Extreme penalty provided under the Indian Penal Code (IPC) i.e. Death Penalty imposed by the Sessions Judge is placed before us for scrutiny due to mandate of Section 366 of the Code, as well as by virtue of appeal preferred by the accused in terms of Section 374[2] of the Code of Criminal Procedure (Cr.P.C.)

2. Appellant Nos.1 to 3 were tried and convicted by the Additional Sessions Judge, Akot vide judgment and order dated 17.05.2024 in Sessions Case No.57/2015 for the offence punishable under Sections 302 read with Section 34 of the IPC and Section 506 [Part-II] read with Section 34 of the IPC. Though they have also been charged for the offence punishable under Section 323 of the Indian Rgd.

1. Heard the petitioner who appears in person as well as Shri Skand Bajpai, learned counsel for the respondent, on the application under Order 7 Rule 11 CPC more particularly the provisions of Sub Rule (a) and (d) of Order 7 Rule 11 of the CPC.

2. Arguing on Sub Rule (a) of Order 7 Rule 11 the argument of the Shri Skand Bajpai is that the said sub rule pertains to rejection of a plaint where it does not disclose a cause of action.

3. Reference has been made to Section 36 of the Representation of Peoples Act, 1951 (hereinafter referred to as the 'Act, 1951') to contend that the said provision pertains to scrutiny of nomination. Sub Section (1) of Section 36 of the Act, 1951 provides for examination of the nomination papers of all candidates which power has been given to the candidates, the election agents, one proposer of each candidate and one other person duly authorized in writing by each candidate but no other person; Sub Section (2) of Section 36 of the Act, 1951 provides for the nomination papers to be examined by the returning officer and to decide all objections which may be made to any nomination and thereafter to reject any nomination either on his own motion or on such objection as might have been preferred.

The above Original Petition has been filed by the successful Award Holder under Chapter I Part II of the Arbitration and Conciliation Act, 1996 to recognize the Final Award dated 22.02.2021 and the addendum to the Final Award dated 08.03.2021.

______________ Page No 3 of 184 https://www.mhc.tn.gov.in/judis Arb.O.P.(Com.Div.)No.186 of 2023

2. The respective legal contentions of the Petitioner (the claimant) and the Award Debtor Respondent No.2 (the Engineering Company) and the Award Debtor Respondent No.3 (the Project Company) shall be adverted after narrating the facts of the case. I propose to narrate the facts in two parts.

These four appeals filed by two separate assessees have arisen from separate appellate orders passed by learned Commissioners of Income-tax (Appeals), Ahmedabad for the assessment years, 2010-11 & 2011-12.

2. Since facts and issues involved in all these four appeals are similar which is agreed to by both the rival parties before us and that these four appeals were heard together, we deem it appropriate to dispose of all these appeals by this consolidated order for the sake of brevity and convenience. We will first take up the appeal of the assessee in ITA No. 2498/Ahd/2013 for A.Y. 2010-11, and our decision in this appeal shall apply mutatis mutandis to remaining three appeals.

These four appeals filed by two separate assessees have arisen from separate appellate orders passed by learned Commissioners of Income-tax (Appeals), Ahmedabad for the assessment years, 2010-11 & 2011-12.

2. Since facts and issues involved in all these four appeals are similar which is agreed to by both the rival parties before us and that these four appeals were heard together, we deem it appropriate to dispose of all these appeals by this consolidated order for the sake of brevity and convenience. We will first take up the appeal of the assessee in ITA No. 2498/Ahd/2013 for A.Y. 2010-11, and our decision in this appeal shall apply mutatis mutandis to remaining three appeals.

These four appeals filed by two separate assessees have arisen from separate appellate orders passed by learned Commissioners of Income-tax (Appeals), Ahmedabad for the assessment years, 2010-11 & 2011-12.

2. Since facts and issues involved in all these four appeals are similar which is agreed to by both the rival parties before us and that these four appeals were heard together, we deem it appropriate to dispose of all these appeals by this consolidated order for the sake of brevity and convenience. We will first take up the appeal of the assessee in ITA No. 2498/Ahd/2013 for A.Y. 2010-11, and our decision in this appeal shall apply mutatis mutandis to remaining three appeals.

These four appeals filed by two separate assessees have arisen from separate appellate orders passed by learned Commissioners of Income-tax (Appeals), Ahmedabad for the assessment years, 2010-11 & 2011-12.

2. Since facts and issues involved in all these four appeals are similar which is agreed to by both the rival parties before us and that these four appeals were heard together, we deem it appropriate to dispose of all these appeals by this consolidated order for the sake of brevity and convenience. We will first take up the appeal of the assessee in ITA No. 2498/Ahd/2013 for A.Y. 2010-11, and our decision in this appeal shall apply mutatis mutandis to remaining three appeals.

.

96. It would be evident from the above discussion that the claims for refund under the said two enactments constitute an independent regimen. Every decision favourable to an assessee/manufacturer, whether on the question of classification, valuation or any other issue, does not automatically entail refund. Section 11B of the Central Excises and Salt Act and Section 27 of the Contract Act, whether before or after 1991 amendment - as interpreted by us herein - make every refund claim subject to proof of not passing-on the burden of duty to others. Even if a suit is filed, the very same condition operates. Similarly, the High Court while examining its jurisdiction under Article 226 - and this Court while acting under Article 32 - would insist upon the said condition being satisfied before ordering refund. Unless the claimant for refund establishes that he has not passed on the burden of duty to another, he would not be entitled to refund, whatever be the proceedings and whichever be the forum. Section 11B/Section 27 are constitutionally valid, as explained by us hereinbefore. They have to be applied and followed implicitly wherever they are applicable.

These cross appeals are filed by the Assessee and the Revenue as against separate appellate orders both dated I.T.A No. 198 & 199/Ahd/2023 & Ors. A.Ys. 2016-17 & 2017-18 Page No 2 Suzlon Engergy Ltd. vs. DCIT 28.02.2023 passed by the Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi, (in short referred to as "CIT(A)"), arising out of the separate assessment orders passed under section 143(3) of the Income Tax Act, 1961 (hereinafter referred to as 'the Act') relating to the Assessment Years 2016-17 and 2017-18. Since common issues are involved in both the years namely disallowance u/s.14A rwr 8D and Depreciation on Goodwill, the same are disposed of by this common order for the sake of convenience. Asst. year 2016-17 is taken as the lead case.

These cross appeals are filed by the Assessee and the Revenue as against separate appellate orders both dated I.T.A No. 198 & 199/Ahd/2023 & Ors. A.Ys. 2016-17 & 2017-18 Page No 2 Suzlon Engergy Ltd. vs. DCIT 28.02.2023 passed by the Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi, (in short referred to as "CIT(A)"), arising out of the separate assessment orders passed under section 143(3) of the Income Tax Act, 1961 (hereinafter referred to as 'the Act') relating to the Assessment Years 2016-17 and 2017-18. Since common issues are involved in both the years namely disallowance u/s.14A rwr 8D and Depreciation on Goodwill, the same are disposed of by this common order for the sake of convenience. Asst. year 2016-17 is taken as the lead case.

These cross appeals are filed by the Assessee and the Revenue as against separate appellate orders both dated I.T.A No. 198 & 199/Ahd/2023 & Ors. A.Ys. 2016-17 & 2017-18 Page No 2 Suzlon Engergy Ltd. vs. DCIT 28.02.2023 passed by the Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi, (in short referred to as "CIT(A)"), arising out of the separate assessment orders passed under section 143(3) of the Income Tax Act, 1961 (hereinafter referred to as 'the Act') relating to the Assessment Years 2016-17 and 2017-18. Since common issues are involved in both the years namely disallowance u/s.14A rwr 8D and Depreciation on Goodwill, the same are disposed of by this common order for the sake of convenience. Asst. year 2016-17 is taken as the lead case.

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