Tag: section34

-Report by Vedanti Wanjari

It has been held by the Supreme Court in the case of The Commissioner, Trade Tax, Uttar Pradesh Vs. M/s. Radico Khetan Ltd. that the power of Section 34 can be exercised only in a case where the transfer of immovable property belonging to the original assessee is made during the pendency of any proceedings under the Act and such transfer is found to be to defraud any such tax and other dues.

FACTS

M/s. Shaw Scott Distillery (P) Ltd., Rampur, the original assessee, owed trade tax in the amounts of Rs. 11,28,877 and Rs. 53,89,035 for the years 1980-1981, and 1981-1982 respectively. The recovery process had started and a certificate of recovery was issued. The equipment, tools, and products that belonged to the original assessee were purchased by the respondent for an amount of Rs. 12,12,000/-. The assessing officer (AO) discovered that the original assessee had transferred the aforementioned property during the pendency of ongoing assessment proceedings inorder to deceive the Revenue Department. As a result, the recovery certificate was issued in accordance with Section 34 of the U.P. Trade Tax Act in the name of the original assessee and endorsed by the assessment officer concluding the transfer to be void and to be recovered from the purchaser. This endorsement was challenged by the respondents which was initially dismissed but on a second appeal, it was held by the trade tax tribunal that the recovery certificate and the endorsement were bad in law. The appellants filed a revision application before the High Court which was dismissed. Feeling unsatisfied by the decisions of the High Court of Judicature in Allahabad in the area of trade, the appeal had been filed.

COURT’S DECISION

On April 15, 1990, the recovery certificate was issued against the initial assessee. Consequently, when the assessee transferred its immovable property, there was no proceedings under the Act for value/consideration. To the detriment of recurrence, it is remarked that given the case’s particular events and circumstances as previously described, Section 34 of the Act shall not be applicable in any way. It was observed

“Section 34 of the Act shall be applicable only in a case where there is a transfer of immovable property belonging to the original assesee, during the pendency of any proceedings under the Act with the intention of defrauding any such tax or other dues. As per proviso to Section 34, nothing in Section 34 shall impair the rights of a transferee in good faith and for consideration. Thus, the power of Section 34 can be exercised only in a case where the transfer of immoveable property belonging to the original assessee is made during the pendency of any proceedings under the Act and such transfer is found to be with the intention to defraud any such tax and other dues.”

It was further held that given the circumstances, the High Court did not err in dismissing the revision applications and upholding the Trade Tax Tribunal’s rulings that had set aside the endorsement of the recovery certificate that had been granted in favour of the original assessee against the purchaser.  In light of the aforementioned and the reasons already indicated, both appeals are rejected and should be dismissed as a result.

-Report by Rhea Mistry

In Kamal Khudal v. the State of Assam, the supreme court stated that conviction can depend upon a dying declaration after corroborating and checking whether the said dying declaration is true. Even if the dying declaration is not corroborated, the court can move forward with the decision relying on it without any further verification.

Kamal Khudal is a convict, appellant herein, and has appealed to the supreme court to dismiss his punishment. Kamal Khudal and two others were accused of the murder of the deceased, Uttam Datta, and charged with an offense punishable under section 302 read with section 34 of the IPC.

In the judgment dated 10.06.2010, the two accused, Munna Bhoi and Kamal Khudal were charged with life imprisonment with a fine of Rs. 2000/- each, and if there is a default in payment of the fine, further punishment of rigorous imprisonment for a period of two months. Bipin Bhoi, the third co-accused was granted the benefit of the doubt and acquitted from the punishment.

In that case, on 15th July 2007 at 7 am, the co-accused, Munna Bhoi had come to receive the deceased, Uttam Datta, for paddy plantation adjacent to his liquor local shop. When the deceased had left with the co-accused, the brother of the deceased was present at home. After working in the field for some time, the deceased had tagged along with Munna Bhoi to his liquor shop where there was some commotion detected after going in shop as said by
the locals in its vicinity area.

After a few minutes of commotion, the deceased had come out with burns all over him, and this was witnessed by a local, Hanu Khetrapal. When asked about what had happened, the deceased had told him that the accused had poured hot Lali (the raw material used to make liquor) over him which caused him the burns. The deceased left and later his dead body was found in the drain of Duribam Tea Estate.

The learned counsel of the appellant asserted that the court had made an error in deciding the case. He stated that the judge considered the dying declaration without any corroboration and verification, and said the case is “reliable in legal evidence”. Arguing that as per the rule of prudence, the learned counsel stated the court should rely upon corroboration before relying on the dying declaration. The presence of the brother of the deceased, while the deceased went along with the accused, does not prove anything and cannot be considered as last seen together.

According to the medical reports of the postpartum of the deceased done by Dr. Nirmal Chutia, he examined that the deceased had healthy organs, but burns all over his body. His body has 75% of burns which caused multiple dark ecchymosis on his skin. Ecchymosis means discoloring of the skin resulting from blood underneath. He certified that the marks and injuries were caused after the death of the deceased and that the cause of death was shock and hemorrhage resulting from chest & skull injuries and skull injuries, including that on the thorax, multiple injuries had been detected.

The Supreme Court stated that the High Court decided the case accepting the dying declaration. The court said

“The law regarding the nature, scope, and value as a piece of evidence of oral and written dying declarations is now fairly well settled by various judicial decisions of this Court. A dying declaration, oral or written, before it could be relied upon, must pass a test of reliability as it is a statement made in the absence of the accused and there is no opportunity for the accused even to put it through the fire of cross-examination to test is genuine or veracity. The court has, therefore, subjected it to close scrutiny. But once the court is satisfied that it is a truthful version as to the circumstances in which the death resulted and the persons causing injuries, the law does not expect that there should be corroboration before it can be relied upon. However, if there are infirmities and the court does not find it safe to base any conclusion on it without some further evidence to support it, the question of corroboration arises.”

The maxim “Nemo moriturus praesumitur mentire” is put to use here which means that a person does not go to his creator with a lie in his mouth. The court believes that when a man is on the brink of death, the person will not lie.

The SC also stated that the appellant was arrested on 23rd July 2007 when he was supposed to be arrested on the 15th of July 2007. And that the appellant has not revealed what or where he was from the 15th of July to the 23rd of July. This proves that he was absconding. The Supreme court dismissed this appeal stating that there is no reason for them to interfere in the appeal and the judgment made by the High Court stands by.

–Report by Rhea Mistry

In Ircon International Ltd. v. Reacon Engineers (India) Ltd., on 10th June 2019, the petitioner filed the petition under section 34 of the Arbitration and Conciliation Act, contesting an arbitral award given by a Single Arbitrator-Led Arbitral Tribunal. Concerning the agreement made on 16.06.2010, there was a disagreement between the parties which made them opt for the arbitration settlement.

Contentions by the Respondent

The respondent contended that the petition filed by the petitioner was filed after the period for filing had expired. Under the Limitation Act, the period under which a petition shall be filed is three months and the petitioner filed the petition on 13th September 2019 when the last date to file was 12th September 2019. The petitioner has not submitted any legal paperwork asking for a delayed pardon. The respondents also asserted that initially when the petition was filed, there was no attachment made to it, i.e., contested award, statement of truth, and the vakalatnama was not attached. The petition was unsigned and when it was re-filed by the petitioner, it was after the court’s window for tolerating delays.

Referring to the case Union of India v. Bharat Biotech International Ltd. and INX News Pvt. Ltd. v Pier One Construction Pvt. Ltd. to support his contentions, he stated that the petition that was filed on 24th October 2019 cannot be regarded as the same as filed on 13th September 2019.

Contentions by the Petitioner

The petitioner claimed that the contested award was received by him on 12th June 2019 and was delivered on 10th June 2019. They filed the petition one day after the expiration of filing the petition i.e., on 13th September 2019, and as per section 34(3) of the Arbitration and Conciliation Act, the petition can be filed within three months from the date of receipt of the arbitral award.

The petition that was filed on 13th September 2019 was 73 pages and the registry returned the petition on 16th September 2019 stating that it was defective and did not contain any attestation on affidavits, awards, documents, or statement of truth, there were also no bookmarks, and the pages were without page numbers. The petition was refiled on 24th October 2019, with a total of 1325 pages. The registry again said the petition is still defective and returned it on 30th October 2019 to be re-filed. It was refiled on 6th November 2019 and again returned on 13th November 2019 with defects, it was refiled on 14th November 2019 and returned yet again as defective on 15th November 2019 and refiled on 18th November 2019 to cure some defects, and finally was refiled on 19th November 2019.

The counsel of the petitioner claimed that even though there was a delay of one day, he applied to explain that he had met with an accident and could not attend to file the petition for three weeks.

Decision

There was a delay of thirty-seven days in filing the petition, so the petitioner has submitted absolutions for the delay of thirty-seven days in re-filing the petition but did not submit absolution for the delay in filing the initial petition.

The initial petition filed on 13th September 2019 was only seventy-three pages and did not contain any attachments which were mandatory such as the contested award and the statement of truth. On 24th October 2019 the petition was filed which contained 1325 pages with all the proper attachments, attested, signed, and formatted as prescribed.

The court stated in favor of the respondent’s contention that the petition which was filed on 24th October 2019 cannot be considered the same petition filed on 13th September 2019 as they are completely different. The court noted that the petition as filed on 13th September did not contain the impugned award or vakalatnama. Considering the same, the case of Union of India v. Bharat Biotech International Ltd is substantially applicable to the facts of this case and so the filings made on 13th September 2019 cannot be considered a valid submission.

The filing made on 24th October 2019 is considered the first date of filing in the present petition. This filing is made after three months period of filing and as per the Limitation Act, it is beyond the period the court can condone.
The petition stands dismissed due to the limitation and all the pending applications are also dismissed with this petition.