High Court of Delhi

SUNIL KUMAR MISHRA v. STATE

MANU/DE/0791/2020

12.03.2020

Motor Vehicles

Cancellation of driving license for all classes or description of vehicles permanently is excessive

Petitioner impugns judgment whereby the appeal of the Petitioner impugning order on conviction has been dismissed, however the order on sentence has been modified. Petitioner was convicted by the Trial Court of the offences punishable under Sections 279/304-A of the Indian Penal Code, 1860 (IPC) and sentenced to undergo rigorous imprisonment for a period of six months for the offence under Section 279 of IPC and rigorous imprisonment for the period of 18 months under Section 304A of IPC.

The Appellate Court additionally directed that, the driving licence of the petitioner shall stand cancelled and debarred him from obtaining any driving licence throughout his life and directed that no fresh driving licence shall be issued to him. Learned counsel for the Petitioner submits that the petitioner has already undergone the entire sentence; however, he is impugning the order of the Appellate Court, in so far as it directs the cancellation of the driving licence of the Petitioner and debars him from obtaining any driving licence throughout his life.

Section 20 of of the Motor Vehicles Act, 1988 empowers the Court, by which a person is convicted, if he is convicted of an offence under this Act or of an offence in the commission of which a motor vehicle was used, in addition to imposing any other punishment authorised by law, to declare the person so convicted to be disqualified, for such period as the Court may specify, from holding any driving licence to drive all classes or description of vehicles, or any particular class or description of such vehicles, as are specified in such licence. The Proviso stipulates that in respect of an offence punishable under section 183 of the Act, no such order shall be made for the first or second offence.

Section 20 (3) of the Act empowers the Court, unless for special reasons to be recorded in writing to order otherwise, order the disqualification of a person who having been convicted of an offence punishable under Section 184 is again convicted of an offence punishable under that section and that the period of disqualification shall not exceed five years.

In the facts of the present case, since there is no material on record to show that Petitioner was earlier convicted of an offence under Section 184 of the Act, clearly, Sections 21 and 22 of the Act are not applicable. Both the courts have held that, the Petitioner was driving the offending vehicle i.e. truck trailer in rash and negligent manner and hit against the deceased from the back, in such a manner that it caused the death of the deceased, who was declared brought dead.

Petitioner has been convicted of an offence under section 304A of IPC i.e. causing death by rash and negligent act. Death has been caused by use of a motor-vehicle. Clearly Section 20 (1) of the Act would be attracted and the Court, in addition to imposing any other punishment authorised by law would be empowered to declare the Petitioner to be disqualified, for such period as the Court may specify, from holding any driving licence to drive all classes or description of vehicles, or any particular class or description of such vehicles, as are specified in such licence.

The Petitioner is a driver by profession and cancellation of the driving license of the Petitioner permanently and debarring him from obtaining a driving licence for life amounts to a punishment that he cannot carry out the vocation of driving throughout his life. The punishment of cancellation of the driving license permanently and debarring him from obtaining any driving license throughout his life literally amounts to his civil death because he would not be in a position to carry out his profession for life.

In the present case, the concurrent finding of both the Courts below is that Petitioner caused the death by driving the offending vehicle i.e. truck trailer, in a rash and negligent manner and hit against the deceased from the back, in such a manner that it caused the death of the deceased on the spot. Clearly, it cannot be said that the action of the Appellate Court in directing cancellation of the license driving license is unwarranted. However, in the facts of the case and particularly keeping in view the provisions of section 22 of the Act, present Court is of opinion that, cancellation of the license driving license of the petitioner for all classes or description of vehicles is excessive.

In view the facts and circumstances of the case, interest of justice would be served, in case, the sentence awarded by the Appellate Court of cancellation of the driving license of the Petitioner and debarring him from obtaining any driving license throughout his life, is modified to the extent that the driving license of the petitioner is cancelled for the class and description of medium and heavy goods and medium and heavy passenger vehicle and he is debarred from obtaining a driving licence for medium and heavy goods and medium and heavy passenger vehicle. Petition is allowed.

Tags : Driving licence Cancellation Legality

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High Court of Bombay

Milind Bhimsing Shirsath Vs. The State of Maharashtra and Ors.

MANU/MH/0396/2020

09.03.2020

Civil

Mere different view on same facts would not entitle committee dealing with subsequent caste claim to reject it

By present petition under Article 226 of the Constitution of India, 1950 the Petitioner seeks to challenge the order passed by Respondent no. 2 committee thereby invalidating the caste certificate of the Petitioner as belonging to Tokre Koli which is notified as Scheduled Tribe under SC/ST (Amendment) Act, 1976 for the second time.

Learned counsel appearing for the Petitioner invites attention of present Court to the grounds taken in the petition and the fact that the validity certificate is granted in favour of Petitioner's real uncle and other close relatives on paternal side. In support of aforesaid contention that once the validity certificate is granted in favour of near relatives of the candidate, the cast validity certificate deserves to be issued in favour of the Petitioner, the learned counsel pressed into service the exposition of law in the case of Apoorva D/o Vinay Nichale vs. Divisional Caste Certificate Scrutiny Committee No. 1.

In spite of placing on record overwhelming documents in the nature of validity certificates issued in favour of real uncle of the Petitioner, the documents showing Petitioner's father's tribe claim has been validated by the then Appellate Authority and also validity certificates issued in favour of close relatives of the Petitioner. It needs to be noted that in spite of two remand orders by this Court, Respondent No. 2-Committee by reiterating same reasons has discarded the tribe claim of the Petitioner.

The Petitioner has submitted all the validity certificates of his close relatives as well as copy of the said judgment in case of his father in support of his Tribe Claim as Tokare Koli. It appears that in spite of Tribe validity certificates on record the Scrutiny Committee negated the claim of the Petitioner on the ground that in the school record in the caste column the entry is made as Hindu Koli in case of father and uncle of the Petitioner.

This Court in the case of Apoorva D/o Vinay Nichale vs. Divisional Caste Certificate Scrutiny Committee No. 1, held that the matters pertaining to validity of caste have a great impact on the candidate as well as on the future generations in many matters varying from marriage to education and enjoyment, and therefore where a committee has given a finding about the validity of the caste of a candidate, another committee ought not to refuse the same status to a blood relative who applies. A merely different view on the same facts would not entitle the committee dealing with the subsequent caste claim to reject it.

In the peculiar facts and circumstances of this case, and keeping in view the caste validity certificate issued in favour of real uncle of the Petitioner, so also the cast validity certificate issued in favour of the Petitioner's father by the then Appellate Authority and other caste validity certificates issued in favour of close relatives of the Petitioner, so also keeping in view exposition of law in the case of Apoorva D/o Vinay Nichale vs. Divisional Caste Certificate Scrutiny Committee No. 1, present Court is of the considered view that petition deserved to be allowed. The Respondent No. 2-Committee is directed to furnish the caste validity certificate to the Petitioner. Accordingly, writ petition stands disposed of.

Relevant

Apoorva D/o Vinay Nichale vs. Divisional Caste Certificate Scrutiny Committee No. 1, MANU/MH/0868/2010

Tags : Scrutiny Committee Caste certificate Validity

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Supreme Court

Connectwell Industries Pvt. Ltd. Vs. Union of India (UOI) and Ors.

MANU/SC/0296/2020

06.03.2020

Direct Taxation

Unless there is preference given to Crown debt by a statute, dues of a secured creditor have preference over Crown debts

In present case, the Appellant filed the Writ Petition in the High Court seeking a restraint order against the Tax Recovery Officer-Respondent No. 4 for enforcing the attachment made under the Income Tax Act, 1961 for recovery of the dues. The question posed before the High Court is whether the Appellant who bona fide purchased the property in auction sale as per the order of the DRT is entitled to have the property transferred in its name in spite of the attachment of the said property by the Income Tax Department.

Relying upon Rule 16 of Schedule II to the Act, the High Court came to the conclusion that there can be no transfer of a property which is the subject matter of a notice. The High Court was also of the view that after an order of attachment is made under Rule 16(2) of Schedule II to the Act, no transfer or delivery of the property or any interest in the property can be made, contrary to such attachment. The High Court held that notice under Rule 2 of Schedule II to the Act was issued on 11th February, 2003, and the property in dispute was attached under Rule 48 of Schedule II to the Act on 17th June, 2003, whereas the sale in favour of the Appellant took place on 09.12.2004 and the sale certificate was issued on 14th January, 2005. Therefore, the transfer of the property made subsequent to the issuance of the notice under Rule 2 of Schedule II to the Act and the attachment under Rule 48 of Schedule II to the Act, is void. The submission made on behalf of the Appellant that the sale in favour of the Appellant was at the behest of the DRT and not the defaulter i.e., BPIL was not accepted by the High Court.

It is trite law that, unless there is preference given to the Crown debt by a statute, the dues of a secured creditor have preference over Crown debts. Rule 2 of Schedule II to the Act provides for a notice to be issued to the defaulter requiring him to pay the amount specified in the certificate, in default of which steps would be taken to realise them.

The crucial provision for adjudication of the dispute in this case is Rule 16. According to Rule 16(1), a defaulter or his representative cannot mortgage, charge, lease or otherwise deal with any property which is subject matter of a notice under Rule 2 of Schedule II to the Act. Rule 16(1) of Schedule II to the Act also stipulates that no civil court can issue any process against such property in execution of a decree for the payment of money. However, the property can be transferred with the permission of the Tax Recovery Officer. According to Rule 16(2) of Schedule II to the Act, if an attachment has been made under Schedule II to the Act, any private transfer or delivery of the property shall be void as against all claims enforceable under the attachment.

There is no dispute regarding the facts of this case. The property in dispute was mortgaged by BPIL to the Union Bank of India in 2000 and the DRT passed an order of recovery against the BPIL in 2002. The recovery certificate was issued immediately, pursuant to which an attachment order was passed prior to the date on which notice was issued by the Tax Recovery Officer-Respondent No. 4 under Rule 2 of Schedule II to the Act. It is true that the sale was conducted after the issuance of the notice as well as the attachment order passed by Respondent No. 4 in 2003, but the fact remains that a charge over the property was created much prior to the notice issued by Respondent No. 4 on 16th November, 2003.

The High Court held that, Rule 16(2) of Schedule II to the Act is applicable to this case on the ground that the actual sale took place after the order of attachment was passed by Respondent No. 4. The High Court failed to take into account the fact that the sale of the property was pursuant to the order passed by the DRT with regard to the property over which a charge was already created prior to the issuance of notice on 11th February, 2003. As the charge over the property was created much prior to the issuance of notice under Rule 2 of Schedule II to the Act by Respondent No. 4, there is force in the submissions made on behalf of the Appellant.

The judgment of the High Court is set aside and the Appeal is allowed. The MIDC is directed to issue a 'No Objection" certificate to the Appellant. Respondent No. 4 is restrained from enforcing the attachment order dated 17th June, 2003.

Tags : Attachment order Enforcement Legality

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High Court of Chhattisgarh

South Eastern Coalfields Limited and Ors. Vs. Ashok Kumar Thakur

MANU/CG/0243/2020

06.03.2020

Service

Matriculation certificate is an authentic document for ascertaining date of birth of an employee cannot be doubted unless it is proved to be forged

In present case, correctness and sustainability of the order passed in Writ Petition is put to challenge wherein the learned Single Judge allowed the writ petition filed by the Respondent-Employee while quashing the orders, wherein Appellant-Employer has determined the date of birth of the Respondent-Employee as 14.11.1958 by the Age Determination Committee ('ADC'). The learned Single Judge taking note of the judgment passed in the matter of Mithilesh Sharma v. SECL held that Respondent-Employee would be permitted to continue in service accepting his date of birth to be taken as 14th November, 1960.

The Appellant-Employer submits that the letter dated 1st February, 1999 issued by the Ministry of Coal, Government of India is based on the consideration of an employee/Mazdoor to be engaged in employment only after attaining the age of 18 years except he produce required certificate from competent authority and looking to the age of superannuation/retirement of 60 years, the maximum period of service of employee/Mazdoor will not be more than 42 years. It is pointed out that a minor cannot be engaged in employment as Mazdoor. Looking to the date of employment and the period of service as per his date of birth, the Respondent-Employee will work for more than 60 years, which is contrary to the provisions of Certified Standing Orders.

Implementation Instruction No. 76 provides for method/procedure for determination of the age at the time of appointment under Clause A(i). It provides that the employees who passed matriculates and the date of birth recorded in the said certificate shall be treated as correct date of birth and the same will not be altered under any circumstances.

In the facts of the case, the Appellant-Employer should have taken into consideration matriculation certificate issued from the Board of Secondary Education,. As per Implementation Instruction No. 76, the matriculation certificate is one of the authentic documents for ascertaining the date of birth of an employee. Subsequent presentation of certificate cannot be doubted unless it is proved to be forged when at the time of entry into service as Mazdoor, no document is required to be submitted of an employee including the document of date of birth.

When the date of birth mentioned in the office record as of the year 1976 and date of birth in matriculation certificate are same, then reliance placed upon the report of the Radiological test was not proper. As per medical jurisprudence, the determination of age on the basis of Radiological test, there is variation of age of ± (plus/minus) 2 years, and hence, it cannot be said to be conclusive. The Appellant-Employer has not placed on record any impeachable evidence to show that the date of birth of Respondent-Employee recorded in service record was not correct.

There is no doubt that the Employer can take recourse of correction of date of birth of any of its Employees, but he should be in possession of satisfactorily, admissible and irrefutable piece of evidence with him, particularly, when the Employer wants to correct date of birth recorded by one of its Employees, in service record of any other Employee at the time of entering into the service of that particular Employee. There is no infirmity in the impugned order passed by learned Single Judge. The appeal is hereby dismissed.

Tags : Birth certificate Authenticity Determination

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Income Tax Appellate Tribunal

Md. Hussain Habib Pathan v. Asst. CIT

MANU/IU/0355/2020

05.03.2020

Direct Taxation

A genuine arrangement cannot be disregarded when same results or operates to minimize Assessee’s tax liability

Present is an Appeal by the Assessee directed against the Order by the Commissioner of Income Tax (Appeals), partly allowing the assessees’ appeal. The only issue therefore requiring adjudication is that raised by the assessee is in respect of house property income qua the assessee’s residential house property.

The assessee has claimed a loss of Rs.15,32,120 qua the said property on account of interest (on borrowed capital) at Rs. 21,62,120, adjusting it against the rental income of Rs. 9 lakhs. The said rent was, on the basis of a field enquiry by the Assessing Officer (AO), found to be from the assessee’s major son, and major daughter, residing there at along with the assessee’s other family members. Nobody would, in the view of the AO, charge rent (for residence) from his own son and daughter, particularly considering that both are unmarried and living together with their family at its’ self-owned abode. The arrangement was therefore regarded merely as a tax-reducing device adopted by the assessee, liable to be ignored. Treating the house property as a self-occupied property, the AO restricted the claim of interest under Section 24(b) of Income Tax Act, 1961 to Rs. 1,50,000, and which was confirmed by the CIT(A) in appeal for the same reason/s.

The Assessee’s claim was that there is nothing to show that the arrangement, which is duly supported by written agreements, furnished in the assessment proceedings, is fake or a make-believe. Rental income cannot be overlooked or disregarded merely because it arises from close family members.

Surely, the arrangement is highly unusual, particularly considering that the rent is in respect of a self-owned property (i.e., for which no rent is being paid), which constituted the family’s residence, with, further, the assessee’s son and daughter being unmarried. That, however, may not be conclusive of the matter. Being a private arrangement, not involving any third party, not informing the cooperative housing society may also not be of much consequence. The Revenue has rested merely by doubting the genuineness of the arrangement, without probing the facts further.

It could be that the assessee’s major son and daughter are financially independent (or substantially so), with independent incomes, sharing the interest burden of their common residence with their father. And, as such, instead of transfer of funds to him per se, have regarded, by mutual agreements, the same as rent, as that would, apart from meeting the interest burden to that extent, also allow tax saving to the assessee-father. A genuine arrangement cannot be disregarded as the same results or operates to minimize the assessee’s tax liability.

On quantum, however, the assessee’s stand is infirm. The assessee’s interest claim therefore cannot be allowed in full and shall have to be suitable proportioned, even as agreed, restricting the interest claim relatable to the self occupied part thereof to, as allowed, Rs. 1.50 lakhs. The assessee’s appeal is partly allowed.

Tags : Assessment Genuine arrangement Legality

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Income Tax Appellate Tribunal

Girish Madhukar Rathi v. The Dy. Commissioner of Income Tax

MANU/IP/0110/2020

05.03.2020

Direct Taxation

On mere suspicion, addition for unexplained Cash Credit cannot be made

In facts of present case, the assessee is son of Shri Madhukar Rathi. The assessee filed his return of income declaring total income of Rs.56,10,180. At the end of the scrutiny proceedings, the assessment was completed determining the assessed income at Rs.1,75,53,770. Apart from others, the Assessing Officer made an addition of Rs.79 lakhs under Section 68 of the Income-tax Act, 1961.

The Assessing Officer is of the view that despite the filers income tax return by concerned loan creditors, banking transactions, the loan transactions are not genuine. According to Assessing Officer, Shri Madhukar Rathi lacks creditworthiness. Despite the documentation furnished by the assessee with regard to creditworthiness of Shri Madhukar Rathi, loan transactions through banking channels, repayment of loans with interest, compliance of TDS provisions, wherever applicable, the AO invoked the provisions of section 68 of the Act and made addition on account of unsecured loan of Rs.79 lakhs. During the first appellate proceedings, the assessee could not win the appeal before the CIT(A). The CIT(A) dismissed the appeal of assessee and confirmed the additions.

It is an undisputed fact that the assessee has Running Account in matters of taking loans from Shri Madhukar Rathi (father) and Shri Madhukar Rathi in turn taking loans from Rahul Anil Birla and Nand Sales Corporation. The said transactions are undisputedly through banking channels. It is further an undisputed fact that during the year under consideration, the assessee repaid to the tune of Rs.1,25,50,000 to Shri Madhukar Rathi. So, it is case of taking loans and repayment of loans through a Running Account. Regarding balance of loan in the Running Account, it is also an undisputed fact that, in past too, no addition of these loans amounts were added by AO despite the similar loan transactions with Shri Madhukar Rathi and, in turn, Shri Madhukar Rathi with Rahul Anil Birla, Rakesh N. Birla and Nand Sales Corporation.

Therefore, it is case of mere suspicion of the AO that led to invoking of the provisions of Section 68 of the Act. Otherwise, there is no evidence with Revenue to demonstrate that it is case of money laundering, non discharge of onus by the assessee. With the loans taken from Birlas & others, Shri Madhukar Rathi is capable of providing loan of Rs.79 lakhs to the assessee. AO has not disturbed the loans in the cases of Birlas & others. There is no case of addition under Section 68 of the Act. The additions made by the AO are not sustainable. Therefore, grounds raised by the assessee are required to be allowed.

Tags : Transaction Genuineness Additions Legality

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