Bombay High Court Monthly Digest: September 2023 [Citations 400 – 463]
Amisha Shrivastava
7 Oct 2023 6:10 AM GMT
![Bombay High Court Monthly Digest: September 2023 [Citations 400 – 463]](https://www.livelaw.in/h-upload/2023/10/07/750x450_496835-bombay-high-court-monthly-digest-september-2023.webp "Bombay High Court Monthly Digest: September 2023 [Citations 400 – 463]")
Nominal IndexARG Outlier Media Private Limited v. Rayadu Vision Media Limited 2023 LiveLaw (Bom) 400Commissioner, Kolhapur Mahanagarpalika v. Shashikala Vijay Bhore 2023 LiveLaw (Bom) 401Sanjay Katkar v. State of Maharashtra 2023 LiveLaw (Bom) 402The Indian Hume Pipe Co. Ltd. v. Commissioner of Income Tax 2023 LiveLaw (Bom) 403Dattaprasad Kamat v. Assistant Commissioner Of Income Tax 2023...
Nominal Index
ARG Outlier Media Private Limited v. Rayadu Vision Media Limited 2023 LiveLaw (Bom) 400
Commissioner, Kolhapur Mahanagarpalika v. Shashikala Vijay Bhore 2023 LiveLaw (Bom) 401
Sanjay Katkar v. State of Maharashtra 2023 LiveLaw (Bom) 402
The Indian Hume Pipe Co. Ltd. v. Commissioner of Income Tax 2023 LiveLaw (Bom) 403
Dattaprasad Kamat v. Assistant Commissioner Of Income Tax 2023 LiveLaw (Bom) 404
Ajay Uddhav Narhe & Anr. v. Uttam Patil, Deputy Collector (Rehabilitation) & Ors. 2023 LiveLaw (Bom) 405
22Light v. OESPL Pvt Ltd. 2023 LiveLaw (Bom) 406
Memon Co-operative Bank Ltd. v. Prema Amarlal Gera & Anr. 2023 LiveLaw (Bom) 407
Uday Chari v. State of Goa and Ors. 2023 LiveLaw (Bom) 408
Oberoi Mega Entertainment LLP and Anr. v. Sanjay Saha and Ors. 2023 LiveLaw (Bom) 409
Ashok Commercial Enterprises v. Assistant Commissioner of Income Taxation 2023 LiveLaw (Bom) 410
Deepak Jagdev v. Eknath Shinde and Anr. 2023 LiveLaw (Bom) 411
Sachin D. Basare v. State of Maharashtra and Ors. 2023 LiveLaw (Bom) 412
Ajay Uddhav Narhe & Anr. v. Uttam Patil, Deputy Collector (Rehabilitation) & Ors. 2023 LiveLaw (Bom) 413
Darshana Anand Damle v. DCIT 2023 LiveLaw (Bom) 414
Shreeji Realty v. Brihanmumbai Municipal Corporation and Ors. 2023 LiveLaw (Bom) 415
ABC v. XYZ 2023 LiveLaw (Bom) 416
ABC v. XYZ 2023 LiveLaw (Bom) 417
Rajendrakumar Vishwanath Trivedi v. Union of India & Ors. 2023 LiveLaw (Bom) 418
Chanda Ram Shivsharan v. State of Maharashtra 2023 LiveLaw (Bom) 419
Nisargadeep Shikshan Prasarak Mandal v. State of Maharashtra 2023 LiveLaw (Bom) 420
Zee Entertainment Enterprises Limited v. Triller Inc. 2023 LiveLaw (Bom) 421
Rashmi Shukla v. State of Maharashtra 2023 LiveLaw (Bom) 422
Ravindra Waikar v. State of Maharashtra 2023 LiveLaw (Bom) 423
Sonali Ashok Tandle v. Ranka Lifestyle Ventures and Ors. 2023 LiveLaw (Bom) 424
Grasim Industries Ltd. v. Assistant Commissioner of Income Tax 2023 LiveLaw (Bom) 425
Siemens Financial Services Pvt Ltd. v. Deputy Commissioner of Income Tax 2023 LiveLaw (Bom) 426
Iqra Maqsood Ahmed Ansari v. State of Maharashtra and Ors. 2023 LiveLaw (Bom) 427
Union of India and Anr. v. Umraobi W/o Saiyed Munir and Ors. 2023 LiveLaw (Bom) 428
Shri Durga Parmeshwari Seva Mandal & Ors. v. Municipal Corporation of Greater Mumbai & Ors. 2023 LiveLaw (Bom) 429
Ashwin Bharat Khater v. Urvashi Bharat Khater 2023 LiveLaw (Bom) 430
ABC v. XYZ 2023 LiveLaw (Bom) 431
Rodu Bhaga Wagh v. State of Maharashtra & Anr. 2023 LiveLaw (Bom) 432
Govandi New Sangam Welfare Society v. State of Maharashtra & Ors. 2023 LiveLaw (Bom) 433
Anupam Mittal v. People Interactive (India) Pvt. Ltd. and Ors. 2023 LiveLaw (Bom) 434
Registrar Judicial, High Court of Bombay Bench at Aurangabad v. State of Maharashtra and Ors. 2023 LiveLaw (Bom) 435
ABC v. XYZ 2023 LiveLaw (Bom) 436
Faizal Hasamali Mirza @ Kasib v. State of Maharashtra 2023 LiveLaw (Bom) 437
ABC v. XYZ 2023 LiveLaw (Bom) 438
State of Maharashtra v. Baburao Ukandu Sangerao 2023 LiveLaw (Bom) 439
M v. Navi Municipal Corporation and Anr. 2023 LiveLaw (Bom) 440
Suresh Kevalram Khemani & Ors. v. Central Bureau of Investigation, Economic Offences Unit-I (Eo-1) & Ors. 2023 LiveLaw (Bom) 441
Eversmile Construction Company Pvt Ltd & Anr. v. Municipal Corporation of Greater Mumbai & Ors. 2023 LiveLaw (Bom) 442
Undercarriage and Tractor Parts Pvt. Ltd. v. DRP 2023 LiveLaw (Bom) 443
G. Chandrashekharan Shivam And Ors. v. Rajkumar Agarwal & Ors. 2023 LiveLaw (Bom) 444
Shivraj Gorakh Satpute v. State of Maharashtra 2023 LiveLaw (Bom) 445
Ashraf Chitalwala v. DCIT 2023 LiveLaw (Bom) 446
Poonam Basak v. Union of India & Ors. 2023 LiveLaw (Bom) 447
Navigns Studios Pvt. Ltd. v. Sameer Pandharinath Khandekar and Ors. 2023 LiveLaw (Bom) 448
South Port Limited v. State of Goa 2023 LiveLaw (Bom) 449
Mehul Choksi v. State of Maharashtra and Anr. 2023 LiveLaw (Bom) 450
Mahesh Sitaram Raut v. National Investigation Agency 2023 LiveLaw (Bom) 451
Hemant Dinkar Kandlur v. Commissioner of Income Tax 2023 LiveLaw (Bom) 452
Milind Dashrath Narvekar v. State of Maharashtra and Ors. 2023 LiveLaw (Bom) 453
Jigna Jitendra Vora v. State of Maharashtra & Ors. 2023 LiveLaw (Bom) 454
Shriram General Insurance Co. Ltd v. Sou. Jyoti Vithoba Nahire 2023 LiveLaw (Bom) 455
Pragati Pre Fab India Pvt. Ltd. Versus PCIT 2023 LiveLaw (Bom) 456
ABC v. XYZ 2023 LiveLaw (Bom) 457
SNV Aviation Pvt. Ltd. v. Capt. Gareema Kumar 2023 LiveLaw (Bom) 458
John Cockerill India Limited v. Sanjay Kamalakar Navare 2023 LiveLaw (Bom) 459
Shishirkumar Gopalchandra Padhy v. State of Maharashtra 2023 LiveLaw (Bom) 460
Guljama Shah Jahir Shah v. Shri Sadguru Kaka Stone Crusher 2023 LiveLaw (Bom) 461
Manoj Agarwal and Anr. v. Fashion TV Ltd. 2023 LiveLaw (Bom) 462
ABC v. State of Maharashtra 2023 LiveLaw (Bom) 463
Reports/Judgments
'R. Logo': Bombay High Court Denies Interim Relief To Republic TV In Trademark Infringement Suit Against Rayudu Media
Case Title: ARG Outlier Media Private Limited v. Rayadu Vision Media Limited
Citation: 2023 LiveLaw (Bom) 400
The Bombay High Court refused interim relief to ARG Outlier Media Private Limited – owner of Republic TV - in a trademark infringement suit against Telangana based Rayudu media over its logo.
Justice Manish Pitale dismissed the interim application filed by ARG against using the logo.
Case Title: Commissioner, Kolhapur Mahanagarpalika v. Shashikala Vijay Bhore
Citation: 2023 LiveLaw (Bom) 401
The Bombay High Court recently imposed cost of Rs. 25,000/- on the Kolhapur Municipal Corporation for making a 73-year-old retired staff nurse to litigate for 15 years for her pension and pensionary benefits.
Justice Sandeep V Marne dismissed a writ petition filed by the Commissioner of Kolhapur Municipal Corporation challenging Industrial Court’s order to deposit the pension amount due to Shashikala Vijay Bhore, a staff nurse who retired in 2008.
The court held that since Bhore's dismissal was overturned, once she retired, she became entitled to pension and pensionary benefits under the Pension Rules. The court noted that Item 9 of the Schedule IV to the MRTU and PULP Act enlists unfair labour practice of failure to implement an award. Once Labour court passed an order setting aside her termination, the Municipal Corporation should have granted her pension and other pensionary benefits, the court reasoned. In that sense, the non-payment of pension would be covered by Item 9, the court said.
Case Title: Sanjay Katkar v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 402
The Bombay High Court has ruled that the protection to members of Scheduled Castes or Scheduled Tribes (SC/ST) under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act (Atrocities Act) can't be limited to states where they are officially recognized as such.
A Full Bench of Justice Revati Mohite Dere, Justice Bharati Dangre, and Justice NJ Jamadar held that even if a community isn’t recognized as SC or ST in a state, they still get the protection of the Act if an atrocity happens against them there
The court further ruled that, to avoid discrepancies, appeals against trial court orders under the Atrocities Act, regardless of the specified punishment, should be dealt by a single judge of the High Court. The court held that appeals against grant/refusal of bail under by Section 14A(2) of the Act should also be heard by a single judge of the High Court.
Case Title: The Indian Hume Pipe Co. Ltd. v. Commissioner of Income Tax
Citation: 2023 LiveLaw (Bom) 403
The Bombay High Court has held that the Assessing Officer (AO) was not justified in disallowing part of the commission payment to Indian Hume Pipe.
The bench of Justice G.S. Kulkarni and Justice Jitendra Jain has observed that the mere fact that the assessee, Indian Hume Pipe, establishes the existence of an agreement between him and his agent and the fact of actual payment leaves it to the discretion of an officer to consider whether such expenditure was made exclusively for the purpose of the business. The expenditure incurred must be for commercial expediency. However, in applying the test of commercial expediency for determining whether an expenditure was wholly and exclusively laid out for the purpose of the business, the reasonableness of the expenditure has to be adjudged from the businessman's point of view and not from the department’s perspective.
Case Title: Dattaprasad Kamat v. Assistant Commissioner Of Income Tax
Citation: 2023 LiveLaw (Bom) 404
The Bombay High Court has refused 50% entitlement to beneficial ownership in a husband's shareholding under the Portuguese Civil Code for 'deemed dividend' taxability.
The bench of Justice Valmiki SA Menezes has observed that Section 2(6A)(e) in the Income Tax Act, 1922, which is similar to the provisions of Section 2(22) of the Income Tax Act, 1961, creates a deeming fiction, by which the dividend referred to is not a real dividend and the person deemed to have received it does not actually get any income. The only person who is deemed to have received that income can be assessed in respect of the dividend, that person alone being a shareholder.
The court noted that the effect of clause (e) of Section 2(22) is to broaden the ambit of the expression "dividend" by including certain payments that the company has made as a loan or advance for the individual benefit of a shareholder, but the definition does not alter the position that the dividend has to be taxed in the hands of the shareholder alone.
'Contempt: Bombay High Court Sentences 5 State Govt Officers To Month-Long Civil Imprisonment, Questions Their Suitability As Public Officers
Case Title: Ajay Uddhav Narhe & Anr. v. Uttam Patil, Deputy Collector (Rehabilitation) & Ors.
Citation: 2023 LiveLaw (Bom) 405
The Bombay High Court came down heavily on five government officers and sentenced them to one-month civil imprisonment for contempt of court by repeatedly disobeying its orders.
A division bench of Justice GS Kulkarni and Justice Jitendra Jain was dealing with contempt petitions filed by project affected farmers regarding non-compliance of court’s order for allotment of land to them.
The court however, stayed the execution of the sentence till September 6, the next date of hearing.
Case Title: 22Light v. OESPL Pvt Ltd.
Citation: 2023 LiveLaw (Bom) 406
The High Court of Bombay held that despite the limited scope of judicial scrutiny under Section 11 of the A&C Act, the Court would refuse to appoint the arbitrator when on a prima facie scrutiny of the material on record, it can come to a conclusion that claims sought to be arbitrated are frivolous and meritless.
The bench of Justice Manish Pitale refused to appoint an arbitrator when the claims sought to be arbitrated by the petitioner were pre-mature as per the terms of the agreement
Case Title: Memon Co-operative Bank Ltd. v. Prema Amarlal Gera & Anr.
Citation: 2023 LiveLaw (Bom) 407
The Bombay High Court expressed displeasure over a lawyer blaming his junior for the dismissal of an appeal due to his missing a courtroom appearance.
“We find it most unfortunate that the Appellant’s Advocate on record has sought to lay the blame for non-appearance at the hands of a junior Advocate, who had infact enrolled as an Advocate less than two months before the date on which the said Appeal came to be dismissed”, the court remarked.
A division bench of Chief Justice Devendra Upadhyaya and Justice Arif Doctor directed the senior lawyer Jayesh Patel to gift the book ‘Working in a Democratic Constitution: The Indian Experience by Granville Austin’ to the junior advocate as a gesture of goodwill.
“it would be apposite that instead of granting costs in the conventional sense, that the learned Advocate on record for the Appellant gift a copy of ‘Working in a Democratic Constitution : The Indian Experience by Granville Austin’ to the learned junior Advocate, whose name finds mentioned in Paragraphs 6 and 7 of the Interim Application. This, in our view, would serve as a gesture of goodwill and erase any misunderstanding or ill will that may have occurred in the mind of learned junior Advocate”, the court said.
Case Title: Uday Chari v. State of Goa and Ors.
Citation: 2023 LiveLaw (Bom) 408
The Bombay High Court at Goa held that Christian members of a community listed the Goa State OBC list are not entitled to reservation benefits unless the state government specifically notifies the Christian members of the community to be included in the OBC list.
A division bench of Justice MS Sonak and Justice Bharat P Deshpande set aside the caste certificate of a Zilla Panchayat member observing that the notification for including Mesta community in the state OBC list does not include “Christian Mesta”, to which he belongs.
Case Title: Oberoi Mega Entertainment LLP and Anr. v. Sanjay Saha and Ors.
Citation: 2023 LiveLaw (Bom) 409
The Bombay High Court refused relief to actor-producer Vivek Oberoi seeking to stall the release of Nawazuddin Siddiqui starrer ‘Haddi.’ The movie will hit OTT screens on Thursday.
Justice Manish Pitale deprecated the petitioners for failing to approach the court earlier.
“As on today, this Court finds that the petitioners waited all along and when the movie was declared to be released on 07.09.2023 on the OTT platform of respondent Nos.4 and 5 (ZEE), they rushed to this Court seeking ad-interim relief for stay of release of the said movie.”
Case Title: Ashok Commercial Enterprises v. Assistant Commissioner of Income Taxation
Citation: 2023 LiveLaw (Bom) 410
The Bombay High Court held that a write-off of a bad debt cannot be held to be an asset under section 153A(1) of the Income Tax Act, 1961.
The bench of Justice K. R. Shriram and Justice Firdosh P. Pooniwalla has observed that since the write-off of bad debt cannot be held to be an asset, clause (a) of the 4th proviso to Section 153A(1) of the Act would bar any assessment that is proposed to be made for the Assessment Years 2011-2012, 2012-2013 and 2013-2014.
Case Title: Deepak Jagdev v. Eknath Shinde and Anr.
Citation: 2023 LiveLaw (Bom) 411
The Bombay High Court dismissed a PIL seeking probe against Chief Minister Eknath Shinde and others for allegedly spending "Rs. 10 crore or more" for holding Dussehra rally at the MMRDA grounds.
A division bench of Chief Justice Devendra Upadhyaya and Justice Arif S Doctor dismissed the PIL after the petitioner’s advocate Nitin Satpute failed to appear before the court on three occasions, including today.
Case Title: Sachin D. Basare v. State of Maharashtra and Ors.
Citation: 2023 LiveLaw (Bom) 412
The Bombay High Court asked the Maharashtra government to frame a comprehensive policy for public celebration of festivals in Mumbai taking into account the city's increasing population and the limited capacity of its public spaces.
A division bench of Justice Sunil B Shukre and Justice Firdosh P Pooniwalla opined that the current policy does not adequately consider the potential inconveniences and traffic congestion arising from public celebrations in Mumbai's streets and squares.
Bombay High Court Drops Contempt Proceedings After 5 State Govt Officers Tender Unconditional Apology
Case Title: Ajay Uddhav Narhe & Anr. v. Uttam Patil, Deputy Collector (Rehabilitation) & Ors.
Citation: 2023 LiveLaw (Bom) 413
The Bombay High Court dropped contempt proceedings against five state government officers after they tendered unconditional apologies to the court for not following its orders.
A division bench of Justice GS Kulkarni and Justice Jitendra Jain observed,
“considering the fact that the contemnors are Government officials and that their apology as tendered to the Court as informed to us is bonafide, heartfelt and real contrition, we accept such unconditional apology and the assurance as given by the contemnors, as an undertaking to the Court.”
Case Title: Darshana Anand Damle v. DCIT
Citation: 2023 LiveLaw (Bom) 414
The Bombay High Court quashed the reassessment notice and held that the granting of a licence for the purpose of development of the flats and selling the same could not be said to be granting possession.
The bench of Justice K. R. Shriram and Justice N.K. Gokhale relied on the decision of the Supreme Court in the case of Seshasayee Steels (P) Ltd. v. Assistant Commissioner of Income Tax VI(2), Chennai, in which it was held that the assessee had only granted a licence to a developer who entered into the assessee’s land for the purpose of development, and that did not amount to ‘allowing the possession of the land’ as contemplated under Section 53A of the Transfer of Property Act, 1882, and therefore Section 2(47)(v) of the Income Tax Act would not apply.
Case Title: Shreeji Realty v. Brihanmumbai Municipal Corporation and Ors.
Citation: 2023 LiveLaw (Bom) 415
The Bombay High Court recently quashed Brihanmumbai Municipal Corporation's (BMC) condition requiring a no-objection certificate (NOC) from the Mumbai Heritage Conservation Committee (MHCC) for the construction of a 69.90-meter-tall building in Mumbai’s Fort Heritage Precinct.
A division bench of Justice GS Patel and Justice Kamal Khata observed that no such condition was imposed by the BMC while granting permission for construction of a 60-meter-tall building opposite the concerned property.
The court said that this was a case under Article 14 of the Constitution, which mandates equality before the law and equal protection of laws. The court opined that Condition 38 in the IOD is contrary to Clause 9(D)(b) of the Regulation 52 of DCPR 2034 because that clause does not provide that MHCC NOC is mandatory. It only requires that guidelines may be taken into consideration, giving discretion to the Municipal Commissioner, the court noted.
Citation: 2023 LiveLaw (Bom) 416
Observing that a physically disabled person is not incapable of giving threats, the Bombay High Court refused to quash a domestic violence case against a disabled woman accused of abusing and threatening her daughter-in-law.
Justice RM Joshi of the Aurangabad bench observed that whether any domestic violence was caused is a matter of trial, but prima facie the complainant was subjected to domestic violence.
Citation: 2023 LiveLaw (Bom) 417
Noting a lacuna in the law for mentally retarded persons, the Bombay High Court extended the scope of Section 7 of the Guardians and Wards Act 1980 to allow guardianship of an adult suffering from mental retardation.
Justice Riyaz Chagla observed that provisions of the Mental Health Act, both the repealed and the existing Acts, did not cover mental retardation under the definition of mental illness.
The court noted the existing Mental Healthcare Act, 2017 unlike the repealed Act doesn’t have a provision for the District Court to appoint a suitable person as Guardian of a person suffering from mental illness and incapable of taking care of himself.
“Thus, in my view the only remedy available in such cases is for the Petitioner to apply under the Guardians and Wards Act, 1890 for the Petitioner to be appointed as Guardian of the person, despite he/she being a major, but suffering from mental retardation,” the bench said.
'Infructuous': PIL Challenging Appointment Of CBI Director Withdrawn From Bombay High Court
Case Title: Rajendrakumar Vishwanath Trivedi v. Union of India & Ors.
Citation: 2023 LiveLaw (Bom) 418
A PIL challenging the appointment of IPS officer Subodh Kumar Jaiswal as the Director of the Central Bureau of Investigation was withdrawn after the Bombay High Court was informed the officer’s term had ended rendering the PIL infructuous. The position is now held by IPS officer Praveen Sood.
A division bench comprising Chief Justice Devendra Kumar Upadhyay and Justice Arif Doctor dismissed the PIL as withdrawn.
Case Title: Chanda Ram Shivsharan v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 419
The Bombay High Court stayed the conviction of one Chanda Ram Shivsharan, a sweeper at Solapur Municipal Corporation in a dowry death case.
Justice MS Karnik, while staying her conviction for the death of her daughter-in-law, observed that she is a Class IV employee who is responsible for her two minor grandchildren.
“Though the Applicant is convicted, however considering the nature of the evidence against the Applicant, the delay in lodging of the FIR which is not satisfactorily explained, the fact that she is in employment as a Sweeper who has to provide for her grandchildren, are factors which have persuaded me to stay the conviction. This is a rare and an exceptional case where the facts are such that I am of the opinion that the conviction needs to be stayed”, the court held.
The court allowed Shivsharan’s interim application for stay on conviction in her appeal against conviction.
Case Title: Nisargadeep Shikshan Prasarak Mandal v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 420
The Bombay High Court upheld Marathwada University’s decision to withdraw the affiliation of Shri Tulja Bhavani Arts and Science College, Aurangabad, due to severe lack of academic and infrastructural facilities.
A division bench of Justice Mangesh S Patil and Justice Shailesh P Brahme at Aurangabad, in a writ petition against the university’s decision, observed that there were serious lapses in the college and the university had followed proper procedure for withdrawal of affiliation.
Case Title: Zee Entertainment Enterprises Limited v. Triller Inc.
Citation: 2023 LiveLaw (Bom) 421
The Bombay High Court directed video sharing platform Triller to pay unpaid dues of USD 300,000 (approximately Rs. 2,44,26,480) to Zee Entertainment Enterprises Limited for use of its copyrighted music.
Justice Kamal Khata in Zee's suit for recovery of the amount observed that Triller has a history of litigations in the United States and might attempt to dispose of its assets in India to evade its obligations.
Phone Tapping Case: Bombay High Court Quashes Two FIRs Against IPS Officer Rashmi Shukla
Case Title: Rashmi Shukla v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 422
The Bombay High Court quashed two FIRs against senior Indian Police Service (IPS) officer Rashmi Shukla accused of allegedly tapping politicians' phones between 2015- 2019 when the previous BJP led alliance was in power in the state.
Justices AS Gadkari and Sharmila Deshmukh quashed the FIRs after Advocate General Birendra Saraf informed the bench that Mumbai Police was refused sanction to prosecute Shukla under section 197 of the CrPC.
The FIR registered at Colaba police station, in Mumbai, was for allegedly tapping the phones of Shiv Sena leader Sanjay Raut and Nationalist Congress Party (NCP) leader Eknath Khadse.
Case Title: Ravindra Waikar v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 423
The Bombay High Court dismissed the petition filed by MLA Ravindra Waikar from Shiv Sena (Uddhav Balasaheb Thackeray) party regarding cancellation of permission granted to him and four others to build a luxury hotel in Mumbai.
The order was passed in chambers by a bench of Justice Sunil Shukre and Justice Rajesh Patil who observed that rules of natural justice were followed BMC issued a Waikar a notice and asked to clarify his position in writing before cancelling construction permission.
"We find that there are no malafides or any lapses on the part of the Corporation in taking the decision impugned in the present Petition," the order read. The court, however, stayed its order for four weeks to enable Waikar to approach the Supreme Court.
Time To Bury Pernicious Practice Of Submitting Information In 'Sealed Cover': Bombay High Court
Case Title: Sonali Ashok Tandle v. Ranka Lifestyle Ventures and Ors.
Citation: 2023 LiveLaw (Bom) 424
Taking a firm stance against practice of parties submitting information in sealed cover to the court, the Bombay High Court refused to accept Income Tax returns and financial statements of a developer in a sealed cover and directed it to file an affidavit for the same.
A division bench of Justice GS Patel and Justice Kamal Khata observed that no court shout permit a litigant to disadvantage the opposing party by submitting material in a sealed cover.
The court further said that filing information in sealed cover when the court has ordered the party to file an affidavit for the information will invite contempt proceedings.
Bombay High Court Directs Dept. To Refund TDS Amount Deposited By Assessee Under Protest
Case Title: Grasim Industries Ltd. v. Assistant Commissioner of Income Tax
Citation: 2023 LiveLaw (Bom) 425
The Bombay High Court, while invoking the doctrine of unjust enrichment, directed the department to refund the TDS amount deposited by the assessee under protest.
The bench of Justice K. R. Shriram and Justice N. K. Gokhale observed that technically, even though the amount deposited by the petitioner would be called ‘tax deductible at source’, what the petitioner paid was ‘an ad hoc amount, not technically a TDS amount’. Moreover, since it is also confirmed by the Court that the amount paid to Davy Mckee Corporation (DAVY) was not chargeable to tax in India, the departments’ insistence on the assessee paying that amount was not in accordance with the law, and the amount so paid over must be refunded to the assessee.
Bombay High Court Quashes Reassessment Notice Issued After 3 Years Without Proper Approval
Case Title: Siemens Financial Services Pvt Ltd. v. Deputy Commissioner of Income Tax
Citation: 2023 LiveLaw (Bom) 426
The Bombay High Court quashed the reassessment notice issued after 3 years without proper approval.
The bench of Justice K.R. Shriram and Justice N. K. Gokhale has observed that the approval of the specified authority in terms of Section 151(ii) of the Income Tax Act is a jurisdictional requirement, and in the absence of complying with this requirement, the reopening of assessment would fail.
Case Title: Iqra Maqsood Ahmed Ansari v. State of Maharashtra and Ors.
Citation: 2023 LiveLaw (Bom) 427
The Bombay High Court imposed cost of Rs. 3 Lakhs on the Chairperson and members of District Caste Certificate Scrutiny Committee, Mumbai Suburban for "extreme stress and inconvenience" caused to a student due to delay in issuance of her caste validity certificate.
A division bench of Justice Sunil B Shukre and Justice Firdosh P Pooniwalla held that the delay, solely attributable to the Scrutiny Committee, should not cause injustice to the student who couldn’t submit the certificate to the college authorities in time for her admission.
44 Years After Railway Accident, Bombay High Court Upholds ₹51K Compensation To Mother Of Deceased
Case Title: Union of India and Anr. v. Umraobi W/o Saiyed Munir and Ors.
Citation: 2023 LiveLaw (Bom) 428
The Bombay High Court upheld an award of compensation of Rs. 51,000 to the mother of a 24-year-old man who died in a railway accident 44 years ago involving the collision of a truck and a train engine.
Justice PK Chavan observed that the accident was caused due to the negligence of railway staff.
“It is clearly an act of negligence on the part of the employees of the appellants as it appears from the evidence that there was no proper communication between the switchman and the gateman as well as by the concerned Railway station. Had there been proper communication, there would have been an advance intimation to the gateman about passing of the engine”, the court observed.
Case Title: Shri Durga Parmeshwari Seva Mandal & Ors. v. Municipal Corporation of Greater Mumbai & Ors.
Citation: 2023 LiveLaw (Bom) 429
The Bombay High Court dismissed the plea filed by a former Nationalist Congress Party (NCP) corporator seeking to organise Ganpati immersion in a private artificial pond at a municipal garden at Ghatkopar.
A division bench of Justices GS Patel and Kamal Khata observed,
“No person, let alone a Mandal, has any fundamental — or any other — right to privately create an immersion pond in a public park maintained by the Municipal Corporation. That permission is required, and that this is in the discretion of the Municipal Corporation, is not just undeniable, but is not disputed.”
Case Title: Ashwin Bharat Khater v. Urvashi Bharat Khater
Citation: 2023 LiveLaw (Bom) 430
Observing that the denial of access to one's own house amounts to denial of basic amenities, the Bombay High Court upheld the Senior Citizens Maintenance Tribunal’s order revoking two gift deeds executed by an elderly woman in favour of her son and directed the son and daughter-in-law to vacate the subject property.
Justice Sandeep V Marne held so upon finding that the son had failed to perform his duty to provide basic amenities and physical needs to his widowed mother.
“The Gifts were executed out of natural love and affection towards son, which was the only possible consideration for execution thereof. Inbuilt in such love and affection is the duty of the son to provide basic amenities and physical needs to the widowed mother. The events that have occurred post execution of gift deeds so indicate that such love and affection between the Mother and son no longer exists. Along with love and affection, the son has perhaps failed to perform the duty of providing the basic amenities and physical needs to his mother. It was never son’s property. He had no right to seek gift thereof”, the court observed.
Citation: 2023 LiveLaw (Bom) 431
The Bombay High Court allowed a plea by the children of a former Attorney General and declared them as guardians of one of their siblings under Section 7 of the Guardian and Wards Act, 1890. The section was originally meant for guardianship of minors.
Justice Riyaz Chagla widened the scope of Section 7 of the Act to allow guardianship of an adult suffering from a mental handicap noting a lacuna in the existing Mental Healthcare Act.
Bombay High Court Criticises Trial Judge For Awarding Lesser Than Minimum Sentence To POCSO Convict
Case Title: Rodu Bhaga Wagh v. State of Maharashtra & Anr.
Citation: 2023 LiveLaw (Bom) 432
The Bombay High Court criticised a Special Judge under the Protection of Children from Sexual Offences Act (POCSO Act) for awarding 3-year imprisonment to a man convicted for attempting to rape a child, observing that the Act calls for a greater punishment.
Justice Bharati Dangre observed that the prosecution neither brought this to the notice of the trial court, nor is there any recommendation, made for filing of an appeal, on behalf of the state against lesser sentence.
It is not open to a Court to impose a punishment lesser than the minimum that is prescribed, the court said.
Set Up New Bio-Medical Waste Plant In Two Years Or Face Action: Bombay High Court Warns BMC
Case Title: Govandi New Sangam Welfare Society v. State of Maharashtra & Ors.
Citation: 2023 LiveLaw (Bom) 433
The Bombay High Court directed that work on a new facility to dispose of bio-medical waste should be commissioned within two years otherwise and all those involved will be held accountable for failure on their part.
According to the petition filed by Govandi New Sangam Welfare Society, the incinerator facility owned by SMS Enviroclean Pvt. Ltd is a cause of major pollution in Govandi, affecting the residents of the area.
“In view of the aforesaid, we direct that the new incinerator facility shall be commissioned within two years from today. All the authorities, including respondent no.5, shall be held accountable in case there is any lapse on their part in establishing the new incinerator facility within two years from today”, the court held
Case Title: Anupam Mittal v. People Interactive (India) Pvt. Ltd. and Ors.
Citation: 2023 LiveLaw (Bom) 434
The Bombay High Court temporarily stayed the enforcement of an anti-suit permanent injunction order issued by the Singapore High Court against Anupam Mittal, the founder and CEO of Shaadi.com.
The Singapore High Court order restrained Mittal from proceeding with his petition before the National Company Law Tribunal (NCLT) alleging oppression and mismanagement of People Interactive (India) Pvt. Ltd, the parent company of Shaadi.com.
Justice Manish Pitale observed that disputes regarding oppression and mismanagement are non-arbitrable in India and the principle of comity of courts cannot prevent a litigant from pursuing the only available legal remedy.
Case Title: Registrar Judicial, High Court of Bombay Bench at Aurangabad v. State of Maharashtra and Ors.
Citation: 2023 LiveLaw (Bom) 435
The Bombay High Court directed the District Collector, Aurangabad to provide proper boats with specialised operator, life jackets, and rescue air tubes to children rowing thermocol rafts with makeshift oars to cross backwaters of Jayakwadi dam and reach school.
A division bench of Justice Ravindra Ghuge and Justice YG Khobragade sitting at Aurangabad recommended having at least two boats to operate in multiple shifts, enabling 24/7 access to transportation.
Citation: 2023 LiveLaw (Bom) 436
A family’s social strata would be a relevant consideration in deciding divorce cases on grounds of “cruelty”, the Bombay High Court held.
Two years of marriage and 14 years of separation later the High Court granted a businessman divorce from his wife on grounds of ‘cruelty’ but upheld maintenance granted to the woman.
A division bench of Justices Nitin Sambre and Sharmila Deshmukh observed,
“While considering the conduct of the Respondent in context of ‘cruelty’ as contemplated under the provisions of Section 13 (1)(i-a) of the Hindu Marriage Act, 1955, the strata of the society to which the Petitioner belongs will also be relevant.”
Case Title: Faizal Hasamali Mirza @ Kasib v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 437
The Bombay High Court held that an appeal against a trial court’s order can be entertained by the appellate court even after the lapse of statutory period of 90 days under Section 21(5) of the National Investigating Agency(NIA) Act, 2008.
The division bench of Justices Revati Mohite Dere and Gauri Godse read down the 2nd proviso to Section 21 (5) of the NIA Act and allowed an application filed by a terror accused seeking to condone the delay of 838 days in filing his bail appeal in HC.
“Courts exist to do justice. Access to justice is a fundamental right and cannot be diluted. If despite ‘sufficient cause’ being shown, if an appeal under Section 21(5), 2nd proviso cannot be entertained, this would lead to depriving an accused of his fundamental right guaranteed to him under Article 21 of the Constitution.”
“If the provision were to be held mandatory…the doors of justice will be shut, leading to travesty of justice, which cannot be permitted by Courts of Law,” the court added
Citation: 2023 LiveLaw (Bom) 438
The Bombay High Court granted the custody of a three-year-old boy, who is a US citizen by birth, to his United States-based father seeking the return of his child to the US in a habeas corpus writ petition.
A division bench of Justice Revati Mohite Dere and Justice Gauri Godse held that the mother’s unilateral refusal to return the child to US without a valid or justifiable reason amounted to illegally detaining the child.
Bombay High Court Commutes Man’s Death Sentence To 25 Yrs Imprisonment For Rape, Murder Of 6-Yr-Old
Case Title: State of Maharashtra v. Baburao Ukandu Sangerao
Citation: 2023 LiveLaw (Bom) 439
The Bombay High Court commuted the death sentence to 25-year fixed-term imprisonment for a 36 years old labour, convicted for raping and murdering a six-year-old child.
The division bench of Justice Vibha Kankanwadi and Justice Abhay S Waghwase observed that the trial court did not consider mitigating factors, including the convict's background and the absence of any prior criminal record while awarding the death penalty.
The court emphasised that the trial court must consider whether life imprisonment is unquestionably ruled out and must provide "special reasons" specific to the case for award of death penalty. However, in the present case, the trial court neither considered alternate sentence nor assigned any special reason for the death sentence, the court observed.
Case Title: M v. Navi Municipal Corporation and Anr.
Citation: 2023 LiveLaw (Bom) 440
Expressing surprise at the Navi Mumbai Municipal Corporation’s unwillingness to correct the father’s name on the birth certificate of a 3-year-old, the Bombay High Court directed the Municipal body to immediately replace the woman’s ex-husband’s name with the child’s biological father’s name on the birth certificate.
“We confess we are unable to understand the approach of the Municipal Corporation and, for that matter, that of the JMFC,” Justice GS Patel and Kamal Khata observed regarding the mother’s failed attempts before the NMMC and magistrate.
Supreme Court in ABC v. State (NCT of Delhi) said that whenever a single parent or an unwed mother applies for a birth certificate the only requirement should be that she should furnish an affidavit to that effect. The corrected birth certificate must then be issued.
The High Court observed these case laws couldn’t have been overlooked by the NMMC and JMFC. “This is the binding law declared by the Supreme Court and the Bombay High Court. The Municipal Corporation is not at liberty to say “there is no law.” There is indeed a law.”, said the court
Bombay High Court Judge Recuses After Receiving Letter Alleging Bias, Orders CBI To Probe Sender
Case Title: Suresh Kevalram Khemani & Ors. v. Central Bureau of Investigation, Economic Offences Unit-I (Eo-1) & Ors.
Citation: 2023 LiveLaw (Bom) 441
Justice Bharati Dangre of the Bombay High Court recused from hearing a criminal revision application after she received a letter alleging bias but assigned reasons for her recusal and urged CBI action in a strongly worded order.
“It was open for me to recuse, without disclosing the reason, but it is high time that some accountability is attributed to the disgruntled elements, who continue to haunt the system by their unscrupulous acts and walk away, without waiting for consequences of their intimidating action, once the Judge recuse from the matter and it is time to show that the system to continue it’s unfinching loyalty to ‘Justice’.”
The judge took the letter on the record, ordered a copy to be sent to the Registrar and further urged the CBI to take cognisance of this “judicial impropriety” and conduct and an inquiry into the incident.
The judge noted that it wasn’t the first time “communications casting aspersions” have been addressed to the “dispensers of justice.” However, it was necessary to show people using such intimidation tactics that the system continues its unflinching loyalty to ‘Justice.’
Private Property Cannot Be Taken Away For Public Purpose Without Compensation: Bombay High Court
Case Title: Eversmile Construction Company Pvt Ltd & Anr. v. Municipal Corporation of Greater Mumbai & Ors.
Citation: 2023 LiveLaw (Bom) 442
The Bombay High Court granted compensation to a company in lieu of its land used for the elevated Sahar Elevated Road which allows connectivity to the Chhatrapati Shivaji Maharaj International Airport.
“We see no possibility at all in law of private property being taken away for a public purpose without some form of compensation, whether in cash or in kind (in the form of TDR/a DRC), at least not without running afoul of Article 300A of the Constitution of India,” the division bench of Justices Gautam Patel and Kamal Khata observed.
In an “utterly unique situation”, both planning authorities - the Mumbai Metropolitan Region Development Authority (MMRDA) and Brihanmumbai Municipal Corporation (BMC) claimed they had no control over the 730 sq meter plot used for the road. The portion is part of a larger land parcel of 22,000 sq meters.
Therefore, the question before the court was who would compensate the petitioner.
In a subsequent resolution the bench directed the Brihanmumbai Municipal Corporation to grant Eversmile Construction Company Pvt Ltd. the applicable Transferable Development Rights (TDR) in lieu of its land.
DRP Can Give Directions Only In Pending Assessment Proceedings: Bombay High Court
Case Title: Undercarriage and Tractor Parts Pvt. Ltd. v. DRP
Citation: 2023 LiveLaw (Bom) 443
The Bombay High Court has held that the Dispute Resolution Panel (DRP) could give directions only in pending assessment proceedings.
The bench of Justice K. R. Shriram and Justice N. K. Gokhale has observed that once an assessment order is passed, rightly or wrongly, the assessment proceedings come to an end. Therefore, the DRP would have no power to pass any directions contemplated under sub-section 5 of Section 144C of the Income Tax Act.
Case Title: G. Chandrashekharan Shivam And Ors. v. Rajkumar Agarwal & Ors.
Citation: 2023 LiveLaw (Bom) 444
The Bombay High Court held that a claimant in a motor accident case is not obligated to claim compensation from owner of the vehicle he was travelling in and is allowed to only seek compensation from owner of the other vehicle involved in the accident.
Justice Sandeep Marne observed that in cases of composite negligence, the claimant has the right to sue only one of the joint tortfeasors.
Case Title: Shivraj Gorakh Satpute v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 445
The Bombay High Court granted bail to a 22-year-old man booked for possession of commercial quantity of Ganja after 50 Kgs Ganja was allegedly seized from his home between sunset and sunrise based on information given by another accused.
Justice Anuja Prabhudessai observed that the seizure was not a chance recovery, and there was nothing to show the officer's reasonable belief that obtaining a warrant for search between sunset and sunrise would allow the offender to escape.
Case Title: Ashraf Chitalwala v. DCIT
Citation: 2023 LiveLaw (Bom) 446
The Bombay High Court quashed the reassessment order based on a change of opinion without surfacing any tangible new information.
The bench of Justice K. R. Shriram and Justice N. K. Gokhale observed that the petitioner has fully and truly disclosed all material facts necessary for the purpose of assessment. The AO issued the first assessment order after carefully scrutinising the material furnished by the petitioner. The respondent department has failed to furnish any reasons for reopening as mandated by law. There is not even a whisper in the entire communication trail as to what was not disclosed.
Case Title: Poonam Basak v. Union of India & Ors.
Citation: 2023 LiveLaw (Bom) 447
The Bombay High Court held that only Whole-Time members and not the Chairperson of the Insolvency and Bankruptcy Board of India (IBBI) can pass an order in disciplinary proceedings under IBC.
A division bench of Justice BP Colabawalla and Justice MM Sathaye held that, prima facie, the Chairperson and Whole Time Members were distinct categories, as the nomination of Whole Time Members and the appointment of the Chairperson are separate processes under IBC. The court noted that considering the Chairperson a whole-time member effectively means there are 6 Whole Time Members instead of five on the IBBI board, which would contravene Section 189 of IBC.
Case Title: Navigns Studios Pvt. Ltd. v. Sameer Pandharinath Khandekar and Ors.
Citation: 2023 LiveLaw (Bom) 448
The Bombay High Court held that there can be no copyright in the theme of ‘families going to their ancestral village in Konkan during the Ganpati festival’ because in Maharashtra, family members do visit their ancestral places during Ganpati festival.
Justice Manish Pitale made this observation while refusing to stay the release of a web series titled “Devak Kalji” in a copyright infringement suit filed by Navigns Studios Pvt. Ltd. alleging that the producers of the web series copied the plaintiff’s script.
Case Title: South Port Limited v. State of Goa
Citation: 2023 LiveLaw (Bom) 449
The Bombay High Court at Goa upheld the constitutional validity of the Goa’s Green Cess Act which enables the state government to collect cess on the utilisation of pollution causing hazardous products and uses it to reduce the effects of carbon footprint in the State.
The Act is called The Goa Cess on Products and Substances Causing Pollution (Green Cess) Act, 2013 or the Green Cess Act 2013.
A division bench of Justices MS Sonak and Bharat P Deshpande dismissed a clutch of petitions filed by various companies including Goa Carbon Limited and Vedanta Ltd that challenged the Act citing the State’s lack of legislative competence to enact such a statute.
The court rejected the petitioner’s argument that the cess collected from them didn’t specifically benefit the companies. Therefore, it wouldn’t be a ‘fee,’ but a ‘tax’ beyond the legislative competence of the state.
Case Title: Mehul Choksi v. State of Maharashtra and Anr.
Citation: 2023 LiveLaw (Bom) 450
The Bombay High Court rejected an application filed by businessman Mehul Choksi challenging an application filed by the Enforcement Directorate (ED) to declare him a fugitive economic offender (FEO) in the Punjab National Bank fraud case.
Justice Sarang V Kotwal observed that the ED’s application complied with the form and manner prescribed in the Fugitive Economic Offenders Act, 2018 (FEO Act) and FEO Rules.
The court held that the verification clause in ED’s application satisfied the requirements of the criminal manual of the court as the deponent (deputy director of ED) clearly stated that the information in the application was based on his knowledge derived from records.
The court observed that the FEO Act provided its own special procedure which should be followed in this case, an no separate affidavit needs to accompany the application.
“section 4 of the FEO Act and Rule 3 of the FEO Rules are made to further the objective of this Act and they cannot be bypassed by taking recourse to the other provisions of Cr.P.C. to contend that the affidavit was not proper”, the court observed.
Case Title: Mahesh Sitaram Raut v. National Investigation Agency
Citation: 2023 LiveLaw (Bom) 451
Observing that the material against forest rights activist Mahesh Raut couldn’t lead to a prima-facie inference that he had indulged in a ‘terrorist act’ under Section 15 of the Unlawful Activities (Prevention) Act 1967, the Bombay High Court granted him bail in the Bhima Koregaon – Elgar Parishad larger conspiracy case.
“We are of the prima-facie opinion that on the basis of the material placed before us by the NIA, it cannot be said that there are reasonable grounds for believing that the accusations against the Appellant is prima-facie true to attract Sections 16, 17, 18, 20 and 39 of UAP Act,” the court of Justices AS Gadkari and Sharmila Deshmukh observed.
The court further noted the 5 years and three months Raut has already spent inside prison without trial.
Case Title: Hemant Dinkar Kandlur v. Commissioner of Income Tax
Citation: 2023 LiveLaw (Bom) 452
The Bombay High Court held that the amendment restricting investment in house property in India has retrospective applicability.
The bench of Justice K. R. Shriram and Justice N. K. Gokhale has observed that the language of Section 54(F) of the Act before its amendment was that the assessee should invest capital gain in a residential house. It did not mention any boundaries. It is only after the amendment to Section 54(F) of the Act, which amendment came into effect on April 1, 2015, that the condition that the assessee should invest the sale proceeds arising out of a sale of a capital asset in a residential property situated "in India" within the stipulated period was imposed. The amendment is not merely a clarificatory or explanatory amendment, but a substantive one.
Bombay High Court Paves Way For Allotment Of Houses To Society Of High Court Employees
Case Title: Milind Dashrath Narvekar v. State of Maharashtra and Ors.
Citation: 2023 LiveLaw (Bom) 453
The Bombay High Court cleared the way for construction of housing units for a society of 398 state government employees working in the High Court.
A division bench of Justice GS Patel and Justice Kamal Khata directed MHADA to allot a 2,769.75 square meter plot of land to members of the society without inviting applications from other High Court employees or reserving 50 percent of the flats for public purpose.
The court opined that the petitioners agreed to scale down from their original demand, thus releasing additional areas for the availability of the 50 percent reservation. The court agreed that the imposition of 50 percent reservation condition would result in flats of a meaningless size and potentially exclude eligible members.
Case Title: Jigna Jitendra Vora v. State of Maharashtra & Ors.
Citation: 2023 LiveLaw (Bom) 454
The Bombay High Court frowned at CBI’s unreasonable approach while opposing former journalist Jigna Vora’s plea for a fresh passport and directed passport authorities to consider her application afresh.
A division bench of Justices Revati Mohite Dere and Gauri Godse took exception to the CBI’s constant objection in granting her relief despite no pending appeals against her acquittal.
“The object of Section 437A is to secure the presence of an accused before the higher forum, after the acquittal. The petitioner had infact furnished PR Bond of Rs. 50,000/- before the trial Court. In the present case, the petitioner infact, appeared before the High Court, pursuant to the notice issued in the appeal filed by the CBI. In these circumstances, the CBI ought to have been fair and ought to have accordingly given a report, instead of stating that the case matter is still pending in CBI and her file should not be cleared, when infact, there was no proceeding pending before any Court of law, at the relevant time”, the court observed.
Vora, a former deputy editor of Asian Age newspaper was accused by the CBI of giving crucial information about journalist J Dey to alleged gangster Chhota Rajan, which led to the senior journalist’s murder in June 2011. In 2018, a special court found Rajan and eight others guilty under sections 302, 120-B of the IPC and sections 3(1)(i), 3(2) and 3(4) of the Maharashtra Control of Organized Crime Act (MCOCA) and sentenced them to life imprisonment for Dey's murder. Vora and one more accused were acquitted. Her acquittal was later upheld by the High Court in 2019.
Case Title: Shriram General Insurance Co. Ltd v. Sou. Jyoti Vithoba Nahire
Citation: 2023 LiveLaw (Bom) 455
The Bombay High Court held that an ad-interim/interim stay can be granted on an award passed under the Motor Vehicles Act (MV Act) even if the appellants’ application for condonation of delay in filing the First Appeal against such award is pending.
Justice Abhay Ahuja held was dealing with interim applications filed by three insurance companies and one individual in separate first appeals seeking a stay on execution of awards passed under the MV Act).
The applicants were seeking to file appeals challenging judgments and awards passed under the Motor Vehicles Act. These appeals, filed under Section 173 of the MV Act, were time-barred, i.e., they were filed after the stipulated limitation period.
Case Title: Pragati Pre Fab India Pvt. Ltd. Versus PCIT
Citation: 2023 LiveLaw (Bom) 456
The Bombay High Court directed the department to decide the application filed by the assessee in conformity with the Direct Tax Vivad Se Vishwas Act 2020.
The bench of Justice K. R. Shriram and Justice N. K. Gokhale observed that the assessee had paid self-assessment tax but has not paid the demand made due to reassessment or reopening of the assessment and has challenged the order now pending before ITAT. As permissible under the Office Memorandum dated July 31, 2017, the petitioner had even deposited 20% of the demand and, hence, is not an assessee in default.
The court held that under Section 9(a)(ii) of the DTVSV Act, the only exclusion visualised is a pendency of prosecution in respect of tax arrears relatable to an assessment year as on the date of filing the declaration and not a pendency of prosecution in respect of an assessment year on any issue.
The court found that the assessee has paid self-assessment tax but has not paid the demand due to reassessment and has challenged the order which is now pending before ITAT and consequently, paid the entire amount, accordingly, could not be treated as ‘Assessee in default’.
Citation: 2023 LiveLaw (Bom) 457
Spouse suffering from epilepsy cannot be ground for divorce under Section 13(1)(iii) of the Hindu Marriage Act, the Bombay High Court observed and upheld a family court order refusing divorce to a man.
A division bench at Nagpur comprising Justices Vinay Joshi and Valmiki Menezes observed,
"…the condition of “epilepsy” is neither an incurable disease nor can it be considered a mental disorder or a psychopathic disorder, for making a ground under Section 13(1)(iii) of the Hindu Marriage Act."
The court further said medical evidence doesn’t support the husband’s stand that epilepsy would be an impediment to the spouses living together.
Case Title: SNV Aviation Pvt. Ltd. v. Capt. Gareema Kumar
Citation: 2023 LiveLaw (Bom) 458
The Bombay High Court allowed a leave petition filed by Akasa Air, a low-cost airline, seeking permission to proceed against five pilots who resigned from the company without serving their notice period.
Justice SM Modak observed that part of the cause of action arose within the jurisdiction of Bombay High Court as the resignations were accepted by the company in Mumbai.
“...place where resignation was received can be part of cause of action. Sending a resignation through email cannot be sufficient. Ultimately, the company has to take a call on that. Either company may refuse to accept the resignation, or may accept it conditionally, or may accept it for future date. If these options are available to employer and these options can be exercised only when email (of resignation) is received, part of cause of action has arisen in Mumbai”, the court observed.
Case Title: John Cockerill India Limited v. Sanjay Kamalakar Navare
Citation: 2023 LiveLaw (Bom) 459
The High Court of Bombay held that the Court exercising power under Section 11 of the A&C Act can itself determine and collect the unpaid or deficit stamp duty payable upon the unstamped or insufficiently stamped agreement.
Case Title: Shishirkumar Gopalchandra Padhy v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 460
The Bombay High Court has expressed strong displeasure at the lack of effort by prosecuting agencies and trial judges to ensure timely completion of criminal trials resulting in prolonged incarceration of the accused.
Justice Bharati Dangare granted bail to a murder accused incarcerated for over seven years in a case requiring examination of just 10 witnesses. Despite expediting the trial, a year ago, there was no progress, the court noted.
“Time and again, I have expressed that some accountability deserves to be fixed and when I say accountability it is not only procedural one but possibly on the courts, who are in seized of such trials and particularly when the accused are incarcerated for such a long time.”
Case Title: Guljama Shah Jahir Shah v. Shri Sadguru Kaka Stone Crusher
Citation: 2023 LiveLaw (Bom) 461
The Bombay High Court held that the trial court is not obligated to provide reasons for the amount of interim compensation in cheque dishonour cases, as long as the requirements provided in Section 143A of the Negotiable Instruments Act, 1881 (NI Act) are met.
Justice Anil Pansare of the Nagpur Bench observed that satisfaction of Section 143A is reason enough for awarding 20 percent interim compensation to the complainant and requiring trial court to give additional reasons for the amount would defeat the purpose of the section.
“To expect the learned Magistrate to assign additional reasons, in a way, will defeat the amendment for the reason that every order passed under Section 143A will then be challenged on the ground that there are no additional reasons assigned by the learned Magistrate and if additional reasons are assigned, the challenge will be that the reasons assigned are not adequate etc. thereby opening flood-gates of litigations”, the court observed.
Case Title: Manoj Agarwal and Anr. v. Fashion TV Ltd.
Citation: 2023 LiveLaw (Bom) 462
The Bombay High Court issued an ad-interim direction restraining fashion media company Fashion TV Limited (FTV), from executing franchise agreements in Lucknow with third parties without first offering the franchise to their current franchisees.
Justice Manish Pitale observed that prima facie, despite a First Right of Refusal (FROR) clause in the franchise agreement, FTV executed another franchise agreement with third parties.
“a specific Right of First Refusal in the territory i.e. territory of Lucknow for the period of the agreement, was granted to the petitioners. The effect of the said clauses makes out a prima facie case in favour of the petitioners that if the respondent intended to enter into a further franchisee agreement, the petitioners ought to have been first offered such a franchisee and if the petitioners refused to accept the offer, the respondent could engage with third party”, the court observed.
Case Title: ABC v. State of Maharashtra
Citation: 2023 LiveLaw (Bom) 463
The Bombay High Court ordered Rs. 2 lakh compensation for a music teacher who was illegally detained by the Tardeo Police and allegedly stripped naked to humiliate him in a bailable offence, for violation of his fundamental right under Article 21 of the Constitution i.e. right to live with dignity.
Justice Revati Mohite-Dere and Justice Gauri Godse noted how the right to compensation is “palliative” against the unlawful acts of State machineries, who claim to act in public interest and then use the State’s powers as a shield to protect themselves.
“The facts as narrated, smacks of police high handedness. It smacks of their insensitivity. It reveals their lack of knowledge of the legal provisions and judgments of the Apex Court, vis-a-vis grant of bail. This action of the police has resulted in unjustified trauma-physical, emotional and mental to the petitioner’s husband.”
The court ordered for State to make the payment of Rs. 2 lakh but for the money to be recovered from the salaries of concerned officers of Tardeo Police Station and Saat Rasta Lock-up after liability is fixed following a detailed enquiry. The court ordered the inquiry against officers despite their unconditional apology.
