TMI Blog2012 (4) TMI 376X X X X Extracts X X X X X X X X Extracts X X X X ..... ADHIKARI AND U.V. BAKRE, JJ. ORDER S.C. Dharmadhikari, J. These applications seek review of the orders passed by a Division Bench of this Court in the Tax Appeals, on 25th August, 2010. 2. It is stated that the review is necessitated because the Court has proceeded on the erroneous basis and particularly that there is a policy decision of the Central Board of Direct Taxes (CBDT) which will not allow the Revenue to present the subject-Appeal. However, there is a further circular/policy decision by the Board and had that been noticed, the Court may not have taken a view that the appeal would not be maintainable. The view is also erroneous because the tax demanded is not less than Rs. 2,00,000/- as observed by the Division Bench. 3. In these review applications, there were applications filed for condoning the delay in filing the same. While condoning the delay, we have specifically kept open the objection of the Counsel appearing for the respondents-assessees that no review is maintainable, enabling Review of order passed by this Court in the Tax Appeal and sub section (7), of Section 260A of Income Tax Act, 1961 does not permit such a course. 4. Mr. Sonak ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to Section 100 of C.P.C. If an appeal lies on the substantial question of law under Section 100 of CPC, the High Court while exercising the appellate power in terms of this provision, is empowered to review its own orders. She submits that Section 114 of C.P.C. read with Order XLVII, Rule (1) of C.P.C. specifically confers power of review in appeal. In these circumstances, according to her, all provisions enabling the High Court, in exercise of its appellate power, to deal with first appeals and second appeals, have been made applicable, that would include the power of review. In these circumstances, sub-section (7) of Section 260A of the Income-tax Act, 1961 cannot be construed in a narrow and restricted manner, as contended by the assessees. That would mean only the procedural provisions relating to appeals would be engrafted and must be read into sub-section (7) of Section 260A of the Income-tax Act, 1961. That is not the intent of the legislature when the powers of appeal are conferred by law on this Court. 8. Therefore, by relying upon a Judgment of another Division Bench of this Court, which according to her, deals with identical provisions of the Customs Act, 1962 ( VI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner. ( b ) ... ( c ) In the form of a memorandum of appeal precisely stating therein the substantial question of law involved. (2A) The High Court may admit an appeal after the expiry of the period of one hundred and twenty days referred to in clause (a) of sub-section (2), if it is satisfied that there was sufficient cause for not filing the same within that period. (3) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (4) The appeal shall be heard only on the question so formulated, and the respondents shall at the hearing of the appeal, be allowed to argue that the case does not involve such question : Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question. (5) The High Court shall decide the question of law so formulated and deliver such judgment thereon containing the grounds on which such decision is founded and may award such cost as it deems fit. (6) The Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and as far as appeals from orders are concerned, they are prescribed by Order XLIII. The entire procedure is enacted in these chapters, including empowering the Court to grant stay, and exercise such powers, including summarily dismissing an appeal. Rule 1 and ending with Rule 37 of Order XLI are the procedural rules which enable the Court to exercise the power of appeal. Similarly, order XLII prescribes the procedure for appeals from appellate decrees and Order XLIII deals with appeals from orders. It may be that the rules prescribed under Order XLI have been made applicable to the appellate powers that are exercised by this Court while dealing with appeals against appellate Decrees and the appeals against appellate orders, but what is provided by Order XLVII is a power of review. Rule 1 of Order XLVII reads as under : "1. Application for review of judgment - (1) Any person considering himself aggrieved - ( a ) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; ( b ) by a decree or order from which no appeal is allowed, or; ( c ) by a decision on a reference from a Court of Small Causes, and who, from the discovery o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w and a substantive review. As a power of procedure, every Court or Tribunal can correct an inadvertent error which has crept in the order either due to procedural defect or mathematical or clerical error or by misrepresentation or fraud of a party to the proceedings, which can be corrected ex debito justitiae to prevent abuse of process of Court. However, this power cannot be equated with a power of review of an order on merits which necessitates reconsideration of the decision in given facts and circumstances and subject to compliance with the preconditions. In such circumstances, we are of the view that the Division Bench Judgment in the case of Commissioner of Income Tax-1 v. M/s. The West Coast Paper Mills Ltd. ( supra ), being a decision considering the same provision in the same enactment and noting the aforesaid distinction that binds us. It would not be proper to brush aside a binding precedent, merely because in a later decision under a different or distinct enactment or may be dealing with somewhat identical provision, a different view has been taken by this Court. That would mean that we are ignoring or brushing aside a judgment of coordinate Bench, although the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide a palpably erroneous order passed under a misapprehension by it, and (2) a review on merits when the error sought to be corrected is one of law and is apparent on the fact of the record. It is in the latter sense that the court in Patel Narshi Thakershi case held that no review lies on merits unless a statute specifically provides for it. Obviously when a review is sought due to a procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debito justitiae to prevent the abuse of its process and such power inheres in every court or Tribunal." Thereafter that view has been reiterated in J.K. Synthetics Ltd. v. Collector of Central Excise, 1996 (86) E.L.T. 472 (SC). This view has been reiterated by this Court in Chandrakant Butalal Shah v. Union of India and Ors . in Writ Petition No. 1505 of 2007 decided on 6th August, 2007. Considering the above, we are clearly of the opinion that the power of substantive review having not been conferred under the Income Tax Act, the review as filed is not maintainable. Once the Review is not maintainable, the question of considering whether there is sufficient cause does not arise. In the light of that, R ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
