TMI Blog2004 (10) TMI 75X X X X Extracts X X X X X X X X Extracts X X X X ..... M. KAPADIA. JUDGMENT The judgment of the court was delivered by M.S. Shah J.- These review applications are filed by the Appropriate Authority under section 269UG of the Income-tax Act, 1961, in respect of purchase by the Central Government of immovable properties under certain cases of transfer under Chapter XX-C of the Act. The applications are filed for recalling part of the directions given by this court in the judgment dated April 12, 2004 while disposing of Special Civil Application No. 8606 of 2004 and two cognate petitions (Shivram Vishwanath Deshmukh v. P. Saxena, CIT [2005] 277 ITR 363 (Guj)). On January 25, 1996, opponent Nos. 3 and 4 herein executed an agreement to sell the property in question at Pune in favour of opponent Nos. 1 and 2 herein for a consideration of Rs. 240 lakhs, which amount was to be paid in three instalments, upon execution of the agreement on January 25, 1996 (Rs. 75 lakhs), the second instalment to be paid by March 10, 1996 (Rs. 50 lakhs) and the third and final instalment to be paid at the time of execution of the conveyance on or before April 30, 1996 (Rs. 115 lakhs). In accordance with the aforesaid agreement, the purchasers paid Rs. 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y was still interested in purchase of the property. In view of the aforesaid amount of interest accrued on the amount of consideration, learned counsel for the vendors as well as learned counsel for the purchasers stated that their clients were not interested in challenging the order of purchase dated September 13, 1996, and the subsequent consequential orders, if the vendors and the purchasers are paid the entire amount of consideration of Rs. 240 lakhs along with the interest thereon from October 30, 1996, as aforesaid in the ratio of Rs. 115 lakhs: Rs. 125 lakhs with interest on the respective amounts from October 30, 1996. Mr. Shevade, learned counsel for Mr. Ravindra Vishvas Deshmukh, who had filed the third petition, also agreed that the vendors, one of whom was a karta of the joint family property, has title to the property and full authority to transfer and sell the property in question and that they shall indemnify the Income-tax Department in the case of any dispute by any party, and the said party, therefore, expressed the desire to withdraw Special Civil Application No. 3399 of 1997 in view of the aforesaid arrangement. Mr. Kaji, learned counsel for the vendors, als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, again discretion is conferred on the Appropriate Authority to decide whether to direct the payment of interest to the intending vendor/s or purchaser/s. It is submitted that it is for the Appropriate Authority to pay such amount of interest for giving the parties having interest in the property the same benefits therefrom as they might have had from the immovable property in question which would depend upon the market value of the property at tie time of sale of the property by the Central Government. In reply, Mr. K.H. Kaji, learned counsel for the vendors and Mr. Soparkar, learned counsel for the purchasers, have opposed the review applications on the following grounds: (i) The review applications are barred by limitation. There is a delay of 56 days in filing the review applications. (ii) The review applications are not maintainable as the order was passed on consensus of the parties. In the affidavit of the Appropriate Authority in Special Civil Application No. 2171 of 1997, it was stated that the consideration amount has been deposited in fixed deposit with a nationalised bank by the Appropriate Authority and the interest at bank rate accrued on this amount will be g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the parties will be paid the amount of consideration deposited in the fixed deposit along with interest thereon. The said paragraph of the affidavit-in-reply in the special civil application is again reproduced which reads as under: "It is submitted that the consideration amount has been deposited in the fixed deposit with a nationalised bank by the Appropriate Authority. The interest at bank rate secured on this amount will be given along with the consideration to both the parties according to settlement between both the parties. Purchase order dated September 13, 1996 has been challenged before this hon'ble court by respondent No. 5 in Special Civil Application No. 8606 of 1996. The proceedings in this case are pending." It is, therefore, obvious that when learned standing counsel for the Revenue produced the letter dated April 8, 2004 from the Appropriate Authority stating that the amount of Rs. 2.50 crores kept in fixed deposit with a scheduled bank on October 30, 1996 has grown to Rs. 5.34 crores (Rs. 5,34,81,261, to be precise) as on February 7, 2004 and that the said amount has again been invested in fixed deposit, learned counsel for the vendors as well as the pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cession made by the advocate or of the attitude taken up by the party appears to be a ground analogous to the grounds set forth in the first part of the review section and affords a good and cogent ground for review. The apex court has also observed therein that when the error complained of is that the court assumed that a concession had been made when none had, in fact, been made or that the court misconceived the terms of the concession or the scope and extent of it, it will not generally appear on the record but will have to be brought before the court by way of an affidavit. As already indicated above, the statements made by learned standing counsel for the Revenue at the hearing of the petitions are not shown to be contrary to any instructions of the Appropriate Authority. On the contrary, the stand taken by learned standing counsel for the Revenue was very much in consonance with the stand of the Appropriate Authority as reflected in the affidavit-in-reply quoted hereinabove. Even otherwise, we are of the view that the stand of the Appropriate Authority as reflected in the affidavit and of learned standing counsel as taken at the hearing is in consonance with the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rlooks the aspect that, if the original transaction was permitted to go through, the vendors would have received interest on the amount of consideration and similarly since the transaction is not allowed to go through, the purchasers' money paid over to the vendors has remained blocked and idle and the purchasers have not been allowed to use the property. Hence, the purchasers would also be entitled to claim interest on the amount which they had paid over to the vendors and which the Income-tax Department has now reimbursed to the purchasers. In any view of the matter, as per the settled legal position, the power of review can be exercised for correction of a mistake and not to substitute a view. Review cannot be treated like an appeal in disguise and mere possibility of two views on the subject cannot be a ground for review. As regards the contention that the Department did not have possession of the property in question during the pendency of the petitions, Mr. Kaji, learned counsel for the vendors, has invited our attention to several letters which were written by the vendors to the Department calling upon the Department to take over possession of the properties. Learned c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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