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Todi Properties Ltd. Vs. Income-tax Officer - Court Judgment

LegalCrystal Citation
CourtIncome Tax Appellate Tribunal ITAT Kolkata
Decided On
Judge
Reported in(1985)14ITD119(Kol.)
AppellantTodi Properties Ltd.
Respondentincome-tax Officer
Excerpt:
1. this is a miscellaneous application by the assessee stating that in the assessee's appeal nos. 657 and 658 (cal.) of 1983, which was directed against the order of the commissioner under section 263 of the income-tax act, 1961 ('the act'), the assessee raised the point that the assessments having been made in pursuance of the direction of the iac under section 144b of the act, section 263 could not be invoked in respect of such assessments. hence, the orders of the commissioner under section 263 were without any authority.2. we have heard both the sides and have perused the orders of the tribunal on the appeal by the assessee as well as on the first miscellaneous application being miscellaneous application no. 125 (cal.) of 1984. it is seen that the tribunal noted that such point was.....
Judgment:
1. This is a miscellaneous application by the assessee stating that in the assessee's Appeal Nos. 657 and 658 (Cal.) of 1983, which was directed against the order of the Commissioner under Section 263 of the Income-tax Act, 1961 ('the Act'), the assessee raised the point that the assessments having been made in pursuance of the direction of the IAC under Section 144B of the Act, Section 263 could not be invoked in respect of such assessments. Hence, the orders of the Commissioner under Section 263 were without any authority.

2. We have heard both the sides and have perused the orders of the Tribunal on the appeal by the assessee as well as on the first miscellaneous application being Miscellaneous Application No. 125 (Cal.) of 1984. It is seen that the Tribunal noted that such point was raised by the assessee in the grounds of appeal before it. But in its order dated 18-5-1984, on the appeal by the assessee, at paragraph No.7, it has been mentioned that at the time of hearing, ground No. 2 was not pressed and that ground related to the issue that since the order of the ITO being not erroneous and having been passed as per direction of the IAC under Section 144B, the entire proceeding under Section 263 was bad in law. The Tribunal noted that since this ground is not pressed, this specific ground of appeal by the assessee was rejected as not pressed. That being the position, we find that there is no mistake apparent on record, which requires to be rectified under Section 254(2) of the Act as per Miscellaneous Application No. 5 (Cal.) of 1985.

3. It is also noted by the assessee that observations of the Commissioner in his order under Section 263 were wrong and factually incorrect and the same should be expunged. It is stated at paragraph No. 6 of his order that the Commissioner has noted 'that the assessee continued to be in possession of the said property'. It is also stated that at paragraph No. 6 of his order, the Commissioner went on further to say that the assessee has been collecting municipal taxes from its tenants, who are occupying shops and 'the assessee-company had collected municipal tax from his tenants'. It is submitted by the assessee's learned counsel that these observations which were factually wrong and incorrect should be expunged from the order.

4. We have heard both the sides and have perused the orders of the authorities below as well as the order of the Tribunal referred to earlier.

5. The Commissioner might have made statements or observations which according to the assessee, are not correct. But when the matter came up before the Tribunal, the Tribunal gave its decision on the points of appeal raised before it. In the instant case, the Tribunal in its order on the appeal by the assessee being IT Appeal Nos. 657 and 658 (Cal.) of 1983 dated 18-5-1984 has given the finding at paragraph No. 10 that it had perused the orders of the authorities below for its consideration and found that there was no deed of sale having been registered and, therefore, the Commissioner was justified in holding that the assessee continues to be the owner of the property in question, in view of the decision in the case of CIT v. Ganga Properties Ltd. [1970] 77 ITR 637 (Cal.). Similarly, the Tribunal at paragraph No. 11 of its order, has stated that in the circumstances, it has to be held that the assessee in the present case and on the facts available, continues to be the owner of the properties in question.

Thus, in our opinion, irrespective of the observations of the Commissioner in his order, it is the finding of the Tribunal on the point which has a bearing and is operative.

6. So, in our opinion, in the above context, there is no mistake in the order of the Tribunal for rectification in respect of those observations made by the Commissioner.

7. It is also stated in the present miscellaneous application that the Tribunal has noted that 'in the circumstances, it has to be held that the assessee in the present case and on the facts available, continues to be the owner of the properties in question', relying on various decisions as noted therein. In the present miscellaneous application, the gist of the decisions noted by the Tribunal was given. It is stated now that the assessee filed the first miscellaneous application, which was rejected by the Tribunal by its order dated 15-11-1984. According to the assessee, the points decided in those cited cases were not the subject-matter of the order under Section 263, inasmuch as the ITO in the present case by following the decision in the case of Ganga Properties Ltd. (supra) had already included the notional income under the house property in computing the income of the assessee. It is also pointed out that before the Tribunal, the only points at issue were only those set out in paragraph No. 1 of the miscellanepus application.

It is stated that since the ITO had already included the notional income under house property irrespective of rooms/shops sold without registered deeds, his inclusion could be and had not been the subject-matter of the proceedings under Section 263. It is, therefore, argued by the assessee's learned counsel that in spite of these circumstances, the Tribunal travelled beyond its jurisdiction in giving the judgment on a point which was outside the very scope of appeal.

According to the learned counsel, this was an inadvertent mistake on the part of the Tribunal. It is further submitted that by its miscellaneous application filed earlier, the Tribunal was requested to rectify such mistake, but unfortunately the same mistake was perpetuated by rejecting the first miscellaneous application. It is submitted, therefore, that the first miscellaneous application referred to earlier, requires to be properly considered in the interests of the justice and the order of the Tribunal may suitably be rectified by deleting inappropriate and irrelevant observations and findings as indicated in the present application. It is also submitted that the decision of the Tribunal on the assessability of the notional income in the hands of the assessee, was outside the scope of appeal.

8. We have heard both the parties at length who placed their respective views and arguments on the points. We have gone through the orders of the Tribunal on the IT appeal as well as on the first miscellaneous application of the assessee. It may be mentioned that before the Commissioner, the assessee contended that the ITO was wrong in treating the assessee as the legal owner of the rooms sold, as mentioned at paragraph No. 5 of the order of the Commissioner under Section 263. The Commissioner considered the circumstances of the case and held that the assessee continued to be in possession of the said properties, as no deed of conveyance had been registered in the names of the owners of the shops. The Commissioner referred to the decision in the case of Ganga Properties Ltd. (supra) as well as the decision in the case of CIT v. Hans Raj Gupta [1982] 137 ITR 195 (Delhi). At para 7, he noted that in view of the aforesaid decision of the Courts, he rejected the contentions advanced by the assessee's representative and held that the assessee was the owner of the said property. That order of the Commissioner amongst other things, was taken by the assessee in an appeal before the Tribunal. The Tribunal disposed of the assessee's appeal and took into account the decision of the High Courts referred to by the Commissioner in the impugned order. Of course, the Tribunal referred to other decisions of the other High Courts and the Supreme Court on a similar point.

9. Thus, in our opinion, the Commissioner gave a finding to that fact as indicated, in view of facts of the case and keeping the ratio of the decision in the case of Ganga Properties Ltd. (supra), etc. That finding was basically essential as the Commissioner proceeded to direct the ITO to allow deduction on account of municipal tax only as provided by the proviso to Section 23(1) of the Act. This proviso states that where a property is in the occupation of tenants, the taxes levied by the local authority borne by the owner shall be deducted in determining the annual value of the property. In other words, in assessability of annual value under Section 23(1), the existence of ownership is an essential condition. That was why the Commissioner gave the finding that since the deed of conveyance having not been registered, the ownership continues to be with the assessee, for the purpose of the above proviso. In our opinion, the fact of the ownership and the claim for municipal taxes borne by the owner or borne by the tenants, is interlinked.

10. That apart, in the paper book, it is seen that the assessee has filed a copy of the direction of the IAC dated 3-8-1982 given to the ITO under Section 144B, in which it has been stated at paragraph No. 1 that according to the learned counsel, the assessee had ceased to be the owner of the property in respect of those floors and the ITO had misconceived the provisions of Section 22 of the Act in treating the assessee as the owner in respect of those floors. The IAC examined the facts of the case and noted that his predecessor has held that the assessee continued to be the owner as conveyance was registered. He, therefore, held that the ITO was justified in treating the assessee as the owner of the property and assessing the notional income in its hands.

11. Thus, it can be seen that before the I AC under Section 144B and even before the Commissioner under Section 263, the assessee repeated its stand that it ceased to be the owner of those properties sold to the other persons. This fact was noted and considered by the Tribunal while disposing of the assessee's appeal. It mentioned other case laws on the point as these were similar to the facts of the case of Ganga Properties Ltd. (supra). Thus, in our opinion, mentioning of those other case laws decided on similar issue, cannot be on the facts of the case, a mistake apparent on record which requires to be expunged. Of course, the assessee's learned counsel at the time of hearing of the second miscellaneous application has stated that the matter is now pending before the ITO and it may adversely affect or prejudice the case of the assessee before the lower authorities, if no rectification as prayed is done. In our opinion, each case is to be decided on the facts and in the circumstances of the case. However, the findings of the Tribunal in the present appeal by the assessee, and on miscellaneous application by the assessee, would be relevant and confined to the facts and circumstances of the case. If the matter is pending before the ITO, the assessee is at liberty to place any fact, material evidence, etc., including even subsequent developments, if any, for decision by the ITO on the facts of the case.

12. It has been stated by the assessee's learned counsel that the Commissioner wrongly noted that the assessee continued to be in possession of the property sold. The impugned order of the Commissioner merged with the order of the Tribunal and the Tribunal has given its own specific finding on the point and it is that finding of the Tribunal which is operative.

13. In fact, the Commissioner was liberal in stating that in strict compliance with the proviso to Section 23(1), only the balance of the amount was admissible deduction from the rental income. If the said occupiers or purchasers were not deemed as tenants in the contort of the case, then the annual value of property would have to be adopted without giving effect to the proviso to Section 23(1), which authorises deduction of taxes borne by the owner. Having regard to the facts and the circumstances of the case in their entirety, we find that on the first miscellaneous application of the assessee, the Tribunal has dealt with the points raised by the assessee and there is no mistake in rejecting the said miscellaneous application. Taxing of notional income can only be made as provided under Section 23 onwards as discussed in the preceding paragraph. 10 the circumstances of the case as discussed, we find that there is no mistake which requires to be rectified and there was no inappropriate or irrelevant observation or finding which called for any modification or cancellation. In this view of the matter, the miscellaneous application of the assessee being Miscellaneous Application No. 5 (Cal.) of 1985 cannot be conceded to.

1. I have gone through the order of my learned brother and although this is not the stage to review any earlier orders passed in this behalf, I must confess that there has been some misunderstanding in the matter. All through the assessee's case has been that although it was technically the owner of the property in dispute, portions of the same had been physically transferred to the intending purchasers, though formal deeds of conveyance had not been executed. These purchasers, who were put in possession of the property, had been contributing towards payment of municipal taxes which, inter alia, were the liabilities of the assessee. Consequently, the assessee's contention before the authorities below had been that it was not even liable to tax on the annual value of the house property in dispute on the ground that it was not the real owner thereof. Now, this point was decided against the assessee by the ITO, who brought to tax the annual value of the entire property standing in the name of the assessee. But he gave full deduction on account of municipal taxes, which the assessee was otherwise liable to pay. The Commissioner mistakenly thought that the persons in actual possession of the property in dispute were the tenants. Actually they were not the tenants but the prospective purchasers of the same. However, since they were not liable to pay municipal taxes (as the property stood in the name of the assessee), they contributed towards the payment of tax to the assessee. The .Commissioner thought that this contribution had been made by them as tenants and, therefore, to this extent, the assessee was not entitled to deduction of the municipal tax out of the annual value of the property in dispute. Against this order of the Commissioner the assessee came in appeal and its earlier miscellaneous application would show that the assessee got an impression wrong or right, that some relief would be granted to it in the matter, inasmuch as the facts of the case had not been properly appreciated by the Commissioner. It has now been again alleged that it was for this reason that the assessee's representative did not press his ground No. 2 taken in the memorandum of appeal in which it was alleged that the Commissioner had no jurisdiction to revise the present order inasmuch as the assessment had been made in pursuance of the direction of IAC under Section 144B. Now, this was a purely legal ground and since it went to the root of the matter, viz., jurisdiction of the Commissioner, the Tribunal was ordinarily expected to dispose it of. While unfortunately there was nothing wrong in initially rejecting this ground because the assessee's representative did not choose to press the same, in view of the clear allegation made in Misc. Application No. 125 (Cal.) of 1984, it would have been better if the Tribunal had given a finding in relation to this ground also because it may be that any proceedings before the High Court under Section 260 of the Act the assessee may choose to raise this ground but the order of the Tribunal passed in the main appeal does not contain any discussion thereof. Since the earlier miscellaneous application was rejected by the Tribunal by its order dated 15-11-1984, the assessee came forward with the present miscellaneous application in which again the assessee has alleged that the assessee had given sufficient material to justify interference with the order of the Commissioner by the Tribunal in the main appeal and the Tribunal probably misconstrued the legal position in rejecting the appeal of the assessee altogether because of this impression (whether wrong or right) that the facts would be properly appreciated by the Tribunal and the assessee would get some relief, its representative had not chosen to press ground No. 2 raised in this behalf.

2. In the exceptional circumstances, pointed out above, I am of the opinion that it would be better if all the orders in question passed in this behalf earlier are recalled and the assessee is given a fresh opportunity to argue the matter inasmuch as there can be a possibility of the assessee's having been misled in this matter and, consequently, a scope of its being deprived of proper justice.

1. The following question has been assigned by the President under Section 225(4) of the Act : Whether the orders passed in the aforesaid appeals and Miscellaneous Application No. 125 (Gal.) of 1984 should be recalled and the matter be heard afresh 2. The learned Members constituting the Bench for hearing of the Miscellaneous Application No. 5 (Cal.) of 1985 of the assessee could not come to a common conclusion and, consequently, the matter has been assigned to the Third Member by the President.

3. The fact is that the assessee is a limited company and derives income from house property. The assessee constructed a number of rooms at 32, Ezra Street, Calcutta. The rooms so constructed were sold out to intending purchasers on the basis of agreements. But the deed of conveyance was not executed in favour of the purchasers for the rooms constructed during the previous year. The deed of conveyance was executed only for the rooms on the ground floor. The assessee, before the ITO claimed that the notional income from the house property cannot be determined in the hands of the assessee as rooms had been sold out.

The ITO did not accept the same and for the reasons adopted in the assessment year 1977-78, he came to the conclusion that the assessee was the 'owner' of the rooms. The ITO for this purpose placed reliance on the dictionary meaning. The ITO did not accept the argument of the assessee that the rental income should be determined under the Delhi Rent Control Regulation Act, 1958, for which the assessee relied before him in Mrs. Sheila Kaushish v. CIT [1981] 131 ITR 435 (SC) and Amolak Ram Khosla v. CIT [1981] 131 ITR 582 (SC). The ITO, however, allowed the municipal tax paid by the assessee. Similar order was passed by the ITO for the assessment year 1979-80.

4. The Commissioner perused the assessment records of the assessee for the assessment year 1978-79 and he found that the municipal tax had not been correctly allowed by the ITO under Section 23(1) of the Act. He found that the assessee was allowed deduction under Section 23(1) at Rs. 1,35,057 and Rs. 1,45,946 for the assessment years 1978-79 and 1979-80, whereas the assessee realised from the purchasers the municipal tax of Rs. 1,00,581 and Rs. 1,15,985, respectively.

Consequently, he was of the opinion that the assessee should have been allowed only the municipal tax which was borne by it. On this ground, he came to the conclusion that the assessment made by the ITO was erroneous and prejudicial to the interests of the revenue. He exercised powers under Section 263 and issued a show-cause notice to the assessee. In compliance with the said show-cause notice, the assessee submitted its written arguments in its letter dated 9-11-1982. Further, it was contended by the assessee that the rooms had been sold out to the purchasers, the agreement has been executed and, therefore, the notional income from house property cannot be determined in the hands of the assessee. It was further argued by the assessee's counsel that the municipal tax allowed by the ITO was correct because the municipal tax payable on the annual value was claimed as deduction under Section 23(1). The Commissioner referring to the decisions in Ganga Properties Ltd.'s case (supra) and Hans Raj Gupta's case (supra) came to the conclusion that the ITO rightly assessed the notional income in the hands of the assessee. He further stated that according to the provisions of Section 23(1), the municipal tax to the extent the same is borne by the owner is allowable under Section 23(1). On the basis of the facts available on record, he found that the assessee had paid the amount but at the same time it had realised some part from the purchasers and, therefore, deduction has not been correctly allowed.

Consequently, he set aside the assessments on the limited point that the income from house property should be determined after considering the actual municipal tax paid by the assessee after deducting the recovery made from the purchasers.

5. The assessee came in appeal against the order of the Commissioner under Section 263 and took several grounds. He challenged the order of the Commissioner on merit. He further disputed that the order passed by the Commissioner under Section 263 was ab initio void, particularly when the order under Section 263 was passed by the Commissioner after the order of the IAC under Section 144B. It would be relevant to mention that the legal ground taken by the assessee was riot pressed in the original appeal. In this connection, it would be pertinent to quote paragraph No. 7 of the Tribunal's order dated 18-5-1984 : 7. At the time of hearing, the ground No. 2 in the present appeal preferred by the assessee, is not pressed. This ground related to the issue that since the order of the ITO being not erroneous and having passed as per directions of the IAC under Section 144B, the entire proceedings under Section 263 were bad in law and illegal.

Since this ground is not pressed, this specific ground of appeal by the assessee is rejected as not pressed.

6. The assessee thereafter moved a miscellaneous petition under Section 254(2). In substance, the ground taken by the assessee in the miscellaneous petition was that the assessee disputed the fact that the income from the house property should be assessed in its hands, when the matter is pending in appeal with higher authority and the second objection taken by the assessee was that the Commissioner did not have jurisdiction under Section 263 when the assessment was made pursuant to the direction of the IAC under Section 144B. The miscellaneous application of the assessee was rejected by the order of the Tribunal vide Miscellaneous Application No. 125 (Cal.) of 1984 dated 15-11-1984.

7. The assessee thereafter made the second miscellaneous application.

The assessee reiterated that the stand taken in the earlier Miscellaneous Application No. 125 (Cal.) of 1984 requires proper consideration. The assessee in this connection stated that the Tribunal has given finding on the subject on which it was not required and the Tribunal has not considered the ground of the assessee. This miscellaneous application was disposed of by the Members in Misc.

Application No. 5 (Cal.) of 1985. The learned Accountant Member, who was also one of the parties in the Miscellaneous Application No. 125 (Cal.) of 1984, came to the conclusion that there was no merit in the second miscellaneous application of the assessee, whereas the learned Judicial Member concluded that in the exceptional circumstances, it would be better if the order of the Tribunal is recalled and the assessee was given a fresh opportunity to argue the case. As there was a difference of opinion on the point raised in the miscellaneous application, the said question has been assigned by the Hon'ble President for decision under Section 255(4).

8. Shri M.P. Thard, the counsel of the assessee, very elaborately discussed the facts of the case and stated that the assessee was assessed on the notional income from house property even though the rooms were sold out on the basis of agreement to the intending purchasers. The possession was also with the purchasers. The assessee did not accept the assessment and it was pending in appeal. However, the assessee claimed deduction for municipal tax and the same was allowed. The assessee disputed that the Commissioner has given certain findings which are contrary and the Tribunal has given a finding for which no ground was taken by the assessee. Shri Thard further stated that if the miscellaneous application of the assessee is not allowed, the very purpose of filing the appeal of the assessee before the higher authority shall be defeated. Accordingly, he placed reliance on the order of the learned Judicial Member in Misc. Application No. 5 (Cal.) of 1985 and urged that the order of the Tribunal in IT Appeal Nos. 657 and 658 (Cal.) of 1983 should be recalled.

9. The senior departmental representative, Shri S.K. Jha, on the other hand, very strongly supported the order of the Commissioner under Section 263 and the order of the Tribunal in IT Appeal Nos. 657 and 658 (Cal.) of 1983. Shri Jha, in short but beautifully summarised the whole dispute and stated that the assessee sold out the rooms to the intending purchasers on the basis of the agreement and no deed of conveyance was executed in favour of the purchasers for most of the rooms. Under the said circumstances, the assessee was treated as owner 'within the meaning of Section 22 of the Act'. The assessee was entitled to deduction for municipal tax and the same was allowed under Section 23(1). The assessee was also allowed deduction for the amount claimed by it without noticing this fact that the assessee has collected the municipal tax from the purchasers. Section 23(1) empowers the allowance of deduction for municipal tax to the extent that was borne by the owner. The Commissioner has given a limited direction to the ITO while setting aside the order that the municipal tax borne by the assessee should be allowed.

10. If the order of the Commissioner under Section 263 for the assessment years 1978-79 and 1979-80 is carefully read, it appears that there is no scope for any miscellaneous application in the order of the Tribunal in IT Appeal Nos. 657 and 658 (Cal.) of 1983, particularly when the legal ground was not pressed by the assessee and the same was duly recorded in paragraph 7 of the Tribunal's order. The assessee is not in a position to dispute the finding given by the Tribunal in paragraph 7 of its order in which it had been indicated that the assessee did not press ground No. 2. The only issue, therefore, before the Tribunal was whether the order passed by the Commissioner was erroneous and at the same time, the Commissioner was justified in directing the ITO to allow the municipal tax borne by the owner under Section 23(1). The Commissioner while coming to this conclusion that the order of the ITO was erroneous simply stated that the assessee was the owner within the meaning of Section 22 and the assessee was entitled under Section 23 to deduction of municipal tax to the extent it was borne by it. The Commissioner has given the figures of deduction allowed by the ITO in these years as well as the recovery made by the assessee on the same account from the purchasers. The said finding had been maintained by the Tribunal. The Tribunal has indicated that the assessee was the owner and the assessee should have been allowed deduction of municipal tax under Section 23(1) to the extent it was borne by it. Therefore, the plea taken by the assessee's counsel in the miscellaneous application that some of the points taken by the Commissioner are contradictory could not be the subject-matter of miscellaneous application against the order of the Tribunal. Further, the Tribunal, for the sake of brevity, reiterated the fact that though the possession of the rooms was given to the purchasers, in the absence of the conveyance deed, the assessee was the owner of the property. The ultimate finding of the Tribunal after considering Section 23(1) was that the municipal tax was allowable to the extent it was borne by the owner and to this extent, the order passed by the ITO was erroneous for which the jurisdiction under Section 263 was rightly exercised by the Commissioner. Thus, there was no scope for any miscellaneous application.

11. It would be relevant to discuss some of the points taken by the learned Judicial Member while he has allowed the miscellaneous application of the assessee. The Commissioner, no doubt, somewhere has mentioned that the municipal taxes were recovered from the tenants.

This fact is not correct and in some other places, he has indicated that the recovery was made from the purchasers. This fact has been ultimately clarified by the Tribunal in its order. The learned Judicial Member has mentioned that the assessee was under the impression after the argument that the assessee would get relief because the assessment of the assessee on quantum is pending in appeal. He, accordingly, did not press ground No. 2. The said observation has been made by the Judicial Member which has not been supported by any material nor there is any evidence on the record of the Tribunal. The observation made by the Judicial Member is quoted below : It has now been again alleged that it was for this reason (that some relief would be granted to it in the matter) the assessee's representative did not press ground No. 2 taken in the Memorandum of Appeal in which it was alleged that the Commissioner had no jurisdiction to revise the present order inasmuch as the assessment had been made in pursuance of the direction of the I AC under Section 144B of the Income-tax Act.

12. It has been indicated that unless there is some material to this effect, this could not be considered as a mistake apparent from the record, while a specific finding is recorded in paragraph 7 of the order that ground No. 2 was not pressed by the assessee. It may be a legal ground. However, if the assessee chooses not to press it, subsequently, it cannot claim that there is a mistake in the order of the Tribunal. The Judicial Member further observed in the order that it would have been better if the Tribunal had given a finding in relation to ground No. 2 also, because it may be that in proceedings before the High Court under Section 260 of the Act, the assessee may choose to raise this ground but the order of the Tribunal passed in the main appeal does not contain any discussion thereof. The said observation of the learned Judicial Member is not relevant for the petition of the assessee under Section 254(2). Reference may go to the Hon'ble High Court. The Hon'ble High Court may decide the question referred to it and the Tribunal for that purpose cannot decide a point which was not pressed before the Tribunal and on that ground, the Tribunal cannot recall its order. The Judicial Member particularly on these two inferences drawn from self-imagination has come to the conclusion that the order passed by the Tribunal should be recalled, which is not correct.

13. There is no mistake in the order of the Tribunal, for which the order passed by the Tribunal should be recalled. Consequently, the answer to the question referred to is as hereunder : The orders passed in IT Appeal Nos. 657 and 658 (Cal.) of 1983 and Miscellaneous Application No. 125 (Cal.) of 1984 need not be recalled and heard afresh.

14. The above order is referred back to the Bench, which would pass the majority judgment.


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