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2021 (12) TMI 1458 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI.
Irregularity in the e-auction process in terms of Regulation 33 and Schedule 1 of the IBBI (Liquidation Process) Regulations, 2016 or not - existence of whiff of any short of collusion between the highest bidder and other bidders - validity of cancellation of present auction - HELD THAT:- It is submitted that the Appeal may be disposed of with this liberty that in case, any occasion arises, the Appellant will be at liberty to agitate the grounds before the Appropriate forum or may file an Application for revival of this Appeal.
It is thought proper to dispose of this Appeal in the light of the aforesaid submissions - appeal disposed off.
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2021 (12) TMI 1457 - BOMBAY HIGH COURT
Grant of ad-interim reliefs - applicant/plaintiff stated that since they are now not challenging the rejection of ad-interim reliefs, by filing any appeal, this Court need not give any reasons for the same - HELD THAT:- In view of the statements made by applicant/plaintiff, no reasons are recorded for rejecting the prayer for ad-interim reliefs. If any of the Defendants want to file any Affidavit-in-Reply to the above Interim Application, they may do so on or before 13th January, 2022 and serve a copy of the same on the advocates for the Plaintiff. If the Plaintiff wants to file any Affidavit-in-Rejoinder, it may do so on or before 27th January, 2022 and serve a copy of the same on the advocates for the Defendants.
Place the above Interim Application for hearing on 3rd February, 2022.
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2021 (12) TMI 1456 - ITAT KOLKATA
Revision u/s 263 - validity of scrutiny assessment u/s 143(3) - AO while passing the assessment order u/s 143(3) did not enquire about “discrepancy in turnover shown in ITR and cash deposit in bank A/c” - HELD THAT:- As in the present case we note that the Ld. PCIT has alleged lack of enquiry on the part of the AO in respect of scrutiny of the CASS item “discrepancy in turnover shown in ITR and cash deposit in bank A/c”. We note that the assessee is running petrol pump business.
From the perusal of the assessment order, we note that the AO had called for the documents/records from the assessee and has made the specific finding of fact that pursuant to his notices, the assessee had furnished the same as well as the reconciliation in respect of the discrepancy in turnover shown in ITR and cash deposit in bank account.
AO has made a finding after calling for relevant documents to scrutinize the CASS issue that the assessee has been able to explain the discrepancy by filing the reconciliation. Since the AO has made a categorical finding on the issue on which the Ld. PCIT found fault with and when this fact has been brought to the notice of the PCIT during the revisional proceedings, PCIT after taking note that A.O has made enquiry on the issue, then if he is still not satisfied with the enquiry conducted by the AO on that issue, then according to us the Ld PCIT ought to have conducted enquiry himself and demonstrated how the AO erred in accepting the reconciliation/explanation given by the assessee while explaining/reconciling the discrepancy.
According to us, without doing such an exercise in the light of the AO’s finding that the assessee has explained/reconciled the discrepancy in turnover shown in ITR and cash deposit in bank a/c, the action of Ld PCIT to find fault with the AO’s action as erroneous for lack of enquiry cannot be countenenced. Therefore, we cannot agree with the Ld. PCIT that AO’s scrutiny assessment u/s 143(3) is erroneous for non-enquiry. Therefore, the Ld. PCIT erred in assuming jurisdiction u/s 263 - Appeal of the assessee is allowed.
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2021 (12) TMI 1455 - GUJARAT HIGH COURT
Validity of assessment u/s 144B - short period that had been given on service of the final notice and the Draft Assessment Order - whether the request for adjournment made has been responded as required under the law and whether the assessment framed can therefore be permitted to be sustained? - HELD THAT:- Once the statute provides that there is an opportunity to be availed to the assessee when there is a variation prejudicial to its interest is proposed, his request for adjournment as well as for the hearing also needs to be responded to. It is a completely unacceptable and unpalatable proposition that once a request come from the assessee, the respondent chooses not to respond to the same and go ahead with the framing of the assessment, that too when the time period was not expiring.
Even if the time period expires, it is for the respondent to workout a schedule in the manner as expected particularly when there is no human agency and when the assessee also has no one to turn to but to send a request through the e-portal.
Therefore, in the instant case when there was already a second surge of infection due to COVID-19 virus, the entire country was grappled with that second waive. If there is a categorical request that was made on account of such infection of the partner of the petitioner company and time was sought on 10.04.2021 when the time period for finalizing the assessment was getting over on 30.04.2021 as was known to the respondent from February, 2021, as extension had already come by virtue of the Circular, the framing of the assessment in clear defiance and in violation of this provision shall need to be interfered with.
Resultantly, we allow the present petition and quash and set aside the Assessment Order rendered u/s 143 (3) r.w.s. 143(3A) and 143(3B) which has been framed by the authority. The penalty proceedings and the demand notice are also quashed and set aside. AO shall be availing an opportunity to the petitioner including the opportunity of personal hearing, if requested for and decide the matter in accordance with law.
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2021 (12) TMI 1454 - BOMBAY HIGH COURT
Provisional release of seized imported goods - HELD THAT:- Purposes of this petition shall be served if this petition is treated as an application made under Section 110 A of the Customs Act, 1962 and decided appropriately.
The petition is partly allowed.
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2021 (12) TMI 1453 - GUJARAT HIGH COURT
Seeking amendment of shipping bills and to issue MEIS benefit on the basis of the amended shipping bills - it is the say of the petitioner that the Company was eligible for reward due to capturing of ”N” through an oversight in all the invoices except one, therefore, the Company was unable to claim MEIS benefits - HELD THAT:- Noticing the fact that in the instant case, the petitioner has already in the several shipping bills that he has presented explicitly expressed its intent of availing the benefits of the reward made under MEIS, the subsequent capturing of the same as “NO” instead of “Y” for the reward scheme once the shipping bills were electronically filed for export made by the petitioner Company during the period from 10.04.2019 to 27.07.2014 would have no bearing.
The decision of this Court in case of M/S. RAJ AND COMPANY VERSUS UNION OF INDIA [2021 (2) TMI 1101 - GUJARAT HIGH COURT] would squarely cover the issue so far ticking of these EDI shipping bills are concerned. Moreover, the Court cannot be oblivious of the fact that it was a time when software for online filing was merely introduced after converting port into EDI port and therefore, not only there is possibility of the technical glitch, but, the person in whose benefits this had been done also, may not be aware of the procedure and the manner of operation, which may have resulted into depending on some other agencies for committing mistake. And that, by no means can take away the right of the parties, more particularly, when in the manual shipping bills, they had categorically requested for grant of benefits of scheme and that leaves no room of doubt about the intent. Authority once can make out from manner shipping bills, they must not carry the mindset even with reiterative requests from the exporters to avail benefit of Scheme to deny such benefits on sheer technicality.
The respondent Authority concerned while passing the order has been oblivious of this initial hiccups and also has overlooked the clear intent expressed in Manual shipping bills insisted by the petitioner. Every time the petitioner indicated from transaction to avail benefits, the same shall need to be looked at and to be dealt with a pragmatic approach and here is a case where otherwise the incident of export is not being questioned or doubted.
There will be need for indulgence of this Court by quashing and setting aside the order passed on16.07.2021. The respondent No.2 shall allow the amendment of those bills which had been uploaded online and if not feasible due to technical reasons, on accepting the original shipping bill, let the same be compared and avail the benefits on the strength thereof - the respondent are directed to issue MEIS benefit on the amended bill if otherwise is found in accordance with law.
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2021 (12) TMI 1452 - SUPREME COURT
Murder - Acquitting two young men Accused of murdering a police officer, overturned by the High Court convicting them for life - HELD THAT:- On considering the evidence of PW-7, a shoe shop owner, it gives its cogent reasoning for its non-acceptance. The previous bill and the relevant bill had a difference of about 8 months in between and this witness has not seen who has purchased the chappals marked as M.O. 8 from his shop. Similarly, PW-20 who was running an STD booth could not convince the trial court as he could not say that the Accused had made calls from his booth. On motive, it was correctly analysed that there was nothing to implicate the Accused with motive to murder the deceased.
PW-1 was the sterling witness of the prosecution. Certainly, he had an axe to grind against the Accused who had given a complaint against him. He was facing a departmental enquiry and suspension. It is too strange that he could be a chance witness. His evidence was thoroughly analysed by the trial court including the distance between his place of work and his residence. He did not use his wireless which was not in operation and went to the police station to give an oral complaint the first time but the same was not registered. PW-25 was known to him and it is surprising as to why no attempt was made to save the deceased immediately by taking him to the nursing home which was 50 meters away as a normal human conduct. There are many contradictions between the statements made by PW-1 and PW-2.
PW-2 was also seen along with PW-1. He was another eye witness. He was a duty constable. The trial court rightly doubted his presence as well. Once again, even this witness has not given any complaint. We are dealing with the deposition of a police officer who is expected to know his duty. While PW-2 did not make a complaint but went on to do his duty, PW-1 did not attend to his duty thereafter or informed the police station in which he was posted. Though, PW-2 has stated that Accused made an attempt to attack him by throwing one of the material objects, even the High Court has disbelieved that. The said material object was recovered from some other place as could be seen from the recovery memo, despite the fact that it was nobody's case that the Accused retrieved the same and kept it with them while being chased.
PW-25 is the doctor who is well known to PW-1. While PW-1 deposed that he did not actually accompany the deceased, PW-25 did make a statement that both the police and public admitted the deceased - On a reading of the evidence of PW-25, there was not found existence of dying declaration in it.
The defence also examined one witness. This witness is a Government doctor being an expert in the field of surgery. He had clearly deposed that it would be impossible for the deceased to be conscious after suffering injuries as mentioned in Exhibit P-38, which is intestines coming out. The trial court correctly considered this evidence.
Reasoning of the High Court - HELD THAT:- The dying declaration was put forth by the prosecution through the mouth of said three witnesses. As we find, that the evidence let in by them was found to not be trustworthy, there cannot be any dying declaration either in fact or in law. The High Court also did not consider the basis upon which the evidence of PWs 1, 2 and 25 could be accepted and as to how the various reasons given by the trial court are not acceptable especially when it did not consider the evidence of the other witnesses. It rendered a conviction on mere surmise, even though an inference can never be the basis of a conviction when the testimony of a witness is not believed on cogent reasoning - the alleged occurrence was said to have happened at about 5 p.m. on a busy road with heavy traffic and even the evidence of PW-1 and PW-2 suggests that there were about 1000 persons. Except the evidence of PW-1 and PW-2, there was no other evidence relied upon by the prosecution.
The High Court did not undertake the exercise as mandated Under Section 378 read with Section 384 Code of Criminal Procedure in reversing the reasoned decision rendered by the trial court. Thus, the appeals are accordingly allowed.
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2021 (12) TMI 1451 - SUPREME COURT
Validity of Arbitral Award - disputes on the supplies made by the 3rd Respondent, the bill amount due was not paid immediately - It is submitted that only on the ground that the Appellant has not responded in the conciliation proceedings, straightaway the order was passed by the Council without giving proper opportunity - HELD THAT:- From a reading of Section 18(2) and 18(3) of the MSMED Act it is clear that the Council is obliged to conduct conciliation for which the provisions of Sections 65 to 81 of the Arbitration and Conciliation Act, 1996 would apply, as if the conciliation was initiated under Part III of the said Act. Under Section 18(3), when conciliation fails and stands terminated, the dispute between the parties can be resolved by arbitration. The Council is empowered either to take up arbitration on its own or to refer the arbitration proceedings to any institution as specified in the said Section. It is open to the Council to arbitrate and pass an award, after following the procedure under the relevant provisions of the Arbitration and Conciliation Act, 1996, particularly Sections 20, 23, 24, 25.
There is a fundamental difference between conciliation and arbitration. In conciliation the conciliator assists the parties to arrive at an amicable settlement, in an impartial and independent manner. In arbitration, the Arbitral Tribunal/arbitrator adjudicates the disputes between the parties. The claim has to be proved before the arbitrator, if necessary, by adducing evidence, even though the Rules of the Code of Civil Procedure or the Indian Evidence Act may not apply. Unless otherwise agreed, oral hearings are to be held.
The order dated 06.08.2012 is a nullity and runs contrary not only to the provisions of MSMED Act but contrary to various mandatory provisions of Arbitration and Conciliation Act, 1996. The order dated 06.08.2012 is patently illegal. There is no arbitral award in the eye of law. It is true that under the scheme of the Arbitration and Conciliation Act, 1996 an arbitral award can only be questioned by way of application Under Section 34 of the Arbitration and Conciliation Act, 1996. At the same time when an order is passed without recourse to arbitration and in utter disregard to the provisions of Arbitration and Conciliation Act, 1996, Section 34 of the said Act will not apply.
The impugned judgment and order is set aside - this civil appeal is allowed.
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2021 (12) TMI 1450 - PUNJAB AND HARYANA HIGH COURT
Principles of natural justice - no opportunity of hearing was granted after the issuance of Show Cause Notice - appealable order - HELD THAT:- It is not deemed appropriate to non- suit the petitioner on the ground that there is an efficacious remedy of appeal, more so since, the order on merits are not set aside, but it is only directed that the Assessing Officer should pass a fresh order after affording an opportunity of hearing to the petitioner.
The Assessing Officer is directed to pass a fresh speaking order after hearing the petitioner in accordance with law. For this purpose, parties through counsel are directed to appear before the Assessing Officer on 30.12.2021 or on any other date when the Assessing Officer may require their presence - the petition is allowed and impugned order is set aside.
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2021 (12) TMI 1449 - DELHI HIGH COURT
Income accrued in India - Indo Oman DTAA - dividend income was taxable but exempted under Omani Law - HELD THAT:- A perusal of the paper book reveals that the issues raised in the present appeal are no longer res integra, as the Coordinate Bench [2017 (4) TMI 1035 - DELHI HIGH COURT] has dismissed the revenue’s appeal on similar grounds.
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2021 (12) TMI 1448 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH, NEW DELHI
Condonation of delay of 27 days in filing the application - restoration application filed for setting aside the dismissal order allowed - good ground to condone the delay, present or not - Appellant submits that in the impugned order it has been noted that Counsel for Applicant made statement with regard to his family members being suffering from COVID-19.
HELD THAT:- There are no inconsistency with the Statement made in para 5 of the Application filed by the Applicant and statement of the counsel for the Applicant which was recorded in the impugned order.
The Adjudicating Authority condoned the delay in filing the application and restored the petition - no ground is made out to entertain this Appeal.
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2021 (12) TMI 1447 - MADRAS HIGH COURT
TDS u/s 195 - Income taxable in India - Royalty - amounts paid by the assessee to the foreign company for the use of copyright of 'computer software' - HELD THAT:- Substantial questions of law raised herein have been decided in favour of the assessee, in the decision of Engineering Analysis Centre of Excellence Private Limited [2021 (3) TMI 138 - SUPREME COURT] held amounts paid by resident Indian endusers/distributors to non-resident computer software manufacturers/suppliers, as consideration for the resale/use of the computer software through EULAs/distribution agreements, is not the payment of royalty for the use of copyright in the computer software, and that the same does not give rise to any income taxable in India, as a result of which the persons referred to in section 195 of the Income Tax Act were not liable to deduct any TDS u/s 195 of the Income Tax Act. Decided against revenue.
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2021 (12) TMI 1446 - MADRAS HIGH COURT
Levy of Interest u/s 234D - HELD THAT:- As decided in judgment dated 19.03.2019 [2019 (5) TMI 112 - MADRAS HIGH COURT] though computation of interest will depend upon the appeal effect order to be passed, the quantum of net payment is to be determined accordingly, after allowing weighted deduction under Section 35 (2AB) of the Act, as indicated above. The provisions of Section 234D have been held applicable for Assessment Year 2003-2004 in question in terms of the decision this Court in the case of Fisher Sanmar Ltd. [2014 (4) TMI 236 - MADRAS HIGH COURT] Accordingly, Questions are answered in favour of the Revenue and against the Assessee.
Disallowance of bad debts as conditions laid down in Section 36(1)(vii) r.w.s. 36(2) not satisfied - debts have been taken over from the sister concerns - Tribunal allowed the claim - HELD THAT:- Substantial question of law involved in this appeal has already been considered and decided in favour of the assessee by judgment [2019 (1) TMI 2017 - MADRAS HIGH COURT] as held tribunal has taken note of the position that the Memorandum and Articles of Association permitted the assessee to carry on the business of money lending and the transactions in question have been held to be in the realm of business activity. Decided in favour of assessee.
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2021 (12) TMI 1445 - DELHI HIGH COURT
Seeking grant of anticipatory transit bail - offences punishable under Sections 66(C)/66(D) of the IT Act, 2000 which are contended to be bailable in terms of Section 77B of the IT Act, 2000 - HELD THAT:- Without any observations on the merits or demerits of the contentions that may be raised by the petitioners qua the grant of bail in relation to the allegations levelled in the FIR in question, taking into account the factum that the FIR No.435/2021, PS Model Town Panipat, Haryana apparently emanates from a matrimonial discord in relation to which the averments made in the petition indicate to the effect that there were mediation proceedings also pending and that the complainant and family members of the complainant are stated to be on interim protection till 04.12.2021 - it is considered appropriate that the applicants be not arrested till the date 06.12.2021 by which date they may move the requisite applications before the Court concerned subject to the conditions to the effect that they shall join the investigation of the case in relation to FIR No.435/2021, PS Model Town, Panipat, Haryana, shall keep their mobile phones on at all times and shall drop their PIN on the google map to ensure that their locations are available to the Investigating Officer.
The application is disposed of accordingly.
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2021 (12) TMI 1444 - ORISSA HIGH COURT
Maintainability of reassessment under Section 43 of the OVAT Act - absence of completion of assessment under Sections 39, 40, 42 or 44 of the OVAT Act - HELD THAT:- The present writ petition is allowed. Consequently, the impugned order of reassessment is hereby quashed.
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2021 (12) TMI 1443 - SUPREME COURT
Levy of penalty under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 - issuance of memorandum of charges (charge memorandum) proposing to hold an inquiry against him - chargesheet or charge memorandum could be given ex-post facto approval or not - HELD THAT:- The main distinguishing feature between the case of the appellant and that decided in B.V. Gopinath [2013 (9) TMI 1219 - SUPREME COURT] is that in the facts of the latter judgment, the subject charge memorandum did not have the ex-post facto approval. Stand of the respondents is that there is no bar on giving ex-post facto approval by the Disciplinary Authority to a charge memorandum and so far as the present case is concerned, such approval cures the defect exposed in Gopinath’s case. On behalf of the appellant, the expression “non est” attributed to a charge memorandum lacking approval of the Disciplinary Authority has been emphasized to repel the argument of the respondent authorities.
The High Court sought to distinguish the case of B.V. Gopinath [2013 (9) TMI 1219 - SUPREME COURT] with the facts of the present case on the ground that in the case of the appellant, the Disciplinary Authority had not granted approval at any stage and in the present case, ex-post facto sanction of the charge memorandum or chargesheet was given when the departmental proceeding was pending. The High Court found such approach to be practical and pragmatic, having regard to the fact that the departmental proceeding had remained pending in the case of the appellant and evidences had been recorded. The High Court thus considered the fact that in the case of B.V. Gopinath, the proceeding stood concluded whereas in the appellant’s case, it was still running when ex-post facto approval was given. That was the point on which the ratio of B.V. Gopinath was distinguished by the High Court.
The absence of the expression “prior approval” in the aforesaid Rule would not have any impact so far as the present case is concerned as the same Rule has been construed by this Court in the case of B.V. Gopinath and it has been held that chargesheet/charge memorandum not having approval of the Disciplinary Authority would be non est in the eye of the law.
Whether there would be any difference in the position of law in this case vis-à-vis the case of B.V. Gopinath? - HELD THAT:- In the latter authority, the charge memorandum without approval of the Disciplinary Authority was held to be non est in a concluded proceeding. The High Court has referred to the variants of the expression non est used in two legal phrases in the judgment under appeal. In the context of our jurisprudence, the term non est conveys the meaning of something treated to be not in existence because of some legal lacuna in the process of creation of the subject-instrument. It goes beyond a remediable irregularity. That is how the Coordinate Bench has construed the impact of not having approval of the Disciplinary Authority in issuing the charge memorandum - What is non-existent in the eye of the law cannot be revived retrospectively. Life cannot be breathed into the stillborn charge memorandum. In our opinion, the approval for initiating disciplinary proceeding and approval to a charge memorandum are two divisible acts, each one requiring independent application of mind on the part of the Disciplinary Authority. If there is any default in the process of application of mind independently at the time of issue of charge memorandum by the Disciplinary Authority, the same would not get cured by the fact that such approval was there at the initial stage.
Considering the fact that the proceeding against the appellant relates to an incident which is alleged to have taken place in the year 1998 and the proceeding was initiated in the year 2002, we direct that in the event the department wants to continue with the matter, and on producing the material the Disciplinary Authority is satisfied that a fresh charge memorandum ought to be issued, such charge memorandum shall be issued not beyond a period of two months, and thereafter the proceeding shall take its own course.
The appeal is allowed.
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2021 (12) TMI 1442 - SC ORDER
Validity of grant of Bail - Siphoning of funds by respondent No.2 promoter, before they ceased to be in control over the complainant-company - HELD THAT:- List before a Bench in which one of us (Hon’ble Mr. Justice Sanjay Kishan Kaul) is not a Member.
Liberty is granted to mention to Hon’ble the Chief Justice of India in view of the urgency expressed.
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2021 (12) TMI 1441 - SECURITIES AND EXCHANGE BOARD OF INDIA
Offence under SEBI - elapse of a period of more than 10 years, the Acquirers are yet to comply with SEBI’s direction to make offer to the shareholders - Interest of investors and for protection of their rights - liability of the Acquirers by calculating the offer price in terms of regulation 23 of the Delisting Regulations - HELD THAT:- Acquirers by not making public offer has not only deprived the shareholders from exiting their shareholding at a fair price thereby acting in gross defiance of the directions issued under SEBI Order (which finally merged with order passed by the Hon’ble Tribunal and the Hon’ble Supreme Court of India) but at the same time, the non-compliance on the part of the Acquirers caused a financial gain of INR 38.65 Crore along with interest amount for the undue prolonged delay in making the offer to the shareholders, since the non- compliance to make the public offer has resulted in saving of the above stated amount as calculated towards public offer consideration to the Acquirers. It can be stated that the Acquirers have notionally gained to such extent in this regard.
As reiterated that the Acquirers have failed to make the public offer despite SEBI’s directions to them to do so and despite the SEBI directions having been upheld by the Hon’ble SAT and the Hon’ble Supreme Court of India.
Acquirers have failed to cooperate with the Independent Valuer despite issuance of First and Second Advisories. We note that adequate opportunities and time have already been provided to the Acquirers to comply with the requirements of law regarding the public offer and the aforestated SEBI’s directions issued in this regard. By failing to comply with the directions issued vide SEBI’s order dated July 27, 2010, the Acquirers have acted adverse to the interest of the shareholders of the Target Company, by denying them the right to exit at a fair price as per SEBI’s directions including the aforesaid two advisories.
In order to protect the interest of shareholders and to avoid any further delay in the matter and to implement/execute the directions contained in the SEBI Order dated July 27, 2010 which has long back become final and binding on the Acquirers in light of the First and Second SAT Orders and Second Supreme Court Order, it is imperative to issue further appropriate directions against the Acquirers, which would require the Acquirers to do the needful immediately.
Keeping in view the misconduct and non-compliances by the aforesaid Acquirers/entities as discussed in the foregoing paragraphs, Mr. Zafar Yunus Sareshwala and Mr. Uves Yunus Sareshwala are called upon to show cause as to why the suitable directions, including the following, should not be issued/imposed against them u/s 11(1), 11(4)(d) and 11B(1) of the SEBI Act:
i. direction to disgorge an amount equivalent to the gain made by them by not complying with direction of public offer along with interest;
ii. direction to restrain them from accessing the securities market and prohibiting them from buying, selling or otherwise dealing in securities for an appropriate period.
This Order is without prejudice to any other action that SEBI may initiate under the securities laws, as deemed appropriate, against the above mentioned persons/entities. This Order shall come into force with immediate effect.
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2021 (12) TMI 1440 - ITAT HYDERABAD
TP Adjustment - interest payment made by the assessee to its overseas associate enterprises @ 11% while adopting domestic prime lending rate only - HELD THAT:- As held that the currency involved herein is not “Euro” only, alleged “safe harbor” rules also do not pertain to these four assessment years. We thus affirm the TPO’s identical action in all these four assessment years adopting “LIBOR + 200” interest rate coming to 2.9% as against that claimed @ 11% at assessee’s behest.
Addition u/s 14A r.w.Rule 8D - HELD THAT:- Addition restricted to the extent of exempt income only in the CIT (A)’s order in the light of Joint Investment (P) Ltd [2015 (3) TMI 155 - DELHI HIGH COURT]
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2021 (12) TMI 1439 - SUPREME COURT
Cancellation of allotment of Sites allotted in favour of Respondent Nos. 5 and 6 respectively in the layout known as Binnamangala 2nd Stage - enhancement of compensation pursuant to which Additional Land Acquisition Officer (Addl. LAO) referred the matter to the Civil Court Under Section 18 of the Land Acquisition Act, 1894 - HELD THAT:- The documents produced by the BDA would clearly disclose that the entire extent of 5 acres 9 guntas of land including 12 guntas of kharab-B land was notified for acquisition. M. Krishna Reddy, the father of the Appellants, claimed to be the owner of 1 acre 26 guntas of lands in the said survey number and it was further contended that 1 acre and 18 guntas have been acquired and 8 guntas was left out from the acquisition - The appeal filed against the said judgment of the trial court was also dismissed by the High Court. The Appellants have not disclosed the filing of the suit, its dismissal by the Civil Court and the confirmation of the said judgment by the High Court in the writ petition. It is clear that the Appellants have suppressed these material facts which are relevant for deciding the question involved in the writ petitions. Thus, the Appellants have not come to the court with clean hands.
It is well-settled that the jurisdiction exercised by the High Court Under Article 226 of the Constitution of India is extraordinary, equitable and discretionary and it is imperative that the Petitioner approaching the writ court must come with clean hands and put forward all facts before the Court without concealing or suppressing anything. A litigant is bound to state all facts which are relevant to the litigation. If he withholds some vital or relevant material in order to gain advantage over the other side then he would be guilty of playing fraud with the court as well as with the opposite parties which cannot be countenanced.
This Court in PRESTIGE LIGHTS LTD. VERSUS STATE BANK OF INDIA [2007 (8) TMI 446 - SUPREME COURT] has held that a prerogative remedy is not available as a matter of course. In exercising extraordinary power, a writ court would indeed bear in mind the conduct of the party which is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the court, the court may dismiss the action without adjudicating the matter.
In UDYAMI EVAM KHADI GRAMODYOG WELFARE SANSTHA & ANR VERSUS STATE OF U.P. AND ORS [2007 (12) TMI 453 - SUPREME COURT], this Court has reiterated that the writ remedy is an equitable one and a person approaching a superior court must come with a pair of clean hands. Such person should not suppress any material fact but also should not take recourse to legal proceedings over and over again which amounts to abuse of the process of law.
In the instant case, since the Appellants have not disclosed the filing of the suit and its dismissal and also the dismissal of the appeal against the judgment of the civil court, the Appellants have to be non-suited on the ground of suppression of material facts. They have not come to the court with clean hands and they have also abused the process of law. Therefore, they are not entitled for the extraordinary, equitable and discretionary relief.
Survey No. 13 measures 5 acres 9 guntas, out of which 12 guntas were kharab-B land. Notification in respect of the entire 5 acres 9 guntas had been issued and possession of the land had been taken long back. The contention of the Appellants is that their father, M. Krishna Reddy, was the owner of 1 acre 26 guntas of land in Survey Nos. 13/2 and 13/4. According to them, 08 guntas of land has not been acquired and compensation has not been paid in respect of this land. Records produced by the BDA would disclose that 08 guntas of land is kharab-B land - there is no question of payment of compensation in respect of this land, though, the same was included in the preliminary and final notification. The final notification was issued as early as in the year 1967. The Appellants have claimed enhanced compensation also for 1 acre 18 guntas of land and they have raised this issue at a highly belated stage after lapse of about 34 years.
This finding of the High Court has attained finality and the writ court cannot sit in an appeal over the judgment passed by the High Court in the appeal. The conclusions reached by the court in the appeal are binding on the Appellants.
There are no merit in these appeals and the same are accordingly dismissed.
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