1 March 2021


Judgments

Supreme Court

Joydeep Majumdar vs. Bharti Jaiswal Majumdar

MANU/SC/0119/2021

26.02.2021

Family

Defamatory complaints by highly educated spouse irreparably damaging reputation and career of partner amounts to mental cruelty entitling divorce decree

The challenge in present appeals is to the judgment and order in the First Appeal whereby the High Court had allowed both appeals by reversing the common order. The Appellant is an Army Officer with M.Tech qualification. The Respondent is holding a faculty position in the Government College.

In present case, the High Court set aside the decree for dissolution of marriage and allowed the Respondent’s suit for restitution of conjugal rights, under the impugned judgment. Challenging the High Court’s decision, the learned Senior Counsel highlights that, the Respondent had filed a series of complaints against the Appellant before the superior officers in the Army upto the level of the Chief of Army Staff and to other authorities and these complaints have irreparably damaged the reputation and mental peace of the Appellant. The Appellant cannot therefore be compelled to resume matrimonial life with the Respondent, in the face of such unfounded allegations and cruel treatment.

For considering dissolution of marriage at the instance of a spouse who allege mental cruelty, the result of such mental cruelty must be such that, it is not possible to continue with the matrimonial relationship. In other words, the wronged party cannot be expected to condone such conduct and continue to live with his/her spouse. The degree of tolerance will vary from one couple to another and the Court will have to bear in mind the background, the level of education and also the status of the parties, in order to determine whether the cruelty alleged is sufficient to justify dissolution of marriage, at the instance of the wronged party.

The materials in the present case reveal that, the Respondent had made several defamatory complaints to the Appellant’s superiors in the Army for which, a Court of inquiry was held by the Army authorities against the Appellant. Primarily for those, the Appellant’s career progress got affected. The Respondent was also making complaints to other authorities, such as, the State Commission for Women and has posted defamatory materials on other platforms. The Appellant’s career and reputation had suffered. When the Appellant has suffered adverse consequences in his life and career on account of the allegations made by the Respondent, the legal consequences must follow and those cannot be prevented only because, no Court has determined that, the allegations were false.

The question which requires to be answered here is whether the conduct of the Respondent would fall within the realm of mental cruelty. The allegations are levelled by a highly educated spouse and they do have the propensity to irreparably damage the character and reputation of the Appellant. When the reputation of the spouse is sullied amongst his colleagues, his superiors and the society at large, it would be difficult to expect condonation of such conduct by the affected party.

The explanation of the wife that, she made those complaints in order to protect the matrimonial ties would not justify the persistent effort made by her to undermine the dignity and reputation of the Appellant. In circumstances like this, the wronged party cannot be expected to continue with the matrimonial relationship and there is enough justification for him to seek separation.

Therefore, the High Court was in error in describing the broken relationship as normal wear and tear of middle class married life. It is a definite case of cruelty inflicted by the Respondent against the Appellant and as such enough justification is found to set aside the impugned judgment of the High Court and to restore the order passed by the Family Court. The Appellant is accordingly held entitled to dissolution of his marriage and consequently the Respondent’s application for restitution of conjugal rights stands dismissed. Appeals disposed off.

Tags : Marriage Dissolution Entitlement

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Income Tax Appellate Tribunal

Halesh K. C, Bangalore vs. Income Tax Officer

MANU/IL/0061/2021

24.02.2021

Direct Taxation

An independent building can have a number of residential units and it will not lose the character of one residential house

The appeal filed by the assessee is directed against the order passed by Learned Commissioner of Income Tax [CIT(A)], Bengaluru and it relates to the assessment year 2015-16. The solitary issue urged in present appeal is whether the learned CIT(A) was justified in rejecting the claim for deduction under Section 54F of the Income-Tax Act,1961 (IT Act).

The assessee along with other family members had sold an immovable property on 20th August, 2015. The assessee worked out long term capital gain of Rs.1,50,20,000 and claimed deduction of entire amount under Section 54F of the Act. The AO noticed that, the assessee had received a building by way of gift on 13th August, 2015 and the said building consisted of ground floor, first floor and second floor. The AO also deputed his inspector to physically inspect the property. The Inspector reported that, the Ground floor is having a garage and one residential unit; first floor is having two 1BHK flats and second floor is having 2 single units. The AO, accordingly, took the view that, each of the unit is separate house. Since deduction under Section 54F of the Act is not permitted, if the assessee is having more than one house property, the AO rejected the claim for deduction under Section 54F of the Act.

Identical view has been expressed by co-ordinate bench in the case of Shri Chandrashekar Veerabhadraiah vs. ITO that, an independent building can have a number of residential units and it will not lose the character of "one residential house. Accordingly, present Tribunal is unable to agree with the view taken by the tax authorities that each floor of the individual house/each portion in a floor is separate house property. Accordingly, the order passed by Learned CIT(A) is set aside. Tribunal held that, the house property received by the assessee is "one residential house" only within the meaning of section 54F of the Act. Accordingly, the reasoning given by the AO to reject the claim for deduction under Section 54F is not justified. The appeal of the assessee is allowed.

Tags : Deduction Provision Applicability

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Supreme Court

R.Damodaran vs The State Rep. By The Inspector Of Police

MANU/SC/0109/2021

23.02.2021

Criminal

In a case based on circumstantial evidence, circumstances must be consistent only with the hypothesis of the guilt of the accused and inconsistent with the innocence

The accused Appellant was charged for offence under Section 302 of Indian Penal Code, 1860 (IPC) for the murder of his own wife while she was at the advanced stage of her pregnancy. After facing trial, he was held guilty of charge of murder of his wife under Section 302 of IPC and was awarded life imprisonment by the learned trial Judge by judgment and confirmed by the High Court by judgment impugned.

It is true that, the prosecution had no direct evidence to offer. It rested its case upon circumstances which would indicate that in the past, he was ill-treating her and there were complaints given to the police. The statement of PW 7 Doctor and the medical evidence brought on record establish that, the injuries were caused with blunt weapon which resulted into death of the deceased. Thus, the ocular evidence of PW 2, aunt of the deceased is corroborated with the medical evidence of Doctor (PW7).

In a case based on circumstantial evidence, the settled principles of law are that, the circumstances from which the conclusion of guilt is to be drawn should be fully proved and circumstances should be conclusive in nature and moreover, the circumstances should be complete and there should be no gap left in the chain of events. However, the circumstances must be consistent only with the hypothesis of the guilt of the accused and inconsistent with the innocence.

In view of the principles which has been laid down by this Court and the circumstances which the prosecution has established in a chain of events leave no matter of doubt that, it is none other than the Appellant who had committed the crime of murdering his own wife who was at the advanced stage of pregnancy, and taken the dead body to the hospital and made a false statement that she had got a cardiac arrest.

The present case squarely rests on circumstantial evidence where the death has been caused by homicidal violence. The accused Appellant has committed a commission of crime with intention to commit the murder of his own wife who was at the advanced stage of pregnancy. Appeal dismissed.

Tags : Conviction Evidence Credibility

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Customs, Excise and Service Tax Appellate Tribunal

Enpay Transformer Components India Pvt. Ltd. Vs. C.C.E. & S.T., Vadodara-I

MANU/CS/0009/2021

23.02.2021

Customs

Export of goods does not attract duty as the export goods can be cleared either under bond or under claim for rebate

The brief facts of the case are that, the Appellant had imported certain capital goods under duty free EPCG scheme in the year 2011. The said capital goods after being put to use were re-exported and the Appellant had paid Rs. 1,96,33,568 under the head of Custom Duty and later on availed Cenvat Credit of the said custom duty in the month of March, 2014 and September, 2014. During Audit, on scrutiny of various challans under which custom duty was paid (On re-exportation of capital goods), it was observed that, said amount paid as custom duty were in fact payments made against pending dues and not for the bills for the purpose of payment of custom duty. Hence, the audit has raised the objection on availment of Cenvat credit.

The Appellant agreed with the audit objection and reversed the credit however, subsequently vide letter dated 30th November, 2015 to the Assistant Commissioner, Appellant said that, audit claim have been paid "under protest". Also they claim that they are eligible for depreciation in terms of Rule 3(5A) of the Cenvat Credit Rule, 2004 and requested re-credit which however denied as the Appellant had failed to fulfill the EPCG obligation and he was required to pay the custom duty as per custom authorities direction and this custom duty and cess are ineligible for credit under Cenvat Credit Rules, 2004.

Based on the said audit objection, the Show Cause Notice was issued. The show cause notice had been adjudicated by the Order in Original. Being aggrieved with the said Order-in-Original, the Appellant filed the appeal before the Commissioner (Appeals), who vide the impugned order upheld the Order-in-Original in toto and rejected the appeal filed by the Appellant before him.

Though the Appellant had imported duty free capital goods under EPCG but subsequently the same was re-exported after being put to use for substantial time. The Appellant claimed the Cenvat Credit in respect of the duty paid on re-exportation of the capital goods. The Lower Authorities have denied the Cenvat credit on the ground that, as per Rule 3(5A) of Rules, there is no provision to clear the capital goods without payment of duty for export. Present Tribunal is of the prima facie view that, though there is no mention about export of capital goods in Rule 3(5A) of Rules but in general, any export of goods does not attract duty as the export goods can be cleared either under bond or under claim for rebate.

The Appellant also vehemently argued that, even if Cenvat credit is not available, since the goods have been exported, the Appellant are entitled for rebate claim. This is a vital issue raised by the Appellant before the Adjudicating authority as well as the Commissioner (Appeals). The same should have been considered in detail and proper finding should have been given however, both the authorities failed to properly consider the issue of rebate claim in accordance with law.

Both the authorities have not considered the overall issue on the basis of the legal provision and also on the various judgments based on the issue. Therefore, in the interest of justice matter is remitted to the Adjudicating Authority. The impugned order is set aside and appeal is allowed by way of remand to adjudicating authority.

Tags : Cenvat credit Rebate Entitlement

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High Court of Himachal Pradesh

Anu Tuli Azta Vs. State of H.P.

MANU/HP/0107/2021

22.02.2021

Criminal

Holding peaceful processions, raising slogans cannot be considered as an offence under Constitution of India, 1950

The Petitioner, who is an Advocate and member of the Shimla District Courts Bar Association, has come up before present Court seeking quashing of FIR, registered for wrongful restraint, forming unlawful assembly, rioting, indulging in criminal force to deter public servants from discharging their duties, intentional insult to breach the peace, and criminal intimidation. It has been averred that, the lawyers were protesting peacefully against restricting the entries to the District Court complex from a shorter route, forcing them to take a longer way, which had traffic jams, resulting in a delay in attending to the Courts. The Police registered a concocted FIR due to wreaking vengeance with malicious intentions to scuttle the agitation. The Police arraigned her as an accused because she was supporting their cause.

Learned Counsel for the Petitioner contends that, even if all allegations recorded in FIR and investigation are hypothetically accepted to be true and correct, still such allegations fail to make out any prima facie case against the Petitioner. Thus, FIR and proceedings be quashed.

The FIR nowhere mentions the role of the Petitioner. Even if present Court presumes the Petitioner present at the spot, it would still not lead to an automatic inference of her acting with a common object with those who had inflicted fist blows, hurled abuses, and threatened the SHO, and also threatened to burn the Police Station. Although, the police got a video recording of the incident, the State did not refer to the said portion of the disk at which time frame, the Petitioner was video recorded inflicting fist blows, hurling abuses, or threatening the SHO, or threatening to burn the Police station. In the complaint, the SHO did not mention the time, and there is no explanation of its non-mentioning. Pinpointing the time was crucial because the Petitioner could have taken the plea of alibi.

Even if present Court believes all the allegations in FIR as truthful, still there is no allegation against the Petitioner of participating in any criminal act. Mere presence at the spot in the demonstration would not invite criminal act in the facts and nature of allegations made in the present FIR.

Holding peaceful processions, raising slogans, would not be and cannot be an offence under India's Constitution. Therefore, naming and arraigning the Petitioner as an accused is a gross abuse of the process of law. Present is a fit case where the inherent jurisdiction of the High Court under Section 482 of the Code of Criminal Procedure, 1973 (CrPC) is invoked. This Court has inherent powers under Section 482 of the Code of CrPC to interfere in this kind of matter. The FIR registered under Sections 341, 143, 147, 149, 353, 504, and 506 of IPC, is quashed qua the Petitioner. Petition allowed.

Tags : Peaceful processions FIR Quashing of

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High Court of Jammu and Kashmir

Ashu Deep Kohli Vs. State of J&K and Ors.

MANU/JK/0052/2021

22.02.2021

Civil

Right to refuse the lowest or any other tender is always available to the Government until the confirmation letter is issued

In present petition, the Petitioner prayed for issuance of writ of mandamus commanding the Respondents to finalize the auction of Shop with respect to which auction notice was issued by the Respondent No. 2. With further writ of mandamus commanding the Respondents to execute the lease deed in favour of the Petitioner with respect to the Shop being only the highest bidder participated and submitted the bid pursuant to the Notification issued by Respondent No. 2 on 15th July, 2014 for leasing out the shop.

The question raised in present case is whether any indefeasible right vested unto the Petitioner upon responding to the Notification issued by the respondent-Board qua the allotment of shop in question and non-finalization of the process of bidding by the Respondents upon finding the Petitioner to be lone bidder for the shop in question, on the fundamental principle of public policy and violated any right of the Petitioner.

The disposal of the public property by the State or its instrumentalities partake the character of a trust. The method to be adopted for disposal of public property must be fair and transparent as also to protect the financial interest of the State, as the government being the guardian of the finances of the State.

The right to refuse the lowest or any other tender is always available to the government and even if a public auction had been completed and a person found to be highest bidder, no right accrued to the highest bidder till the confirmation letter is issued to him.

In the instant petition for the allotment of the shop in question, the respondents seemingly have found it reasonable and fair not to proceed with the process of bidding with only one responsive bid. The said process manifestly, has been followed in order to generate a healthy competition and ultimately good revenue for the respondent-organization. No indefeasible right thus qua the shop in question would be said to have accrued to the petitioner, as also keeping in view the conduct of the petitioner having withheld the information from this Court that 15% of the bid amount registration amount stands remitted back to the Petitioner, as, another shop allotted to him.

Viewed thus, no interference is found to be warranted in the facts and circumstances of the case while exercising extra ordinary jurisdiction. The petition thus entails dismissal and is, accordingly, dismissed.

Tags : Auction Allotment Shop

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NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI

Avail Financial Services Ltd vs. Sun World City Pvt. Ltd.

MANU/NL/0059/2021

22.02.2021

Insolvency

Huge delay cannot be condoned under Section 61 of the I and B Code

In facts of present case, impugned order has been passed by the Adjudicating Authority (National Company Law Tribunal) dismissing Appellant's application under Section 7 of the Insolvency and Bankruptcy Code, 2016 (I and B Code) on the ground that, the application is barred by limitation, debt did not fall within the purview of financial debt and default was not established. The issue raised by the Appellant in present appeal is that, the Respondent has deducted TDS on interest accrued on loan advanced to it which amounts to admission bringing default within the period of limitation and default being computed on its basis, initiation of Corporate Insolvency Resolution Process sought in terms of application filed under Section 7 of I and B Code is well within limitation.

The impugned order has been passed on 4th October, 2019. Appellant seeks condonation of delay of 434 days in filing present appeal primarily on the ground that, prior to imposition of lockdown counsel for the Appellant Company had asked for certain documents which Appellant Company failed to provide to learned counsel owing to Nationwide Lockdown imposed by the Government and thereafter due to intervention of lockdown and festival / court holidays there was delay in finalizing the draft of appeal paper book.

There is a huge delay of 434 days. Even if it be taken as true, failure to furnish documents necessary for filing of the appeal by the Appellant Company to its learned counsel does not constitute a sufficient ground to condone delay at least till 25th March, 2020 when in the wake of outbreak of COVID 19 nationwide lockdown was imposed by the Government.

Under Section 61(2) of the I and B Code, every appeal under Section 61(1) has to be filed within 30 days before this Appellate Tribunal which has jurisdiction, on a sufficient cause being assigned, to condone delay not exceeding 15 days. As the appeal was required to be filed within a maximum period of 45 days, even if the cause assigned would be sufficient cause within the meaning of Section 61(2) proviso, from the date of order, that period of 45 days expired on 19th November, 2019.

The nationwide lockdown was imposed on 25th March, 2020. Limitation has been extended from 25th March, 2020 in terms of directions given by the Hon'ble Apex Court as also by this Appellate Tribunal in suo moto jurisdiction which continue to be in force till date. However, there is huge delay of 140 days beyond the ordinary period of limitation prescribed for filing of appeal under Section 61 of I and B Code which is not within the jurisdiction of this Appellate Tribunal to condone. The Appellant's application for condonation of delay is rejected and appeal is also dismissed as being barred by limitation.

Tags : Delay Condonation Entitlement

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