TMI Blog2015 (11) TMI 879X X X X Extracts X X X X X X X X Extracts X X X X ..... law, since the power of review is an exception to the general rule that once the judgement is signed or pronounced, it should not be altered. It has to be remembered that power of review can be exercised for correction of a mistake but not to substitute a view. The review cannot be treated like an appeal in disguise. Whether the sales of the petitioner are inter-State or intra-State, are findings of fact, which have already been determined by this court and cannot be interfered with, because power of review cannot be exercised on the ground that decision is incorrect or erroneous on merit as the same lies within the ambit of a higher court having appellate power which alone is in a position to correct the error committed by the subordinate courts by virtue of power of appeal conferred on the said court by some statute - Based upon the documents on record, it had been found by the Assessing Officer that company had created false documents by generating invoices in the names of the farmers from the State of Haryana. While in fact, the goods were transported to the State of Himachal Pradesh and the name of consigner was declared the department of agriculture. Whereas it was proved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ries under the Yojna and the petitioner-Company received 80% cost of material as subsidy from the department of Agriculture and 20% cost from farmers / beneficiaries. The petitioner-Company has found to have been charged local taxes from the farmers, as evident from the invoices, which has been issued inclusive of all taxes from the branch office, Mandi. Thus, the petitioner for all purposes is said to have made intra-State sales which is liable to payment of VAT. Therefore, we hold that the transaction in question is intra- State and not inter-State sale. The first point is dealt with accordingly. 3. The respondents on the other hand has contended that there is no error apparent on the face of the record, inasmuch as there is no conflict between the observations made in paragraphs-14 and 15 of the judgement, because it is on the basis of the documents annexed by the petitioner itself that this court has come to a definite conclusion that transaction in question was only intra-State and not inter-State sale. 4. Before we proceed to determine the question on merit, this court is required to bear in mind the scope of review because in case of a review petition the exercise o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctrine actus curiae neminem gravabit . 91. It is true that in Moran Mar Basselios Catholicos and Another Vs. The Most Rev. Mar Poulose Athanasius and Others [(1955) 1 SCR 520], this Court made observations as regard limitations in the application of review of its order stating : SCR p.529) Before going into the merits of the case it is as well to bear in mind the scope of the application for review which has given rise to the present appeal. It is needless to emphasise that the scope of an application for review is much more restricted than that of an appeal. Under the provisions in the Travancore Code of Civil Procedure which is similar in terms to Order XLVII, rule 1 of our Code of Civil Procedure, 1908, the Court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used therein. It may allow a review on three specified grounds, namely (i) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time when the decree was passed, (ii) mistake or error apparent on the face of the record and (iii) for any ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the issue can be decided just by a perusal of the records and if it is manifest can be set at right by reviewing the order. With this background, let us analyze the impugned judgment of the High Court and find out whether it satisfy any of the tests formulated above. 25. From the materials, we are satisfied that the conclusion reached by the High Court holding that the review petitioner/respondent herein is a religious Mission / institution within the meaning of amended provision and entitled to the benefits of amended Act. Further if the same is not applied to the Mission, it would result in miscarriage of justice and it had been rightly rectified by the High Court by the impugned judgment. The benefit that has been bestowed upon the religious institution by the Legislature cannot be ignored lightly merely because the issue was decided by way of review applications. Inasmuch as at the relevant point of time, the Amended Act 2 of 1996 was not enacted and not available for consideration before the Court and also of the fact that the proceeding instituted by the tenant/appellant herein was pending and not reached finality on the date of coming into force of the amended Act, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the court which passed the decree or made the order. 8. An application for review would lie inter alia when the order suffers from an error apparent on the face of the record and permitting the same to continue would lead to failure of justice. In Rajendra Kumar v. Rambai [AIR 2003 SC 2095], this Court held: (SCC p. 514, para 6) 6. The limitations on exercise of the power of review are well settled. The first and foremost requirement of entertaining a review petition is that the order, review of which is sought, suffers from any error apparent on the face of the order and permitting the order to stand will lead to failure of justice. In the absence of any such error, finality attached to the judgment/order cannot be disturbed. 9. The power of review can also be exercised by the court in the event discovery of new an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) Any person considering himself aggrieved a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred. b) by a decree or order from which no appeal is allowed, or c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record or for any order made against him may apply for a review of judgement to the Court which passed the decree or made the order. 12) It is beaten law of the land that power of review is to be exercised in limited circumstances and that too as per the mandate of Order XLVII CPC. The remedy available in the shape of review cannot be allowed to be a masquerade appeal. 13) Apex Court in case titled Haryana State Industrial Development Corporation Ltd. Vs. Mawasi Ors. Reported as AIR SCW 2012, 4222, has made elaborate discussion and has referred to all the judgements on the subject right from 1950 till judgement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh to reopen concluded adjudications. The power of review can be exercised with extreme care, caution and circumspection and only in exceptional cases. 15) The identical issue was raised before the Apex Court in case titled Smt. Meera Bhanja v. Smt. Nirmala Kumari Choudhary, reported as AIR 1995, SC 455. It is apt to reproduce paragraph 8 of the same herein:- `8. It is well settled that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47, Rule 1, CPC. In connection with the limitation of the powers of the court under Order 47, Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution of India, this Court, in the case of Aribam Tuleshwar Sharma v. Aribam Pishak Sharmal, speaking through Chinnappa Reddy, J., has made the following pertinent observations: (para 3) `It is true as observed by this Court in Shivdeo Singh v. State of Punjab, there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent misca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ched. It must essentially be an error of inadvertence and definitely something more than a mere error and must be one which must be manifest on the face of the record. If the error is so apparent that without further investigation or inquiry only one conclusion can be drawn in favour of the applicant, in such circumstances, the review will lie. However, under the guise of review, the parties are not entitled to re-hearing of the same issue but the issue can be decided just by a perusal of the record and if it is manifest can be set right by reviewing the order. It must be remembered that in exercise of the powers of review this court cannot sit in appeal over its own order. Re-hearing of the matter is impermissible in law, since the power of review is an exception to the general rule that once the judgement is signed or pronounced, it should not be altered. It has to be remembered that power of review can be exercised for correction of a mistake but not to substitute a view. The review cannot be treated like an appeal in disguise. 11. The error contemplated under the rule is that the same should not require any long-drawn process of reasoning. The wrong decision can be subject t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessing Officer that company had created false documents by generating invoices in the names of the farmers from the State of Haryana. While in fact, the goods were transported to the State of Himachal Pradesh and the name of consigner was declared the department of agriculture. Whereas it was proved on record that company was not supplying the agriculture implements i.e. manually operated and animal driven agriculture, rather installing a complete irrigation system which required material like pipes, joints, sockets, sprinklers etc. and these were not exempted from tax (VAT). This court while adjudicating the writ petition had formulated the following points for determination:- (i) Whether in the facts and circumstances, the transaction of supplying sprinkler etc. from Haryana in question i.e. installation of irrigation system including sprinkler to the farmers of Himachal Pradesh is interstate or intra-state sale? (ii) Whether irrigation sprinkler system supplied by the petitioner- Company is agricultural implement, manually operated or animal driven and falls under Schedule B of VAT Act, therefore, exempted from tax? After taking into consideration the factual ..... X X X X Extracts X X X X X X X X Extracts X X X X
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