2016 SCC Vol. 6 July 28, 2016 Part 5

scccover 28.07

Administrative Law — Promissory Estoppel — Applicability — Nature and Scope — Invocation of the Doctrine: It is not the law that there can be no promissory estoppel against the Government in exercise of its sovereign, governmental, public or executive powers. That would be in complete contradiction of decisions of Supreme Court. It is true that taxation is a sovereign or governmental function, but no distinction can be made between exercise of a sovereign or governmental function and a trading or business activity of Government, so far as doctrine of promissory estoppel is concerned. [Manuelsons Hotels (P) Ltd. v. State of Kerala, (2016) 6 SCC 766]

Civil Procedure Code, 1908 — S. 2(2) and Or. 14 — Decree — What amounts to: In terms of S. 2(2), it is only where court adjudicating a case, conclusively determines rights of parties with regard to any one or more or all matters in controversy, that it qualifies as “decree”. [Rishabh Chand Jain v. Ginesh Chandra Jain, (2016) 6 SCC 675]

Civil Procedure Code, 1908 — S. 9, Or. 2 Rr. 3, 4 & 7 and Or. 7 Rr. 3, 7 & 8: Claim in respect of subject-matter if not covered in suit, not maintainable. Fresh suit has to be filed in respect such subject-matter, if maintainable. [Ram Dutt v. Dev Dutt, (2016) 6 SCC 718]

Criminal Procedure Code, 1973 — S. 197(1) — Previous sanction to prosecute public servant under — When required: Protection under S. 197 is available only when alleged act done by public servant is reasonably connected with discharge of his official duty and is not merely a cloak for doing objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between act and performance of official duty, excess will not be a sufficient ground to deprive public servant of protection. Question is not as to nature of offence such as whether alleged offence contained element necessarily dependent upon offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in discharge of his official capacity. Before S. 197 can be invoked, it must be shown, that official concerned was accused of offence alleged to have been committed by him while acting or purporting to act in discharge of his official duties. It is not the duty which requires examination so much as the act, because official act can be performed both in discharge of official duty as well as in dereliction of it. The act must fall within the scope and range of official duties of public servant concerned. There cannot be any universal rule to determine whether there is a reasonable connection between act done and official duty, nor is it possible to lay down any such rule. One safe and sure test in such regard, would be to consider if omission or neglect on part of public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty. This makes it clear, that concept of S. 197 does not get immediately attracted on institution of complaint case. [Amal Kumar Jha v. State of Chhattisgarh, (2016) 6 SCC 734]

Criminal Procedure Code, 1973 — Ss. 193, 190, 209 and 397 to 401 — Power of Sessions Court to take cognizance under S. 193 CrPC as a court of original jurisdiction — When available: When Magistrate has played an active role in taking/refusing cognizance before committing case under S. 209 CrPC, i.e. of active committal, when Magistrate has already exercised cognizance power, Sessions Court cannot take cognizance for a second time “as a court of original jurisdiction” under S. 193 CrPC, as cognizance of an offence can only be taken once. It can only exercise its revisional jurisdiction. In another situation when Magistrate has played a passive role in committing case under S. 209 CrPC, i.e. passive committal, since Magistrate has not exercised cognizance power, Sessions Court is free to exercise the same for the first time “as a court of original jurisdiction” under S. 193 CrPC. [Balveer Singh v. State of Rajasthan, (2016) 6 SCC 680]

Criminal Trial — Practice and Procedure — Locus standi/standing: Term “locus standi” is Latin term, general meaning of which is “place of standing”. Concise Oxford English Dictionary, defines “locus standi” as the right or capacity to bring an action or to appear in a court. Traditional view of “locus standi” has been, that person who is aggrieved or affected alone has the standing before court i.e. to say he only has a right to move court for seeking justice. Later, Supreme Court, with justice-oriented approach, has relaxed the strict rule with regard to “locus standi”, allowing any person from society not related to cause of action to approach the court, bona fide seeking justice for those who could not themselves approach the court. Regarding criminal trial, which is conducted, largely, by following procedure laid down in CrPC, since offence is considered to be a wrong committed against society, prosecution against accused person is launched by State. It is duty of State to get culprit booked for offence committed by him. Focal point here is that if State fails in aforesaid regard, then, party having bona fide connection with cause of action, who is aggrieved by order of court, cannot be left at mercy of State and without any option to approach the court for seeking justice. [Amanullah v. State of Bihar, (2016) 6 SCC 699]

Delhi Value Added Tax Act, 2004 (DVAT) (3 of 2005) — Ss. 7(a) and (c) — Movement of goods by way of imports or by way of inter-State trade: As DMRC had executed a contract under which respondent had to provide transformers, switchgears, high voltage cables, SCADA system and also complete electrical solution, including control room for operation of metro trains on the section concerned and the terms of contract envisaged inter-State movement of goods, held, movement of goods by way of imports or by way of inter-State trade was in pursuance of conditions and/or as an incident of contract between assessee and DMRC. Further, goods were of specific quality and description for being used in works contract awarded on turnkey basis to assessee and there was no possibility of such goods being diverted by assessee for any other purpose. In this case, order of High Court holding that transactions constituted inter-State trade and sale or purchase in course of import and same were covered by S. 3(a) and S. 5(2) respectively of CST Act and, therefore, exempt from taxation under Delhi Value Added Tax Act, 2004, upheld. [CVAT v. ABB Ltd., (2016) 6 SCC 791]

Income Tax Act, 1961 — Ss. 80-IB and 80-IC — Deductions: Assessee contended that all the subsidies given by the Government, went towards cost of manufacture or sale of the products; such subsidies being towards costs which were actually incurred by it and thereafter reimbursed by the State. Revenue contended that any amount received by way of subsidy was an amount whose source was the Government and not the business of the assessee and that the respondent/assessee did not qualify for deductions under Ss. 80-IB and 80-IC of the Act. It was held that all the four subsidies were revenue receipts which were reimbursed to the assessee for elements of cost relating to manufacture or sale of their products, and there was a direct nexus between profits and gains of the industrial undertaking or business, and reimbursement of such subsidies. Further, so long as profits and gains emanated directly from the business itself, the fact that the immediate source of the subsidies was the Government made no difference. Hence, assessee entitled to deduction of the same. [CIT v. Meghalaya Steels Ltd., (2016) 6 SCC 747]

Limitation Act, 1963 — Arts. 60, 109, 110 & 113 and S. 7: Sale of Hindu ancestral property by widow after death of her husband original owner, is in contravention of S. 8 of Hindu Minority and Guardianship Act, 1956, hence voidable. Art. 60 is applicable to suit by quondam minor to set aside alienation of his property by his guardian and limitation period of three years will start from date of minor attaining majority. Even if on date of filing of suit, remaining plaintiffs were major, but none of them was in capacity of manager of the family so as to be capable of giving discharge without concurrence of the minor and as such by virtue of S. 7 of Limitation Act, 1963, time of 3 yrs will run against all the plaintiffs only on minor attaining majority. [Narayan v. Babasaheb, (2016) 6 SCC 725]

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