Delhi High Court
Taxmann Allied Services Pvt. Ltd. vs Casansaar Web Solution Pvt. Ltd. on 30 November, 2015
Author: Manmohan Singh
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Order delivered on: 30th November, 2015
+ CS (OS) 3400/2015
TAXMANN ALLIED SERVICES PVT. LTD. ..... Plaintiff
Through Mr.Vivek Dhokalia, Adv.
versus
CASANSAAR WEB SOLUTION PVT. LTD. ..... Defendant
Through None
CORAM:
HON'BLE MR.JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.
I.A. No.24453/2015 (exemption)
Exemption allowed, subject to just exceptions.
The application is disposed of.
CS(OS) No.3400/2015
Let the plaint be registered as a suit.
Issue summons to the defendant, on filing of process fee and
Regd. A.D. Covers within a week, returnable on 14th December, 2015.
I.A. No.24452/2015 (u/o XXXIX R.1 & 2 CPC)
1. Issue notice to the defendant, for the date fixed.
2. The plaintiff has filed a suit for permanent injunction restraining
infringement of copyright (in editorial comments/ headnotes to cases)
and unfair competition and for damages etc. against the defendant.
3. Brief facts of the case as per plaint are that the plaintiff is a
company incorporated in 1972 under the Companies Act, 1956 and is
a leading publisher known for high standard, accuracy and timely
publishing of information and whose publications in the field of tax,
corporate and commercial laws are well known and popular with its
target readership comprising of Chartered Accountants, Cost
Accountants, Company Secretaries, Finance, Tax and Legal
Professionals, Judicial Officers, students studying for these courses,
Enforcement Officials, competent administrative authorities and other
Government functionaries.
4. Some of the well-known journals of the plaintiff which are highly
popular and sold all over India are: taxman- The Tax Law Weekly;
Selected Orders of ITAT, Income Tax Tribunal Decisions, Goods and
Services Tax Cases, Corporate Professionals Today, SEBI and
Corporate Laws, International Taxation. With the advent of the
internet/web-technology in India, in 2007 the plaintiff also commenced
the use of the on-line electronic medium for publishing and selling its
publications (including case law reports on subscription basis) and
online business of now constitutes a significant part of its business
activity. Since 2010, the plaintiff has been publishing case law reports
(decisions with its head notes) on its website www.taxmann.com
which is available to its paid subscribers.
5. Defendant is a private limited company which owns the website
www.casansaar.com. The case of the plaintiff against the defendant is
that towards the end of July, 2015 it came to the knowledge of the
plaintiff that its editorial comments/ head notes (factual summary and
case ratio given under the 'Held' section) had been fully copied by the
defendant in large number of cases and these were available on its
free website of the defendant. A preliminary review by the plaintiff of
the cases on defendant's website was limited to the period 2013 -
July, 2015 which confirmed wholesale and extensive identical/verbatim
copying done by the defendant in about 1487 cases out of about 2800
cases (with citations) uploaded by it in the last 4 years (that is, on
average about 51% for 4 years since 2012 but higher in 2014 and
2015 being about 85%-90% in these 2 years).
6. Thereafter, the plaintiff issued legal notice dated 7th August,
2015 to the defendant which was returned undelivered with the
remark 'Party not accepted'. On 7th October, 2015 the plaintiff issued
another legal notice to the defendant. However, the defendant failed
to comply with the notice.
7. Learned counsel for the plaintiff submits that these editorial
comments/case head notes are developed independently by qualified
and skilled editorial team consisting of Chartered Accountants,
Company Secretaries and law graduates after expending considerable
efforts and substantial expense and are proprietary material which
qualify as original 'literary works' under Section 2(o) of the Copyright
Act, 1957 and are entitled to copyright protection under Sections 13
and 14(a) of the Act and hence, the exclusive right to use thereof
vests in the plaintiff only and no one else can use the same without
the authority of the plaintiff.
8. Learned counsel for the plaintiff has given the examples of two
cases in this regard which reads as under:-
Plaintiff's Head Notes Defendant's Head Notes
Akzo Nobel Coatings India (P.) Ltd.
v.
Deputy Commissioner of Income-tax,
LTU, Bangalore
Section 43(6), read with sections Section 43(6), read with sections
32 and 43(1), of the Income-tax 32 and 43(1), of the Income-tax
Act, 1961 Written down value- Act, 1961 -Written down value-
Assessment years 2001-02 to Assessment years 2001-02 to
2007-08-Assessee purchased 2007-08-Assessee purchased
plant and machinery in 1996 at a plant and machinery in 1996 at a
price of Rs. 13.48 crore for which price of Rs. 13.48 crore for which
it took loan of same amount from it took loan of same amount from
a group concern -'Actual cost' a group concern- 'Actual cost'
was shown in books and was shown in books and
depreciation was claimed-In depreciation was claimed- In
2000 parent company waived 2000 parent company waived
loan and such waiver was shown loan and such waiver was shown
as a capital receipt in balance as a capital receipt in balance
sheet; however assessee did not sheet; however assessee did not
make any adjustment in its make any adjustment in its books
books recognising writing off of recognising writing off of amount
amount payable for purchase of payable for purchase of plant and
plant and machinery and machinery and continued to claim
continued to claim depreciation depreciation which was being
which was being allowed till allowed till 200405 when
2004-05 when Assessing Officer Assessing Officer came to know
came to know about waiver of about waiver of loan-
loan- Consequently, Assessing Consequently, Assessing Officer
Officer reopened assessment for reopened assessment for
assessment years 2001-02 to assessment years 2001-02 to
2003-04 and reworked w.d.v. by 2003-04 and reworked w.d.v. by
reducing it to extent of waived reducing it to extent of waived
loan invoking provisions of loan invoking provisions of
section 43(6)(c)- Whether since section 43(6)(c) -Whether since
there was no sale or discarding there was no sale or discarding or
or demolishing or destruction of demolishing or destruction of any
any assets comprising in block of assets comprising in block of
assets during previous year, assets during previous year,
provisions of section provisions of section 43(6)(c)(i)
43(6)(c)(i)(B) could not have (B) could not have been invoked
been invoked on ground of on ground of waiver of loan-
waiver of loan- Held, yes- Held, Yes- Whether further since
Whether further since concept of concept of 'actual cost' as defined
'actual cost' as defined under under section 43(1) is applicable
section 43(1) is applicable only in only in year of purchase of
year of purchase of assets, actual assets, actual cost of Rs.13.48
cost of Rs. 13.48 crore recorded crore recorded in 1997-98 could
in 1997-98 could not have been not have been disturbed in 2001-
disturbed in 2001-02-Held, yes- 02 Held, yes- Whether in that
Whether in that regard there was regard there was a lacuna in law
a lacuna in law inasmuch as on inasmuch as on one hand
one hand assessee got waiver of assessee got waiver of monies
monies payable on purchase of payable on purchase of
machinery and claimed such machinery and claimed such
receipt to be not taxable in view receipt to be not taxable in view
of it being capital receipt and on of it being capital receipt and on
other hand assessee claimed other hand assessee claimed
depreciation on value of depreciation on value of
machinery for which it did not machinery for which it did not
incur any cost- Held, yes- incur any cost Held, yes Whether,
Whether, therefore, under law therefore, under law revenue had
revenue had no remedy and, no remedy and, therefore,
therefore, disallowance of disallowance of depreciation
depreciation could not be could not be sustained- Held,yes
sustained- Held, yes [Para 22] [Para 22] [Partly in favour of
[Partly in favour of assessee] assessee] Circulars &
Circulars & Notifications : Circular Notifications : Circular No. 469,
No. 469, dated 23-9-1986 and dated 23-9-1986 and Circular No.
Circular No. 772, dated 23-12- 772, dated 23-12-1998.
1998.
Pothina Venkateswara Swamy
v.
Assistant Commissioner of Income-tax,
Central Circle, Vijayawada
Section 69B, read with section Section 69B, read with section
147, of the Income-tax Act, 147, of the Income-tax Act, 1961
1961- Undisclosed investments -Undisclosed investments
(Construction expenses) - (Construction expenses) -
Assessment year 1992-93 - Assessment year 1992-93 -
Assessees jointly constructed a Assessees jointly constructed a
godown and showed certain cost godown and showed certain cost
of construction in their returns - of construction in their returns -
Assessments were made Assessments were made
accordingly- Thereafter, accordingly- Thereafter,
Assessing Officer reopened Assessing Officer reopened
assessments on ground that assessments on ground that
valuation cell of department valuation cell of department
determined cost of construction determined cost of construction
at higher figure- He made at higher figure- He made
addition under section 69B of addition under section 69B of
amount of difference between amount of difference between
cost of construction admitted in cost of construction admitted in
assessment and value assessment and value
determined by valuation cell - determined by valuation cell -
Whether reopening of Whether reopening of
assessment was justified -Held, assessment was justified -Held,
yes [Para 7] [In favour of yes [Para 7][In favour of
revenue] Section 254 of the revenue] Section 254 of the
Income-tax Act, 1961- Appellate Income-tax Act, 1961- Appellate
Tribunal -Powers of (Power to Tribunal -Powers of (Power to
rectify mistake)- Assessment rectify mistake) -Assessment
year 1992-93-Whether Tribunal year 1992-93 Whether Tribunal
should be deemed to have taken should be deemed to have taken
into account every aspect of into account every aspect of
appeal that is placed before it, appeal that is placed before it,
and if on any aspect of appeal and if on any aspect of appeal
appellate forum is silent, it can appellate forum is silent, it can
be deemed to have concurred be deemed to have concurred
with view expressed by forum with view expressed by forum
from which order under appeal from which order under appeal
has arisen and it would not be has arisen and it would not be
deemed to be mistake apparent deemed to be mistake apparent
from record- Held, yes [Paras 11 from record-Held, yes [Paras 11
& 13][In favour of revenue]. & 13][In favour of revenue].
9. Perusal of the above cases shows that the head notes of the
defendant are almost similar to that of the plaintiff.
10. Thus, the plaintiff has been able to make out a strong prima
facie case for grant of ad interim injunction. Hence, till the next date,
the defendant is restrained from continuing with the infringement of
plaintiff's copyright in its editorial comments/case Head-notes. They
are directed to remove the existing infringing material from its website
www.casansaar.com, which may amount to infringement of plaintiff's
copyright as claimed.
11. Compliance of Order XXXIX Rule 3 CPC be made within one
week.
(MANMOHAN SINGH)
JUDGE
NOVEMBER 30, 2015
