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Gyanvapi Mosque Case: Protect Area Where Shivalinga Found, No Restrictions On Muslims’ Rights To Pray: SC

  • In Committee Of Management Anjuman Intezamia Masajid Varanasi vs Rakhi Singh and ors. the Hon’ble Apex Court has held that the order passed by the Civil Judge Senior Division at Varanasi where a shivalinga was claimed to have been found does not restrict the rights of the muslims to offer namaz and observe other religious practices. 
  • The Court observed that the orders of the Civil Judge Senior Division dated 18-8-2021, 5-04-2022 and 8-04-2022 were questioned before the single judge of the HC of Allahabad under Article 227 of the Constitution. The Single Judge, via an order dated 21-04-2022 had rejected the petition. 
  • In pursuance of this order of the Trial Court Judge, the Commissioner commenced the workings of the Commission on 14 and 15 May, 2022. During the course of this execution, an application was filed before the Trial Court Judge on 16 May, 2022, in which it was prayed that the Waju Khana  be sealed by CRPF personnel with proper force and that the Muslims be forbidden to offer namaz in the Mosque. It was also prayed that not more than 20 Muslims be allowed to offer namaz, and that the use of the Waju Khana be stopped immediately. 
  • On this application, the Trial Court Judge ordered that the DM, Varanasi would be responsible for ensuring that the area in which the Sivlinga was found is sealed immediately and entry of any persons in the restricted area be prohibited immediately. Thus, the application was allowed. 
  • The Learned Counsel appearing on behalf of the petitioner argued that the order of the Trial Court Judge is susceptible to the interpretation that the entirety of the reliefs which were sought had been allowed. It was urged that the order was passed ex-parte when the work of the Commission was in progress and that they question the orders of a survey on the ground of jurisdiction.
  • A bench comprising DY Chandrachud and PS Narasimha observed that the order of the Learned Trial Court Judge would stand restricted to the extent that the DM would ensure that the area where the shivalinga was stated to have been found shall be duly protected. 
  • This direction would, in no way, curtail the rights of the Muslims to access  the Mosque for the purpose of performing namaz or other religious activities. 
  • The present dispute pertains to the land where the Gyanvapi Mosque is situated, and has been in dispute since 1991. In 1991, a suit was filed by the devotees of the Kashi Vishwanath Temple near which the Gyanvapi Mosque is situated, alleging that the Mosque was built after Lord Vishweshwar’s temple was destroyed by Emperor Aurangzeb. 
  • Another dispute was filed by female worshippers of Lord Shiva in 2021 seeking restoration of the performance of rituals at the principal seat of the Ancient Temple in the Gyanvapi Mosque area. 
  • The Court has, in the case, appointed two more lawyers as Commissioners to assist the Court Commissioner Ajay Mishra for the survey and a report had to be filed before the Court by 17 May. 

Default In The Payment Of Rent Cannot Justify Passing Of An Order Striking Off The Defence Of The Defaulting Tenant: Delhi HC

  • In the recent case, RASHI MISRA v. B KALYANA RAMAN, the Hon’ble Delhi HC observed that an order for striking off the petitioners’ defense under Order XVA (1) is statutorily subject to Order XVA(2) that is read in conjunction, mere default in payment of rent as directed by the Court under Order XVA(1) cannot, ipso facto, justify the passing of an order striking off the defense of the defaulting tenant.
  • In the instant case, the present petitioner assailed the judgment passed by the learned Additional District Judge (ADJ) before the Hon’ble Delhi HC.
  • In the lis filed by the respondent against the petitioner and had sought eviction of the petitioner from the premises of the respondent. The respondent’s case in the suit was that the petitioner was the respondent’s tenant vide lease deed dated 22nd February 2017, followed by a rent agreement for a further period executed on 04th January 2018. The petitioner had failed to vacate the premises despite the expiry of the tenancy despite extension and hence, the respondent filed a civil suit against the petitioner and sought possession, permanent injunction, and damages.
  •  
  • In the application under Order VII Rule 11, CPC proceedings, the petitioner filed an application under Order VII, Rule 11 and submitted that the respondent had concealed a lease deed dated 18th November 2018, and that, if the lease deed were taken into account, the plaint would be liable to be dismissed.
  • The learned ADJ had held that an application under Order VII Rule 11, could be decided only on the basis of the averments contained in the plaint, and averments contained in the written statement or documents that the defendant had sought to place on record could not be taken into account while adjudicating an application under Order VII, Rule 11 as settled inter alia by Saleem Bhai v. the State of Maharashtra (2002) and Madanuri Sri Rama Chandra Murthy v. Syed Jalal (2019). 
  • Thus, the Court upheld the order passed by learned ADJ and rejected the petitioners’ application under Order VII Rule 11 of the CPC and Section 340, Cr PC. 
  • The Court mentioned in Madho Singh Chauhan v. Smriti(2010) that the Court is statutorily bound, under Order XVA (2) to, prior to the passing of an order striking off the defense, serve a notice on the defaulting tenant, to show cause as to why the defendant should not be struck off and, to consider the cause if any, shown by the tenant in that regard. 
  • The Court took the view from Taylor v. Taylor (1875),  Nazir Ahmed v. King-Emperor (1936), and State of UP v. Singhara Singh (1964), that where the law requires an act to be done in a particular manner, it has to be done in that manner, or not done at all.
  • The Court held that for non-compliance with the provisions of Order XVA(2), the impugned order, striking off the petitioners’ defense cannot be sustained as it has been taken without the discipline envisaged in Order XVA (2) and accordingly quashed and set aside. 

Commission Paid To Relatives Of Directors Who Did Not Render Service In Business Of Assessee Liable To Be Taxed: Orissa HC

  • In the recent case, the Hon’ble Orissa HC quashed an appeal by the assessee against the order passed by the Income Tax Appellant Tribunal (ITAI), Cuttack Bench for the Assessment Year (AY) 2010-11.
  • The Court favored the Assessing Officer’s (AO) decision to partly allow the commission expenses and disallow a certain amount which was then added to the returned income of the appellant.
  • The background fact of the case was that the appellant during the AY 2010-11 was engaged in the business of manufacturing and sale. The filed income tax return for the AY 2010-11 was scrutinized and a statutory notice was sent along with a questionnaire to the appellant by the AO.
  • During the examination, the AO had raised an inquiry regarding payment of commission to the tune of Rs. 53,49,790/- and asked the appellant to substantial the same.The explanation given by the Appellant was that it had obtained an export order for the supply of Iron Ore Fines (IOF). The supply was time-bound and since the materials could not be gathered by the Directors of the Company themselves, they engaged their relatives for procurement of IOF. For this, the commission was paid to each of them through banking channels after deducting Tax at Source (TDS). 
  • Each of the commission agents had disclosed the said commission amount in their respective income tax report. Hence, the petitioner for appellant claimed that no adverse inference should be drawn against the appellant. 
  • The appellant, then, had appeared before the Commissioner of Income Tax (appeal) against the assessment order where the AO partly disallowed the commission which was then added to the returned income of the Appellant.The appeal was dismissed as it was observed that the persons to whom the commission was paid were Directors or their relatives. The appeal was not accepted by the CIT (A).
  • Aggrieved by the CIT, the appellant went before ITAT where the actual payment was greatly probed. It was noticed that the appellant had admitted that 7 individuals to whom the commission had been paid, 3 were Directors of the Company, and 4 were relatives of the Directors.
  • The appellant had failed to prove on record their expertise to render services and also what services had in fact been rendered to enhance the business of the Appellant. Merely because TDS had been deducted, would not justify allowing the entire amount as claimed towards commission. Accordingly, the appeal was dismissed. 
  • A Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik held that all the people to whom the commission was paid were either Directors of the Company or their relatives and none of them had shown any expertise in procuring IOF from the Indian markets to meet the purchase order. 
  • The Court mentioned that it could not question the AO’s decision to disallow part of the payment towards commission was unreasonably arrived at. The test of commercial expediency was indeed applied as reiterated in J.K.Woollen Manufacturing v Commissioner of IT (1969). It did not appear to the Court, even from the point of view of a businessman that the commission amount which was allowed by the AO could be said for the purpose of the business of the Appellant and thus dismissed the appellant’s appeal. 
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