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TMI Blog2010 (8) TMI 184X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal on the merits. 4. An appeal under the Indian Income-Tax Act, 1922, went up to the Supreme Court. The language of the said Act was identical, to section 10F, namely, that an appeal lay from "any question of law arising out of such order". When does a question of law arise from the order ? In that case, CIT v. Scindia Steam Navigation Co. Ltd. [1961] 42 ITR 589 ; AIR 1961 SC 1633, the Supreme Court said the following in paragraph 31 (page 611 of 42 ITR) : "The result of the above discussion may thus be summed up : (1) When a question is raised before the Tribunal and is dealt with by it, it is clearly one arising out of its order. (2) When a question of law is raised before the Tribunal but the Tribunal fails to deal with it, it must be deemed to have been dealt with by it, and is, therefore, one arising out of its order. (3)When a question is not raised before the Tribunal but the Tribunal deals with it, that will also be a question arising out of its order. (4) When a question of law is neither raised before the Tribunal nor considered by it, it will not be a question arising out of its order notwithstanding that it may arise on the findings given by it. Stating the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssible only on the question of law. The perversity of the finding itself becomes a question of law. In the present case we have demonstrated that the judgment of the Company Law Board was given in a very cursory and cavalier manner. The Board has not gone into real issues which were germane for the decision of the controversy involved in the case. The High Court has rightly gone into the depth of the matter. As already stated the controversy in the case revolved around alleged allotment of additional shares in favour of Ramanujam and whether the allotment of additional shares was an act of oppression on his part. On the issue of oppression the finding of the Company Law Board was in favour of Prathapan, i.e., his impugned act was held to be an act of oppression. The said finding has been maintained by the High Court although it has given stronger reasons for the same." 8. This passage identifies perversity of the order as a circumstance when a question of law is said to arise from it, when no question of law is raised before the Tribunal nor answered by it. Therefore, to answer the question of maintainability the facts have to be gone into in some detail. 9. A family known as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arlier order of the Company Law Board had expired and that a fresh auditor be appointed for the period October 1, 2005, onwards. 16. However, I notice that in paragraph 7 of the application bias of the appointed auditors were also alleged or at least apprehended. Paragraph 7 is as follows: "7. It is submitted that the applicants O.P. Tantia group have all along contended that M/s. Singhi & Co., the statutory auditors of the company will not act independently and fairly in carrying out the audit of Besco Ltd., in view of the close personal relationship of its senior partner Shri Pradeep K. Singhi with Shri A. K. Tantia. It is also pertinent to state here that this hon'ble Board vide order dated May 30, 2005, had removed the said Singhi & Co., from being and acting as statutory auditors of the company. On the other hand, A. K. Tantia group has insisted that statutory audit be conducted by Singhi & Co., and no other, which substantiates the applicants contention that A.K. Tantia group does not wish that its accounts be audited by an independent agency for that same will expose the siphoning off and stripping of assets done by the A. K. Tantia group." 17. Before proceeding further w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide. 23. Various authorities have been cited in support of the proposition that a consent order cannot be varied except by consent, namely, M.A. Cunningham Sircar v. Fred Stephens reported in AIR 1931 Cal 51; Lachiram Dagduram Marwari v. Jana Yesu Mang reported in AIR 1914 Bom 127; Khitipati Roy v. Dharani Mohan Mookerjee reported in AIR 1921 Cal 229 ; Ashoke Kumar Daw v. Gobinda Chandra Dey reported in AIR 1984 Cal 337 and Deepchand Mini v. Ticamchand Mini reported in AIR 1974 Cal 222. 24. In my opinion, as far as the proposition of law is concerned if an order is final and passed on consent it is like a consent decree. A consent decree cannot easily be varied. I am quite doubtful whether a consent decree can be varied by consent. Order 23 does not permit such an exercise. Only circumstances which vitiate consent like fraud or misrepresentation or undue influence can be a ground for setting aside a consent decree. Of course, mistakes which are rectifiable under sections 151 and 152 of the Code of Civil Procedure, 1908, are excepted (see the Division Bench decision of our court in Ashoke Kumar Daw v. Gobinda Chandra Dey reported in AIR 1984 Cal 337). So is the case with final int ..... X X X X Extracts X X X X X X X X Extracts X X X X
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