Dit Vs. Brarat Diamond Bourse - Court Judgment

Excerpt:
- letters patent of madras high courtsections 13(4), 17 & 36: [altamas kabir & cyriac joseph, jj] jurisdiction of tribunal held, it cannot be said that the tribunal, drt has no jurisdiction to interfere with the action taken by the secured creditor after the stage contemplated under section 13(4). on the other hand, the law is otherwise and it contemplates that the action taken by a secured creditor in terms of section 13(4) is open to scrutiny and cannot only be set aside but even the status quo ante can be restored by the drt. the intention of the legislature is, therefore, clear that while the banks and financial institutions have been vested with stringent powers for recovery of their dues, safeguards have also been provided for rectifying any error or wrongful use of such powers by vesting the drt with authority after conducting an adjudication into the matter to declare any such action invalid and also to restore possession even though possession may have been made over to the transferee. the consequences of the authority vested in drt under sub-section (3) of section 17 necessarily implies that the drt is entitled to question the action taken by the secured creditor and the transactions entered into by virtue of section 13(4). the legislature by including sub-section (3) in section 17 has gone to the extent of vesting the drt with authority to even set aside a transaction including sale and to restore possession to the borrower in appropriate cases. thus, it cannot be said that the drt has no jurisdiction to deal with a post section 13(4) situation. clause 15: [altamas kabir & cyriac joseph, jj] appeal - against, order in review petition - appeal was preferred by appellants themselves held, having invoked jurisdiction of appellate court, appellants cannot urge that such appeal was not maintainable. by the courtleave granted.2. the high court had disposed of the appeal filed by the appellant on 18-2-2002, by holding that the issues raised in the appeal were covered by the judgment of the high court in the case of director of it (exemptions) v. bharat diamond bourse : [2000]245itr437(bom) . the decision relied upon by the high court has since been overturned by this court's decision given in civil appeal nos. 8211-8212/2001, between the same parties on 16-12-2002, and director of it v. bharat diamond bourse (2003) 259 itr 280 .3. the learned counsel appearing on behalf of the respondent has, however, sought to reopen the issues determined by our decision by seeking to contend that the decision was incorrect. we are not prepared to allow the respondent to reopen the issues which have been conclusively held against it. in the circumstances, following the decision of this court in (2003) 259 itr 280 (supra), we allow these appeals without any order as to costs. we make it clear that we are limiting this decision strictly to the subject-matter of the appeal filed before the high court. therefore, if the subject-matter of the appeal before the high court was based on the limited findings of the commissioner, while affirming the order of the high court, we leave the issues not decided by the commissioner, if any, open.