Jurisprudentiol–Tuesday's cases

By Vijay Kumar

Legal Corner Icon — the image was hosted by the publisher and was not captured.Central Excise

Assessee is in Uttar Pradesh – Appeal against CESTAT Delhi Bench Order – Delhi High Court cannot exercise jurisdiction – No Forum Shopping: Delhi High Court

ANY High Court is justified in exercising powers under Article 226 either if the person, Authority or Government is located within its territories or if the significant part of the cause of action has arisen within its territories. The rationale of Section 20 of the Code of Civil Procedure would, therefore, also apply to Article 226 (2) of the Constitution. These considerations are aptly encapsulated in the term forum conveniens which refers to the situs where the legal action be most appropriately brought, considering the best interests of the parties and the public. The writ Court should invariably satisfy itself that its choosing is not malafide or an example of forum shopping.

Income Tax

Income from House Property – when rent received is higher than fair rent, notional interest on deposit not to be taken into account for determining annual value; Officers of Department must not take advantages of ignorance of an assessee: ITAT

CAN Assessing office sit on the decision of ITAT, when the order of Assessing officer has merged with the order of the ITAT? When on talks of merger of a judgment, order or a decision of a subordinate court or forum into the judgment, order or decision of a superior court or forum the merger may be of the entire order, i.e., the reasons and the conclusion, or only a part, viz.. only the conclusion by a different process of reasoning, in that event what merges is the operative part after the confirmation, reversal or modification, but in any event, the order of the lower court or the forum does not have any independent existence thereafter. The doctrine of merger is founded on principle of propriety in the hierarchy of justice delivery system, the underlying logic being that there cannot be more than one operative order governing same subject-matter at a given point of time. The only caveat to the doctrine of merger is that the content or the subject-matter of challenge before the superior forum has to be borne in mind.

Customs

Smuggling of diamonds - Department need not prove the impossible - It has to establish its case with such a degree of probability that a prudent man may on its basis believe in existence of facts in issue – Bombay High Court

WHERE any goods which are specified under subsection (2) of Section 123 of the Customs Act, 1962 are seized under the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be on the person from whose possession the goods are seized. Such goods would obviously include goods which are specified by the Central Government by notification in the Official Gazette.

In case of other goods which are not covered by subsection 2 of Section 123 and in respect of which no notification is issued the basic cannons of criminal jurisprudence and natural justice will apply. The burden of proving that the goods are smuggled will be on the Department.

See our columns Tomorrow for the judgements