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TaxTMI 
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2018 (7) TMI 708
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....d except to the extent required. Thus, the primary facts are taken as such from the recording made in the orders under challenge. 3. Heard Shri K.T.S.Tulsi, learned Senior Counsel for Ms.C.Uma and Mr.N.R.R.Arun Natarajan, learned counsel appearing for the appellant and Shri G.Rajagopal, learned Additional Solicitor General for the respondents. 4. The appellant was engaged by one Ms.Manoranjana Sinh through her counsel to act as a Senior Lawyer on two occasions before the Company Law Board and the Delhi High Court. A Memorandum of Understanding(MOU) was signed between M/s GNN Pvt. Ltd., a media company owned by Ms.Manoranjana Sinh and M/s Bengal Media Pvt. Ltd., owned by Mr.Sudipto Sen on 09.06.2010. The relevant Clause 15 is furnished hereunder. "15.Bengal media will assist Mrs.Manoranjana in the ongoing litigation with Mr.Matang Sinh by co-ordinating with her lawyers." 5. It was followed by another Agreement signed by one Ms.Manoranjana Sinh on behalf of GNN Pvt. Ltd., and Mr.Sudipto Sen on behalf of M/s Bengal Media Pvt. Ltd., in which, clause 5.2 is apposite. "5.2. The company shall issue fresh shares to the Investor which is valued at Rs. 30 crore. The Promoters shall tr....
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....uld be taken as admitted and thus true. On a query, the learned Senior Counsel would submit that both malice in fact and law are available. There is also an element of bias involved in the proceedings initiated. The appellant is entitled for the protection under Sections 126 and 129 of the Indian Evidence Act, 1872, which are meant to uphold the sanctity of the legal profession qua a client. A liberal interpretation is required in extending the benefit under Section 160 of the Code of Criminal procedure in calling a woman for investigation. The submissions of the eloquence are sought to be buttressed through the sprinkling of the following decisions. (i)NANDINI SATPATHY VS. P.L. DANI AND ANOTHER ((1978) 2 Supreme Court Cases 424); (ii)ASMITA AGARWAL VS. THE ENFORCEMENT DIRECTORATE AND OTHERS ((2002) Criminal Law Journal 819); (iii)M/S PUSMA INVESTMENT PVT. LTD., AND OTHERS VS. STATE OF MEGHALAYA AND OTHERS ((2010) Criminal Law Journal 56); (iv)FOZIYA SAMIR GODIL VS. UNION OF INDIA AND TWO OTHERS (Spl. Crl. Application (Direction) No.1725 of 2014 with Spl. Crl. Appln.No.1748 of 2014 dated 09.05.2014); (v)VIJAY MADANLAL CHOUDHARY VS. UNION OF INDIA AND ANR. (W.P.Nos.4336, 4....
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....ivided family, (iii)a company, (iv)a firm, (v)an association of persons or a body of individuals, whether incorporated or not, (vi)every artificial juridical person, not falling within any of the preceding sub-clauses, and (vii)any agency, office or branch owned or controlled by any of the above persons mentioned in the preceding sub-clauses; (sa)"person carrying on designated business or profession" means,- (i)a person carrying on activities for playing games of chance for cash or kind, and includes such activities associated with casino; (ii)a Registrar or Sub-Registrar appointed under section 6 of the Registration Act, 1908 (16 of 1908) as may be notified by the Central Government; (iii)real estate agent, as may be notified by the Central Government; (iv)dealer in precious metals, precious stones and other high value goods, as may be notified by the Central Government; (v)person engaged in safekeeping and administration of cash and liquid securities on behalf of other persons, as may be notified by the Central Government; or (vi)person carrying on such other activities as the Central Government may, by notification, so designate, from time-to-time; ....
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....ce on affidavits; (e) issuing commissions for examination of witnesses and documents; and (f) any other matter which may be prescribed. (2) The Director, Additional Director, Joint Director, Deputy Director or Assistant Director shall have power to summon any person whose attendance he considers necessary whether to give evidence or to produce any records during the course of any investigation or proceeding under this Act. (3) All the persons so summoned shall be bound to attend in person or through authorised agents, as such officer may direct, and shall be bound to state the truth upon any subject respecting which they are examined or make statements, and produce such documents as may be required. (4) Every proceeding under sub-sections (2) and (3) shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code, 1860 (45 of 1860)." 12.5. Section 50(2) gives sufficient ammunition to an authority to summon any person whose attendance is considered necessary. The word shall is to be interpreted to mean absolute power to seek attendance ofcourse to a subjective satisfaction. Such a power can be exercised requir....
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....cy. Idea is to avoid any obstacle that might arise through the operation of other enactments. 13. Code of Criminal Procedure, 1973: Section 160 of the Code of Criminal Procedure comes under Chapter XII which deals with information to police and their power to investigate. Section 160 of the Code of Criminal Procedure deals with the power of the police officer to require attendance of witnesses. Proviso to section carries out an exception when it comes to a woman. Thus, she shall not be required to attend the enquiry at any place other than the place in which she resides. Under Section 161 of Cr.P.C, a witness can be examined by the police. However, a statement made by any person during the course of investigation shall not be signed and used in evidence except to the extent provided under the Code. 14. Comparison between the Code and Act 15 of 2003: 14.1. Both the Code and the Act travel on their respective channels. Under the Code investigation is done by the police over a crime. On the contrary, under Act 15 of 2003, an authority has got different roles to play, in tune with the objectives. While Section 50(2) of the Act 15 of 2003 speaks of an authorised agent, the same is m....
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.... the most harmonious manner in which both the enactments can be parallely invoked would be to ensure that the provisions of Code of Criminal Procedure are not read into or invoked wherever the Act itself specifically provides for the same. 15. Case on Hand:- While dealing with the interpretation of statutes, we are supposed to apply a reasonable, creative and fair construction principle. Unless there appears to be a dire conflict, they are to be allowed to sail in their own waters. Considering the above, one of us (M.M.Sundresh,J.) has held in STAR INDIA PRIVATE LIMITED VS. DEPARTMENT OF INDUSTRIAL POLICY AND PROMOTION, MINISTRY OF COMMERCE AND INDUSTRY, NEW DELHI AND OTHERS (W.P.Nos.44126 and 44127 of 2016 dated 23.05.2018) as follows: 6.2. Judging a statute through "literal" to "Hyden's Golden Rule" has gone through a circle. What is being applied by the Courts today is on the reasonable, creative and Fair Construction Principle. A liberal interpretation is required more in a social, welfare legislation with the objective in mind. 6.3. LORD DENNING: "A Judge should ask himself the question (how). If the makers of the Act had themselves come across this rule in the te....
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....ord of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place." 6.8. An entry in the List under the Seventh Schedule is the field of legislation. Thus the power is derived only under Article 246 of the Constitution of India. Such an entry has to be given widest amplitude of its power as against a narrow and restricted one. A liberal construction of the words in an entry is the rule. Hence legislative entries are to be interpreted broad and wide. However, the general rule of interpretation also would apply by a combined reading of provisions, objects and reasons put together as a whole. 6.9. R.S.REKHCHAND MOHOTA SPINNING & WEAVING MILLS LTD., VS. STATE OF MAHARASHTRA (1997) 6 Supreme Court Cases 12). "8.........The interpretation of the statute would apply to the interpretation of the entries subject to reservation that their application is of necessity conditioned by the subject-matter of the enactment itself. It should be remembered that the problem before us is to construe a word appearing in Entry 45 which is a head of legislative power. It cannot be read in a narrow or restricted sense and that....
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.... to be. It is also well settled that a Constitution must not be construed in any narrow or pedantic sense and that construction which is most beneficial to the widest possible amplitude of its power, must be adopted. An exclusionary clause in any of the entries should be strictly and, therefore, narrowly construed. No entry should, however, be so read as not (sic) to rob it of entire content. A broad and liberal spirit should, therefore, inspire those whose duty it is to interpret the Constitution, and the courts are not free to stretch or to pervert the language of an enactment in the interest of any legal or constitutional theory. Constitutional adjudication is not strengthened by such an attempt but it must seek to declare the law but it must not try to give meaning on the theory of what the law should be, but it must so look upon a Constitution that it is a living and organic thing and must adapt itself to the changing situations and pattern in which it has to be interpreted. It has also to be borne in mind that where division of powers and jurisdiction in a federal Constitution is the scheme, it is desirable to read the Constitution in harmonious way. It is also necessary that....
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....on, every State legislature has explicit power to make law for that State with respect to the matters enumerated in List II (State List) of the Seventh Schedule to the Constitution. The State's power to impose tax is derived from the Constitution. The entries in the three lists of the Seventh Schedule are not power of legislation but merely fields of legislation. The power is derived under Article 246 and other related articles of the Constitution. The legislative fields are of enabling character designed to define and delimit the respective areas of legislative competence of the respective legislatures. There is neither implied restriction imposed on the legislature nor is any duty prescribed to exercise that legislative power in a particular manner. But the legislation must be subject to the limitations prescribed under the Constitution. 20. When the vires of an enactment is challenged, it is very difficult to ascertain the limits of the legislative power. Therefore, the controversy must be resolved as far as possible, in favour of the legislative body putting the most liberal construction upon the relevant legislative entry so that it may have the widest amplitude. The co....
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....sfied that the provisions contained in both the enactments sought to be impugned with respect to one of them are irreconcilable and such inconsistency appears so apparent. In the absence of a direct conflict or collision between the two enactments, one cannot be held as contrary to the other. In such a case, even if there is an incidental overlapping, it would not violate the provisions. Occasional vagaries do not matter much. 7.3. By a general principle, a special Act is to be given primacy over a general one. However, this also has to be seen on the provisions governing both enactments. There may be a case where General Act may have the substantive provision as against the special one. 7.4. In MACQUARIE BANK LIMITED VS. SHILPI CABLE TECHNOLOGIES LIMITED ((2018) 2 Supreme Court Cases 674), the Supreme Court has considered the principle governing interpretation through the following paragraphs. "27. Equally, Dr. Singhvi s argument that the Code leads to very drastic action being taken once an application for insolvency is filed and admitted and that, therefore, all conditions precedent must be strictly construed is also not in sync with the recent trend of authorities as has ....
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....cited Raghunath Rai Bareja v. Punjab National Bank, (2007) 2 SCC 230 and relied upon paragraphs 39 to 47 for the proposition that the literal construction of a statute is the only mode of interpretation when the statute is clear and unambiguous. Paragraph 43 of the said judgment was relied upon strongly by the learned counsel, which states: In other words, once we depart from the literal rule, then any number of interpretations can be put to a statutory provision, each judge having a free play to put his own interpretation as he likes. This would be destructive of judicial discipline, and also the basic principle in a democracy that it is not for the Judge to legislate as that is the task of the elected representatives of the people. Even if the literal interpretation results in hardship or inconvenience, it has to be followed (see G.P. Singh's Principles of Statutory Interpretations, 9th Edn., pp. 45-49). Hence departure from the literal rule should only be done in very rare cases, and ordinarily there should be judicial restraint in this connection. 30. Regard being had to the modern trend of authorities referred to in the concurring judgment in Ms. Eera through Dr. Man....
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....uiry. Here, the institution of the prosecution means taking any steps in respect thereof before the Special Court. The scheme of the Act nowhere contemplates that it was intended that steps at pre-cognizance stage shall be taken before a court other than a Special Court. We may note an illustration given by Mr Salve referring to Section 157 of the Code. Learned counsel submitted that the report under that section is required to be sent to a Magistrate empowered to take cognizance of offence. In relation to offence under the Act, the Magistrate has no power to take cognizance. That power is exclusively with the Special Court and thus report under Section 157 of the Code will have to be sent to the Special Court though the section requires it to be sent to the Magistrate. It is clear that for the expression Magistrate in Section 157, so far as the Act is concerned, it is required to be read as Special Court and likewise in respect of other provisions of the Code. If the expression Special Court is read for the expression Magistrate , everything will fall in line. This harmonious construction of the provisions of the Act and the Code makes the Act work. That is what is required by pri....
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.... objective of giving effect to a consistent legislative policy. On the other hand, where a general statute and a specific statute relating to the same subject-matter cannot be reconciled, the special or specific statute ordinarily will control. The provision more specifically directed to the matter at issue prevails as an exception to or qualification of the provision which is more general in nature, provided that the specific or special statute clearly includes the matter in controversy (Edmond v. United States [137 L Ed 2d 917 : 520 US 651 (1997)] , Warden v. Marrero [41 L Ed 2d 383 : 417 US 653 (1974)] ). 45. More recently, in Binoy Viswam v. Union of India (2017) 7 SCC 59 at 132, this Court construed the Income Tax Act, 1961 and the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 harmoniously in the following manner: 98. In view of the above, we are not impressed by the contention of the petitioners that the two enactments are contradictory with each other. A harmonious reading of the two enactments would clearly suggest that whereas enrolment of Aadhaar is voluntary when it comes to taking benefits of various welfare schemes ....
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....pay sales tax, etc., cannot be destroyed by implication or inference, notwithstanding the fact that banks, etc. fall in the category of secured creditors. 49. Since there is no clear disharmony between the two Parliamentary statutes in the present case which cannot be resolved by harmonious interpretation, it is clear that both statutes must be read together. Also, we must not forget that Section 30 of the Advocates Act deals with the fundamental right under Article 19(1)(g) of the Constitution to practice one s profession. Therefore, a conjoint reading of Section 30 of the Advocates Act and Sections 8 and 9 of the Code together with the Adjudicatory Authority Rules and Forms thereunder would yield the result that a notice sent on behalf of an operational creditor by a lawyer would be in order. 7.5. In KSL AND INDUSTRIES LIMITED VS. ARIHANT THREADS LIMITED AND OTHERS ((2015) 1 Supreme Court Cases 166), it is held as under. This Court in solidaire case approved the observations of the Special Court to the effect that if the legislature confers a non-obstante clause on a later enactment, it means that the legislature intends that the later enactment should prevail. Further, i....
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....nded to lay down an exhaustive Code in respect of the subject-matter replacing the earlier law; (3) Whether the two laws occupy the same field. (See: Pt. Rishikesh and Anr. vs. Salma Begum (Smt.) 1995 (4) SCC 718 ), and Shri A.B. Krishna & Ors. vs. The State of Karnataka & Ors. 1998 (1) JT 613 ). 8.The doctrine of implied repeal is based on the theory that the Legislature, which is presumed to know the existing law, did not intend to create any confusion by retaining conflicting provisions and, therefore, when the court applies the doctrine, it does not more than give effect to the intention of the Legislature by examining the scope and the object of the two enactments and by a comparison of their provisions. The matter in each case is one of the construction and comparison of the two statutes. The Court leans against implying a repeal, "unless two Acts are so plainly repugnant to each other that effect cannot be given to both at the same time, a repeal will not be implied, or that there is a necessary inconsistency in the two Acts standing together." (See Craies on Statute Law, Seventh Edition, page 366, with reference to Re: Berrey [1936] Ch. 274 ). To determine whether ....
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....ined prejudice in the following manner: Prejudice is the spider of the mind. It is the womb of injustice. When an apparent bias transforms itself into a womb of injustice then, it has to be struck down by the Courts. 6. Bias can be divided into three parts. They are: (i) Pecuniary Bias (ii) Personal Bias and (iii) Official Bias. 7. We are primarily concerned with personal and official bias. Bias may also occur by a combination of these two. When an authority, plays a role being predominant in nature, cannot thereafter take a different role leading to a positive or potential conflict with the earlier one. This mixture of two roles would create either likelihood of bias or reasonable apprehension of bias. The source of the potential bias has to be a personal interest for it to be potentially objectionable in law. 8. The Courts have evolved the principles governing bias i.e., real likelihood of bias test and reasonable suspicion test. For the real likelihood of bias test, the paramount consideration is from the point of view of a fair minded informed observer. Insofar as the reasonable suspicion test is concerned, the test is from the point of view of a reasonable co....
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....w principle, which has been evolved by the Courts. There is very little difference between a real likelihood and a reasonable suspicion of bias in practice. It is ultimately for the Courts to decide that there exists a bias or not. After all, the test of likelihood or reasonable suspicion is a mere instrument in identifying an element of bias. 10.Coming to an official bias, it can transform into legal malice at times but not in every case. To decide as to whether there exists a likelihood or reasonable suspicion of bias, the test shall not be unacceptably high considering the concept and proof of bias. 11. An apparent bias can be identified with the relative ease in pecuniary and personal as against official. Deciphering an official bias is an arduous job for a Court. That is the reason why the tests of likelihood or reasonable suspicion of bias is required to be used. 13. In State of Gujarat v. R.A. Mehta, (2013) 1 MLJ 362 (SC), while dealing with the doctrine of bias, the Apex Court held that reasonable suspicion that there is likelihood of bias affecting decision would be sufficient to invoke the doctrine of bias. Therefore, in effect the test of likelihood of bias or reas....
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....authority to disregard the rights of others, which intent is manifested by its injurious acts. (Vide Addl. Distt. Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207; Smt. S.R. Venkataraman v. Union of India, AIR 1979 SC 49; State of A.P. v. Goverdhanlal Pitti, AIR 2003 SC 1941; Chairman and M.D., B.P.L. Ltd. V. S.P. Gururaja & Ors., (2003) 8 SCC 567; and West Bengal State Electricity Board v. Dilip Kumar Ray, AIR 2007 SC 976). 26. Passing an order for an unauthorized purpose constitutes malice in law. (Vide Punjab State Electricity Board Ltd. v. Zora Singh & Ors., (2005) 6 SCC 776; and Union of India Through Government of Pondicherry & Anr. v. V. Ramakrishnan & Ors., (2005) 8 SCC 394). 17.3.It is an admitted fact that initially the appellant was permitted to appear through the authorised agent. The impugned notice was issued on finding certain new facts and contradiction in the statements given, which could not be satisfactorily explained by the authorised agent. The appellant has been rendering a professional service by travelling extensively throughout the country. While doing so, the question of determination of sex did not stand in any way. However, for appearing b....
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....tigation of women, it was held that the provision of Section 160 of the Code will apply. To be noted, there is no pari materia provisions under the FERA Act as contained in Act 15 of 2003 with specific reference to Sections 52, 65 and 72. Further, the petitioner therein was apprehending trouble at the hands of her husband and therefore, the aforesaid case is distinguishable on facts. 18.2. In M/S PUSMA INVESTMENT PVT. LTD., AND OTHERS VS. STATE OF MEGHALAYA AND OTHERS ((2010) Criminal Law Journal 56), the Gauhati High Court was interpreting Section 160 of the Code of Criminal Procedure. It was a case where a notice was issued by the police for involving in IPC offence. Hence, the said decision has got no application. 18.3. The Gujarat High Court in FOZIYA SAMIR GODIL VS. UNION OF INDIA AND TWO OTHERS (Spl. Crl. Application (Direction) No.1725 of 2014 with Spl. Crl. Appln. No.1748 of 2014 dated 09.05.2014) was in fact dealing with the very same issue. After going through the abovesaid judgment, we are of the view that inasmuch as there is no conflict between Section 52 of the Act and Section 160 of the Code, it is not mandatory in all cases a woman shall never be called whatever b....