9911796707
TMI Blog2012 (11) TMI 764X X X X Extracts X X X X X X X X Extracts X X X X ..... (i) The notice under Section 143(2) of the Income Tax Act, 1961 (in short, 'the Act') was issued to the petitioner on 10.10.2007 followed by the notice under Section 142(1) of the Act on 03.10.2008. According to Mr. N.L. Das, the notice under Section 42(1) is the initiating point of an assessment. Section 142 of the Act states "Inquiry before Assessment" and the hearing under Section 143 is "Assessment". Thus, the very intent of the statute in designating such hearing is clearly manifested in the idea that there has to be an initiation of assessment proceeding under Section 142(1) and only after 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-assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner by preferring a petition under Section 264 had waived its right of appeal under Section 246-A and accordingly dismissed the appeal. The jurisdiction under Section 246-A gives power of appeal to an assessee where as jurisdiction u/s 264 gives a power of seeking revision of assessment order to the assessee. Therefore, High Court erred in concluding that both the revisional power under Section 264 and appeal power under Section 246 are alternative remedies. 3. To deal with the grounds of challenge taken by Mr. Das, for the purpose of review of the impugned judgment, it is necessary 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 af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thin the scope and purview of review petition. Therefore, the judgment cannot be reviewed on the first ground of challenge. 6. The second ground of challenge in the review petition is that the C.I.T. in exercise of his power under Section 264 is not justified in declining to interfere with the assessment order. This Court is also erred in arriving at a conclusion that the petitioner-assessee could not have made any fresh claim of exemption either before the A.O. or before the CIT and the only way that was available to the petitioner to claim such an exemption was by way of 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 commenceme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (See Bhagwati Singh Vrs. Deputy Director of Consolidation & Another, AIR 1977 All. 163). 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. First of all no new claim was raised in the proceedings 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 Goe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s or regulations are binding on the authorities. 11. 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. This ground of review has been considered by this Court in the judgment while dealing with question no. (vi). While dealing with that question, this Court held that the remedy available under Section 264, IT Act is an alternative remedy and not an additional remedy 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r with due diligence or it was not within his knowledge and, thus, could not produce at the initial stage. Apparent error on the face of record has been explained to include failure to apply the law of limitation to the fact found by the Court or failure to consider a particular provision of a statute or a part thereof or a statutory provision has been applied though it was not in operation. Review is permissible, if there is an error of procedure apparent on the face of the record e.g. the judgment is delivered without notice to the parties, or judgment 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uise whereby an erroneous decision is reheard and corrected, but lies only for patent error. Where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face and there could reasonably be no two opinions entertained about it, a clear case or error apparent on the face of the record would be made out." 19. Law is well settled that power of review cannot be confused with the appellate power. In Devaraju Pillai Vs. Sellayya Pillai, AIR 1987 SC 1160, the Hon'ble apex Court held that 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 ev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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