Triad Resorts & Hotels p Ltd, Bangalore V. Wealth Tax Officer, Ward-12(2), Bangalore

MA 25/BANG/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4644 (ITAT-BANGALORE)
• Duration Of Justice: 4 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-08-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 08-07-2016
• Assessment Year: 2004-2005
• Appeal Filed On: 28-03-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: C P RAMASWAMY
• Keywords: Capital asset; Rectification of order

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, BANGALORE BEFORE SHRI VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER 1. M.P.NOS.25 TO 28/BANG/2016 (IN W TA NO S . 3 9 TO 42/BANG /20 14 (ASSESSMENT YEAR S : 200 4 - 05 TO 2007 - 08 ) 2. MP NOS.29 TO 31/BANG/2016 (IN WTA NOS.43 TO 45/BANG/2014 (ASSESSMENT YEARS: 2004 - 05 TO 2006 - 07) 3 . MP NOS.32 TO 35/BANG/2016 (IN WTA NOS.48 TO 50/BANG/2014 (ASSESSMENT YEARS: 2004 - 05 TO 2007 - 08)) 1. M/S. TRIAD RESORTS & HOTELS P.LTD. APARANTA , 2208, HAL III STAGE, 80 FT ROAD, KODIHALLI, BANGALORE. 2. M/S.NOORANI PROPERTIES P.LTD. APARANTA , 2208, HAL III STAGE, 80 FT ROAD, KODIHALLI, BANGALORE. 3. M/S.VERDE DEVELOPERS P.L TD. APARANTA , 2208, HAL III STAGE, 80 FT ROAD, KODIHALLI, BANGALORE. VS. PETITIONER S WEALTH - TAX OFFICER, WARD 12(2), BANGALORE. RESPONDENT PETITIONERS BY : SHRI C.P.RAMASWAMY, ADVOCATE. REVENUE BY : SHRI SANJAY KUMAR, CIT(D R). DATE OF HEARING : 22/07 /2016 DATE OF PRONOUNCEMENT : 11/ 0 8 /2016 O R D E R PER BENCH : THE ASSESSEE S - COMPANIES, VIZ., M/S. TRIAD RESORTS & HOTELS P. LTD., M/S.NOORANI PROPERTIES P. LTD. AND M/S.VERDE DEVELOPERS MP NOS. 25 TO 35/ANG/2016 PAGE 2 OF 17 P.LTD. F ILED THE PRESENT MISCEL LANEOUS PETITIONS (MPS) U/S 35(3) OF THE WEALTH - TAX ACT, 1957 [ THE ACT FOR SHORT] STATING THAT CERTAIN MISTAKES APPARENT FROM RECORD HAD CREPT INTO THE TRIBUNAL ORDER DATED 12/02/2016 IN WTA NOS.37 TO 42/BANG/2014, 43 TO 45/BANG/2014 AND 46 TO 51/BANG/20 14. 2. ACCORDING TO THE PETITIONERS, A MISTAKE APPARENT FROM RECORD HAD CREPT INTO THE SAID ORDER OF THE TRIBUNAL AS THIS TRIBUNAL HAD OMITTED TO ADJUDICATE THE FOLLOWING ADDITIONAL GROUND OF APPEAL RAISED: ADDITIONAL GROUND WITHOUT PREJUDICE TO THE ORIGINAL GROUNDS RAISED: THERE IS NO URBAN LAND BELONGING TO THE APPELLANT ON THE VALUATION DATE, SINCE THE SAID LAND STOOD TRANSFERRED ON 5/12/2000 TO THE DEVELOPER AS PER JOINT DEVELOPMENT AGREEMENT U/S 2(47)(V) OF THE INCOME - TAX ACT, 1961, WITH THE APPELLANT RETAINING ONLY A FUTURE RIGHT TO RECEIVE 15.3% OF THE BUILT UP AREA AGAINST REFUNDABLE DEPOSIT OF RS.11.30 CRORES. CONSEQUENTLY, THERE IS NO TAXABLE WEALTH ON EACH OF THE VALUATION DATES. FURTHER , IT WAS URGED THAT THE DECISION OF THE HON'BLE J URISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. DR.T.K.DAYALU (2 02 TAXMAN 531 ) , THOUGH QUOTED DURING THE COURSE OF ARGUMENTS AND RELIED UPON BY THE LEARNED COUNSEL FOR THE PETITIONER S - COMPAN IES , HAD NOT BEEN REFERRED TO AND THUS ACCORDING TO THE PETITIONER - , THIS CONSTITUTES A MISTAKE APPARENT FROM RECORD AS THE BINDING DECISION OF THE HON'B LE JURISDICTIONAL HIGH COURT HAD NOT BEEN FOLLOWED BY THIS TRIBUNAL WHILE PASSING THE IMPUGNED ORDER. THEREFORE, IT IS PRAYED THAT THE IMPUGNED ORDER OF THE TRIBUNAL MA Y BE RECALLED BY EXER CIS ING THE POWER OF RECALL IN THE LIGHT OF MP NOS. 25 TO 35/ANG/2016 PAGE 3 OF 17 LAW LAID DOWN BY THE HON BLE SUPREME COURT IN THE CASE OF HONDA SIEL POWER PRODUCTS LTD. VS. CIT (2007) 295 ITR 466 AND THE HON BLE DELHI HIGH COURT IN THE CASE REPORTED IN LACHMAN DASS BHATIA HINGWALA (P.) LTD. VS. ACIT ( 330 ITR 243 ) . 3. LEARNED COUNSEL FOR THE PETITIONER STATED THAT THOUGH THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. DR.T.K.DAYALU ( SUPRA) , WAS CITED DURING THE COURSE OF ARGUMENTS I N SUPPOR T OF THE PROPOSITION THAT THE APPELLANT HAD ALREADY TRANSFERRED SAID LAND IN TERMS OF JOINT DEVELOPMENT AGREEMENT WITHIN THE MEANING OF SEC TION 2(47) OF THE INCOME - TAX ACT, 1961, SAID DECISION HA D NOT BEEN CONSIDERED. THUS, ACCORDING TO HIM, N ON - CONSIDERA TION OF THIS DECISION WOULD CONSTITUTE A MISTAKE APPARENT FROM RECORD . T HEREFORE, IT WAS URGED THAT EXERCISING THE POWER VESTED U NDER THE PROVISIONS OF SECTION 254(2) OF 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 PETI TIONER 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 MP NOS. 25 TO 35/ANG/2016 PAGE 4 OF 17 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 RA ISED BY THE PETITIONER - HAD BEEN ADJUDICATED BY THIS TRIBUNAL AND A FINDING HAS BEEN RENDERED VIDE PARA.9 OF ITS O RDER. 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.DAYAL U (SUPRA) AND THEREFORE THERE WAS NO MISTAKE APPARENT FROM RECORD AS ALLEGED BY THE PETI TIONER - . HE RELIED ON THE DECISION OF THE HON BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. RAMESH ELECTRIC & TRADING CO . (203 ITR 497) IN SUPPORT OF THE PROPOSITION THAT THE TRIBUNAL HAS NO POWER TO CORRECT ERROR OF JUDGMENT AND REVIEW OF ITS OWN DECISION . 5. W E HEARD RIVAL SUBMISSIONS AND PERUSED MATERIAL ON RECORD. IT IS VERY CLEAR FROM P ERUSAL OF THE IMPUGNED ORDER THAT THIS TRIBUNAL HAS DEALT WITH THE ADDITIONAL GROUND RAISED BY THE PETITIONER - VIDE PARA.9 OF ITS ORDER WHICH IS REPRODUCED BELOW: 9. NOW, WE SHALL ADVERT TO SECOND LIMB OF HIS ARGUMENT THAT WHETHER THE ASSESSEE - COMPANY CEASED TO BE A OWNER OF THE LAND IN QUESTION ONCE THE LANDS ARE SUBJECT MATTER OF JDA AND POSSESSION OF THE PROPERTY WAS HANDED OVER TO THE DEVELOPER. EVEN WITHOUT GOING INTO VERACITY OF THE CLAIM, WHETHER POSSESSION OF LAND WAS GIVEN TO THE DEVELOPER IN TERMS OF JDA, IT IS SETTLED PRINCIPLE OF LAW THAT BY VIRTUE OF GENERAL POWER OF ATTORNEY [GPA] DOES NOT CREATE ANY INTEREST IN/OR CHARGE ON SUCH PROPERTY. BY VIRTUE OF JDA, THE DEVELOPER IS ONLY GIVEN A PERMISSION TO DEVELOP THE PROPERTY. JDA IS ONLY A CREATION OF AGENCY WHEREBY THE LAND OWNERS AUTHORIZE THE DEVELOPER TO DO CERTAIN ACTS SPECIFIED THEREIN ON BEHALF OF LAND OWNERS. JDA IS NOT MP NOS. 25 TO 35/ANG/2016 PAGE 5 OF 17 AN INSTRUMENT OF TRANSF ER IN REGARD TO ANY RIGHT, TITLE OR INTEREST IN THE IMMOVABLE PROPERTY. IN FACT, THE HON BLE SUPREME COURT IN THE CASE OF SURAJ LAMP & INDUSTRIES PVT. LTD. VS. STATE OF HARYANA (340 ITR 1) VIDE PARA.20 OF THE JUDGMENT HAD DEALT WITH THE SCOPE OF THE POWER OF ATTORNEY AS FOLLOWS: A POWER OF ATTORNEY IS NOT AN INSTRUMENT OF TRANSFER IN REGARD TO ANY RIGHT, TITLE OR INTEREST IN AN IMMOVABLE PROPERTY. THE POWER OF ATTORNEY IS CREATION OF AN AGENCY WHEREBY THE GRANTOR AUTHORIZES THE GRANTEE TO DO THE ACTS SPE CIFIED THEREIN, ON BEHALF OF GRANTOR, WHICH WHEN EXECUTED WILL BE BINDING ON THE GRANTOR AS IF DONE BY HIM (SEE SECTION 1A AND SECTION 2 OF THE POWERS O F ATTORNEY ACT, 1882). IT IS REVOCABLE OR TERMINABLE AT ANY TIME UNLESS IT IS MADE IRREVOCABLE IN A MANNER KNOWN TO LAW. EVEN AN IRREVOCABLE ATTORNEY DOES NOT HAVE THE EFFECT OF TRANSFERRING TITLE TO THE GRANTEE. IN STATE OF RAJASTHAN VS. BASANT NEHATA - 2005 (12) SCC 77, THIS COURT HELD : 'A GRANT OF POWER OF ATTORNEY IS ESSENTIALLY GOVERNED BY CHAPTER X OF THE CONTRACT ACT. BY REASON OF A DEED OF POWER OF ATTORNEY, AN AGENT IS FORMALLY APPOINTED TO ACT FOR THE PRINCIPAL IN ONE TRANSACTION OR A SERIES OF TRANSACTIONS OR TO MANAGE THE AFFAIRS 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 AG ENT 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 ACT S 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 T HE DONEE.' MP NOS. 25 TO 35/ANG/2016 PAGE 6 OF 17 AN ATTORNEY HOLDER MAY HOWEVER EXECUTE A DEED OF CONVEYANCE IN EXERCISE OF THE POWER GRANTED UNDER THE POWER OF ATTORNEY AND CONVEY TITLE ON BEHALF OF THE GRANTOR. AND FINALLY CONCLUDED THAT THE GPA DO NOT CONVEY TITLE AND DO NOT AMOUNT TO TRAN SFER NOR CAN THEY BE RECOGNIZED AS A VALID MODE OF TRANSFER OF IMMOVABLE PROPERTY OBSERVING AS UNDER: WE THEREFORE REITERATE THAT IMMOVABLE PROPERTY CAN BE LEGALLY AND LAWFULLY TRANSFERRED/CONVEYED ONLY BY A REGISTERED DEED OF CONVEYANCE. TRANSACTIONS OF THE NATURE OF `GPA SALES' OR `SA/GPA/WILL TRANSFERS' DO NOT CONVEY TITLE AND DO NOT AMOUNT TO TRANSFER, NOR CAN THEY BE RECOGNIZED OR VALID MODE OF TRANSFER OF IMMOVEABLE PROPERTY. THE COURTS WILL NOT TREAT SUCH TRANSACTIONS AS COMPLETED OR CONCLUDED TRAN SFERS OR AS CONVEYANCES AS THEY NEITHER CONVEY TITLE NOR CREATE ANY INTEREST IN AN IMMOVABLE PROPERTY. THEY CANNOT BE RECOGNIZED AS DEEDS OF TITLE, EXCEPT TO THE LIMITED EXTENT OF SECTION 53A OF THE TP AC T. SUCH TRANSACTIONS CANNOT BE RELIED UPON OR MADE THE BASIS FOR MUTATIONS IN MUNICIPAL OR REVENUE RECORDS. WHAT IS STATED ABOVE WILL APPLY NOT ONLY TO DEEDS OF CONVEYANCE IN REGARD TO FREEHOLD PROPERTY BUT ALSO TO TRANSFER OF LEASEHOLD PROPERTY. A LEASE C AN BE VALIDLY TRANSFERRED ONLY UNDER A REGISTERED ASSIGNMENT OF LEASE. IT IS TIME THAT AN END IS PUT TO THE PERNICIOUS PRACTICE OF SA/GPA/WILL TRANSACTIONS KNOWN AS GPA SALES. IN THE SAME CONTEXT, THIS TRIBUNAL AFTER REFERR ING TO THE JUDGMENT O F THE HON BLE SUPREME COURT IN THE CASE OF SURAJ LAMP & INDUSTRIES PVT. LTD. VS. STATE OF HARYANA ( 340 ITR 1) AND ALSO THE HON BLE JURISDICTIONAL HIGH COURT IN THE CASE OF WIPRO LTD. VS. DCIT (282 CTR 346), THE TRIBUNAL RENDERED A CATEGORICAL FINDING THAT BY VIRTUE OF ENTERING INTO DEVELOPMENT AGREEMENT, THE OWNERSHIP OF THE PROPERTY HA D NOT BEEN TRANSFERRED TO THE BUILDER. THEN , THE TRIBUNAL PROCEEDED TO INTERPRET THE TERM BELONGING TO WHICH EXPRESSION IS USED IN SEC.4 OF THE WT ACT. IN THAT CONTEXT, MP NOS. 25 TO 35/ANG/2016 PAGE 7 OF 17 T HE TRIBUNAL , AFTER REFERRING TO THE DECISIONS OF THE HON BLE SUPREME COURT IN THE CASE OF BISHWANATH CHATTERJEE (1976)(103 ITR 536) AND (LATE) NAIVAB SIR MIR OSMAN ALI KHAN (1986) (162 ITR 888) AND THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT IN T HE CASE OF VYSYA BANK LTD. VS. DCWT (299 ITR 335) HELD THAT AN ASSET, WHICH WAS NOT REGISTERED AND TITLE OF THE PROPERTY HAD NOT BEEN PASSED ON TO THE DEVELOPER LIABLE TO BE INCLUDED IN THE TAXABLE WEALTH OF THE ASSESSEE. T HE TRIBUNAL FINALLY HELD THAT SI NCE 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 HA D BEEN RENDERED BY THE TRIB UNAL 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 THE SE MISCELLANEOUS PETITIONS, LEARNED COUNSEL FOR THE PETIT IONER IN A VERY DECEITFUL MANNER, THOUGH REFERRED ONLY TO PARA.7.1 OF THE ORDER WHEREIN THE ADDITIONAL GROUND HA D BEEN DISCUSSED, CHOSE NOT TO REFER TO PARA.9 OF THE ORDER WHERE THE TRIBUNAL HAD ADJUDICATED THIS ADDITIONAL GROUND RAISED AND RENDERED A FIND ING. THIS CONDUCT OF THE COUNSEL IS HIGHLY DEPLORABLE. ON THIS GROUND A LONE 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 JURISD ICTIONAL HIGH COURT MP NOS. 25 TO 35/ANG/2016 PAGE 8 OF 17 IN THE CASE OF DR.T.K.DAYAL U (SUPRA) WAS QUOTED BEFORE THIS TRIBUNAL DURING THE COURSE OF ARGUMENT. IT IS ONLY DURING THE COURSE OF HEARING OF THE PRESENT M ISCELLANEOUS PETITIONS, THE LEARNED COUNSEL FOR THE PETITIONER HAD CHOSEN TO FI LE A COPY OF THE DECISION IN THE CASE OF DR.T.K.DAYAL U (SUPRA). IN THE CASE OF CIT VS. EARNEST EXPORTS LTD. (323 ITR 577), THE HON BLE BOMBAY HIGH COURT HAD CLEARLY HELD THAT APPLICATION UNDER THE PROVISIONS OF SEC.254(2 ) IS MAINTAINABLE ONLY IN CASES WHER E IT WAS ESTABLISHED THAT SPECIFIC ATTENTION OF THE BENCH WAS DRAWN TO A PARTICULAR DECISION AND THE DECISION WAS SPECIFICALLY RELIED UPON BUT NOT CONSIDERED BY THE TRIBUNAL. THEREFORE, THE ARGUMENT OF THE LEARNED COUNSEL FOR THE PETITIONER THAT THE DECIS ION OF THE HON BLE JURISDICTIONAL HIGH COURT IN THE CASE OF DR.T.K.DAYAL U (SUPRA) WAS NOT APPLIED TO THE FACTS OF THE CASE , CANNOT BE ACCEPTED. 6 . 1 EVEN ASSUMING THAT DR.T.K.DAYAL U (SUPRA) CASE WAS CITED AND IF CONSIDERED ALSO, THE SAID DECISION HA S NO BEARING ON THE ISSUE IN THE APPEALS. THE D ECISION WAS RENDERED IN THE CONTEXT OF THE DEFINITION OF THE TERM TRANSFER AND UNDER THE PROVISIONS OF SEC.2(47) OF THE INCOME - TAX ACT ,1961, WHEREAS IN THE PRESENT APPEAL, WE ARE CONCERNED WITH INTERPRETA TION OF THE TERM BELONGING TO AS EMPLOYED BY THE PROVISIONS OF SEC.4 OF THE W EALTH - TAX ACT, 1957. IN ANY EVENT, THE DECISION IN THE CASE OF DR.T.K.DAYAL U (SUPRA) WAS NOT HELD TO BE GOOD LAW BY THE SUBSEQUENT DECISION BY THE VERY HON BLE JURISDICTIONAL H IGH COURT IN THE CASE OF CIT VS. N.VEMAN NA REDDY IN ITA NO.591/2008 MP NOS. 25 TO 35/ANG/2016 PAGE 9 OF 17 DATED 18/8/2014. THUS, DECISION IN THE CASE OF DR.T.K.DAYAL U (SUPRA) LOST ITS PRECEDENTIAL VALUE, IF ANY. THEREFORE, IT GOES WITHOUT SAYING THAT THE DECISION IN DR.T.K.DAYAL U (SUPRA) CAS E HAD NO RELEVANCE AND BEARING ON THE ISSUE IN APPEAL. 6.2 IT GOES TO PROVE THAT THE LEARNED COUNSEL FOR THE PETITIONERS HA D TAKEN A CHANCE OF RE - ARGUING THE APPEAL ALREADY DECIDED. THE POWER UNDER SEC TION 254(2) IS CONFINED TO A RECTIFICATION OF A MI STAKE APPARENT ON RECORD. THE TRIBUNAL MUST CONFINE ITSELF WITHIN THOSE PARAMETERS. SECTION 254(2) IS NOT A CARTE BLANCHE FOR THE TRIBUNAL TO CHANGE ITS OWN VIEW BY SUBSTITUTING A VIEW WHICH IT BELIEVES SHOULD HAVE BEEN TAKEN IN THE FIRST INSTANCE. SECT ION 254(2) IS NOT A MANDATE TO UNSETTLE DECISIONS TAKEN AFTER DUE REFLECTION. THE PROVISION EMPOWERS THE TRIBUNAL TO CORRECT MISTAKES, ERRORS AND OMISSIONS APPARENT ON THE FACE. THE SECTION IS NOT A N AVENUE TO REVIVE A PROCEEDING BY RECOURSE TO A DISINGE NUOUS ARGUMENT NOR 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 ENVI SAGED. 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 & C O . LTD., (2004)(269 ITR 451)(KAR), HELD THAT THE MP NOS. 25 TO 35/ANG/2016 PAGE 10 OF 17 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 A N 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 APPARENT FROM THE RECORD AND NOT TO REVIEW ITS ORDER. SECTION 35 ALSO CLEARLY STATES THE MISTAKE SHOULD BE RECTIFIED BY AMENDING THE ORIGINAL ORDER. THEREFORE, RECTIFICATION PRESUPPOSES THE CONTINUED EXISTENCE OF THE ORIGINAL ORDER. WHEN AN AMENDMENT IS MADE TO THE ORIGINAL ORDER, THE AMENDMENT MERGES WITH THE ORIGINAL ORDER. THE ORIGINAL ORDER IS READ WITH THE AMENDMENT THERETO. IF THE POWER TO RECTIFY THE ORIGINAL ORDER BY WAY OF AMENDMENT TO THAT ORDER IS TO BE INTERPRETED AS PERMITTING RECALLING OF THE ORIGINAL ORDER, THEN THE ORIGINAL ORDER CEASES TO EXIST AND A FRE SH ORIGINAL ORDER IS MADE. RECALLING THE ORIGINAL ORDER INVOLVES REHEARING OF THE MATTER WHICH IS NOT THE PURPOSE AND INTENTION OF THE PROVISION FOR RECTIFICATION. WHEN THE WORDING OF THE STATUTORY PROVISION ARE CLEAR AND UNAMBIGUOUS AND CAN BE GIVEN EFFEC T WITHOUT ANY DIFFICULTY, IT IS NOT PERMISSIBLE TO GIVE AN EXTENDING MEANING TO THE PROVISION. THE WORDS 'AMENDED THE ORIGINAL ORDER TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD' DOES NOT MEAN RECALL THE ORIGINAL ORDER, REHEAR THE MATTER AND REPLACE THE ORIGINAL ORDER BY A FRESH ORDER. THE PURPOSE CAN BE ACHIEVED BY CONTINUING THE ORIGINAL ORDER AND PASSING AN AMENDMENT ORDER STATING WHATEVER IS NECESSARY TO RECTIFY THE MISTAKE APPARENT FROM THE RECORD. WHETHER THE ISSUE INVOLVED IS ONE OR MORE MAKES NO DIFFERENCE, AS WHAT IS CONTEMPLATED AND PROVIDED FOR IS AN AMENDMENT TO THE ORIGINAL ORDER AND NOT AN ORDER IN SUBSTITUTION OF THE ORIGINAL ORDER. MP NOS. 25 TO 35/ANG/2016 PAGE 11 OF 17 6.4 AS STATED BY US IN PARAGRAPHS SUPRA, T HE PETITIONERS MISERABLY FAILED TO POINT OUT THE MISTAKES COMMI TTED BY THIS TRIBUNAL IN PASSING THE IMPUGNED ORDER. THEREFORE, NO PREJUDICE HAS BEEN CAUSED TO THE PETITIONERS ON ACCOUNT OF ANY MISTAKES COMMITTED BY THIS TRIBUNAL. THEREFORE, WE ARE NOT ABLE TO APPRECIATE THE PROPOSITION CANVASSED BY THE LEARNED COUNS EL FOR PETITIONERS THAT THIS TRIBUNAL SHOULD ALLOW THE PRESENT MISCELLANEOUS PETITIONS BY INVOKING THE INHERENT POWER TO CORRECT ITS OWN MISTAKES. THE PETITIONERS HAD FILED THE PRESENT MISCELLANE O US PETI TIONS WITH THE INTENTION OF RE - ARGUING THE MATTERS WH ICH WERE CONCLUDED BY THIS TRIBUNAL . WE FIND THAT DISREGARDING THE CLEAR FINDING OF THIS TRIBUNAL ON THE ISSUES IN THE APPEAL, THE PETITIONERS HAD FILED THE PRESENT PETITIONS. IT IS OBVIOUS THAT THIS APPROACH OF THE PETITIONERS IS CLEARLY AGAINST THE PRI NCIPLES OF RES JUDICATA . 7. 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. 8. THE PR INCIPLES 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 P RINCIPLE IS `NEMO DEBET HIS VE ARI, SI CONSTET CURIAE QUOD SIT PRO UN AET EADEMN CAUSE' MEANING THEREBY THAT NO ONE OUGHT TO BE MP NOS. 25 TO 35/ANG/2016 PAGE 12 OF 17 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 C OMMON 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 CONTROVERS Y 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 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 WH Y 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 P REVENT ABUSE IN THE MATTER OF ACCESSING COURT FOR AGITATING ON ISSUES WHICH HAVE BECOME FINAL BETWEEN THE PARTIES. 10. 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. MP NOS. 25 TO 35/ANG/2016 PAGE 13 OF 17 11. A CONSTITUTION BENCH OF TH E HON BLE SUPREME COURT IN DEVILAL MODI VS. SALES TAX OFFICER, RATLAM & ORS. - AIR 1965 SC 1150, HAS EXPLAINED THIS PRINCIPLE IN VERY CLEAR TERMS: 'BUT THE QUESTION AS TO WHE THER A 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 UNDERL YING 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 REVERSE D 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 VS. STATE OF U.P. , 1962 - 1 S CR 575; (AIR 1961 SC 1457).' 11. THE HON BLE SU P R EME COURT IN 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. 11.2 I N 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 VS. MALLARD - (1947) 2 ALL ER 255 (CA): MP NOS. 25 TO 35/ANG/2016 PAGE 14 OF 17 '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 LITIGA TION 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. 1 3 . FOLLOWING ALL THESE PRINCIPLES , A CONSTITUTION BENCH OF HON BLE SUPREME COURT IN DIRECT RECRUIT CLASS II ENGG. OFFICERS' ASSN. VS. STAT E 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 COMING INTO THE LEGITIMATE PURVIE W 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 WR IT CASE IS FIT TO BE DISMISSED ON THE GROUND OF RES JUDICATA' 14. 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 MP NOS. 25 TO 35/ANG/2016 PAGE 15 OF 17 EXPLAINED IN EX PLANATION IV TO SECTION 11 OF THE CPC, ARE ALSO APPLICABLE TO WRIT PETITIONS. 15. 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 P RINCIPLES OF RES JUDICATA, AS HAS BEEN HELD BY HON BLE SUPREME COURT IN K.K. MODI VS. K.N. MODI AND ORS. - (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 W HEREOF 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...' IN COMING TO THE AFOREMENTIONED FINDING, HON BLE SUPREME COURT RELIED ON THE SUPREME COURT PRACTICE 1995 PUBLISHED BY SWEET & MAXWELL. TH E 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 PR EVENT 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 AB USE OF PROCESS ARE NOT CLOSED BUT DEPEND ON ALL THE RELEVANT CIRCUMSTANCES. AND FOR THIS PURPOSE CONSIDERATIONS OF PUBLIC POLICY AND THE INTERESTS OF JUSTICE MAY BE VERY MATERIAL.' MP NOS. 25 TO 35/ANG/2016 PAGE 16 OF 17 16. IN THE PREMISES AFORESAID, IT IS CLEAR THAT THE ATTEMPT BY THE PE TITIONERS 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 J UDICATA 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 CASE S 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 PETI TIONER HAD NOT APPROACHED THIS TRIBUNAL IN THE MISCELLANEOUS PETITIONS WITH CLEAN HAND, AS STATED SUPRA. A LITIGANT WHO APPROACHES THE COURT OF LAW WITH UN CLEAN HANDS DOES NOT DESERVE ANY RELIEF. EVEN ON THIS SCORE, THESE MISCELLANEOUS PETITIONS ARE LIAB LE 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 ADDITI ONAL GROUNDS HAVE BEEN SPECIFICALLY ADJUDICATED AND A SPECIFIC FINDING HA D BEEN RENDERED MP NOS. 25 TO 35/ANG/2016 PAGE 17 OF 17 VIDE PARA.9 OF THE IMPUGNED ORDER. ATTEMPTS MADE BY THE PETITIONERS IS NOTHING BUT CLEAR CASE OF ABUSE OF PROCESS OF COURT AND IN BREACH OF PRINCIPLES OF RES JUDICATA . WE CONDEMN THIS CONDUCT OF PETITIONER IN NO UNCERTAIN TERMS AS IT RESULTED IN COLOSSAL WASTE OF VALUABLE TIME OF THIS TRIBUNAL. 20. IN THE RESULT, THE M ISC. PETITIONS ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH AUGUS T , 2016 S D/ - S D/ - ( VIJAY PAL RAO ) (I NTURI RAMA RAO ) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE : BANGALORE D A T E D : 11 /0 8 /2016 SRINIVASULU, SPS COPY TO : 1 APPELLAN T 2 RESPONDENT 3 CIT(A) - II BANGALORE 4 CIT 5 DR, ITAT, BANGALORE. 6 GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME - TAX APPELLATE TRIBUNAL BANGALORE