TaxTMI 
TaxTMI 
2025 (5) TMI 37
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....of the Income Tax Act, 1961 [for short the "IT Act, 1961"]. 2. Initially, by order dated 29th January 2013, the learned Single Judge framed three preliminary issues [to be decided in the above suit] under the provisions of the Order XIV Rule 2 of the Code of Civil Procedure, 1908 [for short "CPC"]. For the sake of convenience, the issues framed by the learned Single Judge are reproduced hereunder:- 1. Whether the jurisdiction of the Hon'ble Court to try, entertain and dispose of the present suit is barred under section 269UN of the Income Tax Act, 1961 as pleaded in paragraph 1 of the Written Statement and/or section 293 of the Income Tax Act, 1961? 2. Whether the law of limitation bars the present suit? 3. Whether the plaintiff has the locus standi to maintain the present suit as pleaded in paragraph 11 of the written statement and/or is estopped from instituting the present suit? (emphasis supplied) 3. Issue No. 1 was answered in the affirmative, i.e. against the Appellant (original Plaintiff), and consequently the above suit was dismissed. Also, since the finding on Issue No. 1 was in the affirmative, namely, that the suit was barred by ....
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....ring their intention to sell the suit property in terms of the said Agreement dated 13^th July 1991. On 27th September 1991, Defendant No. 1 passed an order of compulsory purchase of the suit property under Section 269-UD (1) of the IT Act, 1961 [for short the "1st Compulsory Purchase Order"] on the ground that the consideration mentioned in the said Agreement was understated. Being aggrieved by the 1st Compulsory Purchase Order [dated 27th September 1991], the Mulanis as well as Seawell preferred Writ Petition No. 3159 of 1991 and Writ Petition No. 3251 of 1991 respectively. What was sought in the aforesaid Writ Petitions was quashing of the 1st Compulsory Purchase Order. 8. By order dated 12th April 1993, this Court set aside the 1st Compulsory Purchase Order [dated 27th September 1991] and remanded the matter back to Defendant No. 1 to dispose of Mulanis' application for approval [in Form 37-I] in accordance with law and keeping in view the Judgment of the Hon'ble Supreme Court in the case of C.B. Gautam Vs. Union of India [(1993) 199 ITR page 530 : (1993) 1 SCC 78]. 9. After the remand, Defendant No. 1 once again passed an order for compulsory purchase dated 29th June 199....
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....the original purchaser] addressed a letter dated 12th December 2002 to Defendant No. 1 inter-alia stating that as per the 3rd Compulsory Purchase Order, it was the statutory obligation of Defendant No. 1 and/or No. 2 to tender the apparent consideration to the vendors [the Mulanis and Defendant No. 19] by 31st October 2002 in accordance with Section 269-UG of the IT Act, 1961. They having failed to do so, the suit property statutorily re-vested with the Mulanis and Defendant No. 19 by virtue of Section 269-UH (1) of the IT Act, 1961. By this very letter dated 12th December 2002, Seawell [the Original Purchaser] also called upon the appropriate authority to issue a declaration under the IT Act, 1961 to the effect that the order dated 12th September 2002 [the 3rd Compulsory Purchase Order] stood abrogated [under Section 269-UH (2)]. However, no such declaration was issued by the appropriate authority. 13. It appears that thereafter between January 2003 to May 2005, the Mulanis made several visits and requested Defendant No. 1 to pass a formal order declaring that the 3rd Compulsory Purchase Order stood abrogated. However, no decision was taken or response given by the 1st Defendan....
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....ing the right to sell, develop, alienate, transfer, create any interest in and in any manner to deal with and dispose of the suit property without any hindrance. The other consequential prayer sought is to restrain the Defendants and/or their servants and agents from in any manner interfering with the Plaintiff's possession and/or its right to develop, alienate, sell, transfer, or create any interest in the suit property. For the sake of convenience, the prayers in the above suit are reproduced hereunder:- "A. For a Declaration that: i. The said Order dated 12th September, 2002 of Compulsory Purchase of the said Property stands abrogated on and from 31st October, 2002; ii. on and from 31st October, 2002 all right, title and interest in the said Property, and all rights to the said FSI, stood re-vested in the Mulanis and Om Prakash Navani, respectively, and iii. On and from 16th May, 2006, the Plaintiff is the absolute owners of the said Property and have the absolute right, title and interest in the said Property including the right to develop, alienate, sell, transfer, create any interest in and in any manner to deal with and dispose of the said....
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....ent. He submitted that once an order is made under Section 269-UD (1) by the appropriate authority in relation to any immovable property, such property shall vest in the Central Government under Section 269-UE (1) of the IT Act, 1961. He, thereafter, brought to our attention Section 269-UF (1) and submitted that where a compulsory order for the purchase of any immovable property is made by the appropriate authority [under Section 269-UD (1)], the Central Government shall pay, by way of consideration, an amount equal to the amount of the apparent consideration. He submitted that under Section 269-UG, this amount is to be paid within a period of one month from the end of the month in which the concerned immovable property becomes vested in the Central Government under sub-section (1), or, as the case may be, sub-section (6) of Section 269UE. 18. Mr. Salve thereafter turned our attention to Section 269-UH which stipulates that if the Central Government fails to tender [under sub-section (1) of Section 269-UG] or deposit [under sub-section (2) or sub-section (3) of Section 269-UG], the whole or any part of the amount of consideration required to be tendered or deposited within the p....
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....r 2002] stands abrogated and the suit property stands re-vested in the name of transferors, namely, the Mulanis and Defendant No. 19 [Omprakash Navani], under Section 269-UH. This, by no stretch of the imagination, can be construed to mean that the Plaintiff is calling into question the order passed by the appropriate authority under Section 269-UD (1) of the IT Act, 1961. He, therefore, submitted that the reliance placed on Section 269-UN to oust the jurisdiction of this court, is wholly misconceived and misplaced. 20. Similarly, Mr. Salve submitted that even Section 293 of the IT Act, 1961 does not oust the jurisdiction of this Court. He submitted that Section 293 bars a suit to set aside or modify any proceedings taken, or order made, under the IT Act, 1961, and no prosecution, suit or other proceedings shall lie against the Government or any officer of the Government for anything done in good faith or intended to be done in good faith under the IT Act, 1961. The present suit does not in any way seek to modify or set aside any proceedings taken, or order made, under the IT Act, 1961. What the present suit seeks is only a declaration that by virtue of Section 269-UH, the 3rd C....
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.... and set aside. SUBMISSIONS OF THE ATTORNEY GENERAL OF INDIA: 22. On the other hand, the learned Attorney General of India submitted that the present suit challenging the 3rd Compulsory Purchase Order [dated 12th September 2002] is not maintainable and is liable to be dismissed. He submitted that this court lacks jurisdiction to entertain the present suit seeking a declaration that the 3rd Compulsory Purchase Order [dated 12th September 2002] passed under Section 269-UD of the IT Act, 1961 stands abrogated, as this would amount to an inquiry into all matters and issues allegedly leading to the alleged abrogation. This would be wholly impermissible in view of Section 293 of the IT Act, 1961. The learned Attorney General submitted that Section 293 unequivocally bars any civil suit or legal proceeding in respect of any action taken under the IT Act, 1961, including orders passed under Section 269-UD. The bar under Section 293 applies to the entire IT Act, 1961 enacting a bar against any adjudication of proceedings under the Act by any court. This would necessarily include all matters in relation to 3rd Compulsory Purchase Order [dated 12th September 2002] passed under Section 26....
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....sdiction and that Section 293 does not apply in the present case is wholly incorrect. Any argument that the special provision [Section 269-UN] would negate the applicability of the general ouster clause [Section 293] is misconceived, as there is no conflict between these two provisions. The special versus the general principle will apply only when there is an express intent to substitute a field already occupied. In fact, Section 293 existed even before the amendment introducing Chapter XX-C, and continues to apply broadly to all actions under the IT Act, 1961 including the compulsory purchase orders passed under Section 269-UD. According to the learned Attorney General, the harmonious construction of Section 269-UN and Section 293 reinforces the legislative intent to completely oust the jurisdiction of civil courts in matters related to compulsory purchase orders passed under Section 269-UD. Therefore, any challenge to such an order by way of a civil suit must fail. The legislative history of Section 293 and the scheme of Chapter XX-C clearly indicate that once an order is passed under Section 269-UD, it is meant to attain finality, thereby preventing interdiction of purchase orde....
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....earned Attorney General, the suit is filed as an afterthought to avoid delay and latches caused by the original vendors in taking appropriate action. The Plaintiff is only taking advantage of its own wrong by purchasing litigation, was the submission. 28. Without prejudice to the aforesaid arguments, the learned Attorney General submitted that under Section 269-UH (2), when an order under Section 269-UD (1) is abrogated and the immovable property is re-vested in the transferor, the appropriate authority [Defendant No. 1] is required to make a declaration in writing to that effect and follow the further process stipulated under Section 269-UH (2). It was submitted that none of the legal requirements as stipulated in Section 269-UH (2) had occurred, namely, that the appropriate authority did not issue any declaration in writing, or deliver a copy of such declaration to the transferors or any person interested therein, or deliver or caused to be delivered possession of the suit property back to the transferors. In the absence of the mandatory legal compliance of Section 269-UH (2), i.e. passing of a declaration by the appropriate authority, the transferor or any other person cannot....
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....hall mean and/or include what is stated therein. For our purposes, the definition of the words "apparent consideration" and "immoveable property" are relevant and reproduced hereunder:- "(b) "apparent consideration",- (1) in relation to any immovable property in respect of which an agreement for transfer is made, being immovable property of the nature referred to in sub-clause (i) of clause (d), means,- (i) if the immovable property is to be transferred by way of sale, the consideration for such transfer as specified in the agreement for transfer; (ii) if the immovable property is to be transferred by way of exchange,- (A) in a case where the consideration for the transfer consists of a thing or things only, the price that such thing or things would ordinarily fetch on sale in the open market on the date on which the agreement for transfer is made; (B) in a case where the consideration for the transfer consists of a thing or things and a sum of money, the aggregate of the price that such thing or things would ordinarily fetch on sale in the open market on the date on which the agreement for transfer is made, and such sum; ....
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....nsfer, determined by adopting such rate of interest as may be prescribed in this behalf;" (emphasis supplied) "(d) "immovable property" means- (i) any land or any building or part of a building, and includes, where any land or any building or part of a building is to be transferred together with any machinery, plant, furniture, fittings or other things, such machinery, plant, furniture, fittings or other things also. Explanation.-For the purposes of this sub-clause, "land, building, part of a building, machinery, plant, furniture, fittings and other things" include any rights therein; (ii) any rights in or with respect to any land or any building or a part of a building (whether or not including any machinery, plant, furniture, fittings or other things therein) which has been constructed or which is to be constructed, accruing or arising from any transaction (whether by way of becoming a member of, or acquiring shares in, a cooperative society, company or other association of persons or by way of any agreement or any arrangement of whatever nature), not being a transaction by way of a sale, exchange or lease of such land, building or par....
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.... or within such further period which, on an application made in this behalf, the appropriate authority may, in its discretion, allow and if the defect is not rectified within the said period of fifteen days or, as the case may be, the further period so allowed, then, notwithstanding anything contained in any other provision of this Chapter, the statement shall be deemed never to have been furnished." (emphasis supplied) 35. To put it in a nutshell, what Section 269-UC stipulates is that no transfer of any immovable property [in such area and of such value exceeding five lakh rupees as may be prescribed], can be effected except after an agreement for transfer is entered into between the person who intends transferring the immovable property [the transferor] and the person to whom it is proposed to be transferred [the transferee], in accordance with the provisions of Section 269-UC (2), at least four months before the intended date of transfer. Further, the agreement must be reduced to writing in the form of a statement by each of the parties to such transfer or by any of the parties to such transfer acting on behalf of himself and on behalf of the other parties. 36. S....
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....y the appropriate authority having jurisdiction to make the order under this sub-section: Provided also that the period of limitation referred to in the second proviso shall be reckoned, where any stay has been granted by any court against the passing of an order for the purchase of the immovable property under this Chapter, with reference to the date of vacation of the said stay. (1-A) Before making an order under sub-section (1), the appropriate authority shall give a reasonable opportunity of being heard to the transferor, the person in occupation of the immovable property if the transferor is not in occupation of the property, the transferee and to every other person whom the appropriate authority knows to be interested in the property. (1-B) Every order made by the appropriate authority under sub-section (1) shall specify the grounds on which it is made. (2) The appropriate authority shall cause a copy of its order under sub-section (1) in respect of any immovable property to be served on the transferor, the person in occupation of the immovable property if the transferor is not in occupation thereof, the transferee, and on every other perso....
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.... aforesaid agreement for transfer. (3) If any person refuses or fails to comply with the provisions of sub-section (2), the appropriate authority or other person duly authorised by it under that sub-section may take possession of the immovable property and may, for that purpose, use such force as may be necessary. (4) Notwithstanding anything contained in sub-section (2), the appropriate authority may, for the purposes of taking possession of any property referred to in sub-section (1), requisition the services of any police officer to assist him and it shall be the duty of such officer to comply with such requisition. (5) For the removal of doubts, it is hereby declared that nothing in this section shall operate to discharge the transferor or any other person (not being the Central Government) from liability in respect of any encumbrances on the property and, notwithstanding anything contained in any other law for the time being in force, such liability may be enforced against the transferor or such other person. (6) Where an order under sub-section (1) of Section 269-UD is made in respect of an immovable property, being rights of the nature ref....
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.... of one month from the end of the month in which the immovable property concerned becomes vested in the Central Government, either under Section 269-UE (1) or 269-UE (6), as the case may be. Section 269-UG reads thus: "269-UG. Payment or deposit of consideration.-(1) The amount of consideration payable in accordance with the provisions of Section 269-UF 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: Provided that if any liability for any tax or any other sum remaining payable under this Act, the Wealth Tax Act, 1957 (27 of 1957), the Gift Tax Act, 1958 (18 of 1958), the Estate Duty Act, 1953 (34 of 1953), or the Companies (Profits) Surtax Act, 1964 (7 of 1964), by any person entitled to the consideration payable under Section 269-UF, the appropriate authority may, in lieu of the payment of the amount of consideration, set off the amount of consideration or any part thereof against such liability or sum, after giving an intimation in ....
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....ble property [forming the subject matter of the said order] shall stand re-vested in the transferor. This Section further stipulates that where an order under Section 269-UD (1) is abrogated and the immovable property re-vests with the transferor, the appropriate authority shall make a declaration to that effect. Section 269-UH reads as under: "269-UH. Revesting of property in the transferor on failure of payment or deposit of consideration.-(1) If the Central Government fails to tender under sub-section (1) of Section 269-UG or deposit under sub-section (2) or sub-section (3) of the said section, the whole or any part of the amount of consideration required to be tendered or deposited thereunder within the period specified therein in respect of any immovable property which has vested in the Central Government under sub-section (1) or, as the case may be, sub-section (6) of Section 269-UE, the order to purchase the immovable property by the Central Government made under sub-section (1) of Section 269-UD shall stand abrogated and the immovable property shall stand revested in the transferor after the expiry of the aforesaid period: Provided that where any dispute r....
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....vable property.-(1) Notwithstanding anything contained in any other law for the time being in force, no person shall revoke or alter an agreement for the transfer of an immovable property or transfer such property in respect of which a statement has been furnished under Section 269-UC unless,- (a) the appropriate authority has not made an order for the purchase of the immovable property by the Central Government under Section 269-UD and the period specified for the making of such order has expired; or (b) in a case where an order for the purchase of the immovable property by the Central Government has been made under sub-section (1) of Section 269-UD, the order stands abrogated under sub-section (1) of Section 269-UH. (2) Any transfer of any immovable property made in contravention of the provisions of sub-section (1) shall be void." (emphasis supplied) 43. Section 269-UL puts restrictions on registration etc of documents in respect of transfer of immovable property and stipulates that no registering officer appointed under the Registration Act, 1908 shall register any document which purports to transfer the immovable property exceeding the va....
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....is understated, it can pass an order compulsorily purchasing the property for the amount equal to the amount of the apparent consideration [Section 269-UD]. Once the order of compulsory purchase is passed under Section 269-UD, the immovable property, from the date of the said order, vests in the Central Government as provided in Section 269-UE (1) or 269-UE (6), as the case may be. For this purchase of immovable property, the Central Government has to pay consideration equal to the amount of the apparent consideration as stipulated in Section 269-UF. It is not as if the Government can take its own sweet time in paying the said consideration. Under Section 269-UG, the consideration has to be paid within a period of one month from the end of the month in which the said immovable property becomes vested in the Central Government under Section 269-UE (1) or Section 269-UE (6), as the case may be. If this consideration is not paid within the stipulated period [i.e. the period mentioned in Section 269-UG], then Section 269-UH stipulates that the compulsory order of purchase passed under Section 269-UD (1) shall stand abrogated and the immovable property shall stand re-vested in the trans....
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....t in any way "call in question" the 3rd Compulsory Purchase Order dated 12th September 2002. In fact, the case of the Plaintiff proceeds on the basis that the 3rd Compulsory Purchase Order is valid, and because the consideration was not paid within the time stipulated in Section 269-UG, the 3rd Compulsory Purchase Order stands abrogated as provided in Section 269-UH of the IT Act, 1961. The abrogation takes place by operation of law as stipulated in Section 269-UH (1) provided the consideration is not paid within the time frame as stipulated in Section 269-UG. This by no stretch of the imagination could mean that the 3rd Compulsory Purchase Order [passed under Section 269-UD (1)] is being "called in question" in the present suit. 49. To our mind, the phrase "called in question" appearing in question 269-UN refers to a situation where the validity or the legality of the order passed under Section 269-UD (1) or under Section 269-UF (2) is being challenged or disputed. On the other hand, seeking a declaration that the order under Section 269-UD (1) stands "abrogated" means that the said order is officially brought to an end, either by law or by agreement. As per our knowledge, the ....
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....ion. This, however, does not mean that this Court does not have jurisdiction to entertain the suit. It is now well settled that the jurisdiction of Civil Courts is all embracing except to the extent it is excluded by an express provision of law or by clear intendment arising from such law. This is the purport of Section 9 of the Code of Civil Procedure, 1908. This has been so held by a Constitution Bench judgment of the Hon'ble Supreme Court in the case of Dhulabhai ETC V/S State of Madhya Pradesh and Another [(1968) 3 SCR 662 : AIR 1969 SC 78: 1968 SCC Online SC 40]. Paragraphs 9 and 32 of this judgment reads thus:- "9. To which category do such cases belong in India? The controversy in India has revolved round the principles accepted in 67 Ind App 222 = (AIR 1940 PC 105) and in Raleigh Investment Co. v. Government General in Council, 74 Ind App 50 = (AIR 1947 PC 78). In the first case it was laid down by the Judicial Committee that the ouster of the jurisdiction of a civil court is not to be lightly inferred and can only be established if there is an express provision of law or is clearly implied. In the second case it was held that where a liability to tax is created by....
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....utionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit. (5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected a suit lies. (6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry. (7) An exclusion of the jurisdiction of the civil court is not readily to be inferred unless the conditions above set down apply. (emphasis supplied) 51. In the present case, we do not find that the declaration sought by the Plaintiff in the above suit is expressly barred under Section 269-UN or under Section 293. We also do not find any clear intendment in these provisions which would bar th....
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....r the provisions of the particular Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. Where there is an express bar of the jurisdiction of the Civil Court, an examination of the scheme of the particular Act should be undertaken to find the adequacy or the sufficiency of the remedies provided, and which may be relevant but not decisive to sustain the jurisdiction of the Civil Court. Where there is no express exclusion, the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary, and in such a case it is necessary to see if the statute creates special rights or a liability and provides for the determination of the right or liability, and further lays down that all questions about the said right and/or liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not. The Hon'ble Supreme Court has clearly opined that the exclusion of the Civil Court's jurisdiction is not readily to be inferred unless it is barred, either expressly or b....
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.... are concerned, since they have not been answered by the learned Single Judge, we are not giving any findings on the same. 55. Before concluding, we must refer to the judgment of the Hon'ble Supreme Court in the case of Commissioner of Income Tax Bhubaneswar and Another V/S Parmeshwari Devi Sultania and Others [(1998) 3 SCC 481], and which has been heavily relied upon [in paragraph 48 of the impugned order] by the learned Single Judge to come to the conclusion that he did. In the case of Parmeshwari Devi (supra) the Plaintiff had filed a suit for partition against seven defendants, Defendant Nos 6 and 7 being the Union of India through the Finance Secretary, and Commissioner of Income Tax, Orissa, respectively [who were the Appellants before the Supreme Court]. Defendant Nos. 1 and 2 were the step-brothers and Defendants 3 to 5 were the step-sisters of the Plaintiff (Parmeshwari Devi). The Plaintiff stated that she was the daughter of one Shri. Bansidhar Agarwal from his first wife, while Defendant Nos. 1 to 5 were the children of Bansidhar Agarwal from his second wife. Defendant No. 1 was Babulal whose residential and business premises were subjected to a search and seizure ope....
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.... to set aside or modify the proceedings taken and order made under the IT Act, 1961. It therefore held that the suit would not be maintainable. We fail to see how this decision can apply to the facts of the present case. There can be no dispute about the proposition that if ultimately the suit results in a decree which has the effect of setting aside or modifying any proceedings taken, or order made under the IT Act, 1961, such a suit would not be maintainable in light of the express language of Section 293. However, in the facts of the present case, we fail to see how seeking a declaration that the 3rd Compulsory Purchase Order stands abrogated would in any way either directly or indirectly set aside or modify any proceedings taken under the IT Act, 1961, or any order made thereunder. We, therefore, find that the fact situation before the Hon'ble Supreme Court in the case of Parmeshwari Devi (supra) was completely different from the factual matrix before us. 56. We must mention here that it is too well settled a proposition that the ratio of any decision must be understood in the background of the facts of that case. It has been said a long time ago that a case is only an autho....
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....situation. In the same judgment this Court also observed : (SCC pp. 584-85, paras 9-12) "9. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of courts are neither to be read as Euclid's theorems nor as provisions of a statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton [1951 AC 737 : (1951) 2 All ER 1 (HL)] (AC at p. 761), Lord MacDermott observed : (All ER p. 14 C-D) 'The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J. as though they were part of an Act of Parliament and applyi....