21010126202,

21010126008

SYMBIOSIS LAW SCHOOL, PUNE - NOVICE MOOT ELIMINATION

2021-2022

BEFORE THE HON'BLE SUPREME COURT

UNDER ARTICLE 32 AND ARTICLE 136 OF THE CONSTITUTION OF REPUBLIC

OF INDUS

IN THE MATTER OF

PUBLIC INTEREST LITIGATION NO. ____/2021

NATIONAL HEALTH CARE UNION
(PETITIONER)
v.

TRUMPEST AND CO.

(RESPONDENT)

HEARD ALONG WITH

SPECIAL LEAVE PETITION NO.____/2021

BIDENCO INDUS LTD.
(PETITIONER)
v.
TRUMPEST AND CO.
(RESPONDENT)

MEMORIAL ON BEHALF OF THE RESPONDENT

 SYMBIOSIS LAW SCHOOL, PUNE- NOVICE MOOT ELIMINATION 2021-2022

TABLE OF CONTENTS

LIST OF ABBREVIATIONS..................................................................................................IV

INDEX OF AUTHORITIES....................................................................................................VI

STATEMENT OF JURISDICTION........................................................................................XI

STATEMENT OF FACTS....................................................................................................XIII

ISSUES PRESENTED.........................................................................................................XIV

ISSUE I: WHETHER TRUMPEST & CO. CAN BE HELD LIABLE FOR THE DAMAGE CAUSED DUE
TO THE LEAK OF URANIUM FROM ONE OF ITS PRODUCTION SITES......................................... XIV

ISSUE II: WHETHER BIDENCO INDUS LTD. IS ENTITLED UNDER THE CONTRACT DATED
FEBRUARY 14, 2021, TO REFUSE THE INVESTMENT OF 30 MILLION EUROS FROM THE MONTH OF
AUGUST 2021........................................................................................................................ XIV

SUMMARY OF ARGUMENTS...........................................................................................XV

ARGUMENTS ADVANCED...................................................................................................1

ISSUE I: WHETHER TRUMPEST & CO. CAN BE HELD LIABLE FOR THE DAMAGE CAUSED DUE TO
THE LEAK OF URANIUM FROM ONE OF ITS PRODUCTION SITES..................................................1

[I.A] rfrfrfrfrfrfrfr...............................................................................................................1
[I.B] Principles of natural justice have not been breached...............................................2
[I.C] Arguendo- the W.P has been filed at a premature stage..........................................3
[I.C.i] AO’s speaking order is not determinative of the rights of the parties.................3
[I.C.ii] High Court’s interference at this stage undermines the legislative intent of the
Act..................................................................................................................................4
ISSUE 2: WHETHER BIDENCO INDUS LTD. IS ENTITLED UNDER THE CONTRACT DATED FEBRUARY
14, 2021, TO REFUSE THE INVESTMENT OF 30 MILLION EUROS FROM THE MONTH OF AUGUST 2021.

................................................................................................................................................5

[II.A] Essence of the contract not being time, contract cannot be frustrated.....................6

[II.B] Doctrine of Frustration will not be applicable........................................................3

[II.B.i] Subject Matter was not destroyed.......................................................................
[II.B.ii] Easily recover from the circumstances that has been changed..........................3
[II.C] Commercial Hardship can be entitled.....................................................................3

PRAYER......................................................................................................................................2

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LIST OF ABBREVIATIONS

ABBREVIATION FULL FORM

§ Section

fj Paragraph

& And

ACIT Assistant Commissioner of Income Tax

AIR All India Reporter

Anr. Another

AO Assessing Officer

art. Article

Assn. Association

A.Y Assessment Year

Bom. Bombay

Cal. Calcutta

CBDT Central Board of Direct Taxes

CIT Commissioner of Income Tax

cl. Clause

Co. Company

Corpn. Corporation

DCIT Deputy Commissioner of Income Tax

Del. Delhi

DIN Director Identification Number

ed. Edition

HC High Court

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INDEX OF AUTHORITIES

[A] CASES
1. Abraham v. ITO, AIR 1961 SC 609....................................................................................1
2. A-One Housing Complex Ltd. v. ITO, (2008) 110 ITD 361 (Del)...................................18
3. Arvinder Singh v. State of Punjab, AIR1979 SC 321..........................................................6
4. Ashok Kumar Agarwal v. Union of India, (2021) 131 taxmann.com 22 (Allahabad)......10
5. Bangalore Medical Trust v. B.S.Muddappa, (1991) 4 SCC 54............................................3
6. Bini Builders Pvt. Ltd v. Deputy CIT, (2020) 118 taxmann.com 447 (Mumbai - Trib.). 14
7. C.Ag.IT v. Cherian, (MJ) (1979) 117 ITR 371 (Ker)........................................................17
8. Calcutta Discount Ltd. Company v. Income-tax Officer, (1961) 41 ITR 191.....................2
9. CIT v. Chhabil Das Agarwal, (2014) 1 SCC 603................................................................1
10. CIT v. Baishnab Charan Mohanty, (1995) 212 ITR 199 (Ori.)...................................12, 13
11. CIT v. Devi Prasad Vishwanath Prasad, (1969) 72 ITR 194 (SC)..............................12, 19
12. CIT v. Durga Prasad More, (1971) 82 ITR 540 (SC)........................................................19
13. CIT v. Kishorilal & Santhoshilal, (1995) 216 ITR 9 (RAJ.)..............................................12
14. CIT v. Makhni & Tyagi Pvt. Ltd., (2004) 267 ITR 433....................................................18
15. CIT v. N.R. Portfolio Pvt. Ltd., (2014) 42 taxmann.com 339...........................................14
16. CIT v. Nipun Builders and Developers Pvt. Ltd., 350 ITR 407 (Del.)........................16, 19
17. CIT v. Oasis Hospitalities Pvt. Ltd., (2011) 9 taxmann.com 179................................12, 13
18. CIT v. Precision Finance Pvt. Ltd., (1994) 208 ITR 465 (Cal)..........................................12
19. CIT v. Ramendra Nath Ghosh, (1972) 4 SCC 379..............................................................1
20. CIT v. Shri Ram Narain Goel, 224 ITR 180 (Pun. & Har.)...............................................16
21. CIT v. United Commercial and Industrial Co. Pvt. Ltd., (1991) 187 ITR 596..................12
22. CIT v. Sophia Finance Ltd., (1994) 205 ITR 98................................................................15
23. Commissioner of Income-tax v. Kishorilal Santoshilal, (1995) 216 ITR 9 (RAJ.)...........18
24. GKN Driveshafts Ltd. v. Income Tax Officer and Ors., (2003) 1 SCC 72................2, 3, 10
25. Gopabandhu v Krishna Chandra, (1998) 4 SCC 447...........................................................3
26. Hamdard Dawakhana v. Union of India, AIR 1960 SC 554................................................6
27. Haji Nazir Hussain v. ITO, (2004) 271 ITR (AT) 14 (Del.)..............................................18
28. Hardwarmal Onkarmal v. CIT, (1976) 102 ITR 779.........................................................18
29. Hastimal (S) v. CIT, (1963) 49 ITR 273 (Mad.)................................................................17

30. In Re: Delhi Laws Act Case, 1951 AIR 332..........................................................................

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[B] LAWS
1. The Companies Act, 2013, § 2(68), No. 18, Acts of Parliament, 2013 (India).................16
2. The Finance Bill, 2012, Memorandum § 68, No. 12, Bills of Parliament, 2012 (India).. .15
3. The Income Tax Act, 1961, § 149 (1)(b), No. 43, Acts of Parliament, 1961 (India)..........7
4. The Income Tax Act, 1961, § 2(12), No. 43, Acts of Parliament, 1961 (India)................17
5. The Income Tax Act, 1961, § 2(18)(b), proviso, No. 43, Acts of Parliament, 1961 (India)
............................................................................................................................................ 16
6. The Income Tax Act, 1961, § 68, proviso, No. 43, Acts of Parliament, 1961 (India). 15, 16
7. The Indian Evidence Act, 1872, § 34, No. 1, Acts of Parliament, 1872 (India)................18
8. The Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act,
2020, cl. 3(1), No. 38, Acts of Parliament, 2020 (India).................................................5, 7
9. INDIA CONST. art. 226..........................................................................................................1

[C] JOURNALS
1. CA Reepal G. Tralshaala, Cash Credits – Fundamental Principles, Income from
Unexplained Sources, CHAM. OF TAX CON., 7(3) 1, 22-23 (2018)....................................18
2. Dharan V. Gandhi, Implications to provisos to section 68, Income from Unexplained
Sources, CHAM. OF TAX CON., 7(3), 1, 26-27 (2018)........................................................16

[D] BOOKS
1. BRAHMA BHARDWAJA, DELEGATED LEGISLATION IN INDIA 59 (2007)................................8
2. D. C. AGRAWAL, AJAY KUMAR AGRAWAL, TAXMANN'S LAW RELATING TO REASSESSMENT
241 (2021)..........................................................................................................................10
3. D.C AGARWAL, TAXATION OF CASH DEPOSITS AND DEPOSITS AFTER DEMONETIZATION 46
(2020).................................................................................................................................13
4. DD BASU, COMMENTARY ON THE CONSTITUTION OF INDIA 61 (9th ed, 2016);...................1
5. DR. K.S CHAUHAN, PARLIAMENT- POWERS, FUNCTIONS & PRIVILEGES: A COMPARITIVE
CONSTITUTIONAL PERSPECTIVE 288 (2013)..........................................................................8
6. KANT MANI, PRINCIPLES OF ADMINISTRATIVE LAW 102 (2018);......................................8
7. M P JAIN, INDIAN CONSTITUTIONAL LAW 1487 (7th ed. 2017).........................................1

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STATEMENT OF JURISDICTION

The Hon’ble Supreme Court of Indus has the jurisdiction to hear the matter of Natural Health
Care Union v. Trumpest and Co. under Article 32 of the constitution of Indus.
The Article 32 reads Remedies for enforcement of rights conferred by this part-
(1) The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or
writs, including writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari, whichever may be appropriate,
for the enforcement of any of the rights conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by
clause (1) and (2), Parliament may by law empower any other court to
exercise within the local limits of its jurisdiction all or any of the powers
exercisable by the Supreme Court under clause (2)
(4) The right guaranteed by this article shall not be suspended except as
otherwise provided for by this Constitution.”

Regarding the case of Bidenco Indus Ltd. v. Trumpest & Co., the Hon’ble Supreme Court has
jurisdiction under Article 136 of the Constitution of Indus.
Art. 136 states special leave to appeal by the Supreme Court-
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its
discretion, grant special leave to appeal from any judgement, decree,
determination, sentence or order in any cause or matter passed or made
by any court or tribunal in the territory of Indus
(2) Nothing in clause (1) shall apply to any judgement, determination,
sentence or order passed or made by any court or tribunal constituted by
or under any laws relating to the Armed Forces

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STATEMENT OF FACTS

Date/ Time period Event and Particulars

1990-2000 Trumpest and Co., established under the Indus Companies Act, 1956 is
a dominant player in production of medicine at very cheap and
effective rates, has 13 patents registered in its name and considered as
an investor’s paradise.
Starting of 2020
All the countries over the world suffered from a highly contagious and
fast-spreading deadly disease damaging liver and intestine caused due
to a virus named “Xia Virus”, popularly known as “Mahamari”
June 2020 Trumpest and Co. being the first and only company who claimed to
invent vaccine of Mahamari, began the trials of its vaccine “Sanjeevni”
on the discretion and under strict protocols and guidelines laid down
by Government of Indus and the WHO.
December 2020 Vaccine got approved by both WHO and Government of Indus.
January 28, 2021 Trumpest & Co. and Government of Indus held a joint press
conference to invite investors across the globe to provide funds and
industry grade uranium to fast-track process of production of vaccine
on large scale.
February 14, 2021 Bidenco (Germany) came forward and its subsidiary Bidenco Indus
Ltd. came in contract with Trumpest and Co. to invest 30 million euros
every month along with necessary quantities of uranium in exchange
of 100 million doses after every 3 months, starting from March 1,
2021, for a period of 5 years. One of the clauses of this contract
stipulated to terminate the contract in case of non-competence of the
contract at each quarter resulting to immediate stoppage of monthly
investments from Bidenco Indus Ltd.
March 1, 2021 Production of vaccines began at the plants of Trumpest and Co.
June 1, 2021 First batch of 100 million doses got delivered. CEO of Trumpest and
Co. issued press statement regarding improving the production of
vaccines substantially by improving infrastructure.
June 21, 2021 WHO officials and some officials of government came for inspection
of one of the sites of vaccine production in state of Hoenn, where one

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of the WHO officials accidentally opened a ventilator and disposal

system of Uranium storage area leading to a leak of uranium around
site, resulting in halt at production site for almost 20 days.
Site being located at a distance from 50kms from the nearest human
civilization, severe effects were shown on plants and animals. Several
humans were also affected.
Natural Health Care Union, NGO filed a PIL seeking compensation
from Trumpest and Co. for the damage caused by uranium leak.
Trumpest and Co. decided to contest the case on relevant grounds.
July 15, 2021 Bidenco Indus Ltd. issued a notice to Trumpest and Co. regarding non-
obligation to fulfill the contract as the production process halted in one
of their manufacturing plants for 20 days.
Later in July Trumpest and Co. approached High Court of Hoenn to make Bidenco
Indus Ltd. to specifically perform their part by investing 30 million
euros in the month of August which they refused to perform and the
statement issued on July 15 by Bidenco Indus Ltd. was invalid as per
law.
The High Court of state of Hoenn ruled in favour of Trumpest and Co.
and directed Bidenco Indus Ltd. to perform their obligations.
Bidenco Indus Ltd. filed a special leave petition in the Supreme Court
of Indus against the ruling of the High Court regarding the same.
The laws of The Republic of Indus are pari-materia to the laws of The
Republic of India, a south Asian democratic state.

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STATEMENT OF ISSUES

The following issues are presented before this Hon’ble Court for its consideration:

~ISSUE I~

ISSUE I: WHETHER TRUMPEST & CO. CAN BE HELD LIABLE FOR THE DAMAGE CAUSED DUE
TO THE LEAK OF URANIUM FROM ONE OF ITS PRODUCTION SITES.

~ISSUE II~

ISSUE II: WHETHER BIDENCO INDUS LTD. IS ENTITLED UNDER THE CONTRACT DATED
FEBRUARY 14, 2021, TO REFUSE THE INVESTMENT OF 30 MILLION EUROS FROM THE MONTH
OF AUGUST 2021.

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SUMMARY OF ARGUMENTS

ISSUE I: WHETHER TRUMPEST & CO. CAN BE HELD LIABLE FOR THE
DAMAGE CAUSED DUE TO THE LEAK OF URANIUM FROM ONE OF ITS
PRODUCTION SITES

It is contended that the Writ Petition filed by the Petitioner against the Notice received u/s
148 of the Act is not maintainable as the alternate efficacious remedy provided under the Act
has not been exhausted. It is further contended that the Petitioner is not entitled to
circumvent the statutory remedy in the absence of breach of principles of natural justice by
the assessing officer. Further, it is contended that the writ has been filed at a premature
stage as the AO’s speaking order is not determinative of the rights of the parties and does not
have civil consequences. It is further argued that the High Court’s interference at this stage
of proceedings would render the reassessment proceedings redundant and would undermine
the legislative intent of the statute. It is therefore submitted that the present writ petition is
not maintainable under Article 226 of the Constitution.

ISSUE II: WHETHER BIDENCO INDUS LTD. IS ENTITLED UNDER THE

CONTRACT DATED FEBRUARY 14, 2021, TO REFUSE THE INVESTMENT OF
30 MILLION EUROS FROM THE MONTH OF AUGUST 2021

It is contended that the special leave petition filed by the Bidenco Indus Ltd. against the
notice received under article 136 in the Supreme Court of Indus, is not maintainable on the
grounds

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ARGUMENTS ADVANCED

ISSUE I: WHETHER TRUMPEST & CO. CAN BE HELD LIABLE FOR

THE DAMAGE CAUSED DUE TO THE LEAK OF URANIUM FROM
ONE OF ITS PRODUCTION SITES

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ISSUE II: WHETHER BIDENCO INDUS LTD. IS ENTITLED

UNDER THE CONTRACT DATED FEBRUARY 14, 2021, TO

REFUSE THE INVESTMENT OF 30 MILLION EUROS FROM THE

MONTH OF AUGUST 2021

1. It is humbly contended that the SLP filed under article 136 of the Consitution of Indus is

not maintainable as the [A] Essence of the contract not being time, contract cannot be

made void and; [B] Doctrine of Frustration will not be applicable

[II.A] Essence of the contract not being time, contract cannot be frustrated

2. Section 55 of the Contracts Act, 1872 declares that “if it was not the intention of the

parties that time should be of the essence of the contract, the contract does not become

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voidable by the failure to do such things at or before time” 1. In the case A.P. SEB v

PATEL AND PATEL2, owing to delay on the part of contractor to supply certain goods to

the State Electricity Board by the prescribed date, and the court finding no evidence of the

parties’ intention regarding time as essence, held that the state board was bound to accept

delayed deliveries.

3. It is contended in this case that the essence of the contract was in public interest as the

vaccines are made to immunize everyone from the deadly “Xia Virus”. The production

halted at only one of the sites for around 20 days, other sites being working regularly to

complete the contract. Completing and providing vaccines being obligatory in nature,

Trumpest and Co. is bound to improve its infrastructure as to meet the specific obligations

as mentioned by the Mrs. Harris, CEO of Trumpest and Co. Thus, it will be unfair on

their part to frustrate the contract due to anticipation.

[II.B] Doctrine of Frustration will not be applicable

4. It is humbly contended that the doctrine of frustration will not be applicable and Bidenco

Indus Ltd. can not make the contract void due to certain specific grounds mandatory to

establish frustration which are not present in the case [II.B.i] Subject matter was not

destroyed [II.B.ii] Easily recover from the circumstances that has been changed

[II.B.i] Subject matter was not destroyed

5. Here, the doctrine of impossibility applies with full force “where the actual and specific

subject-matter of the contract has ceased to exist”3. In Taylor v. Caldwell4, a promise to

1
2

3
4

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let out music hall was frustrated on the destruction of the hall, the subject matter in this

case. After seeing another illustration of the case Howell v. Coupland 5, where the

defendant contracted to sell specific quantity of potatoes to the plaintiff, but failed due to

destruction of crop by a disease, potato being the subject matter in this case which ceased

to exist in an edible condition. Under section 56, V.L. Narasu v. P.S.V. Iyer6, a contract

was signed to exhibit a film in a cinema hall which eventually became impossible for

performance, the rear wall collapsed killing three persons. The court said that once the

structure was completely destroyed, the tenancy got ceased.

6. Due to an accident, production halted in one of the vaccine manufacturing plants of

Trumpest and Co. Vaccine being the subject matter of the concerned case, neither ceased

to exist nor got destroyed, the process of manufacturing only got halted in one of the

manufacturing plants for 20 days, other plants working in order to meet the contractual

obligations, and 20 days not being a substantial time to assume the production to be

ceased. Where the parties can still perform their main obligation despite the fact that the

subject matter has gone out of your hands, frustration may not follow7.

[II.B.ii] Easily recover from the circumstances that has been changed

7. A contract can be frustrated on the ground if certain circumstances arise which make the

performance of the contract impossible in the manner and at the time contemplated 8. The

ruling judge in the case of Pameshwari Das Mehra v. Ram Chand Om Prakash9 explained

change of circumstances as an unanticipated change occurs which affects the performance

of contract to such an extent to make it virtually impossible.

8. The changes in the circumstances in the relevant case are not impossible or extremely

6
7

8
9

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difficult for Trumpest and Co. to meet its contractual obligations with Bidenco and Co. as

it is mentioned in the facts about the working of only one vaccine manufacturing plant

being halted, that too for only 20 days while the other plants of Trumpest and Co. were

manufacturing vaccines. Mrs. Harris, CEO of Trumpest and Co. made a specific

statement regarding infrastructure being improved for production of more doses in less

time.

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PRAYER

Wherefore, in the light of facts of the case, issues raised, arguments advanced and authorities
cited, this Hon’ble Court may be pleased to:

1. DECLARE that the W.P challenging the reassessment proceedings and the validity of
Notice u/s 148 of the Act is not maintainable;

2. DECLARE that the proposed additions u/s 68 of the Act do not deserve to be deleted
on merits;
3. UPHOLD the impugned order of the Ld. CIT(A) dated December 2, 2019.

AND / OR
Pass any order, direction or relief that this Hon’ble Court may deem fit in the interest of
Justice, Equity and Good Conscience.
For this act of kindness, the counsels on behalf of the Respondent shall duty bound forever
pray.

Sd/-
(Counsels for the Respondent)

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