TaxTMI 
TaxTMI 
TaxTMI 
2025 (11) TMI 1044
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....Review MP-PBPT-1218/MUM/2024 CoD IN FPA-PBPT-1069/MUM/2020, MP-PBPT-2172/DLI/2024 Review MP-PBPT-2173/DLI/2024 COD IN FPA-PBPT-1092/DLI/2020, MP-PBPT-2174/DLI/2024 Review MP-PBPT-2175/DLI/2024 CoD IN FPA-PBPT-1105/DLI/2020 JUSTICE MUNISHWAR NATH BHANDARI, SHRI GOPAL CHANDRA MISHRA AND SHRI V. ANANDARAJAN For the Applicant (s) : Mr. Manmeet Singh Arora, SPP, Mr. Yash Batra, Advocate Mr. Kanhaiya Singhal, S.P.P Mr. Ajay Kumar, Mr. Rishabh Bhardwaj and Ms. Ankita Makan For the Non-applicant(s) : Mr. Bakul Jain, Mr. Ravi Mehrotra, Advocate, Mr. Vishal Dabas, Advocate Mr. Arun Kumar Aggarwal, Advocate, Mr. Subham Aggarwal, Advocate, Mr. Rohit Jain, Advocate, Mr. Saksham Singhal, Advocate and Mr. Nikunj Maheswari, Advocate ORDER The Review/Rectification applications have been filed with the prayer to review and recall the final order passed by this Tribunal. It is in the light of the order dated 18.10.2024 passed by the Apex Court on a Review Petition in the case of Union of India versus Ganpati Dealcom Pvt. Ltd. reported in 2024 SCC OnLine SC 2981 2. The order of this Tribunal sought to be reviewed was passed on an appeal Apreferred by the appellant to challenge the or....
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.... on a Review Petition before the Apex Court and therefore both the parties consented that whatever issues are involved in the appeal be kept open while disposing of the appeal in light of the judgement supra. The appeal was accordingly disposed of in the light of the judgement of the Supreme Court in the case of Ganpati Dealcom (supra). The Apex Court in the said judgment held that amending Act 2016 would have prospective operation. This Tribunal applied the judgment aforesaid to dispose of the appeals finding transaction to be prior to the amendment. It was without analyzing even Section 2(9)(A) of the amending Act 2016. 6. The Counsel submitted that occasion to seek review of the order arose when the Apex Court on a Review Petition in the case of Union of India and another versus Ganpati Dealcom Pvt. Ltd. passed an order on 18.10.2024 recalling its judgment. It became cause for the filing of Review/Rectification Application before this Tribunal and within reasonable time, the Review/Rectification Applications were filed. Minor delay of few days occurred in the administrative process after the order dated 18.10.2024, thus, deserves to be condoned because in majority of the case....
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....rovisions. 9. The Apex Court realized that constitutional validity of the statutory provision could not have been adjudicated in absence of its challenge. The Review Petition was allowed limited to the aforesaid issue. In view of the above, even if the entire judgment in the case of Ganpati Dealcom (supra) has been recalled, it would be limited to the issue referred by the Apex Court in its order dated 18.10.2024 and not opening of other issues and more specifically in reference to the Amending Act of 2016 to apply prospectively. The Review/Rectification Application has been filed by the Review Applicant ignoring the aforesaid and therefore on the first ground itself Review/Rectification Application deserves to be dismissed. 10. Ld. Counsel for the non-applicant further submitted that the perusal of the Review/Rectification Application filed by the respondent would not reveal any ground for review of the order. The Review Application has been filed without raising any ground, rather, filed very casually, thus, Review/Rectification Application deserves to be dismissed in absence of any pleading to make out case for review/recall of the order passed by this Tribunal. 11. Ld.....
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.... in Ganpati Dealcom (supra) to be a command to allow the Review Application and in view of the above also there remains no reason to accept the Review Application, rather, it should be dismissed. 14. Another argument raised by the Counsel for the non- applicant was that change of judgement and change of law are two distinct propositions. The change of the law may not make out a case for review of the order and therefore also there is no reason to entertain the Review Application. It is even if the judgement in the case of Ganpati Dealcom (supra) has been recalled by the order dated 18.10.2024. The issue involved in that case is yet to be decided by the Apex Court and that too afresh. Thus, there remains no reason for this Tribunal to take a view that the amending Act of 2016 would apply prospectively or retrospectively and in fact endeavor of the Review Applicant is to seek an order of the Tribunal on the aforesaid issue, though, knowing it well that the matter is still pending before the Apex Court. Thus, there was no reason for a review of the order in the light of the fact aforesaid and accordingly, the Review/Rectification Application deserves to be dismissed. 15. The ref....
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....in reference to each issue involved in these review applications. We are, thus, not referring the arguments of the Ld. Counsel for the Review Application at this stage, rather, it would be referred while dealing with the issues raised by the non-applicant to contest the Review Application. 20. Ld. Counsel for the Review Applicant elaborately argued the Review Application and submitted that the reasons and grounds for filing the Review Applications have been furnished in Review Application, thus, it is incorrect to state that no ground to seek review has been given in the Review Application. It is submitted that the order sought to be reviewed was decided without touching the merit of the issues raised in the appeal by either of the parties, rather, the order was passed in the light of the consent of the parties that all the issues raised in appeal to be kept open so that disposal may not affect either of the parties for the reason that appeals would be disposed of only in reference to the judgment of the Apex Court in the case of Ganpati Dealcom (supra) . 21. The Review Applicant, however, informed the Tribunal that the Review Petition No. 359/2023 in CA 5783/2022 against the....
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....a and Another v Ganpati Dealcom Private Ltd. The only question which was framed for consideration by this Court was in the following terms: "3. The short legal question which arises for this Court's consideration is whether the Prohibition of Benami Property Transactions Act, 1988 (for short "the 1988 Act"), as amended by the Benami Transactions (Prohibition) Amendment Act, 2016 (for short "the 2016 Act") has a prospective effect. Although a purely legal question arises in this appeal, it is necessary to have a brief factual background in mind before we advert to the analysis." 3. The conclusion which was arrived at by the Court, was in the following terms: "127.1. Section 3(2) (sic Section 3) of the unamended 1988 Act is declared as unconstitutional for being manifestly arbitrary. Accordingly, Section 3(2) of the 2016 Act is also unconstitutional as it is violative of Article 20(1) of the Constitution. 127.2. In rem forfeiture provision under Section 5 of the unamended 1988 Act, prior to the 2016 Amendment Act, was unconstitutional for being manifestly arbitrary. 127.3. The 2016 Amendment Act was not merely procedural, rather, presc....
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....titutional validity of Section 3(2) or Section 5 of the unamended provisions, we cannot take a view offending the order of the Apex Court dated 18.10.2024 to hold that recall of the judgment is in part. This Tribunal lacks jurisdiction for the aforesaid. It is more so when operative part of order dated 18.10.2024 further directs that if the matter was disposed of relying on the judgment of the apex Court in Ganpati Dealcom (supra), liberty is given to the aggrieved party to seek a review of the order. The liberty was given in rem, if the case decided relying the judgment of the Apex Court in Ganpati Dealcom (supra). It is without qualifying it to be only on the constitutional validity. In the light of aforesaid when the judgment dated 23.08.2022 in the case of Ganpati Dealcom 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. Issu....
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....de out a case for review of the order. Issue-3 29. We may now address the issue in reference to the judgment of the Apex Court in Kokilaben Chhaganbhai Patel (supra). The non-applicant has made much emphasis on the judgement to submit that similar Review Application has been dismissed by the Apex Court, thus, this Tribunal should not take a view different than taken by the Apex Court in the case of Kokilaben Chhaganbhai Patel (supra). It is mainly on the ground that the scope of review has been determined by the Apex Court in the case of K.L. Rathi Steel (supra). To consider the issue, we have gone through the order passed by the Apex Court in the case of Kokilaben Chhaganbhai Patel (supra) case. Para 3 to 5 of the order of the Apex Court are quoted hereunder: 3. We also express our inability to agree with the observations made by three-Judge Bench of this Court in Union of India vs. M/s Ganpati Dealcom Pvt. Ltd. [R.P.(C) No.359 of 2023 in C.A. No.5783 of 2022] disposed of in 'paragraph 7' thereof which reads as under: "Where any other proceedings have been disposed of by relying on the judgment of this Court in Ganpati Dealcom Private Ltd (supra), liberty i....
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....mited (supra) which is also of a co-equal strength and prior in time. Therefore, following the judgment of this Court in K.L. Rathi Steels Limited (supra), we decline to grant liberty to seek review in the present case. Hence, the Review Petition is dismissed. 30. The Apex Court in the order aforesaid expressed its inability to agree with the observation and the order of three- Judge Bench dated 18.10.2024 in the case of Ganpati Dealcom in which they not only reviewed the order but recalled the judgment for afresh determination of the issues for the reason that constitutional validity of Section 3(2) and Section 5 of the Act of 1988 could not have been determined without a challenge to the statutory provisions. It seems to have been considered to be an apparent mistake/error on the face of it. Ld. Counsel for the Review Applicant submitted that the order of three-judge of the Supreme Court could not have been nullified by two judges in the Kokilaben's case (supra) even if the scope of review has been determined by apex Court in the case of K.L. Rathi Steel (supra). It is also submitted by Review Applicant that even if the Supreme Court in the case of Kokilaben Chhaganbhai Patel ....
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....t 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 (supra) 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. Issue-4 33. The Ld. Counsel for the non-applicant raised an objection for review / Rectification of the order of this Tribunal referring to the judgment of the Supreme Court in Mangathai Ammal (supra). It is with the submission that the apex Court has already concluded the issue on prospective application of the PBPT 1988, thus, the issue of prospective an....
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.... 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. Issue -5 35. Ld. Counsel for the non-applicant then submitted that grant of liberty of review by the apex Court in its order dated 18.10.2024 is not to entertain the Review Application or to allow it. The Counsel for the Review Applicant submitted that order of the Apex Court dated 18.10.2024 granting liberty to the aggrieved party to seek review of the order, if it was passed relying on the judgment in Ganpati Dealcom (supra) is not for the sake of it. The liberty has not been given casually to s....
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....sidered both the judgments cited by the Counsel for the non-applicant. In the case of Beghar Foundation (supra), it was held that change of law or subsequent decision of a co-ordinate Bench or larger Bench cannot be regarded as a ground of review. The same view has been reiterated by the Apex Court in the case of Commissioner of Income tax versus M/s Gracemac Foundation (supra). The judgments in those cases have been cited by the non-applicant without realizing that case in hand is not to seek a review of the order based on subsequent judgment where a different proposition of law has been evolved. The case in hand has peculiarity. In the instant case the issues were decided by the Apex Court in reference to the provisions of Act of 1988 and even the Amending Act of 2016. It was in the judgment in the case of Ganpati Dealcom (supra). This Tribunal following the judgment aforesaid passed the order sought to be reviewed. The Apex Court has recalled its judgment in the case of Ganpati Dealcom (supra) vide its order dated 18.10.2024. The order dated 18.10.2024 is not evolving a new proposition of law different than what was decided by the Apex Court in the case of Ganpati Dealcom (supra....
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....ance of the order dated 18.10.2024 passed by the Supreme Court where it has given liberty to seek review of the order, if passed in the light of the judgment in Ganpati Dealcom (Supra). 40. We have considered the submissions of the parties and find that that while the Appeals were taken up for hearing, the Review Petition No. 359/2023 was pending before the Hon'ble Apex Court in the case of Ganpati Dealcom. The non-applicant prayed for disposal of the Appeal in light of the judgment in the case of Ganpati Dealcom (supra) with liberty to the either party to seek review of the order. The Review Application was filed when the judgment in the case of Ganpati Dealcom (supra) was recalled. The prayer to keep the matter pending shows conduct of the non-applicant. It is alleged to be in defiance of the order dated 18.10.2024 if the matter are kept pending till the disposal of the pending Civil Appeal No. 5783/2022 before the Apex Court in the case of Ganpati Dealcom. It is, otherwise, going to cause discrimination among the parties. While we had earlier accepted the request of the appellant for disposal of the appeal in the light of the judgment in the case of Ganpati Dealcom despite pe....
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....us, in essence it is to be taken under Section 40(2)(f) of the Act of 1988. Mere making a reference of wrong provision is not fatal. 44. We have considered the rival submissions of the parties and find that a few Review Applications make a reference of Section 47 of the Act of 1988 whereas majority of the Review Applications have been filed invoking section 40(2)(f) of the Act of 1988. The provisions aforesaid is quoted thus:- 40. Procedure and powers of Appellate Tribunal - (1) xx xx xx xx xx xx xx xx xx xx (2) The Appellate Tribunal shall, for the purposes of discharging its functions under this Act, have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit, in respect of the following matters, namely:- (a) - (e) xx xx xx xx xx xx xx xx (f) reviewing its decisions; (g) - (h) xx xx xx xx xx xx xx xx 45. The prayer in the Review Applications is to review the order passed by this Tribunal. The final order sought to be reviewed was passed with liberty to seek review. The Review Applications have been filed in reference to the aforesaid and the order of the Ape....
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.... can be traced to a source available in law [see N. Mani v. Sangeetha Theatre and Ors. (2004) 12 SCC 278]. Thus, quoting of wrong provision of Section 20 in the order of discharge of the appellant by the competent authority does not take away the jurisdiction of the authority under Section 22 of the Army Act. Therefore, the order of discharge of the appellant from the army service cannot be vitiated on this sole ground as contended by the Learned Counsel for the appellant." In N. Mani v. Sangeetha Theatres & Ors. [(2004) 12 SCC 278], it is stated: "9. It is well settled that if an authority has a power under the law merely because while exercising that power the source of power is not specifically referred to or a reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power so long as the power does exist and can be traced to a source available in law." 46. Another judgment on the issue is in the case of Md. Shahabuddin vs. State of Bihar and Ors. reported in JT2010(3)SC 266. Relevant paras of the said judgment are quoted hereunder for ready reference: 47. I am unable to accept the aforesaid submission for the si....
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....e to the judgment of the High Court of Delhi in Rajeev Shukla vs. Gopal Krishna Shukla reported in Manu/DE/0002/2025 would be relevant. Para 12 of the said judgment is quoted hereunder: 12. It is apparent that application for condonation of delay filed by the petitioner has been dismissed merely on the ground that it was filed under Section 151 CPC and not under the Limitation Act, 1963. The trial court has not addressed the application on merits. Mentioning wrong Section of law in an application by a party is typically not considered "fatal" to the case, provided the substance of the application is clear and no prejudice is caused to the opposite party or the court. The courts generally prioritize substance over form, especially if the intention and relief sought by the party are apparent. If incorrect Section does not mislead the court or the other party and no prejudice is caused, the mistake is treated as a "curable defect". The trial court should have focussed on the content of the application rather than the technicalities of citing the incorrect Section. Procedural errors, including mentioning incorrect provision of law should not override the substantive justice. T....
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....nt case we are not determining as to whether the Amending Act of 2016 has prospective or retrospective application, rather, that issue has not been raised in the review application. It may be for the reasons that matter is pending consideration before the Apex Court. Thus, we are unable to accept a fact which has not been specifically raised by the non-applicant and otherwise this Tribunal is not reviewing the order to determine the issue whether Amending Act of 2016 would have prospective or retrospective application but recalling its order in reference to the order of the apex Court dated 18.10.2024 in Ganpati Dealcom(supra). We are not deciding the issue by taking a different view than taken by any High Court. The Tribunal is aware of the fact that the issue is pending consideration before the Apex Court and would be determined therein and not by us. Thus, even the last argument raised by the non-applicant cannot be accepted. 52. We have recorded our finding in reference to the objection raised by the non-applicant to the Review Application at the first instance. It is for the reason that if Review Application has merit yet filed with delay, it should not be dismissed on the ....
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...., the Court noted that it had been adopting a justifiably liberal approach in condoning delay and that "justice on merits" is to be preferred as against what "scuttles CIVIL APPEAL NO. OF 2025 a decision on merits". Albeit, while reversing an order of the High Court therein condoning delay, principles to guide the consideration of an application for condonation of delay were culled out in Esha Bhattacharjee v. Raghunathpur Nafar Academy [Esha Bhattacharjee v. Raghunathpur Nafar Academy, (2013) 12 SCC 649: (2014) 1 SCC (Civ) 713: (2014) 4 SCC (Cri) 450: (2014) 2 SCC (L&S) 595]. One of the factors taken note of therein was that substantial justice is paramount [Para 21.3 of Esha Bhattacharjee [Esha Bhattacharjee v. Raghunathpur Nafar Academy, (2013) 12 SCC 649: (2014) 1 SCC (Civ) 713: (2014) 4 SCC (Cri) 450: (2014) 2 SCC (L&S) 595]]. 38. In N.L. Abhyankar v. Union of India [N.L. Abhyankar v. Union of India, 1994 SCC OnLine Bom 574: (1995) 1 Mah LJ 503], a Division Bench of the Bombay High Court at Nagpur considered, though in the context of delay vis-à-vis Article 226 of the Constitution, the decision in Dehri Rohtas Light Railway Co. Ltd. v. District Board, Bhojpur [....
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.... is to be for substantial justice. It should be paramount consideration. The sound tests to exercise distinction in Condonation of Delay is not in reference to physical running of the time but test should be whether the reason of the delay is in utter negligence and the party had literally given up his claim. In the light of the aforesaid, if the present case is taken into consideration, we have recorded our observations on Review Application and found merit therein and if we dismiss the application for condonation, it would have serious repercussion which includes to cause discrimination between similarly situated in a given case if finally, apex Court decides the case of Ganpati Dealcom (supra) holding Amending Act of 2016 to have even retrospective application. In any case the recall of the order while accepting the Review Application is not a final determination of the right of the either party, but to reopen the proceedings to address it on merits. 57. Ld. Counsel for the non-applicant submitted that the period of delay after the order dated 18.10.2024 in Ganpati Dealcom (supra) in filing the Review Application has not been explained with satisfactory reasons. We have gone ....
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.... Under those circumstances, the Subordinate Judge has rightly adopted correct approach and had condoned the delay without insisting upon explaining every day's delay Sn filing the Review Application in the light of the law laid down by this Court. The High Court was not right in setting aside the order. Delay was rightly condoned. 59. The Apex court had an occasion to deal with the issue in reference to the litigation taken up by the Government. It is held that adoption of some standard to justify the delay may lead to miscarriage of public justice rather it may result in public mischief by skillful management of delay in the process of filing of appeal. The approach of the court should be pragmatic and not pedantic. In the instant case, Review Application has been filed by the government and therefore the parameters sought to be played by the non-applicant cannot be applied. 60. Another judgment is in the case of State of Haryana versus Chandra Mani and Ors. reported in AIR (1996) 3 SCC 132, para 11 and 12 of the said judgement are relevant thus quoted. 11. It is notorious and common knowledge that delay in more than 60 per cent of the cases filed in this Court ....