Earlier decision of the coordinate bench binding upon any later coordinate bench deciding same or similar issues #Indianlaws

Jul
9
2015


Precedents which enunciate rules of law form the foundation of administration of Justice and it has been held time and again that a single Judge of a High Court is ordinarily bound to accept as correct judgments of Courts of coordinate jurisdiction and of Division Benches and of the Full Benches of the same Court and of the Supreme Court.



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Agreements to pass through test of pith and substance to determine its dominant purpose and consequent tax chargeability #Indianlaws

Jul
9
2015


The question before the Supreme Court was “whether the amounts paid by  ONGC to the non-resident assessees /foreign companies for providing various services in connection with prospecting, extraction or production of mineral oil is chargeable to tax as “fees for technical services”. It was held that to determine tax liability under an Agreement, dominant purpose of the Agreement is to be seen.




Person claiming exemption or concession to establish his entitlement to that exemption or concession #Indianlaws

Jul
9
2015


A person who claims exemption in respect of Companies (Profits) Surtax Act, 1964 (‘Surtax Act’) has to establish his entitlement to that exemption.




Bifurcation of cause of action not permissible to bring in applicability of Section 8 of the Arbitration & Conciliation Act, 1996

Jul
2
2015


Cause of action in one matter cannot be bifurcated,  one to be decided by the arbitral tribunal and other to be decided by the civil court would inevitably delay the proceedings. The whole purpose of speedy disposal of dispute and decreasing the cost of litigation would be frustrated by such procedure. It would also increase the cost of litigation and harassment to the parties and on occasions there is possibility of conflicting judgments and orders by two different forums.



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Position of law in arbitral reference in case of multiple, multi-party agreements with interlinked causes of action

Jul
2
2015


 A non-signatory or third party could be subjected to arbitration without their prior consent, but this would only be in exceptional cases. The Court will examine these exceptions from the touchstone of direct relationship to the party signatory to the arbitration agreement, direct commonality of the subject matter and the agreement between the parties being a composite transaction. The transaction should be of a composite nature where performance of mother agreement may not be feasible without aid, execution and performance of the supplementary or ancillary agreements, for achieving the common object and collectively having bearing on the dispute.



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Court to act with caution and circumspection while deciding on plea of not invoking arbitration on the ground of contract being void or voidable

Jul
2
2015


Court ought to act with caution and circumspection whilst examining the plea that the main contract is void or voidable. The Court ought to decline reference to arbitration only where the Court can reach the conclusion that the contract is void on a meaningful reading of the contract document itself without the requirement of any further proof.




Cruelty has to be seen in relation to the conduct of parties to a marriage #indianlaws

Jun
21
2015


Supreme Court in the case namely Shobha Rani vs. Madhukar Reddi, decided on 12.11.1987 (MANU / SC / 0419 / 1987 = [1988] 1 SCR 1010) dealt with the extent of “cruelty” as provided in the Section 13(1)(ia) of the Hindu Marriage Act (Act). In the instant matter a decree of divorce was sought by the wife from her husband on the ground of cruelty caused as a result of dowry demands.




High Court in exercise of writ jurisdiction cannot decide on whether property is encumbered or not #indianlaws

Jun
21
2015


It was held as not within ken of the High Court in writ jurisdiction to declare any property as unencumbered one. Such rights between private parties cannot be made subject-matter of writ jurisdiction and to a direction of maintaining status quo on such properties. 




Rights of convicts awarded with Death Penalty #indianlaws

Jun
21
2015


 The condemned prisoners also have a right to dignity and execution of death sentence cannot be carried out in an arbitrary, hurried and secret manner without allowing the convicts to exhaust all legal remedies.




The law of obscenity under Section 292 of the Indian Penal Code, 1860

Jun
2
2015


The Indian Penal Code does not define the word "obscene" and this delicate task of how to distinguish between that which is artistic and that which is obscene has to be performed by Courts. The test to be evolved must obviously be of a general character but it must admit of a just application from case to case by indicating a line of demarcation not necessarily sharp but sufficiently distinct to distinguish between that which is obscene and that which is not.



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Freedom of speech and expression not absolute in the context of obscenity #indianlaws

Jun
2
2015


Considering matter from the point of obscenity, contemporary community standards test is the main criterion and it has to be appreciated on the foundation of modern perception, regard being had to the criterion that develops the literature




Law on exercise of Inherent Powers by the High Court under Section 482 Cr P C #indianlaws

May
21
2015


The power of quashing criminal proceedings has to be exercised very sparingly and carefully in exceptional cases to prevent miscarriage of justice.



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Process of making finished product usable at end users convenience does not amount of transformation in character

May
21
2015


Where there is no essential difference in identity between the original commodity and post processed article – would processing stage would mean manufacturing and open to excise levy was the issue before Court.




Recording of reasons critical while issuing warrant under Section 132 of the Income Tax Act

May
21
2015


Warrant of authorization under Section 132 of the Act is required to be founded on a reasonable belief of the authorized official regarding the existence of the conditions precedent to the exercise of the power to issue the same.




What is the true legal position in the matter of proof of Will #indianlaws

May
11
2015


The presence of suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. 



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Attesting witness with a fading memory cannot prove a Will #indianlaws

May
11
2015


The propounder can be initiated to the benefit of Section 71 of the 1872 Act only if the attesting witness/witnesses, who is/are alive and is/ are produced and in clear terms either denies /deny the execution of the document or cannot recollect the said incident. 




When would C & F agents be liable under Service Tax #indianlaws

May
11
2015


In order to qualify as a C&F Agent, a person is to be engaged in providing any service connected with 'clearing and forwarding operations'. 




No need to issue notice to Directors of the accused company in proceedings under Section 138 N I Act #indianlaws

May
11
2015


Section 138 of the N I Act does not admit of any necessity or scope for reading into it the requirement that the directors of the Company in question must also be issued individual notices under Section 138 of the Act. Such directors who are in charge of affairs of the Company and responsible for the affairs of the Company would be aware of the receipt of notice by the Company under Section 138.




Conviction can be based solely on the testimony of inspiring testimony of official witness

May
3
2015


The legal position settled provides that a conviction can be based solely on the testimony of official witnesses subject to a condition that the evidence of such official witnesses must inspire confidence.




"Place of removal" for determining excise duty would mean the place where the goods are removed

Apr
30
2015


If the goods are cleared at the factory gate, then the excise duty has to be charged on the valuation of the goods to be arrived at the factory gate as that would be the place of removal of goods. 




Principles governing need to obtain sanction under Section 197 Cr P C to prosecute public servants

Apr
30
2015


The protection given under Section 197 Cr P C is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants subject to the limitation that the alleged act done by the public servant is reasonably connected with the discharge of his official duty and not merely a cloak for doing the objectionable act.




Supreme Court comes down heavily against abuse of Section 498A of Indian Penal Code

Apr
22
2015


A tendency has, however, developed for roping in all relations of the in-laws of the deceased wives in the matters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits.




Mutation of a property in the revenue record does not create or extinguish title

Apr
21
2015


The Supreme Court was dealing with a matter wherein a suit for declaration was instituted by a person seeking to be declared as the sole owner of a property. The property in dispute belonged to the predecessor of the Plaintiff and the defendant. Upon the death of the predecessor, as per Hindu Succession Act, the property fell equally in the share of the Plaintiff and the Defendant. The Defendant permitted the name of the Plaintiff to be recorded in the revune records, which position subsisted for a long period of time. 




When can a presumption of marriage raised between parties who are not married to each other

Apr
20
2015


In the case of A. Dinohamy vs. W.L. Balahamy (AIR 1927 PC 185), the privy council had held that where a man and woman are proved to have lived together as husband and wife, the law will presume, unless the contrary is clearly proved, that they were living together in consequence of a valid marriage, and not in a state of concubinage.



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Section 9A CPC as introduced by Maharashtra Amendment Act will prevail over Section 9 CPC

Apr
20
2015


Section 9A provides a self-contained scheme with a non-obstante clause which mandates the court to follow the provision and at the same time is a complete departure from the provisions contained in Order XIV Rule 2 CPC. 




Holding Subsidary relatationship does not mean an arrangement of tax avoidance or tax evasion

Apr
20
2015


“Arrangement” to avoid tax spoken  must be something by which the assessee and the related person “arrange” that the goods are sold at something below the normal price, so that tax is either avoided or evaded by such arrangement




Sentence in a criminal proceedings has to be fair to accused, victim and society

Apr
10
2015


It is the duty of the Court to award just sentence to a convict against whom charge is proved. While every mitigating or aggravating circumstance may be given due weight, mechanical reduction of sentence to the period already undergone cannot be appreciated. Sentence has to be fair not only to the accused but also to the victim and the society. It is also the duty of the court to duly consider the aspect of rehabilitating the victim. 




Right of wife to claim maintenance under Section 125 Cr P C cannot be compromised

Apr
10
2015


It can never be forgotten that the inherent and fundamental principle behind Section 125 CrPC is for amelioration of the financial state of affairs as well as mental agony and anguish that woman suffers when she is compelled to leave her matrimonial home




Power to quash criminal proceedings in an offence under Section 141 N I Act must be exercised carefully

Mar
29
2015


Supreme Court in the case namely Rallis India Ltd. vs. Poduru Vidya Bhusan and Ors., decided on 13.04.2011 (MANU/SC/0422/2011), dealt with the issue of exercise of power by High Court under Section 482 of the Code of Criminal Procedure while discharging persons arrayed as accused in the capacity of directors or partners in the company and firm respectively.



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Minutes of meeting cannot override statutory regulation unless duly complied rules of business

Mar
29
2015


Unless the minutes of meeting resulted in a final decision taken by the competent authority in terms of Article 77(3) of the Constitution and the decision so taken is communicated to the concerned person, the same was not capable of being enforced by issuing a direction in a writ petition.








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