Advogado-ICFAI

16/06/2017

The Government has made linking of Aadhaar Card mandatory for opening bank accounts as well as for every financial transactions of Rs. 50,000/- and above. The Government has also asked the existing bank account holders to furnish their Aadhaar details by December 31st, 2017. The Notification issued by the Revenue department recently stated that the account holders, who fails to submit the above details before the deadline will be barred from operating the accounts. The Finance Act, 2017 has already mandated seeding of Aadhaar number with Permanent Account Number to avoid individuals using multiple PANs to evade taxes by inserting a new section 139AA of the Act.

02/05/2017

In Commissioner of Service Tax v. CESTAT & Anr, the division bench of the Madras High Court held that Cenvat credit cannot be disallowed on mere ground that the assessee has not registered the premises under the Central Excise Act. In the instant case, the refund claim made by the Assessee, was rejected on ground that the additional building taken on lease was not registered with the concerned Authority. On appeal, the CESTAT allowed the assessees’ appeal and directed the authority to allow the credit. Aggrieved by the order, the department approached the High Court. The High Court allowed the credit.

02/09/2016

Cases arising out of Trust Deed and the Trust Act cannot be decided by the arbitrators

Parties:
Appellant: Shri Vimal Kishor Shah & Ors.
Vs.
Respondent: Mr. Jayesh Dinesh Shah & Ors.

Citation:
CIVIL APPEAL NO.8164 OF 2016.
(ARISING OUT OF SLP(C) No. 13369 of 2013)

Court:
Supreme Court of India

Bench:
Abhay Manohar Sapre, J.

Facts:
One Shri Dwarkadas Laxmichand Modi executed a family Trust Deed on 06.04.1983 forming a trust in favour of six minors, including Vimal Kishor Shah and Jayesh Dinesh Shah. Clause 20 of the Trust Deed provided that if any dispute arise then it would be resolved in pursuance of the provisions of the Indian Arbitration Act, and the decision of the arbitrators would be binding on the parties to the arbitration.
But soon after the formation of the trust, differences cropped up between the beneficiaries and one of the trustees resigned from the trusteeship. Finally a demand was made to amicably resolve the disputes/differences by referring them to the arbitrator as per Clause 20 of the Trust Deed. As the parties could not settle the differences and could not also appoint an arbitrator, one set of beneficiaries filed an application under Section 11 of the Arbitration and Conciliation Act, in the High Court.
The other set of beneficiaries contested this application. It was contended that the beneficiaries were neither parties to the Trust Deed nor its signatories, and Trust Deed could not be termed as an “agreement” much less an “arbitration agreement” within the meaning of Section 2(b) and 2(h) read with Section 7 of the Act. The designated Judge allowed the application and held that since the parties were minor at the time of the ex*****on of the Trust Deed and had now become major, they should be held as party under Section 2(h) and further they had the right to take recourse to proceedings under Section 11 of the Act for appointment of arbitrator.
Against this order of the Single Judge, one set of beneficiaries (the appellants) filed the petition by Special Leave before the Apex Court.
It was contended before the Apex Court that the Trust Deed was not an “Arbitration Agreement”. Further, that since the affairs of the Trust would be governed by the Indian Trusts Act, 1882 (“the Trust Act”), the Arbitration Act would not apply. The opposing party supported the reasoning of the Single Judge and prayed for no interference by the Apex Court.


Court’s Observation:
Supreme Court opined that there was no valid arbitration agreement. Court looked at the relevant sections and held that the requirements for a valid agreement were (1) there has to be an agreement (2) it has to be in writing (3) parties must sign such agreement or in other words, the agreement must bear the signatures of the parties concerned and (4) such agreement must contain an arbitration clause. Since these conditions were not met as there was no agreement and the arbitration clause was inserted unilaterally by the “settlor” so the requirements of Section 2(b) and 2(h) read with Section 7 were not fulfilled.
Further, the Trusts Act also conferred jurisdiction on Civil Courts, for adjudication in the matter of trusts. Though there was no express bar towards the Arbitration Act, the Court opined that there was an implied bar of exclusion of the applicability of the Arbitration Act for deciding the disputes relating to trusts through private arbitration as the remedies provided in the Trusts Act were adequate and sufficient.

Judgment:
Apex Court clarified and added one more category of cases i.e. category (vii), namely cases arising out of Trust Deed and the Trust Act in the list of (vi) categories of cases specified by the Apex Court in para 36 of decision rendered in case of Booz Allen & Hamilton Inc. which cannot be decided by the arbitrators.
Apex Court allowed the appeal and held that application for arbitration under Section 11 of the Act was not maintainable and dismissed the said application and set aside the impugned order of the High Court.

31/08/2016

20/08/2016

Trip to a school in Janwada! When the kids said, "Akka, Selfie!"

18/08/2016

Once dying declaration is found reliable, trust worthy and consistent with circumstantial evidence – Its enough to convict the accused. (Mumtaz @ Muntyaz Vs. State of U.P. (Now Uttarakhand))

On 27.12.1990 at about 6.30 AM one Sh. Radhey Shyam lodged FIR at Police Station Manglaur that his nephew Pawan Kumar had left his house at about 8.00 PM on the previous day and that in the intervening night of 26th and 27th December 1990, he heard shrieks of Pawan Kumar from the house of one Raees in the neighbourhood, whereafter Radhe Shyam along with his other nephew Anil Kumar came out of the house and saw that the hands of Pawan Kumar were tied and he was ablaze in the courtyard of the house of Raees. They rushed there and put a quilt on Pawan Kumar.

In this report, Radhey Shyam further stated that he had seen Mumtaz and Dilshald @ Pappu and their associates Naseem Khan and Anees Khan setting Pawan Kumar on fire. Soon after this reporting, the police came to the spot and sent Pawan Kumar to Primary Health Centre, for medical attention.

At Primary Health Centre, dying declaration of Pawan Kumar was recorded by SDM in which he named Mumtaz and Pappu and stated that they had set him on fire. Subsequently Pawan Kumar victim succumbed to the burn injuries.

The Trial Court found Mumtaz and Dilshad @ Pappu guilty of the charges punishable under Section 302 read with Section 34 IPC and sentenced them to imprisonment for life. Naseem Khan and Anees Khan were however acquitted of all the charges. The accused filed criminal appeals before the High Court.

The High Court affirmed the conviction and sentence passed against Mumtaz and Dilshad. The High Court principally relied upon statement of eye-witness Radhey Shyam and Anil Kumar as well as upon dying-declaration of the deceased.

This order of the High Court was challenged before the Apex Court. The Apex Court opined that, in any case, even if the eyewitness account is taken to be inconsistent with the dying declaration but once the dying declaration is found reliable, trustworthy and consistent with circumstantial evidence on record, such dying declaration by itself is adequate to bring home the case against the accused.

Apex Court rejected the plea of ‘alleged grave provocation’ on the pretext that when Pawan Kumar (deceased) was found his hands were lying tied.

With the above said findings Apex Court dismissed the Criminal Appeal of Mumtaz and confirmed his conviction and sentence for committing offences u/s 302/34 IPC.

The other accused Dilshad@ Pappu, came out to be juvenile as per the norms of Juvenile Justice Act, 2000. The Apex Court set aside the sentence of life imprisonment passed against him and remitted the matter to the Jurisdictional Juvenile Justice Board for determining the appropriate quantum of fine that should be levied on Dilshad @ Pappu and the compensation that should be awarded to the family of the deceased.

07/06/2016

Art of Living foundation has deposited Rs 4.75 crore “environment compensation” with Delhi Development Authority as directed by the National Green Tribunal for damaging Yamunas biodiversity during its World Culture Festival.

The panel had directed the expert committee to inspect the site on Yamuna floodplains where the three-day festival was organised, before. The panel had also asked to submit a “complete and comprehensive” report in a sealed cover by July 4.

The bench had said that if the inspection was not done before June 10, the whole purpose of the visit by the expert committee would be “defeated” as there were chances of rain.

The tribunal had slammed AOL for not depositing the environment compensation imposed on it saying it was “wilful violation” of its undertakings.

It had held that corporate entity cannot be used to promote irregularities and said it would even lift the “corporate veil” and find “real substance” of the matter while examining the case to ascertain the truth.

On March 11, AOL had moved a plea seeking four weeks time for depositing the amount after which the tribunal allowed the foundation to deposit Rs 25 lakh on that day and granted three weeks time period to pay the balance amount.

05/06/2016

The earth will not continue to offer its harvest, except with faithful stewardship. We cannot say we love the land and then take steps to destroy it for use by future generations. -- Pope John Paul II

30/05/2016

A long- running debate on passive euthanasia has finally seen the light of day. A draft Bill on same was placed by the Union Health Ministry for public remarks on the website- www.mohfw.nic.in recently. The ministry has invited the comments from the public on the said issue which a public member can easily convey through e-mail, but such comments should be sent before 19th June.The said draft bill, namely, the Terminally Ill Patients (Protection of Patients and Medical Practitioners) Bill, as put in the public domain, it reflects that the issue of ‘Euthanasia’ again came up for huge debate on right to life and right to die with dignity.


When the busy Trauma Centre of AIIMS- All Indian Institute of Medical Sciences asked to comment, the doctors from such AIIMS’s centre said at any given time about 6 patients occupying beds are in completely vegetative state, with hope of recovery. Moreover, one doctor said “I personally am for euthanasia. It is a huge drain on the country’s resources. We should gracefully let these patients go rather than torturing them and their families.”

We urge our readers also to put their valuable remarks of the said website.

28/04/2016

On April 26, Hon'ble High Court of Kerala has held that the right of women to have the choice of dress based on religious injunctions is a fundamental right protected under Article 25(1) of the Constitution of India, when such prescription of dress is an essential part of the religion.

It was a petition filed by Amnah Bint Basheer a candidate for All India Pre-Medical Entrance Test 2016 scheduled on 01.05.2016 (AIPMET-2016) seeking permission for Muslim Girls to wear Hijab for the All India Pre-Medical Test-[AIPMT] 2016.

The hon'ble court has, however, put a condition that they should be present at the examination hall half an hour before the exam for frisking if necessary.

The Court analyzed the Quranic provisions in light of Article 25 and made following observations :
"covering the head and wearing a long sleeve dress by women have been treated as an essential part of the Islamic religion. It follows a fortiori, Article 25(1) protects such prescription of the dress code. Then the only question remains is the essential practice as above would offend the public order, morality, and health or is it necessary to regulate such essential practice to give effect to other provisions of Part III of the Constitution”

It also protected the interests of the Board by allowing the frisking by lady invigilators. The Court added "The right of women to have the choice of dress based on religious injunctions is a fundamental right protected under Article 25(1), when such prescription of dress is an essential part of the religion. As has been noted above, that right can be negated only in any of the circumstances referred under Article 25(1). The attempt of the Board to ensure transparency and credibility of the examinations also cannot be ignored by this Court. However, the approach of the Court is always to harmoniously accommodate the competing interest without there being any conflict or repugnancy. The interest of the Board can be safeguarded by allowing the invigilator to frisk such candidates including by removing scarf. However, safeguard has to be ensured that this must be done honouring the religious sentiments of the candidates. Therefore, women invigilators can be permitted to frisk such candidates"