Shital Co. Op. Housing Society Ltd. ... vs Deputy Director Of Income Tax Bpu Unit on 3 August, 2021

[Cites 2, Cited by 0]

Gujarat High Court

Shital Co. Op. Housing Society Ltd. ... vs Deputy Director Of Income Tax Bpu Unit on 3 August, 2021

Bench: Nikhil S. Kariel

    C/SCA/7704/2021                             ORDER DATED: 03/08/2021




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 7704 of 2021

                                 With
              R/SPECIAL CIVIL APPLICATION NO. 7705 of 2021
                                 With
              R/SPECIAL CIVIL APPLICATION NO. 4462 of 2021
                                 With
              R/SPECIAL CIVIL APPLICATION NO. 6883 of 2021
                                 With
              R/SPECIAL CIVIL APPLICATION NO. 6903 of 2021
                                 With
              R/SPECIAL CIVIL APPLICATION NO. 6808 of 2021
                                 With
              R/SPECIAL CIVIL APPLICATION NO. 6809 of 2021
                                 With
              R/SPECIAL CIVIL APPLICATION NO. 6836 of 2021
                                 With
              R/SPECIAL CIVIL APPLICATION NO. 6832 of 2021
                                 With
              R/SPECIAL CIVIL APPLICATION NO. 6833 of 2021
                                 With
              R/SPECIAL CIVIL APPLICATION NO. 7473 of 2021
                                 With
              R/SPECIAL CIVIL APPLICATION NO. 7475 of 2021
                                 With
              R/SPECIAL CIVIL APPLICATION NO. 7927 of 2021
========================================================
                       CHHAGANBHAI BHOLIDAS PATEL
                                  Versus
                      DEPUTY DIRECTOR OF INCOME TAX
========================================================
Appearance:
IN SPECIAL CIVIL APPLICATION NO. 7704 of 2021, R/SPECIAL CIVIL
APPLICATION NO. 7705 of 2021, R/SPECIAL CIVIL APPLICATION NO. 6883 of
2021, R/SPECIAL CIVIL APPLICATION NO. 6903 of 2021
MR SAURABH SOPARKAR SENIOR ADVOCATE WITH MR. JAINISH P
SHAH(7033) for the Petitioner(s) No. 1
MS. JIGNA J SHAH(7004) for the Petitioner(s) No. 1
MR M.R. BHATT SENIOR ADVOCATE with MRS MAUNA R BHATT for the
Respondent(s) No. 1
===================================================
Appearance:
SPECIAL CIVIL APPLICATION NO. 4462 of 2021, SPECIAL CIVIL
APPLICATION NO. 6808 of 2021, R/SPECIAL CIVIL APPLICATION NO. 6809 of
2021,,R/SPECIAL CIVIL APPLICATION NO. 6836 of 2021,,R/SPECIAL CIVIL
APPLICATION NO. 6832 of 2021,,R/SPECIAL CIVIL APPLICATION NO. 6833 of
2021,SPECIAL CIVIL,APPLICATION NO. 7473 of 2021,R/SPECIAL CIVIL
APPLICATION NO. 7475 of 2021,R/SPECIAL CIVIL APPLICATION NO. 7927 of



                                 Page 1 of 5

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      C/SCA/7704/2021                                ORDER DATED: 03/08/2021



2021
MR MIHIR JOSHI SENIOR ADVOCATE WITH MS NUPUR SHAH for the
petitioner (s) No.1
MR M.R. BHATT SENIOR ADVOCATE with MRS MAUNA R BHATT for the
Respondent(s) No. MR. JAINISH P SHAH(7033) for the Petitioner(s) No. 1
MS. JIGNA J SHAH(7004) for the Petitioner(s) No. 1
 for the Respondent(s) No. 1
========================================================

  CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                              Date : 03/08/2021

                               ORAL ORDER

Heard learned Senior Advocate Shri Mihir Joshi with learned Advocate Ms. Nupur Shah on behalf of the petitioners in Special Civil Application Nos. 4462 of 2021, 6808 of 2021, 6809 of 2021, 6836 of 2021, 6832 of 2021, 6833 of 2021, 7473 of 2021, 7475 of 2021 and 7927 of 2021, learned Senior Advocate Shri Saurabh Soparkar with learned Advocate Shri Jainish Shah on behalf of the petitioners in Special Civil Applications Nos. 7704 of 2021, 7705 of 2021, 6883 of 2021 and 6903 of 2021 and learned Senior Advocate Shri M.R. Bhatt with learned Advocate Mrs. Mauna M. Bhatt on behalf of the respondents in all the captioned matters.

Learned Senior Advocates Shri Mihir Joshi and Shri Saurabh Soparkar have submitted that a draft amendment has been moved by the petitioners herein more particularity in view of the fact that similar issue, involving the same notices, are pending before Division Bench of this Court and whereas Division Bench having taken cognizance thereof, the petitioners have incorporated grounds inter alia submitting that the retrospective effect given to the Act would be unconstitutional, as has been contended by the petitioners in the petition before the Division Bench and therefore, the draft amendments are requested to be granted.

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C/SCA/7704/2021 ORDER DATED: 03/08/2021 Learned Senior Advocates further submit that in almost in all the matters while the petitions were challenging the show cause notices under Section 24 of the Prohibition of Benami Property Transactions Act, 1988 ( hereinafter referred to as 'the Act'), orders have been passed pursuant to the said notice and appropriate grounds and prayers for challenging the same are also incorporated in the draft amendment.

This draft amendment is opposed by learned Senior Advocate Shri M.R. Bhatt with learned Advocate Mrs. Mauna Bhatt inter alia submitting that originally the petitions were preferred raising a contention that the provisions of the Act more particularly provisions 24 to 29 would not have any retrospective applicability and whereas by way of draft amendment a contrary stand is now being taken whereas it is submitted that retrospective effect would be unconstitutional. It is also submitted that the petitioners have been fence sitters and since the Division Bench has entertained the challenge in the petitions preferred by persons similarly situated to the present petitioners and whereas since some interim relief appears to have been granted by the Hon'ble Division Bench therefore by way of the amendment petitioners having approached this Court by way of raising a contention challenging the retrospective applicability which is a stand contrary to the stand taken in the petition, which amounts to approbating and reprobating and hence may not be permitted by this Court.

As against the same in rejoinder learned Senior Advocates Shri Joshi and Shri Soparkar have submitted that there is no question of any aprobating and reprobating as contended by learned Senior Advocate Shri Bhatt more particularity since the litigant having approached this Court is permitted to raise as many contentions as he likes and whereas alternative contentions are regularly being taken that would not come under the term Page 3 of 5 Downloaded on : Mon Sep 06 03:07:29 IST 2021 C/SCA/7704/2021 ORDER DATED: 03/08/2021 approbate or reprobate.

It is further submitted that for maintaining comity and for also ensuring that separate decisions are not passed by different benches of this Court concerning the same subject matter it is required that the matters should not be heard by different Courts. Therefore learned Senior Advocates submitted that draft amendment should be granted.

It is also contended by learned Senior Advocate that as such the draft amendment in no way prejudices the respondents and in case they have to submit anything as regards the draft amendment it would be always open for them to file the reply against all the contentions raised therein. Therefore it is submitted that there may not be any objection against grant of draft amendment.

Heard learned Senior Advocates for the petitioners.

It is by now a well settled position that a petitioner, being the dominus litis, he has the right to take as many and as different grounds as he may think fit in support or for the purpose of prayers prayed for him before this Court being granted. That while it is true in the writ petitions when they were originally filed, the contention had been taken by the petitioners that the Act more particularity Sections 24 to 29, may not have retrospective applicability but at the same time this Court does not feel that a later ground of challenge to the show cause notice or to the final order on the ground that retrospective applicability would be unconstitutional could termed to be approbating and reprobating. This Court is of the opinion that the yardstick to consider whether a draft amendment is required to be granted or not is whether a prejudice is caused to the other side and whether Page 4 of 5 Downloaded on : Mon Sep 06 03:07:29 IST 2021 C/SCA/7704/2021 ORDER DATED: 03/08/2021 the form and substances of the petition gets substantially altered by the draft amendment. In the considered opinion of this Court since merely by granting a draft amendment, more particularly since the form and substance of the petition does not change and more particularity when matters where similar pleas have been raised are pending for adjudication before Hon'ble Division Bench of this Court, for maintaining comity of orders, all the matters ought to be heard by the same bench and since the constitutionality of provisions of the Act are challenged, therefore the cases would be required to be heard by the Division Bench. Having regard to the same the draft amendment is granted the same is to be carried out by the learned Advocates within a period of 10 days from today.

Fresh copies of the petitions to be supplied to the registry as well as to the learned Advocates for the other sides. Thereafter appropriate orders would be passed by this Court.

S.O. to 20.08.2021.

(NIKHIL S. KARIEL,J) NIRU Page 5 of 5 Downloaded on : Mon Sep 06 03:07:29 IST 2021

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