The Delhi High Court in Review: December, 2020 [Part II]

With its vast and varied case-docket, the High Court of Delhi has occasion to pronounce verdicts on diverse subjects and myriad areas of law. This two-part monthly column attempts to offer a brief over-view of the important pronouncements of the High Court of Delhi over the period of the relevant month in review.

While an attempt has been made to ensure the widest possible coverage of the various judgments rendered, comprehensive analysis and critique of the individual judgments is eschewed for the sake of brevity.

INTELLECTUAL PROPERTY RIGHTS

In Interdigital Technology Corporation v. Xiaomi Corporation, the Court held that in a litigation concerning fair, reasonable and non-discriminatory rate fixation, a crucial issue to be addressed would be as to whether the rates at which the plaintiff has licensed its Standard Essential Patents (“SEPs”), to other licensees are fair, reasonable and non-discriminatory or not. For this purpose, a holistic appreciation of the license agreements between the plaintiff and other licensees is absolutely essential, and the Court observed that such an exercise could not be meaningfully undertaken if access to such agreements and the contents thereof was limited only to the Court, the plaintiff, and advocates and experts of the defendant, while keeping the defendant as well as its employees and associates entirely in the dark about the same. Thus, the Court rejected the application of the plaintiff seeking the formation of a two-tier confidentiality club with the aforesaid limitations.

LABOUR AND SERVICE LAW

In Sanjeev Dhundia v. Union of India, the Court held that an Annual Performance Assessment Report (“APAR”) should not be coloured or influenced by assessment of events that occurred much prior to or subsequent to the year of assessment. The Court further deprecated the recording of adverse remarks in an APAR on the basis of vague observations that the concerned employee had not shown initiative or had to be prodded or had to be nudged into action, without quoting any specific instances, and without any follow-up written advisories for improvement thereby leaving no opportunity for the employee to improve his performance, and noted that the same militates against principles of natural justice and the very objective of recording the APARs.

In Mandeep Singh v. Union of India, the Court culled out the essential conditions for permitting withdrawal of resignations under the CCS (Pension) Rules, 1972 (“CCS Pension Rules”) and the concerned Department of Personnel & Training Office Memorandum (OM) dated 10.06.2019 as follows:

“1. that such withdrawal should be in public interest;

2. the resignation should have been tendered for some compelling reason and the request for withdrawal should have been made as a result of a material change in the circumstance which compelled the personnel to tender the resignation;

3. conduct of the personnel in the intervening period should not be improper;

4. the period of absence from duty should not be of more than 90 days and the post is still available.”

The Court further observed that inasmuch as the relevant Rule 26(4) of the CCS Pension Rules uses the word ‘may’, the ultimate discretion to permit withdrawal would still lie with the government.

In Dr. Rajesh S. Gokhale v. Union of India, the Court held that it is beyond the pale of any controversy that disciplinary proceedings conducted under the provisions of Central Civil Services (Classification, Control and Appeal) Rules, 1965 (“CCS CCA Rules”) are quasi-judicial in nature. The Court further held that the procedure mentioned in Rules 14 and 15 of the CCS CCA Rules does not envisage a situation where the disciplinary authority is permitted to pass a tentative order of exoneration, subject to a final order at a later stage. The Court further held that the entire scheme of the Central Vigilance Commission (“CVC”) Manual would point to the conclusion that the advice of the CVC, when applicable to a particular organization/department, is required to be taken at two stages. At the first stage, advice is to be taken prior to the issuance of charge-sheet i.e. initiation of disciplinary proceedings. At the second stage, the advice is taken before the disciplinary authority takes a final decision to exonerate or impose a penalty on the charged officer, based on the inquiry report. The Court held that there is no provision in the CVC Manual which permits taking of a second stage CVC advice after the passing of a final order of exoneration.

In Union Bank of India v. Mujahid Qasim, the Court held that the factors which are to be considered while determining whether an employer-employee relationship exists would, inter alia, include:

“1. who is the appointing authority;

2. who is the pay master;

3. who can select and dismiss;

4. how long does the alternative service last;

5. the extent of control and supervision;

6. the nature of the job, e.g., whether it is professional or skilled work;

7. nature of the establishment;

8. the right to reject;

9. who can take disciplinary action;

10. whether there is continuity of service;

11. whether the person was fully integrated into the employer’s concern (integration test);

12. who organizes the work, i.e., supplies tools and materials; and

13. who exercises control on when and how the work is to be performed.”

In Ravi Kant Sinha v. Jawaharlal Nehru University, the Court held that inasmuch as appointment and promotions have to be undertaken within the strict parameters of the recruitment rules, a post that is not envisaged to be filled in through deputation could not be so filled up even in the case of a temporary vacancy. The Court held that even temporary vacancies cannot be filled up in contradiction to or beyond the mandate of the recruitment rules.

In Sunil Kumar Yadav v. Union of India, the Court observed that the summation of the case by the Judge Attorney is only for the purpose of the General Force Court (“GFC”) and would not be a substitute for the ultimate findings recorded after the process of full-fledged trial and enquiry and accordingly no reliance could be placed on the same for the purpose of seeking exoneration.

In Mukesh Kumar v. Union of India, the Court called upon the authorities concerned to contemplate an amendment in the Ex-servicemen (Re-employment in Central Civil Services and Posts) Rules, 1979, so that servicemen, though still in service, could apply for outside recruitment with the requisite No Objection Certificate (“NOC”) of the defence services. The Court note that the existing requirement, of having already been discharged from service, may result in servicemen being forced to abandon the existing employment before participating in the recruitment process and thereby, exposing them to the grave attendant risk.

In Charu Jain v. Directorate of Education, GNCT of Delhi, the Court in exercise of writ jurisdiction directed the release of the salary of a schoolteacher for the period for which she had worked prior to the termination of the services, pending the decision of the validity of the termination in appeal before the Delhi School Education Tribunal (“DSET”) constituted under the Section 11 of the Delhi School Education Act and Rules, 1973 (“Delhi School Education Act”).

In K. M. Yadav v. Director of Education, the Court reiterated that despite the existence of an appellate remedy under the Delhi School Education Act, the Court was not completely denuded of its power under Articles 226 & 227 of the Constitution of India to entertain a writ petition against a dismissal order passed by a school if a fundamental jurisdictional issue was raised.

In Samiksha Narahari v. SSLT Gujarat Senior Secondary School, the Court held that the appropriate remedy available to the petitioner against imposition of a penalty of compulsory retirement was to approach the DSET.

In Indian Railways Medical Laboratory Technologists Association v. Ministry of Railways, the Court held that a petition seeking to posit issues in relation to service benefits of persons working as lab assistants, lab technicians etc. in Central Government hospitals under the Ministry of Railways would be covered under Section 14(1) of Administrative Tribunals Act, 1985 and the appropriate remedy would be to approach the Central Administrative Tribunal (“CAT”) in this regard.

In Raghav Mann v. The Office of District & Sessions Judge Headquarters, the Court observed that when the advertisement in question did not lay down any specific criterion in assessing performance in the typing test, the adoption of a particular methodology subsequently by the department concerned could not be said to amount to an impermissible change in the goal-posts.

In Nafees Ahmed v. Union of India, the Court reiterated that the transfer being an exigency of service, it is for the employer to decide on the place of posting of the employee keeping in mind the administrative requirement.

In Civicon Engineering Contracting India Private Limited v. Central Board of Trustees, the Court noted with concern the fact that the authorities under the Employees’ Provident Funds & Miscellaneous Provisions Act, 1952 (“EPF Act”) were not uploading the orders passed by them on the website of the Employees’ Provident Fund Organization and passed immediate directions to the Central Provident Fund Commissioner to ensure that practice directions were put in place for timely uploading of orders and communication of the same to the concerned parties.

In Himgiri Automobiles Private Limited v. Regional P.F. Commissioner-II, Delhi (East), the Court observed that though the EPF Act empowers the concerned authorities to recover damages as also levy interest, a reasonable opportunity of hearing has to be given before any such order is passed. The Court further held that a reasonable opportunity of being heard would also include within its fold a right to be served with a notice sufficiently in advance of the hearing date so that adequate arrangements could be made by the litigant concerned to put forth his/her case. The Court accordingly deprecated the practice of service of notice at the last moment, thereby, compromising the valuable rights of the parties concerned.

In Dominant Systems Private Limited v. Surjeet Singh, the Court held that while adjudicating upon an application under Section 17B of the Industrial Disputes Act, 1947 (“ID Act”), the Court is entitled to take a broad view of the entitlement of the workman when it is demonstrated that he has been able to find some form of self-employment, however, there was no evidence as to the extent of the income being earned by him. In the facts and circumstances of the case before it, the Court directed payment of 50% of the last drawn wages in favour of the workman.

In Akram Shah v. Union of India, the Court observed that a denial of out-of-turn promotion could not be said to be falling in the category of a recurring cause of action and once the right to challenge the same has become time barred, the consequential rights of enhanced salary and future promotion could not be sought to be pressed into service at a belated stage to resuscitate the said right.

In Ex CPL G Mohan v. Union of India, the Court reiterated that a claim for pro-rata pension by an Ex-Corporal of the Indian Air Force would fall within the jurisdiction of the Armed Forces Tribunal (“AFT”).

In Deepak Singh Jatav v. Union of India, the Court upheld the action of rejection of candidature of the petitioner inasmuch as it observed that the answers given by the petitioner in the application form were intended to not make a clean breast of the fact of initiation of criminal proceedings against him.

In Brig. Ravi Navet v. Union of India, the Court observed that when a procedure allows certain discretion and personal choice to the officers concerned for determining a place of posting, as long as prior consent is not a mandatory pre-requisite, then the organizational requirements would always prevail over the personal preferences of the officer concerned.

In Banke Ram v. Government of India, the Court held that a direction given to an inquiry officer in disciplinary proceedings to collect the voice sample of the petitioner and to send the same to the Central Forensic Science Laboratory for the purposes of comparison with a voice sample on the record of the proceedings would not be hit by the right against self-incrimination as contained under Article 20(3) of the Constitution.

In Chaman Giri v. Union of India, the Court held that when the appointment of the petitioners had been rendered non-est on account of an Order passed by the High Court in certain other proceedings, then the petitioners were required to challenge the said order even if they were not a party to the said proceedings, and could not subsequently file an independent petition praying for a finding and a relief inconsistent with what was the finding in the earlier proceeding. The Court held that such a course of action would result in judicial chaos and could not be countenanced.

In CPL Mukesh Singh Rajpoot v. Union of India, the Court observed that the Indian Air Force was entitled to restrict discharge of airmen before the expiry of their initial regular engagement unless routed through the Union Public Service Commission/State Public Service Commission, inasmuch as the Airforce would invest a considerable amount of resources on training the airmen.

In Jeevan Singh Bathyal v. Union of India, the Court reiterated that in the case of disciplinary enquiries which are not governed by strict rule of evidence, the standard of proof by the establishment is not that of a proof beyond reasonable doubt but instead that of preponderance of probabilities.

In Jyothi Thakur v. Union of India & in K. M. Priyanka v. Union of India, the Court noted that watering down of medical standards and permitting recruitment of otherwise illegible persons would significantly compromise the efficiency and discipline of the armed forces inasmuch as the burden on certain persons within the organization to serve at onerous and far-flung postings would increase disproportionately.

In Nand Kishor Singh v. Union of India, the Court held that it was not open to an employee who had secured certain limited reliefs in earlier proceedings challenging his transfer order on the ground of a specific kind of treatment required to be availed for his wife to subsequently stake a claim for an entirely different kind of treatment for the wife to suit his own convenience.

In Paridhi Chauhan v. Union of India, the Court while reiterating the limited scope of interference with the findings of a medical board, held that when the petitioner was examined by doctors/medical experts at three levels i.e., by the medical board, appeal medical board and the review medical board and in the absence of any doubt as to their opinion, the Court would be loath to interfere with the ultimate opinion.

In Shiv Kumar Pandey v. Union of India, while quashing the contemplated recovery against an employee in relation of grant of leave travel concession observed that the employer/Central Industrial Security Force itself had disbursed the amount concerned to the petitioner premised upon a similar understanding of the Central Civil Services (Leave Travel Concession) Rules, 1988 as sought to be canvassed by the petitioner, and accordingly, the petitioner could not be sought to be unilaterally punished for the state of affairs particularly when the stand of the employer was bereft of any logic.

In Sasanka Sahoo v. Director General, Border Security Force, the Court deprecated the conduct of the petitioner in absenting for duty for a long period without applying for leave on the ground of medical illness, thus, depriving the department of an opportunity to have the petitioner examined by the concerned medical personnel to ascertain the genuineness of the medical condition complained of.

In Ant Ram v. Union of India, the Court deprecated the practice of terminating the employment of contractual workers who had been working with the establishment for several years only to be replaced by new contractual employees.

LAND ACQUISITION

In Jeet Sigh Chauhan v. Land Acquisition Collector, South East District, the Court held that once the petitioner had made an application for a reference, after the publication of the award but before receiving compensation, then even if the petitioner had stated, in a form that he had filled, that he was satisfied with the extent of compensation granted, there could be no estoppel against his statutory right to contest the same.

In Ravi Pal Singh v. Additional District Magistrate, the Court held that inasmuch as the Land Acquisition Reference Court would be competent to decide the question as to which amongst the persons claiming to be legal heirs was entitled to compensation, then the names of certain persons being added as interested parties could be permitted, subject to the right of the other legal heirs already shown as interested parties, to object thereto.

MATRIMONIAL DISPUTES, CUSTODY AND MAINTENANCE

In Rani v. Dinesh, the Court reiterated that an application for interim maintenance under Section 125 of the Code of Criminal Procedure, 1973 (“Cr.P.C.”) could be maintained for the same period for which interim maintenance had already been awarded under the provisions of the DV Act. The Court, however, further observed that the forum approached subsequently would bear in mind the quantum of maintenance awarded in the earlier proceedings while considering the amount to be awarded, if any, under the subsequent application.

In Saajan Bajaj v. Esha Sachdeva, the Court reiterated that the grant of maintenance under the provisions of the of the Protection of Women from Domestic Violence Act, 2005, is to be from the date of filing of the application.

In Bharat Vohra v. Government of NCT of Delhi, the Court reiterated that it was not a requirement under law that the estranged wife must be in an absolutely destitute condition before she could apply for maintenance under Section 125 of the Cr.P.C.

MEDIA LAW, CENSORSHIP, DEFAMATION AND FREE SPEECH

In Manoj Kumar Tiwari v. Manish Sisodia, the Court held that though a person may seek to put certain questions to a political opponent, when the relevant statement of the person makes it clear that the answers to the questions by the political opponent would definitely expose the scam in which the political opponent was purportedly involved, then the statement would prima-facie fall within the mischief of Section 499 of the Indian Penal Code, 1860 (“IPC”).

PERSONAL LAW AND SUCCESSION

In Mohd Ashraf v. Abdul Wahid Siddique, the Court while observing that a fatwa can be completely ignored and need not be challenged before a Court of law, further observed that a mere unilateral fatwa allegedly issued in favour of one of the parties cannot amount to a valid and legal transfer of property rights in the eyes of law and could not form the basis for decreeing a suit under Order XII Rule 6 of the Code of Civil Procedure, 1908 (“CPC”).

While reiterating that inheritance of a suit property prior to the year 1956 would not automatically convert the same into a Hindu Undivided Family (“HUF”) property, the Court in Ravi Narayan Aggarwal v. Sushil Kumar Aggarwal, further noted that the fact that the members of the family were living in clearly demarcated portions of the property would be contrary to the very concept of HUF which was premised on unity of ownership and community of interest.

In Mohd Nadeem v. Mohd Rafi, the Court held that just as a son would not enjoy any right in the property of the father under Muslim law as long as the father is alive, similarly in the case of a tenancy which the father may have inherited, the son would have no rights therein until the death of the father.

In Krishan Lal Garg v. Investor Education And Protection Fund Authority, the Court noted that the amendment to the Investor Education and Protection Fund Authority (Accounting, Audit, Transfer and Refund) Second Amendment Rules, 2019, requiring production of the probate or a will or a court decree for maintaining a claim for refund of shares and dividend after the death of the investor could not be applied retrospectively and would not be applicable to applications which were pending prior to the enactment of the amended provision.

RENT CONTROL

In Nand Lal v. Allauddin, the Court deprecated the listing of a long-pending eviction petition under the Delhi Rent Control Act, 1958 (“DRC Act”), after a lengthy date by the Court of the Additional Rent Controller on the ostensible ground that various fresh eviction petitions were being received by it, and noted that the appropriate course would be to expedite the hearing of the older cases.

In Arya Kanya Pathshaala v. Abhishek Buildcon Private Limited, the Court observed that a second application under Section 14(11) of DRC Act would be maintainable when the same complained of non-compliance of the Order passed in the earlier application and in which the Court had specifically required the parties to report about the compliance of the said Order.

In Surender Kumar Gupta v. Mahesh, the Court reiterated that a tenant could not seek to challenge the validity of the family settlement put forth by the landlord on the ground that the said document was not registered.

In Surender Kumar Gupta v. Mahesh, the Court reiterated that a tenant could not seek to challenge the validity of the family settlement put forth by the landlord on the ground that the said document was not registered.

In Raghubir Kaur (since deceased) through LRs v. Suresh Kumar, the Court noted that once a landlord had incorrectly filed an appeal against an Order rejecting the eviction petition filed by him and had proceeded to withdraw the same, then no express leave or liberty was required to subsequently file an appropriate maintainable revision petition under section 25(B)(8) of the DRC Act.

In Sita Ram v. Sanam Aggarwal, the Court observed that once a petitioner had sought to withdraw a petition impugning an Order declining the grant of leave to defend and had undertaken to vacate the premises by a particular date, then a review petition seeking to reagitate the issues contained in the impugned order would be manifestly impermissible.

SEXUAL HARASSMENT

In Rashi v. Union of India, the Court while reiterating that an Internal Complaints Committee (“ICC”) should be a body which is objective and neutral, further enumerated the broad principles that have been laid down by the Supreme Court and the High Courts regarding the constitution/conduct of the proceedings in the ICC as under:

“1. Members of the ICC must be impartial i.e. they should not have any personal knowledge or interest in the case or be connected to the case in any manner;

2. Members of the ICC should not have conflict with any of the parties involved;

3. Complete neutrality has to be observed in the proceedings;

4. Objectivity needs to be maintained in the conduct of the proceedings;

5. There should be no cause for bias for or against any of the parties;

6. Members of the ICC ought to possess blemish-less credentials;

7. Independent members are needed on the ICC to aid, advise and assist the ICC in a fair and impartial manner;

8. An independent person should actually be someone external and cannot, for example, be the panel lawyer of a bank in a situation where the complainant and the respondent are employees of the bank;

9. There should be no undue pressure and influence on the ICC from senior levels;

10. In cases where persons who have been at the helm of affairs are themselves the Respondents in a complaint, the ICC cannot be one of their choice or of persons who have worked under them;

11. The ICC should follow a clear and precise procedure to deal with sexual harassment complaints;

12. The principles of natural justice should be followed scrupulously;

13. The proceedings should lend confidence and assurance to the Complainant and make her comfortable;

14. The principles and guidelines laid down by the Supreme Court in Vishakha & Ors. v. State of Rajasthan & Ors. (1997) 6 SCC 241 continue to guide the constitution of these Committees, even after the enactment of the statute. The said principles ought to be followed rigorously and not in a ritualistic manner;

15. Women should not be the object of sympathy or pity but a Complainant who takes courage to speak out against unwelcome behavior regardless of the perpetrator is a survivor.

16. The inquiry proceedings should inspire the confidence of the Court.”

In Ms (X) v. Union of India, the Court held that when a woman complains against her male colleague for sexual harassment, then aspects such as her own efficiency or inefficiency or temperament or the fact that disciplinary proceedings were initiated or are pending against her, would be completely irrelevant and extraneous.

In Bibha Pandey v. Punjab National Bank, the Court observed that the ICC which had been set up to examine a complaint of sexual harassment was not supposed to indulge in any moral policing and if the ICC were to come to a conclusion that no action was warranted on a complaint, it could not subsequently proceed to make comments on the personal conduct of the parties, including a consensual relationship among adults, and make any consequential directions for initiation of disciplinary proceedings premised thereupon so long as the conduct in question was not contrary to the rules or code of conduct binding on the said employees.

SPECIFIC RELIEF AND PROPERTY

In Bal Bhagwan v. Delhi Development Authority, the Court reiterated that revenue records such as jamabandis and khasra girdawaris would not vest any ownership rights in a party. The Court further held that the fact that a particular plot of land had been handed over to Delhi Development Authority (“DDA”) by the government of India on as ‘as is where is basis’ would only mean that the government was not undertaking any guarantees in respect of the land but would not mean that the DDA was estopped from taking any action to remove any unauthorized occupant or encroacher from the land.

In Delhi Development Authority v. Kamal Singh, the Court reiterated that while in the case of declaration of bhumidari rights and possession thereof, only Revenue Courts under the Delhi Land Reforms Act, 1954 would have jurisdiction, however, in the case of a declaratory relief in respect of title documents, a suit for declaration before a civil court would be maintainable.

In Indian Agro & Recycled Paper Mills Association v. Tafcon Projects (India) Private Limited (TAFCON), the Court reiterated that in terms of the clear mandate of the proviso to Section 40(2) of the Specific Relief Act, 1963 (“Specific Relief Act”) even if a request for an amendment to incorporate a claim for damages was extremely belated and even if the claim for damages put forward by way of amendment was hopelessly barred by limitation, it was the duty of the Court to allow the said amendment. The Court further held that the phrase ‘in substitution for’ occurring in Section 40(1) of the Specific Relief Act is unambiguous and means ‘in replacement of’. Thus, the Court surmised that in a suit where a relief of permanent injunction as contemplated under Section 38 or mandatory injunction under Section 39 of the Specific Relief Act is originally sought for and such relief is subsequently sought to be replaced by a claim of damages, the same would clearly fall within the scope of Sub-section (1) of Section 40 of the Specific Relief Act.

In Vijay Israni v. Salim Lalwani, the Court observed that even though Section 21 of the unamended Specific Relief Act permits a party to make a claim for compensation in addition to or in substitution of the relief of specific performance, the failure to articulate such a claim in the pleadings coupled with the complete absence of a prayer for amendment of the suit once the plaintiff had abandoned the relief for specific performance, the plaintiff could not be permitted to slip in a claim for damages at the stage of final hearing of the suit particularly in the absence of any evidence of quantification.

STAMP ACT

In Krishan Kumar v. The Sub-Divisional Magistrate Rohini, the Court held that the incidence of payment of Court fees would be at the stage of filing in Court and not the purchase thereof and therefore in the event of the suit, for the purpose of which the e-stamp paper was purchased, having admittedly not being filed, it is incumbent on the state to refund the same in terms of Section 30 of the Court-Fees Act, 1870 without insisting on a court order expressly permitting the said refund.

TAX, EXCISE AND CUSTOMS

In Brijbasi Education & Welfare Society v. Principal Commissioner Of Income Tax, Central III, New Delhi, the Court held that once an assessment is reopened then the initial order pertaining to assessment ceases to be operative and the proceedings would start afresh. The Court further observed that when a subsequent investigation by the Central Bureau of Investigation revealed certain specific information which demonstrated that the information disclosed by the assessee during the course of the prior assessment was manifestly false, then the threshold required for assumption of jurisdiction for the reopening of the passement under Section 147 of the Income Tax Act, 1961 (“IT Act”) would be clearly met.

In British Airways PLC v. Income Tax Officer, the Court reiterated that the technical inadequacies in the system could not be a reason to deny the legitimate entitlement of an assessee towards a lower-tax withholding certificate under Section 197(1) of the IT Act.

In The Pr. Commissioner Of Income Tax-Central-3 v. Allied Perfumers Private Limited, the Court held that assumption of jurisdiction under Section 153C of the IT Act could not be sustained merely because a satisfaction note has been recorded, when the revenue has otherwise failed to lay any foundation or point out any incriminating material related to the assessee which could justify the action of the revenue.

In Camions Logistics Solutions Private Limited v. Joint Commissioner Of Income Tax, OSD, TDS Circle-73-1, New Delhi, the Court held that the parameters reflected under Rule 28AA(2) of the Income Tax Rules, 1962, are mandatory in nature and the department is bound by the same for the purpose of computing existing and estimated liability under Rule 28AA(1) of the IT Act. The Court further observed that in the absence of a clear determination under the Rules, the rejection of estimates provided by the assessee on a broad and generalized reasoning cannot be sustained.

In Shilpa Chowdhary v. Principal Director Of Income Tax (Investigation)-I, New Delhi, the Court reiterated that it could not sit in appeal or test the adequacy of the opinion formed by the Assessing Officer under Section 132 of the IT Act, and it could only examine whether the ‘reasons to believe’ have a rational connection or are relevant to the formation of such belief by the Assessing Officer, and are not extraneous or irrelevant to the purpose of the provision.

In Pr. Commissioner of Income Tax (Central)-2 v. Harsh International Private Limited, the Court held that levy of penalty cannot be a matter of course and can only be levied in cases where the concealment of income has been proven. The Court further observed that when the quantum order itself had been challenged and the Court had framed substantial questions of law in the appeal preferred by the respondent assessee, this would demonstrate that the alleged concealment is not final and the issue is disputable, and accordingly imposition of penalty was uncalled for.

In Pacific Projects Limited v. Asst. CIT, the Court held that the Income Tax Appellate Tribunal (“ITAT”) had erroneously concluded that the miscellaneous application for recall filed by the assessee was barred by limitation under Section 254(2) of the IT Act inasmuch as the assessee had filed the miscellaneous application within six months of actual receipt of the order. The Court observed that if the assessee had no notice and no knowledge of the order passed by the ITAT, it could not be said that the limitation would start from the date the order in question was pronounced.

In Manpowergroup Services India Private Limited v. Commissioner of Income Tax (TDS)-1, New Delhi, the Court held that an Order passed after approval of the Commissioner of Income Tax (“CIT”) under Section 158BC read with Section 158BG of the IT Act cannot be subjected to revision under Section 197 of the IT Act before the Commissioner itself inasmuch as it would be a futile remedy as the revision would be before the same authority which give the approval for the impugned action and therefore a writ petition before the High Court would be maintainable.

In Kalra Papers Private Limited v. Income Tax Officer, the Court held that inasmuch as Rules 24 and 25 of the Income Tax (Appellate Tribunal) Rules, 1963 empower the ITAT to restore an appeal if a party demonstrates sufficient cause for its non-appearance when the appeal was originally taken up for hearing, therefore the merits of the case cannot be gone into at the stage of deciding an application for restoration.

In The Pr. Commissioner of Income Tax-4 v. Headstrong Services India Private Limited, the Court held that once there was a direction by the ITAT to decide a matter de-novo, then an entirely fresh proceeding had to be conducted in accordance with the elaborate procedure mentioned under Section 144C of the IT Act. The Court further held that Section 144C envisages a change of forum and it leads to complete cessation of the jurisdiction of the Assessing officer on passing of the draft order. Thereafter, the Assessing officer is to give effect to either the direction of the Dispute Resolution Panel or pass an order on acceptance by the assessee. The Court further observed that non-adherence to mandatory procedure prescribed under Section 144C of the IT Act would vitiate the entire proceedings and the said breach was not a curable defect.

TENDER AND BLACKLISTING

In Track and Towers Infratech Private Limited v. National Highways Authority of India, the Court reiterated that the author of the tender documents is best suited to appreciate the requirement of the particular project which it wants to be executed and, under ordinary circumstances, the High Court would defer to the understanding and interpretation of the author of the document in relation to the terms and conditions unless manifest perversity or mala-fide is established.

In Macpower CNC Machines Limited v. Union Of India, through Development Commissioner Ministry of Micro Small and Medium Enterprises, the Court observed that in the absence of any clause in the tender conditions permitting the entity inviting the tender to treat the bidders differently in the manner of technical examination of their bids on the basis of certain classifications of the goods being sought to be supplied, then attempting to do so would militate against the requirement to treat all bidders equally.

In West Bengal Electronics Industry Development Corporation Limited v. Prasar Bharati, the Court observed when there was no clause in the tender which made it mandatory for the tenderers to pass on any element of tax liability to the entity inviting the tender, then the decision of one of the tenderers to absorb the tax element in its rates would not amount an impermissible ‘discount’ or gross variation from the tendering terms so as to render the bidder ineligible.

TORT

In Sushil Kumar Jain v. Gajender Chopra, the Court while reiterating the law that award of damages has to be real and proximate and not remote, further held that compensation in the case of a tortious claim could be granted if causation was established. The Court further observed that even negligence by a party could result in grant of compensation/damages for loss suffered, and that if the act of the said party could be demonstrated to be deliberate or motivated, even punitive damages as also damages for mental agony could also be awarded.

Dr. Amit George is an Advocate practicing before the High Court of Delhi.

The author would like to place on record his appreciation for the assistance provided by Advocates Amol Acharya, Bharat Rayadurgam and Piyo Harold Jaimon.