Pendency of Review Petition Before Apex Court Can’t Be a Ground to Interfere Order Passed by Lower Authority | HC

Case Details: Deputy Commissioner of Income-tax (Benami Prohibition) v. Advance Infra Developers (P.) Ltd. - [2023] 157 taxmann.com 307 (Madras)

Judiciary and Counsel Details

• • R. Mahadevan & Mohammed Shaffiq, JJ.
  • Mrs M. Sheela, Special Public Prosecutor for the Appellant.
  • R. Sivaraman for the Respondent.

Facts of the Case

The revenue filed the instant appeal against the order passed by the Tribunal. Revenue contended that Section 5 of the Prohibition of Benami Property Transactions Act, 1988, as amended by the Benami Transactions (Prohibition) Amendment Act, 2016 (2016 Act), will have retrospective effect.

The Tribunal passed an order relying upon the decision of the Supreme Court in the case of Union of India vs. Ganapati Dealcom P Ltd [2022] 141 taxmann.com 389 (SC). Against such decision, the Department already preferred a Review Petition in Diary No. 34619 of 2022 (Review Petition No. (Civil) 359 of 2023), and it is pending adjudication.

Thus, revenue submitted that the order passed by the Tribunal is contrary and liable to be interfered with.

High Court Held

The Madras High Court held that the Supreme Court, in the case of Ganapati Dealcom (Supra), held that the provisions under section 5 of the 2016 Act, being punitive in nature, can only be applied prospectively and not retrospectively.

In the Review Petition (Civil) Diary No. 34619 of 2022, the Department sought to review the Supreme Court’s order in Union of India vs. Ganapati Dealcom Pvt Ltd. Though the oral hearing was permitted by the order dated 25.01.2023, no stay order was issued by the Apex Court.

Thus, as of date, the decision of the Supreme Court in Ganapati Dealcom Pvt Ltd (Supra) holds the field. The argument that provisions of Section 5 of the Amended Act 2016 have to be applied retrospectively cannot be allowed.

The pending review of the Union of India vs. Ganapati Dealcom Pvt. Ltd. decision does not justify interference with the Tribunal’s order. It is also well settled that mere pendency of the Review Petition will not be a ground to assail the orders impugned in the appeals.

However, the revenue is open to proceed depending on the outcome of the review petition.