Judgments
Supreme Court
Airport Authority Of India vs. Centre For Aviation Policy, Safety & Research (CAPSR) & Others
MANU/SC/1275/2022
30.09.2022
Civil
Terms of the Invitation to Tender, being in the realm of contract, are not open to judicial scrutiny
The Airport Authority of India ( ‘AAI’) has preferred Civil Appeal against the judgment and order passed by the High Court, by which the High Court has struck down the decision to carry out region-wise sub-categorisation of the 49 airports falling under Group D-1; the stipulation that only previous work experience in respect of providing GHS to scheduled aircrafts shall be considered acceptable for the purpose of the impugned tender/RFP and the revised minimum Annual Turnover criteria of INR 18 crores as discriminatory and arbitrary.
Respondent No.1 claiming to be a non-profit organisation carrying out research, advisory and advocacy in the field of civil aviation had filed a writ petition challenging the tender conditions in the respective RFPs. It is required to be noted that none of the GHAs who participated in the tender process and/or could have participated in the tender process have challenged the tender conditions. It is required to be noted that the writ petition before the High Court was not in the nature of Public Interest Litigation. Respondent No.1 cannot be said to be an” aggrieved party”. The High Court ought to have dismissed the writ petition on the ground of locus standi of respondent No.1 – original writ petitioner to maintain the writ petition.
The High Court has erred in quashing and setting aside the eligibility criteria/tender conditions mentioned in the respective RFPs, while exercising the powers under Article 226 of the Constitution of India. As per the settled position of law, the terms and conditions of the Invitation to Tender are within the domain of the tenderer/tender making authority and are not open to judicial scrutiny, unless they are arbitrary, discriminatory or mala fide. As per the settled position of law, the terms of the Invitation to Tender are not open to judicial scrutiny, the same being in the realm of contract. The Government/tenderer/tender making authority must have a free hand in setting the terms of the tender.
Further, selecting GHS for providing GHS cannot be equated with the procurement of any goods and services that form the crux of the MSME orders. The impugned judgment passed by the High Court are unsustainable and the same are quashed and set aside. Appeals allowed.
Tags : Categorisation Airports Tender
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Supreme Court
Fertilizers and Chemicals Travancore Ltd. & Ors. Vs Anusree K.B.
MANU/SC/1273/2022
30.09.2022
Service
Compassionate ground is a concession and not a right
The original Appellants have preferred the present appeal dissatisfied with the impugned judgment passed by the High Court by which the High Court has confirmed the judgment and order passed by the learned Single Judge directing the appellants to consider the case of the respondent herein for appointment on compassionate ground.
The compassionate ground is a concession and not a right. Compassionate appointment is an exception to the general rule of appointment in the public services and is in favour of the dependents of a deceased dying in harness and leaving his family in penury and without any means of livelihood, and in such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is, thus, to enable the family to tide over the sudden crisis. The object is not to give such family a post much less a post held by the deceased.
The Respondent shall not be entitled to the appointment on compassionate ground on the death of her father, who died in the year 1995. After a period of 24 years from the death of the deceased employee, the Respondent shall not be entitled to the appointment on compassionate ground. If such an appointment is made now and/or after a period of 14/24 years, the same shall be against the object and purpose for which the appointment on compassionate ground is provided.
Both, the learned Single Judge as well as the Division Bench of the High Court have committed a serious error in directing the appellants to reconsider the case of the respondent for appointment on compassionate ground. The judgment and order passed by the learned Single Judge as well as the Division Bench of the High Court are quashed and set aside. Appeal allowed.
Tags : Appointment Direction Legality
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High Court of Delhi
Vinai Kumar Saxena vs. Aam Aadmi Party and Ors.
MANU/DE/3695/2022
27.09.2022
Civil
Right to freedom of speech and expression is not an unfettered right under which defamatory statements can be made to tarnish the reputation of person
The present suit has been filed on behalf of the Plaintiff seeking relief of permanent injunction and damages against the Defendants on account of defamatory statements made on behalf of the Defendants no.1 to 6 on the social media platforms of the Defendants no.7 and 8.
The Plaintiff is the Lieutenant Governor (LG) of Delhi and is a Constitutional Authority. The Defendant no.1 is a political party, Aam Aadmi Party. The Defendants no.2 to 6 are office bearers of the Defendant no.1 Party.
Article 19(1)(a) of the Constitution of India, 1950 afford the right of freedom of speech and expression to all persons. However, the same is subject to restrictions under Article 19(2), which includes defamation. Therefore, the right to freedom of speech and expression is not an unfettered right in the garb of which defamatory statements can be made to tarnish the reputation of a person. The fundamental right to freedom of speech has to be counterbalanced with the right of reputation of an individual, which has been held to be a basic element of the right to life consecrated in Article 21 of the Constitution of India.
In the present case, the Plaintiff, being a Constitutional Authority, cannot meet the personal attacks being made by the Defendants against him by taking resort to social media platforms. The Defendants have not even bothered to respond to the legal notice sent on behalf of the Plaintiff. Therefore, the only remedy available for the Plaintiff to protect his reputation and prevent erosion of the same would be to approach the court of law and seek injunctive relief.
On a prima facie view, the various statements/interviews/press conferences/tweets/re-tweets/hashtags made by the Defendants are per se defamatory. The same have been made in a reckless manner, without any factual verification, in order to tarnish the reputation of the plaintiff. It cannot be gainsaid that reputation of a person is earned after years and the same cannot be tarnished by any other individual in a casual manner. The damage caused to the reputation of an individual is immediate and far- reaching on the internet. So long as the impugned content continues to be in circulation and visible on social media, it is likely to cause continuing damage to the reputation and image of the Plaintiff.
Balance of convenience is in favour of the Plaintiff and against the Defendants. Grave and irreparable harm and injury would be caused to the reputation of the Plaintiff, if the defamatory content continues to exist on the internet and the social media platforms of the Defendants no.7 and 8 and/or if the Defendants are permitted to continue making defamatory statements of this nature against the Plaintiff. An ad interim injunction is passed against the Defendants. The Defendants no.1 to 6 are restrained from posting any defamatory or factually incorrect tweets, re-tweets, hashtags, videos of press conferences/interviews, comments, captions and taglines against the plaintiff and/or his daughter in any manner.
Tags : Defamatory statements Injunction Grant
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Customs, Excise and Service Tax Appellate Tribunal
Jai Bhawani Concast Pvt. Ltd. Vs. Commissioner of Central Excise & Central Goods and Service Tax
MANU/CE/0353/2022
27.09.2022
Excise
Any amount deposited during investigation has to be treated as pre-deposit and the same is neither hit by limitation nor by unjust enrichment
The issue involved in present appeal is whether the Court below have erred in reducing the amount of refund, which was in the nature of pre- deposit, and further whether interest have been rightly allowed under Section 35FF of the Central Excise Act, 1944.
Learned Commissioner (Appeals) vide common order-in-appeal held that, the refund of Rs. 8 lakhs have been rightly granted, however, refund of Rs. 50,000 was held to be time barred and also hit by unjust enrichment, by observing that though the amount has not been paid against invoices, but he finds that raising invoices and collecting the amount of duty is not the only way to pass on the burden. As regards, interest under Section 35FF, it has been held that the Appellant is entitled to interest only on the amount, which was required to be deposited in terms of section 35F of the Act, at the time of filing of the appeal. Further, observing that as the remaining amount of refund has been sanctioned within the stipulated time, no interest is payable thereon. Being aggrieved the appellant is before present tribunal.
Madras High Court in the case of CCE vs Pricol Ltd have held that any amount deposited during investigation has to be treated as pre-deposit and the same is neither hit by limitation nor by the clause of unjust enrichment for the purpose of refund. Similar view has been taken by Hon'ble Allahabad High Court in CCE vs Eveready Industries Ltd and also by Hon'ble Gujarat High Court in the case of Principal Commissioner of Customs vs. H.V. Ceramics.
The learned Commissioner (Appeals) have erred in holding that the amount of Rs. 50,000 is hit by limitation and unjust enrichment, and further interest is not payable under Section 35FF of the Act.
The Appellant is entitled to refund of the balance amount of Rs. 50,000 which was deposited on 30th January 2003. Further, Appellant is entitled to interest on the full amount of Rs. 8.5 lakhs from the date of deposit till the date of refund @ of 12% per annum under the provisions of Section 35FF of the Act. The Adjudicating Authority is directed to grant the balance refund, as well as the interest within a period of 60 days. Appeal allowed.
Tags : Pre-deposit Refund Interest
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High Court of Delhi
Pr. Commissioner of Income Tax (Central)-2 vs. Panchmukhi Management Services Pvt. Ltd.
MANU/DE/3713/2022
26.09.2022
Direct Taxation
Seized material can be considered to be incriminating in terms of Section 153C of the IT Act only if it pertains to the Assessment Years in question
Present income tax appeals have been filed challenging the common order passed by the Income Tax Appellate Tribunal ('ITAT') deleting the protective additions made in the hands of the respondent-assessee.
Learned counsel for the Appellant states that, the ITAT has erred in holding that no incriminating material was found in the search, whereas the original copies of share certificates pertaining to share capital and premium allotted to investor companies were found at the premises of issuing company itself instead of investor company's premises evidencing, that, the investor companies were bogus/accommodation entry providing entities. He emphasises that in the present cases, there is a live link between the additions in question and the incriminating material.
Perusal of the satisfaction note reveals that, no document pertaining to Assessment Year 2011-12 was seized during search. The Supreme Court in Commissioner of Income Tax-III, Pune Vs. Sinhgad Technical Education Society has held that seized material can be considered to be incriminating in terms of Section 153C of the Act only if the said material pertains to the Assessment Years in question.
With respect to Assessment Years 2010-11 and 2012-13, this Court is of the view that the recovery of the annual report and the share certificate of the Petitioner from premises of Minda Group cannot be considered to be incriminating documents. The Minda Group was not a third party but the issuing authority of the share certificates. In fact, both the appellate authorities below have given a concurrent finding that no incriminating material had been brought on record by the Assessing Officer to sustain the additions on merit. Also, the genuineness of the share capital has been accepted both by CIT (A) and ITAT and also there is no live link between seized material and the additions made. Therefore, this Court is of the view that assumption of jurisdiction in the present cases by the Assessing Officer was erroneous.
The issue of protective addition in the hand of the Respondent-assessee does not arise. Accordingly, this Court is of the view that no substantial question of law arises for consideration in the present appeals and the same are dismissed.
Tags : Addition Deletion Legality
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Customs, Excise and Service Tax Appellate Tribunal
Rama Cylinders Pvt Ltd vs C.C.E. & S.T.
MANU/CS/0254/2022
26.09.2022
Service Tax
Service can be taxable in the hands of the recipient in India only when the part of it is performed in India
The issue involved in the present case is that whether the Appellant is liable to pay service tax in respect of exhibition service provided by foreign service provider in respect of exhibition in abroad on behalf of the Appellant for the period 2006-07, 2007-08 and 2009-10.
The Appellant submits that, the service was provided in countries like Pakistan, Egypt, Bangkok and Ukraine by the service provider of the said respective countries. He submits that, the service provider had provided the said service namely, Business Exhibition Service outside India only and the appellant had received the said service then and there only i.e. outside India. Even the service was not provided partly in India, therefore, the service is not liable to tax in the hands of the Appellant. He submits that, even the service is not covered as import of service in terms of Taxation of Service (Provided from outside India and received in India) Rules, 2006.
In the present case, the service provided by the overseas service provider is Business Exhibition Service. The service provider i.e. organiser of exhibitions are located in the countries such as Pakistan, Egypt, Bangkok and Ukraine and no any part of the service was provided in India. Entire service was provided outside India only, therefore, the locations of service is outside India. In such case, service tax cannot be levied in India. Even as per Rule 3 of Sub Rule (II) of Taxation of Service (Provided from Outside India and Received in India) Rules 2006, a service can be taxable in the hand of the recipient of the service in India only when the part of the service is performed in India.
In the present case, admittedly the whole of the service was provided outside India and received outside India, therefore, even in terms of the said rule, the service tax is not leviable on the Business Exhibition Service received by the appellant which was performed outside India hence not taxable in the hands of the appellant. Accordingly, the impugned order is set aside. Appeal allowed.
Tags : Tax Levy Legality
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Supreme Court
Balram Singh vs. Kelo Devi
MANU/SC/1241/2022
23.09.2022
Property
A relief of permanent injunction cannot be sought on the basis of an unregistered document
The Respondent – original Plaintiff instituted Original Suit before the learned trial Court for permanent injunction only. The said suit was filed on the basis of an unregistered agreement to sell dated 23rd March, 1996. The original Plaintiff sought permanent injunction restraining the Defendant from disturbing her possession in the suit property. In the said suit, the Appellant herein – original defendant filed a counter-claim seeking the decree of possession. The learned trial Court dismissed the suit filed by the original Plaintiff and refused to grant permanent injunction and allowed the counter-claim of the Defendant on the ground that original plaintiff could not prove the agreement to sell dated 23rd March, 1996 and that the original plaintiff is in unauthorised possession of the suit property since 8th July, 1997.
The original plaintiff preferred an appeal before the first appellate Court. The learned first appellate Court set aside the judgment and decree passed by the learned trial Court and consequently decreed the suit for permanent injunction against the defendant. The learned first appellate Court also dismissed the counter-claim of the defendant. The judgment and decree passed by the first appellate Court has been confirmed by the High Court.
The Plaintiff might not succeed in getting the relief of specific performance of such agreement to sell as the same was unregistered, the Plaintiff filed a suit simplicitor for permanent injunction only. It may be true that in a given case, an unregistered document can be used and/or considered for collateral purpose. However, at the same time, the plaintiff cannot get the relief indirectly which otherwise he/she cannot get in a suit for substantive relief, namely, in the present case the relief for specific performance. Therefore, the Plaintiff cannot get the relief even for permanent injunction on the basis of such an unregistered document/agreement to sell, more particularly when the defendant specifically filed the counter-claim for getting back the possession which was allowed by the learned trial Court.
Both, the learned first appellate Court and the High Court have committed a grave error in passing a decree for permanent injunction in favour of the Plaintiff as against the defendant and dismissing the counter-claim filed by the original defendant. The impugned judgment and order passed by the High Court dismissing Second Appeal confirming the judgment and decree passed by the first appellate Court and the judgment and decree passed by the first appellate Court decreeing the suit for permanent injunction in favour of the original plaintiff and dismissing the counter-claim of the defendant are quashed. Appeal allowed.
Tags : Injunction Possession Validity
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