TMI Blog2016 (8) TMI 1429X X X X Extracts X X X X X X X X Extracts X X X X ..... t by the petitioners to re-agitate the same issues which were considered by this Tribunal and were rejected expressly in the impugned order is a clear instance of an abuse of process of this Court apart from the fact that such issues are barred by principles of Res Judicata or Constructive Res Judicata and principles analogous thereto. Therefore, it cannot be said that there are any mistakes apparent from record, which are capable of being rectified, exercising the power vested under section 254(2) of the Act. Misc. Petitions are dismissed. - M.P.Nos.25 to 28/Bang/2016, WTA Nos.39 to 42/Bang/2014, MP Nos.29 to 31/Bang/2016, WTA Nos.43 to 45/Bang/2014, MP Nos.32 to 35/Bang/2016, WTA Nos.48 to 50/Bang/2014 - - - Dated:- 11-8-2016 - Shri Vijay Pal Rao, Judicial Member And Shri Inturi Rama Rao, Accountant Member Petitioners by : Shri C.P.Ramaswamy, Advocate Revenue by : Shri Sanjay Kumar, CIT (DR) ORDER Per Bench The assessees-companies, viz., M/s. Triad Resorts Hotels P. Ltd., M/s.Noorani Properties P. Ltd. and M/s.Verde Developers P.Ltd. filed the present Miscellaneous Petitions (MPs) u/s 35(3) of the Wealth-tax Act, 1957 [ the Act for short] stating t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act, the order may be recalled. He relied on the decision of the Hon ble Supreme Court in the case of Distributors (Baroda) P.Ltd. vs. Union of India others (155 ITR 120) in support of the proposition that to perpetuate an error is no heroism. To rectify it is the compulsion of the judicial conscience. Learned counsel for the petitioner also submitted that the judgments relied upon by the Tribunal are quoted out of context and not relevant. 4. On the other hand, ld.CIT(DR) vehemently opposed the submissions of the learned counsel for the petitioner and submitted that there was no mistake apparent from record which is capable of being rectified within the purview of sec.254(2) of the IT Act. The additional ground raised by the petitioner- had been adjudicated by this Tribunal and a finding has been rendered vide para.9 of its order. He further submitted that the learned counsel for the petitioner had not quoted the judgment of the Hon'ble jurisdictional High Court in the case of Dr.T.K.Dayalu (supra) and therefore there was no mistake apparent from record as alleged by the petitioner-. He relied on the decision of the Hon ble Bombay High Court in the case of CIT vs. Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience. Execution of a power of attorney in terms of the provisions of the Contract Act as also the Powers-of-Attorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the donee to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The donee in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee. An attorney holder may however execute a deed of conveyance in exercise of the power granted u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al finally held that since in the present case, by virtue of Joint Development Agreement, no title has been passed on to the developer, the assessee-company continued to be the owner of the land and was held to be liable to wealth-tax. The decision had been rendered by the Tribunal after considering the judgments of the Hon ble Apex Court cited supra as well as the judgment of the Hon'ble jurisdictional High Court cited supra. 6. During the course of hearing of these Miscellaneous Petitions, learned counsel for the petitioner in a very deceitful manner, though referred only to para.7.1 of the order wherein the additional ground had been discussed, chose not to refer to para.9 of the order where the Tribunal had adjudicated this additional ground raised and rendered a finding. This conduct of the counsel is highly deplorable. On this ground alone Miscellaneous Petitions are liable to be dismissed. Learned counsel for the petitioner could not file any evidence in support of his argument that the decision of Hon ble jurisdictional High Court in the case of Dr.T.K.Dayalu (supra) was quoted before this Tribunal during the course of argument. It is only during the course of hearin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does it contemplate a fresh look at a decision recorded on merits, howsoever appealing an alternate view may seem. Unless a sense of restraint is observed, judicial discipline would be the casualty. That is not what the Parliament envisaged. 6.3 The submission of the learned counsel for the petitioners that the impugned order may be recalled, cannot be accepted. The Hon ble jurisdictional High Court, in the case of CIT vs. McDowell Co. Ltd., (2004)(269 ITR 451)(Kar), held that the power u/s 35 of the Wealth-tax Act, 1957 is only to amend the order to rectify any mistake apparent from record and the original should not be recalled for re-hearing the matter. The relevant paragraph of the judgment is reproduced below: 9. We have given our anxious consideration to the issue. Section 35(1)(e) provides that with a view to rectifying any mistake apparent from the record, the Tribunal may amend any order passed by it under section 24. Sub-section (5) of section 35 provides that where an amendment is made under section 35, an order shall be passed in writing by the Tribunal. The power vested in the Tribunal, by section 35, is only to amend the order, to rectify any mistake apparen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous that such a litigative adventure by the present appellant is clearly against the principles of Res Judicata as well as principles of Constructive Res Judicata and principles analogous thereto. 8. The principles of Res Judicata are of universal application as it is based on two age old principles, namely, `interest reipublicae ut sit finis litium' which means that it is in the interest of the State that there should be an end to litigation and the other principle is `nemo debet his ve ari, si constet curiae quod sit pro un aet eademn cause' meaning thereby that no one ought to be vexed twice in a litigation if it appears to the Court that it is for one and the same cause. This doctrine of Res Judicata is common to all civilized system of jurisprudence to the extent that a judgment after a proper trial by a Court of competent jurisdiction should be regarded as final and conclusive determination of the questions litigated and should forever set the controversy at rest. 9. That principle of finality of litigation is based on high principle of public policy. In the absence of such a principle great oppression might result under the colour and pretence of law in as much ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es judicata for this purpose is not confined to the issues which the court is actually asked to decide, but that it covers issues or facts which are so clearly part of the subject-matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them. 12. The Hon ble Supreme Court also noted that the judgment of the Court of Appeal in Greenhalgh was approved by Hon ble Supreme Court in State of U.P. Vs. Nawab Hussain - (1977) 2 SCC 806 at page 809, para 4. 13. Following all these principles, a Constitution Bench of Hon ble Supreme Court in Direct Recruit Class II Engg. Officers' Assn. Vs. State of Maharashtra - (1990) 2 SCC 715 laid down the following principle: ......an adjudication is conclusive and final not only as to the actual matter determined but as to M.Nagabhushana vs State Of Karnataka Ors on 2 February, 2011 Indian Kanoon - http://indiankanoon.org/doc/432335/ 7 every other matter which the parties might and ought to have litigated and have had decided as incidental to or essentially connected with subject matter of the litigation and every matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal and were rejected expressly in the impugned order is a clear instance of an abuse of process of this Court apart from the fact that such issues are barred by principles of Res Judicata or Constructive Res Judicata and principles analogous thereto. 17. Therefore, it cannot be said that there are any mistakes apparent from record, which are capable of being rectified, exercising the power vested under section 254(2) of the Act. The decisions relied upon by the petitioners in the cases of Distributors (Baroda) P.Ltd. (supra) and Honda Siel Power Products Ltd.(supra) are not applicable and quoted out of context. 18. Before we part with, we must place on record that the petitioner had not approached this Tribunal in the Miscellaneous Petitions with clean hand, as stated supra. A litigant who approaches the court of law with unclean hands does not deserve any relief. Even on this score, these Miscellaneous Petitions are liable to be dismissed. 19. We highly deplore the attempts of the petitioner to knock the doors of the Tribunal again in the guise of seeking rectification of order alleging that additional ground of appeal was not decided. As mentioned supra, the addit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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