Judgments
Supreme Court
Lucknow Nagar Nigam and Ors. Vs. Kohli Brothers Colour Lab Pvt. Ltd. and Ors. (Neutral Citation: 2024 INSC 135)
MANU/SC/0128/2024
22.02.2024
Property
Enemy properties vested in the Custodian are not Union properties; Assessee is liable to pay property tax on it
Present Civil Appeal has been filed by the Lucknow Nagar Nigam ('Municipal Corporation') impugning the judgment of the High Court that has allowed the Writ Petition filed by Respondent ('the Assessee'), thereby holding that the Assessee is exempt from payment of property tax under the provisions of the UP Municipal Corporation Adhiniyam, 1959
The Custodian for Enemy Property in India does not acquire ownership of the said properties. The enemy properties vest in the Custodian as a trustee only for the management and administration of such properties. Central Government may, on a reference or complaint or on its own motion initiate a process of divestment of enemy property vested in the Custodian to the owner thereof or to such other person vide Rule 15 of the Rules. Hence, the vesting of the enemy property in the Custodian is only as a temporary measure and he acts as a trustee of the said properties.
Union of India cannot assume ownership of the enemy properties once the said property is vested in the Custodian. This is because, there is no transfer of ownership from the owner of the enemy property to the Custodian and consequently, there is no ownership rights transferred to the Union of India. Therefore, the enemy properties which vest in the Custodian are not Union properties. As the enemy properties are not Union properties, Clause (1) of Article 285 of the Constitution of India, 1950 does not apply to enemy properties. Clause (2) of Article 285 is an exception to Clause (1) and would apply only if the enemy properties are Union properties and not otherwise.
The High Court was not right in holding that the Respondent as occupier of the subject property, is not liable to pay any property tax or other local taxes to the Appellant. In the result, the impugned order of the High Court is set aside. Consequently, any demand for payment of taxes under the Act of 1959 made and thereby paid by the Respondent to the Appellant-authority shall not be refunded. Appeal allowed.
Tags : Tax Exemption Eligibility
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Supreme Court
Anun Dhawan vs Union Of India (Neutral Citation: 2024 INSC 136)
MANU/SC/0130/2024
22.02.2024
Civil
Courts cannot direct the States to implement a particular policy or scheme on ground that a better, fairer or wiser alternative is available
The Petitioners have filed the present petition under Article 32 of the Constitution of India, 1950 seeking various directions against the States and Union Territories to formulate a scheme to implement the concept of Community Kitchens to combat hunger, malnutrition and starvation and the deaths resulting thereof. The petitioners have also sought direction against the National Legal Services Authority to formulate a scheme in order to further the provisions of Article 50(1)A of the Constitution, as also against the Central Government to create a National Food Grid beyond the scope of the Public Distribution Scheme.
Though the Constitution of India does not explicitly provide for Right to food, the fundamental Right to life enshrined in Article 21 of the Constitution does include Right to live with human dignity and right to food and other basic necessities. Article 47 of the Constitution also provides that the State shall regard the raising of level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties.
There being a systematic legal framework provided under the NFSA for the implementation of the schemes and programmes like Targeted Public Distribution System, Mid-day Meal Scheme, Integrated Child Development Services and Maternity Cash Entitlement along with a Monitoring Mechanism and a Grievance Redressal Mechanism, and the States/UTs having also implemented various other schemes and programmes under the said Act, present Court do not propose to direct the States/UTs to implement the concept of Community Kitchens as prayed for by the petitioners in the instant petition.
It is well settled that the scope of judicial review in examining the policy matters is very limited. The Courts do not and cannot examine the correctness, suitability or appropriateness of a policy, nor are the courts advisors to the executive on the matters of policy which the executive is entitled to formulate. The Courts cannot direct the States to implement a particular policy or scheme on the ground that a better, fairer or wiser alternative is available. Legality of the policy, and not the wisdom or soundness of the policy, would be the subject of judicial review.
When the NFSA with a ‘right based approach’ for providing food and nutritional security, is in force and when other welfare schemes under the said Act have also been framed and implemented by the Union of India and the States, to ensure access to adequate quantity of quality food at affordable prices to people to live a life with dignity, present Court do not propose to give any further direction in that regard. Petition disposed off.
Tags : Implementation Community Kitchens Direction
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High Court of Delhi
Vishwas Ingale vs. Zenith Rubber Private Limited (Neutral Citation:2024:DHC:1410)
MANU/DE/1343/2024
21.02.2024
Criminal
In a complaint under Section 138 of NI Act, only drawer of the cheque who can be prosecuted
Present petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 ('Cr.P.C') praying for quashing of the complaint filed by the respondent under Section 138 of the Negotiable Instruments Act, 1881 ('NI Act').
On the face of it, the cheque in question has been issued claiming AakarPackart as a proprietorship concern. It is not the case of the Respondent that, the said cheque has been signed by the Petitioner. The Petitioner is, therefore, not the drawer of the cheque, basis whereof the complaint has been filed.
Under Section 138 of the NI Act, the liability is only of the drawer of the cheque. It is only where the offence is committed by a company, that a vicarious liability is created under Section 141 of the NI Act on the person who was in- charge of or was responsible for the affairs of the company or the conduct of the business of the company or on the person with whose consent or connivance or due to whose neglect as a director, manager, secretary or other officer bearer of the company, that the offence has been committed.
In Aparna A. Shah v. Sheth Developers (P) Ltd., the Supreme Court has reiterated that in a complaint under Section 138 of the Act, it is only the drawer of the cheque who can be prosecuted.
In the present case, from the cheque itself, it is apparent that, AakarPackart is a proprietorship concern and, therefore, Section 141 of the NI Act will not come into operation. It is only the drawer of the cheque who can be prosecuted. The complaint filed by the respondent is quashed. Petition allowed.
Tags : Complaint Provision Applicability
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Customs, Excise and Service Tax Appellate Tribunal
Teradata India Pvt Ltd vs. The Commissioner of Central Excise And Service Tax
MANU/CJ/0028/2024
20.02.2024
Service Tax
Extended period cannot be invoked unless a positive act on the part of the assessee is evidenced showing the intent to evade payment of duty
Issue to be decided in the instant case is as to whether the Appellants are liable to pay penalty under Section 78 of the Finance Act, 1994 when the service tax was paid along with interest before the issuance of show-cause notice.
The Appellant submits that there was no suppression of facts on their side with intent to evade payment of duty and for that reason, the extended period cannot be invoked. On going through the impugned order and the show-cause notice, present Tribunal find that except for stating that the show-cause notice has been issued only after conduct of audit and that the appellants have suppressed the material facts, no evidence has been put forth in the show-cause notice or in the impugned order to show that there has been a positive act of suppression on the part of the appellants to evade payment of duty.
Tribunal has been consistent in holding that, extended period cannot be invoked unless a positive act on the part of the assessee is evidenced showing the intent to evade payment of duty. Tribunal has been taking a consistent view that, a mere non-payment of service tax and non-filing of Returns would not be a sufficient reason to extend the period of limitation. The impugned order is set aside. Appeal allowed.
Tags : Penalty Imposition Legality
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High Court of Allahabad
Indeutsch Industries Private Limited vs. State Of U.P. And Others (Neutral Citation:2024:AHC:28307)
MANU/UP/0416/2024
19.02.2024
Goods and Services Tax
Initial burden of proof lies on the Department to show Assessee’s intention to evade tax, when the error in the documents is only typographical error
Present is a petition under Article 226 of the Constitution of India, 1950 wherein the writ Petitioner is aggrieved by the order passed in appeal and the order imposing penalty under Section 129(3) of the Uttar Pradesh Goods and Services Tax Act, 2017.
In the present transaction, goods were moving from a SEZ Unit to Domestic Traffic Area and the said goods have been checked by the Custom authorities. Custom duty and also IGST had been paid on the said goods. The said goods were intercepted only two-three hours after the goods have left the SEZ Unit, and therefore, it cannot be said that this e-way bill was wrongly being used. It is a fact that the burden of proof lies on the Petitioner in certain cases to show that there was no evasion of tax. However, when the error in the documents is only that of a clerical or typographical error, the initial burden of proof lies on the department to show there was intention to evade tax. In the present case the department has failed to do so and infact has not even tried to do so.
The documents produced by the Petitioner at the time of interception indicate that the goods have been transported from a SEZ Unit to the DTA after payment of custom duty and payment of IGST. This fact has not been discredited by the department. There is complete silence with regard to the fact whether the petitioner had made the payment as indicated in the invoices and the bill of entry. The department has accordingly failed to shift the burden of proof on the Petitioner as the only error found by the department was that the vehicle number was incorrect. Apart from this one error in the e-way bill, nothing has been shown by the department to justify the imposition of penalty under Section 129(3) of the Act. The impugned order also failed to take into account the document produced by the Petitioner of the transporter wherein the explanation was given with regard to the reason for the mistake of the vehicle number in the e-way bill.
Intention to evade tax is sine qua non before imposition of penalty. In present case, the department has failed to establish any such intention. Furthermore, the Appellate Authority has failed to look into all the documents that were produced by the Petitioner to rebut the allegation of the department with regard to intention to evade tax. Impugned orders are quashed and set aside. Petition allowed.
Tags : Penalty Imposition Legality
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High Court of Delhi
Vinod Nagar Vs. Narcotics Control Bureau(Neutral Citation: 2024:DHC:1244)
MANU/DE/1158/2024
19.02.2024
Narcotics
Bar, as provided in Section 37 of NDPS Act, cannot be invoked where the evidence against the accused appears to be unbelievable and insufficient for the purpose of conviction
The present application has been filed under Section 439 of the Code of Criminal Procedure, 1973 ('CrPC') read with Section 482 of CrPC seeking regular bail under Sections 8, 21(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Act').
The case of the prosecution is based upon the disclosure of the co-accused Justin Izuchukwu Samuel. It is relevant to note that, while the veracity of the disclosure statement of the co-accused is to be tested at the time of the trial, however, this Court cannot lose sight of the decision of the Apex Court in the case of Tofan Singh v. State of Tamil Nadu. It was held that, a disclosure statement made under Section 67 of the NDPS Act is impermissible as evidence without corroboration.
In the present case, apart from the CDR and CAF reports, and some unverified WhatsApp chats between the applicant and the co-accused, there is no evidence to show that the applicant was involved in the commission of the crime of drug trafficking. No recovery has been effectuated from the applicant in the present case. In such circumstances, merely because the applicant was in regular touch with the co-accused, is not sufficient to prima facie establish the offence against the applicant.
It is not the case of the prosecution that, at the contemporaneous time, the applicant was in contact with the co-accused in relation to the contraband which was seized from the co-accused on 18th June, 2021.
The Courts are not expected to accept every allegation made by the prosecution as a gospel truth. The bar, as provided in Section 37 of the NDPS Act, cannot be invoked where the evidence against the accused appears to be unbelievable and does not seem to be sufficient for the purpose of conviction of the accused.
In the present case, the prosecution has been given an adequate opportunity to oppose the present application. In view of the facts of the case, prima facie, this Court is of the opinion, that at this stage, there are reasonable grounds to believe that the applicant is not guilty of the alleged offences. Moreover, it is also not disputed that the applicant has clean antecedents, and is thus not likely to commit any offence whilst on bail. The applicant is directed to be released on bail subject to the conditions. Application allowed.
Tags : Antecedents Bail Grant
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