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2022 (2) TMI 1501
Money Laundering - it is contended that though a complaint under Sections 44 and 45 of the PMLA Act has been filed on 25.6.2019, the Appellate Tribunal has committed error in observing that no complaint has been filed under Section 8(3) (a) of the PMLA Act - HELD THAT:- The appeal has been filed subsequent to the order passed by the learned Appellate Tribunal.
At this stage, it is also pertinent to note that neither the prosecution complaint which has been filed on 25.6.2019 is produced on record nor the retention order of the Adjudicating Authority dated 4.4.2018 by which the goods seized from the respondent was ordered to be retained. Even the appellant has not filed any rejoinder to the reply dated 24.1.2022 filed by the respondent.
Conclusion - The appeal lacked merit due to the appellant's failure to comply with the statutory requirement of filing a prosecution complaint within the prescribed period.
Appeal dismissed.
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2022 (2) TMI 1500
TP Adjustment - adjustment to the taxpayer on account of accelerated depreciation charged in their books of account - HELD THAT:- We are of the opinion that the issue is covered by the decision of this Tribunal in the case of Outsource Partners International (P) Ltd. [2017 (10) TMI 1434 - ITAT BANGALORE] wherein it has been held that the depreciation adjustment is to be granted whereby the rates of depreciation is different vis-à-vis the comparable companies.
Whether adjustment should be made in the hands of the tested party i.e., the assessee or the comparable companies, decision in the case of Pangea 3 & Legal Database Systems (P) Ltd. [2017 (3) TMI 267 - ITAT MUMBAI] held that where rates of depreciation were different in case of assessee and comparable companies, Rule 10B(1) permits an adjustment in the hands of the tested party also and depreciation adjustment has to be allowed.
CIT(Appeals) followed the ratio laid down by the above decisions of the ITAT and we do not find any infirmity in the order of the CIT(Appeals) on this issue. Accordingly, the grounds raised by the revenue are rejected.
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2022 (2) TMI 1499
Noncompliance of judgment of this Court - effect of “change in law” - whether the respondents were in contempt for failing to comply with the Supreme Court's order dated 31.08.2020, which mandated the payment of compensation to the petitioner due to a "change in law" scenario? - HELD THAT:- As per the principle laid down by RERC and affirmed up till this Court, the petitioner has claimed an amount of Rs.5344.75 crores up to March, 2021. The said principle having been affirmed by the APTEL as well as by this Court and even in Review Petition, cannot be reopened now. It cannot be disputed that after March, 2021 also, the petitioner would be entitled to payment on the basis of the same calculation, which up to November, 2021 comes to Rs.130.69 crores. As such, the due amount upto November 2021 would be Rs.5344.75 + Rs.130.69 = 5475.44 crores. Out of this amount of Rs.5475.44 crores, the petitioner has been paid a sum of Rs.2426.81 crores in terms of the interim order passed by this Court. Hence, as per the petitioner, the balance amount of Rs.3048.63 crores would remain due to be paid up to November, 2021.
The interest at the maximum rate of 9% per annum, as capped by this Court vide its judgment and order dated 31.08.2020, is to be applied on the said amount, from the date the amount became due, till the date of actual payment. The further claim of late payment surcharge, amounting to Rs.2477.70 crores, as per the petitioner, would be a subject matter which the petitioner, if so advised, can claim before the appropriate forum, as the same is not the subject in question in the present proceedings, regarding which no directions have also been issued by this Court.
Conclusion - The respondents are liable for contempt for not complying this Court’s order dated 31.08.2020. The respondents are directed to pay to the petitioner, the principal amount (as per the terms/norms laid down in the judgment of this Court dated 31.08.2020) minus Rs.2426.81 crores deposited by the respondents in terms of the interim order dated 29.10.2018 (which, as per the petitioner, the balance payable amount would be Rs.3048.63 crores) along with interest as per the applicable SBAR for the relevant years, which should not exceed 9% per annum (to be compounded annually), from the date the amount became due till the date of actual payment, within four weeks from today, failing which the respondents shall appear before this Court in person, on the next date, so as to enable this Court to frame charges.
List on 31st March, 2022.
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2022 (2) TMI 1498
Bogus purchases - bogus accommodation bills - estimation of income - hawala transactions from certain parties who were only providing accommodation sale bills.
HED THAT:- Substantial questions of law are already covered by the order passed by this Court [2019 (2) TMI 1632 - BOMBAY HIGH COURT] and [2019 (7) TMI 838 - BOMBAY HIGH COURT]. Therefore both the Appeals be disposed.
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2022 (2) TMI 1497
Challenge to order u/s 264 - Petitioner had also the scope to invoke section 263 for revision of the same or if there was any mistake apparent from record, the petitioner could have invoked section 154
HELD THAT:- In spite of availability of the three remedies against the assessment order in question, petitioner invoked section 264 of the Act which is not appealable. This court cannot act as an appellate authority over the assessment order in question.
Furthermore, find the order under section 264 of the said Act which has been invoked by the petitioner himself knowing fully well that is not appealable; and in view of section 264(7), Explanation (1) of the said Act, any order passed by the Commissioner under section 264 of the Act shall not be deemed to be prejudicial to the assessee. WP dismissed.
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2022 (2) TMI 1496
Revision u/s 263 - opportunity of hearing to the petitioner not provided - HELD THAT:- The impugned order is set aside and the matter is remanded to the respondent, who is directed to give an opportunity of hearing to the petitioner, and pass appropriate orders in accordance with law. Such exercise shall be concluded within three months from the date of communication of the order and the petitioner shall not seek unnecessary adjournments in the matter. No order as to costs.
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2022 (2) TMI 1495
Legality of order transferring the Petitioner from Gwalior to Sidhi dated 8th July 2014 - legality of order rejecting the Petitioner's representations - resignation of the Petitioner dated 15th July 2014 can be considered to be voluntary or the one which has been forced due to circumstances.
HELD THAT:- The Petitioner has established that her transfer order was in contravention of the Transfer Policy and that the rejection of her two representations, in addition of being contrary to the Transfer Policy, were also arbitrary. As such, the Petitioner has discharged her burden and the onus is shifted on the Respondent No. 1 to show that the Petitioner's transfer order was fair and reasonable in the facts and circumstances of the case. We find that the Respondent No. 1 has utterly failed to discharge its burden. On the contrary, the admissions made before the JIC by the then Judge on the Transfer Committee clearly show that the transfer was made solely on the basis of the complaint made by the then D & SJ, Gwalior without verifying the veracity thereof. Not only this, but it is evident that the then Judge had not looked into the annexures attached with the representation, which included the fee receipts etc. of the Petitioner's daughter.
It is trite that the State is under the obligation to act fairly without ill will or malice--in fact or in law. "Legal malice" or "malice in law" means something done without lawful excuse. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. Where malice is attributed to the State, it can never be a case of malice or spite on the part of the State. It would mean exercise of statutory power for "purposes foreign to those for which it is in law intended". It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others.
The Petitioner's resignation dated 15th July 2014, could not be construed to be voluntary. In any case, immediately in a fortnight, on 1st August 2014, the Petitioner had made a representation to Hon'ble the President of India as well as the Chief Justice of India, with a copy to the Chief Justice of the MP High Court for reconsideration of the circumstances under which, she was left with no option but to resign. Though, it may not be possible to observe that the Petitioner was forced to resign, however, the circumstances enumerated hereinabove, would clearly reveal that they were such, that out of frustration, the Petitioner was left with no other alternative.
Conclusion - i) The Petitioner's resignation from the post of Additional District & Sessions Judge, Gwalior dated 15th July 2014, cannot be construed to be voluntary and as such, the order dated 17th July 2014, passed by the Respondent No. 2. ii) The Respondents are directed to re-instate the Petitioner forthwith as an Additional District & Sessions Judge. Though the Petitioner would not be entitled to back wages, she would be entitled for continuity in service with all consequential benefits with effect from 15th July 2014.
Petition allowed in part.
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2022 (2) TMI 1494
No objection to commence the process of pre-consultation - HELD THAT:- The Petitioner is also entitled to raise the issue of jurisdiction and limitation before the Respondent No. 2. The Respondent No. 2 shall pass an Order after hearing the Petitioner as to whether the Show Cause Notice dated 30th December 2020 issued by the Respondent No. 2 can be maintained in law or not.
The Respondent No. 2 shall not take any coercive steps against the Petitioner for a period of two weeks from the date of communication of the Order that would be passed by the Respondent No. 2, if the Order is adverse against the Petitioner.
Place the matter on board for ‘Directions’ on 25th April 2022.
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2022 (2) TMI 1493
Validity of Regulation 9 of Rajasthan Real Estate Regulatory Authority Regulations, 2017 - jurisdiction of RERA as being assignee of the promoter - orders passed by RERA are appealable before the Appellate Authority or not - interplay of RERA Act and SARFAESI Act - Applicability of decision in Bikram Chatterji [2019 (7) TMI 1233 - SUPREME COURT] - It was held by High Court that '(i) Regulation 9 of the Regulations of 2017 is not ultra vires the Act or is otherwise not invalid. (ii) The delegation of powers in the single member of RERA to decide complaints filed under the Act even otherwise flows from Section 81 of the Act and such delegation can be made in absence of Regulation 9 also. (iii) As held by the Supreme Court in the case of Bikram Chatterji in the event of conflict between RERA and SARFAESI Act the provisions contained in RERA would prevail. (iv) RERA would not apply in relation to the transaction between the borrower and the banks and financial institutions in cases where security interest has been created by mortgaging the property prior to the introduction of the Act unless and until it is found that the creation of such mortgage or such transaction is fraudulent or collusive. (iv) RERA authority has the jurisdiction to entertain a complaint by an aggrieved person against the bank as a secured creditor if the bank takes recourse to any of the provisions contained in Section 13(4) of the SARFAESI Act.'
HELD THAT:- The view taken by the High Court upheld.
However, it is clarified that the decision shall be applicable in a case where proceedings before the RERA authority are initiated by the homer buyers to protect their rights. With this, the Special Leave Petitions are dismissed.
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2022 (2) TMI 1492
Addition u/s 40A(3) - payments in question made by the assessee to Government undertakings - payment of legal tender - Whether the cash payments made by the assessee towards purchase of wine to the aforementioned undertakings of the Government, viz. (i) M/s Rajasthan State Ganganagar Sugar Mills Ltd; and (ii) M/s Rajasthan State Beverages Corporation Ltd., which as per him were to be considered as an arm of the State Government that had received the payment in legal tender, i.e., in Indian currency, would by virtue of the exception carved out in Rule 6DD(b) of the Income Tax Rules, 1962 be saved from the disallowance contemplated in Sec. 40A(3)? - HELD THAT:- Referring to tests laid down by the Hon’ble Apex Court in the case of Som Prakash Rekhi [1980 (11) TMI 113 - SUPREME COURT] we are of the considered view, that as both of the aforesaid undertakings, viz. (i) M/s Rajasthan State Ganganagar Sugar Mills Ltd; and (ii) M/s Rajasthan State Beverages Corporation Ltd., are State Government Companies wherein 100% share holding is held by the State Government; there is an existence of deep and pervasive control of the State Government on the said undertakings, and the full control of their working, policy and framework is vested with the State Government, therefore, they can safely be brought within the meaning of “State”.
As regards the requirements contemplated in Rule 6DD(b) that the payment is required to be made in legal tender, we find that the term “legal tender” has not been defined in the Income-Tax Act.
The dictionary meaning of “legal tender” as mentioned in “Aiyer’s Law Terms and Phrases”, is “the coinage of a country in which debts may be paid and which the creditor is bound to accept”. The dictionary meaning of the coin is; “metal used for the time being as money and stamped and issued by the authorities of the state in order to be used.” Therefore, it can be said that “legal tender” means the currency of a state which is to be used as money. Backed up our aforesaid observations, we are of the considered view, that as in the case of the assessee before us the payments in question to the aforementioned State Government undertakings have been made by the assessee in Indian currency, therefore, it can safely, or in fact inescapably be concluded that the same have been made in legal tender.
Thus the payments made by the assessee to the aforementioned Government undertakings , which could safely be held as a part of the Government would fall within the realm of the exception carved out in Clause (b) of Rule 6DD of the Income- Tax Rues, 1962, qua, the applicability of the provisions of Sec. 40A(3) of the Act - Payments in question made by the assessee to the State Government entities in legal tender were covered by the exception contemplated in Rule 6DD(b) of the Income Tax Rules, 1962, therefore, the same could not have been disallowed u/s 40A(3) of the Act, uphold his order. - Decided in favour of assessee.
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2022 (2) TMI 1491
Revision u/s 263 by CIT - Proof of lack of enquiry - HELD THAT:- Hon'ble Bombay High Court in the case of Gabriel India Ltd. [1993 (4) TMI 55 - BOMBAY HIGH COURT] has explained the meaning of "erroneous" as an order which is not in accordance with law, or which has been passed by the Income Tax Officer without making any enquiry in undue haste.
The Hon'ble Bombay High Court further explained the meaning of "Prejudiced" as "an order can be said to be prejudicial to the interest of the Revenue if it is not in accordance with law in consequence whereof, lawful revenue due to the state has not be realized or cannot be realized."
Facts mentioned elsewhere clearly show that this is not a case of lack of enquiry or assessment being framed in haste. Proper enquiries were made by the Assessing Officer during the course of assessment proceedings and after considering all the facts and evidences, the Assessing Officer took a view which is a plausible view. Therefore, it is not open to the ld. PCIT to direct a re-enquiry as he is of a different view.
We are of the considered opinion that the assessment order dated 26.12.2018 is neither erroneous nor prejudicial to the interest of the Revenue. - Decided in favour of assessee.
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2022 (2) TMI 1490
Rejection of application filed under Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - seeking rectification of the alleged mistake apparent from the records - HELD THAT:- The Petitioner had already filed an Application for rectification of alleged mistake under Section 74 of the Chapter V of the Finance Act 1994 on 13/07/2018. It is not in dispute that the Assessing officer has rejected the said application on 20/02/2019. On 08/04/2019, the Petitioner preferred an Appeal under Section 85 of the said Finance Act 1994 much prior to Notification issued by the Central Government on 01/09/2019 introducing the said Scheme.
It is not disputed by the Respondents that against an assessment Order, an assessee can file an application for rectification under Section 74 of the Finance Act 1994. The said application for rectification filed under Section 74 came to be rejected by the assessing officer. It is not in dispute that the said Order passed by the Assessing Officer refusing to allow application for rectification filed under Section 74 was appealable under Section 85 of the Finance Act 1994. The said appeal was admittedly pending as on 30/06/2019 - if the said application for rectification would have been allowed partly or fully by the assessing Officer, under Section 74 (7), the assessing officer was required to give effect and implement the said Order, if any, on the application for rectification. A perusal of the said Section 74 (7), indicates that where any such amendment has the effect of enhancing the (liability of the assessee) or reducing the refund already made, the (Central Excise Officer) shall make an order specifying the sum payable by the assessee and the provisions of said chapter shall apply accordingly.
It is clear beyond reasonable doubt that any Order allowing the said application for rectification partly or fully would modify the Order in original passed by the Assessing Officer in pursuance of show cause notice issued by the assessing Officer. Such Order of rectification has to be read with the Order in Original. The said Order is also appealable under Section 85 of Finance Act, 1994 - In this case the Petitioner had already filed the appeal against the Order passed by the Assessing Officer under Section 74 of the Finance Act, 1994 rejecting the application for rectification. There is no merit in the submission of the Mr. Mishra, the learned counsel for the Respondents that the declaration form filed by the Petitioner could only fall under “arrears category” within the meaning of Section 121 (c) on the ground that the Petitioner had not filed any appeal against the Order in original.
The view taken by the respondents is not only contrary to various principles of law laid down by this Court in catena of decisions referred to aforesaid but also contrary to the objects and intent of the Central Government in introducing the said scheme for the benefit of the assessee and to bring them out of litigation forever pending under pre-GST regime. The view taken by the respondents thus deserves to be quashed and set aside with the order of remand.
The impugned Order dated 06/03/2020 passed by the Designated Committee requiring the Petitioner herein to pay the amount of ₹ 13,18,433.20/- placing the declaration form submitted by the Petitioner under “arrears category” is quashed and set aside - declaration form SVLDRS filed by the Petitioner on 15/01/2020 is to be placed before the Designated Authority. The designated authority is directed to consider the said declaration under ‘litigation category’ and shall issue discharge Certificate within 30 days from the date of the Petitioner paying the amount as reflected in SVLDRS-1 - Petition allowed.
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2022 (2) TMI 1489
Release of confiscated conveyance alongwith the goods - non-speaking order - invocation of writ jurisdiction of this Court under Article 226 of the Constitution - HELD THAT:- This writ application against the final order passed by the Authority concerned in MOV-11 confiscating the goods and the conveyance, should not be entertained. The entire evidence will have to be looked into which has come on record. In such circumstances, the writ applicant herein as well as the applicant of the Civil Application are relegated to prefer an appropriate appeal under Section 107 of the Act before the Appellate Authority.
If any such Appeals are filed, the Appellate Authority shall look into those and decide them in accordance with the law expeditiously. We clarify that even pending the Appeals, it shall be open for the writ applicant herein being the owner of the goods and the applicant of the Civil Application being the owner of the conveyance to prefer an appropriate application for the provisional release of the goods as well as the conveyance.
This writ application stands disposed off.
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2022 (2) TMI 1484
Penalty imposed under section 129(3) of the Central Goods and Services Tax Act, 2017 - whether there was an e-way bill, as contemplated under Rule 138(14) of the CGST Rules and that in such circumstances, entertaining this writ petition under Article 226 the Constitution of India is impermissible? - HELD THAT:- Rule 138(2A) of CGST Rules provides for generating an e-way bill either before or after commencement of the movement and if the transportation is through special carriers like the railways or the airways, the goods should be released by the special carrier only after production of the e-way bill. The section is explicit that the e-way bill must be generated either before or after commencement of movement. Obviously the e-way bill must be generated before completion of movement and as per the proviso, the e-way bill must be produced at the time of delivery.
However, whether the transportation was only through railways or whether any other mode of conveyance was involved during transportation is a question of fact to be determined. Further, whether the petitioner satisfied the requirements of Rule 138(14)(b), especially the alleged transportation from the place called Alipur to New Delhi Railway Station by a non-motorised conveyance, are all matters which are in the realm of disputed facts. The assessing officer had found irregularities, even in respect of the e-way bill submitted, which also indicates an area of disputed facts.
The petitioner ought to proceed under the statutory remedies available and not by invoking the extraordinary jurisdiction under Article 226 of the Constitution of India.
Petition dismissed.
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2022 (2) TMI 1483
Approval of Resolution Plan of the Corporate Debtor - section 30(6) and section 31 of the Insolvency and Bankruptcy Code, 2016 r/w regulation 39 (4) of Insolvency and Bankruptcy Board of India (Insolvency Resolution process for Corporate Persons) - HELD THAT:- The conditions provided under Section 31(1) are that the resolution plan is approved by Committee of Creditors under Section 30 (4) of the Code and that the resolution plan so approved meets the requirement of Section 30(2) and that the Resolution plan has provisions for its effective implementation.
Section 30(2)(a) the Resolution Plan provides in payment of Rs. 75 lakhs towards CIRP cost within a period of 15 days of effective date and in priority for the Creditors, section 30(2)(b) it is stated that the Form H states that the fair value of the Corporate Debtor is 18,61,29,096/-and the Liquidation value is 33,83,34,076/- - The Resolution Plan proposes to pay Rs. 5 lakhs to the Secured Financial Creditor Rs. 0.54 lakhs to the workmen and employees, the resolution plan proposes that the dues payable to the unsecured financial creditors shall be entirely paid/ written off, the plan also provides that 5% of statutory dues will be paid i.e. 0.86 lakhs will be paid and the balance will be waived off, the operational creditors would be paid an amount of Rs. 6.7 lakhs within a period of 60 days. The existing equity shares shall get written off and 10 lakhs new equity shares of Rs. 10 each for cash at par shall be issued to resolution applicant.
Reliance placed on the judgement of the Hon’ble Supreme Court in case of K. Shashidhar Vs IOB [2019 (2) TMI 1043 - SUPREME COURT], wherein it was held inter alia that no corresponding provision has been envisage by the legislature to empower the Resolution Professional, Adjudicating Authority, of that matter NCLAT to reverse the commercial decision of the CoC. It is also held that the commercial decision of Financial Creditor are not open for judicial review by Adjudicating authority and by Appellate Authority. Therefore, in view of the above discussion. The decision taken by the Financial Creditor/CoC Members falls within the ambit of its commercial and banking wisdom and is therefore not being interfere with.
Conclusion - The decision taken by the CoC falls within the ambit of its commercial wisdom and cannot be interfere with.
The Resolution Plan as approved is binding on the Corporate Debtor and other stakeholders involved so that the revival of the Corporate Debtor can come into force with immediate effect - Application disposed off.
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2022 (2) TMI 1482
Bogus purchases - bogus accommodation bills - hawala transactions from certain parties who were only providing accommodation sale bills - HELD THAT:- All these appeals are covered by an order passed in M/S. PARAMSHAKTI DISTRIBUTORS PVT. LTD. [[2019 (7) TMI 838 - BOMBAY HIGH COURT] and M/S MOHOMMAD HAJI ADAM & CO. [2019 (2) TMI 1632 - BOMBAY HIGH COURT] wherein held that purchases cannot be rejected without disturbing the sales in case of a trader and additions limited to the extent of bringing the G.P. rate on purchases at the same rate of other genuine purchases.
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2022 (2) TMI 1481
Validity of withdrawal of the petition by the appellants, DISCOMS for approval of the Power Purchase Agreement (PPA) - determination of capital cost and tariff for the power project by HNPCL - HELD THAT:- It is trite that, while considering grant of approval to the PPA, the State Commission will have to keep in mind the public interest. It will have to consider, as to whether the PPA, which is subject to approval, subserves the public interest. It will also be required to take into consideration, as to whether the terms agreed are fair and just while granting approval. While exercising power under Section 86(1)(b) of the Act of 2003, the Commission will have to regulate the price at which the electricity would be procured from the generating companies. Undoubtedly, while doing so, the Commission will be guided by the factors mentioned in Section 61 of the Act of 2003 and the Regulations concerning the same. Under Section 86(1)(f) of the Act of 2003, the Commission is also empowered to adjudicate upon the disputes between the licensees and generating companies, and to refer any such dispute for arbitration.
Insofar as the reliance placed on the provision of Regulation 5.2 of the Tariff Regulations is concerned, the same deals with approach to determination of tariff. It could be seen that, whereas Regulation 5.1 of the Tariff Regulations provides that where tariff has been determined through transparent process of bidding in accordance with the guidelines issued by the Central Government, the Commission shall adopt such tariff in accordance with the provisions of the Act; Regulation 5.2 of the Tariff Regulations provides that the provisions specified in PartII of the said Regulation shall apply in determining tariff based on capital cost for supply to a Distribution Licensee. PartII of the Tariff Regulations deals with ‘Filing Details’ and ‘Tariff Determination’.
Undisputedly, the appellants – DISCOMS are instrumentalities of the State and as such, a State within the meaning of Article 12 of the Constitution of India. Every action of a State is required to be guided by the touchstone of non-arbitrariness, reasonableness and rationality. Every action of a State is equally required to be guided by public interest. Every holder of a public office is a trustee, whose highest duty is to the people of the country. The Public Authority is therefore required to exercise the powers only for the public good.
There are no hesitation to hold that the appellants – DISCOMS could not be permitted to change the decision at their whims and fancies and, particularly, when it is adversarial to the public interest and public good. The record would clearly show that the change in decision is arbitrary, irrational and unreasonable.
There are no reason to interfere with the impugned judgment. However, before parting with the judgment, it is necessary to place on record the conduct of the appellants – DISCOMS - appeal dismissed.
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2022 (2) TMI 1480
Benefit of exemption - Import of Camera - Extended period of limitation - Jurisdiction of DRI to issue Show Cause Notice (SCN) - Proper Officer - Validity of proceeding initiated for Recovery of duty not paid - clearance of the cameras on the basis that they were exempted from levy of basic Customs duty under Notification No.15/2012 - Section 28(4) of the Customs Act, 1962 - whether the Directorate of Revenue Intelligence had authority in law to issue a show cause notice under Section 28(4) of the Act for recovery of duties allegedly not levied or paid when the goods have been cleared for import by a Deputy Commissioner of Customs who decided that the goods are exempted.
HELD THAT:- Applications seeking exemption from filing affidavits are allowed.
Applications seeking oral hearing of the Review Petitions are allowed.
List the Review Petitions on Wednesday, the 9th March, 2022.
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2022 (2) TMI 1479
Suit for perpetual injunction - suit property forming part of which khasra? - plaintiff is owner in settled possession of the suit property or not - DDA alleged that the Plaintiffs had no right, title and interest in the suit property and the intention of the Plaintiffs was only to grab DDA's land by unauthorizedly constructing their house on the same - whether the Appellate Court's judgment deserves to be interfered with or not? - HELD THAT:- Before examining the findings of the Courts below, this Court notes that there is an existing decision of a ld. Single Judge of this Court in respect of the same Khasra No. 48/7, as involved in the present second appeal. In the said case being RSA 28/2001 titled Subhadra & Anr. v. D.D.A. [2010 (11) TMI 1140 - DELHI HIGH COURT], the ld. Single Judge was dealing with another portion of land falling in the same Khasra being residential house nos. 20-H and 20-I, in Khasra No. 48/7. Even in that case, the Trial Court and the Appellate Court had held that the demarcation which was done was not in accordance with law. The suit had been dismissed by the Trial Court and the Appellate Court had endorsed the same findings.
Similarly, even in the present case, the Local Commissioner's report cannot be relied upon as the Local Commissioner clearly stated that he could not determine the points from where the demarcation had to be carried out. Thus, the plaintiffs in the said RSA 28/2001 would therefore be similarly placed to the Plaintiff in the present case.
In the present case also, similar to the decision in Prabhagiya Van Adhikai [2021 (10) TMI 1447 - SUPREME COURT] the manner in which the possession of Plaintiff/his family members is shown in some khasra girdawaris, that too as agriculturists and cultivators, for some sporadic periods but not continuously, does raise doubts as to whether they were in continuous possession or not. Therefore, the mere mention in some years of khasra girdawari showing possession, cannot by itself confer ownership and title in respect of such precious land.
In so far as the Trial Court's finding stating that DDA cannot dispossess the Plaintiffs without due process of law, is concerned, this is clearly an erroneous approach inasmuch as even if the Plaintiffs are stated to be in settled possession, it is not necessary for the DDA to file a suit to take possession from them. The DDA can, as a Defendant, establish before the Court that the Plaintiffs are in possession of a government land and the same can result in dismissal of the suit. Due process of law, as is settled in several judgments of the Supreme Court and this Court, does not always require initiation of action by the owner/Government. Dismissal of a suit by a competent Court of law after affording proper opportunity to the parties, is also a recognized mode of following the due process of law.
The mere sporadic or stray entries in the revenue records cannot confer title, and the facts mentioned above, this Court is of the opinion that the Plaintiff has failed to establish that there is any substantial question of law which deserves to be adjudicated upon in the present second appeal. In fact, from the evidence which has emerged from the record, it is clear that apart from some mention in khasra girdawaris, there are no other concrete documents which have been filed by the Plaintiff to discharge the heavy onus that is placed on him.
This Court is also conscious of the fact that the suit property in question is stated to be near a South Delhi Colony, adjacent to Safdarjung Enclave/Green Park and is very valuable. The Plaintiff who is in possession of a large part of this suit property, cannot continue to remain in possession, as permitting the same would be a giving a premium to illegal encroachments and occupations on public land.
The present second appeal accordingly deserves to be dismissed - appeal dismissed.
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2022 (2) TMI 1478
Applicability of time limitation under Section 11B of the Central Excise Act to refund claims for amounts paid under a mistaken notion - eligibility for exemption under Notification No. 25/2012-ST - interest on the refund claim from the date of deposit till the refund date - difference of opinion.
HELD THAT:- The limitation contemplated under section 11B of the Excise Act would not be attracted in a case where any amount, even though it is not payable as service tax, is paid under a mistaken notion.
The papers may be placed before the Division Bench for deciding the appeal.
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9911796707
