• SERVICE LAWS

Chandi Prasad Uniyal and Ors. Vs. State of Uttarakhand and Ors (Decided on 17.08.2012) MANU/SC/0656/2012

Held, In the instant case, Court was concerned with the excess payment of public money which was often described as "tax payers money" which belonged neither to the officers who had effected over-payment nor that of the recipients. Possibly, effecting excess payment of public money by Government officers, might be due to various reasons like negligence, carelessness, collusion, favouritism because money in such situation did not belong to the payer or the payee. Further situations might also arise where both the payer and the payee were at fault, then the mistake was mutual. Payments were being effected in many situations without any authority of law and payments had been received by the recipients also without any authority of law. Therefore, any amount paid/received without authority of law could always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implied an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment. Hence, the excess payment made due to wrong/irregular pay fixation could always be recovered.

Held, In the instant case, Single Judge of the High Court examined the administrative decision of the Full Court recommending Government to compulsory retire the Appellant as if he was sitting as an Appellate Authority to consider the correctness of such recommendation by going into sufficiency and adequacy of the materials which led the Full Court in reaching its satisfaction. The whole approach of the Single Judge in consideration of the matter was flawed and not legally proper. Therefore, Single Judge did not keep the scope of judicial review in view while examining the validity of the order of compulsory retirement. The Division Bench of the High Court in the intra-court appeal was, thus, fully justified in setting aside the impugned order.

• CIVIL LAWS

Held, Court was inclined to accept submissions of Petitioner's Counsel as far as the provisions of Order 2 Rule 2 CPC were concerned. Order 2 deals with the frame of suits and the various rules contained therein also refer to suits for obtaining the reliefs of a civil nature. On the other hand, a proceeding under Sections 433, 434 and 439 of the Companies Act, 1956, was not a suit, but a Petition, which did not attract the provisions of Order 2 Rule 2 CPC, which deals with suits. Therefore, findings of the Single Judge, as also the Division Bench, in regard to the application of the provisions of Order 2 Rule 2 CPC to a winding-up proceeding under the Companies Act that might be filed for recovery of the dues payable by the Respondent o the Appellant were set aside.

• DIRECT TAXATION LAWS

Maintainability of Special Leave Petition challenging observations of the Authority for Advance Rulings was under consideration in the instant situation- Whether an advance ruling of Authority can only be challenged under Article 136 of the Constitution and not under Articles 226 and or 227 of the Constitution before the High Court

Held, This Court held that they had considered the observations of the Authority for Advance Rulings (AAR) but they could not hold that an advance ruling of the Authority can only be challenged under Article 136 of the Constitution before this Court and not under Articles 226 and or 227 of the Constitution before the High Court. In L. Chandra Kumar v. Union of India and Others , a Constitution Bench of this Court has held that the power vested in the High Courts to exercise judicial superintendence over the decisions of all courts and tribunals within their respective jurisdictions is part of the basic structure of the Constitution. Therefore, to hold that an advance ruling of the Authority should not be permitted to be challenged before the High Court under Articles 226 and/or 227 of the Constitution would amount to going against a part of the basic structure of the Constitution. Nonetheless, Court also held that it understood the apprehension of the AAR that a writ Petition may remain pending in the High Court for years, first before a Single Judge and thereafter in Letters Patent Appeal before the Division Bench and as a result the object of Chapter XIX-B of the Income Tax Act, 1961 which is to enable an Applicant to get an advance ruling in respect of a transaction expeditiously would be defeated. Hence, when an advance ruling of the Authority was challenged before the High Court under Articles 226 and/or 227 of the Constitution, the same should be heard directly by a Division Bench of the High Court and decided as expeditiously as possible. Special Leave Petition disposed of.

• CRIMINAL LAWS

Held, Court observed that the principle mentioned by this Court in Alister Anthony Pareira indicated that the person must be presumed to have had the knowledge that, his act of driving the vehicle without a licence in a high speed after consuming liquor beyond the permissible limit, is likely or sufficient in the ordinary course of nature to cause death of the pedestrians on the road. Therefore, in this Court's view the decision of Alister Anthony Pareira called for no reconsideration. Assuming that Appellant's Counsel was right in contending that while he was driving the vehicle in a drunken state, he had no intention or knowledge that his action was likely to cause death of six human beings,at least, immediately after having hit so many human beings and the bodies scattered around, he had the knowledge that his action was likely to cause death of so many human beings, lying on the road unattended. To say, still he had no knowledge about his action was too childish which no reasonable man could accept as worthy of consideration. In present case, it had been brought out in evidence that the Accused was in an inebriated state, after consuming excessive alcohol, he was driving the vehicle without licence, in a rash and negligent manner in a high speed which resulted in the death of six persons. The Accused had sufficient knowledge that his action was likely to cause death and such an action would, in the facts and circumstances of this case fall under Section 304(II) of the Indian Penal Code and the trial Court had rightly held so and the High Court had committed an error in converting the offence to Section 304A of the Indian Penal Code.

• CONSTITUTIONAL LAWS

Held, This Court was not persuaded by the submission of Petitioner's Counsel. Although the disposal of writ Petition in S.N. Pandey v. Union of India was in limine and the order was brief but the Court disposed of the same on merits. In B. Prabhakar Rao v. State of Andhra Pradesh and Ors., Justice Chinnappa Reddy,did observe in para 22 that the dismissal in limine of a writ Petition could not possibly bar the subsequent writ petitions but at the same time he also observed that such a dismissal in limine might inhibit the discretion of the Court. Justice Khalid in his supplementing judgment in para 27(6) exposited the position that normally this Court would be disinclined to entertain or to hear petitions raising identical points again where on an earlier occasion, the matter was heard and dismissed. Not that this Court had no jurisdiction to entertain such matters, but would normally exercise its discretion against it. Hence, this Court was in complete agreement with the view of Justice Khalid. It was against public policy and well defined principles of judicial discretion to entertain or hear petitions relating to same subject matter where the matter was heard and dismissed on an earlier occasion.

• SERIVICE LAWS

Held, Applying the principle of law laid down in Supreme Court Employees Welfare Association vs. Union of India to the present case, it was found that the terms and conditions of service of the officers and men in GREF directly recruited or taken on deputation were in less favourable than those of army personnel, then Central Government might well consider the advisability of taking steps to remove such disparity. This Court could not further compel the Central Government to frame the policy or proceed to insist the removal of such disparity as it was a matter of policy decision due to the reason that the existing conditions of services of GREF personnel appointed directly was of civil servants and army personnel deputed in GREF operate differently. Hence, the writ Petition filed was dismissed.

• COMPANY LAWS

Held, This Court observed that Single Judge had correctly appreciated the factual position as well as the law. The court concluded that there was no provision for charging stamp duty on the increase in the authorized share capital. Further, statute authorizing levy of stamp duty was in the nature of fiscal statute in as much as it provided for involuntary exaction of money and this could not be done except by law provided under Article 265 of Constitution. Provisions of a fiscal statute admitted of strict construction and in the absence of an express provision, it would not be possible to sustain the impugned demand. On close-examination of Form No.5, it was found that Form itself at the end specifically mentioned that provisions of Stamp Act was applicable for original share capital and not for the increased share capital. Hence, Appeal dismissed

• EDUCATION LAWS

Held, In the instant case, Court observed that Petitioner, on the basis of the clear requirement of eligibility would not have been entitled to pursue the LL.B. degree course on the date on which he applied for admission. The college which was affiliated to the Respondent University granted admission, but before the University could allowed a student to appear at the examination, it was entitled to determine as to whether the student met the requirement of eligibility. Moreover, it would not be open to this Court in the exercise of the jurisdiction to issue any direction contrary to the statutory requirements, which held the field. However, having regard to the fact that the Petitioner had completed his M.A. degree examination, Court was of the view that it would be in the interests of justice if the Concerned Authority was directed to consider as to whether the Petitioner could be given due credit for the first year of the LL.B. degree examination which he had already passed. If a relaxation of that nature could be granted in accordance with the provisions of law, the Concerned Authority might take a considered decision in the matter after furnishing to the Petitioner a brief opportunity of placing such material or submissions. In the event that the Petitioner was held eligible to seek admission to the second year of the LL.B. degree course, the Respondent University would issue necessary directions to the college in that regard. Petition disposed of.

• CONSTITUTIONAL LAWS

Held, In the present case, the Hindi version of the Bill (Central Excise Tariff Act, 1985) presented before the Lok Sabha contained the correct rate of 15%. The printed version in English and Hindi of the Bills passed by Lok Sabha forwarded to Rajya Sabha contained the correct rate of 15%. Moreover, assent of the President of India had been received to the Bill which contained the rate of 15%. Failure to obtain sanction of the Speaker under Rule 95 of the Rules of Procedure in the facts of this case was thus only a procedural defect. There was no illegality attached to it. At highest, there was an irregularity of the procedure. Therefore, bar of Article 122(1) of the Constitution of India would be squarely attracted in the present case.

• DIRECT TAXATION LAWS

Commissioner of Income Tax Vs. M/s. Sheth Developers (P) Ltd. (Decided on 27.07.2012) MANU/MH/1151/2012

Held, In the present case undisclosed income found in the form of cash was explained as having been acquired while carrying on business as a builder and this explanation was accepted by the Assessing Officer by having assessed the undisclosed income for the block period as income from profits and gains of business or profession. Therefore, the reliance by the Revenue upon the decision of the Gujrat High Court in the matter of Fakir Mohmed Haji Hasan v.Commissioner of Income Tax was not correct as the facts of that case were completely distinguishable from the present facts. In the present case, no question of application of Sections 68,69 and 69A, 69B and 69C of the Income Tax Act,1961 arises as the same had not been invoked by the Department. It is an admitted position between the parties as reflected even in the order the Assessing Officer that undisclosed income was in fact received by the Respondent in the course of carrying out its business activities as a builder. The same was returned by the Respondent as income arising from profits and gains of business or profession and the same was accepted by the Department. Appeal dismissed

• CAPITAL MARKET LAWS

Held, In the instant case, the Adjudicating Officer/Concerned Authority had failed to consider the mitigating factors and had imposed maximum penalty that could have been imposed under the law. The Adjudicating Officer had specifically recorded that the price of acquisition was above the prevailing market price and, therefore, it could not be concluded that the Appellant had made any unfair gain. He had also stated that the loss to the investors was a notional loss and not the actual loss. If the Competent Authority deemed that non-compliance on the part of Appellant would lead to loss to the investors, it could have very well issued a direction to the Appellant to come out with an open offer as stipulated by Regulation 11(1) of the Takeover Code. There was nothing on record to show that any such step was taken by the Competent Authority and that itself had chosen not to issue any direction to the acquirer to come out with a public offer under Section 11(1) but decided to initiate adjudication proceedings and levied penalty. Further after consideration of the relevant mitigating factors ends of justice would be met by reducing the penalty imposed.

Held, Court was not satisfied with the explanation since the details would not indicate that there was sufficient cause to condone the delay. Impugned order was passed on 13.5.2010, therefore the Applicant/Appellant must have filed Appeal immediately within 45 days from the said date. On the other hand, he wanted to await the outcome of the similar petitions filed before the Concerned Authority and the application was decided on 10.8.2010. Even thereafter, he would have filed the Appeal. He did not do so. Merely because an Appeal was pending against the other order, he wanted to wait to know about the result of the said Appeal in the Tribunal. Even after this, the Applicant had not chosen to file an Appeal after coming to know of the outcome in the Appeal. On the other hand, the Applicant chose to file the review before the State Commission and the same was dismissed on 16.4.2012. Hence, it was clear from the aforesaid facts and circumstances that the Applicant was not diligent enough to pursue the proceedings by filing an Appeal in time. Mere explanation that he was acting under the wrong advice of the Counsel would not suffice to conclude that the Applicant was bona-fide. Therefore, Application dismissed.

• DIRECT TAXATION LAWS

Held, In the instant case, the Assessing Officer (AO) had asked the Assessee to furnish the relevant details. Further, the AO had also directed the Assessee to produce some of the creditors before him for examination. However, it was noticed that the Assessee did not furnish the details as called for by the AO, instead, it had filed a list of sundry creditors in a tabulated form containing the details of opening balance, total receipts and payments and the closing balance. At the same time, this Tribunal was also unable to agree with the view of the Tax Authorities that the non-compliance of the directions of the AO would automatically render the sundry creditors as bogus. Hence, it could be concluded that the impugned issue had not been properly adjudicated by the AO. Accordingly, in the interest of natural justice, the Assessee might be given one more opportunity to file the necessary details before the AO in order to prove the genuineness of the sundry creditors. Accordingly, order of the Commissioner of Income Tax (Appeals) was set aside and matter was remitted to the file of the AO. Appeal by Assessee allowed.