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In CR-2198-2021(O&M)-PUNJ HC- If landlord rents out shop to someone other than his family members after getting it vacated within 3 years, then evicted tenant has a right to approach Rent Controller for restoration: P&H HC on Sec.13(6) of Haryana Urban (Control of Rent and Eviction) Act, 1973
Justice H.S. Madaan [01-06-2023]

Read Order:Krishan Lal And Others Vs. Ashok Jain 

 

Tulip Kanth

 

Chandigarh, June 7, 2023: While reiterating that a landlord is the best judge of his requirement, the Punjab and Haryana High Court has dismissed a revision petition of the tenants after noting that the landlord had brought sufficient cogent and convincing evidence to prove that he had a bona fide need for the demised shop and his such need was not just a wish.

 

“ In the present case, the order passed by Rent Controller, Ambala dismissing the rent petition filed by the landlord was obviously wrong and illegal result of inability to understand the factual position properly and to apply law in an appropriate manner”, Justice H.S. Madaan held. 

 

The facts of the case were such that the petitioner/landlord had brought a petition under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 against respondent-tenant-firm Krishan Lal and sons seeking ejectment of respondents from the demised Shop.

 

 The petitioner claimed that he required the shop in question for his personal use and occupation. He required the shop in dispute for his son Ankit Jain and Ankit Jain's wife Neha Jain because Ankit Jain was dependent upon the petitioner.

 

Another ground taken by the petitioner seeking ejectment of respondents was that they had created nuisance in the locality and had also encroached some portion and some people quarreled with them. According to the petitioner, he had not vacated any shop after the year 1949 without any reasonable cause and that the respondents were in arrears of rent for the period from January, 2013 onwards, which the respondents had not paid/tendered in spite of repeated requests and demands. The Ambala  Rent Controller had dismissed the petition.

 

The petitioner-landlord had approached the Appellate Authority i.e. District Judge, Ambala by way of filing an appeal, who had accepted the appeal. The respondents/tenants were given two months time from the date of judgment to hand over the vacant possession of the premises under their tenancy to the petitioner/landlord, failing which, the petitioner-landlord would be at liberty to approach the competent executing Court for ejectment of respondents/tenants. Therefore, the respondents/tenants  approached the High Court by way of filing the revision petition. 

 

The Bench opined that if son of the landlord wants to expand his business in the demised shop having direct access to the road, there is nothing wrong in his such plans. He cannot be advised to find some other place for expansion of his business and allow the revision petitioners to keep possession of the shop in dispute.

 

It was observed that since the shop where the son of the landlord is running his business adjoins the demised shop and son of the landlord wants to expand his business, the demised shop has been found to be suitable for that purpose and the revision petitioners - tenants are nobody to advise the landlord that his son should either shift to some other place for his business or get possession of some other shop nearby.

 

Considering the fact that the demised property was being mentioned as shop right from the very beginning, which had been rented out to the father of the revision petitioners several years back where he had been running Halwai business and after his death his sons the revision petitioners are engaged in that avocation, the Bench opined that there was nothing to show that those were constructed for residential purpose and were used as such at any point of time. 


 

The Bench opined that the Rent Controller clearly fell in error in drawing the inference that the petitioner had failed to lead any cogent, clinching and reliable evidence to prove that he required the shop in dispute for his bona fide need, when the landlord had brought sufficient cogent and convincing evidence to prove that he had a bona fide need for the demised shop and his such need was not just a wish. 

 

There was nothing to show that the petition had been filed by the petitioner/landlord with a mala fide intention to enhance the rent or some other extraneous consideration. “Even otherwise under Section 13(6) of Haryana Urban (Control of Rent and Eviction) Act, 1973, if the landlord rent out the shop to some other person after getting it vacated within a period of three years, then the tenant has got a right to approach the Rent Controller for restoration. Therefore, the Legislature has provided a proper safeguard against ejectments for extraneous reasons”, the Bench held.

 

Noting that the revisional jurisdiction of the Court is quite limited, the Bench dismissed the revision petition.

 

In C.A. (COMM.IPD-TM) 8 of 2023- DEL HC- Trademarks Act - Registrar erred in dissecting the subject mark into its individual parts while considering registration: Delhi High Court allows appeal of petitioner challenging refusal of the registration of device mark CruzOil in class 04
Justice Amit Bansal [30-05–2023]

Read Order: Navaid Khan v Registrar of Trademarks Office

 

 

Simran Singh

 

 

New Delhi, June 7, 2023: The Delhi High Court has allowed the appeal under Section 91 of the Trade Marks Act, 1999 (TM Act) wherein the appellant challenged the refusal of the registration of the appellant’s device mark ‘CruzOil’ (subject mark) in class 04 contending that the subject mark, when considered as a whole, had no dictionary meaning nor was it used in common parlance.

 

 

The registration of the subject mark was rejected on the ground that the mark consisted exclusively of words that may serve in the trade to designate the intended purpose of the goods. The Bench however, was of the view that the mark having a combination of words and devices had to be considered as a whole for the purposes of grant of registration.

 

 

The subject mark was a device mark which consisted of various unique and arbitrary elements, such as a tagline ‘Lifeline for Engines’, yellow background with two purple rings, unique pattern of semi circles with images of 4 stars on alternative sides with a pattern of slanting parallel lines and held that Registrar erred in dissecting the subject mark into its individual parts while considering registration.

 

 

The appellant impugned the order dated 12-01-2023 passed by the Registrar of Trade Marks, refusing the registration of the subject mar in class 04 stating that “The mark applied for registration is objectionable under S 9(1)(b) of the Trade Marks Act 1999, as it consists of which may serve in trade to designate the kind, intended purpose of the goods or other characteristics of the goods. The applied mark is highly descriptive as it designate the kind and intended purpose of the goods applied for registration. It clearly indicates that the oil is used in Cruz or for Cruz. It is the name of the product. It is not coined nor invented. It cannot be monopolized.”

 

 

It was the case of the appellant that he had filed an application for registration of the subject mark in class 04 of which the examination report was issued by the Registrar of Trade Marks raising objection under Section 9(1)(b) of the Trade Marks Act, 1999 on the ground that the mark consisted exclusively of words that may serve in the trade to designate the intended purpose of the goods. However, the appellant replied to the objection stating that the subject mark, when considered as a whole, had no dictionary meaning nor was it used in common parlance. Pursuant to the representation filed by the appellant, a hearing was conducted subsequent to which the impugned order dated 12-01-2023 was passed refusing the application of the appellant.

 

 

The Bench noted that the appellant had applied for registration of a composite device mark, which contained the word ‘CruzOil’, along with other elements. However, the impugned order proceeds on the basis that the subject mark was a word mark, ‘CruzOil’ and therefore, treats it as such.

 

 

The Bench navigated through Section 9(1)(b) of the TM Act and the judgment of the co-ordinate Bench of this Court in Abu Dhabi Global Market v. The Registrar of Trademarks, Delhi who had interpreted Section 9(1)(b) of the TM Act in respect of composite marks. Thus, held that the Registrar erred in dissecting the subject mark into its individual parts while considering registration.

“It is relevant to note here that there were other composite marks containing the word Cruzthat have been registered under Class 04, details of which are given in paragraph 15 of the Memorandum of Appeal. It is also relevant to note that the appellant has given a disclaimer with regard to exclusive right to use the word Oil’.”

 

 

In view thereof, the appeal was allowed and the impugned order was set aside. The Bench had further directed the Trade Marks Registry to proceed with the advertisement of the application as per the proviso to Section 20 of the TM Act.

In W.P. (C) 11031 of 2022- DEL HC- Courts can set aside order of punishment if Departmental Inquiry was not conducted properly: Delhi High Court partly upholds order of Central Administrative Tribunal, sets aside inquiry proceedings along with penalty since Department failed to examine relevant witnesses
Justice V. Kameswar Rao and Justice Anoop Kumar Mendiratta [02-06-2023]

Read Order: Union of India v Surender Kumar

 

Simran Singh

 

 

New Delhi, June 7, 2023: The Delhi High Court partly upheld the order passed by the Central Administrative Tribunal to the extent of setting aside the inquiry proceedings along with the penalty order since the Department failed to examine relevant witnesses. It was held that it was a settled legal position that once the Court sets aside an order of punishment on the ground that the inquiry was not properly conducted, the Disciplinary Authority was to conduct the inquiry from the point it stood vitiated.

 

 

The Division Bench of Justice V. Kameswar Rao and Justice Anoop Kumar Mendiratta held that the failure of the department to examine the relevant witness from the Board in the disciplinary proceedings was crucial and consequently the Tribunal had rightly set aside the inquiry proceedings. It was further stated that the FIR in itself was not an evidence without actual proof of facts stated therein.

 

 

The Bench noted that the statement of the respondent recorded in defence had not been placed on record or even discussed in the Inquiry Report. Neither, had it been reflected in case the questions were put up to the respondent in respect of the evidence appearing against him during the course of inquiry as contemplated under Rule 14(18) of Central Civil Services (Classification, Control and Appeal), 1965 (CCS (CCA) Rules). The complete record of inquiry proceedings had not been placed on file.

 

 

“Rule 14(18) of CCS (CCA) Rules, 1965 has been formulated for enabling the delinquent official to rebut and explain the circumstances appearing against him in evidence. The Inquiry Officer, as such, is obligated to put the incriminating evidence to the respondent in order to give him a proper opportunity of explaining the circumstances appearing against him unless he is examined in defence.” 

 

 

The Court had relied upon Ministry of Finance v. S.B. Ramesh, wherein the Supreme Court had held that Rule 14(18) of CCS (CCA) Rules, 1965 was mandatory. Thus the Court agreed with the finding of the Tribunal to the extent of setting aside the inquiry proceedings along with the penalty order with liberty to proceed in the matter in accordance with law. However, was unable to agree with the directions of the Tribunal that the respondent be re-instated forthwith and be entitled for consequential benefits in accordance with the relevant rules.

 

 

It was the case of the petitioner that the respondent was appointed as a Caretaker in Safdarjung Hospital on 25-07-1986, as per Recruitment Rules on the basis of matriculation certificate i.e. Higher Secondary School Examination 1982 from the Board of Secondary Education, Madhya Pradesh, Bhopal and was promoted in the course of his service to the post of Chief Sanitary Superintendent on 01-01-2000. It was alleged that the respondent had failed in the Higher Secondary Examination and had got the Job in the Hospital by forging the results and marks in the Mark Sheet submitted with the department.

 

 

The departmental inquiry had been challenged by the respondent/delinquent official before the Tribunal primarily on the ground of violation of principles of natural justice, on account of failure to examine the relevant witnesses to prove the documents and follow the procedure as contemplated in Rule 14 of CCS (CCA) Rules.

 

 

The Bench referred to the case of Union of India v. P. Gunasekaran wherein the scope of the powers of judicial review in disciplinary proceedings were summarised stating that the High Court should not act as a second Court of First Appeal and should not venture into re-appreciating of evidence under the writ jurisdiction. However, in the case of Pravin Kumar v. Union of India it was observed that the judicial review was to ensure fairness in treatment and fairness of conclusion and ought to be used to correct manifest errors of law or procedure, which might result in significant injustice or incase of bias or gross unreasonableness of outcome. Thus, the court stated that the judicial review was a review of judicial making process and not merits of decision itself.

 

 

The Court upon pursuing the impugned order dated 12-01-2022 passed by the Tribunal revealed that the Inquiry Report dated 22-12-2017, penalty order dated 17-01-2018 passed by the Disciplinary Authority and order dated 24-10-2018 passed by the Appellate Authority had been set aside by the Tribunal upholding the contentions raised on behalf of the respondent that the inquiry has been conducted in violation of provisions of Rule 14 of CCS (CCA) Rules and orders were passed by the Disciplinary Authority as well as Appellate Authority in a mechanical manner, without recording any reasons and/or dealing with the grounds taken by the respondent.

 

 

The Bench noted that the disciplinary proceedings were initiated by the department only on receipt of complaint from the Central Vigilance Commission wherein the identity of the complainant was directed to be kept confidential in view of Public Interest Disclosure Resolution. In response to the complaint, respondent was requested to furnish the original certificate which he later on claimed to have submitted/deposited with the department. The aforesaid stand of respondent was disputed by the petitioners and it was claimed to be false as the dispatch/receipt number was stated to be discrepant to the practice followed at the relevant time. Left with no other option, the department had to forward the photocopy of Higher Secondary Certificate for verification by the Board of Secondary Education, Madhya Pradesh, Bhopal which bore certificate ‘SNo. 236825 Roll No. 1557766’ in the name of Surender Kumar S/o Shri Ishwar Singh.

 

 

In response to request for verification by the department, letters dated 18-12-2015 and 25-06-2016, were received from the Office of Board of Secondary Education, Madhya Pradesh, Bhopal, wherein it was stated that upon comparison, various discrepancies/variations had been observed in the certificate forwarded by the department and record of relevant Roll No. maintained by the Board and stated that the respondent had failed in the said examination having scored 256 marks.

 

 

The Court disagreed with the observations of the Tribunal that some of the questions put to the respondent on 06-10-2017, in any manner shifted the burden of proof to the respondent to prove his innocence. “In law, it is a common ground that if the Inquiry Officer conducts the inquiry proceedings as a Prosecutor and puts leading questions on prosecution witnesses exposing a prejudiced or biased mind or in any manner conducts the inquiry proceedings ignoring the principles of natural justice, the inquiry would be considered to be opposed to principles of natural justice. However, the Inquiring Authority is entitled to put questions to the witnesses for clarification if it becomes necessary, so long the delinquent employee is permitted to cross-examine the witnesses after the Inquiry Officer questions the witnesses. The Inquiry Officer, with a view to arrive at the truth or to obtain clarifications, appears to have put questions to the respondent.”

 

 

The Bench stated that the Tribunal had upheld the contentions raised on behalf of the respondent finding deficiencies in the conduct of inquiry, in violation of provisions of Rule 14 of CCS (CCA) Rules on the ground that instead of examining the concerned Administrative Officer (AO) as a witness on behalf of the department, one Ram Niwas, AO had appeared as a witness without issuing of any formal order by the Disciplinary Authority. It was also held that the Inquiry Officer did not question the respondent on the circumstances appearing against him in the evidence for the purpose of enabling him to explain the circumstances appearing in the evidence. Further, the grounds taken by the respondent were neither considered by the Disciplinary Authority vide order dated 17-01-2018, nor by the Appellate Authority in the subsequent appeal preferred by the respondent.

 

 

“It needed to be kept in perspective that for purpose of proving the verification report qua the certificate in question, the Inquiry Officer was required to prove the same by examining the official from the Board or by examining the official from the department who may have obtained the verification report from the concerned Board. This could have ensured a fair and proper opportunity to the respondent for furnishing his defence/explanation, if any, qua the certificate in question. The substitute AO, who had not participated in obtaining the verification report, could not have proved the verification report received from the Board, on record.”

 

The Bench noted that in terms of Rule 14(18) of CCS (CCA) Rules, after the prosecution evidence was over, the charged officer was required to submit his statement of defence indicating his line of defence, if any. The evidence was to be led in the same manner giving an opportunity of cross- examination to the Presenting Officer. “Thereafter, the Inquiring Authority would have enquired the charged officer if he wished to appear as his own witness and in case the charged officer declined to do so, the Inquiring Authority was required to generally question him to explain any circumstances appearing against him.”

 

 

The Court opined that the order passed by the Tribunal directing the re-instatement of the respondent with back wages needed to be set aside. The case was further remitted back to the Disciplinary Authority to conduct the inquiry from the point it stood vitiated and to conclude the same within a period of six months from the date of passing of this order.

In W.P. (MD) 11599 of 2023- MADR HC- ‘Losing a job, that too after serving for more than 10 years would be stressful and can impact several aspects of life’: Madras High Court advices petitioners to move Top Court to direct Tamil Nadu Govt to allow them to continue as Veterinary Assistant Surgeons with regular time scale of pay, without retirement & terminal benefits
Justice S. Srimath [02-06-2023]

Read Order: Dr. V. Selvendran v. The Government of Tamil Nadu

 

 

Simran Singh

 

 

New Delhi, June 7, 2023: The Madras High Court stated that it would be appropriate for the petitioners to approach the Supreme Court to direct the respondent to allow them to continue in the post of Veterinary Assistant Surgeon with pay protection (regular time scale of pay) till the date of their retirement on attaining the age of superannuation, without retirement and terminal benefits. The High Court further opined that the present 20 writ petitioners, and any persons above the age of 45, ought to be considered for continuing in service until their retirement with only time scale of pay without any retirement and terminal benefits. Until the outcome of the results before the Supreme Court, the present petitioners may be allowed to continue in service, the Court held.

 

 

The Single-Judge Benchof Justice S. Srimath stated that “Losing a job, that too after serving for more than 10 years would be stressful in many ways and can impact several aspects of life. It not only leads to uncertainty, financial loss, job search stress but also impacts self-esteem negatively and in many cases trigger identity crisis. Such can be the impact that a person may feel uncomfortable mingling with other people, attending social events or even talking to their family members fearing judgment from them. Prolonged unemployment can even be more devastating as after remaining jobless for a considerable period of time, a person becomes hopeless, pessimistic and demotivated which over a period of time can affect their personality.”

 

 

 

 

 

In the matter at hand, the petitioners had acquired B.V.Sc., degree and registered their names in the Professional Executive Employment Exchange. During the year 2011, the Government appointed 843 Veterinary Assistant Surgeons through the same Employment Exchange in accordance with Rule 10 (a) (i) of the State Subordinate Service Rules. The petitioners were under the impression that they would be regularised upon clearing the Special Qualifying Examinations that would be conducted by Tamil Nadu Public Service Commission.

 

 

Unfortunately, a common notification was issued calling candidates from open market to participate in the competitive examination which was the subject matter of the present writ. The petitioners had preferred an interim application before the Supreme Court for suitable relief enabling regularisation of service after obtaining concurrence from the Tamil Nadu Public Service Commission. However, the Supreme Court declined to accept the said proposal of the petitioners and other 573 similarly placed persons.

 

 

It was case of the petitioners that they had demonstrated and established the eligibility and suitability for regular appointment by their actual and physical services put in for more than a decade. It was contended that they were at a more disadvantageous position, where they had to compete with youngsters, that too after the change in curriculum for more than two times and lack of time for theoretical preparation, in view of continuous services in the said post resulting in depriving them from a ‘Level Playing Field’.

 

 

It was further submitted that in view of the fact that the notification was issued beyond the time limit prescribed by the Supreme Court, there were other infirmities as well such as the sudden introduction of Tamil eligibility test etc., which would cause serious prejudice to the in-service candidates. The petitioners came up with a new proposal that they ought to have been permitted to continue in the said post till their retirement and be eligible only for time scale of pay without any terminal benefits and pensionary benefits.

 

 

The respondents represented by the Additional Advocate General submitted that the notification of the Government was to regularise the petitioners’ services. Hence, the claim of the petitioners was considered and the Government had filed a miscellaneous petition before the Supreme Court to regularise their services. However, the Supreme Court declined the proposal of the Government as well as declined the prayer of the writ petitioners and had taken into consideration the fact that since the petitioners were in service for more than 10 years the Government was directed to give weightage to the writ petitioners. Hence, a policy decision was executed as per the said direction to grant 50 marks to the in-service candidates and also granted age relaxations.

 

 

In response to the aforementioned, the petitioners submitted that even though 50 marks were granted to the inservice candidates, the syllabus had changed for two times. Therefore, the petitioners would not be in a position to compete with the youngsters. Moreover, there was a lack of time to prepare from the new syllabus due to their continuous service in the post and therefore not granted sufficient time to prepare for theory as well as practical and hence, there was difficulty in passing such examination.

 

 

The respondents relied upon the judgment rendered by the Supreme Court, wherein it was stated that

“…(ii) As far as 573 appointees under Rule 10A (many of whom are appellants before this Court) are concerned, we are of the view that they should not be permitted to be regularized in the manner proposed by the State. However, we grant the relief in the following manner:

  1. the appellant-State in Civil Appeal Nos. 4353-54/2016 will proceed to notify vacancies including the vacancies held by the appellants before us as also all the Rule 10A appointees.
  2. the appointees under Rule 10A will be granted the benefit of upper age relaxation so that they are entitled to apply and be considered with anybody else who is eligible to apply and applies.
  3. the appointees under Rule 10A including the appellants before us will be afforded weightage of marks towards weightage of experience in the selection process. The weightage will consist of marks at the rate of 5 marks for every year, which is subject to a maximum of 50 marks……”

 

The Court stated that when the Supreme Court had issued a direction after considering the plight of the 573 candidates, there was no question of modifying the said direction issued by the Supreme Court on this issue.  “When the respondents have come out with a policy decision to grant 50 marks for the in-service candidates, now the petitioners would be in a better position compared to the youngsters from open market.” Therefore, the Court was of the considered opinion that the petitioners would compete in the examination since granting the weightage of 50 marks, if the in-service candidates were passed, would enable them continue in the service.

 

 

However the petitioners submitted that the Government may consider to retain the 20 writ petitioners alone, if they failed in the examination and that they may pay the salary alone (time scale of pay) who would give up the retirement and terminal benefits. "Since some of the petitioners were more than 50 years, at this age they cannot seek any public employment. They are having family to support, they have to support the elders, some of the writ petitionerschildren are studying. Moreover, if at this age they lose their job, it would have social stigma to the entire family…this concession would be beneficial to the Government also, since the Government would be benefited financially, since the said 20 writ petitioners are given up their terminal and retirement benefits.”

 

 

The Court stated that the said concession was attractive and any Court would grant such relief, provided if the litigation arose for the first time. Unfortunately, the earlier round of litigation went upto the Supreme Court and the petitioners had lost. However, the writ petitioners had an option to go before the Government who may consider to continue such candidates till their retirement.  At this juncture the Additional Advocate General submitted that now the Government also was not in a position to consider the claim of the petitioners, since the Government’s proposal was also declined by the Supreme Court. Therefore, this Court was of the considered opinion that it would be appropriate to approach the Supreme Court for such direction.

 

In ITA No.7960/Del./2019 - ITAT - ITAT (Delhi) rules in favour of Avery Dennison (P) Pvt. Ltd., holds entire agreement for services should be considered as a whole; Transfer Pricing adjustment on account of intra group services deleted
Members Shamim Yahya (Accountant) & Challa Nagendra Prasad (Judicial) [06-06-2023]

Read Order: Avery Dennison (India) Pvt. Ltd v. DCIT, Circle 3 (2), New Delhi

 

Chahat Varma

 

New Delhi, June 7, 2023: The Delhi bench of the Income Tax Appellate Tribunal has ruled that where there is an agreement for services and certain services within that agreement are undisputedly rendered, the entire agreement should be considered as a whole and whether the services have actually resulted in a benefit to the assessee or not is immaterial.

 

Brief facts of the case were that Avery Dennison (P) Pvt. Ltd. (assessee), was a subsidiary of Avery Dennison Corporation, USA. The Transfer Pricing Officer (TPO), referring to the order passed by the DRP, applied the Comparable Uncontrolled Price (CUP) method to benchmark the international transactions related to intra-group services and thereby proposed an adjustment of Rs. 23,02,71,861/-. The assessee contended that the AO / DRP / TPO erred in making an adjustment to the appellant's international transaction of receipt of intragroup services with its Associated Enterprises (AEs) alleging that it did not satisfy the arm's length principle envisaged under the Act.

 

The bench of Shamim Yahya (Accountant) and Challa Nagendra Prasad (Judicial) noted that the assessee had furnished enormous evidences which pointed out that intra group services had in fact been received by the assessee. Moreover, the agreement was a composite one and authorities below had allowed part of the same and treated part of the same not allowable. The bench further noted that on similar facts, in assessee’s own case in ACIT, Circle-3(2), New Delhi v. Avery Dennison (I) P. Ltd [LQ/ITAT/2021/3382], the ITAT had deleted the adjustment for several years and the Revenue’s appeal against them had been dismissed by the Delhi High Court.

 

Here also from the composite agreement, some have been accepted at arm’s length price and some have been treated as not acceptable at arm’s length price. Huge details of intra-group services have been furnished by the assessee. Respectfully following the precedent from the ITAT and Hon’ble High Court, we uphold the contention of the assessee and delete the TP adjustment,” observed the bench.

In Service Tax Appeal No.127 of 2011 - CESTAT - CESTAT (Kolkata) holds construction undertaken by NBCC and Raitani Engineering Works, for meeting the social needs of Manipur, not taxable under 'Commercial or Industrial Construction'; sets aside demand for Service Tax
Members P.K. Choudhary (Judicial) & K. Anpazhakan (Technical) [06-06-2023]

Read Order: National Building Construction Corporation Limited and ors v. Commissioner of Central Excise & Service Tax, Shillong

 

Chahat Varma

 

New Delhi, June 7, 2023:  In a relief to National Building Construction Corporation Limited (NBCC) and M/s. Raitani Engineering Works Pvt. Ltd. (appellants), the Kolkata bench of the Customs, Excise and Service Tax Appellate Tribunal has set aside the demand for service tax under the category of ‘Commercial or Industrial Construction’ for the construction of various buildings and structures for meeting the social needs of the state of Manipur and for upliftment of needy people in the state. The Tribunal ruled that the construction falls under the category of 'works contract service' rather than 'commercial or industrial construction service'.

 

The facts of the case in brief were that M/s. Raitani Engineering Works Pvt. Ltd. was awarded a contract by NBCC on behalf of the Ministry of Urban Employment and Poverty Alleviation, for the construction of Jiribam Municipal Corporation building, Staff quarter building, Guest house building, overhead tank, etc. The funds for the project were released to NBCC by the government from the non-lapsable central pool of resources for the development of North-Eastern states. The Commissioner observed that the construction projects undertaken for the local government bodies were considered commercial activities. The Commissioner rejected the submissions put forth by the appellants that subject services, if at all taxable, would be liable to be taxed under the category of ‘works contract service’ which had not been proposed in the show cause notice.

 

The bench noted that the contract in question included the supply of goods, and therefore it could not be classified under the category of Commercial or Industrial Construction. The bench also observed that the Commissioner had considered the fact that the construction service included the supply of goods and had applied the benefits of abatement to exclude the value of goods in order to determine the assessable value for the service tax demand.

 

The bench also referred to the case of URC Construction (P) Ltd v. Commissioner of Central Excise, Salem [LQ/CESTAT/2016/91], wherein it has been held that when no proposal is made in the SCN to classify the service under the category of ‘works contract service’, the demand of service tax cannot be sustained for the period subsequent to 01.06.2007.

 

In C.S.No.30 of 2021 (Comm.Suits)-MADR HC- Assignment Deed concerning rights in cinematograph film doesn’t require compulsory attestation, however, attestor’s evidence assumes significance when there is a cloud over due execution of document: Madras HC
Justice S. Sounthar [06-06-2023]

Read Order:C. Prakash Vs. M/s S. N. Media And Ors 


 

Tulip Kanth

Chandigarh, June 7, 2023:While observing that the plaintiff failed to prove due execution of the assignment deeds by leading acceptable evidence, the Madras High Court has dismissed a suit seeking a declaration that the petitioner was the sole and absolute owner of all the intellectual property rights in respect of dubbed cinematograph film 'Chingari' and 'Shrikanta' in Tamil and Malayalam.

“Ofcourse, assignment deed concerning rights in a cinematograph film is not a document which requires compulsory attestation. Notwithstanding the same, when there is a cloud over the due execution of the document, attestors evidence assumes significance”, Justice S. Sounthar said.

The plaintiff had filed a suit seeking declaration that he is the sole and absolute owner of all the intellectual property rights in respect of dubbed cinematograph film 'Chingari' and 'Shrikanta'. He also sought for a direction to the defendants to remove the infringing content of the copyrights protected film in Tamil and Malayalam while also seeking damages of Rs 1,20,000 from the defendants.

According to the plaintiff, the second defendant is the producer of the Kannada cinematograph film 'Chingari' and he acquired dubbing rights in Tamil and Malayalam languages along with internet and non-theatrical rights of the said film and another film not connected with the suit 'Shishira' vide an Assignment Deed. The plaintiff also acquired  dubbing rights in Tamil and Malayalam languages along with internet and non-theatrical rights of the Kannada film 'Shrikanta' vide an Assignment Deed.

The plaintiff claimed that the consideration of Rs 30,000  and Rs 25,000 had been paid to the defendants respectively through one Rajendra Kumar, who brokered the deal. According to the plaintiff, he paid Rs 55,000 vide NEFT transaction to said Rajendra Kumar and he inturn paid Rs.50,000 to the defendants after deducting Rs.5,000 which was payable to him by them. 

 

The second defendant is the producer of the Kannada film 'Chingari' and 'Shishira'. The third defendant is the producer of the Kannada film 'Shrikanta'. Both of them issued receipts acknowledging receipt of consideration in respect of the above said Assignment Deeds from Rajendra Kumar. It was alleged  by the plaintiff that later on, it came to his knowledge that the third defendant had assigned exclusive dubbing rights of the films 'Chingari' and 'Shrikanta' in other South Indian Languages in favour of the first defendant. 

 

It was further averred that a legal notice was issued by the plaintiff  to the defendants. The defendants had issued a reply  stating that they had not received any consideration from the plaintiff in respect of the Assignment Deed in his favour and consequently, they assigned rights in respect of the above said films in favour of the first defendant. The plaintiff, claiming that consideration already paid to defendants through Rajendra Kumar, had come up with the suit before the High Court.

 

The Bench observed that  assignment deed concerning rights in a cinematograph film is not a document which requires compulsory attestation. Notwithstanding the same, when there is a cloud over the due execution of the document, attestors evidence assumes significance. In the case on hand, the contesting first defendant pleaded collusion between the plaintiff and the defendants and in view of the stand taken by the first defendant, a cloud was created over due execution of assignment deed. Therefore, it was incumbent on the plaintiff to cure the cloud by proving due execution of the assignment deed. 

 

It was opined that the witness column in the assignment deeds were blank and therefore, there was no attestor to examine. It was noticed that there was a material contradiction with regard to the presence of plaintiff at the time of execution of assignment deeds. The plaintiff sought declaration of its dubbing rights over the films in question under Assignment Deeds, however, he failed to produce the original assignment deeds but produced only the photocopies. 

 

The witness column in the assignment deed was blank and in the clause relating to the payment of consideration, payment reference number and payee name were all left blank. The Court was unable to accept the contention of the learned counsel for the plaintiff that plaintiff proved due execution of the deeds. It was also observed that when the very execution of assignment deeds were not proved, the plaintiff couldn't take advantage of the precedent that mere non-payment of consideration would not vitiate the assignment because even a promise to pay consideration can be treated as a sufficient consideration. 

 

The Bench came to the conclusion that the plaintiff failed to prove due execution of deeds by leading acceptable evidence. “The conduct of defendants 2 and 3 in their failure to appear before this Court and participate in the proceedings creates a suspicion that there is a collusion between the plaintiff and defendants 2 and 3”, the Bench said while dismissing the suit.


 

In  CWP No.18033 of 2017(O&M)-PUNJ HC- Petitioner wasn’t entitled to get SC certificate as he belonged to Muslim Community: P&H holds appointment of Professor to be void ab initio 
Justice Jaishree Thakur [17-05-2023]

Read Order:Abid Ali Vs. State Of Haryana And Others 

 

Tulip Kanth

 

Chandigarh, June 7, 2023:While observing that the petitioner, being a Muslim, is not entitled to get a Scheduled Caste Certificate, the Punjab and Haryana High Court has dismissed a petition seeking quashing of order vide which the petitioner, who was working as Assistant Professor under the Self Financing Scheme was removed from service of the University.  

 

“...this Court is of the opinion that petitioner was not entitled to be issued an SC certificate, being a person belonged to Muslim Community”, Justice Jaishree Thakur asserted.

 

The facts of this case were such that in the year 2006, the petitioner namely Abid Ali started working as contractual Teaching Associate in the respondent -University. In the same year i.e. 2006, the University issued an advertisement for filling up 5 posts of Lecturers in the Department of Journalism & Mass Communication under SFS. Out of said 5 posts under SFS, one post was reserved for SC category and remaining four were unreserved. 

 

The petitioner applied for appointment under both categories of posts i.e. budgeted and SFS.The petitioner was selected and appointed as Lecturer under both the schemes i.e. budgeted as well as SFS. In the appointment letter issued for budgeted post of Lecturer, the subject was mentioned as appointment to the post of Lecturer (SC) on temporary basis, whereas in the appointment letter issued under SFS, it was mentioned as appointment to the post of Lecturer (under SFS). The petitioner joined as Lecturer under SFS under Department of Journalism and Mass Communication.

 

Thereafter, a complaint was made against the petitioner alleging therein that the petitioner obtained a job while claiming himself to be an SC candidate, as belonged to Julaha community, whereas he couldn’t be selected under SC category, being a Muslim. The Deputy Commissioner, Karnal stated that there was no entry in the name of Abid Ali regarding issuance of SC Certificate and the Registrar Issued a memorandum of charges and it was proposed by the competent authority to take action against him as per Agreement.  The petitioner submitted his reply stating that he had verified the caste certificate from the office of City Magistrate, Karnal and the caste certificate issued to the petitioner was issued vide Sr. No.2299 instead of 2348.

 

Thereafter, a decision was taken in the meeting of the Executive Council  for removal of the petitioner from service, which shall not be disqualification for future employment. Aggrieved against this order whereby the petitioner had been removed from service, he approached the High Court.The issues before the Bench was whether the SC certificate was forged or obtained by misrepresentation and  whether the petitioner had benefitted from the certificate and if he could be allowed to continue in service.

 

The Bench reaffirmed that a person to have the status of Scheduled Caste must profess Hinduism or any other religion as specified in para 3 of the Constitution (Scheduled Castes) Order, 1950 (hereinafter referred to as Presidential Order), as issued by the President in exercise of the power conferred upon him under Article 341 of the Constitution of India. 

 

“In the absence of any material available before this Court that petitioner  herein is professing Hinduism or any other religion as specified in para 3 of the  Presidential Order, this Court is of the opinion that petitioner was not entitled to be issued an SC certificate, being a person belonged to Muslim Community”, the Bench held. 

 

The Court further made it clear that the petitioner had a case if he could prove that he had obtained more marks than the last selected candidate of General Category and therefore, applying the principle of horizontal reservation, he was to be given appointment against the post of General Category to grant benefit of reservation to next Scheduled Caste candidate. The Bench rejected the argument saying that he was given appointment against 4th post of General category as according to the recommendation of the interview committee, the petitioner was recommended for appointment under SC category.

 

It was also noticed that the petitioner was appointed in the year 2007 and till today, he had rendered 16 years of service. “This Court is of the opinion that since the appointment of the petitioner based on the Scheduled Caste certificate to which he was not entitled to, is void ab initio, he cannot get the benefit of length of service for which he was not eligible at the first instance”, the Bench said.

 

The Court was of the view that even though the petitioner might not have misrepresented at the time of obtaining an SC certificate or obtained the same fraudulently, but since he claimed and was given benefit under the said certificate to which he was definitely not entitled to, he couldn’t be allowed to continue in service. 

 

However, the Bench held that the salary and other emoluments paid to the petitioner shall not be recovered. The government accommodation, if retained by the petitioner has to be vacated by him within a period of two months, the Bench ordered while dismissing the petition.

 

In Customs Appeal No. 85090 of 2020 - CESTAT - Merely sending Order-in-Original/Show Cause Notice by speed post does not fulfill the communication requirement under Section 128 of the Customs Act, rules CESTAT (Mumbai)
Member Ajay Sharma (Judicial) [06-06-2023]

Read Order: Metro Fashions v. Commissioner of Customs, Mumbai (Air Cargo Export)

 

Chahat Varma

 

New Delhi, June 7, 2023: The Mumbai bench of the Customs, Excise and Service Tax Appellate Tribunal has ruled that merely by sending a copy of the Order-in-Original by speed post, the department cannot be said to have discharged their liability. The Tribunal emphasized that communication of the order means that it must be served on the assessee, as the wording used in Section 128 of the Customs Act is ‘date of communication of order’.

 

The issue involved herein was whether the Commissioner was justified in dismissing the appeal as time barred under Section 128 of the Customs Act.

 

According to the appellant although the date of the adjudicating order was 28.3.2018 but the same was not received by the appellant and the certified copy of the same was received by them on 13.9.2019, that too when they approached the authorities concerned and therefore the period of limitation had to be calculated from 13.9.2019 and not from 28.3.2018.

 

The Tribunal held that in the instant case the appellant received copy of the Order-in Original on 13.9.2019 and the appeal before the Commissioner (A) was filed on 24.10.2019 which was well within a period of three months from the date of receipt/communication of the Order-in-Original. Therefore, the Commissioner (Appeals) had erred in rejecting the appeal on the ground of time bar.

In Order No. 37/AAR/2022 - AAR - AAR (Tamil Nadu) rules dried coconuts (shelled or peeled) supplied by M/s EMS COCOS attract 5% GST
Members R. Gopalsamy, I.R.S. & N. Usha [30-11-2022]

Read Order: In Re: EMS COCOS

 

Chahat Varma

 

New Delhi, June 7, 2023: The Tamil Nadu bench of the Authority for Advance Rulings has ruled that dried coconuts (shelled or peeled), supplied by M/s EMS COCOS (applicant) attracted GST rate of 5%.

 

The applicant, engaged in the activities of manufacturing and trading of Coconut, Copra and Coconut shells, had sought advance ruling on whether the dried coconuts (shelled or peeled) used for human consumption shall be classified under Chapter 8, HSN 0801, on which rate of tax was ‘nil’.

 

The short point that arose in the instant case was whether the goods in question viz., dried coconuts (copra in trade parlance) meant for human consumption merit classification in Chapter Heading 0801 thereby attracting ‘Nil’ rate or in Chapter Heading 1203 thereby attracting 5% GST (CGST 2.5%+ SGST 2.5%).

 

The Authority examined Circular 163/19/2021-GST dated 6th October 2021, which clarified that the whole unbroken kernel could only be extracted from the shell when it converts to copra. The Authority observed that the applicant processes the copra by cutting it in half, sun drying it, and manually segregating it based on its round shape and cleanliness. The round and clean copra was sent for human consumption, while the irregularly shaped and dusty copra was sent to oil milling units. The Circular clearly stated that copra was classified under Heading 1203, regardless of its use. Therefore, the Authority held that the goods in question, being copra, shall be classified under Heading 1203.

In Writ Tax No. - 619 of 2023 - ALL HC - Allahabad High Court grants relief to M/s. United Spirits Limited, says no coercive action to be taken against them in Indian Made Foreign Liquor tax case
Justice Piyush Agrawal [22-05-2023]

Read Order: M/s. United Spirits Limited v. State of U.P. And 3 Others

 

Chahat Varma

 

New Delhi, June 7, 2023: The High Court of Allahabad has granted relief to M/s. United Spirits Limited (petitioner) by ruling that no coercive action should be taken against them until the next scheduled date of listing. The court took into consideration the fact that the Uttar Pradesh Tax on Entry of Goods into Local Areas Act, 2007, no longer includes Indian made foreign liquor in its schedule of items.


In the matter at hand, the learned counsel for the petitioner had submitted that under the Entry Tax Act, 2000, in the Schedule, Indian made foreign liquor, was mentioned. However, the Act was reintroduced by the Uttar Pradesh Tax on Entry of Goods into Local Areas Act, 2007, where the schedule of items no longer included Indian made foreign liquor. Therefore, the petitioner asserted that the proceedings against them are without jurisdiction.

 

On perusal of records, the court opined that the counsel for the petitioner had substance and the matter required consideration.

 

Matter is now listed on 20th of July, 2023.