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TMI Blog2016 (8) TMI 1429X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 jurisdictional High Court in the case of CIT vs. Dr.T.K.Dayalu (202 Taxman 531), though quoted during the course of arguments and relied upon by the learned counsel for the petitioners-companies, 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'ble 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 may be recalled by exercising the power of recall in the light of law laid d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 an instrument of transfer 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, tit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onveyed 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 transfers 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 Act. 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 can 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 referring to the judgment of 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tablished 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 decision of the Hon'ble jurisdictional High Court in the case of Dr.T.K.Dayalu (supra) was not applied to the facts of the case, cannot be accepted. 6.1 Even assuming that Dr.T.K.Dayalu (supra) case was cited and if considered also, the said decision has no bearing on the issue in the appeals. The decision 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 interpretation of the term 'belonging to' as employed by the provisions of sec.4 of the Wealth-tax Act, 1957. In any event, the decision in the case of Dr.T.K.Dayalu (supra) was not held to be good law by the subsequent decision by the very Hon'ble jurisdictional High Court in the case of CIT vs. N.Vemanna Reddy in ITA No.591/2008 dated 18/8/2014. Thus, decision in the case of Dr.T.K.Dayalu (supra) lost its precedential value, if any. Therefore, it goes withou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eto. 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 fresh 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 effect 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." 6.4 As stated by us in paragraphs supra, the petitioners miserably failed to point o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... damental 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. 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. 11. A Constitution Bench of the 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 whether 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 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 ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the Constitution Bench of Hon'ble Supreme Court, there can be no doubt that the principles of Constructive Res Judicata, as explained in explanation 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 principles 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 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..." 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 afores ..... X X X X Extracts X X X X X X X X Extracts X X X X
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