TMI Blog2010 (4) TMI 896X X X X Extracts X X X X X X X X Extracts X X X X ..... e all powers of such a court of record including the power to punish contempt of itself – Prima facie, no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular court. If the decision of a superior court on a question of its jurisdiction is erroneous, it can, of course, be corrected by appeal or revision as may be permissible under the law, but until the adjudication by a superior court on such a point is set aside by adopting the appropriate course, it would not be open to be corrected by the exercise of the writ jurisdiction of this court. The High Court as a court of record, as envisaged in article 215 of the Constitution, must have inherent powers to correct the records. A court of record envelops all such powers whose acts and proceedings are to be enrolled in a perpetual memorial and testimony. A court of record is undoubtedly a superior court which is itself competent to determine the scope of its jurisdiction. The High Court, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 3. We may note with profit that in Bihar Rajya Sahakari Bhumi Vikas Bank Simit (supra), a Division Bench, while hearing an application for review, has held thus : "On behalf of the petitioner it has been submitted that the judg-ment under review has been delivered by the Division Bench on wrong appreciation of judgments cited and contrary to the views of the Supreme Court. On behalf of the respondents the aforesaid sub-mission has been refuted and it has been further submitted that the judgment was passed in a miscellaneous appeal preferred under sec-tion 260A of the Income-tax Act against which only an appeal can be preferred under section 261 before the apex court and there is no pro-vision of review of the appellate order in the Income-tax Act which is a code by itself." 4. In Bibhay Kumar Sah (supra), another Division Bench in Civil Review No. 55 of 2008 placing reliance on the decision in Bihar Rajya Sahakari Bhumi Vikas Bank Simit (supra), has held as follows : "Our attention has been invited to a Division Bench order in Civil Review No. 249 of 2008 holding that the Income-tax being a code by itself only an appeal lies against the impugned order under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anted and the matter is considered under appellate jurisdiction. However, it has further been clarified that if the petition for special leave to appeal is dis-missed after recording reasons then there may not be a merger of the said order with the order of the subordinate court or tribunal but still the principle of law laid down by such order will be binding under article 141 of the Constitution of India and will bind the parties as res judicata. In such a case also it will not be proper for the subordinate court or tribunal to exercise power of review. 9. The aforesaid general principle of law regarding merger does not come in the way of the proposition advanced before us on behalf of the Income-tax Department. In the context of the Income-tax Act it has rightly been submitted that the Act is a code by itself and in the absence of any provision for review against an appellate order passed under section 260A of the Act, no review can be exercised by the High Court. Hence, we are constrained to hold that this review petition is not maintainable. 10. Lastly, on behalf of the petitioner it was submitted that in appropriate cases, to correct apparent mistakes inherent power of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ullity. Rejecting this argument this court observed that in the case of a superior court of record, it is for the court to consider whether any matter falls within its jurisdiction or not. Unlike a court of limited jurisdiction, the superior court is entitled to determine for itself questions about its own juris-diction. That is why this court did not accede to the proposition that in passing the order for interim bail, the High Court can be said to have exceeded its jurisdiction with the result that the order in question was null and void. In support of this view, this court cited a passage from Halsbury's Laws of England where it is observed that : `Prima facie, no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular court.' If the decision of a superior court on a question of its jurisdiction is erroneous, it can, of course, be corrected by appeal or revision as may be permissible under the law ; but until the adjudication by a sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction by limiting it to what was permitted by the Admiralty Court Act, 1861 and the Colonial Courts of Admiralty Act, 1890. This was, in our view, an unjustified abdication of juris-diction and a self-assumed fetter on competence to render justice." 9. At this juncture, we may note with profit the decision rendered in Com-missioner of Customs and Central Excise v. Hongo India (P) Ltd. [2009] 315 ITR 449, 459 (SC) ; [2009] 5 SCC 791, 801. Be it noted, Mr. Harsh-wardhan, learned standing counsel for the Revenue has placed heavy reli-ance on the same. It is his contention that in the said case, a three-judge Bench of the apex court expressed the view that the High Court had no jurisdiction to condone the delay while entertaining an application for reference preferred under section 35H(1) of the Central Excise Act. Be it noted, the matter travelled to the three-judge Bench as a doubt was expressed as regards the correctness of the decision rendered in Commis-sioner of Customs and Central Excise v. Punjab Fibres Ltd. [2008] 3 SCC 73. Their Lordships, after taking note of the language employed in sections 35B, 35EE, 35G and 35H of the Central Excise Act, have expressed the view as f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would none the less be open to the court to examine whether and to what extent, the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation. In other words, the applicability of the provisions of the Limitation Act, therefore, is to be judged not from the terms of the Limitation Act, but by the provisions of the Central Excise Act relating to filing of reference application to the High Court." 10. It is worth noting, their Lordships analysed the anatomy of the provi-sions and came to hold that where the special law does not exclude the provision of sections 4 to 24 of the Limitation Act by an express reference, it would none the less be open to the court to examine whether and to what extent, the nature of those provisions or the nature of the subject-matter and scheme of the special law impliedly excludes their operation. 11. Mr. Y. V. Giri, learned senior counsel appearing for the assessee-petitioner would contend that there is a sea of difference between the issue of condonation of delay and entertaining an application for review. It is urged by him that a period of limitation is determined under the statute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds. A court of record envelops all such powers whose acts and proceedings are to be enrolled in a perpetual memorial and testi-mony. A court of record is undoubtedly a superior court which is itself competent to determine the scope of its jurisdiction. The High Court, as a court of record, has a duty to itself to keep all its records correctly and in accordance with law.' Hence, the High Court has not only the power, but a duty to correct any apparent error in respect of any order passed by it. This is the plenary power of the High Court." "29. In para 17 of the abovementioned decision, it was held : (M.M. Thomas case, SCC page 673) ₹ 17. If such power of correcting its own record is denied to the High Court, when it notices the apparent errors its consequence is that the superior status of the High Court will dwindle down. There-fore, it is only proper to think that the plenary powers of the High Court would include the power of review relating to errors apparent on the face of the record.' There is no doubt that the High Court possess all powers in order to correct the errors apparent on the face of record. While accepting the above proposition, in the light of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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