Khare & Associates

Khare & Associates We have a great pleasure of introducing ourselves as a Practicing Advocates in the field of Direct and Indirect Taxation. Thanking you,
Adv. Ga

Focused in the field of Income Tax,Sales Tax,Central Excise,Service Tax, Customs and other Allied Legal Work.

05/09/2025

oon or Disguise — New Methodology Judicial Impact Assessment

Boon or disguise New Methodology : Judicial Impact Assessment

Introduction

It is said that well begun is half done. The Ministry of Law and Justice has formed a task force on judicial impact assessment that will bring a major change in judicial administration. Even the Central Govern-ment and Supreme Court are examining various nitty-gritties of this new but dynamic concept.

Meaning

Judicial impact assessment is a methodology to know how much workload a legislation will create in Courts. Making laws is a function of Parliament. Each year hundreds of legislations are enacted by Parliament and State assemblies. Each legislation increases the burden on the Courts.

Functioning

If we were to operate the Court system as it is now with the current number of 14,000 Judges, it will take another 300 years for the 26 million case backlog to be cleared. This means that the waiting period for people to get justice from Courts will get longer. The JIA report suggests methods to tackle such problems in the judiciary. These offices — set up at the National, State and District levels — will gather statistics on a variety of things. These will process and analyse data to help reorganise weak points in judicial administration. These offices will be key institution to develop linkages between judiciary and the Legislature and streamline budgetting of Courts.

Burden on Courts

Litigation is increasing due to three processes. First is the legislative activity. Second, by judicial interpretation of laws, for example, the Supreme Court expanded the concept of freedom and liberty under Article 21(right to life) of the Constitution by giving it a broader interpretation. More and more rights were read into it, such as the right to free legal aid, right to speedy trial and right to privacy, among others. When you create more rights that also increases litigation. Third is by economic activity.

Economic development means more investment employment and technology transfer. All these are regulated by contract law. With greater economic boom comes greater number of contracts and if one side doesn’t perform its obligation, the parties go to Courts. In every model of capitalist development, contract is a key legal tool for development processes.

Judicial specialisation

This is the next level of analysis. Additional cost depends on the number of judicial hours and time taken for pleading in Court, that includes issuing notices, filling affidavits, adjournments and passing interim orders. The time taken and cost of each stage of civil and criminal litigation is added to calculate the cost in terms of administration of justice.

Conclusion

Judicial impact assessment also suggests better planning in setting up of Courts. Today, a Judge sits one day in a family Court and the next day in a criminal Court. There is a degree specialization besides attitudinal changes and values that govern the process of the Court. Time has come for judicial reforms in this sense. We must be supported by judicial training and better infrastructure in Courts. How many more Courts and Judges we need. One fourth of judicial posts are always vacant and state governments take a long time to process appointments. This is where we need judicial planning. I would say, the judiciary must also go to the campuses and hire talented people who are drawn to the corporate world.

03/12/2024

In Ashoka Kumar Thakur case the Court held, inter alia, that there are structural differences in the Constitution of India and the Constitution of the United States of America. The 14th Amendment to the U.S. Constitution, inter alia, provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws”. Whereas in India, Articles 14 and 18 are differently structured and contain express provisions for special provision for the advancement of SEBCs, STs and SCs. Preamble to the Constitution and the Directive Principles of State Policy give a positive mandate to the State and the State is obliged to remove inequalities and backwardness from society. While considering the constitutionality of a social justice legislation, it is worthwhile to note the objectives which have been incorporated by the Constitution makers in the Preamble of the Constitution and how they are sought to be secured by enacting fundamental
rights in Part III and Directives Principles of State Policy in Part IV of the Constitution. The Fundamental Rights represent the civil and political rights and the Directive Principles embody social and economic rights. Together they are intended to carry out the objectives set out in the Preamble of the Constitution. In our Constitution there is a specific provision under the Directive Principles of State Policy in Part IV of the Constitution requiring the State to strive for justice 'social, economic and political' and to minimize the inequalities of income and endeavour to eliminate inequalities in status, facilities and opportunities (Article 38).

18/09/2024

DEBATABLE QUESTIONS ON ARTICLE 142 OF INDIAN CONSTITUTION ?

What is the provision in the Constitution to enforce the judgments and orders of

the Supreme Court?

Article 142 lays down that Parliament may, by law, lay down the manner in which the

orders of the Supreme Court will be enforced. It also provides that till such time as the

Parliament makes such law, the President may by order so provide.

Since 1950 no law has been made by Parliament providing for the manner in which the

orders of the Supreme Court will be executed and enforced. The President has made

Constitution Order No. 47 which is laconic and unspecific. It refers to the manner of

executing the orders and decrees of courts below and the same procedure is made

applicable mutates mutandis. But what about the orders passed in exercise of its writ

jurisdiction, or original, advisory and disciplinary jurisdicti

How effective is that remedy?

Remedies under Article 142 are not at all efficacious. Taking example of orders passed

in exercise of writ jurisdiction or appeals from exercise of writ jurisdiction of the High Courts,

there is no effective remedy. Parliament has not passed by order, and Presidential Order is

very laconic and unspecific about jurisdictions other than appellate.

So how the judgments and orders of the Supreme Court enforced?

So litigant is left with the only choice but to move the Supreme Court for punishment of

contempt of its order. These proceedings are penal in character and are not efficacious.

They lead to bureaucratic obduracy.

18/09/2024

VAT changes after 16th September, 2016 – Void

The Moot Question about the competency
of the State Legislatures to amend their VAT
Act even after the GST regime, came to be
considered by the Supreme Court in a recent
judgment dated 20th October, 2023 in the case
of The State of Telangana & Ors vs. M/s. Tirumala
Constructions & Ors. (Civil Appeal No.1628 of 2023
and several others).
2. The matters arose out of actions by State
of Telangana, State of Gujarat and State of
Maharashtra amending their respective VAT
Act after the 101st Constitution Amendment Act,
2016 was brought into force with effect from
16.09.2016.
3

As far as list II – State list is concerned,
entry 52 and 55 relating to Entry Tax
and taxes on advertisements other
than in newspapers respectively were
omitted, while entry 54 which earlier
related to taxes on sale or purchase of
goods, was substituted so as to limit it
to petroleum products only. Thus from
16th September 2016 the States, ceased
to possess its earlier exclusive powers in
regard to levy of taxes on sale or purchase
of goods other than petroleum products.
Entry 62 which related to luxury tax was
substituted so as to provide for taxes on
entertainment and amusements to the
extent levied and collected by Panchayat
or Municipality or a Regional Council or
a District Council. In other words the State
Government did not have anymore, power
to levy tax, on luxuries

All readers therefore are advised to be
vigilant in so far as their proceedings under the
respective VAT Act and challenge the adverse
orders on the basis of the above discussed
judgment of the Supreme Court if applicable

Thanks & regards,
Adv Gajanan Khare
(Past Associate Editor of the Sales Tax Review Magazine)
022-23850642/3027 | [email protected]
Flat no -18, 4th floor, 135 Maharaja Building, JSS Road, Girgaon, Mumbai 400004.

18/09/2024

We are not final because we are infallible, but we are infallible only because we are final

Remarking on the Supreme Court

in his separate concurring opinion in Brown v. Allen, Justice Robert Jackson famously quipped,
“We are not final because we are infallible, but we are infallible only because we are final.” As the Court itself makes clear, however, its published opinions are not immediately “final” at all. Just the opposite is true. The Court’s opinion in Brown itself was not final on the day it was announced, notwithstanding all the visible trappings and signature headings of the Court. It takes not just days or months but several years after the Court’s initial announcement and publication of its ruling before the Court releases what it is willing to describe as its “final” and “official” opinion.

27/08/2020

Excess tax paid over and above stipulated rate refundable to supplier where contract with customer is for fixed price irrespective of tax rate applicable

04/08/2020

Under Article 226, it has plenary power to issue orders or writs for the enforcement of the fundamental rights and for any other purpose to any person or authority including inappropriate cases any Govt, within its territorial jurisdiction. Under Article 227 it has jurisdiction over all Courts and tribunals throughout the territories in relation to which it exercises jurisdiction

Bombay High Court

Legrand (India) Private Ltd. vs Union Of India (Uoi) And Ors. on 21 June, 2007

Equivalent citations: 2008 (2) BomCR 387, 2007 (6) MhLj 146

Author: V Daga

Bench: S Radhakrishnan, V Daga

From the above four decisions, the following propositions emerge:

(a) It is immaterial that in a previous litigation the particular petitioner before the Court was or was not a party, but if a law on a particular point has been laid down by the High Court, it must be followed by all authorities and tribunals in the State ;

(b) The law laid down by the High Court must be followed by all authorities and subordinate tribunals when it has been declared by the highest Court in the State and they cannot ignore it either in initiating proceedings or deciding on the rights involved in such a proceeding;

(c) If in spite of the earlier exposition of law by the High Court having been pointed out and attention being pointedly drawn to that legal position, in utter disregard of that position, proceedings are initiated, it must be held to be a wilful disregard of the law laid down by the High Court and would amount to civil contempt as defined in Section 2(b) of the Contempt of Courts Act, 1971.

10. The respondents as directed by us have deposited amount of Rs. 14,33,000/- with the Prothonotary and Senior Master of this Court and also filed an affidavit duly affirmed by Ms. Reena Shetty, Assistant Commissioner of Customs (Imports) tendering her unconditional apology along with copy of the Standing Order No. 7967 dated 26th April, 2007 with covering letter issued by the Commissioner of Customs (Imports) the text of which are as under:

22/07/2020

A GREAT LOSS TO DEALERS/ASSESSEE
rejecting the application for condonation of delay,
It is well settled that rejection of delay application

Supreme Court of IndiaAssistant Commissioner (Ct) Ltu ... vs M/S Glaxo Smith Kline Consumer ... on 6 May, 2020
Author: A.M. Khanwilkar
Bench: A.M. Khanwilkar, S. Ravindra Bha
Reverting to the contention that the respondent having failed to assail the order passed by the appellate authority, dated 25.10.2018 rejecting the application for condonation of delay, the assessment order passed by the Assistant Commissioner, dated 21.6.2017 stood merged, need not detain us in view of the exposition of this Court in Raja Mechanical Company Private Limited vs. Commissioner of Central Excise, Delhi­I23. It is well settled that rejection of delay application by the appellate forum does not entail in merger of the assessment order with that order.

21. Taking any view of the matter, therefore, the High Court ought not to have entertained the subject writ petition filed by the respondent herein. The same deserved to be rejected at the threshold.

Accordingly, we allow this appeal and set aside the impugned judgment and order passed by the High Court and dismiss the writ petition. There shall be no order as to costs.

11/04/2020

n Prem Chand Garg v. Excise
Commissioner, U.P., 1963 (Supp.) 1 SCR 885, this
Court held:
“2. Article 32(1) provides that the right to
move the Supreme Court by appropriate
proceedings for the enforcement of the
rights conferred by this Part is guaranteed,
and sub-art. (4) lays down that this right
shall not be suspended except as
otherwise provided for by this Constitution.
There is no doubt that the right to move this
Court conferred on the citizens of this
country by Article 32 is itself a guaranteed
right and it holds the same place of pride in
the Constitution as do the other provisions
in respect of the citizens fundamental
rights.

The fundamental rights guaranteed
by Part III which have been made
justiciable, form the most outstanding and
distinguishing feature of the Indian
Constitution. It is true that the said rights
are not absolute and they have to be
adjusted in relation to the interests of the
general public. But the scheme of Article 19
illustrates, the difficult task of determining
the propriety or the validity of adjustments
made either legislatively or by executive
action between the fundamental rights and

the demands of socio-economic welfare
has been ultimately left in charge of the
High Courts and the Supreme Court by the
Constitution. It is in the light of this position
that the Constitution makers thought it
advisable to treat the citizen’s right to move
this Court for the enforcement of their
fundamental rights as being a fundamental
right by itself. The fundamental right to
move this Court can, therefore, be
appropriately described as the corner-stone
of the democratic edifice raised by the
Constitution. That is why it is natural that
this Court should, in the words of Patanjali
Sastri J., regard itself “as the protector and
guarantor of fundamental rights,” and
should declare that “it cannot, consistently
with the responsibility laid upon it, refuse to
entertain applications seeking protection
against infringements of such rights.”
(Vide Romesh Thappar v. State of
Madras [[1950] SCR 594 at 697]). In
discharging the duties assigned to it, this
Court has to play the role “of a sentinel on
the qui vive” (Vide State of Madras v. V.C.
Row [[1952] SCR 594 at 597]) and it must
always regard it as its solemn duty to
protect the said fundamental rights’
zealously and vigilantly
(Vide Daryao v. State of U.P. [[1962] 1
SCR 574 at p. 582])”

15/03/2020

Dr. N. B. Khare v. State of Delhi, , observed :

"The law providing reasonable restrictions on the exercise of the right conferred by Article 19 may contain substantive provisions as well as procedural provisions. While the reasonableness of the restrictions has to be considered with regard to the exercise of the right, it does not necessarily exclude from the consideration of the Court the question of reasonableness of the procedural part of the law".unreasonable restrictions upon the petitioners' fundamental right guaranteed under Article 19(1)(g) read with Clause (6) of the Constitution. Clause (6) which limits the fundamental right to practise any profession, or to carry on any occupation, trade of business is in these terms :

"Nothing in Sub-clause (g) of the said clause shall affect the operation of any existing Jaw in so far as it imposes, or prevent the State from making any law imposing, in the interest of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause ....."

10/03/2020

Magistrate by a process of judicial interpretation and in exercise of jurisdiction vested in this Court under Article 142 of the Constitution of India

On 2nd of August, a three-judge bench of the Supreme Court decided the case of Ritesh Sinha v State of UP, dealing with the question of whether an accused could be compelled to provide voice samples during the course of a criminal investigation. The issue had divided many High Courts – some of which had returned detailed judgments – and had also divided a two-judge bench of the Supreme Court, where the judges had disagreed whether the Code of Criminal Procedure authorised this form of compulsion. The three-judge bench was called upon to resolve the issue. The Bench found that there was no statutory authorisation for the process; but it then noted that “procedure was the handmaiden of justice”, and decided to “fill in the gap” by invoking its powers under Article 142 of the Constitution to do “complete justice”, and authorised Magistrates to demand voice samples anyway

02/01/2020

The Court cited the Supreme Court's judgement in the Central Bureau of Investigation, Hyderabad v. K. Narayana Rao

It is well-settled law that extending a legal opinion for granting loans has become an integral component of an advocate's work in the banking sector. A lawyer, on his part, has a responsibility to act to the best of his knowledge and skills and to exhibit an unending loyalty to the interest of his clients. He has to exercise his knowledge in a manner that would advance the interest of his clients. However, while acting so the advocate does not assure his client that the opinion so rendered by him is flawless and must in all possibility act to his gains. Just like in any other profession, the only assurance which can be given and may even be implied from an advocate so acting in his professional capacity is that he possesses the requisite skills in his field of practice and while undertaking the performance of the task entrusted to him, he would exercise his skills with reasonable competence. The only liability that may be imputed on an advocate while so acting in his professional capacity is that of negligence in the application of legal skills or due exercise of such skills."

Address

Mumbai

Website

Alerts

Be the first to know and let us send you an email when Khare & Associates posts news and promotions. Your email address will not be used for any other purpose, and you can unsubscribe at any time.

Contact The Practice

Send a message to Khare & Associates:

Shortcuts

Share

Category