To GST Regime Is Dealer’s Choice: Madras High Court

Case Title: Easwaran Brothers India Private Limited Versus The Assistant Commissioner (ST) (FAC)

Citation: 2023 LiveLaw (Mad) 4

The Madras High Court has held that the dealer has two options: refund or carry forward the ITC to the GST regime.

The single bench of Justice M. Sundar has observed that the dealer cannot be compelled to opt for one of the two, i.e., refund or carry forward the ITC to the GST regime. It is, after all, an option given to the dealer. The provisional refund order issued by the department and the issuance of what is known as "Form-P" clearly defined the entitlement of the dealer.

Court Cannot Send Notice To Governor: Madras High Court Rejects Plea Against Tamil Nadu Governor Over ‘Office Of Profit’ Claim

Case Title: M Kannadasan v Union Of India

Citation: 2023 LiveLaw (Mad) 5

The Madras High Court on Thursday rejected a plea by Thanthai Periyar Dravidar Kazhagam challenging Governor RN Ravi's authority to continue to hold office.

Holding the petition to be non-maintainable, the bench of Acting Chief Justice T Raja and Justice D Bharatha Chakravarthy observed that the court cannot issue notice to the Governor as he enjoys immunity under Article 136 of the Constitution.

Decision On Date Of Reckoning Requires Investigation, Madras High Court Applies Nortel Principle, Appoints Retd Justice Chandru As Arbitrator

Case Title: M/s. Radha Meditech v. M/s Cook India Medical Devices Pvt Ltd

Citation: 2023 LiveLaw (Mad) 6

While disposing of a Section 11 application for the appointment of an arbitrator filed under the Arbitration and Conciliation Act, the Madras High Court followed the procedure adopted by the Supreme Court in Bharat SancharNigam Limited and another Vs. Nortel Networks India Private Limited. In the above case, the Supreme Court had held that when there is no vestige of doubt that the claim was ex facie time barred, it must be referred to arbitration. However, when there was even the slightest of doubt, the rule was to refer to arbitration.

Justice M Sundar noted that in the present case, the primary consideration was whether the case was “ex-facie barred by limitation”. For this, the reckoning date had to be looked into.

Madras High Court Bats For Better Prison Culture, Orders Preparation Of Prisoners’ Rights Handbook

Case Title: People’s Watch v. The Home Secretary, Home Department (Prison) and another

Citation: 2023 LiveLaw (Mad) 7

Noticing shortcomings in the manner in which prison administration is carried out at present, the Madras High Court has issued a slew of directions to the State and the Prison Department for creating a better prison environment and prison culture.

The Madurai bench of Justice R Mahadevan and Justice Sathya Narayana Prasad directed the respondent authorities to also prepare a “Prisoners’ Rights Handbook” highlighting the rights of the prisoners and their grievance mechanisms. A copy of this Handbook is to be given to each prisoner upon their admission.

Trademark Infringement: Madras High Court Temporarily Restrains 'DigiPE' From Using Its Mark, Says Deceptively Similar To 'PhonePe'

Case Title: PhonePe Private Limited v. DigiPe Fintech Private Limited

Citation: 2023 LiveLaw (Mad) 8

The Madras High Court has temporarily restrained DigiPe Fintech Private Limited from using its mark 'DIGIPE' following a trademark infringement suit by popular digital payments company PhonePe.

Justice C Saravanan said the offending trademark 'DigiPE' is similar to the 'PhonePe' mark which stands registered in Class 9, 35, 36 and 42 by PhonePe Private Limited.

Sell Indian Made Foreign Liquor Only To Licensed Consumers: Madras High Court To State, TASMAC

Case Title: B Ramkumar Adityan v. Additional Chief Secretary and others

Citation: 2023 LiveLaw (Mad) 9

In an attempt to curb the menace of alcohol abuse and underage drinking, the Madras High Court has suggested imposing a licensing regime for the sale, purchase, and usage of Indian Made Foreign Liquor.

The bench of Justice R Mahadevan and Justice Sathya Narayana Prasad asked the Centre to take the courts directions/suggestions into consideration and give instructions to the State of Tamil Nadu and Director General of Police to impose a licensing regime.

In turn, the State government was directed to give necessary instructions to the retail TASMAC outlets that only customer having an alcohol license could purchase IMFL.

No Promissory Estoppel Involved In Grant Of Temporary Reprieve From Service Tax On Works Contract; Madras High Court

Case Title: M/s. Raju Construction & Ors. versus The Government of India & Ors.

Citation: 2023 LiveLaw (Mad) 10

The Madras High Court has dismissed a batch of writ petitions challenging Notification No.6/2015-Service Tax, dated 01.03.2015, which withdrew service tax exemption on services in nature of works contract, as granted under the Mega Exemption Notification No.25/2012-Service Tax, dated 20.06.2012.

The bench of Justices S. Vaidyanathan and C. Saravanan observed that “works contract” services are “declared services” under the Finance Act, 1994 and thus, the services provided by the petitioners attracted service tax. While holding that only a temporary reprieve was given to the petitioners by virtue of the Mega Exemption Notification, the Court concluded that there was no promissory estoppel involved in the grant of such exemption. Thus, the bench upheld the Notification No.6/2015, withdrawing service tax exemption.