ALISHAN COMPLEX PRIVATE LIMITED V. ASSISTANT COMMISSIONER OF INCOME TAX (BENAMI PROHIBITION), AND INITIATING OFFICER

WRW/20/2024

AI Insights

The case involves Alishan Complex Private Limited and Mahaveer Lunia as petitioners, who sought a review of a previous judgment concerning the provisional attachment of property under the Prohibition of Benami Property Transaction Act, 1988 (PBPT Act). The petitioners argued that the adjudicating authority should decide the case independently without influence from the court's earlier observations and that certain orders were passed in violation of a mandatory CBDT circular. The respondents contended that all issues had been adequately addressed in the original judgment. The court, referencing the Supreme Court's guidelines on review jurisdiction, dismissed the petition, affirming that the review process is not an opportunity to reargue the case or reconsider evidence.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 672842 (HC-RAJASTHAN)
• Appeal Type: Others
• Pronouncement Date: 09-04-2024
• Assessment Year: misc
• Other Referred Cases: S. Madhusudhan Reddy Vs V. Narayana Reddy and Ors.
• Laws Referred To: Prohibition of Benami Property Transaction Act, 1988
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: SUNIL BHANDARI; G S CHOUHAN
• Assessee Lawyers: SANJAY JHANWAR; PUSHKAR TAIMNI
• Keywords: Benami property; CBDT Circular No. 19/2019; Provisional attachment; Review petition
• Section: 26; 2(9); 24(3); 24(4)(a)(i)

Judgement Text

"HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Review Petition (Writ) No. 20/2024 1. Alishan Complex Private Limited, Through Its Director Mr. Mukesh Kumar Lunia S/o Jawari Lal Lunia Aged About 46 Years Residing At Moksh Main Mandor Road Oposite Hotel Mapple Abhay Paota, Jodhpur. 2. Mahaveer Lunia S/o Jawari Lal Lunia, Aged About 51 Years, Residing At Moksh Main Mandor Road Opposite Hotel Mapple Abhay Paota, Jodhpur. ----Petitioners Versus Assistant Commissioner Of Income Tax (Benami Prohibition), And Initiating Officer, Under The Pbpt Act For The State Of Rajasthan, Jaipur, Room No Na 103, New Central Revenue Building, Bhagwan Dass Road, Jaipur Rajasthan, 302005. ----Respondent For Petitioner(s) : Mr. Sanjay Jhanwar, Senior Advocte (through VC) assisted by Mr.Pushkar Taimni. For Respondent(s) : Mr. Sunil Bhandari, Mr. G.S. Chouhan. HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI HON'BLE MR. JUSTICE YOGENDRA KUMAR PUROHIT Order 09/04/2024 1. This review petition has been preferred claiming the following reliefs: “It is, therefore, prayed that the present review petition may kindly be allowed, and the impugned judgment passed by this Hon’ble Court dated 12.12.2023 may kindly be reviewed/clarified and it be clarified that the appropriate adjudicating authority shall decide the case on merits without being influenced by the observations made by the Hon’ble Court in the order dated 12.12.2023. (2 of 6) [WRW-20/2024] Any other order or direction which this Hon’ble Court deems just and proper in the facts and circumstances of the case may also be passed in favour of the review petitioner.” 2. The review-petitioner filed a writ petition being S.B. Civil Writ Petition No.16732/2023 (alongwith connected petitions filed by other companies) against the orders of provisional attachment of property under Section 24 (3) & 24 (4)(a)(i) of the Prohibition of Benami Property Transaction Act, 1988 (hereinafter referred to as ‘PBPT Act’); the said petitions were dismissed vide the judgment 12.12.2023 under review. 3. Mr. Sanjay Jhanwar, learned Senior Counsel assisted by Mr.Pushkar Taimni submits that this Hon’ble Court in its judgment dated 12.12.2023 did not clarify that the Adjudicating Authority shall decide the case under Section 26 of the PBPT Act independently and without being influenced by the observations made by this Hon’ble Court in the aforementioned judgment, and therefore, the said judgment is required to be reviewed, qua the said aspect of the case. 3.1. Learned Senior Counsel further submits that this Hon’ble Court, while passing the judgment under view, has not considered that the two orders dated 28.07.2023 and 07.08.2023 passed with same DIN are violative of the mandatory CBDT Circular No.19/2019 dated 14.08.2019, which mandates that every notice/ order shall be passed with an independent DIN. 3.2. Learned Senior Counsel also submits that the review petitioner’s case falls under the exception provided in Section 2 (3 of 6) [WRW-20/2024] (9) of the PBPT Act. Learned Senior Counsel further submits that the respondents relied upon the statements of certain persons, however, the correctness and reliability of such statements qua the case of the petitioner company were not dealt by this Hon’ble Court, and therefore, the judgment dated 12.12.2023 needs to be reviewed by this Hon’ble Court. 4. On the other hand, learned counsel appearing on behalf of the respondents, while opposing the aforesaid submissions made on behalf of the petitioner, submits that this Hon’ble Court had already dealt with all the issues in the judgment dated 12.12.2023 under review, and therefore, no case for review is made out, and the instant review petition is liable to be dismissed. 4.1. Learned counsel further submits that in the judgment dated 12.12.2023, this Hon’ble Court has dealt with each and every submission of the review-petitioner, and only thereafter, a detailed judgment under review has been passed, and thus, on that count alone, the review petition is liable to be dismissed. 5. Heard learned counsel for the parties as well as perused the record of the case. 6. This Court observes that the review petitioner had preferred the aforesaid writ petition against the orders of provisional attachment of property under Section 24 (3) & 24 (4)(a)(i) PBPT Act, which was dismissed alongwith other connected petitions of other companies, vide the judgment 12.12.2023 under review. 7. This Court further observes that in the review jurisdiction, there is a very limited scope for interference, more particularly, in light of a catena of judgments passed by Hon’ble Apex Court in (4 of 6) [WRW-20/2024] this regard. This Court is conscious of the judgment rendered by the Hon’ble Apex Court in case of S. Madhusudhan Reddy Vs V. Narayana Reddy and Ors. Civil Appeals No. 5503-04 of 2022, decided on 18.08.2022), relevant portion whereof is reproduced as hereunder:- “13. A glance at the aforesaid provisions makes it clear that a review application would be maintainable on (i) discovery of new and important matters or evidence which, after exercise of due diligence, were not within the knowledge of the applicant or could not be produced by him when the decree was passed or the order made; (ii) on account of some mistake or error apparent on the face of the record; or (iii) for any other sufficient reason. 17. It is also settled law that in exercise of review jurisdiction, the Court cannot reappreciate the evidence to arrive at a different conclusion even if two views are possible in a matter. In Kerala State Electricity Board v. Hitech Electrothermics & Hydropower Ltd. and Others (2005) 6 SCC 651 , this Court observed as follows: “ 10. ....In a review petition it is not open to this Court to reappreciate the evidence and reach a different conclusion, even if that is possible. Learned counsel for the Board at best sought to impress us that the correspondence exchanged between the parties did not support the conclusion reached by this Court. We are afraid such a submission cannot be permitted to be advanced in a review petition. The appreciation of evidence on record is fully within the domain of the appellate court. If on appreciation of the evidence produced, the court records a finding of fact and reaches a conclusion, that conclusion cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto. It has not been contended before us that there is any error apparent on the face of the record. To permit the review petitioner to argue on a question of appreciation of evidence would amount to converting a review petition into an appeal in disguise.\" (emphasis added) 18. Under the garb of filing a review petition, a party cannot be permitted to repeat old and overruled arguments for reopening (5 of 6) [WRW-20/2024] the conclusions arrived at in a judgment. The power of review is not to be confused with the appellate power which enables the Superior Court to correct errors committed by a subordinate Court……… 26. As can be seen from the above exposition of law, it has been consistently held by this Court in several judicial pronouncements that the Court’s jurisdiction of review, is not the same as that of an appeal. A judgment can be open to review if there is a mistake or an error apparent on the face of the record, but an error that has to be detected by a process of reasoning, cannot be described as an error apparent on the face of the record for the Court to exercise its powers of review under Order XLVII Rule 1 CPC. In the guise of exercising powers of review, the Court can correct a mistake but not substitute the view taken earlier merely because there is a possibility of taking two views in a matter. A judgment may also be open to review when any new or important matter of evidence has emerged after passing of the judgment, subject to the condition that such evidence was not within the knowledge of the party seeking review or could not be produced by it when the order was made despite undertaking an exercise of due diligence. There is a clear distinction between an erroneous decision as against an error apparent on the face of the record. An erroneous decision can be corrected by the Superior Court, however an error apparent on the face of the record can only be corrected by exercising review jurisdiction. Yet another circumstance referred to in Order XLVII Rule 1 for reviewing a judgment has been described as “for any other sufficient reason”. The said phrase has been explained to mean “a reason sufficient on grounds, at least analogous to those specified in the rule” (Refer: Chajju Ram v. Neki Ram AIR 1922 PC 112 and Moran Mar Basselios Catholicos and Anr. v. Most Rev. Mar Poulose Athanasius and Others 1955 SCR 520)” 8. This Court also observes that the issue regarding the exception under Section 2 (9) of PBPT has already been dealt with by this Hon’ble Court in para 22 and 23 of the judgment dated (6 of 6) [WRW-20/2024] 12.12.2023 under review, alongwith the other issues pertaining to Sections 24 and 26 of PBPT and thus, no case for review in the said judgment is made out. 9. This Court further observes that this Hon’ble Court in the detailed judgment dated 12.12.2023 has already dealt with all the issues raised by the review-petitioner in this review petition. This Court thus does not feel persuaded by any of the grounds raised in the present review petition so as to review its earlier judgment dated 12.12.2023. 10. Thus, in light of the aforesaid observations and afore-quoted precedent law as well as looking into the factual matrix of the present case, this Court does not find it a fit case so as to grant any relief to the review-petitioner in the present review petition. 11. Consequently, the instant review petition is dismissed. (YOGENDRA KUMAR PUROHIT),J (DR.PUSHPENDRA SINGH BHATI),J 131-SKant/- "