of Income Tax, Bhopal Vs. Narendra Doshi  Insc 344
(26 July 2001)
Bharucha, Y K. Sabharwal & Brijesh Kumar
D E R
The question that the High Court was called upon to answer read thus:
on the facts and in the circumstances of the case, the Income Tax Appellate
Tribunal was justified in law in upholding the order of Dy. CIT (A) Indore,
directing to allow interest on interest, when the law points for grant of
simple interest only? It answered it in the affirmative and in favour of the assessee,
relying upon judgments which laid down that interest was payable on the excess
amount paid towards income tax.
Tribunal, whose decision the High Court affirmed, had relied upon the decision
of the Gujarat High Court in the case of D.J. Works vs. Deputy Commissioner of
Income Tax ( 195 I.T.R. 227 ), which had been followed by the same High Court
in Chimanlal S. Patel vs. Commissioner of Income Tax ( 210 I.T.R. 419 ). These
decisions hold that the Revenue is liable to pay interest on the amount of
interest which it should have paid to the assessee but has unjustifiably failed
Revenue has not challenged the correctness of the two decisions of the Gujarat
High Court. They must, therefore, be bound by the principle laid down therein.
Following that principle, the question has, as we find, been rightly answered
in the affirmative and in favour of the assessee.
civil appeal is dismissed.
order as to costs.
(Y.K. Sabharwal) (Brijesh Kumar) July 26, 2001
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal Nos. 4396-4398 of 2000 Mulayam Singh Yadav
Appellant Versus Dharampal Yadav and Ors. Respondents WITH
Civil Appeal No. 4399 of 2000
Appeal Nos. 4396-4398/2000 :
concerned in these appeals with the election held on 22nd February, 1998 for the 9 Sambhal Parliamentary Constituency.
The result thereof was declared on 3rd March, 1998. The appellant, Mulayam Singh Yadav,
was declared elected, having secured 3,76,828 votes. His nearest rival was the
first respondent, Dharampal Yadav, whom he defeated by a margin of 1,66,662
votes. The first respondent challenged the election of the appellant by filing
an election petition on 17th
April, 1998 before the
High Court at Allahabad. Interim applications were filed on
behalf of the appellant raising preliminary objections to the election
petition. They were disposed of by the judgment and order under challenge,
whereby the preliminary objections were rejected.
point that we propose to decide, and which will dispose of the appeals, relates
to Schedule 14 to the election petition. The election petition has 15
respondents. It contains grounds (A) to (I). In support of these grounds, 25
Schedules are filed and are, as a fact, a part of the election petition, as
bound. Except Schedule 14, to which we shall presently refer, the other
Schedules contain documents, such as newspaper reports, pleadings, circulars,
list of polling booths, etc. Each Schedule has a verification clause and is verified
by the first respondent. In respect of each Schedule, except Schedule 14, the
averment in the election petition reads, .. marked as Schedule _____ to this
election petition (giving the appropriate number) which forms part of the
election petition. Schedule 14 is referred to in paragraph 83 of the election
petition thus : But in the case of the present election of 9 Sambhal
Parliamentary Constituency, though the polling was 90% and above upto 250% as
stated above, coupled with the booth capturing, arson and violence in large
scale and the same having been brought to the public notice by print and
electronic media, which was covered by video photography by different channels
including the Doordarshan, Star T.V. and Zee T.V. and the videography under the
orders of the election commission is attached to this election petition as
Schedule No. 14 in the form of cassette, which is filed along with this
election petition under a seal cover under the signature of the election
petitioner and his counsel.
certain about what precisely this averment meant, we asked learned counsel for
the first respondent to explain it. He said that the first respondent or some
person on his behalf had recorded what was shown by television channels and the
videograph taken under the orders of the Election Commission and that the video
cassette of such recordings was mentioned and verified in Schedule 14. The
reproduction of the recording on 15 video cassettes had been filed along with
the election petition for service on the respondents thereto.
14 is filed in support of grounds A, B and C of the election petition, which
deal with the improper reception of votes at polling booths which had been
captured, affecting the result of the election so far as it concerned the appellant,
non compliance with the Constitution and the law which also concerned the
election in so far as it concerned the appellant, and ground C states:
the petitioner is entitled for a declaration as contemplated under Section
101(b) of the Representation of Peoples Act 1951, if the votes obtained by the
Returned Candidate, namely, the respondent No.1 by corrupt practice of booth
capturing and other corrupt practice are excluded, the petitioner would have
obtained the majority of valid voters.
14 is also referred to in support of grounds H and I, which deal with the undue
influence exercised by the appellant and its agents by directly interfering in
the free and fair exercise of the electoral right of voters and the capturing
of polling booths and centres. In so far as grounds H and I are concerned,
material particulars are also set out in the later Schedules. As required by
the Representation of People Act, 1951, the first respondent swore an affidavit
verifying the allegation of the corrupt practice of booth capturing made in the
various paragraphs of the election petition therein stated, including paragraph
83, and the Schedules, including Schedule 14.
On 17th April, 1998 the Registrar of the High Court
made the following report in regard to the election petition :
petition was presented today by Dharampal Yadav (D.P. Yadav) in person duly
identified by Sri Prem Prakash, Advocate. It is also accompanied with security
money of Rs.2,000/- (Rupees two thousand only) in the form of tender receipt.
31 copies attested by the petitioner himself to be true copies and 15 (fifteen)
video cassettes. (Emphasis supplied.) The trial of the election petition was
then assigned to the learned Judge who has passed the judgment and order under
challenge. He, on 13th May, 1998, directed the issue of notices to the
respondents to the election petition and said, It may also be indicated in the
notification to be published that the copy of the cassettes which have been
referred to in the election petition are lying with the Registry of this Court
and the respondents, after appearance, may collect the same from the Registry.
The Registrar may keep the cassettes in proper upkeep to avoid any interference
in the versions recorded therein. On 26th October, 1998, an application was filed on behalf
of the appellant for a copy of the video cassette referred to in Schedule 14.
On 27th October, 1998, it was handed over to the
appellants counsel in court, and the learned Judge noted the objection of
appellants counsel that the sealed cover of the copy of the video cassette bore
the signature of the first respondents advocate and there was no other
signature or mark thereon.
learned Judge then directed the Registry to report whether, apart from the 15
copies of the video cassettes which had been filed along with the election
petition, the original video cassette had been filed. On 16th November, 1998, the Registry of the High Court
responded thus: In compliance with the Courts order dated 27.10.98 and 9.10.98
it is submitted that office has received only 15 (fifteen) Video Cassettes from
the Chamber of the Registrar on 17.4.1998. Except 15 (fifteen) Video cassettes,
office has not received any original video cassette with the Election Petition.
November, 1998 applications were filed on behalf of the appellant raising
preliminary objections to the maintainability of the election petition.
On 14th December, 1998 the applications were heard. In the
judgment and order thereon, the learned Judge noted the argument on behalf of
the appellant that only 15 copies of the video cassette had been filed by the
first respondent at the time of presentation of the election petition and that,
therefore, one video cassette was short. The learned Judge held that although
other annexures and Schedules were sought to be made part of the election
petition, as averred, there was no such averment in respect of the video
cassette in Schedule 14. He added, When these cassettes were not part of the
election petition it must be held that the same were filed by way of evidence
in support of allegations of the corrupt practice. The law does not require
supply of copies available to the respondents and any short supply of these
materials may not be described as non observance of Section 81(3) of the Act.
principal question, therefore, that we have to decide is whether Schedule 14
and the video cassette therein referred to is an integral part of the election
petition and whether the failure to file the original thereof in court along
with the election petition attracts Section 81 and, therefore, Section 86(1) of
the Representation of the People Act, 1951.
80 of this Act states that no election shall be called in question except by an
election petition presented in accordance with the provisions of Part VI
thereof. Section 81 deals with the presentation of election petitions and says:
Presentation of petitions. (1) An election petition calling in question any
election may be presented on one or more of the grounds specified in
[sub-section (1) of section 100 and section 101 to the High Court by any
candidate at such election or any elector within forty-five days from, but not
earlier than the date of election of the returned candidate or if there are
more than one returned candidate at the election and dates of their election
are different, the later of those two dates].
- In this sub-section, elector means a person who was entitled to vote at the
election to which the election petition relates, whether he has voted at such
election or not.
thereof says, that every election petition shall be accompanied by as many
copies thereof as there are respondents mentioned in the petition and every
such copy shall be attested by the petitioner under his own signature to be a
true copy of the petition. Section 83 requires that an election petition shall
contain a concise statement of the material facts on which the petitioner
relies, set forth full particulars of any corrupt practice that the petitioner
alleges, including as full a statement as possible of the names of the parties
alleged to have committed such corrupt practice and the date and place of the
commission of each such practice, and that it be signed by the petitioner and
verified in the manner laid down in the Civil Procedure Code. The proviso to
Section 83 requires that where the petitioner alleges any corrupt practice, the
petition shall also be accompanied by an affidavit in the prescribed form in
support of the allegation of such corrupt practice and the particulars thereof.
Section 86(1) mandates that the High Court shall dismiss an election petition
which does not comply with the provisions of Section 81 or Section 82 or
contended by learned counsel for the appellant that the election petition deserved
dismissal under Section 86(1) because it did not comply with the requirements
of Sections 81 and 83 of the Act in as much as the original of the video
cassette mentioned and verified in Schedule 14 had not been filed along with
the election petition, although 15 copies thereof had been filed for service
upon the respondents. It was submitted that the video cassette mentioned and
verified in Schedule 14 gave, according to the election petition, particulars
of alleged booth capturing, arson and violence.
fact, in so far as the alleged arson and violence were concerned, there was no
other statement in the election petition or in the Schedules which gave any
facts or particulars.
behalf of the first respondent, it was submitted that all the Schedules other
than Schedule 14 were made part of the election petition.
14 only mentioned the video cassette that was to be used as evidence in support
of the allegations of corrupt practice. This was clear from the election
petition itself, wherein, in support of all Schedules other than Schedule 14,
it had been expressly averred that they were a part of the election petition
whereas, in respect of Schedule 14, what was averred in the election petition
was that it was filed along with the election petition and not that it formed a
or not Schedule 14 is an integral part of the election petition does not depend
on whether or not the draftsman of the election petition has so averred. It has
to be decided objectively, taking into account all relevant facts and
circumstances. Schedule 14 is one of 25 Schedules which are, as a matter of
fact, part of the bound election petition. In respect of each of these
Schedules, except Schedule 14, it is averred that it is a part of the election
petition. Each of these Schedules, other than Schedule 14, mentions, verifies
and contains some paper or document which can be placed between the leaves of
paper that comprise that Schedule and be bound with the election petition.
Schedule 14 mentions and verifies a video cassette which cannot be placed
between two leaves and be bound with the election petition. This is the
explanation for the difference in the manner in which the averments relating to
Schedule 14 and the other Schedules are made in the election petition. Clearly,
the video cassette mentioned and verified in Schedule 14 is as much an integral
part of the election petition as the papers and documents mentioned and
verified in the other Schedules. Further, that the video cassette mentioned and
verified in Schedule 14 is a part of the election petition and was intended to
be such is evident from the affidavit of the first respondent verifying the
allegations of corrupt practice made in the election petition. Therein, the
first respondent has verified the correctness of what is stated in paragraph 83
of the election petition, which refers to Schedule 14 and which has been quoted
above, and to Schedule 14 itself.
again, that the video cassette mentioned and verified in Schedule 14 is and was
intended to be a part of the election petition is shown by the fact that 15
video cassettes which were copies of the video cassette mentioned and verified
in Schedule 14 were filed in the High Court along with the election petition
for being served upon the respondents thereto.
what is shown upon the video cassette that is mentioned and verified in
Schedule 14 would have been set out in the election petition and then that
video cassette could have been said to be evidence of the allegations made in the
election petition. As this election petition is drafted, there is no
description of what is shown on this video cassette except to say that it shows
booth capturing, violence and arson. As to booth capturing, there are
particulars contained in the other Schedules but even in that regard the later
paragraphs of the election petition make reference to Schedule 14 so that even
in regard to booth capturing the particulars shown in the video cassette
mentioned and verified in Schedule 14 are relied upon. So far as the
allegations of violence and arson are concerned, there are no particulars in
the election petition absent the video cassette mentioned and verified in
are, therefore, satisfied that the video cassette mentioned and verified in Schedule
14 is an integral part of the election petition and that it should have been
filed in Court along with copies thereof for service upon the respondents to
the election petition. Whereas 15 copies thereof were filed for service upon
the respondents, the video cassette itself was not filed.
election petition as filed was, therefore, not complete.
81 contemplates the presentation of an election petition that is complete and
satisfies the requirements of Section 83. An election petition that is not
complete must, having due regard to the imperative mandate of Section 86, be
dismissed. The present election petition must, therefore, be dismissed.
appeals are allowed. The judgment and orders under challenge is set aside. The
election petition is dismissed. The first respondent shall pay to the appellant
the costs thereof.
Appeal No.4399 of 2000:
view of the fact that the election petition has been dismissed by reason of our
order in Civil Appeal Nos.4396-4398 of 2000, this appeal does not survive for
consideration and is dismissed. No order as to costs.