Bombay High Court Monthly Digest: November 2023 [Citations 519 - 552]

Matrix Publicities and Media India Pvt. Ltd. v. Deputy Commissioner of Income Tax Circle- 16(1), Mumbai & Ors. 2023 LiveLaw (Bom) 509

Bapu Bajarang Patil v. State of Maharashtra 2023 LiveLaw (Bom) 510

Chandralok People Welfare Association v. State of Maharashtra 2023 LiveLaw (Bom) 511

Kiran P. Pawar v. Bata India Ltd. 2023 LiveLaw (Bom) 512

ABC v. XYZ 2023 LiveLaw (Bom) 513

Abhishek Pictures v. Abhishek Agarwal Arts LLP 2023 LiveLaw (Bom) 514

Amar S. Mulchandani vs State of Maharashtra 2023 LiveLaw (Bom) 515

Municipal Commissioner Pune Municipal Corporation and Anr. v. Ashish Laxman Chavan 2023 LiveLaw (Bom) 516

Meerabai W/o Dnyaneshwar Chatare v. Returning Officer to the Election 2023 LiveLaw (Bom) 517

Azizur Rehman Gulam v. Radio Restaurant 2023 LiveLaw (Bom) 518

Swashray Co-op. Housing Society Ltd v. Shanti Enterprises 2023 LiveLaw (Bom) 519

Dnyaneshwar Eknath Gulhane v. Vinod Ramchandra Lokhande 2023 LiveLaw (Bom) 520

National Lawyers Campaign for Judicial Transparency and Reforms & Ors. v. State of Maharashtra & Ors. 2023 LiveLaw (Bom) 521

Naresh Goyal v. Directorate of Enforcement 2023 LiveLaw (Bom) 522

Vodafone Idea Limited v. CPC 2023 LiveLaw (Bom) 523

Mangal Ramsurat Singh v. State Of Maharashtra 2023 LiveLaw (Bom) 524

ABC v. XYZ 2023 LiveLaw (Bom) 525

Hasmukh Estates Pvt. Ltd. v. ACIT 2023 LiveLaw (Bom) 526

Swararaj @ Raj Shrikant Thackeray v. State of Maharashtra 2023 LiveLaw (Bom) 527

High Court of Judicature at Bombay on its own Motion v. State of Maharashtra and Ors. 2023 LiveLaw (Bom) 528

Sheezan Mohd. Khan v. State of Maharashtra and Ors. 2023 LiveLaw (Bom) 529

Ramona Pinto v. Deputy Commissioner of Income Tax 2023 LiveLaw (Bom) 530

Diversey India Hygiene Private Limited v. ACIT 2023 LiveLaw (Bom) 531

Dr. Vijay Uma Shankar Mishra v. Commissioner, MCGM and Ors. 2023 LiveLaw (Bom) 532

Danish Ali Jamaluddin Ahmed v. State of Maharashtra 2023 LiveLaw (Bom) 533

Chandar Mahadev Naik v. Income Tax Officer 2023 LiveLaw (Bom) 534

V Sridharan v. Brihanmumbai Municipal Corporation & Ors 2023 LiveLaw (Bom) 535

Ganesh Ramesh Chavan v. Income Tax Officer 2023 LiveLaw (Bom) 536

Ramona Pinto v. Deputy Commissioner of Income Tax 2023 LiveLaw (Bom) 537

Ramona Pinto v. Deputy Commissioner of Income Tax 2023 LiveLaw (Bom) 538

Prestige Estate Projects Ltd v. State of Maharashtra 2023 LiveLaw (Bom) 539

Satya Prakash Choudhry v. Yash Raj Films Pvt Ltd 2023 LiveLaw (Bom) 540

M/s Singh Automobiles v. Principal Secretary, Ministry of Energy & Ors. 2023 LiveLaw (Bom) 541

Anil Goel v. Union of India & Anr. 2023 LiveLaw (Bom) 542

ABC v. State of Maharashtra 2023 LiveLaw (Bom) 543

Brihan Mumbai Electric Supply and Transport v. BEST Jagrut Kamgar Sanghatana and Ors. 2023 LiveLaw (Bom) 544

Sameer Lawate v. State of Maharashtra and Anr 2023 LiveLaw (Bom) 545

DCW Limited v. Assistant Commissioner of Income Tax 2023 LiveLaw (Bom) 546

Savita Shrimant Ghule v. Sangita Bibhishan Sanap & Ors. 2023 LiveLaw (Bom) 547

AjitSingh Ghorpade v. State of Maharashtra & Ors. 2023 LiveLaw (Bom) 548

Rohit s/o Chandrakant Bhagat v. State of Maharashtra 2023 LiveLaw (Bom) 549

L&T Finance Limited v. Diamond Projects Limited 2023 LiveLaw (Bom) 550

Anandrao G Pawar v. Municipal Corporation of Greater Mumbai & Ors. 2023 LiveLaw (Bom) 551

Vishwas S/o Pitambar Patil v. State of Maharashtra 2023 LiveLaw (Bom) 552

Reports/Judgments

System Default Is The Standard Excuse Of Department When It Comes To Giving Refunds: Bombay High Court

Case Title: Matrix Publicities and Media India Pvt. Ltd. v. Deputy Commissioner of Income Tax Circle- 16(1), Mumbai & Ors.

Citation: 2023 LiveLaw (Bom) 509

The Bombay High Court stated that system default is the standard excuse of the department when it comes to giving refunds.

The bench of Justice K. R. Shriram and Justice Neela Gokhale observed that the excuse used is that the system under the control of the Centralized Processing Center (CPC), Bangalore, has some issues and, therefore, amounts are not being released to assessees. Interest is payable by law until the date of refund, and the Department does not realize that it is public money that is used to pay interest. That is a waste and a burden on the exchequer.

Trial Judge Went Overboard: Bombay High Court Alters Murder Convict's Sentence From 'Remainder Of Life' To 'Life Imprisonment'

Case Title: Bapu Bajarang Patil v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 510

The Bombay High Court modified the sentence of a man convicted of murdering his wife from “life imprisonment for the entire remaining of his life” to “imprisonment for life” citing the importance of adhering to the wording adopted in section 302 of the IPC.

A division bench of Justice VV Kankanwadi and Justice Abhay S Waghwase sitting at Aurangabad observed that the trial judge went overboard in sentencing the convict to life imprisonment for the entire remaining of his life.

“It is rightly pointed out by the learned Counsel for the appellant that learned Trial Judge has gone overboard by imposing sentence of suffering life imprisonment till natural death. Very recently, the Hon'ble Apex Court in the case of Narendra Singh @ Mukesh @ Bhura v. State of Rajasthan; 2022 LiveLaw (SC) 247 has held that “Sessions Court is not empowered to extend tenure of imprisonment beyond what is provided in the Statute”. Punishment prescribed for offence punishable under Section 302 of the IPC has not been amended or enhanced. Wordings used in the Statute are required to be adopted”, the court stated.

Tenants Can Reconstruct Demolished Premises Without NOC From Landlord, Recover Costs If Owner Fails To Redevelop: Bombay High Court

Case Title: Chandralok People Welfare Association v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 511

The Bombay High Court allowed tenants to reconstruct their demolished premises under Section 499 (6) of the Mumbai Municipal Corporation Act sans the landlord's permission, and recover costs from him in the absence of a redevelopment plan within a year of demolition.

However, the division bench comprising Justices Gautam Patel and Kamal Khata clarified that the tenants wouldn't be entitled to redevelop the premises and occupy flats on ownership basis. Meaning the tenants would continue to remain tenants after reconstruction.

“The [tenants] association must make its own arrangements for financing the reconstruction. We have only affirmed their statutory right to reconstruction and the MCGM (BMC)'s obligation to permit it without requiring the prior consent of [the landlord].”

Bombay High Court Grants Compensation To BATA Salesmen Fired For Opposing Showrooms Opening 7 Days A Week With Extended Hours

Case Title: Kiran P. Pawar v. Bata India Ltd.

Citation: 2023 LiveLaw (Bom) 512

The Bombay High Court awarded compensation ranging from 19.5 lakhs to 33 lakhs to seven former salesmen of shoe company Bata who were terminated in 2007 after refusing to adhere to modified roster for operating showrooms seven days a week with extended hours.

Justice Sandeep V Marne observed that they were terminated without any enquiry but refused to reinstate them observing that 16 years have elapsed since their termination, and they may not be able to discharge duties as salesman effectively. The court awarded a compensation of 75 percent of the back wages for last 16 years.

The court considered the various duties and responsibilities outlined in the standing orders and regulations formulated by Bata, outlining the diverse tasks assigned to the salesmen, including customer service, preparation of cash memo, stock management, cash handling, administrative duties, quality control, and other shop-related responsibilities. The court concluded that these multifaceted duties indicate that the salesmen can be considered "workmen" under the provisions of the ID Act.

Father Can't Be Accused Of Kidnapping For Taking Child Away From Mother In Absence Of Any Prohibition From Competent Court: Bombay High Court

Case Title: ABC v. XYZ

Citation: 2023 LiveLaw (Bom) 513

The Bombay High Court held that a father cannot be held guilty of kidnapping for taking his minor child away from the mother unless there is an order of a competent court preventing him from taking custody of the child.

A division bench of Justice Vinay Joshi and Justice Valmiki SA Menezes sitting at Nagpur quashed an FIR registered under Sections 363 of the IPC by the biological mother of the child, accusing the father of forcibly taking away their 3-year-old son.

“The father of a child will not come within the scope of section of 361 of the IPC, even if he takes away the child from the keeping of the mother, she may be a lawful guardian as against any other except the father or any other person who has been appointed as a legal guardian by virtue of an order of the Competent Court. So long there is no divestment of the rights of the guardianship of a father, he cannot be guilty of an offence under Section 361 of the IPC”, the court held.

A Party Cannot Be Allowed To Take Advantage Of Inartistic Drafting Of Arbitration Clause As Long As The Intention To Arbitrate Is Clear: Bombay High Court

Case Title: Abhishek Pictures v. Abhishek Agarwal Arts LLP

Citation: 2023 LiveLaw (Bom) 514

The High Court of Bombay held that a party cannot be allowed to take advantage of inartistic or poor drafting of an arbitration clause as long as the clause contains the necessary ingredients and the intention to arbitrate is clear.

The bench of Justice Manish Pitale also held that a Court exercising power under Section 9 of the A&C Act would be within its power to scrutinize and decide as to whether the arbitration clause is valid in law.

The Court also held that while interpreting terms of an agreement, the Court has to adopt a view that supports all the covenants of the agreement and not one that renders one or more clauses nugatory.

S.438 CrPC | Accused In Custody Not Precluded From Seeking Anticipatory Bail In Another Case: Bombay High Court

Case Title: Amar S. Mulchandani vs State of Maharashtra

Citation: 2023 LiveLaw (Bom) 515

An accused in custody in one case can seek anticipatory bail in another case under Section 438 of the CrPC, the Bombay High Court held and granted pre-arrest bail to an accused in a forgery case.

“I am impelled to hold that the fact that the applicant is already in custody in one case does not preclude him from seeking prearrest bail in connection with another case in which he apprehends arrest,” Justice NJ Jamadar held.

The judge relied on the High Court's views in Alnesh Akil Somji V/s. State of Maharashtra which held that an earlier judgement of the SC in Narinderjit Singh Sahni and Anr. V/s. Union of India and Ors. does not hold in very clear terms that a person arrested in one offence was barred from seeking anticipatory bail in another offence.

Octroi Department Employees Of Municipal Corp Have No Vested Right To Commission On Fee Collected From Evaders: Bombay High Court

Case Title: Municipal Commissioner Pune Municipal Corporation and Anr. v. Ashish Laxman Chavan

Citation: 2023 LiveLaw (Bom) 516

The Bombay High Court held that employees posted in the Octroi department of a Municipal Corporation do not have any right to receive commission (Mushahira) on compromise fee collected by the department from Octroi evaders.

Justice Sandeep V Marne observed that the employees cannot demand commission for performing their duties of apprehending evading vehicles and collecting Octroi.

“The employees of Octroi Department perform their duties in apprehending vehicles evading Octroi. For performing their duties, they cannot demand any incentives in the form of commission on the Octroi so collected…no right is vested in the employee of Octroi Department of the Municipal Corporation to claim any amount towards Mushahira from the Municipal Corporation”, the court held.

Merely Stating EVM Was Defective Would Not Invalidate Election Without Proof Of Material Impact On Outcome: Bombay High Court

Case Title: Meerabai W/o Dnyaneshwar Chatare v. Returning Officer to the Election

Citation: 2023 LiveLaw (Bom) 517

The Bombay High Court held that merely stating that the Electronic Voting Machine had a defect would not invalidate an election in absence of proof that this defect materially influenced the outcome of the election.

A division bench of Justice AS Chandurkar and Justice Vrushali V. Joshi sitting at Nagpur refused to quash election of a Sarpanch who won by one vote in a plea challenging the election on the ground that the EVM recorded one vote less than the number of votes cast.

An Arbitral Award Cannot Be Challenged In Appeal On Entirely New Grounds Which Were Not Taken Under Section 34 Of The A&C Act: Bombay High Court

Case Title: Azizur Rehman Gulam v. Radio Restaurant

Citation: 2023 LiveLaw (Bom) 518

The High Court of Bombay held that an appeal to challenge an arbitral award cannot be on entirely new grounds. It held that grounds which were not taken before the Court under Section 34 of the A&C Act cannot be taken in appeal.

The bench of Chief Justice Devendra Kumar Upadhyaya and Justice Arif S. Doctor held that an arbitration award cannot be challenged on afresh grounds that were never taken before. It held that such a course would not just be in teeth of the settled position of law but would also disturb the entire scheme of the arbitration act.

The Court also held that under Section 37(1)(c) of the A&C Act, it is only the order of the Court under Section 34 against which the appeal is maintainable, therefore, the challenge must be to the order of the Court and not to mere award.

Court Can Grant Mandatory Injunction At Interim Stage Under Section 9 Of The A&C Act When Builder Commits Multiple Breaches Eroding Housing Society's Confidence In It: Bombay High Court

Case Title: Swashray Co-op. Housing Society Ltd v. Shanti Enterprises

Citation: 2023 LiveLaw (Bom) 519

The High Court of Bombay held that a Court exercising powers under Section 9 of the A&C Act can grant mandatory injunction at an interim stage when the builder is found to be in multiple breaches which results in the co-operative society losing its confidence in the builder.

The bench of Justice Manish Pitale held that the relief of mandatory injunction at an interim stage is an extraordinary relief which ought not be granted in every case, however, the Court would not withhold such a relief it withholding such an injunction would be unjust and unconscionable.

The Court also remarked that in builder-co-operative society disputes, the members of the society cannot be left at the mercy of the builder and the Court must protect the interest of those members when the builder is found to be in multiple breaches such as failure to complete the construction work on time, failure to pay transit rent, brokerage, transportation and hardship compensation.

The Court held that in such a situation, the society cannot be forced to get the redevelopment work done through such a builder and it would have the right to get the work done through a new developer.

No Scientific Method To Determine Age Of Ink Used In Writing: Bombay High Court Quashes Order Allowing Ink-Age Test On Disputed Cheque

Case Title: Dnyaneshwar Eknath Gulhane v. Vinod Ramchandra Lokhande

Citation: 2023 LiveLaw (Bom) 520

Observing that there is no scientific method to determine age of the ink in a document, the Bombay High Court set aside sessions court order allowing an ink-age test by a handwriting expert on a disputed cheque in a cheque dishonour case.

Justice Anil L Pansare of the Nagpur bench, in a writ petition challenging the sessions court order, relied on the expert opinion recorded by the Madras High Court in 2010 confirming the absence of a definitive scientific method to assess the age of handwriting accurately.

S.353 IPC | High Court Disposes Plea Against Enhanced Punishment In Maharashtra For Deterring On Duty Public Servant, Says Govt Committee Reviewing

Case Title: National Lawyers Campaign for Judicial Transparency and Reforms & Ors. v. State of Maharashtra & Ors.

Citation: 2023 LiveLaw (Bom) 521

The Bombay High Court disposed of a writ petition challenging the constitutional validity of enhanced punishment in Maharashtra for assault or criminal force to deter a public servant from discharging duty.

The Code of Criminal Procedure (Maharashtra Amendment) Act, 2017 enhanced the maximum punishment under section 353 from two years to five years and made the offence triable before the sessions court instead of a magistrate.

A division bench of Chief Justice Devendra Kumar Upadhyaya and Justice Arif S Doctor disposed of the petition in light of state government resolution forming a committee to consider all aspects of section 353.

PMLA | SC Judgment In 'Pankaj Bansal' On Informing Grounds Of Arrest In Writing Applies Prospectively: Bombay High Court In Naresh Goyal's Case

Case Title: Naresh Goyal v. Directorate of Enforcement

Citation: 2023 LiveLaw (Bom) 522

Refusing relief to Jet Airways founder Naresh Goyal in the money laundering case, the Bombay High Court held that the Supreme Court's recent judgement in Pankaj Bansal's case on giving the accused a physical copy of the grounds of arrest would apply only prospectively.

In a habeas corpus plea filed through his wife, Goyal contended he was not provided the Grounds of Arrest in writing under section 19(1) of Prevention of Money Laundering Act (PMLA), violating his rights under Articles 14, 21 and 22 of the Constitution. Further, the Sessions Judge authorised his detention without recording reasons for such detention.

A division bench comprising Justices Revati Mohite Dere and Gauri Godse noted that Goyal was arrested on September 1, a month prior to the SC judgement interpreting Section 19 of PMLA.

While the Enforcement Directorate may not have given Goyal a physical copy of the grounds of arrest but he was shown the grounds of arrest. He signed the document maintained by the ED, court noted in its order.

Bombay High Court Quashes FAO Order Passed After Two Years Of DRP Direction Against Vodafone Idea

Case Title: Vodafone Idea Limited v. CPC

Citation: 2023 LiveLaw (Bom) 523

The Bombay High Court held that the assessment order dated August 31, 2023, passed by the Faceless Assessing Officer (FAO) two years after the Dispute Resolution Panel (DRP) directions, is time-barred and cannot be sustained.

The bench of Justice K. R. Shriram and Justice Neela Gokhale strongly recommended that a detailed inquiry be initiated on the failure on the part of the Faceless Assessing Officer concerned to act in accordance with the provisions of the Income Tax Act and the lack of diligence on the part of officials concerned and the system itself insofar as it relates to the present assessment. Strict action should be taken against persons responsible for the laxity and lethargy displayed, which have caused a huge loss to the exchequer and, in turn, to the citizens of this country.

Give Laptops/iPads To Prosecutors For Effective Implementation Of E-Filing System: Bombay High Court

Case Title: Mangal Ramsurat Singh v. State Of Maharashtra

Citation: 2023 LiveLaw (Bom) 524

The Bombay High Court sought intervention of Advocate General of Maharashtra Dr. Birendra Saraf to ensure that necessary infrastructure is available to implement the e-filing system effectively.

Justice MS Karnik observed that providing laptops to prosecutors is essential for effective implementation of e-filing mechanism.

“To make the mechanism of E-fling efective, it is absolutely essential that learned APPs are provided with the facility of laptops/Ipads at the earliest…Learned Advocate General is requested to look into the matter and bring this to the notice of the concerned department of the State Government for facilitating the required infrastructure for this purpose”, the court stated.

The court was dealing with a bail application which the counsel for the applicant has filed through the e-filing mechanism.

'Only 7 Family Court Judges In Mumbai': High Court Imposes Cost On Mother Seeking "Unreasonably" Quick Disposal Of Execution Plea For Access To Minor

Case Title: ABC v. XYZ

Citation: 2023 LiveLaw (Bom) 525

Observing that lawyers at the bar were required to be sensitive to the heavy load of matters heard by Family Court Judges daily, the Bombay High Court dismissed a woman's plea seeking directions to the Family Court to decide her execution petition filed in 2022 within a month.

Justice Sharmila Deshmukh imposed cost of Rs. 15,000 on the woman noting one month was an “unreasonable” time period.

“The bar is required to be sensitive to the fact that, it is well known that on the board of the Family Court, there are at least 60 to 70 matters listed every day… Without being sensitive to this fact, an application has been moved for deciding the matter of the year 2022 within a period of one month.”

The woman, a UK citizen, informed the HC that she approached the Family Court in December 2022, seeking execution of an order passed by the Royal High Courts, London, in October 2021. The father wasn't complying with his undertaking to grant her 50% access to her sons, despite one child being diagnosed with ADHD.

While the Royal High Court decided her custody plea in just six months, the execution plea continues to remain pending.

Re-Opening Is Not Permissible As It Falls Within The Purview Of A 'Change Of Opinion': Bombay High Court

Case Title: Hasmukh Estates Pvt. Ltd. v. ACIT

Citation: 2023 LiveLaw (Bom) 526

The Bombay High Court held that re-opening is not permissible as it clearly falls within the purview of a 'change of opinion' which is impermissible in law.

The bench of Justice K. R. Shriram and Justice Neela Gokhale observed that the basis on which the AO issued notice alleging that there was "information" that suggests escapement of income was an internal audit objection. Information is explained in Section 148 of the Act to mean "any objection raised by the Comptroller and Auditor General of India..." and no one else. It itself makes the reopening of assessments impermissible.

Bombay High Court Quashes FIR Against Raj Thackeray For Disobeying Public Servant In 2010

Case Title: Swararaj @ Raj Shrikant Thackeray v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 527

The Bombay High Court quashed the FIR and criminal proceedings against Maharashtra Navnirman Sena (MNS) chief Raj Thackeray alleging disobeying an order of a public servant by overstaying in Kalyan Dombivali Municipal Corporation area ahead of civic elections held in 2010.

According to the FIR Thackeray was supposed to complete campaigning in the Kalyan and Dombivali area by September 29, 2010, in accordance with a circular issued by the State Election Commission (SEC).

Based on the circular, the Deputy Commissioner of Police issued a notice to Thackeray and asked him not to stay within KDMC area beyond 10 pm, that year. The notice said he couldn't visit any political party office, residence, hotel, lodges, guest houses and in case of violation, he may face prosecution under the section 126 of the Representation of Peoples Act.

A division bench of Justices Ajey S Gadkari and Sharmila U Deshmukh observed –

“the notice issued to the Applicant under Section 149 of Cr.P.C does not constitute an order duly promulgated and as such, no offence under Section 188 of IPC is made out. Admittedly, as cognisance was taken of the offence without any written complaint being filed, the prosecution stands vitiated being barred under Section 195(1)(a) of Cr.P.C.”

Bombay High Court Reduces Time For Bursting Firecrackers To Two Hours, Seeks Statutory Mechanism To Combat Pollution

Case Title: High Court of Judicature at Bombay on its own Motion v. State of Maharashtra and Ors.

Citation: 2023 LiveLaw (Bom) 528

The Bombay High Court reduced the window during which bursting of firecrackers is permitted in the Mumbai Metropolitan Region to 8 PM – 10 PM in view of previous order of the Supreme Court in Arjun Gopal v. Union of India passed on November 8, 2021.

A division bench of Chief Justice Devendra Kumar Upadhyaya and Justice GS Kulkarni rapped the state government for responding late to the problem of air pollution and stressed that the responsibility of the civic authorities is not a favour but a duty towards the city's residents. The court also sought a statutory mechanism to curb air pollution.

The court urged the state to constitute a statutory commission for monitoring air quality in Mumbai along the lines of the Commission for Air Quality Management formed under the Commission for Air Quality Management in National Capital Region and Adjoining Areas Act, 2021.

Under Section 12 of this Act, the Commission has wide powers to protect and enhance air quality in the NCR and neighbouring areas. The Commission can issue directives, coordinate actions among governments and authorities, and regulate or prohibit activities contributing to air pollution. The Commission tasked with initiating actions based on complaints, implementing national programs, identifying pollution sources, promoting research, raising awareness, and supporting NGOs and institutions. Further, it addresses stubble burning, monitors air-polluting agents, increases plantation, and can undertake additional functions as entrusted by committees or bodies dealing with air pollution issues.

Tunisha Sharma Death: Bombay HC Refuses To Quash Abetment FIR Against Actor Sheezan Khan, Says Altercation Before Suicide Prima Facie Incitement

Case Title: Sheezan Mohd. Khan v. State of Maharashtra and Ors.

Citation: 2023 LiveLaw (Bom) 529

Bombay High Court refused to quash an FIR against actor Sheezan Khan for allegedly abetting suicide of co-star Tunisha Sharma in December last year.

A division bench of Justice AS Gadkari and Justice Sharmila U Deshmukh observed that an altercation between the Khan and Sharma in his make-up room just before her suicide is prima facie a direct act of incitement to commit suicide as he quarrelled with her knowing about her mental trauma.

Firm Liable To Pay Tax On Distribution Of Capital Assets On Dissolution And Not Partner: Bombay High Court

Case Title: Ramona Pinto v. Deputy Commissioner of Income Tax

Citation: 2023 LiveLaw (Bom) 530

The Bombay High Court held that, as per Section 45(4) of the Income Tax Act, assuming that there was a distribution of capital assets upon dissolution of the firm, it is the firm and not the partner who has to pay the tax.

The bench of Justice K. R. Shriram and Justice Dr. Neela Gokhale has observed that the amount of Rs. 28 crores can be considered the amount received by a partner upon retirement from the firm and is not chargeable to tax.

In FY 2009–10, Justice S. P. Bharucha, Chief Justice of India (Retd.), serving as the only arbitrator, decided an arbitration judgment of Rs. 28 crore in favour of the assessee, resolving a dispute with her brother and other family members stemming from her late father's will. The dispute began in 2005 when the assessee learned that her brothers had reconstituted the firm and that she had retired in 1997. Despite this, the assessee insisted that she was still a partner, and the matter was sent to arbitration, where the assessee waived all of her rights against the firm in exchange for an upfront payment of Rs. 7 crore in 2009, with an additional Rs. 3 crore to be paid annually for a period of seven years.

Bombay High Court Quashes Reassessment Proceedings Against Non-Existent Entity Despite Active PAN

Case Title: Diversey India Hygiene Private Limited v. ACIT

Citation: 2023 LiveLaw (Bom) 531

The Bombay High Court quashed the reassessment proceedings against non-existent entities despite an active PAN.

“PAN was not deactivated, which would not help the revenue because there could be cases relating to various years when the company was in existence, and it is possible those PAN numbers are picked up for scrutiny or for the issuance of a refund. That, in our view, will not be a sanction for the Department to issue notices to a non-existing entity, particularly when they were aware that the entity was not in existence,” the bench of Justice K. R. Shriram and Justice Neela Gokhale stated.

The petitioner/assessee challenged a reassessment notice on the ground that all the notices had been issued to a non-existing entity. The notice, i.e., Diversey India Private Limited (DIPL), got amalgamated with the petitioner with effect from April 1, 2015. A letter dated May 12, 2016, was addressed to the Assessing Officer (AO) and Principal Commissioner, informing them about the amalgamation.

Bombay High Court Appoints Advocate Commissioners To Assess Transit Space For Washermen At Mumbai's Dhobighat

Case Title: Dr. Vijay Uma Shankar Mishra v. Commissioner, MCGM and Ors.

Citation: 2023 LiveLaw (Bom) 532

The Bombay High Court appointed two lawyers practicing in the HC as Advocate Commissioners to ascertain the status of transit rent payment and the transit space available for drying clothes for the Washermen and Rassiholders of Dhobighat situated on Dr. E. Moses Road, Jacob Circle, Mumbai. These persons, operating on a heritage site, have been washing and drying clothes for over a century.

Considering the scarcity of space and modern technology, a division bench of Chief Justice Devendra Upadhyaya and Justice Arif S Doctor in a PIL regarding the welfare of the washermen opined that in the building the Washermen/Rassiholders should be provided with mechanized facility for drying clothes.

S.306(4) CrPC | Bail Conditions Open For Approver Who Has Abided By All Conditions Of Pardon

Case Title: Danish Ali Jamaluddin Ahmed v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 533

An approver who has complied with all conditions of pardon and deposed as a witness in the prosecution's favor need not remain incarcerated till the end of the trial and would be entitled to bail, especially in case of a protracted trial, the Bombay High Court held.

Justice MS Karnik observed that the bar under Section 306(4) of the CrPC against releasing an approver before conclusion of trial needs to be harmoniously construed with personal liberty enshrined under Article 21 of the constitution.

“In my opinion, now that the applicant has complied with the conditions and has been examined as a prosecution witness before the Special Court, the fetters of the applicant's continuing in detention until the termination of the trial needs to be watered down.”

The court noted an approver is kept in custody during the trial to protect him from other accused in the case. This could now be achieved under the Witness Protection Act enacted in 2017 wherein it is State's responsibility to provide protection to a witness.

Bombay High Court Quashes Income Tax Assessments Against Agriculturist And Rickshaw Driver For Improper Sanction

Case Title: Chandar Mahadev Naik v. Income Tax Officer

Citation: 2023 LiveLaw (Bom) 534

The Bombay High Court quashed the income tax assessments for the assessment year 2016-2017 against agriculturists and rickshaw drivers for improper sanction.

The bench of Justice K.R. Shriram and Justice Neela Gokhale relied on its earlier decision in Siemens Financial Services Private Limited Vs. Deputy Commissioner of Income Tax & Ors. The court held 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 the assessment would fail.

The petitioners/assessee were the Agriculturist and rickshaw driver. The assessee challenged the income tax assessments for the assessment year 2016-2017 due to improper sanction under the Income Tax Act, 1961.

In light of the invalid sanction, the court ruled that the notices issued were also invalid and had to be quashed. Furthermore, the court emphasised that any assessment orders passed subsequently based on an incorrect sanction would also need to be set aside.

Bombay High Court Stays Demolition Notice Against Senior Advocate, Flags 'Selective Approach' Of Mumbai Civic Body

Case Title: V Sridharan v. Brihanmumbai Municipal Corporation & Ors

Citation: 2023 LiveLaw (Bom) 535

The Bombay High Court stayed a notice by the Brihanmumbai Municipal Corporation (BMC) directing a practicing senior advocate at the HC - V Sridharan- to remove or demolish an alleged illegal merging of a niche area into his office space.

A division bench comprising Justice Gautam Patel and Kamal Khata noted neither was the advocate heard before the order was passed nor was any decision taken on the Society's plea to regularize the construction.

The bench specifically made prima facie observations regarding the selective approach of the BMC wherein owners of large-scale illegal constructions were merely served notices and alleged minor illegalities were dealt with an iron hand.

“…for the most minor irregularity, the entire machinery of the Municipal Corporation of Greater Mumbai(MCGM( is thrown at it with considerable aggression, but for anything that is on a larger scale, other than a stop work notice, nothing at all happens.

The court said the BMC's actions would have to be considered on Wednesbury's principle of unreasonableness.

Bombay High Court Direct JAO To Provide Specific Information Relied Upon To Issue The Section 148A(b) Notice

Case Title: Ganesh Ramesh Chavan v. Income Tax Officer

Citation: 2023 LiveLaw (Bom) 536

The Bombay High Court has directed the Jurisdictional Assessing Officer (JAO) to provide specific information relied upon to issue the notice under Section 148A(B) of the Income Tax Act.

The bench of Justice K. R. Shriram and Justice Neela Gokhale has quashed the assessment order and directed the JAO to dispose of the matter on or before December 31, 2023.

The department agreed to quash the assessment order and remand the matter back to the Jurisdictional Assessing Officer (JAO) to the stage of issuance of notice under Section 142(1) of the Income Tax Act, 1961.

Amount Received In Satisfaction Of The Inheritance Rights Is Not A Taxable Income: Bombay High Court

Case Title: Ramona Pinto v. Deputy Commissioner of Income Tax

Citation: 2023 LiveLaw (Bom) 537

The High Court of Bombay held that an an amount received in satisfaction of the inheritance rights is not a taxable income.

The bench of Justices K.R. Shriram and Dr. Neela Gokhale held that receipt of an amount in lieu of inheritance or pursuant to family arrangement cannot be charged with tax under the Act as arrangement is an agreement between the members of the same family for the benefit of the family either by compromising doubtful or disputed rights or by preserving the family peace, honour, security and property of the family by avoiding litigation and amounts so received or not exigible to tax.

Amount Of Arbitration Award Received By Retiring Partner For Relinquishing Claim In The Firm Is Not Taxable: Bombay High Court

Case Title: Ramona Pinto v. Deputy Commissioner of Income Tax

Citation: 2023 LiveLaw (Bom) 538

The High Court of Bombay has held that an amount of arbitration award received by a retiring partner for relinquishing its claim in the firm is not a taxable income.

The bench of Justices K.R. Shriram and Dr. Neela Gokhale held that the amount received by a partner under a consent arbitration award for relinquishing its stake in the firm cannot be treated as an 'income from other sources' within the meaning of Section 56(1) of the Income Tax Act, 1961 to bring it within the rubric of taxable income. It held that to bring an amount within the fold of Section 56(1), it has to be first shown as income, however, an amount received upon retirement from a firm is not an income. It also held that such an amount also does not fall within the scope of 'capital gains'.

The Court also held that receipt of an amount in lieu of inheritance or pursuant to family arrangement cannot be charged with tax under the Act as arrangement is an agreement between the members of the same family for the benefit of the family either by compromising doubtful or disputed rights or by preserving the family peace, honour, security and property of the family by avoiding litigation and amounts so received or not exigible to tax.

Covid Rebate On Premium FSI Applicable Till Completion Of Project For Builders Who Availed 2021 GR & Fulfilled Conditions: Bombay High Court

Case Title: Prestige Estate Projects Ltd v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 539

In a relief for numerous developers and flat purchasers, the Bombay High Court has held that the 50% rebate for purchasing additional floor space index (FSI) granted by the Maharashtra Government to developers during the Covid-19 pandemic would be applicable till completion of the project and the difference amount couldn't be recovered subsequently.

A division bench comprising Justices GS Patel and Kamal Khata has directed the Municipal Corporation of Greater Mumbai (MCGM) to re-issue Intimations of Disapproval (IoDs) and Commencement Certificates (CC) to petitioner developers without any additional payment.

Bombay High Court Refuses to Stay Release of Web Series Inspired by Bhopal Gas Tragedy on Plea By Former Employees of Union Carbide

Case Title: Satya Prakash Choudhry v. Yash Raj Films Pvt Ltd

Citation: 2023 LiveLaw (Bom) 540

The Bombay High Court refused to stay the OTT release of web series “The Railway Men – The Untold Story of Bhopal 1984,” inspired by events around the Bhopal Gas Tragedy and dismissed appeals filed by two convicts, erstwhile employees of Union Carbide India Private Ltd.

The duo approached the High Court in two separate petitions against orders of the City Civil Court refusing ad-interim relief. They sought a pre-screening of the web series citing certain factual errors in the trailer and a stay on the release.

The court observed there was a disclaimer at the beginning of the film stating it was a “work of fiction” and only 'inspired' by the tragedy, moreover events of the gas leak have been discussed and analysed nationally and internationally. Further there was a delay in approaching the court late.

NOC From Owner Not Required To Give New Electricity Connection To Tenant: Bombay High Court

Case Title: M/s Singh Automobiles v. Principal Secretary, Ministry of Energy & Ors.

Citation: 2023 LiveLaw (Bom) 541

The Nagpur bench of Bombay High Court reiterated that a No Objection Certificate (NOC) from the owner of the premises is not required for a tenant to get a new electricity connection.

A division bench of Justice AS Chandurkar and Justice Abhay J Mantri set aside a communication from Maharashtra State Electricity Distribution Company Ltd. requiring NOC from owner to provide new connection to the petitioner.

Bombay High Court Discharges Former Chief Commissioner Of Income Tax In Corruption Case, Says No Official Dealing With Firm He Allegedly Benefitted From

Case Title: Anil Goel v. Union of India & Anr.

Citation: 2023 LiveLaw (Bom) 542

The Bombay High Court discharged former Chief Commissioner of Income Tax Anil Goel from a corruption case for allegedly occupying a flat without paying rent while being posted in Kerala.

Justice Bharati Dangre observed that Goel did not have existing official dealing with the firm from which he allegedly obtained undue benefits, rejecting the prosecution's argument that if a business connection is made in future, offence under Section 11 (public servant obtaining undue advantage from person concerned in official dealings) of the Prevention of Corruption Act, 1988 is made out.

Section 11 of the Act states that if a public servant accepts, obtains, agrees to accept, or attempts to obtain a 'valuable thing' without any payment or with inadequate payment from a person involved or likely to be involved with the public servant's official functions, the public servant can be punished with imprisonment ranging from six months to five years, along with a fine.

Court Has Legal Duty To Compensate Victim: Bombay High Court Orders DLSA To Rehabilitate Children Whose Father Set Their Mother Ablaze

Case Title: ABC v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 543

The Bombay High Court directed the District Legal Services Authority, Jalgaon to locate and rehabilitate two children of a woman murdered by her husband, observing that courts have a legal duty to compensate victims of the loss they have suffered.

A division bench of Justice Vibha Kankanwadi and Justice Abhay Waghwase sitting at Aurangabad while upholding murder conviction of the children's father, observed

“Courts of Law are not only obliged to exercise their power to award compensation but has also legal duty to compensate a victim for the loss and injury inflicted as a result of act and omission on part of other party… District Legal Services Authority, Jalgaon is hereby directed to undertake exercise of getting ascertained the current whereabouts of children of deceased, their educational and financial status and then on due enquiry and satisfaction, take appropriate steps for meaningful rehabilitation of children of appellant and deceased.”

Explanation For Each Day Of Delay Not Required For Condonation Of Delay In Filing A Case: Bombay High Court

Case Title: Brihan Mumbai Electric Supply and Transport v. BEST Jagrut Kamgar Sanghatana and Ors.

Citation: 2023 LiveLaw (Bom) 544

Bombay High Court held that explanation for each day of delay is not required to condone the delay in filing a case when broad reasons sufficient as per SC guidelines are given in the delay condonation application.

Justice Milind Jadhav upheld condonation of delay of over 5 years by a labour union in filing a complaint against BEST challenging termination observing that the union had sufficiently explained the delay before the labour court.

“By objecting to the delay, rather reasons for the delay, these workers will be deprived of their legitimate right of getting their complaint adjudicated. Insistence by the Petitioner that delay has to be explained for each day of delay cannot be countenanced…In view of the guidelines laid down by the Supreme Court, explanation for day-to-day delay is not necessarily to be given. Broadly the reasons for the delay are mentioned and they cannot be disbelieved”, the court observed.

Bombay High Court Grants Interim Protection From Arrest To Wrestling Coach Accused Of Sexually Harassing Minor Male Students

Case Title: Sameer Lawate v. State of Maharashtra and Anr

Citation: 2023 LiveLaw (Bom) 545

The Bombay High Court granted anticipatory bail till November 29, 2023, to a wrestling (kusti) teacher accused of sexually harassing several of his minor male students in Pune.

The bench sought to hear the complainants before deciding on the application.

The vacation bench of Justice MM Sathaye granted ad-interim protection to the teacher in an FIR registered under sections 8 & 12 of the POCSO Act at the Vishraam Baug police station in Pune.

Primary Facts Necessary For Assessment Fully & Truly Disclosed, AO Not Entitled To Change Opinion For Reassessment: Bombay High Court

Case Title: DCW Limited v. Assistant Commissioner of Income Tax

Citation: 2023 LiveLaw (Bom) 546

The Bombay High Court has held that the primary facts necessary for assessment are fully and truly disclosed, and the Assessing Officer is not entitled, on change of opinion, to commence proceedings for reassessment.

The bench of Justice K. R. Shriram and Justice Neela Gokhale has observed that even if the Assessing Officer, who passed the assessment order, may have raised too many legal inferences from the facts disclosed, on that account, the Assessing Officer, who has decided to reopen assessment proceedings, is not competent to reopen assessment proceedings.

Maha Village Panchayats Act | No Confidence Motion Against Sarpanch Valid Sans Formal Proposal & Seconding If Passed By 3/4th Majority: Bombay HC

Case Title: Savita Shrimant Ghule v. Sangita Bibhishan Sanap & Ors.

Citation: 2023 LiveLaw (Bom) 547

The Bombay High Court held that a No Confidence Motion against Sarpanch and Upa Sarpanch would be valid even without being formally proposed and seconded as long as it was passed by the required majority and fulfilling all requirements under section 35 of the Maharashtra Village Panchayats Act.

Justice Madhav Jamdar upheld the No Confidence Motion passed against the Sarpanch and Upa-Sarpanch of Gram Panchayat Ukkadgaon in Solapur District observing that it was passed meeting all statutory requirements.

“the requirement of Rule 17 in the matter of proposing and seconding the motion cannot impinge upon the validity of the motion of no confidence which has otherwise been passed by fulfilling the requirement of Section 35(3) of the said Act as the said infraction does not affect the merits of the case”, the court held.

Rule 17 of the Bombay Village Panchayats (Meetings) Rules, 1959 provides that a member who has given notice of a motion shall either state that he does not wish to move the motion, or formally move the motion, after the motion is duly seconded.

The court dismissed two writ petitions filed by the Sarpanch and Upa-Sarpanch against an order dated October 13, 2023, wherein the Collector, Solapur, dismissed their Dispute Applications challenging the validity of the Motion of No Confidence.

Pleadings Vague And Unsubstantiated: Bombay High Court Refuses To Entertain PIL Seeking Protection From 'Unsafe Water Bodies'

Case Title: AjitSingh Ghorpade v. State of Maharashtra & Ors.

Citation: 2023 LiveLaw (Bom) 548

The Bombay High Court refused to hear a plea by advocate Ajitsingh Ghorpade seeking directions for appropriate measures to safeguard people from waterfalls and water bodies, claiming that every year around 1,500 to 2,000 people lose their lives to 'unsafe water bodies' in Maharashtra.

A division bench of Chief Justice D K Upadhyaya and Justice Arif Doctor observed –

“On being explained that the averments made in the PIL petition are unsubstantiated, vague and general in nature, learned counsel representing the petitioner states that the petitioner may be permitted to withdraw the PIL petition with liberty to institute a fresh petition. In view of the aforesaid, the PIL petition is dismissed as withdrawn with liberty to file fresh petition, if the petitioner is so advised, with appropriate data, information, law and study.”

Accordingly, the lawyer withdrew the plea.

On a query by the bench, the petitioner's lawyer had claimed that he had gathered the information that 1500-2000 people lost their lives to unsafe water bodies each year from newspapers and social media posts. He contended that the state government be directed to take steps to ensure the safety of people who visit such water bodies.

Victim Or Guardian In POCSO Case Not Obligated To Appear Before Court In Appeals And Application For Sentence Suspension: Bombay High Court

Case Title: Rohit s/o Chandrakant Bhagat v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 549

The Bombay High Court clarified that the child victim of offenses under the Protection of Children from Sexual Offences (POCSO) Act or their guardians are not obligated to appear before the court in appeals or applications for suspension of sentence by the convict.

Justice Anil Pansare of the Nagpur Bench observed that confusion has arisen among advocates, investigating agencies, and court officials regarding the necessity of the presence of a child victim, through parents or guardians, in appeals under Section 374 or applications for suspension of sentence under Section 389 of the CrPC.

The court emphasized that the child's or the guardian's presence is not obligatory except in bail applications, as per directions given by the court in Arjun Kishanrao Malge v. State of Maharashtra.

The court admitted an appeal against conviction and directed the appellant to delete the victim's name from both the appeal and the application for suspension for sentence.

N.N. Global Judgment Does Not Affect The Power Of Court To Grant Interim Measures Under Section 9 Of The A&C Act Despite Inadequacy/Insufficiency Of Stamp Duty: Bombay High Court

Case Title: L&T Finance Limited v. Diamond Projects Limited

Citation: 2023 LiveLaw (Bom) 550

The High Court of Bombay held that the judgment of the Constitution Bench in N.N. Global does not affect the power of Court to grant interim measures under Section 9 of the A&C Act despite the non-payment or insufficiency of payment of stamp duty on the arbitration agreement or the main agreement containing the arbitration clause.

The bench of Justice Bharati Dangre held that unlike Section 11 or 8 of the A&C Act, the Court exercising powers under Section 9 of the Act is not required to make a determination on the existence and validity of the arbitration agreement rather the Court would have to grant interim relief on the parameters of three-fold test of (a) prima facie case (b) balance of convenience and (c) irreparable injury.

The Court held that an inadequately/insufficiently stamped instrument/document/agreement shall not preclude the party from seeking interim measures as contemplated under Section 9 of the A&C Act.

Tenants' Limited Right To Seek Building Repair Can't Obliterate Landlord's Right To Redevelop It: Bombay High Court

Case Title: Anandrao G Pawar v. Municipal Corporation of Greater Mumbai & Ors.

Citation: 2023 LiveLaw (Bom) 551

The Bombay High Court held that tenants cannot stretch their limited right to reconstruct or repair a dilapidated building in order to obstruct the property owner/landlord from redeveloping his property.

Ruling in favor of the petitioner/landlord, division bench of Justice GS Patel and Justice Kamal Khata set aside the no-objection certificate ("NOC") and subsequent repair permissions granted to tenants w.r.t. a building in Worli.

The court observed that the petitioner/owner was desirous of redeveloping the property and was willing to re-accomodate tenants free of cost on basis of ownership. As such, he was entitled to “enjoy the fruits of development of that property to the fullest possible extent.”

It was added that when an owner does not exercise his rights, "and stands idly by doing nothing to the prejudice of the tenants", the tenants are not without a remedy. They can have the building repaired or rebuilt to its original condition, but no more.

Confession Made To Police Patil Admissible In Court: Bombay High Court

Case Title: Vishwas S/o Pitambar Patil v. State of Maharashtra

Citation: 2023 LiveLaw (Bom) 552

Confession made to Police Patil is admissible in court as Police Patil is not a “Police Officer” for the purpose of Section 25 of the Evidence Act, Bombay High Court held.

A division bench of Justice Vibha Kankanwadi and Justice Abhay S Waghwase while upholding a man's conviction for murdering his own daughter, observed that his advocate relied on an outdated judgment to challenge the testimony of a prosecution witness.

The advocate representing the appellant had relied on the Single Judge decision in Ram Singh v. State of Maharashtra (1999) wherein it was held that the Police Patil is a Police Officer and therefore, confession made before him is not admissible in evidence. Based on this case, he challenged the testimony of a Police Patil who testified that the appellant confessed to him.

However, the court pointed out that subsequently, a Full Bench (three judge bench) of the Bombay HC in Rajeshwar s/o Hiraman Mohurle v. State of Maharashtra (2009) held that Police Patil appointed under the Maharashtra Village Police Act, 1967 is not a “Police Officer” for the purpose of Section 25 of the Evidence Act.