COMMUNIQUE OCTOBER, 2021

COURTS THIS MONTH 

  • Supreme Court’s Bench comprising of Justice M.R. Shah and Justice A.S. Bopanna in the case of Commissioner of Income Tax, Chennai vs. Mohammed Meeran Shahul Hameed; (Civil Appeal No 6204 of 2021) held that the relevant date for calculating limitation period for revision under Section 263 of the Income Tax Act, 1961 (“IT Act”) is the date when the order was passed and not the date when order was received by the assessee. Section 263 of the IT Act confers power to the Commissioner of Income Tax to revise an assessment order for being erroneous & prejudicial to interest of Revenue. The Supreme Court answering the question in negative observed that “the word used is “made” and not the order “received” by the assessee. Even the word “dispatch” is not mentioned in Section 263 (2). Therefore, once it is established that the order under Section 263 was made/passed within the period of two years from the end of the financial year in which the order sought to be revised was passed, such an order cannot be said to be beyond the period of limitation prescribed under Section 263 (2) of the Act. Receipt of the order passed under Section 263 by the assessee has no relevance for the purpose of counting the period of limitation provided under Section 263 of the Income Tax Act”.
     
  • The Supreme Court in the case of K. Anusha vs. Regional Manager, Shriram General Insurance Co. Ltd. (Civil Appeal No 6237 of 2021) held that a person cannot be held liable of contributory negligence on account of failure in taking extraordinary precautions. In this case the Supreme Court was dealing with the case of motor vehicle collision and the High Court had upheld the finding of contributory negligence on account of the driver. The Bench comprising of Justice Hemant Gupta and Justice V. Ramasubramanian noted that the findings of the High Court were erroneous and that there was nothing on record to indicate that the driver of the car was not driving at moderate speed nor that he did not follow any traffic rules. The Court further observed that “To establish contributory negligence, some act or omission, which materially contributed to the accident or the damage, should be attributed to the person against whom it is alleged.” Relying on the case of Swadling v Cooper (1931 AC 1), the Supreme Court held that “the mere failure to avoid the collision by taking some extraordinary precaution, does not in itself constitute negligence.”
     
  • The Supreme Court in the case of Dipali Biswas & Ors. vs. Nirmalendu Mukherjee & Ors. (Civil Appeal No 4557 of 2012) held that that the principle of res judicata shall also apply to execution proceedings. The Bench comprising of Justice Hemant Gupta and Justice V Ramasubramanian while rejecting a new objection raised by a judgement- debtor against the auction-sale proceedings observed that “It must be pointed out at this stage that before Act 104 of 1976 came into force, there was one view that the provisions of Section 11 of the Code had no application to execution proceedings. But under Act 104 of 1976 Explanation VII was inserted under Section 11 and it says that the provisions of this Section shall apply to a proceeding for the execution of a decree and reference in this Section to any suit, issue or former suit shall be construed as references to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree”. Hence negating the contention of the judgment debtor, the Supreme Court also held that the judgement-debtor cannot raise objections in instalments as it had failed to raise the said objection in prior stages.
     
  • In the case of Ram Dattan (Dead) by LRs vs. Devi Ram & Ors (Civil Appeal No. 1541 of 2011), the Bench of the Apex Court held that the period of limitation does not apply to usufructuary mortgages. The Supreme Court in this case was dealing with an appeal claiming ownership of the property on the ground that 45 (Forty Five) years had elapsed after the said property was mortgaged to the mortgagor. Dismissing the appeal, the Supreme Court relied on the decision Singh Ram (D) Through LRS vs. Sheo Ram & Ors; (2014) 9 SCC 185 wherein it was held that “Usufructuary mortgage cannot be treated at par with any other mortgage, as doing so will defeat the scheme of S.62 of the TP Act and the equity. This right of the usufructuary mortgagor is not only an equitable right, it has statutory recognition under S.62 of the TP Act. There is no principle of law on which this right can be defeated. Any contrary view, which does not take into account the special right of usufructuary mortgagor under S.62 of the TP Act, has to be held to be erroneous on this ground or has to be limited to a mortgage other than a usufructuary mortgage. Accordingly, we uphold the view taken by the Full Bench that in case of usufructuary mortgage, mere expiry of a period of 30 years from the date of creation of the mortgage does not extinguish the right of the mortgagor under S.62 of the TP Act.”
     
  • The Supreme Court in the case of M/S Prem Cottex vs. Uttar Haryana Bijli Vitran Nigam Ltd & Ors (Civil Appeal No. 7235 of 2009) held that supplementary bill issued by the Electricity Distribution Companies, after discovering an apparent mistake with the earlier bill, will not be hit by the limitation period mentioned under Section 56(2) of the Electricity Act, 2003 (“Act”). Section 56(2) of the Act provides that no sum due from any consumer shall be recoverable after a period of 2 (Two) years have passed from the date when such sum became first due. The Apex Court was entertaining an appeal against the decision of the National Consumer Dispute Resolution Commission preferred by the consumer. The Bench apart from holding that limitation mentioned under Section 56(2) has no application to additional bill raised subsequently by the power distributor also further observed that a consumer complaint against a power distributor would not be maintainable on the grounds that raising an additional bill amounts to deficiency in services being delivered.
     
  • The Supreme Court in the case of Nitaben Dinesh Patel vs. Dinesh Dahyabhai Patel Civil (Appeal Nos. 5901-5902 of 2021) held that a relief against third-party cannot be claimed in proceedings between a husband and a wife instituted under the provisions of the Hindu Marriage Act, 1955. The Bench comprising of Justice M.R. Shah and Justice A.S. Bopanna were dealing with an issue wherein a wife had sought permission to alter relief and add a subsequent relief declaring that the subsequent marriage between her husband and the third party be declared void and that child born out of the said wedlock be declared an illegitimate child. Answering the issue in negative the Supreme Court observed that “…as per section 23A of the Hindu Marriage Act, the respondent in any proceedings for divorce or judicial separation or restitution of conjugal rights can pray for the relief by way of counter claim only those reliefs which can be prayed and/or granted under the Hindu Marriage Act, namely, the relief under Section 9 (Restitution of conjugal rights); Section 10(judicial separation); Sections 11 & 12(declaration of marriage between the petitioner and the respondent void) and Section 13 (divorce).” Hence, no relief against a third party can be sought for under the provisions of the said Act, and a separate suit has to be instituted for the said purposes.
     
  • The Supreme Court‟s Bench comprising of Justice A.M. Khanwilkar, Justice Hrishikesh Roy and Justice C.T. Ravikumar in the case of Municipal Corporation of Greater Mumbai vs. Ankita Sinha and other (Civil Appeal Nos. 12122-12123 of 2018) held that the National Green Tribunal (“NGT”) has suo moto powers to take cognisance on the basis of news reports, representation and letters written by the general public. Whilst dealing with the NGT‟s suo moto jurisdiction as per the NGT Act, the Court adopted a purposive interpretation of the said Act and relied on Rule 24 of the NGT (Practice and Procedure) Rules, 2011 which empowered the NGT to “make such orders or direction ……prevent the abuse of justice.” In light of the same the Court observed “ ….by choosing to employ a phrase of wide import i.e securing the ends of justice, the legislature has nudged towards a liberal interpretation. Securing justice is a term of wide amplitude and does not simply mean adjudicating disputes between two rival entities. It also encompasses inter alia, advancing causes of environmental rights, granting compensation to victims of calamities, creating schemes for giving effect to the environmental principles and even hauling up authorities for inaction, when need be.” The Court further analysed the scheme of the NGT Act and observed that the NGT is not merely an adjudicatory body but is also vested with adversarial and inquisitorial functions to protect the environment.
     
  • A Three Judge Bench of the Supreme Court comprising of Justice U.U Lalit, Justice Hemant Gupta and Justice Ajay Rastogi in the case of Smriti Madan Kansangra vs. Perry Kansagra (Civil Appeal No. 3559 of 2020), recalled its earlier order granting custody of a child to his father after the Court found that the said father had suppressed material facts and had made fraudulent misrepresentation before the Court. The father being a Kenyan citizen of Indian origin forged a “mirror order” from Kenyan High Court and also filed subsequent pleas before the court of law in Kenya challenging the jurisdiction of the Indian Court despite having submitted to it in the first place. Holding its earlier decision on the custody of child as void ab initio, the Court noted that “It is fundamental that a party approaching the Court must come with clean hands, more so in child custody matters. Any fraudulent conduct based on which the custody of a minor is obtained under the orders of the Court would negate and nullify the element of the trust reposed by the Court in the concerned person.” The Supreme Court subsequently ordered the custody of the child be given to the mother and also directed criminal proceeding be instituted against the father.
     
  • A Bench of Supreme Court comprising of Justice DY Chandrachud, Justice Vikram Nath and Justice BV Nagarathna, in the case of V Nagarajan vs. SKS Ispat and Power Ltd; (Civil Appeal No. 3327 of 2020), held that the period of limitation for filing appeal against order of Adjudicatory Authority commences from the date of pronouncement of the said order as opposed to the date on which the order is uploaded. The Supreme Court observed that Insolvency Bankruptcy Code 2016 (“IBC”) was a special statute and that “…section 61 of the IBC, begins with a non-obstante provision – “notwithstanding anything to the contrary contained under the Companies Act, 2013” when prescribing the right of an aggrieved party to file an appeal before the NCLAT along within the stipulated period of limitation. The notable difference between Section 421(3) of the Companies Act and Section 61(2) of the IBC is in the absence of the words “from the date on which a copy of the order of the Tribunal is made available to the person aggrieved” in the latter. The absence of these words cannot be construed as a mere omission which can be supplemented with a right to a free copy under Section 420(3) of the Companies Act read with Rule 50 of the NCLT Rules for the purposes of reckoning limitation.” The Court further clarified that it is mandatory to annex the certified copy of the order along with the appeal filed as per Rule 22(2) of the NCLAT Rules. However, the NCLAT has the discretionary power to waive this requirement in the cases it deems fit to do so.
     
  • A Single Judge Bench of Bombay High Court in the case of Godrej Properties Ltd vs. Goldbricks Infrastructure Pvt. Ltd (Commercial Arbitration Petition No. 23500 of 2021) held that the Arbitral Tribunal does not have the powers to pass an ex-parte order upon filing of an interim application as the Arbitration and Conciliation Act, 1996 (“Act”) mandates advance notice of hearing to be served to the parties in dispute. The High Court observed that Sections 18, 19 and 24(2) of the Act requires parties to be treated fairly, thus each side has to be given sufficient opportunity to present their case. Furthermore, it was also held that the powers of a Court in passing ex- parte orders cannot be applied to Arbitral Tribunal as Section 24(2) of the Act requires sufficient notice must be given to all parties.
     
  • The Division Bench of the Delhi High Court in the case of A2Z Infraservices Ltd & Anr. vs. NDMC (Writ Petition Civil 11480 of 2021) clarified that the World Bank is not an agency of the government and therefore does not fall under the definition of State under Article 12 of the Indian Constitution. In this case, the Bench comprising of Justice Vipin Sanghi and Justice Jasmeet Singh whilst dealing with a writ petition challenging the decision of the North Delhi Municipal Corporation rejecting a bid and disqualifying the bidder from participating in the re- tendering process on the ground that the said bidder was debarred by the World Bank. Dismissing the writ petition, the High Court clarified that “World Bank or any other international bodies cannot be considered as a Government agency. This is for the reason that none of these international bodies are bound by directions issued by the Government of India. The Government of India does not exercise control over, actual or pervasive, their affairs and that is why they have been held as not amenable to writ jurisdiction of the High Court.”
     
  • The Delhi High Court in the case of Abhishek vs. State of NCT Delhi (CRL.M.C No. 2242 of 2020) has issued directions to be observed in cases of extension of custody of undertrial prisoners. The said directions were issued so that the extension granted is not mechanical and the rights of undertrials remain legally protected. Few of the relevant directions issued by the High Court includes that the accused must be produced before the Court on the next day the custody is over so that they are made aware of their legal right to default bail, that the custody warrant must include information indicating the day on which the right of default bail will accrue and that the jail authorities also have the duty to inform the undertrial prisoners about the date of default bail.
     
  • The Karnataka High Court in the case of Shally M. Peter And M/S. Banyan Projects India Pvt. Ltd. (Criminal Petition No.3157 Of 2020) held that settlement reached before the Lok Adalat amounts to a decree/order of a court and therefore bar as per Section 362 Criminal Procedure Code, 1973 (“CrPC”) will be applicable on the same. In this case, a compromise was reached between the petitioner and the respondent wherein the respondent subsequently did not honour the said settlement. In light of the same the petitioner had approached the High Court to reopen the case against the respondent. The High Court in the case observed that “Once the case is closed, it amounts to decree or award in Lok Adalat. Therefore, once the amount has not been paid by the accused in terms of the compromise, then the petitioner is required to approach the same court for recovery of amount in accordance with law and it need not reopen the case”.
     
  • The Telangana High Court in Writ Petition No. 24850 of 2021 permitted abortion of a 26 (Twenty-Six) week old foetus being carried by a minor rape victim. The provisions of the Medical Termination of Pregnancy Act, 1971 (“MTP Act”) clearly restricts abortion of foetus that has crossed the time span of more than 24 (Twenty-Four) weeks. However, Constitutional Courts in exceptional circumstances can direct abortion beyond such aforesaid time period. The High Court in the present case took cognisance of the fact that the continuation of the pregnancy would cause severe mental and physical stress to the victim and observed that “The petitioner is 16 years old, and with the mental stress she is undergoing, it cannot be said with certainty that the petitioner would be able to carry the pregnancy until the child and that too a healthy child is delivered. There may be medical complications encountered by the petitioner and also to the foetus or to be born child.” The High Court allowing the termination of pregnancy also observed that “If the petitioner is compelled to continue with pregnancy caused by rape, it would infringe her right to life guaranteed under Article 21 of the Constitution of India. A woman has right to make a choice to carry pregnancy, at the same time, it is her right not to carry pregnancy, however, subject to conditions and restrictions enumerated under the provisions of the Act of 2021”
     
  • The Madhya Pradesh High Court in the case of Dilip Buidcon Ltd. vs. Chief Conservator of Forest & Ors (Writ Petition No. 18604 of 2021) clarified that the High Court does not have the authority to direct release of a property confiscated under Indian Forest Act, 1927 as amended by the Madhya Pradesh Legislature. In this case the High Court was dealing with a writ seeking release of vehicle confiscated in relation to an offence committed as per the provisions of the Indian Forest Act, 1927. The Madhya Pradesh Amendment to the said Act inserted Section 52C, which puts a bar on any court, tribunal and authority to pass an order regarding possession, delivery, disposal or distribution of the property in regard to which confiscation proceedings have been initiated. The High Court relied on the Supreme Court decision of State of Madhya Pradesh vs. Uday   Singh   ((2020)12   SCC   733), wherein it was held that a High Court cannot issue directions to the Magistrate to release property confiscated under Indian Forest Act, 1927 as the same would be contrary to legislative intent of the statute.
     
  • The Madras High Court in the case of E.R Mohanraj vs. Government of Tamil Nadu (Writ Petition No 21368 of 2021) has ordered the state government to frame guidelines and take appropriate measures to discourage construction of banners and cut-outs of political leaders in public places for minor functions. A Public Interest Litigation was filed before the High Court regarding death of a child who was electrocuted while erecting a flagpole for a political event. The Court observed that it is common sight now to see public place like parks, pathways, roads etc. being blocked by such posters and banners and that such constructions are dangerous especially when they are installed at intersections. The High Court observed that such constructions continue to stay even after a particular event is over and subsequently makes it difficult for people to use roads and pathways by impeding pedestrian and vehicular movement.
     
  • The Madras High Court in the case of G Devarajan vs. The Secretary, Government of Tamil Nadu & Ors (Writ Petition No 21291 of 2016) held that cinema halls are under an obligation to provide free and pure drinking water through water coolers, if people are prohibited from carrying their own water bottles therein. The High Court also acknowledged that there are legitimate security risks that can arise from letting people carrying their own water bottles. Justice SM Subramaniam held that “A Cinema Hall, which seeks to prohibit carrying of drinking water inside the Cinema Hall for security reasons, must necessarily provide free potable and pure drinking water through water coolers installed inside the Cinema Halls, before such a prohibition can be enforced … Mere availability of the drinking water would not be sufficient to enforce prohibition of carrying drinking water inside the Cinema Halls. Purified drinking water with prescribed standards must be provided, so as to satisfy the requirements … it is to be ensured that drinking water facilities are provided all the times to the cinema goers in the Hall”

 
NOTIFICATIONS/AMENDMENTS INSIGHTS 

  • Vide Circular No. SEBI / HO / IMD / IMD-IIDOF3 / P / CIR / 2021 / 641 dated 06.10.2021, SEBI has amended circular no. SEBI/HO/IMD/DF3/CIR/P/2020/130 dated 22.07.2021. The original circular mandated mutual funds to undertake at least 10% of their total secondary market trades in Corporate Bonds through Request for Quote (“RFQ”) platform of stock exchanges. As per the revised circular, the limit has now been raised to 25% of their total secondary market trades by value in Corporate Bonds and minimum 10% of their total secondary market trades in Commercial Papers by placing/seeking quotes through one-to-many mode on the RFQ platform of stock exchanges. The revised circular will come into force from 01.12.2021.
     
  • Vide Circular No. 19 of 2021 dated 26.10.2021, Central Board of Direct Taxes (“CBDT”) has issued Guidelines under clause (23FE) of Section 10 of the Income-tax Act, 1961(as “Act“). The Finance Act, 2020, inserted clause (23FE) to Section 10 of Act to provide for exemption to sovereign wealth funds and pension funds on their income in the nature of dividend, interest and long- term capital gains arising from investment made in Indian infrastructure made between 01.04.2020 and 31.03.2024. With respect to clause (23FE), there existed certain ambiguity about the usage of the term “indirectly” and about the eligibility to get the aforesaid exemption. The guidelines are released to provide much needed clarity on these issues.
     
  • Vide Circular No. SEBI / HO / DDHS / DDHS_Div3 / P / CIR / 2021 / 640 dated 05.10.2021, SEBI has amended Circular No. SEBI / HO / DDHS / DDHS / CIR / P / 2020 / 122 dated 17.07.2021 which provided the mechanism of providing exit option to dissenting unit holders pursuant to Regulation 22(6A) and Regulation 22(8) of SEBI (Real Estate Investment Trusts) Regulations, 2014 (“REIT Regulations”). The revised circular adds Clause 2.5A and Clause 3.4 to Annexure-1 of the previous circular. Clause 2.5A provides a summary of the activities and the timelines pertaining to exit option/offer in case of an acquisition as described under the REIT Regulations and Clause 3.4 prescribes that in case of an acquisition, the exit option price shall stand enhanced by an amount equal to a sum determined at the rate of 10% per annum for the period between the first notice date and second notice date.
     
  • Vide Circular No. SEBI / HO / CDMRD / DoC / P / CIR / 2021 / 636 dated October 04, 2021, SEBI has directed all the Stock Exchanges and the Clearing Corporations to disclose on their websites, the data on complaints received against them and redressal thereof, latest by 7th of each succeeding month. The disclosure has to be made as per the format enclosed in the said Circular. The said Circular shall come into effect from 01.01.2022.
     
  • Vide a circular no. SEBI / HO / DDHS / CIR / 2021 / 0000000638 dated 14.10.2021, SEBI has issued revised formats for limited review/ audit reports on financial information to be adopted by listed entities other than insurance companies. The revised formats are introduced in light of the amendment to Regulation 52 of the Securities and Exchange Board of India (Listing Obligations & Disclosure Requirements) Regulations, 2015, which was amended vide notification dated 07.09.2021. The amendment mandated entities having listed non-convertible securities to disclose results in quarterly basis, including assets, liabilities and cash flows.
     
  • Vide Notification No. IDMD.CDD. No.S930 / 11.22.003 / 2021-22 dated 05.10.2021, Reserve Bank of India (“RBI”) has issued revised Value Free Transfer (“VFT”) Guidelines to further streamline VFT of government securities. As per the VFT Guidelines, eligible transactions for VFT include transfers on account of gifts and inheritance, transfer of securities on account of mergers / demergers, acquisitions, and amalgamations, and others. Permission for VFT for any other purpose may be granted on a case-to- case basis by the RBI.
     
  • Vide Notification No. GSR 713(E) dated 01.10.2021, the Central government has notified The Taxation Laws (Amendment) Act, 2021. The amendment seeks to amend the Income-Tax Act, 1961 (“IT Act”) so as to provide that no tax demand shall be raised in future on the basis of the amendment to Section 9 of the IT Act made vide Finance Act, 2012 for any offshore indirect transfer of Indian assets if the transaction was undertaken before 28.05.2012. The amendment also provides that the demand raised for offshore indirect transfer of Indian assets made before 28.05.2012 shall be nullified on the fulfilment of specified conditions such as withdrawal or furnishing of undertaking for withdrawal of pending litigation and furnishing of an undertaking to the effect that no claim for cost, damages, interest, etc. shall be filed and such other conditions are fulfilled as may be prescribed. The amount paid/collected in these cases shall be refunded, without any interest, on fulfilment of the said conditions.
     
  • Vide notification no. Notification no S.O. 4238(E), dated 16.10.2021, Ministry of Labour and Employment has extended the public utility service status of the industries engaged in manufacturing of Alumina and Aluminium and Mining of Bauxite, which are covered under items 30 and 31, respectively, of the First Schedule to the Industrial Disputes Act, 1947, for a further period of 6 (Six) months with effect from the October 16, 2021.

 
DEALS THIS MONTH 

  • Tata Sons were successfully allotted the bid to take over government owned Air India airline services. In light of the same, Tata Sons have agreed to pay INR 180 Billion to acquire 100% stake of Air India airlines. Notably, Air India was initially founded in 1932 as Tata Airlines, but was subsequently nationalized in the year 1953. Pursuant to the aforesaid acquiring of stakes in Air India, Tata Sons will now have shareholding in 3 (Three) airline services which also includes Vistara and AirAsia.
     
  • Reliance Retail has recently bought 52% stake in designer label owned by renowned fashion designer Ritu Kumar. Reliance Retail has in recent past also acquired stakes in other top luxury fashion brands like Manish Malhotra and Sabyasachi. Through this transaction, Reliance is focusing on the top 20 million customers of India who discretionarily shell big amounts over such fashionable clothing luxurious brands.
     
  • The Good Glamm Group has recently acquired ScoopWhoop Media Private Limited. The acquisition happened via Good Glamm Group‟s subsidiary MyGlamm, and through this transaction the group is intending to enter into men‟s grooming space. ScoopWhoop was founded in 2013 and is a growing digital media and lifestyle content platform. The acquisition will adequately serve the Group‟s approach of bringing content to consumer directly through digital mode.
     
  • Paytm Insuretech Private Limited (“PIT”) has recently partnered with Swiss Re by way of Swiss Re investing about INR 920 Crores into PIT in lieu of its 23% shareholding. Swiss Re is a Swiss insurance company aiming to use Paytm‟s consumer base platform and develop suitable insurance plans for its users. On the other hand, PIT is the insurance arm of One97 Communications, the company that runs the Paytm platform.
     
  • Dr Lal PathLabs has acquired Suburban Diagnostics, making this the second major diagnostics deal of this year. In an all-cash deal for an enterprise value of Rs 925 Crores and a cap of Rs 1,150 Crores, PathLabs confirmed in a regulatory filing that the existing cash reserves will fund the deal. Dr. Lal PathLabs Limited is a Delhi based company that provides diagnostic and healthcare related services. This acquisition will help PathLabs increase its footprint in Western India region.
     
  • Lotus Herbals Private Limited has announced acquisition of 32% share in Fixderma India Private Limited. Lotus Herbals was launched in the year 1993 and is a major player in Indian cosmetic space. Fixderma is a Gurugram based company engaged in consumer retail through dermatologists and pharmacies in India and overseas. Lotus Herbals by way of this venture seeks to enhance the market presence for Fixderma and FCL, whilst bridging the gap for itself between prescription-based products and over-the-counter cosmetics.

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