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In CR.A. No. 1910 of 2010-SC- Defence counsel’s suggestion to witness in cross-examination, if found to be incriminating in nature, would bind accused: Supreme Court
Justices Sudhanshu Dhulia & J.B. Pardiwala [29-03-2023]

Read Judgment: BALU SUDAM KHALDE AND ANOTHER v. THE STATE OF MAHARASHTRA 

 

Tulip Kanth

 

New Delhi, April 5, 2023: While refusing to agree with the submission that an answer by a witness to a suggestion made by the defence counsel in the cross- examination does not deserve any value if it incriminates the accused in any manner, the Supreme Court has clarified that any concession or admission of a fact by a defence counsel would definitely be binding on his client, except the concession on the point of law. 

 

Referring to the judgment in Rakesh Kumar alias Babli v. State of Haryana, the Division Bench of Justice Sudhanshu Dhulia and Justice J.B. Pardiwala said, “Thus, from the above it is evident that the suggestion made by the defence counsel to a witness in the cross-examination if found to be incriminating in nature in any manner would definitely bind the accused and the accused cannot get away on the plea that his counsel had no implied authority to make suggestions in the nature of admissions against his client.”

 

The case of the prosecution was that on the fateful day of the incident the first informant(first witness), was chatting with his friend Abbas Baig (deceased). At that time, while the second appellant accompanied by few other individuals was passing by the side, he was accosted by the deceased Abbas. There was some verbal altercation between the two. 

 

After sometime the first and second appellants and the other two co-accused who came to be acquitted by the Trial Court reached at the spot. A fight ensued in which the first informant was assaulted on his head which was alleged to have been laid by the first appellant. 

 

The first informant suffered a bleeding injury on his head. Thereafter, a severe assault was laid on the deceased by means of a sickle and sword and he ultimately succumbed to such injuries.

This appeal by special leave at the instance of two convict persons was directed against the judgment of the Bombay High Court affirming the order of conviction passed by the Additional Sessions Judge whereby both the appellants were convicted for the offence under Section 302 read with Section 34 of the Indian Penal Code, 1860  and sentencing them to suffer life imprisonment.

 

Enumerating the judicially evolved principles for appreciation of ocular evidence in a criminal case, the Bench opined that when eye-witness is examined at length it is quite possible for him to make some discrepancies but courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.

 

The Bench also highlighted the fact that the presence of an injured eye-witness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition. The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly.The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded, the Bench added.

 

Further, the Bench also observed that suggestions made to the witness by the defence counsel and the reply to such suggestions would definitely form part of the evidence and can be relied upon by the Court along with other evidence on record to determine the guilt of the accused.

 

On the facts of the case, the Bench opined that in the cross-examination of the third witness, a suggestion was put to him that he had inquired with the first witness as to what had happened and the first witness in turn narrated the incident to third witness. This suggestion put by the defence counsel to the third witness was answered in the affirmative. This part of the evidence of the  third witness was corroborated by the evidence of the first witness.

 

As there was no dispute that the death of the deceased occurred due to culpable homicide and not due to accident or suicide, the Bench had to consider whether the incident came within any of the exceptions indicated in Section 300 of the Code.

 

Noting that the  the sine qua non for the application of an Exception to Section 300 always is that it is a case of murder but the accused claims the benefit of the Exception to bring it out of that Section and to make it a case of culpable homicide not amounting to murder, the Bench said, “On a plain reading of Exception 4, it appears that the help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight, (c) without the offenders having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found.”

 

Having regard to the nature of the injuries caused by dangerous weapons like sickle and sword which were applied on the vital part of the body, the Bench came to the conclusion that it was a case of Section 302 of the IPC.

 

Referring to its judgment in Rajwant Singh v. State of Kerala  and considering the fact that the appellants herein inflicted as many as nine blows with a dangerous weapon on the deceased who was unarmed and was helpless, the Top Court said, “For cases to fall within clause (3) of Section 300 of the IPC, it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature.”

 

Thus, dismissing the appeal and noting that the accused-appellants were ordered to be released on bail pending the final hearing of the present appeal, the Bench cancelled the bail bonds and ordered both the appellants to surrender before the Trial Court.



 

In CRA-S-763-2023-PUNJ HC- P&H grants bail to first-time offender in SC/ST Act case, provides opportunity to course-correct
Justice Anoop Chitkara [20-03-2023]

Read Order: DINESH VS STATE OF HARYANA 

 

LE Correspondent

 

Chandigarh, April 1, 2023: Referring to the judgment of the Top Court in Gurbaksh Singh Sibbia v State of Punjab wherein it has been observed that the bail decision must enter the cumulative effect of the variety of circumstances justifying the grant or refusal of bail, the  Punjab and Haryana High Court has allowed an appeal under section 14-A of Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act, 1989 of the accused challenging the dismissal of his bail application.


Justice Anoop Chitkara opined that the appellant made a case for bail in the instant case. 

 

The appellant had filed a bail application before the Additional Sessions Judge, which was dismissed on March 1, 2023.  The allegations were of abusing the people belonging to the scheduled castes by using the derogatory words prohibited under the Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act, 1989. 

The Counsel for the appellant submitted that he would have no objection in case any stringent conditions this Court might put upon the appellant. The appellant’s contention was  that the custodial investigation would serve no purpose whatsoever, and the pre-trial incarceration would cause an irreversible injustice to the appellant and family. 

 

The State as well as counsel for the complainant opposed the bail. 

 

After considering the submissions from both the sides, the Court noted that on prima facie analysis of the nature of allegations and other factors peculiar to this case, there would be no justifiability for custodial or pretrial incarceration at this stage.

 

 Furthermore, the appellant was a first offender, and one of the relevant factors would be to provide an opportunity to course-correct. 

 

The Bench referred to the judgment of the Supreme Court in Dataram Singh v State of Uttar Pradesh, wherein it was held that the grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously, compassionately, and in a humane manner. Also, conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory. 

 

In view of the above, the Court without commenting on the case's merits and in the facts and circumstances peculiar to this case, observed that the appellant made  a case for bail, subject to certain  terms and conditions, which shall be over and above and irrespective of the contents of the form of bail bonds in chapter XXXIII of CrPC, 1973.Hence, the appeal was accordingly allowed. 



 

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. 1135 of 2023 (T-RES)-KAR HC- Karnataka HC asks Superintendent of Central Tax to pass orders for revocation of cancellation of GST registration when returns are filed after noting that Notice was issued during assessee’s custody period
Justice B M Shyam Prasad [10-03-2023]

Read Order: M/S S P Metals vs. Assistant Commissioner of Commercial Taxes

 

Tulip Kanth

 

Bengaluru, March 23, 2023: In a case where the Show Cause Notice was issued when the assessee was in judicial custody, the Karnataka High Court has asked the petitioner-assessee to file returns within a period of 4 weeks and also directed the Superintendent of Central Tax to pass suitable orders if the returns are accordingly filed.

 

In this matter before the Single-Judge Bench of Justice B M Shyam Prasad, the petitioner was aggrieved by the Assistant Commissioner’s order cancelling the

petitioner’s GST registration. The petitioner also sought direction to revoke the cancellation and for certain other reliefs.

 

The Petitioner had put up a case that the second respondent visited his business premises and seized certain invoices/documents under a mahazar. The second respondent called him to his office purportedly for investigation, but he was then arrested. He was in

judicial custody until he was admitted to bail and released thereafter. 

 

In the meanwhile, the first respondent had allegedly issued Show Cause Notice o to the petitioner alleging that he has issued invoices and bills without actual supply of either goods or services in violation of the provisions of the Central Goods and Services

Tax Act, 2017 and the Rules thereunder to enable wrongful availing or utilizing input tax credit or refund of tax.

 

It was submitted from the petitioner’s side that if the petitioner was in custody from

November 16, 2022 until December  8, 2022 when he was admitted to bail and released, the petitioner could not have been served with a Show Cause Notice dated

November 17, 2022 and he could not have issued any response.

 

However, the GST registration was cancelled based on the said Show Cause Notice holding that petitioner’s response was considered. It was argued that it would be

irrefutable that the cancellation of GST registration was arbitrary & without due opportunity.

 

The Bench considered the fact that the Counsel of both the contesting parties submitted that the petitioner must be called upon to furnish the returns for the period for which the returns were not filed as a condition for revocation of the cancellation as against

a cancellation by this order without any condition. 

 

It was asserted from the petitioner’s side that the petitioner would file the returns within a period of 4 weeks. 

 

In light of such factual aspects, the Bench allowed the petition and ordered, “The second

respondent – the Superintendent of Central Tax - is permitted to pass suitable orders for revocation of the cancellation of the registration, if the petitioner files Returns for the relevant period for which returns have to be filed.”





 

In W.P.(C) 10407/2022-DEL HC- Delhi  HC allows assessee’s plea for refund of ITC on exported goods where refund applications had been rejected earlier merely because of suspicion & without any cogent material
Justices Vibhu Bakhru & Amit Mahajan [10-03-2023]

Read Order: M/S BALAJI EXIM Vs.COMMISSIONER, CGST AND ORS

 

LE Correspondent

 

New Delhi, March 16, 2023: The Delhi High Court has come to the aid of an assessee by holding the petitioner-assessee to be entitled to the refund of the ITC on goods that have been exported by it after noting that the petitioner’s refund applications were rejected on a mere apprehension that its supplier had issued fake invoices

 

“The allegations of any fake credit availed by M/s Shruti Exports cannot be a ground for rejecting the petitioner’s refund applications unless it is established that the petitioner has not received the goods or paid for them. In the present case, there is little material to support any such allegations”, the Bench opined.

 

In  this case, the petitioner had filed its refund application (in Form – GST-RFD – 01) seeking refund of the unutilized Input Tax  Credit amounting to Rs 72,03,961 which comprised  of Integrated Goods and Service Tax amounting to Rs 19,53,062  and Cess of Rs 52,50,899.  The petitioner also filed another  refund application (in Form GST-RFD – 01) claiming refund of ITC of Rs 12,40,270 comprising of IGST of Rs 3,37,174 and 

Cess amounting to Rs 9,03,096.  The refund sought was in respect of goods exported by the petitioner.

 

The Authority issued an acknowledgment (in Form GSTRFD-02) in respect of the petitioner’s refund application for the amount of Rs 12,40,270. In respect of the first application a deficiency memo was issued stating that the supporting documents were not uploaded on the GST portal. Accordingly, the petitioner filed another application along with all documents in support of its refund application.

 

The petitioner’s applications were not processed as the supplier from whom the petitioner had purchased the goods had allegedly received fake invoices from its suppliers. The petitioner (its proprietor) was summoned to appear before the Superintendent, Anti Evasion Branch and furnish documents.

The petitioner wrote several letters to requesting for an early disposal of his refund applications. However, his requests were not acceded to. In the meantime, the petitioner became aware of the allegations that its supplier, M/s Shruti Exports, had issued fake invoices and its ITC was blocked.  

Show cause notice was issued to the petitioner proposing to reject the petitioner’s refund applications. The petitioner was also afforded a personal hearing. The refund applications were rejected and it was opined that an investigation had been initiated against the supplier (M/s Shruti Exports) from where the petitioner had allegedly procured the goods. 

The petitioner appealed the said orders rejecting its refund applications, which was dismissed by the impugned order. 

The Bench noted that it was clear that the petitioner’s refund applications were rejected on a mere apprehension that its supplier had issued fake invoices. There was no conclusive finding on the basis of any cogent material that the invoices issued by M/s Shruti Exports to the petitioner were fake invoices.

“It is apparent that the petitioner’s refund applications have been rejected merely because of suspicion without any cogent material. There is no dispute that goods have been exported; the invoices in respect of which the petitioner claims the ITC were raised by a registered dealer; and, there is no allegation that the petitioner has not paid the invoices, which include taxes. Thus, the applications for refund cannot be denied”, the Bench said.

Noting that the allegations of any fake credit availed by M/s Shruti Exports cannot be a ground for rejecting the petitioner’s refund applications unless it is established that the petitioner had not received the goods or paid for them, the Bench held that the petitioner would be entitled to the refund of the ITC on goods that have been exported by it. 

 

In CR No.8483 of 2016 (O&M)-PUNJ HC- P&H HC sets aside order allowing application for removal of encroachment when there was nothing forthcoming to prove that petitioner had caused any encroachment: P&H HC
Justice Alka Sarin [14-03-2023]

Read Order: SUNDER VS LALA RAM THROUGH HIS LRS AND OTHERS

 

Mansimran Kaur

 

Chandigarh, March 15, 2023: Merely by relying upon the document Mark ‘AB’ a conclusion should not have been  drawn that there had been encroachment by the petitioner, specifically when there was absence of any cogent material being put on record to demonstrate the encroachment, the Punjab and Haryana High Court has observed.

 

The present revision petition was preferred to assail the order whereby the application filed under Order XXI Rule 32 of the Code of Civil Procedure, 1908 was allowed. Justice Alka Sarin observed that the impugned order did not state as to on what basis the Court had arrived at the conclusion that there had been an encroachment in the case at hand 

 

The present revision petition was preferred to assail the order dated November 11, 2016 whereby the application filed under Order XXI Rule 32 of the Code of Civil Procedure, 1908 was allowed. 

 

The brief facts relevant to the present lis were such that the first and second respondents  filed a suit for permanent injunction and mandatory injunction. Through judgment and decree dated February 28, 2009 only a decree for permanent injunction was passed and the decree for mandatory injunction was declined.

 

On October 12, 2011 respondents first and second filed an application under Order XXI Rule 32 CPC for directions to remove the encroachment from the rasta on the suit property. The details when the property was encroached upon are woefully missing from the said application.

 

Vide order dated August 22, 2014, the said application was allowed by the Executing Court and it was ordered that the illegal possession from the rasta be removed. 

 

Yet again an application was filed under Order XXI Rule 32 CPC that since there was an encroachment hence the same be directed to be removed. Thud, through the impugned order dated November 11, 2016 it was directed that the encroachment be removed and the order dated August 22, 2014 be complied with. 

 

After considering the rival contentions from both the sides, the Court noted that in  the present case, through  order dated February 16, 2016 , it was noticed that counsel for the respondents therein had stated that he would be satisfied with an observation from the Court that the judgment debtor i.e. petitioner herein would not cause any encroachment. Thereafter, an application for removal of the encroachment was filed which was allowed through the impugned order. The said order did not state as to on what basis the Court had arrived at the conclusion that there had been an encroachment.

 

“Merely by relying upon the document Mark ‘AB’ a conclusion was drawn that there had been encroachment by the petitioner. There was nothing forthcoming to prove that the petitioner had caused any encroachment”, the Bench held while setting aside the impugned order.

 

In WRIT TAX No. - 4 of 2023-ALL HC- Allahabad HC imposes cost of Rs 25,000 on CGST & Central Excise Joint Commissioner for passing Order even before date fixed for hearing of case
Justices Rajesh Bindal & Alok Mathur [12-01-2023]

Read Order: M/S Maatribhumi Infratech (P) Ltd. Lko. Thru. Director Safat Ahmad Vs. Principal Commissioner, Central Goods And Service Tax And Central Excise, Lucknow And Others

 

Tulip Kanth

 

Lucknow, March 13, 2023: In a case where the Joint Commissioner, Central Goods & Service Tax and Central Excise, Lucknow passed an Order even before the date fixed for hearing, the Lucknow Bench of the Allahabad High Court has imposed a cost of Rs 25,000 on the Officer for the patently illegal order passed by him.

 

Before the Division Bench of Chief Justice Rajesh Bindal and Justice Alok Mathur, the petitioner challenged the Order in Original dated November 4.11.2022 passed by Joint Commissioner, Central Goods & Service Tax and Central Excise, Lucknow.

 

The petitioner submitted that the show cause notice was issued to him on November 1,2022 for appearance on November 10, 2022. However, the impugned order was passed prior to that on November 4, 2022. This, according to the petitioner, was done in violation of the principles of natural justice.

 

As per the petitioner, such Order having been passed even before the date fixed for hearing deserved to be quashed.

 

It was noticed by the Bench that the respondents did not dispute the fact that the order was passed before the date fixed in the show cause notice issued to the petitioner for appearance. It was even submitted that the order could be quashed but the officer stated that he would not withdraw his order.

 

“There is no reference to the notice dated 01.11.2022 issued to the petitioner for his appearance on 10.11.2022. Though the aforesaid notice dated 01.11.2022 refers to the earlier notice dated 28.10.2022 which finds mention in the impugned order”, the Bench said.

 

Considering the fact that the impugned order was passed in violation of the principles of natural justice and even before the date fixed for hearing of the case, the Bench allowed the petition and quashed the Order.



 

In CRR- 585 of 2023(O&M)-PUNJ HC- Husband is morally, ethically and statutorily duty bound to maintain his wife and children: P&H HC confirms order of interim maintenance
Justice Jagmohan Bansal [02-03-2023] 

 

Read Order: MANVINDER SINGH VS SARABJEET KAUR 

 

Mansimran Kaur

 

Chandigarh, March 3, 2023:  In a case where the petitioner-husband sought setting aside of an order whereby the Trial Court  allowed interim maintenance of Rs 25,000 to the respondent(wife) and children of the petitioner, the Punjab and Haryana High Court has observed that the petitioner is morally, ethically and statutorily duty bound to maintain his wife and children. 

 

A Single bench of Justice Jagmohan Bansal dismissed the instant application by observing that  keeping in view the present cost of living; social and legal responsibility of the petitioner to maintain his family and interim maintenance awarded; this court did  not find that the amount of interim maintenance fixed by court below was  on higher side. 

 

The applicant was seeking condonation of delay of 10 days in filing the instant petition. In view of averments made in the application and arguments advanced by counsel for the applicant, the application was allowed and delay of 10 days in filing the instant petition was condoned. 

 

The petitioner, through the instant petition was  seeking setting aside of order dated June 9, 2022 whereby the trial court  allowed interim maintenance of Rs. 25,000/- to respondent(wife) and children of the petitioner. 

 

The brief facts of the case were such that the marriage of the petitioner was solemnized with respondent on February 27, 2005 and from this wedlock, two children were born. The petitioner was working in the Labour Court as a Class -IV employee. The parties could not enjoy the fruits of the marriage and started staying separate. 

 

Subsequently, the respondent filed a petition under Section 12 of Protection of Women from Domestic Violence Act, 2005, wherein she claimed maintenance to the tune of Rs. 40,000/- per month. The respondent filed an application under Section of 23 of D.V.Act

 seeking interim maintenance. The Magistrate through order dated June 9, 2022 awarded interim maintenance of Rs. 25,000/- per month to the respondent i.e. Rs. 5000/- to the respondent and Rs. 10,000/- each to minor children of the petitioner. 

 

In pursuance of the same, the petitioner preferred an appeal before Appellate Court which came up for consideration before Additional Sessions Judge, Ludhiana, who vide impugned order dated November 19, 2022   dismissed appeal of the petitioner. 

 

Counsel for the petitioner submitted that he was not running away from his responsibility, however, his grouse was qua quantum of maintenance. The petitioner was getting a salary of Rs. 38,500/- and it was not possible to spare a sum of Rs. 20,000/- per month awarded to his children. 

 

After considering the submissions from both the sides, the Court at the outset noted that the petitioner was not disputing the factum of marriage as well as birth of two sons from the wedlock. He was also not disputing the fact that both sons of the petitioner were studying in 10+1 at Jalandhar. The salary of the petitioner was undisputed, the Court noted. 

 

As per affidavit of the petitioner, the gross salary of the petitioner is Rs. 44,000/- per month and carry home salary is Rs. 38,500/-. The trial court as well as Appellate court awarded a small amount of Rs. 5000/- to the wife and Rs. 10,000/- per month each to both sons of the petitioner. 

 

In furtherance of the same, the Court noted that the petitioner is   morally, ethically and statutorily duty bound to maintain his wife and children. The amount awarded to the wife is so minuscule that there is no possibility even to consider reducing that amount. A sum of Rs. 20,000/- was awarded to both children who are school going. Nowadays school going children are not only paying school fees but also they are supposed to pay tuition fees which are exorbitant, the Court noted. 

 

 “It is apt to mention here that the maintenance awarded by Family Court was interim, thus, the petitioner would get an opportunity to put forth his stand at the time of determination of final maintenance”, the Court further observed.  

 

Keeping in view the present cost of living; social and legal responsibility of the petitioner to maintain his family and interim maintenance awarded; this court does not find that the amount of interim maintenance fixed by court below was on higher side, thus, the present petition deserves to be dismissed on merits and was accordingly dismissed. 


 

In W.P.(C)14250/2022-DEL HC- Delhi HC orders restoration of Company's Registration under CGST Act, 2017 as response to Show Cause Notice was not considered while passing cancellation Order 
Justices Vibhu Bakhru & Amit Mahajan [09-02-2023]

Read Order: M/S. RAKESH ENTERPRISES v. THE PRINCIPAL COMMISSIONER CENTRAL GOODS AND SERVICES TAX & ORS 


 

LE Correspondent

 

New Delhi, February 15, 2023: The Delhi High Court has allowed a petition impugning an order of the Superintendent whereby the petitioner's registration under the Central Goods and Services Tax Act, 2017 was canceled. 

In this matter before the Division Bench of Justice Vibhu Bakhru and Justice Amit Mahajan, the said order was passed in furtherance of the proceedings commenced by the Show Cause Notice and the allegation against the petitioner was that it had defaulted in filing the returns for more than six months.

The petitioner had allegedly responded to the said Show Cause Notice by filing a reply and it was the petitioner’s case that the same had not been filed along with the petition as the copy of the same was not readily available. 

From the respondent’s side it was submitted that the case history did not reflect that the petitioner had filed any response to the Show Cause Notice possibly, there was a technical glitch and the reference to the reply had been automatically generated.

The Bench was unable to accept that the petitioner had not filed a response to the Show Cause Notice, as the order expressly referred to the petitioner's response to the Show Cause Notice. As per the Bench, the Order did not indicate as to the contents thereof or reflected any discussion in respect of the petitioner's explanation.

Finding merit in the petitioner’s contention that the impugned order couldnot be sustained, the Bench noted that there was no dispute that the petitioner has filed its returns, albeit belatedly, and had also paid the tax and penalty in accordance with the Act.

The Bench also referred to the judgment of the Madras High Court in TVL. Suguna Cutpiece Center v. Appellate Deputy Commissioner (ST) (GST),2022 (61) G.S.T.L. 515 (Mad.), wherein it was observed that it is not the intention of the authorities to debar and de-recognise assessees from coming back into the Goods and Service Tax (GST) fold. 

“ It is not necessary for this Court to examine whether the time period as stipulated under Section 30 of the Act is mandatory in this case. This is because it is apparent that the impugned order dated 28.12.2020, cancelling the petitioners registration is unsustainable as it does not consider the petitioners response to the Show Cause Notice”, the Bench said while setting aside the impugned order and directing the respondents to restore the petitioner’s Registration.

In W.P (T) No. 404 of 2022-JHK HC- Jharkhand HC sets aside summary of order contained in Form GST DRC-07 in case where assessment proceedings suffered from serious procedural errors in absence of proper show-cause notice
Justices Aparesh Kumar Singh & Deepak Roshan[31-01-2023]

Read Order: M/S solex energy v/s State of Jharkhand


 

LE Correspondent 

 

Ranchi, February 13, 2023: The Jharkhand High Court has remitted a matter to the adjudicating authority after setting aside a summary of order contained in Form GST DRC-07.

 

The facts of the case were such that the Petitioner company, engaged in the business of Engineering, procurement and construction of solar power generating system and a manufacturer of the solar panel had filed its return in Form GSTR3B for the month of October 2020.

 

The petitioner noticed that an amount of Rs.39,77,727 was debited from its electronic credit ledger and Rs.21,060 was debited from its electronic cash ledger. It was found that the said amount had been recovered against the outstanding demand ID which was created vide summary of order in Form GST DRC-07.

 

According to the petitioner, he came to know about the proceedings for the first time and copies of the orders were issued to him in relation to summary order in Form GST DRC-07. However, he claimed that he was never in receipt of any notice in relation to DRC-07.

 

When the Petitioner preferred an application under RTI Act 2005 before the Public Information Officer requesting him to provide information regarding copy of DRC-01A, DRC-01, show cause notice and other relevant documents, he was provided the copy of Form GST DRC-01 for F.Y. 2017-18 Form GST DRC-02 for F.Y. 2017-18, Form GST DRC-07 and Form GST RFD-06 . 

 

Petitioner complained that he was never in receipt of the summary notice in Form GST DRC-01 and summary of statement in Form GST DRC-02, either electronically or physically at any time before. None of the documents i.e. summary notice in Form GST DRC-01, summary of statement in Form GST DRC-02, summary order in Form GST DRC-07 were signed by any authority nor any detailed order was issued. Therefore, the petitioner being aggrieved had approached the High Court.

 

As per a 2022 order, the Court directed the respondents to produce the records of assessment proceedings certified to be true from the original. The Respondents had by that time filed a counter affidavit also. However, the question whether any adjudication order was passed in relation to the instant proceedings or not, still remained unanswered. Therefore, a direction was issued to produce the original records with a true copy thereof for consideration of this Court.

 

The Bench was of the opinion that the assessment proceedings suffered from serious procedural errors in absence of a proper show-cause notice. The summary of order issued in Form GST DRC-07 did not precede with a proper adjudication order either, the Bench added.

 

As such, considering the ratio rendered by this Court in the case of M/s Nkas Services Private Limited (supra) and the fact that there were serious discrepancies in the proceedings, the Bench set aside the impugned summary of order contained in Form GST DRC-07.

 

The matter was remitted to the adjudicating authority to proceed in accordance with law afresh after issuing a proper show cause notice.






 

In  CR No.118 of 2021-PUNJ HC- P&H HC dismisses revision petition filed for setting aside lower court orders whereby application for  temporary injunction under Order XXXIX Rules 1 and 2 of CPC was allowed and appeal by petitioners/defendants was dismissed 
Justice Tribhuvan Dahiya [10-02-2023]

 

 

Read order: Om Parkash and another v. Matadeen and others

Monika Rahar

Chandigarh, February 11, 2023: While dismissing a revision petition for setting aside the lower court orders whereby the plaintiff-respondents' application for  temporary injunction under Order XXXIX Rules 1 and 2 of CPC was allowed and appeal by the  petitioners/defendants which was dismissed, the High Court of Punjab and Haryana has held that the mandatory injunction was sought to re-transfer the said connection in the name of plaintiffs and other co-sharers of land, therefore, the injunction being sought was not against the interests of the co-sharers, rather it is to serve their interests.  

Essentially, in the case before the Bench of Justice Tribhuvan Dahiya, it was the case of the plaintiffs that the suit property jointly owned by the plaintiffs along with the defendants was not partitioned, however, they cultivated their separate killas owing to a mutual settlement between the parties. 

It was further pleaded that there existed a joint well in which electricity connection was

installed in the name of late Prabhu Singh son of Roop Chand (common ancestor of the parties) with joint expenses and consent of all the co-sharers, since long. Prabhu Singh died issueless more than 15 years back, still the  electricity connection continued in his name upto August, 2020. 

The plaintiffs claimed to be cultivating their lands with the said tubewell for the last many years and paying the electricity bills also as per their shares. Similarly, the petitioners/defendants ('defendants') and other co-sharers were also cultivating their land from the said tubewell. 

However, the plaintiffs contended that the defendants, in collusion with one Raj Kumar (working in office of DHBVN, Buroli), got the electricity connection transferred in the name of the first defendant. This was done without the plaintiffs' consent, only to deprive them of joint usage of the tubewell and electricity connection. 

The prayer in the application for interim injunction was that the plaintiffs may be allowed to use the said electric well jointly for irrigating lands as per their share on payment of electricity charges, till final decision of the suit.

The High Court was dealing with a revision petition for setting aside the orders of the Trial Court and the lower appellate Court respectively, whereby the application for  temporary injunction filed by the respondents/plaintiffs under Order XXXIX Rules 1 and 2 of CPC was allowed, and appeal against the same filed by the  petitioners/defendants, was dismissed.

After during the parties, the Court observed at the very outset that no evidence or material was brought before the Courts below to  establish that the electric tubewell connection was exclusively being used by either of the parties only, to the exclusion of the other. The Court observed that this was a fact to be  decided by the trial Court after adducing of evidence before it. 

"In case, till final adjudication of the issue between the parties, the trial Court has granted interim injunction allowing the plaintiffs to temporarily use the electric tubewell three times in a week or on alternate days as per their wish, no exception can be taken to it", the Bench opined while also adding that in case the plaintiffs were prevented from using it altogether, an irreparable loss will be caused.

Further, the Bench was of the opinion that since the plaintiffs by way of the civil suit in question were merely seeking a declaration that the electricity connection existing in the joint land of parties, which was originally in the name of their common ancestor, was owned by all the co-sharers, and defendant No.1 could not have got it transferred in his name. 

"The mandatory injunction has been sought to re-transfer the said connection in the name of plaintiffs and other co-sharers of land. Therefore, the injunction being sought is not against the interests of the co-sharers; rather it is to serve their interests. It does not seek their ouster or any restrain on usage of land as per their share", the Bench added. 

Also, the Bench was of the opinion that the grant of temporary injuction too does not unsettle the things in any manner, as the electric well was admittedly in the name of parties’ common ancestor, installed in their  unpartitioned land. 

"The preponderance of probabilities also indicate joint use of the well by the parties, and the temporary injunction granted by the trial Court only facilitates its joint use", the Bench asserted.