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2012 (11) TMI 764 - HC - Income TaxReview petition - prayer to review the judgment [2011 (12) TMI 230 - ORISSA HIGH COURT] - review regarding the decision on Legality of issuance of notice u/s 143(2) – held that:- There is nothing to show that Notice u/s 142(1) should precede notice under Section 143(2) as far as production of documents/accounts is concerned - Rearguing a point, while addressing on the review petition on the point already argued and decided by the Court in the judgment does not come within the scope and purview of review petition. Therefore, the judgment cannot be reviewed on the first ground of challenge. Second ground of challenge in the review petition - the petitioner has taken a new stand that the power of the Commissioner under Sec. 264 is very wide and it is not restricted to just supervise the order of the Assessing Officer. - held that:- The above ground now urged in the review petition has neither been taken in the writ petition nor urged while argument was advanced in the writ petition out of which the present review petition arises. On this solitary ground the claim of the petitioner to review the impugned judgment is rejected. Otherwise also, the contention of the petitioner that the power of CIT (Appeals) under Section 264 is very wide and by exercising such revisional power the Commissioner can entertain even a new claim which was never urged before the Assessing Officer is not legally sustainable. - since there is no provision in the Income Tax Act authorising/enabling the assessee to file any revised statement of income, the Commissioner, who is the creature of the statute, by exercising revisional power under Section 264 cannot allow the petitioner-assessee to revise his income by way of filing a revised statement of income. It is settled proposition of law that what cannot be done “per directum is not permissible to be done per obliquum”, meaning thereby, whatever is prohibited by law to be done, cannot legally be effected by an indirect and circuitous contrivance on the principle of “quando aliquid prohibetur, prohibeture at omne per quod devenitur ad illud.” The third ground taken by the review petitioner seeking review of the judgment is that the CIT (Appeals) is not justified to refuse to interfere with the assessment order on the ground that the petitioner preferred a petition under Section 264 of the Act. - held that:- it is not open to the review petitioner to reargue the matter which had already been argued and decided by this Court in judgment under review. The matter can be looked at from different angle. - In the instant case the judgment passed in W.P.(c) No. 4554 of 2011 [2011 (12) TMI 230 - ORISSA HIGH COURT] out of which the present review petition has been filed was argued by Mr. B.K. Mohanti, Senior Advocate extensively. But the present review petition is argued by Mr. N.L. Das, who is only rearguing the points already argued, which is not permissible under law. - Such practice is deprecated by the Hon’ble Supreme Court - Decided against the assessee.
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