TMI Blog2012 (11) TMI 764X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter such initiation, the actual assessment proceeding can begin by issuing a notice under Section 143(2). However, in the present case, the assessment proceeding ought to be vitiated since the notice under Section 143(2) was premature due to lack of notice under Section 142(1) of the Act. (ii) Learned C.I.T. was erred in arriving at a conclusion that the petitioner was raising a fresh claim of relief before the Assessing Officer and thus declined to interfere with the assessment order. This Court, while deciding the question Nos. (i) to (iii), came to a conclusion that the petitioner-assessee was not entitled to make any fresh claim of exemption either before the A.O. or before the C.I.T. otherwise then by way of filing revised return under Section 139(5). The only way that was available to the petitioner to claim such exemption is by filing a revised return under Section 139(5). The Court erred in arriving at such conclusion on a wrongful assumption of law. (iii) The judgment of the Supreme Court in the case of Goetze (India) Ltd. V. CIT; 284 ITR 323 (SC) is in relation to the powers of the Assessing Officer as to whether he can entertain fresh claims of exemption except by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sary to know the questions decided by this Court while disposing of the writ petition. Questions decided by this Court in the impugned judgment are as follows: (i) Whether an assessee can revise its return of income by way of filing a revised statement of income after filing original return other than by way of filing revised return as contemplated under Section 139(5) of the I.T. Act? (ii) Whether the learned Assessing Officer as well as the Commissioner of Income tax is justified in holding that the petitioner-assessee has no right to claim fresh exemption before the learned Assessing Officer after filing of the original return other than by way of filing revised return? (iii) Whether an assessee who follows Mercantile system of accounting and furnishes the return of income on the basis of accrued interest income can revise its return of income by way of filing a revised statement of income on the ground that the interest on NPA account was wrongly recognised in contravention of NHB guidelines and expenses were claimed in contravention of Section 43D of the I.T. Act: (iv) Whether the National Housing Bank Act, 1987 overrides the Income Tax Act, 1961? (v) Whether there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filing a revised return under Section 139(5) of the I.T. Act. The above issue has already been dealt with in question nos.(i), (ii) and (iii) and while dealing with these questions this Court referring to Section 139(5) of the Act and the judgment of the Hon ble Supreme Court in the case of Goetze (India) Ltd. (supra) held that there is no provision in the Income tax Act to enable an assessee to revise his income by way of filing a revised statement of income as has been done by the petitioner. In the instant case, a revised statement of income was filed on 8.12.2008 before the Assessing Officer after commencement of assessment proceedings. If such revised statement of income is accepted, then the very purpose of enacting Section 139(5) under the I.T. Act for filing revised return shall be frustrated and provision of said section becomes redundant. This Court further held that there is a distinction between the revised return and correction in the originally filed return. If an assessee files an application for correcting a return already filed or for making some amendment therein, it would not certainly mean that he has filed a revised return. Such a petition is not recognised und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eedings Under Section 264 of the Act. The petitioner filed his revised statement of income before the Assessing Officer. The Assessing Officer having not entertained the same, he filed a petition under Section 264 of the Act. The question was raised whether by way of filing revised statement instead of filing revised return as contemplated under Section 139 (5) of the Act, the assessee can revise his income disclosed in its original return. Needless to say that the basis of Section 264 petition is the assessment order seeking revision of the original order. The CIT relying on the decision of the Supreme Court in Goetze(India) Ltd. (supra) rejected the petition under Section 264 of the Act. Secondly, if the statute requires to do certain thing in certain way, the thing must be done in that way or not at all and other methods or modes of performance are impliedly and necessarily forbidden. Therefore, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edy and the assessee is not permitted to avail both the remedies either simultaneously or one after another. Accordingly, this Court held that CIT (Appeals) is justified in not entertaining the appeal filed by the petitioner before him on the ground that the same is not maintainable. Therefore, since the ground of review has already been dealt with in the judgment, that cannot be a ground for review. 12. Thus it is seen that the grounds taken by the review petitioner seeking review of the judgment passed in W.P.(c) No.4554 of 2011 have already been dealt with in detail in the said judgment. Therefore, 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. 13. At this juncture, it may be relevant to refer to Section 114 read with Order XLVII, Rule 1 of the CPC and some of the judicial pronouncements of the Privy Council and Hon ble Supreme Court. Section 114 read with Order XLVII, Rule 1, CPC prescribes the limitations for entertaining a review petition. The limitations are that the party filing the application for review has discovered a new and important matter or evidence after exercise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not effectively deal with or determine any important issue in the case though argued by the parties. There may be merely a smoke-line demarcating an error simpliciter from the error apparent on the face of record. But there cannot be a ground for entertaining the review petition in the former case. Sufficient reason may include disposal of a case without proper notice to the party aggrieved. Thus, if a person comes and satisfies the Court that the matter has been heard without serving a notice upon it, review is maintainable for the sufficient reason though there may be no error apparent on the face of record. 16. In the case of Northern India Caterers (India) Ltd. Vrs.- Lt. Governor of Delhi, AIR 1980 SC674, it has been held that a party is not entitled to seek a review of a judgment delivered by the Court merely for the purpose of a rehearing and a fresh decision of the case. The normal principle is that a judgment pronounced by the Court is final and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so. Whatever may be the nature of the proceeding, it is beyond dispute that a revi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at if the party is aggrieved by a judgment of a Court, the proper remedy for such party is to file an appeal against that judgment. A remedy by way of an application for review is entirely misconceived and if a Court entertained the application for review then it has totally exceeded its jurisdiction in allowing the review merely because it takes a different view on a construction of the document. 20. In Delhi Administration Vs. Gurdip Singh Uban Ors., AIR 2000 SC 3737, the Hon ble apex Court deprecated the practice of filing review application observing that review, by no means is an appeal in disguise and it cannot be entertained even if application has been filed for clarification, modification or review of judgment and order finally passed for the reason that a party cannot be permitted to circumvent or bypass the procedure prescribed for hearing a review application. 21. The Hon ble Supreme Court in Jain Studios Ltd., through its President Vs. Shin Satellite Public Co. Ltd., AIR 2006 SC 2686, held that the power of review cannot be confused with appellate power which enables a superior Court to correct all errors committed by a subordinate Court. It is not rehearing of a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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