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2010 (12) TMI 1328

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..... ated 04.11.2010 Under Section: 143, 147, 149, 186, 189, 353, 427, 451, and 506 IPC against Sh. Parshuram Mishra, Advocate, Lucknow and others. Allegation: It was alleged by Shri Raj Kumar, Reader, Judicial Magistrate-II, Lucknow that on 05.03.2008 some advocates damaged window panes, name plate of the Presiding Officer and also damaged notice board and the cause list. On the same day, Smt. Somprabha Tripathi, the then Judicial Magistrate-II, Lucknow also reported that Shri Parshuram Mishra, Advocate, Lucknow alongwith 5-6 other advocates went on a rampage indulging in violence and ransacking her chamber as also obstructing judicial work by slogan shouting. (ii) RC/DST/2010/S/0006 dated 04.11.2010 Under Section 323, 332, 353, 504, 506, 307 IPC, Section 7 C.L.A and Section 3/4 Prevention of Damage to Public Property Act, 1984 against Sh. Shiv Sharan Upadhyay, Advocate and 15-20 other advocates. Allegation: It was alleged that on 06.11.2008 at about 10-10.15 AM Sh. Shiv Sharan Upadhyay, advocate alongwith 15-20 other advocates threatened and assaulted Shri Dinesh Lal Verma, Liftman and snatched the keys, threatened and assaulted Sh. Anees, Chowkidar and snatched t .....

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..... (v) Sh. Ishwar Kant @ Baba (vi) Sh. Anil Singh (vii) Sh. Manoj Kumar Singh. Allegation: It was alleged that Sh. Kr. Gajraj Singh, Advocate, Sh. A.H. Khan, Advocate, Sh. Ranveer Singh, Advocate, Sh. Ravindra Kumar Yadav, Advocate, in connivance with Sh. Ishwar Kant @ Baba, Anil Singh and Manoj Kumar Singh, with intention to grab land measuring 22 Bigha, 13 Biswa and 15 Biswansi, situated in village Bhaudri, District Lucknow, committed forgery by getting sale deed of the said land executed, by impersonating late Ram Prashad Ahuja who had died much before execution of the said sale deed. (vii) RC/DST/2010/S/0011 dated 04.11.2010 Under Section 323 and 504 IPC against Sh. Akbar Hussain @ Sajju S/o Late Asgar Hussain R/o 45, South Bagh, Opp. City Mal Godown, PS Wazirganj, Lucknow and other 2 unknown persons. Allegation: It was alleged by the complainant Sh. Syed Masood Agha that on 04.10.2010 Sh. Akbar Hussain @ Sajjoo, advocate along with two others abused and assaulted him while he was sitting in the chamber his advocate Sh. Padam Kirti in the family Court compound. (viii) RC/DST/2010/S/0012 dated 04.11.2010 Under Section 323, 506 and 511 IPC against (I) Sh. Ash .....

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..... his right hand. 3. As regards the action taken report submitted by Special Income Tax Investigation Committee, since the nature of investigation is confidential and the process is likely to take some time, it would not be desirable in the interest of justice to refer to any information as contained therein. 4. Now, coming to C.M. Application No. 115366 of 2010 filed by Shri B.P. Pandey, Advocate, on behalf of Abhishek Singh, Advocate, for setting aside the ex parte order dated 28.10.2010 with alternate prayer to assign the Cross FIR 378/2010 dated 22.09.2010 to CBI if the first prayer is not allowed, we may refer to the legal position regarding the arguments on application of provisions of Code of Civil Procedure in the writ matters with prayers for exercise of extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India by the High Courts. 5. In the case of Puran Singh and Ors. v. State of Punjab and Ors. reported in : (1996) 2 SCC 205, Honble the Apex Court has held that in exercise of extraordinary jurisdiction under Article 226 or 227 of the Constitution, the High Court is free to adopt its own procedure which is reasonable and expeditious. In pp. .....

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..... roceedings then in many cases it may frustrate the exercise of extra-ordinary powers by the High Court under Articles 226 and 227 of the Constitution. 10. On a plain reading, Section 141 of the Code provides that the procedure provided in the said Code in regard to suits shall be followed as far as it can be made applicable, inall proceedings . In other words, it is open to make the procedure provided in the said Code in regard to suits applicable to any other proceeding in any court of civil jurisdiction. The explanation which was added is more or less in the nature of proviso, saying that the expression proceedings shall not include any proceeding under Article 226 ofthe Constitution. The necessary corollary thereof shall be that it shall be open to make applicable the procedure provided in the Code to any proceeding in any court of civil jurisdiction except to proceedings under Article 226 of the Constitution. Once the proceeding under Article 226 of the Constitution has been excluded from the expression proceedings occurring in Section 141 of the Code by the explanation, how on basis of Section 141 of the Code any procedure provided in the Code can be made applicable to .....

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..... ring the remedy available to a person who pursues such remedies. The High Court should be left to adopt its own procedure for granting relief to the persons concerned. The High Court is expected to adopt a procedure which can be held to be not only reasonable but also expeditious. 6. Similarly, in another judgment of Honble the Apex Court in the case of Commissioner of Endowments and Ors. v. Vittal Rao and Ors. reported in : (2005) 4 SCC 120, the aforesaid legal position has been reiterated as under: 17. The High Court while exercising jurisdiction under Article 226 of the Constitution has jurisdiction to pass appropriate orders. Such power can neither be controlled nor affected by the provisions of Order 23 Rule 3 CPC. It would not be correct to say that the terms of Order 23 Rule 3 should be mandatorily complied with while exercising jurisdiction under Article 226 of the Constitution. Otherwise an anomalous situation would arise such as before disposing of the writ petition, issue should be framed or evidence should be recorded, etc. Proceedings under Article 226 of the Constitution stand on a different footing when compared to the proceedings in suits or appeals arising th .....

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..... a stand against this growing menace in absence of such support this issue also would be just another incident happening everyday in the subordinate courts. Thus, the averments of petition are essentially not a complaint about an sporadic incident like Petitioners case but primarily against the unruly atmosphere prevailing in the District Court premises which till before our earlier orders (as above) were passed was prominently marked with the incidents of violence indulged into by some criminal elements who had succeeded to a large extent in hijacking the justice delivery system. It has also come to our notice that most of such incidents have remained unreported due to the fear of the said criminal elements. Thus, the situation being emergent, some extraordinary measures were required to deal with such elements firmly in order to uproot them, and also in order to eradicate the illegal activities, as alleged going on in the court campus. In this background we passed the following three orders dated 05.10.2010, 25.10.2010 and 28.10.2010, which on reproduction read as: Honble Uma Nath Singh, J. Honble V.K. Dixit,J. Pursuant to the order dated 04.10.2010, learned Advocate .....

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..... -world and forcing them to become a misguided lot of the Bar with assurance to get them quick bucks with all the modern luxuries of life. They have virtually taken over the control of legal profession by wreaking vengeance and unleashing terror against the lawyers, litigants, police officers, administrative officers and the members of public, who have till date only remained defensive and on the receiving end. It is also informed that in the past few years, these criminal elements in the Bar have also misused the courts premises on the strength of muscle powers, for carrying out illegal activities and the occupations other than the legal profession like property dealing/grabbing and taking all types of contracts including the contracts for assaulting the litigants, police officers, and witnesses etc. as also for pressurising the judicial officers. Sri Raj Kumar Yadav, President of the Central Bar Association of District Court, Lucknow, also has some frightful story to tell, and he assures the Court of his fullest co-operation in purging the Bar of the said criminal elements and the outlaws. Sri N.K. Seth, a learned senior counsel of the High Court, intervenes to submit some docu .....

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..... in a sealed cover about the criminal activities being indulged into and carried out by the members of District Court Bar from inside and outside the court premises having reflections on the functioning of Bar and courts in the light of and on the line of the aforesaid reports and complaints. The local Intelligence Unit (LIU) of the State Police shall render all necessary assistance, and submit the complete materials/ information available with it to the Joint Director, Intelligence Bureau. The Deputy Inspector General of Police-cum-S.S.P. and the District Magistrate, Lucknow, shall also furnish the entire records available in their offices and with the Lucknow District Police relating to such cases as aforesaid to the Joint Director, Intelligence Bureau for submission of a comprehensive but independent report in terms of the directions. The Director, C.B.I. shall constitute an special team of C.B.I. Officers under the supervision of a senior officer, not below the rank of Joint Director, who shall have no connection with the State of U.P. The Joint Director so nominated by the C.B.I. Director shall remain present in the Court on the next date of hearing so as to carry out the d .....

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..... orities at the earliest by fax for compliance. 05.10.2010 Honble Uma Nath Singh,J. Honble Virendra Kumar Dixit,J. Copies of written submissions on behalf of learned Attorney General for India and Union Law Secretary, and also on behalf of I.B. (Subsidiary Intelligence Bureau) U.P., filed and referred to during the course of Court proceedings, are taken on record. On request of learned Additional Solicitor General of India, personal appearance of learned Attorney General for India is dispensed with until further orders. In Para 7 of the written submissions on behalf of I.B., it is averred as follows: 7. That the concern of the Honble Court regarding criminal activities in the Court was discussed in the Government of India, Ministry of Home Affairs and the Government of India views the issue raised by the Honble Court as matter of concern and is fully prepared to extend all help in its investigation. However, it is humbly submitted for consideration of the Honble Court that the appropriate agency for doing this investigation is the Central Bureau of Investigation (CBI). We thus record a note of appreciation for the response shown by the Ministry of Home Affairs, Gov .....

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..... At this stage, learned Additional Solicitor General of India, Dr. Ashok Nigam, prayed for constituting a Special Investigation Team (SIT) to investigate the criminal cases pending against the criminal elements of Bar as referred to in the report of Learned District and Sessions Judge, Lucknow, and the complaints addressed to this Court. Thus, we direct the constitution of a SIT to be headed by Joint Director of Central Bureau of Investigation, Shri O.P. Galhotra, who is present in Court, which shall comprise the members of Special Task Force of U.P. and the paramilitary forces of the Central Government in order to conduct the investigation and prosecution of the cases in question independently, and to take the proceedings to their logical conclusion. As the Law Commission of India has not entered appearance today, we issue a fresh notice to know its views by way of written submissions on the next date of hearing. On request of learned Chief Standing Counsel, U.P., appearance of Inspector General of Police, Lucknow, Dy. Inspector General of Police, and District Collector, Lucknow, is exempted only for the next date of hearing. However, they shall continue to appear and par .....

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..... earing AIBE etc. The Bar Council of India and State Bar councils would maintain all the details starting from a student joining law college/university. This would entitle the Bar Council to track the history of a lawyer starting from the law college he studied till the present status. The lawyer would further need to use this UIN in his or her Vakalathnamas and an improper UIN or number would not entitle one to file a Vakalathnama. This would in turn help tracking the quacks in the profession because UNI would directly track the details/history of the lawyer. The Bar Council of India is in the process of collecting the data for the same. 2. All India Bar Examination [AIBE]: In the ongoing case of Bar Council of India v. Bonnie Foi Law College, S.L.P. (c ) No. 22337 of 2008, the Honble Supreme Court of India, while deciding on the issue of affiliation of law colleges with the Bar Council of India, noted its concerns about the diminishing standards of professional legal education in India. The bench consisting of Honble Mr. Justice Dalveer Bhandari and Honble Mr. Justice H. L. Dattu constituted a three member committee consisting of the Solicitor General of India, Mr. Gopal Sub .....

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..... be an open book examination and the candidates are allowed to carry the preparatory materials, books or any materials they wish except for electronic devices like pagers, cell phones etc. The AIBE will be conducted in nine languages, and the preparatory materials sent to each candidate will be in the same language as the one they choose to write the AIBE. The AIBE shall be conducted at 27 cities across India-in a major city in most states in India. Upon successfully clearing the AIBE, an advocate will be permitted to practice law in India and will receive a Certificate of Practice from the Bar Council of India. Bar Council of India has received more than 12,000 forms and is in the process of dispatching preparatory materials to the candidates in the languages opted by them. 3. Continuing Legal Education [CLE]: Continuing Legal Education program popularly known as CLE will be setup as an immediate priority. In few countries it is also known as Continuing Professional Development (CPD). It is highly necessary to augment the information, integrity and confidence of advocates in the country to compete at international levels. The CLE/CPD refers to professional education of .....

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..... by advocates and (ix) general duties. The Code also lays down the standard of presentation before a court, prohibition on misleading statements, maintenance of confidentiality and privilege, standard to be followed in cases of conflict of interest and remuneration and professional fees. Furthermore, the new Code emphasizes that an advocate is expected to conduct himself/herself with honesty, dignity and self-respect. An advocate is expected to treat opposing advocates and all witnesses and officers of the court with dignity and respect and refrain from making any personal statements against any of them unless it pertains to the merits of the case. An advocate must not knowingly make a false statement to the opponent in relation to the case (including its compromise). 7. Disciplinary Committee Division-One of the functions of Bar Council of India inter alia is to lay the procedure to be followed by its disciplinary committee and the disciplinary committee of each State Bar Council and to deal with and dispose of any matter arising under this Act, which may be referred to it by a Sate Bar Council. BCI has proposed an exclusive department to handle Disciplinary matters. The dep .....

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..... on 27.09.2010 and 28.09.2010. (vi) The incident referred to at Para-17 of the report of learned District Sessions Judge, Lucknow, pertaining to land grabbing by a group of lawyers by impersonation and forgery. (vii) The incident referred to at Para-18(iv) of the report of learned District Sessions Judge, Lucknow, pertaining to a complaint by a private person against lawyer alleging physical violence on him while he was sitting in the chamber of his counsel on 04.10.2010. (viii) The incident referred to in the complaint submitted by Shri Prashant Singh Gaur, Advocate to the Honble Administrative Judge, Lucknow, dated 04.10.2010 alleging assault/beating in the Court premises by 5 lawyers on 22.09.2010. (ix) Complaint of Smt. Usha Nigam, Advocate, Civil Court, Lucknow, with reference to Case Crime No. 106/2008 registered on 17.03.2008 on 12.30 PM at P.S. Wazirganj, Sub-district Sadar, Lucknow, lodged by Shri Shivraj Mohan, Advocate. (x) Case Crime No. 137/2009 registered under Section 395 IPC at P.S. Wazirganj, Sub-district Sadar, Lucknow, on 25.03.2009 at 2.30 PM lodged by Shri J.P. Yadav, Advocate, and (xi) F.I.R. No. 398/2010 under Section 147, 323, 394, 427, .....

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..... te General, assures the Court that the State Government shall provide all necessary help and full support as indicated hereinabove to SIT of CBI and Chief Income Tax Commissioner in discharge of their duties. Shri I.H. Farooqi, learned Assistant Solicitor General of India appearing for Law Commission of India and Union Law Secretary assures the Court to place on record the views of concerned authorities of Central Government on the question of formation of proposed Legal Profession Authority of India and also the information relating to security auditing of District Court Lucknow, which had witnessed a serial bomb blast in the past, say about 2 years back. Lastly, we again clarify that all the directions issued in this matter earlier and hereinabove are only meant to apply in the cases against the criminals who are at war with the innocent and regular members of the legal profession and thus the SIT and Income Tax team shall take all necessary precautions in their exercise of powers to gain confidence and command the respect of legal fraternity. This matter shall remain part heard. List on 29.11.2010 at 02.00 P.M. 28.10.2010 9. In view of all the aforesaid, we wou .....

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..... is only at investigation stage and the applicants rights as an accused to defend his case are not hampered or defeated in any manner by these three orders passed by this Court and such rights are well protected under the provisions of Cr.P.C and other enactments dealing with the subject matter. 12. In his application (C.M.A. No. 120218 of 2010), Prashant Singh Gaur has also prayed for transfer of Cross FIR against him and others to CBI. 13. Thus, we partly allow both the applications namely C.M.A. No. 115366 of 2010 and C.M.A. No. 120218 of 2010 to the extent of assigning the investigation of Cross F.I.R/Case Crime No. 378 of 2010 lodged by Abhishek Singh, Advocate, against Petitioner Prashant Singh Gaur, Advocate and others at P.S. Wazirganj on 22.09.2010 to SIT (CBI) as it also originates in one of those incidents which took place inside the District Court campus. However, insofar as the prayer for setting aside the order dated 28.10.2010 is concerned, it is hereby declined and rejected in the premises and for the reasons set out herein above. 14. The Law Commission of India has also submitted its views in terms of directions given in our earlier orders, wherein, beside .....

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..... shall be concluded within one year. Section 36 deals with disciplinary powers of Bar Council of India. Sub-section (2) of Section 36 empowers the disciplinary committee of BCI either on its own motion or on a report by State Bar Council or on an application made to it by any interested person withdraw for inquiry before itself any disciplinary proceedings pending against any advocate before the committee of any Bar Council and dispose of the same. Re: Rule-making power Power of High Court to make rules (Section 34): The High Court can make rules laying down the conditions subject to which an advocate shall be permitted to practise in a High Court and courts subordinate to it. The Bar Council of India may make rules prescribing the conditions subject to which an advocate shall have the right to practice in a court, the standard of professional conduct and etiquette to be observed by advocates, general principles for guidance of State Bar Council etc. (vide S. 49A State Bar Council may make rules under Section 28 relating to the form of application for admission on its rolls, the manner in which such application has to be disposed of and the conditions subject to which a perso .....

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..... n into cases involving the advocates and the trials of such cases are completed without unnecessary delay. Priority ought to be given to such cases. The reasons for delay including the dilatory tactics adopted by the accused advocate should be brought to the notice of High Court. The High Court may in its turn issue necessary instructions. 6. If an accused advocate applies for enrollment, it may be refused for the time being, i.e. till the conclusion of criminal proceedings, provided the committee is satisfied on a perusal of the FIR, the chargesheet and other relevant material that the applicant is not fit to be enrolled as an advocate. The discretion to refuse admission is implicit in s. 26. However, mere pendency of a criminal case involving moral turpitude by itself will not justify refusal of admission. Obviously, the discretion has to be exercised reasonably and with circumspection. Further, the fact that s. 24A prescribes disqualifications for enrollment does not mean that in the absence of such disqualificatory factors, a law graduate having qualification prescribed in s. 24 is automatically entitled for enrollment. If s. 24A is attracted, the enrollment Committee has no .....

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..... sing, though if he/she is found guilty of contumacious conduct or of an offence/professional misconduct involving moral turpitude, the High Court can prevent the appearance of such person in the court on behalf of the client. 10. A Constitution Bench of Supreme Court held in the case of Supreme Court Bar Assn. v. UOI : AIR 1998 SC 1895: After the coming into force of the Advocates Act, 1961, matters connected with the enrollment of advocates as also their punishment for professional misconduct is governed by the provisions of that Act only, since the jurisdiction to grant licence to a law graduate to practice as an advocate vests exclusively in the Bar Council of the concerned State, the jurisdiction to suspend his licence for a specified term or to revoke it also vests in the same body (vide p.1915 para 69). It was then clarified: in a given case it may be possible for this Court or the High Court to prevent the contemenor advocate to appear before it till he purges himself of the contempt, but that is much different from suspending or revoking his licence or debarring him to practise as an advocate (vide p. 1918 para 78). In the above case, the Supreme court overruled the .....

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..... 13. In tune with the above observations made in Harish Uppal and RK Anand, the Honble High Court may consider framing appropriate rules under Section 34. Whether or not the advocate had conducted himself in a manner unbecoming of his professional status is a matter on which a definite finding has to be recorded at the appropriate stage after giving an opportunity to the advocate. These aspects have to be taken care of by the rules framed by the High Court. 14. It may be mentioned that in Bar Council of India v. Union of India : (2004) 6 SCC 311, the Honble Supreme Court upheld Rule 11 of the Rules framed by Kerala High Court forbidding a lawyer from appearing/pleading in any Court unless he has purged himself of the contempt. 15. Next, the question whether an order of interim restraint of practice can be passed by the Bar Council against the advocates facing disciplinary proceedings also arises for consideration. When there is a strong prima facie case apparent from the facts that an advocate is facing charges of serious nature in more than one criminal case and he has been adopting dilatory tactics to avoid investigation or trial and that the advocate has been behaving in a .....

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..... circulating or invested in the reality sector of India, put the figure varying from 1/3rd of the G.D.P. to equivalent of G.D.P. In spite of various legislations and drives to curb the flow of black money, the reality sector has continued to attract investment of unaccounted income and is one of the widely used tool of money laundering. A realistic long term solution to the flow of unaccounted wealth into and out of transactions in immovable property can be systematically addressed by the setting up of a National Property Exchange on the same lines as that of the stock or the commodities exchange operational for trading in stocks/commodities. Now there is pressing need to regulate reality sector. 16. Besides addressing the issue of circulation of black money, the major spin offs of this initiative would be: (i) The strengthening of Indian economy by the introduction of the out of circulation black money which may be in the range of ₹ 10,00,000 crores; (ii) Complete transparancy in all immovable property transactions since the prices would be market dependent and driven by Pure economic considerations; (iii) Fraudulent land transaction can be avoided and minimized in a simi .....

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..... re will be a regulatory authority at the national and the state level to observe the functioning of these exchanges which will set the guidelines for day to day operations and also act as an arbitrator for operational disputes. 3 An apex dispute resolution council may be the last appellate authority for resolving disputes, in the time bound manner. 4 The existing offices of the sub-registrar at the district level can provide rating and give profile (whether the title of the property is dispute free or not) of properties to be transacted. This would forewarn the buyer and expose him to the risk before undertaking the transaction. Role of the land exchanges 1 Since land is a state subject, these land exchanges would have limited role of arriving at the fair market value of any immovable property transactions and maintain complete transparency in such transactions. It would have representative from the district/state government and the Central Government for the day to day operations. The repository of all records would continue to be the sub registrar who would provide credit rating to the property in question. 2 The exchange would enable the buying/selling of immovabl .....

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..... e officers, particularly those from the Direct Tax department are particularly oriented towards evaluating transaction of immovable properties and running of such exchanges. Thus a joint team of State Government and the Central Government can be deputed to man these exchanges which would be multiplying their revenue collection many folds. 4 The State Government would provide the land/offices for the setting up of such center at district level. 5 Since the implementing agency at the grassroot level is likely to come up with stiff resistance from various quarters including the organized crime sector a dedicated security cover is to be provided in the initial stages, till the scheme is fully operational as it would be in public interest. 6 The Central Board of Direct Taxes (CBDT) and the State Government (Through the Chief Secretary) may comprise a team which would submit its proposals for the setting up and operationalising of such an institution as discussed above. Since the basic infrastructure and information for executing the above, already exists and would be strengthened by the UIN project of the Government of India, efforts in this direction would require a gestation .....

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..... e buyer for desisting from transacting in immovable property at rates lower than the prescribed circle rate. The above amendment needs to be reintroduced. (d) A concept of Arms length pricing should be introduced in Direct Taxes Act for transaction for immovable property in the same lines as those available for transfer pricing while determining the income of multinationals. This would help in establishing the fair market value of transactions when compared to comparable transactions. (e) It also appears that the Income Tax Department is not well equipped to address the security concern at the gross root level when it comes to handling the menace of organized crime in nature of land or educational Mafia. Any worthwhile investigation always comes up with a resistance which would be typical of a organized crime syndicate. In view of the changed complexion of responsibility it would be prudent if the State Government/Central Government provide a dedicated security cover to the officials involved in such investigations. 17. Now coming to the submissions on behalf of the learned Attorney General for India, amongst others, it has also been mentioned in para D that a direction .....

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