2025 (11) TMI 1044 - AT - Benami Property

Review applications allowed; delay condoned due to earlier 18.10.2024 order; declines to test unchallenged PBPT Act, 1988

Abdullah Ali Balsharaf & Ors., Sahi Kohli, Smt. Harsh Kohli, Shri H.M. Joshi, Ethos Export Pvt. Ltd., Smt. Vibha Joshi Parkin, Smt. Nirmala Joshi, Smt. Abha Joshi Ghani, I.O. /DCIT, (BP) Unit-I Mumbai, M/s EDGE Infratech LLP Versus Initiating Officer, BPU, Delhi

The AT allowed the review applications and condoned delay, finding applicants showed sufficient cause tied to the SC's 18.10.2024 order. The Tribunal ... Review/Rectification applications - Condonation of Delay - prospective or retrospective application of the Benami Transactions (Prohibition) Amendment Act, 2016 (“the Amending Act of 2016”) to the Prohibition of Benami Property Transaction Act of 1988 - constitutional validity of Section 3(2) and 5 of the unamended provisions of the Act of 1988 which were not under- challenge before the Apex Court - constitutional validity of the statutory provisions could not have been adjudicated in absence of lis and contest between the parties - HELD THAT:- When the judgment dated 23.08.2022 in the case of Ganpati Dealcom [2022 (8) TMI 1047 - SUPREME COURT] has been recalled entirely and thereby it no more exist, we cannot hold that the order dated 18.10.2024 should be taken only in reference to the constitutional validity of the un- amended provisions. It has already been stated and we reiterate that this Tribunal lacks jurisdiction for the aforesaid. Thus, the first ground raised by the non-applicant to contest the Review Application cannot be accepted. Condonation of delay - We find that many non-applicants have agreed to accept the Review Application with condonation of delay so that they can at the earliest argue the appeal touching the issues on merit. We are, thus, unable to accept that Review Application does not disclose ground to make out a case to seek review of the order of this Tribunal, rather, in the light of the order passed by us and sought to be reviewed, they have made out a case for review of the order. Scope of Review - The Review Application has not been filed to question the finding on merit, rather, it was not even touched and decided in the order sought to be reviewed in view of the consent of the parties. The Review Application has been filed to seek recall of the order of this Tribunal in light of the order of the Apex Court dated 18.10.2024. The Review Application is in reference to it and otherwise to advance the cause of justice. We are afraid that we can take a view offending the order dated 18.10.2024 of the three-judge bench of Apex Court in Ganpati Dealcom (supra). However, we do not endorse the argument of the Review Applicant that two-judges bench of Supreme Court in Kokilaben’s case [2025 (5) TMI 1634 - SC ORDER] should not have qualified the order of the three-judge bench on the same issue. However, for the reasons elaborately given, we are not accepting the argument of the non-applicant in reference to the issue dealt with hereinabove. Prospective application of the PBPT 1988 - We do not find that the issue in reference to Amending Act of 2016 was even involved or was raised by any of the parties in that case. The apex Court, however, relying on the judgment of the Binapani Paul [2007 (4) TMI 752 - SUPREME COURT] held that Benami Transactions (Prohibition) Act, 1988 would not apply retrospectively. The issue is not that the PBPT Act of 1988 would have prospective or retrospective application. In any case, this Tribunal would not determine the issue aforesaid in this Review Application, rather, it is pending consideration before the Apex Court after recall of its judgment dated 23.08.2022 in Ganpati Dealcom (supra). The recall of the order herein is not sought to hold that the Amending Act of 2016 should have retrospective application, rather, that is not an issue involved in the Review Application. Thus, this Tribunal would refrain to enter into the issue not raised before us, rather, it is for the parties to raise the issue before the Apex Court in the pending litigation after the recall of the earlier judgement dated 23.08.2022 in Ganpati Dealcom (supra). We are thus unable to accept the argument of the non-applicant. Change of law or subsequent decision of a co-ordinate Bench or larger Bench cannot be regarded as a ground of review - It is not that a case where the Apex Court has taken a view different than taken earlier bur recalled its judgment and based on that, Review Application has been filed. That is not the case before us and if Review Application would have been filed based on the proposition of law subsequent evolved by the Apex Court then definitely non-applicant could have raised the argument to seek dismissal of the Review Application. The case in hand has peculiarity and therefore distinguishable on facts. We are, thus, not inclined to accept the argument raised by the non-applicant. Denial of review or to wait till disposal of the matter by the Apex Court may otherwise be in defiance of the order dated 18.10.2024 of the Apex Court. In fact, while passing the order on Review Applications, we would recall the order passed by us for hearing the appeal on merits to safeguard the right of both the parties without discrimination. The appeals can be heard and decided on merit which was not decided earlier touching the merit in view of the agreement of the appellant / non-applicant. It is also under circumstance that the Hon’ble Apex Court can take a view different than taken earlier in the case of Ganpati Dealcom. In that situation, the appellant / non-applicant may press the appeal on merit which can be argued only on the acceptance of the Review Application. Thus we do not find any reason to defer the hearing. Wrongly Invoked Statutory Provision of Section 47 v. Section 40(2)(f) - It is more so when this Appellate Tribunal has power to review its order under Section 40(2)(f) of the Act of 1988. In essence and in substance the applicants have sought review of the order passed by the Tribunal and that too in the light of the liberty given by us while passing the order sought to be reviewed and the order of the Apex Court dated 18.10.2024 in the case of Ganpati Dealcom. The issue raised by the non-applicant is, thus, not accepted. limitation - We are unable to accept the objection raised by the non-applicant for condonation of delay and to pray for dismissal of the application. The delay till the order dated 18.10.2024 is justified, rather, the said order gave course of action for filing Review Application. If we reckon the period from the date of the order dated 18.10.2024 in Ganpati Dealcom (supra) for filing review, in majority of the cases delay is not alarming. Rather, it may be ranging from 30 days to 90 days. The Review Application has to be guided by one order, thus, we cannot take a view that while delay should be condoned in few application denying it in other connected Review Application. Thus, we find a case for Condonation of delay and accordingly application is allowed. ISSUES PRESENTED AND CONSIDERED 1. Whether applications for condonation of delay in filing review/rectification of Tribunal orders ought to be allowed where those orders were disposed of relying on a judgment of the Apex Court that was subsequently recalled on review. 2. Whether a review/rectification of the Tribunal's order is maintainable where the Tribunal's order was disposed of in light of an Apex Court judgment later recalled, and where the Apex Court, on recall, granted liberty to aggrieved parties to seek review of proceedings decided relying on the recalled judgment. 3. Scope and effect of the Apex Court's recall order and the limited orders (e.g., Kokilaben / K.L. Rathi line) holding that subsequent contrary decisions of co-ordinate or later courts are not by themselves grounds for review - whether those authorities preclude the Tribunal from entertaining review applications in the present circumstances. 4. Whether a change in law or later conflicting decision (or territorial High Court view) by itself entitles a party to review, or whether the present facts constitute a distinguishable ground for review. 5. Whether invocation of an incorrect statutory provision (e.g., Section 47 instead of Section 40(2)(f) of the Act of 1988) is fatal to a review/rectification application. 6. Whether the Tribunal should defer disposal of review applications pending final adjudication of the recalled issue by the Apex Court, or recall its order and restore appeals for fresh hearing. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Condonation of Delay Legal framework: Principles governing condonation of delay (limitation) and liberal approach endorsed by Apex Court: substantive justice / merits to prevail; Section 5 Limitation Act principles and cases permitting condonation especially where State/governmental delay or where merits are compelling. Precedent Treatment: Reliance on Supreme Court authorities (Collector (LA) v. Katiji; Esha Bhattacharjee; Inder Singh; Special Tehsildar v. K.V. Ayisumma; State of Haryana v. Chandra Mani) that condonation should be pragmatic, justice-oriented and not pedantic; that delay should not scuttle meritorious claims. Interpretation and reasoning: The recall of the Apex Court judgment on 18.10.2024 furnished a specific cause for filing review applications; administrative processing after that order explains short delays (30-90 days) in many matters; the Tribunal must avoid scuttling merits where review has prima facie substance and dismissal on technical limitation grounds would cause discrimination among similarly situated parties. Ratio vs. Obiter: Ratio - where a recalled superior court judgment and liberty to seek review furnish sufficient cause, a pragmatic, merits-oriented approach permits condonation of short delays; Obiter - general observations on government delay and bureaucratic processing. Conclusions: Condonation of delay allowed. Delay explained by reliance on recall order and administrative processing; prejudice and merits considerations justify condonation. Issue 2 - Maintainability of Review Where Tribunal Relied on Recalled Apex Judgment Legal framework: Tribunal's power to review its decisions under its statutory provision (Section 40(2)(f) of the Act of 1988 analogously), and principles governing review (Order XLVII CPC explanation and established tests for review vs appeal). Precedent Treatment: Courts generally hold that a subsequent contrary decision or change in law is not by itself a ground for review (Beghar Foundation; Gracemac Foundation; Binapani Paul line), but also recognized that recall of a superior court's judgment restoring a cause may justify review where the earlier disposal was based exclusively on that now-recalled decision. Interpretation and reasoning: The Tribunal's impugned orders were disposed of by applying the Apex Court's earlier Ganpati Dealcom judgment and expressly reserved liberty to seek review depending on Apex Court outcome. The Apex Court wholly recalled its judgment and granted liberty to aggrieved parties to seek review where proceedings had been disposed relying on that judgment. Consequently, the Tribunal's order, being founded on a recalled superior court decision, presents a distinct ground for review distinguishable from mere change of law. Ratio vs. Obiter: Ratio - where a tribunal's decision is founded on an Apex Court judgment that is subsequently recalled and liberty is granted to seek review, the tribunal may entertain review to restore matters for adjudication on merits; Obiter - broader comments distinguishing change of law from the present factual peculiarities. Conclusions: Review applications held maintainable; the Tribunal recalled its earlier order and restored appeals for fresh adjudication on merits. Issue 3 - Effect of Kokilaben / K.L. Rathi (Scope of Review) and Co-ordinate Bench Decisions Legal framework: Hierarchy and binding effect - three-judge vs two-judge benches and co-ordinate bench precedents; principles that a subsequent co-ordinate bench decision reversing an earlier view does not automatically create review grounds (Explanation to Order XLVII CPC taken into account by Apex Court decisions). Precedent Treatment: Kokilaben (two-judge expressing inability to agree with three-judge grant of liberty) declined to endorse liberty granted by three-judge bench, referring to K.L. Rathi; K.L. Rathi restricts scope of review where subsequent decisions reverse law. Interpretation and reasoning: The Tribunal lacks power to overrule or declare itself unable to follow a three-judge Apex Court order. The operative recall by a three-judge bench (recalling its earlier full bench judgment) and the specific liberty granted to seek review of proceedings disposed relying on that judgment create an obligation on the Tribunal to allow review despite subsequent two-judge comments in Kokilaben. The Tribunal cannot nullify or disregard the three-judge recall; doing so risks conflicting orders and discrimination among similarly situated parties. Ratio vs. Obiter: Ratio - where a three-judge Apex Court recalls its judgment and grants liberty to seek review of proceedings disposed on that judgment, a tribunal should give effect to that recall and entertain review even if later two-judge orders express disagreement; Obiter - observations on institutional hierarchy and potential for future Apex Court re-adjudication. Conclusions: Kokilaben / K.L. Rathi lines do not preclude the Tribunal from entertaining review in the present circumstances; the Tribunal will follow the three-judge recall and grant review/restore appeals. Issue 4 - Change of Law / Territorial High Court Views (Bombay) - Whether Bar to Review Legal framework: Principle that change in law is not an independent ground for review; territorial High Court judgments binding within jurisdiction; finality and conflict principles pending Apex Court adjudication. Precedent Treatment: Binapani Paul and Mangathai Ammal instances cited to show earlier authority that the Act of 1988 may not apply retrospectively; but Apex Court's recall means that the prospective/retrospective question is pending fresh adjudication. Interpretation and reasoning: The Tribunal is not determining substantive question of prospective vs retrospective application of the Amending Act of 2016 in these reviews; the recall created a procedural and jurisdictional basis for restoring appeals for merits adjudication. Territorial High Court determinations (Bombay) do not preclude review when the Tribunal's order was premised on a recalled Apex Court decision and the issue is pending before the Apex Court. Ratio vs. Obiter: Ratio - territorial High Court views do not prevent recall/restoration where a superior court's judgment relied upon by the Tribunal has been recalled; Obiter - distinction reiterated between merits and procedural grounds for review. Conclusions: Territorial High Court precedents (Bombay) do not bar acceptance of review in these circumstances; Tribunal refrains from adjudicating the substantive prospective/retrospective question. Issue 5 - Wrongly Invoked Statutory Provision (Section 47 v. Section 40(2)(f)) Legal framework: Substance over form doctrine; established principle that mentioning wrong provision is not fatal if authority possessed jurisdiction and relief sought is evident (P.K. Palanisamy; N. Mani; Md. Shahabuddin; Pruthvirajsinh Jadega). Precedent Treatment: Apex Court authorities hold that wrong citation of provision does not nullify an application where the competent power exists and the substance of relief is clear. Interpretation and reasoning: Majority of review applications invoked the Tribunal's review power under Section 40(2)(f); a minority referred to Section 47. The Tribunal has statutory power to review its decisions; mere mis-referencing of provisions is curable and not fatal where jurisdiction exists and the relief sought is review of Tribunal order. Ratio vs. Obiter: Ratio - incorrect citation of a statutory provision does not render a review application non-maintainable if the Tribunal has the requisite jurisdiction and the substance of relief is clear; Obiter - emphasis on substantial justice over hyper-technicality. Conclusions: Mis-reference to Section 47 in some applications is not fatal; review applications are maintainable in substance under Section 40(2)(f). Issue 6 - Whether Tribunal Should Await Apex Court Final Determination or Recall and Restore Appeals Legal framework: Duty to avoid creating inconsistent orders; principle of avoiding discrimination among similarly situated litigants; finality and separation of powers between Tribunal and Apex Court. Precedent Treatment: Authorities promote adjudication on merits where feasible and condonation of delay where meritorious (Collector (LA) v. Katiji; Inder Singh; Katiji line) and stress that parties given liberty by a higher court ought to be able to vindicate rights without discrimination. Interpretation and reasoning: Because the Tribunal's orders were disposed relying on a recalled Apex Court judgment and the Apex Court expressly granted liberty to seek review, deferring adjudication until final Apex Court determination would produce discrimination (some matters disposed with liberty, others stayed) and may conflict with future Apex Court directives. The Tribunal therefore recalled its orders and restored appeals for fresh adjudication to enable merits hearing consistent with the Apex Court recall and liberty. Ratio vs. Obiter: Ratio - where a higher court recalls a judgment and grants liberty to seek review of matters disposed relying on that judgment, a tribunal may recall its orders and restore appeals to prevent discrimination and potential conflict with future superior court determinations; Obiter - practical observations on fairness, docket management and avoidance of anarchy. Conclusions: Tribunal recalled its earlier orders and restored appeals for fresh hearing rather than await final Apex Court determination; appeals to be listed for hearing on merits.