Supreme Court

Vethambal and Ors. Vs. The Oriental Insurance Company and Ors.

MANU/SC/0179/2024

06.03.2024

Motor Vehicles

Assessment of compensation cannot be done with mathematical precision

The present appeal has been preferred aggrieved against the judgment of the High Court, vide which the compensation awarded to the Appellants (claimants) by the Tribunal was reduced. The accident and the liability of the Insurance Company as such are not in dispute. The only dispute raised in the present appeal is regarding the quantum of compensation to which the Appellants are entitled to.

The basic facts, namely, the date of accident, the age of the deceased and dependency are not in dispute. There is no dispute on the negligence part also. The only issue sought to be raised is with reference to the assessment of the income of the deceased. From the material placed on record by the Appellants, it is evident that besides generating income from the land owned by the family in the form of sale of paddy and bananas, the deceased was also having income from supply of milk and coconuts to the school. There is also material available on record to show that he worked as a Government contractor. Meaning thereby, to make the lives of his family members comfortable, the deceased was multi-tasking and he was not engaged in a 9.00 to 5.00 P.M. job.

The High Court on a very conservative basis assessed the income of the deceased at Rs. 20,000 per month, bifurcating the same at Rs. 8,000 per month for supply of milk to the school, Rs. 5,000 per month from agriculture and Rs. 7,000 per month from working as a contractor. In view of material placed on record by the Appellants, income of the deceased deserves to be re-assessed as it is established that he was doing multiple works. It also came on record that after his death, the land was lying barren and was not being cultivated.

Assessment of compensation cannot be done with mathematical precision. The Motor Vehicles Act, 1988 also provides for assessment of just and fair compensation. Considering the material placed on record by the Appellants, and value of the labour being put in by the deceased in agriculture, it would be reasonable to assess his income at Rs. 35,000 per month. Considering his age at the time of death as 52 years on the date of accident, the applicable multiplier would be 11. Thus, the Appellants are found entitled to compensation of Rs. 38,81,500 with interest @8% from the date of filing of the claim petition till realization. The judgment of the High Court is modified. Appeal disposed off.

Tags : Compensation Reduction Legality

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Income Tax Appellate Tribunal

OSD, Coke (Consortium) Pvt. Ltd. Vs. Assessing Officer, Kolkata A.O.

MANU/IK/0091/2024

05.03.2024

Direct Taxation

Assessee is eligible for its TDS only in the year where the income is declared

The brief fact of the case is that, the assessment was completed under Section 143(3) of the Income Tax Act, 1961. The TDS amount of Rs. 14,63,516 was not credited by the AO in assessment proceedings. The assessee filed a rectification petition under Section 154 of the Act for allowing the TDS during the impugned assessment year. The assessee placed that the related turnover of the TDS was duly declared in the books and the return during the impugned assessment year. But the parties have taken this bill/payment in the next assessment year i.e. for AY 2015-16. The TDS was also credited for AY 2015-16 in 26AS but the assessee has not claimed this TDS whereas the assessee claimed in the year wherein the income has been declared.

Learned AO had not accepted the assessee's submission and upheld his non-allowability of TDS as per the order under Section 143(3)/ 154 of the Act. Being aggrieved, the assessee filed an appeal before learned CIT(A). Learned CIT(A) had upheld views of Assessing Officer.

The assessee is eligible for its TDS only in the year where the income is declared. In the assessment year i.e. AY 2015-16 the assessee had not credited its income and not even claimed the TDS. The assessee has no control about the debiting of the amount by the party in their books. But the assessee can only follow the law as directed under Section 199 of the Act read with Rule 37BA(3)(i) of the Income Tax Rules, 1962. The TDS is to be given for the assessment year for which the corresponding income assessable.

The assessee is eligible for the TDS in the year he claimed i.e. for the impugned assessment year. But present Tribunal are not able to verify the TDS related to this income during the impugned assessment year. Present Tribunal direct learned AO to verify the TDS. Accordingly, present Tribunal remit back the matter to the file of learned AO for further verification only in the limited grounds.

Tags : Assessment TDS Eligibility

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Supreme Court

Thangam and Ors. Vs. Navamani Ammal

MANU/SC/0161/2024

04.03.2024

Civil

Every allegation of fact in the plaint, if not denied in the written statement shall be taken to be admitted by the Defendant

The issue under consideration in the present appeal is regarding genuineness of the Will dated 9th October, 1984, which is a registered document, executed by Palaniandi Udyar in favour of Navamani Amma. A suit filed by the Respondent/Plaintiff for declaration and injunction was decreed by the Trial Court, holding the Will to be genuine. In appeal by the Appellants, judgment and decree of the Trial Court was reversed by the First Appellate Court. In second appeal filed by the Respondent, the judgment and decree of the First Appellate Court was set aside and that of the Trial Court was restored by the High Court.

In the absence of para-wise reply to the plaint, it becomes a roving inquiry for the Court to find out as to which line in some paragraph in the plaint is either admitted or denied in the written statement filed, as there is no specific admission or denial with reference to the allegation in different paras.

Order VIII Rules 3 and 5 of Code of Civil Procedure, 1908 (CPC) clearly provides for specific admission and denial of the pleadings in the plaint. A general or evasive denial is not treated as sufficient. Proviso to Order VIII Rule 5 of CPC provides that, even the admitted facts may not be treated to be admitted, still in its discretion the Court may require those facts to be proved. This is an exception to the general rule. General Rule is that the facts admitted, are not required to be proved.

The requirement of Order VIII Rules 3 and 5 of CPC are specific admission and denial of the pleadings in the plaint. The same would necessarily mean dealing with the allegations in the plaint para-wise. In the absence thereof, the Respondent can always try to read one line from one paragraph and another from different paragraph in the written statement to make out his case of denial of the allegations in the plaint resulting in utter confusion.

Rule 5 of CPC provides that, every allegation of fact in the plaint, if not denied in the written statement shall be taken to be admitted by the Defendant. What this Rule says is, that any allegation of fact must either be denied specifically or by a necessary implication or there should be at least a statement that the fact is not admitted. If the plea is not taken in that manner, then the allegation shall be taken to be admitted. Appeal dismissed.

Tags : Written statement Specific admission Admission

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High Court of Bombay

The Union of India and Ors. Vs. Jagdish P. Awale and Ors.

MANU/MH/1454/2024

04.03.2024

Service

The State or the employer is under no legal obligation to fill-up the vacancies advertised

By instituting the present proceedings, the Petitioners have challenged the judgment passed by the Central Administrative Tribunal ("Tribunal") whereby the Original Application filed by the Respondents has been allowed and a direction has been issued to the Petitioners to consider the Respondents for recruitment as unskilled labourers pursuant to the advertisement dated 19th November 2005 from the stage at which the recruitment process is said to have been cancelled on 11th February 2008.

The State or the employer is under no legal obligation to fill-up the vacancies advertised. Merely because of selection of a candidate, he does not get indefeasible or vested right to be appointed. In case where a candidate has only been subjected to interview and physical tests and recruitment process is not complete, he shall not have any vested right to be considered for an appointment, and even after completion of recruitment process the State or the employer has right to cancel the recruitment process once initiated, provided there are valid reasons for the same.

The recruitment process initiated pursuant to the advertisement dated 19th November 2005 was deferred on account of interim order passed by the Tribunal on 22nd December 2006 in Original Application. This very recruitment process was subsequently cancelled with a view to give effect to the judgment and order dated 6th June 2007 passed by the Tribunal in Original Application which was finally allowed with a direction to the Petitioners to absorb certain Group-D employees. Thus, the reason available for cancellation of the recruitment process initiated pursuant to the advertisement dated 19th November 2005 in which the Respondents had participated, is legitimate and no fault can be thus found with the Petitioners in cancelling the recruitment process.

Further, any direction to fill-up any vacancy to the employer having regard to the facts and circumstances of this case, cannot be approved of. Such a direction in the facts of the present case was completely unwarranted. The judgment and order passed by the Central Administrative Tribunal is quashed. Petition allowed.

Tags : Vacancy Filling up Direction

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High Court of Delhi

Jagat Singh and Ors. Vs. NCT of Delhi and Ors.

MANU/DE/1633/2024

04.03.2024

Tenancy

Power under Article 227 of the Constitution is intended to be used only in appropriate cases and not for correcting mere errors

The present petition has been filed under Article 227 of the Constitution of India, impugning the order passed by Trial Court whereby the Learned Trial Court dismissed the application of the Petitioners under Order XLVII Rule 1 read with Section 151 of the Code of Civil Procedure, 1908 ("CPC") seeking to review and recall order dated 4th March, 2023. Vide the order dated 4th March, 2023, the SDM was directed to carry out the demarcation as per the order dated 18th July, 2023 and the Petitioners were directed to bear the costs of the said demarcation.

The power under Article 227 of the Constitution of India, 1950 is intended to be used only in appropriate cases for the purpose of superintendence over the subordinate Courts and Tribunals within the bounds of their authority and not for correcting mere errors. Thus, imperatively, the jurisdiction of the Court under Article 227 of the Constitution of India is limited and to be exercised sparingly cases.

Since the dispute is about the identification of the property, the demarcation and identification cannot be proved in absence of public record and the Court shall order local investigation for the purpose of elucidating any other matter in this field. If the said issue is not addressed at the present stage of the proceedings, it can be noticed that the execution of the plea either way will have some repercussions. In fact, it is noticed from the orders passed by the learned Trial Court that all throughout, the Petitioners have been arguing for demarcation of the suit property. Further, intention of the learned Trial Court is to ascertain the exact identification of the suit property.

With regard to quashing the demarcation report dated 18th April, 2018 is concerned, it is too early for the petitioners to contend that the same ought to have been quashed or set aside by the learned Trial Court before directing another demarcation. Therefore, there is no infirmity in the Trial Court order. Petition dismissed.

Tags : Demarcation Direction Legality

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Customs, Excise and Service Tax Appellate Tribunal

Petro Araldite Private Limited vs. The Commissioner of GST & Central Excise, Chennai-I

MANU/CC/0068/2024

04.03.2024

Excise

Any activity which is directly or indirectly in relation to manufacture would be eligible for credit

The appellant is engaged in manufacture of "Epoxy Resins and Hardeners" and holds Central Excise registration. During the course of verification of their records, it was noticed by the Department that, they have availed cenvat credit issued on invoices / debit notes issued by Tamil Nadu Petro Products Ltd. (TPL) under Business Auxiliary Service (BAS). It was observed that, there was no Effluent Treatment Plant available in the Appellant's factory and the effluent water was sent to TPL for treatment and the treated water was let out into the sea and service charges for the effluent treatment was collected from the appellant under BAS.

The Appellant availed service tax credit on such service tax paid by them. On being pointed out, the appellant reversed the credit to the tune of Rs.60,61,438 under protest; But, however, did not pay the appropriate interest on the same. Show cause notice dt. 5.6.2012 was issued to the appellant proposing to demand interest and for imposing penalty. After due process of law, the original authority confirmed the demand of interest of Rs.4,68,499 and imposed penalty of Rs.60,61,438. Aggrieved by such order, the appellant is now before the Tribunal. The issue is whether the appellant is eligible for the credit of service tax paid on charges collected for treatment by TPL.

Undisputedly, the effluent treatment of the waste water (hazardous waste) is necessary in order to manufacture the goods. The Appellant cannot continue manufacturing of the goods without taking steps for effluent treatment of the waste. The department has denied the credit alleging that, the activity carried out by the appellant is an activity which is after the manufacture of goods. The decision of Maruti Suzuki Ltd. Vs CCE Delhi is with regard to the eligibility of credit availed on inputs and not on input services. It is not possible for the assessee to avail all types of input services within the factory premises. The decision of Maruti Suzuki Ltd. is not applicable to the facts of this case.

The activity of waste water treatment is part of manufacturing activity and any activity which is directly or indirectly in relation to manufacture would be eligible for credit. The credit has been denied without valid reasons. The Appellant is eligible for credit. The impugned order disallowing the credit as well as confirming the demand and imposing penalty is set aside. Appeal allowed.

Tags : Demand Confirmation Penalty

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