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Income Tax Officer Versus Ajay Prakash Verma

2015 (12) TMI 118 - JHARKHAND HIGH COURT

Review petition - Levy of interest upon the assessed income or upon the income declared in the return - Held that:- It appears that the department wants to argue the same issue again in this civil review application. This tantamounts to an appeal against the order passed by a Division Bench of this Court in Ajay Prakash Verma Versus Income Tax officer [2013 (1) TMI 140 - JHARKHAND HIGH COURT]. This is a civil review application in the format of an appeal. We are not sitting in appeal against the .....

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2010. Till today, this appellant has not preferred Special Leave Petition before Hon'ble Supreme Court.

Thus, no clerical error or statistical error has been pointed out by this appellant, but, an error on the merits of this case has been pointed out by the appellant. This is an appeal in the form of civil review.

The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowle .....

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ner of errors committed by the subordinate court. See ARIBAM TULESHWAR SHARMA Versus ARIBAM PISHAK SHARMA [1979 (1) TMI 228 - SUPREME COURT ]

The term 'mistake or error apparent' by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. If an error is not self-evident and detection thereof requires long debate and process of reasoning, it .....

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25 of 2014, Civil Review No. 66 of 2013 - Dated:- 1-9-2015 - D. N. Patel And Ratnaker Bhengra, JJ. For the Appellant : Mr. Deepak Roshan, Adv For the Respondent : Mr. Biren Podda, Sr. Adv. and Mr. Mahendra Choudhary, Adv JUDGMENT Per D. N. Patel, J. I.A. No. 5725 of 2014 1. This interlocutory application has been preferred under Section 5 of the Limitation Act for condonation of delay of 713 days in preferring the Civil Review Application. 2. Having heard learned counsel for both the sides and l .....

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rs that, whenever there is a delay, there is some lethargic approach on the part of the appellant. Nonetheless, we have to see the reasons for condonation of delay. It appears from the aforesaid paragraphs of interlocutory application that there are reasonable reasons for condonation of delay. We, therefore, condone the delay of 713 days in preferring the Civil Review Application. 5. I.A. No. 5725 of 2014 is, accordingly, allowed and disposed of. Civil.Review.No. 66 of 2013 6. This Civil Review .....

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as reported in (2002) 255 ITR 561, has submitted that the interest can be levied on the assessed income, as per Section 234B, in view of the amendment carried out in the Act. 7. Having heard learned counsel for both the sides and looking to the facts and circumstances of this case, it appears that this civil review application has been preferred as if it is an appeal in disguise. It appears that the Division Bench of this Court has appreciated the arguments canvassed and, which was not accepted .....

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04 (PAT)(FB). 8. Thus, it appears that the issue involved about the levy of interest upon the assessed income or upon the income declared in the return was addressed at length and, the department's plea was not accepted. 9. It appears that the department wants to argue the same issue again in this civil review application. This tantamounts to an appeal against the order passed by a Division Bench of this Court in Tax Appeal No. 38 of 2010 dated 25th July, 2012. This is a civil review applica .....

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This judgment and order is dated 25th July, 2012 in Tax Appeal No. 38 of 2010. Till today, this appellant has not preferred Special Leave Petition before Hon'ble Supreme Court. 10. Thus, no clerical error or statistical error has been pointed out by this appellant, but, an error on the merits of this case has been pointed out by the appellant. This is an appeal in the form of civil review. 11. It has been held by Hon'ble the Supreme Court in the case of Aribam Tuleshwar Sharma v. Aibam P .....

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ingle writ petition, settlement made in favour of different respondents. We are afraid that neither of the reasons mentioned by the learned Judicial Commissioner constitutes a ground for review. 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 a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable .....

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ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate powers which may enable an appellate court to correct all manner of errors committed by the subordinate court." (emphasis supplied) 12. It has also been held by Hon'ble the Supreme Court in the case of Meera Bhanja v. Nirmala Kumari Choudhary, as reported in (1995) 1 SCC 170, at paragraph no .....

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a, speaking through Chinnappa Reddy, J., has made the following pertinent observations: (SCC p. 390, 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 miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of .....

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oneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate power which may enable an appellate court to correct all manner of errors committed by the subordinate court." 9. Now it is also to be kept in view that in the impugned judgment, the Division Bench of the High Court has clearly observed that they were entertaining the review petition only on the ground of error apparent on the face of the record and not on any other grou .....

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following observations in connection with an error apparent on the face of the record: An error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the r .....

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as reappreciated the entire evidence, sat almost as court of appeal and has reversed the findings reached by the earlier Division Bench. Even if the earlier Division Bench's findings regarding C.S. Plot No. 74 were found to be erroneous, it would be no ground for reviewing the same, as that would be the function of an appellate court. Learned counsel for the respondent was not in a position to point out how the reasoning adopted and conclusion reached by the Review Bench can be supported wit .....

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pellate Decree No. 569 of 1973 insofar as C.S. Plot No. 74 is concerned as well as the review judgment dated 5-9-1984 in connection with the very same plot, i.e., C.S. Plot No. 74, are set aside and the earlier judgment of the High Court dated 3-8-1978 allowing the second appeal regarding suit Plot No. 74 is restored. The appeal is accordingly allowed. In the facts and circumstances of the case, there will be no order as to costs." (emphasis supplied) 13. It has further been held by Hon' .....

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question of law is an 'error apparent on the face of the record'). The fact that on the earlier occasion the Court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an 'error apparent on the face of the record', for there is a distinction which is real, though it might not always be capable of expo .....

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to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC. 9. Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule .....

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e read, but this section does not even adumbrate the ambit of interference expected of the court since it merely states that it "may make such order thereon as it thinks fit". The parameters are prescribed in Order 47 CPC and for the purposes of this lis, permit the defendant to press for a rehearing "on account of some mistake or error apparent on the face of the records or for any other sufficient reason". The former part of the rule deals with a situation attributable to t .....

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of law on which the judgment of the court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment. Where the order in question is appealable the aggrieved party has adequate and efficacious remedy and the court should exercise the power to review its order with the greatest circumspection. This Court in Thungabhadra Industries Ltd. v. Govt. of A.P. held as follows: (SCR p. 186) "[T]here i .....

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reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out." 14. In Meera Bhanja v. Nirmala Kumari Choudhury it was held that: "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 t .....

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itted by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found, it may also be exercised on any analogous ground. But .....

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ter the exercise of due diligence was not within the knowledge of the applicant; (b) such important matter or evidence could not be produced by the applicant at the time when the decree was passed or order made; and (c) on account of some mistake or error apparent on the face of the record or any other sufficient reason. 16. In Aribam Tuleshwar Sharma v. Aribam Pishak Sharma this Court held that there are definite limits to the exercise of power of review. In that case, an application under Orde .....

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miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the re .....

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n the face of the record for acquiring jurisdiction to review must be such an error which may strike one on a mere looking at the record and would not require any long-drawn process of reasoning. The following observations in connection with an error apparent on the face of the record in Satyanarayan Laxminarayan Hegde v. Millikarjun Bhavanappa Tirumale were also noted: (AIR p. 137) "An error which has to be established by a long-drawn process of reasoning on points where there may conceiva .....

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ing upon the judgments in Aribam and Meera Bhanja it was observed as under: (SCC p. 719, para 9) "9. Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the j .....

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;26. At this stage it will be apposite to observe that the power of review is a creature of the statute and no court or quasi-judicial body or administrative authority can review its judgment or order or decision unless it is legally empowered to do so. Article 137 empowers this Court to review its judgments subject to the provisions of any law made by Parliament or any rules made under Article 145 of the Constitution. The rules framed by this Court under that article lay down that in civil case .....

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mportant 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 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. (2) A party who is not appealing from .....

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other case, shall not be a ground for the review of such judgment." 27. The aforesaid provisions have been interpreted in several cases. We shall notice some of them. In S. Nagaraj v. State of Karnataka, this Court referred to the judgments in Raja Prithwi Chand Lal Choudhury v. Sukhraj Rai and Rajunder Narain Rae v. Bijai Govind Sing and observed: (S. Nagaraj case, SCC pp. 619-20, para 19) "19. Review literally and even judicially means reexamination or reconsideration. Basic philosop .....

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ch power to avoid abuse of process or miscarriage of justice. In Raja Prithwi Chand Lal Choudhury v. Sukhraj Rai the Court observed that even though no rules had been framed permitting the highest court to review its order yet it was available on the limited and narrow ground developed by the Privy Council and the House of Lords. The Court approved the principle laid down by the Privy Council in Rajunder Narain Rae v. Bijai Govind Sing that an order made by the Court was final and could not be a .....

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, and have corrected mistakes introduced through inadvertence in the details of judgments; or have supplied manifest defects, in order to enable the decrees to be enforced, or have added explanatory matter, or have reconciled inconsistencies.' Basis for exercise of the power was stated in the same decision as under: 'It is impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevailing to prevent irremediable injustice being done by a court .....

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Our Constitution-makers who had the practical wisdom to visualise the efficacy of such provision expressly conferred the substantive power to review any judgment or order by Article 137 of the Constitution. And clause (c) of Article 145 permitted this Court to frame rules as to the conditions subject to which any judgment or order may be reviewed. In exercise of this power Order 40 had been framed empowering this Court to review an order in civil proceedings on grounds analogous to Order 47 Rule .....

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not precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for sake of justice." 28. In Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius, the three-Judge Bench referred to the provisions of the Travancore Code of Civil Procedure, which was similar to Order 47 Rule 1 CPC and observed: (AIR p. 538, para 32) "32. … It is needless to emphasise that the scope of an application for review is much more restricted than that .....

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t 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 other sufficient reason. It has been held by the Judicial Committee that the words 'any other sufficient reason' must mean 'a reason sufficient on grounds, at least analogous to those specified in the rule'. (See Chhajju Ram v. Neki.) This conclusion was reiterated by the Judicial Committee in Bisheshwar Pratap Sahi v. Parath Nath and was adopte .....

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(AIR p. 1377, para 11) "11. … A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. We do not consider that this furnishes a suitable occasion for dealing with this difference exhaustively or in any great detail, but it would suffice for us to say that 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 .....

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ed on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court .....

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r Order 47 Rule 1 CPC … A review petition, it must be remembered has a limited purpose and cannot be allowed to be 'an appeal in disguise'." 33. In Lily Thomas v. Union of India, R.P. Sethi, J., who concurred with S. Saghir Ahmad, J., summarised the scope of the power of review in the following words: (SCC p. 251, para 56) "56. … Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated like an a .....

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he parameters are prescribed in Order 47 CPC and for the purposes of this lis, permit the defendant to press for a rehearing 'on account of some mistake or error apparent on the face of the records or for any other sufficient reason'. The former part of the rule deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postulate a rehearing of the dispute because a par .....

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