The Complete Supreme Court Annual Digest- 2023 [Part-XI]

Eyewitness

Merely because there are certain lacunae in the investigation, it cannot be a ground to disbelieve the testimony of eye-witnesses. (Para 47) Madan v. State of Uttar Pradesh, 2023 LiveLaw (SC) 982

Ocular evidence undoubtedly fares better than other kinds of evidence and is considered evidence of a strong nature. The principle is that if the eyewitness testimony is “wholly reliable”, then the court can base conviction thereupon. This applies even in cases where there is a sole eyewitness. For an eye-witness to be believed, his evidence, it has been held, should be of sterling quality. It should be capable of being taken at face value. (Para 12 & 22) Manjunath v. State of Karnataka, 2023 LiveLaw (SC) 961

Eyewitness account can't be discarded merely because of inconsistencies with medical evidence. Rameshji Amarsingh Thakor v. State of Gujarat, 2023 LiveLaw (SC) 804

In the case of a sole eye witness, the witness has to be reliable, trustworthy, his testimony worthy of credence and the case proven beyond reasonable doubt. Unnatural conduct and unexplained circumstances can be a ground for disbelieving the witness. (Para 8) Narendrasinh Keshubhai Zala v. State of Gujarat, 2023 LiveLaw (SC) 227 : (2023) 2 SCR 746

'It's quality & not quantity of witnesses which matters': Supreme Court relies on solitary eyewitness testimony to affirm sentence. Ajai @ Ajju v. State of Uttar Pradesh, 2023 LiveLaw (SC) 110 : AIR 2023 SC 996

Forensic / Ballistic Report

Forensic / Ballistic Report has not even been put to the accused, from whom the country made pistol was seized, while recording his statement under section 313 of Cr.P.C., therefore, in any event, it would have to be eschewed from consideration. (Para 32) Ravi Mandal v. State of Uttarakhand, 2023 LiveLaw (SC) 470 : AIR 2023 SC 2554

Guilty Mind

Accused were not traceable - Once the body was found and police entered the scene, after the first information report, even if the accused had been away and innocent, his instinct of self-preservation would have got the better of him to evade arrest till better counsel prevailed upon him to surrender. Such conduct by itself is not reflective of a guilty mind. (Para 70) Santosh @ Bhure v. State (G.N.C.T.) of Delhi, 2023 LiveLaw (SC) 418

Hostile Witness

a) Corroborated part of the evidence of a hostile witness regarding the commission of offence is admissible. Merely because there is deviation from the statement in the FIR, the witness's statements cannot be termed totally unreliable; b) the evidence of a hostile witness can form the basis of conviction. c) The general principle of appreciating the evidence of eye-witnesses is that when a case involves a large number of offenders, prudently, it is necessary, but not always, for the Court to seek corroboration from at least two more witnesses as a measure of caution. Be that as it may, the principle is quality over quantity of witnesses. (Para 17.1) Ravasaheb @ Ravasahebgouda v. State of Karnataka, 2023 LiveLaw (SC) 225 : (2023) 5 SCC 391 : (2023) 2 SCR 965

Injured Witness

The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly. (Para 26) Balu Sudam Khalde v. State of Maharashtra, 2023 LiveLaw (SC) 279 : AIR 2023 SC 1736

Insanity

Burden of proof on accused to prove plea of insanity is one of preponderance of probability. Prakash Nayi @ Sen v. State of Goa, 2023 LiveLaw (SC) 71 : (2023) 5 SCC 673 : (2023) 1 SCR 823

Section 27 Evidence Act - Recovery cannot be relied upon when the statement of the accused is not recorded. Boby v. State of Kerala, 2023 LiveLaw (SC) 50 : (2023) 1 SCR 335

Last Seen Theory

'Last seen' theory can be invoked only when the same stands proved beyond reasonable doubt - The burden on the accused would kick in, only when the last seen theory is established. (Para 15-17) R. Sreenivasa v. State of Karnataka, 2023 LiveLaw (SC) 751 : AIR 2023 SC 4301

Once the theory of “last seen together” was established by the prosecution, the accused was expected to offer some explanation as to when and under what circumstances he had parted the company of the deceased-If the accused offers no explanation or furnishes a wrong explanation, absconds, motive is established and some other corroborative evidence in the form of recovery of weapon etc. forming a chain of circumstances is established, the conviction could be based on such evidence. (Paras 6 to 9) Ram Gopal Mansharam v. State of Madhya Pradesh, 2023 LiveLaw (SC) 120 : AIR 2023 SC 1145 : AIR 2023 SC 1145 : (2023) 5 SCC 534 : (2023) 2 SCR 402

Last­ seen theory comes into play where the time­gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. If the gap between the time of last seen and the deceased found dead is long, then the possibility of other person coming in between cannot be ruled out - Solely on the basis of last seen theory, the conviction could not have been recorded. (Para 16, 17, 29) Boby v. State of Kerala, 2023 LiveLaw (SC) 50 : (2023) 1 SCR 335

'Last seen' circumstance cannot be the sole basis for conviction: Supreme Court acquits murder accused. Jabir v. State of Uttarakhand, 2023 LiveLaw (SC) 41 : AIR 2023 SC 488 : (2023) 1 SCR 969

Last Seen Doctrine - The “last seen” doctrine has limited application, where the time lag between the time the deceased was seen last with the accused, and the time of murder, is narrow; furthermore, the court should not convict an accused only on the basis of the “last seen” circumstance. (Para 23) Jabir v. State of Uttarakhand, 2023 LiveLaw (SC) 41 : AIR 2023 SC 488 : (2023) 1 SCR 969

Marking of Evidence

The marking of a piece of evidence as 'exhibit' at the stage of evidence in a Trial proceeding is only for the purpose of identification of evidence adduced in the trial and for the convenience of the Court and other stakeholders in order to get a clear picture of what is being produced as evidence in a Trial proceeding. (Para 85) Harendra Rai v. State of Bihar, 2023 LiveLaw (SC) 664

Medical Evidence

Lack of positive viscera report not conclusive proof that victim didn't die of poisoning: supreme court upholds conviction in dowry death case. Buddhadeb Saha v. State of West Bengal, 2023 LiveLaw (SC) 794

Minor Discrepancies

An eyewitness to a gruesome killing cannot in deposition narrate blow by blow account of the knife strikes inflicted on the deceased like in a screenplay. Just because there were more injuries than the ones narrated by the eyewitness cannot negate the prosecution version. Even if in the opinion of the autopsy surgeon there was mismatch of the knife with the injuries caused, the doctor's evidence cannot eclipse ocular evidence. (Para 7 & 9) Rameshji Amarsingh Thakor v. State of Gujarat, 2023 LiveLaw (SC) 804

Motive

Though motive could be an important aspect in a case based on circumstantial evidence, in the case of direct evidence, the motive would not be that relevant. (Para 44) Madan v. State of Uttar Pradesh, 2023 LiveLaw (SC) 982

Non-exhibition of Evidence

In the present case, considering the failure of State machinery and failure of the Trial Court to ensure a fair trial from the perspective of the victim side, the aspect of non-marking of the FIR and Written Statement of the deceased as an exhibit, non-production of the formal witnesses to prove the lodging of FIR/ Written Statement and the flimsy rejection of application for examination as a witness in the Trial proceeding do not vitiate the genuineness of the FIR and Written Statement, and we refuse to give any discount to the accused persons for non-exhibition thereof. (Para 89) Harendra Rai v. State of Bihar, 2023 LiveLaw (SC) 664

Notice

When notice is returned as 'unclaimed', it must be deemed proper service; 'unclaimed' same as 'refusal'. Priyanka Kumari v. Shailendra Kumar, 2023 LiveLaw (SC) 904

Panchnama

Panchnama inadmissible in court where witnesses merely acted as attestors and did not disclose how objects were discovered. Rajesh v. State of Madhya Pradesh, 2023 LiveLaw (SC) 814

Previous Enmity

Previous enmity is a double-edged weapon; on the one hand it provides the motive, whereas on the other hand, the possibility of false implication cannot be ruled out. (Para 17) Balaram v. State of Madhya Pradesh, 2023 LiveLaw (SC) 981

Production of Document

At the stage of evidence, when any document/paper is formally produced for being treated as a piece of evidence, the Court looks at two basic aspects. Firstly, the existence of the document on the Court's record and, secondly, the proof of its execution or its contents being sufficiently deposed to by a witness having requisite knowledge thereof, whereafter, the document in question is marked as exhibit. At the stage of exhibiting any document as a piece of evidence, the truth of what is stated in the document is not considered. It is left open to final evaluation at the trial after cross-examination, and the entire testimony of the witness about the existence and contents of the document is weighed in conjunction with various other factors emerging during a trial. At the final evaluation stage, the Trial Court concludes whether the document speaks the truth and decides what weight to give it for final decision. In other words, its evidentiary value is analysed by the Courts at the time of final judgment. (Para 85) Harendra Rai v. State of Bihar, 2023 LiveLaw (SC) 664

Recovery

Recovery of a weapon from an open place accessible to all not reliable. Manjunath v. State of Karnataka, 2023 LiveLaw (SC) 961

Reputation

Merely because a person is educated & god fearing, it can't be said that he has a good reputation. Harvinder Singh @ Bachhu v. State of Himachal Pradesh, 2023 LiveLaw (SC) 889

Right of Private Defence

If a specific question is put to a witness by way of a suggestion indicative of exercise of right of private defence then the Court would well be justified in taking into consideration such suggestion and if the presence of the accused is established the same would definitely be admissible in evidence. (Para 45) Balu Sudam Khalde v. State of Maharashtra, 2023 LiveLaw (SC) 279 : AIR 2023 SC 1736

Secondary Evidence

If document required to be stamped is insufficiently stamped, copy of document cannot be adduced as secondary evidence. Vijay v. Union of India, 2023 LiveLaw (SC) 1022

Principles on admissibility of secondary evidence: supreme court explains. Vijay v. Union of India, 2023 LiveLaw (SC) 1022

Single Witness

Testimony of sole eyewitness who is the complainant needs examination with great caution. Chhote Lal v. Rohtash, 2023 LiveLaw (SC) 1069

Reliance on Single Witness - If a witness is absolutely reliable then conviction based thereupon cannot be said to be infirm in any manner. (Para 17.3) Ravasaheb @ Ravasahebgouda v. State of Karnataka, 2023 LiveLaw (SC) 225 : (2023) 5 SCC 391 : (2023) 2 SCR 965

Standard of Proof

Standard of proof in criminal proceedings differs with that in civil proceedings - Adjudication in civil matters is based on preponderance of probabilities whereas adjudication in criminal cases is based on the principle that the accused is presumed to be innocent and the guilt of the accused should be proved to the hilt and the proof should be beyond all reasonable doubt. (Para 29-30) Rajaram Sriramulu Naidu v. Maruthachalam, 2023 LiveLaw (SC) 46 : AIR 2023 SC 471 : (2023) 1 SCR 809

Suggestions

Suggestions made to the witness by the defence counsel and the reply to such suggestions would definitely form part of the evidence and can be relied upon by the Court along with other evidence on record to determine the guilt of the accused. (Para 42) Balu Sudam Khalde v. State of Maharashtra, 2023 LiveLaw (SC) 279 : AIR 2023 SC 1736

The suggestion made by the defence counsel to a witness in the cross-examination if found to be incriminating in nature in any manner would definitely bind the accused and the accused cannot get away on the plea that his counsel had no implied authority to make suggestions in the nature of admissions against his client. (Para 38) Balu Sudam Khalde v. State of Maharashtra, 2023 LiveLaw (SC) 279 : AIR 2023 SC 1736

Suicide

Mere fact of commission of suicide itself not sufficient to raise presumption under Section 113A Evidence Act. Kashibai v. State of Karnataka, 2023 LiveLaw (SC) 149

Suspicion

Suspicion, howsoever great it may be, is no substitute of proof in criminal jurisprudence - Only such evidence is admissible and acceptable as is permissible in accordance with law. (Para 8) Narendrasinh Keshubhai Zala v. State of Gujarat, 2023 LiveLaw (SC) 227 : (2023) 2 SCR 746

It is a settled principle of law that however strong a suspicion may be, it cannot take place of a proof beyond reasonable doubt. (Para 11) Nikhil Chandra Mondal v. State of West Bengal, 2023 LiveLaw (SC) 171 : AIR 2023 SC 1323 : AIR 2023 SC 1323 : (2023) 2 SCR 20

Test Identification Parade

Test Identification Parade (TIP) - If the accused are already shown to the witnesses in the Police Station, then the sanctity of TIP before the court is doubtful. (Para 13) Kamal v. State (NCT) of Delhi, 2023 LiveLaw (SC) 617 : AIR 2023 SC 3841

Test Identification Parade doesn't have much value when the accused is already known to witness. Udayakumar v. State of Tamil Nadu, 2023 LiveLaw (SC) 242

Testimony

Need to separate the chaff from the grain only where testimony is partly reliable and partly unreliable. Balaram v. State of Madhya Pradesh, 2023 LiveLaw (SC) 981

Witness not discredited by mere contradiction between testimony and statement given to police. Birbal Nath v. State of Rajasthan, 2023 LiveLaw (SC) 941 : AIR 2023 SC 5644

Translator

Section 27 Evidence Act statement not liable to be rejected merely because it was recorded in a language not known to the accused through translator. Siju Kurian v. State of Karnataka, 2023 LiveLaw (SC) 338 : AIR 2023 SC 2239

Weapon

It is the duty of the prosecution to establish use of the weapon discovered in the commission of the crime. Failure to do so may cause aberration in the course of justice. (Para 15) Narendrasinh Keshubhai Zala v. State of Gujarat, 2023 LiveLaw (SC) 227 : (2023) 2 SCR 746

Witness

Merely because some of the witnesses are interested or inimical witnesses, their evidence cannot be totally discarded. The only requirement is that their evidence has to be scrutinized with greater care and circumspection. (Para 39) Madan v. State of Uttar Pradesh, 2023 LiveLaw (SC) 982

There are three types of witnesses. If the witness is wholly reliable, there is no difficulty inasmuch as relying on even the solitary testimony of such a witness conviction could be based. Again, there is no difficulty in the case of wholly unreliable witnesses inasmuch as his/her testimony is to be totally discarded. It is only in the case of the third category of witnesses which is partly reliable and partly unreliable that the Court faces the difficulty. The Court is required to separate the chaff from the grain to find out the true genesis of the incident. (Para 11) Balaram v. State of Madhya Pradesh, 2023 LiveLaw (SC) 981

Non-Examination of Material Witnesses - Failure on the part of the prosecution in not examining a witness, though material, by itself would not vitiate the trial. However, when facts are so glaring and with the witnesses available, particularly when they are likely to give a different story, the Court shall take adequate note of it. When a circumstance has been brought to the notice of the Court by the defense and the Court is convinced that a prosecution witness has been deliberately withheld, as it in all probability would destroy its version, it has to take adverse notice. Anything contrary to such an approach would be an affront to the concept of fair play. (Para 24) Harvinder Singh @ Bachhu v. State of Himachal Pradesh, 2023 LiveLaw (SC) 889

It is not the quantity but the quality of witnesses and evidence that can either make or break the case of the prosecution. It is the duty of the prosecution to prove that the testimonies of the witnesses that it seeks to rely upon are of sterling quality. (Para 10) Narendrasinh Keshubhai Zala v. State of Gujarat, 2023 LiveLaw (SC) 227 : (2023) 2 SCR 746

It is not the quantity of the witnesses but the quality of witnesses which matters. (Para 21) Ajai @ Ajju v. State of Uttar Pradesh, 2023 LiveLaw (SC) 110 : AIR 2023 SC 996

EWS Quota

Candidates cannot claim the EWS quota if certificates are not uploaded in the prescribed format before the cutoff date. (Para 86) Divya v. Union of India, 2023 LiveLaw (SC) 879 : (2024) 1 SCC 448

Supreme Court dismisses review petitions filed against judgment upholding EWS Quota. Society for the Rights of Backward Communities v. Janhit Abhiyan, 2023 LiveLaw (SC) 441

Examination

Supreme Court disapproves of High Courts interfering with examination process by calling for answer sheets & ordering re-evaluation. Chief General Manager, BSNL v. M.J. Paul, 2023 LiveLaw (SC) 414

Police SI selection - Supreme Court finds fault with HC for not considering candidates' objections to questions. Sachit Kumar Singh v. State of Jharkhand, 2023 LiveLaw (SC) 382 : AIR 2023 SC 2216

Family Law

How to decide if a marriage has irretrievably broken down? The Supreme Court indicates factors. Shilpa Sailesh v. Varun Sreenivasan, 2023 LiveLaw (SC) 375

Irretrievable Breakdown of Marriage - Fault theory can be diluted by this Court to do 'complete justice' in a particular case, without breaching the self-imposed restraint applicable when this Court exercises power under Article 142(1) of the Constitution of India - Apportioning blame and greater fault may not be the rule to resolve and adjudicate the dispute in rare and exceptional matrimonial cases - It would be in the best interest of all, including the individuals involved, to give legality, in the form of formal divorce, to a dead marriage, otherwise the litigation(s), resultant sufferance, misery and torment shall continue. (Para 29) Shilpa Sailesh v. Varun Sreenivasan, 2023 LiveLaw (SC) 375

Irretrievable Breakdown of Marriage - Illustrative list of factors which are to be considered while granting divorce on this ground. (Para 33) Shilpa Sailesh v. Varun Sreenivasan, 2023 LiveLaw (SC) 375

Irretrievable breakdown of marriage a ground of dissolve marriage invoking powers of the Supreme Court under Article 142 of the Constitution of India - This discretionary power is to be exercised to do 'complete justice' to the parties, wherein this Court is satisfied that the facts established show that the marriage has completely failed and there is no possibility that the parties will cohabit together, and continuation of the formal legal relationship is unjustified. (Para 42(iii)) Shilpa Sailesh v. Varun Sreenivasan, 2023 LiveLaw (SC) 375

Irretrievably broken-down marriage can be dissolved on ground of 'cruelty'. Rakesh Raman v. Kavita, 2023 LiveLaw (SC) 353 : AIR 2023 SC 2144

Judges not following guidelines on maintenance: Supreme Court directs to circulate 'Rajnesh v. Neha' Judgment to all judicial officers. Aditi Alias Mithi V. Jitesh Sharma, 2023 LiveLaw (SC) 963

Parties cannot directly approach the Supreme Court under Article 32 seeking divorce on ground of irretrievable breakdown of marriage. Shilpa Sailesh v. Varun Sreenivasan, 2023 LiveLaw (SC) 375

The Supreme Court issues directions for sale and attachment of assets to clear arrears of maintenance to woman abandoned by husband. Manmohan Gopal v. State of Chhattisgarh, 2023 LiveLaw (SC) 921

'Visitation in court premises not in child's interest': Supreme Court allows father to meet child in mall. Adarsh C.B. v. Aswathy Sidharthan, 2023 LiveLaw (SC) 847

Waiting period for mutual consent divorce as per S.13b(2) of Hindu Marriage Act can be waived invoking Article 142. Shilpa Sailesh v. Varun Sreenivasan, 2023 LiveLaw (SC) 375

Family Pension

Child adopted by widow after death of Government employee not entitled to family pension. Shri Ram Shridhar Chimurkar v. Union of India, 2023 LiveLaw (SC) 40 : AIR 2023 SC 618 : (2023) 4 SCC 312 : (2023) 1 SCR 931

Family pension was devised as a means to help the dependents of the deceased government servant tide over the crisis and to extend to them some succour. (Para 12) Shri Ram Shridhar Chimurkar v. Union of India, 2023 LiveLaw (SC) 40 : AIR 2023 SC 618 : (2023) 4 SCC 312 : (2023) 1 SCR 931

Family planning

Family planning every citizen's obligation, married couples must take precautions to avoid unwanted pregnancies. x v. Union of India, 2023 LiveLaw (SC) 877

Finance Act, 1994

Finance Act, 1994; Sections 65(105) (zi), 65(119), 65(120), 66 - Export of Service Rules, 2005 - Service Tax Rules, 1994 - The Supreme Court has upheld the order of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) that the 3D conversion services provided by the assessee, including services such as 'imparting special effects', 'post production service', 'digital asset management and content service' and 'digital restoration service', will not fall under the ambit of 'video-tape production' under Section 65(120) of Finance Act, 1994. While adjudicating the service tax demand raised on the assessee, the CESTAT found that there was no evidence that the material received by the respondent/ assessee, M/s Prime Focus Ltd, from its clients was recorded in video or that the assessee had, at any time, handled video as media. The Tribunal had thus held that the assessee was entitled for exemption as exports as it had exported services in accordance with Export of Service Rules, 2005 and Rule 6A of Service Tax Rules, 1994. Commissioner of Service Tax-IV v. Prime Focus Ltd., 2023 LiveLaw (SC) 561

Firecracker

Directions regulating firecrackers apply to all states in the country, not just Delhi. Arjun Gopal v. Union of India, 2023 LiveLaw (SC) 986

Supreme Court rejects firecracker makers' plea to use barium & joined crackers. Arjun Gopal v. Union of India, 2023 LiveLaw (SC) 816

Can't allow barium nitrate in firecrackers merely because the new formulation is 30% less polluting. Arjun Gopal v. Union of India, 2023 LiveLaw (SC) 816

Food

Food safety and standards act will prevail over prevention of food adulteration act to the extent they're inconsistent. Manik Hiru Jhangiani v. State of Madhya Pradesh, 2023 LiveLaw (SC) 1067

Foreign Exchange Regulation Act, 1973

Foreign Exchange Regulation Act, 1973; Sections 56, 57, 61 - Foreign Exchange Management Act, 1999; Sections 49 (1), (3), (4) - Enforcement Officer appointed and authorised under the repealed provisions of the FERA, will continue to have the authority and competence to file a complaint for the offences punishable under the Act before the expiry of the sunset period of 2 years provided under Section 49(3) of the FEMA. (Para 11) First Global Stockbroking Pvt. Ltd. v. Anil Rishiraj, 2023 LiveLaw (SC) 820

Foreign Judgments

Reliance of Foreign Judgments - Considering the different position of laws in US and in our country more particularly faced with Articles 19(1)(c) and 19(4) of the Constitution of India under which the right to freedom of speech is subject to reasonable restrictions and is not an absolute right and the constitution permits the Parliament to frame the laws taking into consideration the public order and/or the sovereignty of India, without noticing the differences in American Laws and the Indian laws, this Court in the case of Arup Bhuyan (supra) and Raneep (supra) has erred in straightway and directly following the US Supreme Court decisions and that too without adverting to the differences and the position of laws in India. (Para 13) Arup Bhuyan v. State of Assam, 2023 LiveLaw (SC) 234 : AIR 2023 SC 1685

Foreign Trade

Supreme Court upholds requirement of 'pre-import condition' to claim IGST and GST compensation cess on imports made under 'advance authorization'. Union of India v. Cosmo Films Ltd; 2023 LiveLaw (SC) 367

Foreign Trade Policy of 2015-2020 (FTP) - The bench set aside the judgment of the Gujarat High Court where it had quashed the amending Notifications, i.e., Notification No. 33 / 2015-20 and 79 / 2017-Customs, dated 13.10.2017, by which the Director General of Foreign Trade (DGFT) had imposed the 'pre-import' and 'physical export' conditions for availing IGST and Compensation Cess exemption on imports made under 'Advance Authorisation'. Union of India v. Cosmo Films Ltd; 2023 LiveLaw (SC) 367

Foreign Trade Policy of 2015-2020 (FTP) - The Supreme Court has upheld the requirement of a 'pre-import condition' incorporated in the Foreign Trade Policy of 2015-2020 (FTP) and Handbook of Procedures 2015-2020 (HBP) to claim exemption of Integrated Goods and Services Tax (IGST) and GST Compensation Cess on inputs imported into India for manufacture of export goods, on the basis of 'Advance Authorization'. Union of India v. Cosmo Films Ltd; 2023 LiveLaw (SC) 367

Foreign Trade Policy of 2015-2020 (FTP) - While holding that the concept of 'preimport condition' was not alien, the court observed that paragraph 4.13 (i) of the FTP itself empowered the DGFT to impose 'pre-import conditions' on articles other than those specified in Appendix-4J of the HBP. The bench remarked that the Gujarat High Court had failed to consider the same and had erroneously proceeded on the assumption that only the goods specified in the said Appendix were subject to the 'pre-import condition'. Union of India v. Cosmo Films Ltd; 2023 LiveLaw (SC) 367

Forest

Forest Protection - Supreme Court allows centre to notify Central Empowered Committee (CEC) as permanent body. In Re T.N. Godavarman Thirumulpad v. Union of India, 2023 LiveLaw (SC) 687

Right of forest inhabitants for claims against eviction to be heard by forest officer not limited to recogonized forest communities. Hari Prakash Shukla v. State of Uttar Pradesh, 2023 LiveLaw (SC) 507 : AIR 2023 SC 3315

No mining activity within ESZ even if the eco-sensitive zone is more than 1 km from protected forest. In Re: T. N. Godavarman Thirumulpad v. Union of India, 2023 LiveLaw (SC) 392

No mining activity within Eco-Sensitive Zone (ESZ) even if ESZ is more than 1 km from protected forest. In Re: T. N. Godavarman Thirumulpad v. Union of India, 2023 LiveLaw (SC) 392

Supreme Court upholds quashing of the proceedings initiated by the Orissa Government to acquire nearly 8000 acres of land for Vedanta University proposed to be established by Anil Agarwal Foundation - Violations of the provisions of the LA Act 1894 - Also notes that procedure was vitiated by favouritism - Not appreciable why the Government offered such an undue favour in favour of one trust / company - No application of mind regarding environmental aspects - Two rivers also sought to be acquired. Anil Agarwal Foundation v. State of Orissa, 2023 LiveLaw (SC) 300

Forest Act, 1927

Forest Act, 1927 - Claims againt eviction - In Banwasi Seva Ashram vs State Of Uttar Pradesh 1986 4 SCC 753, certain Adivasi communities inhabiting the situate land were being evicted from their homes on grounds of the said land being subject to a Section 4 notification under the Forest Act. It was held that the said inhabitants had a right for their claims to be heard by the Forest Officer, and it was the forest officer, who had the power to go into the merits of the case and decide the claims of the inhabitants - whether the relief granted in the Judgment of Banwasi Seva Ashram vs State Of Uttar Pradesh is only applicable to SC/ST/ other backward communities? Banwasi Judgment (Supra), only grants a right to be heard by a competent authority, and if such authority rejects a claim, then the said claim cannot exist against the situate land. This right to be heard, in our opinion, must be granted to all claiming possession of the subject land, and the substantial right of possession can be granted or denied during the said hearing, by the competent authority, that is to say, the right to be heard must be enjoyed by all, and the right to possess, must be enjoyed by those who have a legitimate claim. Further, the right to enjoy possession of any land notified under Section 4 of the Forest Act is not only limited to Adivasi communities and other forest dwelling communities, but is also based on proof of residence, date of original possession, etc. If the right to inhabit the said lands is not restricted only to certain communities, how can the right to be heard on such claims be restricted to the same. (Para 17-23) Hari Prakash Shukla v. State of Uttar Pradesh, 2023 LiveLaw (SC) 507

Frivolous Litigation

For filing the present frivolous appeal, in our opinion, the Appellants deserve to be burdened with heavy cost. This Court had deprecated the conduct of the litigants in flooding this Court with frivolous litigations, which are choking the dockets as a result of which the matters, which require consideration are delayed. On merits also a similar issue came up for consideration before this Court in Sanjay Gera vs. Haryana Urban Development Authority & Anr., (2005) 3 SCC 207. In the aforesaid case, the plot was allotted in the same Sector-14 (Part), Hissar. Additional price was demanded for the same as is projected in the case in hand. Though the High Court had not granted relief to the allotee, therein however this Court accepted the plea and quashed the demand of additional price from the allottee, interpreting the same condition in the letter of allotment as is in the case in hand. (Para 15 - 17) Haryana Urban Development Authority v Jagdeep Singh, 2023 LiveLaw (SC) 429 : AIR 2023 SC 2257

In the case in hand, the civil suit was filed on 1.10.2003 by the Respondent challenging the demand of additional price. Judgment of this Court in Sanjay Gera's case was delivered on 22.02.2005. Despite this fact being in knowledge of the Appellants, the suit was contested and the same was decreed on 19.08.2008. The matter did not end here, appeal was preferred by the appellant before the First Appellate Court and on failure even before the High Court and thereafter before this Court. For the aforesaid reasons and wasting the time of the Courts at different levels, we deem it appropriate to burden the Appellants with a cost of ₹1,00,000/- to be deposited with the Supreme Court Mediation Centre. In addition, the Respondent having been dragged in unnecessary litigation upto this Court deserves to be awarded cost of ₹50,000/-. The aforesaid amount shall be recovered by the Appellants from the guilty officers/officials who opined the case to be fit for filing appeal at different levels despite being covered by judgment of this Court. (Para 20 - 22) Haryana Urban Development Authority v Jagdeep Singh, 2023 LiveLaw (SC) 429 : AIR 2023 SC 2257

Just as bad coins drive out good coins from circulation, bad cases drive out good cases from being heard on time. Because of the proliferation of frivolous cases in the courts, the real and genuine cases have to take a backseat and are not being heard for years together. The party who initiates and continues a frivolous, irresponsible and senseless litigation or who abuses the process of the court must be saddled with exemplary cost, so that others may deter to follow such course. (Para 20) Chanchalapati Das v. State of West Bengal, 2023 LiveLaw (SC) 446

Supreme Court reprimands HUDA Authority for filing frivolous appeal; imposes cost of Rs. 1 Lakh. Haryana Urban Development Authority v. Jagdeep Singh, 2023 LiveLaw (SC) 429 : AIR 2023 SC 2257

The additional amount sought to be recovered from the Respondent was ₹26,880/- to which there was no justification even at the stage of issuance of notice. The suit was decreed on 19.08.2008. The amount spent on litigation would be much more. It is because of impersonal and irresponsible attitude of the officers, who want to put everything to Court and shirk to take decisions. However, still the Appellants had not only filed appeals, resulting in 2 addition to the pendency of cases and also must have spent huge amounts on litigation in the form of fee of the counsels and allied expenses. Besides that, a number of officer(s)/official(s) must have visited the counsel engaged either at Chandigarh, when the matter was taken up in the High Court and thereafter to this Court, when the order was challenged before this Court. Even that amount also needs to be calculated and recovered from the guilty officers who, despite there being judgment of this Court, dealing with the same issue, opined the case to be fit for filing appeals. (Para 23, 24) Haryana Urban Development Authority v Jagdeep Singh, 2023 LiveLaw (SC) 429 : AIR 2023 SC 2257

The matter should be viewed more seriously when people who claim themselves and project themselves to be the global spiritual leaders, engage themselves into such kind of frivolous litigations and use the court proceedings as a platform to settle their personal scores or to nurture their personal ego. (Para 20) Chanchalapati Das v. State of West Bengal, 2023 LiveLaw (SC) 446

General Sales Tax Act, 1959 (Tamil Nadu)

General Sales Tax Act, 1959 (Tamil Nadu); Sections 3(2), 28-A; Schedule I, Part B (Taxation Entry No.61) and Schedule III, Part B (Exemption Entry No.8) - Classification and taxability of 'maize starch' under the TNGST Act for the assessment year, i.e., 1998-99 - If in any statutory rule or statutory notification, two expressions are used - one in general words and the other in special terms – then, as per the rules of interpretation, the special terms are not meant to be included in the general expression. Where a statute contains both a general provision as well as a specific provision, the latter must prevail. Santhosh Maize & Industries Ltd. v. State of Tamil Nadu, 2023 LiveLaw (SC) 499

Government Officers

Govt Officers should not be summoned to court 'at the drop of a hat'. State of Bihar v. Ghanshyam Prasad Singh, 2023 LiveLaw (SC) 548

Hate Speech

The Supreme Court directs all States/UTs to register suo motu FIR against hate speeches irrespective of religion. Ashwini Kumar Upadhyay v. Union of India, 2023 LiveLaw (SC) 405

Supreme Court directs videography of Sakal Hindu Samaj meet; Asks police to take preventive action if necessary to prevent hate speech. Shaheen Abdullah v. Union of India, 2023 LiveLaw (SC) 80

Hate speech strikes at foundational values of the Constitution; Political parties must control speeches of members: Justice B.V. Nagarathna. Kaushal Kishore v. State of Uttar Pradesh, 2023 LiveLaw (SC) 4 : (2023) 4 SCC 1

Health

Supreme Court asks Delhi govt. to consider registry's request for additional medical facilities in SC premises. Reepak Kansal v. Union of India, 2023 LiveLaw (SC) 23

Higher Judicial Services Special Rules 1961 (Kerala State)

Higher Judicial Services Special Rules 1961 (Kerala State); Rule 2(c)(iii) - The decision of the High Court of Kerala to apply a minimum cut-off to the viva voce examination is contrary to Rule 2(c)(iii) of the 1961 Rules. (Para 51) Sivanandan C.T. v. High Court of Kerala, 2023 LiveLaw (SC) 658

Hindu Law

Karta of Hindu undivided family can alienate huf property even if minor has undivided interest in it. N.S. Balaji v. Debts Recovery Tribunal, 2023 LiveLaw (SC) 853

Hindu Adoptions and Maintenance Act, 1956

Hindu Adoptions and Maintenance Act, 1956; Sections 8 and 12 - On adoption by a widow, the adopted son or daughter is deemed to be a member of the family of the deceased husband of the widow - Referred to Sawan Ram vs. Kalawanti, A.I.R. 1967 SC 1761 and Sitabai vs. Ramchandra, A.I.R. 1970 SC 343 - The provisions of the HAMA Act, 1956 determine the rights of a son adopted by a Hindu widow only vis-à-vis his adoptive family. (Para 9-10) Shri Ram Shridhar Chimurkar v. Union of India, 2023 LiveLaw (SC) 40 : AIR 2023 SC 618 : (2023) 4 SCC 312 : (2023) 1 SCR 931

Hindu Marriage Act, 1955

Hindu Marriage Act, 1955; Section 7A (as amended and applicable in Tamil Nadu) - Self-respect marriages do not require a public solemnisation or declaration. (Para 8) Ilvarasan v. Superintendent of Police, 2023 LiveLaw (SC) 735

Hindu Marriage Act, 1955; Section 7A (as amended and applicable in Tamil Nadu) - Self-respect marriage - Couples intending to marry may refrain from making a public declaration due to various reasons, such as familial opposition or fear for their safety. In such cases, enforcing a public declaration could put lives at risk and potentially result in forced separation. (Para 8) Ilvarasan v. Superintendent of Police, 2023 LiveLaw (SC) 735

Hindu Marriage Act, 1955; Section 13B(2) - Waiting period for mutual consent divorce can be waived by Supreme Court invoking Article 142 powers - this Court, in view of settlement between the parties, has the discretion to dissolve the marriage by passing a decree of divorce by mutual consent, without being bound by the procedural requirement to move the second motion. This power should be exercised with care and caution - This Court can also, in exercise of power under Article 142(1) of the Constitution of India, quash and set aside other proceedings and orders, including criminal proceedings. Shilpa Sailesh v. Varun Sreenivasan, 2023 LiveLaw (SC) 375

Hindu Marriage Act, 1955; Section 13(1)(ia) - Irretrievable breakdown of marriage can be read as "cruelty" - a marital relationship which has only become more bitter and acrimonious over the years, does nothing but inflicts cruelty on both the sides. To keep the façade of this broken marriage alive would be doing injustice to both the parties. A marriage which has broken down irretrievably, in our opinion spells cruelty to both the parties, as in such a relationship each party is treating the other with cruelty. It is therefore a ground for dissolution of marriage under Section 13 (1) (ia) of the Act - Long separation and absence of cohabitation and the complete breakdown of all meaningful bonds and the existing bitterness between the two, has to be read as cruelty under Section 13(1) (ia) of the 1955 Act. (Para 17, 18) Rakesh Raman v. Kavita, 2023 LiveLaw (SC) 353 : AIR 2023 SC 2144

Hindu Marriage Act, 1955; Section 16 - Rights of children born out of invalid marriages in their parents' share in Hindu joint family property – Held, a child born from a void or voidable marriage is entitled to the parents share in a Hindu Undivided Family (HUF) governed by Mitakshara law; however, such a child cannot be treated as a coparcener by birth in the HUF. The very concept of a coparcener postulates the acquisition of an interest by birth. If a person born from a void or voidable marriage to whom legitimacy is conferred by sub-sections (1) or (2) of Section 16 were to have an interest by birth in a Hindu Undivided Family governed by Mitakshara law, this would certainly affect the rights of others apart from the parents of the child. When an individual falls within the protective ambit of sub-section (1) or sub-section (2) of Section 16, they would be entitled to rights in or to the absolute property of the parents and no other person. (Para 51) Revanasiddappa v. Mallikarjun, 2023 LiveLaw (SC) 737

Hindu Marriage Act, 1955; Section 16 - Rights of children born out of invalid marriages in their parents' share in Hindu joint family property – Children born out of void/voidable marriages are entitled to inherit a share in the property of their deceased parents which would have been allotted to them on a notional partition of the Hindu coparcenary property. However, such children are not entitled to the properties of any coparcener other than their parents. This ruling is applicable only to Hindu joint family properties governed by Hindu Mitakshara law. (Para 55) Revanasiddappa v. Mallikarjun, 2023 LiveLaw (SC) 737

Hindu Marriage Act, 1955; Section 29 (2) - A Hindu marriage can be dissolved through a customary divorce deed, provided the existence of such a customary right is established. (Para 6) Sanjana Kumari v. Vijay Kumar, 2023 LiveLaw (SC) 848

Hindu Succession Act, 1956

Hindu Succession Act 1956 - Partition Suit - Effect of 2005 amendment to pending partition suit - As the law governing the parties has been amended before the conclusion of the final decree proceedings, the party benefitted by such amendment (like the two daughters in the case on hand) can make a request to the Trial Court to take cognizance of the Amendment and give effect to the same. (Para 80) Prasanta Kumar Sahoo v. Charulata Sahu, 2023 LiveLaw (SC) 262

Hindu Succession Act 1956 - the institution of a suit for partition by a member of a joint family is a clear intimation of his intention to separate, and there was consequential severance of the status of jointness - In case during the pendency of partition suit or during the period between the passing of preliminary decree and final decree in the partition suit, any legislative amendment or any subsequent event takes place which results in enlargement or diminution of the shares of the parties or alteration of their rights, whether such legislative amendment or subsequent event can be into consideration and given effect to while passing final decree in the partition suit - Even though filing of partition suit brings about severance of status of jointness, such legislative amendment or subsequent event will have to be taken into consideration and given effect to in passing the final decree in the partition suit - This is because, the partition suit can be regarded as fully and completely decided only when the final decree is passed. It is by a final decree that partition of property of joint Hindu Family takes place by metes and bounds. (Para 73(C)) Prasanta Kumar Sahoo v. Charulata Sahu, 2023 LiveLaw (SC) 262

Hindu Succession Act, 1955; Section 6 - In order to ascertain the shares of the heirs in the property of a deceased coparcener, the first step is to ascertain the share of the deceased himself in the coparcenary property and Explanation 1 to Section 6 provides a fictional expedient, namely, that his share is deemed to be the share in the property that would have been allotted to him if a partition had taken place immediately before his death - Once that assumption has been made for the purpose of ascertaining the share of the deceased, one cannot go back on the assumption and ascertain the shares of the heirs without reference to it, and all the consequences which flow from a real partition have to be logically worked out, which means that the shares of the heirs must be ascertained on the basis that they had separated from one another and had received a share in the partition which had taken place during the life-time of the deceased. In effect, the heir will get his or her share in the interest which the deceased had in the coparcenary property at the time of his death, in addition to the share which he or she received or must be deemed to have received in the notional partition. (Para 11-12) Derha v. Vishal, 2023 LiveLaw (SC) 740

Hindu Succession Act, 1956; Section 14 - Possession of property necessary for woman to claim rights under section 14. (Para 4) M. Sivadasan v. A.Soudamini, 2023 LiveLaw (SC) 720

Human Organs

Supreme Court allows man to donate liver to 3-year-old cousin who is an overseas citizen of India; says order won't be treated as precedent. Rajveer Singh v. Union of India, 2023 LiveLaw (SC) 973

Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017

Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017 - Issued directions to the Central and State Governments to ensure the effective implementation of the HIV Act. (Para 93) CPL Ashish Kumar Chauhan (Retd.) v. Commanding Officer, 2023 LiveLaw (SC) 826

Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017; Section 34 - All courts, tribunals, and quasi-judicial bodies in the country should prioritize cases relating to HIV-infected persons for early disposal. Steps should be taken to maintain the anonymity of HIV-infected individuals. (Para 93 (12)) Ashish Kumar Chauhan (Retd.) v. Commanding Officer, 2023 LiveLaw (SC) 826

Hysterectomy

Take stringent action against hospitals for unnecessary or forced hysterectomies; follow the union's guidelines. Dr. Narendra Gupta v. Union of India, 2023 LiveLaw (SC) 310

IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016

IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 - Regulation 30 - NCLT as well as NCLAT were right in holding that the possession of the Corporate Debtor, of the property needs to be protected. This is why a direction under Regulation 30 had been issued to the local district administration. (Para 50) Victory Iron Works Ltd. v. Jitendra Lohia, 2023 LiveLaw (SC) 193 : (2023) 7 SCC 227

Income Tax Act 1961

Income Tax Act 1961 - Chapter XIVB is a complete code in itself providing for self-contained machinery for assessment of undisclosed income for the block period of 10 years or 6 years as the case may be- for assessment of undisclosed income for the block period, the normal assessment proceedings under Section 140 of the Income Tax Act would not be applicable. (Para 10.6) K.L. Swamy v. Commissioner of Income Tax, 2023 LiveLaw (SC) 54 : AIR 2023 SC 431 : (2023) 4 SCC 274 : (2023) 1 SCR 689

Income Tax Act 1961 - Revenue justified in levying interest under Section 158BFA(1) of the Income Tax Act for late filing of the return for the block period even in absence of any notice under Section 158BC of the Act and for the period prior to 01.06.1999. (Paras 10.3, 10.7) K.L. Swamy v. Commissioner of Income Tax, 2023 LiveLaw (SC) 54 : AIR 2023 SC 431 : (2023) 4 SCC 274 : (2023) 1 SCR 689

Income Tax Act 1961- the date of the Panchnama last drawn can be said to be the relevant date and can be said to be the starting point of limitation of two years for completing the block assessment proceedings. Anil Minda v. Commissioner of Income Tax, 2023 LiveLaw (SC) 246

Income Tax Act, 1961 - Income Tax Appellate Tribunal Members (Recruitment and Conditions of Service) Rules, 1963; Rule 11 - Age of retirement of the Members of the Income Tax Appellate Tribunal (ITAT) - In terms of the provisions, a member of ITAT to continue in the post till the age of 62 years. Madras Bar Association v. Union of India, 2023 LiveLaw (SC) 178

Income Tax Act, 1961 - The amendment brought to Section 153C of the Act, 1961 vide Finance Act, 2015 shall be applicable to searches conducted under Section 132 of the Act, 1961 before 01.06.2015, i.e., the date of the amendment. (Para 11) Income Tax Officer v. Vikram Sujitkumar Bhatia, 2023 LiveLaw (SC) 274 : AIR 2023 SC 1922 : (2023) 2 SCR 756

Income Tax Act, 1961 - The Supreme Court grants relief to ITAT member whose appointment was delayed for not filing income tax returns and allowed to continue in the post till the age of 62 years as per the provisions of the Income Tax Act 1961. Although she had applied in pursuance of a notification issued in 2013, she was given appointment only in 2018, as there was a dispute regarding non-filing of income tax returns by her with respect to the relevant assessment year (2010-11). In June 2017, the Calcutta High Court had granted her relief by holding that she cannot be excluded merely on the ground that she had not filed income tax returns. In the meantime, the Centre had brought in new rules for appointment to Tribunals, namely Tribunal, Appellate Tribunal and Other Authorities (Qualifications, Experience and Other Conditions of Service of Members) Rules 2017. The letter of appointment was issued to her in terms of the 2017 Rules, fixing her term as three years. The bench held that the right of the applicant to appointment had been crystallized even before the 2017 Rules. Therefore, the appointment of the applicant would be governed by the position as it existed prior to the 2017 Rules. In other words, her tenure shall be extended until she attains the age of 62 years. Madras Bar Association v. Union of India, 2023 LiveLaw (SC) 178

Income Tax Act, 1961 - The Supreme Court has upheld the jurisdiction of the Assessing Officer at New Delhi to tax the income earned by the assessees incorporated under the Registration of Companies (Sikkim) Act, 1961, for the assessment years prior to the date the Income Tax Act, 1961 was extended to the State of Sikkim. Mansarovar Commercial Pvt. Ltd. v. Commissioner of Income Tax, 2023 LiveLaw (SC) 291

Income Tax Act, 1961; Chapter X - Any determination of the arm's length price under Chapter X of the Act de hors the relevant guidelines stipulated under the Act and the Rules, can be considered as perverse, which may be considered as a substantial question of law. Thus, in each case, the High Court should examine whether the guidelines laid down in the Act and the Rules are followed while determining the arm's length price. SAP Labs India Pvt. Ltd. v. Income Tax Officer, Circle 6, Bangalore, 2023 LiveLaw (SC) 328

Income Tax Act, 1961; Section 10(26AAA) - Sikkim Subject Rules, 1961 - Sikkim Subjects Regulations, 1961 - All Indians/old Indian settlers, who have permanently settled in Sikkim prior to the merger of Sikkim with India on 26.04.1975, irrespective of whether his/her name is recorded in the register maintained under the Sikkim Subjects Regulations, 1961 read with Sikkim Subject Rules, 1961 or not, are entitled to the exemption under Section 10(26AAA) of the Income Tax Act. (Para 17) Association of Old Settlers of Sikkim v. Union of India, 2023 LiveLaw (SC) 28 : (2023) 5 SCC 717

Income Tax Act, 1961; Section 80 HHC - Gain from foreign exchange fluctuations cannot be claimed as deduction. Shah Originals v. Commissioner of Income Tax-24, 2023 LiveLaw (SC) 1004

Income Tax Act, 1961; Section 80 IA - For the purpose of computing deduction under Section 80IA, the rate at which the State Electricity Board supplies power to the consumers has to be taken as the market value of electricity. Commissioner of Income Tax v. Jindal Steel & Power Ltd; 2023 LiveLaw (SC) 1048

Income Tax Act, 1961; Section 90 - Double Taxation Avoidance Agreement (DTAA) cannot be given effect to by a court, authority or a tribunal unless it has been notified by the Central Government. Assessing Officer Circle (International Taxation) New Delhi v. Nestle, 2023 LiveLaw (SC) 911

Income Tax Act, 1961; Section 153A - Block assessment under Section 153A is linked with the search and requisition under Sections 132 and 132A, respectively. Further, the object of assessment under Section 153A is to bring under tax the undisclosed income which is found during the course of search or pursuant to search/requisition. Therefore, the jurisdiction of AO to make assessment is confined to the incriminating material found during the course of search or requisition. Income Tax Act, 1961 - Only in cases where the undisclosed income is found on the basis of incriminating material in search/ requisition, the AO would assume the jurisdiction to assess or reassess the total income for the entire six years block assessment period, even in case of completed/unabated assessment. Principal Commissioner of Income Tax v. Abhisar Buildwell P. Ltd; 2023 LiveLaw (SC) 346 : (2024) 2 SCC 433

Income Tax Act, 1961; Section 153A - No additions can be made by the Assessing Officer under Section 153A of the Income Tax Act in the absence of any incriminating material found during the course of search under Section 132 or requisition under Section 132 A, in respect of completed / unabated assessments. Principal Commissioner of Income Tax v. Abhisar Buildwell P. Ltd; 2023 LiveLaw (SC) 346 : (2024) 2 SCC 433

Income Tax Act, 1961; Section 153C - The object and purpose of Section 153C is to address the persons other than the searched person - 2015 amendment was necessitated because of the narrow interpretation given to "belong/belongs" in Section 153C by the Delhi High Court in Pepsico Holdings which led to a situation where, though incriminating material pertaining to a third party / person was found during search proceedings under Section 132, the Revenue could not proceed against such a third party. (Para 10.8) Income Tax Officer v. Vikram Sujitkumar Bhatia, 2023 LiveLaw (SC) 274 : AIR 2023 SC 1922 : (2023) 2 SCR 756

Income Tax Act, 1961; Section 260A - High Court is not precluded from considering the determination of the arm's length price determined by the Income Tax Appellate Tribunal (ITAT), in exercise of its powers under Section 260A - there cannot be any absolute proposition of law that in all cases where the Tribunal has determined the arm's length price the same is final and cannot be the subject matter of scrutiny by the High Court in an appeal under Section 260A. SAP Labs India Pvt. Ltd. v. Income Tax Officer, Circle 6, Bangalore, 2023 LiveLaw (SC) 328

Income Tax Act, 1961; Section 263 - Commissioner of Income Tax can exercise revision powers under Section 263 of the Income Tax Act over the erroneous orders of the Assessing Officer which cause prejudice to the interest of the revenue - If due to an erroneous order of the Income Tax Officer, the Revenue is losing tax lawfully payable by a person, it will certainly be prejudicial to the interests of the Revenue. Commissioner of Income Tax v. Paville Projects Pvt Ltd; 2023 LiveLaw (SC) 282 : AIR 2023 SC 1950

Income Tax Act, 1961; Section 271C - The Supreme Court has ruled that no penalty is leviable under Section 271C on the mere delay in remittance of TDS after the same has been deducted by the assessee. The Court has held that the relevant words used in Section 271C(1)(a) are “fails to deduct”, and the same does not speak about belated remittance of the TDS - The Court ruled that the words “fails to deduct” occurring in Section 271C(1)(a) cannot be read as “failure to deposit/ pay the tax deducted”, while adding that the consequences of non-payment/belated remittance of the TDS are specifically provided by the Parliament under Sections 201(1A) and 276B of the Income Tax Act - The Court thus set aside the Kerala High Court's order where it had upheld the levy of penalty under Section 271C for belated remittance of TDS. US Technologies International Pvt. Ltd. v. Commissioner of Income Tax, 2023 LiveLaw (SC) 285 : (2023) 8 SCC 24

Income Tax Act, 1961; Section 6(3) - Since the control and management of the affairs of the assessee companies was with its auditor in New Delhi, the Income Tax Act, 1961 was applicable to them. Thus, the assesses who were incorporated under the company law of Sikkim, were resident Indian companies, and the income accrued to them/ earned by them in India for the assessment years prior to 1st April 1990, was taxable under the Income Tax Act. Mansarovar Commercial Pvt. Ltd. v. Commissioner of Income Tax, 2023 LiveLaw (SC) 291

Income Tax Act, 1961; Section 69A - Bitumen cannot be treated as a 'valuable article' under Section 69A. For an 'article' to be 'valuable', even in small quantity it must be 'worth a good price' or 'worth a great deal of money', and it is not sufficient if it has some 'value'. Considering the price of one kilogram of bitumen, 'bitumen' cannot be treated as a 'valuable article'. D.N. Singh v. Commissioner of Income Tax, 2023 LiveLaw (SC) 451

Income Tax Act, 1961; Section 69A - Principle of Ejusdem Generis - the preceding words in Section 69A - such as money, bullion, and jewellery- would suggest that the phrase 'other valuable article' would justify inclusion of only high value goods. The ownership of the goods did not pass to the assessee, who was a mere carrier of goods and whose possession of bitumen began as a bailee. Thus, the assessee could not be said to be the 'owner' of bitumen so as to attract Section 69A. D.N. Singh v. Commissioner of Income Tax, 2023 LiveLaw (SC) 451

Income Tax Act, 1961; Section 69A - Thief cannot be recognised as the owner of the property within the meaning of Section 69A. For Section 69A to apply, it is indispensable that the Assessing Officer must find that the articles/ goods enumerated and covered under Section 69A, are owned by the assessee. A person may own contraband or prohibited articles and still be within the embrace of Section 69A. However, without finding ownership, or in a case where it is obvious that someone else is the owner, a person who is found to be in illegal possession of goods cannot be said to be the owner under Section 69A. D.N. Singh v. Commissioner of Income Tax, 2023 LiveLaw (SC) 451

Income Tax Act, 1961; Section 80-IB - Assessee is not entitled to deduction under Section 80- IB of the Act on the amount received / profit derived from the Duty Entitlement Pass Book Scheme (DEPB) and the Duty Drawback Schemes. The bench held that the profit from the DEPB and the Duty Drawback claims cannot be said to be an income “derived from” the industrial undertaking. The court added that even otherwise, such an income is chargeable to tax as per Sections 28(iiid) and (iiie) of the Income Tax Act. Saraf Exports v. Commissioner of Income Tax, Jaipur-III, 2023 LiveLaw (SC) 299

Income Tax Act, 1961; Sections 147, 148 - In case of completed/ unabated assessment, if no incriminating material is found during the search, the only remedy available to the revenue department would be to initiate the reassessment proceedings under Sections 147/148, subject to fulfilment of the specified conditions. Principal Commissioner of Income Tax v. Abhisar Buildwell P. Ltd; 2023 LiveLaw (SC) 346 : (2024) 2 SCC 433

Income Tax Act, 1961; Sections 148 and 148A - Writ petition can be entertained to examine if conditions for issuance of notice under Section 148 have been satisfied. Red Chilli International Sales v. ITO, 2023 LiveLaw (SC) 16

Income Tax Act, 1961 - If an Indian Entity's Establishment is operating in Oman and has a 'Permanent Establishment' (PE) status under Double Taxation Avoidance Agreement (“DTAA”), then the dividend income received by the Indian Entity from such Establishment would not be taxable under Indian Taxation laws. (Para 16 - 18) Principal Commissioner of Income Tax v. Krishak Bharti Cooperative Ltd., 2023 LiveLaw (SC) 802

Income Tax Act, 1961; Sections 245C, 245D, 245H, 271 (1)(c) - Section 245H of the Act, which empowers the Settlement Commission to grant immunity from prosecution and penalty to the assessee if he has co-operated with the Settlement Commission and has made “full and true disclosure of his income”, cannot be saddled with an artificial requirement that the material “disclosed” by the assessee before the Commission must be something apart from what was “discovered” by the Assessing Officer. (Para 7) Kotak Mahindra Bank Ltd. v. Commissioner of Income Tax Bangalore, 2023 LiveLaw (SC) 822

Income Tax Act 1961 - Settlement Commission - there is a real object and purpose of setting up of the Settlement Commission as an Assessee, who is given an opportunity to disclose the undisclosed income in order to seek benefit in the form of immunity from penalty and prosecution. Shree Nilkanth Developers v. Principal Commissioner of Income Tax, 2023 LiveLaw (SC) 648

Income Tax Act, 1961; Section 2 (24) - Interest income earned on fixed deposits made in the banks by Clubs has to be treated like any other income from other sources within the meaning of Section 2(24). The principle of mutuality would not apply to interest income earned on fixed deposits made by Clubs in the banks irrespective of whether the banks are corporate members of the club or not. Dismissed the plea that the judgement in Bangalore Club vs. Commissioner of Income Tax, (2013) 5 SCC 509 is not a binding precedent and therefore the same calls for reconsideration. (Para 43) Secunderabad Club v. CIT, 2023 LiveLaw (SC) 660

Income Tax Act, 1961; Sections 132, 132A, 147, 148, 153A - In view of the judgment of the Supreme court in Principal Commissioner of Income Tax vs. Abhisar Buildwell Pvt. Ltd., [(2023) SCC Online SC 481], an Assessing Officer (AO) cannot make additions to assessee's income in respect of completed / unabated assessments if no incriminating material has been found during the course of search under Section 132 or requisition under Section 132A of the Income Tax Act, 1961. However, in terms of the said judgment, the completed / unabated assessments can be re-opened by the AO in exercise of powers under Sections 147/148 of the Act, subject to fulfilment of the conditions mentioned under the said provisions - Therefore, AO's powers under Sections 147/148 of the Income Tax Act were saved in terms of Supreme Court's judgment in Abhisar Buildwell (2023). Principal Commissioner of Income Tax vs King Buildcon Pvt. Ltd., 2023 LiveLaw (SC) 532 : (2024) 2 SCC 465

Income Tax Act 1961 - Section 153C allows the revenue department to proceed against a party other than the person who is being searched, if incriminating articles against the "other person" is found during the search. So, if any books of accounts or documents which belonged a person other than the person who is being searched is discovered during the search proceedings, Section 153C enabled the department to proceed against the "other person" if the materials indicated undisclosed income or assets. (Para 7) Commissioner of Income Tax 14 v. Jasjit Singh, 2023 LiveLaw (SC) 878

Income Tax Act 1961 - Under Section 153C, a third party would only have to furnish income tax returns of preceding six years, starting from the date when the Assessing Officer assigns the third party's documents to the concerned Assessing Officer and not from the date of the original search. Section 153C does not contemplate calculation of six years period from date of search and seizure, as any delay caused by Assessing Officer in assigning documents to concerned Assessing Officer would obligate the third party to preserve the records of more than six preceding years. (Para 10) Commissioner of Income Tax 14 v. Jasjit Singh, 2023 LiveLaw (SC) 878

Part 10: The Complete Supreme Court Annual Digest- 2023 [Part-X]