Appeal details
Counselvise Citation
[2023] 103 COUNSELVISE.COM (IT) 2097 (ITAT-PUNE)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
7 month(s) 11 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
28-02-2023
Appeal Filed By
Assessee
Order Result
Dismissed
Bench Allotted
A
Next Hearing Date
28-02-2023
Assessment Year
2012-2013
Appeal Filed On
17-07-2022
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH “A”, PUNE BEFORE SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER AND SHRI S. S. VISWANETHRA RAVI, JUDICIAL MEMBER आयकर अपील सं. / ITA No.537/PUN/2022 िनधाᭅरण वषᭅ / Assessment Year : 2012-13 Shri Kishor Shankar Garve, Garve Building, Navi Sangvi, Pune- 411027. PAN : AAVPG2791H Vs. DCIT, Circle-4, Pune. Appellant Respondent आदेश / ORDER PER INTURI RAMA RAO, AM: This is an appeal filed by the assessee directed against the order of ld. Commissioner of Income Tax (Appeals)- 3, Pune [‘the CIT(A)’] dated 27.07.2016 for the assessment year 2012-13. 2. At the outset, we find that the present appeal is against the impugned order dated 27.07.2016, which was subject matter of appeal by the assessee before this Tribunal in ITA No.2940/PUN/2016 and the Tribunal vide order dated 30.01.2019 dismissed the appeal of the assessee as withdrawn. Therefore, the Assessee by : Adjournment Application (Rejected) Revenue by : Shri Keyur Patel Date of hearing : 01.03.2023 Date of pronouncement : 01.03.2023 ITA No.537/PUN/2022 2 present appeal against the impugned order dated 27.07.2016 is not maintainable, hence dismissed as such. 3. However, before we part with the present order, we will be failing in our duty, we do not bring on record the conduct of the assessee in filing the present appeal. The brief background of the case is as under :- The assessment in the case of Shri Kishor Shankar Garve (the assessee) was completed by the Dy. Commissioner of Income Tax, Circle- 4, Pune (‘the Assessing Officer’) vide order dated 06.12.2013 passed u/s 143(3) of the Income Tax Act, 1961 (‘the Act’) accepting the returned income. Against the said assessment, an appeal was filed before the ld. CIT(A) on 23.01.2014 which came to be dismissed vide order dated 27.07.2016 (impugned order). Further, the appeal was filed before this Tribunal against the order of the ld. CIT(A) dated 27.07.2016, wherein, the Tribunal vide order dated 30.01.2019 dismissed the appeal as withdrawn. However, the appellant moved petition u/s 154 before the ld. CIT(A) against the impugned order. The ld. CIT(A) allowed the petition u/s 154, consequent to which the claim for deduction u/s 80IB(10) came to be allowed in favour of the assessee. This order of the ld. CIT(A) allowing the petition u/s 154 was challenged ITA No.537/PUN/2022 3 before this Tribunal by the Department, which came to be allowed in favour of the Revenue vide order dated 05.07.2022 in ITA Nos.1869 & 2286/PUN/2017. 4. On receipt of the order of the Tribunal dated 05.07.2022 (supra), the present appeal came to be filed by the assessee with the delay of 2038 days. 5. It is obvious 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. 6. 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 ITA No.537/PUN/2022 4 conclusive determination of the questions litigated and should forever set the controversy at rest. 7. 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 as there will be no end of litigation and a rich and malicious litigant will succeed in infinitely vexing his opponent by repetitive suits and actions. This may compel the weaker party to relinquish his right. The doctrine of Res Judicata has been evolved to prevent such an anarchy. That is why it is perceived that the plea of Res Judicata is not a technical doctrine but a fundamental principle which sustains the Rule of Law in ensuring finality in litigation. This principle seeks to promote honesty and a fair administration of justice and to prevent abuse in the matter of accessing Court for agitating on issues which have become final between the parties. 8. Therefore, any proceeding which has been initiated in breach of the principle of Res Judicata is prima-facie a proceeding which has been initiated in abuse of the process of Court. 9. A Constitution Bench of the Hon'ble Supreme Court in Devilal Modi v. Sales Tax Officer AIR 1965 SC 1150, has explained this principle in very clear terms: "But the question as to whether a ITA No.537/PUN/2022 5 citizen should be allowed to challenge the validity of the same order by successive petitions under Art. 226, cannot be answered merely in the light of the significance and importance of the citizens' fundamental rights. The general principle underlying the doctrine of res judicata is ultimately based on considerations of public policy. One important consideration of public policy is that the decisions pronounced by courts of competent jurisdiction should be final, unless they are modified or reversed by appellate authorities; and the other principle is that no one should be made to face the same kind of litigation twice over, because such a process would be contrary to considerations of fair play and justice, vide : Daryao v. State of U.P. [1962] 1 SCR 575." 9.1 The Hon'ble Supreme Court in State of Karnataka v. All India Manufacturers Organisation [2006] 4 SCC 683 explained in clear terms that principle behind the doctrine of Res Judicata is to prevent an abuse of the process of Court. 9.2 In explaining the said principle the Hon'ble Supreme Court in All India Manufacturers Organisation (supra) relied on the following formulation of Lord Justice Somervell in Greenhalgh v. Mallard [1947] 2 All ER 255 (CA) :- ITA No.537/PUN/2022 6 "I think that on the authorities to which I will refer it would be accurate to say that res 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." 10. 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. v. Nawab Hussain [1977] 2 SCC 806, para 4. 11. Following all these principles, a Constitution Bench of Hon'ble Supreme Court in Direct Recruit Class II Engg. Officers' Assn. v. 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 v. 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 coming into the legitimate purview of the original action both in respect of the matters of claim and defence. Thus, the principle of constructive res judicata underlying Explanation IV of Section 11 of the Code of Civil Procedure was applied to writ case. We, accordingly hold that the writ case is fit to be dismissed on the ground of res judicata." 12. In view of such authoritative pronouncement of the Constitution Bench of Hon'ble Supreme Court, there can be no doubt that the principles of Constructive Res Judicata, as explained ITA No.537/PUN/2022 7 in explanation IV to Section 11 of the CPC, are also applicable to the appellant. 13. Thus, the attempt to re-argue the case which has been finally decided by the Court of competent jurisdiction is a clear abuse of process of the Court, regardless of the principles of Res Judicata, as has been held by Hon'ble Supreme Court in K.K. Modi v. K.N. Modi [1998] 3 SCC 573. In paragraph 44 of the report, this principle has been very lucidly discussed by Hon'ble Supreme Court and the relevant portions whereof are extracted below :- "One of the examples cited as an abuse of the process of the court is relitigation. It is an abuse of the process of the court and contrary to justice and public policy for a party to relitigate the same issue which has already been tried and decided earlier against him. The reagitation may or may not be barred as res judicata..." 14. In coming to the aforementioned finding, Hon'ble Supreme Court relied on the Supreme Court Practice 1995 published by Sweet & Maxwell. The relevant principles laid down in the aforesaid practice and which have been accepted by Hon'ble Supreme Court are as follows :- "This term connotes that the process of the court must be used bona fide and properly and must not be abused. The court will prevent improper use of its machinery and will in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation. ... The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed but depend on all the relevant circumstances. And for this ITA No.537/PUN/2022 8 purpose considerations of public policy and the interests of justice may be very material." 15. Thus, the adventure made by the appellant in filing the present appeal, is nothing but abuse of process of Court, deserves to be deprecated in all possible terms. 16. In the result, the appeal filed by the assessee stands dismissed. Order pronounced on this 01 st day of March, 2023. Sd/- Sd/- (S. S. VISWANETHRA RAVI) (INTURI RAMA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER पुणे / Pune; ᳰदनांक / Dated : 01 st March, 2023. Sujeet आदेश कᳱ ᮧितिलिप अᮕेिषत / Copy of the Order forwarded to : 1. अपीलाथᱮ / The Appellant. 2. ᮧ᭜यथᱮ / The Respondent. 3. The CIT(A)-3, Pune. 4. The Pr. CIT-2, Pune. 5. िवभागीय ᮧितिनिध, आयकर अपीलीय अिधकरण, “A” बᱶच, पुणे / DR, ITAT, “A” Bench, Pune. 6. गाडᭅ फ़ाइल / Guard File. आदेशानुसार / BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण, पुणे / ITAT, Pune.
AI Insights
The case involves an appeal by Shri Kishor Shankar Garve against the order of the Commissioner of Income Tax (Appeals)-3, Pune, dated 27.07.2016, for the assessment year 2012-13. The original assessment was completed by the Dy. Commissioner of Income Tax, Circle-4, Pune, accepting the returned income. The CIT(A) dismissed the first appeal, which was later challenged and dismissed as withdrawn by the Tribunal. Subsequently, the assessee filed a petition under section 154, which was allowed, but this decision was later challenged by the Department and reversed by the Tribunal. The present appeal was filed with a significant delay and was dismissed on the grounds of being an abuse of the court process, citing the principles of Res Judicata and Constructive Res Judicata.
