TaxTMI 
TaxTMI 
2013 (2) TMI 90
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.... In addition thereto the said notices punished on 14th January, 2011 in the Telegraph and Times of India were also challenged for setting aside of the same. It appears from the statement and averment made in both the writ petitions though the prayers are for setting aside of sale, directed to question legality and validity of the amount of consideration fixed by the appropriate authorities and the publication in the newspaper for sale of the said properties. The short fact leading to filing the aforesaid two writ petitions and ultimately preferring the present appeal are briefly stated hereunder and the same are more or less undisputed:- On 22nd October, 1984 agreement in writing was entered into between the appellant company and one M/s. Karnani Finance Enterprises Limited in respect of first floor flat at 4A, Pollock Street, Kolkata (hereinafter referred to the said property) at a consideration of Rs.18 lakhs for sale. It is claimed that on or before 9th October, 1985 the petitioner received sum of Rs.15 Lakh out of Rs.18 lakh from the said intending purchaser. On 1st October, 1986 Sections 269UO was inserted by way of amendment under Chapter XXC Income Tax Act, 1961 (herei....
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.... till the disposal of the writ petition and direction was given for filing affidavits though the same was not filed even at the time of final hearing. On 20th August, 2009 the said writ petition was dismissed for default. In view of dismissal on 14th January, 2011 appropriate authority published fresh sale notices in the newspaper for sale of the said property. Thus second writ was filed challenging the aforesaid subsequent publication. On 3rd February, 2011 the first writ was restored by the Court setting aside the order of dismissal dated 20th August, 2009 however interim order was not restored. Thereafter the second writ was filed. In the second writ an interim order was passed directing not to take further steps in respect of auction sale held on 4th February, 2011 till 7th February, 2011. Mr. Krishnendu Gupta, learned counsel appearing for the appellant submits that the learned Trial Judge should have set aside the order dated 14th August, 2001 passed by the appropriate authority as the same is without jurisdiction non est and nullity. To emphasis this point he urges that admittedly the agreement was entered into on 22nd October, 1984 whereas provision for preemptive purcha....
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....f law having effect to root of the jurisdiction is raised, the same can be examined at any stage and for that matter doctrine of res judicata or constructive res judicata or analogous thereto will not be a bar. In support of this legal submission he has relied on the following decisions of the Supreme Court: (1979) 2 SCC 34 (Chief Justice of AP and ors -vs.- LVA Dixtulu & ors.) (1991) 1 SCC 494 (Isabella Johnson -vs.- M.A. Susai (Dead) by LRS) AIR 2004 SC 4377(Balavant N. Viswamitra -vs.- Yadav Sadashiv Mule) (2005) 12 SCC 1 (Union of India -vs.- Pramad Gupta) (2007) 2 SCC 481 (National Institute of Technology -vs.- Niraj Kumar Singh) AIR 2009 SC 1645 (Chandrabhai K. Bhoir -vs.- Krishna Arjun Bhoir). Next he contends in alternative if it is held that the points urged by him is hit by principle of res judicata or constructive res judicata or estoppel then payment of consideration amount made was not in accordance with the provision of the law as the Central Government and appropriate authorities are two distinct authorities under Section 269UA(c) and 269UB and their functions are also different. Payments have to be made by the Central Government to the appellant directly....
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.... was already decided by learned Single Judge of this Court in another writ petition being No.1285 of 2001. Justice Pinaki Chandra Ghose on 1st October, 2001 has decided all these points holding that the order of appropriate authority is valid and lawful and the said chapter was applied correctly in the facts and circumstances of this case. The said order dated 1st October 2001 was suppressed. No appeal was preferred against the said order of learned Single Judge and the same has now become final and binding. Therefore the principle of res judicata and/or constructive res judicata, and principle of estoppel would apply. On the plea of res judicata, constructive res judicata and estoppel he has referred to the following decisions of the Supreme Court AIR 1960 SC 941 (Satyadhan Ghosal v. Deorajin Debi), (2011) 3 SCC 408 (M. Nagabhshana v. State of Karnataka & ors), and decision of this Court reported in 2010 (3) CHN (Cal) 527 (State of West Bengal & ors. v. Micheal Regionald Simon De'Souza & ors.). He producing the original record contends that consideration amount was paid in accordance with the provision of law, and in fact a sum of Rs.15 lakhs has been received however the balance ....
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....o the appellant. On refusal being made the same was deposited with the appropriate authority within period specified by the statute and it has been factually found so by the learned Trial Judge on perusal of the record. Therefore it should not be disturbed by the appellate court in absence of the ground of perversity or absurdity. As far as the dispute with regard to the area is concerned the same does not deserve any merit for consideration as in the statement in Form 37-I the area of the property was disclosed by the appellant itself as 6000 sq.ft. Hence the appeal should be dismissed. After hearing learned Counsel for the parties and having gone through carefully the scope and purport of the two writ petitions being W.P.No.2106 of 2003 and W.P.No.128 of 2011 we find as rightly contended by learned Additional Solicitor General the scope of the writ petition that the basic statement and averment made in said writ petition was that the area of the said fist floor property has been wrongly mentioned 6000sq.ft. whereas in the said notification published on 8th October, 2003 and 12th October, 2003 in the sale notice the area of the said floor has been mentioned 6,692.19 sq.ft. Ther....
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....sideration amount within the stipulated time has divested or in other words the vesting stood abrogated or not. These are essentially factual aspect and this has been dealt with extensively by the learned Trial Judge. It is an admitted position that out of the aggregate consideration of Rs.18 lakhs a sum of Rs.15 lakhs has been received, the relevant provision regarding the payment of consideration is Section 269UG of the Income Tax Act, 1961. The said section reads as follows:- "Section 269UG(1) The amount of consideration payable in accordance with the provisions of Section 269UF shall be tendered to the person or persons entitled thereto, within a period of one month from the end of the month in which the immovable property concerned becomes vested in the Central Government under sub-section (1), or as the case may be, sub-section (6), of Section 269 UE;" The aforesaid section provides that the consideration amount has to be tendered. It will appear on plain reading of the entire section that payment of consideration amount is to be tendered by Central Government. Only dispute relating to payment of balance amount of Rs.3 lakh. The learned Trial Judge has recorded in ou....
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....all under Chapter XXC. It is pertinent to mention here that the parties did not file Form 37EE under Chapter XXA of the Income Tax Act. Form 37-I was filed jointly by both the parties viz., the transferor & the transferee, M/s. Karnani Finance Enterprises Limited, the purchaser, has clearly confirmed again by his letter dated 22nd June 2001 in course of this proceedings that Form 37-I was filed by it knowingly with an intention to purchase the subject property as per agreement of sale dated 22nd October, 1984. The transferor, however, did not press tins point either in its written submission dated 10th August, 2001 or in course of hearing. We, therefore, find no basis of this ground of the transferor." As it has been correctly pointed out by the learned Additional Solicitor General that very relevant fact has been suppressed from this Hon'ble Court by not mentioning in either of the two writ petitions that aforesaid order dated 14th August 2001 of the appropriate authority was challenged immediately by filing another writ petition being W.P. No.1825 of 2001. The said writ petition was disposed of on merit by judgment and order dated 1st October, 2001. The identical issue was ....
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....by learned Additional Solicitor General and is effectively supported by Mr. S.N.Mukherjee. There are large number of pronouncements of the Supreme Court on this issue cited by them. But we feel before we discuss all the decisions Section 11 of the Civil Procedure Code which is the source of the principle of res judicata is required to be set out. "Section 11. Res judicata.- No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court." On careful reading of the aforesaid section in order to apply the principle of res judicata the following broad conditions are to be fulfilled: (i) the same litigating parties (ii) identical issues raised and decided (iii) the Court is competent to decide the matter. It is absurd to suggest that this Court in writ jurisdiction is incompetent to decide that issue the....
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....y sits on the agreement and does not want to enforce it date of execution of agreement is immaterial as far as this chapter is concerned. According to us date of filing of statement in Form 37-I with the sale agreement is deemed to be the date of agreement which is sought to be enforced irrespective of the anterior date of agreement put by the parties. This factual aspect has been dealt with by Justice Ghose in great details while upholding the detailed fact findings of the Appropriate Authority which we have quoted in extenso. Hence Mr. Gupta's client cannot reagitate the same. The applicability of the principle of res judicata is being decided by all Courts in our country every day, and a large number of Supreme Court decisions even the Privy Council's decisions are there. The Hon'ble Judges of all the Courts applies the res judicata in their own languages and expression. In every expression of every Judge on the principle of res judicata has got its individual character and distinctiveness but it boils down to the same thing as we have already quoted here. Learned Additional Solicitor General has drawn our attention to the Supreme Court decision reported in AIR 1960 SC 941 in....