Cases Reported in HCC

Income Tax—Finance Act, 1987—Settlement of inheritance rights—Liability to pay tax—The receipt of an amount for retirement from the partnership firm or in lieu of inheritance or pursuant to the family arrangement or as damages, it shall not be chargeable to tax under the Act, [Ramona Pinto v. CIT, (2023) 2 HCC (Bom) 72]

Arbitration and Conciliation Act, 1996—S. 34—Reiterated, when either party had exclusive power to appoint sole arbitrator, serious doubts would arise about eligibility of arbitrator, which vitiates entire proceedings, and such appointment is hit by Section 12(5) read with Schedule VII of Act. Held, unilateral appointment of sole arbitrator completely vitiated impugned award, rendering it vulnerable to interference, impugned award set aside, [Hanuman Motors (P) Ltd. v. Tata Motors Finance Ltd., (2023) 2 HCC (Bom) 100]

Sales Tax and VAT—Sale/Purchase or Service—Liability to Sales Tax/ VAT—Held, there was no transfer of right to use goods, therefore, the Tribunal was not justified in holding that the transportation job with the use of tanker trucks, as per the agreement with Hindustan Petroleum Corporation Limited amounted to transfer of right to use goods and hence, covered by definition of sale under the MVAT Act, 2002, making appellant liable for sales tax. Appeals, allowed, [Aurobindo Highway Services v. State of Maharashtra, (2023) 2 HCC (Bom) 113]

Debt, Financial and Monetary Laws—Negotiable Instruments Act, 1881—S. 138 r/w S. 141—The ingredients for constituting the offence punishable under Section 138 of the NI Act occurred post imposition of moratorium. Held, revisional court was justified in setting aside order of issuance of process against company for dishonour of cheque, [Asmita Sarang v. Yogesh Badoni, (2023) 2 HCC (Bom) 141]

Constitution of India—Art. 226—Whether interference warranted in service matters—The arrogant, rancorous and vindictive attitude on the part of the Authorities leading to unnecessary victimization of the official, warrants interference by the Writ Court, [Siddhartha Sar v. LIC, (2023) 1 HCC (Cal) 579]

Intellectual Property—Protection of Plant Varieties and Farmers’ Rights Act, 2001—Registration of Plant variety—Jurisdiction of Civil Court—Whether validity of registration of plant variety can be adjudged by Civil Court, held, once a plant variety is registered under Section 24, it is not subject to the test of validity by the Civil Courts. Only the Registrar or the authority under the Act has the power to rectify the register or cancel the registration on the ground that a variety’s registration is invalid, [Pan Seeds (P) Ltd. v. Ramnagar Seeds Farm (P) Ltd., (2023) 1 HCC (Cal) 589]

Service Law—Penalty/ Punishment—Reduction in rank of Public Official—Challenge to order of Disciplinary Committee for reducing the rank of public official, as penalty. The punishment of reduction in rank from Scale III officer to Scale II officer cannot be sustained and consequently, the order of punishment, set aside, [Sukanta Ganguly v. Bangiya Gramin Vikash Bank, (2023) 1 HCC (Cal) 618]

Criminal Procedure Code, 1973—S. 482—Appeal against conviction order of sentence for offences under Sections 363, 366 IPC and Section 6 of the POCSO Act, impugned decision, set aside by exercising inherent jurisdiction under Section 482 of the CrPC and plenary power under Article 226 of the Constitution, [Probhat Purkait v. State of W.B., (2023) 1 HCC (Cal) 626]

Double Taxation Relief—Non-Resident—Tax Payable—Ordinarily, term “tax payable” would mean tax, which is owed or due, although not paid. However, the meaning of the expression has to be found in the treaty executed between two Contracting States. The treaties/ Double Taxation Avoidance Agreements often define the term “tax payable”, [CIT v. Polyplex Corpn. Ltd., (2023) 5 HCC (Del) 658]

Arbitration and Conciliation Act, 1996—S. 34 and 37—Patent illegality as a ground for challenging award—Conclusions of arbitrator which are based on no evidence or have been arrived at by ignoring vital evidence are perverse and can be set aside on ground of patent illegality. Consideration of documents which are not supplied to other party is a facet of perversity falling within expression ‘patent illegality’, [Ircon International Ltd. v. DMRC, (2023) 5 HCC (Del) 669]

GST—Show Cause Notice—Held, show-cause notice not necessary prior to issuance of order. The rectification application filed by the assessee did not qualify qua errors apparent on face of record regarding output mismatch and non-reversal of credit notes, hence, writ petition was dismissed, [Vishaka Exports v. Commr. (SGST), (2022) 1 HCC (Mad) 158]

Constitution of India—Art. 226—Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002—While considering the writ petition under Art.226When Debt Recovery Tribunal is not functional, whether petition under Article 226 is maintainable? Held, although as per settled law petitions under Art. 226 not maintainable for issues under SARFAESI Act and against private financial institutions but when DRT is not functional, appropriate directions may be issued by the High Court but must be careful while exercising discretionary powers, [S. Manjula v. Indian Bank, (2022) 1 HCC (Mad) 164]

GST—Registration—Cancellation—Failure to file returns—The GST registration of assessees was cancelled for failure in filing returns. Assessees had failed to avail the opportunity provided by the Amnesty Scheme whereby extension was granted to assessees to take steps to have cancelled registrations restored. Allowing the petitions, petitioners were permitted to file their returns for the period prior to the cancellation of registration, [M. Mallika Mahal v. CCE (GST), (2022) 1 HCC (Mad) 174]

Arbitration—Arbitration and Conciliation Act, 1996 S. 12(5) and Sch. 7—Held, unilateral appointment of a sole arbitrator without an express agreement in writing is not valid, as proviso to Section 12(5) of the Act mandates that there should be an express agreement in writing by the parties, [Prime Store v. Sugam Vanijya Holdings (P) Ltd., (2023) 1 HCC (Mad) 244]

Narcotics Drugs and Psychotropic Substances Act, 1985—S. 42 and 50—Appeal against conviction— Held, no irregularity was detected in the seizure procedure as it was in accordance with the provisions of NDPS Act. The appeal lacked merits, hence, the Special Court’s order for exclusive trial of case under the NDPS Act, confirmed, [Ayoouluwa David Adebakin v. State of T.N., (2023) 1 HCC (Mad) 276]