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In CRM-M-11521-2023 (O&M)-PUNJ HC- Rigors of Section 37 of NDPS Act can be diluted bearing in mind right to speedy trial: P&H HC allows bail petition of 21-yr-old accused
Justice Aman Chaudhary [24-03-2023]

Read Order: ABHIJEET SINGH vs UNION OF INDIA

 

Mansimran Kaur

Chandigarh, March 25, 2023: The Punjab and Haryana High Court has granted regular bail to the petitioner booked under the NDPS Act after considering that the 21-year-old petitioner was in custody for more than 3 years and further incarceration of the petitioner would be violative of his right enshrined under Article 21 of the Constitution of India.

Justice Aman Chaudhary was considering the second  petition preferred  under Section 439 Cr.P.C. for the grant of regular bail to the petitioner in respect of FIR under Sections 8/21(C)25/27-A/28/29/60 of NDPS Act

 

The Counsel for the petitioner contended that the petitioner was  21 years old and was in custody for more than 3 years. The alleged recovery of 520 grams of heroin was affected from the car, which was being driven by his father-co-accused Mandeep Singh, who was since then  granted regular bail by this Court .

 

After considering the submissions the Court noted, the Court placed its reliance on the judgment in Dheeraj Kumar Shukla Vs. The State of Uttar Pradesh.  Further reliance was placed on the case of Shariful Islam @ Sarif versus The State of West Bengal, SLP (Crl.) No.4173/2022, wherein the Apex Court granted bail to the petitioner in a case of recovery of commercial quantity of contraband, considering incarceration for over 1 year and 6 months and there being no likelihood of completion of trial in the near future. 

 

In view of the afore-referred judgments, facts and circumstances of the case, in particular that the 21 years old petitioner was in custody for more than 3 years; co-accused Mandeep Singh was enlarged on regular bail by this Court; he was not involved in any other case. 

 

It was further noted that five out of fourteen prosecution witnesses were examined.  The trial is likely to take a considerable time, further incarceration of the petitioner would be violative of his right enshrined under Article 21 of the Constitution of India and the rigors of Section 37 of the NDPS Act can be diluted bearing in mind the right to a speedy trial, the Court at the outset observed. 

 

 Thus, the present petition for grant of regular bail was allowed by the High Court.

 

In CRM-M-10222-2023-PUNJ HC- Alleged offences are pre-dominantly private in nature, says P&H HC while quashing FIR registered u/s 498A IPC
Justice Jagmohan Bansal [24-03-2023]

Read Order: AJMEET SINGH AND ORS Vs STATE OF PUNJAB AND ANOTHER


 

Mansimran Kaur

Chandigarh, March 25, 2023: While considering that the contesting parties had amicably resolved their issue and the alleged offences were private in nature, the Punjab and Haryana High Court has quashed the FIR registered under Sections 406 and 498A of the IPC.

The petitioners through instant petition under Section 482 Cr.P.C., on the basis of compromise were seeking quashing of FIR registered under Sections 406 and 498A of IPC. By allowing the same, Justice Jagmohan Bansal opined that the alleged offences were of predominantly private nature settlement made between the contesting parties could be accepted.

After considering the submissions, the Court noted that from the perusal of the enclosed FIR in the present case and through the report of the Trial Court and compromise arrived at between the parties, it was transpired that contesting parties had  amicably resolved their issue, thus, no useful purpose would be served by continuing the proceedings. The alleged offences were  of predominantly private nature and no moral turpitude or the interest of the public at large was involved. 

 

There appears to be no chance of conviction, the continuance of the proceedings would just waste valuable judicial time and it is a well-known fact that courts are already overburdened, the Court further remarked. 

 

Reference was also made to the judgment in Gian Singh Vs. State of Punjab and others, Ramgopal and another Vs. State of Madhya Pradesh . 

 

In the case of Ramgopal and another Vs. State of Madhya Pradesh, 2021 SCC online SC 834, it was held that the High Court, having regard to the nature of the offence and the fact that parties have amicably settled their dispute and the victim has willingly consented to the nullification of criminal proceedings, can quash such proceedings in exercise of its inherent powers under Section 482 Cr.P.C., even if the offences are non- compoundable.

 

Thus, in view of such circumstances, the Court allowed the petition.

 

In CRR-198-2019-PUNJ HC- P&H HC quashes proceedings pertaining to sections 324 & 506 IPC in light of settled law that limited jurisdiction to compound offence within framework of Sec.320 CrPC is not embargo against invoking inherent powers by HC vested in it u/s 482
Justice Anoop Chitkara [23-03-2023]

Read Order: RAJESH KUMAR AND ANOTHER VS. STATE OF PUNJAB AND ANOTHER 


 

Mansimran Kaur

 

Chandigarh, March 25, 2023:Noting that the exercise of the inherent power for quashing complaint and all consequential proceedings is justified to secure the ends of justice, the Punjab and Haryana High Court has quashed a proceeding in a criminal case after considering the terms of compromise, placement of parties, the contents of the compromise deed and its objectives.

 

Justice Anoop Chitkara opined that the accused and the private respondent amicably settled the matter between them in terms of the compromise deed and the statements recorded before the concerned Court.


 During the pendency of the petition, the accused and the aggrieved person compromised the matter and filed CRM for compounding of offence u/s 320 Cr.P.C. The State Counsel though opposed the same. 

 

After considering the submissions, the Court noted that the accused and the private respondent amicably settled the matter between them in terms of the compromise deed and the statements were recorded before the concerned Court.  A perusal of the documents revealed that the settlement was not secured through coercion, threats, social boycotts, bribes, or other dubious means and the aggrieved person willingly consented to the nullification of criminal proceedings. 

 

The offences under section 324 and 506 IPC are non compoundable under Section 320 of Code of Criminal Procedure, 1973 (CrPC). However, without adjudicating this point, in the facts and circumstances peculiar to this case, the prosecution qua the non-compoundable offences can be closed by quashing the complaint and consequent proceedings, the Court further remarked. 

 

Further reference was made to the case of  Ram Prasad v State of Uttar Pradesh and to the case of  Shiji @ Pappu v. Radhika. 

 

Another reference was made to the case of Ramgopal v. The State of Madhya Pradesh, wherein it was held, “True it is that offences which are ‘non-compoundable’ cannot be compounded by a criminal court in purported exercise of its powers under Section 320 Cr.P.C. Any such attempt by the court would amount to alteration, addition and modification of Section 320 Cr.P.C, which is the exclusive domain of Legislature. There is no patent or latent ambiguity in the language of Section 320 Cr.P.C., which may justify its wider interpretation and include such offences in the docket of ‘compoundable’ offences which have been consciously kept out as non-compoundable. Nevertheless, the limited jurisdiction to compound an offence within the framework of Section 320 Cr.P.C. is not an embargo against invoking inherent powers by the High Court vested in it under Section 482 Cr.P.C.”. 

 

Hence, in the light of the judicial precedents referred to above, given the terms of compromise, placement of parties, and other factors peculiar to the case, the contents of the compromise deed and its objectives point towards its acceptance, the Court observed. 

 

Continuing these proceedings will not suffice any fruitful purpose whatsoever. In the facts and circumstances peculiar to this case, thus the Court invoked the inherent jurisdiction under section 482 read with 401 CrPC and quashed the complaint and all subsequent proceedings i.e. judgment of conviction and order of sentence dated September 11, 2017 qua the petitioner(s) only.

 

In view of the above, the petition was allowed. 


 

In RSA No.1828 of 1991 (O&M)-PUNJ HC- If title of party is established on basis of other independent evidence on record corroborating mutation entries, then such entry can certainly be taken into consideration, reaffirms P&H HC
Justice Manisha Batra [24-03-2023]

Read Order: KARTAR SINGH VS BHAGWAN KAUR

 

Mansimran Kaur

Chandigarh, March 25, 2023: The Punjab and Haryana Court has reiterated that the mutation of land in revenue records does not create or extinguish title over some land and has no presumptive value of title.

Noting that no  substantial question of law had arisen in this case which required consideration, Justice Manisha Batra dismissed the appeal preferred by the defendant-Kartar Singh against the judgment whereby the order decreeing the suit of the plaintiff, had been affirmed and the appeal of the defendant was dismissed.

Brief facts of the case relevant for the purpose of disposal of this appeal were that the plaintiff Bhagwant Kaur filed the above mentioned civil suit on the averments that she was co-sharer in the land fully detailed out in the headnote of the plaint. Smt. Nand Kaur who was another co-sharer had sold her 1/6 th share in the disputed land to the defendant Kartar Singh vide a registered sale deed dated December 16, 1987.

 

 The sale consideration amount was shown to be Rs 1, 27,359.37  though in fact it was much lesser and an excess amount had been added to defeat the rights of the pre-emption of the plaintiff in the disputed land. 

 

The plaintiff, while alleging that she had got a superior right of pre-emption against the defendant who was stranger and was not related to the vendor, prayed for passing a decree for possession of the disputed land by way of pre-emption. 

 

In response to the notice, the defendant appeared and filed a written statement alleging that the plaintiff was not a co-sharer in the disputed land. While admitting that Sh. Nand Kaur had sold her share in the disputed land to the defendant, it was stressed that the sale consideration amount as shown in the sale deed was correct and had been actually fixed in good faith and paid by him to the vendor. While further alleging that the sale of disputed land being made by the female was not pre-emptible under Section 15 (2-A) of the Punjab Pre-emption Act, the dismissal of the suit was prayed for. 

 

 On appraising the evidence produced on record and after considering the contentions raised by  counsel for both the parties, the trial Court vide judgment and decree decreed the suit in favour of the plaintiff subject to depositing the sale consideration amount after deducting the jare-panjum amount already deposited, within one month. 

 

Feeling aggrieved, the defendant preferred Civil Appeal before the First Appellate Authority which too was dismissed vide judgment dated August 23, 1991. The present appeal was preferred to assail the findings as given by the Courts below. 

 

After considering the rival contentions of the parties, the Court was of the considered opinion that the findings given by the Courts below did not warrant any interference. 

 

There can undoubtedly be no dispute with regard to the well settled proposition of law that the mutation of land in revenue records does not create or extinguish title over some land. It has no presumptive value of title”, the Bench said.

 

“However, simultaneously, it is equally well settled that if the title of a party is established on the basis of other independent evidence on record corroborating the mutation entries, then such entry can certainly be taken into consideration”, the Court further noted. 

 

In the instant case, though the appellant in his written statement had denied that the respondent-plaintiff was co-sharer in the disputed property, however, there was no specific denial of this fact by the appellant in his sworn deposition rather during cross-examination, he stated that he did not know that the respondent was having any share in the disputed property or not. 

 

Even while cross-examining the respondent, it was suggested that the land in dispute was sold to the appellant by the sister-in-law of the respondent, the Court noted. 

 

The appellant did not specifically deny the factum of the husband of the respondent being co-sharer and subsequently the respondent having become a co-sharer in the joint khewat,the Court further noted. 


As per the Bench, the Trial Court had rightly recorded a finding that the respondent-plaintiff was a co-sharer in the joint khewat after due appreciation of evidence produced on record and the First Appellate Court had committed no error in affirming those findings.

 

 As such, the concurrent findings of the fact as recorded by the Courts below were well reasoned and did not warrant any interference by this Court and deserve to be affirmed. No such substantial question of law had arisen in this case which required consideration, the Court at the outset observed. Hence, finding no merit, the Bench dismissed the appeal.

 

In CRM-M-10926-2023-PUNJ HC- P&H HC grants bail to accused in NDPS case as contraband was not recovered from his conscious possession & he was confined in jail when recovery was effected
Justice Deepak Gupta [24-03-2023]

Read Order: MOHIT ALIAS DHANDI VS. STATE OF PUNJAB

 

Mansimran Kaur

 

Chandigarh, March 25, 2023: The Punjab and Haryana High Court has allowed a petition seeking regular bail under Section 439 of Cr.P.C., while observing that at the time when recovery of 500 grams of heroine and the weapons were effected, the petitioner was confined in Bhondsi Jail, Gurgaon and recovery was not effected from the conscious possession of the petitioner.

A  Single-Judge Bench of Justice Deepak Gupta allowed the present petition instituted by the petitioner in the present case,  seeking regular bail by way of this petition preferred under Section 439 Cr.P.C in case  of FIR registered under Section 120-B of IPC; Section 21 & 29 of NDPS Act and Section 25 of the Arms Act .

 

After completion of investigation, report under Section 173 Cr.P.C. was filed against petitioner Mohit alias Dandi and co-accused Pawan Nehra, though remaining accused namely Tilak Singh, Harkesh and Vinod Yadav were  yet to be arrested.

 

After considering the submissions from both the sides, the Court noted,   It is admitted position that at the time when recovery of 500 grams of heroine and the weapons was effected, the petitioner was confined in Bhondsi Jail, Gurgaon and thus, recovery   was not effected from the conscious possession of the petitioner.

 

 Even as per investigation carried out by the police, it emerged that contraband and the weapons were arranged by co-accused Pawan Nehra, who also intentionally leaked the information to the police. In these circumstances, whether on the basis of conspiracy, petitioner can be assumed to be in conscious possession of the contraband will be a moot point and subject matter of trial, the Court noted. 

 

Further reference was placed on the case Maulana Mohd Amir Rashadi v. State of U.P. wherein it was held that merely on the basis of criminal antecedents, the claim of the petitioner for grant of bail cannot be rejected and that it is the duty of the Court to find out the role of the accused in the case, in which he has been charged and other circumstances such as possibility of his fleeing away from the jurisdiction of the Court etc.


 

Another reference was placed on the case Tofan Singh v. State of Tamil Nadu, wherein it was held, “a confessional statement recorded under Section 67 of NDPS Act will remain inadmissible in trial of an offence under the NDPS Act. In view of the said legal position, the bail cannot be denied to the petitioner simply on the basis of disclosure statements suffered by him or his co-accused”. 

 

Further reference was made to judgment in Surinder Kumar Khanna v. Intelligence Officer Directorate of Revenue Intelligence, wherein it was held that confessional statement of co-accused recorded under Section 67 of the NDPS Act cannot by itself be taken as substantive piece of evidence and can at best be used or utilized in order to lend assurance to Court.

 

Thus, having regard to all the aforesaid facts and circumstances, particularly, the role attributed to the petitioner in the crime to the effect that contraband was not recovered from his conscious possession and at that time he was confined in jail, hence, without commenting anything further on the merits of the case, the Court opined that the petitioner should be admitted to bail on his furnishing bail bonds/surety bonds to the satisfaction of the Trial Court/Duty Magistrate concerned. 

 

Hence, in view of the observations stated above, the petition was accordingly allowed. 


 

In W.P.No.8493 of 2023-MAD HC- Third proviso to Sec.16 of CGST Act necessitates that due process must be followed where Authority proposes to take adverse view against applicant 
Justice Anita Sumanth [20-03-2023]

Read Order: Pinstar Automotive India Pvt. Ltd v. Additional Commissioner 


 

LE Correspondent

 

Chennai, March 25, 2023:The Madras High Court has allowed a petition filed by an assessee in a case pertaining to the Central Goods and Services Tax Act, 2017 where the petitioner had received pre-assessment notice in regard to the issue relating to invocation of Section 16(2)(c) of the Act.

 

Referring to section 16 which deals with the eligibility and conditions for taking Input Tax Credit (ITC) , Justice Anita Sumanth asserted, “There can be no dispute on the position that the provisions of Section 16 are to be observed strictly, such that, there is no jeopardy to the interests of the revenue.”

 

It was the Authority’s case that certain supplies had been made to the petitioner by third parties and the petitioner had averred that the entirety of the amount including tax had been paid to the suppliers.

 

It was the stand of the petitioner that those suppliers were delinquent insofar that their registrations had been cancelled and the tax paid by the petitioner had not been remitted by them to the Department.

 

It was the respondent’s case that no fault could be attributed to the Department in this regard, since three suppliers, Techno Rubber Plastic and Co., Techno Rubber and Plastic and M/s.Unique Autoplastics Private Limited had uploaded their invoices in GSTR -1, but no tax had been remitted by them, since GSTR 3B had not filed by them. The petitioner, as a consequence, suffered reversal of ITC, IGST, CGST and SGST.

 

On the contrary, it was the stand of the petitioner that they had fulfilled all the conditions stipulated under the Statute and had adduced proof for payment of consideration within a period of 180 days and therefore, they were eligible to ITC. The stand was rejected by the respondent who passed an order-in-original confirming the demand proposed in the show cause notice.

 

“The provisions of the Central Goods and Services Tax Act, 2017 has, assimilating wisdom of experience from the erstwhile tax regimes, gone one step further to ensure that the interests of the revenue are protected by providing for a mandate that the tax liability is defrayed/met either at the hands of the supplier or the purchaser, the petitioner in this case”, the Bench held while asserting that no fault could be attributed to the revenue in this regard.

 

The Bench also stated that an additional factor is that where the tax liability has been met by way of reversal of ITC and similarly recovery is effected from the supplier as well, this would amount to a double benefit to the revenue. 

 

Thus, while the Department may reverse credit in the hands of the purchaser, this has to be a protective move, to be reversed and credit restored if the liability is made good by the supplier. The substative liability falls on the supplier and the protective liability upon the purchaser, the Bench noted while also adding that a mechanism must be put in place to address this situation.

 

Considering the fact that the  petitioner had chosen to seek rectification of order-in-original, the Bench clarified that it had no intention of intervening in the conclusion of the assessing authority on this aspect. 

 

“However, the procedure followed by the authority is clearly contrary to the third proviso to Section 16 of the Act that necessitates that, where the authority proposes to take a view adverse to the applicant, due process must be followed”, the Bench said.

 

Noting that there had been no opportunity granted to the petitioner prior to the passing of impugned order which was a fatal flaw, the Bench set aside the impugned Order. 

 

“The petitioner shall be heard by issue of notice and orders passed on the Section 161 application within a period of four (4) weeks from today”, the Bench further ordered.



 

In Crl.O.P.No.34570 of 2019-MAD HC- Madras HC quashes complaint case registered against guarantor under Puducherry GST & VAT Acts, says in order to be implicated in such matter, accused must be assessee in eyes of VAT Act
Justice R.N.Manjula [10-01-2023]

Read Order:Santhosh Vs. The Commercial Tax Officer And Ors 

 

Tulip Kanth

 

Chennai, March 25, 2023:The Madras High Court has quashed a case registered under the Puducherry GST & VAT Acts against the petitioner-guarantor who had given an undertaking to pay taxes, if the first accused failed to pay the same.

 

In this matter before the Single-Judge Bench of Justice R.N.Manjula, the first respondent had preferred a private complaint for the alleged offences committed by two accused under Sections 59(1)(a), 59(2)(a), 559(2)(b) and 59(2)(d) of the Puducherry Value Added Tax Act-2007 read with Sec.34 of IPC and Sec.174 of the Puducherry Goods and Service Tax Act-2017 and for the offence of Breach of Rules under Rule 57,1945 and 49 of the Puducherry Value Added Tax Rules, 2007 as well as for the offences under Section 418 and 422 of IPC read with Section 34 IPC.

 

It was alleged that the first accused, a proprietor of a concern in the name and style of M/s.Al-Safa Chicken Agencies, had been involved in selling chicken and its returns filed for the year 2013-14 was not complete. It was also alleged that the returns did not tally with the actual sales reported by the first accused. 

 

For the period of January 2013-February-2014 the first accused did not file any returns and pay the tax amount. The first accused had submitted objections and proposal for paying tax for two periods and for the remaining assessment period the first accused did not file any objections.

 

Thereafter, tax had been imposed on the first accused. The second accused / petitioner herein had executed an undertaking on a stamped paper by revealing his intention that he would pay the tax assessed on the first accused to the commercial tax department from time to time by standing as a guarantor to the extent of tax arrears in respect of the business done by the first accused. He had also stated that he would clear the tax due on behalf of the first accused on receipt of return intimation from the tax department.

 

Pursuant to such undertaking, the demand was made to him to pay the arrears of the tax of the first accused. Even then the second accused did not pay the tax arrears. 

 

The Bench took note of the fact that the sole reason for which these proceedings had been initiated against the second accused/ petitioner herein was because of the undertaking given by the petitioner on behalf of the first accused for paying tax arrears. 

 

“Though it might be true that the second accused also liable to pay the tax arrears in view of his undertaking or guarantee given in favour of the 1 st accused to the commercial tax department. However that can be done by taking civil action for recovery. Unless the second petitioner is the assessee in the eyes of the Act he cannot be implicated as an accused for the default committed on the part of the first accused, who alone is the assessee”, the Bench held.

 

The Bench affirmed that there was no basis for this criminal case as the complaint had been given against this petitioner by presuming culpability on his part for failing to pay the tax. 

 

“The undertaking or the guarantee executed by the second accused in favour of the 1 st accused to the department can be at the best called as an agreement and for which the petitioner can be attached with contractual liability but not criminal liability”, the Bench clarified while quashing the proceedings against the second accused alone.

 

In I.A NO.179931 OF 2022-SC- COVID-19 situation has now normalized: Apex Court directs Delhi prisoners released on COVID parole to surrender before prison authorities 
Justices M.R. Shah & C.T. Ravikumar [24-03-2023]

Read Judgment: In Re: Contagion of Covid-19 Virus in Prisons v. Director General (Prisons) 

 

Tulip Kanth

 

New Delhi, March 25, 2023: While noting the fact that during the pandemic, the prisoners were not released on merits but were released due to COVID-19 situation, the Supreme Court has directed all prisoners/inmates/undertrial prisoners/convicts who were released on emergency parole/interim bail to surrender before the concerned prison authorities. 

 

The Division Bench of Justice M.R. Shah and Justice C.T. Ravikumar was considering an application preferred by the Director General (Prisons), New Delhi seeking appropriate directions for surrender of prisoners/inmates who had been released on Emergency Parole or interim bail pursuant to the recommendations of the High-Powered Committee, in compliance with the Top Court’s Orders dated March 23, 2020, May 7, 2021 and July 16, 2021 in Suo Moto Writ Petition No.01/2020, as the COVID-19 situation has now normalized.

 

It was the applicant’s case that this Court in Suo Moto Writ Petition No.01/2020 to prevent the spread of COVID-19 virus among prisoners in over-crowded prisons passed an Order dated March 23, 2020 directing each State/Union Territory to constitute the High-Powered Committee to determine the class of prisoners who could be released on Parole or on interim bail on such conditions, as may be determined by the High-Powered Committee.

 

In compliance with such order in the first phase in 2020, a total of 4683 (1184 convicts and 3499 under-trial) prisoners were released.Thereafter, looking to the unprecedented surge in COVID-19 cases during the second wave, this Court directed the High-Powered Committee to grant parole of 90 days to all the inmates who had been released pursuant to the earlier order. Pursuant to this, a total of 3630 under trial prisoners and 751 convicts were released on interim bail or emergency parole till date.

 

Almost a year later, in June, 2022 this Court in various Interlocutory Applications and Special Leave Petitions had granted 15 days time to the prisoners/applicants/petitioners to surrender before the prison authorities.

 

It was also submitted from the applicant’s side that the number of convicts who are still on emergency parole is 680 and number of undertrial who are still on interim bail is 3365.It was also argued before the Bench that things have now improved and the prisoner have to surrender before the concerned jail authorities. 

 

The Bench considered the aspect that all those undertrial prisoners/convicts were released on interim bail/emergency parole taking into consideration the overcrowding in the prisons and to prevent the spread of COVID-19 virus among prisoners in over-crowded prisons.

 

“Therefore, now when the COVID-19 situation has now been normalized, all those prisoners/inmates/undertrial prisoners/convicts who are/were released on emergency parole/interim bail have to surrender before the concerned prison authorities”, the Bench held.

 

The Apex Court also affirmed that a similar order had been passed by in the order dated June 3,2022 w in Suo Moto Writ Petition (Civil) No.01/2020 and SLP (Crl.) Nos. 5507-5508 of 2022 and 5516 of 2022 by which while dismissing the IAs/SLPs this Court had granted further 15 days time to those applicants/petitioners/prisoners to surrender before the prison authorities.

 

Thus, allowing the petition, the Bench also ordered, “...all those under trials/convicts who have been released on Emergency Parole/Interim Bail pursuant to the recommendation of the High-Powered Committee, in compliance of the Orders dated 23.03.2020, 07.05.2021 and 16.07.2021 passed by this Court in Suo Moto Writ Petition No.01/2020 have to surrender before the concerned prison authorities within 15 days.”

 

The Bench concluded the matter by observing that the order be intimated to the concerned Accused/inmates by the concerned jail authorities that they had now to surrender within the period of 15 days. 

 

However, it was also indicated that after the concerned prisoners/inmates surrender before the concerned prison authorities, it will be open for the concerned undertrials to pray for bail before the competent court and their applications be considered in accordance with law and on its own merits. 

 

“Similarly, after the surrender by the concerned convicts who are released on Emergency Parole it will be open for them if so advised to pray for suspension of sentence before the concerned Court in their appeals which might have been pending which also may be considered in accordance with law and/or on merits”, the Bench further remarked.

In W.P.No.39319 of 2022-AP HC- Andhra Pradesh HC allows petition challenging GST cancellation order in light of fact that GST Tribunal had not been constituted u/s 109 of CGST Act
Justices U. Durga Prasad Rao &V. Gopala Krishna Rao [17-03-2023]

 


 

Read Order: ABISWATHIKA INFRA Vs. The State Of Andhra Pradesh And Ors 


 

Tulip Kanth

 

Amravati, March 24, 2023: The Andhra Pradesh High Court has allowed a petition seeking writ of mandamus declaring the order cancelling the Goods and Service Tax registration of the petitioner Firm, which was passed without providing an opportunity of hearing, as arbitrary and illegal.

 

Before the Division Bench of Justice U. Durga Prasad Rao and Justice V. Gopala Krishna Rao, the petitioner had put forth a case that vide reference order, the GST Registration of the petitioner was cancelled for the reason of failure on the part of the petitioner to file returns for a period of six months prior to issuance of the show-cause notice.

 

Aggrieved thereby, when the petitioner filed appeal, the same was dismissed on the sole ground that the appeal was filed with a further delay of 35 days and as per Section 107 of the GST Act, the delay could be condoned for a period of one month and since the appeal was exceeding the limitation, the appellate authority was not vested with the powers to condone the said delay beyond 30 days. 

 

As the appeal was rejected for admission, the Petitioner filed the present writ petition.

 

The Bench referred to the judgment in W.P. No.27071/2022 whereby the Division Bench of the High Court having considered the fact that GST Tribunal had not been constituted under Section 109 of the CGST Act and thereby the petitioner could not be left without any remedy, held that it would be just and proper if the entire matter was remitted back to the respondent therein to reconsider the case of the petitioner and pass appropriate order in accordance with law.

 

Considering the factual aspects of the case, the Bench held, “ In that view of the matter and as the GST Tribunal has not been constituted as per the provisions of the Act so as to enable the petitioner to pursue his further legal remedy, this writ petition is allowed and the matter is remitted back to the preliminary authority…”.

 

The Bench also asked the Authority to consider the case of the petitioner and after verifying the returns submitted by the petitioner and after affording an opportunity of personal hearing pass an appropriate order expeditiously but not later than two weeks. 

 

The Bench also emphasized that depending upon the revival of the cancellation of his registration, the writ petitioner shall be liable to file his returns for the subsequent period till date and pay due tax.




 

In CRA-S-650-2023-PUNJ HC- Prosecutrix has miserably demolished case of prosecution, says P&H HC while releasing POCSO accused on bail after victim turns hostile
Justice Jagmohan Bansal [23-03-2023]

 

Read Order: RAVINDER KUMAR V. STATE OF HARYANA


 

LE Correspondent

Chandigarh, March 24, 2023: As prosecution has the right to arrest, investigate the matter and restrain an accused from manipulating or winning over witnesses, similarly accused in view of Article 21 of the Constitution of India has right to defend himself, the Punjab and Haryana High Court has opined while granting bail to a POCSO accused.

Justice Jagmohan Bansal allowed the appeal against the order whereby the Additional Sessions Judge had dismissed the regular bail application of the appellant under Section 376 (2) (n) of the Indian Penal Code, 1860, Section 6 of the Protection of Children from Sexual Offences Act, 2012 and Section 3 (2) (v) of the Schedule Caste and Scheduled Tribe Act, 1989 by observing that  the  prosecution did  not lead any convincing/plausible documentary or oral evidence indicating possibility of appellant being flee from justice or tampering the evidence or winning over/threatening the witnesses. 

 

The case of the prosecution was such that on May 30, 2022, prosecutrix lodged a complaint alleging that in the year 2013 she and the accused/appellant became friends. It was further alleged that the accused on the pretext of marrying her committed rape upon her.  She got pregnant and the appellant gave her pill to abort the pregnancy. 

 

After some time, the parents of the appellant lodged his missing report. On the basis of the same, the appellant was arrested. 

 

After considering the submissions of the parties,the Court opined that in the case in hand, there were 17 witnesses to be examined and the prosecution had only examined one prosecutirx who turned hostile. 

 

The appellant was in custody since June 27, 2022 and was not involved in any other offence.The Trial Court yet had to return definite findings on the disputed issues. Since only one witness i.e. the prosecutrix was examined, thus, there was abysmally low possibility of conclusion of trial in near future, the Court further noted. 

 

“As prosecution has the right to arrest, investigate the matter and restrain an accused from manipulating or winning over witnesses, similarly accused in view of Article 21 of the Constitution of India has right to defend himself and put forth his stand which cannot be possible while in custody”, the Court opined. 

 

 The prosecution did not lead any convincing/plausible documentary or oral evidence indicating possibility of appellant being flee from justice or tampering the evidence or winning over/threatening the witnesses, the Court observed. 

 

Hence, in view of such facts and circumstances, the Bench allowed the appeal and ordered the accused to be released on bail subject to such conditions as may be imposed by the Trial Court/Illaqa/Duty Magistrate concerned.


 

In WPA 4551 OF 2023-CAL HC- Calcutta HC quashes Notice passed u/s 148 of Income Tax Act as it was issued in name of non-existing company
Justice Md. Nizamuddin [20-03-2023]

Read Order: S. K. Finserve Private Limited v. Assistant Commissioner of Income Tax Circle 7(1), Kolkata & Ors 

 

LE Correspondent

 

Kolkata, March 24, 2023: The Calcutta High Court has allowed the assessee’s challenge to the impugned notice relating to assessment year 2013-14 under section 148 of the Income Tax Act, 1961 where notice had been issued in the name of the company which had already been amalgamated and the Department had been intimated about the same.

 

The petitioner had put up a case before the Single-Judge Bench of Justice Md. Nizamuddin that the company had already been amalgamated in 2016 w.e.f. April 1, 2015 and the department had been intimated about this amalgamation. Hence, such notice in the name of a non-existing company was not tenable in the eye of law.

 

The  petitioner’s counsel had also on a decision of the Gujarat High Court in Takshashila Realties Pvt. Ltd. v. Deputy Commissioner of Income Tax,2016 SCC OnLine Guj 6462,  wherein it was opined that once the scheme for amalgamation was sanctioned by the Court, from that date amalgamating Company would not be in existence. Under the circumstances, the impugned notices, which were issued against the non-existent Company, couldnot be sustained.

 

The Bench was of the view that the impugned notice was not tenable in the eye of law and all further steps pursuant to the said impugned notice also were not tenable in the eye of law. 

 

“This writ petition is allowed and the impugned notice is quashed solely on the ground that the impugned notice was issued in the name of non-existing company in spite of revenue having notice and knowledge of non-existence of such Company”, the Bench asserted.