Case BriefsSupreme Court

Supreme Court:  In the matter where the first proviso to Rule 3(2)(c) of the Karnataka Value Added Tax Rules, 2005 was being interpreted to facilitate the determination of taxable turnover as defined in Section 2(34) of the Karnataka Value Added Tax Act, 2003 in interface with Section 30 of the Act and Rule 31 of the Rules, the Court said that the interpretation to be extended to the proviso involved has to be essentially in accord with the legislative intention to sustain realistically the benefit of trade discount as envisaged. Any exposition to probabilise exaction of the levy in excess of the due, being impermissible cannot be thus a conceivable entailment of any law on imperative impost.

The Court further said that to insist on the quantification of trade discount for deduction at the time of sale itself, by incorporating the same in the tax invoice/bill of sale, would be to demand the impossible for all practical purposes and thus would be ill-logical, irrational and absurd. Trade discount though an admitted phenomenon in commerce, the computation thereof may depend on various factors singular to the parties as well as by way of uniform norms in business not necessarily enforceable or implementable at the time of the original sale. To deny the benefit of deduction only on the ground of omission to reflect the trade discount though actually granted in future, in the tax invoice/bill of sale at the time of the original transaction would be to ignore the contemporaneous actuality and be unrealistic, unfair, unjust and deprivatory. While, devious manipulations in trade discount to avoid tax in a given fact situation is not an impossibility, such avoidance can be effectively prevented by insisting on the proof of such discount, if granted.

The bench of Dipak Misra and Amitava Roy, JJ said that the requirement of reference of the discount in the tax invoice or bill of sale to qualify it for deduction has to be construed in relation to the transaction resulting in the final sale/purchase price and not limited to them original sale sans the trade discount. However, the transactions allowing discount have to be proved on the basis of contemporaneous records and the final sale price after deducting the trade discount must mandatorily be reflected in the accounts as stipulated under Rule 3(2)(c) of the Rules. The sale/purchase price has to be adjudged on a combined consideration of the tax invoice or bill of sale as the case may be along with the accounts reflecting the trade discount and the actual price paid. The first proviso has thus to be so read down, as above, to be in consonance with the true intendment of the legislature and to achieve as well the avowed objective of correct determination of the taxable turnover. [Southern Motors v. State of Karnataka, 2017 SCC OnLine SC 42, decided on 18.01.2017]

 

Case BriefsSupreme Court

Supreme Court: Deciding an important question of law as to whether provisions of Section 5 of the Limitation Act, 1963 are applicable in respect of revision petition filed in the High Court under Section 81 of the Assam Value Added Tax Act, 2003 (VAT Act), the Court held that the court cannot interpret the law in such a manner so as to read into the Act an inherent power of condoning the delay by invoking Section 5 of the Limitation Act so as to supplement the provisions of the VAT Act which excludes the operation of Section 5 of the Limitation Act by necessary implications.

Taking note of the fact that Section 84 of the VAT Act made only Sections 4 and 12 of the Limitation Act applicable to the proceedings under the VAT Act, the Court noticed that the legislative intent behind the same was to exclude other provisions, including Section 5 of the Limitation Act. Section 29(2) stipulates that in the absence of any express provision in a special law, provisions of Sections 4 to 24 of the Limitation Act would apply. If the intention of the legislature was to make Section 5, or for that matter, other provisions of the Limitation Act applicable to the proceedings under the VAT Act, there was no necessity to make specific provision like Section 84 thereby making only Sections 4 and 12 of the Limitation Act applicable to such proceedings, in as much as these two Sections would also have become applicable by virtue of Section 29(2) of the Limitation Act.

The bench of Dr. A.K. Sikri and Abhay Manohar Sapre, JJ said that the VAT Act is a complete code not only laying down the forum but also prescribing the time limit within which each forum would be competent to entertain the appeal or revision. The underlying object of the Act appears to be not only to shorten the length of the proceedings initiated under the different provisions contained therein, but also to ensure finality of the decision made there under. Hence, the application of Section 5 of the Limitation Act, 1963 to a proceeding under Section 81(1) of the VAT Act stands excluded by necessary implication, by virtue of the language employed in section 84. [Patel Brothers v. State of Assam, 2017 SCC OnLine SC 19, decided on 04.01.2017]

Case BriefsSupreme Court

Supreme Court: In the matter relating to supply of the ‘grounds’ of detention to the detenue when the Court has passed the order of detention under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, the Court said that neither Section 3 of the Act use the term ‘grounds’ nor any other provision in the Act defines ‘grounds’. However, Section 3(3) deals with communication of the detention order and states that ‘grounds’ on which the order has been made shall be communicated to the detenue as soon as the order of detention is passed and fixes the time limit within which such detention order is to be passed. It is here the expression ‘grounds’ is used and it is for this reason that detailed grounds on which the detention order is passed are supplied to the detenue.

Explaining further, the Court said that these grounds are the ‘basic facts’ on which conclusions are founded and these are different from subsidiary facts or further particulars of these basic facts. There is only one purpose of the Act, namely, preventing smuggling and all other grounds, whether there are one or more would be relatable to the various activities of smuggling. Hence, different instances would be treated as different ‘grounds’ as they constitute basic facts making them essentially factual constituents of the ‘grounds’ and the further particulars which are given in respect of those instances are the subsidiary details.

In the present case, the High Court of Delhi had said that there various grounds which formed the basis of the detention order and even if the documents pertaining to one particular ground were not furnished, that ground could be ignored applying the principle of segregation of grounds enumerated in Section 5A of the Act and on remaining grounds the detention order was still sustainable. Agreeing with the view taken by the High Court, the bench of Dr. A.K. Sikri and Abhay Manohar Sapre, JJ said that once it is found that the detention order contains many grounds, even if one of them is to be rejected, principle of segregation contained in Section 5A gets attracted. [Gautam Jain v. Union of India, 2017 SCC OnLine SC 16, decided on 04.01.2017]

Case BriefsSupreme Court

Supreme Court: Explaining the term ‘dividend’ under Section 2(22)(e) of the Income Tax Act, 1961, the Court said that the said provision gives an artificial definition of ‘dividend’ and creates a fiction, thereby bringing any amount paid otherwise than as a dividend into the net of dividend under certain circumstances. Stating that the dividend taken note of by this provision is a deemed dividend and not a real dividend, the Court explained that loan or payment made by the company to its shareholder is actually not a dividend. In fact, such a loan to a shareholder has to be returned by the shareholder to the company. It does not become income of the shareholder.

The Court, however, clarified that for certain purposes, the Legislature has deemed such a loan or payment as ‘dividend’ and made it taxable at the hands of the said shareholder. The conditions required to be fulfilled to attract tax under the said clause are:

  • Payment is to be made by way of advance or loan to any concern in which such shareholder is a member or a partner.
  • In the said concern, such shareholder has a substantial interest.
  • Such advance or loan should have been made after the 31.05.1987.

The question that came before the bench of Dr. A.K. Sikri and Abhay Manohar Sapre, JJ was that whether in view of the settled principle that HUF cannot be a registered shareholder in a company and hence could not have been both registered and beneficial shareholder, loan/advances received by HUF could be deemed as dividend within the meaning of Section 2(22)(e) of the Income Tax Act, 1961 especially in view of the term “concern” as defined in the Section itself.

The Court noticed that, in the present case, the Karta is, undoubtedly, the member of HUF. He also has substantial interest in the assessee/HUF, being its Karta as he was entitled to not less than 20% of the income of HUF. Hence, it was held that the provisions of Section 2(22)(e) of the Act get attracted and it is not even necessary to determine as to whether HUF can, in law, be beneficial shareholder or registered shareholder in a Company. As per the provisions of Section 2(22)(e) of the Act, once the payment is received by the HUF and shareholder is a member of the said HUF and he has substantial interest in the HUF, the payment made to the HUF shall constitute deemed dividend within the meaning of clause (e) of Section 2(22) of the Act. [Gopal and Sons v. CIT, Kolkata, 2017 SCC OnLine SC 17, decided on 04.01.2017]

 

Case BriefsSupreme Court

Supreme Court: Giving a 4:3 verdict, the 7-Judge Bench held that an appeal in the name of religion, race, caste, community or language is impermissible under the Representation of the People Act, 1951 and would constitute a corrupt practice sufficient to annul the election in which such an appeal was made regardless whether the appeal was in the name of the candidate’s religion or the religion of the election agent or that of the opponent or that of the voter’s.

In the matter where the interpretation of the word ‘his’ under Section 123(3) of the Representation of the People Act, 1951, T.S. Thakur, CJ and Madan B. Lokur, L.Nageswar Rao and S.A. Bobde, JJ, giving the majority view, said that the sum total of Section 123 (3) even after amendment is that religion, race, caste, community or language would not be allowed to play any role in the electoral process and should an appeal be made on any of those considerations, the same would constitute a corrupt practice. It was held that for maintaining the purity of the electoral process and not vitiating it, sub-section (3) of Section 123 of the Representation of the People Act, 1951 must be given a broad and purposive interpretation thereby bringing within the sweep of a corrupt practice any appeal made to an elector by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate on the ground of the religion, race, caste, community or language of (i) any candidate or (ii) his agent or (iii) any other person making the appeal with the consent of the candidate or (iv) the elector.

Dr. D.Y. Chandrachud, Adarsh K. Goel and U.U. Lalit, JJ on the other hand were of the opinion that the ‘his’ in Section 123(3) of RP Act does not refer to the religion, race, caste, community or language of the voter. ‘His’ is to be read as referring to the religion, race, caste, community or language of the candidate in whose favour a vote is sought or that of another candidate against whom there is an appeal to refrain from voting. It was said that the actual unfolding of democracy and the working of a democratic constitution may suffer from imperfections but these imperfections cannot be attended to by an exercise of judicial redrafting of a legislative provision. [Abhiram Singh v. C.D. Commachen, 2017 SCC OnLine SC 9, decided on 02.01.2017]

 

Case BriefsSupreme Court

Supreme Court: Deciding the question as to whether a former ‘ruler’ is entitled to get full benefit of the exemption granted to him under Section 10 (19A) of the Income Tax Act 1961 from payment of income-tax or it is confined only to that portion of palace which is in his actual occupation as residence and the rest which is in occupation of the tenant would be subjected to payment of tax, the Court held that the Legislature did not intend to tax portion of the “palace” by splitting it in parts. Even if the Ruler had let out the portion of his residential palace, yet he would continue to enjoy the exemption in respect of entire palace because it is not possible to split the exemption in two parts, i.e., the one in his occupation and the other in possession of the tenant.

Interpreting the related provisions, the Court said that in Section 10(19A) of the I.T. Act, the Legislature has used the expression “palace” for considering the grant of exemption to the Ruler whereas on the same subject, the Legislature has used different expression namely “any one building” in Section 5 (iii) of the Wealth Tax Act. No reliance could be placed on Section 5(iii) of the Wealth Tax Act while construing Section 10(19A) for the reason that the language employed in Section 5(iii) is not identical with the language of Section 10(19A) of the I.T. Act. If the Legislature intended to split the Palace in part(s), alike houses for taxing the subject, it would have said so by employing appropriate language in Section 10(19A) of the I.T. Act. Also, Section 23(2) and (3), uses the expression “house or part of a house”. Such expression does not find place in Section 10(19A) of the I.T. Act. Likewise, there is no such expression in Section 23, specifically dealing with the cases relating to “palace”.

In the present case which related to the ‘Umed Bhawan Palace’ used by the ‘ruler’ as his official residence and some part of which had been requisitioned to the Defence Ministry, the bench of Ranjan Gogoi and Abhay Manoher Sapre, JJ further said that if two Statutes dealing with the same subject use different language then it is not permissible to apply the language of one Statute to other while interpreting such Statutes. Similarly, once the assessee is able to fulfill the conditions specified in section for claiming exemption under the Act then provisions dealing with grant of exemption should be construed liberally because the exemptions are for the benefit of the assessee. [Maharao Bhim Singh of Kota v. Commissioner of Income Tax, 2016 SCC OnLine SC 1428, decided on 05.12.2016]

Case BriefsSupreme Court

Supreme Court: In the matter where the moot question before the Court was that whether the Sub-Registrar (Registration) has authority to cancel the registration of any document including an Extinguishment Deed after it is registered? Similarly, whether the Inspector General (Registration) can cancel the registration of Extinguishment Deed in exercise of powers under Section 69 of the Registration Act, 1908, the Court said that in absence of any express provision regarding cancellation of registration, it is not open to assume that the Sub-Registrar (Registration) would be competent to cancel the registration of the documents in question. Similarly, the power of the Inspector General is limited to do superintendence of registration offices and make rules in that behalf. Even the Inspector General has no power to cancel the registration of any document which has already been registered.

In the present matter that was placed before the 3-Judge Bench of Ranjan Gogoi, P.C. Pant and A.M. Khanwilkar, JJ owing to the difference of opinion between Dipak Misra and V. Gopala Gowda, JJ while deciding the question as to authority of the sub-registrar to register the Extinguishment deed, the Court explained that the fact whether the document was properly presented for registration cannot be reopened by the Registrar after its registration. The power to cancel the registration is a substantive matter. Section 35 of the Act does not confer a quasi-judicial power on the Registering Authority. The Registering Officer is expected to reassure that the document to be registered is accompanied by supporting documents. He is not expected to evaluate the title or irregularity in the document as such. The examination to be done by him is incidental, to ascertain that there is no violation of provisions of the Act of 1908. He cannot decide as to whether a document presented for registration is executed by person having title, as mentioned in the instrument. The validity of such registered document can, indeed, be put in issue before a Court of competent jurisdiction.

Another question that was placed before bench was whether in absence of any specific Rule in the State of Madhya Pradesh with regard to the registration of an Extinguishment Deed, the general principle laid down in the case of Thota Ganga Laxmi v. Government of Andhra Pradesh, (2010)15 SCC 207 would be applicable where it was held that a unilateral cancellation deed cannot be registered with reference to Rule 2(k)(i) of the Rules framed by the State of Andhra Pradesh under Section 69 of the Act of 1908. The Court held that the said judgment was dealing with the express provision as applicable in the State of Andhra Pradesh and the dictum in that decision cannot have universal application to all the States and hence, in absence of such an express provision, in other State legislations, the Registering Officer would be governed by the provisions in the Act of 1908. [Satya Pal Anand v. State of M.P., 2016 SCC OnLine SC 1202, decided on 26.10.2016]

Case BriefsSupreme Court

Supreme Court: Interpreting the provisions of the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962 (PMP Act), the Court said that the definition “Corporation” is wide enough to take within its sweep entities in private sector as well. Considering the nature of activity where entities in private sector are encouraged to participate, it would be incorrect to put any restricted meaning as regards the expression “Corporation”. This definition is designedly kept wide enough to include all such possibilities and there is no reason for giving any restricted meaning to such expression.

Regarding the contention that “Competent Authority” is given wide ranging powers under Section 5 of the PMP Act, the Court said that a person who occupies the position of Competent Authority under the PMP Act must evoke and enjoy public confidence. Neither the Act nor the Rules framed thereunder deal with the qualifications required of a person before his appointment as Competent Authority nor do they deal with any transparent process for such appointment. Stating that like the PMP Act, the Metro Railway (Construction of Works) Act, 1978 also confers power upon the Competent Authority therein to consider objections to the construction of the Metro Railway or any other work and to determine the amount payable for acquisition, the Court noticed that the Competent Authority under the provisions of the PMP Act must also be someone who is holding or has held a Judicial Office not lower in rank than that of a Subordinate Judge or is a trained legal mind as is the case under the Metro Act . If such requirement is not read into and not taken as an integral and essential qualification before appointment of any person as Competent Authority, the provisions in that behalf will not be consistent with the doctrine of fairness under Article 14 of the Constitution of India.

The Bench of V. Gopala Gowda and U.U. Lalit, JJ, however, clarified that the actions taken by the Competent Authority till now, will not in any way stand impaired or be invalidated purely on this count. But the Central Government should step in immediately and remedy the situation with appropriate measures. [Laljibhai Kadvabhai Savaliya v. State of Gujarat, 2016 SCC OnLine SC 1101, decided on 05.10.2016]

 

Case BriefsSupreme Court

Supreme Court: In the controversy relating to bids invited by the Nagpur Metro Rail Corporation Limited for the design and construction of Metro Rail in the city of Nagpur, the Court held that M/s. Guangdong Yuantian Engineering Company (GYT) of China and M/s. TATA Projects Limited (TPL) as a Joint Venture (GYT-TPL JV) were not eligible to bid for the contract under consideration.

The issue arose in the light of one of the eligibility criteria specified by NMRCL where it was necessary that the bidder has satisfactorily completed a minimum number of similar contracts as a prime contractor, joint venture member during last 10 (ten) years i.e. up till 31.05.2016. According to GYT-TPL JV, it had executed the Pearl River Delta intercity high speed railway project in China, however, as per NMRCL, an inter-city high speed railway project did not meet the requirements of a metro civil construction work.

NMRCL has contended that there is a difference between an inter-city rail and a metro rail.  An inter-city rail is between two cities and the trains are usually high speed trains. A metro rail is intra-city, it has a dedicated right-of-way, normally it does not have high speed trains and the frequency of trains is much greater that of inter-city trains. A metro rail may extend, in some cases, to a suburb of a metropolitan city but it essentially remains an intra-city project. There is, therefore, a qualitative difference between an inter-city rail and a metro rail. By itself, this indicates a qualitative difference in a railway project that is inter-city and a railway project that is intra-city and the construction of a viaduct for a railway project that is inter-city and a railway project that is intra-city.

Considering the said difference highlighted by the he Court, hence, held that the fact that GYT-TPL JV made constructions in a metropolitan city or in a metropolitan area during the execution of the Pearl River Delta inter-city high speed railway project, does not make that project an intra-city metro rail project. It continues to be an inter-city railway project.

Regarding the interference with the decision of the owner or the employer in accepting or rejecting the bid of the tendered, the bench of Madan B. Lokur and R.K. Agrawal, JJ said that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional Courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional Courts but that by itself is not a reason for interfering with the interpretation given. [Afcons Infrastructure Ltd v. Nagpur Metro Rail Corporation Ltd, 2016 SCC OnLine SC 940, decided on 15.09.2016]

Case BriefsSupreme Court

Supreme Court: The bench of Abhay Manohar Sapre and Ashok Bhushan JJ., upheld the decision of the Rajasthan High Court where the accused were acquitted of the charges under Narcotic Drugs Psychotropic Substances Act, 1985 for non-compliance of Section 42 of the NDPS Act.

In the instant matter, a jeep with the accused as passengers had been apprehended by the SHO carrying opium powder for which the accused had no license. They were subsequently charged under Sections 8/15 of the NDPS Act. The Session Judge, convicting the two accused, had found that the SHO had complied with S. 42 in reporting the information and also that the jeep was a ‘public place’ under S. 43 of the Act and therefore there had been no need for warrant or authority for search. The High Court, however, found inconsistency in the records of information and the absence of sufficient ground authorizing the search, which added to non-compliance with the mandatory provisions of S. 42(1) and S. 42(2) of the NDPS Act. Further, it was observed that the jeep could not be treated as a public transmit vehicle and hence S. 43 of the NDPS Act was not applicable. Hence, the conviction was held improper and the order of Sessions Judge was set aside.

The bench while deciding the appeal, relied on several judgments of the Supreme Court explaining Sections 42 and 50 of the NDPS Act, said that Section 42(2) requires that where an officer takes down an information in writing under sub-Section (1) he shall send a copy thereof to his immediate officer senior. It was further said that Section 42 (1) indicates that any authorised officer can carry out search between sun rise and sun set without warrant or authorisation. The scheme indicates that in event the search has to be made between sun set and sun rise, the warrant would be necessary unless officer has reasons to believe that a search warrant or authorisation cannot be obtained without affording the opportunity for escape of offender which grounds of his belief has to be recorded. The Court, hence, found that the view held by the High Court in the matter was in conformity with the view held by the Supreme Court as the High Court had given sufficient reason and grounds for setting aside the conviction, and that it found no error or infirmity to interfere in the appeal. [State of Rajasthan v. Jag Raj Singh, 2016 SCC OnLine SC 619, decided on 29.06.2016.]

Case BriefsHigh Courts

Andhra Pradesh High Court: While interpreting the definition of ‘Husband’s relatives under Section 498A Penal Code, 1860, the Bench comprising of U. Durga Prasad Rao, J. held that the definition could not be stretched to include the wife of one’s elder brother.

In the present petition, the Complainant and her husband went to live at the home of the Complainant’s eldest brother in London, who lived with his wife. It was alleged that the complainant’s husband and her sister-in-law entered into an illicit relationship, and that after the Complainant observed them in a compromising position, following which the sister-in-law started spreading rumours that husband of the Complainant did not like the Complainant and that she was unsuited to him.

The Court cited U. Suvetha v. State by Inspector of Police, (2009) 6 SCC 757 whereby it was held that the girlfriend or concubine of the husband could not be held to be the relative of the husband and Vijeta Gujra v. State of N.C.T. Of Delhi, (2010) 11 SCC 618, which quashed proceedings against a foster sister having an illicit relation with the husband, to highlight the Supreme Court’s view that the term ‘relative of the husband’ meant related by blood, marriage or adoption. The Court stated that penal provisions required strict construction, and in the absence of definition of phrases by statute, they are to be understood in the natural, ordinary or popular sense. The Court, hence, quashed the proceedings against the sister-in-law of the Complainant as she was not a relative by blood, marriage or adoption to the husband but to the Complainant, and additionally because no allegations touching other provisions or of cruelty as defined by Section 498 A were made against her. [Shaik Riayazun Bee v. State of Andhra Pradesh,2016 SCC OnLine Hyd 130, decided on 01-06-2016]

Case BriefsSupreme Court

Supreme Court: Dealing with the question relating to interpretation of Section 69(3) of the Partnership Act, 1932 with reference to its applicability to Arbitral proceedings, the bench of Fakkir Mohamed Ibrahim Kalifulla and C. Nagappan, JJ held that the Arbitral Proceedings do not come under the expression “other proceedings” of Section 69(3) of the Partnership Act and hence, the ban imposed under the said Section 69 can have no application to Arbitral proceedings as well as the Arbitration Award.

Interpreting S. 69 of the Partnership Act, the Court held that in order to attract the said Section, first and foremost the pending proceeding must be a suit instituted in a Court and in that suit a claim of set off or other proceedings will also be barred by virtue of the provision set out in sub-sections (1) and (2) of Section 69 as specifically stipulated in sub-section (3) of the said Section. Having regard to the manner in which the expressions are couched in sub-section (3), a claim of set off or other proceedings cannot have independent existence. In other words, the foundation for the application of the said sub-section should be the initiation of a suit in which a claim of set off or other proceedings which intrinsically connected with the suit arise and not otherwise.

Rejecting the contention that an Arbitral proceeding can be equated to a Civil Court Proceeding, the Court took notice of the Sections 35 and 36 of the Arbitration and Conciliation Act, 1996 and held that Section 36 of the 1996 Act only creates a statutory fiction which is limited for the purpose of enforcement of the Award. The deeming fiction is specifically restricted to treat the Award as a decree of a Court, exclusively for the purpose of execution, though as a matter of fact, it is only an Award of Arbitral proceeding. It is a settled proposition, that a statutory provision will have to be construed from the words that are expressly used and it is not for the Court to add or substitute any word to it. Therefore, going by Sections 35 and 36 of the 1996 Act it cannot be held that the entire Arbitral proceeding is a Civil Court proceedings for the purpose of applicability of Section 69(3) of the Partnership Act. [Umesh Goel v. Himachal Pradesh Cooperative Group Housing Society Ltd., 2016 SCC OnLine SC 624, decided on 29.06.2016]

Case BriefsForeign Courts

Supreme Court of United Kingdom: In the matter concerning the interpretation of Section 83 of the Nationality, Immigration and Asylum Act 2002, Lord Hughes held that Section 83 can be read as a matter of language a number of ways, some are more natural than others. “In particular, Section 83 appears to focus on the time when the asylum claim has been rejected, for it is concerned with appeals against this decision, and then to ask whether, when a claimant wishes to appeal, the condition in subsection 1(b) is met.”

It was also stated that the purpose of Section 83 is very clear that provide an additional and more targeted right of appeal beyond the ordinary one created by Section 82 and that Section 83 was molded to create an extra right to appeal for those who have a longer period to leave. Thus the most valid interpretation of Section 83 is that grants of leave to remain bring the claimant within the section providing that such leave totaled more than 12 months counting from the date of refusal or later grant, and whether the grants were made before or after refusal.

In the present case, the appellant, a citizen of Uganda, was granted limited leave to remain in the United Kingdom as a student.  Before that time had expired, he applied for asylum on the grounds that the Ugandan government’s treatment of him might be affected because of his brother was suspected of being involved in terrorist activities in Uganda. His appeal was rejected by the Secretary of State, she contented on case AS (Somalia) v Secretary of State for the Home Department [2011] EWHC 627 (Admin) where it was said that no more than 12 months’ leave associated with the first refusal of asylum, and no refusal of asylum associated with the much later grant of indefinite leave. The present appellant plea was too dismissed by the Court of Appeal. [MS (Uganda) v. Secretary of State for the Home Department; [2016] UKSC 33; decided on 22nd June, 2016]

Supreme Court

Supreme Court: Dealing with interesting question as to whether the dead person’s property, in the form of his or her estate, can be taxed without the necessary machinery provisions in a tax statute, the bench of Dr. A.K. Sikri and R.F. Nariman, JJ held that a taxing statute is to be interpreted in the light of what is clearly expressed and anything which is not expressed should not be implied.

Rejecting the contention that Section 11A of the Central Excises and Salt Act, 1944 (Act) is a machinery provision which must be construed to make it workable, the Court said that machinery provisions apply on the persons who wish to evade taxes but in the present case the individual proprietor had died through natural causes and that it is nobody’s case that he had maneuvered his own death in order to evade excise duty.

The Court was of the opinion that to tax the dead is a contradiction in terms and that tax laws are made by the living to tax the living, hence, said that while interpreting the provisions of the Act, legal heirs who are not the persons chargeable to duty under the Act cannot be brought within the ambit of the Act by stretching its provisions. Shabina Abraham v. Collector of Central Excise & Customs, 2015 SCC OnLine SC 664, decided on 29.07.2015

 

Supreme Court

Supreme Court: Interpreting Section 319 and 227 of CrPC, the bench of S.A. Bobde and R.K. Agrawal, JJ said that under Section 319 a person who is not an accused becomes liable to be added where he appears to have committed an offence whereas Section 227 on the other hand, provides that an accused may be discharged if the Judge construes that there is no sufficient ground for the proceedings against him.Stating that both the provisions have opposite effect, the Court explained that The power under Section 319 results in the summoning and consequent commencement of the proceedings against a person who was hitherto not an accused and the power under Section 227 results in termination of proceedings against the person who is an accused.

Rejecting the contention that under Section 227 of the Cr.P.C., the only qualification necessary is that the person should be accused, the Court held that the accused summoned under Section 319 of the Cr.P.C. are entitled to invoke remedy under law against an illegal or improper exercise of the power under Section 319, but cannot have the effect of the order undone by seeking a discharge under Section 227 of the Cr.P.C. The Court further said that an order for addition of an accused made after considering the evidence cannot be undone by coming to the conclusion that there is no sufficient ground for proceeding against the accused without appreciation of evidence. Hence, it was held that a person who is an accused under Section 319 ought not to be given an opportunity to avail of the remedy of discharge under Section 227 since it would be contrary to the scheme and intent of the Cr.P.C. Jogendra Yadav v. State of Bihar, (2015) 9 SCC 244

 

High Courts

Himachal Pradesh High Court– Deciding the writ petition which is filed challenging the refusal of appointment of the petitioner for the post of lecturer in Automobile Engineering, Class-1 (Gazetted) on the ground of not having requisite qualification, a bench of Mansoor Ahmad Mir CJ, held that the respondents have deprived the petitioner of his legitimate right of being appointed as the lecturer even after obtaining permission and recommendation from the Himachal Pradesh Public Service Commission. The Court allowed the petition and appreciated the fact that Petitioner made grade in the written examination as well as in the interview and had all the requisite qualification papers in order. The Court also referred to relevant judgments of apex Court, Chandrakala Trivedi v. State of Rajasthan (2012) 3 SCC 129, wherein it was held that the word “equivalent” must be given a reasonable meaning and if a person is provisionally selected, it is not within the powers of the department to refuse appointment when he has been found suitable by the Commission and recommendation has been made for his appointment.

In the present case, the Himachal Pradesh Public Service Commission had invited applications for filling up of the posts of lecturers in Automobile Engineering, Class-1 (Gazetted). Petitioner had applied for the post and was called for written examination after his qualification certificates and other credentials were scrutinized. After qualifying the written examination and also the interview, the Commission recommended the petitioner for appointment. However, the Respondents 1 and 2 refused giving reason that the qualification of B. Tech. in Automobile Engineering is not equivalent to the qualification of the B.Tech. in Mechanical Engineering. In response, the petitioner presented equivalence certificate issued by the Lovely Professional University, which clearly indicated that B. Tech. in Automobile Engineering is equivalent to B. Tech. in Mechanical Engineering which was ignored by the Respondents.

The Court stated that the Respondents’ action of not taking equivalence certificate into consideration was not justified and directed the respondents to consider the recommendation made by the Public Service Commission. Anshul Sharma v. State of Himachal Pradesh, 2015 SCC OnLine HP 835, decided on 10.4.2015

High Courts

Madras High Court: While discussing the issue that whether “expiry date” and “best before date” are similar as contended by the petitioner in the present case, the bench of Vaidyanathan, J. observed that there is a clear distinction between the two terms. While “expiry date” means the end of estimated period under any stated storage conditions, after which product probably will not have the quality and safety attributes normally expected by the consumers; whereas “best before date” means the period during which the product shall remain fully marketable and shall retain specific qualities for which tacit or express claims have been made. The Court further added that Food Safety and Standards (Packaging and Labeling) Regulations, 2011 has clearly drawn the distinction between the terms.

The case before the Court was that one of the food items imported by the petitioner did not meet the labeling requirements of the Food Safety and Standards Act, 2006 as the expiry date and the best before date for the product was same, whereas the Guidelines by the Food Safety and Standards Authority of India (FSSAI) state explicitly that the two dates should be different and clearly specified. Counsel H.R Krishnan appearing for the petitioner argued that as per the requisites of Rule 2.2.9 of 2011 Regulations, only the date of manufacture and best before date is required to be furnished. K. Surendranath appearing for the respondents put forth that there is a distinction between “best before date” and “expiry date” and in view of this distinction FSSAI issued Guidelines dated 24.01.2013 directing that in case of wholesale packages which contain both “best before date” and “expiry date”, they should be different and not same.

The Court after a detailed analysis of the concerned provisions, observed that when there is a is clear distinction between “expiry date” and “best before date” then the petitioner cannot be allowed to mention a single date for both as it would mislead the consumers to think that the product will never lose its quality. The Court on perusing the petitioner’s contention of absence of a specific law prohibiting mentioning of a single date as the expiry date and best before date observed that, in presence of the FSSAI Guidelines such argument is misconceived. Furthermore it was observed that there is no requirement to mention both ‘”best before date” and ‘expiry date’ and that a wholesale package can have either “best before date” or “expiry date”, but in case if the manufacturer intends to give both dates, then two dates should be different and clearly specified. M/S. Amrut Distilleries Ltd. v. The Authorized Officer, FSSAI, 2015 SCC OnLine Mad 321, decided on 19.03.2015 

High Courts

Tripura High Court: Deciding the question relating to taxability of Soya Deoil Cake under the Tripura Value Added Tax, 2004 depending upon it being a poultry or being fit for human consumption, a bench of Deepak Gupta,CJ and S. Talapatra,J held that as Soya Deoil Cake was not poultry feed but could be used as an ingredient of poultry feed, hence, the same was not taxable. Considering that Soya Deoil cake was both an ingredient for poultry feed as well as an ingredient for manufacturing goods for human consumption, the Court stated that the assessee must file an undertaking to use the product only for manufacture of animal feed. Dayananda Enterprise v. State of Tripura, W.P. (C) 240 of 2007, decided on 02.06.2014.

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High Courts

Tripura High Court: Deciding the question as to  as to whether Alumina Ferric or ‘Fitkari’ falls within the definition of chemical under  Entry 47 of Schedule II(b) or falls within the definition of salt in Entry 35 of Schedule III of the Tripura Value Added Tax Act, 2004, a division bench of Deepak Gupta, CJ and S. Talapatra, J held that Entry 47 covers all types of chemicals including salts, and the common meaning of salt is common salt or ‘Namak’ and Ferric Alum is not referred to as salt in common parlance.  Considering that Alumina Ferric is both a salt as well as a chemical and that All salts would basically have chemical qualities and would also be chemical, the Court, for deciding the question that whether Entry 35 of Schedule III of the Act relates to all salts or is limited to a particular type of salt, took note of the list of exempted good mentioned in Schedule III of the Act and held that Entry 35 of Schedule III of the Act refers to common salt and not to any chemical which may be used as a salt. Sree Maa Multipurpose Cooperative Society v. State of Tripura, WP(C) NO. 81 of 2011, decided on 03.06.2014

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